The Democratic National Committee v. Hobbs, No. 18-15845 (9th Cir. 2020)
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The en banc court reversed the district court's judgment for defendants in an action brought by the DNC and others. The DNC challenged Arizona's policy of wholly discarding, rather than counting or partially counting, ballots cast in the wrong precinct. The DNC also challenged House Bill 2023, a 2016 statute criminalizing the collection and delivery of another person’s ballot.
The en banc court held 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 Voting Rights Act (VRA). The en banc court further 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 VRA and of the Fifteenth Amendment. The en banc court did not reach the DNC's First and Fourteenth Amendment claims.
Court Description: 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 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, 478 U.S. 30, 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
This opinion or order relates to an opinion or order originally issued on September 12, 2018.