The Democratic National Committee; DSCC, AKA Democratic Senatorial Campaign Committee; The Arizona Democratic Party, Plaintiffs-Appellants,
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.
and Submitted July 20, 2018 San Francisco, California
from the United States District Court for the District D.C.
No. 2:16-cv-01065-DLR of Arizona Douglas L. Rayes, District
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
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.
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.
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
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.
Democratic National Committee (DNC) and other
appellants sued the state of Arizona,  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).
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).
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.
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.
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.
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.
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).
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.)
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
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). 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).
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).
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)).
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
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
(d) "Household member" means a person who resides
at the same residence as the voter.
Ariz. Rev. Stat. § 16-1005(H)-(I).
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.
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.
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.
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.").
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
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.
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.
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.
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
district court exercised jurisdiction under 28 U.S.C. §
1331, and we have jurisdiction pursuant to 28 U.S.C. §
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.
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. We address each claim in turn.
begin with DNC's claim that H.B. 2023 violates Arizona
voters' First and Fourteenth Amendment rights.
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,
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  '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
 'the precise interests put forward by the State as
justifications for the burden imposed by its rule,'
taking into consideration  '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.
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).
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.
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.
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.
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.
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." 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.
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. 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.
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
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.
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.
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. 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.
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.).
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)).
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.
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.
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.
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.
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
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.
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
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.
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.
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
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).
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)). 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
therefore affirm the district court's conclusion that DNC
did not succeed on its Anderson/Burdick claim as to
consider DNC's claim that H.B. 2023 violates § 2 of
the VRA. We begin by providing some necessary legal
to action by the civil rights movement," Congress
enacted the Voting Rights Act of 1965 to improve enforcement
of the Fifteenth Amendment. 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.
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.
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.
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) 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.
§ 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.
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.
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).
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)).
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
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.
§ 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,
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
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 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.
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
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.
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
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.
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
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.
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.
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).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.
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 ...