Democratic Nat'l Comm. v. Hobbs

• Decision Date: 27 January 2020
• Docket Number: No. 18-15845,18-15845
• Citation: 948 F.3d 989
• Parties: The DEMOCRATIC NATIONAL COMMITTEE; DSCC, aka Democratic Senatorial Campaign Committee; The Arizona Democratic Party, Plaintiffs-Appellants, v. 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.
• Court: U.S. Court of Appeals — Ninth Circuit

948 F.3d 989

The DEMOCRATIC NATIONAL COMMITTEE; DSCC, aka Democratic Senatorial Campaign Committee; The Arizona Democratic Party, Plaintiffs-Appellants,

v.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.

No. 18-15845

United States Court of Appeals, Ninth Circuit.

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

Filed January 27, 2020

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 , 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), was the most important case decided during his tenure as Chief Justice—a tenure that included Brown v. Board of Education , 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954). Earl Warren, The Memoirs of Earl Warren 306 (1977). Chief Justice Warren wrote in Reynolds v. Sims , 377 U.S. 533, 555, 84 S.Ct. 1362, 12 L.Ed.2d 506 (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 , 376 U.S. 1, 17, 84 S.Ct. 526, 11 L.Ed.2d 481 (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" 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 , 329 F. Supp. 3d 824 (D. Ariz. 2018) ( Reagan ). DNC appealed, and a divided three-judge panel of our court affirmed. Democratic Nat’l Comm. v. Reagan , 904 F.3d 686 (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 , 911 F.3d 942 (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 , 677 F.3d 383, 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 , 478 U.S. 30, 79, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986) (internal quotation marks omitted); see Smith v. Salt River Project Agric. Improvement & Power Dist ., 109 F.3d 586, 591 (9th Cir. 1997) ( Salt River ). We review for clear error the district court’s overall finding of vote dilution or vote denial in violation of the VRA. Gingles , 478 U.S. at 78, 106 S.Ct. 2752 ; Salt River , 109 F.3d at 591.

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 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. Reagan , 329 F. Supp. 3d at 840. In counties using the vote-center system, registered voters may vote at any polling location in the county. Id. In counties 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.

In both instances, the county discards the OOP ballot in its entirety. Reagan , 329 F. Supp. 3d at 840. 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." Id. at 856 (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. Id. at 835. 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 provisional ballots. Id. at 24. In the 2012 general election, more than 22 percent of all in-person ballots cast were provisional ballots. Id. In Maricopa County, Arizona’s most populous county, close to one in three in-person ballots cast in 2012 were provisional ballots. Id. at 27–28. In the 2014 midterm election, over 18 percent of in-person ballots cast in the State were provisional ballots. Id. at 25. 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

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