Continuing the discussion from The Republican War on Voting Thread:
My vision for this topic is general discussion on the merits of the case, purely political commentary can stay over in P&E.
In a nutshell, in 2016 the Democratic National Committee and Arizona Republicans went to court over whether some of Arizona’s voting laws violate section two of the (amended) Voting Rights Act of 1965 (VRA) and Amendment XV to the Constitution. The two provisions of state law being challenged:
- out-of-precinct (OOP) policy: votes cast in the wrong precinct will be discarded, if the county decides to use voting precincts (Arizona allows counties to use an alternate model which is not at issue here)
- ballot-collection law: it is a crime to collect someone else’s early ballot, unless you are a family/household member, caregiver, mail carrier, or election official
The DNC alleged that both the out-of-precinct policy and the ballot-collection law violated section two of the Voting Rights Act. They also alleged that the ballot-collection law was enacted with racial discriminatory intent, in violation of section two of the VRA and the Fifteenth Amendment.
In 2018 the District Court ruled in favor of Arizona on all counts, and a split 9th Circuit panel upheld that ruling. The case was reheard before the full 9th Circuit court, who reversed in favor of the DNC: both provisions violated the VRA and the District Court clearly erred in deciding whether the ballot-collection law was enacted with discriminatory intent.
Arizona petitioned the Supreme Court, which granted certiorari. Just this month the Supreme Court reversed the 9th Circuit without providing a general test. Here are my highlights of the opinion,
Regarding the out-of-precinct policy: (click to show/hide)
- "Having to identify one’s own polling place and then travel there to vote does not exceed the “usual burdens of voting.”
- “the racial disparity in burdens allegedly caused by the out-of-precinct policy is small in absolute terms […] A policy that appears to work for 98% or more of voters to whom it applies—minority and non-minority alike—is unlikely to render a system unequally open.”
- “precinct-based voting has a long pedigree in the United States […] [a]nd the policy of not counting out-of-precinct ballots is widespread.”
- “Section 2 [of the VRA] does not require a State to show that its chosen policy is absolutely necessary or that a less restrictive means would not adequately serve the State’s objectives.”
- “In light of the modest burdens allegedly imposed by Arizona’s out-of-precinct policy, the small size of its disparate impact, and the State’s justifications, we conclude the rule does not violate §2 of the VRA.”
Regarding the ballot-collection law and the VRA: (click to show/hide)
- “Arizonians who receive early ballots can submit them by going to a mailbox, a post office, an early ballot drop box, [&etc. …] Making any of these trips—much like traveling to an assigned polling place—falls squarely within the heartland of the ‘usual burdens of voting’.”
- “Every county must establish a special election board to serve voters who are ‘confined as the result of a continuing illness or physical disability,’ are unable to go to the polls on election day, and do not wish to cast an early vote by mail.”
- “Arizona law also requires employers to give employees time off to vote when they are otherwise scheduled to work certain shifts on election day.”
- “The plaintiffs were unable to provide statistical evidence showing that HB 2023 had a disparate impact on minority voters. […] without more concrete evidence, we cannot conclude that HB 2023 results in less opportunity to participate in the political process.”
- “Even if the plaintiffs had shown a disparate burden caused by HB 2023, the State’s justifications would suffice to avoid §2 liability. ‘A State indisputably has a compelling interest in preserving the integrity of its election process.’ […] Limiting the classes of persons who may handle early ballots to those less likely to have ulterior motives deters potential fraud and improves voter confidence.”
- “third-party ballot collection can lead to pressure and intimidation. And it should go without saying that a State may take action to prevent election fraud without waiting for it to occur and be detected within its own borders. Section 2’s command that the political processes remain equally open surely does not demand that ‘a State’s political system sustain some level of damage before the legislature [can] take corrective action.’”
- “As with the out-of-precinct policy, the modest evidence of racially disparate burdens caused by HB 2023, in light of the State’s justifications, leads us to the conclusion that the law does not violate §2 of the VRA.”
Regarding the ballot-collection law and discriminatory intent: (click to show/hide)
- “If the district court’s view of the evidence is plausible in light of the entire record, an appellate court may not reverse even if it is convinced that it would have weighed the evidence differently in the first instance.”
- “[Arizona State Sen.] Shooter made what the court termed ‘unfounded and often far-fetched allegations of ballot collection fraud.’ […] But what came after the airing of Shooter’s claims and a “racially-tinged” video created by a private party was a serious legislative debate on the wisdom of early mail-in voting. That debate, the District Court concluded, was sincere and led to the passage of HB 2023 in 2016.”
- “We are more than satisfied that the District Court’s interpretation of the evidence is permissible. The spark for the debate over mail-in voting may well have been provided by one Senator’s enflamed partisanship, but partisan motives are not the same as racial motives. […] And while the District Court recognized that the ‘racially-tinged’ video helped spur the debate about ballot collection, it found no evidence that the legislature as a whole was imbued with racial motives.”
- “The Court of Appeals nevertheless concluded that the District Court committed clear error by failing to apply a ‘cat’s paw’ theory sometimes used in employment discrimination cases. […] A ‘cat’s paw’ is a ‘dupe’ who is ‘used by another to accomplish his purposes.’ […] The ‘cat’s paw’ theory has no application to legislative bodies. The theory rests on the agency relationship that exists between an employer and a supervisor, but the legislators who vote to adopt a bill are not the agents of the bill’s sponsor or proponents. Under our form of government, legislators have a duty to exercise their judgment and to represent their constituents. It is insulting to suggest that they are mere dupes or tools.”
"Arizona’s out-of-precinct policy and HB 2023 do not violate §2 of the VRA, and HB 2023 was not enacted with a racially discriminatory purpose. The judgment of the Court of Appeals is reversed, and the cases are remanded for further proceedings consistent with this opinion.It is so ordered."
Primary sources below.
§2 of the Voting Rights Act of 1965, as amended (click to show/hide)
§10301. Denial or abridgement of right to vote on account of race or color through voting qualifications or prerequisites; establishment of violation
(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 10303(f)(2) of this title, as provided in subsection (b).
(b) A violation of subsection (a) is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided , That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.
Amendment XV to the U.S. Constitution (click to show/hide)
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
District Court Opinion (4.54 mB PDF, p. 246-363 [JA 242-359])
9th Circuit Panel Opinion and Dissent (same document as above, p. 364-496 [JA 360-492])
9th Circuit en banc Opinion and Dissent (same document as above, p. 580-834 [JA 576-830])
Arizona’s brief (316 kB PDF)
DNC’s brief (438 kB PDF)
Supreme Court Opinion (646 kB PDF)