Recent Cases

RECENT CASES ELECTION LAW — VOTING RIGHTS ACT — NINTH CIRCUIT HOLDS TWO ARIZONA VOTING LAWS ARE UNLAWFUL UNDER SECTION 2 OF THE VOTING RIGHTS ACT. — Democratic National Committee v. Hobbs, 948 F. 3d 989 (9th Cir.) (en banc), cert. granted sub nom. Brnovich v. Democratic National Committee, No. 19-1257, 2020 WL 5847130 (U.S. 2020). Section 2 of the Voting Rights Act of 19651 (VRA) provides that no state practice “shall be imposed . 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.”2 In the years post–Shelby County v. Holder,3 section 2 is perhaps the most powerful instrument for challenging racially discriminatory voting laws.4 The heightened interest in bringing vote denial claims under section 25 has forced courts to come up with a managea- ble standard for evaluating them. But while some courts have mostly set- tled on a test, it lacks the Supreme Court’s imprimatur and many argue it’s far too broad to stand.6 Recently, in Democratic National Committee v. Hobbs,7 the Ninth Circuit, sitting en banc, enjoined two Arizona laws on the grounds that they violated section 2 of the VRA.8 In its opinion, the court implicitly rejected the Department of Justice’s (DOJ) proposed framework for vote denial claims. This framework would require plaintiffs to show the challenged law produced both a disparate impact and a substantial or material burden on voting. But a material burden standard improperly blends the constitutional standard for racially discriminatory election laws with the statutory requirements of the VRA. Though alternatives to the current standard are worth considering given the un- certainty around the doctrine, the DOJ’s proposed standard would hobble efforts to challenge a host of laws that the VRA was enacted to combat. Shortly before the 2016 general election, the Democratic National Committee (DNC), along with the Democratic Senatorial Campaign Committee (DSCC) and the Arizona Democratic Party (ADP), filed suit in the United States District Court for the District of Arizona asking for ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 1 Pub. L. No. 89-110, 79 Stat. 437 (codified as amended in scattered sections of 52 U.S.C.). 2 52 U.S.C. § 10301(a). 3 570 U.S. 529 (2013). 4 See Daniel P. Tokaji, Applying Section 2 to the New Vote Denial, 50 HARV. C.R.-C.L. L. REV. 439, 440 (2015). 5 See id. at 448. 6 See, e.g., Nicholas O. Stephanopoulos, Disparate Impact, Unified Law, 128 YALE L.J. 1566, 1592–93 (2019). 7 948 F.3d 989 (9th Cir.) (en banc), cert. granted sub nom. Brnovich v. Democratic Nat’l Comm., No. 19-1257, 2020 WL 5847130 (U.S. 2020). 8 Id. at 1046. 862 2020] RECENT CASES 863 an injunction preventing the State from enforcing two separate Arizona voting laws: the State’s out-of-precinct (OOP) policy and Arizona House Bill 2023 (H.B. 2023).9 The OOP policy required counties to cancel the votes (including those for statewide and federal office) on a provisional ballot cast outside of the voter’s assigned precinct,10 while H.B. 2023 made it a felony for a third party to collect a voter’s mail ballot.11 The plaintiffs claimed both laws had a disproportionate effect on minority voters in contravention of section 2 of the VRA.12 The plaintiffs also argued that H.B. 2023 violated the Fifteenth Amendment.13 For vote denial claims, plaintiffs can show a violation of section 2 in one of two ways. The first is to show the challenged law was enacted with the intent to discriminate.14 This test — called the “intent test” — is coex- tensive with the guarantees of the Fifteenth Amendment.15 The second is to show that the law produced a discriminatory result.16 Most courts, including the Ninth Circuit, have applied the aptly named “results test,”17 the first step of which asks whether there is a “disparate burden on members of the protected class.”18 If so, the second step asks “whether, under the ‘totality of the circumstances,’ there is a relationship between the challenged ‘standard, practice, or procedure,’ on the one hand, and ‘social and historical conditions’ on the other.”19 The second step is eval- uated under the so-called “Senate factors,” a list of nine considerations in the Senate Report accompanying the 1982 version of the VRA.20 ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 9 Id. at 998; Democratic Nat’l Comm. v. Reagan, 329 F. Supp. 3d 824, 831–32 (D. Ariz. 2018). 10 See ARIZ. REV. STAT. ANN. §§ 16-122, -135, -584 (2020), invalidated by Hobbs, 948 F.3d 989. 11 See H.B. 2023, 52d Leg., 2d Reg. Sess. (Ariz. 2016) (codified at ARIZ. REV. STAT. ANN. § 16- 1005(H), invalidated by Hobbs, 948 F.3d 989). The law made special exceptions for family members, household members, and caregivers, who were permitted to collect a voter’s ballot. ARIZ. REV. STAT. ANN. § 16-1005(I), invalidated by Hobbs, 948 F.3d 989. 12 Hobbs, 948 F.3d at 998. 13 Id. 14 See id. at 1011. 15 See id. 16 See id. 17 See, e.g., id.; Lee v. Va. State Bd. of Elections, 843 F.3d 592, 599–600 (4th Cir. 2016); Veasey v. Abbott, 830 F. 3d 216, 244 (5th Cir. 2016) (en banc); Frank v. Walker, 768 F. 3d 744, 754–55 (7th Cir. 2014); Ohio State Conf. of the NAACP v. Husted, 768 F.3d 524, 553–54 (6th Cir. 2014); see also Dale E. Ho, Building an Umbrella in a Rainstorm: The New Vote Denial Litigation Since Shelby County, 127 YALE L.J.F. 799, 802–09 (2018). 18 Hobbs, 948 F.3d at 1012. 19 Id. 20 Id. at 1033; see Democratic Nat’l Comm. v. Reagan, 904 F.3d 686, 712 & n.15 (9th Cir. 2018) (“[T]he Senate [f]actors include the extent of any history of official discrimination, the use of election practices or structures that could enhance the opportunity for discrimination, the extent to which voting is racially polarized, and the extent to which minorities bear the effects of discrimination in education, employment and health.”), vacated and reh’g en banc granted, 911 F.3d 942 (9th Cir. 2019); see also Hobbs, 948 F.3d at 1012–13. 864 HARVARD LAW REVIEW [Vol. 134:862 Following a ten-day bench trial, the district court denied both of the VRA claims under the results test.21 With regard to the OOP policy, the district court found that the plaintiffs did not carry their burden under step one because they failed to show either that the policy caused a disproportionate number of minority voters to go to the wrong precinct or that the racial disparities led to “meaningful inequality” in the political process.22 The district court also found that the impact of H.B. 2023 was too trivial a burden to constitute a violation of section 2 under step one.23 The Ninth Circuit affirmed.24 Writing for the panel, Judge Ikuta held that the district court appropriately found that the plaintiffs did not meet their burden under the VRA.25 The panel, like the district court, found that both claims failed at step one and that there was not enough evidence to show that the Arizona legislators voting for the pas- sage of H.B. 2023 were motivated by racial animus.26 The plaintiffs filed a petition for rehearing en banc, which the Ninth Circuit granted.27 Sitting en banc, the Ninth Circuit reversed.28 Writing for the major- ity, Judge Fletcher enjoined both the OOP policy and H.B. 2023’s ban on ballot collection under section 2 of the VRA.29 The court first found that the OOP policy ran afoul of section 2’s results test. Under the first step of the test, the court accepted the expert report introduced at trial and concluded that the OOP policy produced a disparate burden on minority voters.30 Judge Fletcher noted that Arizona had a notably high rate of rejection for provisional ballots, and that many were rejected for having been cast out of precinct.31 The court gave three reasons for this high rate of rejection: “[F]requent changes in polling locations; confusing placement of polling locations; and high rates of residential mobility.”32 ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 21 Democratic Nat’l Comm. v. Reagan, 329 F. Supp. 3d 824, 832, 870–73, 883 (D. Ariz. 2018). The court found that both claims failed at step one of the results test. Id. at 871, 873. The plaintiffs claimed that the OOP policy and H.B. 2023 also violated the Fourteenth Amendment, but the district court rejected these claims, id. at 856, 862, and the en banc panel did not discuss them, Hobbs, 948 F. 3d at 999. 22 Reagan, 329 F. Supp. 3d at 873. The district court also found that the plaintiffs did not carry their burden in step two of the analysis under the VRA’s results test. Id. at 878. 23 Id. at 870–71. Under the step two analysis, the district court also noted that Arizona “has a constitutionally adequate justification for the law: to reduce opportunities for early ballot loss or destruction.” Id. at 878. 24 Reagan, 904 F.3d at 697. 25 Id. at 731–32. Judge Ikuta was joined by Judge Bea. Chief Judge Thomas dissented. 26 Id. at 712 n.15, 720–21. 27 See Democratic Nat’l Comm. v. Reagan, 911 F. 3d 942 (9th Cir. 2019).

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