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The Democratic National Committee v. Reagan

United States Court of Appeals, Ninth Circuit

September 12, 2018

The Democratic National Committee; DSCC, AKA Democratic Senatorial Campaign Committee; The Arizona Democratic Party, Plaintiffs-Appellants,
v.
Michele Reagan, in her official capacity as Secretary of State of Arizona; Mark Brnovich, Attorney General, in his official capacity as Arizona Attorney General, Defendants-Appellees, The Arizona Republican Party; Bill Gates, Councilman; Suzanne Klapp, Councilwoman; Debbie Lesko, Sen.; Tony Rivero, Rep., Intervenor-Defendants-Appellees.

          Argued and Submitted July 20, 2018 San Francisco, California

          Appeal from the United States District Court for the District D.C. No. 2:16-cv-01065-DLR of Arizona Douglas L. Rayes, District Judge, Presiding

          Bruce V. Spiva (argued), Alexander G. Tischenko, Amanda R. Callais, Elisabeth C. Frost, and Marc E. Elias, Perkins Coie LLP, Washington, D.C.; Sarah R. Gonski and Daniel C. Barr, Perkins Coie LLP, Phoenix, Arizona; Joshua L. Kaul, Perkins Coie LLP, Madison, Wisconsin; for Plaintiffs-Appellants.

          Dominic E. Draye (argued), Joseph E. La Rue, Karen J. Hartman-Tellez, Kara M. Karlson, and Andrew G. Pappas, Office of the Attorney General, Phoenix, Arizona, for Defendants-Appellees.

          Brett W. Johnson (argued) and Colin P. Ahler, Snell & Wilmer LLP, Phoenix, Arizona, for Intervenor-Defendants-Appellees.

          Before: Sidney R. Thomas, Chief Judge, and Carlos T. Bea and Sandra S. Ikuta, Circuit Judges.

         SUMMARY[*]

         Civil Rights

         The panel affirmed the district court's judgment, entered following a bench trial, in an action challenging under the First, Fourteenth and Fifteenth Amendments, and § 2 of the Voting Rights Act, two state of Arizona election practices: (1) Arizona's requirement that in-person voters cast their ballots in their assigned precinct, which Arizona enforces by not counting ballots cast in the wrong precinct; and (2) House Bill 2023, which makes it a felony for third parties to collect early ballots from voters, unless the collector falls into one of several exceptions.

         The panel held that the district court did not err in holding that H.B. 2023 and the out of precinct policy did not violate the First and Fourteenth Amendments because the provisions imposed only a minimal burden on voters and were adequately designed to serve Arizona's important regulatory interests. The panel also concluded that the district court did not err in holding that H.B. 2023 and the out of precinct policy did not violate § 2 of the Voting Rights Act. The panel held that given the minimal burden imposed by these election practices, plaintiffs failed to show that minority voters were deprived of an equal opportunity to participate in the political process and elect candidates of their choice. Finally, the panel concluded that that the district court did not err in holding that H.B. 2023 did not violate the Fifteenth Amendment because plaintiffs failed to carry their burden of showing that H.B. 2023 was enacted with discriminatory intent.

         Dissenting, Chief Judge Thomas stated that Arizona's policy of wholly discarding-rather than partially counting-votes cast out-of-precinct had a disproportionate effect on racial and ethnic minority groups. He stated that the policy violated § 2 of the Voting Rights Act, and it unconstitutionally burdened the right to vote guaranteed by the First Amendment and incorporated against the states under the Fourteenth Amendment. He further wrote that H.B. 2023, which criminalizes most ballot collection, served no purpose aside from making voting more difficult, and keeping more African American, Hispanic, and Native American voters from the polls than white voters.

          OPINION

          IKUTA, CIRCUIT JUDGE.

         The Democratic National Committee (DNC) and other appellants[1] sued the state of Arizona, [2] raising several challenges under the First, Fourteenth and Fifteenth Amendments, and § 2 of the Voting Rights Act of 1965 (VRA), 52 U.S.C. § 10301, against two state election practices: (1) Arizona's longstanding requirement that in-person voters cast their ballots in their assigned precinct, which Arizona enforces by not counting ballots cast in the wrong precinct (referred to by DNC as the out-of-precinct or OOP policy), and (2) H.B. 2023, a recent legislative enactment which precludes most third parties from collecting early ballots from voters. After a lengthy trial involving the testimony of 51 witnesses and over 230 evidentiary exhibits, the district court rejected each of DNC's claims. Democratic Nat'l Comm. v. Reagan, ___ F.Supp.3d ___, No. CV-16-01065-PHX-DLR, 2018 WL 2191664 (D. Ariz. May 10, 2018).

         In deciding this case, the district court was tasked with making primarily factual determinations. For instance, a First and Fourteenth Amendment challenge to an election rule involves the "intense[ly] factual inquiry" of whether a plaintiff has carried the burden of showing that challenged election laws impose a severe burden on Arizona voters, or a subgroup thereof. Gonzalez v. Arizona, 485 F.3d 1041, 1050 (9th Cir. 2007). A Fifteenth Amendment claim involves the "pure question of fact" of whether the plaintiff has carried the burden of showing that the state legislature enacted the challenged law with a discriminatory intent. Pullman-Standard v. Swint, 456 U.S. 273, 287-88 (1982). And in a VRA challenge, we defer to "the district court's superior fact-finding capabilities," Smith v. Salt River Project Agric. Improvements & Power Dist., 109 F.3d 586, 591 (9th Cir. 1997), regarding whether the plaintiff has carried the burden of showing that an election practice offers minorities less opportunity "to participate in the political process and to elect representatives of their choice." 52 U.S.C. § 10301(b); see also Chisom v. Roemer, 501 U.S. 380, 397 (1991). We must affirm these factual findings unless they are "clearly erroneous." Anderson v. Bessemer City, 470 U.S. 564, 573 (1985).

         In its detailed 83-page opinion, the district court found that DNC failed to meet its burden on these critical factual questions. Its analysis on these factual inquiries was thorough and evenhanded, with findings well-supported by the record. Given the district court's extensive factual findings, much of DNC's appeal amounts to a request that we reweigh and reevaluate the evidence in the record. But we may not "duplicate the role of the lower court" or reject factual findings that, as here, are not clearly erroneous. Id. at 573. Nor did the district court err in identifying and applying the correct legal standard to each of DNC's claims.

         Accordingly, we conclude that the district court did not err in holding that H.B. 2023 and the OOP policy did not violate the First and Fourteenth Amendments because they imposed only a minimal burden on voters and were adequately designed to serve Arizona's important regulatory interests. We also conclude that the district court did not err in holding that H.B. 2023 and the OOP policy did not violate § 2 of the VRA. Given the minimal burden imposed by these election practices, DNC failed to show that minority voters were deprived of an equal opportunity to participate in the political process and elect candidates of their choice. Finally, we conclude that the district court did not err in holding that H.B. 2023 did not violate the Fifteenth Amendment, because DNC failed to carry its burden of showing that H.B. 2023 was enacted with discriminatory intent. We reject DNC's urging to toss out the district court's findings, reweigh the facts and reach opposite conclusions. As such, we affirm the district court.

         I

         The district court's order denying DNC's claims sets forth the facts in detail, Reagan, 2018 WL 2191664, at *1-9, so we provide only a brief factual and procedural summary here. The district court's factual findings are discussed in detail as they become relevant to our analysis.

         A

         We begin by reviewing Arizona's election system. Arizona permits voters to vote either in person on Election Day or by early mail ballot. Id. at *7, *12. The vast majority of Arizonans vote by early ballot. For instance, only about 20 percent of the votes in the 2016 general election were cast in person. Id. at *12.

         Most Arizona counties conduct in-person voting through a precinct-based system. Arizona gives each county the responsibility to "establish a convenient number of election precincts in the county and define the boundaries of [those] precincts." Ariz. Rev. Stat. § 16-411(A). Before an election, the County Board of Supervisors (the County's legislative unit) must designate at least one polling place per precinct. Id. § 16-411(B). Arizona law provides some flexibility for counties to combine precincts if each county's board of supervisors makes specific findings. See id. § 16-411(B)(2).

         Arizona has long required in-person voters to cast their ballots in their assigned precinct and has enforced this system, since at least 1970, by counting only votes cast in the correct precinct. See Ariz. Rev. Stat. §§ 16-122, 16-135, 16-584 (codified in 1979); 1970 Ariz. Sess. Laws, ch. 151, § 64 (amending Ariz. Rev. Stat. § 16-895); Ariz. Rev. Stat. § 16-102 (1974). If an Arizona voter's name does not appear on the voting register at the polling place on Election Day (either because the voter recently moved or due to inaccuracies in the official records), the voter may vote only by provisional ballot. Ariz. Rev. Stat. §§ 16-122, 16-135, 16-584. Later, the state reviews all provisional ballots and counts those votes cast by voters confirmed to be eligible to vote. Id. §§ 16-135(D), 16-584(D). A provisional ballot cast outside of the voter's correct precinct is not counted. Id. (As mentioned above, DNC refers to Arizona's rejection of improperly cast ballots as Arizona's OOP policy.)

         Recently, Arizona has permitted counties to choose between the traditional precinct model and "voting centers," wherein voters from multiple precincts can vote at a single location. Id. § 16-411(B)(4). Each voting center must be equipped to print a specific ballot, correlated to each voter's particular district, that includes all races in which the voter is eligible to vote. Reagan, 2018 WL 2191664, at *9. Six rural and sparsely populated counties-Graham, Greenlee, Cochise, Navajo, Yavapai, and Yuma-have adopted the voting center model. Id.

         As noted above, most Arizona voters (roughly 80 percent in the 2016 general election) do not vote in person. Arizona law permits "[a]ny qualified elector" to "vote by early ballot." Ariz. Rev. Stat. § 16-541(A).[3] Early voting can occur by mail or in person at an on-site early voting location in the 27 days before an election. See id. § 16-542(D). All Arizona counties operate at least one on-site early voting location. Reagan, 2018 WL 2191664, at *7. Voters may also return their ballots in person at any polling place without waiting in line, and several counties additionally provide special drop boxes for early ballot submission. Id. Moreover, voters can vote early by mail, either for an individual election or by having their names added to a permanent early voting list. Id. An early ballot is mailed to every person on that list as a matter of course no later than the first day of the early voting period. Ariz. Rev. Stat. § 16-544(F). Voters may return their early ballot by mail at no cost, id. § 16-542(C), but it must be received by 7:00 p.m. on Election Day, id. § 16-548(A).

         Since 1992, Arizona has prohibited any person other than the voter from having "possession of that elector's unvoted absentee ballot." See 1991 Ariz. Legis. Serv. Ch. 310, § 22 (S.B. 1390) (West). In 1997, the Arizona legislature expanded that prohibition to prevent any person other than the voter from having possession of any type of unvoted early ballot. See 1997 Ariz. Legis. Serv. Ch. 5, § 18 (S.B. 1003) (West) (codified at Ariz. Rev. Stat. § 16-542(D)). As explained by the Supreme Court of Arizona, regulations on the distribution of absentee and early ballots advance Arizona's constitutional interest in secret voting, see Ariz. Const. art. VII, § 1, "by setting forth procedural safeguards to prevent undue influence, fraud, ballot tampering, and voter intimidation," Miller v. Picacho Elementary Sch. Dist. No. 33, 179 Ariz. 178, 180 (1994) (en banc).

         Arizona has long supplemented its protection of the early voting process through the use of penal provisions, as set forth in section 16-1005 of Arizona's statutes. For example, since 1999, "[a]ny person who knowingly marks a voted or unvoted ballot or ballot envelope with the intent to fix an election for that person's own benefit . . . is guilty of a class 5 felony." 1999 Ariz. Legis. Serv. Ch. 32, § 12 (S.B. 1227) (codified as amended at Ariz. Rev. Stat. § 16-1005(A)). And in 2011, Arizona made offering or providing any consideration to acquire a voted or unvoted early ballot a class 5 felony. See 2011 Ariz. Legis. Serv. Ch. 105, § 3 (S.B. 1412) (codified at Ariz. Rev. Stat. § 16-1005(B)).

         Since at least 2002, individuals and groups in Arizona have collected early ballots from voters. While distribution of early ballots had been strictly regulated for decades, see 1997 Ariz. Legis. Serv. Ch. 5, § 18 (S.B. 1003) (West) (codified at Ariz. Rev. Stat. § 16-542(D)), ballot collection by third parties was not. This changed in 2016, when Arizona revised its early voting process, as defined in section 16-1005, by enacting H.B. 2023 to regulate the collection of early ballots. This law added the following provisions to the existing penalties for persons abusing the early voting process:

H. A person who knowingly collects voted or unvoted early ballots from another person is guilty of a class 6 felony. An election official, a United States postal service worker or any other person who is allowed by law to transmit United States mail is deemed not to have collected an early ballot if the official, worker or other person is engaged in official duties.
I. Subsection H of this section does not apply to:
1. An election held by a special taxing district formed pursuant to title 48 for the purpose of protecting or providing services to agricultural lands or crops and that is authorized to conduct elections pursuant to title 48.
2. A family member, household member or caregiver of the voter. For the purposes of this paragraph:
(a) "Caregiver" means a person who provides medical or health care assistance to the voter in a residence, ursing care institution, hospice facility, assisted living center, assisted living facility, assisted living home, residential care institution, adult day health care facility or adult foster care home.
(b) "Collects" means to gain possession or control of an early ballot.
(c) "Family member" means a person who is related to the voter by blood, marriage, adoption or legal guardianship.
(d) "Household member" means a person who resides at the same residence as the voter.

Ariz. Rev. Stat. § 16-1005(H)-(I).

         This amendment to section 16-1005 makes it a felony for third parties to collect early ballots from voters unless the collector falls into one of several exceptions. See id. The prohibition does not apply to election officials acting as such, mail carriers acting as such, any family members, any persons who reside at the same residence as the voter, or caregivers, defined as any person who provides medical or health care assistance to voters in a range of adult residences and facilities. Id. § 16-1005(I)(2). H.B. 2023 does not provide that ballots collected in violation of this statute are disqualified or disregarded in the final election tally.

         B

         We next turn to the history of this case. In April 2016, DNC and other appellants sued the state of Arizona, challenging H.B. 2023 and Arizona's OOP policy.

         In separate motions, DNC sought preliminary injunctions against H.B. 2023 and the OOP policy, respectively. On September 23, 2016, the district court denied the motion to preliminarily enjoin enforcement of H.B. 2023. The district court subsequently denied DNC's motion for a preliminary injunction pending appeal. On October 11, 2016, the district court likewise declined to issue a preliminary injunction with respect to the OOP policy.

         DNC appealed both denials. A motions panel denied DNC's request to issue an injunction pending appeal of the district court's ruling on the challenge to H.B. 2023, but the two appeals were expedited and calendared for arguments before a three-judge panel on October 19 and 26, 2016, respectively. The expedited appeals proceeded at a rapid pace. On October 28, 2016, a divided panel affirmed the district court's denial of a preliminary injunction as to H.B. 2023. See Feldman v. Ariz. Sec'y of State's Office (Feldman I), 840 F.3d 1057 (9th Cir. 2016). The case was called en banc the same day, and on November 2, 2016-after a highly compressed five-day memo exchange and voting period-a majority of the active judges on this court voted to hear the appeal of the district court's denial of a preliminary injunction against H.B. 2023 en banc. Two days later, the en banc panel reconsidered the motions panel's earlier denial of an injunction pending appeal and granted DNC's motion for an injunction pending a resolution of the preliminary injunction appeal. See Feldman v. Ariz. Sec'y of State's Office (Feldman III), 843 F.3d 366 (9th Cir. 2016) (en banc). In so doing, the six-judge majority stated that "we grant the motion for a preliminary injunction pending appeal essentially for the reasons provided in the dissent in [Feldman I]." Id. at 367 (citing Feldman I, 840 F.3d at 1085-98). The Supreme Court summarily stayed this injunction pending appeal the next day. See Ariz. Sec'y of State's Office v. Feldman, 137 S.Ct. 446, 446 (2016) (mem.) ("The injunction issued by the United States Court of Appeals for the Ninth Circuit on November 4, 2016, in case No. 16-16698, is stayed pending final disposition of the appeal by that court.").[4]

         The appeal of the district court's denial of a preliminary injunction as to the OOP policy also proceeded apace. On November 2, 2016, a divided panel affirmed the district court. See Feldman v. Ariz. Sec'y of State's Office (Feldman II), 842 F.3d 613 (9th Cir. 2016). Two days later a majority of active judges voted to hear the OOP policy appeal en banc, and the en banc panel denied DNC's motion for an injunction pending resolution of the appeal. See Feldman v. Ariz. Sec'y of State's Office, 840 F.3d 1165 (9th Cir. 2016) (mem.) (per curiam) (en banc). As a result of these proceedings, both H.B. 2023 and the OOP policy remained in effect for the November 2016 election. The en banc panel did not reach the merits of DNC's appeal of the district court's denial of the preliminary injunctions against H.B. 2023 and the OOP policy.[5]

         DNC's challenge proceeded in district court. DNC argued that H.B. 2023 imposed undue burdens on the right to vote, in violation of the First and Fourteenth Amendments. DNC also claimed that H.B. 2023 violated § 2 of the VRA because it resulted in a discriminatory burden on voting rights prohibited by that section. Finally, DNC claimed that H.B. 2023 was enacted with discriminatory intent, in violation of the Fifteenth Amendment. DNC raised similar claims that the OOP policy imposed an unconstitutional burden on the right to vote and violated § 2 of the VRA, but did not claim that the OOP policy had a discriminatory purpose.

         The district court developed an extensive factual record on all five claims. Over the course of a ten-day bench trial in October 2017, the parties presented live testimony from 7 expert witnesses and 33 lay witnesses, in addition to the testimony of 11 witnesses by deposition. Reagan, 2018 WL 2191664, at *2-7. The district court also considered over 230 exhibits admitted into evidence.

         Seven months later, on May 10, 2018, the district court issued its amended 83-page findings of fact and conclusions of law, holding that DNC had failed to prove its constitutional and VRA claims. Reagan, 2018 WL 2191664.

         DNC timely appealed that same day. Fed. R. App. P. 4(a)(1)(B). It also moved for an injunction pending resolution of its appeal. The en banc panel voted not to exercise jurisdiction over the appeal, and the case was assigned to the original three-judge panel. We granted DNC's motion to expedite the appeal in light of the upcoming 2018 election.[6]

         II

         The district court exercised jurisdiction under 28 U.S.C. § 1331, and we have jurisdiction pursuant to 28 U.S.C. § 1291.

         Following a bench trial, we review de novo the district court's conclusions of law and review its findings of fact for clear error. Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1067 (9th Cir. 2008) (en banc). "The clear error standard is significantly deferential." Cohen v. U.S. Dist. Court, 586 F.3d 703, 708 (9th Cir. 2009). "[T]o be clearly erroneous, a decision must . . . strike [a court] as wrong with the force of a five-week old, unrefrigerated dead fish." Ocean Garden, Inc. v. Marktrade Co., Inc., 953 F.2d 500, 502 (9th Cir. 1991) (quoting Parts and Elec. Motors, Inc. v. Sterling Elec., Inc., 866 F.2d 228, 233 (7th Cir. 1988)). "This standard plainly does not entitle a reviewing court to reverse the finding of the trier of fact simply because it is convinced that it would have decided the case differently." Bessemer City, 470 U.S. at 573. "If the district court's account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently." Id. at 573-74. That is, "[w]here there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous." Id. at 574.

         III

         We first address DNC's challenges to H.B. 2023. DNC argues that (1) H.B. 2023 unduly burdens the right to vote, in violation of the First and Fourteenth Amendments; (2) H.B. 2023 disproportionately impacts minority voters in a manner that violates § 2 of the VRA; and (3) H.B. 2023 was enacted with discriminatory intent, in violation of the Fifteenth Amendment.[7] We address each claim in turn.

         A

         We begin with DNC's claim that H.B. 2023 violates Arizona voters' First and Fourteenth Amendment rights.

         1

         The Constitution vests the States with a "broad power to prescribe the 'Times, Places and Manner of holding Elections for Senators and Representatives.'" Clingman v. Beaver, 544 U.S. 581, 586 (2005) (quoting U.S. Const., art. 1, § 4, cl. 1). This power under the Elections Clause to regulate elections for federal offices "is matched by state control over the election process for state offices." Id. "Governments necessarily 'must play an active role in structuring elections, '" Pub. Integrity All., Inc. v. City of Tucson, 836 F.3d 1019, 1024 (9th Cir. 2016) (en banc) (quoting Burdick v. Takushi, 504 U.S. 428, 433 (1992)), and "as a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes," Storer v. Brown, 415 U.S. 724, 730 (1974). However, when a state exercises its power and discharges its obligation "[t]o achieve these necessary objectives," the resulting laws "inevitably affect[]-at least to some degree-the individual's right to vote and his right to associate with others for political ends." Anderson v. Celebrezze, 460 U.S. 780, 788 (1983).

         Because a state has the authority and obligation to manage the election process, "not all election laws impose constitutionally suspect burdens on that right." Short v. Brown, 893 F.3d 671, 676 (9th Cir. 2018). There is no "'litmus-paper test' that will separate valid from invalid restrictions." Anderson, 460 U.S. at 789 (quoting Storer, 415 U.S. at 730). Rather, "a more flexible standard applies." Burdick, 504 U.S. at 434. "A court considering a challenge to a state election law must weigh [1] 'the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate' against [2] 'the precise interests put forward by the State as justifications for the burden imposed by its rule,' taking into consideration [3] 'the extent to which those interests make it necessary to burden the plaintiff's rights.'" Id. (quoting Anderson, 460 U.S. at 789). This framework is generally referred to as the Anderson/Burdick balancing test.

         The first prong of this test, the magnitude of the burden imposed on voters by the election law, "is a factual question on which the plaintiff bears the burden of proof." Democratic Party of Haw. v. Nago, 833 F.3d 1119, 1122-24 (9th Cir. 2016) (citing Cal. Democratic Party v. Jones, 530 U.S. 567 (2000)); Gonzalez, 485 F.3d at 1050 (noting that whether an election law imposes a severe burden is an "intense[ly] factual inquiry"). In addition to considering the burden on the electorate as a whole, courts may also consider whether the law has a heavier impact on subgroups, Pub. Integrity All., 836 F.3d at 1025 n.2, but only if the plaintiff adduces evidence sufficient to show the size of the subgroup and quantify how the subgroup's special characteristics makes the election law more burdensome. Thus, Crawford v. Marion County Election Board acknowledged the argument that a voter photo identification (ID) requirement might impose a heavier burden on "homeless persons[, ] persons with a religious objection to being photographed," and those "who may have difficulty obtaining a birth certificate," but declined to undertake a subgroup analysis because the evidence was insufficient to show the size of such subgroups or to quantify the additional burden on those voters. 553 U.S. 181, 199, 200-03 (2008). Accordingly, it is an error to consider "the burden that the challenged provisions uniquely place" on a subgroup of voters in the absence of "quantifiable evidence from which an arbiter could gauge the frequency with which this narrow class of voters has been or will become disenfranchised as a result of [those provisions]." Ne. Ohio Coal. for the Homeless v. Husted, 837 F.3d 612, 631 (6th Cir. 2016).

         After determining the severity of the burden, the court must then identify the state's justifications for the law, and consider whether those interests make it "necessary to burden the plaintiff's rights." Anderson, 460 U.S. at 789. As we have emphasized, this inquiry does not necessarily mean that the state is "required to show that its system is narrowly tailored-that is, is the one best tailored to achieve its purposes." Dudum v. Arntz, 640 F.3d 1098, 1114 (9th Cir. 2011). Rather, this step involves a "balancing and means-end fit framework." Ariz. Green Party v. Reagan, 838 F.3d 983, 988 (9th Cir. 2016) (quoting Pub. Integrity All., 836 F.3d at 1024). The severity of the burden dictates the closeness of the fit required, and the more severe the burden, the "more compelling the state's interest must be." Id.

         By contrast, "when a state election law provision imposes only 'reasonable, nondiscriminatory restrictions' upon the First and Fourteenth Amendment rights of voters, 'the State's important regulatory interests are generally sufficient to justify' the restrictions." Burdick, 504 U.S. at 434 (quoting Anderson, 460 U.S. at 788); see also Ariz. Green Party, 838 F.3d at 988. In conducting this analysis, we are particularly deferential when "the challenge is to an electoral system, as opposed to a discrete election rule." Dudum, 640 F.3d at 1114.

         2

         Applying the Anderson/Burdick framework, the district court found that H.B. 2023 did not unconstitutionally burden the right to vote. First, the court found that H.B. 2023 posed only a minimal burden on Arizona voters as a whole. Twenty percent of Arizonans voted in person in the prior 2016 general election, and so were wholly unaffected. Reagan, 2018 WL 2191664, at *12. As to the 80 percent of Arizonans who voted by mail, the district court noted that there were no records of the number of voters who returned their ballots with the assistance of third parties. Id. After presenting various witnesses on this issue, DNC's counsel's "best estimate of the number of voters affected by H.B. 2023 based on the evidence at trial" was "thousands . . . but I don't have a precise number of that." Id. The court found that the evidence suggested that "possibly fewer than 10, 000 voters are impacted" out of over 2.3 million voters. Id. Therefore, the vast majority of Arizona voters were unaffected by the law. Id.

         Second, the district court found that H.B. 2023 imposed a minimal burden on even the small number of voters who had previously returned ballots with the assistance of third parties. Because "[e]arly voters may return their own ballots, either in person or by mail, or they may entrust a family member, household member, or caregiver to do the same," the burden imposed by H.B. 2023 "is the burden of traveling to a mail box, post office, early ballot drop box, any polling place or vote center (without waiting in line), or an authorized election official's office, either personally or with the assistance of a statutorily authorized proxy, during a 27-day early voting period." Id. Therefore, the court found that H.B. 2023 "does not increase the ordinary burdens traditionally associated with voting." Id.

         The district court then considered whether DNC had shown that H.B. 2023 had a more severe impact on particular subgroups of Arizona voters who have some common circumstance that would cause them to face special difficulties in voting without ballot collection services, such as "communities that lack easy access to outgoing mail services; the elderly, homebound, and disabled voters; socioeconomically disadvantaged voters who lack reliable transportation; [and] voters who have trouble finding time to return mail because they work multiple jobs or lack childcare services."[8] Id. at *14. The court determined that the plaintiffs had not made such a showing, because there was "insufficient evidence from which to measure the burdens on discrete subsets of voters" or to "quantify with any degree of certainty" how many voters had previously used ballot collection services. Id. Moreover, the district court could not determine the number of those voters who used those services merely "out of convenience or personal preference, as opposed to meaningful hardship," and therefore could not evaluate whether any of them would face a substantial burden in relying on other means of voting offered by Arizona. Id.

         Having identified these major gaps in DNC's evidence, the district court evaluated the evidence presented. According to the district court, "the evidence available largely shows that voters who have used ballot collection services in the past have done so out of convenience or personal preference." Id. The court discussed five voters who testified, Nellie Ruiz, Carolyn Glover, Daniel Magos, Carmen Arias, and Marva Gilbreath, explained their individual circumstances and noted that each had successfully returned their ballot except for Gilbreath, who simply forgot to timely mail her ballot.[9] Id. at *15. The district court also found that Arizona provides accommodations to subgroups of voters whose special characteristics might lead them to place a greater reliance on ballot collection. Id. at *14. Specifically, for voters with mobility issues, Arizona requires counties to provide special election boards, which, upon timely request, will deliver a ballot to an ill or disabled voter. Id. While finding that "relatively few voters are aware of this service," the district court pointed out that DNC could educate voters as to its availability. Id. Further, Arizona permits polling places to offer curbside voting, allowing voters to pull up to the curb by a polling place and have an election official assist them at their car. Id. Arizona law also requires employers to give their employees time off to vote in person if an employee is scheduled for an Election Day shift without at least a three-hour window to vote. Id. at *15. Finally, the district court noted the many exceptions in H.B. 2023, allowing voters to give their early ballots to family members, household members, caregivers, or election officials. Id.

         Because the court found that H.B. 2023 imposed only a minimal burden on Arizonans' First and Fourteenth Amendment rights, it held that defendants had to show only that H.B. 2023 served important regulatory interests. As summarized by the district court, Arizona advanced two regulatory interests: (1) "that H.B. 2023 is a prophylactic measure intended to prevent absentee voter fraud by creating a chain of custody for early ballots and minimizing the opportunities for ballot tampering, loss, and destruction"; and (2) "that H.B. 2023 improves and maintains public confidence in election integrity." Id. at *18. The court found that these interests were important. Id. at *19.

         Turning to a means-end fit, the court found that given the de minimis nature of the burden imposed by H.B. 2023, it did not need to be "the most narrowly tailored provision," so long as it reasonably advanced the state's interests. Id. at *20. Finding that it did so, the court held that H.B. 2023 did not violate the First and Fourteenth Amendments. Id. at *18-20.

         3

         We conclude that the district court did not err in its Anderson/Burdick analysis. First, the district court's determination that H.B. 2023 imposes only a de minimis burden on Arizona voters was not clearly erroneous. See Crawford, 553 U.S. at 198 (holding that "the inconvenience" of the process of going to the state Bureau of Motor Vehicles to obtain an ID "does not qualify as a substantial burden on the right to vote, or even represent a significant increase over the usual burdens of voting"). DNC does not directly dispute this conclusion.

         Rather, DNC argues that H.B. 2023 imposes severe burdens on subgroups of voters unable to vote without the third-party ballot collection services prohibited by H.B. 2023. This argument fails. The district court did not clearly err in finding that there was "insufficient evidence from which to measure the burdens on discrete subsets of voters," Reagan, 2018 WL 2191664, at *14, which is a threshold requirement to conducting a subgroup analysis. See Crawford, 553 U.S. at 200-03. The record shows that DNC's witnesses could not specify how many voters would have been unable to vote without ballot collection services. For instance, a Maricopa County Democratic Party organizer, Leah Gillespie, testified that some voters who used ballot collection services told her that they had no other means of voting, but her only example was of a friend whose husband was supposed to deliver her ballot but forgot it at home.[10] Similarly, Arizona State Senator Martin Quezada stated that his campaign received ballot collection requests after H.B. 2023 took effect and had been unable to provide rides to the polling place or other assistance to all such voters. But he did not know "how many of those people had family members who could have turned in their ballot," and could only give his sense "that several of them lacked anybody" who could do so. Moreover, DNC failed "to produce a single voter to testify that H.B. 2023's limitations on who may collect an early mail ballot would make voting significantly more difficult for her." Only one voter (Marva Gilbreath) testified that she did not vote in the 2016 general election, because she "was in the process of moving," had no mailbox key due to "misunderstandings with the realtor and things like that," and "didn't know where the voting place was." This witness's highly idiosyncratic circumstances do not indicate that H.B. 2023 imposes a severe burden on an identifiable subgroup of voters. Rather, burdens "arising from life's vagaries are neither so serious nor so frequent as to raise any question about the constitutionality of [the challenged law]." Id. at 197.

         In sum, DNC's evidence falls far short of the necessary "quantifiable evidence from which an arbiter could gauge the frequency with which this narrow class of voters has been or will become disenfranchised as a result of [H.B. 2023]." Ne. Ohio Coal., 837 F.3d at 631; cf. Crawford, 553 U.S. at 201-02 (declining to conduct a subgroup analysis despite evidence of one indigent voter who could not (or would not) pay for a birth certificate and one homeless woman who was denied a photo ID card because she lacked an address.).

         The dissent disagrees, but its disagreement here-as with the district court's opinion generally-is based on throwing out the district court's factual findings, reweighing the evidence, and reaching its own factual conclusions. This approach is not only contrary to the most basic principles of appellate review, but is an approach that the Supreme Court has frequently warned us to avoid. See Bessemer City, 470 U.S. at 574-75 (holding that the rationale for deference to the trial court's finding of fact is based not only on "the superiority of the trial judge's position to make determinations of credibility," but also on the judge's expertise in determination of fact, and ensuring that "the trial on the merits should be 'the main event . . . rather than a tryout on the road'") (quoting Wainwright v. Sykes, 433 U.S. 72, 90 (1977)).

         Here, for instance, the dissent seeks to revisit the district court's conclusion that DNC failed to carry its burden of showing that H.B. 2023 imposed a heavy burden on Native Americans. Dissent at 121-22. Conducting its own factual evaluation, the dissent claims that H.B. 2023 imposes a heavy burden on Native Americans because a majority of them lack home mail service. Dissent at 121. The dissent then speculates that many Native Americans may have trouble getting to post offices, and may have different family relationships than are indicated in H.B. 2023. Dissent at 121-22. Of course, the dissent's determination that "it would have decided the case differently" does not make the district court's findings clearly erroneous. Bessemer City, 470 U.S. at 573. Indeed, even evidence that third-party ballot collection is more useful to Native Americans than to other voters does not compel the conclusion that H.B. 2023 imposes a heavy burden on Native Americans' ability to vote. Most tellingly, the dissent does not meaningfully address the district court's most notable factual finding: that not a single voter testified at trial that H.B. 2023's limitations would make voting significantly more difficult. Although the dissent insists that there was evidence to this effect, Dissent at 122, it cites only to the testimony of a third-party ballot collector who conceded that his organization had not attempted to determine whether the voters they served could have returned their ballots some other way. There is thus no basis for holding that the district court's findings were clearly erroneous, and the dissent errs in arguing otherwise.

         The dissent also faults the district court's decision not to conduct a subgroup analysis because it "could not determine a precise number of voters that had relied on ballot collection in the past or predict a likely number in the future." Dissent at 122. According to the dissent, this decision was based on a misunderstanding of Crawford, and therefore constitutes legal error. We disagree. The district court correctly relied on Crawford in concluding that "on the basis of the evidence in the record it [was] not possible to quantify either the magnitude of the burden on this narrow class of voters or the portion of the burden imposed on them that [was] fully justified." Reagan, 2018 WL 2191664, at *14 (quoting Crawford, 553 U.S. at 200). Accordingly, the court properly held that DNC did not carry its burden of showing the existence of a relevant subgroup.

         Nor did the district court clearly err in finding that any burden imposed by H.B. 2023 was further minimized by Arizona's many accommodations available for those subgroups of voters that DNC claims are burdened by H.B. 2023.[11] Reagan, 2018 WL 2191664, at *14. For instance, the district court reasonably found that the subgroup of voters who are "confined as the result of a continuing illness or physical disability," Ariz. Rev. Stat. § 16-549(C), could request ballots from special election boards, and the burden of doing so was minimal, see Short, 893 F.3d at 677 ("To the extent that having to register to receive a mailed ballot could be viewed as a burden, it is an extremely small one, and certainly not one that demands serious constitutional scrutiny."). The district court did not clearly err in finding that it was irrelevant whether voters were widely aware of this alternative, as nothing prevented DNC from informing voters of and facilitating this procedure. Reagan, 2018 WL 2191664, at *14.

         We conclude that the district court did not clearly err in finding that DNC had failed both to quantify the subgroups purportedly burdened by H.B. 2023 and to show that Arizona's alternatives did not ameliorate any burden on them. Accordingly, there was no clear error in the district court's finding that H.B. 2023 imposed only a minimal burden.

         4

         Next, DNC and the dissent contend that the district court clearly erred in finding that H.B. 2023 serves Arizona's important regulatory interests because Arizona did not adduce any direct evidence of voter fraud. We reject this argument.

         DNC does not dispute-nor could it-that Arizona's interest in "a prophylactic measure intended to prevent absentee voter fraud" and to maintain public confidence are facially important. Id. at *18; see Crawford, 553 U.S. at 196 ("There is no question about the legitimacy or importance of the State's interest in counting only the votes of eligible voters."); Purcell v. Gonzalez, 549 U.S. 1, 4 (2006) (explaining that "[c]onfidence in the integrity of our electoral processes is essential to the functioning of our participatory democracy" and noting "the State's compelling interest in preventing voter fraud").

         Further, a state "need not show specific local evidence of fraud in order to justify preventive measures," Voting for Am., Inc. v. Steen, 732 F.3d 382, 394 (5th Cir. 2013), nor is such evidence required to uphold a law that imposes minimal burdens under the Anderson/Burdick framework, see Munro v. Socialist Workers Party, 479 U.S. 189, 195 (1986) (explaining that legislatures are "permitted to respond to potential deficiencies in the electoral process with foresight rather than reactively"). For example, in Crawford, the challenged law addressed only in-person voter fraud, and "[t]he record contain[ed] no evidence of any such fraud actually occurring in Indiana at any time in its history." 553 U.S. at 194. Yet the controlling opinion concluded that the law served Indiana's interests in preventing fraud, citing evidence of in-person and absentee voter fraud in other jurisdictions and in historical examples. Id. at 195-96 & nn.11-13. Accordingly, H.B. 2023 serves Arizona's important interest in preventing voter fraud even without direct evidence of ballot collection voter fraud in Arizona.[12]

         The dissent proposes several meritless distinctions between H.B. 2023 and the voter I.D. law in Crawford. First, the dissent argues that unlike H.B. 2023, Crawford's voter I.D. law was "tied to 'the state's interest in counting only the votes of eligible voters.'" Dissent at 124 (quoting Crawford, 553 U.S. at 196). But H.B. 2023's regulation of third-party ballot collectors is likewise tied to the state's interest in ensuring the integrity of the vote. As explained by the district court, Arizona could reasonably conclude that H.B. 2023 reduced "opportunities for early ballots to be lost or destroyed" by limiting the possession of early ballots to "presumptively trustworthy proxies," and also lessened the potential for pressure or intimidation of voters, and other forms of fraud and abuse. Reagan, 2018 WL 2191664, at *20; see infra at 32-33. Second the dissent argues that Crawford is distinguishable because the legislature in that case was motivated in-part by "legitimate concerns," while here the Arizona legislature was "motivated by discriminatory intent," or by solely partisan interests. Dissent at 124. Again, we reject the dissent's factual findings because the district court found that the legislature was not motivated by discriminatory intent and only partially motivated by partisan considerations, and these findings are not clearly erroneous. Moreover, a legislature may act on partisan considerations without violating the constitution. See infra at 53-54.

         Similarly, a court can reasonably conclude that a challenged law serves the state's interest in maintaining "public confidence in the integrity of the electoral process," even in the absence of any evidence that the public's confidence had been undermined. Crawford, 553 U.S. at 197. As several other circuits have recognized, it is "practically self-evidently true" that implementing a measure designed to prevent voter fraud would instill public confidence. Ohio Democratic Party v. Husted, 834 F.3d 620, 633 (6th Cir. 2016) (citing Crawford, 553 U.S. at 197); see Frank v. Walker, 768 F.3d 744, 750 (7th Cir. 2014) (noting that Crawford took "as almost self-evidently true" the relationship between a measure taken to prevent voter fraud and promoting voter confidence). The district court did not clearly err in finding that H.B. 2023 also serves this important state interest.

         5

         DNC next argues that Arizona could have used less burdensome means to pursue its regulatory interests and H.B. 2023 could have been designed more effectively. This argument also fails. Burdick expressly declined to require that restrictions imposing minimal burdens on voters' rights be narrowly tailored. See 504 U.S. at 433. Consistent with Burdick, we upheld an election restriction that furthered the interest of "ensuring local representation by and geographic diversity among elected officials" even though less-restrictive means could have achieved the same purposes. Pub. Integrity All., 836 F.3d at 1028. Similarly, in Arizona Green Party, we rejected the argument that the state must adopt a system of voting deadlines "that is the most efficient possible," in light of the "de minimis burden" imposed by the existing deadlines. 838 F.3d at 992 (citation omitted).

         Here, the district court found that H.B. 2023 imposed a minimal burden, and that it was a reasonable means for advancing the state's interests. It concluded that "[b]y limiting who may possess another's early ballot, H.B. 2023 reasonably reduces opportunities for early ballots to be lost or destroyed." Reagan, 2018 WL 2191664, at *20. The district court also observed that H.B. 2023 "closely follows," id., the recommendation of a bipartisan national commission on election reform to "reduce the risks of fraud and abuse in absentee voting by prohibiting 'third-party' organizations, candidates, and political party activists from handling absentee ballots," id. (quoting Building Confidence in U.S. Elections § 5.2 (Sept. 2005)).[13] These findings were sufficient to justify the minimal burden imposed by H.B. 2023. DNC's reliance on Common Cause Indiana v. Individual Members of the Indiana Election, 800 F.3d 913, 928 (7th Cir. 2015) as requiring a closer means-ends fit is misplaced. As the Seventh Circuit concluded, the election law in that case imposed a severe burden on the right to vote, and therefore it was appropriate to apply strict scrutiny. Id. at 927.

         We therefore affirm the district court's conclusion that DNC did not succeed on its Anderson/Burdick claim as to H.B. 2023.

         B

         We next consider DNC's claim that H.B. 2023 violates § 2 of the VRA. We begin by providing some necessary legal background.

         1

         "Inspired to action by the civil rights movement," Congress enacted the Voting Rights Act of 1965 to improve enforcement of the Fifteenth Amendment.[14] Shelby County v. Holder, 570 U.S. 529, 536 (2013). Section 2 of the Act forbade all states from enacting any "standard, practice, or procedure . . . imposed or applied . . . to deny or abridge the right of any citizen of the United States to vote on account of race or color." Id. (quoting Voting Rights Act of 1965, § 2, 79 Stat. 437). Section 5 of the Act prevented states from making certain changes in voting procedures unless the states obtained "preclearance" for those changes, meaning they were approved by either the Attorney General or a court of three judges. Id. at 537.

         "At the time of the passage of the Voting Rights Act of 1965, § 2, unlike other provisions of the Act, did not provoke significant debate in Congress because it was viewed largely as a restatement of the Fifteenth Amendment." Chisom, 501 U.S. at 392. In 1980, black residents of Mobile, Alabama challenged the city's at-large method of electing its commissioners on the ground that it unfairly diluted their voting strength. City of Mobile v. Bolden, 446 U.S. 55, 58 (1980). A plurality of the Supreme Court held that the electoral system did not violate § 2 of the VRA because there was no showing of "purposefully discriminatory denial or abridgment by government of the freedom to vote 'on account of race, color or previous conditions of servitude.'" Id. at 65.

         In response to Bolden, "Congress substantially revised § 2 to make clear that a violation could be proved by showing discriminatory effect alone." Thornburg v. Gingles, 478 U.S. 30, 35 (1986). In order to show actionable discriminatory effect, Congress enacted the "results test," applied by the Supreme Court in White v. Regester, 412 U.S. 755 (1973), see Gingles, 478 U.S. at 35, namely "whether the political processes are equally open to minority voters." S. Rep. No. 97-417, at 2 (1982), as reprinted in 1982 U.S.C.C.A.N. 177, 205.

         As amended, § 2 of the VRA provides:

§ 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. . . .

52 U.S.C. § 10301.

         Thus, § 2(a) prohibits a state or political subdivision from adopting a practice that "results in a denial or abridgement" of any U.S. citizen's right to vote on account of race, color, or membership in a language minority group, "as provided in subsection (b)." Id. § 10301(a). Subsection (b), in turn, provides that a plaintiff can establish a violation of § 2(a) if "based on the totality of circumstances," the members of a protected class identified in § 2(a) "have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." Id. § 10301(b).

         Thornburg v. Gingles further clarified that in analyzing whether a state practice violates § 2, a court must engage in a two-step process. First, the court must ask the key question set forth in § 2(b), whether "as a result of the challenged practice or structure plaintiffs do not have an equal opportunity to participate in the political processes and to elect candidates of their choice." 478 U.S. at 44 (quoting S. Rep. No. 97-417, at 28). Second, a court must assess the impact of the practice on such electoral opportunities in light of the factors set forth in the Senate Report, which accompanied the 1982 amendments and "elaborates on the nature of § 2 violations and on the proof required to establish these violations." Id. at 43-44.[15]

         In the wake of Gingles, some lower courts interpreted the key question set forth in § 2(b) (whether as a result of the challenged practice plaintiffs do not have an equal opportunity to participate in the political process and to elect candidates of their choice) as "provid[ing] two distinct types of protection for minority voters." Chisom, 501 U.S. at 396 (citing League of United Latin Am. Citizens Council No. 4434 v. Clements, 914 F.2d 620, 625 (5th Cir. 1990) (en banc)). These courts held that a "vote denial" claim, meaning a claim that a particular state election practice denied or abridged a minority group's right to vote, turned on whether members of that protected class had "less opportunity . . . to participate in the political process." By contrast, a "vote dilution" claim, meaning a claim that a state election practice diluted the effectiveness of a minority group's votes, turned on whether those members had "less opportunity . . . to elect representatives of their choice." Id. at 388, 395-96 (citing Clements, 914 F.2d at 625).

         The Supreme Court flatly rejected this interpretation. In Chisom, the Supreme Court explained that § 2(b) "does not create two separate and distinct rights." Id. at 397. The Court reasoned that if members of a protected class established that a challenged practice abridged their opportunity to participate in the political process, it would be relatively easy to show they were also unable to elect representatives of their choice, because "[a]ny abridgment of the opportunity of members of a protected class to participate in the political process inevitably impairs their ability to influence the outcome of an election." Id. By contrast, evidence that members of a protected class are unable to elect representatives of their choice does not necessarily prove they had less opportunity to participate in the political process. Id. Accordingly, the Court concluded that the two-pronged results test required by the 1982 amendment "is applicable to all claims arising under § 2," and "all such claims must allege an abridgment of the opportunity to participate in the political process and to elect representatives of one's choice." Id. at 398; see also Ortiz v. City of Phila. Office of City Comm'rs Voter Registration Div., 28 F.3d 306, 314 (3d Cir. 1994) ("Section 2 plaintiffs must demonstrate that they had less opportunity both (1) to participate in the political process, and (2) to elect representatives of their choice." (emphasis added) (citing Chisom, 501 U.S. at 397)).

         In reaching this conclusion, the Chisom majority rejected Justice Scalia's argument in dissent that requiring a plaintiff to prove both less opportunity to participate and less opportunity to elect representatives would prevent small numbers of voters from bringing a § 2 claim. According to Justice Scalia, the Court should have read "and" in § 2(b) to mean "or," so that if "a county permitted voter registration for only three hours one day a week, and that made it more difficult for blacks to register than whites, blacks would have less opportunity 'to participate in the political process' than whites, and § 2 would therefore be violated-even if the number of potential black voters was so small that they would on no hypothesis be able to elect their own candidate." Chisom, 501 U.S. at 408 (Scalia, J., dissenting). The majority rejected this argument, however, stating that it had "no authority to divide a unitary claim created by Congress." Id. at 398.[16]

         In light of Chisom, plaintiffs cannot establish a § 2 violation without showing that an electoral practice actually gives minorities less opportunity to elect representatives of their choice. This requires plaintiffs to show that the state election practice has some material effect on elections and their outcomes. As Gingles explained, "[i]t is obvious that unless minority group members experience substantial difficulty electing representatives of their choice, they cannot prove that a challenged electoral mechanism impairs their ability 'to elect.'" 478 U.S. at 48 n.15 (quoting 52 U.S.C. § 10301(b)). It is "the usual predictability of the majority's success" which distinguishes a structural problem "from the mere loss of an occasional election." Id. at 51. If an election practice would generally "not impede the ability of minority voters to elect representatives of their choice" there is no § 2 violation; rather a "bloc voting majority must usually be able to defeat candidates supported by a politically cohesive, geographically insular minority group." Id. at 48-49.

         In a § 2 challenge, a court's focus must be on the question whether minorities have less opportunity to elect representatives of their choice; therefore, evidence that a particular election practice falls more heavily on minority than non-minority voters, or that electoral outcomes are not proportionate to the numbers of minorities in the population, [17]is not sufficient by itself to establish a § 2 violation. As we have previously explained, "a bare statistical showing of disproportionate impact on a racial minority does not satisfy the § 2 'results' inquiry." Salt River, 109 F.3d at 595. Rather, "plaintiffs must show a causal connection between the challenged voting practice and [a] prohibited discriminatory result," i.e., less opportunity to participate in the political process and elect representatives. Id. (quoting Ortiz, 28 F.3d at 312). Because "[n]o state has exactly equal registration rates, exactly equal turnout rates, and so on, at every stage of its voting system," Frank, 768 F.3d at 754, were it enough to merely point to "some relevant statistical disparity" implicated by the challenged law, Salt River, 109 F.3d at 595, then § 2 would "dismantle every state's voting apparatus," Frank, 768 F.3d at 754.[18]

         If a challenged election practice is not burdensome or the state offers easily accessible alternative means of voting, a court can reasonably conclude that the law does not impair any particular group's opportunity to "influence the outcome of an election," Chisom, 501 U.S. at 397 n.24, even if the practice has a disproportionate impact on minority voters. For instance, in Lee v. Virginia State Board of Elections, plaintiffs argued that Virginia's photo ID law violated § 2 because more minorities than non-minorities lacked the necessary IDs, and "the process of obtaining photo IDs requires those voters to spend time traveling to and from a registrar's office." 843 F.3d 592, 600 (4th Cir. 2016). The Fourth Circuit rejected this argument. Observing that the state provided the option for voters without ID to cast a provisional ballot and obtain a free ID to verify their identity, the Fourth Circuit reasoned that "every registered voter in Virginia has the full ability to vote when election day arrives," and therefore the election practice "does not diminish the right of any member of the protected class to have an equal opportunity to participate in the political process." Id.

         In sum, in considering a § 2 claim, a court must consider whether the challenged standard, practice, or procedure gives members of a protected class less opportunity than others both "to participate in the political process and to elect representatives of their choice." Chisom, 501 U.S. at 397 (quoting 52 U.S.C. § 10301(b)). The plaintiff must show a causal connection between the challenged voting practice and the lessened opportunity of the protected class to participate and elect representatives; it is not enough that the burden of the challenged practice falls more heavily on minority voters. See Salt River, 109 F.3d at 595. Rather, the challenged practice must "influence the outcome of an election," Chisom, 501 U.S. at 397 n.24, and create some "substantial difficulty" for a protected class to elect representatives of its choice, not just the "mere loss of an occasional election." Gingles, 478 U.S. at 48 n.15, 51. If this sort of discriminatory result is found, then the practice must be considered in light of the Senate Factors, which are "particularly" pertinent to vote dilution claims, but "will often be pertinent" to other § 2 claims as well. Id. at 44-45.[19]

         2

         We now turn to the district court's determination here. We review the district court's legal determinations de novo, Gonzalez v. Arizona, 677 F.3d 383, 406 (9th Cir. 2012), but defer to "the district court's superior fact-finding capabilities," and review its factual findings for clear error, Salt River, 109 F.3d at 591.

         In analyzing the first step of a § 2 claim, the district court first found that DNC had provided no quantitative or statistical evidence showing how many people would be affected by H.B. 2023 and their minority status, noting that it was "aware of no vote denial case in which a § 2 violation has been found without quantitative evidence measuring the alleged disparate impact of a challenged law on minority voters." Reagan, 2018 WL 2191664, at *30. Despite the lack of any statistical evidence establishing a disproportionate impact of H.B. 2023 on minorities, the court stated that it would not rule against DNC on this ground. Id. at *31. Instead, it considered DNC's circumstantial and anecdotal evidence, and tentatively concluded that "prior to H.B. 2023's enactment minorities generically were more likely than non-minorities to return their early ballots with the assistance of third parties," emphasizing the caveat that it could not "speak in more specific or precise terms than 'more' or 'less.'" Id. at *33.

         Having inferred, based on DNC's circumstantial and anecdotal evidence, that H.B. 2023 likely impacted more minority voters than non-minority voters, the district court nevertheless concluded that DNC's evidence did not establish that H.B. 2023 gave members of a protected class less opportunity than other members of the electorate both to participate in the political process and to elect representatives of their choice. Id. at *32-34. The district court provided two reasons. First, the court reasoned that the evidence presented indicated that only "a relatively small number of voters" used ballot collection services at all. Id. at *33. By logical extension, that meant that only a small number of minorities used ballot collection services to vote, and the vast majority of minority voters "vote without the assistance of third-parties who would not fall within H.B. 2023's exceptions." Id. Because only a small number of minority voters were affected to any degree by H.B. 2023, the court found "it is unlikely that H.B. 2023's limitations on who may collect an early ballot cause a meaningful inequality in the electoral opportunities of minorities as compared to non-minorities." Id.

         Second, the court reasoned that even for the small number of minority voters who were affected by H.B. 2023 (i.e., who would use third-party ballot collectors no longer permitted by H.B. 2023 if they could), the evidence did not show that H.B. 2023 gave minorities less opportunity than other members of the electorate to participate in the political process and elect representatives. Id. at *34. While H.B. 2023 might make it "slightly more difficult or inconvenient for a small, yet unquantified subset of voters to return their early ballots," the court found that there was no evidence that H.B. 2023 "would make it significantly more difficult to vote," particularly given that no individual voter had testified that H.B. 2023 had this impact. Id. Therefore, the district court found that DNC had not carried its burden at the first step of the § 2 analysis. Id.

         Although the district court did not need to reach the second step, it nonetheless reviewed the relevant Senate Factors in order to develop the record and concluded that DNC had likewise failed to carry its burden at step two. Id. at *36-40.[20]

         3

         The district court's conclusion that the burden on a protected class of voters is so minimal that it would not give them less opportunity to elect representatives of their choice is not clearly erroneous. DNC produced anecdotal testimony that various sources collected between fifty and a few thousand ballots but DNC's counsel could not articulate an estimate more precise than that "thousands" of people used this opportunity. Id. at *12. Accordingly, the district court did not clearly err in estimating that fewer than 10, 000 voters used ballot collection services in each election. Moreover, the district court even considered a more generous, although "unjustified," number of 100, 000 voters, but nonetheless found that this was "relatively small" in relation to the 1.4 million early mail ballots and 2.3 million total voters. Id. The district court's view was, at minimum, a permissible view of the evidence. See Bessemer City, 470 U.S. at 573. Given these small numbers, the district court did not clearly err in concluding that the unavailability of third party ballot collection would have minimal effect on the opportunity of minority voters to elect representatives of their choice.

         Further, as explained in the Anderson/Burdick analysis, the evidence available indicated that the burden on even those few minority voters who used third-party ballot collection was minimal, because those voters had "done so out of convenience or personal preference, or because of circumstances that Arizona law adequately accommodates in other ways," rather than from necessity. Reagan, 2018 WL 2191664, at *14. As the district court pointed out, not a single voter testified at trial that H.B. 2023 made it significantly more difficult to vote, despite the fact that H.B. 2023 was in place for two 2016 elections. Id. at *34.[21]

         In challenging the district court's conclusion, DNC and the dissent argue that under § 2, the total number of votes affected is not the relevant inquiry; the proper test is whether any minority votes are burdened. This argument is meritless. As we have explained, a "bare statistical showing" that an election practice "has a disproportionate impact on a racial minority does not satisfy the § 2 'results' inquiry." Salt River, 109 F.3d at 595. Rather, the test under § 2 is whether the "members [of a class of protected citizens] have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." 52 U.S.C. § 10301(b) (emphasis added).[22]To determine whether a challenged law will result in members of a class having less opportunity to elect representatives of their choice, a court must necessarily consider the severity and breadth of the law's impacts on the protected class.

         Accordingly, we affirm the district court's ruling that DNC failed to establish that H.B. 2023 results in less opportunity for minority voters to participate in the political process and to elect representatives of their ...


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