Do Arizona’s voting policies that impact minorities and limit otherwise legal in-person and early voting violate Section 2 of the Voting Rights Act?
This case asks the Supreme Court to consider the scope of Section 2 of the Voting Rights Act (“VRA”), which provides relief against voting policies that result in discrimination against minority populations. The state of Arizona enacted two voting policies that limit the scope of both in-person and mail-in voting. Arizona’s laws allowed it to discard any ballots cast in the wrong precinct on Election Day and criminalized collecting ballots for mailing purposes. Petitioners Arizona Attorney General Mark Brnovich and the state of Arizona (“Arizona”) argue that these policies are racially neutral and do not discriminate against Black, Hispanic, and Indigenous communities. Respondent Democratic National Committee (“DNC”) contends that these laws disproportionately impacted or—in the case of the prohibition on ballot collection—targeted minority communities, and therefore violated the VRA. The Supreme Court’s decision in this case will determine the extent of the protections granted by the VRA against discrimination as well as the validity of state laws seeking to address voter fraud.
Questions as Framed for the Court by the Parties
(1) Whether Arizona’s out-of-precinct policy, which does not count provisional ballots cast in person on Election Day outside of the voter’s designated precinct, violates Section 2 of the Voting Rights Act; and (2) whether Arizona’s ballot-collection law, which permits only certain persons (i.e., family and household members, caregivers, mail carriers and elections officials) to handle another person’s completed early ballot, violates Section 2 of the Voting Rights Act or the 15th Amendment.
The state of Arizona permits both in-person voting at designated voting centers or precincts, and “early voting,” in which voters can either mail in a ballot or drop off ballots at designated locations. Democratic Nat’l Comm. v. Hobbs at 999. Arizona has enacted two voting policies that limit the scope of both in-person and mail-in voting: the out-of-precinct policy (“OOP”) and H.B. 20203 (“Ballot Collection Ban”). Id.
Arizona’s out-of-precinct policy impacts in-person voting. Counties in Arizona are allowed to choose between two types of in-person voting systems: vote-center system and precinct-based system. Id. A majority of Arizona’s population lives in precinct-based systems, a system that allows them to vote in-person only at a specific polling location. Id. The remaining population lives in a vote-center system, which allows citizens to vote at any polling locations. Id. Voters in the precinct-based system who arrive at a polling place but are not listed on that precinct’s voter rolls may cast a provisional ballot. Id. Under the OOP policy, officials may dispose of any provisional ballot cast in-person in the incorrect precinct, or when a citizen does not appear on the voting rolls of the precinct. Id.
After voting day, officials will check the eligibility of the provisional voter in that precinct and, if it does not comply, will dispose of the full ballot. Id. Of those discarded ballots, some may show that a voter only cast votes that were entirely legal for that voter to have cast, while others record votes that were at least partially legal for that voter to cast (for example, the voter legally voted for president and senators, but voted for a representative outside their jurisdiction). Id. Nonetheless, under the OOP policy, officials dispose of ballots in their entirety, even if portions of the ballots contained legal votes. Id. at 999–1000.
Arizona’s Ballot Collection Ban impacts early voting. Id. at 999. Arizona has allowed voters to vote early for over twenty-five years. Id. at 1005. Prior to the passage of the Ballot Collection Ban, certain counties permitted third parties to collect and drop off completed ballots at authorized sites. Id. This service was heavily used by minority communities—especially Hispanic communities—in Arizona, who are more likely to live in areas that do not have home mail service and lack reliable transportation. Id. at 1005–06. Local Democratic party organizers used ballot collection as part of their get-out-the-vote strategizing, while the Republican Party largely does not. Id.
The Democratic National Committee (“DNC”) sued Arizona's Attorney General Mark Brnovich and Secretary of State Katie Hobbs in the District Court for the District of Arizona. Id. at 998. The Arizona Republican Party intervened in the suit as defendants. Democratic Nat'l Comm. v. Reagan at 833. The DNC argued that both these policies violated the Voting Rights Act (“VRA”), the Fourteenth Amendment, and the First Amendment. Democratic Nat’l Comm. v. Hobbs at 998. In particular, the DNC argued that the OOP policy of wholly discarding ballots and the Ballot Collection Ban disproportionately limited the ability of Black, Hispanic, and Native American communities to vote. Id. In addition, the DNC argued that the Ballot Collection Ban violated the Fifteenth Amendment and Section 2 of the VRA because, in passing the ban, legislatures intentionally discriminated against those communities and relied on “racially tinged” allegations of voter fraud. Id. at 998, 1009. The district court ruled against the DNC on both policies. Id. at 999.
On appeal in the United States Court of Appeals for the Ninth Circuit, the Ninth Circuit determined that the district court clearly erred in ruling against the DNC. Id. at 998–99. First, the court found that Arizona’s rejection rate of provisional ballots is the highest compared to other states, at a rate “eleven times that in Washington, the State with the second-highest percentage.” Id. at 1000–01. In addition, the court found that the Ballot Collection Ban was passed due to “farfetched allegations” of fraud and racially-fueled intent. Id. at 1009. Based on this factual analysis, the Ninth Circuit found that Arizona’s laws violated both the “results test” and the “intent test” of the VRA, and that the Ballot Collection Ban further violated Fifteenth Amendment. Id. at 999. The circuit court did not analyze the First or Fourteenth Amendment violation claims. Id.
On April 27, 2020, Brnovich and the Arizona Republican Party separately filed a petition for a writ of certiorari. The Supreme Court of the United States granted certiorari on October 2, 2020. The Supreme Court consolidated this case with Arizona Republican Party v. Democratic National Committee (19-1258).
DETERMINATIVE TEST FOR A VRA VOTE DENIAL CLAIM
Petitioners Attorney General Mark Brnovich and the state of Arizona (“Arizona”) contend that vote-denial claims under the VRA, which challenge voting policies that deny or abridge the right to vote on the basis of race or color, must pass a strict two-part test in order to allow states to exercise their constitutional powers to enact voting legislation. Brief for State Petitioners, Mark Brnovich, in His Official Capacity as Arizona Attorney General, et al. at 18–19, 25–27. First, according to Arizona, this test requires the Court examine whether there was a “substantial disparate impact” on the ability of minority voters to vote “and to elect representatives of their choice.” Id. at 18–19; see also Brief for Private Petitioners, Arizona Republican Party et al. at 19–20. Arizona argues that the VRA only required equal treatment, not equal outcome, and thus facially neutral and generally applicable laws do not contravene the VRA. Brief for State Petitioners at 20; Brief for Private Petitioners at 20. Arizona interprets the VRA to require a “substantial” disparate impact in which the voting and registration system as a whole has been limited in order to find a law in violation of the VRA. Brief for State Petitioners at 21–22. Arizona further contends that the use of the word “and” in the statute requires that the voting policy “influence the outcome of the election,” as well as impacting the ability of minority voters to “elect representatives of their choice.” Id. at 22. Arizona suggests that if any level of disparate impact contravened the VRA, every voting policy would find itself “race conscious” and violative of the Equal Protection Clause of the Fourteenth Amendment. Id. at 26–27; Brief for Private Petitioners at 39, 41.
Second, Arizona argues that the Court must examine whether the law caused that “substantial disparate impact.” Brief for State Petitioners at 23; see also Brief for Private Petitioners at 29–30. Arizona asserts that virtually every appellate court demands causation in determining whether a vote denial claim is valid. Brief for State Petitioners at 23. In other words, Arizona maintains, the second prong of the VRA test requires that there be actual causation between the voting policy and the disparate impact on voting among minority communities. Id. at 28. Arizona contends that the impact must be due directly to the voting policy, and “not by ‘socioeconomic conditions’ or a ‘history of discrimination’ in the distant past.” Id.; Brief for Private Petitioners at 29–30.
In response, Respondent DNC argues that Arizona seeks to inappropriately narrow the scope of a vote-denial claim under the VRA. Brief for Respondents, Democratic National Committee et al. (“Brief for DNC”) at 35, 46; see also Brief for Respondent, Arizona Secretary of State Katie Hobbs (“Brief for Hobbs”) at 24. The DNC contends that the first step of determining whether a challenged voting policy violates the VRA asks only “whether minorities have less opportunity to participate than whites,” leading to a disparate impact test. Brief for DNC at 26. The DNC explains that there is no exception for facially neutral laws under the VRA, pointing out that voting restrictions like poll taxes were facially neutral and generally applicable but disproportionately impacted minority communities and thus invalid under the VRA. Id. at 43–44; Brief for Hobbs at 27. Furthermore, the DNC asserts that there is no “substantial” requirement contained within the disparate impact test of the VRA, and that the State’s assertion that the impact must be substantial enough to impact election results could “shield laws with even abundantly clear racially discriminatory impacts.” Brief for DNC at 25–27; see also Brief for Hobbs at 29–30. Finally, the DNC contends that the VRA only prohibits voting policies “that have the purpose or effect of making it more difficult for minority voters to vote,” a practice entirely within the scope of the Reconstruction Amendments and that would not have the “hyperbolic” effect of nullifying neutral election laws across the country. Brief for DNC at 40, 46; see also Brief for Hobbs at 35–36.
Next, the DNC argues that the VRA’s causation requirement demands that courts consider the “totality of the circumstances,” including the “consideration of historical, contextual, and local factors unique to each jurisdiction.” Brief for DNC at 36, 42; see also Brief for Hobbs at 20–21. The DNC contends that Congress intended the courts to examine whether challenged voting policies deny or abridge voting in conjunction with the social and historical racial inequality or discrimination. Brief for DNC at 32–33; see also Brief for Hobbs at 31. The DNC emphasizes that voting policies—even “indisputably discriminatory” policies—do not impact minorities in isolation; rather, the root cause of hampered voting rights and the disparate impact is the interaction of election law with the combined effects of discrimination. Brief for DNC at 35–36, 39; see also Brief for Hobbs at 21.
VALIDITY OF OUT-OF-PRECINCT POLICY
Arizona contends that the OOP policy does not violate either prong of the VRA test. Brief for State Petitioners at 34. First, Arizona asserts that the policy is facially neutral, impacting all ballots filed in incorrect precincts on Election Day with no targeting of minority communities, and further has had no substantial impact on voting disparities. Id. In particular, Arizona argues that the OOP affects only a tiny minority of the voting population and examining only the impact on that population ignores “the totality of the circumstances”—which in light of the overall election make the impact non-substantial. Id. at 36. Finally, Arizona contends that there was no disparate effect on the election outcome or the ability of voters to choose the candidates of their choice. Id. at 35.
Arizona also argues that even if minority voters are more likely to have their ballots discarded under the OOP policy, that is not caused by the policy itself. Id. at 37. Arizona cites “frequent changes in polling locations[,] confusing placement of polling locations[,] and high rates of residential mobility” as the causes of votes that are cast out of precinct. Id. at 38. However, Arizona contends, none of these factors are attributable to the OOP policy, or even the state, therefore any disparate impact fails the causation requirement. Id.
In response, the DNC argues that the OOP policy resulted in the consistent disenfranchisement of minority voters at a rate double that of white voters. Brief for DNC at 31; Brief for Hobbs at 39. The DNC contends that Arizona’s point describing a “relatively small overall percentage” of discarded ballots is irrelevant, because the OOP policy itself disparately impacts minority voters. Brief for DNC at 31; Brief for Hobbs at 41–42. Moreover, the DNC emphasizes that Arizona has the highest rate of OOP voting of any state, thus a policy expressly forbidding it has a much higher impact in Arizona than any other state. Brief for DNC at 31.
Next, the DNC contends that the effects of discrimination, including low rates of home ownership and high rates of residential movement, interact with the OOP policy to cause a disparate impact to minority voters. Id. at 33. In particular, the DNC notes that OOP voting occurs in densely populated precinct, disproportionately composed of minority communities, with high rates of movement and renting due to historical and current discrimination. Id. at 33–34. Due to the interaction of the OOP policy and long-standing housing discrimination, the DNC argues, the totality of the circumstances results in political processes less open to minority communities. Id. at 33.
VALIDITY OF BALLOT COLLECTION BAN
Arizona argues that the Ballot Collection Ban is a facially neutral law that does not intentionally discriminate against minority communities. Brief for State Petitioners at 46. According to Arizona, the courts “improperly conflated partisan motivations with racial ones,” and that partisan motivations are perfectly legitimate in structuring voting policy. Id. at 42; see also Brief for Private Petitioners at 45, 48. Arizona contends that the circuit court injected racial animus into the legislature from remarks made by a single official, in violation of previous voting law precedent. Brief for State Petitioners at 47; see also Brief for Private Petitioners at 43. Further, Arizona maintains that laws may be passed to prevent fraud, even with no evidence of fraudulent activities, and that doing so does not provide racial animus. Brief for State Petitioners at 48; see also Brief for Private Petitioners at 44–45.
Arizona then contends that the plaintiffs presented no evidence of substantial disparate impact in ballot collection. Id. at 40. Arizona argues that only anecdotal evidence of disparate impact was presented to show a negative impact on minority voters. Id. at 40–41. According to Arizona, the circuit court only pointed to “little comparative, non-statistical analysis” and supplemented that with inferred racial animus. Id. at 42. Finally, Arizona asserts that because there is no evidence of a substantive, disparate impact, it is “logically impossible” to draw any causal arguments. Id. at 43.
The DNC counters that the Ballot Collection Ban was motivated by racial discrimination. Brief for DNC at 58. The DNC argues that the court below correctly applied the Arlington Heights analysis to determine discriminatory intent, which showed that “racial discrimination was a motivating factor” of the ballot collection ban. Id. at 58–59; Brief for Hobbs at 47–48. The DNC responds to Arizona’s criticism of imputing racial animus from a single official by pointing out that remarks were made by the ban’s sponsor, who then convinced other legislatures to ban ballot collection. Brief for DNC at 60; Brief for Hobbs at 46. Furthermore, the DNC argues that even if the Arizona legislatures had partisan motivations for passing the Ballot Collection Ban, the process was tainted by “demonstrably false and racially-motivated allegations” of voting fraud and explicitly racist appeals. Brief for DNC at 60; Brief for Hobbs at 50.
The DNC further contends that statistical analysis is unnecessary to show disparate impact, and that no one possesses “detailed statistical records” of how many voters used ballot collection prior to the ban. Brief for DNC at 29. The DNC emphasizes that the “uncontroverted evidence,” including numerous witness statements, showed that “many thousands” of minority voters used ballot collection to vote. Id. at 30–32; Brief for Hobbs at 45. In comparison, the DNC notes, white voters did not rely on ballot collection. Brief for DNC at 30; Brief for Hobbs at 45. The DNC asserts that minorities rely on ballot collection “due to unique, contextual factors,” including that minorities are less likely to own personal vehicles and have inflexible hourly-wage jobs that increase the difficulty of returning a ballot. Brief for DNC at 34. Thus, the DNC argues the Ballot Collection Ban and the discriminatory factors that force minority communities to disproportionately rely on ballot collection interact to cause abridged opportunities for these minority communities to vote. Id.; see also Brief for Hobbs at 46.
EXISTENCE OF VOTER FRAUD
Election Integrity Project California, Inc. and Election Integrity Project Arizona, LLC (collectively “EIPC”), in support of Arizona, argue that issues of voter fraud increase outside of a regulated polling place and allowing third-party intervention would exacerbate the issue. Brief of Amici Curiae EIPC, in Support of Petitioners at 7. Specifically, EIPC contends that the largest form of fraud is through mailing ballots which can arrive at the wrong address, be stolen, and are subject to voter intimidation. Id. Indeed, EIPC argues that because states like Arizona do not sufficiently update their voter registration list, mail-in voting would embolden voter fraud since numerous dead or non-residents would receive a ballot. Id. at 8–9. EIPC believes that allowing mail-in ballots in Arizona would result in the targeting of older communities and large apartment buildings in an effort for ballot collectors to greatly affect election results. Id. at 13–14.
Empirical Elections Scholars (“EES”), in support of DNC, argues that evidence of voter fraud is rare despite its prevalence in political debates when arguing about electoral outcomes, and therefore voter fraud is irrelevant to the validity of ballot collection. Brief of Amici Curiae EES, in Support of Respondents at 5, 7. Specifically, EES cite numerous independent and government studies—the most recent of which looked at the 2016 presidential election—which found that voter fraud is not a large-scale problem and only has minimal effect on electoral results. Id. at 12–13. EES further substantiate their argument by referencing an Arizona-based database, News21, that only found seven cases of fraud between 2000 and 2012—none of which related back to ballot collection. Id. at 23. Further, EES assert that just because voter fraud has become a popular topic and fear for the general public does not mean it has been substantiated by research, scholars, or court precedent—in fact it is the reality is far from it. Id. at 33–34. Instead, ESS suggest that voter disenfranchisement and ballot rejection are more concerning and have more impact on elections than voter fraud. Id. at 36.
EQUAL OPPORTUNITY TO VOTE
Helen Purcell, in support of Arizona, argues that over the years Arizona has taken considerable steps in their voting rights laws to assure ease of voting and equal opportunity for all citizens. Brief of Amicus Curiae Helen Purcell, in Support of Petitioners at 6–7. From absentee voting, early voting, accommodations for those with disabilities, and emergency voting, Purcell maintains that Arizona has done its duty to assure accessible voting for all its citizens. Id. at 6–8. The Republican Governors Public Policy Committee (“RPPC”), in support of Arizona, agrees that Arizona’s laws serve to make voting easier and secure, and do not result in discrimination of any particular racial group. Brief of Amicus Curiae RPPC, in Support of Petitioners at 12. Indeed, RPPC claims that as Arizona’s population has increased, its voter turnout has steadily kept pace which shows that voter disenfranchisement is not an issue. Id. at 16–17. But allowing third-parties to collect votes, RPPC contends, would take away the integrity of secure voting and serve to devalue the system. Id. at 23.
Navajo Nation, in support of DNC, argues that Arizona voting laws are unfair and discriminate against Native Americans. Brief of Amicus Curiae Navajo Nation, in Support of Respondents at 4. Indeed, Navajo Nation points to the 2018 suit from Native Americans for violations of the VRA and the Constitution based on claims of discarded early ballots, lack of access to early in-person voting, and failing to provide adequate translation. Id. at 11. Navajo Nation also points to the continuous intimidation experienced by Native Americans who are discouraged to vote. Id. Further, Navajo Nation has limited access to mail-in voting because they do not receive mail at home on reservations and the closest post offices are found at “a great distance.” Id. at 12–13. Mi Familia Vota, Arizona Center for Empowerment, Chispa Arizona, and League of Women Voters of Arizona (collectively “MFV”), in support of DNC, also argue that the Latino population in Arizona are disproportionately impacted and restricted by Arizona laws. Brief of Amici Curiae MFV et al., in Support of Respondents at 5. MFV assert that Latino voters are more likely to need a third-party ballot collection due to lack of access to information regarding their polling place, lack of polling places in Latino neighborhoods, and ultimately “a lack of reliable mail service.” Id. at 23–24. Thus, MFV argue that Arizona’s current voting laws do not give equal opportunity for all of their citizens to cast votes. Id. at 26.
- Shayna Frieden, Voting Rights During a Historic Year, Arizona State Law Journal Blog (Nov. 2, 2020).