FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


THE DEMOCRATIC NATIONAL                  No. 18-15845
COMMITTEE; DSCC, AKA
Democratic Senatorial Campaign             D.C. No.
Committee; THE ARIZONA                  2:16-cv-01065-
DEMOCRATIC PARTY,                            DLR
              Plaintiffs-Appellants,

                 v.                        OPINION

KATIE HOBBS, 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.


      Appeal from the United States District Court
               for the District of Arizona
      Douglas L. Rayes, District Judge, Presiding
2                         DNC V. HOBBS

        Argued and Submitted En Banc March 27, 2019
                  San Francisco, California

                      Filed January 27, 2020

Before: Sidney R. Thomas, Chief Judge, and Diarmuid F.
  O’Scannlain, William A. Fletcher, Marsha S. Berzon*,
 Johnnie B. Rawlinson, Richard R. Clifton, Jay S. Bybee,
Consuelo M. Callahan, Mary H. Murguia, Paul J. Watford,
           and John B. Owens, Circuit Judges.

                Opinion by Judge W. Fletcher;
                Concurrence by Judge Watford;
                Dissent by Judge O’Scannlain;
                   Dissent by Judge Bybee




    *
      Judge Berzon was drawn to replace Judge Graber. Judge Berzon has
read the briefs, reviewed the record, and watched the recording of oral
argument held on March 27, 2019.
                           DNC V. HOBBS                                  3

                            SUMMARY**


                             Civil Rights

    The en banc court reversed the district court’s judgment
following a bench trial in favor of defendants, the Arizona
Secretary of State and Attorney General in their official
capacities, in an action brought by the Democratic National
Committee and others challenging, first, Arizona’s policy of
wholly discarding, rather than counting or partially counting,
ballots cast in the wrong precinct; and, second, House Bill
2023, a 2016 statute criminalizing the collection and delivery
of another person’s ballot.

    Plaintiffs asserted that the out-of-precinct policy (OOP)
and House Bill (H.B.) 2023 violated Section 2 of the Voting
Rights Act of 1965 as amended because they adversely and
disparately affected Arizona’s American Indian, Hispanic,
and African American citizens. Plaintiffs also asserted that
H.B. 2023 violated Section 2 of the Voting Rights Act and
the Fifteenth Amendment to the United States Constitution
because it was enacted with discriminatory intent. Finally,
plaintiffs asserted that the OOP policy and H.B. 2023 violated
the First and Fourteenth Amendments because they unduly
burden minorities’ right to vote.

    The en banc court held that Arizona’s policy of wholly
discarding, rather than counting or partially counting, OOP
ballots, and H.B. 2023’s criminalization of the collection of
another person’s ballot, have a discriminatory impact on

    **
       This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4                      DNC V. HOBBS

American Indian, Hispanic, and African American voters in
Arizona, in violation of the “results test” of Section 2 of the
Voting Rights Act. Specifically, the en banc court
determined that plaintiffs had shown that Arizona’s OOP
policy and H.B. 2023 imposed a significant disparate burden
on its American Indian, Hispanic, and African American
citizens, resulting in the “denial or abridgement of the right
of its citizens to vote on account of race or color.” 52 U.S.C.
§ 10301(a). Second, plaintiffs had shown that, under the
“totality of circumstances,” the discriminatory burden
imposed by the OOP policy and H.B. 2023 was in part caused
by or linked to “social and historical conditions” that have or
currently produce “an inequality in the opportunities enjoyed
by [minority] and white voters to elect their preferred
representatives” and to participate in the political process.
Thornburg v. Gingles, 

, 47 (1986); 52 U.S.C.
§ 10301(b).

    The en banc court held that H.B. 2023’s criminalization
of the collection of another person’s ballot was enacted with
discriminatory intent, in violation of the “intent test” of
Section 2 of the Voting Rights Act and of the Fifteenth
Amendment. The en banc court held that the totality of the
circumstances—Arizona’s long history of race-based voting
discrimination; the Arizona legislature’s unsuccessful efforts
to enact less restrictive versions of the same law when
preclearance was a threat; the false, race-based claims of
ballot collection fraud used to convince Arizona legislators to
pass H.B. 2023; the substantial increase in American Indian
and Hispanic voting attributable to ballot collection that was
targeted by H.B. 2023; and the degree of racially polarized
voting in Arizona—cumulatively and unmistakably revealed
that racial discrimination was a motivating factor in enacting
H.B. 2023. The en banc court further held that Arizona had
                       DNC V. HOBBS                         5

not carried its burden of showing that H.B. 2023 would have
been enacted without the motivating factor of racial
discrimination. The panel declined to reach DNC’s First and
Fourteenth Amendment claims.

    Concurring, Judge Watford joined the court’s opinion to
the extent it invalidated Arizona’s out-of-precinct policy and
H.B. 2023 under the results test. Judge Watford did not join
the opinion’s discussion of the intent test.

    Dissenting, Judge O’Scannlain, joined by Judges Clifton,
Bybee and Callahan, stated that the majority drew factual
inferences that the evidence could not support and misread
precedent along the way. In so doing, the majority
impermissibly struck down Arizona’s duly enacted policies
designed to enforce its precinct-based election system and to
regulate third-party collection of early ballots.

    Dissenting, Judge Bybee, joined by Judges O’Scannlain,
Clifton and Callahan, wrote separately to state that in
considering the totality of the circumstances, which took into
account long-held, widely adopted measures, Arizona’s time,
place, and manner rules were well within our American
democratic-republican tradition.
6                     DNC V. HOBBS

                       COUNSEL

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

Andrew G. Pappas (argued), Joseph E. La Rue, Karen J.
Hartman-Tellez, and Kara M. Karlson, Assistant Attorneys
General; Dominic E. Draye, Solicitor General; Mark
Brnovich, Attorney General; 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.

John M. Gore (argued), Principal Deputy Assistant Attorney
General; Thomas E. Chandler and Erin H. Flynn, Attorneys;
Gregory B. Friel, Deputy Assistant Attorney General; Eric S.
Dreiband, Assistant Attorney General; Department of Justice,
CRD–Appellate Section, Washington, D.C.; for Amicus
Curiae United States.

Kathleen E. Brody, ACLU Foundation of Arizona, Phoenix,
Arizona; Dale Ho, American Civil Liberties Union
Foundation, New York, New York; Davin Rosborough and
Ceridwen Chery, American Civil Liberties Union Foundation,
Washington, D.C.; for Amici Curiae American Civil Liberties
Union & American Civil Liberties Union of Arizona.
                       DNC V. HOBBS                           7

                          OPINION

W. FLETCHER, Circuit Judge:

    The right to vote is the foundation of our democracy.
Chief Justice Warren wrote in his autobiography that the
precursor to one person, one vote, Baker v. Carr, 

(1962), was the most important case decided during his
tenure as Chief Justice—a tenure that included Brown v.
Board of Education, 

(1954). Earl Warren, The
Memoirs of Earl Warren 306 (1977). Chief Justice Warren
wrote in Reynolds v. Sims, 

, 555 (1964): “The
right to vote freely for the candidate of one’s choice is of the
essence of a democratic society, and any restrictions on that
right strike at the heart of representative government.”
Justice Black wrote in Wesberry v. Sanders, 

, 17
(1964): “No right is more precious in a free country than that
of having a voice in the election of those who make the laws
under which, as good citizens, we must live. Other rights,
even the most basic, are illusory if the right to vote is
undermined.”

    For over a century, Arizona has repeatedly targeted its
American Indian, Hispanic, and African American citizens,
limiting or eliminating their ability to vote and to participate
in the political process. In 2016, the Democratic National
Committee and other Plaintiffs-Appellants (collectively,
“DNC” or “Plaintiffs”) sued Arizona’s Secretary of State and
Attorney General in their official capacities (collectively,
“Arizona”) in federal district court.

    DNC challenged, first, Arizona’s policy of wholly
discarding, rather than counting or partially counting, ballots
cast in the wrong precinct (“out-of-precinct” or “OOP”
8                      DNC V. HOBBS

policy); and, second, House Bill 2023 (“H.B. 2023”), a 2016
statute criminalizing the collection and delivery of another
person’s ballot. DNC contends that the OOP policy and H.B.
2023 violate Section 2 of the Voting Rights Act of 1965 as
amended (“VRA”) because they adversely and disparately
affect Arizona’s American Indian, Hispanic, and African
American citizens. DNC also contends that H.B. 2023
violates Section 2 of the VRA and the Fifteenth Amendment
to the United States Constitution because it was enacted with
discriminatory intent. Finally, DNC contends that the OOP
policy and H.B. 2023 violate the First and Fourteenth
Amendments because they unduly burden minorities’ right to
vote.

    Following a ten-day bench trial, the district court found in
favor of Arizona on all claims. Democratic Nat’l Comm. v.
Reagan, 

(D. Ariz. 2018) (Reagan). DNC
appealed, and a divided three-judge panel of our court
affirmed. Democratic Nat’l Comm. v. Reagan, 

(9th Cir. 2018) (DNC). A majority of non-recused active
judges voted to rehear this case en banc, and we vacated the
decision of the three-judge panel. Democratic Nat’l Comm.
v. Reagan, 

(9th Cir. 2019).

    We review the district court’s conclusions of law de novo
and its findings of fact for clear error. Gonzalez v. Arizona,

, 406 (9th Cir. 2012) (en banc). We may
“correct errors of law, including those that may infect a so-
called mixed finding of law and fact, or a finding of fact that
is predicated on a misunderstanding of the governing rule of
law.” Thornburg v. Gingles, 

, 79 (1986) (internal
quotation marks omitted); see Smith v. Salt River Project
Agric. Improvement & Power Dist., 

, 591 (9th
Cir. 1997) (Salt River). We review for clear error the district
                       DNC V. HOBBS                           9

court’s overall finding of vote dilution or vote denial in
violation of the VRA. 

; Salt 

.

    Reviewing the full record, we conclude that the district
court clearly erred. We reverse the decision of the district
court. We hold that Arizona’s policy of wholly discarding,
rather than counting or partially counting, out-of-precinct
ballots, and H.B. 2023’s criminalization of the collection of
another person’s ballot, have a discriminatory impact on
American Indian, Hispanic, and African American voters in
Arizona, in violation of the “results test” of Section 2 of the
VRA. We hold, further, that H.B. 2023’s criminalization of
the collection of another person’s ballot was enacted with
discriminatory intent, in violation of the “intent test” of
Section 2 of the VRA and of the Fifteenth Amendment. We
do not reach DNC’s First and Fourteenth Amendment claims.

          I. Out-of-Precinct Policy and H.B. 2023

    DNC challenges (1) Arizona’s policy of wholly
discarding, rather than counting or partially counting, ballots
cast out-of-precinct (“OOP”), and (2) H.B. 2023, a statute
that, subject to certain exceptions, criminalizes the collection
of another person’s early ballot. See Ariz. Rev. Stat. §§ 16-
122, -135, -584; H.B. 2023, 52nd Leg., 2d Reg. Sess. (Ariz.
2016), codified as Ariz. Rev. Stat. § 16-1005(H), (I).

    Arizona offers two methods of voting: (1) in-person
voting at a precinct or vote center either on election day or
during an early-vote period, or (2) “early voting” whereby the
voter receives the ballot via mail and either mails back the
voted ballot or delivers the ballot to a designated drop-off
10                      DNC V. HOBBS

location. Arizona’s OOP policy affects in-person voting.
H.B. 2023 affects early voting.

     We describe in turn Arizona’s OOP policy and H.B. 2023.

                  A. Out-of-Precinct Policy

        1. Policy of Entirely Discarding OOP Ballots

    Arizona law permits each county to choose a vote-center
or a precinct-based system for in-person voting. 

. In counties using the vote-center
system, registered voters may vote at any polling location in
the county. 

using the precinct-based system,
registered voters may vote only at the designated polling
place in their precinct. Approximately 90 percent of
Arizona’s population lives in counties using the precinct-
based system.

    In precinct-based counties, if a voter arrives at a polling
place and does not appear on the voter rolls for that precinct,
that voter may cast a provisional ballot. Id.; Ariz. Rev. Stat.
§§ 16-122, -135, -584. After election day, county election
officials in close elections review all provisional ballots to
determine the voter’s identity and address. If, after reviewing
a provisional ballot, election officials determine that the voter
voted out of precinct, the county discards the OOP ballot in
its entirety. In some instances, all of the votes cast by the
OOP voter will have been cast for candidates and
propositions for which the voter was legally eligible to vote.
In other instances, most of the votes cast by the OOP voter
will have been cast properly, in the sense that the voter was
eligible to vote on those races, but one or more votes for local
candidates or propositions will have been cast improperly.
                       DNC V. HOBBS                          11

    In both instances, the county discards the OOP ballot in
its entirety. 

. That is, the
county discards not only the votes of an OOP voter for the
few local candidates and propositions for which the OOP
voter may have been ineligible to vote. The county also
discards the votes for races for which the OOP voter was
eligible to vote, including U.S. President, U.S. Senator, and
(almost always) Member of the U.S. House of
Representatives; all statewide officers, including Governor,
and statewide propositions; (usually) all countywide officers
and propositions; and (often) local candidates and
propositions.

              2. Comparison with Other States

    The district court found that Arizona “consistently is at or
near the top of the list of states that collect and reject the
largest number of provisional ballots each election.” 

(emphasis added). The district court’s finding
understates the matter. Arizona is consistently at the very top
of the list by a large margin.

    Dr. Jonathan Rodden, Professor of Political Science and
Senior Fellow at the Hoover Institution at Stanford
University, provided expert reports to the district court. The
court gave “great weight” to Dr. Rodden’s analysis of the
“rates and causes of OOP voting” in Arizona. 

Dr. Rodden reported: “Since 2012, Arizona has clearly
become the national leader in both provisional ballots cast
and especially in provisional ballots rejected among in-person
voters.” Jonathan Rodden, Expert Report (Rodden) at 25.

    Dr. Rodden reported that, from 2006 to 2010, between
9 to 13 percent of all in-person ballots cast in Arizona were
12                      DNC V. HOBBS

provisional ballots. 

In the 2012 general election,
more than 22 percent of all in-person ballots cast were
provisional ballots. 

County, Arizona’s most
populous county, close to one in three in-person ballots cast
in 2012 were provisional ballots. 

In the 2014
midterm election, over 18 percent of in-person ballots cast in
the State were provisional ballots. 

These numbers
place Arizona at the very top of the list of States in collection
of provisional ballots.

    Arizona also rejects a higher percentage of provisional
ballots than any other State. The district court found:

        In 2012 alone “[m]ore than one in every five
        [Arizona in-person] voters . . . was asked to
        cast a provisional ballot, and over 33,000 of
        these—more than 5 percent of all in-person
        ballots cast—were rejected. No other state
        rejected a larger share of its in-person ballots
        in 2012.”

(alterations in original)
(quoting Rodden at 24–25).

    One of the most frequent reasons for rejecting provisional
ballots in Arizona is that they are cast out-of-precinct. Id.;
see also Rodden at 26–29. From 2008 to 2016, Arizona
discarded a total of 38,335 OOP ballots cast by registered
voters—29,834 ballots during presidential general elections,
and 8,501 ballots during midterm general elections. 

.

    As the figure below shows, Arizona is an extreme outlier
in rejecting OOP ballots:
                       DNC V. HOBBS                        13




Rodden at 26. The percentage of rejected OOP votes in
Arizona is eleven times that in Washington, the State with the
second-highest percentage.

    The percentage of OOP ballots in Arizona, compared to
all ballots cast, has declined in recent years. But the
percentage of in-person ballots cast, compared to all ballots
cast, has declined even more. See Jonathan Rodden, Rebuttal
Report (Rodden Rebuttal) at 10. As a result, as a percentage
14                     DNC V. HOBBS

of in-person ballots between 2008 and 2014, the percentage
of OOP ballots has increased.

                3. Reasons for OOP Ballots

    Three key factors leading to OOP ballots are frequent
changes in polling locations; confusing placement of polling
locations; and high rates of residential mobility. These
factors disproportionately affect minority voters. Dr. Rodden
summarized:

       Voters must invest significant effort in order
       to negotiate a dizzying array of precinct and
       polling place schemes that change from one
       month to the next. Further, Arizona’s
       population is highly mobile and residential
       locations are fluid, especially for minorities,
       young people, and poor voters, which further
       contributes to confusion around voting
       locations.

Rodden at 2; see also 

–58
(discussing these reasons).

         a. Frequent Changes in Polling Locations

    Arizona election officials change voters’ assigned polling
places with unusual frequency. Maricopa County, which
includes Phoenix, is a striking example. The district court
found that between 2006 and 2008, “at least 43 percent of
polling locations” changed. 

.
Between 2010 and 2012, approximately 40 percent of polling
place locations were changed again. 

continued in 2016, “when Maricopa County experimented
                       DNC V. HOBBS                         15

with 60 vote centers for the presidential preference election
[in March], then reverted to a precinct-based system with
122 polling locations for the May special election, and then
implemented over 700 assigned polling places [for] the
August primary and November general elections.” 

voting rate was 40 percent higher for voters whose
polling places were changed. 

Judge Thomas put
it, “the paths to polling places in the Phoenix area [are] much
like the changing stairways at Hogwarts, constantly moving
and sending everyone to the wrong place.” 

(Thomas, C.J., dissenting).

    White voters in Maricopa County are more likely than
minority voters to have continuity in their polling place
location. Rodden at 60–61. Dr. Rodden wrote that between
the February and November elections in 2012, “the rates at
which African Americans and Hispanics experienced stability
in their polling places were each about 30 percent lower than
the rate for whites.” 

Placement of Polling Locations

    Some polling places are located so counterintuitively that
voters easily make mistakes. In Maricopa and Pima
Counties, many polling places are located at or near the edge
of precincts. 

An example is the polling place for
precinct 222 in Maricopa County during the 2012 election.
Dr. Rodden wrote:

       [A] group of 44 voters who were officially
       registered to vote in precinct 222, . . . showed
       up on Election Day at the Desert Star School,
       the polling location for precinct 173. It is
       easy to understand how they might have made
16                    DNC V. HOBBS

       this mistake. Polling place 173 is the local
       elementary school, and the only polling place
       in the vicinity. It is within easy walking
       distance, and is the polling place for most of
       the neighbors and other parents at the school,
       yet due to a bizarre placement of the [polling
       place at the] Southern border of precinct 222,
       these voters were required to travel
       15 minutes by car (according to [G]oogle
       maps) to vote in polling location 222, passing
       four other polling places along the way.

                       DNC V. HOBBS                        17

    This map illustrates Dr. Rodden’s point:

    In 2012, approximately 25 percent of OOP voters lived
closer to the polling place where they cast their OOP ballot
than to their assigned polling place. 

Voters who
live more than 1.4 miles from their assigned polling place are
30 percent more likely to vote OOP than voters who live
within 0.4 miles of their assigned polling place. 

American Indian and Hispanic voters live farther from their
assigned polling places than white voters. 

18                     DNC V. HOBBS

American Indian voters are particularly disadvantaged. The
district court found: “Navajo voters in Northern Apache
County lack standard addresses, and their precinct
assignments for state and county elections are based upon
guesswork, leading to confusion about the voter’s correct
polling place.” 

; Rodden
Second at 52–53.

            c. Renters and Residential Mobility

    High percentages of renters and high rates of residential
mobility correlate with high rates of OOP voting. 

. The district court found that rates of
OOP voting are “higher in neighborhoods where renters make
up a larger share of householders.” 

and
2010, almost 70 percent of Arizonans changed their
residential address, the second highest rate of any State.

; Rodden at 11–12. The
district court found that “[t]he vast majority of Arizonans
who moved in the last year moved to another address within
their current city of residence.” 

.

    The need to locate the proper polling place after
moving—particularly after moving a short distance in an
urban area—leads to a high percentage of OOP ballots.
Dr. Rodden wrote:

       An individual who faces a rent increase in one
       apartment complex and moves to another less
       than a mile away might not be aware that she
       has moved into an entirely new precinct—
       indeed, in many cases . . . she may still live
       closest to her old precinct, but may now be
                       DNC V. HOBBS                         19

       required to travel further in order to vote in
       her new assigned precinct. Among groups for
       whom residential mobility is common,
       requirements of in-precinct-voting—as well
       as the requirement that they update their
       registration with the state every time that they
       move even a short distance within a
       county—can make it substantially more
       burdensome to participate in elections.

Rodden at 11.

    The district court found that minority voters in Arizona
have “disproportionately higher rates of residential mobility.”

. The court found, “OOP
voting is concentrated in relatively dense precincts that are
disproportionately populated with renters and those who
move frequently.          These groups, in turn, are
disproportionately composed of minorities.” 

Impact on Minority Voters

    The district court found that Arizona’s policy of wholly
discarding OOP ballots disproportionately affects minority
voters. 

. During the general
election in 2012 in Pima County, compared to white voters,
the rate of OOP ballots was 123 percent higher for Hispanic
voters, 47 percent higher for American Indian voters, and
37 percent higher for African American voters. Rodden
at 43. During the 2014 and 2016 general elections in Apache,
Navajo, and Coconino Counties, the vast majority of OOP
ballots were in areas that are almost entirely American
Indian. Rodden Rebuttal at 53–54, 58; Jonathan Rodden,
Second Expert Report (Rodden Second) at 22. In all
20                      DNC V. HOBBS

likelihood, the reported numbers underestimate the degree of
disparity. Dr. Rodden wrote, “[A]lthough the racial
disparities described . . . are substantial, they should be
treated as a conservative lower bound on the true differences
in rates of out-of-precinct voting across groups.” Rodden
Second at 15 (emphasis in original). The district court found,
“Dr. Rodden credibly explained that the measurement error
for Hispanic probabilities leads only to the under-estimation
of racial disparities.” 

.

    Racial disparities in OOP ballots in 2016 “remained just
as pronounced” as in 2012 and 2014. Rodden Second at 3.
For example, the rates of OOP ballots in Maricopa County
“were twice as high for Hispanics, 86 percent higher for
African Americans, and 73 percent higher for Native
Americans than for their non-minority counterparts.”

–72; Rodden Second at 29.
“In Pima County, rates of OOP voting were 150 percent
higher for Hispanics, 80 percent higher for African
Americans, and 74 percent higher for Native Americans than
for non-minorities.” 

. “[I]n
Pima County the overall rate of OOP voting was higher, and
the racial disparities larger, in 2016 than in 2014.” Id.;
Rodden Second at 33.

     The district court found:

        Among all counties that reported OOP ballots
        in the 2016 general election, a little over 1 in
        every 100 Hispanic voters, 1 in every 100
        African-American voters, and 1 in every 100
        Native American voters cast an OOP ballot.
        For non-minority voters, the figure was
        around 1 in every 200 voters.
                       DNC V. HOBBS                         21

. That is, in the 2016 general
election, as in the two previous elections, American Indians,
Hispanics, and African Americans voted OOP at twice the
rate of whites.

                        B. H.B. 2023

           1. Early Voting and Ballot Collection

    Arizona has permitted early voting for over 25 years. 

“In 2007, Arizona implemented permanent no-excuse
early voting by mail, known as the Permanent Early Voter
List (“PEVL”).” 

Arizonans may either
(a) request an early vote-by-mail ballot on an election-by-
election basis, or (b) request that they be placed on the
Permanent Early Voter List. See id.; Ariz. Rev. Stat. §§ 16-
542, -544. Some counties permit voters to drop their early
ballots in special drop boxes. All counties permit the return
of early ballots by mail, or in person at a polling place, vote
center, or authorized election official’s office. Early voting
is by far “the most popular method of voting [in Arizona].”

. Approximately 80 percent
of all ballots cast in the 2016 general election were early
ballots. 

passage of H.B. 2023, Arizona did not
restrict collection and drop-off of voted ballots by third
parties.

    The district court heard extensive testimony about the
number of ballots collected and turned in by third parties. 

A Maricopa County Democratic Party organizer
testified that during the course of her work for the party she
personally saw 1,200 to 1,500 early ballots collected and
turned in by third-party volunteers. These were only a
portion of the total ballots collected by her organization. The
22                      DNC V. HOBBS

organizer testified that during the 2010 election the Maricopa
County Democratic Party collected hundreds of ballots from
a heavily Hispanic neighborhood in one state legislative
district alone. A representative of Citizens for a Better
Arizona testified that the organization collected
approximately 9,000 early ballots during the 2012 Maricopa
County Sheriff’s election. A member of the Arizona
Democratic Party testified that the party collected “a couple
thousand ballots” in 2014. 

advocate
testified before the Arizona Senate Elections Committee that
in one election he collected 4,000 early ballots. 

City Councilmember testified that she and her
volunteers collected about 1,000 early ballots in an election
in which she received a total of 8,000 votes.

     2. Minority Voters’ Reliance on Third-Party Ballot
                         Collection

    The district court found “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.” 

The court recounted: “Helen
Purcell, who served as the Maricopa County Recorder for
28 years from 1988 to 2016, observed that ballot collection
was disproportionately used by Hispanic voters.” 

collected ballots in past elections “observed
that minority voters, especially Hispanics, were more
interested in utilizing their services.” 

collector
testified about what she termed a “case study” demonstrating
the extent of the disparity. In 2010, she and her fellow
organizers collected “somewhere south of 50 ballots” in one
area. The area was later redistricted before the next election
to add the heavily Hispanic neighborhood of Sunnyslope. In
                       DNC V. HOBBS                          23

2012, the organization “pulled in hundreds of ballots, [with
the] vast majority from that Sunnyslope area.”

    The district court found that, in contrast, the Republican
Party has “not significantly engaged in ballot collection as a
GOTV [Get Out the Vote] strategy.” 

of the
Republican Party in Arizona is white. 

engaged in ballot collection in past elections observed that
voters in predominately white areas “were not as interested in
ballot collection services.” 

rely on third-party ballot collection for
many reasons. Joseph Larios, a community advocate who has
collected ballots in past elections, testified that “returning
early mail ballots presents special challenges for communities
that lack easy access to outgoing mail services; the elderly,
homebound, and disabled voters; socioeconomically
disadvantaged voters who lack reliable transportation; voters
who have trouble finding time to return mail because they
work multiple jobs or lack childcare services; and voters who
are unfamiliar with the voting process and therefore do not
vote without assistance or tend to miss critical deadlines.” 

(summarizing Larios’ testimony). These burdens
fall disproportionately on Arizona’s minority voters.

    Arizona’s American Indian and Hispanic communities
frequently encounter mail-related problems that make
returning early ballots difficult. In urban areas of heavily
Hispanic counties, many apartment buildings lack outgoing
mail services. 

Only 18 percent of American
Indian registered voters have home mail service. 

voters have home mail service at a rate over
350 percent higher than their American Indian counterparts.

security is an additional problem. Several
24                      DNC V. HOBBS

witnesses testified that incoming and outgoing mail often go
missing. 

court found that especially in low-
income communities, frequent mail theft has led to “distrust”
in the mail service. 

of transportation compounds the issue.
“Hispanics, Native Americans, and African Americans . . .
are significantly less likely than non-minorities to own a
vehicle, more likely to rely upon public transportation, [and]
more likely to have inflexible work schedules[.]” 

Luis—a city that is 98 percent Hispanic—a major highway
separates almost 13,000 residents from their nearest post
office. 

has no mass transit, a median income of
$22,000, and many households with no cars. 

Navajo Reservation, “most people live in remote
communities, many communities have little to no vehicle
access, and there is no home incoming or outgoing mail, only
post office boxes, sometimes shared by multiple families.”

sovereign nations often must travel
45 minutes to 2 hours just to get a mailbox.” 

–52 (Thomas, C.J., dissenting). As a result, voting
“requires the active assistance of friends and neighbors” for
many American Indians. 

(quoting Rodden Second at 60).

    The adverse impact on minority communities is
substantial. Without “access to reliable and secure mail
services” and without reliable transportation, many minority
voters “prefer instead to give their ballots to a volunteer.” 

These communities thus end up relying heavily on
third-party collection of mail-in ballots. Dr. Berman wrote
with respect to Hispanic voters:
                       DNC V. HOBBS                        25

       [T]he practice of collecting ballots, used
       principally in Hispanic areas, ha[s]
       contributed to more votes being cast in those
       places tha[n] would have been cast without
       the practice. . . . That the practice has
       increased minority turnout appears to have
       been agreed upon or assumed by both sides of
       the issue[.] Democrats and Hispanic leaders
       have seen reason to favor it, Republicans have
       not.

Berman, Expert Reply Report at 8–9. Similarly, LeNora
Fulton, a member of the Navajo Nation and previous Apache
County Recorder, testified that it was “standard practice” in
Apache County and the Nation to vote by relying on non-
family members with the means to travel. Reagan, 329 F.
Supp. 3d at 870.

                  3. History of H.B. 2023

    Before the passage of H.B. 2023, Arizona already
criminalized fraud involving possession or collection of
another person’s ballot. The district court wrote:

       [B]allot tampering, vote buying, or discarding
       someone else’s ballot all were illegal prior to
       the passage of H.B. 2023. Arizona law has
       long provided that any person who knowingly
       collects voted or unvoted ballots and does not
       turn those ballots in to an elections official is
       guilty of a class 5 felony. A.R.S. § 16-1005.
       Further, Arizona has long made all of the
       following class 5 felonies: “knowingly
       mark[ing] a voted or unvoted ballot or ballot
26                     DNC V. HOBBS

       envelope with the intent to fix an election;”
       “receiv[ing] or agree[ing] to receive any
       consideration in exchange for a voted or
       unvoted ballot;” possessing another’s voted or
       unvoted ballot with intent to sell; “knowingly
       solicit[ing] the collection of voted or unvoted
       ballots by misrepresenting [one’s self] as an
       election official or as an official ballot
       repository or . . . serv[ing] as a ballot drop off
       site, other than those established and staffed
       by election officials;” and “knowingly
       collect[ing] voted or unvoted ballots and . . .
       not turn[ing] those ballots in to an election
       official . . . or any . . . entity permitted by law
       to transmit post.” A.R.S. §§ 16-1005(a)–(f).
       The early voting process also includes a
       number of other safeguards, such as tamper
       evident envelopes and a rigorous voter
       signature verification procedure.

(alterations in original)
(internal record citations omitted).

    There is no evidence of any fraud in the long history of
third-party ballot collection in Arizona. Despite the extensive
statutory provisions already criminalizing fraud involving
possession or collection of another person’s ballot, and
despite the lack of evidence of any fraud in connection with
third-party ballot collection, Republican State Senator
Don Shooter introduced a bill in February 2011. S.B. 1412,
50th Leg., 1st Reg. Sess. (introduced) (Ariz. 2011),
http://www.azleg.gov/legtext/50leg/1r/bills/sb1412p.htm.
                       DNC V. HOBBS                        27

    Senator Shooter’s bill criminalized non-fraudulent third-
party ballot collection. The district court had no illusions
about Senator Shooter’s motivation. It found:

       Due to the high degree of racial polarization
       in his district, Shooter was in part motivated
       by a desire to eliminate what had become an
       effective Democratic GOTV strategy. Indeed,
       Shooter’s 2010 election was close: he won
       with 53 percent of the total vote, receiving
       83 percent of the non-minority vote but only
       20 percent of the Hispanic vote.

–80.

    The state legislature amended Senator Shooter’s bill
several times, watering it down significantly. As finally
enacted, the bill—included as part of a series of election-
related changes in Senate Bill 1412 (“S.B. 1412”)—restricted
the manner in which unrelated third parties could collect
and turn in more than ten voted ballots. S.B. 1412, 50th Leg.,
1st Reg. Sess. (engrossed), Sec. 3 at D (Ariz. 2011),
https://legiscan.com/AZ/text/SB1412/id/233492/Arizona-
2011-SB1412-Engrossed.html.          If a third-party ballot
collector turned in more than ten ballots, the collector was
required to provide photo identification. After each election,
the Secretary of State was required to compile a statewide
public report listing ballot collectors’ information. The bill
did not criminalize any violation of its provisions.

    When S.B. 1412 became law, Arizona was still subject to
preclearance under the Voting Rights Act. S.B. 1412
therefore could not go into effect until it was precleared by
the U.S. Department of Justice (“DOJ”) or a three-judge
28                     DNC V. HOBBS

federal district court. On May 18, 2011, the Arizona
Attorney General submitted S.B. 1412 to DOJ for
preclearance. Arizona Attorney General Thomas Horne,
Effect of Shelby County on Withdrawn Preclearance
Submissions, (August 29, 2013), https://www.azag.gov/opi
nions/i13-008-r13-013. On June 27, 2011, DOJ precleared all
provisions of S.B. 1412 except the provision regulating third-
party ballot collection. 

.

    DOJ sent a letter to Arizona concerning the third-party
ballot collection provision, stating that the information
provided with the preclearance request was “insufficient to
enable [DOJ] to determine that the proposed changes have
neither the purpose nor will have the effect of denying or
abridging the right to vote on account of race, color, or
membership in a language minority group.” 

DOJ requested additional information and stated that it “may
object” to the proposed change if no response was received
within sixty days. 

    Instead of responding with the requested information, the
Arizona Attorney General withdrew the preclearance request
for the third-party ballot collection provision. 

General did so for good reason. According to DOJ
records, Arizona’s Elections Director, who had helped draft
the provision, had admitted to DOJ that the provision was
“targeted at voting practices in predominantly Hispanic
areas.”

    The state legislature formally repealed the provision after
receiving the letter from DOJ. Withdrawing a preclearance
request was not common practice in Arizona. Out of
773 proposals that Arizona submitted for preclearance over
                       DNC V. HOBBS                          29

almost forty years, the ballot collection provision of S.B.
1412 was one of only six that Arizona withdrew. 

later, on June 25, 2013, the United States
Supreme Court decided Shelby County v. Holder, 

(2013). The Court declared unconstitutional the formula
in Section 4(b) of the VRA for determining “covered
jurisdictions,” thereby eliminating preclearance under Section
5 for any previously covered jurisdiction, including Arizona.
On June 19, 2013, Arizona’s Governor had signed a new bill,
H.B. 2305, which entirely banned partisan ballot collection
and required non-partisan ballot collectors to complete
an affidavit stating that they had returned the ballot.

; H.B. 2305, 51st Leg., 1st
Reg. Sess. (engrossed), at Secs. 3 and 5 (Ariz. 2013),
https://legiscan.com/AZ/text/HB2305/id/864002. Violation
of H.B. 2305 was a criminal misdemeanor.

    H.B. 2305 “was passed along nearly straight party lines in
the waning hours of the legislative session.” 

. “Shortly after its enactment, citizen
groups organized a referendum effort[.]” 

more than 140,000 signatures”—significantly more than the
required amount—“to place H.B. 2305 on the ballot for a
straight up-or-down [statewide] vote” in the next election. 

provided that repeal by referendum prevented
the legislature from enacting future related legislation without
a supermajority vote. Moreover, any such future legislation
could only “further[]”—not undercut—“the purposes” of the
referendum. Ariz. Const. art. IV, pt. 1, § 1(6)(C), (14).
“Rather than face a referendum, Republican legislators . . .
repealed their own legislation along party lines.” 

. The primary sponsor of H.B. 2305,
then-State Senator Michele Reagan (a future Secretary of
30                     DNC V. HOBBS

State of Arizona and an original defendant in this action),
“admitted that the legislature’s goal [in repealing H.B. 2305]
was to break the bill into smaller pieces and reintroduce
individual provisions ‘a la carte.’” 

2015 and 2016 legislative sessions,
Republican legislators again sought to criminalize ballot
collection by third parties, culminating in 2016 in the passage
of H.B. 2023, the measure challenged in this suit. The district
court found that Republican legislators had two motivations
for passing H.B. 2023. First, Republican legislators were
motivated by the “unfounded and often farfetched allegations
of ballot collection fraud” made by former State Senator
Shooter—who had introduced the bill to limit third-party
ballot collection in 2011. 

(finding Shooter’s
allegations “demonstrably false”). Second, Republican
legislators were motivated by a “racially-tinged” video
known as the “LaFaro Video.” 

gave proponents of H.B. 2023 their best and
only “evidence” of voter fraud. During legislative hearings
on previous bills criminalizing third-party collection, the
district court wrote, “Republican sponsors and proponents
[had] expressed beliefs that ballot collection fraud regularly
was occurring but struggled with the lack of direct evidence
substantiating those beliefs.” 

In 2014,
Republicans’ “perceived ‘evidence’ arrived in the form of a
racially charged video created by Maricopa County
Republican Chair A.J. LaFaro . . . and posted on a blog.” 

summarized:

       The LaFaro Video showed surveillance
       footage of a man of apparent Hispanic
       heritage appearing to deliver early ballots. It
                       DNC V. HOBBS                          31

       also contained a narration of “Innuendos of
       illegality . . . [and] racially tinged and
       inaccurate commentary by . . . LaFaro.”
       LaFaro’s commentary included statements
       that the man was acting to stuff the ballot box;
       that LaFaro did not know if the person was an
       illegal alien, a dreamer, or citizen, but knew
       that he was a thug; and that LaFaro did not
       follow him out to the parking lot to take down
       his tag number because he feared for his life.

original and internal record citations
omitted). A voice-over on the video described “ballot
parties” where people supposedly “gather en mass[e] and give
their un-voted ballots to operatives of organizations so they
can not only collect them, but also vote them illegally.” 

    The district court found, “The LaFaro Video did not show
any obviously illegal activity and there is no evidence that the
allegations in the narration were true.” 

The video
“merely shows a man of apparent Hispanic heritage dropping
off ballots and not obviously violating any law.” 

“became quite prominent in the debates over H.B.
2023.” 

wrote:

       The LaFaro video also was posted on
       Facebook and YouTube, shown at Republican
       district meetings, and was incorporated into a
       television advertisement—entitled “Do You
       Need Evidence Terry?”—for Secretary
       Reagan when she ran for Secretary of State.
       In the ad, the LaFaro Video plays after a clip
       of then-Arizona Attorney General Terry
32                      DNC V. HOBBS

        Goddard stating he would like to see evidence
        that there has been ballot collection fraud.
        While the video is playing, Secretary
        Reagan’s narration indicates that the LaFaro
        Video answers Goddard’s request for
        evidence of fraud.

citations omitted). The court found,
“Although no direct evidence of ballot collection fraud was
presented to the legislature or at trial, Shooter’s allegations
and the LaFaro Video were successful in convincing H.B.
2023’s proponents that ballot collection presented
opportunities for fraud that did not exist for in-person
voting[.]” 

.

    The district court found that H.B. 2023 is no harsher than
any of the third-party ballot collection bills previously
introduced in the Arizona legislature. The court found:

        [A]lthough Plaintiffs argue that the legislature
        made H.B. 2023 harsher than previous ballot
        collection bills by imposing felony penalties,
        they ignore that H.B. 2023 in other respects is
        more lenient than its predecessors given its
        broad exceptions for family members,
        household members, and caregivers.

In so finding, the district court clearly erred. Both
S.B. 1412 and H.B. 2305 were more lenient than H.B. 2023.

    For example, S.B. 1412, which was presented to DOJ for
preclearance, required a third party collecting more than ten
voted ballots to provide photo identification. There were no
other restrictions on third-party ballot collection. There were
                        DNC V. HOBBS                          33

no criminal penalties. By contrast, under H.B. 2023 a third
party may collect a ballot only if the third party is an official
engaged in official duties, or is a family member, household
member, or caregiver of the voter. Ariz. Rev. Stat. § 16-
1005(H), (I); 

–40. A third
party who violates H.B. 2023 commits a class 5 felony.

    In 2011, the relatively permissive third-party ballot
collection provision of S.B. 1412 was withdrawn from
Arizona’s preclearance request when DOJ asked for more
information. In 2016, in the wake of Shelby County and
without fear of preclearance scrutiny, Arizona enacted H.B.
2023.

                  II. Section 2 of the VRA

    “Congress enacted the Voting Rights Act of 1965 for the
broad remedial purpose of ‘rid[ding] the country of racial
discrimination in voting.’” Chisom v. Roemer, 

,
403 (1991) (alteration in original) (quoting South Carolina v.
Katzenbach, 

, 315 (1966)). “The Act create[d]
stringent new remedies for voting discrimination where it
persists on a pervasive scale, and . . . strengthen[ed] existing
remedies for pockets of voting discrimination elsewhere in
the country.” 

.

   When Section 2 of the Voting Rights Act was originally
enacted in 1965, it read:

        SEC. 2. No voting qualification or
        prerequisite to voting, or standard, practice, or
        procedure shall be imposed or applied by any
        State or political subdivision to deny or
34                     DNC V. HOBBS

       abridge the right of any citizen of the United
       States to vote on account of race or color.

(citing 79 Stat. 437). “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.” 

The Fifteenth
Amendment provides that “[t]he right of citizens of the
United States to vote shall not be denied or abridged by the
United States or by any State on account of race, color, or
previous condition of servitude,” and it authorizes Congress
to enforce the provision “by appropriate legislation.” U.S.
Const. amend. XV. In City of Mobile v. Bolden, 

(1980) (plurality), the Supreme Court held that the “coverage
provided by § 2 was unquestionably coextensive with the
coverage provided by the Fifteenth Amendment; the
provision simply elaborated upon the Fifteenth Amendment.”

. That is, the Court held that proof of
intentional discrimination was necessary to establish a
violation of Section 2. 

    Congress responded to Bolden by amending Section 2,
striking out “to deny or abridge” and substituting “in a
manner which results in a denial or abridgement of.” 

Section 2; emphasis added by the Court);
see also 

. “Under the amended
statute, proof of intent [to discriminate] is no longer required
to prove a § 2 violation.” 

. Rather,
plaintiffs can now prevail under Section 2 either by
demonstrating proof of intent to discriminate or “by
demonstrating that a challenged election practice has resulted
in the denial or abridgment of the right to vote based on color
or race.” 

a Section 2 violation can “be
                        DNC V. HOBBS                            35

established by proof of discriminatory results alone.”

. The Supreme Court summarized:
“Congress substantially revised § 2 to make clear that a
violation could be proved by showing discriminatory effect
alone and to establish as the relevant legal standard the
‘results test.’” 

(emphasis added).

    A violation of Section 2 may now be shown under either
the results test or the intent test. 

44. In the sections
that follow, we analyze Plaintiffs’ challenges under these two
tests. First, we analyze Arizona’s OOP policy and H.B. 2023
under the results test. Second, we analyze H.B. 2023 under
the intent test.

        A. Results Test: OOP Policy and H.B. 2023

                      1. The Results Test

    Section 2 of the VRA “‘prohibits all forms of voting
discrimination’ that lessen opportunity for minority voters.”
League of Women Voters of N.C. v. North Carolina, 

, 238 (4th Cir. 2014) (quoting 

n.10). As amended in 1982, Section 2 of the VRA provides:

        (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).
36                     DNC V. HOBBS

       (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 (emphases added).

    The results test of Section 2 applies in both vote dilution
and vote denial cases. “Vote dilution claims involve
challenges to methods of electing representatives—like
redistricting or at-large districts—as having the effect of
diminishing minorities’ voting strength.” Ohio State
Conference of NAACP v. Husted, 

, 554 (6th Cir.
2014), vacated on other grounds, 

(6th
Cir. 2014). A vote denial claim is generally understood to be
“any claim that is not a vote dilution claim.” 

now before us involves two vote-denial claims.

    The jurisprudence of vote-denial claims is relatively
underdeveloped in comparison to vote-dilution claims. As
explained by the Fourth Circuit, “[T]he predominance of vote
dilution in Section 2 jurisprudence likely stems from the
effectiveness of the now-defunct Section 5 preclearance
requirements that stopped would-be vote denial from
occurring in covered jurisdictions[.]” League of Women

.
                       DNC V. HOBBS                         37

    In evaluating a vote-denial challenge to a “standard,
practice, or procedure” under the “results test” of Section 2,
most courts, including our own, engage in a two-step process.
We first did so, in abbreviated fashion, in Smith v. Salt River
Project Agricultural Improvement & Power District,

(9th Cir. 1997). We later did so, at somewhat
greater length, in Gonzalez v. Arizona, 

(9th Cir.
2012) (en banc). Other circuits have subsequently used a
version of the two-step analysis. See Veasey v. Abbott,

, 244–45 (5th Cir. 2016); League of Women

(4th Cir. 2014); 

(6th Cir. 2014). Compare Frank v. Walker, 

, 755 (7th Cir. 2014) (“We are skeptical about the second
of these steps[.]”).

    First, we ask whether the challenged standard, practice or
procedure results in a disparate burden on members of the
protected class. That is, we ask 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.” 

.
The mere existence—or “bare statistical showing”—of a
disparate impact on a racial minority, in and of itself, is not
sufficient. See Salt 

(“[A] bare
statistical showing of disproportionate impact on a racial
minority does not satisfy the § 2 ‘results’ inquiry.” (emphasis
in original)).

    Second, if we find at the first step that the challenged
practice imposes a disparate burden, we ask 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. The purpose of the second step is to evaluate a
38                      DNC V. HOBBS

disparate burden in its real-world context rather than in the
abstract. As stated by the Supreme Court, “The essence of a
§ 2 claim is that a certain electoral law, practice, or structure
interacts with social and historical conditions to cause an
inequality in the opportunities enjoyed by [minority] and
white voters to elect their preferred representatives” or to
participate in the political process. 

;
52 U.S.C. § 10301(b). To determine at the second step
whether there is a legally significant relationship between the
disparate burden on minority voters and the social and
historical conditions affecting them, we consider, as
appropriate, factors such as those laid out in the Senate
Report accompanying the 1982 amendments to the VRA. 

(“The Senate Report which accompanied the 1982
amendments elaborates on the nature of § 2 violations and on
the proof required to establish these violations.”); 

–45.

     The Senate Report provides:

            If 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, there is a violation of this section. To
        establish a violation, plaintiffs could show a
        variety of factors, depending on the kind of
        rule, practice, or procedure called into
        question.

            Typical factors include:

                1. the extent of any history of official
                discrimination in the state or political
       DNC V. HOBBS                        39

subdivision that touched the right of
the members of the minority group to
register, to vote, or otherwise to
participate in the democratic process;

2. the extent to which voting in the
elections of the state or political
subdivision is racially polarized;

3. the extent to which the state or
political subdivision has used
unusually large election districts,
majority vote requirements, anti-
single shot provisions, or other voting
practices or procedures that may
enhance the opportunity for
discrimination against the minority
group;

4. if there is a candidate slating
process, whether the members of the
minority group have been denied
access to that process;

5. the extent to which members of the
minority group in the state or political
subdivision bear the effects of
discrimination in such areas as
education, employment and health,
which hinder their ability to
participate effectively in the political
process;
40                     DNC V. HOBBS

               6. whether political campaigns have
               been characterized by overt or subtle
               racial appeals;

               7. the extent to which members of the
               minority group have been elected to
               public office in the jurisdiction.

           Additional factors that in some cases have
       had probative value as part of plaintiffs’
       evidence to establish a violation are:

               [8.] whether there is a significant lack
               of responsiveness on the part of
               elected officials to the particularized
               needs of the members of the minority
               group.

               [9.] whether the policy underlying the
               state or political subdivision’s use of
               such voting qualification, prerequisite
               to voting, or standard, practice or
               procedure is tenuous.

S. Rep. No. 97-417 (“S. Rep.”), at 28–29 (1982); see 

–37 (quoting the Senate Report).

    The Senate Committee’s list of “typical factors” is neither
comprehensive nor exclusive. S. Rep. at 29. “[T]here is no
requirement that any particular number of factors be proved,
or that a majority of them point one way or the other.” 

whether the political processes are ‘equally
open’ depends on a searching practical evaluation of the ‘past
and present reality.’” 

An evaluation of the totality
                       DNC V. HOBBS                          41

of circumstances in a Section 2 results claim, including an
evaluation of appropriate Senate factors, requires “a blend of
history and an intensely local appraisal[.]” 

(quoting White v. Regester, 

, 769–70
(1973)). The Senate factors are relevant to both vote-denial
and vote-dilution claims. 

(Senate
factors will be “pertinent to certain types of § 2 claims,”
including vote denial claims, but will be “particularly
[pertinent] to vote dilution claims.”).

    Our sister circuits have struck down standards, practices,
or procedures in several vote-denial cases after considering
the Senate factors. In Husted, the Sixth Circuit upheld a
district court’s finding that an Ohio law limiting early voting
violated the results test of Section 2. The court wrote,

       We find Senate factors one, three, five, and
       nine particularly relevant to a vote denial
       claim in that they specifically focus on how
       historical or current patterns of discrimination
       “hinder [minorities’] ability to participate
       effectively in the political process.” 

(quoting Senate factor five).
       All of the factors, however, can still provide
       helpful background context to minorities’
       overall ability to engage effectively on an
       equal basis with other voters in the political
       process.

. In Veasey, the Fifth Circuit upheld
a district court’s finding that Texas’s requirement that a photo
ID be presented at the time of voting violated the results test.

–64 (considering Senate factors one,
two, five, six, seven, eight, and nine). In League of Women
42                     DNC V. HOBBS

Voters, the Fourth Circuit held that the district court had
clearly erred in finding that the results test had not been
violated by North Carolina’s elimination of same-day
registration, and by North Carolina’s practice of wholly
discarding out-of-precinct ballots. League of Women 

–46 (considering Senate factors one, three,
and nine).

            2. OOP Policy and the Results Test

    Uncontested evidence in the district court established that
minority voters in Arizona cast OOP ballots at twice the rate
of white voters. The question is whether the district court
clearly erred in holding that Arizona’s policy of entirely
discarding OOP ballots does not violate the “results test” of
Section 2.

               a. Step One: Disparate Burden

    The question at step one is whether Arizona’s policy of
entirely discarding OOP ballots results in a disparate burden
on a protected class. The district court held that Plaintiffs
failed at step one. The district court clearly erred in so
holding.

    Extensive and uncontradicted evidence in the district
court established that American Indian, Hispanic, and African
American voters are over-represented among OOP voters by
a ratio of two to one. See Part 

. The district court
wrote, “Plaintiffs provided quantitative and statistical
evidence of disparities in OOP voting through the expert
testimony of Dr. Rodden . . . . Dr. Rodden’s analysis is
credible and shows that minorities are over-represented
among the small number of voters casting OOP ballots.”
                        DNC V. HOBBS                          43

. Dr. Rodden reported that
this pattern was consistent over time and across counties.
Based on this evidence, the court found that during the 2016
general election, American Indian, Hispanic, and African
American voters were twice as likely as white voters to vote
out-of-precinct and not have their votes counted. 

   Despite these factual findings, the district court held that
Arizona’s policy of entirely discarding OOP ballots does not
impose a disparate burden under the results test. The court
gave two reasons to support its holding.

    First, the district court discounted the disparate burden on
the ground that there were relatively few OOP ballots cast in
relation to the total number of ballots. 

The district
court clearly erred in so doing.

    The district court pointed out that the absolute number of
OOP ballots in Arizona fell between 2012 and 2016. It
pointed out, further, that as a percentage of all ballots cast,
OOP ballots fell from 0.47 percent to 0.15 percent during that
period. 

and percentages cited by the district
court are accurate. Standing alone, they may be read to
suggest that locating the correct precinct for in-person voting
has become easier and that OOP ballots, as a percentage of
in-person ballots, have decreased accordingly.

   However, the opposite is true. Arizona’s OOP policy
applies only to in-person ballots. The proper baseline to
measure OOP ballots to is thus not all ballots, but all in-
person ballots. The district court failed to point out that the
absolute number of all in-person ballots fell more than the
absolute number of OOP ballots, and that, as a result, as a
44                     DNC V. HOBBS

percentage of in-person ballots, OOP ballots increased rather
than decreased.

    Even putting aside the potentially misleading numbers
and percentages cited by the district court and focusing only
on the decline in the absolute number of OOP ballots, the
court clearly erred. As indicated above, the vote-denial
category encompasses all cases that are not vote-dilution
cases. The number of minority voters adversely affected, and
the mechanism by which they are affected, may vary
considerably. For example, if a polling place denies an
individual minority voter her right to vote based on her race
or color, Section 2 is violated based on that single denial.
However, a different analysis may be appropriate when a
facially neutral policy adversely affects a number of minority
voters. Arizona’s OOP policy is an example. We are willing
to assume in such a case that more than a de minimis number
of minority voters must be burdened before a Section 2
violation based on the results test can be found. Even on that
assumption, however, we conclude that the number of OOP
ballots cast in Arizona’s general election in 2016—3,709
ballots—is hardly de minimis.

   We find support for our conclusion in several places. The
Department of Justice submitted an amicus brief to our en
banc panel in support of Arizona. Despite its support for
Arizona, DOJ specifically disavowed the district court’s
conclusion that the number of discarded OOP ballots was too
small to be cognizable under the results test. DOJ wrote:

           [T]he district court’s reasoning was not
       correct to the extent that it suggested that
       plaintiffs’ Section 2 claim would fail solely
                       DNC V. HOBBS                         45

       because of the small number of voters
       affected. . . .

           That is not a proper reading of the statute.
       Section 2 prohibits any “standard, practice, or
       procedure” that “results in a denial or
       abridgement of the right of any citizen of the
       United States to vote on account of race or
       color.” 52 U.S.C. 10301(a) (emphasis added);
       see also Frank v. Walker, 

, 386
       (7th Cir. 2016) (Frank II) (“The right to vote
       is personal and is not defeated by the fact that
       99% of other people can secure the necessary
       credentials easily.”). Section 2 safeguards a
       personal right to equal participation
       opportunities. A poll worker turning away a
       single voter because of her race plainly results
       in “less opportunity * * * to participate in the
       political process and to elect representatives
       of [her] choice.” 52 U.S.C. 10301(b).

DOJ Amicus Brief at 28–29. DOJ’s brief appears to treat as
equivalent the case of an individually targeted single minority
voter who is denied the right to vote and the case where a
facially neutral policy affects a single voter. We do not need
to go so far. We need only point out that in the case before us
a substantial number of minority voters are disparately
affected by Arizona’s OOP policy. As long as an adequate
disparate impact is shown, as it has been shown here, and as
long as the other prerequisites for finding a Section 2 violate
are met, each individual in the affected group is protected
under Section 2.
46                     DNC V. HOBBS

    Further, in League of Women Voters, “approximately
3,348 out-of-precinct provisional ballots” cast by African
American voters would have been discarded under the
challenged North Carolina 

(quoting the
district court). The district court had held that this was a
“minimal” number of votes, and that Section 2 was therefore
not violated. The Fourth Circuit reversed, characterizing the
district court’s ruling as a “grave error.” 

    Finally, in the 2000 presidential election, the official
margin of victory for President George W. Bush in Florida
was 537 votes. Federal Election Commission, 2000 Official
Presidential General Election Results (Dec. 2001), available
at https://transition.fec.gov/pubrec/2000presgeresults.htm. If
there had been 3,709 additional ballots cast in Florida in
2000, in which minority voters had outnumbered white voters
by a ratio of two to one, it is possible that a different
President would have been elected.

    Second, the district court concluded that Arizona’s policy
of rejecting OOP ballots does not impose a disparate burden
on minority voters because Arizona’s policy of entirely
discarding OOP ballots “is not the cause of the disparities in
OOP voting.” 

. The court
wrote that Plaintiffs “have not shown that Arizona’s policy to
not count OOP ballots causes minorities to show up to vote
at the wrong precinct at rates higher than their non-minority
counterparts.” 

Again, the district court clearly
erred.

    The district court misunderstood what Plaintiffs must
show. Plaintiffs need not show that Arizona caused them to
vote out of precinct. Rather, they need only show that the
result of entirely discarding OOP ballots has an adverse
                        DNC V. HOBBS                            47

disparate impact, by demonstrating “a causal connection
between the challenged voting practice and a prohibited
discriminatory result.” Salt 

(emphasis
added). Here, “[t]he challenged practice—not counting OOP
ballots—results in ‘a prohibited discriminatory result’; a
substantially higher percentage of minority votes than white
votes are discarded.” 

(Thomas, C.J.,
dissenting).

    We hold that the district court clearly erred in holding that
Arizona’s policy of entirely discarding OOP ballots does not
result in a disparate burden on minority voters. We
accordingly hold that Plaintiffs have succeeded at step one of
the results test.

                 b. Step Two: Senate Factors

     The question at step two is whether, under the “totality of
circumstances,” the disparate burden on minority voters is
linked to social and historical conditions in Arizona so as “to
cause an inequality in the opportunities enjoyed by [minority]
and white voters to elect their preferred representatives” or to
participate in the political process. 

;
52 U.S.C. § 10301(b). The district court wrote that because
in its view Plaintiffs failed at step one, discussion of step two
was unnecessary. 

. The court
nonetheless went on to discuss step two and, after considering
various Senate factors, to hold that Plaintiffs failed at this step
as well. The district court clearly erred in so holding.

    At step two, we consider relevant Senate factors. Some
Senate factors are “more important to” vote-denial claims, or
to some vote-denial claims, and others, “[i]f present, . . . are
supportive of, but not essential to” the claim. Gingles, 478 at
48                     DNC V. HOBBS

48 n.15 (emphasis in original). That is, Senate factors vary in
importance depending on whether a court is dealing with a
vote-dilution or a vote-denial case. The same factors may
also vary in importance from one vote-denial case to another.

    We emphasize that the relative importance of the Senate
factors varies from case to case. For example, as we will
describe in a moment, Arizona has a long and unhappy
history of official discrimination connected to voting. Other
States may not have such a history, but depending on the
existence of other Senate factors they may nonetheless be
found to have violated the results test of Section 2.

    The district court considered seven of the nine Senate
factors: factor one, the history of official discrimination
connected to voting; factor two, racially polarized voting
patterns; factor five, the effects of discrimination in other
areas on minority groups’ access to voting; factor six, racial
appeals in political campaigns; factor seven, the number of
minorities in public office; factor eight, officials’
responsiveness to the needs of minority groups; and factor
nine, the tenuousness of the justification for the challenged
voting practice.

     We analyze below each of these factors, indicating
whether we agree or disagree with the district court’s analysis
as to each. Of the various factors, we regard Senate factors
five (the effects of discrimination in other areas on minorities
access to voting) and nine (the tenuousness of the justification
for the challenged voting practices) as particularly important.
We also regard factor one (history of official discrimination)
as important, as it bears on the existence of discrimination
generally and strongly supports our conclusion under factor
five. Though “not essential,” 

n.15,
                       DNC V. HOBBS                        49

the other factors provide “helpful background context.”

.

     i. Factor One: History of Official Discrimination
                   Connected to Voting

    Arizona has a long history of race-based discrimination
against its American Indian, Hispanic, and African American
citizens. Much of that discrimination is directly relevant to
those citizens’ ability “to register, to vote, or otherwise to
participate in the democratic process.” 

the
most salient aspects of that history.

    Dr. David Berman, a Professor Emeritus of Political
Science at Arizona State University, submitted an expert
report and testified in the district court. The court found
Dr. Berman “credible” and gave “great weight to
Dr. Berman’s opinions.” 

.
The following narrative is largely drawn from Dr. Berman’s
report and the sources on which he relied.

                   (A) Territorial Period

    Arizona’s history of discrimination dates back to 1848,
when it first became an American political entity as a United
States territory. “Early territorial politicians acted on the
belief that it was the ‘manifest destiny’ of the Anglos to
triumph in Arizona over the earlier Native American and
Hispanic civilizations.” David Berman, Expert Report
(Berman) at 4. Dr. Berman wrote that from the 1850s
through the 1880s there were “blood thirsty efforts by whites
to either exterminate” Arizona’s existing American Indian
population or “confine them to reservations.” 

In
1871, in the Camp Grant Massacre, white settlers “brutal[ly]
50                     DNC V. HOBBS

murder[ed] over 100 Apaches, most of whom were women
and children.” 

territorial legislature
passed a number of discriminatory laws, including anti-
miscegenation laws forbidding marriage between whites and
Indians. See James Thomas Tucker et al., Voting Rights in
Arizona: 1982–2006, 17 S. Cal. Rev. L. & Soc. Just. 283, 283
n.3 (2008) (Tucker et al., Voting Rights). Dr. Berman wrote:
“By the late 1880s and the end of th[e] Indian wars, the
realities of life for Native Americans in Arizona were
confinement to reservations, a continuous loss of resources
(water, land, minerals) to settlers, poverty, and pressure to
abandon their traditional cultures.” Berman at 5.

   White settlers also discriminated against Arizona’s
Hispanic population. Dr. Berman wrote:

       Although Hispanics in the territory’s early
       period commonly held prominent roles in
       public and political life, as migration
       continued they were overwhelmed by a flood
       of Anglo-American and European
       immigrants.     While a small group of
       Hispanics continued to prosper, . . . most
       Hispanics toiled as laborers who made less
       than Anglos even though they performed the
       same work.

Hispanics in Arizona “found it
difficult to receive acceptance or fair treatment in a society
that had little tolerance for people of Latin American
extraction, and particularly those whose racial make-up
included Indian or African blood.” 

(quoting Oscar
J. Martinez, Hispanics in Arizona, in Arizona at Seventy-
                       DNC V. HOBBS                         51

Five: The Next Twenty-Five Years 88–89 (Ariz. State Univ.
Pub. History Program & the Ariz. Historical Soc’y, 1987)).

    Pursuant to the Treaty of Guadalupe Hidalgo that ended
the Mexican-American War, the United States conferred
citizenship on the approximately 100,000 Hispanics living in
Arizona. In 1909, the Arizona territorial legislature passed a
statute imposing an English language literacy test as a
prerequisite to voter registration. 

The test was
specifically designed to prevent the territory’s Hispanic
citizens—who had lower English literacy rates than white
citizens—from voting. 

time, Indians were not
citizens and were not eligible to vote.

    In 1910, Congress passed a statute authorizing Arizona,
as a prelude to statehood, to draft a state constitution. Upon
approval of its constitution by Congress, the President, and
Arizona voters, Arizona would become a State. 

Members of Congress viewed Arizona’s literacy test as a
deliberate effort to disenfranchise its Hispanic voters. 

statute specifically provided that Arizona
could not use its newly adopted literacy test to prevent
Arizona citizens from voting on a proposed constitution. 

year, Arizona convened a constitutional
convention. 

Although Congress had ensured that
Arizona would not use its literacy test to prevent Hispanic
citizens from voting on the constitution, Hispanics were
largely excluded from the drafting process. With the
exception of one Hispanic delegate, all of the delegates to the
convention were white. 

approximately
one-third of the delegates to the 1910 New Mexico
constitutional convention were Hispanic, and one-sixth of the
52                      DNC V. HOBBS

48 delegates to the 1849 California constitutional convention
were Hispanic. 

of Hispanic delegates is evident in those
States’ constitutions.      For example, New Mexico’s
constitution provides that the “right of any citizen of the state
to vote, hold office or sit upon juries, shall never be
restricted, abridged or impaired on account of . . . race,
language or color, or inability to speak, read or write the
English or Spanish languages.” N.M. Const. art. VII, § 3
(1910). It also requires the legislature to provide funds to
train teachers in Spanish instruction. N.M. Const. art. XII,
§ 8 (1910). California’s constitution required all state laws to
be published in Spanish as well as English. Cal. Const. art.
XI, § 21 (1849).

    By contrast, Arizona’s constitution did not include such
provisions. Indeed, two provisions required precisely the
opposite. The Arizona constitution provided that public
schools “shall always be conducted in English” and that
“[t]he ability to read, write, speak, and understand the English
language sufficiently well to conduct the duties of the office
without the aid of an interpreter, shall be a necessary
qualification for all State officers and members of the State
Legislature.” Ariz. Const. art. XX, §§ 7, 8 (1910).

                     (B) Early Statehood

                       (1) Literacy Test

     Arizona became a State in 1912. That same year, the
Arizona legislature passed a statute reimposing an English
literacy test—the test that had been imposed by the territorial
legislature in 1909 and that Congress had forbidden the State
                       DNC V. HOBBS                          53

to use for voting on the state constitution. Berman at 11; see
also James Thomas Tucker, The Battle Over Bilingual
Ballots: Language Minorities and Political Access Under the
Voting Rights Act 20 (Routledge, 2016) (Tucker, Bilingual
Ballots). According to Dr. Berman, the statute was enacted
“to limit ‘the ignorant Mexican vote.’” David R. Berman,
Arizona Politics and Government: The Quest for Autonomy,
Democracy, and Development 75 (Univ. of Neb. Press, 1998)
(Berman, Arizona Politics) (quoting letter between prominent
political leaders); Berman at 12.

    County registrars in Arizona had considerable discretion
in administering literacy tests. Registrars used that discretion
to excuse white citizens from the literacy requirement
altogether, to give white citizens easier versions of the test,
and to help white citizens pass the test. See also 

(describing the same practice with respect to
African American citizens in southern States). In contrast,
Hispanic citizens were often required to pass more difficult
versions of the test, without assistance and without error.
Berman, Arizona Politics at 75; see also Berman at 12.

    The literacy test was used for the next sixty years. The
year it was introduced, Hispanic registration declined so
dramatically that some counties lacked enough voters to
justify primaries. Berman at 12. One county had recall
campaigns because enough Hispanic voters had been purged
from voting rolls to potentially change the electoral result.

use its literacy test not only against
Hispanics, but also against African Americans and, once they
became eligible to vote in 1948, against American Indians.
The test was finally repealed in 1972, two years after an
amendment to the Voting Rights Act banned literacy tests
nationwide. 

V. HOBBS

       (2) Disenfranchisement of American Indians

    In 1912, when Arizona became a State, Indians were not
citizens of Arizona or of the United States. In 1924,
Congress passed the Indian Citizenship Act, declaring all
Indians citizens of the United States and, by extension, of
their States of residence. Indian Citizenship Act of 1924,
Pub. L. No. 68-175, 43 Stat. 253 (codified at 8 U.S.C.
§ 1401(b)).

    Indian voting had the potential to change the existing
white political power structure of Arizona. See Patty
Ferguson-Bohnee, The History of Indian Voting Rights in
Arizona: Overcoming Decades of Voter Suppression, 47 Ariz.
St. L.J. 1099, 1103–04 (2015) (Ferguson-Bohnee). Indians
comprised over 14 percent of the population in Arizona, the
second-highest percentage of Indians in any State. 

n.19, 1104. Potential power shifts were even greater at the
county level. According to the 1910 Census, Indians
comprised over 66 percent of the population of Apache
County, over 50 percent of Navajo County, over 34 percent
of Pinal County, and over 34 percent of Coconino County.

    Enacted under the Fourteenth and Fifteenth Amendments,
the Indian Citizenship Act should have given Indians the right
to vote in Arizona elections. The Attorney General of
Arizona initially agreed that the Act conferred the right to
vote, and he suggested in 1924 that precinct boundaries
should be expanded to include reservations. 

However, in the years leading up to the 1928 election,
Arizona’s Governor, county officials, and other politicians
sought to prevent Indians from voting. 

The
Governor, in particular, was concerned that Indian voter
                       DNC V. HOBBS                         55

registration—specifically, registration of approximately 1,500
Navajo voters—would hurt his reelection chances. 

The Governor sought legal opinions on ways to
exclude Indian voters, 

advised to “adopt a
systematic course of challenging Indians at the time of
election.” 

(quoting Letter from Samuel L. Pattee
to George W.P. Hunt, Ariz. Governor (Sept. 22, 1928)).
County officials challenged individual Indian voter
registrations. 

    Prior to the 1928 election, two Indian residents of Pima
County brought suit challenging the county’s rejection of
their voter registration forms. 

. The Arizona
Supreme Court sided with the county. The Arizona
constitution forbade anyone who was “under guardianship,
non compos mentis, or insane” from voting. Ariz. Const. art.
VII, § 2 (1910). The Court held that Indians were “wards of
the nation,” and were therefore “under guardianship” and not
eligible to vote. Porter v. Hall, 

, 417, 419 (Ariz.
1928).

    Arizona barred Indians from voting for the next twenty
years. According to the 1940 census, Indians comprised over
11 percent of Arizona’s population. Ferguson-Bohnee
at 1111. They were the largest minority group in Arizona.
“One-sixth of all Indians in the country lived in Arizona.” 

War II, Arizona’s Indian citizens returned
from fighting the Axis powers abroad to fight for the right to
vote at home. Frank Harrison, a World War II veteran and
member of the Fort McDowell Yavapai Nation, and Harry
Austin, another member of the Fort McDowell Yavapai
Nation, filed suit against the State. In 1948, the Arizona
Supreme Court overturned its prior decision in Porter v. Hall.
56                     DNC V. HOBBS

Harrison v. Laveen, 

, 463 (Ariz. 1948). Almost
a quarter century after enactment of the Indian Citizenship
Act of 1924, Indian citizens in Arizona had the legal right to
vote.

                 (C) The 1950s and 1960s

    For decades thereafter, however, Arizona’s Indian citizens
often could not exercise that right. The Arizona Supreme
Court’s decision in Harrison v. Laveen did not result in “a
large influx” of new voters because Arizona continued to
deny Indian citizens—as well as Hispanic and African
American citizens—access to the ballot through other means.
Berman at 15.

    The biggest obstacle to voter registration was Arizona’s
English literacy test. In 1948, approximately 80 to 90 percent
of Indian citizens in Arizona did not speak or read English.
Tucker et al., Voting Rights at 285; see also Berman at 15. In
the 1960s, about half the voting-age population of the Navajo
Nation could not pass the English literacy test. Ferguson-
Bohnee at 1112 n.88. For Arizona’s Indian—and Hispanic
and African American—citizens who did speak and read
English, discriminatory administration of the literacy test by
county registrars often prevented them from registering. See,
e.g., Berman, Arizona Politics at 75 (“As recently as the
1960s, registrars applied the test to reduce the ability of
blacks, Indians and Hispanics to register to vote.”).

   Voter intimidation during the 1950s and 60s often
prevented from voting those American Indian, Hispanic, and
African American citizens who had managed to register.
According to Dr. Berman:
                      DNC V. HOBBS                       57

           During the 1960s, it was . . . clear that
       more than the elimination of the literacy
       test in some areas was going to be
       needed to protect minorities. Intimidation
       of minority-group members—Hispanics,
       African Americans, as well as Native
       Americans—who wished to vote was . . . a
       fact of life in Arizona. Anglos sometimes
       challenged minorities at the polls and asked
       them to read and explain “literacy” cards
       containing quotations from the U.S.
       Constitution. These intimidators hoped to
       frighten or embarrass minorities and
       discourage them from standing in line to vote.
       Vote challenges of this nature were
       undertaken by Republican workers in 1962 in
       South Phoenix, a largely minority Hispanic
       and African-American area. . . . [In addition,]
       [p]eople in the non-Native American
       community, hoping to keep Native Americans
       away from the polls, told them that
       involvement could lead to something
       detrimental, such as increased taxation, a loss
       of reservation lands, and an end to their
       special relationship with the federal
       government.

Berman at 14–15.

    Intimidation of minority voters continued throughout the
1960s. For example, in 1964, Arizona Republicans
undertook voter intimidation efforts throughout Arizona “as
part of a national effort by the Republican Party called
‘Operation Eagle Eye.’” 

According to one account:
58                    DNC V. HOBBS

       The approach was simple: to challenge voters,
       especially voters of color, at the polls
       throughout the country on a variety of
       specious pretexts. If the challenge did not
       work outright—that is, if the voter was not
       prevented from casting a ballot (provisional
       ballots were not in widespread use at this
       time)—the challenge would still slow down
       the voting process, create long lines at the
       polls, and likely discourage some voters who
       could not wait or did not want to go through
       the hassle they were seeing other voters
       endure.

Andrea Wang, The Politics of Voter
Suppression: Defending and Expanding Americans’ Right to
Vote 44–45 (Cornell Univ. Press, 2012)).

    Compounding the effects of the literacy test and voter
intimidation, Arizona “cleansed” its voting rolls. In 1970,
Democrat Raul Castro narrowly lost the election for
Governor. (He would win the governorship four years later
to become Arizona’s first and only Hispanic Governor.)
Castro received 90 percent of the Hispanic vote, but he lost
the election because of low Hispanic voter turnout.
Dr. Berman explained:

       [C]ontributing to that low turnout was “a
       decision by the Republican-dominated
       legislature to cleanse the voting rolls and have
       all citizens reregister. This cleansing of the
       rolls erased years of registration drives in
       barrios across the state. It seems certain that
       many Chicanos did not understand that they
                        DNC V. HOBBS                          59

        had to reregister, were confused by this
        development, and simply stayed away from
        the polls.”

(quoting F. Chris Garcia & Rudolph O. de la Garza,
The Chicano Political Experience 105 (Duxbury Press,
1977)).

 (D) Voting Rights Act and Preclearance under Section 5

    Congress passed the Voting Rights Act in 1965. See
Voting Rights Act of 1965, Pub. L. No. 89-110, 79 Stat.
437–446 (codified as amended at 52 U.S.C. §§ 10301–10314,
10501–10508, 10701, 10702). Under Section 4(b) of the Act,
a State or political subdivision qualified as a “covered
jurisdiction” if it satisfied two criteria. 

The first
was that on November 1, 1964—the date of the presidential
election—the State or political subdivision had maintained a
“test or device,” such as a literacy test, restricting the
opportunity to register or vote. The second was either that
(a) on November 1, 1964, less than 50 percent of the voting-
age population in the jurisdiction had been registered to vote,
or (b) less than 50 percent of the voting-age population had
actually voted in the presidential election of 1964. Seven
States qualified as covered jurisdictions under this formula:
Alabama, Alaska, Georgia, Louisiana, Mississippi, South
Carolina, and Virginia. Determination of the Director of the
Census Pursuant to Section 4(b)(2) of the Voting Rights Act
of 1965, 30 Fed. Reg. 9897-02 (Aug. 7, 1965). Political
subdivisions in four additional States—Arizona, Hawai‘i,
Idaho, and North Carolina—also qualified as covered
jurisdictions. See id.; Determination of the Director of the
Census Pursuant to Section 4(b)(2) of the Voting Rights Act
of 1965, 30 Fed. Reg. 14,505-02 (Nov. 19, 1965).
60                      DNC V. HOBBS

    Under Section 4(a) of the VRA, covered jurisdictions
were forbidden for a period of five years from using a “test or
device,” such as a literacy test, as a prerequisite to register to
vote, unless a three-judge district court of the District of
Columbia found that no such test had been used by the
jurisdiction during the preceding five years for the purpose of
denying the right to vote on account of race or color. Voting
Rights Act of 1965, Pub. L. No. 89-110, § 4(a). Under
Section 5, covered jurisdictions were forbidden from
changing “any voting qualification or prerequisite to voting,
or standard, practice, or procedure with respect to voting”
unless the jurisdiction “precleared” that change, by either
obtaining approval (a) from a three-judge district court of the
District of Columbia acknowledging that the proposed change
“neither has the purpose nor will have the effect of denying
or abridging the right to vote on account of race or color,” or
(b) from the Attorney General if a proposed change has been
submitted to DOJ and the Attorney General has not
“interposed an objection” within sixty days of the submission.

    Three counties in Arizona qualified as “covered
jurisdictions” under the 1965 Act: Apache, Coconino, and
Navajo Counties. See Determination of the Director of the
Census Pursuant to Section 4(b)(2) of the Voting Rights Act
of 1965, 30 Fed. Reg. 9897-02, 14,505-02. Those counties
were therefore initially prohibited from using the literacy test
as a prerequisite to voter registration. All three counties were
majority American Indian, and there was a history of high use
of the literacy test and correspondingly low voter turnout.
Berman at 12. However, in 1966, in a suit brought by the
counties against the United States, a three-judge district court
held that there was insufficient proof that a literacy test had
been used by the counties in a discriminatory fashion during
                        DNC V. HOBBS                          61

the immediately preceding five years. See Apache Cty. v.
United States, 

(D.D.C. 1966). The Navajo
Nation had sought to intervene and present evidence of
discrimination in the district court, but its motion to intervene
had been denied. 

    Congress renewed and amended the VRA in 1970,
extending it for another five years. Voting Rights Act of
1970, Pub. L. No. 91-285, 84 Stat. 314 (1970). Under the
VRA of 1970, the formula for determining covered
jurisdictions under Section 4(b) was changed to add the
presidential election of 1968 to the percentage-of-voters
criterion. 

As a result, eight out of fourteen
Arizona counties—including Apache, Navajo, and Coconino
Counties—qualified as covered jurisdictions. Tucker et al.,
Voting Rights at 286. Under the 1970 Act, non-covered
jurisdictions were forbidden from using a “test or device,”
such as a literacy test, to the same degree as covered
jurisdictions. The 1970 Act thus effectively imposed a
nationwide ban on literacy tests. Voting Rights Act of 1970,
Pub. L. No. 91-285, § 201.

   Arizona immediately challenged the ban. In Oregon v.
Mitchell, 

, 132 (1970), the Court unanimously
upheld the ban on literacy tests. Justice Black wrote,

            In enacting the literacy test ban . . . [,]
        Congress had before it a long history of the
        discriminatory use of literacy tests to
        disfranchise voters on account of their
        race. . . . Congress . . . had evidence to show
        that voter registration in areas with large
        Spanish-American populations was
        consistently below the state and national
62                     DNC V. HOBBS

       averages. In Arizona, for example, only two
       counties out of eight with Spanish surname
       populations in excess of 15% showed a voter
       registration equal to the state-wide average.
       Arizona also has a serious problem of
       deficient voter registration among Indians.

Two years after the Court’s decision, Arizona finally repealed
its literacy test. Tucker, Bilingual Ballots, at 21.

    In 1975, Congress again renewed and amended the VRA.
Voting Rights Act of 1975, Pub. L. No. 94-73, 89 Stat. 400
(1975). Under the VRA of 1975, the formula for determining
covered jurisdictions under Section 4(b) was updated to add
the presidential election of 1972. 

In addition,
Congress expanded the definition of “test or device” to
address discrimination against language minority groups. 

(Section 4(f)). Pursuant to this amended formula and
definition, any jurisdiction where a single language minority
group (e.g., Spanish speakers who spoke no other language)
constituted more than 5 percent of eligible voters was subject
to preclearance under Section 5 if (a) the jurisdiction did not
offer bilingual election materials during the 1972 presidential
election, and (b) less than 50 percent of the voting-age
population was registered to vote, or less than 50 percent of
the voting-age population actually voted in the 1972
presidential election. 

    Every jurisdiction in Arizona failed the new test. As a
result, the entire State of Arizona became a covered
jurisdiction. Berman at 20–21.
                       DNC V. HOBBS                         63

   (E) Continued Obstacles to Voting: The Example of
                   Apache County

    The VRA’s elimination of literacy tests increased political
participation by Arizona’s American Indian, Hispanic, and
African American citizens. However, state and county
officials in Arizona continued to discriminate against
minority voters. Apache County, which includes a significant
part of the Navajo Reservation, provides numerous examples
of which we recount only one.

     In 1976, a school district in Apache County sought to
avoid integration by holding a special bond election to build
a new high school in a non-Indian area of the county. See
Apache Cty. High Sch. Dist. No. 90 v. United States, No. 77-
1815 (D.D.C. June 12, 1980); see also Tucker et al., Voting
Rights at 324–26 (discussing the same). Less than a month
before the election, the school district, a “covered
jurisdiction” under the VRA, sought preclearance under
Section 5 for proposed changes in election procedures,
including closure of nearly half the polling stations on the
Navajo Reservation. Letter from J. Stanley Pottinger,
Assistant Attorney Gen., Civil Rights Div., Dep’t of Justice,
to Joe Purcell, Gust, Rosenfeld, Divelbess & Henderson (Oct.
4, 1976). DOJ did not complete its review before the
election. The school district nonetheless held the bond
election using the proposed changes. After the election, DOJ
refused to preclear the proposed changes, finding that they
had a discriminatory purpose or effect. 

letters from Assistant Attorney Gen. Drew S. Days III on
May 3, 1977, and June 10, 1977). The school district brought
suit in a three-judge district court, seeking a declaratory
judgment that the election did not violate the VRA.
64                      DNC V. HOBBS

    The district court found that “[t]he history of Apache
County reveals pervasive and systemic violations of Indian
voting rights.” Apache Cty. High Sch. Dist. No. 90, No. 77-
1815, at 6. The court found that the school district’s behavior
was neither “random[]” nor “unconscious[].” 

“Rather, its campaign behavior served to effectuate the
unwritten but manifest policy of minimizing the effect of the
Navajos’ franchise, while maximizing the Anglo vote.” 

 (F) United States v. Arizona and Preclearance during the
                     1980s and 1990s

    During the following two decades, DOJ refused to
preclear numerous proposed voting changes in Arizona. See,
e.g., Goddard v. Babbitt, 

, 541, 543 (D. Ariz.
1982) (finding that a state legislative redistricting plan passed
by the Arizona state legislature “dilut[ed] the San Carlos
Apache Tribal voting strength and divid[ed] the Apache
community of interest”); see also Tucker et al., Voting Rights
at 326–28 (discussing additional examples). In 1988, the
United States sued Arizona, alleging that the State, as well as
Apache and Navajo Counties, violated the VRA by
employing election standards, practices, and procedures that
denied or abridged the voting rights of Navajo citizens. See
United States v. Arizona, No. 88-1989 (D. Ariz. May 22,
1989) (later amended Sept. 27, 1993); see also Tucker et al.,
Voting Rights at 328–30 (discussing the same). A three-judge
district court summarized the complaint:

        The challenged practices include alleged
        discriminatory voter registration, absentee
        ballot, and voter registration cancellation
        procedures, and the alleged failure of the
                      DNC V. HOBBS                        65

       defendants to implement, as required by
       Section 4(f)(4), effective bilingual election
       procedures, including the effective
       dissemination of election information in
       Navajo and providing for a sufficient number
       of adequately trained bilingual persons to
       serve as translators for Navajo voters needing
       assistance at the polls on election day.

United States v. Arizona, No. 88-1989, at 1–2.

    Arizona and the counties settled the suit under a Consent
Decree. 

The Decree required the defendants to
make extensive changes to their voting practices, including
the creation of a Navajo Language Election Information
Program. See 

More than a decade later, those
changes had not been fully implemented. See U.S. Gov’t
Accountability Office, Department of Justice’s Activities to
Address Past Election-Related Voting Irregularities 91–92
(2004), available at http://www.gao.gov/new.items/d04104
1r.pdf (identifying significant deficiencies and finding that
implementation of the Navajo Language Election Information
Program by Apache and Navajo Counties was “inadequate”).

    During the 1980s and 1990s, DOJ issued seventeen
Section 5 preclearance objections to proposed changes in
Arizona election procedures, concluding that they had the
purpose or effect of discriminating against Arizona’s
American Indian and/or Hispanic voters. See U.S. Dep’t of
Justice, Voting Determination Letters for Arizona,
https://www.justice.gov/crt/voting-determination-letters-
arizona (last updated Aug. 7, 2015). Three of these
objections were for statewide redistricting plans, one in the
1980s and two in the 1990s. 

concerned
66                      DNC V. HOBBS

plans for seven of Arizona’s fifteen counties. 

plans for Apache, Cochise, Coconino, Graham, La Paz,
Navajo, and Yuma Counties).

            (G) Continuation to the Present Day

    Arizona’s pattern of discrimination against minority
voters has continued to the present day.

                  (1) Practices and Policies

    We highlight two examples of continued discriminatory
practices and policies. First, as the district court found, the
manner in which Maricopa County—home to over 60 percent
of Arizona’s population—administers elections has “been of
considerable concern to minorities in recent years.” 

; Berman at 20. During the 2016
presidential primary election, Maricopa County reduced the
number of polling places by 70 percent, from 200 polling
places in 2012 to just 60 polling places in 2016. Berman at
20. The reduction in number, as well as the locations, of the
polling places had a disparate impact on minority voters.
Rodden at 61–68. Hispanic voters were “under-served by
polling places relative to the rest of the metro area,” 

and Hispanic and African American voters were forced to
travel greater distances to reach polling places than white,
non-Hispanic voters. 

The reduction in the
number of polling places “resulted in extremely long lines of
people waiting to vote—some for five hours—and many
people leaving the polls, discouraged from voting by the long
wait.” Berman at 20.

    Second, the district court found that Maricopa County has
repeatedly misrepresented or mistranslated key information
                       DNC V. HOBBS                         67

in Spanish-language voter materials. Reagan, 

at 875 (“Along with the State’s hostility to bilingual
education, Maricopa County has sometimes failed to send
properly translated education[al] materials to its Spanish
speaking residents, resulting in confusion and distrust from
Hispanic voters.”); Berman at 20. In 2012, the official
Spanish-language pamphlet in Maricopa County told
Spanish-speaking voters that the November 6 election would
be held on November 8. Berman at 20. The county did not
make the same mistake in its English-language pamphlet.
Four years later, Spanish-language ballots in Maricopa
County provided an incorrect translation of a ballot
proposition. 

Registration and Turnout

   Voter registration of Arizona’s minority citizens lags
behind that of white citizens. In November 2016, close to
75 percent of white citizens were registered to vote in
Arizona, compared to 57 percent of Hispanic citizens. See
U.S. Census Bureau, Reported Voting and Registration by
Sex, Race, and Hispanic Origin for November 2016, tbl. 4b.

    Arizona has one of the lowest voter turnout rates in the
United States. A 2005 study ranked Arizona forty-seventh
out of the fifty States. See Ariz. State Univ., Morrison Inst.
for Pub. Policy, How Arizona Compares: Real Numbers and
Hot Topics 47 (2005) (relying on Census data); see also
Tucker et al., Voting Rights at 359. In 2012, Arizona ranked
forty-fourth in turnout for that year’s presidential election.
Rodden at 19.

    The turnout rate for minority voters is substantially less
than that for white voters. In 2002, 59.8 percent of registered
68                     DNC V. HOBBS

Hispanic voters turned out for the election, compared to
72.4 percent of total registered voters. Tucker et al., Voting
Rights at 359–60 (relying on Census data). In the 2012
presidential election, 39 percent of Arizona’s Hispanic
voting-age population and 46 percent of Arizona’s African
American voting-age population turned out for the election,
compared to 62 percent of Arizona’s white population.
Rodden at 20–21. The national turnout rate for African
Americans in that election was 66 percent. 

2000
and 2004 presidential elections, turnout of Arizona’s
American Indian voters was approximately 23 percentage
points below the statewide average. Tucker et al., Voting
Rights at 360.

      (H) District Court’s Assessment of Factor One

    The district court recognized Arizona’s history of
discrimination, but minimized its significance. Quoting
Dr. Berman, the court wrote:

           In sum, “[d]iscriminatory action has been
       more pronounced in some periods of state
       history than others . . . [and] each party (not
       just one party) has led the charge in
       discriminating against minorities over the
       years.”     Sometimes, however, partisan
       objectives are the motivating factor in
       decisions to take actions detrimental to the
       voting rights of minorities. “[M]uch of the
       discrimination that has been evidenced may
       well have in fact been the unintended
       consequence of a political culture that simply
       ignores the needs of minorities.” Arizona’s
                       DNC V. HOBBS                          69

       recent history is a mixed bag of advancements
       and discriminatory actions.

(alterations in original).

    The fact that each party in Arizona “has led the charge in
discriminating against minorities” does not diminish the legal
significance of that discrimination. Quite the contrary. That
fact indicates that racial discrimination has long been deeply
embedded in Arizona’s political institutions and that both
parties have discriminated when it has served their purposes.
Further, the “mixed bag of advancements and discriminatory
actions” in “Arizona’s recent history” does not weigh in
Arizona’s favor. As Chief Judge Thomas wrote: “Rather,
despite some advancements, most of which were mandated
by courts or Congress [through Section 5 preclearance],
Arizona’s history is marred by discrimination.” 

(Thomas, C.J., dissenting). The “history of
official discrimination” in Arizona and its political
subdivisions “touch[ing] the right of the members of the
minority group to register, to vote, or otherwise to participate
in the democratic process” is long, substantial, and
unambiguous. 

–37 (quoting S. Rep.
at 28–29).

    The district court clearly erred in minimizing the strength
of this factor in Plaintiffs’ favor.

    ii. Factor Two: Racially Polarized Voting Patterns

    Voting in Arizona is racially polarized. The district court
found, “Arizona has a history of racially polarized voting,
which continues today.” Reagan, 

at 876. In
recent years, the base of the Republican party in Arizona has
70                     DNC V. HOBBS

been white. Putting to one side “landslide” elections, in
statewide general elections from 2004 to 2014, 59 percent of
white Arizonans voted for Republican candidates, compared
with 35 percent of Hispanic voters. The district court found
that in the 2016 general election, exit polls “demonstrate that
voting between non-minorities and Hispanics continues to be
polarized along racial lines.” 

most recent
redistricting cycle, the Arizona Independent Redistricting
Commission “found that at least one congressional district
and five legislative districts clearly exhibited racially
polarized voting.” 

particularly polarized when Hispanic and white
candidates compete for the same office. In twelve non-
landslide district-level elections in 2008 and 2010 between a
Hispanic Democratic candidate and a white Republican
candidate, an average of 84 percent of Hispanics, 77 percent
of American Indians, and 52 percent of African Americans
voted for the Hispanic candidate compared to an average of
only 30 percent of white voters.

    The district court did not clearly err in assessing the
strength of this factor in Plaintiffs’ favor.

         iii. Factor Five: Effects of Discrimination

    It is undisputed that “members of the minority group[s]”
in Arizona “bear the effects of discrimination in such areas as
education, employment and health, which hinder their ability
to participate effectively in the political process.” 

(quoting S. Rep. at 28–29). The district court
found, “Racial disparities between minorities and non-
minorities in socioeconomic standing, income, employment,
education, health, housing, transportation, criminal justice,
                       DNC V. HOBBS                        71

and electoral representation have persisted in Arizona.”
Reagan, 

at 876.

    The district court made factual findings in four key
areas—education, poverty and employment, home ownership,
and health. The district court concluded in each area that the
effects of discrimination “hinder” minorities’ ability to
participate effectively in the political process.

   First, the district court wrote:

       From 1912 until the Supreme Court’s decision
       in Brown v. Board of Education, segregated
       education was widespread throughout Arizona
       and sanctioned by both the courts and the state
       legislature. In fact, the Tucson Public Schools
       only recently reached a consent decree with
       the DOJ over its desegregation plan in 2013.
       The practice of segregation also extended
       beyond schools; it was common place to have
       segregated public spaces such as restaurants,
       swimming pools, and theaters. Even where
       schools were not segregated, Arizona enacted
       restrictions on bilingual education. As
       recently as 2000, Arizona banned bilingual
       education with the passage of Proposition
       203.

           Arizona has a record of failing to provide
       adequate funding to teach its non-English
       speaking students. This underfunding has
       taken place despite multiple court orders
       instructing Arizona to develop an adequate
       funding formula for its programs, including a
72                     DNC V. HOBBS

       2005 order in which Arizona was held in
       contempt of court for refusing to provide
       adequate funding for its educational programs.
       “According to the Education Law Center’s
       latest National Report Card that provided data
       for 2013, Arizona ranked 47th among the
       states in per-student funding for elementary
       and secondary education.”

(internal citations omitted).

    White Arizonans “remain more likely than Hispanics,
Native Americans, and African Americans to graduate from
high school, and are nearly three times more likely to have a
bachelor’s degree than Hispanics and Native Americans.” 

“[I]n a recent survey, over 22.4 percent of Hispanics
and 11.2 percent of Native Americans rated themselves as
speaking English less than ‘very well,’ as compared to only
1.2 percent of non-minorities.” 

court found
that, due to “lower levels of [English] literacy and education,
minority voters are more likely to be unaware of certain
technical [voting] rules, such as the requirement that early
ballots be received by the county recorder, rather than merely
postmarked, by 7:00 p.m. on Election Day.” 

and African Americans in Arizona live
in poverty at nearly two times the rate of whites. American
Indians live in poverty at three times the rate of whites. 

unemployment rates for Hispanics, African
Americans, and Native Americans consistently have
exceeded non-minority unemployment rates for the period of
2010 to 2015.” 

court found that minority
voters are more likely to work multiple jobs, less likely to
own a car, and more likely to lack reliable access to
                       DNC V. HOBBS                         73

transportation, 

all of which make it more difficult
to travel to a polling place—or between an incorrect polling
place and a correct polling place.

    Third, the district court found that “[i]n Arizona,
68.9 percent of non-minorities own a home, whereas only
32.3 percent of African Americans, 49 percent of Hispanics,
and 56.1 percent of Native Americans do so.” 

Lower rates of homeownership and correspondingly higher
rates of renting and residential mobility contribute to higher
rates of OOP voting.

    Fourth, the district court found that “[a]s of 2015,
Hispanics, Native Americans, and African Americans fared
worse than non-minorities on a number of key health
indicators.” 

“Native Americans in particular
have much higher rates of disability than non-minorities, and
Arizona counties with large Native American populations
have much higher rates of residents with ambulatory
disabilities.” 

“For example, ‘17 percent of Native
Americans are disabled in Apache County, 22 percent in
Navajo County, and 30 percent in Coconino County.’” 

percent [of individuals] have ambulatory
difficulties in Apache County, 13 percent in Navajo County,
and 12 percent in Coconino County, all of which contain
significant Native American populations and reservations.’”

original). Witnesses credibly testified that
ambulatory disabilities—both alone and combined with
Arizona’s transportation disparities—make traveling to and
between polling locations difficult.

    The district court did not clearly err in assessing the
strength of this factor in Plaintiffs’ favor.
74                      DNC V. HOBBS

     iv. Factor Six: Racial Appeals in Political Campaigns

    Arizona’s “political campaigns have been characterized
by overt [and] subtle racial appeals” throughout its history.

(quoting S. Rep. at 28–29). The
district court found that “Arizona’s racially polarized voting
has resulted in racial appeals in campaigns.” Reagan, 

at 876.

    For example, when Raul Castro, a Hispanic man,
successfully ran for governor in the 1970s, Castro’s opponent,
a white man, urged voters to support him instead because “he
looked like a governor.” 

same election, a
newspaper published a picture of Fidel Castro with a headline
that read ‘Running for governor of Arizona.’” 

successful 2010 campaign for State Superintendent of Public
Education, John Huppenthal, a white man running against a
Hispanic candidate, ran an advertisement in which the
announcer said that Huppenthal was “one of us,” was
opposed to bilingual education, and would “stop La Raza,” an
influential Hispanic civil rights organization. 

County Attorney Andrew Thomas, a white man,
ran for governor in 2014, he ran an advertisement describing
himself as “the only candidate who has stopped illegal
immigration.” 

“simultaneously
show[ed] a Mexican flag with a red strikeout line through it
superimposed over the outline of Arizona.” 

appeals have been made in the specific context of
legislative efforts to limit ballot collection.” 

court specifically referred to the “racially charged” LaFaro
Video, falsely depicting a Hispanic man, characterized as a
“thug,” “acting to stuff the ballot box.” 

HOBBS                        75

    The district court did not clearly err in assessing the
strength of this factor in Plaintiffs’ favor.

 v. Factor Seven: Number of Minorities in Public Office

    The district court recognized that there has been a racial
disparity in elected officials but minimized its importance.
The court wrote, “Notwithstanding racially polarized voting
and racial appeals, the disparity in the number of minority
elected officials in Arizona has declined.” 

Citing
an expert report by Dr. Donald Critchlow—an expert whose
opinion the court otherwise afforded “little weight,” 

court wrote, “Arizona has been recognized for
improvements in the number of Hispanics and Native
Americans registering and voting, as well as in the overall
representation of minority elected officials,” 

    As recounted above, it is undisputed that American
Indian, Hispanic, and African American citizens are under-
represented in public office in Arizona. Minorities make up
44 percent of Arizona’s total population, but they hold
25 percent of Arizona’s elected offices. 

22 percent of state congressional seats and 9 percent of
judgeships. No American Indian or African American has
ever been elected to represent Arizona in the United States
House of Representatives. Only two minorities have been
elected to statewide office in Arizona since the passage of
the VRA. Arizona has never elected an American Indian
candidate to statewide office. No American Indian, Hispanic,
or African American candidate has ever been elected to serve
as a United States Senator representing Arizona.

   Arizona’s practice of entirely discarding OOP ballots is
especially important in statewide and United States Senate
76                     DNC V. HOBBS

elections. Some votes for local offices may be improperly
cast in an OOP ballot, given that the voter has cast the ballot
in the wrong precinct. But no vote for statewide office or for
the United States Senate is ever improperly cast in an OOP
ballot. Arizona’s practice of wholly discarding OOP ballots
thus has the effect of disproportionately undercounting
minority votes, by a factor of two to one, precisely where the
problem of under-representation in Arizona is most acute.

    The district court clearly erred in minimizing the strength
of this factor in Plaintiffs’ favor.

 vi. Factor Eight: Officials’ Responsiveness to the Needs
                   of Minority Groups

    The district court found that “Plaintiffs’ evidence . . . is
insufficient to establish a lack of responsiveness on the part
of elected officials to particularized needs of minority
groups.” 

of its finding, the court cited the
activity of one organization, the Arizona Citizens Clean
Elections Commission, which “engages in outreach to various
communities, including the Hispanic and Native American
communities, to increase voter participation” and “develops
an annual voter education plan in consultation with elections
officials and stakeholders,” and whose current Chairman is an
enrolled member of the San Carlos Apache Tribe. 

court’s finding ignores extensive undisputed
evidence showing that Arizona has significantly underserved
its minority population. “Arizona was the last state in the
nation to join the Children’s Health Insurance Program,
which may explain, in part, why forty-six states have better
health insurance coverage for children.” 

(Thomas, C.J., dissenting). Further, “Arizona’s public
                       DNC V. HOBBS                          77

schools are drastically underfunded; in fact, in 2016 Arizona
ranked 50th among the states and the District of Columbia in
per pupil spending on public elementary and secondary
education.” 

well-documented evidence that
minorities are likelier to depend on public services[,] . . .
Arizona’s refusal to provide adequate state services
demonstrates its nonresponsiveness to minority needs.” Id.;
cf. Myers v. United States, 

, 1036 (9th Cir.
2011) (holding that the district court clearly erred when it
ignored evidence contradicting its findings).

    Further, the district court’s finding is contradicted
elsewhere in its own opinion. Earlier in its opinion, the court
had written that Arizona has a “political culture that simply
ignores the needs of minorities.” 

(citation omitted).
Later in its opinion, the court referred to “Arizona’s history
of advancing partisan objectives with the unintended
consequence of ignoring minority interests.” 

   The district court clearly erred in finding that this factor
does not weigh in Plaintiffs’s favor.

   vii. Factor Nine: Tenuousness of Justification of the
       Policy Underlying the Challenged Restriction

    The ninth Senate factor is “whether the policy underlying
the state or political subdivision’s use of such voting
qualification, prerequisite to voting, or standard, practice or
procedure is tenuous.” 

(quoting
S. Rep. at 28). The district court found that Arizona’s policy
of entirely discarding OOP ballots is justified by the
importance of Arizona’s precinct-based system of elections.
The court held:
78                      DNC V. HOBBS

            Precinct-based voting helps Arizona
        counties estimate the number of voters who
        may be expected at any particular precinct,
        allows for better allocation of resources and
        personnel, improves orderly administration of
        elections, and reduces wait times. The
        precinct-based system also ensures that each
        voter receives a ballot reflecting only the
        races for which that person is entitled to vote,
        thereby promoting voting for local candidates
        and issues and making ballots less confusing.
        Arizona’s policy to not count OOP ballots is
        one mechanism by which it strictly enforces
        this system to ensure that precinct-based
        counties maximize the system’s benefits.
        This justification is not tenuous.

Reagan, 

at 878.

    The court misunderstood the nature of Plaintiffs’
challenge. Plaintiffs do not challenge Arizona’s precinct-
based system of voting. Indeed, their challenge assumes both
its importance and its continued existence. Rather, their
challenge is to Arizona’s policy, within that system, of
entirely discarding OOP ballots. The question before the
district court was not the justification for Arizona’s precinct-
based system. The question, rather, was the justification for
Arizona’s policy of entirely discarding OOP ballots.

    There is no finding by the district court that would justify,
on any ground, Arizona’s policy of entirely discarding OOP
ballots. There is no finding that counting or partially
counting OOP ballots would threaten the integrity of
Arizona’s precinct-based system. Nor is there a finding that
                        DNC V. HOBBS                           79

Arizona has ever sought to minimize the number of OOP
ballots. The lack of such findings is not surprising given the
extreme disparity between OOP voting in Arizona and such
voting in other states, as well as Arizona’s role in causing
voters to vote OOP by, for example, frequently changing the
location of polling places.

    The only plausible justification for Arizona’s OOP policy
would be the delay and expense entailed in counting OOP
ballots, but in its discussion of the Senate factors, the district
court never mentioned this justification. Indeed, the district
court specifically found that “[c]ounting OOP ballots is
administratively feasible.” 

     Twenty States, including Arizona’s neighboring States of
California, Utah, and New Mexico, count OOP ballots. Id.;
Cal. Elec. Code §§ 14310(a)(3), 14310(c)(3), 15350; Utah
Code Ann. § 20A-4-107(1)(b)(iii), 2(a)(ii), 2(c); N.M. Stat.
Ann § 1-12-25.4(F); N.M. Admin. Code 1.10.22.9(N). The
district court wrote: “Elections administrators in these and
other states have established processes for counting only the
offices for which the OOP voter is eligible to vote.” Reagan,

at 861. “Some states, such as New Mexico,
use a hand tally procedure, whereby a team of elections
workers reviews each OOP ballot, determines the precinct in
which the voter was qualified to vote, and marks on a tally
sheet for that precinct the votes cast for each eligible office.”
Id.; see N.M. Admin Code 1.10.22.9(H)–(N). “Other states,
such as California, use a duplication method, whereby a team
of elections workers reviews each OOP ballot, determines the
precinct in which the voter was qualified to vote, obtains a
new paper ballot for the correct precinct, and duplicates the
votes cast on the OOP ballot onto the ballot for the correct
precinct.” Reagan, 

at 861. “Only the offices
80                      DNC V. HOBBS

that appear on both the OOP ballot and the ballot for the
correct precinct are copied. The duplicated ballot then is
scanned through the optical scan voting machine and
electronically tallied.” 

uses a duplication system, similar to that
used in California, for provisional ballots cast by voters
eligible to vote in federal but not state elections, as well as for
damaged or mismarked ballots that cannot be read by an
optical scanner. 

court briefly discussed the
time that might be required to count or partially count OOP
ballots, but it did not connect its discussion to its
consideration of the Senate factors. The court cited testimony
of a Pima County election official that the county’s
duplication procedure “takes about twenty minutes per
ballot.” 

did not mention that this same official
had stated in his declaration that the procedure instead takes
fifteen minutes per ballot. The court also did not mention
that a California election official had testified that it takes a
very short time to count or partially count the valid votes on
an OOP ballot. That official testified that it takes “several
minutes” in California to confirm the voter’s registration—
which is done for all provisional ballots, in Arizona as well as
in California. Once that is done, the official testified, it takes
one to three minutes to duplicate the ballot.

   The district court clearly erred in finding that this factor
does not weigh in Plaintiffs’ favor.

             viii. Assessment of Senate Factors

    The district court’s “overall assessment” of the Senate
factors was: “In sum, of the germane Senate Factors, the
Court finds that some are present in Arizona and others are
                        DNC V. HOBBS                          81

not.” 

Based on this assessment, the court held that
Plaintiffs had not carried their burden at step two. The
district court clearly erred in so holding. The district court
clearly erred in minimizing the strength in favor of Plaintiffs
of Senate factors one (official history of discrimination) and
seven (number of minorities in public office). Further, the
district court clearly erred in finding that Senate factors eight
(officials’ responsiveness to the needs of minority groups)
and nine (tenuousness of the justification of the policy
underlying the challenged provision) do not favor Plaintiffs.
Plaintiffs have successfully shown that all of the considered
Senate factors weigh in their favor. Most important, plaintiffs
have shown that the most pertinent factors, five and nine,
weigh very strongly in their favor.

                         c. Summary

    We hold that the district court clearly erred in holding that
Plaintiffs’ challenge to Arizona’s OOP policy failed under the
results test. We hold that Plaintiffs have carried their burden
at both steps one and two. First, they have shown that
Arizona’s OOP policy imposes a significant disparate burden
on its American Indian, Hispanic, and African American
citizens, resulting in the “denial or abridgement of the right”
of its citizens to vote “on account of race or color.”
52 U.S.C. § 10301(a). Second, they have shown that, under
the “totality of circumstances,” the discriminatory burden
imposed by the OOP policy is in part caused by or linked to
“social and historical conditions” that have or currently
produce “an inequality in the opportunities enjoyed by
[minority] and white voters to elect their preferred
representatives” and to participate in the political process.

; 52 U.S.C. § 10301(b).
82                     DNC V. HOBBS

    We therefore hold that Arizona’s OOP policy violates the
results test of Section 2 of the Voting Rights Act.

             3. H.B. 2023 and the Results Test

    Uncontested evidence in the district court established that,
prior to the enactment of H.B. 2023, a large and
disproportionate number of minority voters relied on third
parties to collect and deliver their early ballots. Uncontested
evidence also established that, beginning in 2011, Arizona
Republicans made sustained efforts to limit or eliminate
third-party ballot collection. The question is whether the
district court clearly erred in holding that H.B. 2023 does not
violate the “results test” of Section 2.

               a. Step One: Disparate Burden

    The question at step one is whether H.B. 2023 results in
a disparate burden on a protected class. The district court
held that Plaintiffs failed at step one. The district court
clearly erred in so holding.

    Extensive and uncontradicted evidence established that
prior to the enactment of H.B. 2023, third parties collected a
large and disproportionate number of early ballots from
minority voters. Neither the quantity nor the disproportion
was disputed.      Numerous witnesses testified without
contradiction to having personally collected, or to having
personally witnessed the collection of, thousands of early
ballots from minority voters. There is no evidence that white
voters relied to any significant extent on ballot collection by
third parties.
                        DNC V. HOBBS                          83

    The district court recognized the disparity in third-party
ballot collection between minority and white citizens. It
wrote that “[t]he Democratic Party and community advocacy
organizations . . . focused their ballot collection efforts on
low-efficacy voters, who trend disproportionately minority.”

. “In contrast,” the court
wrote, “the Republican Party has not significantly engaged in
ballot collection as a GOTV strategy.” 

court nonetheless held that this evidence was
insufficient to establish a violation at step one. To justify its
holding, the court wrote, “[T]he Court finds that Plaintiffs’
circumstantial and anecdotal evidence is insufficient to
establish a cognizable disparity under § 2.” 

The
court wrote further:

        Considering the vast majority of Arizonans,
        minority and non-minority alike, vote without
        the assistance of third-parties who would not
        fall within H.B. 2023’s exceptions, 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.

    First, the court clearly erred in discounting the evidence
of third-party ballot collection as merely “circumstantial and
anecdotal.” The evidence of third-party ballot collection was
not “circumstantial.” Rather, as recounted above, it was
direct evidence from witnesses who had themselves acted as
third-party ballot collectors, had personally supervised third-
party ballot collection, or had personally witnessed third-
84                      DNC V. HOBBS

party ballot collection by others. Nor was the evidence
merely “anecdotal.”        As recounted above, numerous
witnesses provided consistent and uncontradicted testimony
about third-party ballot collection they had done, supervised,
or witnessed. This evidence established that many thousands
of early ballots were collected from minority voters by third
parties. The court itself found that white voters did not
significantly rely on third-party ballot collection. No better
evidence was required to establish that large and
disproportionate numbers of early ballots were collected from
minority voters.

     Second, the court clearly erred by comparing the number
of early ballots collected from minority voters to the much
greater number of all ballots cast “without the assistance of
third parties,” and then holding that the relatively smaller
number of collected early ballots did not cause a “meaningful
inequality.” 

In so holding, the court repeated the
clear error it made in comparing the number of OOP ballots
to the total number of all ballots cast. Just as for OOP ballots,
the number of ballots collected by third parties from minority
voters surpasses any de minimis number.

   We hold that H.B. 2023 results in a disparate burden on
minority voters, and that the district court clearly erred in
holding otherwise. We accordingly hold that Plaintiffs have
succeeded at step one of the results test.

                b. Step Two: Senate Factors

    The district court did not differentiate between Arizona’s
OOP policy and H.B. 2023 in its discussion of step two.
Much of our analysis of the Senate factors for Arizona’s OOP
policy applies with equal force to the factors for H.B. 2023.
                       DNC V. HOBBS                        85

Again, we regard Senate factors five (the effects of
discrimination in other areas on minorities access to voting)
and nine (the tenuousness of the justification for the
challenged voting practices) as particularly important, given
the nature of Plaintiffs’ challenge to H.B. 2023. We also
regard factor one (history of official discrimination) as
important, as it strongly supports our conclusion under factor
five. Though “not essential,” 

n.15,
the other less important factors provide “helpful background
context.” 

.

   We do not repeat here the entirety of our analysis of
Arizona’s OOP policy. Rather, we incorporate that analysis
by reference and discuss only the manner in which the
analysis is different for H.B. 2023.

     i. Factor One: History of Official Discrimination
                   Connected to Voting

    We recounted above Arizona’s long history of race-based
discrimination in voting. H.B. 2023 grows directly out of that
history. During the Republicans’ 2011 attempt to limit ballot
collection by third parties, Arizona was still subject to
preclearance under Section 5. When DOJ asked for more
information about whether the relatively innocuous ballot-
collection provision of S.B. 1412 had the purpose or would
have the effect of denying minorities the right to vote and
requested more information, Arizona withdrew the
preclearance request. It did so because there was evidence in
the record that the provision intentionally targeted Hispanic
voters. In 2013, public opposition threatened to repeal H.B.
2305 by referendum. If passed, the referendum would have
required that any future bill on the same topic pass the
legislature by a supermajority. Republicans repealed H.B.
86                      DNC V. HOBBS

2305 rather than face a referendum. Finally, after the
Supreme Court’s decision in Shelby County eliminated
preclearance, Arizona enacted H.B. 2023, making third-party
ballot collection a felony. The campaign was marked by
race-based appeals, most prominently in the LaFaro Video
described above.

    As it did with respect to OOP voting, the district court
clearly erred in minimizing the strength of this factor in
Plaintiffs’ favor.

     ii. Factor Two: Racially Polarized Voting Patterns

     H.B. 2023 connects directly to racially polarized voting
patterns in Arizona. The district court found that “H.B. 2023
emerged in the context of racially polarized voting.” 

. Senator Shooter, who introduced the
bill that became S.B. 1412—the predecessor to H.B. 2023—
was motivated by the “high degree of racial polarization in
his district” and introduced the bill following a close, racially
polarized election. 

court did not clearly err in assessing the
strength of this factor in Plaintiffs’ favor.

         iii. Factor Five: Effects of Discrimination

    H.B. 2023 is closely linked to the effects of
discrimination that “hinder” the ability of American Indian,
Hispanic, and African American voters “to participate
effectively in the political process.” 

.
The district court found that American Indian, Hispanic, and
African American Arizonans “are significantly less likely
than non-minorities to own a vehicle, more likely to rely upon
                       DNC V. HOBBS                          87

public transportation, more likely to have inflexible work
schedules, and more likely to rely on income from hourly
wage jobs.” Reagan, 

at 869. In addition,
“[r]eady access to reliable and secure mail service is
nonexistent in some minority communities.” 

in rural communities disproportionately lack access to
outgoing mail, while minority voters in urban communities
frequently encounter unsecure mailboxes and mail theft. 

of discrimination hinder American Indian,
Hispanic, and African American voters’ ability to return early
ballots without the assistance of third-party ballot collection.

    The district court did not clearly err in assessing the
strength of this factor in Plaintiffs’ favor.

   iv. Factor Six: Racial Appeals in Political Campaigns

    The enactment of H.B. 2023 was the direct result of racial
appeals in a political campaign. The district court found that
“racial appeals [were] made in the specific context of
legislative efforts to limit ballot collection.” 

Proponents of H.B. 2023 relied on “overt or subtle racial
appeals,” 

, in advocating for H.B.
2023, including the “racially tinged” LaFaro Video, Reagan,

at 876–77 (characterizing the LaFaro Video
as one of the primary motivators for H.B. 2023). The district
court concluded, “[Senator] Shooter’s allegations and the
LaFaro video were successful in convincing H.B. 2023’s
proponents that ballot collection presented opportunities for
fraud that did not exist for in-person voting.” 

.

    The district court did not clearly err in assessing the
strength of this factor in Plaintiff’s favor.
88                     DNC V. HOBBS

 v. Factor Seven: Number of Minorities in Public Office

    Because Arizona’s OOP policy had a particular
connection to the election of minorities to statewide office
and to the United States Senate, we concluded that the factor
of minorities in public office favored Plaintiffs. That
particular connection to statewide office does not exist
between H.B. 2023 and election of minorities. However,
H.B. 2023 is likely to have a pronounced effect in rural
counties with significant American Indian and Hispanic
populations who disproportionately lack reliable mail and
transportation services, and where a smaller number of votes
can have a significant impact on election outcomes. In those
counties, there is likely to be a particular connection to
election of American Indian and Hispanic candidates to
public office.

    As it did with respect to OOP voting, the district court
clearly erred in minimizing the strength of this factor in
Plaintiffs’ favor.

 vi. Factor Eight: Officials’ Responsiveness to the Needs
                   of Minority Groups

    The district court found that “Plaintiffs’ evidence . . . is
insufficient to establish a lack of responsiveness on the part
of elected officials to particularized needs of minority
groups.” 

As discussed above, this finding ignores
extensive evidence to the contrary and is contradicted by the
court’s statements elsewhere in its opinion.

   The district court clearly erred in finding that this factor
does not weigh in Plaintiffs’ favor.
                       DNC V. HOBBS                         89

   vii. Factor Nine: Tenuousness of Justification of the
       Policy Underlying the Challenged Restriction

    The district court relied on two justifications for H.B.
2023: That H.B. 2023 is aimed at preventing ballot fraud “by
creating a chain of custody for early ballots and minimizing
the opportunities for ballot tampering, loss, and destruction”;
and that H.B. 2023 is aimed at improving and maintaining
“public confidence in election integrity.” 

We
address these justifications in turn.

    First, third-party ballot collection was permitted for many
years in Arizona before the passage of H.B. 2023. No one
has ever found a case of voter fraud connected to third-party
ballot collection in Arizona. This has not been for want of
trying. The district court described the Republicans’
unsuccessful attempts to find instances of fraud:

           The Republican National Lawyers
       Association (“RNLA”) performed a study
       dedicated to uncovering cases of voter fraud
       between 2000 and 2011. The study found no
       evidence of ballot collection or delivery fraud,
       nor did a follow-up study through May 2015.
       Although the RNLA reported instances of
       absentee ballot fraud, none were tied to ballot
       collection and delivery.        Likewise, the
       Arizona Republic conducted a study of voter
       fraud in Maricopa County and determined
       that, out of millions of ballots cast in
       Maricopa County from 2005 to 2013, a total
       of 34 cases of fraud were prosecuted. Of
       these, 18 involved a felon voting without her
       rights first being restored. Fourteen involved
90                      DNC V. HOBBS

        non-Arizona citizens voting. The study
        uncovered no cases of fraud perpetrated
        through ballot collection.

(internal citations omitted).

    The district court wrote, “[T]here has never been a case
of voter fraud associated with ballot collection charged in
Arizona.” 

“No specific, concrete example of
voter fraud perpetrated through ballot collection was
presented by or to the Arizona legislature during the debates
on H.B. 2023 or its predecessor bills.” 

“No
Arizona county produced evidence of confirmed ballot
collection fraud in response to subpoenas issued in this case,
nor has the Attorney General’s Office produced such
information.” 

.

    Ballot-collection-related fraud was already criminalized
under Arizona law when H.B. 2023 was enacted. Collecting
and failing to turn in someone else’s ballot was already a
class 5 felony. Ariz. Rev. Stat. § 16-1005(F). Marking
someone else’s ballot was already a class 5 felony. 

1005(A). Selling one’s own ballot, possessing someone
else’s ballot with the intent to sell it, knowingly soliciting the
collection of ballots by misrepresenting one’s self as an
election official, and knowingly misrepresenting the location
of a ballot drop-off site were already class 5 felonies. 

1005(B)–(E). These criminal prohibitions are still in
effect. Arizona also takes measures to ensure the security of
early ballots, such as using “tamper evident envelopes and a
rigorous voter signature verification procedure.” 

.
                       DNC V. HOBBS                          91

    The history of H.B. 2023 shows that its proponents had
other aims in mind than combating fraud. H.B. 2023 does not
forbid fraudulent third-party ballot collection. It forbids non-
fraudulent third-party ballot collection. To borrow an
understated phrase, the anti-fraud rationale advanced in
support of H.B. 2023 “seems to have been contrived.” Dep’t
of Commerce v. New York, 

, 2575 (2019).

    Second, we recognize the importance of public
confidence in election integrity. We are aware that the
federal bipartisan Commission on Federal Election Reform,
charged with building public confidence, recommended inter
alia that States “reduce the risks of fraud and abuse in
absentee voting by prohibiting ‘third-party’ organizations,
candidates, and political party activists from handling
absentee ballots.” Building Confidence in U.S. Elections
§ 5.2 (Sept. 2005). We are aware of the recent case of voter
fraud in North Carolina involving collection and forgery of
absentee ballots by a political operative hired by a Republican
candidate. And we are aware that supporters of H.B. 2023
and its predecessor bills sought to convince Arizona voters,
using false allegations and racial innuendo, that third-party
ballot collectors in Arizona have engaged in fraud.

    Without in the least discounting either the common sense
of the bipartisan commission’s recommendation or the
importance of public confidence in the integrity of elections,
we emphasize, first, that the Supreme Court has instructed us
in Section 2 cases to make an “intensely local appraisal.”

. The third-party ballot collection
fraud case in North Carolina has little bearing on the case
before us. We are concerned with Arizona, where third-party
ballot collection has had a long and honorable history, and
where the acts alleged in the criminal indictment in North
92                     DNC V. HOBBS

Carolina were illegal under Arizona law before the passage
of H.B. 2023, and would still be illegal if H.B. 2023 were no
longer the law.

    We emphasize, further, that if some Arizonans today
distrust third-party ballot collection, it is because of the
fraudulent campaign mounted by proponents of H.B. 2023.
Those proponents made strenuous efforts to persuade
Arizonans that third-party ballot collectors have engaged in
election fraud. To the degree that there has been any fraud,
it has been the false and race-based claims of the proponents
of H.B. 2023. It would be perverse if those proponents, who
used false statements and race-based innuendo to create
distrust, could now use that very distrust to further their aims
in this litigation.

    The district court clearly erred in finding that this factor
does not weigh in Plaintiffs’ favor. This factor either weighs
in Plaintiffs’ favor or is, at best, neutral.

                      viii. Assessment

    The district court made the same overall assessment of the
Senate factors in addressing H.B. 2023 as in addressing
Arizona’s policy of discarding OOP ballots. As it did with
respect to OOP ballots, the court concluded that Plaintiffs had
not carried their burden at step two. Here, too, the district
court’s conclusion was clearly erroneous. Contrary to the
court’s conclusion, Plaintiffs have successfully shown that six
of the Senate factors weigh in their favor and that the
remaining factor weighs in their favor or is neutral.
                        DNC V. HOBBS                          93

                         c. Summary

    We hold that the district court clearly erred in holding that
Plaintiffs’ challenge to H.B. 2023 failed under the results test.
 We hold that Plaintiffs have carried their burden at both steps
one and two. First, they have shown that H.B. 2023 imposes
a disparate burden on American Indian, Hispanic, and African
American citizens, resulting in the “denial or abridgement of
the right” of its citizens to vote “on account of race or color.”
52 U.S.C. § 10301(a). Second, they have shown that, under
the “totality of circumstances,” the discriminatory burden
imposed by H.B. 2023 is in part caused by or linked to “social
and historical conditions” that have or currently produce “an
inequality in the opportunities enjoyed by [minority] and
white voters to elect their preferred representatives” and to
participate in the political process. 

;
52 U.S.C. § 10301(b).

    We therefore conclude that H.B. 2023 violates the results
test of Section 2 of the Voting Rights Act.

                  B. Intent Test: H.B. 2023

    As indicated above, uncontested evidence in the district
court established that before enactment of H.B. 2023, a large
and disproportionate number of minority voters relied on
third parties to collect and deliver their early ballots.
Uncontested evidence also established that, beginning in
2011, Arizona Republicans made sustained efforts to outlaw
third-party ballot collection. After a racially charged
campaign, they finally succeeded in passing H.B. 2023. The
question is whether the district court clearly erred in holding
that H.B. 2023 does not violate the “intent test” of Section 2.
94                     DNC V. HOBBS

                     1. The Intent Test

    Village of Arlington Heights v. Metropolitan Housing
Development Corp., 

(1977), provides the
framework for analyzing a claim of intentional discrimination
under Section 2. See, e.g., N.C. State Conference of NAACP
v. McCrory, 

, 220–21 (4th Cir. 2016). Under
Arlington Heights, Plaintiffs have an initial burden of
providing “[p]roof of racially discriminatory intent or
purpose.” Arlington 

. Plaintiffs need
not show that discriminatory purpose was the “sole[]” or even
a “primary” motive for the legislation. 

need only show that discriminatory purpose was “a
motivating factor.” 

(emphasis added).

    “Determining whether invidious discriminatory purpose
was a motivating factor demands a sensitive inquiry into such
circumstantial and direct evidence of intent as may be
available.” 

“[D]iscriminatory purpose may often
be inferred from the totality of the relevant facts, including
the fact, if it is true, that the law bears more heavily on one
race than another.” Washington v. Davis, 

, 242
(1976). Because “[o]utright admissions of impermissible
racial motivation are infrequent[,] . . . plaintiffs often must
rely upon other evidence,” including the broader context
surrounding passage of the legislation. Hunt v. Cromartie,

, 553 (1999). “In a vote denial case such as the
one here, where the plaintiffs allege that the legislature
imposed barriers to minority voting, this holistic approach is
particularly important, for ‘[d]iscrimination today is more
subtle than the visible methods used in 1965.’” N.C. State
Conference of 

(quoting H.R. Rep.
No. 109–478, at 6 (2006)).
                        DNC V. HOBBS                          95

    Arlington Heights provided a non-exhaustive list of
factors that a court should consider. Arlington 

. The factors include (1) the historical
background; (2) the sequence of events leading to enactment,
including any substantive or procedural departures from the
normal legislative process; (3) the relevant legislative history;
and (4) whether the law has a disparate impact on a particular
racial group. 

    “Once racial discrimination is shown to have been a
‘substantial’ or ‘motivating’ factor behind enactment of the
law, the burden shifts to the law’s defenders to demonstrate
that the law would have been enacted without this factor.”
Hunter v. Underwood, 

, 228 (1985). In
determining whether a defendant’s burden has been carried,
“courts must scrutinize the legislature’s actual non-racial
motivations to determine whether they alone can justify the
legislature’s choices.” N.C. State Conference of 

(emphases in original) (citing Mt. Healthy
City Sch. Dist. Bd. of Educ. v. Doyle, 

, 287
(1977); Miss. Univ. for Women v. Hogan, 

, 728
(1982)). “In the context of a § 2 discriminatory intent
analysis, one of the critical background facts of which a court
must take notice is whether voting is racially polarized.” 

a particular race’s access to the
franchise because its members vote for a particular party, in
a predictable manner, constitutes discriminatory purpose.”

96                     DNC V. HOBBS

              2. H.B. 2023 and the Intent Test

 a. Arlington Heights Factors and Initial Burden of Proof

    The district court wrote, “Having considered [the
Arlington Heights] factors, the Court finds that H.B. 2023
was not enacted with a racially discriminatory purpose.”

. The court then went on to
discuss each of the four factors, but did not attach any
particular weight to any of them. In holding that the
Plaintiffs had not shown that discriminatory purpose was “a
motivating factor,” the district court clearly erred.

     We address the Arlington Heights factors in turn.

                  i. Historical Background

    “A historical pattern of laws producing discriminatory
results provides important context for determining whether
the same decisionmaking body has also enacted a law with
discriminatory purpose.” N.C. State Conference of 

–24; see Arlington 

(“The historical background of the decision is one evidentiary
source, particularly if it reveals a series of official actions
taken for invidious purposes.”). As recounted above, the
Arizona legislature has a long history of race-based
discrimination, disenfranchisement, and voter suppression,
dating back to Arizona’s territorial days. Further, the history
of H.B. 2023 itself reveals invidious purposes.

    In addressing the “historical background” factor, the
district court mentioned briefly the various legislative efforts
to restrict third-party ballot collection that had been
“spearheaded” by Senator Shooter, described briefly
                       DNC V. HOBBS                        97

Senator Shooter’s allegations of third-party ballot fraud, and
alluded to the “racially-tinged” LaFaro Video. 

–80. But the district court discounted their
importance. We discuss the court’s analysis below, under the
third Arlington Heights factor.

       ii. Sequence of Events Leading to Enactment

    “The specific sequence of events leading up to the
challenged decision . . . may shed some light on the
decisionmaker’s purposes.” Arlington 

. We recounted above the sequence of events leading
to the enactment of H.B. 2023. The district court
acknowledged this history but again discounted its
importance. We discuss the court’s analysis below, under the
third Arlington Heights factor.

              iii. Relevant Legislative History

    “The legislative . . . history may be highly relevant,
especially where there are contemporary statements by
members of the decisionmaking body[.]” 

The
district court found that legislators voted for H.B. 2023 in
response to the “unfounded and often farfetched allegations
of ballot collection fraud” made by former Senator Shooter,
and the “racially-tinged LaFaro Video.” 

. As Chief Judge Thomas wrote: “Because
there was ‘no direct evidence of ballot collection fraud . . .
presented to the legislature or at trial,’ the district court
understood that Shooter’s allegations and the LaFaro Video
were the reasons the bill passed.” 

(Thomas, C.J., dissenting) (quoting 

) (emphasis in original).
98                     DNC V. HOBBS

    Senator Shooter was one of the major proponents of the
efforts to limit third-party ballot collection and was
influential in the passage of H.B. 2023. Reagan, 

at 879. According to the district court, Senator Shooter
made “demonstrably false” allegations of ballot collection
fraud. 

. Senator Shooter’s efforts to limit ballot
collection were motivated in substantial part by the “high
degree of racial polarization in his district.” 

He
was “motivated by a desire to eliminate” the increasingly
effective efforts to ensure that Hispanic votes in his district
were collected, delivered, and counted. 

Video provides even stronger evidence of
racial motivation. Maricopa County Republican Chair
LaFaro produced a video showing “a man of apparent
Hispanic heritage”—a volunteer with a get-out-the-vote
organization—apparently dropping off ballots at a polling
place. 

LaFaro’s voice-over narration included
unfounded statements, 

“that the man was acting to
stuff the ballot box” and that LaFaro “knew that he was a
thug,” 

The video was widely distributed. It was
“shown at Republican district meetings,” “posted on
Facebook and YouTube,” and “incorporated into a television
advertisement.” 

     The district court used the same rationale to discount the
importance of all of the first three Arlington Heights factors.
It pointed to the “sincere belief,” held by some legislators,
that fraud in third-party ballot collection was a problem that
needed to be addressed. The district court did so even though
it recognized that the belief was based on the false and race-
based allegations of fraud by Senator Shooter and other
proponents of H.B. 2023. The court wrote: “Shooter’s
allegations and the LaFaro Video were successful in
                       DNC V. HOBBS                        99

convincing H.B. 2023’s proponents that ballot collection
presented opportunities for fraud that did not exist for in-
person voting[.]” 

.

    We accept the district court’s conclusion that some
members of the legislature who voted for H.B. 2023 had a
sincere, though mistaken, non-race-based belief that there had
been fraud in third-party ballot collection, and that the
problem needed to be addressed. However, as the district
court found, that sincere belief had been fraudulently created
by Senator Shooter’s false allegations and the “racially-
tinged” LaFaro video. Even though some legislators did not
themselves have a discriminatory purpose, that purpose may
be attributable to their action under the familiar “cat’s paw”
doctrine. The doctrine is based on the fable, often attributed
to Aesop, in which a clever monkey induces a cat to use its
paws to take chestnuts off of hot coals for the benefit of the
monkey.

   For example, we wrote in Mayes v. Winco Holdings, Inc.,

(9th Cir. 2017):

       [T]he animus of a supervisor can affect an
       employment decision if the supervisor
       “influenced or participated in the
       decisionmaking process.” Dominguez-Curry
       [v. Nev. Transp. Dep’t], 424 F.3d [1027,]
       1039–40 [(9th Cir. 2017)]. Even if the
       supervisor does not participate in the ultimate
       termination decision, a “supervisor’s biased
       report may remain a causal factor if the
       independent investigation takes it into account
       without determining that the adverse action
       was, apart from the supervisor’s
100                    DNC V. HOBBS

        recommendation, entirely justified.” Staub v.
        Proctor Hosp., 

, 421 (2011).

see also Poland v. Chertoff , 

, 1182
(9th Cir. 2007) (“[I]f a subordinate . . . sets in motion a
proceeding by an independent decisionmaker that leads to an
adverse employment action, the subordinate’s bias is imputed
to the employer if the plaintiff can prove that the allegedly
independent adverse employment decision was not actually
independent because the biased subordinate influenced or was
involved in the decision or decisionmaking process.”).

    The good-faith belief of these sincere legislators does not
show a lack of discriminatory intent behind H.B. 2023.
Rather, it shows that well meaning legislators were used as
“cat’s paws.” Convinced by the false and race-based
allegations of fraud, they were used to serve the
discriminatory purposes of Senator Shooter, Republican
Chair LaFaro, and their allies.

    We hold that the district court clearly erred in discounting
the importance of the first three Arlington Heights factors.
We hold that all three factors weigh in favor of showing that
discriminatory intent was a motivating factor in enacting H.B.
2023.

      iv. Disparate Impact on a Particular Racial Group

    “The impact of the official action[,] whether it ‘bears
more heavily on one race than another,’ may provide an
important starting point. Sometimes a clear pattern,
unexplainable on grounds other than race, emerges from the
effect of the state action even when the governing legislation
appears neutral on its face.” Arlington Heights, 429 U.S.
                        DNC V. HOBBS                         101

at 266 (internal citation omitted). As described above,
uncontested evidence shows that H.B. 2023 has an adverse
and disparate impact on American Indian, Hispanic, and
African American voters. The district court found that the
legislature “was aware” of the impact of H.B. 2023 on what
the court called “low-efficacy minority communities.”

.

    It appears that the district court weighed this factor in
favor of showing discriminatory intent as a motivating factor
in enacting H.B. 2023. The court did not clearly err in so
doing.

                        v. Assessment

     We hold that the district court clearly erred in holding that
Plaintiffs failed to carry their initial burden of proof of
showing that racial discrimination was a motivating factor
leading to the enactment of H.B. 2023. We hold that all four
of the Arlington Heights factors weigh in favor of Plaintiffs.
Our holding does not mean that the majority of the Arizona
state legislature “harbored racial hatred or animosity toward
any minority group.” N.C. State Conference of 

. “But the totality of the circumstances”—
Arizona’s long history of race-based voting discrimination;
the Arizona legislature’s unsuccessful efforts to enact less
restrictive versions of the same law when preclearance was a
threat; the false, race-based claims of ballot collection fraud
used to convince Arizona legislators to pass H.B. 2023; the
substantial increase in American Indian and Hispanic voting
attributable to ballot collection that was targeted by H.B.
2023; and the degree of racially polarized voting in
Arizona—“cumulatively and unmistakably reveal” that
102                     DNC V. HOBBS

racial discrimination was a motivating factor in enacting
H.B. 2023. 

H.B. 2023 Otherwise Have Been Enacted

    At the second step of the Arlington Heights analysis,
Arizona has the burden of showing that H.B. 2023 would
have been enacted without racial discrimination as a
motivating factor. Because the district court held that
Plaintiffs had not carried their initial burden, it did not reach
the second step of the Arlington Heights analysis.

    Although there is no holding of the district court directed
to Arlington Heights’ second step, the court made a factual
finding that H.B. 2023 would not have been enacted without
racial discrimination as a motivating factor. The court
specifically found that H.B. 2023 would not have been
enacted without Senator Shooter’s and LaFaro’s false and
race-based allegations of voter fraud. The court wrote, “The
legislature was motivated by a misinformed belief that ballot
collection fraud was occurring, but a sincere belief that mail-
in ballots lacked adequate prophylactic safeguards as
compared to in-person voting.” Reagan, 

at
882. That is, members of the legislature, based on the
“misinformed belief” created by Shooter, LaFaro, and their
allies and serving as their “cat’s paws,” voted to enact H.B.
2023. See 

. Based on the court’s
finding, we hold that Arizona has not carried its burden of
showing that H.B. 2023 would have been enacted without the
motivating factor of racial discrimination.
                        DNC V. HOBBS                        103

                         c. Summary

    We hold that the district court clearly erred in holding that
Plaintiffs failed to establish that H.B. 2023 violates the intent
test of Section 2 of the VRA. A holding that H.B. 2023
violates the intent test of Section 2 necessarily entails a
holding that it also violates the Fifteenth Amendment.

                  III. Response to Dissents

    We respectfully disagree with our dissenting colleagues.
For the most part, our response to their contentions is
contained in the body of our opinion and needs no
elaboration. Several contentions, however, merit a specific
response.

              A. Response to the First Dissent

   Our first dissenting colleague, Judge O’Scannlain, makes
several mistakes.

    First, our colleague contends that H.B. 2023 does not
significantly change Arizona law. Our colleague writes:

        For years, Arizona has restricted who may
        handle early ballots. Since 1992, Arizona has
        prohibited anyone but the elector himself
        from possessing “that elector’s unvoted
        absentee ballot.” 1991 Ariz. Legis. Serv. Ch.
        310, § 22 (S.B. 1390) (West). In 2016,
        Arizona enacted a parallel regulation, H.B.
104                    DNC V. HOBBS

       2023 (the “ballot-collection” policy),
       concerning the collection of early ballots.

Diss. Op. at 116–117 (emphases added).

    Our colleague appends a footnote to the first sentence in
the passage just quoted:

       The majority’s effort to deny history can
       easily be dismissed. Maj. Op. 104–105. As
       Judge Bybee’s dissent ably recounts, not only
       Arizona but 21 other states have restricted
       early balloting for years. Bybee, J. Diss. Op.
       157–158.

    Our colleague fails to recognize the distinction between
“unvoted” and “voted” ballots. Contrary to our colleague’s
contention, H.B. 2023 is not “a parallel regulation” to already
existing Arizona law. Under prior Arizona law, possession of
an “unvoted absentee ballot” was forbidden. Arizona law in
no way restricted non-fraudulent possession of voted absentee
ballots (absentee ballots on which the vote had already been
indicated). Unlike our colleague, the district court recognized
the distinction. It wrote:

           Since 1997, it has been the law in Arizona
       that “[o]nly the elector may be in possession
       of that elector’s unvoted early ballot.” A.R.S.
       § 16-542(D). In 2016, Arizona amended
       A.R.S. § 16-1005 by enacting H.B. 2023,
                       DNC V. HOBBS                        105

       which limits who may collect a voter’s voted
       or unvoted early ballot.

(emphases added). H.B.
2023 for the first time forbade non-fraudulent collection of
voted ballots. It was not a “parallel regulation.” It was a
fundamental change in Arizona law.

    Second, our colleague repeats the potentially misleading
numbers and percentages of OOP voting recounted by the
district court. Our colleague writes:

       Only 0.47 percent of all ballots cast in the
       2012 general election (10,979 out of
       2,323,579) were not counted because they
       were cast out of the voter’s assigned precinct.
       [Reagan, 

] at 872. In 2016,
       this fell to 0.15 percent (3,970 out of
       2,661,497). 

at 122–123. Our colleague, like the district court,
see 

, fails to mention that, as
a percentage of all in-person ballots, OOP ballots increased
between 2012 and 2016.

    Third, our colleague quotes from a sentence in a footnote
in the Supreme Court’s opinion in Gingles. Based on that
sentence, he insists that “substantial difficulty electing
representatives of their choice” is the governing standard for
the Section 2 results test in the case before us. Our colleague
writes:

       [In Gingles], the Court observed that “[i]t is
       obvious that unless minority group members
106                    DNC V. HOBBS

       experience substantial difficulty electing
       representatives of their choice, they cannot
       prove that a challenged electoral mechanism
       impairs their ability ‘to elect.’” 

n.15 (quoting 52 U.S.C.
       § 10301(b)) (emphasis added).

Diss. Op. at 124 (emphasis in original). He later writes:

       Given the lack of any testimony in the record
       indicating that the ballot-collection policy
       would result in minority voters
       ‘experienc[ing] substantial difficulty electing
       representatives of their choice,’ 

n.15, the district court did not
       clearly err[.]

(emphasis added).

     Our colleague fails to distinguish between a vote dilution
case and a vote denial case. As we noted above, a vote
dilution case is one in which multimember electoral districts
have been formed, or in which district lines have been drawn,
so as to dilute and thereby diminish the effectiveness of
minority votes. Vote denial cases are all other cases,
including cases in which voters are prevented from voting or
in which votes are not counted. Gingles was a vote dilution
case, and the case before us is a vote denial case. Our
colleague fails to quote the immediately preceding sentence
in the Gingles footnote, which makes clear that the Court was
addressing vote dilution cases. The Court wrote, “In
recognizing that some Senate Report factors are more
important to multimember district vote dilution claims than
                       DNC V. HOBBS                        107

others, the Court effectuates the intent of Congress.” 

n.15 (emphasis added).

    The standard in a vote denial case is different, as
recognized by DOJ in its amicus brief in this case, and in
League of Women Voters where the Fourth Circuit struck
down a state statute that would have prevented the counting
of OOP ballots in North Carolina without inquiring into
whether the number of affected ballots was likely to affect
election outcomes. 

–49. As we noted
above, there may be a de minimis number in vote denial cases
challenging facially neutral policies or law, but the 3,709
OOP ballots in our case is above any such de minimis
number.

    Citing our en banc decision in Gonzalez, our colleague
contends that our case law does not differentiate between vote
denial and vote dilution cases. But the very language from
Gonzalez that he quotes belies his contention. We wrote in
text:

       [A] § 2 challenge “based purely on a showing
       of some relevant statistical disparity between
       minorities and whites,” without any evidence
       that the challenged voting qualification causes
       that disparity, will be rejected.

. We then appended a footnote,
upon which our colleague relies:

       This approach applies both to claims of vote
       denial and of vote dilution. [Smith v. Salt
       River Project Agric. Improvement & Power
108                     DNC V. HOBBS

        Dist., 

,] 596 n.8 [(9th Cir.
        1997)].

n.32. The quoted language makes the obvious
point that in both vote denial and vote dilution cases, we
require evidence of a causal relation between a challenged
voting qualification and any claimed statistical disparity
between minority and white voters. However, this language
does not tell us that the predicate disparity, and its effect, are
the same in vote denial and vote dilution cases.

             B. Response to the Second Dissent

    Our second dissenting colleague, Judge Bybee, writes “to
make a simple point: The Arizona rules challenged here are
part of an ‘electoral process that is necessarily structured to
maintain the integrity of the democratic system.’” Diss. Op.
at 142 (quoting Burdick v. Takushi, 

, 441
(1992)). We respectfully disagree. There is nothing in
Arizona’s policy of discarding OOP votes or about H.B. 2023
that is necessary “to maintain the integrity” of Arizona’s
democratic system.

   Our colleague writes, further, “Parties of all stripes should
have an equal interest in rules that are both fair on their face
and fairly administered.” 

Our colleague
misunderstands the purpose of the VRA’s results test of
Section 2. The results test looks past the facial fairness of a
law to its actual results.

    We take these two points in turn.
                       DNC V. HOBBS                        109

        1. Integrity of Arizona’s Democratic System

    First, our colleague uses his “simple point” to justify
Arizona’s OOP policy and H.B. 2023 on the ground that they
are necessary to protect the integrity of Arizona’s system.

    Our colleague argues that eliminating Arizona’s OOP
policy will “lower[] the cost to voters of determining where
they are supposed to vote, but only as to presidential, U.S.
Senate, and statewide races,” and will have “its own
consequences.” 

153. To illustrate those
consequences, our colleague imagines a voter from Tuscon
who votes in Phoenix. Based on his imagined voter, he posits
“two predictable ways” in which future elections in Arizona
will be “skew[ed]” if OOP votes are counted for the elections
in which the voter is entitled to vote. 

Because his
imagined voter cares only about national elections, that voter
“may vote with impunity in the wrong precinct.” 

This will result, first, in “overvalu[ing]” national elections,
and, second, in “undervalu[ing]” local elections. 

speculates that Arizona’s OOP policy will
result in voters either finding the right precinct, or voting by
mail. He writes:

       Under Arizona’s current OOP rule, a voter,
       having gone to the trouble of going to a
       precinct to vote in person and suffering the
       indignity of having to fill out a provisional
       ballot, is less likely to make the same mistake
       next year. A voter who has had a ballot
       disqualified is more likely to figure out the
       correct precinct next time—or, better yet, sign
       up for the convenience of early voting, a
110                    DNC V. HOBBS

        measure that avoids the conundrum of OOP
        altogether.

    Our colleague’s speculation leads him to predict that
Arizona’s OOP policy will lead to increased in-precinct
voting. There is nothing in the record that remotely supports
our colleague’s predicted consequences. Instead, the record
clearly shows the opposite. Arizona’s OOP policy has been
in place since at least 1970. 

.
The record shows that, despite its long-standing policy,
Arizona has consistently had by far the highest rate of OOP
voting of any State—in 2012, eleven times greater than the
second-place State. See Figure 6, supra at 13; see also
Rodden at 26 (describing OOP voting as a “persistent
problem” in Arizona).

    Contrary to our colleague’s speculation, OOP voters are
unlikely ever to discover the “indignity” of having their
provisional ballots discarded. Our colleague quotes from an
Arizona statute requiring county recorders to establish a
“method” by which a voter casting a provisional ballot be
notified that his or ballot was not counted, and giving a
reason why it was not counted. Diss. Op. at 155 n.9.
However, there is nothing in the record showing that county
recorders have in fact established, or followed, such a
“method.” Instead, there was uncontradicted testimony in the
district court by OOP voters that they were not directed to
their proper polling place and were never told that their vote
would not be counted if cast out of precinct. See 

(finding that poll workers neither
directed OOP voters to the correct precinct nor told voters
that OOP ballots would be discarded).
                       DNC V. HOBBS                        111

    The persistence of OOP voting is unsurprising given the
actions of Arizona. Arizona changes polling places with
extraordinary frequency, and often locates them in
inconvenient and misleading places. This produces a high
rate of OOP voting, particularly in urban areas and
particularly for voters with high rates of residential mobility.
The uncontested result is that minority voters cast OOP votes
twice as often as white voters.

    Our colleague further argues that H.B. 2023 is an
appropriate measure to protect against voter fraud. He begins
by pointing out that many States forbid third-party ballot
collection. Diss. Op. at 158–160. But a simple numerical
comparison with other states fails to take into account, as the
VRA says we must, the particular geography, ethnic patterns,
and long history of third-party ballot collection in Arizona.
See 

(a Section 2 analysis requires “a
blend of history and an intensely local appraisal”). Evidence
in the record shows that third-party ballot collection has long
had a unique role in Arizona, given the large numbers of
Hispanic and American Indian voters who have unreliable or
non-existent in-home mail service, who have unreliable
means of transportation, who live long distances from polling
places, and who have long-standing cultural traditions of
ballot collection. Evidence in the record shows that Arizona
has never, in its long history of third-party ballot collection,
found a single case of fraud.

    Our colleague also argues that Arizona should not ignore
the recommendation of the report of the bipartisan
commission, Building Confidence in U.S. Elections (2005).
Diss. Op. at 161–164. This is a reasonable argument, but it
has limited force when applied to Arizona. Forbidding third-
party ballot collection protects against potential voter fraud.
112                     DNC V. HOBBS

But such protection is not necessary, or even appropriate,
when there is a long history of third-party ballot collection
with no evidence, ever, of any fraud and such fraud is already
illegal under existing Arizona law. Such protection is
undesirable, even illegal, when a statute forbidding third-
party ballot collection produces a discriminatory result or is
enacted with discriminatory intent. The commission was
concerned with maintaining “confidence” in our election
system, as indicated by the title of its report. If there is a lack
of confidence in third-party ballot collection in Arizona, it is
due to the fraudulent, race-based campaign mounted by the
proponents of H.B. 2023.

    Finally, our colleague points to third-party ballot
collection fraud perpetrated by a Republican political
operative in North Carolina. 

Our colleague’s
argument ignores the different histories and political cultures
in Arizona and North Carolina, and puts to one side as
irrelevant the long and honorable history of third-party ballot
collection in Arizona. The argument also ignores the fact that
Arizona had long had statutes prohibiting fraudulent handling
of both unvoted and voted ballots by third parties, even
before the enactment of H.B. 2023. The actions of the North
Carolina Republican operative, if performed in Arizona,
would have been illegal under those statutes. H.B. 2023 does
not forbid fraudulent third-party ballot collection. Such fraud
is forbidden by other provisions of Arizona law. H.B. 2023
forbids non-fraudulent third-party ballot collection.

             2. Rules that Are Fair on Their Face

   Second, our colleague defends Arizona’s OOP policy and
H.B. 2023 as “rules that are . . . fair on their face.” 

The results test of Section 2 of the VRA is based on the
                       DNC V. HOBBS                         113

understanding that laws that are “fair on their face” can, as in
this case, produce discriminatory results. Indeed, Congress
added the results test to the VRA precisely to address laws
that were fair on their face but whose result was unfair
discrimination.

    Arizona’s OOP policy and H.B. 2023 both fail the results
test. The result of Arizona’s OOP policy is that twice as
many minority ballots as white ballots are thrown away.
Prior to the enactment of H.B. 2023, third-party ballot
collectors, acting in good faith, collected many thousands of
valid ballots cast by minority voters. White voters rarely
relied on third-party ballot collection. The result of H.B.
2023 is that many thousands of minority ballots will now not
be collected and counted, while white ballots will be largely
unaffected.

                       IV. Conclusion

    We hold that Arizona’s OOP policy violates the results
test of Section 2. We hold that H.B. 2023 violates both the
results test and the intent test of Section 2. We hold that H.B.
2023 also violates the Fifteenth Amendment. We do not
reach Plaintiffs’ other constitutional challenges.

    We reverse the judgment of the district court and remand
for further proceedings consistent with this opinion.

    REVERSED and REMANDED.
114                          DNC V. HOBBS

WATFORD, Circuit Judge, concurring:

    I join the court’s opinion to the extent it invalidates
Arizona’s out-of-precinct policy and H.B. 2023 under the
results test. I do not join the opinion’s discussion of the
intent test.



O’SCANNLAIN, Circuit Judge, with whom CLIFTON,
BYBEE, and CALLAHAN, Circuit Judges, join, dissenting:

    We have been asked to decide whether two current
Arizona election practices violate the Voting Rights Act or
the First, Fourteenth, or Fifteenth Amendments to the United
States Constitution.1 Based on the record before us and


    1
      Section 2 of the Voting Rights Act prohibits a State from adopting
an election practice that “results in a denial or abridgement of the right of
any citizen of the United States to vote on account of race or color.”
52 U.S.C. § 10301(a).

     The First Amendment to the United States Constitution provides in
relevant part: “Congress shall make no law . . . abridging . . . the right of
the people peaceably to assemble.” U.S. Const. amend. I.

     The Fourteenth Amendment guarantees: “No State shall make or
enforce any law which shall abridge the privileges or immunities of
citizens of the United States; nor shall any State deprive any person of life,
liberty, or property, without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws.” U.S. Const.
amend. XIV.

    The Fifteenth Amendment ensures that the right “to vote shall not be
denied or abridged by the United States or by any State on account of race,
color, or previous condition of servitude.” U.S. Const. amend. XV.
                       DNC V. HOBBS                        115

relevant Supreme Court and Ninth Circuit precedent, the
answer to such question is clear: they do not. The majority,
however, draws factual inferences that the evidence cannot
support and misreads precedent along the way. In so doing,
it impermissibly strikes down Arizona’s duly enacted policies
designed to enforce its precinct-based election system and to
regulate third-party collection of early ballots.

   I respectfully dissent.

                               I

    Given the abundant discussion by the district court and
the en banc majority, I offer only a brief summary of the
policies at issue here and discuss the district court’s factual
findings as pertinent to the analysis below.

                              A

    Arizona offers voters several options: early mail ballot,
early in-person voting, and in-person Election Day voting.
Democratic Nat’l Comm. v. Reagan (“DNC”), 

824, 838 (D. Ariz. 2018).

                              1

    Since at least 1970, Arizona has required that in-person
voters “cast their ballots in their assigned precinct and has
enforced this system by counting only those ballots cast in the
correct precinct.” 

A voter who arrives at a
precinct in which he or she is not listed on the register may
cast a provisional ballot, but Arizona will not count such
ballot if it determines that the voter does not live in the
116                          DNC V. HOBBS

precinct in which he or she voted. 

I refer
to this rule as Arizona’s “out-of-precinct” or “OOP” policy.

    Most Arizona voters, however, do not vote in person on
Election Day. 

Arizona law permits all registered
voters to vote early by mail or in person at an early voting
location in the 27 days before an election. Ariz. Rev. Stat.
§§ 16-121(A), 16-541(A), 16-542(D). All Arizona counties
operate at least one location for early in person voting. DNC,

at 839. Rather than voting early in person,
any voter may instead request an early ballot to be delivered
to his or her mailbox on an election-by-election or permanent
basis. 

Arizona became the first state to make
available an online voter registration option, which also
permits voters to enroll in permanent early voting by mail.

so enroll will be sent an early ballot no later
than the first day of the 27-day early voting period. 

return early ballots in person at any polling place,
vote center, or authorized office without waiting in line or
may return their early ballots by mail at no cost. 

counted, however, an early ballot must be received by
7:00 p.m. on Election Day. 

years, Arizona has restricted who may handle early
ballots.2 Since 1992, Arizona has prohibited anyone but the
elector himself from possessing “that elector’s unvoted
absentee ballot.” 1991 Ariz. Legis. Serv. Ch. 310, § 22 (S.B.


    2
      The majority’s effort to deny history can easily be dismissed. Maj.
Op. 104–105. As Judge Bybee’s dissent ably recounts, not only Arizona
but 21 other states have restricted early balloting for years. Bybee, J. Diss.
Op. 157–158.
                            DNC V. HOBBS                               117

1390) (West). In 2016, Arizona enacted a parallel regulation,
H.B. 2023 (the “ballot-collection” policy), concerning the
collection of early ballots.3 DNC, 

at 839.
Under the ballot-collection policy, only a “family member,”
“household member,” “caregiver,” “United States postal
service worker” or other person authorized to transmit mail,
or “election official” may return another voter’s completed
early ballot. 

(citing Ariz. Rev. Stat. § 16-
1005(H)–(I)).

                                    B

    In April 2016, the Democratic National Committee, the
Democratic Senatorial Campaign Committee, and the
Arizona Democratic Party (together, “DNC”) sued the State
of Arizona to challenge the OOP policy and the ballot-
collection policy. The district court denied DNC’s motions
to enjoin preliminarily enforcement of both polices, and DNC
asked our court to issue injunctions pending appeal of such
denials. After expedited proceedings before three-judge and
en banc panels, our court denied the motion for an injunction
against the OOP policy but granted the parallel motion
against the ballot-collection policy. Feldman v. Ariz. Sec’y of
State’s Office, 

(9th Cir. 2016) (en banc)
(mem.) (per curiam); Feldman v. Ariz. Sec’y of State’s Office
(Feldman III), 

(9th Cir. 2016) (en banc). The
Supreme Court, however, stayed our injunction against the
ballot-collection policy and the OOP and ballot-collection
policies functioned in usual fashion. Ariz. Sec’y of State’s
Office v. Feldman, 

(2016) (mem.).


    3
       While the majority refers to the legislation as “H.B. 2023,” I prefer
to call it the ballot-collection policy by which it is commonly known and
will do so throughout the dissent.
118                        DNC V. HOBBS

    In 2017, the district court proceeded to the merits of
DNC’s suit. In May 2018, after a ten-day bench trial, the
district court issued a decision supported by thorough
findings of fact and conclusions of law. DNC, 

at 832. The district court found that DNC failed to prove
any violation of the Voting Rights Act or the United States
Constitution and issued judgment in the state’s favor. 

    DNC timely appealed, and a three-judge panel of our
court affirmed the decision of the district court in its entirety.
Democratic Nat’l Comm. v. Reagan (“DNC”), 

(9th Cir. 2018), vacated by order granting rehearing en banc,

(9th Cir. 2019) (mem.). But today, the en banc
panel majority reverses the decision of the district court and
holds that the OOP and ballot-collection policies violate § 2
of the Voting Rights Act and that the ballot-collection policy
was enacted with discriminatory intent in violation of the
Fifteenth Amendment.

                                    II

    The first mistake of the en banc majority is disregarding
the critical standard of review. Although the majority recites
the appropriate standard, it does not actually engage with it.4
Maj. Op. 8–9. The standard is not complex. We review de
novo the district court’s conclusions of law, but may review

    4
       As the majority admits, we review the district court’s “overall
finding of vote dilution” under § 2 of the Voting Rights Act only for clear
error. Thornburg v. Gingles, 

, 79 (1986) (emphasis added);
Maj. Op. 8–9. The majority quotes an elaboration of this standard by the
Supreme Court in Gingles. Maj. Op. 8–9. But the Court in Gingles
actually held that the district court’s ultimate finding was not clearly
erroneous. 

.
                        DNC V. HOBBS                        119

its findings of fact only for clear error. Navajo Nation v.
U.S. Forest Serv., 

, 1067 (9th Cir. 2008) (en
banc).

    The majority’s disregard of such standard and, thus, our
appellate role, infects its analysis of each of DNC’s claims.
The demanding clear error 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.” Anderson v. City of Bessemer City,

, 573 (1985). Rather, we may reverse a finding
only if, “although there is evidence to support it, [we are] left
with the definite and firm conviction that a mistake has been
committed.” 

States v. U. S. Gypsum Co.,

, 395 (1948)). To do otherwise “oversteps the
bounds of [our] duty under [Federal Rule of Civil Procedure]
52(a)” by “duplicat[ing] the role of the lower court.” 

As explained in Parts III and IV, I fail to see how on
the record before us one could be “left with a definite and
firm conviction” that the district court erred.

                               III

    DNC first contends that Arizona’s policies violate § 2 of
the Voting Rights Act. A district court’s determination of
whether a challenged practice violates § 2 of the Voting
Rights Act is “intensely fact-based”: the court assesses the
“totality of the circumstances” and conducts “a ‘searching
practical evaluation of the past and present reality.’” Smith
v. Salt River Project Agric. Improvements & Power Dist.
(“Salt River”), 

, 591 (9th Cir. 1997) (quoting
Thornburg v. Gingles, 

, 79 (1986)). Thus,
“[d]eferring to the district court’s superior fact-finding
120                    DNC V. HOBBS

capabilities, we review only for clear error its ultimate
finding of no § 2 violation.” 

(emphasis added).

   In relevant part, § 2 provides:

       (a) No voting qualification or prerequisite to
       voting or standard, practice, or procedure shall
       be imposed or applied by any State . . . in a
       manner which results in a denial or
       abridgment of the right of any citizen of the
       United States to vote on account of race or
       color . . . .

       (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 . . . 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 (emphasis added). “The essence of a § 2
claim is that a certain electoral law, practice, or structure
interacts with social and historical conditions to cause an
inequality in the opportunities enjoyed by black and white
voters to elect their preferred representatives.” 

. To determine whether a practice violates § 2,
courts employ a two-step analysis. See Ohio Democratic
Party v. Husted, 

, 637 (6th Cir. 2016); Veasey v.
Abbott, 

, 244 (5th Cir. 2016); Frank v. Walker,

, 754–55 (7th Cir. 2014); League of Women
                      DNC V. HOBBS                       121

Voters of N.C. v. North Carolina, 

, 240 (4th Cir.
2014).

    The first step is asking whether the practice provides
members of a protected class “less ‘opportunity’ than others
‘to participate in the political process and to elect
representatives of their choice.’” Chisom v. Roemer,

, 397 (1991) (alteration in original) (quoting
52 U.S.C. § 10301). In other words, the challenged practice
“must impose a discriminatory burden on members of a
protected class.” League of Women 

(emphasis added). To prevail at step one, the plaintiff
therefore “must show a causal connection between the
challenged voting practice and [a] prohibited discriminatory
result.” Salt 

(alteration in original)
(quoting Ortiz v. City of Phila. Office of City Comm’rs Voter
Registration Div., 

, 312 (3d Cir. 1994)); see also
Ohio Democratic 

. If a discriminatory
burden is established, then—and only then—do we consider
whether the burden is “caused by or linked to ‘social and
historical conditions’ that have or currently produce
discrimination against members of the protected class.”
League of Women 

(quoting 

).

    The majority agrees that this two-step analysis controls
but mistakenly applies it. According to the majority, DNC
has shown that the OOP policy and the ballot-collection
policy fail at both steps—and, presumably, that the district
court clearly erred in finding otherwise. Under an
appropriately deferential analysis, however, DNC cannot
prevail even at step one: it has simply failed to show that
either policy erects a discriminatory burden.
122                    DNC V. HOBBS

                              A

    As to the facially neutral OOP policy, DNC argues,
erroneously, that wholly discarding, rather than partially
counting, ballots that are cast out-of-precinct violates § 2 of
the Voting Rights Act because such policy imposes a
discriminatory burden on minority voters related to Arizona’s
history of discrimination. The district court, quite properly,
found that DNC failed to carry its burden at step one—that
the practice imposes a discriminatory burden on minority
voters—for two reasons. DNC, 

at 873.

                              1

    First, the district court determined that DNC failed to
show “that the racial disparities in OOP voting are practically
significant enough to work a meaningful inequality in the
opportunities of minority voters as compared to non-minority
voters.” 

ruled that DNC failed to show that the
precinct-based system has a “disparate impact on the
opportunities of minority voters to elect their preferred
representatives.” 

To the contrary, the district
court made the factual finding that out-of-precinct “ballots
represent . . . a small and ever-decreasing fraction of the
overall votes cast in any given election.” 

district court determined that “the
burdens imposed by precinct-based voting . . . are not severe.
Precinct-based voting merely requires voters to locate and
travel to their assigned precincts, which are ordinary burdens
traditionally associated with voting.” 

Indeed, the
numbers found by the district court support such conclusion.
Only 0.47 percent of all ballots cast in the 2012 general
election (10,979 out of 2,323,579) were not counted because
                        DNC V. HOBBS                         123

they were cast out of the voter’s assigned precinct. 

In 2016, this fell to 0.15 percent (3,970 out of 2,661,497). 

those casting ballots in-person on Election Day,
approximately 99 percent of minority voters and 99.5 percent
of non-minority voters cast their ballots in their assigned
precincts. 

the overwhelming majority of all
voters complied with the precinct-based voting system during
the 2016 election, it is difficult to see how the district court’s
finding could be considered clearly erroneous. See also
Crawford v. Marion Cty. Election Bd., 

, 198
(2008) (plurality opinion) (discussing “the usual burdens of
voting”). And it further ruled that DNC “offered no evidence
of a systemic or pervasive history of minority voters being
given misinformation regarding the locations of their
assigned precincts, while non-minority voters were given
correct information” to suggest that the burden of voting in
one’s assigned precinct is more significant for minority voters
than for non-minority voters. DNC, 

at 873.

   As Judge Ikuta explained in her now-vacated majority
opinion for the three-judge panel:

        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,” even
        if the practice has a disproportionate impact
        on minority voters.

(citation omitted) (quoting 

n.24). The “bare statistic[s]” presented may
indeed show a disproportionate impact on minority voters,
124                    DNC V. HOBBS

but we have held previously that such showing is not enough.
Salt 

(“[A] bare statistical showing of
disproportionate impact on a racial minority does not satisfy
the § 2 ‘results’ inquiry.” (emphasis in original)). A court
must evaluate the burden imposed by the challenged voting
practice—not merely any statistical disparity that may be
shown. The Supreme Court’s interpretation of § 2 in Gingles
suggests the same. There, the Court observed that “[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.’” 

n.15
(emphasis added) (quoting 52 U.S.C. § 10301(b)).
Furthermore, because “[n]o state has exactly equal
registration rates, exactly equal turnout rates, and so on, at
every stage of its voting system,” it cannot be the case that
pointing to a mere statistical disparity related to a challenged
voting practice is sufficient to “dismantle” that practice.

; see also Salt 

.

    The majority, however, contends that “the district court
discounted the disparate burden on the ground that there were
relatively few OOP ballots cast in relation to the total number
of ballots.” Maj. Op. 43. In the majority’s view, the district
court should have emphasized that the percentage of in-
person ballots that were cast out-of-precinct increased, thus
isolating the specific impact of the OOP policy amongst in-
person voters bound by the precinct-system requirements.

    Contrary to the majority’s assertion, however, the legal
review at hand does not require that we isolate the specific
challenged practice in the manner it suggests. Rather, at step
one of the § 2 inquiry, we only consider whether minority
voters “experience substantial difficulty electing
                            DNC V. HOBBS                               125

representatives of their choice,” 

n.15,
“based on the totality of circumstances,” 52 U.S.C.
§ 10301(b).5 Although the majority would like us to believe
that the increasing percentage of in-person ballots cast out-of-
precinct demonstrates that minorities are disparately
burdened by the challenged policy, the small number of
voters who chose to vote in-person and the even smaller
number of such voters who fail to do so in the correct precinct
demonstrate that any minimal burden imposed by the policy
does not deprive minority voters of equal opportunities to
elect representatives of their choice. A conclusion otherwise
could not be squared with our determination that a mere
statistical showing of disproportionate impact on racial
minorities does not satisfy the challenger’s burden. See Salt

. If such statistical impact is not
sufficient, it must perforce be the case that the crucial test is

    5
       The majority correctly asserts that Gingles was a vote dilution not
vote denial case. However, it incorrectly claims the standard in a vote
denial case is different and, without stating such standard, it simply
concludes that the 3,709 ballots cast out of precinct in the 2016 general
election in Arizona is more than any “de minimis number” below which
there is no Section 2 violation, without ever revealing what such minimum
threshold might be. Maj. Op. 107. The majority cites League of Women
Voters, a vote denial case, to reach this conclusion. 

–49. Yet, in that case, the Fourth Circuit relies on Gingles throughout
to determine that the same analysis applies to vote denial and vote dilution
cases. 

Earlier in its opinion, the majority itself uses
Gingles as the standard for analyzing a § 2 violation in a vote denial case.
Maj. Op. 37. The distinction the majority attempts to draw fails because,
contrary to what the majority implies, “a § 2 challenge based purely on a
showing of some relevant statistical disparity between minorities and
whites, without any evidence that the challenged voting qualification
causes that disparity, will be rejected,” Gonzalez v. Arizona, 

,
495 (9th Cir. 2012) (internal quotation marks omitted), and “[t]his
approach applies both to claims of vote denial and vote dilution.” 

n. 32.
126                        DNC V. HOBBS

the extent to which the practice burdens minority voters as
opposed to non-minority voters. But the en banc majority
offers no explanation for how or why the burden of voting in
one’s assigned precinct is severe or beyond that of the
burdens traditionally associated with voting.

    The majority argues that there may be a “de minimis
number” below which no § 2 violation has occurred.6 Maj.
Op. 44. But we know from our own precedent that “a bare
statistical showing of disproportionate impact on a racial
minority does not satisfy the § 2 . . . inquiry.” Salt 

(emphasis in original). And Chisom makes
clear that § 2 “claims must allege an abridgment of the
opportunity to participate in the political process and to elect
representatives of one’s 

(emphasis
in original). As such, the inquiry must require consideration
of both the scope of the burden imposed by the particular
policy—not merely how many voters are impacted by it—and
the difficulty of accessing the political process in its entirety.

    Thus, it cannot be true, as the majority suggests, that
simply showing that some number of minority voters’ ballots
were not counted as a result of an individual policy satisfies
step one of the § 2 analysis for a facially neutral policy.

                                    2

   Second, the district court made the factual finding that
“Arizona’s policy to not count OOP ballots is not the cause


    6
       As Judge Ikuta explained, “an election rule requiring voters to
identify their correct precinct in order to have their ballots counted does
not constitute a ‘disenfranchisement’ of voters.” 

n.33; see also 

n.27.
                        DNC V. HOBBS                        127

of [any identified] disparities in OOP voting.” DNC, 329 F.
Supp. 3d at 872. According to the OOP policy that is
challenged by DNC, a ballot is not counted if it is cast outside
of the voter’s assigned precinct. And the district court
pointed to several factors that result in higher rates of out-of-
precinct voting among minorities. For example, the district
court found that “high rates of residential mobility are
associated with higher rates of OOP voting,” and minorities
are more likely to move more frequently. 

872.
Similarly, “rates of OOP voting are higher in neighborhoods
where renters make up a larger share of householders.” 

The precinct-system may also pose special challenges
for Native American voters, because they may “lack standard
addresses” and there may be additional “confusion about the
voter’s correct polling place” where precinct assignments
may differ from assignments for tribal elections. 

“Additionally”, the district court found, Arizona’s “changes
in polling locations from election to election, inconsistent
election regimes used by and within counties, and placement
of polling locations all tend to increase OOP voting rates.”

    But the burden of complying with the precinct-based
system in the face of any such factors is plainly
distinguishable from the consequence imposed should a voter
fail to comply. Indeed, as the district court found, “there is
no evidence that it will be easier for voters to identify their
correct precincts if Arizona eliminated its prohibition on
counting OOP ballots.” 

consequence of
voting OOP might make it more imperative for voters to
correctly identify their precincts,” 

does
not cause voters to cast their ballots out-of-precinct or make
it more burdensome for voters to cast their ballots in their
assigned precincts.
128                         DNC V. HOBBS

     The majority goes astray by failing to recognize the
distinction between the burden of complying and the
consequence of failing to do so. In fact, the majority
undercuts its own claim by citing the same host of reasons
identified by the district court as the reasons why a minority
voter is more likely to vote out-of-precinct. Maj Op. 14–19.
All the factors the majority seizes upon, however, stem from
the general requirement that a voter cast his or her ballot in
the assigned precinct—not the policy that enforces such
requirement. The importance of such distinction is made
clear by the relief that DNC seeks: DNC does not request that
Arizona be made to end its precinct-based system or to assign
its precincts differently, but instead requests that Arizona be
made to count those ballots that are not cast in compliance
with the OOP policy.7 Removing the enforcement policy,
however, would do nothing to minimize or to extinguish the
disparity that exists in out-of-precinct voting.

    Consider another basic voting requirement: in order to
cast a ballot, a voter must register. If a person fails to
register, his or her vote will not count. Any discriminatory
result from such a policy would need to be addressed in a

    7
      The majority suggests that DNC challenges only “Arizona’s policy,
within that system, of entirely discarding OOP ballots” as opposed to
counting or partially counting them. Maj. Op. 78. But this is not a
compromise position: there is no difference between counting and
partially counting a ballot cast out-of-precinct. Counting an OOP ballot
would entail evaluating the ballot to determine on which issues the person
would have been qualified to vote in his or her assigned precinct and
discarding the person’s votes as to issues on which he or she would not
have been qualified to vote. Certainly, the majority isn’t suggesting that
a person would ever be allowed to vote on issues which he or she would
not have been eligible to vote even in the assigned precinct. It is difficult
to discern any other possible meaning for what the majority refers to as
entirely “counting” out-of-precinct ballots.
                       DNC V. HOBBS                        129

challenge to that policy itself. For example, if minorities are
underrepresented as a segment of registered voters, perhaps
they could challenge some discriminatory aspect of the
registration system. But they surely could not prevail by
challenging simply the state’s enforcement of the registration
policy by refusing to count unregistered voters’ ballots.
Minorities in a jurisdiction may very well be
underrepresented as members of the registered electorate, but
the discrepancy between the protected class as a segment of
the general population and as a segment of the registered
voting population would not require that a state permit
unregistered voters to cast valid ballots on Election Day.

    Similarly, the fact that a ballot cast by a voter outside of
his or her assigned precinct is discarded does not cause
minorities to vote out-of-precinct disproportionately. But
DNC does not challenge the general requirement that one
vote in his or her precinct or take issue with the assignment
of precinct locations—the very requirements that could lead
to a disproportionate impact. It may indeed be the case in a
precinct-based voting system that a state’s poor assignment
of districts, distribution of inadequate information about
voting requirements, or other factors have some material
effect on election practices such that minorities have less
opportunity to elect representatives of their choice as a result
of the system. But, in the words of the majority, DNC’s
challenge “assumes both [the] importance and [the] continued
existence” of “Arizona’s precinct-based system of voting.”
Maj. Op. 78. Instead, DNC challenges only Arizona’s
enforcement of such system. Thus, even if there were a
recognizable disparity in the opportunities of minority voters
voting out-of-precinct, it would nonetheless not be the result
of the policy at issue before us.
130                     DNC V. HOBBS

                               3

    I reject the suggestion implicit in the majority opinion that
any facially neutral policy which may result in some
statistical disparity is necessarily discriminatory under step
one of the § 2 inquiry. We have already held otherwise. Salt

. And the majority itself concedes that
“more than a de minimis number of minority voters must be
burdened before a Section 2 violation based on the results test
can be found.” Maj. Op. 44. Furthermore, I fail to see how
DNC—and the majority—can concede the importance and
continued existence of a precinct-based system, yet argue that
the enforcement mechanism designed to maintain such
system is impermissible.

    Because DNC has failed to meet its burden under step one
of the Voting Rights Act § 2 inquiry—that the district court’s
findings were clearly erroneous—our analysis of its OOP
claim should end here.

                               B

    As to the facially neutral ballot-collection policy, DNC
argues, erroneously, that it violates § 2 because there is
“extensive evidence” demonstrating that minority voters are
more likely to have used ballot-collection services and that
they would therefore be disproportionately burdened by
limitations on such services. Specifically, DNC relies on
anecdotal evidence that ballot collection has
disproportionately occurred in minority communities, that
minority voters were more likely to be without home mail
delivery or access to transportation, and that ballot-harvesting
efforts were disproportionately undertaken by the Democratic
Party in minority communities. And, DNC claims, such
                        DNC V. HOBBS                        131

burden is caused by or linked to Arizona’s history of
discrimination.

    The district court, quite properly, rejected such argument,
making the factual finding that DNC failed to establish at step
one that the ballot-collection policy imposed a discriminatory
burden on minority voters. DNC, 

at 866,
871. Once again, the question is whether such finding was
clearly erroneous. Salt 

.

                               1

    The district court found broadly that the non-quantitative
evidence offered by DNC failed to show that the ballot-
collection policy denied minority voters of “meaningful
access to the political process.” DNC, 

at 871. As Judge Ikuta observed, to determine whether the
challenged policy provides minority voters “less opportunity
to elect representatives of their choice, [we] must necessarily
consider the severity and breadth of the law’s impacts on the
protected class.” 

.

    But no evidence of that impact has been offered. “In fact,
no individual voter testified that [the ballot-collection
policy’s] limitations on who may collect an early ballot
would make it significantly more difficult to vote.” DNC,

at 871 (emphasis added). Anecdotal
evidence of how voters have chosen to vote in the past does
not establish that voters are unable to vote in other ways or
would be burdened by having to do so. The district court
simply found that “prior to the [ballot-collection policy’s]
enactment minorities generically were more likely than non-
minorities to return their early ballots with the assistance of
third parties,” 

but, once again, the disparate impact
132                     DNC V. HOBBS

of a challenged policy on minority voters is insufficient to
establish a § 2 violation, see Salt 

–95.

    The majority simply does not address the lack of evidence
as to whether minority voters have less opportunity than non-
minority voters now that ballot collection is more limited.
Instead, the majority answers the wrong question by pointing
to minority voters’ use of ballot collection in the past. The
majority offers no record-factual support for its conclusion
that the anecdotal evidence presented demonstrates that
compliance with the ballot-collection policy imposes a
disparate burden on minority voters—a conclusion that must
be reached in order to satisfy step one of the § 2 inquiry—let
alone evidence that the district court’s contrary finding was
“clearly erroneous.”

    Given the lack of any testimony in the record indicating
that the ballot-collection policy would result in minority
voters “experienc[ing] substantial difficulty electing
representatives of their choice,” 

n.15,
the district court did not clearly err in finding that, “for some
voters, ballot collection is a preferred and more convenient
method of voting,” but a limitation on such practice “does not
deny minority voters meaningful access to the political
process.” DNC¸ 329 F. 3d Supp. at 871.

                               2

    The district court further found that the ballot-collection
policy was unlikely to “cause a meaningful inequality in the
electoral opportunities of minorities” because only “a
relatively small number of voters have used ballot collection
services” in the past at all. DNC, 

at 870–71.
And, the district court noted, DNC “provided no quantitative
                        DNC V. HOBBS                         133

or statistical evidence comparing the proportion that is
minority versus non-minority.” 

“Without this
information,” the district court explained, “it becomes
difficult to compare the law’s impact on different
demographic populations and to determine whether the
disparities, if any, are meaningful.” 

Thus, from
the record, we do not know either the extent to which voters
may be burdened by the ballot-collection policy or how many
minority voters may be so burdened.

    Nonetheless, the district court considered circumstantial
and anecdotal evidence offered by DNC and determined that
“the vast majority of Arizonans, minority and non-minority
alike, vote without the assistance of third-parties who would
not fall within [the ballot-collection policy’s] exceptions.”

DNC—and the majority—argue that such finding
is not supported by the record, but, given the lack of
quantitative or statistical evidence before us, it is difficult to
conclude that such finding is clearly erroneous. The district
court itself noted that it could not “speak in more specific or
precise terms” given the sparsity of the record. 

Drawing from anecdotal testimony, the district court
estimated that fewer than 10,000 voters used ballot-collection
services in any election. 

Drawing even “the
unjustified inference that 100,000 early mail ballots were
collected” during the 2012 general election, the district court
found that such higher total would nonetheless be “relatively
few early voters” as compared to the 1.4 million early mail
ballots returned or 2.3 million total votes cast. 

The majority further argues that the district court erred in
“discounting the evidence of third-party ballot collection as
merely ‘circumstantial and anecdotal’” Maj. Op. 83. But the
district court did nothing of the sort. To the contrary, the
district court considered whether the ballot-collection policy
134                     DNC V. HOBBS

violated § 2 by making these estimates—and even generous
estimates—from the anecdotal evidence offered. And the
district court’s subsequent conclusion that the limitation of
third-party ballot collection would impact only a “relatively
small number of voters,” 

is clearly plausible on
this record, see Bessemer 

.

    The majority also argues that the total number of votes
affected is not the relevant inquiry; the proper test is whether
the number of ballots collected by third parties surpasses any
de minimis number. Maj. Op. 84. But we already know “that
a bare statistical showing” that an election practice has a
“disproportionate impact on a racial minority does not
satisfy” step one of the § 2 inquiry. Salt 

(emphasis in original). And, even if such impact were
sufficient, the record offers no evidence from which the
district court could determine the extent of the discrepancy
between minority voters as a proportion of the entire
electorate versus minority voters as a proportion of those who
have voted using ballot-collection services in the past. DNC,

at 866–67.

                                3

     As Judge Bybee keenly observed in a previous iteration
of this case (and indeed in his dissent in this case), “[t]here is
no constitutional or federal statutory right to vote by absentee
ballot.” Feldman 

(Bybee, J., dissenting)
(citing McDonald v. Bd. of Election Comm’rs of Chi.,

, 807–08 (1969)); accord Bybee, J. Diss.
Op. 156. Both today and in the past, Arizona has chosen to
provide a wide range of options to voters. But Arizona’s
previous decision to permit a particular mechanism of voting
does not preclude Arizona from modifying its election system
                       DNC V. HOBBS                       135

to limit such mechanism in the future so long as such
modification is made in a constitutional manner. And, in fact,
Arizona’s modification here was made in compliance with
“the recommendation of the bipartisan Commission on
Federal Election Reform.” DNC, 

at 855.
Without any evidence in the record of the severity and
breadth of the burden imposed by this change to the ballot-
collection policy, we cannot be “left with the definite and
firm conviction” that the district court erred in finding that
DNC failed to show that the policy violated § 2. See
Bessemer 

; see also Salt 

.

                              C

    Because I disagree with the majority’s conclusion that
DNC has satisfied its burden at step one of the § 2 Voting
Rights Act inquiry, I would not reach step two. I therefore do
not address the majority’s consideration of the so-called
“Senate Factors” in determining whether the burden is “in
part caused by or linked to ‘social and historical conditions’
that have or currently produce discrimination against
members of the protected class.” League of Women 

(quoting 

). These
factors—and the majority’s lengthy history lesson on past
election abuses in Arizona—simply have no bearing on this
case. Indeed, pages 47 to 81 of the majority’s opinion may
properly be ignored as irrelevant.

                             IV

    DNC also contends that the ballot-collection policy
violates the Fifteenth Amendment to the United States
136                        DNC V. HOBBS

Constitution.8 To succeed on a claim of discriminatory intent
under the Fifteenth Amendment, the challenger must
demonstrate that the state legislature “selected or reaffirmed
a particular course of action at least in part ‘because of,’ not
merely ‘in spite of,’ its adverse effects upon an identifiable
group.” Pers. Adm’r of Mass. v. Feeney, 

, 279
(1979). Because discriminatory intent “is a pure question of
fact,” we again review only for clear error. Pullman-
Standard v. Swint, 

, 287–88 (1982).
“Determining whether invidious discriminatory purpose was
a motivating factor demands a sensitive inquiry into such
circumstantial and direct evidence of intent as may be
available.” Vill. of Arlington Heights v. Metro. Hous. Dev.
Corp., 

, 266 (1977).

    The district court concluded that the ballot-collection
policy did not violate the Fifteenth Amendment because it
made the factual finding that the legislature “was not
motivated by a desire to suppress minority voters,” although
“some individual legislators and proponents of limitations on
ballot collection harbored partisan motives” that “did not
permeate the entire legislative process.” DNC, 

at 879, 882 (emphasis added). Instead, “[t]he legislature
was motivated by . . . a sincere belief that mail-in ballots
lacked adequate prophylactic safeguards as compared to in-
person voting.” 

In analyzing DNC’s appeal from
such finding, the majority, once again, completely ignores our
demanding standard of review and instead conducts its own


    8
      The Fifteenth Amendment authorizes Congress to enforce its
guarantee that the right “to vote shall not be denied or abridged . . . by
appropriate legislation.” U.S. Const. amend. XV. Section 2 of the Voting
Rights Act is such legislation. Shelby Cty. v. Holder, 

, 536
(2013).
                       DNC V. HOBBS                        137

de novo review. Maj. Op. 93. Our duty is only to consider
whether the district court clearly erred in its finding that the
ballot-collection policy was not enacted with discriminatory
intent. See Bessemer 

. And “to 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., 

, 502 (9th Cir. 1991) (quoting Parts & Elec. Motors, Inc.
v. Sterling Elec., Inc., 

, 233 (7th Cir. 1988)).

    The majority therefore fails to offer any basis—let alone
a convincing one—for the conclusion that it must reach in
order to reverse the decision of the district court: that the
district court committed clear error in its factual findings.
Given the failure of the majority to conduct its review in the
proper manner, I see no reason to engage in a line-by-line
debate with its flawed analysis. Rather, it is enough to note
two critical errors made by the majority in ignoring the
district court’s determinations that while some legislators
were motivated by partisan concerns, the legislature as a body
was motivated by a desire to enact prophylactic measures to
prevent voter fraud.

                               A

    First, the majority fails to distinguish between racial
motives and partisan motives.             Even when “racial
identification is highly correlated with political affiliation,”
a party challenging a legislative action nonetheless must show
that racial motives were a motivating factor behind the
challenged policy. Cooper v. Harris, 

, 1473
(2017) (quoting Easley v. Cromartie, 

, 243
(2001)). Nonetheless, the majority suggests that a legislator
motivated by partisan interest to enact a law that
138                    DNC V. HOBBS

disproportionately impacts minorities must necessarily have
acted with racially discriminatory intent as well. For
example, the district court noted that Arizona State Senator
Don Shooter was, “in part motivated by a desire to eliminate
what had become an effective Democratic [Get Out The
Vote] strategy.” DNC, 

at 879. The majority
simply concludes that such finding shows racially
discriminatory intent as a motivating factor. But the
majority’s unsupported inference does not satisfy the required
showing. And the majority fails to cite any evidence
demonstrating that the district court’s finding to the contrary
was not “plausible in light of the record viewed in its
entirety.” Bessemer 

.

                              B

    Second, in defiance of Supreme Court precedent to the
contrary, the majority assumes that a legislature’s stated
desire to prevent voter fraud must be pretextual when there is
no direct evidence of voter fraud in the legislative record. In
Crawford, the Court rejected the argument that actual
evidence of voter fraud was needed to justify the State’s
decision to enact prophylactic measures to prevent such
fraud. 

–96 . There, the Court
upheld an Indiana statute requiring in-person voters to present
government-issued photo identification in the face of a
constitutional challenge. 

Although “[t]he record
contain[ed] no evidence of [voter] fraud actually occurring in
Indiana at any time in its history,” the Supreme Court
nonetheless determined that the State had a legitimate and
important interest “in counting only the votes of eligible
voters.” 

196; see also 

nn.11–13 (citing
“fragrant examples of” voter fraud throughout history and in
recent years). Given its interest in addressing its valid
                       DNC V. HOBBS                        139

concerns of voter fraud, Arizona was free to enact
prophylactic measures even though no evidence of actual
voter fraud was before the legislature. Yet the majority does
not even mention Crawford, let alone grapple with its
consequences on this case.

    And because no evidence of actual voter fraud is required
to justify an anti-fraud prophylactic measure, the majority’s
reasoning quickly collapses. The majority cites Senator
Shooter’s “false and race-based allegations” and the “LaFaro
video,” which the district court explained “showed
surveillance footage of a man of apparent Hispanic heritage
appearing to deliver early ballots” and “contained a narration
of [i]nnuendos of illegality . . . [and] racially tinged and
inaccurate commentary by . . . LaFaro.” DNC, 

at 876 (second, third, and fourth alterations in original).
The majority contends that although “some members of the
legislature who voted for H.B. 2023 had a sincere, though
mistaken, non-race-based belief that there had been fraud in
third-party ballot collection, and that the problem needed to
be addressed,” a discriminatory purpose may be attributable
to all of them as a matter of law because any sincere belief
was “created by Senator Shooter’s false allegations and the
‘racially tinged’ LaFaro video.” Maj. Op. 99. The majority
claims that these legislators were used as “cat’s paws” to
“serve the discriminatory purposes of Senator Shooter,
Republican Chair LaFaro, and their allies.” Maj. Op. 100.
Yet, the majority’s reliance on such employment
discrimination doctrine is misplaced because, unlike
employers whose decision may be tainted by the
discriminatory motives of a supervisor, each legislator is an
independent actor, and bias of some cannot be attributed to all
members. The very fact that some members had a sincere
belief that voter fraud needed to be addressed is enough to
140                    DNC V. HOBBS

rebut the majority’s conclusion. To the contrary, the
underlying allegations of voter fraud did not need to be true
in order to justify the “legitimacy or importance of the State’s
interest in counting only the votes of eligible voters.”

. And the majority provides no
support for its inference of pretext where there is a sincere
and legitimate interest in addressing a valid concern. Maj.
Op. at 97–100. Instead, the majority accepts the district
court’s finding that some legislators “had a sincere, non-race-
based belief that there was fraud” that needed to be
addressed. Nevertheless, unable to locate any discriminatory
purpose, it simply attributes one to them using the
inapplicable “cat’s paw doctrine.” Maj. Op. 99. Such
argument demonstrates the extraordinary leap in logic the
majority must make in order to justify its conclusion.

    Let me restate the obvious: we may reverse the district
court’s intensely factual determination as to discriminatory
intent only if we determine that such finding was clearly
erroneous. Thus, even if the majority disagrees with the
district court’s finding, it must demonstrate that the evidence
was not “plausible in light of the record viewed in its
entirety.” Bessemer 

. Perhaps if the
majority had reminded itself of our appellate standard, it
would not have simply re-weighed the same evidence
considered by the district court to arrive at its own findings
on appeal.

                               V

    The district court properly determined that neither
Arizona’s out-of-precinct policy nor its ballot-collection
policy violates § 2 of the Voting Rights Act and the Fifteenth
                           DNC V. HOBBS                               141

Amendment to the Constitution.9 In concluding otherwise,
the majority misperceives the inquiry before us and fails to
narrow the scope of its review, instead insisting on acting as
a de novo trial court. That, of course, is not our role.

   I would therefore affirm the judgment of the district court
and must respectfully dissent from the majority opinion.



BYBEE, Circuit Judge, with whom O’SCANNLAIN,
CLIFTON, and CALLAHAN, Circuit Judges, join,
dissenting:

    The right to vote is the most fundamental of our political
rights and the basis for our representative democracy. “No
right is more precious” because it is a meta-right: it is the
means by which we select “those who make the laws under
which, as good citizens, we must live.” Wesberry v. Sanders,

, 17 (1964). “Other rights, even the most basic, are
illusory if the right to vote is undermined.” 

fundamental as the right to vote is the need for the electorate
to have confidence in the rules by which elections are
conducted.




    9
       Because the majority concludes that the OOP policy and the ballot-
collection policy violate § 2 of the Voting Rights Act and the Fifteenth
Amendment to the United States Constitution, it does not reach DNC’s
claim that such policies also violate the First and Fourteenth Amendments
to the United States Constitution. I will not belabor such claims here; for
these purposes, it is sufficient to say that—for many of the reasons and
based on much of the evidence cited above—I would also conclude that
neither practice violates the First and Fourteenth Amendments.
142                          DNC V. HOBBS

    I write separately to make a simple point: The Arizona
rules challenged here are part of an “electoral process that is
necessarily structured to maintain the integrity of the
democratic system.” Burdick v. Takushi, 

, 441
(1992).1 The Constitution entrusts the “Times, Places and
Manner of holding Elections” to state legislatures, subject to
laws enacted by Congress to “make or alter such
Regulations.” U.S. Const. art. I, § 4, cl. 1. “‘Times, Places,
and Manner,’ . . . are ‘comprehensive words,’ which
‘embrace authority to provide a complete code for . . .
elections.’” Arizona v. Inter Tribal Council of Ariz., Inc.,

, 8–9 (2013) (quoting Smiley v. Holm, 

, 366 (1932)); see Rucho v. Common Cause, 

, 2495 (2019).

         “[A]s 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.” To achieve these
         necessary objectives, States have enacted
         comprehensive and sometimes complex
         election codes. Each provision of these
         schemes, whether it governs the registration
         and qualifications of voters, the selection and
         eligibility of candidates, or the voting process
         itself, inevitably affects—at least in some
         degree—the individual’s right to vote and his
         right to associate with others for political
         ends. Nevertheless, the State’s important


    1
       I join in full Judge O’Scannlain’s dissent. I write separately to place
the majority’s decision today in context of the American democratic
tradition.
                        DNC V. HOBBS                         143

        regulatory interests are generally sufficient to
        justify reasonable, nondiscriminatory
        restrictions.

Anderson v. Celebrezze, 

, 788 (1983) (citation
omitted) (quoting Storer v. Brown, 

, 730
(1974)).

     Time, place, and manner restrictions are fundamentally
differently from provisions that affect the “Qualifications
requisite for Electors,” U.S. Const. art. I, § 2, cl. 1, and state
apportionments “according to their respective Numbers,” 

§ 2, cl. 3. The Constitution restricts with exactness the
qualifications states may require of their voters. See 

§ 1 (“race, color, or previous condition of
servitude”); amend. XIX (sex); amend. XXIV (“failure to pay
any poll tax or other tax”); amend. XXVI (those “eighteen
years of age or older, . . . on account of age”); Kramer v.
Union Free Sch. Dist. No. 15, 

(1969) (property
ownership). Similarly, the constitutional imperative for one
person, one vote demands that apportionment be subject to
precision approaching “absolute population equality,”
Karcher v. Daggett, 

, 732 (1983), “as nearly as
practicable,” Kirkpatrick v. Preisler, 

, 531
(1969).

    Time, place, and manner restrictions stand on different
footing from status-based restraints on vote qualifications and
legislative malapportionment. State requirements respecting
when and where we vote and how ballots will be counted are
“generally-applicable and evenhanded restrictions that protect
the integrity and reliability of the electoral process itself.”

n.9. By contrast, for example,
“redistricting differs from other kinds of state decisionmaking
144                         DNC V. HOBBS

in that the legislature always is aware of race when it draws
district lines, just as it is aware of age, economic status,
religions and political persuasion, and a variety of other
demographic factors.” Shaw v. Reno, 

, 646
(1993). Time, place, and manner restrictions are the rules of
the game, announced in advance, so that all voters will know
what they must do. Parties of all stripes should have an equal
interest in rules that are both fair on their face and fairly
administered.

    Two such rules are challenged here: the rule about how
Arizona will count out-of-precinct votes (OOP) and the rule
about who may file another person’s absentee ballot (H.B.
2023). As rules of general applicability, they apply to all
voters, without “account of race or color.” 52 U.S.C.
§ 10301(a).2 Rather than simply recognizing that Arizona has
enacted neutral, color-blind rules, the majority has embraced
the premise that § 2 of the VRA is violated when any
minority voter appears to be adversely affected by Arizona’s
election laws. Although the majority abjures this premise for
now, claiming that it does “not need to go so far” as equating
“the case of an individually targeted single minority voter
who is denied the right to vote and the case where a facially
neutral policy affects a single voter,” Maj. Op. at 45, its
analysis necessarily rests on that premise. The majority has


     2
       In relevant part, § 2 of the Voting Rights Act provides that “[n]o
voting qualification or prerequisite to voting or standard, practice, or
procedure shall be imposed or applied by any State . . . 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.” 52 U.S.C. § 10301(a). A
violation of § 2(a) may be shown “based on the totality of the
circumstances . . . [if] the political processes leading to nomination or
election in the State . . . are not equally open to participation by members
of a class of citizens [on account of race or color].” 

                       DNC V. HOBBS                         145

no limiting principle for identifying a de minimis effect in a
facially neutral time, place, or manner rule. The premise
finds its clearest expression in the Fourth Circuit’s opinion in
League of Women Voters of N.C. v. North Carolina, 

, 244 (4th Cir. 2014) (emphasis added): “[W]hat matters
for purposes of Section 2 is not how many minority voters are
being denied equal electoral opportunities but simply that
‘any’ minority voter is being denied equal electoral
opportunities.” See Maj. Op. at 41–42, 45–46, 107 (relying
on League of Women Voters). Such a premise insists on a
precision that we have never demanded before.

    By contrast, the Supreme Court explained that following
City of Mobile v. Bolden, 

(1980), “Congress
substantially revised § 2 to make clear that a violation could
be proved by showing discriminatory effect alone and to
establish as the relevant legal standard the ‘results test,’
applied . . . in White v. Regester, 

(1973).”
Thornburg v. Gingles, 

, 35 (1986). Yet in White,
the Court made clear that it “did not hold . . . that any
deviations from absolute equality, however small, must be
justified to the satisfaction of the judiciary to avoid
invalidation under the Equal Protection 

–64. Rather, the Court recognized that any rule in an
election scheme might suffer “relatively minor population
deviations . . . . ‘based on legitimate considerations incident
to the effectuation of a rational state policy.’” 

(quoting Reynolds v. Sims, 

, 579 (1964)).

   A “rational state policy” surely includes the need for a
consistent, neutral set of time, place, and manner rules. The
majority’s reading of the Voting Rights Act turns § 2 into a
“one-minority-vote-veto rule” that may undo any number of
time, place, and manner rules. It is entirely results-bound, so
146                    DNC V. HOBBS

much so that under the majority’s reading of the Voting
Rights Act, the same rules the majority strikes down in
Arizona may be perfectly valid in every other state, even
states within our circuit. It all depends on the numbers.
Indeed, so diaphonous is the majority’s holding, that it may
be a temporary rule for Arizona. If Arizona were to reenact
these provisions again in, say, 2024, the numbers might come
out differently and the OOP and ballot collection rules would
be lawful once again.

    The two Arizona rules at issue here—OOP and H.B.
2023—are rules of general applicability, just like the rules
governing voting on the day of the election, registering with
the Secretary of State, and bringing identification with you.
Such “‘evenhanded restrictions that protect the integrity and
reliability of the electoral process itself’ are not invidious.”
Crawford v. Marion Cty. Election Bd., 

, 189–90
(2008) (plurality opinion) (quoting 

n.9). Both rules the majority strikes down today have widely-
held, well-recognized—even distinguished—pedigrees. As
I show in Part I, the OOP is a long-standing rule that remains
in place in a majority of American jurisdictions. The rule the
majority prefers is a minority rule in the United States and,
more importantly, disregards Arizona’s interest in
encouraging voting in local elections and, in application, may
actually disadvantage minority voters. In Part II, I
demonstrate that, although H.B. 2023 is of more recent
vintage, similar rules are in place in other American
jurisdictions, and H.R. 2023 follows carefully the
recommendation of a bi-partisan commission on the integrity
of American elections.
                       DNC V. HOBBS                          147

                                I

    It has long been a feature of American democracy that, on
election day, voters must vote in person at an assigned polling
venue—an election precinct.

       [I]t is the well established practice in nearly
       every state to divide the county or city into a
       number of geographical districts for the
       purpose of holding elections. Each elector is
       required to vote at the polling place of his
       own precinct, which by custom is ordinarily
       located within the precinct, and, in cities,
       within a few blocks of his residence.

Joseph P. Harris, Election Administration in the United States
206–07 (1934). Like most American jurisdictions, Arizona’s
election rules require a non-absentee voter’s personal
presence at the polling place. Ariz. Rev. Stat. § 16-411(A)
(“The broad of supervisors of each county . . . shall establish
a convenient number of election precincts in the county and
define the boundaries of the precincts.”). The reasons for
such a venue rule are

       significant and numerous: it caps the number
       of voters attempting to vote in the same place
       on election day; it allows each precinct ballot
       to list all of the votes a citizen may cast for all
       pertinent federal, state, and local elections,
       referenda, initiatives, and levies; it allows
       each precinct ballot to list only those votes a
       citizen may cast, making ballots less
       confusing; it makes it easier for election
       officials to monitor votes and prevent election
148                         DNC V. HOBBS

         fraud; and generally puts polling places in
         closer proximity to voter residences.

Sandusky Cty. Democratic Party v. Blackwell, 

,
569 (6th Cir. 2004).3 Precincts help to secure the orderly
administration of elections, which then assures all voters of
the integrity of the election.

                                    A

   Arizona’s out of precinct rule (OOP) is a standard feature
of American democracy. Under Arizona’s election code,

    3
       “One of the major voting innovations in certain states was the
increase in the number of polling places.” Robert J. Dinkin, Voting in
Revolutionary America: A Study of Elections in the Original Thirteen
States, 1776–1789, at 96 (1982). Among the states, New York led the
way, “enacting a law in 1778 which stated that all future elections should
be held ‘not by counties but by boroughs, towns, manors, districts, and
precincts.’” 

(quoting Laws of New York, sess. 1, chap. 16
(1778)). In early America, polling places were located where the people
were:

         voting . . . in barns, private homes, country stores, and
         churches—almost anything that could separate voters
         from the election officials and the ballot boxes they
         tended. On the frontier, where buildings were even
         harder to find, votes were sometimes cast in sodhouse
         saloons, sutler stores near army forts, the front porches
         of adobe houses, and temporary lean-tos thrown
         together at desolate desert crossroads. In the larger
         cities, fire stations, warehouses, and livery stables were
         commonly used. One of the most common venues was
         liquor establishments. . . . Such an arrangement made
         an election noisy and, sometimes, violent.

Richard Franklin Bensel, The American Ballot Box in the Mid-Nineteenth
Century 9 (2004).
                            DNC V. HOBBS                               149

“[n]o person shall be permitted to vote unless such person’s
name appears as a qualified elector in both the general county
register and in the precinct register.” Ariz. Rev. Stat. § 16-
122. The election code provides extensive instructions for
electors who have changed their residence or whose name
does not appear on the precinct register; if there is any
question of the elector’s eligibility to vote in that precinct,
Arizona authorizes the filing of a provisional ballot. See, e.g.,
Ariz. Rev. Stat. §§ 16-135, 16-583, 16-584, 16-592.

    There is nothing unusual about Arizona’s OOP rule.4
Although there are variations in the way the rule is
formulated, by my count, twenty-six states, the District of
Columbia, and three U.S. territories disqualify ballots cast in
the wrong precinct.5 These states represent every region of
the country: The Northeast (Connecticut, Vermont), the mid-
Atlantic (Delaware, District of Columbia, West Virginia), the


     4
       For many years, a voter was not even permitted to cast a provisional
ballot in a precinct other than her own. See Harris, Election
Administration in the United States, at 287–88. The Help America Vote
Act (HAVA) now requires states to permit voters to cast a provisional
ballot. 52 U.S.C. § 21082(a). HAVA, however, does not affect a state’s
rules about how to process a provisional ballot. It does provide that states
must create a toll-free number that “any individual who casts a provisional
ballot may access to discover whether the vote of that individual was
counted, and, if the vote was not counted, the reasons that the vote was not
counted.” 52 U.S.C. § 21082(a)(5)(B); see 

(“HAVA is quintessentially about being able to cast a provisional
ballot. . . . [B]ut the ultimate legality of the vote cast provisionally is
generally a matter of state law.”).
    5
       I have listed all fifty states, the District of Columbia, and U.S.
territories, with relevant citations to their treatment of out of precinct
votes, in Appendix A. In Appendix B, I have categorized the jurisdictions
by rule.
150                         DNC V. HOBBS

South (Alabama, Florida, Kentucky, Mississippi, South
Carolina, Tennessee, Virginia, Virgin Islands), the mid-West
(Illinois, Indiana, Iowa, Michigan, Missouri, Nebraska, South
Dakota, Wisconsin), the Southwest (Arizona, Oklahoma,
Texas), the Mountain States (Montana, Wyoming), and the
West (American Samoa, Hawaii, Nevada, Northern Mariana
Islands). Twenty states and two territories will count out of
precinct ballots, although the states are not uniform in what
they will count.6 They also represent a broad spectrum of the
country: The Northeast (Maine, Massachusetts, New York,
Rhode Island), the mid-Atlantic (Maryland, New Jersey,
Pennsylvania), the South (Arkansas, Louisiana, North
Carolina, Georgia, Puerto Rico), the mid-West (Ohio,
Kansas), the Southwest (New Mexico), the Mountain States
(Colorado, Utah), and the West (Alaska, California, Guam,
Oregon, Washington).7

     Nowhere in its discussion of the “totality of the
circumstances” has the majority considered that Arizona’s
OOP provision is a widely held time, place, or manner rule.
It is not a redistricting plan, see Cooper v. Harris, 

(2017); League of United Latin Am. Citizens v. Perry,

(2006); Shaw v. Reno, 

(1993); a
multimember district, see Chisom v. Roemer, 

(1991); Gingles, 

; or an at-large system, see


    6
      For example, five states will count an out-of-precinct vote, but only
if the ballot is filed in the voter’s county (Kansas, New Mexico,
Pennsylvania, Utah) or town (Massachusetts). Louisiana and Rhode
Island will only count votes for federal office. Puerto Rico will count only
votes for Governor and Resident Commissioner.
    7
      Four states (Idaho, Minnesota, New Hampshire, North Dakota) are
not accounted for in either list because they allow same-day registration
and do not use provisional ballots.
                        DNC V. HOBBS                        151

Rogers v. Lodge, 

(1982).                   Those
“circumstances” are as unique as a fingerprint, subject to
manipulation, and require “an intensely local appraisal” of the
state’s plan. 

(internal quotation
marks and citation omitted). Arizona’s OOP applies
statewide; it is not a unique rule, but a traditional rule,
common to the majority of American states. The OOP rule,
as a rule of general applicability, is part of a “political
process[] . . . equally open to participation” by all Arizona
voters. 52 U.S.C. § 10301(b).

                               B

    The majority asserts that “counting or partially counting
OOP ballots would [not] threaten the integrity of Arizona’s
precinct-based system.” Maj. Op. at 78. Effectively, the
majority holds that Arizona must abandon its traditional
polling venue rules and accept the ballots of voters who cast
their ballot in the wrong precinct, at least for national and
state-wide offices. 

(citing the rules of California,
Utah, and New Mexico as an example of states partially
counting OOP ballots). Under the majority’s preferred
scheme, Arizona must count all votes for offices that are not
precinct dependent. As to the remainder of the ballot,
Arizona may—in accordance with its traditional rule—
disqualify the ballot for all offices for which the political
geography of the precinct matters. The majority has failed to
take into account that the rule it prefers has its own
consequences, including adverse consequences for minority
voters.

    Let’s review an example to consider the unintended
consequences of the majority’s haste. Under Arizona’s
traditional rules, the state would disqualify the ballot of a
152                    DNC V. HOBBS

voter from Tucson who votes in any precinct other than his
assigned precinct. Under the majority’s new rule, a voter
from Tucson may cross precinct lines and vote in any precinct
in Arizona—for instance, in Phoenix. His cross-precinct
ballot will be counted for those offices which are common to
ballots in his precinct-in-law in Tucson and his new precinct-
in-fact in Phoenix—such offices would include the
presidency, the U.S. Senate, and any statewide offices. His
ballot will be disqualified, however, for all state and local
offices defined by geographic boundaries that are not
common to the two precincts—for example, the U.S. House
of Representatives, the state legislature, and municipal offices
such as mayor, city council, and school board.

    The majority’s rule will skew future elections in Arizona
in two predictable ways. First, it overvalues national
elections. Ballots for the presidency, the U.S. Senate, and
any state offices that would otherwise be disqualified must be
counted. Voters—whether intentionally or carelessly—may
vote with impunity in the wrong precinct, knowing that their
vote will count for the national and statewide offices.

    Second, it undervalues local elections. Those same
ballots will not be counted toward those federal, state, and
local offices that are defined by geographic boundaries and
for which the voters from the outside precinct are not eligible.
Non-conscientious voters—voters who care more about a
national or a statewide race than the local races—are
permitted to vote wherever they please, while conscientious
voters—those concerned with all the offices on the
ballot—are burdened by the requirement that they find their
way to their proper precinct. And if the conscientious voter
can’t get to the polling place on time, he will have cast no
ballot for any office, national, state, or local.
                        DNC V. HOBBS                        153

    The net result is that the majority has lowered the cost to
voters of determining where they are supposed to vote, but
only as to presidential, U.S. Senate, and statewide races. As
the majority no doubt intends, persons who didn’t know or
were confused about their polling place will have their vote
counted, but only in select races. But as the majority may not
have thought through, anyone in Arizona, including people
who know where they are supposed to vote in an election (but
for one reason or another would not have otherwise voted
because it was inconvenient or impossible to vote at their
home precinct), will also be able to vote—but again, only in
select races. Arizona can thus expect more votes in the
presidential, senatorial, and state races than would be cast
under its traditional rules. I suppose that in theory that’s a
good thing. What the majority has not counted on is the
effect its order will have on the races that depend on
geographic boundaries within Arizona: congressional, state-
legislative, and local offices. When voters do not go to their
local precincts to vote, they cannot vote in those races.
Voters who do not take the time to determine their
appropriate precinct—for whatever reason—and vote out of
precinct have disenfranchised themselves with respect to the
local races. That’s a bad thing.

    Arizona’s longstanding, neutral rule gives voters an
incentive to figure out where their polling place is, which, in
turn, encourages voters to cast ballots in national, state, and
local elections. In effect, Arizona has stapled national and
statewide elections to other state and local elections. The
opportunity to vote in any one race is the opportunity to vote
in all races. It’s strong medicine, but Arizona’s rule is a self-
protective rule; it helps encourage voting and, presumably,
interest in local elections. The majority’s preferred rule gives
voters an incentive to vote wherever it is convenient for them
154                    DNC V. HOBBS

which increases the likelihood they will vote in certain
national and statewide races, but decreases the likelihood they
will vote in other state and local races. It places a burden on
voters who wish to exercise their right to vote on all matters
to which they are entitled, a burden that simply would not
exist for the less-engaged voter. The majority’s rule
contradicts our most basic principles of federalism by
deeming elections for national and statewide offices more
important than those for lesser offices.

    The majority’s concern is based on the fact that voters
who vote in the wrong precinct are more likely to be
minorities. Maj. Op. at 42–44. If that fact holds true in the
future—and it may not because, as I have explained, any
voter in Arizona (including those who know where to vote)
may take advantage of the majority’s new rule—then
minority ballots will be underrepresented in the local races.
Under the majority’s preferred scheme, it is thus likely that
more minorities will fail to vote in local elections—elections
that most directly affect the daily lives of ordinary citizens,
and often provide the first platform by which citizen-
candidates, not endowed with personal wealth or name
recognition, seek on the path to obtaining higher office. In
any event, the court has just put a big thumb on the scale of
the Arizona elections—national, state, and local—with
unclear results.

    These concerns are magnified when we consider the
relatively small number of OOP ballots. See Democratic
Nat’l Comm. v. Reagan, 

, 873 (D. Ariz.
2018). It is more likely that these ballots would make a
difference in a local election than in a national or statewide
election. Arizona’s rule encourages its OOP voters—white,
African-American, Hispanic, or other—to vote in the correct
                             DNC V. HOBBS                                155

precinct. Under Arizona’s current OOP rule, a voter, having
gone to the trouble of going to a precinct to vote in person
and suffering the indignity of having to fill out a provisional
ballot, is less likely to make the same mistake the next year.8
A voter who has had a ballot disqualified is more likely to
figure out the correct precinct next time—or, better yet, sign
up for the convenience of early voting, a measure that avoids
the conundrum of OOP altogether.9 The voter who only votes



    8
       The Majority dismisses this point by highlighting how Arizona has
frequently changed polling places in some localities. Maj. Op. at 111
(referring to Arizona’s high rate of OOP voting). But there is no evidence
in the record that the same voters’s ballots are excluded as OOP year after
year. My point is that a voter who has had her ballot excluded as OOP is
more likely to exercise greater care in finding the right polling location
next time.
    9
       The Majority worries that OOP voters may never come to know that
their votes were in fact rejected and, hence, will never learn from the
situation. Maj. Op. at 110. Whatever the cause for the Majority’s
concern, Arizona’s statutory law is not to blame. Arizona law specifically
requires county recorders to establish “a method of notifying the
provisional ballot voter at no cost to the voter whether the voter’s ballot
was verified and counted and, if not counted, the reason for not counting
the ballot.” Ariz. Rev. Stat. Ann. § 16-584(F) (2019). Thus, voters should
have the opportunity to find out whether their vote was counted.

     Further, to the extent that voters inadvertently vote in the wrong
precinct, that is not a failing of Arizona law. Instead, the law requires that
voters’ names be checked on the precinct register. If a voter’s name does
not appear on the register, then the address is checked to confirm that the
voter resides within that jurisdiction. 

584(B). Once the address
is confirmed to be in the precinct or the voter affirms in writing that the
voter is eligible to vote in that jurisdiction, the voter “shall be allowed to
vote a provisional ballot.” 

Arizona law, no voter
should inadvertently vote at the wrong precinct without some indication
that something is amiss.
156                     DNC V. HOBBS

where it is convenient has disenfranchised himself from local
elections.

    States such as California, Utah, and New Mexico have
made the same choice the majority forces on Arizona. Those
states may or may not have made the calculus I have set out
here and they may or may not have measured the costs and
benefits of their new rule; it’s theirs to experiment with.
They may conclude that the new rule is the right one; they
may not. And if any of those states decides that the count-
the-ballots-partially rule is not the best rule, those states will
be free to adopt a different rule, including the OOP rule the
majority strikes down today. After today’s decision, Arizona
has no such recourse.

                                II

    H.B. 2023 presents a different set of considerations.
There is no constitutional or federal statutory right to vote by
absentee ballot. See McDonald v. Bd. of Election Comm’rs
of Chi., 

, 807–08 (1969) (“It is thus not the right
to vote that is at stake here but a claimed right to receive
absentee ballots. . . . [T]he absentee statutes, which are
designed to make voting more available to some groups who
cannot easily get to the polls, do not themselves deny . . . the
exercise of the franchise . . . .”); see also 

(Scalia, J., concurring in the judgment) (“That the
State accommodates some voters by permitting (not
requiring) the casting of absentee or provisional ballots, is an
indulgence—not a constitutional imperative that falls short of
what is required.”); Griffin v. Roupas, 

, 1130
(7th Cir. 2004) (rejecting the claim that there is “a blanket
right of registered voters to vote by absentee ballot” because
“it is obvious that a federal court is not going to decree
                            DNC V. HOBBS                             157

weekend voting, multi-day voting, all-mail voting, or Internet
voting”).10 Nevertheless, if a state is going to offer absentee
ballots, it must do so on an equal basis. Arizona’s absentee
ballot rule, like its OOP rule, is a neutral time, place, or
manner provision to help ensure the integrity of the absentee
voting process. In fact, what is at issue here is not the right
of Arizona voters to obtain and return an absentee ballot, but
the question of who can physically return the ballot.

                                     A

     H.B. 2023 provides that “[a] person who knowingly
collects voted or unvoted early ballots from another person is
guilty of a class 6 felony.” Ariz. Rev. Stat. Ann. § 16-
1005(H) (codifying H.B. 2023). The law does not apply to
three classes of persons: (1) “[a]n election official,” (2) “a
United States postal service worker or any other person who
is allowed by law to transmit United States mail,” and (3) “[a]


    10
       “The exercise of a public franchise by proxy was illegal at common
law.” Cortlandt F. Bishop, History of Elections in the American Colonies
129 (1893). The Colonies experimented with proxy votes, with varying
degrees of success. Proxy voting was not a success in at least one colony.
A 1683 letter to the Governor of South Carolina warned:

         Wee are informed that there are many undue practices
         in the choyce of members of Parlmt, and that men are
         admitted to bring papers for others and put in their
         votes for them, wh is utterly illegal & contrary to the
         custome of Parliaments & will in time, if suffered, be
         very mischeevious: you are therefore to take care that
         such practices be not suffered for the future, but every
         man must deliver his own vote & noe man suffered to
         bring the votes of another . . . .

(spelling in original) (citation omitted).
158                        DNC V. HOBBS

family member, household member or caregiver of the voter.”

1005(H)–(I)(2).

    The Arizona provision is substantially similar to the laws
in effect in many other states. In Indiana, for example, it is a
felony for anyone to collect a voter’s absentee ballot, with
exceptions for members of the voter’s household, the voter’s
designated attorney in fact, certain election officials, and mail
carriers. Ind. Code § 3-14-2-16(4). Connecticut also restricts
ballot collection, permitting only the voter, a designee of an
ill or disabled voter, or the voter’s immediate family
members to mail or return an absentee ballot. Conn. Gen.
Stat. § 9-140b(a). New Mexico likewise permits only the
voter, a member of the voter’s immediate family, or the
voter’s caregiver to mail or return an absentee ballot. N.M.
Stat. Ann. § 1-6-10.1. At least seven other states (Georgia,
Missouri, Nevada, North Carolina, Oklahoma, Ohio, and
Texas) similarly restrict who can personally deliver an
absentee ballot to a voting location. Ga. Code Ann. § 21-2-
385(a) (limiting who may personally deliver an absentee
ballot to designees of ill or disabled voters or family
members); Mo. Rev. Stat. § 115.291(2) (restricting who can
personally deliver an absentee ballot); Nev. Rev. Stat. Ann.
§ 293.330(4) (making it a felony for anyone other than the
voter or the voter’s family member to return an absentee
ballot); Okla. Stat. tit. 26, § 14-108(C) (voter delivering a
ballot must provide proof of identity); Ohio Rev. Code Ann.
§ 3509.05(A) (limiting who may personally deliver an absent
voter’s ballot); Tex. Elec. Code Ann. § 86.006(a) (permitting
only the voter to personally deliver the ballot).11


    11
      Until recently, two other states had similar provisions on the books.
California formerly limited who could return mail ballots to the voter’s
family or those living in the same household. Compare Cal. Elec. Code
                           DNC V. HOBBS                               159

    Other states are somewhat less restrictive than Arizona
because they permit a broader range of people to collect early
ballots from voters but restrict how many ballots any one
person can collect and return. Colorado forbids anyone from
collecting more than ten ballots. Colo. Rev. Stat. § 1-7.5-
107(4)(b). North Dakota prohibits anyone from collecting
more than four ballots, N.D. Cent. Code § 16.1-07-08(1);
New Jersey, N.J. Stat. Ann. § 19:63-4(a), and Minnesota,
Minn. Stat. Ann. § 203B.08 sbd. 1, three; Arkansas, Ark.
Code Ann. § 7-5-403(a)(1), Nebraska, Neb. Rev. Stat. § 32-
943(2), and West Virginia, W. Va. Code § 3-3-5(k), two.
South Dakota prohibits anyone from collecting more than one
ballot without notifying “the person in charge of the election
of all voters for whom he is a messenger.” S.D. Codified
Laws § 12-19-2.2.

    Still other states have adopted slightly different
restrictions on who may collect early ballots. California,
Maine, and North Dakota, for example, make it illegal to
collect an absentee ballot for compensation. Cal. Elec. Code
§ 3017(e)(1); Me. Rev. Stat. Ann. tit. 21-A, § 791(2)(A)
(making it a crime to receive compensation for collecting
absentee ballots); N.D. Cent. Code § 16.1-07-08(1)
(prohibiting a person from receiving compensation for acting
as an agent for an elector). Florida and Texas make it a crime
to receive compensation for collecting certain numbers of


§ 3017(a)(2) (West 2019), with Cal. Elec. Code § 3017(a) (West 2015).
It only amended its law in 2016. 2016 Cal. Legis. Serv. ch. 820 (West).
Illinois also used to make it a felony for anyone but the voter, his or her
family, or certain licensed delivery companies to mail or deliver an
absentee ballot. 10 Ill. Comp. Stat. Ann. 5/19-6 (1996); 10 Ill. Comp.
Stat. 5/29-20(4). Illinois amended that provision in 2015 to let voters
authorize others to mail or deliver their ballots. 10 Ill. Comp. Stat. Ann.
5/19-6 (2015).
160                     DNC V. HOBBS

ballots. Fla. Stat. Ann. § 104.0616(2) (making it a
misdemeanor to receive compensation for collecting more
than two vote-by-mail ballots); Tex. Elec. Code Ann.
§ 86.0052(a)(1) (criminalizing compensation schemes based
on the number of ballots collected for mailing).

    Some of these laws are stated as a restriction on how the
early voter may return a ballot. In those states, the voter risks
having his vote disqualified. See, e.g., Wrinn v. Dunleavy,

, 272 (Conn. 1982) (disqualifying ballots and
ordering a new primary election when an unauthorized
individual mailed absentee ballots). In other states, as in
Arizona, the statute penalizes the person collecting the ballot.
See Ind. Code Ann. § 3-14-2-16 (making it a felony
knowingly to receive a ballot from a voter); Nev. Rev. Stat.
Ann. § 293.330(4) (making it a felony for unauthorized
persons to return an absentee ballot); Tex. Elec. Code Ann.
§ 86.006(f)–(g) (making it a crime for an unauthorized person
to possess an official ballot); see also Murphy v. State,

, 594–96 (Ind. Ct. App. 2005) (affirming a
denial of a motion to dismiss a charge for unauthorized
receipt of a ballot from an absentee voter); People v.
Deganutti, 

, 198 (Ill. App. Ct. 2004)
(affirming conviction for absentee ballot violation). In those
states, the ballot, even if collected improperly, may be valid.
See In re Election of Member of Rock Hill Bd. of Educ.,

, 1122–23 (Ohio 1996) (holding that a ballot
will not be disqualified for a technical error).
                             DNC V. HOBBS                                161

   In sum, although states have adopted a variety of rules,
Arizona’s ballot collection rule is fully consonant with the
broad range of rules throughout the United States.12

                                     B

    Even more striking than the number of other states with
similar provision is that H.B. 2023 follows precisely the
recommendation of the bi-partisan Carter-Baker Commission
on Federal Election Reform.13 The Carter-Baker Commission
found:

         Absentee ballots remain the largest source of
         potential voter fraud. . . . Absentee balloting is
         vulnerable to abuse in several ways: . . .
         Citizens who vote at home, at nursing homes,
         at the workplace, or in church are more
         susceptible to pressure, overt and subtle, or to
         intimidation. Vote buying schemes are far
         more difficult to detect when citizens vote by
         mail. States therefore should reduce the risks
         of fraud and abuse in absentee voting by
         prohibiting “third-party” organizations,



    12
       For context, Appendix C provides the relevant provisions of the
laws from all fifty states, the District of Columbia, and the U.S. territories
regarding the collection and mailing of absentee ballots.
    13
       The Commission on Federal Election Reform was organized by
American University’s Center for Democracy and Election Management
and supported by the Carnegie Corporation of New York, The Ford
Foundation, the John S. and James L. Knight Foundation, and the
Omidyar Network. It was co-chaired by former President Jimmy Carter
and former Secretary of State James Baker.
162                    DNC V. HOBBS

       candidates, and political party activists from
       handling absentee ballots.

Comm’n on Fed. Elections Reform, Building Confidence in
U.S. Elections 46 (2005) (“Building Confidence”) (footnote
omitted). The Carter-Baker Commission recommended that
“States . . . should reduce the risks of fraud and abuse in
absentee voting by prohibiting ‘third-party’ organizations,
candidates, and political party activists from handling
absentee ballots.” 

a formal recommendation:

           State and local jurisdictions should
       prohibit a person from handling absentee
       ballots other than the voter, an acknowledged
       family member, the U.S. Postal Service or
       other legitimate shipper, or election officials.
       The practice in some states of allowing
       candidates or party workers to pick up and
       deliver absentee ballots should be eliminated.

(Recommendation 5.2.1).

    The Carter-Baker Commission recommended that states
limit the persons, other than the voter, who handle or collect
absentee ballots to three classes of persons: (1) family
members, (2) employees of the U.S. Postal Service or another
recognized shipper, and (3) election officials. H.B. 2013
allows two classes of persons to collect absentee ballots:
(1) election officials and (2) employees of the U.S. Postal
Service “or any other person who is allowed by law to
transmit United States mail.” Ariz. Rev. Stat. § 16-1005(H).
H.B. 2023 also provides that the prior restriction on collection
of ballots does not apply to “[a] family member, household
member or caregiver of the voter.” 

1005(I)(2). With
                        DNC V. HOBBS                         163

respect to election officials and mail delivery workers,
Arizona tracks exactly the recommendation from the
Commission. With respect to family, however, Arizona’s
provision is more generous than the Carter-Baker
Commission’s recommendation. Whereas the Commission
recommended that only family members be permitted to
handled a voter’s absentee ballot, Arizona expanded the class
of absentee ballot handlers to “household member[s]” and
“caregiver[s].”

     I don’t see how Arizona can be said to have violated the
VRA when it followed bipartisan recommendations for
election reform in an area the Carter-Baker Commission
found to be fraught with the risk of voter fraud. Nothing
could be more damaging to confidence in our elections than
fraud at the ballot box. And there is evidence that there is
voter fraud in the collecting of absentee ballots. As the
Seventh Circuit described it: “Voting fraud is a serious
problem in U.S. elections generally . . . and it is facilitated by
absentee voting. . . . [A]bsentee voting is to voting in person
as a take-home exam is to a proctored one.” 

–31; see also 

(“[T]here is
considerable room for fraud in absentee voting and . . . a
failure to comply with the regulatory provision governing
absentee voting increases the opportunity for fraud.” (citation
omitted)); Qualkinbush v. Skubisz, 

, 1197
(Ill. App. Ct. 2004) (“[T]he integrity of a vote is even more
susceptible to influence and manipulation when done by
absentee ballot.”); Adam Liptak, Error and Fraud at Issue as
Absentee Voting Rises, N.Y. Times (Oct. 6, 2012),
164                        DNC V. HOBBS

http://nyti.ms/QUbcrg (discussing a variety of problems in
states).14

    Organized absentee ballot fraud of sufficient scope to
corrupt an election is no doomsday hypothetical: it happened
as recently as 2018 in North Carolina. In the state’s Ninth
Congressional District, over 282,000 voters cast ballots,
either in person or absentee. See Brief of Dan McCready at 7,
In re Investigation of Election Irregularities Affecting Ctys.
Within the 9th Cong. Dist. (N.C. State Bd. of Elections Feb.
12, 2019) [hereinafter McCready Br.]. North Carolina
permits “[a]ny qualified voter” in the state to vote by
absentee ballot. N.C. Gen. Stat. § 163A-1295. However, like
Arizona, the state adheres to the Commission’s
recommendations and restricts the categories of persons who
may collect a voter’s absentee ballot. It is a Class I felony in
North Carolina for “any person except the voter’s near
relative or the voter’s verifiable legal guardian to assist the
voter to vote an absentee ballot.” 

    In last year’s election in the Ninth Congressional District,
evidence suggested that a political activist hired by the
Republican nominee paid employees to collect absentee
ballots—possibly more than 1,000—from voters in violation
of § 163A-1298. See Indictment, State v. Dowless,
No. 19CRS001934 (N.C. Super. Ct. July 30, 2019);
McCready Br. at app. 2–3. An employee of the suspected

    14
       Pressure on absentee voters has long been noted. See Harris,
Election Administration in the United States, at 302 (“The amount of
intimidation now exercised by the precinct captain in many sections of
large cities is very great; with mail voting it would be enormously
increased. The overbearing and dominant precinct captain would insist
upon seeing how each voter under obligation to him had marked his ballot,
and the voter would have no protection against such tactics.”).
                       DNC V. HOBBS                        165

activist testified that she personally collected about three
dozen ballots. See Transcript of Evidentiary Hearing at 150,
In re Investigation of Election Irregularities Affecting Ctys.
Within the 9th Cong. Dist. (N.C. State Bd. of Elections Feb.
18, 2019). She also helped fill in about five or ten
incomplete, unsealed ballots in favor of Republican
candidates. 

99, 152–53. The ballots were kept at
the activist’s home and office for days or longer before they
were turned in. 

A voter testified that she turned
over her blank ballot to the activist’s employees in an
unsealed envelope, trusting that the activist would make a
good decision for her. 

214–15.

    This coordinated ballot fraud led the state Board of
Elections to invalidate the results of the election, which had
been decided by only 905 votes—fewer than the amount of
suspected fraudulent ballots. Order at 10, 44–45, In re
Investigation of Election Irregularities Affecting Ctys. Within
the 9th Cong. Dist. (N.C. State Bd. of Elections Mar. 13,
2019). The residents of the district—some 778,447
Americans—were thus unrepresented in the House of
Representatives for the better part of a year. Perhaps the
more devastating injury will be the damage this episode does
to North Carolinians’ confidence in their election system.

    The majority acknowledges that the Democratic Party
disproportionately benefits from get-out-the-vote efforts by
collecting mail-in ballots. See, e.g., Maj. Op. at 83 (quoting

). Further, the majority
acknowledges that Democratic activists have often led such
collection efforts. 

experience of North Carolina
with Republican activists shows starkly the inherent danger
to allowing political operatives to conduct collections of
mail-in ballots. Arizona is well within its right to look at the
166                    DNC V. HOBBS

perils endured by its sister states and enact prophylactic
measures to curtail any similar schemes. By prohibiting
overtly political operatives and activists from playing a role
in the ballot-collection process, Arizona mitigates this risk.
And the State’s well-acknowledged past sins should not
prevent it from using every available avenue to keep safe the
public’s trust in the integrity of electoral outcomes.

    Indeed, Arizona does not have to wait until it has proof
positive that its elections have been tainted by absentee ballot
fraud before it may enact neutral rules. “Legislatures . . .
should be permitted to respond to potential deficiencies in the
electoral process with foresight rather than reactively.”
Munro v. Socialist Workers Party, 

, 195 (1986).
In Crawford, the Supreme Court quoted with approval the
Carter-Baker Commission:

       There is no evidence of extensive fraud in
       U.S. elections or of multiple voting, but both
       occur, and it could affect the outcome of a
       close election. The electoral system cannot
       inspire public confidence if no safeguards
       exist to deter or detect fraud or to confirm the
       identity of voters.

(quoting Building Confidence
at 18) (footnote omitted).

    The majority today holds that, as a matter of federal law,
Arizona may not enforce a neutrally drawn statute
recommended by a bi-partisan commission criminalizing the
very conduct that produced a fraudulent outcome in a race for
Congress less than a year ago. When the Voting Rights Act
requires courts to consider the “totality of the circumstances,”
                       DNC V. HOBBS                        167

it is a poor understanding of the Act that would strike
common time, place, and manner restrictions designed to
build confidence in the very voting system that it now leaves
vulnerable.

                              III

     As citizens of a democratic republic, we understand
intuitively that we have a legal right and a moral duty to cast
a ballot in free elections. The states have long had the power
to fashion the rules by which its citizens vote for their
national, state, and local officials. Once we consider that
“totality of the circumstances” must take account of long-
held, widely adopted measures, we must conclude that
Arizona’s time, place, and manner rules are well within our
American democratic-republican tradition. Nothing in the
Voting Rights Act makes “‘evenhanded restrictions that
protect the integrity and reliability of the electoral process’
. . . invidious.” 

–90 (quoting

n.9).

    I would affirm the judgment of the district court, and I
respectfully dissent.
168                DNC V. HOBBS

                     Appendix A

  State and Territory Laws Regarding Treatment of
          Out-of-Precinct Provisional Ballots

  Jurisdiction                   Citation
 Alabama         Ala. Code § 17-9-10 (2019) (providing
                 that voters must vote in their “county
                 and voting place” of domicile); see also
                 Davis v. Bennett, 

, 131
                 (Ala. 2014) (affirming that Alabama
                 law requires voters to cast ballots at the
                 correct voting place).
 Alaska          Alaska Stat. Ann. § 15.20.207(b) (West
                 2019) (failing to list out-of-precinct
                 voting as grounds for rejecting a
                 ballot); Alaska Stat. Ann.
                 § 15.20.211(a) (West 2019) (providing
                 that a voter may cast a vote in another
                 house district for statewide and federal
                 offices); see also Hammond v. Hickel,
                 

, 264 (Alaska 1978)
                 (“There is no constitutional requirement
                 of precinct residency, and there is clear
                 statutory authorization for persons
                 claiming to be registered voters to vote
                 a questioned ballot if there is no
                 evidence of registration in the precinct
                 in which the voter seeks to vote.”).
 American        Am. Samoa Code Ann. § 6.0223(b)–(c)
 Samoa           (providing that a voter’s right to vote
                 may be challenged if the voter “is not
                DNC V. HOBBS                         169

              entitled to vote in that district” and, if
              true, the ballot will be rejected).
Arizona       Ariz. Rev. Stat. Ann. § 16-584(D)–(E)
              (2018) (requiring confirmation that the
              voter resided in the precinct).
Arkansas      Ark. Code Ann. § 7-5-308(f) (West
              2017) (requiring only that voters be
              registered to vote in the state).
California    Cal. Elec. Code § 14310(c)(3) (West
              2019) (“The provisional ballot of a
              voter who is otherwise entitled to vote
              shall not be rejected because the voter
              did not cast his or her ballot in the
              precinct to which he or she was
              assigned by the elections official.”).
Colorado      8 Colo. Code Regs. § 1505-1:17.2.9
              (2019) (providing that if an elector used
              the wrong ballot, then “only races and
              issues for which the elector [was]
              qualified to vote may be counted”).
Connecticut   Conn. Gen. Stat. Ann. §§ 9-232, 9-232n
              (West 2019) (requiring that only
              provisional ballots by applicants
              eligible to vote in a given town may be
              counted).
Delaware      Del. Code Ann. tit. 15,
              § 4948(h)(7)–(8) (West 2015)
              (explaining that provisional ballots may
              not be counted if cast by voters outside
              of their election districts).
170              DNC V. HOBBS

 District of   D.C. Code Ann. § 1-1001.09(b)(3)
 Columbia      (West 2017) (providing that, aside from
               those requiring accessible entrances,
               “[n]o registered qualified elector of the
               District may cast a vote in a precinct
               that does not serve his or her current
               residence”); D.C. Mun. Regs. tit. 3,
               § 807 (2019) (stating that a provisional
               ballot may be tabulated if, inter alia,
               “the voter cast the Special Ballot at the
               precinct in which the voter maintains
               residence or at an early voting center
               designated by the Board”).
 Florida       Fla. Stat. Ann. § 101.048(2)(a) (West
               2019) (“The county canvassing board
               shall examine each Provisional Ballot
               Voter’s Certificate and Affirmation to
               determine if the person voting that
               ballot was entitled to vote at the
               precinct where the person cast a vote in
               the election . . . .”).
 Georgia       Ga. Code Ann. § 21-2-419(c)(2) (West
               2019) (stating that if a voter voted in
               the wrong precinct, then races for
               which the voter was entitled to vote
               shall be counted).
 Guam          3 Guam Code Ann. § 14105(a) (2016)
               (“When a provisional voter casts a
               provisional ballot in the incorrect
               precinct, election officials shall count
               the votes on that ballot in every race for
               which the voter would be entitled to
             DNC V. HOBBS                          171

           vote if he or she had been in the correct
           precinct.”).
Hawai‘i    Haw. Code R. § 3-172-140(c)(3) (2017)
           (“If [the] county clerk determines the
           individual is not eligible to vote in the
           precinct where the provisional ballot
           was cast, the provisional ballot shall not
           be counted.”).
Idaho      Does not use provisional ballots
           because the state allows for election-
           day registration. See Idaho Code Ann.
           § 34-408A (West 2019).
Illinois   10 Ill. Comp. Stat. Ann. 5/18A-15(b)(1)
           (West 2015) (explaining that a
           provisional ballot is valid if, inter alia,
           “the provisional voter cast the
           provisional ballot in the correct
           precinct”).
Indiana    Ind. Code Ann. § 3-11.7-5-3(a) (West
           2019) (providing that a ballot is invalid
           and may not be counted if “the
           provisional voter is not a qualified voter
           of the precinct”).
Iowa       Iowa Code Ann. § 49.9 (West 2019)
           (explaining that “a person shall not vote
           in any precinct but that of the person’s
           residence”).
Kansas     Kan. Stat. Ann. § 25-3002(b)(3) (West
           2019) (explaining that if a voter cast a
           ballot for the wrong precinct, but was
172                DNC V. HOBBS

                 still within the same county, then votes
                 for which the voter was eligible will be
                 counted).
 Kentucky        31 Ky. Admin. Regs. 6:020(14) (2019)
                 (“If the county board of elections
                 determines the individual is ineligible
                 to vote in the precinct in the election,
                 the vote shall not be counted . . . .”).
 Louisiana       La. Stat. Ann. § 18:556.2(F)(3)(a)–(b)
                 (2017) (stating that a provisional ballot
                 may be counted if the voter was a
                 registered voter in the parish and was
                 eligible to vote for the federal offices
                 cast).
 Maine           Me. Stat. tit. 11, § 50 (2019) (providing
                 that all ballots cast in Maine will be
                 counted so long as “challenged ballots
                 are insufficient in number to affect the
                 result of the election”).
 Maryland        Md. Code Ann., Elec. Law § 11-
                 303(e)(2) (West 2019) (stating that if
                 the voter voted out of precinct, “only
                 the votes cast by the voter for each
                 candidate or question applicable to the
                 precinct in which the voter resides” will
                 get counted).
 Massachusetts   Mass. Gen. Laws Ann. ch. 54, § 76C(d)
                 (West 2004) (“A provisional ballot cast
                 by a person whose name is not on the
                 voting list for the city or town in which
                DNC V. HOBBS                         173

              they are claiming the right to vote, but
              whom the city or town clerk determines
              to be eligible to vote in another precinct
              of the same city or town, shall be
              counted in the precinct in which the
              person cast the provisional ballot for all
              offices for which the person is eligible
              to vote.”).
Michigan      Mich. Comp. Laws Ann. § 168.813(1)
              (West 2018) (stating that provisional
              ballots may only be counted “if the
              identity and residence of the elector is
              established”).
Minnesota     Does not use provisional ballots
              because the state allows for election-
              day registration. See Minn. Stat. Ann.
              § 201.061 subd. 3(a) (West 2017).
Mississippi   1 Miss. Admin. Code Pt. 10, Exh. A
              (2019) (“Poll managers shall advise an
              affidavit voter his/her ballot will not
              count if he/she is voting at the wrong
              polling place.”).
Missouri      Mo. Ann. Stat. § 115.430(2)(1) (West
              2019) (explaining that ballots voted in
              a polling place where the voter was not
              eligible to vote will not be counted).
Montana       Mont. Code Ann. § 13-15-107 (West
              2019) (stating that a ballot must be
              rejected if the voter’s identity and
              eligibility cannot be verified).
174             DNC V. HOBBS

 Nebraska     Neb. Rev. Stat. Ann. § 32-1002(5)(e)
              (West 2019) (providing that a
              provisional ballot shall not be counted
              if “[t]he residence address provided on
              the registration application completed
              . . . is in a different county or in a
              different precinct than the county or
              precinct in which the voter voted”).
 Nevada       Nev. Rev. Stat. Ann. § 293.3085 (West
              2019) (“A provisional ballot must not
              be counted if the county or city clerk
              determines that the person who cast the
              provisional ballot cast the wrong ballot
              for the address at which the person
              resides.”).
 New          Does not use provisional ballots
 Hampshire    because the state allows for election-
              day registration. See N.H. Rev. Stat.
              Ann. § 654:7-a (2017).
 New Jersey   N.J. Stat. Ann. § 19:53C-17 (West
              2019) (“If, for any reason, a provisional
              ballot voter votes a ballot other than the
              ballot for the district in which the voter
              is qualified to vote, the votes for those
              offices and questions for which the
              voter would be otherwise qualified to
              vote shall be counted. All other votes
              shall be void.”).
 New Mexico   N.M. Stat. Ann. § 1-12-25.4(F) (West
              2019) (“If the voter is a registered voter
              in the county but has voted on a
                   DNC V. HOBBS                         175

                 provisional paper ballot other than the
                 ballot of the voter’s correct precinct,
                 the county canvassing board shall
                 ensure that only those votes for the
                 positions or measures for which the
                 voter was eligible to vote are
                 counted.”).
New York         N.Y. Elec. Law § 9-209(2)(a)(iii)
                 (McKinney 2019) (“If the board of
                 elections determines that a person was
                 entitled to vote at such election, the
                 board shall cast and canvass such ballot
                 if such board finds that the voter
                 appeared at the correct polling place,
                 regardless of the fact that the voter may
                 have appeared in the incorrect election
                 district.”).
North Carolina   N.C. Gen. Stat. Ann. § 163A-
                 1169(a)(4) (West 2019) (“If the county
                 board of elections finds that an
                 individual voting a provisional official
                 ballot (i) was registered in the county as
                 provided in G.S. 163A-1166, (ii) voted
                 in the proper precinct under G.S. 163A-
                 841 and G.S. 163A-842, and (iii) was
                 otherwise eligible to vote, the
                 provisional official ballots shall be
                 counted by the county board of
                 elections before the canvass. Except as
                 provided in G.S. 163A-1184(e), if the
                 county board finds that an individual
                 voting a provisional official ballot
176                  DNC V. HOBBS

                   (i) did not vote in the proper precinct
                   under G.S. 163A-841 and G.S. 163A-
                   842, (ii) is not registered in the county
                   as provided in G.S. 163A-860, or (iii) is
                   otherwise not eligible to vote, the ballot
                   shall not be counted. If a voter was
                   properly registered to vote in the
                   election by the county board, no
                   mistake of an election official in giving
                   the voter a ballot or in failing to comply
                   with G.S. 163A-1184 or G.S. 163A-
                   1142 shall serve to prevent the counting
                   of the vote on any ballot item the voter
                   was eligible by registration and
                   qualified by residency to vote.”).
 North Dakota      North Dakota does not require voters to
                   be registered and does not utilize
                   provisional ballots. See N.D. Cent.
                   Code Ann. § 16.1-01-04 (West 2019).
 Northern          1 N. Mar. I. Code § 6215(b)–(c) (2014)
 Mariana Islands   (providing that a voter’s right to vote
                   may be challenged if the voter “is not
                   entitled to vote in that election district”
                   and, if true, the ballot will be rejected).
 Ohio              Ohio Rev. Code Ann. § 3505.183(D)
                   (West 2019) (stating that under certain
                   circumstances, if a voter cast a ballot in
                   the wrong precinct due to poll-worker
                   error, then the votes for which the voter
                   would have been eligible to cast are
                   counted).
                 DNC V. HOBBS                           177

Oklahoma       Okla. Stat. Ann. tit. 26, § 7-116.1(C)
               (West 2019) (“A provisional ballot
               shall be counted only if it is cast in the
               precinct of the voter’s residence . . . .”).
Oregon         Or. Rev. Stat. Ann. § 254.408(6) (West
               2018) (explaining that provisional votes
               will be counted according to whether
               “the elector is qualified to vote for the
               particular office or on the measure”).
Pennsylvania   25 Pa. Stat. and Cons. Stat. Ann.
               § 3050(a.4)(7) (West 2012) (providing
               that so long as a ballot is cast within the
               voter’s county, if it is cast in the wrong
               election district, then only votes which
               the voter was entitled to make will be
               counted).
Puerto Rico    P.R. Laws Ann. tit. 16, § 4062 (2011)
               (“If a voter votes in a precinct other
               than the one where he/she is registered,
               only the vote cast for the offices of
               Governor and Resident Commissioner
               shall be adjudicated during the general
               canvass.”).
Rhode Island   410 R.I. Code R. § 20-00-13.7(C)(1)(b)
               (2012) (stating that when a voter who
               cast a provisional ballot lives outside of
               the precinct, the ballot shall be marked
               “Federal Offices Only” and only votes
               for federal officials for whom the voter
               was eligible to vote shall be counted).
178                 DNC V. HOBBS

 South Carolina   S.C. Code Ann. § 7-13-830 (2019) (“If
                  the board certifies the person
                  challenged is not a qualified elector of
                  the precinct, this certification is
                  considered an administrative challenge
                  and is clear and convincing evidence
                  for the meeting authority to disallow
                  the ballot.”).
 South Dakota     S.D. Codified Laws § 12-20-5.1 (2019)
                  (“Prior to the official canvass, the
                  person in charge of the election shall
                  determine if the person voting by
                  provisional ballot was legally qualified
                  to vote in the precinct in which the
                  provisional ballot was cast.”).
 Tennessee        Tenn. Code Ann. § 2-7-112(a)(3)(B)(v)
                  (West 2018) (explaining that a ballot
                  shall be rejected if it is determined that
                  the voter should not have cast the ballot
                  in the precinct).
 Texas            Tex. Elec. Code Ann. § 65.054(b)(1)
                  (West 2012) (stating that a provisional
                  ballot shall be accepted only if the voter
                  was qualified to cast it); see also
                  Morales v. Segura, No. 04-15-365,
                  

, at *4 (Tex. App.
                  Dec. 16, 2015) (upholding the rejection
                  of a ballot voted in the wrong precinct).
 Utah             Utah Code Ann. § 20A-4-107(a)–(c)
                  (West 2019) (explaining that a ballot
                  voted in the wrong precinct but the
                   DNC V. HOBBS                          179

                 right county is able to have any votes
                 counted for which the voter was
                 eligible to vote).
Vermont          Vt. Stat. Ann. tit. 17, § 2121(a) (West
                 2019) (explaining that a voter is
                 qualified to “register to vote in the town
                 of his or her residence”); see also 

(stating that a provisional
                 ballot may be accepted once the town
                 clerk “determine[s] whether the
                 applicant meets all of the registration
                 eligibility requirements”).
Virgin Islands   V.I. Code Ann. tit. 18, §§ 581(a), 587
                 (2019) (providing that voters must
                 reside in their election districts and that
                 poll workers must challenge an
                 individual that they believe does not
                 reside within the district).
Virginia         Va. Code Ann. § 24.2-653(B) (West
                 2015) (“The electoral board shall . . .
                 determine whether each person having
                 submitted such a provisional vote was
                 entitled to do so as a qualified voter in
                 the precinct in which he offered the
                 provisional vote.”).
Washington       Wash. Admin. Code § 434-262-032
                 (2019) (listing situations where a ballot
                 must be struck and failing to provide
                 out-of-precinct voting as reason for
                 disqualifying a ballot).
180                DNC V. HOBBS

 West Virginia   W. Va. Code Ann. § 3-1-41(d) (West
                 2016) (stating that poll clerks must
                 warn “that if the voter is casting a ballot
                 in the incorrect precinct, the ballot cast
                 may not be counted for that election”).
 Wisconsin       Wis. Stat. Ann. § 6.97(4) (West 2018)
                 (providing that there must be a
                 determination of whether the
                 “individual who has voted under this
                 section is qualified to vote in the ward
                 or election district where the
                 individual’s ballot is cast”).
 Wyoming         Wyo. Stat. Ann. § 22-15-105(b) (West
                 2019) (requiring voters to swear that
                 they are entitled to vote in the given
                 precinct).
                        DNC V. HOBBS                        181

                         Appendix B

   State and Territory Treatment of Out-of-Precinct
                 Provisional Ballots15

 Do Not Tabulate Out-of-         Tabulate Out-of-Precinct
     Precinct Ballots                    Ballots
 Alabama                         Alaska
 American Samoa                  Arkansas
 Arizona                         California
 Connecticut                     Colorado
 Delaware                        Georgia
 District of Columbia            Guam
 Florida                         Kansas*
 Hawai‘i                         Louisiana†
 Illinois                        Maine
 Indiana                         Maryland
 Iowa                            Massachusetts*
 Kentucky                        New Jersey
 Michigan                        New Mexico*



    15
       Idaho, Minnesota, New Hampshire, and North Dakota are not
included because they do not use provisional ballots. 

Appendix A.
182                   DNC V. HOBBS

 Mississippi                   New York
 Missouri                      North Carolina‡
 Montana                       Ohio††
 Nebraska                      Oregon
 Nevada                        Pennsylvania*
 Northern Mariana Islands      Puerto Rico**
 Oklahoma                      Rhode Island†
 South Carolina                Utah*
 South Dakota                  Washington
 Tennessee
 Texas
 Vermont
 Virgin Islands
 Virginia
 West Virginia
 Wisconsin
 Wyoming

   * Requires the voter to be in the correct county, city, or
town.

   † Tabulates votes for federal offices only.
                       DNC V. HOBBS                        183

     ‡ There is some divergence among secondary sources
regarding whether North Carolina counts OOP ballots.
Compare Provisional Ballots, Nat’l Conf. of St. Legislatures
(Oct. 15, 2018), http://www.ncsl.org/research/elections-and-
campaigns/provisional-ballots.aspx, with What Is
Provisional Voting? Explained, democracy N.C.,
https://democracync.org/resources/what-is-provisional-
voting-explained (last visited Oct. 15, 2019). North Carolina
law generally disfavors counting only provisional ballots cast
within the correct precinct. See N.C. Gen. Stat. Ann. § 163A-
1169(a)(4) (West 2019) (“[I]f the county board finds that an
individual voting a provisional official ballot (i) did not vote
in the proper precinct . . . the ballot shall not be counted.”);
see also James v. Bartlett, 

, 642 (N.C. 2005)
(“[V]oters must cast ballots on election day in their precincts
of residence.”). Nevertheless, North Carolina law appears to
allow an OOP vote to be tabulated in very narrow
exceptions—such as election-official error. See N.C. Gen.
Stat. Ann. § 163A-1169(a)(4) (“If a voter was properly
registered to vote in the election by the county board, no
mistake of an election official in giving the voter a ballot or
in failing to comply with G.S. 163A-1184 or G.S. 163A-1142
shall serve to prevent the counting of the vote on any ballot
item the voter was eligible by registration and qualified by
residency to vote.”). This dissent resolves doubt in favor of
listing North Carolina as a state that counts OOP
ballots—even though its current law and practice are not
entirely clear.

    †† The ballot may be counted if, among other things, the
casting of the wrong ballot was a result of poll-worker error.
Only offices for which the voter would have been eligible to
vote will be counted.
184             DNC V. HOBBS

  ** Only the votes for Governor and Resident
Commissioner will be canvassed.
                     DNC V. HOBBS                         185

                       Appendix C

         State and Territory Laws Regarding the
              Collection of Absentee Ballots

 Jurisdiction                      Citation
Alabama            Ala. Code § 17-11-4 (2019):

                   An application for a voter who requires
                   emergency treatment by a licensed
                   physician within five days before an
                   election pursuant to Section 17-11-3
                   may be forwarded to the absentee
                   election manager by the applicant or his
                   or her designee.
Alaska             Alaska Stat. Ann. § 15.20.072 (West
                   2019) (providing a method a personal
                   representative to handle and deliver
                   ballots for a special needs voter).
American           Am. Samoa Code Ann. 6.1104(a):
Samoa
                   The reply envelope shall bear upon the
                   face thereof the name, official title, and
                   post office address of the Chief
                   Election Officer and the words
                   “Absentee Ballot Enclosed”. The back
                   of the reply envelope shall contain a
                   statement to be subscribed to by the
                   qualified elector which affirms the fact
                   that he is the person voting.
186          DNC V. HOBBS

 Arizona   Ariz. Rev. Stat. Ann. § 16-1005(H)–(I)
           (2016):

           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 481 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,
           nursing care institution, hospice
           facility, assisted living center, assisted
             DNC V. HOBBS                        187

           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,
           marri age, adopt ion or legal
           guardianship.

           (d) “Household member” means a
           person who resides at the same
           residence as the voter.
Arkansas   Ark. Code Ann. § 7-5-403(a) (West
           2019):

           (1) A designated bearer may obtain
           absentee ballots for no more than two
           (2) voters per election.

           (2)(A) A designated bearer shall not
           have more than two (2) absentee ballots
           in his or her possession at any time.

           (B) If the county clerk knows or
           reasonably suspects that a designated
           bearer has more than two (2) absentee
           ballots in his or her possession, the
           county clerk shall notify the
           prosecuting attorney.
188             DNC V. HOBBS

              (3)(A) A designated bearer receiving an
              absentee ballot from the county clerk
              for a voter shall obtain the absentee
              ballot directly from the county clerk
              and deliver the absentee ballot directly
              to the voter.

              (B) A designated bearer receiving an
              absentee ballot from a voter shall obtain
              the absentee ballot directly from the
              voter and deliver the absentee ballot
              directly to the county clerk.

              (4)(A) A designated bearer may deliver
              to the county clerk the absentee ballots
              for not more than two (2) voters.

              (B) The designated bearer shall be
              named on the voter statement
              accompanying the absentee ballot.
 California   Cal. Elec. Code § 3017(a)(2) (West
              2019):

              A vote by mail voter who is unable to
              return the ballot may designate another
              person to return the ballot to the
              elections official who issued the ballot,
              to the precinct board at a polling place
              or vote center within the state, or to a
              vote by mail ballot dropoff location
              within the state that is provided
              pursuant to Section 3025 or 4005. The
              person designated shall return the ballot
             DNC V. HOBBS                        189

           in person, or put the ballot in the mail,
           no later than three days after receiving
           it from the voter or before the close of
           the polls on election day, whichever
           time period is shorter. Notwithstanding
           subdivision (d), a ballot shall not be
           disqualified from being counted solely
           because it was returned or mailed more
           than three days after the designated
           person received it from the voter,
           provided that the ballot is returned by
           the designated person before the close
           of polls on election day.
Colorado   Colo. Rev. Stat. Ann. § 1-7.5-
           107(4)(b)(I) (West 2019)

           The eligible elector may:

           (A) Return the marked ballot to the
           county clerk and recorder or designated
           election official by United States mail
           or by depositing the ballot at the office
           of the county clerk and recorder or
           designated election official or at any
           voter service and polling center, drop
           box, or drop-off location designated by
           the county clerk and recorder or
           designated election official as specified
           in the election plan filed with the
           secretary of state. The ballot must be
           returned in the return envelope.
190              DNC V. HOBBS

               (B) Deliver the ballot to any person of
               the elector’s own choice or to any duly
               authorized agent of the county clerk
               and recorder or designated election
               official for mailing or personal
               delivery; except that no person other
               than a duly authorized agent of the
               county clerk and recorder or designated
               election official may receive more than
               ten mail ballots in any election for
               mailing or delivery; or

               (C) Cast his or her vote in person at the
               voter service and polling center.
 Connecticut   Conn. Gen. Stat. Ann. § 9-140b(a)
               (West 2019):

               An absentee ballot shall be cast at a
               primary, election or referendum only if:
               (1) It is mailed by (A) the ballot
               applicant, (B) a designee of a person
               who applies for an absentee ballot
               because of illness or physical disability,
               or (C) a member of the immediate
               family of an applicant who is a student,
               so that it is received by the clerk of the
               municipality in which the applicant is
               qualified to vote not later than the close
               of the polls; (2) it is returned by the
               applicant in person to the clerk by the
               day before a regular election, special
               election or primary or prior to the
               opening of the polls on the day of a
  DNC V. HOBBS                         191

referendum; (3) it is returned by a
designee of an ill or physically disabled
ballot applicant, in person, to said clerk
not later than the close of the polls on
the day of the election, primary or
referendum; (4) it is returned by a
member of the immediate family of the
absentee voter, in person, to said clerk
not later than the close of the polls on
the day of the election, primary or
referendum; (5) in the case of a
presidential or overseas ballot, it is
mailed or otherwise returned pursuant
to the provisions of section 9-158g; or
(6) it is returned with the proper
identification as required by the Help
America Vote Act, P.L. 107-252,1 as
amended from time to time, if
applicable, inserted in the outer
envelope so such identification can be
viewed without opening the inner
envelope. A person returning an
absentee ballot to the municipal clerk
pursuant to subdivision (3) or (4) of this
subsection shall present identification
and, on the outer envelope of the
absentee ballot, sign his name in the
presence of the municipal clerk, and
indicate his address, his relationship to
the voter or his position, and the date
and time of such return. As used in this
section, “immediate family” means a
dependent relative who resides in the
192              DNC V. HOBBS

               individual’s household or any spouse,
               child or parent of the individual.
 Delaware      Del. Code Ann. tit. 15, § 5507(4) (West
               2018):

               The elector shall return the sealed ballot
               envelope to the Department by:

               a. Depositing it in a United States
               postal mailbox, thereby mailing it to the
               Department; or

               b. Delivering it, or causing it to be
               delivered, to the Department before the
               polls close on the day of the election.
 District of   D.C. Mun. Regs. tit. 3, § 722.2 (2019):
 Columbia
               A duly registered voter shall apply to
               vote by emergency absentee ballot
               according to the following procedure:

               (a) The registered voter shall, by signed
               affidavit on a form provided by the
               Board, set forth:

               (1) The reason why he or she is unable
               to be present at the polls on the day of
               the election; and

               (2) Designate a duly registered voter to
               serve as agent for the purpose of
               delivering the absentee ballot to the
  DNC V. HOBBS                         193

voter, except than an officer of the
court in charge of a jury sequestered on
election day may act as agent for any
registered voter sequestered regardless
of whether the officer is a registered
voter in the District.

(b) Upon receipt of the application, the
Executive Director, or his or her
designee, if satisfied that the person
cannot, in fact, be present at the polling
place on the day of the election shall
issue to the voter, through the voter’s
duly authorized agent, an absentee
ballot which shall be marked by the
voter, placed in a sealed envelope and
returned to the Board before the close
of the polls on election day.

(c) The person designated as agent
shall, by signed affidavit on a form
prescribed by the Board, state the
following:

(1) That the ballot will be delivered by
the voter who submitted the application
for the ballot; and

(2) That the ballot shall be marked by
the voter and placed in a sealed
envelope in the agent’s presence, and
returned, under seal to the Board by the
agent.
194          DNC V. HOBBS

 Florida   Fla. Stat. Ann. § 104.0616 (West 2016):

           (1) For purposes of this section, the
           term “immediate family” means a
           person’s spouse or the parent, child,
           grandparent, or sibling of the person or
           the person’s spouse.

           (2) Any person who provides or offers
           to provide, and any person who accepts,
           a pecuniary or other benefit in
           exchange for distributing, ordering,
           requesting, collecting, delivering, or
           otherwise physically possessing more
           than two vote-by-mail ballots per
           election in addition to his or her own
           ballot or a ballot belonging to an
           immediate family member, except as
           provided in ss. 101.6105–101.694,
           commits a misdemeanor of the first
           degree, punishable as provided in s.
           775.082, s. 775.083, or s. 775.084.
 Georgia   Ga. Code Ann. § 21-2-385 (West
           2019):

           (a) . . . Such envelope shall then be
           securely sealed and the elector shall
           then personally mail or personally
           deliver same to the board of registrars
           or absentee ballot clerk, provided that
           mailing or delivery may be made by the
           elector’s mother, father, grandparent,
           aunt, uncle, brother, sister, spouse, son,
  DNC V. HOBBS                          195

daughter, niece, nephew, grandchild,
son-in-law, daughter-in-law, mother-in-
law, father-in-law, brother-in-law,
sister-in-law, or an individual residing
in the household of such elector. The
absentee ballot of a disabled elector
may be mailed or delivered by the
caregiver of such disabled elector,
regardless of whether such caregiver
resides in such disabled elector’s
household. The absentee ballot of an
elector who is in custody in a jail or
other detention facility may be mailed
or delivered by any employee of such
jail or facility having custody of such
elector. An elector who is confined to a
hospital on a primary or election day to
whom an absentee ballot is delivered by
the registrar or absentee ballot clerk
shall then and there vote the ballot, seal
it properly, and return it to the registrar
or absentee ballot clerk. . . .

(b) A physically disabled or illiterate
elector may receive assistance in
preparing his or her ballot from any
person of the elector’s choice other than
such elector’s employer or the agent of
such employer or an officer or agent of
such elector’s union; provided,
however, that no person whose name
appears on the ballot as a candidate at a
particular primary, election, or runoff
196       DNC V. HOBBS

        nor [specified relatives of a candidate]
        to any elector who is not related to such
        candidate. . . . The person rendering
        assistance to the elector in preparing the
        ballot shall sign the oath printed on the
        same envelope as the oath to be signed
        by the elector. Any person who
        willfully violates this subsection shall
        be guilty of a felony and, upon
        conviction thereof, shall be sentenced
        to imprisonment for not less than one
        nor more than ten years or to pay a fine
        not to exceed $100,000.00, or both, for
        each such violation.
 Guam   3 Guam Code Ann. § 10107 (2016):

        The Commission shall deliver a ballot
        to any qualified elector applying in
        person at the office of said
        Commission; provided, however, that
        such applicant shall complete and
        subscribe the application heretofore
        prescribed by this Chapter; provided
        further, that said application shall be
        made not more than thirty (30) days nor
        less than one (1) day before the date of
        the election for which the vote is being
        cast. It is provided further, that said
        ballot shall be immediately marked,
        enclosed in the ballot envelope, placed
        in the return envelope with the proper
        affidavit enclosed, and immediately
        returned to the Commission.
            DNC V. HOBBS                         197

Hawai‘i   Haw. Rev. Stat. Ann. § 15-9 (West
          2019):

          (a) The return envelope shall be:

          (1) Mailed and must be received by the
          clerk issuing the absentee ballot no later
          than the closing hour on election day in
          accordance with section 11-131; or

          (2) Delivered other than by mail to the
          clerk issuing the absentee ballot, or to a
          voter service center no later than the
          closing hour on election day in
          accordance with section 11-131.

          (b) Upon receipt of the return envelope
          from any person voting under this
          chapter, the clerk may prepare the
          ballots for counting pursuant to this
          section and section 15-10.

          (c) Before opening the return and ballot
          envelopes and counting the ballots, the
          return envelopes shall be checked for
          the following:

          (1) Signature on the affirmation
          statement;
198        DNC V. HOBBS

         (2) Whether the signature corresponds
         with the absentee request or register as
         prescribed in the rules adopted by the
         chief election officer; and

         (3) Whether the person is a registered
         voter and has complied with the
         requirements of sections 11-15 and 11-
         16.

         (d) If any requirement listed in
         subsection (c) is not met or if the return
         or ballot envelope appears to be
         tampered with, the clerk or the absentee
         ballot team official shall mark across
         the face of the envelope “invalid” and it
         shall be kept in the custody of the clerk
         and disposed of as prescribed for
         ballots in section 11-154.
 Idaho   Idaho Code Ann. § 34-1005 (West
         2019):

         The return envelope shall be mailed or
         delivered to the officer who issued the
         same; provided, that an absentee ballot
         must be received by the issuing officer
         by 8:00 p.m. on the day of election
         before such ballot may be counted.
             DNC V. HOBBS                        199

Illinois   10 Ill. Comp. Stat. Ann. § 5/19-6 (West
           2015):

           It shall be unlawful for any person not
           the voter or a person authorized by the
           voter to take the ballot and ballot
           envelope of a voter for deposit into the
           mail unless the ballot has been issued
           pursuant to application by a physically
           incapacitated elector under Section 3-3
           or a hospitalized voter under Section
           19-13, in which case any employee or
           person under the direction of the
           facility in which the elector or voter is
           located may deposit the ballot and
           ballot envelope into the mail. If the
           voter authorized a person to deliver the
           ballot to the election authority, the
           voter and the person authorized to
           deliver the ballot shall complete the
           authorization printed on the exterior
           envelope supplied by an election
           authority for the return of the vote by
           mail ballot.
Indiana    Ind. Code Ann. § 3-14-2-16(4) (West
           2019):

           A person who knowingly does any of
           the following commits a Level 6
           felony: . . .
200       DNC V. HOBBS

        (4) Receives from a voter a ballot
        prepared by the voter for voting,
        except:

        (A) the inspector;

        (B) a member of the precinct election
        board temporarily acting for the
        inspector;

        (C) a member or an employee of a
        county election board (acting under the
        authority of the board and state law) or
        an absentee voter board member acting
        under IC 3-11-10; or

        (D) a member of the voter’s household,
        an individual designated as attorney in
        fact for the voter, or an employee of:

        (i) the United States Postal Service; or

        (ii) a bonded courier company;

        (acting in the individual’s capacity as
        an employee of the United States Postal
        Service or a bonded courier company)
        when delivering an envelope containing
        an absentee ballot under IC 3-11-10-1.
 Iowa   Iowa Code Ann. § 53.17(1) (West
        2019):
           DNC V. HOBBS                        201

         a. The sealed return envelope may be
         delivered by the registered voter, by the
         voter’s designee, or by the special
         precinct election officials designated
         pursuant to section 53.22, subsection 2,
         to the commissioner’s office no later
         than the time the polls are closed on
         election day. However, if delivered by
         the voter’s designee, the envelope shall
         be delivered within seventy-two hours
         of retrieving it from the voter or before
         the closing of the polls on election day,
         whichever is earlier.

         b. The sealed return envelope may be
         mailed to the commissioner by the
         registered voter or by the voter’s
         designee. If mailed by the voter’s
         designee, the envelope must be mailed
         within seventy-two hours of retrieving
         it from the voter or within time to be
         postmarked or, if applicable, to have
         the postal service barcode traced to a
         date of entry into the federal mail
         system not later than the day before the
         election, as provided in section 53.17A,
         whichever is earlier.
Kansas   Kan. Stat. Ann. § 25-1221 (West 2019):

         After such voter has marked the official
         federal services absentee ballot, he or
         she shall place it in the official ballot
         envelope and secretly seal the same.
202           DNC V. HOBBS

            Such voter shall then fill out in full the
            form printed upon the official ballot
            envelope and sign the same. Such ballot
            envelope shall then be placed in the
            envelope provided for such purpose and
            mailed by the voter to the county
            election officer of the county of the
            voter’s residence.

            Kan. Stat. Ann. § 25-1124(d) (West
            2019):

            Any voted ballot may be transmitted to
            the county election officer by the voter
            or by another person designated in
            writing by the voter, except if the voter
            has a disability preventing the voter
            from writing and signing a statement,
            the written and signed statement
            required by subsection (e) shall be
            sufficient.
 Kentucky   Ky. Rev. Stat. Ann. § 117.086(1) (West
            2019):

            The voter returning his absentee ballot
            by mail shall mark his ballot, seal it in
            the inner envelope and then in the outer
            envelope, and mail it to the county
            clerk as shall be provided by this
            chapter. The voter shall sign the
            detachable flap and the outer envelope
            in order to validate the ballot. A person
            having power of attorney for the voter
              DNC V. HOBBS                        203

            and who signs the detachable flap and
            outer envelope for the voter shall
            complete the voter assistance form as
            required by KRS 117.255. The
            signatures of two (2) witnesses are
            required if the voter signs the form with
            the use of a mark instead of the voter’s
            signature. A resident of Kentucky who
            is a covered voter as defined in KRS
            117A.010 who has received an absentee
            ballot transmitted by facsimile machine
            or by means of the electronic
            transmission system established under
            KRS 117A.030(4) shall transmit the
            voted ballot to the county clerk by mail
            only, conforming with ballot security
            requirements that may be promulgated
            by the state board by administrative
            regulation. In order to be counted, the
            ballots shall be received by the clerk by
            at least the time established by the
            election laws generally for the closing
            of the polls, which time shall not
            include the extra hour during which
            those voters may vote who were
            waiting in line to vote at the scheduled
            poll closing time.
Louisiana   La. Stat. Ann. § 18:1308(B) (2017):

            The ballot shall be marked as provided
            in R.S. 18:1310 and returned to the
            registrar by the United States Postal
            Service, a commercial courier, or hand
204        DNC V. HOBBS

         delivery. If delivered by other than the
         voter, a commercial courier, or the
         United States Postal Service, the
         registrar shall require that the person
         making such delivery sign a statement,
         prepared by the secretary of state,
         certifying that he has the authorization
         and consent of the voter to hand deliver
         the marked ballot. For purposes of this
         Subsection, “commercial courier” shall
         have the same meaning as provided in
         R.S. 13:3204(D). No person except the
         immediate family of the voter, as
         defined in this Code, shall hand deliver
         more than one marked ballot to the
         registrar.
 Maine   Me. Rev. Stat. Ann. tit. 21-A,
         § 791(2)(A) (2009):

         A person commits a Class D crime if
         that person [d]elivers, receives, accepts,
         notarizes or witnesses an absentee
         ballot for any compensation. This
         paragraph does not apply to a
         governmental employee handling
         ballots in the course of that employee’s
         official duties or a person who handles
         absentee ballots before the unvoted
         ballots are delivered to the municipality
         or after the voted ballots are returned to
         the clerk.
             DNC V. HOBBS                       

. Code Ann., Elec. Law § 9-307
           (West 2019):

           (a) A qualified applicant may designate
           a duly authorized agent to pick up and
           deliver an absentee ballot under this
           subtitle.

           (b) An agent of the voter under this
           section:

           (1) must be at least 18 years old;

           (2) may not be a candidate on that
           ballot;

           (3) shall be designated in a writing
           signed by the voter under penalty of
           perjury; and

           (4) shall execute an affidavit under
           penalty of perjury that the ballot was:

           (i) delivered to the voter who submitted
           the application;

           (ii) marked and placed in an envelope
           by the voter, or with assistance as
           allowed by regulation, in the agent’s
           presence; and

           (iii) returned to the local board by the
           agent.
206                DNC V. HOBBS

 Massachusetts   Mass. Gen. Laws Ann. ch. 54, § 92(a)
                 (West 2019):

                 A voter who receives the ballot by mail,
                 as provided in subsection (a) of section
                 ninety-one B, may return it by mail to
                 the city or town clerk in the envelope
                 provided pursuant to subsection (d) of
                 section eighty-seven, or such voter or a
                 family member may deliver it in
                 person to the office of the city or town
                 clerk. A voter to whom a ballot was
                 delivered in person at the office of the
                 clerk as provided in said subsection (a)
                 of said section ninety-one B shall return
                 it without removing the ballot from
                 such office.
 Michigan        Mich. Comp. Laws Ann. § 168.764a
                 (West 2019):

                 Step 5. Deliver the return envelope by
                 1 of the following methods:

                 (a) Place the necessary postage upon
                 the return envelope and deposit it in the
                 United States mail or with another
                 public postal service, express mail
                 service, parcel post service, or common
                 carrier.

                 (b) Deliver the envelope personally to
                 the office of the clerk, to the clerk, or to
                 an authorized assistant of the clerk.
  DNC V. HOBBS                         207

(c) In either (a) or (b), a member of the
immediate family of the voter including
a father-in-law, mother-in-law, brother-
in-law, sister-in-law, son-in-law,
daughter-in-law, grandparent, or
grandchild or a person residing in the
voter’s household may mail or deliver
a ballot to the clerk for the voter.

(d) You may request by telephone that
the clerk who issued the ballot provide
assistance in returning the ballot. The
clerk is required to provide assistance if
you are unable to return your absent
voter ballot as specified in (a), (b), or
(c) above, if it is before 5 p.m. on the
Friday immediately preceding the
election, and if you are asking the clerk
to pickup the absent voter ballot within
the jurisdictional limits of the city,
township, or village in which you are
registered. Your absent voter ballot will
then be picked up by the clerk or an
election assistant sent by the clerk. All
persons authorized to pick up absent
voter ballots are required to carry
credentials issued by the clerk. If using
this absent voter ballot return method,
do not give your ballot to anyone until
you have checked their credentials. . . .
208              DNC V. HOBBS

               All of the following actions are
               violations of the Michigan election law
               and are illegal in this state: . . . .

               (4) For a person other than those listed
               in these instructions to return, offer to
               return, agree to return, or solicit to
               return an absent voter ballot to the
               clerk.
 Minnesota     Minn. Stat. Ann. § 203B.08 subd. 1
               (West 2015):

               The voter may designate an agent to
               deliver in person the sealed absentee
               ballot return envelope to the county
               auditor or municipal clerk or to deposit
               the return envelope in the mail. An
               agent may deliver or mail the return
               envelopes of not more than three voters
               in any election. Any person designated
               as an agent who tampers with either the
               return envelope or the voted ballots or
               does not immediately mail or deliver
               the return envelope to the county
               auditor or municipal clerk is guilty of a
               misdemeanor.
 Mississippi   Miss. Code Ann. § 23-15-631(f) (West
               2019):

               Any voter casting an absentee ballot
               who declares that he or she requires
               assistance to vote by reason of
             DNC V. HOBBS                          209

           blindness, temporary or permanent
           physical disability or inability to read or
           write, shall be entitled to receive
           assistance in the marking of his or her
           absentee ballot and in completing the
           affidavit on the absentee ballot
           envelope. The voter may be given
           assistance by anyone of the voter’s
           choice other than a candidate whose
           name appears on the absentee ballot
           being marked, the spouse, parent or
           child of a candidate whose name
           appears on the absentee ballot being
           marked or the voter’s employer, an
           agent of that employer or a union
           representative; however, a candidate
           whose name is on the ballot or the
           spouse, parent or child of such
           candidate may provide assistance upon
           request to any voter who is related
           within the first degree. In order to
           ensure the integrity of the ballot, any
           person who provides assistance to an
           absentee voter shall be required to sign
           and complete the “Certificate of Person
           Providing Voter Assistance” on the
           absentee ballot envelope.
Missouri   Mo. Ann. Stat. § 115.291(2) (West
           2018):

           Except as provided in subsection 4 of
           this section, each absentee ballot that is
           not cast by the voter in person in the
210          DNC V. HOBBS

           office of the election authority shall be
           returned to the election authority in the
           ballot envelope and shall only be
           returned by the voter in person, or in
           person by a relative of the voter who is
           within the second degree of
           consanguinity or affinity, by mail or
           registered carrier or by a team of
           deputy election authorities; except that
           covered voters, when sent from a
           location determined by the secretary of
           state to be inaccessible on election day,
           shall be allowed to return their absentee
           ballots cast by use of facsimile
           transmission or under a program
           approved by the Department of Defense
           for electronic transmission of election
           materials.
 Montana   Mont. Code Ann. § 13-13-201 (West
           2019):

           (1) A legally registered elector or
           provisionally registered elector is
           entitled to vote by absentee ballot as
           provided for in this part.

           (2) The elector may vote absentee by:

           (a) marking the ballot in the manner
           specified;
  DNC V. HOBBS                        211

(b) placing the marked ballot in the
secrecy envelope, free of any
identifying marks;

(c) placing the secrecy envelope
containing one ballot for each election
being held in the signature envelope;

(d) executing the affirmation printed on
the signature envelope; and

(e) returning the signature envelope
with all appropriate enclosures by
regular mail, postage paid, or by
delivering it to:

(i) the election office;

(ii) a polling place within the elector’s
county;

(iii) pursuant to 13-13-229, the absentee
election board or an authorized election
official; or

(iv) in a mail ballot election held
pursuant to Title 13, chapter 19, a
designated place of deposit within the
elector’s county.

(3) Except as provided in 13-21-206
and 13-21-226, in order for the ballot to
be counted, each elector shall return it
212           DNC V. HOBBS

            in a manner that ensures the ballot is
            received prior to 8 p.m. on election day.
 Nebraska   Neb. Rev. Stat. § 32-943(2) (West
            2019):

            A candidate for office at such election
            and any person serving on a campaign
            committee for such a candidate shall
            not act as an agent for any registered
            voter requesting a ballot pursuant to
            this section unless such person is a
            member of the registered voter’s
            family. No person shall act as agent for
            more than two registered voters in any
            election.
 Nevada     Nev. Rev. Stat. Ann. § 293.330(4)
            (West 2017):

            [I]t is unlawful for any person to return
            an absent ballot other than the voter
            who requested the absent ballot or, at
            the request of the voter, a member of
            the voter’s family. A person who
            returns an absent ballot and who is a
            member of the family of the voter who
            requested the absent ballot shall, under
            penalty of perjury, indicate on a form
            prescribed by the county clerk that the
            person is a member of the family of the
            voter who requested the absent ballot
            and that the voter requested that the
            person return the absent ballot. A
              DNC V. HOBBS                           213

            person who violates the provisions of
            this subsection is guilty of a category E
            felony . . . .
New         New Hampshire recently enacted
Hampshire   legislation adding greater specificity to
            is provision governing the delivery of
            absentee ballots—N.H. Rev. Stat. Ann.
            § 657:17. The new statute will read:

            I. . . . . The voter or the person assisting
            a blind voter or voter with a disability
            shall then endorse on the outer
            envelope the voter’s name, address, and
            voting place. The absentee ballot shall
            be delivered to the city or town clerk
            from whom it was received in one of
            the following ways:

            (a) The voter or the voter’s delivery
            agent may personally deliver the
            envelope; or

            (b) The voter or the person assisting the
            blind voter or voter with a disability
            may mail the envelope to the city or
            town clerk, with postage affixed.

            II. As used in this section, “delivery
            agent” means:
214     DNC V. HOBBS

      (a) The voter’s spouse, parent, sibling,
      child, grandchild, father-in-law,
      mother-in-law, son-in-law, daughter-in-
      law, stepparent, stepchild; or

      (b) If the voter is a resident of a nursing
      home as defined in RSA 151–A:1, IV,
      the nursing home administrator,
      licensed pursuant to RSA 151–A:2, or
      a nursing home staff member
      designated in writing by the
      administrator to deliver ballots; or

      (c) If the voter is a resident of a
      residential care facility licensed
      pursuant to RSA 151:2, I(e) and
      described in RSA 151:9, VII(a)(1) and
      (2), the residential care facility
      administrator, or a residential care
      facility staff member designated in
      writing by the administrator to deliver
      ballots; or

      (d) A person assisting a blind voter or a
      voter with a disability who has signed a
      statement on the affidavit envelope
      acknowledging the assistance.

      III. The city or town clerk, or ward
      clerk on election day at the polls, shall
      not accept an absentee ballot from a
      delivery agent unless the delivery agent
      completes a form provided by the
               DNC V. HOBBS                         215

             secretary of state, which shall be
             maintained by the city or town clerk,
             and the delivery agent presents a
             government-issued photo identification
             or has his or her identity verified by the
             city or town clerk. Absentee ballots
             delivered through the mail or by the
             voter’s delivery agent shall be received
             by the town, city, or ward clerk no later
             than 5:00 p.m. on the day of the
             election. A delivery agent who is
             assisting a voter who is blind or who
             has a disability pursuant to this section
             may not personally deliver more than 4
             absentee ballots in any election, unless
             the delivery agent is a nursing home or
             residential care facility administrator,
             an administrator designee, or a family
             member, each as authorized by this
             section.
New Jersey   N.J. Stat. Ann. § 19:63-4(a) (West
             2015):

             A qualified voter is entitled to apply for
             and obtain a mail-in ballot by
             authorized messenger, who shall be so
             designated over the signature of the
             voter and whose printed name and
             address shall appear on the application
             in the space provided. The authorized
             messenger shall be a family member or
             a registered voter of the county in
             which the application is made and shall
216     DNC V. HOBBS

      place his or her signature on the
      application in the space so provided in
      the presence of the county clerk or the
      designee thereof. No person shall serve
      as an authorized messenger or as a
      bearer for more than three qualified
      voters in an election. No person who is
      a candidate in the election for which the
      voter requests a mail-in ballot shall be
      permitted to serve as an authorized
      messenger or bearer. The authorized
      messenger shall show a photo
      identification card to the county clerk,
      or the designee thereof, at the time the
      messenger submits the application
      form. The county clerk or the designee
      thereof shall authenticate the signature
      of the authorized messenger in the
      event such a person is other than a
      family member, by comparing it with
      the signature of the person appearing on
      a State of New Jersey driver’s license,
      or other identification issued or
      recognized as official by the federal
      government, the State, or any of its
      political subdivisions, providing the
      identification carries the full address
      and signature of the person. After the
      authentication of the signature on the
      application, the county clerk or the
      designee thereof is authorized to deliver
      to the authorized messenger a ballot to
      be delivered to the qualified voter.
               DNC V. HOBBS                         217

New Mexico   N.M. Stat. Ann. § 1-6-10.1 (West
             2019):

             A. A voter, caregiver to that voter or
             member of that voter’s immediate
             family may deliver that voter’s
             absentee ballot to the county clerk in
             person or by mail; provided that the
             voter has subscribed the official
             mailing envelope of the absentee ballot.

             B. As used in this section, “immediate
             family” means the spouse, children,
             parents or siblings of a voter.
New York     N.Y. Elec. Law § 8-410 (McKinney
             2019):

             The absentee voter shall mark an
             absentee ballot as provided for paper
             ballots or ballots prepared for counting
             by ballot counting machines. He shall
             make no mark or writing whatsoever
             upon the ballot, except as above
             prescribed, and shall see that it bears no
             such mark or writing. He shall make no
             mark or writing whatsoever on the
             outside of the ballot. After marking the
             ballot or ballots he shall fold each such
             ballot and enclose them in the envelope
             and seal the envelope. He shall then
             take and subscribe the oath on the
             envelope, with blanks properly filled in.
             The envelope, containing the ballot or
218                 DNC V. HOBBS

                  ballots, shall then be mailed or
                  delivered to the board of elections of
                  the county or city of his residence.
 North Carolina   N.C. Gen. Stat. Ann.            § 163A-
                  1310(b)(1) (West 2018):

                  All ballots issued under the provisions
                  of this Part and Part 2 of Article 21 of
                  this Chapter shall be transmitted by
                  mail or by commercial courier service,
                  at the voter’s expense, or delivered in
                  person, or by the voter’s near relative or
                  verifiable legal guardian and received
                  by the county board not later than 5:00
                  p.m. on the day of the statewide
                  primary or general election or county
                  bond election. Ballots issued under the
                  provisions of Part 2 of Article 21 of this
                  Chapter may also be electronically
                  transmitted.
 North Dakota     N.D. Cent. Code Ann. § 16.1-07-08(1)
                  (West 2019):

                  Upon receipt of an application for an
                  official ballot properly filled out and
                  duly signed, or as soon thereafter as the
                  official ballot for the precinct in which
                  the applicant resides has been prepared,
                  the county auditor, city auditor, or
                  business manager of the school district,
                  as the case may be, shall send to the
                  absent voter by mail, at the expense of
  DNC V. HOBBS                         219

the political subdivision conducting the
election, one official ballot, or
personally deliver the ballot to the
applicant or the applicant’s agent,
which agent may not, at that time, be a
candidate for any office to be voted
upon by the absent voter. The agent
shall sign the agent’s name before
receiving the ballot and deposit with the
auditor or business manager of the
school district, as the case may be,
authorization in writing from the
applicant to receive the ballot or
according to requirements set forth for
signature by mark. The auditor or
business manager of the school district,
as the case may be, may not provide an
absent voter’s ballot to a person acting
as an agent who cannot provide a
signed, written authorization from an
applicant. No person may receive
compensation, including money, goods,
or services, for acting as an agent for an
elector, nor may a person act as an
agent for more than four electors in any
one election. A voter voting by
absentee ballot may not require the
political subdivision providing the
ballot to bear the expense of the return
postage for an absentee ballot.
220                  DNC V. HOBBS

 Northern          1 N. Mar. I. Code § 6212(a) (2010):
 Mariana Islands
                   The Commission shall provide to any
                   registered voter entitled to vote by
                   absentee ballot and who applied for
                   one, an official ballot, a ballot
                   envelope, an affidavit prescribed by the
                   Commission, and a reply envelope. The
                   absentee voter shall mark the ballot in
                   the usual manner provided by law and
                   in a manner such that no other person
                   can know how the ballot is marked. The
                   absentee voter shall then deposit the
                   ballot in the ballot envelope and
                   securely seal it. The absentee voter
                   shall then complete and execute the
                   affidavit. The ballot envelope and the
                   affidavit shall then be enclosed and
                   sealed in the covering reply envelope
                   and mailed via standard U.S. First Class
                   Mail only or sent by commercial
                   courier service to the commission at the
                   expense of the voter. Such ballots and
                   affidavits will not be counted by the
                   Commission unless mailed. For the
                   purpose of this part, the word “mailed”
                   includes ballots and affidavits sent
                   through the postal or courier services.
 Ohio              Ohio Rev. Code Ann. § 3509.05(A)
                   (West 2016):

                   The elector shall mail the identification
                   envelope to the director from whom it
             DNC V. HOBBS                         221

           was received in the return envelope,
           postage prepaid, or the elector may
           personally deliver it to the director, or
           the spouse of the elector, the father,
           mother, father-in-law, mother-in-law,
           grandfather, grandmother, brother, or
           sister of the whole or half blood, or the
           son, daughter, adopting parent, adopted
           child, stepparent, stepchild, uncle, aunt,
           nephew, or niece of the elector may
           deliver it to the director.
Oklahoma   Okla. Stat. Ann. tit. 26, § 14-108(C)
           (West 2019):

           Any voter who hand delivers his or her
           ballot as provided in subsection A of
           this section shall provide proof of
           identity to the county election board
           and shall hand deliver the ballot no
           later than the end of regular business
           hours on the day prior to the date of the
           election. For purposes of this section,
           “proof of identity” shall have the same
           meaning as used in subsection A of
           Section 7-114 of this title.
Oregon     Or. Rev. Stat. Ann. § 254.470(6) (West
           2018):

           (6)(a) Upon receipt of any ballot
           described in this section, the elector
           shall mark the ballot, sign the return
           identification envelope supplied with
222               DNC V. HOBBS

                the ballot and comply with the
                instructions provided with the ballot.

                (b) The elector may return the marked
                ballot to the county clerk by United
                States mail or by depositing the ballot
                at the office of the county clerk, at any
                place of deposit designated by the
                county clerk or at any location
                described in ORS 254.472 or 254.474.

                (c) The ballot must be returned in the
                return identification envelope. If the
                elector returns the ballot by mail, the
                elector must provide the postage.

                (d) Subject to paragraph (e) of this
                subsection, if a person returns a ballot
                for an elector, the person shall deposit
                the ballot in a manner described in
                paragraph (b) of this subsection not
                later than two days after receiving the
                ballot.
 Pennsylvania   25 Pa. Stat. and Cons. Stat. Ann.
                § 3146.6(a)(1) (West 2019) (footnote
                omitted):

                Any elector who submits an Emergency
                Application and receives an absentee
                ballot in accordance with section
                1302.1(a.2) or (c) shall mark the ballot
                on or before eight o’clock P.M. on the
                day of the primary or election. This
                 DNC V. HOBBS                         223

               envelope shall then be placed in the
               second one, on which is printed the
               form of declaration of the elector, and
               the address of the elector’s county
               board of election and the local election
               district of the elector. The elector shall
               then fill out, date and sign the
               declaration printed on such envelope.
               Such envelope shall then be securely
               sealed and the elector shall send same
               by mail, postage prepaid, except where
               franked, or deliver it in person to said
               county board of election.
Puerto Rico    P. R. Laws Ann. tit. 16, § 4177 (2010):

               Any voter entitled to vote as an
               absentee voter in a specific election, as
               established in § 4176 of this title, shall
               cast his/her vote in accordance with the
               procedure provided by the Commission
               through regulations. Only those
               absentee ballots sent on or before an
               election, and received on or before the
               last day of general canvass for that
               election, shall be considered validly
               cast pursuant to this Section. The
               Commission shall establish through
               regulations the manner in which the
               mailing date of absentee ballots shall be
               validated.
Rhode Island   17 R.I. Gen. Laws Ann. § 17-20-2.1(d)
               (West 2019):
224     DNC V. HOBBS

      In addition to those requirements set
      forth elsewhere in this chapter, a mail
      ballot, in order to be valid, must have
      been cast in conformance with the
      following procedures:

      (1) All mail ballots issued pursuant to
      subdivision 17-20-2(1) shall be mailed
      to the elector at the Rhode Island
      address provided by the elector on the
      application. In order to be valid, the
      signature on all certifying envelopes
      containing a voted ballot must be made
      before a notary public or before two (2)
      witnesses who shall set forth their
      addresses on the form.

      (2) All applications for mail ballots
      pursuant to § 17-20-2(2) must state
      under oath the name and location of the
      hospital, convalescent home, nursing
      home, or similar institution where the
      elector is confined. All mail ballots
      issued pursuant to subdivision 17-20-
      2(2) shall be delivered to the elector at
      the hospital, convalescent home,
      nursing home, or similar institution
      where the elector is confined; and the
      ballots shall be voted and witnessed in
      conformance with the provisions of
      § 17-20-14.
  DNC V. HOBBS                         225

(3) All mail ballots issued pursuant to
subdivision 17-20-2(3) shall be mailed
to the address provided by the elector
on the application or sent to the board
of canvassers in the city or town where
the elector maintains his or her voting
residence. In order to be valid, the
signature of the elector on the certifying
envelope containing voted ballots does
not need to be notarized or witnessed.
Any voter qualified to receive a mail
ballot pursuant to subdivision 17-20-
2(3) shall also be entitled to cast a
ballot pursuant to the provisions of
United States Public Law 99-410
(“UOCAVA Act”).

(4) All mail ballots issued pursuant to
subdivision 17-20-2(4) may be mailed
to the elector at the address within the
United States provided by the elector
on the application or sent to the board
of canvassers in the city or town where
the elector maintains his or her voting
residence. In order to be valid, the
signature on all certifying envelopes
containing a voted ballot must be made
before a notary public, or other person
authorized by law to administer oaths
where signed, or where the elector
voted, or before two (2) witnesses who
shall set forth their addresses on the
form. In order to be valid, all ballots
226                 DNC V. HOBBS

                  sent to the elector at the board of
                  canvassers must be voted in
                  conformance with the provisions of
                  § 17-20-14.2.
 South Carolina   S.C. Code Ann. § 7-15-385 (2019):

                  Upon receipt of the ballot or ballots, the
                  absentee ballot applicant must mark
                  each ballot on which he wishes to vote
                  and place each ballot in the single
                  envelope marked “Ballot Herein”
                  which in turn must be placed in the
                  return-addressed envelope. The
                  applicant must then return the return-
                  addressed envelope to the board of
                  voter registration and elections by mail,
                  by personal delivery, or by authorizing
                  another person to return the envelope
                  for him. The authorization must be
                  given in writing on a form prescribed
                  by the State Election Commission and
                  must be turned in to the board of voter
                  registration and elections at the time the
                  envelope is returned. The voter must
                  sign the form, or in the event the voter
                  cannot write because of a physical
                  handicap or illiteracy, the voter must
                  make his mark and have the mark
                  witnessed by someone designated by
                  the voter. The authorization must be
                  preserved as part of the record of the
                  election, and the board of voter
                  registration and elections must note the
                 DNC V. HOBBS                       227

               authorization and the name of the
               authorized returnee in the record book
               required by Section 7-15-330. A
               candidate or a member of a candidate’s
               paid campaign staff including
               volunteers reimbursed for time
               expended on campaign activity is not
               permitted to serve as an authorized
               returnee for any person unless the
               person is a member of the voter’s
               immediate family as defined in Section
               7-15-310. The oath set forth in Section
               7-15-380 must be signed and witnessed
               on each returned envelope. The board
               of voter registration and elections must
               record in the record book required by
               Section 7-15-330 the date the return-
               addressed envelope with witnessed oath
               and enclosed ballot or ballots is
               received by the board. The board must
               securely store the envelopes in a locked
               box within the office of the board of
               voter registration and elections.
South Dakota   S.D. Codified Laws § 12-19-2.2 (2019):

               If a person is an authorized messenger
               for more than one voter, he must notify
               the person in charge of the election of
               all voters for whom he is a messenger.
Tennessee      Tenn. Code Ann. § 2-6-202(e) (West
               2017):
228        DNC V. HOBBS

         After receiving the absentee voting
         supplies and completing the ballot, the
         voter shall sign the appropriate affidavit
         under penalty of perjury. The effect of
         the signature is to verify the
         information as true and correct and that
         the voter is eligible to vote in the
         election. The voter shall then mail the
         ballot.
 Texas   Tex. Elec. Code Ann. § 86.006(f) (West
         2017) (footnote omitted):

         A person commits an offense if the
         person knowingly possesses an official
         ballot or official carrier envelope
         provided under this code to another.
         Unless the person possessed the ballot
         or carrier envelope with intent to
         defraud the voter or the election
         authority, this subsection does not
         apply to a person who, on the date of
         the offense, was:

         (1) related to the voter within the
         second degree by affinity or the third
         degree by consanguinity, as determined
         under Subchapter B, Chapter 573,
         Government Code;

         (2) physically living in the same
         dwelling as the voter;
          DNC V. HOBBS                          229

        (3) an early voting clerk or a deputy
        early voting clerk;

        (4) a person who possesses a ballot or
        carrier envelope solely for the purpose
        of lawfully assisting a voter who was
        eligible for assistance under Section
        86.010 and complied fully with:

        (A) Section 86.010; and

        (B) Section 86.0051, if assistance was
        provided in order to deposit the
        envelope in the mail or with a common
        or contract carrier;

        (5) an employee of the United States
        Postal Service working in the normal
        course of the employee’s authorized
        duties; or

        (6) a common or contract carrier
        working in the normal course of the
        carrier’s authorized duties if the official
        ballot is sealed in an official carrier
        envelope that is accompanied by an
        individual delivery receipt for that
        particular carrier envelope.
Texas   Tex. Elec. Code Ann. § 86.0052(a)(1)
        (West 2013) (making it a crime if a
        person “compensates another person for
        depositing the carrier envelope in the
        mail or with a common or contract
230       DNC V. HOBBS

        carrier as provided by Section
        86.0051(b), as part of any performance-
        based compensation scheme based on
        the number of ballots deposited or in
        which another person is presented with
        a quota of ballots to deposit”).
 Utah   Utah Code Ann. § 20A-3-306 (West
        2019):

        (1)(a) Except as provided by Section
        20A-1-308, to vote a mail-in absentee
        ballot, the absentee voter shall:

        (i) complete and sign the affidavit on
        the envelope;

        (ii) mark the votes on the absentee
        ballot;

        (iii) place the voted absentee ballot in
        the envelope;

        (iv) securely seal the envelope; and

        (v) attach postage, unless voting in
        accordance with Section 20A-3-302,
        and deposit the envelope in the mail or
        deliver it in person to the election
        officer from whom the ballot was
        obtained.

        (b) Except as provided by Section 20A-
        1-308, to vote an absentee ballot in
  DNC V. HOBBS                         231

person at the office of the election
officer, the absent voter shall:

(i) complete and sign the affidavit on
the envelope;

(ii) mark the votes on the absent-voter
ballot;

(iii) place the voted absent-voter ballot
in the envelope;

(iv) securely seal the envelope; and

(v) give the ballot and envelope to the
election officer.

(2) Except as provided by Section 20A-
1-308, an absentee ballot is not valid
unless:

(a) in the case of an absentee ballot that
is voted in person, the ballot is:

(i) applied for and cast in person at the
office of the appropriate election officer
before 5 p.m. no later than the Tuesday
before election day; or

(ii) submitted on election day at a
polling location in the political
subdivision where the absentee voter
resides;
232          DNC V. HOBBS

           (b) in the case of an absentee ballot that
           is submitted by mail, the ballot is:

           (i) clearly postmarked before election
           day, or otherwise clearly marked by the
           post office as received by the post
           office before election day; and

           (ii) received in the office of the election
           officer before noon on the day of the
           official canvass following the election;
           or

           (c) in the case of a military-overseas
           ballot, the ballot is submitted in
           accordance with Section 20A-16-404.

           (3) An absentee voter may submit a
           completed absentee ballot at a polling
           location in a political subdivision
           holding the election, if the absentee
           voter resides in the political
           subdivision.

           (4) An absentee voter may submit an
           incomplete absentee ballot at a polling
           location for the voting precinct where
           the voter resides, request that the ballot
           be declared spoiled, and vote in person.
 Vermont   Vt. Stat. Ann. tit. 17, § 2543 (West
           2019):
  DNC V. HOBBS                         233

(a) After marking the ballots and
signing the certificate on the envelope,
the early or absentee voter to whom the
same are addressed shall return the
ballots to the clerk of the town in which
he or she is a voter, in the manner
prescribed, except that in the case of a
voter to whom ballots are delivered by
justices, the ballots shall be returned to
the justices calling upon him or her, and
they shall deliver them to the town
clerk.

(b) Once an early voter absentee ballot
has been returned to the clerk in the
envelope with the signed certificate, it
shall be stored in a secure place and
shall not be returned to the voter for
any reason.

(c) If a ballot includes more than one
page, the early or absentee voter need
only return the page upon which the
voter has marked his or her vote.

(d)(1) All early voter absentee ballots
returned as follows shall be counted:

(A) by any means, to the town clerk’s
office before the close of business on
the day preceding the election;
234                 DNC V. HOBBS

                  (B) by mail, to the town clerk’s office
                  before the close of the polls on the day
                  of the election; and

                  (C) by hand delivery to the presiding
                  officer at the voter’s polling place.

                  (2) An early voter absentee ballot
                  returned in a manner other than those
                  set forth in subdivision (1) of this
                  subsection shall not be counted.
 Virgin Islands   V.I. Code Ann. tit. 18, § 665 (2018):

                  (a) An absentee who has received an
                  absentee ballot may vote by mailing or
                  causing to be delivered to the board of
                  elections for the proper election district
                  such ballot marked and sworn to, as
                  follows:

                  After marking the ballot, the voter shall
                  enclose and seal it in the envelope
                  provided for that purpose. He shall then
                  swear and subscribe to a self-
                  administered oath which shall be
                  provided to the absentee on a printed
                  form along with the absentee ballot and
                  he shall further execute the affidavit on
                  such envelope and shall enclose and
                  seal the envelope containing the ballot
                  in the return mailing envelope printed,
                  as provided in paragraph 3 of
                  subsection (a) of section 663 of this
  DNC V. HOBBS                        235

title, with the name and address of the
board of elections for the election
district in which he desires to vote,
endorse thereon his name and return
address, and shall then mail the
envelope, or cause it to be delivered, to
the board of elections; provided that
such envelope must be received by the
board no later than ten days after the
day of election for the absentee vote to
be counted. Absentee ballots received
from overseas in franked envelopes, or
from persons who are members of the
Uniformed Services of the United
States or a spouse of any member of the
Uniformed Services of the United
States, shall be counted if they are
received by the board no later than ten
(10) days after the day of the election.
In the case of a recount authorized by
the board, any ballot received by the
board no later than 5 p.m. the day
before the recount shall be counted.

(b) Any envelope containing an
absentee ballot mistakenly mailed by
the absentee voter to the Supervisor of
Elections contrary to the provisions of
this section shall be mailed or delivered
by the Supervisor of Elections to the
proper board of elections if it can be so
mailed or delivered by him before the
time for the closing of the polls on the
236           DNC V. HOBBS

            day of election, and if the proper board
            can be determined without breaking
            open the inner envelope containing the
            ballot.

            (c) All mailing envelopes containing
            absentee ballots received by a board of
            elections under this section, whether
            received in sufficient time for the
            ballots to be counted as provided in this
            chapter, or not, shall be stamped or
            endorsed by a member of the board or
            the clerk with the date of their receipt in
            the board’s office, and, if received on
            the day of election, with the actual time
            of day received, and such record shall
            be signed or initialed by the board
            member or clerk making it.
 Virginia   Va. Code Ann. § 24.2-707(A) (West
            2019):

            After the voter has marked his absentee
            ballot, he shall (a) enclose the ballot in
            the envelope provided for that purpose,
            (b) seal the envelope, (c) fill in and sign
            the statement printed on the back of the
            envelope in the presence of a witness,
            who shall sign the same envelope,
            (d) enclose the ballot envelope and any
            required assistance form within the
            envelope directed to the general
            registrar, and (e) seal that envelope and
            mail it to the office of the general
               DNC V. HOBBS                         237

             registrar or deliver it personally to the
             general registrar. A voter’s failure to
             provide in the statement on the back of
             the envelope his full middle name or
             his middle initial shall not be a material
             omission, rendering his ballot void,
             unless the voter failed to provide in the
             statement on the back of the envelope
             his full first and last name. A voter’s
             failure to provide the date, or any part
             of the date, including the year, on
             which he signed the statement printed
             on the back of the envelope shall not be
             considered a material omission and
             shall not render his ballot void. For
             purposes of this chapter, “mail” shall
             include delivery by a commercial
             delivery service, but shall not include
             delivery by a personal courier service
             or another individual except as
             provided by §§ 24.2-703.2 and 24.2-
             705.
Washington   Wash. Rev. Code Ann.
             § 29A.40.091(4) (West 2019):

             The voter must be instructed to either
             return the ballot to the county auditor
             no later than 8:00 p.m. the day of the
             election or primary, or mail the ballot to
             the county auditor with a postmark no
             later than the day of the election or
             primary. Return envelopes for all
             election ballots must include prepaid
238                DNC V. HOBBS

                 postage. Service and overseas voters
                 must be provided with instructions and
                 a privacy sheet for returning the ballot
                 and signed declaration by fax or email.
                 A voted ballot and signed declaration
                 returned by fax or email must be
                 received by 8:00 p.m. on the day of the
                 election or primary.
 West Virginia   W. Va. Code Ann. § 3-3-5(k) (West
                 2010):

                 Absentee ballots which are hand
                 delivered are to be accepted if they are
                 received by the official designated to
                 supervise and conduct absentee voting
                 no later than the day preceding the
                 election: Provided, That no person may
                 hand deliver more than two absentee
                 ballots in any election and any person
                 hand delivering an absentee ballot is
                 required to certify that he or she has not
                 examined or altered the ballot. Any
                 person who makes a false certification
                 violates the provisions of article nine of
                 this chapter and is subject to those
                 provisions.
 Wisconsin       Wis. Stat. Ann. § 6.87(4)(b) (West
                 2019):

                 The envelope shall be mailed by the
                 elector, or delivered in person, to the
            DNC V. HOBBS                      239

          municipal clerk issuing the ballot or
          ballots.
Wyoming   Wyo. Stat. Ann. § 22-9-113 (West
          2019):

          Upon receipt, a qualified elector shall
          mark the ballot and sign the affidavit.
          The ballot shall then be sealed in the
          inner ballot envelope and mailed or
          delivered to the clerk.