CASE SUMMARY

In early 2016, several Arizona voters and organizations filed a federal lawsuit against the Arizona Secretary of State and other state election officials alleging that several of Arizona's election laws and regulations were racially discriminatory in violation of the federal Voting Rights Act and the U.S. Constitution. The plaintiffs claims ultimately centered around two provisions: (1) Arizona's out-of-precinct regulation providing that provisional ballots cast in person on Election day, but outside of that voter's designated precinct, not be counted, and (2) Arizona's then recently enacted ballot collection law, H.B. 2023, which made it a felony for anyone other than the voter to possess that voter's early mail ballot, unless the possessor fell into certain statutory exceptions. The plaintiffs claimed these rules imposed "onerous burdens" on Arizona citizens' right to vote that disproportionately impacted minority voters in the state such that it was more likely their votes would not be counted in violation of § 2 of the Voting Rights Act, the 1st Amendment, and the Equal Protection Clause of the 14th Amendment. Additionally, the plaintiffs alleged Arizona's ballot collection law was enacted with a discriminatory intent in violation of § 2 of the Voting Rights Act and the 15th Amendment of the U.S. Constitution. The plaintiffs sought a declaratory judgment that the challenged election practices were unlawful and a permanent injunction requiring the defendants to count out-of-precinct provisional ballots and barring them from enforcing the ballot collection law.

On May 8, 2018 the U.S. District Court in Arizona ruled in favor of the defendants on all claims, finding the plaintiffs had failed to show that the challenged election practices "severely and unjustifiably" burdened voting and associational rights, disparately impacted minority voters such that they had less opportunity to participate in the political process than non-minority voters, or that the state was motivated by a discriminatory intent when it enacted H.B. 2023. On May 9, the plaintiffs appealed the district court's ruling to the U.S. Court of Appeals for the Ninth Circuit.

On September 12, 2018 a Ninth Circuit three-judge panel affirmed the lower court's ruling, finding the district court did not err in their conclusions as to the motivations behind H.B. 2023 and the effects of both election practices on minority voters. However, on January 2, 2019 a majority of non-recused Ninth Circuit judges voted to rehear the case en banc and invalidated the decision of the three-judge panel. On January 27, 2020 the en banc court reversed the district court's decision and held both of Arizona's challenged election practices were unlawful. The court found the plaintiffs had sufficiently shown that Arizona's policy of wholly discarding, rather than counting or partially counting, out-of-precinct ballots, and H.B. 2023's criminalization of collecting another person's ballot, had a discriminatory impact on Arizona minority voters in violation of the "results test" under § 2 of the Voting Rights Act. Second, the court found H.B. 2023, based on the totality of circumstances, was enacted with a discriminatory intent in violation of the "intent test" under § 2 of the Voting Rights Act, and that it further violated the 15th Amendment of the U.S. Constitution. On April 27, 2020 the defendants appealed the Ninth Circuit's decision to the U.S. Supreme Court. Oral arguments were held on March 2, 2021.

On July 1, 2021 the U.S. Supreme Court reversed and remanded the 9th Circuit's ruling, finding that Arizona's out-of-precinct policy and ballot collection law did not violate § 2 of the Voting Rights Act because the minimal burdens imposed by these time, place and manner voting rules did not lead to Arizona's electoral system being less open to minority voters. Justice Alito, writing for the majority, explained many of the totality of circumstances factors used to analyze racial vote dilution claims under § 2 are “plainly inapplicable” to challenges to facially neutral time, place, and manner election rules, with their only purpose in this context being to establish past discrimination and whether those effects remain today. The court provided a list of relevant circumstances for analyzing claims like these, including: the size of the burden imposed by the rule beyond the “usual burdens of voting;” the historical and current usage of the challenged rule or practice by the state and its usage in other jurisdictions; the size of the racial or ethnic disparities in its impact; and the strength of the state’s interest for adopting the rule. Additionally, the majority stated that such rules must be assessed in the context of the state’s entire election system, including the availability of other voting methods. Finally, the majority explicitly rejected that disparate impact alone was sufficient to prove a violation of § 2 and the additional requirement that a state show the rule at issue was the least restrictive means to accomplish their policy objective.

CASE LIBRARY

U.S. District Court for the District of Arizona - No. 2:16-CV-01065 [formerly Feldman v. Arizona Secretary of State's Office]

U.S. Court of Appeals for the Ninth Circuit- No. 16-16698 [first interlocutory appeal]

U.S. Court of Appeals for the Ninth Circuit- No. 16-16865 [second interlocutory appeal]

U.S. Court of Appeals for the Ninth Circuit - No. 18-15845 [formerly DNC v. Hobbs]

U.S. Supreme Court - No. 19-1257 [consolidated with No. 19-1258]

Brnovich v. Democratic National Committee
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