Brnovich v. Democratic National Committee ( 2021 )

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(Slip Opinion) OCTOBER TERM, 2020 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
BRNOVICH, ATTORNEY GENERAL OF ARIZONA,
ET AL. v. DEMOCRATIC NATIONAL COMMITTEE ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 19–1257. Argued March 2, 2021—Decided July 1, 2021*
Arizona law generally makes it very easy to vote. Voters may cast their
ballots on election day in person at a traditional precinct or a “voting
center” in their county of residence. Ariz. Rev. Stat. §16–411(B)(4).
Arizonans also may cast an “early ballot” by mail up to 27 days before
an election, §§16–541, 16–542(C), and they also may vote in person at
an early voting location in each county, §§16–542(A), (E). These cases
involve challenges under §2 of the Voting Rights Act of 1965 (VRA) to
aspects of the State’s regulations governing precinct-based election-
day voting and early mail-in voting. First, Arizonans who vote in per-
son on election day in a county that uses the precinct system must vote
in the precinct to which they are assigned based on their address. See
§16–122; see also §16–135. If a voter votes in the wrong precinct, the
vote is not counted. Second, for Arizonans who vote early by mail, Ar-
izona House Bill 2023 (HB 2023) makes it a crime for any person other
than a postal worker, an elections official, or a voter’s caregiver, family
member, or household member to knowingly collect an early ballot—
either before or after it has been completed. §§16–1005(H)–(I).
The Democratic National Committee and certain affiliates filed suit,
alleging that both the State’s refusal to count ballots cast in the wrong
precinct and its ballot-collection restriction had an adverse and dispar-
ate effect on the State’s American Indian, Hispanic, and African-Amer-
ican citizens in violation of §2 of the VRA. Additionally, they alleged
that the ballot-collection restriction was “enacted with discriminatory
——————
* Together with No. 19–1258, Arizona Republican Party et al. v. Dem-
ocratic National Committee et al., also on certiorari to the same court.
2 BRNOVICH v. DEMOCRATIC NATIONAL COMMITTEE
Syllabus
intent” and thus violated both §2 of the VRA and the Fifteenth Amend-
ment. The District Court rejected all of the plaintiffs’ claims. The
court found that the out-of-precinct policy had no “meaningfully dis-
parate impact” on minority voters’ opportunities to elect representa-
tives of their choice. Turning to the ballot-collection restriction, the
court found that it was unlikely to cause “a meaningful inequality” in
minority voters’ electoral opportunities and that it had not been en-
acted with discriminatory intent. A divided panel of the Ninth Circuit
affirmed, but the en banc court reversed. It first concluded that both
the out-of-precinct policy and the ballot-collection restriction imposed
a disparate burden on minority voters because they were more likely
to be adversely affected by those rules. The en banc court also held
that the District Court had committed clear error in finding that the
ballot-collection law was not enacted with discriminatory intent.
Held: Arizona’s out-of-precinct policy and HB 2023 do not violate §2 of
the VRA, and HB 2023 was not enacted with a racially discriminatory
purpose. Pp. 12–37.
(a) Two threshold matters require the Court’s attention. First, the
Court rejects the contention that no petitioner has Article III standing
to appeal the decision below as to the out-of-precinct policy. All that
is needed to entertain an appeal of that issue is one party with stand-
ing. Little Sisters of the Poor Saints Peter and Paul Home v. Pennsyl-
vania, 591 U. S. ___, ___, n. 6. Attorney General Brnovich, as an au-
thorized representative of the State (which intervened below) in any
action in federal court, fits the bill. See Virginia House of Delegates v.
Bethune-Hill, 587 U. S. ___, ___. Second, the Court declines in these
cases to announce a test to govern all VRA §2 challenges to rules that
specify the time, place, or manner for casting ballots. It is sufficient
for present purposes to identify certain guideposts that lead to the
Court’s decision in these cases. Pp. 12–13.
(b) The Court’s statutory interpretation starts with a careful consid-
eration of the text. Pp. 13–25.
(1) The Court first construed the current version of §2 in Thorn-
burg v. Gingles, 478 U. S. 30, which was a vote-dilution case where the
Court took its cue from §2’s legislative history. The Court’s many sub-
sequent vote-dilution cases have followed the path Gingles charted.
Because the Court here considers for the first time how §2 applies to
generally applicable time, place, or manner voting rules, it is appro-
priate to take a fresh look at the statutory text. Pp. 13–14.
(2) In 1982, Congress amended the language in §2 that had been
interpreted to require proof of discriminatory intent by a plurality of
the Court in Mobile v. Bolden, 446 U. S. 55. In place of that language,
§2(a) now uses the phrase “in a manner which results in a denial or
Cite as: 594 U. S. ____ (2021) 3
Syllabus
abridgement of the right . . . to vote on account of race or color.” Sec-
tion 2(b) in turn explains what must be shown to establish a §2 viola-
tion. Section 2(b) states that §2 is violated only where “the political
processes leading to nomination or election” are not “equally open to
participation” by members of the relevant protected group “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.” (Emphasis added.) In §2(b), the phrase “in that” is “used
to specify the respect in which a statement is true.” New Oxford Amer-
ican Dictionary 851. Thus, equal openness and equal opportunity are
not separate requirements. Instead, it appears that the core of §2(b)
is the requirement that voting be “equally open.” The statute’s refer-
ence to equal “opportunity” may stretch that concept to some degree to
include consideration of a person’s ability to use the means that are
equally open. But equal openness remains the touchstone. Pp. 14–15.
(3) Another important feature of §2(b) is its “totality of circum-
stances” requirement. Any circumstance that has a logical bearing on
whether voting is “equally open” and affords equal “opportunity” may
be considered. Pp. 15–21.
(i) The Court mentions several important circumstances but
does not attempt to compile an exhaustive list. Pp. 15–19.
(A) The size of the burden imposed by a challenged voting
rule is highly relevant. Voting necessarily requires some effort and
compliance with some rules; thus, the concept of a voting system that
is “equally open” and that furnishes equal “opportunity” to cast a ballot
must tolerate the “usual burdens of voting.” Crawford v. Marion
County Election Bd., 553 U. S. 181, 198. Mere inconvenience is insuf-
ficient. P. 16.
(B) The degree to which a voting rule departs from what was
standard practice when §2 was amended in 1982 is a relevant consid-
eration. The burdens associated with the rules in effect at that time
are useful in gauging whether the burdens imposed by a challenged
rule are sufficient to prevent voting from being equally “open” or fur-
nishing an equal “opportunity” to vote in the sense meant by §2. Wide-
spread current use is also relevant. Pp. 17–18.
(C) The size of any disparities in a rule’s impact on members
of different racial or ethnic groups is an important factor to consider.
Even neutral regulations may well result in disparities in rates of vot-
ing and noncompliance with voting rules. The mere fact that there is
some disparity in impact does not necessarily mean that a system is
not equally open or that it does not give everyone an equal opportunity
to vote. And small disparities should not be artificially magnified. P.
18.
(D) Consistent with §2(b)’s reference to a States’ “political
4 BRNOVICH v. DEMOCRATIC NATIONAL COMMITTEE
Syllabus
processes,” courts must consider the opportunities provided by a
State’s entire system of voting when assessing the burden imposed by
a challenged provision. Thus, where a State provides multiple ways to
vote, any burden associated with one option cannot be evaluated with-
out also taking into account the other available means. P. 18.
(E) The strength of the state interests—such as the strong
and entirely legitimate state interest in preventing election fraud—
served by a challenged voting rule is an important factor. Ensuring
that every vote is cast freely, without intimidation or undue influence,
is also a valid and important state interest. In determining whether a
rule goes too far “based on the totality of circumstances,” rules that are
supported by strong state interests are less likely to violate §2. Pp.
18–19.
(ii) Some factors identified in Thornburg v. Gingles, 478 U. S.
30, were designed for use in vote-dilution cases and are plainly inap-
plicable in a case that involves a challenge to a facially neutral time,
place, or manner voting rule. While §2(b)’s “totality of circumstances”
language permits consideration of certain other Gingles factors, their
only relevance in cases involving neutral time, place, and manner rules
is to show that minority group members suffered discrimination in the
past and that effects of that discrimination persist. The disparate-im-
pact model employed in Title VII and Fair Housing Act cases is not
useful here. Pp. 19–21.
(4) Section 2(b) directs courts to consider “the totality of circum-
stances,” but the dissent would make §2 turn almost entirely on one
circumstance: disparate impact. The dissent also would adopt a least-
restrictive means requirement that would force a State to prove that
the interest served by its voting rule could not be accomplished in any
other less burdensome way. Such a requirement has no footing in the
text of §2 or the Court’s precedent construing it and would have the
potential to invalidate just about any voting rule a State adopts. Sec-
tion 2 of the VRA provides vital protection against discriminatory vot-
ing rules, and no one suggests that discrimination in voting has been
extirpated or that the threat has been eliminated. Even so, §2 does
not transfer the States’ authority to set non-discriminatory voting
rules to the federal courts. Pp. 21–25.
(c) Neither Arizona’s out-of-precinct policy nor its ballot-collection
law violates §2 of the VRA. Pp. 25–34.
(1) Having to identify one’s polling place and then travel there to
vote does not exceed the “usual burdens of voting.” Crawford, 553
U. S., at 198. In addition, the State made extensive efforts to reduce
the impact of the out-of-precinct policy on the number of valid votes
ultimately cast, e.g., by sending a sample ballot to each household that
includes a voter’s proper polling location. The burdens of identifying
Cite as: 594 U. S. ____ (2021) 5
Syllabus
and traveling to one’s assigned precinct are also modest when consid-
ering Arizona’s “political processes” as a whole. The State offers other
easy ways to vote, which likely explains why out-of-precinct votes on
election day make up such a small and apparently diminishing portion
of overall ballots cast.
Next, the racial disparity in burdens allegedly caused by the out-of-
precinct policy is small in absolute terms. Of the Arizona counties that
reported out-of-precinct ballots in the 2016 general election, a little
over 1% of Hispanic voters, 1% of African-American voters, and 1% of
Native American voters who voted on election day cast an out-of-pre-
cinct ballot. For non-minority voters, the rate was around 0.5%. A
procedure that appears to work for 98% or more of voters to whom it
applies—minority and non-minority alike—is unlikely to render a sys-
tem unequally open.
Appropriate weight must be given to the important state interests
furthered by precinct-based voting. It helps to distribute voters more
evenly among polling places; it can put polling places closer to voter
residences; and it helps to ensure that each voter receives a ballot that
lists only the candidates and public questions on which he or she can
vote. Precinct-based voting has a long pedigree in the United States,
and the policy of not counting out-of-precinct ballots is widespread.
The Court of Appeals discounted the State’s interests because it
found no evidence that a less restrictive alternative would threaten the
integrity of precinct-based voting. But §2 does not require a State to
show that its chosen policy is absolutely necessary or that a less re-
strictive means would not adequately serve the State’s objectives.
Considering the modest burdens allegedly imposed by Arizona’s out-
of-precinct policy, the small size of its disparate impact, and the State’s
justifications, the rule does not violate §2. Pp. 25–30.
(2) Arizona’s HB 2023 also passes muster under §2. Arizonans
can submit early ballots by going to a mailbox, a post office, an early
ballot drop box, or an authorized election official’s office. These options
entail the “usual burdens of voting,” and assistance from a statutorily
authorized proxy is also available. The State also makes special pro-
vision for certain groups of voters who are unable to use the early vot-
ing system. See §16–549(C). And here, the plaintiffs were unable to
show the extent to which HB 2023 disproportionately burdens minor-
ity voters.
Even if the plaintiffs were able to demonstrate a disparate burden
caused by HB 2023, the State’s “compelling interest in preserving the
integrity of its election procedures” would suffice to avoid §2 liability.
Purcell v. Gonzalez, 549 U. S. 1, 4. The Court of Appeals viewed the
State’s justifications for HB 2023 as tenuous largely because there was
no evidence of early ballot fraud in Arizona. But prevention of fraud
6 BRNOVICH v. DEMOCRATIC NATIONAL COMMITTEE
Syllabus
is not the only legitimate interest served by restrictions on ballot col-
lection. Third-party ballot collection can lead to pressure and intimi-
dation. Further, a State may take action to prevent election fraud
without waiting for it to occur within its own borders. Pp. 30–34.
(d) HB 2023 was not enacted with a discriminatory purpose, as the
District Court found. Appellate review of that conclusion is for clear
error. Pullman-Standard v. Swint, 456 U. S. 273, 287–288. The Dis-
trict Court’s finding on the question of discriminatory intent had am-
ple support in the record. The court considered the historical back-
ground and the highly politicized sequence of events leading to HB
2023’s enactment; it looked for any departures from the normal legis-
lative process; it considered relevant legislative history; and it weighed
the law’s impact on different racial groups. See Arlington Heights v.
Metropolitan Housing Development Corp., 429 U. S. 252, 266–268. The
court found HB 2023 to be the product of sincere legislative debate over
the wisdom of early mail-in voting and the potential for fraud. And it
took care to distinguish between racial motives and partisan motives.
The District Court’s interpretation of the evidence was plausible based
on the record, so its permissible view is not clearly erroneous. See An-
derson v. Bessemer City, 470 U. S. 564, 573–574. The Court of Appeals
concluded that the District Court committed clear error by failing to
apply a “cat’s paw” theory—which analyzes whether an actor was a
“dupe” who was “used by another to accomplish his purposes.” That
theory has its origin in employment discrimination cases and has no
application to legislative bodies. Pp. 34–37.
948 F. 3d 989, reversed and remanded.
ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J.,
and THOMAS, GORSUCH, KAVANAUGH, and BARRETT, JJ., joined. GOR-
SUCH, J., filed a concurring opinion, in which THOMAS, J., joined. KAGAN,
J., filed a dissenting opinion, in which BREYER and SOTOMAYOR, JJ.,
joined.
Cite as: 594 U. S. ____ (2021) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 19–1257 and 19–1258
_________________
MARK BRNOVICH, ATTORNEY GENERAL OF
ARIZONA, ET AL., PETITIONERS
19–1257 v.
DEMOCRATIC NATIONAL COMMITTEE, ET AL.
ARIZONA REPUBLICAN PARTY, ET AL.,
PETITIONERS
19–1258 v.
DEMOCRATIC NATIONAL COMMITTEE, ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[July 1, 2021]
JUSTICE ALITO delivered the opinion of the Court.
In these cases, we are called upon for the first time to ap-
ply §2 of the Voting Rights Act of 1965 to regulations that
govern how ballots are collected and counted. Arizona law
generally makes it very easy to vote. All voters may vote by
mail or in person for nearly a month before election day, but
Arizona imposes two restrictions that are claimed to be un-
lawful. First, in some counties, voters who choose to cast a
ballot in person on election day must vote in their own pre-
cincts or else their ballots will not be counted. Second, mail-
in ballots cannot be collected by anyone other than an elec-
tion official, a mail carrier, or a voter’s family member,
household member, or caregiver. After a trial, a District
Court upheld these rules, as did a panel of the United
2 BRNOVICH v. DEMOCRATIC NATIONAL COMMITTEE
Opinion of the Court
States Court of Appeals for the Ninth Circuit. But an en
banc court, by a divided vote, found them to be unlawful. It
relied on the rules’ small disparate impacts on members of
minority groups, as well as past discrimination dating back
to the State’s territorial days. And it overturned the Dis-
trict Court’s finding that the Arizona Legislature did not
adopt the ballot-collection restriction for a discriminatory
purpose. We now hold that the en banc court misunder-
stood and misapplied §2 and that it exceeded its authority
in rejecting the District Court’s factual finding on the issue
of legislative intent.
I
A
Congress enacted the landmark Voting Rights Act of
1965, 79 Stat. 437, as amended, 52 U. S. C. §10301 et seq.,
in an effort to achieve at long last what the Fifteenth
Amendment had sought to bring about 95 years earlier: an
end to the denial of the right to vote based on race. Ratified
in 1870, the Fifteenth Amendment provides in §1 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.”
Section 2 of the Amendment then grants Congress the
“power to enforce [the Amendment] by appropriate legisla-
tion.”
Despite the ratification of the Fifteenth Amendment, the
right of African-Americans to vote was heavily suppressed
for nearly a century. States employed a variety of notorious
methods, including poll taxes, literacy tests, property
qualifications, “ ‘white primar[ies],’ ” and “ ‘grandfather
clause[s].’ ” 1 Challenges to some blatant efforts reached this
Court and were held to violate the Fifteenth Amendment.
——————
1 H. R. Rep. No. 439, 89th Cong., 1st Sess., 8, 11–13 (1965); S. Rep. No.
162, 89th Cong., 1st Sess., pt. 3, pp. 4–5 (1965); see South Carolina v.
Katzenbach, 383 U. S. 301, 309–315 (1966).
Cite as: 594 U. S. ____ (2021) 3
Opinion of the Court
See, e.g., Guinn v. United States, 238 U. S. 347, 360–365
(1915) (grandfather clause); Myers v. Anderson, 238 U. S.
368, 379–380 (1915) (same); Lane v. Wilson, 307 U. S. 268,
275–277 (1939) (registration scheme predicated on grand-
father clause); Smith v. Allwright, 321 U. S. 649, 659–666
(1944) (white primaries); Schnell v. Davis, 336 U. S. 933(1949) (per curiam), affirming 81 F. Supp. 872 (SD Ala.
1949) (test of constitutional knowledge); Gomillion v. Light-
foot, 364 U. S. 339, 347 (1960) (racial gerrymander). But as
late as the mid-1960s, black registration and voting rates
in some States were appallingly low. See South Carolina v.
Katzenbach, 383 U. S. 301, 313 (1966).
Invoking the power conferred by §2 of the Fifteenth
Amendment, see 383 U. S., at 308; City of Rome v. United
States, 446 U. S. 156, 173 (1980), Congress enacted the Vot-
ing Rights Act (VRA) to address this entrenched problem.
The Act and its amendments in the 1970s specifically for-
bade some of the practices that had been used to suppress
black voting. See §§4(a), (c), 79 Stat. 438–439; §6, 84 Stat.
315; §102, 89 Stat. 400, as amended, 52 U. S. C. §§10303(a),
(c), 10501 (prohibiting the denial of the right to vote in any
election for failure to pass a test demonstrating literacy, ed-
ucational achievement or knowledge of any particular sub-
ject, or good moral character); see also §10, 79 Stat. 442, as
amended, 52 U. S. C. §10306 (declaring poll taxes unlaw-
ful); §11, 79 Stat. 443, as amended, 52 U. S. C. §10307 (pro-
hibiting intimidation and the refusal to allow or count
votes). Sections 4 and 5 of the VRA imposed special require-
ments for States and subdivisions where violations of the
right to vote had been severe. And §2 addressed the denial
or abridgment of the right to vote in any part of the country.
As originally enacted, §2 closely tracked the language of
the Amendment it was adopted to enforce. Section 2 stated
simply that “[n]o voting qualification or prerequisite to vot-
ing, or standard, practice, or procedure shall be imposed or
applied by any State or political subdivision to deny or
4 BRNOVICH v. DEMOCRATIC NATIONAL COMMITTEE
Opinion of the Court
abridge the right of any citizen of the United States to vote
on account of race or color.” 79 Stat. 437.
Unlike other provisions of the VRA, §2 attracted rela-
tively little attention during the congressional debates 2 and
was “little-used” for more than a decade after its passage. 3
But during the same period, this Court considered several
cases involving “vote-dilution” claims asserted under the
Equal Protection Clause of the Fourteenth Amendment.
See Whitcomb v. Chavis, 403 U. S. 124 (1971); Burns v.
Richardson, 384 U. S. 73 (1966); Fortson v. Dorsey, 379
U. S. 433 (1965). In these and later vote-dilution cases,
plaintiffs claimed that features of legislative districting
plans, including the configuration of legislative districts
and the use of multi-member districts, diluted the ability of
particular voters to affect the outcome of elections.
One Fourteenth Amendment vote-dilution case, White v.
Regester, 412 U. S. 755 (1973), came to have outsized im-
portance in the development of our VRA case law. In White,
the Court affirmed a District Court’s judgment that two
multi-member electoral districts were “being used invidi-
ously to cancel out or minimize the voting strength of racial
groups.” Id., at 765. The Court explained what a vote-
dilution plaintiff must prove, and the words the Court chose
would later assume great importance in VRA §2 matters.
According to White, a vote-dilution plaintiff had to show
that “the political processes leading to nomination and elec-
tion were not equally open to participation by the group in
question—that its members had less opportunity than did
other residents in the district to participate in the political
processes and to elect legislators of their choice.” Id., at 766
(emphasis added). The decision then recited many pieces of
evidence the District Court had taken into account, and it
——————
2 See Mobile v. Bolden, 446 U. S. 55, 60–61 (1980) (plurality opinion)
(describing §2’s “sparse” legislative history).
3 Boyd & Markman, The 1982 Amendments to the Voting Rights Act:
A Legislative History, 40 Wash. & Lee L. Rev. 1347, 1352–1353 (1983).
Cite as: 594 U. S. ____ (2021) 5
Opinion of the Court
found that this evidence sufficed to prove the plaintiffs’
claim. See id., at 766–769. The decision in White predated
Washington v. Davis, 426 U. S. 229 (1976), where the Court
held that an equal-protection challenge to a facially neutral
rule requires proof of discriminatory purpose or intent, id.,at 238–245, and the White opinion said nothing one way or
the other about purpose or intent.
A few years later, the question whether a VRA §2 claim
required discriminatory purpose or intent came before this
Court in Mobile v. Bolden, 446 U. S. 55 (1980). The plural-
ity opinion for four Justices concluded first that §2 of the
VRA added nothing to the protections afforded by the Fif-
teenth Amendment. Id., at 60–61. The plurality then ob-
served that prior decisions “ha[d] made clear that action by
a State that is racially neutral on its face violates the Fif-
teenth Amendment only if motivated by a discriminatory
purpose.” Id., at 62. The obvious result of those premises
was that facially neutral voting practices violate §2 only if
motivated by a discriminatory purpose. The plurality read
White as consistent with this requirement. Bolden, 446
U. S., at 68–70.
Shortly after Bolden was handed down, Congress
amended §2 of the VRA. The oft-cited Report of the Senate
Judiciary Committee accompanying the 1982 Amendment
stated that the amendment’s purpose was to repudiate Bol-
den and establish a new vote-dilution test based on what
the Court had said in White. See S. Rep. No. 97–417, pp. 2,
15–16, 27. The bill that was initially passed by the House
of Representatives included what is now §2(a). In place of
the phrase “to deny or abridge the right . . . to vote on ac-
count of race or color,” the amendment substituted “in a
manner which results in a denial or abridgement of the
right . . . to vote on account of race or color.” H. R. Rep. No.
97–227, p. 48 (1981) (emphasis added); H. R. 3112, 97th
Cong., 1st Sess., §2, p. 8 (introduced Oct. 7, 1981).
6 BRNOVICH v. DEMOCRATIC NATIONAL COMMITTEE
Opinion of the Court
The House bill “originally passed . . . under a loose under-
standing that §2 would prohibit all discriminatory ‘effects’
of voting practices, and that intent would be ‘irrelevant,’ ”
but “[t]his version met stiff resistance in the Senate.” Mis-
sissippi Republican Executive Committee v. Brooks, 469
U. S. 1002, 1010 (1984) (Rehnquist, J., dissenting) (quoting
H. R. Rep. No. 97–227, at 29). The House and Senate com-
promised, and the final product included language proposed
by Senator Dole. 469 U. S., at 1010–1011; S. Rep. No. 97–
417, at 3–4; 128 Cong. Rec. 14131–14133 (1982) (Sen. Dole
describing his amendment).
What is now §2(b) was added, and that provision sets out
what must be shown to prove a §2 violation. It requires
consideration of “the totality of circumstances” in each case
and demands proof 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 pro-
tected class “in that its members have less opportunity than
other members of the electorate to participate in the politi-
cal process and to elect representatives of their choice.” 52
U. S. C. §10301(b) (emphasis added). Reflecting the Senate
Judiciary Committee’s stated focus on the issue of vote di-
lution, this language was taken almost verbatim from
White.
This concentration on the contentious issue of vote dilu-
tion reflected the results of the Senate Judiciary Commit-
tee’s extensive survey of what it regarded as Fifteenth
Amendment violations that called out for legislative re-
dress. See, e.g., S. Rep. No. 97–417, at 6, 8, 23–24, 27, 29.
That survey listed many examples of what the Committee
took to be unconstitutional vote dilution, but the survey
identified only three isolated episodes involving the out-
right denial of the right to vote, and none of these concerned
the equal application of a facially neutral rule specifying
the time, place, or manner of voting. See id., at 30, and
Cite as: 594 U. S. ____ (2021) 7
Opinion of the Court
n. 119. 4 These sparse results were presumably good news.
They likely showed that the VRA and other efforts had
achieved a large measure of success in combating the pre-
viously widespread practice of using such rules to hinder
minority groups from voting.
This Court first construed the amended §2 in Thornburg
v. Gingles, 478 U. S. 30 (1986)—another vote-dilution case.
Justice Brennan’s opinion for the Court set out three
threshold requirements for proving a §2 vote-dilution claim,
and, taking its cue from the Senate Report, provided a non-
exhaustive list of factors to be considered in determining
whether §2 had been violated. Id., at 44–45, 48–51, 80.
“The essence of a §2 claim,” the Court said, “is that a certain
electoral law, practice, or structure interacts with social
and historical conditions to cause an inequality in the op-
portunities” of minority and non-minority voters to elect
their preferred representatives. Id., at 47.
In the years since Gingles, we have heard a steady stream
of §2 vote-dilution cases, 5 but until today, we have not con-
sidered how §2 applies to generally applicable time, place,
or manner voting rules. In recent years, however, such
claims have proliferated in the lower courts. 6
——————
4 See Brown v. Post, 279 F. Supp. 60, 63 (WD La. 1968) (parish clerks
discriminated with respect to absentee voting); United States v. Post, 297
F. Supp. 46, 51 (WD La. 1969) (election official induced blacks to vote in
accordance with outdated procedures and made votes ineffective); Toney
v. White, 488 F. 2d 310, 312 (CA5 1973) (registrar discriminated in purg-
ing voting rolls).
5 See Chisom v. Roemer, 501 U. S. 380 (1991) (multi-member district);
Houston Lawyers’ Assn. v. Attorney General of Tex., 501 U. S. 419 (1991)
(at-large elections); Voinovich v. Quilter, 507 U. S. 146 (1993) (district-
ing); Growe v. Emison, 507 U. S. 25 (1993) (same); Holder v. Hall, 512
U. S. 874 (1994) (single-member commission); Johnson v. De Grandy,
512 U. S. 997 (1994) (districting); Abrams v. Johnson, 521 U. S. 74 (1997)
(same); League of United Latin American Citizens v. Perry, 548 U. S. 399(2006) (same); Abbott v. Perez, 585 U. S. ___ (2018) (same).
6 See Brief for Sen. Ted Cruz et al. as Amici Curiae 22–24 (describing
§2 challenges to laws regulating absentee voting, precinct voting, early
8 BRNOVICH v. DEMOCRATIC NATIONAL COMMITTEE
Opinion of the Court
B
The present dispute concerns two features of Arizona vot-
ing law, which generally makes it quite easy for residents
to vote. All Arizonans may vote by mail for 27 days before
an election using an “early ballot.” Ariz. Rev. Stat. Ann.
§§16–541 (2015), 16–542(C) (Cum. Supp. 2020). No special
excuse is needed, §§16–541(A), 16–542(A), and any voter
may ask to be sent an early ballot automatically in future
elections, §16–544(A) (2015). In addition, during the 27
days before an election, Arizonans may vote in person at an
early voting location in each county. See §§16–542(A), (E).
And they may also vote in person on election day.
Each county is free to conduct election-day voting either
by using the traditional precinct model or by setting up
“voting centers.” §16–411(B)(4) (Cum. Supp. 2020). Voting
centers are equipped to provide all voters in a county with
the appropriate ballot for the precinct in which they are reg-
istered, and this allows voters in the county to use which-
ever vote center they prefer. See ibid.
The regulations at issue in this suit govern precinct-
based election-day voting and early mail-in voting. Voters
who choose to vote in person on election day in a county that
uses the precinct system must vote in their assigned pre-
cincts. See §16–122 (2015); see also §16–135. If a voter goes
to the wrong polling place, poll workers are trained to direct
the voter to the right location. Democratic Nat. Comm. v.
Reagan, 329 F. Supp. 3d 824, 859 (Ariz. 2018); see Tr. 1559,
1586 (Oct. 12, 2017); Tr. Exh. 370 (Pima County Elections
Inspectors Handbook). If a voter finds that his or her name
does not appear on the register at what the voter believes
——————
voting periods, voter identification (ID), election observer zones, same-
day registration, durational residency, and straight-ticket voting); Brief
for State of Ohio et al. as Amici Curiae 23–25 (describing various §2 chal-
lenges); Brief for Liberty Justice Center as Amicus Curiae 1–3, 7–11 (de-
scribing long-running §2 challenges to Wisconsin voter ID law).
Cite as: 594 U. S. ____ (2021) 9
Opinion of the Court
is the right precinct, the voter ordinarily may cast a provi-
sional ballot. Ariz. Rev. Stat. Ann. §16–584 (Cum. Supp.
2020). That ballot is later counted if the voter’s address is
determined to be within the precinct. See ibid. But if it
turns out that the voter cast a ballot at the wrong precinct,
that vote is not counted. See §16–584(E); App. 37–41 (elec-
tion procedures manual); Ariz. Rev. Stat. Ann. §16–452(C)
(misdemeanor to violate rules in election procedures man-
ual).
For those who choose to vote early by mail, Arizona has
long required that “[o]nly the elector may be in possession
of that elector’s unvoted early ballot.” §16–542(D). In 2016,
the state legislature enacted House Bill 2023 (HB 2023),
which makes it a crime for any person other than a postal
worker, an elections official, or a voter’s caregiver, family
member, or household member to knowingly collect an
early ballot—either before or after it has been completed.
§§16–1005(H)–(I).
In 2016, the Democratic National Committee and certain
affiliates brought this suit and named as defendants
(among others) the Arizona attorney general and secretary
of state in their official capacities. Among other things, the
plaintiffs claimed that both the State’s refusal to count bal-
lots cast in the wrong precinct and its ballot-collection re-
striction “adversely and disparately affect Arizona’s Amer-
ican Indian, Hispanic, and African American citizens,” in
violation of §2 of the VRA. Democratic Nat. Comm. v.
Hobbs, 948 F. 3d 989, 998 (CA9 2020) (en banc). In addi-
tion, they alleged that the ballot-collection restriction was
“enacted with discriminatory intent” and thus violated both
§2 of the VRA and the Fifteenth Amendment. Ibid.
After a 10-day bench trial, 329 F. Supp. 3d, at 832, 833–
838, the District Court made extensive findings of fact and
rejected all the plaintiffs’ claims, id., at 838–883. The court
first found that the out-of-precinct policy “has no meaning-
10 BRNOVICH v. DEMOCRATIC NATIONAL COMMITTEE
Opinion of the Court
fully disparate impact on the opportunities of minority vot-
ers to elect” representatives of their choice. Id., at 872. The
percentage of ballots invalidated under this policy was very
small (0.15% of all ballots cast in 2016) and decreasing, and
while the percentages were slightly higher for members of
minority groups, the court found that this disparity “does
not result in minorities having unequal access to the politi-
cal process.” Ibid. The court also found that the plaintiffs
had not proved that the policy “causes minorities to show
up to vote at the wrong precinct at rates higher than their
non-minority counterparts,” id., at 873, and the court noted
that the plaintiffs had not even challenged “the manner in
which Arizona counties allocate and assign polling
places or Arizona’s requirement that voters re-register
to vote when they move,” ibid.
The District Court similarly found that the ballot-
collection restriction is unlikely to “cause a meaningful ine-
quality in the electoral opportunities of minorities.” Id., at
871. Rather, the court noted, the restriction applies equally
to all voters and “does not impose burdens beyond those tra-
ditionally associated with voting.” Ibid. The court observed
that the plaintiffs had presented no records showing how
many voters had previously relied on now-prohibited third-
party ballot collectors and that the plaintiffs also had “pro-
vided no quantitative or statistical evidence” of the percent-
age of minority and non-minority voters in this group. Id.,
at 866. “[T]he vast majority” of early voters, the court
found, “do not return their ballots with the assistance of a
[now-prohibited] third-party collector,” id., at 845, and the
evidence largely showed that those who had used such col-
lectors in the past “ha[d] done so out of convenience or per-
sonal preference, or because of circumstances that Arizona
law adequately accommodates in other ways,” id., at 847. 7
——————
7 An ill or disabled voter may have a ballot delivered by a special elec-
tion board, and curbside voting at polling places is also allowed. 329
Cite as: 594 U. S. ____ (2021) 11
Opinion of the Court
In addition, the court noted, none of the individual voters
called by the plaintiffs had even claimed that the ballot-
collection restriction “would make it significantly more dif-
ficult to vote.” Id., at 871.
Finally, the court found that the ballot-collection law had
not been enacted with discriminatory intent. “[T]he major-
ity of H.B. 2023’s proponents,” the court found, “were sin-
cere in their belief that ballot collection increased the risk
of early voting fraud, and that H.B. 2023 was a necessary
prophylactic measure to bring early mail ballot security in
line with in-person voting.” Id., at 879. The court added
that “some individual legislators and proponents were mo-
tivated in part by partisan interests.” Id., at 882. But it
distinguished between partisan and racial motives, while
recognizing that “racially polarized voting can sometimes
blur the lines.” Ibid.
A divided panel of the Ninth Circuit affirmed, but an en
banc court reversed. The en banc court first concluded that
both the out-of-precinct policy and the ballot-collection re-
striction imposed disparate burdens on minority voters be-
cause such voters were more likely to be adversely affected
by those rules. 948 F. 3d, at 1014–1016, 1032–1033. Then,
based on an assessment of the vote-dilution factors used in
Gingles, the en banc majority found that these disparate
burdens were “in part caused by or linked to ‘social and his-
torical conditions’ ” that produce inequality. 948 F. 3d, at
1032 (quoting Gingles, 478 U. S., at 47); see 948 F. 3d, at
1037. Among other things, the court relied on racial dis-
crimination dating back to Arizona’s territorial days, cur-
rent socioeconomic disparities, racially polarized voting,
and racial campaign appeals. See id., at 1016–1032, 1033–
1037.
The en banc majority also held that the District Court
had committed clear error in finding that the ballot-collection
——————
F. Supp. 3d, at 848.
12 BRNOVICH v. DEMOCRATIC NATIONAL COMMITTEE
Opinion of the Court
law was not enacted with discriminatory intent. The en
banc court did not claim that a majority of legislators had
voted for the law for a discriminatory purpose, but the court
held that these lawmakers “were used as ‘cat’s paws’ ” by
others. Id., at 1041.
One judge in the majority declined to join the court’s hold-
ing on discriminatory intent, and four others dissented
across the board. A petition for a writ of certiorari was filed
by the Arizona attorney general on his own behalf and on
behalf of the State, which had intervened below; another
petition was filed by the Arizona Republican Party and
other private parties who also had intervened. We granted
the petitions and agreed to review both the Ninth Circuit’s
understanding and application of VRA §2 and its holding on
discriminatory intent. 591 U. S. ___ (2020).
II
We begin with two preliminary matters. Secretary of
State Hobbs contends that no petitioner has Article III
standing to appeal the decision below as to the out-of-
precinct policy, but we reject that argument. All that is
needed to entertain an appeal of that issue is one party with
standing, see Little Sisters of the Poor Saints Peter and Paul
Home v. Pennsylvania, 591 U. S. ___, ___, n. 6 (2020) (slip
op., at 13, n. 6), and we are satisfied that Attorney General
Brnovich fits the bill. The State of Arizona intervened be-
low, see App. 834; there is “[n]o doubt” as an Article III mat-
ter that “the State itself c[an] press this appeal,” Virginia
House of Delegates v. Bethune-Hill, 587 U. S. ___, ___ (2019)
(slip op., at 4); and the attorney general is authorized to
represent the State in any action in federal court, Ariz. Rev.
Stat. Ann. §41–193(A)(3) (2021); see Arizonans for Official
English v. Arizona, 520 U. S. 43, 51, n. 4 (1997).
Second, we think it prudent to make clear at the begin-
ning that we decline in these cases to announce a test to
govern all VRA §2 claims involving rules, like those at issue
Cite as: 594 U. S. ____ (2021) 13
Opinion of the Court
here, that specify the time, place, or manner for casting bal-
lots. Each of the parties advocated a different test, as did
many amici and the courts below. In a brief filed in Decem-
ber in support of petitioners, the Department of Justice pro-
posed one such test but later disavowed the analysis in that
brief. 8 The Department informed us, however, that it did
not disagree with its prior conclusion that the two provi-
sions of Arizona law at issue in these cases do not violate §2
of the Voting Rights Act. 9 All told, no fewer than 10 tests
have been proposed. But as this is our first foray into the
area, we think it sufficient for present purposes to identify
certain guideposts that lead us to our decision in these
cases.
III
A
We start with the text of VRA §2. It now 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 man-
ner which results in a denial or abridgement of the
right of any citizen of the United States to vote on ac-
count of race or color, or in contravention of the guar-
antees set forth in section 10303(f )(2) of this title, as
provided in subsection (b).
“(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
——————
8 Letter from E. Kneedler, Deputy Solicitor General, to S. Harris, Clerk
of Court (Feb. 16, 2021).
9 Ibid.
14 BRNOVICH v. DEMOCRATIC NATIONAL COMMITTEE
Opinion of the Court
to participate in the political process and to elect rep-
resentatives of their choice. The extent to which mem-
bers of a protected class have been elected to office in
the State or political subdivision is one circumstance
which may be considered: Provided, That nothing in
this section establishes a right to have members of a
protected class elected in numbers equal to their pro-
portion in the population.” 52 U. S. C. §10301.
In Gingles, our seminal §2 vote-dilution case, the Court
quoted the text of amended §2 and then jumped right to the
Senate Judiciary Committee Report, which focused on the
issue of vote dilution. 478 U. S., at 36–37, 43, and n. 7. Our
many subsequent vote-dilution cases have largely followed
the path that Gingles charted. But because this is our first
§2 time, place, or manner case, a fresh look at the statutory
text is appropriate. Today, our statutory interpretation
cases almost always start with a careful consideration of
the text, and there is no reason to do otherwise here.
B
Section 2(a), as noted, omits the phrase “to deny or
abridge the right . . . to vote on account of race or color,”
which the Bolden plurality had interpreted to require proof
of discriminatory intent. In place of that language, §2(a)
substitutes the phrase “in a manner which results in a de-
nial or abridgement of the right . . . to vote on account of
race or color.” (Emphasis added.) We need not decide what
this text would mean if it stood alone because §2(b), which
was added to win Senate approval, explains what must be
shown to establish a §2 violation. Section 2(b) states that
§2 is violated only where “the political processes leading to
nomination or election” are not “equally open to participa-
tion” by members of the relevant protected group “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.” (Emphasis added.)
Cite as: 594 U. S. ____ (2021) 15
Opinion of the Court
The key requirement is that the political processes lead-
ing to nomination and election (here, the process of voting)
must be “equally open” to minority and non-minority groups
alike, and the most relevant definition of the term “open,”
as used in §2(b), is “without restrictions as to who may par-
ticipate,” Random House Dictionary of the English Lan-
guage 1008 (J. Stein ed. 1966), or “requiring no special sta-
tus, identification, or permit for entry or participation,”
Webster’s Third New International Dictionary 1579 (1976).
What §2(b) means by voting that is not “equally open” is
further explained by this language: “in that its members
have less opportunity than other members of the electorate
to participate in the political process and to elect represent-
atives of their choice.” The phrase “in that” is “used to spec-
ify the respect in which a statement is true.” 10 Thus, equal
openness and equal opportunity are not separate require-
ments. Instead, equal opportunity helps to explain the
meaning of equal openness. And the term “opportunity”
means, among other things, “a combination of circum-
stances, time, and place suitable or favorable for a particu-
lar activity or action.” Id., at 1583; see also Random House
Dictionary of the English Language, at 1010 (“an appropri-
ate or favorable time or occasion,” “a situation or condition
favorable for attainment of a goal”).
Putting these terms together, it appears that the core of
§2(b) is the requirement that voting be “equally open.” The
statute’s reference to equal “opportunity” may stretch that
concept to some degree to include consideration of a per-
son’s ability to use the means that are equally open. But
equal openness remains the touchstone.
——————
10 The New Oxford American Dictionary 851 (2d ed. 2005); see 7 Oxford
English Dictionary 763 (2d ed. 1989) (“in presence, view, or consequence
of the fact that”); Webster’s New International Dictionary 1253 (2d ed.
1934) (“Because; for the reason that”).
16 BRNOVICH v. DEMOCRATIC NATIONAL COMMITTEE
Opinion of the Court
C
One other important feature of §2(b) stands out. The pro-
vision requires consideration of “the totality of circum-
stances.” Thus, any circumstance that has a logical bearing
on whether voting is “equally open” and affords equal “op-
portunity” may be considered. We will not attempt to com-
pile an exhaustive list, but several important circumstances
should be mentioned.
1
1. First, the size of the burden imposed by a challenged
voting rule is highly relevant. The concepts of “open[ness]”
and “opportunity” connote the absence of obstacles and bur-
dens that block or seriously hinder voting, and therefore the
size of the burden imposed by a voting rule is important.
After all, every voting rule imposes a burden of some sort.
Voting takes time and, for almost everyone, some travel,
even if only to a nearby mailbox. Casting a vote, whether
by following the directions for using a voting machine or
completing a paper ballot, requires compliance with certain
rules. But because voting necessarily requires some effort
and compliance with some rules, the concept of a voting sys-
tem that is “equally open” and that furnishes an equal “op-
portunity” to cast a ballot must tolerate the “usual burdens
of voting.” Crawford v. Marion County Election Bd., 553
U. S. 181, 198 (2008) (opinion of Stevens, J.). Mere incon-
venience cannot be enough to demonstrate a violation of
§2. 11
——————
11 There is a difference between openness and opportunity, on the one
hand, and the absence of inconvenience, on the other. For example, sup-
pose that an exhibit at a museum in a particular city is open to everyone
free of charge every day of the week for several months. Some residents
of the city who have the opportunity to view the exhibit may find it in-
convenient to do so for many reasons—the problem of finding parking,
dislike of public transportation, anticipation that the exhibit will be
crowded, a plethora of weekend chores and obligations, etc. Or, to take
another example, a college course may be open to all students and all
Cite as: 594 U. S. ____ (2021) 17
Opinion of the Court
2. For similar reasons, the degree to which a voting rule
departs from what was standard practice when §2 was
amended in 1982 is a relevant consideration. Because
every voting rule imposes a burden of some sort, it is useful
to have benchmarks with which the burdens imposed by a
challenged rule can be compared. The burdens associated
with the rules in widespread use when §2 was adopted are
therefore useful in gauging whether the burdens imposed
by a challenged rule are sufficient to prevent voting from
being equally “open” or furnishing an equal “opportunity”
to vote in the sense meant by §2. Therefore, it is relevant
that in 1982 States typically required nearly all voters to
cast their ballots in person on election day and allowed only
narrow and tightly defined categories of voters to cast ab-
sentee ballots. See, e.g., 17 N. Y. Elec. Law Ann. §8–100
et seq. (West 1978), §8–300 et seq. (in-person voting), §8–
400 et seq. (limited-excuse absentee voting); Pa. Stat. Ann.,
Tit. 25, §3045 et seq. (Purdon 1963) (in-person voting),
§3149.1 et seq. (limited-excuse absentee voting); see §3146.1
(Purdon Cum. Supp. 1993) (same); Ohio Rev. Code Ann.
§3501.02 et seq. (Lexis 1972) (in-person voting), §3509.01
et seq. (limited-excuse absentee voting); see §3509.02 (Lexis
Supp. 1986) (same); Fla. Stat. Ann. §101.011 et seq. (1973)
(in-person voting), §101.62 et seq. (limited-excuse absentee
voting); see §97.063 (1982) (same); Ill. Rev. Stat., ch.46,
§17–1 et seq. (West 1977) (in-person voting), §19–1 et seq.
(limited-excuse absentee voting); D. C. Code §§1–1109, 1–
1110 (1973) (in-person voting and limited-excuse absentee
voting); see §1–1313 (1981) (same). As of January 1980,
only three States permitted no-excuse absentee voting. See
Gronke & Galanes-Rosenbaum, America Votes! 261, 267–269
——————
may have the opportunity to enroll, but some students may find it incon-
venient to take the class for a variety of reasons. For example, classes
may occur too early in the morning or on Friday afternoon; too much
reading may be assigned; the professor may have a reputation as a hard
grader; etc.
18 BRNOVICH v. DEMOCRATIC NATIONAL COMMITTEE
Opinion of the Court
(B. Griffith ed. 2008); see also J. Sargent et al., Congres-
sional Research Service, The Growth of Early and Nonpre-
cinct Place Balloting, in Election Laws of the Fifty States
and the District of Columbia (rev. 1976). We doubt that
Congress intended to uproot facially neutral time, place,
and manner regulations that have a long pedigree or are in
widespread use in the United States. We have no need to
decide whether adherence to, or a return to, a 1982 frame-
work is necessarily lawful under §2, but the degree to which
a challenged rule has a long pedigree or is in widespread
use in the United States is a circumstance that must be
taken into account.
3. The size of any disparities in a rule’s impact on mem-
bers of different racial or ethnic groups is also an important
factor to consider. Small disparities are less likely than
large ones to indicate that a system is not equally open. To
the extent that minority and non-minority groups differ
with respect to employment, wealth, and education, even
neutral regulations, no matter how crafted, may well result
in some predictable disparities in rates of voting and non-
compliance with voting rules. But the mere fact there is
some disparity in impact does not necessarily mean that a
system is not equally open or that it does not give everyone
an equal opportunity to vote. The size of any disparity mat-
ters. And in assessing the size of any disparity, a meaning-
ful comparison is essential. What are at bottom very small
differences should not be artificially magnified. E.g., Frank
v. Walker, 768 F. 3d 744, 752, n. 3 (CA7 2014).
4. Next, courts must consider the opportunities provided
by a State’s entire system of voting when assessing the bur-
den imposed by a challenged provision. This follows from
§2(b)’s reference to the collective concept of a State’s “polit-
ical processes” and its “political process” as a whole. Thus,
where a State provides multiple ways to vote, any burden
imposed on voters who choose one of the available options
cannot be evaluated without also taking into account the
Cite as: 594 U. S. ____ (2021) 19
Opinion of the Court
other available means.
5. Finally, the strength of the state interests served by a
challenged voting rule is also an important factor that must
be taken into account. As noted, every voting rule imposes
a burden of some sort, and therefore, in determining “based
on the totality of circumstances” whether a rule goes too far,
it is important to consider the reason for the rule. Rules
that are supported by strong state interests are less likely
to violate §2.
One strong and entirely legitimate state interest is the
prevention of fraud. Fraud can affect the outcome of a close
election, and fraudulent votes dilute the right of citizens to
cast ballots that carry appropriate weight. Fraud can also
undermine public confidence in the fairness of elections and
the perceived legitimacy of the announced outcome.
Ensuring that every vote is cast freely, without intimida-
tion or undue influence, is also a valid and important state
interest. This interest helped to spur the adoption of what
soon became standard practice in this country and in other
democratic nations the world round: the use of private vot-
ing booths. See Burson v. Freeman, 504 U. S. 191, 202–205
(1992) (plurality opinion).
2
While the factors set out above are important, others con-
sidered by some lower courts are less helpful in a case like
the ones at hand. First, it is important to keep in mind that
the Gingles or “Senate” factors grew out of and were de-
signed for use in vote-dilution cases. Some of those factors
are plainly inapplicable in a case involving a challenge to a
facially neutral time, place, or manner voting rule. Factors
three and four concern districting and election procedures
20 BRNOVICH v. DEMOCRATIC NATIONAL COMMITTEE
Opinion of the Court
like “majority vote requirements,” “anti-single shot provi-
sions,” 12 and a “candidate slating process.” 13 See Gingles,
478 U. S., at 37 (internal quotation marks omitted). Fac-
tors two, six, and seven (which concern racially polarized
voting, racially tinged campaign appeals, and the election
of minority-group candidates), ibid., have a bearing on
whether a districting plan affects the opportunity of minor-
ity voters to elect their candidates of choice. But in cases
involving neutral time, place, and manner rules, the only
relevance of these and the remaining factors is to show that
minority group members suffered discrimination in the
past (factor one) and that effects of that discrimination per-
sist (factor five). Id., at 36–37. We do not suggest that these
factors should be disregarded. After all, §2(b) requires con-
sideration of “the totality of circumstances.” But their rel-
evance is much less direct.
We also do not find the disparate-impact model employed
in Title VII and Fair Housing Act cases useful here. The
text of the relevant provisions of Title VII and the Fair
Housing Act differ from that of VRA §2, and it is not obvious
why Congress would conform rules regulating voting to
——————
12 Where voters are allowed to vote for multiple candidates in a race for
multiple seats, single-shot voting is the practice of voting for only one
candidate. “ ‘ “Single-shot voting enables a minority group to win some
at-large seats if it concentrates its vote behind a limited number of can-
didates and if the vote of the majority is divided among a number of can-
didates.” ’ ” Gingles, 478 U. S., at 38–39, n. 5 (quoting City of Rome v.
United States, 446 U. S. 156, 184, n. 19 (1980)); see also United States
Commission on Civil Rights, The Voting Rights Act: Ten Years After
206–207 (1975).
13 Slating has been described as “a process in which some influential
non-governmental organization selects and endorses a group or ‘slate’ of
candidates, rendering the election little more than a stamp of approval
for the candidates selected.” Westwego Citizens for Better Govt. v. West-
wego, 946 F. 2d 1109, 1116, n. 5 (CA5 1991). Exclusion from such a sys-
tem can make it difficult for minority groups to elect their preferred can-
didates. See, e.g., White v. Regester, 412 U. S. 755, 766–767, and n. 11
(1973) (describing one example).
Cite as: 594 U. S. ____ (2021) 21
Opinion of the Court
those regulating employment and housing. For example,
we think it inappropriate to read §2 to impose a strict “ne-
cessity requirement” that would force States to demon-
strate that their legitimate interests can be accomplished
only by means of the voting regulations in question. Steph-
anopoulos, Disparate Impact, Unified Law, 128 Yale L. J.
1566, 1617–1619 (2019) (advocating such a requirement).
Demanding such a tight fit would have the effect of invali-
dating a great many neutral voting regulations with long
pedigrees that are reasonable means of pursuing legitimate
interests. It would also transfer much of the authority to
regulate election procedures from the States to the federal
courts. For those reasons, the Title VII and Fair Housing
Act models are unhelpful in §2 cases.
D
The interpretation set out above follows directly from
what §2 commands: consideration of “the totality of circum-
stances” that have a bearing on whether a State makes vot-
ing “equally open” to all and gives everyone an equal “op-
portunity” to vote. The dissent, by contrast, would rewrite
the text of §2 and make it turn almost entirely on just one
circumstance—disparate impact.
That is a radical project, and the dissent strains mightily
to obscure its objective. To that end, it spends 20 pages dis-
cussing matters that have little bearing on the questions
before us. The dissent provides historical background that
all Americans should remember, see post, at 3–7 (opinion of
KAGAN, J.), but that background does not tell us how to de-
cide these cases. The dissent quarrels with the decision in
Shelby County v. Holder, 570 U. S. 529 (2013), see post, at
7–9, which concerned §§4 and 5 of the VRA, not §2. It dis-
cusses all sorts of voting rules that are not at issue here.
See post, at 9–12. And it dwells on points of law that nobody
disputes: that §2 applies to a broad range of voting rules,
practices, and procedures; that an “abridgement” of the
22 BRNOVICH v. DEMOCRATIC NATIONAL COMMITTEE
Opinion of the Court
right to vote under §2 does not require outright denial of
the right; that §2 does not demand proof of discriminatory
purpose; and that a “facially neutral” law or practice may
violate that provision. See post, at 12–20.
Only after this extended effort at misdirection is the dis-
sent’s aim finally unveiled: to undo as much as possible the
compromise that was reached between the House and Sen-
ate when §2 was amended in 1982. Recall that the version
originally passed by the House did not contain §2(b) and
was thought to prohibit any voting practice that had “dis-
criminatory effects,” loosely defined. See supra, at 5–6.
That is the freewheeling disparate-impact regime the dis-
sent wants to impose on the States. But the version enacted
into law includes §2(b), and that subsection directs us to
consider “the totality of circumstances,” not, as the dissent
would have it, the totality of just one circumstance. 14 There
is nothing to the dissent’s charge that we are departing
from the statutory text by identifying some of those consid-
erations.
We have listed five relevant circumstances and have ex-
plained why they all stem from the statutory text and have
a bearing on the determination that §2 requires. The dis-
sent does not mention a single additional consideration, and
——————
14 The dissent erroneously claims that the Senate-House compromise
was only about proportional representation and not about “the equal-
access right” at issue in the present cases. Post, at 19, n. 6. The text of
the bill initially passed by the House had no equal-access right. See H. R.
Rep. No. 97–227, p. 48 (1981); H. R. 3112, 97th Cong., 1st Sess., §2, p. 8
(introduced Oct. 7, 1981). Section 2(b) was the Senate’s creation, and
that provision is what directed courts to look beyond mere “results” to
whether a State’s “political processes” are “equally open,” considering
“the totality of circumstances.” See Mississippi Republican Executive
Committee v. Brooks, 469 U. S. 1002, 1010 (1984) (Rehnquist, J., dissent-
ing) (“The compromise bill retained the ‘results’ language but also incor-
porated language directly from this Court’s opinion in White v.
Regester”). And while the proviso on proportional representation may
not apply as directly in this suit, it is still a signal that §2 imposes some-
thing other than a pure disparate-impact regime.
Cite as: 594 U. S. ____ (2021) 23
Opinion of the Court
it does its best to push aside all but one of the circumstances
we discuss. It entirely rejects three of them: the size of the
burden imposed by a challenged rule, see post, at 22–23, the
landscape of voting rules both in 1982 and in the present,
post, at 24–25, 15 and the availability of other ways to vote,
post, at 23–24. Unable to bring itself to completely reject
consideration of the state interests that a challenged rule
serves, the dissent tries to diminish the significance of this
circumstance as much as possible. See post, at 26–29. Ac-
cording to the dissent, an interest served by a voting rule,
no matter how compelling, cannot support the rule unless a
State can prove to the satisfaction of the courts that this
interest could not be served by any other means. Post, at
17–18, 26–29. Such a requirement has no footing in the text
of §2 or our precedent construing it. 16
——————
15 The dissent objects to consideration of the 1982 landscape because
even rules that were prevalent at that time are invalid under §2 if they,
well, violate §2. Post, at 24. We of course agree with that tautology. But
the question is what it means to provide equal opportunity, and given
that every voting rule imposes some amount of burden, rules that were
and are commonplace are useful comparators when considering the to-
tality of circumstances. Unlike the dissent, Congress did not set its
sights on every facially neutral time, place, or manner voting rule in ex-
istence. See, e.g., S. Rep. No. 97–417, at 10, n. 22 (describing what the
Senate Judiciary Committee viewed as “blatant direct impediments to
voting”).
16 For support, the dissent offers a baseless reading of one of our vote-
dilution decisions. In Houston Lawyers’ Assn., 501 U. S. 419, we consid-
ered a §2 challenge to an electoral scheme wherein all trial judges in a
judicial district were elected on a district-wide basis. Id., at 422. The
State asserted that it had a strong interest in district-wide judicial elec-
tions on the theory that they make every individual judge at least partly
accountable to minority voters in the jurisdiction. Id., at 424, 426. That
unique interest, the State contended, should have “automatically” ex-
empted the electoral scheme from §2 scrutiny altogether. Id., at 426. We
disagreed, holding that the State’s interest was instead “a legitimate fac-
tor to be considered by courts among the ‘totality of circumstances’ in
determining whether a §2 violation has occurred.” Ibid. To illustrate
why an “automati[c]” exemption from §2’s coverage was inappropriate,
24 BRNOVICH v. DEMOCRATIC NATIONAL COMMITTEE
Opinion of the Court
That requirement also would have the potential to inval-
idate just about any voting rule a State adopts. Take the
example of a State’s interest in preventing voting fraud.
Even if a State could point to a history of serious voting
fraud within its own borders, the dissent would apparently
strike down a rule designed to prevent fraud unless the
State could demonstrate an inability to combat voting fraud
in any other way, such as by hiring more investigators and
prosecutors, prioritizing voting fraud investigations, and
heightening criminal penalties. Nothing about equal open-
ness and equal opportunity dictates such a high bar for
States to pursue their legitimate interests.
With all other circumstances swept away, all that re-
mains in the dissent’s approach is the size of any disparity
in a rule’s impact on members of protected groups. As we
——————
the Court hypothesized a case involving an “uncouth” district shaped like
the one in Gomillion v. Lightfoot, 364 U. S. 339, 340 (1960), for which an
inquiry under §2 “would at least arguably be required.” 501 U. S., at 427.
The Court then wrote the language upon which the dissent seizes: “Plac-
ing elections for single-member offices entirely beyond the scope of cov-
erage of §2 would preclude such an inquiry, even if the State’s interest
in maintaining the ‘uncouth’ electoral system was trivial or illusory and
even if any resulting impairment of a minority group’s voting strength
could be remedied without significantly impairing the State’s interest in
electing judges on a district-wide basis.” Id., at 427–428.
That reductio ad absurdum, used to demonstrate only why an auto-
matic exemption from §2 scrutiny was inappropriate, did not announce
an “inquiry” at all—much less the least-burdensome-means requirement
the dissent would have us smuggle in from materially different statutory
regimes. Post, at 18, n. 5, 26. Perhaps that is why no one—not the par-
ties, not the United States, not the 36 other amici, not the courts below,
and certainly not this Court in subsequent decisions—has advanced the
dissent’s surprising reading of a single phrase in Houston Lawyers Assn.
The dissent apparently thinks that in 1991 we silently abrogated the
principle that the nature of a State’s interest is but one of many factors
to consider, see Thornburg v. Gingles, 478 U. S. 30, 44–45 (1986), and
that our subsequent cases have erred by failing simply to ask whether a
less burdensome measure would suffice. Who knew?
Cite as: 594 U. S. ____ (2021) 25
Opinion of the Court
have noted, differences in employment, wealth, and educa-
tion may make it virtually impossible for a State to devise
rules that do not have some disparate impact. But under
the dissent’s interpretation of §2, any “statistically signifi-
cant” disparity—wherever that is in the statute—may be
enough to take down even facially neutral voting rules with
long pedigrees that reasonably pursue important state in-
terests. Post, at 15, n. 4, 19–20, 32–33. 17
Section 2 of the Voting Rights Act provides vital protec-
tion against discriminatory voting rules, and no one sug-
gests that discrimination in voting has been extirpated or
that the threat has been eliminated. But §2 does not de-
prive the States of their authority to establish non-discrim-
inatory voting rules, and that is precisely what the dissent’s
radical interpretation would mean in practice. The dissent
is correct that the Voting Rights Act exemplifies our coun-
try’s commitment to democracy, but there is nothing demo-
cratic about the dissent’s attempt to bring about a whole-
sale transfer of the authority to set voting rules from the
States to the federal courts.
——————
17 We do not think §2 is so procrustean. Statistical significance may
provide “evidence that something besides random error is at work,” Fed-
eral Judicial Center, Reference Manual on Scientific Evidence 252 (3d
ed. 2011), but it does not necessarily determine causes, and as the dissent
acknowledges, post, at 15, n. 4, it is not the be-all and end-all of dispar-
ate-impact analysis. See Federal Judicial Center, Reference Manual, at
252 (“[S]ignificant differences . . . are not evidence that [what is at work]
is legally or practically important. Statisticians distinguish between sta-
tistical and practical significance to make the point. When practical sig-
nificance is lacking—when the size of a disparity is negligible—there is
no reason to worry about statistical significance”); ibid., n. 102 (citing
authorities). Moreover, whatever might be “standard” in other contexts,
post, at 15, n. 4, we have explained that VRA §2’s focus on equal
“open[ness]” and equal “opportunity” does not impose a standard dispar-
ate-impact regime.
26 BRNOVICH v. DEMOCRATIC NATIONAL COMMITTEE
Opinion of the Court
IV
A
In light of the principles set out above, neither Arizona’s
out-of-precinct rule nor its ballot-collection law violates §2
of the VRA. Arizona’s out-of-precinct rule enforces the re-
quirement that voters who choose to vote in person on elec-
tion day must do so in their assigned precincts. Having to
identify one’s own polling place and then travel there to
vote does not exceed the “usual burdens of voting.” Craw-
ford, 553 U. S., at 198 (opinion of Stevens, J.) (noting the
same about making a trip to the department of motor vehi-
cles). On the contrary, these tasks are quintessential ex-
amples of the usual burdens of voting.
Not only are these unremarkable burdens, but the Dis-
trict Court’s uncontested findings show that the State made
extensive efforts to reduce their impact on the number of
valid votes ultimately cast. The State makes accurate pre-
cinct information available to all voters. When precincts or
polling places are altered between elections, each registered
voter is sent a notice showing the voter’s new polling place.
329 F. Supp. 3d, at 859. Arizona law also mandates that
election officials send a sample ballot to each household
that includes a registered voter who has not opted to be
placed on the permanent early voter list, Ariz. Rev. Stat.
Ann. §16–510(C) (2015), and this mailing also identifies the
voter’s proper polling location, 329 F. Supp. 3d, at 859. In
addition, the Arizona secretary of state’s office sends voters
pamphlets that include information (in both English and
Spanish) about how to identify their assigned precinct.
Ibid.
Polling place information is also made available by other
means. The secretary of state’s office operates websites
that provide voter-specific polling place information and al-
low voters to make inquiries to the secretary’s staff. Ibid.
Arizona’s two most populous counties, Maricopa and Pima,
Cite as: 594 U. S. ____ (2021) 27
Opinion of the Court
provide online polling place locators with information avail-
able in English and Spanish. Ibid. Other groups offer sim-
ilar online tools. Ibid. Voters may also identify their as-
signed polling place by calling the office of their respective
county recorder. Ibid. And on election day, poll workers in
at least some counties are trained to redirect voters who ar-
rive at the wrong precinct. Ibid; see Tr. 1559, 1586; Tr. Exh.
370 (Pima County Elections Inspectors Handbook).
The burdens of identifying and traveling to one’s assigned
precinct are also modest when considering Arizona’s “polit-
ical processes” as a whole. The Court of Appeals noted that
Arizona leads other States in the rate of votes rejected on
the ground that they were cast in the wrong precinct, and
the court attributed this to frequent changes in polling lo-
cations, confusing placement of polling places, and high lev-
els of residential mobility. 948 F. 3d, at 1000–1004. But
even if it is marginally harder for Arizona voters to find
their assigned polling places, the State offers other easy
ways to vote. Any voter can request an early ballot without
excuse. Any voter can ask to be placed on the permanent
early voter list so that an early ballot will be mailed auto-
matically. Voters may drop off their early ballots at any
polling place, even one to which they are not assigned. And
for nearly a month before election day, any voter can vote
in person at an early voting location in his or her county.
The availability of those options likely explains why out-of-
precinct votes on election day make up such a small and
apparently diminishing portion of overall ballots cast—
0.47% of all ballots in the 2012 general election and just
0.15% in 2016. 329 F. Supp. 3d, at 872.
Next, the racial disparity in burdens allegedly caused by
the out-of-precinct policy is small in absolute terms. The
District Court accepted the plaintiffs’ evidence that, of the
Arizona counties that reported out-of-precinct ballots in the
2016 general election, a little over 1% of Hispanic voters,
1% of African-American voters, and 1% of Native American
28 BRNOVICH v. DEMOCRATIC NATIONAL COMMITTEE
Opinion of the Court
voters who voted on election day cast an out-of-precinct bal-
lot. Ibid. For non-minority voters, the rate was around
0.5%. Ibid. (citing Tr. Exh. 97, at 3, 20–21). A policy that
appears to work for 98% or more of voters to whom it ap-
plies—minority and non-minority alike—is unlikely to ren-
der a system unequally open.
The Court of Appeals attempted to paint a different pic-
ture, but its use of statistics was highly misleading for rea-
sons that were well explained by Judge Easterbrook in a §2
case involving voter IDs. As he put it, a distorted picture
can be created by dividing one percentage by another.
Frank, 768 F. 3d, at 752, n. 3. He gave this example: “If
99.9% of whites had photo IDs, and 99.7% of blacks did,” it
could be said that “ ‘blacks are three times as likely as
whites to lack qualifying ID’ (0.3 ÷ 0.1 = 3), but such a state-
ment would mask the fact that the populations were effec-
tively identical.” Ibid.
That is exactly what the en banc Ninth Circuit did here.
The District Court found that among the counties that re-
ported out-of-precinct ballots in the 2016 general election,
roughly 99% of Hispanic voters, 99% of African-American
voters, and 99% of Native American voters who voted on
election day cast their ballots in the right precinct, while
roughly 99.5% of non-minority voters did so. 329 F. Supp.
3d, at 872. Based on these statistics, the en banc Ninth
Circuit concluded that “minority voters in Arizona cast [out-
of-precinct] ballots at twice the rate of white voters.” 948
F. 3d, at 1014; see id., at 1004–1005. This is precisely the
sort of statistical manipulation that Judge Easterbrook
rightly criticized, namely, 1.0 ÷ 0.5 = 2. Properly under-
stood, the statistics show only a small disparity that pro-
vides little support for concluding that Arizona’s political
processes are not equally open.
The Court of Appeals’ decision also failed to give appro-
priate weight to the state interests that the out-of-precinct
rule serves. Not counting out-of-precinct votes induces
Cite as: 594 U. S. ____ (2021) 29
Opinion of the Court
compliance with the requirement that Arizonans who
choose to vote in-person on election day do so at their as-
signed polling places. And as the District Court recognized,
precinct-based voting furthers important state interests. It
helps to distribute voters more evenly among polling places
and thus reduces wait times. It can put polling places closer
to voter residences than would a more centralized voting-
center model. In addition, precinct-based voting helps to
ensure that each voter receives a ballot that lists only the
candidates and public questions on which he or she can
vote, and this orderly administration tends to decrease
voter confusion and increase voter confidence in elections.
See 329 F. Supp. 3d, at 878. It is also significant that
precinct-based voting has a long pedigree in the United
States. See 948 F. 3d, at 1062–1063 (Bybee, J., dissenting)
(citing J. Harris, Election Administration in the United
States 206–207 (1934)). And the policy of not counting
out-of-precinct ballots is widespread. See 948 F. 3d, at
1072–1088 (collecting and categorizing state laws).
The Court of Appeals discounted the State’s interests
because, in its view, there was no evidence that a less re-
strictive alternative would threaten the integrity of precinct-
based voting. The court thought the State had no good rea-
son for not counting an out-of-precinct voter’s choices with
respect to the candidates and issues also on the ballot in the
voter’s proper precinct. See id., at 1030–1031. We disagree
with this reasoning.
Section 2 does not require a State to show that its chosen
policy is absolutely necessary or that a less restrictive
means would not adequately serve the State’s objectives.
And the Court of Appeals’ preferred alternative would have
obvious disadvantages. Partially counting out-of-precinct
ballots would complicate the process of tabulation and could
lead to disputes and delay. In addition, as one of the en
banc dissenters noted, it would tend to encourage voters
who are primarily interested in only national or state-wide
30 BRNOVICH v. DEMOCRATIC NATIONAL COMMITTEE
Opinion of the Court
elections to vote in whichever place is most convenient even
if they know that it is not their assigned polling place. See
id., at 1065–1066 (opinion of Bybee, J.).
In light of the modest burdens allegedly imposed by Ari-
zona’s out-of-precinct policy, the small size of its disparate
impact, and the State’s justifications, we conclude the rule
does not violate §2 of the VRA. 18
B
HB 2023 likewise passes muster under the results test of
§2. Arizonans who receive early ballots can submit them by
going to a mailbox, a post office, an early ballot drop box, or
an authorized election official’s office within the 27-day
early voting period. They can also drop off their ballots at
any polling place or voting center on election day, and in
order to do so, they can skip the line of voters waiting to
vote in person. 329 F. Supp. 3d, at 839 (citing ECF Doc.
361, ¶57). Making any of these trips—much like traveling
to an assigned polling place—falls squarely within the
heartland of the “usual burdens of voting.” Crawford, 553
U. S., at 198 (opinion of Stevens, J.). And voters can also
ask a statutorily authorized proxy—a family member, a
household member, or a caregiver—to mail a ballot or drop
——————
18 In arguing that Arizona’s out-of-precinct policy violates §2, the dis-
sent focuses on the State’s decisions about the siting of polling places and
the frequency with which voting precincts are changed. See post, at 33
(“Much of the story has to do with the siting and shifting of polling
places”). But the plaintiffs did not challenge those practices. See 329
F. Supp. 3d, at 873 (“Plaintiffs . . . do not challenge the manner in which
Arizona counties allocate and assign polling places or Arizona’s require-
ment that voters re-register to vote when they move”). The dissent is
thus left with the unenviable task of explaining how something like a
0.5% disparity in discarded ballots between minority and non-minority
groups suffices to render Arizona’s political processes not equally open to
participation. See supra, at 27–28. A voting rule with that effect would
not be—to use the dissent’s florid example—one that a “minority vote
suppressor in Arizona” would want in his or her “bag of tricks.” Post, at
33.
Cite as: 594 U. S. ____ (2021) 31
Opinion of the Court
it off at any time within 27 days of an election.
Arizona also makes special provision for certain groups of
voters who are unable to use the early voting system. Every
county must establish a special election board to serve vot-
ers who are “confined as the result of a continuing illness or
physical disability,” are unable to go to the polls on election
day, and do not wish to cast an early vote by mail. Ariz.
Rev. Stat. Ann. §16–549(C) (Cum. Supp. 2020). At the re-
quest of a voter in this group, the board will deliver a ballot
in person and return it on the voter’s behalf. §§16–549(C),
(E). Arizona law also requires employers to give employees
time off to vote when they are otherwise scheduled to work
certain shifts on election day. §16–402 (2015).
The plaintiffs were unable to provide statistical evidence
showing that HB 2023 had a disparate impact on minority
voters. Instead, they called witnesses who testified that
third-party ballot collection tends to be used most heavily
in disadvantaged communities and that minorities in Ari-
zona—especially Native Americans—are disproportion-
ately disadvantaged. 329 F. Supp. 3d, at 868, 870. But
from that evidence the District Court could conclude only
that prior to HB 2023’s enactment, “minorities generically
were more likely than non-minorities to return their early
ballots with the assistance of third parties.” Id., at 870.
How much more, the court could not say from the record.
Ibid. Neither can we. And without more concrete evidence,
we cannot conclude that HB 2023 results in less oppor-
tunity to participate in the political process. 19
——————
19 Not one to let the absence of a key finding get in the way, the dissent
concludes from its own review of the evidence that HB 2023 “prevents
many Native Americans from making effective use of one of the principal
means of voting in Arizona,” and that “[w]hat is an inconsequential bur-
den for others is for these citizens a severe hardship.” Post, at 38. What
is missing from those statements is any evidence about the actual size of
the disparity. (For that matter, by the time the dissent gets around to
assessing HB 2023, it appears to have lost its zeal for statistical signifi-
cance, which is nowhere to be seen. See post, at 35–40, and n. 13.) The
32 BRNOVICH v. DEMOCRATIC NATIONAL COMMITTEE
Opinion of the Court
Even if the plaintiffs had shown a disparate burden
caused by HB 2023, the State’s justifications would suffice
to avoid §2 liability. “A State indisputably has a compelling
interest in preserving the integrity of its election process.”
Purcell v. Gonzalez, 549 U. S. 1, 4 (2006) (per curiam) (in-
ternal quotation marks omitted). Limiting the classes of
persons who may handle early ballots to those less likely to
have ulterior motives deters potential fraud and improves
voter confidence. That was the view of the bipartisan Com-
mission on Federal Election Reform chaired by former Pres-
ident Jimmy Carter and former Secretary of State James
Baker. The Carter-Baker Commission noted that “[a]bsen-
tee balloting is vulnerable to abuse in several ways: . . . Cit-
izens who vote at home, at nursing homes, at the workplace,
or in church are more susceptible to pressure, overt and
subtle, or to intimidation.” Report of the Comm’n on Fed.
Election Reform, Building Confidence in U. S. Elections 46
(Sept. 2005).
The Commission warned that “[v]ote buying schemes are
——————
reader will search in vain to discover where the District Court “found” to
what extent HB 2023 would make it “ ‘significantly more difficult’ ” for
Native Americans to vote. Post, at 39, n. 15 (citing 329 F. Supp. 3d, at
868, 870). Rather, “[b]ased on” the very same evidence the dissent cites,
the District Court could find only that minorities were “generically” more
likely than non-minorities to make use of third-party ballot-collection.
Id., at 870. The District Court’s explanation as to why speaks for itself:
“Although there are significant socioeconomic disparities between mi-
norities and non-minorities in Arizona, these disparities are an imprecise
proxy for disparities in ballot collection use. Plaintiffs do not argue that
all or even most socioeconomically disadvantaged voters use ballot col-
lection services, nor does the evidence support such a finding. Rather,
the anecdotal estimates from individual ballot collectors indicate that a
relatively small number of voters have used ballot collection services in
past elections.” Ibid.; see also id., at 881 (“[B]allot collection was used as
a [get-out-the-vote] strategy in mostly low-efficacy minority communi-
ties, though the Court cannot say how often voters used ballot collection,
nor can it measure the degree or significance of any disparities in its us-
age” (emphasis added)).
Cite as: 594 U. S. ____ (2021) 33
Opinion of the Court
far more difficult to detect when citizens vote by mail,” and
it recommended that “States therefore 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.” Ibid. The Com-
mission ultimately recommended that States limit the clas-
ses of persons who may handle absentee ballots to “the
voter, an acknowledged family member, the U. S. Postal
Service or other legitimate shipper, or election officials.”
Id., at 47. HB 2023 is even more permissive in that it also
authorizes ballot-handling by a voter’s household member
and caregiver. See Ariz. Rev. Stat. Ann. §16–1005(I)(2).
Restrictions on ballot collection are also common in other
States. See 948 F. 3d, at 1068–1069, 1088–1143 (Bybee, J.,
dissenting) (collecting state provisions).
The Court of Appeals thought that the State’s justifica-
tions for HB 2023 were tenuous in large part because there
was no evidence that fraud in connection with early ballots
had occurred in Arizona. See id., at 1045–1046. But pre-
vention of fraud is not the only legitimate interest served
by restrictions on ballot collection. As the Carter-Baker
Commission recognized, third-party ballot collection can
lead to pressure and intimidation. And it should go without
saying that a State may take action to prevent election
fraud without waiting for it to occur and be detected within
its own borders. Section 2’s command that the political pro-
cesses remain equally open surely does not demand that “a
State’s political system sustain some level of damage before
the legislature [can] take corrective action.” Munro v. So-
cialist Workers Party, 479 U. S. 189, 195 (1986). Fraud is a
real risk that accompanies mail-in voting even if Arizona
had the good fortune to avoid it. Election fraud has had
serious consequences in other States. For example, the
North Carolina Board of Elections invalidated the results
of a 2018 race for a seat in the House of Representatives for
34 BRNOVICH v. DEMOCRATIC NATIONAL COMMITTEE
Opinion of the Court
evidence of fraudulent mail-in ballots. 20 The Arizona Leg-
islature was not obligated to wait for something similar to
happen closer to home. 21
As with the out-of-precinct policy, the modest evidence of
racially disparate burdens caused by HB 2023, in light of
the State’s justifications, leads us to the conclusion that the
law does not violate §2 of the VRA.
V
We also granted certiorari to review whether the Court of
Appeals erred in concluding that HB 2023 was enacted with
a discriminatory purpose. The District Court found that it
——————
20 See Blinder, Election Fraud in North Carolina Leads to New Charges
for Republican Operative, N. Y. Times, July 30, 2019, https://www.ny-
times.com/2019/07/30/us/mccrae-dowless-indictment.html; Graham,
North Carolina Had No Choice, The Atlantic, Feb. 22, 2019,
https://www.theatlantic.com/politics/archive/2019/02/north-carolina-9th-
fraud-board-orders-new-election/583369/.
21 The dissent’s primary argument regarding HB 2023 concerns its ef-
fect on Native Americans who live on remote reservations. The dissent
notes that many of these voters do not receive mail delivery at home, that
the nearest post office may be some distance from their homes, and that
they may not have automobiles. Post, at 36. We do not dismiss these
problems, but for a number of reasons, they do not provide a basis for
invalidating HB 2023. The burdens that fall on remote communities are
mitigated by the long period of time prior to an election during which a
vote may be cast either in person or by mail and by the legality of having
a ballot picked up and mailed by family or household members. And in
this suit, no individual voter testified that HB 2023 would make it sig-
nificantly more difficult for him or her to vote. 329 F. Supp. 3d, at 871.
Moreover, the Postal Service is required by law to “provide a maximum
degree of effective and regular postal services to rural areas, communi-
ties, and small towns where post offices are not self-sustaining.” 39
U. S. C. §101(b); see also §403(b)(3). Small post offices may not be closed
“solely for operating at a deficit,” §101(b), and any decision to close or
consolidate a post office may be appealed to the Postal Regulatory Com-
mission, see §404(d)(5). An alleged failure by the Postal Service to com-
ply with its statutory obligations in a particular location does not in itself
provide a ground for overturning a voting rule that applies throughout
an entire State.
Cite as: 594 U. S. ____ (2021) 35
Opinion of the Court
was not, 329 F. Supp. 3d, at 882, and appellate review of
that conclusion is for clear error, Pullman-Standard v.
Swint, 456 U. S. 273, 287–288 (1982). If the district court’s
view of the evidence is plausible in light of the entire record,
an appellate court may not reverse even if it is convinced
that it would have weighed the evidence differently in the
first instance. Anderson v. Bessemer City, 470 U. S. 564,
573–574 (1985). “Where there are two permissible views of
the evidence, the factfinder’s choice between them cannot
be clearly erroneous.” Id., at 574.
The District Court’s finding on the question of discrimi-
natory intent had ample support in the record. Applying
the familiar approach outlined in Arlington Heights v. Met-
ropolitan Housing Development Corp., 429 U. S. 252, 266–
268 (1977), the District Court considered the historical
background and the sequence of events leading to HB
2023’s enactment; it looked for any departures from the nor-
mal legislative process; it considered relevant legislative
history; and it weighed the law’s impact on different racial
groups. See 329 F. Supp. 3d, at 879.
The court noted, among other things, that HB 2023’s en-
actment followed increased use of ballot collection as a
Democratic get-out-the-vote strategy and came “on the
heels of several prior efforts to restrict ballot collection,
some of which were spearheaded by former Arizona State
Senator Don Shooter.” Id., at 879. Shooter’s own election
in 2010 had been close and racially polarized. Aiming in
part to frustrate the Democratic Party’s get-out-the-vote
strategy, Shooter made what the court termed “unfounded
and often far-fetched allegations of ballot collection fraud.”
Id., at 880. But what came after the airing of Shooter’s
claims and a “racially-tinged” video created by a private
party was a serious legislative debate on the wisdom of
36 BRNOVICH v. DEMOCRATIC NATIONAL COMMITTEE
Opinion of the Court
early mail-in voting. Ibid. 22
That debate, the District Court concluded, was sincere
and led to the passage of HB 2023 in 2016. Proponents of
the bill repeatedly argued that mail-in ballots are more sus-
ceptible to fraud than in-person voting. Ibid. The bill found
support from a few minority officials and organizations, one
of which expressed concern that ballot collectors were tak-
ing advantage of elderly Latino voters. Ibid. And while
some opponents of the bill accused Republican legislators of
harboring racially discriminatory motives, that view was
not uniform. See ibid. One Democratic state senator pith-
ily described the “ ‘problem’ ” HB 2023 aimed to “ ‘solv[e]’ ”
as the fact that “ ‘one party is better at collecting ballots
than the other one.’ ” Id., at 882 (quoting Tr. Exh. 25, at
35).
We are more than satisfied that the District Court’s in-
terpretation of the evidence is permissible. The spark for
the debate over mail-in voting may well have been provided
by one Senator’s enflamed partisanship, but partisan mo-
tives are not the same as racial motives. See Cooper v. Har-
ris, 581 U. S. ___, ___–___ (2017) (slip op., at 19–20). The
District Court noted that the voting preferences of members
of a racial group may make the former look like the latter,
but it carefully distinguished between the two. See 329
F. Supp. 3d, at 879, 882. And while the District Court rec-
ognized that the “racially-tinged” video helped spur the de-
bate about ballot collection, it found no evidence that the
legislature as a whole was imbued with racial motives. Id.,
at 879–880.
——————
22 The District Court also noted prior attempts on the part of the Ari-
zona Legislature to regulate or limit third-party ballot collection in 2011
and 2013. It reasonably concluded that any procedural irregularities in
those attempts had less probative value for inferring the purpose behind
HB 2023 because the bills were passed “during different legislative ses-
sions by a substantially different composition of legislators.” 329
F. Supp. 3d, at 881.
Cite as: 594 U. S. ____ (2021) 37
Opinion of the Court
The Court of Appeals did not dispute the District Court’s
assessment of the sincerity of HB 2023’s proponents. It
even agreed that some members of the legislature 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.” 948 F. 3d, at 1040. The
Court of Appeals nevertheless concluded that the District
Court committed clear error by failing to apply a “ ‘cat’s
paw’ ” theory sometimes used in employment discrimina-
tion cases. Id., at 1040–1041. A “cat’s paw” is a “dupe” who
is “used by another to accomplish his purposes.” Webster’s
New International Dictionary 425 (2d ed. 1934). A plaintiff
in a “cat’s paw” case typically seeks to hold the plaintiff ’s
employer liable for “the animus of a supervisor who was not
charged with making the ultimate [adverse] employment
decision.” Staub v. Proctor Hospital, 562 U. S. 411, 415
(2011).
The “cat’s paw” theory has no application to legislative
bodies. The theory rests on the agency relationship that
exists between an employer and a supervisor, but the legis-
lators who vote to adopt a bill are not the agents of the bill’s
sponsor or proponents. Under our form of government, leg-
islators have a duty to exercise their judgment and to rep-
resent their constituents. It is insulting to suggest that
they are mere dupes or tools.
* * *
Arizona’s out-of-precinct policy and HB 2023 do not vio-
late §2 of the VRA, and HB 2023 was not enacted with a
racially discriminatory purpose. The judgment of the Court
of Appeals is reversed, and the cases are remanded for fur-
ther proceedings consistent with this opinion.
It is so ordered.
Cite as: 594 U. S. ____ (2021) 1
GORSUCH, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 19–1257 and 19–1258
_________________
MARK BRNOVICH, ATTORNEY GENERAL OF
ARIZONA, ET AL., PETITIONERS
19–1257 v.
DEMOCRATIC NATIONAL COMMITTEE, ET AL.
ARIZONA REPUBLICAN PARTY, ET AL.,
PETITIONERS
19–1258 v.
DEMOCRATIC NATIONAL COMMITTEE, ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[July 1, 2021]
JUSTICE GORSUCH, with whom JUSTICE THOMAS joins,
concurring.
I join the Court’s opinion in full, but flag one thing it does
not decide. Our cases have assumed—without deciding—
that the Voting Rights Act of 1965 furnishes an implied
cause of action under §2. See Mobile v. Bolden, 446 U. S.
55, 60, and n. 8 (1980) (plurality opinion). Lower courts
have treated this as an open question. E.g., Washington v.
Finlay, 664 F. 2d 913, 926 (CA4 1981). Because no party
argues that the plaintiffs lack a cause of action here, and
because the existence (or not) of a cause of action does not
go to a court’s subject-matter jurisdiction, see Reyes Mata
v. Lynch, 576 U. S. 143, 150 (2015), this Court need not and
does not address that issue today.
Cite as: 594 U. S. ____ (2021) 1
KAGAN, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 19–1257 and 19–1258
_________________
MARK BRNOVICH, ATTORNEY GENERAL OF
ARIZONA, ET AL., PETITIONERS
19–1257 v.
DEMOCRATIC NATIONAL COMMITTEE, ET AL.
ARIZONA REPUBLICAN PARTY, ET AL.,
PETITIONERS
19–1258 v.
DEMOCRATIC NATIONAL COMMITTEE, ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[July 1, 2021]
JUSTICE KAGAN, with whom JUSTICE BREYER and
JUSTICE SOTOMAYOR join, dissenting.
If a single statute represents the best of America, it is the
Voting Rights Act. It marries two great ideals: democracy
and racial equality. And it dedicates our country to carry-
ing them out. Section 2, the provision at issue here, guar-
antees that members of every racial group will have equal
voting opportunities. Citizens of every race will have the
same shot to participate in the political process and to elect
representatives of their choice. They will all own our de-
mocracy together—no one more and no one less than any
other.
If a single statute reminds us of the worst of America, it
is the Voting Rights Act. Because it was—and remains—so
necessary. Because a century after the Civil War was
fought, at the time of the Act’s passage, the promise of po-
2 BRNOVICH v. DEMOCRATIC NATIONAL COMMITTEE
KAGAN, J., dissenting
litical equality remained a distant dream for African Amer-
ican citizens. Because States and localities continually
“contriv[ed] new rules,” mostly neutral on their face but dis-
criminatory in operation, to keep minority voters from the
polls. South Carolina v. Katzenbach, 383 U. S. 301, 335
(1966). Because “Congress had reason to suppose” that
States would “try similar maneuvers in the future”—
“pour[ing] old poison into new bottles” to suppress minority
votes. Ibid.; Reno v. Bossier Parish School Bd., 528 U. S.
320, 366 (2000) (Souter, J., concurring in part and dissent-
ing in part). Because Congress has been proved right.
The Voting Rights Act is ambitious, in both goal and
scope. When President Lyndon Johnson sent the bill to
Congress, ten days after John Lewis led marchers across
the Edmund Pettus Bridge, he explained that it was “care-
fully drafted to meet its objective—the end of discrimina-
tion in voting in America.” H. R. Doc. No. 120, 89th Cong.,
1st Sess., 1–2 (1965). He was right about how the Act’s
drafting reflected its aim. “The end of discrimination in vot-
ing” is a far-reaching goal. And the Voting Rights Act’s text
is just as far-reaching. A later amendment, adding the pro-
vision at issue here, became necessary when this Court con-
strued the statute too narrowly. And in the last decade, this
Court assailed the Act again, undoing its vital Section 5.
See Shelby County v. Holder, 570 U. S. 529 (2013). But Sec-
tion 2 of the Act remains, as written, as expansive as ever—
demanding that every citizen of this country possess a right
at once grand and obvious: the right to an equal opportunity
to vote.
Today, the Court undermines Section 2 and the right it
provides. The majority fears that the statute Congress
wrote is too “radical”—that it will invalidate too many state
voting laws. See ante, at 21, 25. So the majority writes its
own set of rules, limiting Section 2 from multiple directions.
See ante, at 16–19. Wherever it can, the majority gives a
cramped reading to broad language. And then it uses that
Cite as: 594 U. S. ____ (2021) 3
KAGAN, J., dissenting
reading to uphold two election laws from Arizona that dis-
criminate against minority voters. I could say—and will in
the following pages—that this is not how the Court is sup-
posed to interpret and apply statutes. But that ordinary
critique woefully undersells the problem. What is tragic
here is that the Court has (yet again) rewritten—in order
to weaken—a statute that stands as a monument to Amer-
ica’s greatness, and protects against its basest impulses.
What is tragic is that the Court has damaged a statute de-
signed to bring about “the end of discrimination in voting.”
I respectfully dissent.
I
The Voting Rights Act of 1965 is an extraordinary law.
Rarely has a statute required so much sacrifice to ensure
its passage. Never has a statute done more to advance the
Nation’s highest ideals. And few laws are more vital in the
current moment. Yet in the last decade, this Court has
treated no statute worse. To take the measure of today’s
harm, a look to the Act’s past must come first. The idea is
not to recount, as the majority hurriedly does, some bygone
era of voting discrimination. See ante, at 2–3. It is instead
to describe the electoral practices that the Act targets—and
to show the high stakes of the present controversy.
A
Democratic ideals in America got off to a glorious start;
democratic practice not so much. The Declaration of Inde-
pendence made an awe-inspiring promise: to institute a
government “deriving [its] just powers from the consent of
the governed.” But for most of the Nation’s first century,
that pledge ran to white men only. The earliest state elec-
tion laws excluded from the franchise African Americans,
Native Americans, women, and those without property. See
A. Keyssar, The Right To Vote: The Contested History of
Democracy in the United States 8–21, 54–60 (2000). In
4 BRNOVICH v. DEMOCRATIC NATIONAL COMMITTEE
KAGAN, J., dissenting
1855, on the precipice of the Civil War, only five States per-
mitted African Americans to vote. Id., at 55. And at the
federal level, our Court’s most deplorable holding made
sure that no black people could enter the voting booth. See
Dred Scott v. Sandford, 19 How. 393 (1857).
But the “American ideal of political equality . . . could not
forever tolerate the limitation of the right to vote” to whites
only. Mobile v. Bolden, 446 U. S. 55, 103–104 (1980) (Mar-
shall, J., dissenting). And a civil war, dedicated to ensuring
“government of the people, by the people, for the people,”
brought constitutional change. In 1870, after a hard-fought
battle over ratification, the Fifteenth Amendment carried
the Nation closer to its founding aspirations. “The 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.” Those words
promised to enfranchise millions of black citizens who only
a decade earlier had been slaves. Frederick Douglass held
that the Amendment “means that we are placed upon an
equal footing with all other men”—that with the vote, “lib-
erty is to be the right of all.” 4 The Frederick Douglass Pa-
pers 270–271 (J. Blassingame & J. McKivigan eds. 1991).
President Grant had seen much blood spilled in the Civil
War; now he spoke of the fruits of that sacrifice. In a self-
described “unusual” message to Congress, he heralded the
Fifteenth Amendment as “a measure of grander importance
than any other one act of the kind from the foundation of
our free Government”—as “the most important event that
has occurred since the nation came into life.” Ulysses S.
Grant, Message to the Senate and House of Representatives
(Mar. 30, 1870), in 7 Compilation of the Messages and Pa-
pers of the Presidents 1789–1897, pp. 55–56 (J. Richardson
ed. 1898).
Momentous as the Fifteenth Amendment was, celebra-
tion of its achievements soon proved premature. The
Amendment’s guarantees “quickly became dead letters in
Cite as: 594 U. S. ____ (2021) 5
KAGAN, J., dissenting
much of the country.” Foner, The Strange Career of the Re-
construction Amendments, 108 Yale L. J. 2003, 2007
(1999). African Americans daring to go to the polls often
“met with coordinated intimidation and violence.” North-
west Austin Municipal Util. Dist. No. One v. Holder, 557
U. S. 193, 218–219 (2009) (THOMAS, J., concurring in judg-
ment in part and dissenting in part). And almost immedi-
ately, legislators discovered that bloodless actions could
also suffice to limit the electorate to white citizens. Many
States, especially in the South, suppressed the black vote
through a dizzying array of methods: literacy tests, poll
taxes, registration requirements, and property qualifica-
tions. See Katzenbach, 383 U. S., at 310–312. Most of those
laws, though facially neutral, gave enough discretion to
election officials to prevent significant effects on poor or un-
educated whites. The idea, as one Virginia representative
put it, was “to disfranchise every negro that [he] could dis-
franchise,” and “as few white people as possible.” Keyssar
113. Decade after decade after decade, election rules
blocked African Americans—and in some States, Hispanics
and Native Americans too—from making use of the ballot.
See Oregon v. Mitchell, 400 U. S. 112, 132 (1970) (opinion
of Black, J.) (discussing treatment of non-black groups). By
1965, only 27% of black Georgians, 19% of black Alabami-
ans, and 7%—yes, 7%—of black Mississippians were regis-
tered to vote. See C. Bullock, R. Gaddie, & J. Wert, The
Rise and Fall of the Voting Rights Act 23 (2016).
The civil rights movement, and the events of a single
Bloody Sunday, created pressure for change. Selma was the
heart of an Alabama county whose 15,000 black citizens in-
cluded, in 1961, only 156 on the voting rolls. See D. Garrow,
Protest at Selma 31 (1978). In the first days of 1965, the
city became the epicenter of demonstrations meant to force
Southern election officials to register African American vot-
ers. As weeks went by without results, organizers an-
nounced a march from Selma to Montgomery. On March 7,
6 BRNOVICH v. DEMOCRATIC NATIONAL COMMITTEE
KAGAN, J., dissenting
some 600 protesters, led by future Congressman John
Lewis, sought to cross the Edmund Pettus Bridge. State
troopers in riot gear responded brutally: “Turning their
nightsticks horizontally, they rushed into the crowd, knock-
ing people over like bowling pins.” G. May, Bending Toward
Justice 87 (2013). Then came men on horseback, “swinging
their clubs and ropes like cowboys driving cattle to market.”
Ibid. The protestors were beaten, knocked unconscious,
and bloodied. Lewis’s skull was fractured. “I thought I was
going to die on this bridge,” he later recalled. Rojas, Selma
Helped Define John Lewis’s Life, N. Y. Times, July 28,
2020.
A galvanized country responded. Ten days after the
Selma march, President Johnson wrote to Congress propos-
ing legislation to “help rid the Nation of racial discrimina-
tion in every aspect of the electoral process and thereby in-
sure the right of all to vote.” H. R. Doc. No. 120, at 1. (To
his attorney general, Johnson was still more emphatic: “I
want you to write the goddamnedest toughest voting rights
act that you can devise.” H. Raines, My Soul Is Rested 337
(1983).) And in August 1965, after the bill’s supporters
overcame a Senate filibuster, Johnson signed the Voting
Rights Act into law. Echoing Grant’s description of the Fif-
teenth Amendment, Johnson called the statute “one of the
most monumental laws in the entire history of American
freedom.” Public Papers of the Presidents, Lyndon B. John-
son, Vol. 2, Aug. 6, 1965, p. 841 (1966) (Johnson Papers).
“After a century’s failure to fulfill the promise” of the Fif-
teenth Amendment, “passage of the VRA finally led to sig-
nal improvement.” Shelby County, 570 U. S., at 562 (Gins-
burg, J., dissenting). In the five years after the statute’s
passage, almost as many African Americans registered to
vote in six Southern States as in the entire century before
1965. See Davidson, The Voting Rights Act: A Brief His-
tory, in Controversies in Minority Voting 21 (B. Grofman &
Cite as: 594 U. S. ____ (2021) 7
KAGAN, J., dissenting
C. Davidson eds. 1992). The crudest attempts to block vot-
ing access, like literacy tests and poll taxes, disappeared.
Legislatures often replaced those vote denial schemes with
new measures—mostly to do with districting—designed to
dilute the impact of minority votes. But the Voting Rights
Act, operating for decades at full strength, stopped many of
those measures too. See, e.g., Chisom v. Roemer, 501 U. S.
380 (1991); Allen v. State Bd. of Elections, 393 U. S. 544(1969). As a famed dissent assessed the situation about a
half-century after the statute’s enactment: The Voting
Rights Act had become “one of the most consequential, effi-
cacious, and amply justified exercises of federal legislative
power in our Nation’s history.” Shelby County, 570 U. S.,
at 562 (Ginsburg, J., dissenting). 1
B
Yet efforts to suppress the minority vote continue. No
one would know this from reading the majority opinion. It
hails the “good news” that legislative efforts had mostly
shifted by the 1980s from vote denial to vote dilution. Ante,
at 7. And then it moves on to other matters, as though the
Voting Rights Act no longer has a problem to address—as
though once literacy tests and poll taxes disappeared, so too
did efforts to curb minority voting. But as this Court recog-
nized about a decade ago, “racial discrimination and ra-
cially polarized voting are not ancient history.” Bartlett v.
Strickland, 556 U. S. 1, 25 (2009). Indeed, the problem of
voting discrimination has become worse since that time—
in part because of what this Court did in Shelby County.
——————
1 The majority brands this historical account part of an “extended effort
at misdirection.” Ante, at 22. I am tempted merely to reply: Enough said
about the majority’s outlook on the statute before us. But I will add what
should be obvious—that no one can understand the Voting Rights Act
without recognizing what led Congress to enact it, and what Congress
wanted it to change.
8 BRNOVICH v. DEMOCRATIC NATIONAL COMMITTEE
KAGAN, J., dissenting
Weaken the Voting Rights Act, and predictable conse-
quences follow: yet a further generation of voter suppres-
sion laws.
Much of the Voting Rights Act’s success lay in its capacity
to meet ever-new forms of discrimination. Experience
showed that “[w]henever one form of voting discrimination
was identified and prohibited, others sprang up in its
place.” Shelby County, 570 U. S., at 560 (Ginsburg, J., dis-
senting). Combating those efforts was like “battling the Hy-
dra”—or to use a less cultured reference, like playing a
game of whack-a-mole. Ibid. So Congress, in Section 5 of
the Act, gave the Department of Justice authority to review
all new rules devised by jurisdictions with a history of voter
suppression—and to block any that would have discrimina-
tory effects. See 52 U. S. C. §§10304(a)–(b). In that way,
the Act would prevent the use of new, more nuanced meth-
ods to restrict the voting opportunities of non-white citi-
zens.
And for decades, Section 5 operated as intended. Be-
tween 1965 and 2006, the Department stopped almost 1200
voting laws in covered areas from taking effect. See Shelby
County, 570 U. S., at 571 (Ginsburg, J., dissenting). Some
of those laws used districting to dilute minority voting
strength—making sure that the votes of minority citizens
would carry less weight than the votes of whites in electing
candidates. Other laws, even if facially neutral, dispropor-
tionately curbed the ability of non-white citizens to cast a
ballot at all. So, for example, a jurisdiction might require
forms of identification that those voters were less likely to
have; or it might limit voting places and times convenient
for those voters; or it might purge its voter rolls through
mechanisms especially likely to ensnare them. See id., at
574–575. In reviewing mountains of such evidence in 2006,
Congress saw a continuing need for Section 5. Although
“discrimination today is more subtle than the visible meth-
ods used in 1965,” Congress found, it still produces “the
Cite as: 594 U. S. ____ (2021) 9
KAGAN, J., dissenting
same [effects], namely a diminishing of the minority com-
munity’s ability to fully participate in the electoral process.”
H. R. Rep. No. 109–478, p. 6 (2006). Congress thus reau-
thorized the preclearance scheme for 25 years.
But this Court took a different view. Finding that “[o]ur
country has changed,” the Court saw only limited instances
of voting discrimination—and so no further need for pre-
clearance. Shelby County, 570 U. S., at 547–549, 557. Dis-
placing Congress’s contrary judgment, the Court struck
down the coverage formula essential to the statute’s opera-
tion. The legal analysis offered was perplexing: The Court
based its decision on a “principle of equal [state] sover-
eignty” that a prior decision of ours had rejected—and that
has not made an appearance since. Id., at 544 (majority
opinion); see id., at 587–588 (Ginsburg, J., dissenting).
Worse yet was the Court’s blithe confidence in assessing
what was needed and what was not. “[T]hings have
changed dramatically,” the Court reiterated, id., at 547:
The statute that was once a necessity had become an impo-
sition. But how did the majority know there was nothing
more for Section 5 to do—that the (undoubted) changes in
the country went so far as to make the provision unneces-
sary? It didn’t, as Justice Ginsburg explained in dissent.
The majority’s faith that discrimination was almost gone
derived, at least in part, from the success of Section 5—from
its record of blocking discriminatory voting schemes. Dis-
carding Section 5 because those schemes had diminished
was “like throwing away your umbrella in a rainstorm be-
cause you are not getting wet.” Id., at 590.
The rashness of the act soon became evident. Once Sec-
tion 5’s strictures came off, States and localities put in place
new restrictive voting laws, with foreseeably adverse effects
on minority voters. On the very day Shelby County issued,
Texas announced that it would implement a strict voter-
identification requirement that had failed to clear Section
5. See Elmendorf & Spencer, Administering Section 2 of
10 BRNOVICH v. DEMOCRATIC NATIONAL COMMITTEE
KAGAN, J., dissenting
the Voting Rights Act After Shelby County, 115 Colum. L.
Rev. 2143, 2145–2146 (2015). Other States—Alabama, Vir-
ginia, Mississippi—fell like dominoes, adopting measures
similarly vulnerable to preclearance review. See ibid. The
North Carolina Legislature, starting work the day after
Shelby County, enacted a sweeping election bill eliminating
same-day registration, forbidding out-of-precinct voting,
and reducing early voting, including souls-to-the-polls Sun-
days. (That law went too far even without Section 5: A court
struck it down because the State’s legislators had a racially
discriminatory purpose. North Carolina State Conference
of NAACP v. McCrory, 831 F. 3d 204 (CA4 2016).) States
and localities redistricted—drawing new boundary lines or
replacing neighborhood-based seats with at-large seats—in
ways guaranteed to reduce minority representation. See
Elmendorf, 115 Colum. L. Rev., at 2146. And jurisdictions
closed polling places in mostly minority areas, enhancing
an already pronounced problem. See Brief for Leadership
Conference on Civil and Human Rights et al. as Amici Cu-
riae 14–15 (listing closure schemes); Pettigrew, The Racial
Gap in Wait Times, 132 Pol. Sci. Q. 527, 527 (2017) (finding
that lines in minority precincts are twice as long as in white
ones, and that a minority voter is six times more likely to
wait more than an hour). 2
And that was just the first wave of post-Shelby County
——————
2 Although causation is hard to establish definitively, those post-
Shelby County changes appear to have reduced minority participation in
the next election cycle. The most comprehensive study available found
that in areas freed from Section 5 review, white turnout remained the
same, but “minority participation dropped by 2.1 percentage points”—a
stark reversal in direction from prior elections. Ang, Do 40-Year-Old
Facts Still Matter?, 11 Am. Econ. J.: Applied Economics, No. 3, pp. 1, 35
(2019). The results, said the scholar who crunched the numbers, “provide
early evidence that the Shelby ruling may jeopardize decades of voting
rights progress.” Id., at 36. The election laws passed in Shelby County’s
wake “may have negated many of the gains made under preclearance.”
Ibid.
Cite as: 594 U. S. ____ (2021) 11
KAGAN, J., dissenting
laws. In recent months, State after State has taken up or
enacted legislation erecting new barriers to voting. See
Brennan Center for Justice, Voting Laws Roundup: May
2021 (online source archived at www.supremecourt.gov)
(compiling legislation). Those laws shorten the time polls
are open, both on Election Day and before. They impose
new prerequisites to voting by mail, and shorten the win-
dows to apply for and return mail ballots. They make it
harder to register to vote, and easier to purge voters from
the rolls. Two laws even ban handing out food or water to
voters standing in line. Some of those restrictions may be
lawful under the Voting Rights Act. But chances are that
some have the kind of impact the Act was designed to pre-
vent—that they make the political process less open to mi-
nority voters than to others.
So the Court decides this Voting Rights Act case at a per-
ilous moment for the Nation’s commitment to equal citizen-
ship. It decides this case in an era of voting-rights retrench-
ment—when too many States and localities are restricting
access to voting in ways that will predictably deprive mem-
bers of minority groups of equal access to the ballot box. If
“any racial discrimination in voting is too much,” as the
Shelby County Court recited, then the Act still has much to
do. 570 U. S., at 557. Or more precisely, the fraction of the
Act remaining—the Act as diminished by the Court’s hand.
Congress never meant for Section 2 to bear all of the weight
of the Act’s commitments. That provision looks to courts,
not to the Executive Branch, to restrain discriminatory vot-
ing practices. And litigation is an after-the-fact remedy, in-
capable of providing relief until an election—usually, more
than one election—has come and gone. See id., at 572
(Ginsburg, J., dissenting). So Section 2 was supposed to be
a back-up, for all its sweep and power. But after Shelby
County, the vitality of Section 2—a “permanent, nationwide
ban on racial discrimination in voting”—matters more than
ever. Id., at 557 (majority opinion). For after Shelby
12 BRNOVICH v. DEMOCRATIC NATIONAL COMMITTEE
KAGAN, J., dissenting
County, Section 2 is what voters have left.
II
Section 2, as drafted, is well-equipped to meet the chal-
lenge. Congress meant to eliminate all “discriminatory
election systems or practices which operate, designedly or
otherwise, to minimize or cancel out the voting strength
and political effectiveness of minority groups.” S. Rep. No.
97–417, p. 28 (1982) (S. Rep.). And that broad intent is
manifest in the provision’s broad text. As always, this
Court’s task is to read that language as Congress wrote it—
to give the section all the scope and potency Congress
drafted it to have. So I start by showing how Section 2’s
text requires courts to eradicate voting practices that make
it harder for members of some races than of others to cast a
vote, unless such a practice is necessary to support a strong
state interest. I then show how far from that text the ma-
jority strays. Its analysis permits exactly the kind of vote
suppression that Section 2, by its terms, rules out of
bounds.
A
Section 2, as relevant here, has two interlocking parts.
Subsection (a) states the law’s basic prohibition:
“No voting qualification or prerequisite to voting or
standard, practice, or procedure shall be imposed or ap-
plied 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.” 52 U. S. C. §10301(a).
Subsection (b) then tells courts how to apply that bar—or
otherwise said, when to find that an infringement of the
voting right has occurred:
“A violation of subsection (a) is established if, based on
Cite as: 594 U. S. ____ (2021) 13
KAGAN, J., dissenting
the totality of circumstances, it is shown that the polit-
ical processes leading to nomination or election in the
State or political subdivision are not equally open to
participation by members of [a given race] in that
[those] members have less opportunity than other
members of the electorate to participate in the political
process and to elect representatives of their choice.”
§10301(b). 3
Those provisions have a great many words, and I address
them further below. But their essential import is plain:
Courts are to strike down voting rules that contribute to a
racial disparity in the opportunity to vote, taking all the
relevant circumstances into account.
The first thing to note about Section 2 is how far its pro-
hibitory language sweeps. The provision bars any “voting
qualification,” any “prerequisite to voting,” or any “stand-
ard, practice, or procedure” that “results in a denial or
abridgement of the right” to “vote on account of race.” The
overlapping list of covered state actions makes clear that
Section 2 extends to every kind of voting or election rule.
Congress carved out nothing pertaining to “voter qualifica-
tions or the manner in which elections are conducted.”
Holder v. Hall, 512 U. S. 874, 922 (1994) (THOMAS, J., con-
curring in judgment). So, for example, the provision “covers
all manner of registration requirements, the practices sur-
rounding registration,” the “locations of polling places, the
times polls are open, the use of paper ballots as opposed to
voting machines, and other similar aspects of the voting
process that might be manipulated to deny any citizen the
right to cast a ballot and have it properly counted.” Ibid.All those rules and more come within the statute—so long
as they result in a race-based “denial or abridgement” of the
——————
3 A final sentence, not at issue here, specifies that the voting right pro-
vided does not entitle minority citizens to proportional representation in
electoral offices. See infra, at 19, n. 6.
14 BRNOVICH v. DEMOCRATIC NATIONAL COMMITTEE
KAGAN, J., dissenting
voting right. And the “denial or abridgement” phrase
speaks broadly too. “[A]bridgment necessarily means some-
thing more subtle and less drastic than the complete denial
of the right to cast a ballot, denial being separately forbid-
den.” Bossier, 528 U. S., at 359 (Souter, J., concurring in
part and dissenting in part). It means to “curtail,” rather
than take away, the voting right. American Heritage Dic-
tionary 4 (1969).
The “results in” language, connecting the covered voting
rules to the prohibited voting abridgement, tells courts that
they are to focus on the law’s effects. Rather than hinge
liability on state officials’ motives, Congress made it ride on
their actions’ consequences. That decision was as consid-
ered as considered comes. This Court, as the majority
notes, had construed the original Section 2 to apply to fa-
cially neutral voting practices “only if [they were] motivated
by a discriminatory purpose.” Bolden, 446 U. S., at 62; see
ante, at 5. Congress enacted the current Section 2 to re-
verse that outcome—to make clear that “results” alone
could lead to liability. An intent test, the Senate Report
explained, “asks the wrong question.” S. Rep., at 36. If mi-
nority citizens “are denied a fair opportunity to participate,”
then “the system should be changed, regardless of ” what
“motives were in an official’s mind.” Ibid. Congress also
saw an intent test as imposing “an inordinately difficult
burden for plaintiffs.” Ibid. Even if state actors had pur-
posefully discriminated, they would likely be “ab[le] to offer
a non-racial rationalization,” supported by “a false trail” of
“official resolutions” and “other legislative history eschew-
ing any racial motive.” Id., at 37. So only a results-focused
statute could prevent States from finding ways to abridge
minority citizens’ voting rights.
But when to conclude—looking to effects, not purposes—
that a denial or abridgment has occurred? Again, answer-
ing that question is subsection (b)’s function. See supra, at
12–13. It teaches that a violation is established when,
Cite as: 594 U. S. ____ (2021) 15
KAGAN, J., dissenting
“based on the totality of circumstances,” a State’s electoral
system is “not equally open” to members of a racial group.
And then the subsection tells us what that means. A sys-
tem is not equally open if members of one race have “less
opportunity” than others to cast votes, to participate in pol-
itics, or to elect representatives. The key demand, then, is
for equal political opportunity across races.
That equal “opportunity” is absent when a law or practice
makes it harder for members of one racial group, than for
others, to cast ballots. When Congress amended Section 2,
the word “opportunity” meant what it also does today: “a
favorable or advantageous combination of circumstances”
for some action. See American Heritage Dictionary, at 922.
In using that word, Congress made clear that the Voting
Rights Act does not demand equal outcomes. If members of
different races have the same opportunity to vote, but go to
the ballot box at different rates, then so be it—that is their
preference, and Section 2 has nothing to say. But if a law
produces different voting opportunities across races—if it
establishes rules and conditions of political participation
that are less favorable (or advantageous) for one racial
group than for others—then Section 2 kicks in. It applies,
in short, whenever the law makes it harder for citizens of
one race than of others to cast a vote. 4
And that is so even if (as is usually true) the law does not
——————
4 I agree with the majority that “very small differences” among racial
groups do not matter. Ante, at 18. Some racial disparities are too small
to support a finding of unequal access because they are not statistically
significant—that is, because they might have arisen from chance alone.
See Matrixx Initiatives, Inc. v. Siracusano, 563 U. S. 27, 39 (2011). The
statistical significance test is standard in all legal contexts addressing
disparate impact. See Ricci v. DeStefano, 557 U. S. 557, 587 (2009). In
addition, there may be some threshold of what is sometimes called “prac-
tical significance”—a level of inequality that, even if statistically mean-
ingful, is just too trivial for the legal system to care about. See Federal
Judicial Center, Reference Manual on Scientific Evidence 252 (3d ed.
2011) (discussing differences that are not “practically important”).
16 BRNOVICH v. DEMOCRATIC NATIONAL COMMITTEE
KAGAN, J., dissenting
single out any race, but instead is facially neutral. Suppose,
as Justice Scalia once did, that a county has a law limiting
“voter registration [to] only three hours one day a week.”
Chisom, 501 U. S., at 408 (dissenting opinion). And sup-
pose that policy makes it “more difficult for blacks to regis-
ter than whites”—say, because the jobs African Americans
disproportionately hold make it harder to take time off in
that window. Ibid. Those citizens, Justice Scalia con-
cluded, would then “have less opportunity ‘to participate in
the political process’ than whites, and §2 would therefore be
violated.” Ibid. (emphasis deleted). In enacting Section 2,
Congress documented many similar (if less extreme) fa-
cially neutral rules—“registration requirements,” “voting
and registration hours,” voter “purging” policies, and so
forth—that create disparities in voting opportunities. S.
Rep., at 10, n. 22; H. R. Rep. No. 97–227, pp. 11–17 (1981)
(H. R. Rep.). Those laws, Congress thought, would violate
Section 2, though they were not facially discriminatory, be-
cause they gave voters of different races unequal access to
the political process.
Congress also made plain, in calling for a totality-of-
circumstances inquiry, that equal voting opportunity is a
function of both law and background conditions—in other
words, that a voting rule’s validity depends on how the rule
operates in conjunction with facts on the ground. “[T]otal-
ity review,” this Court has explained, stems from Con-
gress’s recognition of “the demonstrated ingenuity of state
and local governments in hobbling minority voting power.”
Johnson v. De Grandy, 512 U. S. 997, 1018 (1994). Some-
times, of course, state actions overtly target a single race:
For example, Congress was acutely aware, in amending
Section 2, of the elimination of polling places in African
American neighborhoods. See S. Rep., at 10, 11, and n. 22;
H. R. Rep., at 17, 35. But sometimes government officials
enact facially neutral laws that leverage—and become dis-
criminatory by dint of—pre-existing social and economic
Cite as: 594 U. S. ____ (2021) 17
KAGAN, J., dissenting
conditions. The classic historical cases are literacy tests
and poll taxes. A more modern example is the one Justice
Scalia gave, of limited registration hours. Congress knew
how those laws worked: It saw that “inferior education, poor
employment opportunities, and low incomes”—all condi-
tions often correlated with race—could turn even an ordinary-
seeming election rule into an effective barrier to minority
voting in certain circumstances. Thornburg v. Gingles, 478
U. S. 30, 69 (1986) (plurality opinion). So Congress de-
manded, as this Court has recognized, “an intensely local
appraisal” of a rule’s impact—“a searching practical evalu-
ation of the ‘past and present reality.’ ” Id., at 79; De
Grandy, 512 U. S., at 1018 (quoting S. Rep., at 30). “The
essence of a §2 claim,” we have said, is that an election law
“interacts with social and historical conditions” in a partic-
ular place to cause race-based inequality in voting oppor-
tunity. Gingles, 478 U. S., at 47 (majority opinion). That
interaction is what the totality inquiry is mostly designed
to discover.
At the same time, the totality inquiry enables courts to
take into account strong state interests supporting an elec-
tion rule. An all-things-considered inquiry, we have ex-
plained, is by its nature flexible. See De Grandy, 512 U. S.,
at 1018. On the one hand, it allows no “safe harbor[s]” for
election rules resulting in discrimination. Ibid. On the
other hand, it precludes automatic condemnation of those
rules. Among the “balance of considerations” a court is to
weigh is a State’s need for the challenged policy. Houston
Lawyers’ Assn. v. Attorney General of Tex., 501 U. S. 419,
427 (1991). But in making that assessment of state inter-
ests, a court must keep in mind—just as Congress did—the
ease of “offer[ing] a non-racial rationalization” for even bla-
tantly discriminatory laws. S. Rep., at 37; see supra, at 14.
State interests do not get accepted on faith. And even a
genuine and strong interest will not suffice if a plaintiff can
prove that it can be accomplished in a less discriminatory
18 BRNOVICH v. DEMOCRATIC NATIONAL COMMITTEE
KAGAN, J., dissenting
way. As we have put the point before: When a less racially
biased law would not “significantly impair[ ] the State’s in-
terest,” the discriminatory election rule must fall. Houston
Lawyers’ Assn., 501 U. S., at 428. 5
So the text of Section 2, as applied in our precedents, tells
us the following, every part of which speaks to the ambition
of Congress’s action. Section 2 applies to any voting rule, of
any kind. The provision prohibits not just the denial but
also the abridgment of a citizen’s voting rights on account
of race. The inquiry is focused on effects: It asks not about
why state officials enacted a rule, but about whether that
rule results in racial discrimination. The discrimination
that is of concern is inequality of voting opportunity. That
kind of discrimination can arise from facially neutral (not
just targeted) rules. There is a Section 2 problem when an
——————
5 The majority pretends that Houston Lawyers’ Assn. did not ask about
the availability of a less discriminatory means of serving the State’s end,
see ante, at 23, n. 16—but the inquiry is right there on page 428 (exam-
ining “if [the] impairment of a minority group’s voting strength could be
remedied without significantly impairing the State’s interest in electing
judges on a district-wide basis”). In posing that question, the Court did
what Congress wanted, because absent a necessity test, States could too
easily get away with offering “non-racial” but pretextual “rationaliza-
tion[s].” S. Rep., at 37; see supra, at 14. And the Court did what it al-
ways does in applying laws barring discriminatory effects—ask whether
a challenged policy is necessary to achieve the asserted goal. See infra,
at 26.
Contrary to the majority’s view, that kind of inquiry would not result
in “invalidat[ing] just about any voting rule a State adopts.” Ante, at 24.
A plaintiff bears the burden of showing that a less discriminatory law
would be “at least as effective in achieving the [State’s] legitimate pur-
pose.” Reno v. American Civil Liberties Union, 521 U. S. 844, 874 (1997).
And “cost may be an important factor” in that analysis, so the plaintiff
could not (as the majority proposes) say merely that the State can combat
fraud by “hiring more investigators and prosecutors.” Burwell v. Hobby
Lobby Stores, Inc., 573 U. S. 682, 730 (2014); ante, at 24. Given those
features of the alternative-means inquiry, a State that tries both to serve
its electoral interests and to give its minority citizens equal electoral ac-
cess will rarely have anything to fear from a Section 2 suit.
Cite as: 594 U. S. ____ (2021) 19
KAGAN, J., dissenting
election rule, operating against the backdrop of historical,
social, and economic conditions, makes it harder for minor-
ity citizens than for others to cast ballots. And strong state
interests may save an otherwise discriminatory rule, but
only if that rule is needed to achieve them—that is, only if
a less discriminatory rule will not attain the State’s goal.
That is a lot of law to apply in a Section 2 case. Real
law—the kind created by Congress. (A strange thing, to
hear about it all only in a dissent.) 6 None of this law threat-
ens to “take down,” as the majority charges, the mass of
state and local election rules. Ante, at 25. Here is the flip-
side of what I have said above, now from the plaintiff ’s per-
spective: Section 2 demands proof of a statistically signifi-
cant racial disparity in electoral opportunities (not
——————
6 Contra the majority, see ante, at 5–6, 22, and n. 14, the House-Senate
compromise reached in amending Section 2 has nothing to do with the
law relevant here. The majority is hazy about the content of this com-
promise for a reason: It was about proportional representation. As then-
Justice Rehnquist explained, members of the Senate expressed concern
that the “results in” language of the House-passed bill would provide not
“merely for equal ‘access’ to the political process” but also “for propor-
tional representation” of minority voters. Mississippi Republican Exec-
utive Committee v. Brooks, 469 U. S. 1002, 1010 (1984) (dissenting opin-
ion). Senator Dole’s solution was to add text making clear that minority
voters had a right to equal voting opportunities, but no right to elect mi-
nority candidates “in numbers equal to their proportion in the popula-
tion.” 52 U. S. C. §10301(b). The Dole Amendment, as Justice Rehnquist
noted, ensured that under the “results in” language equal “ ‘access’ only
was required.” 469 U. S., at 1010–1011; see 128 Cong. Rec. 14132 (1982)
(Sen. Dole explaining that as amended “the focus of the standard is on
whether there is equal access to the political process, not on whether
members of a particular minority group have achieved proportional elec-
tion results”). Nothing—literally nothing—suggests that the Senate
wanted to water down the equal-access right that everyone agreed the
House’s language covered. So the majority is dead wrong to say that I
want to “undo” the House-Senate compromise. Ante, at 22. It is the ma-
jority that wants to transform that compromise to support a view of Sec-
tion 2 held in neither the House nor the Senate.
20 BRNOVICH v. DEMOCRATIC NATIONAL COMMITTEE
KAGAN, J., dissenting
outcomes) resulting from a law not needed to achieve a gov-
ernment’s legitimate goals. That showing is hardly insub-
stantial; and as a result, Section 2 vote denial suits do not
often succeed (even with lower courts applying the law as
written, not the majority’s new, concocted version). See
Brief for State and Local Election Officials as Amici Curiae
15 (finding only nine winning cases since Shelby County,
each involving “an intensely local appraisal” of a “contro-
versial polic[y] in specific places”). But Section 2 was in-
deed meant to do something important—crucial to the op-
eration of our democracy. The provision tells courts—
however “radical” the majority might find the idea, ante, at
25—to eliminate facially neutral (as well as targeted) elec-
toral rules that unnecessarily create inequalities of access
to the political process. That is the very project of the stat-
ute, as conceived and as written—and now as damaged by
this Court.
B
The majority’s opinion mostly inhabits a law-free zone. It
congratulates itself in advance for giving Section 2’s text
“careful consideration.” Ante, at 14. And then it leaves that
language almost wholly behind. See ante, at 14–21. (Every
once in a while, when its lawmaking threatens to leap off
the page, it thinks to sprinkle in a few random statutory
words.) So too the majority barely mentions this Court’s
precedents construing Section 2’s text. On both those
counts, you can see why. As just described, Section 2’s lan-
guage is broad. See supra, at 12–20. To read it fairly, then,
is to read it broadly. And to read it broadly is to do much
that the majority is determined to avoid. So the majority
ignores the sweep of Section 2’s prohibitory language. It
fails to note Section 2’s application to every conceivable
kind of voting rule. It neglects to address the provision’s
concern with how those rules may “abridge[ ],” not just
Cite as: 594 U. S. ____ (2021) 21
KAGAN, J., dissenting
deny, minority citizens’ voting rights. It declines to con-
sider Congress’s use of an effects test, rather than a purpose
test, to assess the rules’ legality. Nor does the majority
acknowledge the force of Section 2’s implementing provi-
sion. The majority says as little as possible about what it
means for voting to be “equally open,” or for voters to have
an equal “opportunity” to cast a ballot. See ante, at 14–15.
It only grudgingly accepts—and then apparently forgets—
that the provision applies to facially neutral laws with dis-
criminatory consequences. Compare ante, at 22, with ante,
at 25. And it hints that as long as a voting system is suffi-
ciently “open,” it need not be equally so. See ante, at 16, 18.
In sum, the majority skates over the strong words Congress
drafted to accomplish its equally strong purpose: ensuring
that minority citizens can access the electoral system as
easily as whites. 7
The majority instead founds its decision on a list of
mostly made-up factors, at odds with Section 2 itself. To
excuse this unusual free-form exercise, the majority notes
——————
7 In a single sentence, the majority huffs that “nobody disputes” vari-
ous of these “points of law.” Ante, at 21. Excellent! I only wish the ma-
jority would take them to heart, both individually and in combination.
For example, the majority says it agrees that Section 2 reaches beyond
denials of voting to any “abridgement.” But then, as I’ll later discuss, it
insists that Section 2 has an interest only in rules that “block or seriously
hinder voting”—which appears to create a “denial or serious abridge-
ment” standard. Ante, at 16; see infra, at 22–23. Or, for example, the
majority says it accepts that Section 2 may prohibit facially neutral elec-
tion rules. But the majority takes every opportunity of casting doubt on
those applications. Each facially neutral rule it mentions is one that it
“doubt[s]” Congress could have “intended to uproot.” Ante, at 18; see
ante, at 6, 18, 21, 25. And it criticizes this dissent for understanding the
statute (but how could anyone understand it differently?) as focusing on
the racially “disparate impact” of neutral election rules on the oppor-
tunity to vote. Ante, at 21. Most fundamentally, the majority refuses to
acknowledge how all the “points of law” it professes to agree with work
in tandem to signal a statute of significant power and scope.
22 BRNOVICH v. DEMOCRATIC NATIONAL COMMITTEE
KAGAN, J., dissenting
that Section 2 authorizes courts to conduct a “totality of cir-
cumstances” analysis. Ante, at 16. But as described above,
Congress mainly added that language so that Section 2
could protect against “the demonstrated ingenuity of state
and local governments in hobbling minority voting power.”
De Grandy, 512 U. S., at 1018; see supra, at 16–17. The
totality inquiry requires courts to explore how ordinary-
seeming laws can interact with local conditions—economic,
social, historical—to produce race-based voting inequali-
ties. That inquiry hardly gives a court the license to devise
whatever limitations on Section 2’s reach it would have
liked Congress to enact. But that is the license the majority
takes. The “important circumstances” it invents all cut in
one direction—toward limiting liability for race-based vot-
ing inequalities. Ante, at 16. (Indeed, the majority gratui-
tously dismisses several factors that point the opposite way.
See ante, at 19–21.) Think of the majority’s list as a set of
extra-textual restrictions on Section 2—methods of coun-
teracting the law Congress actually drafted to achieve the
purposes Congress thought “important.” The list—not a
test, the majority hastens to assure us, with delusions of
modesty—stacks the deck against minority citizens’ voting
rights. Never mind that Congress drafted a statute to pro-
tect those rights—to prohibit any number of schemes the
majority’s non-test test makes it possible to save.
Start with the majority’s first idea: a “[m]ere inconven-
ience[ ]” exception to Section 2. Ante, at 16. Voting, the ma-
jority says, imposes a set of “usual burdens”: Some time,
some travel, some rule compliance. Ibid. And all of that is
beneath the notice of Section 2—even if those burdens fall
highly unequally on members of different races. See ibid.
But that categorical exclusion, for seemingly small (or
“[un]usual” or “[un]serious”) burdens, is nowhere in the pro-
vision’s text. To the contrary (and as this Court has recog-
nized before), Section 2 allows no “safe harbor[s]” for elec-
tion rules resulting in disparate voting opportunities. De
Cite as: 594 U. S. ____ (2021) 23
KAGAN, J., dissenting
Grandy, 512 U. S., at 1018; see supra, at 17. The section
applies to any discriminatory “voting qualification,” “pre-
requisite to voting,” or “standard, practice, or procedure”—
even the kind creating only (what the majority thinks of as)
an ordinary burden. And the section cares about any race-
based “abridgments” of voting, not just measures that come
near to preventing that activity. Congress, recall, was in-
tent on eradicating the “subtle, as well as the obvious,”
ways of suppressing minority voting. Allen, 393 U. S., at
565; see supra, at 14. One of those more subtle ways is to
impose “inconveniences,” especially a collection of them, dif-
ferentially affecting members of one race. The certain re-
sult—because every inconvenience makes voting both
somewhat more difficult and somewhat less likely—will be
to deter minority votes. In countenancing such an election
system, the majority departs from Congress’s vision, set
down in text, of ensuring equal voting opportunity. It
chooses equality-lite.
And what is a “mere inconvenience” or “usual burden” an-
yway? The drafters of the Voting Rights Act understood
that “social and historical conditions,” including disparities
in education, wealth, and employment, often affect oppor-
tunities to vote. Gingles, 478 U. S., at 47; see supra, at 16–
17. What does not prevent one citizen from casting a vote
might prevent another. How is a judge supposed to draw
an “inconvenience” line in some reasonable place, taking
those differences into account? Consider a law banning the
handing out of water to voters. No more than—or not
even—an inconvenience when lines are short; but what of
when they are, as in some neighborhoods, hours-long? The
point here is that judges lack an objective way to decide
which voting obstacles are “mere” and which are not, for all
voters at all times. And so Section 2 does not ask the ques-
tion.
The majority’s “multiple ways to vote” factor is similarly
flawed. Ante, at 18. True enough, a State with three ways
24 BRNOVICH v. DEMOCRATIC NATIONAL COMMITTEE
KAGAN, J., dissenting
to vote (say, on Election Day; early in person; or by mail)
may be more “open” than a State with only one (on Election
Day). And some other statute might care about that. But
Section 2 does not. What it cares about is that a State’s
“political processes” are “equally open” to voters of all races.
And a State’s electoral process is not equally open if, for ex-
ample, the State “only” makes Election Day voting by mem-
bers of one race peculiarly difficult. The House Report on
Section 2 addresses that issue. It explains that an election
system would violate Section 2 if minority citizens had a
lesser opportunity than white citizens to use absentee bal-
lots. See H. R. Rep., at 31, n. 106. Even if the minority
citizens could just as easily vote in person, the scheme
would “result in unequal access to the political process.”
Id., at 31. That is not some piece of contestable legislative
history. It is the only reading of Section 2 possible, given
the statute’s focus on equality. Maybe the majority does not
mean to contest that proposition; its discussion of this sup-
posed factor is short and cryptic. But if the majority does
intend to excuse so much discrimination, it is wrong. Mak-
ing one method of voting less available to minority citizens
than to whites necessarily means giving the former “less
opportunity than other members of the electorate to partic-
ipate in the political process.” §10301(b).
The majority’s history-and-commonality factor also
pushes the inquiry away from what the statute demands.
The oddest part of the majority’s analysis is the idea that
“what was standard practice when §2 was amended in 1982
is a relevant consideration.” Ante, at 16. The 1982 state of
the world is no part of the Section 2 test. An election rule
prevalent at that time may make voting harder for minority
than for white citizens; Section 2 then covers such a rule, as
it covers any other. And contrary to the majority’s unsup-
ported speculation, Congress “intended” exactly that. Ante,
at 17; see H. R. Rep., at 14 (explaining that the Act aimed
to eradicate the “numerous practices and procedures which
Cite as: 594 U. S. ____ (2021) 25
KAGAN, J., dissenting
act as continued barriers to registration and voting”). 8 Sec-
tion 2 was meant to disrupt the status quo, not to preserve
it—to eradicate then-current discriminatory practices, not
to set them in amber. See Bossier, 528 U. S., at 334 (under
Section 2, “[i]f the status quo” abridges the right to vote “rel-
ative to what the right to vote ought to be, the status quo
itself must be changed”). 9 And as to election rules common
now, the majority oversimplifies. Even if those rules are
unlikely to violate Section 2 everywhere, they may easily do
so somewhere. That is because the demographics and po-
litical geography of States vary widely and Section 2’s ap-
plication depends on place-specific facts. As we have recog-
nized, the statute calls for “an intensely local appraisal,”
not a count-up-the-States exercise. Gingles, 478 U. S., at
79; see supra, at 17. This case, as I’ll later discuss, offers a
perfect illustration of how the difference between those two
approaches can matter. See infra, at 29–40.
——————
8 The House Report listed some of those offensive, even though facially
neutral and then-prevalent, practices: “inconvenient location and hours
of registration, dual registration for county and city elections,” “frequent
and unnecessary purgings and burdensome registration requirements,
and failure to provide . . . assistance to illiterates.” H. R. Rep., at 14. So
too the Senate Report complained of “inconvenient voting and registra-
tion hours” and “reregistration requirements and purging of voters.”
S. Rep., at 10, n. 22; see supra, at 16.
9 Even setting aside Section 2’s status-quo-disrupting lean, this Court
has long rejected—including just last Term—the majority’s claim that
the state of the world at the time of a statute’s enactment provides a
useful “benchmark[ ]” when applying a broadly written law. Ante, at 17.
Such a law will typically come to encompass applications—even “im-
portant” ones—that were not “foreseen at the time of enactment.” Bos-
tock v. Clayton County, 590 U. S. ___, ___ (2020) (slip op., at 26). To pre-
vent that from happening—as the majority does today, on the ground
that Congress simply must have “intended” it—is “to displace the plain
meaning of the law in favor of something lying behind it.” Ibid.; see id.,
at ___ (slip op., at 30) (When a law is “written in starkly broad terms,” it
is “virtually guaranteed that unexpected applications [will] emerge over
time”).
26 BRNOVICH v. DEMOCRATIC NATIONAL COMMITTEE
KAGAN, J., dissenting
That leaves only the majority’s discussion of state inter-
ests, which is again skewed so as to limit Section 2 liability.
No doubt that under our precedent, a state interest in an
election rule “is a legitimate factor to be considered.” Hou-
ston Lawyers’ Assn., 501 U. S., at 426. But the majority
wrongly dismisses the need for the closest possible fit be-
tween means and end—that is, between the terms of the
rule and the State’s asserted interest. Ante, at 21. In the
past, this Court has stated that a discriminatory election
rule must fall, no matter how weighty the interest claimed,
if a less biased law would not “significantly impair[ that]
interest.” Houston Lawyers’ Assn., 501 U. S., at 428; see
supra, at 17–18, and n. 5. And as the majority concedes, we
apply that kind of means-end standard in every other con-
text—employment, housing, banking—where the law ad-
dresses racially discriminatory effects: There, the rule must
be “strict[ly] necess[ary]” to the interest. Ante, at 21; see,
e.g., Albemarle Paper Co. v. Moody, 422 U. S. 405, 425
(1975) (holding that an employment policy cannot stand if
another policy, “without a similarly undesirable racial ef-
fect, would also serve the employer’s legitimate interest”).
The majority argues that “[t]he text of [those] provisions”
differs from Section 2’s. Ante, at 20. But if anything, Sec-
tion 2 gives less weight to competing interests: Unlike in
most discrimination laws, they enter the inquiry only
through the provision’s reference to the “totality of circum-
stances”—through, then, a statutory backdoor. So the ma-
jority falls back on the idea that “[d]emanding such a tight
fit would have the effect of invalidating a great many neu-
tral voting regulations.” Ante, at 21; see ante, at 25. But a
state interest becomes relevant only when a voting rule,
even if neutral on its face, is found not neutral in opera-
tion—only, that is, when the rule provides unequal access
to the political process. Apparently, the majority does not
want to “invalidate [too] many” of those actually discrimi-
natory rules. But Congress had a different goal in enacting
Cite as: 594 U. S. ____ (2021) 27
KAGAN, J., dissenting
Section 2.
The majority’s approach, which would ask only whether
a discriminatory law “reasonably pursue[s] important state
interests,” gives election officials too easy an escape from
Section 2. Ante, at 25 (emphasis added). Of course prevent-
ing voter intimidation is an important state interest. And
of course preventing election fraud is the same. But those
interests are also easy to assert groundlessly or pretextu-
ally in voting discrimination cases. Congress knew that
when it passed Section 2. Election officials can all too often,
the Senate Report noted, “offer a non-racial rationalization”
for even laws that “purposely discriminate[ ].” S. Rep.,
at 37; see supra, at 14, 17–18, and n. 5. A necessity test
filters out those offerings. See, e.g., Albemarle, 422 U. S.,
at 425. It thereby prevents election officials from flouting,
circumventing, or discounting Section 2’s command not to
discriminate.
In that regard, the past offers a lesson to the present.
Throughout American history, election officials have as-
serted anti-fraud interests in using voter suppression laws.
Poll taxes, the classic mechanism to keep black people from
voting, were often justified as “preserv[ing] the purity of the
ballot box [and] facilitat[ing] honest elections.” J. Kousser,
The Shaping of Southern Politics 111, n. 9 (1974). A raft of
election regulations—including “elaborate registration pro-
cedures” and “early poll closings”—similarly excluded white
immigrants (Irish, Italians, and so on) from the polls on the
ground of “prevent[ing] fraud and corruption.” Keyssar
159; see ibid. (noting that in those times “claims of wide-
spread corruption” were backed “almost entirely” by “anec-
dotes [with] little systematic investigation or evidence”).
Take even the majority’s example of a policy advancing an
“important state interest”: “the use of private voting
booths,” in which voters marked their own ballots. Ante, at
19. In the majority’s high-minded account, that innova-
tion—then known as the Australian voting system, for the
28 BRNOVICH v. DEMOCRATIC NATIONAL COMMITTEE
KAGAN, J., dissenting
country that introduced it—served entirely to prevent un-
due influence. But when adopted, it also prevented many
illiterate citizens—especially African Americans—from vot-
ing. And indeed, that was partly the point. As an 1892
Arkansas song went:
The Australian Ballot works like a charm,
It makes them think and scratch,
And when a Negro gets a ballot
He has certainly got his match.
Kousser 54. Across the South, the Australian ballot de-
creased voter participation among whites by anywhere
from 8% to 28% but among African Americans by anywhere
from 15% to 45%. See id., at 56. Does that mean secret
ballot laws violate Section 2 today? Of course not. But
should the majority’s own example give us all a bit of pause?
Yes, it should. It serves as a reminder that States have al-
ways found it natural to wrap discriminatory policies in
election-integrity garb.
Congress enacted Section 2 to prevent those maneuvers
from working. It knew that States and localities had over
time enacted measure after measure imposing discrimina-
tory voting burdens. And it knew that governments were
proficient in justifying those measures on non-racial
grounds. So Congress called a halt. It enacted a statute
that would strike down all unnecessary laws, including fa-
cially neutral ones, that result in members of a racial group
having unequal access to the political process.
But the majority is out of sympathy with that measure.
The majority thinks a statute that would remove those laws
is not, as Justice Ginsburg once called it, “consequential,
efficacious, and amply justified.” Shelby County, 570 U. S.,
at 562 (dissenting opinion). Instead, the majority thinks it
too “radical” to stomach. Ante, at 21, 25. The majority ob-
jects to an excessive “transfer of the authority to set voting
rules from the States to the federal courts.” Ante, at 25. It
Cite as: 594 U. S. ____ (2021) 29
KAGAN, J., dissenting
even sees that transfer as “[un]democratic.” Ibid. But
maybe the majority should pay more attention to the “his-
torical background” that it insists “does not tell us how to
decide this case.” Ante, at 21. That history makes clear the
incongruity, in interpreting this statute, of the majority’s
paean to state authority—and conversely, its denigration of
federal responsibility for ensuring non-discriminatory vot-
ing rules. The Voting Rights Act was meant to replace state
and local election rules that needlessly make voting harder
for members of one race than for others. The text of the Act
perfectly reflects that objective. The “democratic” principle
it upholds is not one of States’ rights as against federal
courts. The democratic principle it upholds is the right of
every American, of every race, to have equal access to the
ballot box. The majority today undermines that principle
as it refuses to apply the terms of the statute. By declaring
some racially discriminatory burdens inconsequential, and
by refusing to subject asserted state interests to serious
means-end scrutiny, the majority enables voting discrimi-
nation.
III
Just look at Arizona. Two of that State’s policies dispro-
portionately affect minority citizens’ opportunity to vote.
The first—the out-of-precinct policy—results in Hispanic
and African American voters’ ballots being thrown out at a
statistically higher rate than those of whites. And what-
ever the majority might say about the ordinariness of such
a rule, Arizona applies it in extra-ordinary fashion: Arizona
is the national outlier in dealing with out-of-precinct votes,
with the next-worst offender nowhere in sight. The second
rule—the ballot-collection ban—makes voting meaning-
fully more difficult for Native American citizens than for
others. And nothing about how that ban is applied is
“usual” either—this time because of how many of the
30 BRNOVICH v. DEMOCRATIC NATIONAL COMMITTEE
KAGAN, J., dissenting
State’s Native American citizens need to travel long dis-
tances to use the mail. Both policies violate Section 2, on a
straightforward application of its text. Considering the “to-
tality of circumstances,” both “result in” members of some
races having “less opportunity than other members of the
electorate to participate in the political process and to elect
a representative of their choice.” §10301(b). The majority
reaches the opposite conclusion because it closes its eyes to
the facts on the ground. 10
A
Arizona’s out-of-precinct policy requires discarding any
Election Day ballot cast elsewhere than in a voter’s as-
signed precinct. Under the policy, officials throw out every
choice in every race—including national or statewide races
(e.g., for President or Governor) that appear identically on
every precinct’s ballot. The question is whether that policy
unequally affects minority citizens’ opportunity to cast a
vote.
Although the majority portrays Arizona’s use of the rule
as “unremarkable,” ante, at 26, the State is in fact a na-
tional aberration when it comes to discarding out-of-
precinct ballots. In 2012, about 35,000 ballots across the
country were thrown out because they were cast at the
wrong precinct. See U. S. Election Assistance Commission,
2012 Election Administration and Voting Survey 53 (2013).
Nearly one in three of those discarded votes—10,979—was
cast in Arizona. Id., at 52. As the Court of Appeals con-
cluded, and the chart below indicates, Arizona threw away
ballots in that year at 11 times the rate of the second-place
discarder (Washington State). Democratic Nat. Committee
v. Hobbs, 948 F. 3d 989, 1001 (CA9 2020); see App. 72.
Somehow the majority labels that difference “marginal[ ],”
——————
10 Because I would affirm the Court of Appeals’ holding that the effects
of these policies violate Section 2, I need not pass on that court’s alterna-
tive holding that the laws were enacted with discriminatory intent.
Cite as: 594 U. S. ____ (2021) 31
KAGAN, J., dissenting
ante, at 27, but it is anything but. More recently, the num-
ber of discarded ballots in the State has gotten smaller: Ar-
izona counties have increasingly abandoned precinct-based
voting (in favor of county-wide “vote centers”), so the out-of-
precinct rule has fewer votes to operate on. And the major-
ity primarily relies on those latest (2016) numbers. But
across the five elections at issue in this litigation (2008–
2016), Arizona threw away far more out-of-precinct votes—
almost 40,000—than did any other State in the country.
Votes in such numbers can matter—enough for Section 2
to apply. The majority obliquely suggests not, comparing
the smallish number of thrown-out votes (minority and non-
minority alike) to the far larger number of votes cast and
32 BRNOVICH v. DEMOCRATIC NATIONAL COMMITTEE
KAGAN, J., dissenting
counted. See ante, at 27. But elections are often fought and
won at the margins—certainly in Arizona. Consider the
number of votes separating the two presidential candidates
in the most recent election: 10,457. That is fewer votes than
Arizona discarded under the out-of-precinct policy in two of
the prior three presidential elections. This Court previ-
ously rejected the idea—the “erroneous assumption”—“that
a small group of voters can never influence the outcome of
an election.” Chisom, 501 U. S., at 397, n. 24. For that rea-
son, we held that even “a small minority” group can claim
Section 2 protection. See ibid. Similarly here, the out-of-
precinct policy—which discards thousands upon thousands
of ballots in every election—affects more than sufficient
votes to implicate Section 2’s guarantee of equal electoral
opportunity.
And the out-of-precinct policy operates unequally: Ballots
cast by minorities are more likely to be discarded. In 2016,
Hispanics, African Americans, and Native Americans were
about twice as likely—or said another way, 100% more
likely—to have their ballots discarded than whites. See
App. 122. And it is possible to break that down a bit. Sixty
percent of the voting in Arizona is from Maricopa County.
There, Hispanics were 110% more likely, African Ameri-
cans 86% more likely, and Native Americans 73% more
likely to have their ballots tossed. See id., at 153. Pima
County, the next largest county, provides another 15% of
the statewide vote. There, Hispanics were 148% more
likely, African Americans 80% more likely, and Native
Americans 74% more likely to lose their votes. See id., at
157. The record does not contain statewide figures for 2012.
But in Maricopa and Pima Counties, the percentages were
about the same as in 2016. See id., at 87, 91. Assessing
those disparities, the plaintiffs’ expert found, and the Dis-
trict Court accepted, that the discriminatory impact of the
out-of-precinct policy was statistically significant—mean-
ing, again, that it was highly unlikely to occur by chance.
Cite as: 594 U. S. ____ (2021) 33
KAGAN, J., dissenting
See Democratic Nat. Committee v. Reagan, 329 F. Supp. 3d
824, 871 (Ariz. 2018); supra, at 15, n. 4.
The majority is wrong to assert that those statistics are
“highly misleading.” Ante, at 28. In the majority’s view,
they can be dismissed because the great mass of voters are
unaffected by the out-of-precinct policy. See ibid. But Sec-
tion 2 is less interested in “absolute terms” (as the majority
calls them) than in relative ones. Ante, at 27; see supra, at
14–15. Arizona’s policy creates a statistically significant
disparity between minority and white voters: Because of
the policy, members of different racial groups do not in fact
have an equal likelihood of having their ballots counted.
Suppose a State decided to throw out 1% of the Hispanic
vote each election. Presumably, the majority would not ap-
prove the action just because 99% of the Hispanic vote is
unaffected. Nor would the majority say that Hispanics in
that system have an equal shot of casting an effective bal-
lot. Here, the policy is not so overt; but under Section 2,
that difference does not matter. Because the policy “results
in” statistically significant inequality, it implicates Section
2. And the kind of inequality that the policy produces is not
the kind only a statistician could see. A rule that throws
out, each and every election, thousands of votes cast by mi-
nority citizens is a rule that can affect election outcomes. If
you were a minority vote suppressor in Arizona or else-
where, you would want that rule in your bag of tricks. You
would not think it remotely irrelevant.
And the case against Arizona’s policy grows only stronger
the deeper one digs. The majority fails to conduct the
“searching practical evaluation” of “past and present real-
ity” that Section 2’s “totality of circumstances” inquiry de-
mands. De Grandy, 512 U. S., at 1018. Had the majority
done so, it would have discovered why Arizona’s out-of-
precinct policy has such a racially disparate impact on vot-
ing opportunity. Much of the story has to do with the siting
and shifting of polling places. Arizona moves polling places
34 BRNOVICH v. DEMOCRATIC NATIONAL COMMITTEE
KAGAN, J., dissenting
at a startling rate. Maricopa County (recall, Arizona’s larg-
est by far) changed 40% or more of polling places before both
the 2008 and the 2012 elections. See 329 F. Supp. 3d, at
858 (noting also that changes “continued to occur in 2016”).
In 2012 (the election with the best data), voters affected by
those changes had an out-of-precinct voting rate that was
40% higher than other voters did. See ibid. And, critically,
Maricopa’s relocations hit minority voters harder than oth-
ers. In 2012, the county moved polling stations in African
American and Hispanic neighborhoods 30% more often
than in white ones. See App. 110–111. The odds of those
changes leading to mistakes increased yet further because
the affected areas are home to citizens with relatively low
education and income levels. See id., at 170–171. And even
putting relocations aside, the siting of polling stations in
minority areas caused significant out-of-precinct voting.
Hispanic and Native American voters had to travel further
than white voters did to their assigned polling places. See
id., at 109. And all minority voters were disproportionately
likely to be assigned to polling places other than the ones
closest to where they lived. See id., at 109, and n. 30, 175–
176. Small wonder, given such siting decisions, that minor-
ity voters found it harder to identify and get to their correct
precincts. But the majority does not address these mat-
ters. 11
——————
11 The majority’s excuse for failing to consider the plaintiffs’ evidence
on Arizona’s siting of polling places is that the plaintiffs did not bring a
separate claim against those practices. See ante, at 30, n. 18. If that
sounds odd, it is. The majority does not contest that the evidence on
polling-place siting is relevant to the plaintiffs’ challenge to the out-of-
precinct policy. Nor could the majority do so. The siting practices are
one of the background conditions against which the out-of-precinct policy
operates—exactly the kind of thing that a totality-of-circumstances anal-
ysis demands a court take into account. To refuse to think about those
practices because the plaintiffs might have brought a freestanding claim
against them is to impose an out-of-thin-air pleading requirement that
Cite as: 594 U. S. ____ (2021) 35
KAGAN, J., dissenting
Facts also undermine the State’s asserted interests,
which the majority hangs its hat on. A government inter-
est, as even the majority recognizes, is “merely one factor to
be considered” in Section 2’s totality analysis. Houston
Lawyers’ Assn., 501 U. S., at 427; see ante, at 19. Here, the
State contends that it needs the out-of-precinct policy to
support a precinct-based voting system. But 20 other
States combine precinct-based systems with mechanisms
for partially counting out-of-precinct ballots (that is, count-
ing the votes for offices like President or Governor). And
the District Court found that it would be “administratively
feasible” for Arizona to join that group. 329 F. Supp. 3d, at
860. Arizona—echoed by the majority—objects that adopt-
ing a partial-counting approach would decrease compliance
with the vote-in-your-precinct rule (by reducing the penalty
for a voter’s going elsewhere). But there is more than a
little paradox in that response. We know from the extraor-
dinary number of ballots Arizona discards that its current
system fails utterly to “induce[ ] compliance.” Ante, at 28–
29; see supra, at 30–31. Presumably, that is because the
system—most notably, its placement and shifting of polling
places—sows an unparalleled level of voter confusion. A
State that makes compliance with an election rule so unu-
sually hard is in no position to claim that its interest in “in-
duc[ing] compliance” outweighs the need to remedy the
race-based discrimination that rule has caused.
B
Arizona’s law mostly banning third-party ballot collection
also results in a significant race-based disparity in voting
opportunities. The problem with that law again lies in facts
nearly unique to Arizona—here, the presence of rural Na-
tive American communities that lack ready access to mail
——————
operates to exclude exactly the evidence that most strongly signals a Sec-
tion 2 violation.
36 BRNOVICH v. DEMOCRATIC NATIONAL COMMITTEE
KAGAN, J., dissenting
service. Given that circumstance, the Arizona statute dis-
criminates in just the way Section 2 proscribes. The major-
ity once more comes to a different conclusion only by ignor-
ing the local conditions with which Arizona’s law interacts.
The critical facts for evaluating the ballot-collection rule
have to do with mail service. Most Arizonans vote by mail.
But many rural Native American voters lack access to mail
service, to a degree hard for most of us to fathom. Only 18%
of Native voters in rural counties receive home mail deliv-
ery, compared to 86% of white voters living in those coun-
ties. See 329 F. Supp. 3d, at 836. And for many or most,
there is no nearby post office. Native Americans in rural
Arizona “often must travel 45 minutes to 2 hours just to get
to a mailbox.” 948 F. 3d, at 1006; see 329 F. Supp. 3d, at
869 (“Ready access to reliable and secure mail service is
nonexistent” in some Native American communities). And
between a quarter to a half of households in these Native
communities do not have a car. See ibid. So getting ballots
by mail and sending them back poses a serious challenge
for Arizona’s rural Native Americans. 12
For that reason, an unusually high rate of Native Ameri-
cans used to “return their early ballots with the assistance
of third parties.” Id., at 870. 13 As the District Court found:
“[F]or many Native Americans living in rural locations,”
——————
12 Certain Hispanic communities in Arizona confront similar difficul-
ties. For example, in the border town of San Luis, which is 98% Hispanic,
“[a]lmost 13,000 residents rely on a post office located across a major
highway” for their mail service. 329 F. Supp. 3d, at 869. The median
income in San Luis is $22,000, so “many people [do] not own[ ] cars”—
making it “difficult” to “receiv[e] and send[ ] mail.” Ibid.
13 The majority faults the plaintiffs for failing to provide “concrete” sta-
tistical evidence on this point. See ante, at 31. But no evidence of that
kind exists: Arizona has never compiled data on third-party ballot collec-
tion. And the witness testimony the plaintiffs offered in its stead allowed
the District Court to conclude that minority voters, and especially Native
Americans, disproportionately needed third-party assistance to vote.
See 329 F. Supp. 3d, at 869–870.
Cite as: 594 U. S. ____ (2021) 37
KAGAN, J., dissenting
voting “is an activity that requires the active assistance of
friends and neighbors.” Ibid. So in some Native communi-
ties, third-party collection of ballots—mostly by fellow clan
members—became “standard practice.” Ibid. And stopping
it, as one tribal election official testified, “would be a huge
devastation.” Ibid.; see Brief for Navajo Nation as Amicus
Curiae 19–20 (explaining that ballot collection is how Nav-
ajo voters “have historically handled their mail-in ballots”).
Arizona has always regulated these activities to prevent
fraud. State law makes it a felony offense for a ballot col-
lector to fail to deliver a ballot. See Ariz. Rev. Stat. Ann.
§16–1005 (Cum. Supp. 2020). It is also a felony for a ballot
collector to tamper with a ballot in any manner. See ibid.And as the District Court found, “tamper evident envelopes
and a rigorous voter signature verification procedure” pro-
tect against any such attempts. 329 F. Supp. 3d, at 854.
For those reasons and others, no fraud involving ballot col-
lection has ever come to light in the State. Id., at 852.
Still, Arizona enacted—with full knowledge of the likely
discriminatory consequences—the near-blanket ballot-collec-
tion ban challenged here. The first version of the law—
much less stringent than the current one—passed the Ari-
zona Legislature in 2011. But the Department of Justice,
in its Section 5 review, expressed skepticism about the stat-
ute’s compliance with the Voting Rights Act, and the legis-
lature decided to repeal the law rather than see it blocked
(and thereby incur statutory penalties). See 329 F. Supp.
3d, at 880; 52 U. S. C. §10303(a)(1)(E) (providing that if a
state law fails Section 5 review, the State may not escape
the preclearance process for another 10 years). Then, this
Court decided Shelby County. With Section 5 gone, the
State Legislature felt free to proceed with a new ballot-col-
lection ban, despite the potentially discriminatory effects
that the preclearance process had revealed. The enacted
law contains limited exceptions for family members and
caregivers. But it includes no similar exceptions for clan
38 BRNOVICH v. DEMOCRATIC NATIONAL COMMITTEE
KAGAN, J., dissenting
members or others with Native kinship ties. They and an-
yone else who picks up a neighbor’s ballot and takes it to a
post office, or delivers it to an election site, is punishable as
a felon. See Ariz. Rev. Stat. §16–1005(H).
Put all of that together, and Arizona’s ballot-collection
ban violates Section 2. The ban interacts with conditions
on the ground—most crucially, disparate access to mail ser-
vice—to create unequal voting opportunities for Native
Americans. Recall that only 18% of rural Native Americans
in the State have home delivery; that travel times of an
hour or more to the nearest post office are common; that
many members of the community do not have cars. See su-
pra, at 36. Given those facts, the law prevents many Native
Americans from making effective use of one of the principal
means of voting in Arizona. 14 What is an inconsequential
burden for others is for these citizens a severe hardship.
And the State has shown no need for the law to go so far.
Arizona, as noted above, already has statutes in place to
deter fraudulent collection practices. See supra, at 37.
Those laws give every sign of working. Arizona has not of-
fered any evidence of fraud in ballot collection, or even an
account of a harm threatening to happen. See 329 F. Supp.
3d, at 852 (“[T]here has never been a case of voter fraud
associated with ballot collection charged in Arizona”). And
anyway, Arizona did not have to entirely forego a ballot-col-
lection restriction to comply with Section 2. It could, for
——————
14 To make matters worse, in-person voting does not provide a feasible
alternative for many rural Native voters. Given the low population den-
sity on Arizona’s reservations, the distance to an assigned polling place—
like that to a post office—is usually long. Again, many Native citizens
do not own cars. And the State’s polling-place siting practices cause some
voters to go to the wrong precincts. Respecting the last factor, the Dis-
trict Court found that because Navajo voters “lack standard addresses[,]
their precinct assignments” are “based upon guesswork.” Democratic
Nat. Committee v. Reagan, 329 F. Supp. 3d 824, 873 (Ariz. 2018). As a
result, there is frequent “confusion about the voter’s correct polling
place.” Ibid.Cite as: 594 U. S. ____ (2021) 39
KAGAN, J., dissenting
example, have added an exception to the statute for Native
clan or kinship ties, to accommodate the special, “intensely
local” situation of the rural Native American community.
Gingles, 478 U. S., at 79. That Arizona did not do so shows,
at best, selective indifference to the voting opportunities of
its Native American citizens.
The majority’s opinion fails to acknowledge any of these
facts. It quotes extensively from the District Court’s finding
that the ballot-collection ban does not interfere with the
voting opportunities of minority groups generally. See ante,
at 31, n. 19. But it never addresses the court’s separate
finding that the ban poses a unique burden for Native
Americans. See supra, at 36–37. Except in a pair of foot-
notes responding to this dissent, the term “Native Ameri-
can” appears once (count it, once) in the majority’s five-page
discussion of Arizona’s ballot-collection ban. So of course
that community’s strikingly limited access to mail service
is not addressed. 15 In the majority’s alternate world, the
——————
15 In one of those footnotes, the majority defends its omission by saying
that “no individual [Native American] voter testified that [the collection
ban] would make it significantly more difficult for him or her to vote.”
Ante, at 34, n. 21. But as stated above, the District Court found, based
on the testimony of “lawmakers, elections officials[,] community advo-
cates,” and tribal representatives, that the ban would have that effect for
many Native American voters. 329 F. Supp. 3d, at 868; see id., at 870
(“[F]or many Native Americans living in rural locations,” voting “is an
activity that requires the active assistance of friends and neighbors”);
supra, at 36–37. The idea that the claim here fails because the plaintiffs
did not produce less meaningful evidence (a single person’s experience)
does not meet the straight-face standard. And the majority’s remaining
argument is, if anything, more eccentric. Here, the majority assures us
that the Postal Service has a “statutory obligation[ ]” to provide “effective
and regular postal services to rural areas.” Ante, at 34, n. 21. But the
record shows what the record shows—once again, in the Court of Ap-
peals’ words, that Native Americans in rural Arizona “often must travel
45 minutes to 2 hours just to get to a mailbox.” Democratic Nat. Com-
mittee v. Hobbs, 948 F. 3d 989, 1006 (CA9 2020). That kind of back-
ground circumstance is central to Section 2’s totality-of-circumstances
40 BRNOVICH v. DEMOCRATIC NATIONAL COMMITTEE
KAGAN, J., dissenting
collection ban is just a “usual burden[ ] of voting” for every-
one. Ante, at 30. And in that world, “[f]raud is a real risk”
of ballot collection—as to every community, in every cir-
cumstance—just because the State in litigation asserts that
it is. Ante, at 33. The State need not even show that the
discriminatory rule it enacted is necessary to prevent the
fraud it purports to fear. So the State has no duty to sub-
stitute a non-discriminatory rule that would adequately
serve its professed goal. Like the rest of today’s opinion, the
majority’s treatment of the collection ban thus flouts what
Section 2 commands: the eradication of election rules re-
sulting in unequal opportunities for minority voters.
IV
Congress enacted the Voting Rights Act to address a deep
fault of our democracy—the historical and continuing at-
tempt to withhold from a race of citizens their fair share of
influence on the political process. For a century, African
Americans had struggled and sacrificed to wrest their vot-
ing rights from a resistant Nation. The statute they and
their allies at long last attained made a promise to all
Americans. From then on, Congress demanded, the politi-
cal process would be equally open to every citizen, regard-
less of race.
One does not hear much in the majority opinion about
that promise. One does not hear much about what brought
Congress to enact the Voting Rights Act, what Congress
hoped for it to achieve, and what obstacles to that vision
remain today. One would never guess that the Act is, as
the President who signed it wrote, “monumental.” Johnson
Papers 841. For all the opinion reveals, the majority might
——————
analysis—and here produces a significant racial disparity in the oppor-
tunity to vote. The majority’s argument to the contrary is no better than
if it condoned a literacy test on the ground that a State had long had a
statutory obligation to teach all its citizens to read and write.
Cite as: 594 U. S. ____ (2021) 41
KAGAN, J., dissenting
be considering any old piece of legislation—say, the Lan-
ham Act or ERISA.
But then, at least, the majority should treat the Voting
Rights Act as if it were ordinary legislation. The Court al-
ways says that it must interpret a statute according to its
text—that it has no warrant to override congressional
choices. But the majority today flouts those choices with
abandon. The language of Section 2 is as broad as broad
can be. It applies to any policy that “results in” disparate
voting opportunities for minority citizens. It prohibits,
without any need to show bad motive, even facially neutral
laws that make voting harder for members of one race than
of another, given their differing life circumstances. That is
the expansive statute Congress wrote, and that our prior
decisions have recognized. But the majority today lessens
the law—cuts Section 2 down to its own preferred size. The
majority creates a set of extra-textual exceptions and con-
siderations to sap the Act’s strength, and to save laws like
Arizona’s. No matter what Congress wanted, the majority
has other ideas.
This Court has no right to remake Section 2. Maybe some
think that vote suppression is a relic of history—and so the
need for a potent Section 2 has come and gone. Cf. Shelby
County, 570 U. S., at 547 (“[T]hings have changed dramati-
cally”). But Congress gets to make that call. Because it has
not done so, this Court’s duty is to apply the law as it is
written. The law that confronted one of this country’s most
enduring wrongs; pledged to give every American, of every
race, an equal chance to participate in our democracy; and
now stands as the crucial tool to achieve that goal. That
law, of all laws, deserves the sweep and power Congress
gave it. That law, of all laws, should not be diminished by
this Court.