Nos.

19-1257, 19-1258
IN THE
Supreme Court————
of the United States
MARK BRNOVICH, ATTORNEY GENERAL OF ARIZONA, et al.,
Petitioners,
v.
DEMOCRATIC NATIONAL COMMITTEE, et al.,
Respondents.
————
ARIZONA REPUBLICAN PARTY, et al.,
Petitioners,
v.
DEMOCRATIC NATIONAL COMMITTEE, et al.,
Respondents.
————
On Writs of Certiorari to the United States
Court of Appeals for the Ninth Circuit
————
BRIEF OF THE DISTRICT OF COLUMBIA AND
THE STATES OF CALIFORNIA, COLORADO,
CONNECTICUT, HAWAII, ILLINOIS, MAINE,
MARYLAND, MASSACHUSETTS, NEVADA,
NEW JERSEY, NEW MEXICO, NEW YORK,
OREGON, RHODE ISLAND, VERMONT,
VIRGINIA, AND WASHINGTON AS AMICI
CURIAE IN SUPPORT OF RESPONDENTS
————
KARL A. RACINE
Attorney General for the
District of Columbia
LOREN L. ALIKHAN
Solicitor General
Counsel of Record
CAROLINE S. VAN ZILE
Principal Deputy
Solicitor General
HARRISON M. STARK
Assistant Attorney General
D.C. OFFICE OF THE
ATTORNEY GENERAL
400 6th Street, NW Suite 8100
Washington, D.C. 20001
(202) 727-6287
[email protected]
Counsel for Amici Curiae

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

 i
QUESTIONS PRESENTED
The questions presented are:
1. Does Arizona’s out-of-precinct policy violate
Section 2 of the Voting Rights Act?
2. Does Arizona’s ballot-collection law violate
Section 2 of the Voting Rights Act or the
Fifteenth Amendment?
 iii
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ............................... i
TABLE OF AUTHORITIES ................................ iv
INTRODUCTION AND INTEREST OF
AMICI CURIAE ............................................... 1
SUMMARY OF ARGUMENT ............................. 3
ARGUMENT ........................................................ 6
I. Generally Applicable Election Laws Can
Violate Section 2 ....................................... 6
II. The Two-Part Test Limits Liability To
Only Those Election Laws That Actually
Operate To Deny Or Abridge The Right
To Vote ...................................................... 9
III. The Two-Part Test Raises No
Constitutional Concerns Because It
Prevents And Deters Unconstitutional
Conduct ..................................................... 16
CONCLUSION .................................................... 23
 iv
TABLE OF AUTHORITIES
Cases Page(s)
Alden v. Maine,
527 U.S. 706 (1999) ................................... 1
Allen v. State Bd. of Elections,
393 U.S. 544 (1969) ................................... 3, 7
Arizona v. Inter Tribal Council of Ariz., Inc.,
570 U.S. 1 (2013) ....................................... 11
Bond v. United States,
572 U.S. 844 (2014) ................................... 5, 22
Cal. Democratic Party v. Jones,
530 U.S. 567 (2000) ................................... 1
Chisom v. Roemer,
501 U.S. 380 (1991) ......................... 8, 10, 13, 18
City of Boerne v. Flores,
521 U.S. 507 (1997) ..................................passim
City of Mobile v. Bolden,
446 U.S. 55 (1980) ..................................... 15, 18
City of Rome v. United States,
446 U.S. 156 (1980) ............................. 16, 18, 22
The Civil Rights Cases,
109 U.S. 3 (1883) ....................................... 16
Fitzpatrick v. Bitzer,
427 U.S. 445 (1976) ................................... 23
Frank v. Walker,
768 F.3d 744 (7th Cir. 2014) ..................... 4, 11
Garza v. City of Los Angeles,
918 F.2d 763 (9th Cir. 1990) ..................... 20
 v
TABLE OF AUTHORITIES—Continued
Page(s)
Gonzalez v. Arizona,
677 F.3d 383 (9th Cir. 2012) ..................... 11, 14
Harman v. Forssenius,
380 U.S. 528 (1965) ................................... 7
Holder v. Hall,
512 U.S. 874 (1994) ................................... 3, 8
Hous. Lawyers’ Ass’n v. Att’y Gen. of Tex.,
501 U.S. 419 (1991) ................................... 13
Jones v. Alfred H. Mayer Co.,
392 U.S. 409 (1968) ................................... 17
Jordan v. Winter,
604 F. Supp. 807 (N.D. Miss. 1984).......... 19
Kimel v. Fla. Bd. of Regents,
528 U.S. 62 (2000) ..................................... 18
League of Women Voters of N.C. v.
North Carolina, 769 F.3d 224
(4th Cir. 2014) ........................................... 10
Lee v. Va. State Bd. of Elections,
843 F.3d 592 (4th Cir. 2016) ..................... 14
Mich. State A. Philip Randolph Inst. v.
Johnson, 749 F. App’x 342
(6th Cir. 2018) ........................................... 10
Miss. Republican Exec. Comm. v. Brooks,
469 U.S. 1002 (1984) .................................... 18-19
N.C. State Conf. of NAACP v. McCrory,
831 F.3d 204 (4th Cir. 2016) ..................... 5, 19
Nw. Austin Mun. Util. Dist. No. One v.
Holder, 557 U.S. 193 (2009) ..................... 13, 17
 vi
TABLE OF AUTHORITIES—Continued
Page(s)
Ohio Democratic Party v. Husted,
834 F.3d 620 (6th Cir. 2016) ..................... 14
Oregon v. Mitchell,
400 U.S. 112 (1970) ................................... 2, 22
Reynolds v. Sims,
377 U.S. 533 (1964) ................................... 2
Rogers v. Lodge,
458 U.S. 613 (1982) ............................. 12, 13, 20
Shaw v. Reno,
509 U.S. 630 (1993) ................................... 2, 20
Smith v. Salt River Project Agric.
Improvement & Power Dist.,
109 F.3d 586 (9th Cir. 1997) ..................... 11
South Carolina v. Katzenbach,
383 U.S. 301 (1966) ................................... 16, 19
Sugarman v. Dougall,
413 U.S. 634 (1973) ................................... 2, 22
Tennessee v. Lane,
541 U.S. 509 (2004) ................................... 19
Tex. Dep’t of Hous. & Cmty. Affairs v.
Inclusive Cmtys. Project, Inc.,
576 U.S. 519 (2015) ................................... 10, 18
Thornburg v. Gingles,
478 U.S. 30 (1986) ....................................passim
Veasey v. Abbott,
830 F.3d 216 (5th Cir. 2016) ............ 4, 10, 12, 15
 vii
TABLE OF AUTHORITIES—Continued
Page(s)
Village of Arlington Heights v. Metro.
Hous. Dev. Corp.,
429 U.S. 252 (1977).................................... 18
Washington v. Davis,
426 U.S. 229 (1976) ................................... 18
White v. Regester,
412 U.S. 755 (1973) ................................... 13
STATUTES
52 U.S.C. § 10301(a) ....................................passim
52 U.S.C. § 10301(b) ....................................passim
52 U.S.C. § 10310(c)(1) ................................. 3, 6
COURT FILINGS
Tr. of Oral Arg., Shelby Cty. v. Holder,
570 U.S. 529 (2013) (No. 12-96)................ 13
OTHER AUTHORITIES
Abridge, Black’s Law Dictionary
(11th ed. 2019) .......................................... 7
Akhil Reed Amar, The Lawfulness of
Section 5—and Thus of Section 5, 126
Harv. L. Rev. F. 109 (2013) ...................... 17
An Assessment of Minority Voting Rights
Access in the United States: Hearing
Before the U.S. Comm’n on Civ. Rts.
(Feb. 2, 2018) ............................................. 14
 viii
TABLE OF AUTHORITIES—Continued
Page(s)
Stephen Ansolabehere et al., Regional
Differences in Racial Polarization in the
2012 Presidential Election: Implications
for the Constitutionality of Section 5 of
the Voting Rights Act, 126 Harv. L. Rev.
F. 205 (2013) ............................................. 21
Thomas M. Boyd & Stephan J. Markman,
The 1982 Amendments to the Voting
Rights Act: A Legislative History, 40
Wash. & Lee L. Rev. 1347 (1983) ............. 15
Christopher S. Elmendorf & Douglas M.
Spencer, Administering Section 2 of the
Voting Rights Act After Shelby County,
115 Colum. L. Rev. 2143 (2015) ............... 14
Federal Judicial Center, 2003-2004 District
Court Case-Weighting Study: Final
Report to the Subcommittee on Judicial
Statistics of the Committee on Judicial
Resources of the Judicial Conference of
the United States (2005) ............................. 14
The Federalist No. 22 (Alexander
Hamilton) (Clinton Rossiter ed., 1961) .... 1
The Federalist No. 37 (James Madison)
(Clinton Rossiter ed., 1961) ...................... 2
More Observations on Shelby County,
Alabama and the Supreme Court,
Campaign Legal Ctr. Blog (Mar. 1, 2013) .... 13-14
 ix
TABLE OF AUTHORITIES—Continued
Page(s)
S. Rep. No. 97-417 (1982), as reprinted in
1982 U.S.C.C.A.N. 177 ............................passim
Voting Rights Act, H.R. Rep. No. 109-478
(2006), as reprinted in 2006 U.S.C.C.A.N.
618 ............................................................. 20
 INTRODUCTION AND
INTEREST OF AMICI CURIAE
Since 1982, Section 2 of the Voting Rights Act has
prohibited any state policy or procedure that “results
in a denial or abridgement of the right of any citizen of
the United States to vote on account of race or color.”
52 U.S.C. § 10301(a). Consistent with other federal
appellate courts, the Ninth Circuit employs a two-step
test for determining whether a state’s ostensibly neutral
law, in fact, “results in” vote denial or abridgment. Id.;
see JA 612-13.
Petitioners in this case attempt to pit Section 2
against states’ sovereign interests by arguing that the
Ninth Circuit’s two-part test unduly conflicts with
states’ “major role . . . in structuring and monitoring
the election process.” Cal. Democratic Party v. Jones,
530 U.S. 567, 572 (2000). The District of Columbia and
the States of California, Colorado, Connecticut,
Hawaii, Illinois, Maine, Maryland, Massachusetts,
Nevada, New Jersey, New Mexico, New York, Oregon,
Rhode Island, Vermont, Virginia, and Washington
(“Amici States”) submit this brief as amici curiae in
support of respondents because, put simply, that
conflict is illusory.
The Amici States have a critical interest in preserv-
ing the balance Congress struck through Section 2’s
results test. They are “joint participants in the gov-
ernance of the Nation,” as well as sovereigns in their
own right. Alden v. Maine, 527 U.S. 706, 748 (1999).
The Amici States derive that sovereignty and their
continued legitimacy from “that pure, original fountain
of all legitimate authority”: the people themselves.
The Federalist No. 22, at 148 (Alexander Hamilton)
(Clinton Rossiter ed., 1961). And because “republican
liberty” demands “not only, that all power should be
 2
derived from the people; but that those [e]ntrusted
with it should be kept in dependence on the people,”
id., No. 37, at 223 (James Madison), states have a
paramount interest in ensuring that their electoral
processes are responsive to all citizens, regardless of
race. Although no state has perfected the democratic
process, all the Amici States share Section 2’s “goal of
a political system in which race no longer matters—a
goal that the Fourteenth and Fifteenth Amendments
embody, and to which the Nation continues to aspire.”
Shaw v. Reno, 509 U.S. 630, 657 (1993).
Simultaneously, the Amici States seek to preserve
their primacy over “‘the power to regulate elections,’”
and their “constitutional responsibility for the estab-
lishment and operation of [their] own government[s].”
Sugarman v. Dougall, 413 U.S. 634, 647-48 (1973)
(quoting Oregon v. Mitchell, 400 U.S. 112, 125 (1970)).
States, accordingly, have a countervailing interest in
ensuring that legislation enacted under Congress’s
Reconstruction authority furthers collective commit-
ments to multi-racial democracy without unduly
intruding on state prerogatives.
States have long planned and conducted elections
against the backdrop of Section 2: “the major statutory
prohibition of all voting rights discrimination.”
S. Rep. No. 97-417, at 30 (1982), as reprinted in 1982
U.S.C.C.A.N. 177, 207. The Amici States’ experience
reveals that while Section 2’s goal is profound, its
burden on state election systems is not. Seeking to
vindicate the Constitution’s guarantee that govern-
ment remains “collectively responsive to the popular
will,” Reynolds v. Sims, 377 U.S. 533, 565 (1964),
Section 2 simply asks whether, under “the totality of
the circumstances,” minority voters “have less oppor-
tunity than other members of the electorate to
 3
participate in the political process and to elect
representatives of their choice,” 52 U.S.C. § 10301(b).
The Ninth Circuit’s two-part test for vote-denial
claims effectuates this reasonable demand. Rooted in
the familiar framework of Thornburg v. Gingles, 478
U.S. 30 (1986), the test asks first whether the chal-
lenged law “results in a disparate burden on members
of the protected class.” JA 612. If it does, the test then
interrogates “whether, under the ‘totality of circum-
stances,’” the disproportionate burden on minority voters
interacts with existing conditions of discrimination so
as “‘to cause an inequality in the opportunities enjoyed
by [minority] and white voters to elect their preferred
representatives’ or to participate in the political pro-
cess.” JA 623 (quoting Gingles, 478 U.S. at 46-47). That
inquiry furthers Section 2’s critical goal of insulating
the political process from discrimination’s crippling
effects while preserving state autonomy. The Amici
States therefore urge this Court to uphold it.
SUMMARY OF ARGUMENT
1. Section 2 applies to facially neutral, generally
applicable laws like the ones at issue here. The Voting
Rights Act’s plain text is “[i]ndicative of an intention
to give the Act the broadest possible scope,” Allen v.
State Bd. of Elections, 393 U.S. 544, 566-67 (1969),
prohibiting any “standard, practice, or procedure” that
denies an individual the right to vote on account of
race, 52 U.S.C. § 10301(a). It expressly reaches “all
action necessary to make a vote effective,” including
“registration, . . . casting a ballot, and having such
ballot counted properly and included in the appropri-
ate totals of votes cast.” Id. § 10310(c)(1). Indeed, this
Court has already explained how ostensibly neutral
election procedures might implicate Section 2. See,
e.g., Holder v. Hall, 512 U.S. 874, 922 (1994) (Thomas,
 4
J., concurring) (Section 2’s results test “covers all
manner of registration requirements,” as well as “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.”). Arizona’s
election procedures are no exception.
2. That uncontroversial conclusion—that generally
applicable election policies can, in some cases, trigger
Section 2 liability—hardly means that the results test
threatens to “dismantle every state’s voting apparatus.”
Ohio et al. Br. 15 (quoting Frank v. Walker, 768 F.3d
744, 754 (7th Cir. 2014)). Contrary to petitioners’ and
their amici’s framing, Section 2 is not a pure disparate-
impact statute—and that is why no appellate court,
including the Ninth Circuit, imposes Section 2 liability
based on disparate impact alone. Instead, the two-
part test protects regulated parties from unnecessary
liability by requiring a rigorous, context-specific factual
inquiry—drawn from this Court’s decision in Gingles—
to determine whether the disparate impact of a
challenged procedure actually operates to render a
political process “not equally open to participation by
members of a class of citizens.” 52 U.S.C. § 10301(b).
By drawing on this Court’s substantial vote-dilution
jurisprudence, the two-part test creates “a sufficient
and familiar way to limit courts’ interference with
‘neutral’ election laws to those that truly have a
discriminatory impact under Section 2 of the Voting
Rights Act.” Veasey v. Abbott, 830 F.3d 216, 247 (5th
Cir. 2016) (en banc). The test’s rigorous factual require-
ment, moreover, imposes both legal and practical
constraints on liability, making reflexive invalidation
of any state’s election procedures improbable.
 5
3. Finally, the two-part test raises no constitutional
concerns. The crux of petitioners’ challenge is that
because the Fourteenth and Fifteenth Amendments
prohibit only intentional discrimination, Section 2’s
results test exceeds Congress’s authority under the
Reconstruction Amendments. But permissible remedial
legislation may lawfully “prohibit[] conduct which is
not itself unconstitutional” if it “deters” or “prevent[s]”
unconstitutional acts. City of Boerne v. Flores, 521
U.S. 507, 519-20 (1997). A test like the Ninth
Circuit’s—which takes disparate impact as a starting
point before engaging in a more searching inquiry into
whether electoral systems actually function to exclude
minority voters—operates as a “congruen[t]” and
“proportional[]” mechanism for addressing intentional
discrimination in two ways. Id. at 520. First, it smokes
out ostensibly neutral polices enacted or enforced with
discriminatory animus. Second, it prevents future
unconstitutional conduct by eliminating the conditions
most likely to incentivize “intentional discrimination
in the regulation of elections.” N.C. State Conf. of
NAACP v. McCrory, 831 F.3d 204, 222 (4th Cir. 2016).
Finally, because Congress relied on its enforcement
authority under the Reconstruction Amendments, this
Court need not analyze Section 2 using “background
principles of [statutory] construction . . . grounded in
the relationship between the Federal Government and
the States.” Bond v. United States, 572 U.S. 844, 857
(2014). The Court’s test from City of Boerne already
accounts for any abstract federalism concerns.
 6
ARGUMENT
I. Generally Applicable Election Laws Can
Violate Section 2.
Petitioners suggest that, as a rule, “[r]ace-neutral
time, place, or manner regulations that are equally
applied and impose only the ordinary burdens of voting
do not implicate § 2—period.” Private Pet’rs Br. 19
(emphasis omitted); see State Pet’rs Br. 20 (arguing that
Section 2 “does not invalidate neutral, generally appli-
cable voting laws” because these laws “give every
registered voter the full ability to participate in the
political process.” (internal quotation marks omitted)).
But as text and precedent make plain, generally appli-
cable, facially neutral laws can, in fact, “result[] in a
denial or abridgement” of the right to vote “on account
of race.” 52 U.S.C. § 10301(a). Indeed, the Amici
States have long operated against the background
that generally applicable election policies can create
Section 2 liability and have crafted their election
policies accordingly.
The statutory text confirms the Amici States’
understanding. Since its enactment, the Voting Rights
Act has expressly applied to any “standard, practice,
or procedure,” including any “qualification or prereq-
uisite to voting,” that denies an individual the right
to vote on account of race. Id. Congress adopted
a capacious definition of “vote,” incorporating “all
action necessary to make a vote effective,” including
“registration, . . . casting a ballot, and having
such ballot counted properly and included in the
appropriate totals of votes cast.” Id. § 10310(c)(1).
These definitional provisions—described by this Court
as “[i]ndicative of an intention to give the Act the
broadest possible scope”—extend to facially neutral
state policies that structure the electoral process.
 7
Allen, 393 U.S. at 566-67. That should be unsurpris-
ing, given that “the record which confronted Congress
and the Judiciary in the voting rights [context]”
detailed “modern instances of generally applicable
laws passed because of [racial] bigotry.” City of
Boerne, 521 U.S. at 530.
When amending the statute to include a results
test—as opposed to mere prohibition of intentional
discrimination—Congress preserved the expansive
scope of practices regulated by the Voting Rights Act.
Indeed, it would be particularly odd for Congress to
have excluded generally applicable rules from the
scope of Section 2’s results test given that the 1982
Amendments sought to cover more practices, and
Congress emphasized that it intended the revised
Section 2 to operate as “the major statutory prohibi-
tion of all voting rights discrimination.” S. Rep. No.
97-417, at 30 (1982), as reprinted in 1982 U.S.C.C.A.N.
177, 207.
Private petitioners nevertheless contend that because
“race-neutral time, place, or manner” laws dictate
identical requirements for every individual, “the state
is not providing any disparate opportunities and its
political processes are ‘equally open’ to all voters.”
Private Pet’rs Br. 27 (quoting 52 U.S.C. § 10301(b)).
This Court has already recognized, however, that osten-
sibly neutral laws might “abridge” an individual’s
right to vote under Section 2. Abridge means “[t]o
reduce or diminish.” Abridge, Black’s Law Dictionary
(11th ed. 2019). And the Voting Rights Act’s prohi-
bition on “abridgement” of the right to vote extends to
any “cumbersome procedure” or “material require-
ment” that “erects a real obstacle to voting.” Harman
v. Forssenius, 380 U.S. 528, 541-42 (1965). As Justice
Thomas has explained, that means Section 2’s results
 8
test “covers all manner of registration requirements,”
as well as “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.” Hall, 512 U.S. at 922 (Thomas, J., concur-
ring); see Chisom v. Roemer, 501 U.S. 380, 408 (1991)
(Scalia, J., dissenting) (“If, for example, a county
permitted voter registration for only three hours one
day a week, and that made it more difficult for blacks
to register than whites, blacks would have less oppor-
tunity ‘to participate in the political process’ than
whites, and § 2 would therefore be violated.”).
In short, Section 2 reaches ostensibly neutral voting
procedures. But the fact that generally applicable
election policies can, in some cases, trigger liability
hardly means that Section 2 threatens to “dismantle
every state’s voting apparatus.” Ohio et al. Br. 15
(alterations and citation omitted). Just the opposite:
Section 2 makes clear that states face liability only if,
under the “totality of circumstances,” voting procedures
result in minorities having “less opportunity than
other members of the electorate to participate in the
political process and to elect representatives of their
choice.” 52 U.S.C. § 10301(b). And because most
facially neutral, generally applicable laws structuring
the electoral process will not result in “less opportunity”
for any group, most will pass Section 2’s test.
As explained further below, the Amici States’
experience bears this out. Just as in vote-dilution
cases, judges applying Section 2’s results test to vote-
denial claims have developed administrable, principled
standards for differentiating between laws that merely
impose differential burdens and laws that operate to
 9
actually diminish electoral opportunities. Because
most election administration policies do not operate to
deny or abridge any individual’s right to vote because
of race, most do not lead to Section 2 liability. The
Ninth Circuit’s test—like that of nearly every other
circuit to have addressed the issue—successfully
distinguishes between the two.
II. The Two-Part Test Limits Liability To Only
Those Election Laws That Actually Operate
To Deny Or Abridge The Right To Vote.
Like its sister circuits, the Ninth Circuit has adopted
a two-part test for Section 2 vote denial claims. That
test works. It effectuates Section 2’s statutory language.
It vindicates the constitutional values that animated
Congress’s passage of Section 2. And—most importantly
for the Amici States—it protects regulated parties
from unnecessary liability by requiring a rigorous,
context-specific factual inquiry into how electoral mech-
anisms operate on the ground to determine whether a
policy or procedure prevents minority participation.
Under the existing two-part test, plaintiffs alleging
discriminatory results must prove that the challenged
procedure actually functions in a manner resulting in
discrimination.
Petitioners and their amici, however, see the Ninth
Circuit’s straightforward test as an assault on state
sovereignty that “transform[s]” Section 2 from “a
prohibition on voting rules that treat minorities worse
into a mandate to adopt any rules that maximize
[their] participation,” Private Pet’rs Br. 32; “allows
anything more than a de minimis disparity to invali-
date state electoral laws,” State Pet’rs Br. 26; and
“turns Section 2 into a prohibition on all laws that
impose any disparate impact,” threatening commonplace
election procedures because of “any” impact “whatsoever”
 10
with “no meaningful showing of causation,” Ohio et al.
Br. 19-20.
Those colorful descriptions bear no resemblance to
the Ninth Circuit’s actual two-step inquiry. That test
asks first whether the challenged standard, practice,
or procedure “results in a disparate burden on members
of the protected class.” JA 612. If it does, the test then
interrogates “whether, under the ‘totality of circum-
stances,’” the disparate burden on minority voters
interacts with existing conditions of discrimination so
as “‘to cause an inequality in the opportunities enjoyed
by [minority] and white voters to elect their preferred
representatives’ or to participate in the political
process.” JA 623 (quoting Gingles, 478 U.S. at 46-47).
Nearly every other circuit has adopted a similar
formulation. See League of Women Voters of N.C. v.
North Carolina, 769 F.3d 224, 240 (4th Cir. 2014);
Veasey, 830 F.3d at 244-45; Mich. State A. Philip
Randolph Inst. v. Johnson, 749 F. App’x 342, 353 (6th
Cir. 2018).
This two-part inquiry simply operationalizes
Section 2’s text. The test first requires a disparate
impact because the statute refers to discriminatory
“results”—that is, “the consequences of actions and not
just to the mindset of actors.” Tex. Dep’t of Hous. &
Cmty. Affairs v. Inclusive Cmtys. Project, Inc., 576 U.S.
519, 533 (2015); see Chisom, 501 U.S. at 394 (“[P]roof
of intent is no longer required to prove a § 2
violation.”). The second step then looks to whether
longstanding patterns of racial inequality interact
with the challenged practice to cause disparate vote
denial—in other words, whether the disparate impact
is, truly, evidence that challengers “have less
opportunity than other members of the electorate to
participate in the political process and to elect
 11
representatives of their choice.” 52 U.S.C. § 10301(b).
As this Court emphasized in Gingles itself, that
inquiry forms the “essence of a § 2 claim”—whether “a
certain electoral law, practice, or structure interacts
with social and historical conditions to cause an
inequality in the opportunities enjoyed by [minority]
and white voters to elect their preferred representa-
tives.” Gingles, 478 U.S. at 47.
As the Amici States know from experience, the test’s
second step is critical. Section 2 seeks to ensure that
political processes remain responsive to all citizens
regardless of race. But because “[n]o state has exactly
equal registration rates, exactly equal turnout rates,
and so on, at every stage of its voting system,” dispar-
ate impact alone tells a court little about whether
electoral processes are truly inclusive. Frank, 768
F.3d at 754 (Easterbrook, J.). That is why Section 2 is
not a pure disparate-impact statute—and why no
circuit, including the Ninth, imposes Section 2 liability
based on disparate impact alone. See Smith v. Salt
River Project Agric. Improvement & Power Dist., 109
F.3d 586, 595 (9th Cir. 1997) (“[A] bare statistical
showing of disproportionate impact on a racial minor-
ity does not satisfy the § 2 ‘results’ inquiry.”); Gonzalez
v. Arizona, 677 F.3d 383, 405 (9th Cir. 2012) (en banc)
(“[A] § 2 challenge based purely on a showing of some
relevant statistical disparity between minorities and
whites, without any evidence that the challenged voting
qualification causes that disparity, will be rejected.”
(internal quotation marks omitted)), aff’d sub nom.
Arizona v. Inter Tribal Council of Ariz., Inc., 570 U.S. 1
(2013). Instead, the two-step nature of the test ensures
that disparate impact is not the sole barometer of
Section 2 violations.
 12
Petitioners and their amici incorrectly contend that
the second step “may as well be” “automatic,” Private
Pet’rs Br. 33, and is “just a formality,” Ohio et al. Br.
20, predicting that the two-step test will reflexively
“sweep away almost all registration and voting rules”
nationwide, Ohio et al. Br. at 22 (citations and alterations
omitted). But even a cursory glance at a Section 2
decision—including the Ninth Circuit’s here—reveals
how mistaken that characterization is. The fifty-plus
page opinion below is typical: far from “automatic[ally]”
imposing liability, lower courts faithfully apply this
Court’s admonition that any inquiry into the “totality
of the circumstances” requires “a searching practical
evaluation of the ‘past and present reality’ . . . of the
contested electoral mechanisms.” Gingles, 478 U.S. at
79 (quoting S. Rep. No. 97-417, at 30, as reprinted in
1982 U.S.C.C.A.N. 177, 208). The standard may be
flexible, but plaintiffs face a high bar. To prevail on a
Section 2 claim, challengers must conclusively show—
using complex demographic, historical, and political
data often analyzed by experts—that the disparate
impact of a challenged procedure actually operates to
render a political process “not equally open to partic-
ipation by members of a class of citizens.” 52 U.S.C.
§ 10301(b). And because Section 2 liability is “peculiarly
dependent upon the facts of each case,” Rogers v.
Lodge, 458 U.S. 613, 621 (1982) (internal quotation
marks omitted), plaintiffs must demonstrate—in each
individual suit—how a particular procedure operates
on the ground.
The context-specific focus of the second step thus
serves a critical claim-limiting function. As the Fifth
Circuit has explained, it constrains “Section 2 chal-
lenges to those that properly link the effects of past
and current discrimination with the racially disparate
effects of the challenged law.” Veasey, 830 F.3d at 246.
 13
Indeed, mechanical invalidation of any state’s
laws—including ballot collection or out-of-precinct
laws—is a non-starter under Section 2, as the statute
requires examining “all the circumstances in the
jurisdiction in question.” Chisom, 501 U.S. at 394
n.21. Challenges to identical laws in two different
states will therefore proceed differently because any
inquiry requires an “intensely local appraisal of [a
law’s] design and impact.” Rogers, 458 U.S. at 622
(quoting White v. Regester, 412 U.S. 755, 769 (1973)).
This Court has held, moreover, that “the State’s
interest” in a particular electoral mechanism—which
will necessarily vary between jurisdictions—“is a
legitimate factor to be considered by courts among the
‘totality of circumstances’ in determining whether a
§ 2 violation has occurred.” Hous. Lawyers’ Ass’n v.
Att’y Gen. of Tex., 501 U.S. 419, 426 (1991). And,
should “other parts of the State’s election code offset
whatever diminution in voting opportunities the
challenged laws impose,” Ohio et al. Br. 7, the “totality
of circumstances” test will account for that overall
equality of opportunity.
Practical considerations further limit Section 2’s
interference with state election systems. As the Amici
States know, the mechanics of Section 2 litigation
are “slow and expensive,” Nw. Austin Mun. Util. Dist.
No. One v. Holder, 557 U.S. 193, 197 (2009)
(“NAMUDNO”)—and often insurmountable for chal-
lengers hoping to alter voting regimes before an election,
see, e.g., Tr. of Oral Arg. at 38, Shelby Cty. v. Holder,
570 U.S. 529 (2013) (No. 12-96) (statement of Solicitor
General Verrilli) (noting that courts issued preliminary
injunctions in “fewer than one-quarter of ultimately
successful Section 2 suits”); More Observations on
Shelby County, Alabama and the Supreme Court,
 14
Campaign Legal Ctr. Blog (Mar. 1, 2013)1 (suggesting
that the true figure is likely “less than 5%”);
Christopher S. Elmendorf & Douglas M. Spencer,
Administering Section 2 of the Voting Rights Act After
Shelby County, 115 Colum. L. Rev. 2143, 2159 (2015)
(describing how “the fact-intensive nature of section 2
claims” means “preliminary relief [is] hard to obtain”).
Given these hurdles, it is unsurprising that the Federal
Judiciary Center concluded that out of sixty-three
types of litigation, voting-rights cases are the sixth
most complicated for the courts—thornier “than an
antitrust case, and nearly twice as cumbersome as
a murder trial.” An Assessment of Minority Voting
Rights Access in the United States: Hearing Before the
U.S. Comm’n on Civ. Rts. 8 (Feb. 2, 2018) (statement
of Justin Levitt) (describing findings of Federal Judicial
Center, 2003-2004 District Court Case-Weighting
Study: Final Report to the Subcommittee on Judicial
Statistics of the Committee on Judicial Resources of the
Judicial Conference of the United States (2005)).2
Litigants who expect the two-part test to “enlist the
courts in a partisan project of maximizing minority
voting rates,” Private Pet’rs Br. 31, are likely to be
sorely disappointed. See, e.g., Ohio Democratic Party
v. Husted, 834 F.3d 620, 636-40 (6th Cir. 2016)
(upholding the state’s policy under the two-part test);
Lee v. Va. State Bd. of Elections, 843 F.3d 592, 601 (4th
Cir. 2016) (same); Gonzalez, 677 F.3d at 407 (same).
To be sure, the Amici States recognize that employing
vote-dilution standards in vote-denial cases can be an
awkward fit at times. Congress indisputably enacted
the 1982 amendments with an eye toward this Court’s

1
Available at: https://bit.ly/38zKtl9.
2
Available at: https://bit.ly/2MGKyL9.
 15
decision in City of Mobile v. Bolden, 446 U.S. 55
(1980)—a vote dilution case. See Thomas M. Boyd &
Stephan J. Markman, The 1982 Amendments to the
Voting Rights Act: A Legislative History, 40 Wash. &
Lee L. Rev. 1347, 1356-1425 (1983). By drawing on
Gingles and the Senate Report, the current two-part
test adapts aspects of the more-developed vote-dilution
caselaw, analogizing those standards to vote-denial
harms.
From the perspective of the Amici States regulated
by Section 2, however, adapting existing precedent to
the vote-denial context makes good sense. In laying
out its now-familiar framework, even Gingles acknowl-
edged that Section 2 “prohibits all forms of voting
discrimination, not just vote dilution.” 478 U.S. at 45
n.10 (emphasis added). And both vote dilution and
vote denial operate to deny racial minorities “equal
access to the process of electing their representatives.”
Id. at 73 (quoting S. Rep. 97-417, at 36 (1982), as
reprinted in 1982 U.S.C.C.A.N. 177, 214). At worst,
the two-part test for vote denial acts as a creative-but-
faithful heuristic; in the Fifth Circuit’s words, it is “a
sufficient and familiar way to limit courts’ interference
with ‘neutral’ election laws to those that truly have a
discriminatory impact under Section 2 of the Voting
Rights Act.” Veasey, 830 F.3d at 247. This Court should
reject claims that the two-part test threatens neutral
state election systems by creating expansive liability.
As the Amici States’ experience shows, that “gloomy
forecast” has proven to be “unsound.” Id at 246.
 16
III. The Two-Part Test Raises No Constitutional
Concerns Because It Prevents And Deters
Unconstitutional Conduct.
Finally, petitioners and their amici suggest that the
Ninth Circuit’s test would render Section 2 uncon-
stitutional. They claim that if the two-part test
stands, the results test “exceed[s] Congress’s powers
to enforce the Reconstruction Amendments.” State
Pet’rs Br. 25; see Private Pet’rs Br. 41 (“[T]he Ninth
Circuit’s approach . . . is plainly not a ‘congruent and
proportional’ means of combating purposeful discrim-
ination.”); Ohio et al. Br. 30 (“[A] disparate-impact test
along the lines the Ninth Circuit adopted below . . . is
not ‘appropriate’ Fifteenth Amendment legislation
and Congress had no power to enact it.”). Although
the Amici States do not lightly accept intrusion into
their autonomous processes, an honest appraisal of
the two-part Section 2 test shows it to be “remedial”
within Congress’s enforcement power. South Carolina
v. Katzenbach, 383 U.S. 301, 326 (1966).
The Amici States are well-equipped to address these
claims. Questions of congressional power to enforce
the Reconstruction Amendments are, at bottom, ques-
tions about the scope of federal authority to intrude on
state sovereignty. Unlike other constitutional provisions,
“[t]hose Amendments were specifically designed as an
expansion of federal power and an intrusion on state
sovereignty,” City of Rome v. United States, 446 U.S.
156, 179 (1980), and are “secured by way of prohibition
against State laws and State proceedings,” The Civil
Rights Cases, 109 U.S. 3, 11 (1883). The Amici States,
accordingly, are well-positioned to evaluate whether
Congress has faithfully exercised its power “to enforce”
the Constitution, Katzenbach, 383 U.S. at 326, or has
instead exceeded its authority by “decree[ing] the
 17
substance of the [Reconstruction Amendments’]
restrictions on the States,” City of Boerne, 521 U.S. at
519-20. And as the Amici States’ experience demon-
strates, the two-part test passes constitutional muster
even applying this Court’s more demanding language
from the Fourteenth Amendment context.3
This Court has made clear that “Congress does not
enforce a constitutional right by changing what the
right is.” City of Boerne, 521 U.S. at 519. To preserve
the “line between measures that remedy or prevent
unconstitutional actions and measures that make a
substantive change in the governing law,” this Court
has required “congruence and proportionality between
the injury to be prevented or remedied and the
means adopted to that end.” Id. at 519-20. This Court
has made equally clear, however, that Congress’s
“power is not confined to the enactment of legislation
that merely parrots the precise wording of the . . .
Amendment,” and that the “power ‘to enforce’ the
Amendment includes the authority both to remedy
and to deter violation of rights guaranteed thereunder

3
This Court has yet to address whether the constitutional test
differs for legislation enacted under the Fifteenth Amendment as
opposed to the Fourteenth. See NAMUDNO, 557 U.S. at 204.
Scholars have suggested that the Fifteenth Amendment’s more
limited application may negate many of the far-reaching harms
that concerned this Court in City of Boerne, and Fifteenth Amendment
legislation would therefore require a less onerous test. See, e.g.,
Akhil Reed Amar, The Lawfulness of Section 5—and Thus of
Section 5, 126 Harv. L. Rev. F. 109, 120 n.30 (2013) (suggesting
that Thirteenth Amendment decisions like Jones v. Alfred H.
Mayer Co., 392 U.S. 409 (1968), “provide[] the sounder analogy
for proper Fifteenth Amendment doctrine”). Because the Amici
States believe that the Ninth Circuit’s two-part test survives under
either Amendment’s doctrine, this brief addresses petitioners’
claims using the Fourteenth Amendment framework.
 18
by prohibiting a somewhat broader swath of conduct.”
Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 81 (2000)
(emphasis added). That “broader swath” may include
conduct “which is not itself forbidden by the Amendment’s
text.” Id.; see City of Boerne, 521 U.S. at 518 (describing
how proportional and congruent legislation may still
“prohibit[] conduct which is not itself unconstitutional”).
The crux of petitioners’ challenge is that, because
the Fourteenth and Fifteenth Amendments prohibit
only intentional discrimination, Section 2’s results
test exceeds Congress’s authority. The Amici States’
experience, however, shows how the two-part test
functions to combat intentional discrimination in at
least two ways.
First, while “proof of intent is no longer required to
prove a § 2 violation,” Chisom, 501 U.S. at 394, dis-
criminatory results may still be probative evidence of
past discriminatory motive. See, e.g., Washington v.
Davis, 426 U.S. 229, 242 (1976); Village of Arlington
Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 267
(1977). As this Court only recently explained, statutory
language like Section 2’s plays an important role in
“uncovering discriminatory intent: it permits plaintiffs
to counteract unconscious prejudices and disguised
animus that escape easy classification as disparate
treatment.” Inclusive Cmtys. Project, 576 U.S. at 540.
Congress enacted the results test precisely because of
concerns that the “test for identifying [intentional]
discrimination . . . is difficult, if not impossible, to
satisfy.” S. Rep. 97-417, at 128 (1982), as reprinted in
1982 U.S.C.C.A.N. 177, 300. Indeed, that is why this
Court concluded, in an opinion issued the same day as
Bolden, that “under the Fifteenth Amendment, Congress
may prohibit voting practices that have only a discrim-
inatory effect.” City of Rome, 446 U.S. at 175; cf. Miss.
 19
Republican Exec. Comm. v. Brooks, 469 U.S. 1002 (1984)
(summarily affirming Jordan v. Winter, 604 F. Supp.
807 (N.D. Miss. 1984), where a three-judge court “rejected
the contention . . . that Section 2, if construed to reach
discriminatory results, exceeds Congress’s enforcement
power under the [F]ifteenth [A]mendment,” id. at 811).
Whether legislation is congruent and proportional
“is a question that ‘must be judged with reference to
the historical experience which it reflects.’” Tennessee
v. Lane, 541 U.S. 509, 523 (2004) (quoting Katzenbach,
383 U.S. at 308). As this Court recognized in City of
Boerne itself, Congress did not enact a results test
lightly. 521 U.S. at 526-27. Instead, Congress author-
ized effects-based liability to “counter the perpetuation
of 95 years of pervasive voting discrimination” and in
response to “modern instances of generally applicable
laws passed because of [racial] bigotry.” Id. (emphasis
added). Given this history, a test like the Ninth
Circuit’s—which takes disparate impact as a starting
point before engaging in a more searching inquiry into
whether electoral systems actually function to exclude
minority voters—operates as a congruent and propor-
tional mechanism for smoking out ostensibly neutral
polices enacted or enforced with discriminatory animus.
Second, permissible remedial legislation may lawfully
“prohibit[] conduct which is not itself unconstitutional”
if it “deters” or “prevent[s] unconstitutional actions.”
City of Boerne, 521 U.S. at 518-19. To be sure, many
disparate impacts in the voting sphere will not be
traceable to covert racial animus. But the more racial
polarization exists, the greater the risk that future
state action may be improperly motivated by race.
Simply put, disparate impacts along racial lines
“provide an incentive for intentional discrimination in
the regulation of elections.” McCrory, 831 F.3d at 222.
 20
That core insight is what led this Court to declare, in
the vote-dilution context, that racially polarized voting
“bear[s] heavily on the issue of purposeful discrimina-
tion,” Rogers, 458 U.S. at 623, and prompted Congress
to write in 2006 that racial stratification is the “clearest
and strongest evidence” of the continuing need for the
Voting Rights Act, H.R. Rep. No. 109-478, at 34 (2006),
as reprinted in 2006 U.S.C.C.A.N. 618, 638.
Indeed, these purposeful acts of disparate treatment
may be entirely unrelated to invidious animus. But
they may still entail, in a sense, “purposefully dis-
criminating between individuals on the basis of race.”
Shaw, 509 U.S. at 642. As Judge Kozinski has explained:
The lay reader might wonder if there can be
intentional discrimination without an invidious
motive. Indeed there can. . . . Assume you
are an anglo homeowner who lives in an all-
white neighborhood. Suppose, also, that you
harbor no ill feelings toward minorities.
Suppose further, however, that some of your
neighbors persuade you that having an
integrated neighborhood would lower property
values and that you stand to lose a lot of
money on your home. On the basis of that
belief, you join a pact not to sell your house to
minorities. Have you engaged in intentional
racial and ethnic discrimination? Of course
you have. Your personal feelings toward
minorities don’t matter; what matters is that
you intentionally took actions calculated to
keep them out of your neighborhood.
Garza v. City of Los Angeles, 918 F.2d 763, 778 n.1 (9th
Cir. 1990) (Kozinski, J., concurring and dissenting in
part). So too in elections: “[W]hen political preferences
fall along racial lines, the natural inclinations of
 21
incumbents and ruling parties to entrench themselves
have predictable racial effects. Under circumstances
of severe racial polarization, efforts to gain political
advantage translate into race-specific disadvantages.”
Stephen Ansolabehere et al., Regional Differences in
Racial Polarization in the 2012 Presidential Election:
Implications for the Constitutionality of Section 5 of
the Voting Rights Act, 126 Harv. L. Rev. F. 205, 209
(2013). The results test avoids these perverse
incentives by prophylactically targeting the conditions
most likely to produce unconstitutional discrimination
in the future. Far from unduly hampering state
processes, the test assists states by removing incen-
tives for officials or local jurisdictions to engage in
potentially unconstitutional discrimination.
A pre-emptive approach based on discriminatory
effects also avoids stigma and further racial division
down the line: As Congress explained when enacting
Section 2, requiring courts to conclude that “individual
officials or entire communities” acted with racial
animus was spectacularly “divisive, threatening to
destroy any existing racial progress in a community.”
S. Rep. No. 97-417, at 36, as reprinted in 1982
U.S.C.C.A.N. 177, 214 (quoting the testimony of
Arthur S. Flemming, Chairman, U.S. Comm’n on Civ.
Rts.). Avoiding direct allegations of intentional discrim-
ination alleviates the need for divisive finger-pointing.
For all of these reasons, Section 2’s “results” test
successfully “deters” or “prevent[s]” future intentional
acts in direct furtherance of the Reconstruction
Amendments. City of Boerne, 521 U.S. at 518-19.
This conclusion disposes of another, related consti-
tutional principle that Amici’s sister states invoke in
support of reversal. In their view, the Ninth Circuit’s
test “would radically alter the balance of federal and
 22
state authority over election laws,” and this Court
should insist on a “‘plain statement’” before authoriz-
ing “so radical an alteration.” Ohio et al. Br. 21, 25
(quoting Bond, 572 U.S. at 857). Two points bear
emphasis:
First, as described in Part II, supra, the two-part
inquiry hardly constitutes an invasive intrusion into
state election systems that “alter[s]” the federal-state
balance. Properly characterized, Section 2’s results
test imposes limited liability only where challengers
conclusively demonstrate that a state electoral process
is “not equally open to participation by members of a
class of citizens.” 52 U.S.C. § 10301(b). That has
been true since 1982 and this Court’s decision in
Gingles. Applying that familiar framework to vote-
denial claims—the original target of the Voting Rights
Act—hardly constitutes a “radical” reorientation of
state and federal authority.
Second, when Congress invokes its authority under
the Fourteenth and Fifteenth Amendments, as with
Section 2, it makes little sense to apply “background
principles of [statutory] construction . . . grounded in
the relationship between the Federal Government and
the States.” Bond, 572 U.S. at 857. Although it is
true that the Constitution intended, as a default, for
“States to keep for themselves . . . the power to regu-
late elections,” Sugarman, 413 U.S. at 647 (quoting
Mitchell, 400 U.S. at 125), this Court has made clear
that “principles of federalism that might otherwise be
an obstacle to congressional authority are necessarily
overridden by the power to enforce the Civil War
Amendments ‘by appropriate legislation,’” City of Rome,
446 U.S. at 179; see City of Boerne, 521 U.S. at 518
(explaining how Congress’s enforcement power author-
izes intrusion into “legislative spheres of autonomy
 23
previously reserved to the States” (quoting Fitzpatrick
v. Bitzer, 427 U.S. 445, 455 (1976)). If Congress’s
chosen means unduly usurp state autonomy, that is
the precise harm that the “congruent and propor-
tional” test exists to prevent. And, as described above,
Section 2 qualifies as “appropriate” remedial legislation
under this Court’s precedent.
CONCLUSION
This Court should affirm the judgment of the court
of appeals.
Respectfully submitted,
KARL A. RACINE
Attorney General for the
District of Columbia
LOREN L. ALIKHAN
Solicitor General
Counsel of Record
CAROLINE S. VAN ZILE
Principal Deputy
Solicitor General
HARRISON M. STARK
Assistant Attorney General
D.C. OFFICE OF THE
ATTORNEY GENERAL
400 6th Street, NW Suite 8100
Washington, D.C. 20001
(202) 727-6287
[email protected]
Counsel for Amici Curiae
January 2021
 24
On behalf of:
XAVIER BECERRA PHILIP J. WEISER
Attorney General Attorney General
State of California State of Colorado
WILLIAM TONG CLARE E. CONNORS
Attorney General Attorney General
State of Connecticut State of Hawaii
KWAME RAOUL AARON M. FREY
Attorney General Attorney General
State of Illinois State of Maine
BRIAN E. FROSH MAURA HEALEY
Attorney General Attorney General
State of Maryland Commonwealth of Massachusetts
AARON D. FORD GURBIR S. GREWAL
Attorney General Attorney General
State of Nevada State of New Jersey
HECTOR BALDERAS LETITIA JAMES
Attorney General Attorney General
State of New Mexico State of New York
ELLEN F. ROSENBLUM PETER F. NERONHA
Attorney General Attorney General
State of Oregon State of Rhode Island
THOMAS J. DONOVAN, JR. MARK R. HERRING
Attorney General Attorney General
State of Vermont Commonwealth of Virginia
ROBERT W. FERGUSON
Attorney General
State of Washington