Dissent by Chief Judge Thomas
IKUTA, Circuit Judge:
The Democratic National Committee (DNC) and other appellants sued the state of Arizona, raising several challenges under the First, Fourteenth and Fifteenth Amendments, and § 2 of the Voting Rights Act of 1965 (VRA), 52 U.S.C. § 10301, against two state election practices: (1) Arizonas longstanding requirement that in-person voters cast their ballots in their assigned precinct, which Arizona enforces by not counting ballots cast in the wrong precinct (referred to by DNC as the out-of-precinct or OOP policy), and (2) H.B. 2023, a recent legislative enactment which precludes most third parties from collecting early ballots from voters. After a lengthy trial involving the testimony of 51 witnesses and over 230 evidentiary exhibits, the district court rejected each of DNCs claims. Democratic Natl Comm. v. Reagan , --- F. Supp.3d ----, No. CV-16-01065-PHX-DLR, 2018 WL 2191664 (D. Ariz. May 10, 2018).
In deciding this case, the district court was tasked with making primarily factual determinations. For instance, a First and Fourteenth Amendment challenge to an election rule involves the intense[ly] factual inquiry of whether a plaintiff has carried the burden of showing that challenged election laws impose a severe burden on Arizona voters, or a subgroup thereof. Gonzalez v. Arizona , 485 F.3d 1041, 1050 (9th Cir. 2007). A Fifteenth Amendment claim involves the pure question of fact of whether the plaintiff has carried the burden of showing that the state legislature enacted the challenged law with a discriminatory intent. Pullman-Standard v. Swint , 456 U.S. 273, 287-88, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982). And in a VRA challenge, we defer to the district courts superior fact-finding capabilities, Smith v. Salt River Project Agric. Improvements & Power Dist. , 109 F.3d 586, 591 (9th Cir. 1997), regarding whether the plaintiff has carried the burden of showing that an election practice offers minorities less opportunity to participate in the political process and to elect representatives of their choice. 52 U.S.C. § 10301(b) ; see also Chisom v. Roemer , 501 U.S. 380, 397, 111 S.Ct. 2354, 115 L.Ed.2d 348 (1991). We must affirm these factual findings unless they are clearly erroneous. Anderson v. Bessemer City , 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985).
In its detailed 83-page opinion, the district court found that DNC failed to meet its burden on these critical factual questions. Its analysis on these factual inquiries was thorough and evenhanded, with findings well-supported by the record. Given the district courts extensive factual findings, much of DNCs appeal amounts to a request that we reweigh and reevaluate the evidence in the record. But we may not duplicate the role of the lower court or reject factual findings that, as here, are not clearly erroneous. Id . at 573, 105 S.Ct. 1504. Nor did the district court err in identifying and applying the correct legal standard to each of DNCs claims.
Accordingly, we conclude that the district court did not err in holding that H.B. 2023 and the OOP policy did not violate the First and Fourteenth Amendments because they imposed only a minimal burden on voters and were adequately designed to serve Arizonas important regulatory interests. We also conclude that the district court did not err in holding that H.B. 2023 and the OOP policy did not violate § 2 of the VRA. Given the minimal burden imposed by these election practices, DNC failed to show that minority voters were deprived of an equal opportunity to participate in the political process and elect candidates of their choice. Finally, we conclude that the district court did not err in holding that H.B. 2023 did not violate the Fifteenth Amendment, because DNC failed to carry its burden of showing that H.B. 2023 was enacted with discriminatory intent. We reject DNCs urging to toss out the district courts findings, reweigh the facts and reach opposite conclusions. As such, we affirm the district court.
I
The district courts order denying DNCs claims sets forth the facts in detail, Reagan , --- F.Supp.3d at ---- - ----, 2018 WL 2191664, at *1-9, so we provide only a brief factual and procedural summary here. The district courts factual findings are discussed in detail as they become relevant to our analysis.
A
We begin by reviewing Arizonas election system. Arizona permits voters to vote either in person on Election Day or by early mail ballot. Id . at ----, ----, 2018 WL 2191664, at *7, *12. The vast majority of Arizonans vote by early ballot. For instance, only about 20 percent of the votes in the 2016 general election were cast in person. Id . at ----, 2018 WL 2191664, at *12.
Most Arizona counties conduct in-person voting through a precinct-based system. Arizona gives each county the responsibility to establish a convenient number of election precincts in the county and define the boundaries of [those] precincts. Ariz. Rev. Stat. § 16-411(A). Before an election, the County Board of Supervisors (the Countys legislative unit) must designate at least one polling place per precinct. Id. § 16-411(B). Arizona law provides some flexibility for counties to combine precincts if each countys board of supervisors makes specific findings. See id. § 16-411(B)(2).
Arizona has long required in-person voters to cast their ballots in their assigned precinct and has enforced this system, since at least 1970, by counting only votes cast in the correct precinct. See Ariz. Rev. Stat. §§ 16-122, 16-135, 16-584 (codified in 1979); 1970 Ariz. Sess. Laws, ch. 151, § 64 (amending Ariz. Rev. Stat. § 16-895); Ariz. Rev. Stat. § 16-102 (1974). If an Arizona voters name does not appear on the voting register at the polling place on Election Day (either because the voter recently moved or due to inaccuracies in the official records), the voter may vote only by provisional ballot. Ariz. Rev. Stat. §§ 16-122, 16-135, 16-584. Later, the state reviews all provisional ballots and counts those votes cast by voters confirmed to be eligible to vote. Id . §§ 16-135(D), 16-584(D). A provisional ballot cast outside of the voters correct precinct is not counted. Id . (As mentioned above, DNC refers to Arizonas rejection of improperly cast ballots as Arizonas OOP policy.)
Recently, Arizona has permitted counties to choose between the traditional precinct model and voting centers, wherein voters from multiple precincts can vote at a single location. Id . § 16-411(B)(4). Each voting center must be equipped to print a specific ballot, correlated to each voters particular district, that includes all races in which the voter is eligible to vote. Reagan , --- F.Supp.3d at ----, 2018 WL 2191664, at *9. Six rural and sparsely populated counties-Graham, Greenlee, Cochise, Navajo, Yavapai, and Yuma-have adopted the voting center model. Id .
As noted above, most Arizona voters (roughly 80 percent in the 2016 general election) do not vote in person. Arizona law permits [a]ny qualified elector to vote by early ballot. Ariz. Rev. Stat. § 16-541(A). Early voting can occur by mail or in person at an on-site early voting location in the 27 days before an election. See id. § 16-542(D). All Arizona counties operate at least one on-site early voting location. Reagan , --- F.Supp.3d at ----, 2018 WL 2191664, at *7. Voters may also return their ballots in person at any polling place without waiting in line, and several counties additionally provide special drop boxes for early ballot submission. Id . Moreover, voters can vote early by mail, either for an individual election or by having their names added to a permanent early voting list. Id . An early ballot is mailed to every person on that list as a matter of course no later than the first day of the early voting period. Ariz. Rev. Stat. § 16-544(F). Voters may return their early ballot by mail at no cost, id . § 16-542(C), but it must be received by 7:00 p.m. on Election Day, id. § 16-548(A).
Since 1992, Arizona has prohibited any person other than the voter from having possession of that electors unvoted absentee ballot. See 1991 Ariz. Legis. Serv. Ch. 310, § 22 (S.B. 1390) (West). In 1997, the Arizona legislature expanded that prohibition to prevent any person other than the voter from having possession of any type of unvoted early ballot. See 1997 Ariz. Legis. Serv. Ch. 5, § 18 (S.B. 1003) (West) (codified at Ariz. Rev. Stat. § 16-542(D) ). As explained by the Supreme Court of Arizona, regulations on the distribution of absentee and early ballots advance Arizonas constitutional interest in secret voting, see Ariz. Const. art. VII, § 1, by setting forth procedural safeguards to prevent undue influence, fraud, ballot tampering, and voter intimidation, Miller v. Picacho Elementary Sch. Dist. No. 33 , 179 Ariz. 178, 180, 877 P.2d 277 (1994) (en banc).
Arizona has long supplemented its protection of the early voting process through the use of penal provisions, as set forth in section 16-1005 of Arizonas statutes. For example, since 1999, [a]ny person who knowingly marks a voted or unvoted ballot or ballot envelope with the intent to fix an election for that persons own benefit ... is guilty of a class 5 felony. 1999 Ariz. Legis. Serv. Ch. 32, § 12 (S.B. 1227) (codified as amended at Ariz. Rev. Stat. § 16-1005(A) ). And in 2011, Arizona made offering or providing any consideration to acquire a voted or unvoted early ballot a class 5 felony. See 2011 Ariz. Legis. Serv. Ch. 105, § 3 (S.B. 1412) (codified at Ariz. Rev. Stat. § 16-1005(B) ).
Since at least 2002, individuals and groups in Arizona have collected early ballots from voters. While distribution of early ballots had been strictly regulated for decades, see 1997 Ariz. Legis. Serv. Ch. 5, § 18 (S.B. 1003) (West) (codified at Ariz. Rev. Stat. § 16-542(D) ), ballot collection by third parties was not. This changed in 2016, when Arizona revised its early voting process, as defined in section 16-1005, by enacting H.B. 2023 to regulate the collection of early ballots. This law added the following provisions to the existing penalties for persons abusing the early voting process:
H. A person who knowingly collects voted or unvoted early ballots from another person is guilty of a class 6 felony. An election official, a United States postal service worker or any other person who is allowed by law to transmit United States mail is deemed not to have collected an early ballot if the official, worker or other person is engaged in official duties.
I. Subsection H of this section does not apply to:
1. An election held by a special taxing district formed pursuant to title 48 for the purpose of protecting or providing services to agricultural lands or crops and that is authorized to conduct elections pursuant to title 48.
2. A family member, household member or caregiver of the voter. For the purposes of this paragraph:
(a) Caregiver means a person who provides medical or health care assistance to the voter in a residence, nursing care institution, hospice facility, assisted living center, assisted living facility, assisted living home, residential care institution, adult day health care facility or adult foster care home.
(b) Collects means to gain possession or control of an early ballot.
(c) Family member means a person who is related to the voter by blood, marriage, adoption or legal guardianship.
(d) Household member means a person who resides at the same residence as the voter.
Ariz. Rev. Stat. § 16-1005(H)-(I).
This amendment to section 16-1005 makes it a felony for third parties to collect early ballots from voters unless the collector falls into one of several exceptions. See id. The prohibition does not apply to election officials acting as such, mail carriers acting as such, any family members, any persons who reside at the same residence as the voter, or caregivers, defined as any person who provides medical or health care assistance to voters in a range of adult residences and facilities. Id. § 16-1005(I)(2). H.B. 2023 does not provide that ballots collected in violation of this statute are disqualified or disregarded in the final election tally.
B
We next turn to the history of this case. In April 2016, DNC and other appellants sued the state of Arizona, challenging H.B. 2023 and Arizonas OOP policy.
In separate motions, DNC sought preliminary injunctions against H.B. 2023 and the OOP policy, respectively. On September 23, 2016, the district court denied the motion to preliminarily enjoin enforcement of H.B. 2023. The district court subsequently denied DNCs motion for a preliminary injunction pending appeal. On October 11, 2016, the district court likewise declined to issue a preliminary injunction with respect to the OOP policy.
DNC appealed both denials. A motions panel denied DNCs request to issue an injunction pending appeal of the district courts ruling on the challenge to H.B. 2023, but the two appeals were expedited and calendared for arguments before a three-judge panel on October 19 and 26, 2016, respectively. The expedited appeals proceeded at a rapid pace. On October 28, 2016, a divided panel affirmed the district courts denial of a preliminary injunction as to H.B. 2023. See Feldman v. Ariz. Secy of States Office (Feldman I ), 840 F.3d 1057 (9th Cir. 2016). The case was called en banc the same day, and on November 2, 2016-after a highly compressed five-day memo exchange and voting period-a majority of the active judges on this court voted to hear the appeal of the district courts denial of a preliminary injunction against H.B. 2023 en banc. Two days later, the en banc panel reconsidered the motions panels earlier denial of an injunction pending appeal and granted DNCs motion for an injunction pending a resolution of the preliminary injunction appeal. See Feldman v. Ariz. Secy of StatesOffice (Feldman III ), 843 F.3d 366 (9th Cir. 2016) (en banc). In so doing, the six-judge majority stated that we grant the motion for a preliminary injunction pending appeal essentially for the reasons provided in the dissent in [ Feldman I ]. Id. at 367 (citing Feldman I , 840 F.3d at 1085-98 ). The Supreme Court summarily stayed this injunction pending appeal the next day. See Ariz. Secy of States Office v. Feldman , --- U.S. ----, 137 S.Ct. 446, 446, 196 L.Ed.2d 326 (2016) (mem.) (The injunction issued by the United States Court of Appeals for the Ninth Circuit on November 4, 2016, in case No. 16-16698, is stayed pending final disposition of the appeal by that court.).
The appeal of the district courts denial of a preliminary injunction as to the OOP policy also proceeded apace. On November 2, 2016, a divided panel affirmed the district court. See Feldman v. Ariz. Secy of States Office (Feldman II ), 842 F.3d 613 (9th Cir. 2016). Two days later a majority of active judges voted to hear the OOP policy appeal en banc, and the en banc panel denied DNCs motion for an injunction pending resolution of the appeal. See Feldman v. Ariz. Secyof States Office , 840 F.3d 1165 (9th Cir. 2016) (mem.) (per curiam) (en banc). As a result of these proceedings, both H.B. 2023 and the OOP policy remained in effect for the November 2016 election. The en banc panel did not reach the merits of DNCs appeal of the district courts denial of the preliminary injunctions against H.B. 2023 and the OOP policy.
DNCs challenge proceeded in district court. DNC argued that H.B. 2023 imposed undue burdens on the right to vote, in violation of the First and Fourteenth Amendments. DNC also claimed that H.B. 2023 violated § 2 of the VRA because it resulted in a discriminatory burden on voting rights prohibited by that section. Finally, DNC claimed that H.B. 2023 was enacted with discriminatory intent, in violation of the Fifteenth Amendment. DNC raised similar claims that the OOP policy imposed an unconstitutional burden on the right to vote and violated § 2 of the VRA, but did not claim that the OOP policy had a discriminatory purpose.
The district court developed an extensive factual record on all five claims. Over the course of a ten-day bench trial in October 2017, the parties presented live testimony from 7 expert witnesses and 33 lay witnesses, in addition to the testimony of 11 witnesses by deposition. Reagan , --- F.Supp.3d at ---- - ----, 2018 WL 2191664, at *2-7. The district court also considered over 230 exhibits admitted into evidence.
Seven months later, on May 10, 2018, the district court issued its amended 83-page findings of fact and conclusions of law, holding that DNC had failed to prove its constitutional and VRA claims. Reagan , --- F.Supp.3d ----, 2018 WL 2191664.
DNC timely appealed that same day. Fed. R. App. P. 4(a)(1)(B). It also moved for an injunction pending resolution of its appeal. The en banc panel voted not to exercise jurisdiction over the appeal, and the case was assigned to the original three-judge panel. We granted DNCs motion to expedite the appeal in light of the upcoming 2018 election.
II
The district court exercised jurisdiction under 28 U.S.C. § 1331, and we have jurisdiction pursuant to 28 U.S.C. § 1291.
Following a bench trial, we review de novo the district courts conclusions of law and review its findings of fact for clear error. Navajo Nation v. U.S. Forest Serv. , 535 F.3d 1058, 1067 (9th Cir. 2008) (en banc). The clear error standard is significantly deferential. Cohen v. U.S. Dist. Court , 586 F.3d 703, 708 (9th Cir. 2009). [T]o be clearly erroneous, a decision must ... strike [a court] as wrong with the force of a five-week old, unrefrigerated dead fish. Ocean Garden, Inc. v. Marktrade Co., Inc. , 953 F.2d 500, 502 (9th Cir. 1991) (quoting Parts and Elec. Motors, Inc. v. Sterling Elec., Inc. , 866 F.2d 228, 233 (7th Cir. 1988) ). This standard plainly does not entitle a reviewing court to reverse the finding of the trier of fact simply because it is convinced that it would have decided the case differently. Bessemer City , 470 U.S. at 573, 105 S.Ct. 1504. If the district courts account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id . at 573-74, 105 S.Ct. 1504. That is, [w]here there are two permissible views of the evidence, the factfinders choice between them cannot be clearly erroneous. Id. at 574, 105 S.Ct. 1504.
III
We first address DNCs challenges to H.B. 2023. DNC argues that (1) H.B. 2023 unduly burdens the right to vote, in violation of the First and Fourteenth Amendments; (2) H.B. 2023 disproportionately impacts minority voters in a manner that violates § 2 of the VRA; and (3) H.B. 2023 was enacted with discriminatory intent, in violation of the Fifteenth Amendment. We address each claim in turn.
A
We begin with DNCs claim that H.B. 2023 violates Arizona voters First and Fourteenth Amendment rights.
1
The Constitution vests the States with a broad power to prescribe the Times, Places and Manner of holding Elections for Senators and Representatives. Clingman v. Beaver , 544 U.S. 581, 586, 125 S.Ct. 2029, 161 L.Ed.2d 920 (2005) (quoting U.S. Const., art. 1, § 4, cl. 1 ). This power under the Elections Clause to regulate elections for federal offices is matched by state control over the election process for state offices. Id .Governments necessarily must play an active role in structuring elections, Pub. Integrity All., Inc. v. City of Tucson , 836 F.3d 1019, 1024 (9th Cir. 2016) (en banc) (quoting Burdick v. Takushi , 504 U.S. 428, 433, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992) ), and as a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes, Storer v. Brown , 415 U.S. 724, 730, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974). However, when a state exercises its power and discharges its obligation [t]o achieve these necessary objectives, the resulting laws inevitably affect[ ]-at least to some degree-the individuals right to vote and his right to associate with others for political ends. Anderson v. Celebrezze , 460 U.S. 780, 788, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983).
Because a state has the authority and obligation to manage the election process, not all election laws impose constitutionally suspect burdens on that right. Short v. Brown , 893 F.3d 671, 676 (9th Cir. 2018). There is no litmus-paper test that will separate valid from invalid restrictions. Anderson , 460 U.S. at 789, 103 S.Ct. 1564 (quoting Storer , 415 U.S. at 730, 94 S.Ct. 1274 ). Rather, a more flexible standard applies. Burdick , 504 U.S. at 434, 112 S.Ct. 2059. A court considering a challenge to a state election law must weigh [1] the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate against [2] the precise interests put forward by the State as justifications for the burden imposed by its rule, taking into consideration [3] the extent to which those interests make it necessary to burden the plaintiffs rights. Id. (quoting Anderson , 460 U.S. at 789, 103 S.Ct. 1564 ). This framework is generally referred to as the Anderson / Burdick balancing test.
The first prong of this test, the magnitude of the burden imposed on voters by the election law, is a factual question on which the plaintiff bears the burden of proof. Democratic Party of Haw. v. Nago , 833 F.3d 1119, 1122-24 (9th Cir. 2016) (citing Cal. Democratic Party v. Jones , 530 U.S. 567, 120 S.Ct. 2402, 147 L.Ed.2d 502 (2000) ); Gonzalez , 485 F.3d at 1050 (noting that whether an election law imposes a severe burden is an intense[ly] factual inquiry). In addition to considering the burden on the electorate as a whole, courts may also consider whether the law has a heavier impact on subgroups, Pub. Integrity All. , 836 F.3d at 1025 n.2, but only if the plaintiff adduces evidence sufficient to show the size of the subgroup and quantify how the subgroups special characteristics makes the election law more burdensome. Thus, Crawford v. Marion County Election Board acknowledged the argument that a voter photo identification (ID) requirement might impose a heavier burden on homeless persons[,] persons with a religious objection to being photographed, and those who may have difficulty obtaining a birth certificate, but declined to undertake a subgroup analysis because the evidence was insufficient to show the size of such subgroups or to quantify the additional burden on those voters. 553 U.S. 181, 199, 200-03, 128 S.Ct. 1610, 170 L.Ed.2d 574 (2008). Accordingly, it is an error to consider the burden that the challenged provisions uniquely place on a subgroup of voters in the absence of quantifiable evidence from which an arbiter could gauge the frequency with which this narrow class of voters has been or will become disenfranchised as a result of [those provisions]. Ne. Ohio Coal. for the Homeless v. Husted , 837 F.3d 612, 631 (6th Cir. 2016).
After determining the severity of the burden, the court must then identify the states justifications for the law, and consider whether those interests make it necessary to burden the plaintiffs rights. Anderson , 460 U.S. at 789, 103 S.Ct. 1564. As we have emphasized, this inquiry does not necessarily mean that the state is required to show that its system is narrowly tailored-that is, is the one best tailored to achieve its purposes. Dudum v. Arntz , 640 F.3d 1098, 1114 (9th Cir. 2011). Rather, this step involves a balancing and means-end fit framework. Ariz. Green Party v. Reagan , 838 F.3d 983, 988 (9th Cir. 2016) (quoting Pub. Integrity All. , 836 F.3d at 1024 ). The severity of the burden dictates the closeness of the fit required, and the more severe the burden, the more compelling the states interest must be. Id .
By contrast, when a state election law provision imposes only reasonable, nondiscriminatory restrictions upon the First and Fourteenth Amendment rights of voters, the States important regulatory interests are generally sufficient to justify the restrictions. Burdick , 504 U.S. at 434, 112 S.Ct. 2059 (quoting Anderson , 460 U.S. at 788, 103 S.Ct. 1564 ); see also Ariz. Green Party , 838 F.3d at 988. In conducting this analysis, we are particularly deferential when the challenge is to an electoral system , as opposed to a discrete election rule . Dudum , 640 F.3d at 1114.
2
Applying the Anderson / Burdick framework, the district court found that H.B. 2023 did not unconstitutionally burden the right to vote. First, the court found that H.B. 2023 posed only a minimal burden on Arizona voters as a whole. Twenty percent of Arizonans voted in person in the prior 2016 general election, and so were wholly unaffected. Reagan , --- F.Supp.3d at ----, 2018 WL 2191664, at *12. As to the 80 percent of Arizonans who voted by mail, the district court noted that there were no records of the number of voters who returned their ballots with the assistance of third parties. Id . After presenting various witnesses on this issue, DNCs counsels best estimate of the number of voters affected by H.B. 2023 based on the evidence at trial was thousands ... but I dont have a precise number of that. Id . The court found that the evidence suggested that possibly fewer than 10,000 voters are impacted out of over 2.3 million voters. Id . Therefore, the vast majority of Arizona voters were unaffected by the law. Id .
Second, the district court found that H.B. 2023 imposed a minimal burden on even the small number of voters who had previously returned ballots with the assistance of third parties. Because [e]arly voters may return their own ballots, either in person or by mail, or they may entrust a family member, household member, or caregiver to do the same, the burden imposed by H.B. 2023 is the burden of traveling to a mail box, post office, early ballot drop box, any polling place or vote center (without waiting in line), or an authorized election officials office, either personally or with the assistance of a statutorily authorized proxy, during a 27-day early voting period. Id . Therefore, the court found that H.B. 2023 does not increase the ordinary burdens traditionally associated with voting. Id .
The district court then considered whether DNC had shown that H.B. 2023 had a more severe impact on particular subgroups of Arizona voters who have some common circumstance that would cause them to face special difficulties in voting without ballot collection services, such as communities that lack easy access to outgoing mail services; the elderly, homebound, and disabled voters; socioeconomically disadvantaged voters who lack reliable transportation; [and] voters who have trouble finding time to return mail because they work multiple jobs or lack childcare services. Id . at ----, 2018 WL 2191664, at *14. The court determined that the plaintiffs had not made such a showing, because there was insufficient evidence from which to measure the burdens on discrete subsets of voters or to quantify with any degree of certainty how many voters had previously used ballot collection services. Id . Moreover, the district court could not determine the number of those voters who used those services merely out of convenience or personal preference, as opposed to meaningful hardship, and therefore could not evaluate whether any of them would face a substantial burden in relying on other means of voting offered by Arizona. Id .
Having identified these major gaps in DNCs evidence, the district court evaluated the evidence presented. According to the district court, the evidence available largely shows that voters who have used ballot collection services in the past have done so out of convenience or personal preference. Id . The court discussed five voters who testified, Nellie Ruiz, Carolyn Glover, Daniel Magos, Carmen Arias, and Marva Gilbreath, explained their individual circumstances and noted that each had successfully returned their ballot except for Gilbreath, who simply forgot to timely mail her ballot. Id . at ----, 2018 WL 2191664, at *15. The district court also found that Arizona provides accommodations to subgroups of voters whose special characteristics might lead them to place a greater reliance on ballot collection. Id . at ----, 2018 WL 2191664, at *14. Specifically, for voters with mobility issues, Arizona requires counties to provide special election boards, which, upon timely request, will deliver a ballot to an ill or disabled voter. Id . While finding that relatively few voters are aware of this service, the district court pointed out that DNC could educate voters as to its availability. Id . Further, Arizona permits polling places to offer curbside voting, allowing voters to pull up to the curb by a polling place and have an election official assist them at their car. Id . Arizona law also requires employers to give their employees time off to vote in person if an employee is scheduled for an Election Day shift without at least a three-hour window to vote. Id . at ----, 2018 WL 2191664, at *15. Finally, the district court noted the many exceptions in H.B. 2023, allowing voters to give their early ballots to family members, household members, caregivers, or election officials. Id .
Because the court found that H.B. 2023 imposed only a minimal burden on Arizonans First and Fourteenth Amendment rights, it held that defendants had to show only that H.B. 2023 served important regulatory interests. As summarized by the district court, Arizona advanced two regulatory interests: (1) that H.B. 2023 is a prophylactic measure intended to prevent absentee voter fraud by creating a chain of custody for early ballots and minimizing the opportunities for ballot tampering, loss, and destruction; and (2) that H.B. 2023 improves and maintains public confidence in election integrity. Id . at ----, 2018 WL 2191664, at *18. The court found that these interests were important. Id . at ----, 2018 WL 2191664, at *19.
Turning to a means-end fit, the court found that given the de minimis nature of the burden imposed by H.B. 2023, it did not need to be the most narrowly tailored provision, so long as it reasonably advanced the states interests. Id . at ----, 2018 WL 2191664, at *20. Finding that it did so, the court held that H.B. 2023 did not violate the First and Fourteenth Amendments. Id . at ---- - ----, 2018 WL 2191664, at *18-20.
3
We conclude that the district court did not err in its Anderson / Burdick analysis. First, the district courts determination that H.B. 2023 imposes only a de minimis burden on Arizona voters was not clearly erroneous. See Crawford , 553 U.S. at 198, 128 S.Ct. 1610 (holding that the inconvenience of the process of going to the state Bureau of Motor Vehicles to obtain an ID does not qualify as a substantial burden on the right to vote, or even represent a significant increase over the usual burdens of voting). DNC does not directly dispute this conclusion.
Rather, DNC argues that H.B. 2023 imposes severe burdens on subgroups of voters unable to vote without the third-party ballot collection services prohibited by H.B. 2023. This argument fails. The district court did not clearly err in finding that there was insufficient evidence from which to measure the burdens on discrete subsets of voters, Reagan , --- F.Supp.3d at ----, 2018 WL 2191664, at *14, which is a threshold requirement to conducting a subgroup analysis. See Crawford , 553 U.S. at 200-03, 128 S.Ct. 1610. The record shows that DNCs witnesses could not specify how many voters would have been unable to vote without ballot collection services. For instance, a Maricopa County Democratic Party organizer, Leah Gillespie, testified that some voters who used ballot collection services told her that they had no other means of voting, but her only example was of a friend whose husband was supposed to deliver her ballot but forgot it at home. Similarly, Arizona State Senator Martin Quezada stated that his campaign received ballot collection requests after H.B. 2023 took effect and had been unable to provide rides to the polling place or other assistance to all such voters. But he did not know how many of those people had family members who could have turned in their ballot, and could only give his sense that several of them lacked anybody who could do so. Moreover, DNC failed to produce a single voter to testify that H.B. 2023s limitations on who may collect an early mail ballot would make voting significantly more difficult for her. Only one voter (Marva Gilbreath) testified that she did not vote in the 2016 general election, because she was in the process of moving, had no mailbox key due to misunderstandings with the realtor and things like that, and didnt know where the voting place was. This witnesss highly idiosyncratic circumstances do not indicate that H.B. 2023 imposes a severe burden on an identifiable subgroup of voters. Rather, burdens arising from lifes vagaries are neither so serious nor so frequent as to raise any question about the constitutionality of [the challenged law]. Id . at 197, 128 S.Ct. 1610.
In sum, DNCs evidence falls far short of the necessary quantifiable evidence from which an arbiter could gauge the frequency with which this narrow class of voters has been or will become disenfranchised as a result of [H.B. 2023]. Ne. Ohio Coal. , 837 F.3d at 631 ; cf. Crawford , 553 U.S. at 201-02, 128 S.Ct. 1610 (declining to conduct a subgroup analysis despite evidence of one indigent voter who could not (or would not) pay for a birth certificate and one homeless woman who was denied a photo ID card because she lacked an address.).
The dissent disagrees, but its disagreement here-as with the district courts opinion generally-is based on throwing out the district courts factual findings, reweighing the evidence, and reaching its own factual conclusions. This approach is not only contrary to the most basic principles of appellate review, but is an approach that the Supreme Court has frequently warned us to avoid. See Bessemer City , 470 U.S. at 574-75, 105 S.Ct. 1504 (holding that the rationale for deference to the trial courts finding of fact is based not only on the superiority of the trial judges position to make determinations of credibility, but also on the judges expertise in determination of fact, and ensuring that the trial on the merits should be the main event ... rather than a tryout on the road ) (quoting Wainwright v. Sykes , 433 U.S. 72, 90, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) ).
Here, for instance, the dissent seeks to revisit the district courts conclusion that DNC failed to carry its burden of showing that H.B. 2023 imposed a heavy burden on Native Americans. Dissent at 753-54. Conducting its own factual evaluation, the dissent claims that H.B. 2023 imposes a heavy burden on Native Americans because a majority of them lack home mail service. Dissent at 753-54. The dissent then speculates that many Native Americans may have trouble getting to post offices, and may have different family relationships than are indicated in H.B. 2023. Dissent at 702. Of course, the dissents determination that it would have decided the case differently does not make the district courts findings clearly erroneous. Bessemer City , 470 U.S. at 573, 105 S.Ct. 1504. Indeed, even evidence that third-party ballot collection is more useful to Native Americans than to other voters does not compel the conclusion that H.B. 2023 imposes a heavy burden on Native Americans ability to vote. Most tellingly, the dissent does not meaningfully address the district courts most notable factual finding: that not a single voter testified at trial that H.B. 2023s limitations would make voting significantly more difficult. Although the dissent insists that there was evidence to this effect, Dissent at 753-54, it cites only to the testimony of a third-party ballot collector who conceded that his organization had not attempted to determine whether the voters they served could have returned their ballots some other way. There is thus no basis for holding that the district courts findings were clearly erroneous, and the dissent errs in arguing otherwise.
The dissent also faults the district courts decision not to conduct a subgroup analysis because it could not determine a precise number of voters that had relied on ballot collection in the past or predict a likely number in the future. Dissent at 753. According to the dissent, this decision was based on a misunderstanding of Crawford , and therefore constitutes legal error. We disagree. The district court correctly relied on Crawford in concluding that on the basis of the evidence in the record it [was] not possible to quantify either the magnitude of the burden on this narrow class of voters or the portion of the burden imposed on them that [was] fully justified. Reagan , --- F.Supp.3d at ----, 2018 WL 2191664, at *14 (quoting Crawford , 553 U.S. at 200, 128 S.Ct. 1610 ). Accordingly, the court properly held that DNC did not carry its burden of showing the existence of a relevant subgroup.
Nor did the district court clearly err in finding that any burden imposed by H.B. 2023 was further minimized by Arizonas many accommodations available for those subgroups of voters that DNC claims are burdened by H.B. 2023. Reagan , --- F.Supp.3d at ----, 2018 WL 2191664, at *14. For instance, the district court reasonably found that the subgroup of voters who are confined as the result of a continuing illness or physical disability, Ariz. Rev. Stat. § 16-549(C), could request ballots from special election boards, and the burden of doing so was minimal, see Short , 893 F.3d at 677 (To the extent that having to register to receive a mailed ballot could be viewed as a burden, it is an extremely small one, and certainly not one that demands serious constitutional scrutiny.). The district court did not clearly err in finding that it was irrelevant whether voters were widely aware of this alternative, as nothing prevented DNC from informing voters of and facilitating this procedure. Reagan , --- F.Supp.3d at ----, 2018 WL 2191664, at *14.
We conclude that the district court did not clearly err in finding that DNC had failed both to quantify the subgroups purportedly burdened by H.B. 2023 and to show that Arizonas alternatives did not ameliorate any burden on them. Accordingly, there was no clear error in the district courts finding that H.B. 2023 imposed only a minimal burden.
4
Next, DNC and the dissent contend that the district court clearly erred in finding that H.B. 2023 serves Arizonas important regulatory interests because Arizona did not adduce any direct evidence of voter fraud. We reject this argument.
DNC does not dispute-nor could it-that Arizonas interest in a prophylactic measure intended to prevent absentee voter fraud and to maintain public confidence are facially important. Id . at ----, 2018 WL 2191664, at *18 ; see Crawford , 553 U.S. at 196, 128 S.Ct. 1610 (There is no question about the legitimacy or importance of the States interest in counting only the votes of eligible voters.); Purcell v. Gonzalez , 549 U.S. 1, 4, 127 S.Ct. 5, 166 L.Ed.2d 1 (2006) (explaining that [c]onfidence in the integrity of our electoral processes is essential to the functioning of our participatory democracy and noting the States compelling interest in preventing voter fraud).
Further, a state need not show specific local evidence of fraud in order to justify preventive measures, Voting for Am., Inc. v. Steen , 732 F.3d 382, 394 (5th Cir. 2013), nor is such evidence required to uphold a law that imposes minimal burdens under the Anderson / Burdick framework, see Munro v. Socialist Workers Party , 479 U.S. 189, 195, 107 S.Ct. 533, 93 L.Ed.2d 499 (1986) (explaining that legislatures are permitted to respond to potential deficiencies in the electoral process with foresight rather than reactively). For example, in Crawford , the challenged law addressed only in-person voter fraud, and [t]he record contain[ed] no evidence of any such fraud actually occurring in Indiana at any time in its history. 553 U.S. at 194, 128 S.Ct. 1610. Yet the controlling opinion concluded that the law served Indianas interests in preventing fraud, citing evidence of in-person and absentee voter fraud in other jurisdictions and in historical examples. Id. at 195-96 & nn. 11-13, 128 S.Ct. 1610. Accordingly, H.B. 2023 serves Arizonas important interest in preventing voter fraud even without direct evidence of ballot collection voter fraud in Arizona.
The dissent proposes several meritless distinctions between H.B. 2023 and the voter I.D. law in Crawford . First, the dissent argues that unlike H.B. 2023, Crawford s voter I.D. law was tied to the states interest in counting only the votes of eligible voters. Dissent at 754 (quoting Crawford , 553 U.S. at 196, 128 S.Ct. 1610 ). But H.B. 2023s regulation of third-party ballot collectors is likewise tied to the states interest in ensuring the integrity of the vote. As explained by the district court, Arizona could reasonably conclude that H.B. 2023 reduced opportunities for early ballots to be lost or destroyed by limiting the possession of early ballots to presumptively trustworthy proxies, and also lessened the potential for pressure or intimidation of voters, and other forms of fraud and abuse. Reagan , --- F.Supp.3d at ----, 2018 WL 2191664, at *20 ; see infra at 709-10. Second the dissent argues that Crawford is distinguishable because the legislature in that case was motivated in-part by legitimate concerns, while here the Arizona legislature was motivated by discriminatory intent, or by solely partisan interests. Dissent at 754. Again, we reject the dissents factual findings because the district court found that the legislature was not motivated by discriminatory intent and only partially motivated by partisan considerations, and these findings are not clearly erroneous. Moreover, a legislature may act on partisan considerations without violating the constitution. See infra at 720-21.
Similarly, a court can reasonably conclude that a challenged law serves the states interest in maintaining public confidence in the integrity of the electoral process, even in the absence of any evidence that the publics confidence had been undermined. Crawford , 553 U.S. at 197, 128 S.Ct. 1610. As several other circuits have recognized, it is practically self-evidently true that implementing a measure designed to prevent voter fraud would instill public confidence. Ohio Democratic Party v. Husted , 834 F.3d 620, 633 (6th Cir. 2016) (citing Crawford , 553 U.S. at 197, 128 S.Ct. 1610 ); see Frank v. Walker , 768 F.3d 744, 750 (7th Cir. 2014) (noting that Crawford took as almost self-evidently true the relationship between a measure taken to prevent voter fraud and promoting voter confidence). The district court did not clearly err in finding that H.B. 2023 also serves this important state interest.
5
DNC next argues that Arizona could have used less burdensome means to pursue its regulatory interests and H.B. 2023 could have been designed more effectively. This argument also fails. Burdick expressly declined to require that restrictions imposing minimal burdens on voters rights be narrowly tailored. See 504 U.S. at 433, 112 S.Ct. 2059. Consistent with Burdick , we upheld an election restriction that furthered the interest of ensuring local representation by and geographic diversity among elected officials even though less-restrictive means could have achieved the same purposes. Pub. Integrity All. , 836 F.3d at 1028. Similarly, in Arizona Green Party , we rejected the argument that the state must adopt a system of voting deadlines that is the most efficient possible, in light of the de minimis burden imposed by the existing deadlines. 838 F.3d at 992 (citation omitted).
Here, the district court found that H.B. 2023 imposed a minimal burden, and that it was a reasonable means for advancing the states interests. It concluded that [b]y limiting who may possess anothers early ballot, H.B. 2023 reasonably reduces opportunities for early ballots to be lost or destroyed. Reagan , --- F.Supp.3d at ----, 2018 WL 2191664, at *20. The district court also observed that H.B. 2023 closely follows, id ., the recommendation of a bipartisan national commission on election reform to reduce the risks of fraud and abuse in absentee voting by prohibiting third-party organizations, candidates, and political party activists from handling absentee ballots, id . (quoting Building Confidence in U.S. Elections § 5.2 (Sept. 2005) ). These findings were sufficient to justify the minimal burden imposed by H.B. 2023. DNCs reliance on Common Cause Indiana v. Individual Members of the Indiana Election , 800 F.3d 913, 928 (7th Cir. 2015) as requiring a closer means-ends fit is misplaced. As the Seventh Circuit concluded, the election law in that case imposed a severe burden on the right to vote, and therefore it was appropriate to apply strict scrutiny. Id . at 927.
We therefore affirm the district courts conclusion that DNC did not succeed on its Anderson / Burdick claim as to H.B. 2023.
B
We next consider DNCs claim that H.B. 2023 violates § 2 of the VRA. We begin by providing some necessary legal background.
1
Inspired to action by the civil rights movement, Congress enacted the Voting Rights Act of 1965 to improve enforcement of the Fifteenth Amendment. Shelby County v. Holder , 570 U.S. 529, 536, 133 S.Ct. 2612, 186 L.Ed.2d 651 (2013). Section 2 of the Act forbade all states from enacting any standard, practice, or procedure ... imposed or applied ... to deny or abridge the right of any citizen of the United States to vote on account of race or color. Id. (quoting Voting Rights Act of 1965, § 2, 79 Stat. 437). Section 5 of the Act prevented states from making certain changes in voting procedures unless the states obtained preclearance for those changes, meaning they were approved by either the Attorney General or a court of three judges. Id. at 537, 133 S.Ct. 2612.
At the time of the passage of the Voting Rights Act of 1965, § 2, unlike other provisions of the Act, did not provoke significant debate in Congress because it was viewed largely as a restatement of the Fifteenth Amendment. Chisom , 501 U.S. at 392, 111 S.Ct. 2354. In 1980, black residents of Mobile, Alabama challenged the citys at-large method of electing its commissioners on the ground that it unfairly diluted their voting strength. City of Mobile v. Bolden , 446 U.S. 55, 58, 100 S.Ct. 1519, 64 L.Ed.2d 47 (1980). A plurality of the Supreme Court held that the electoral system did not violate § 2 of the VRA because there was no showing of purposefully discriminatory denial or abridgment by government of the freedom to vote on account of race, color or previous conditions of servitude. Id. at 65, 100 S.Ct. 1519.
In response to Bolden , Congress substantially revised § 2 to make clear that a violation could be proved by showing discriminatory effect alone. Thornburg v. Gingles , 478 U.S. 30, 35, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986). In order to show actionable discriminatory effect, Congress enacted the results test, applied by the Supreme Court in White v. Regester , 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973), see Gingles , 478 U.S. at 35, 106 S.Ct. 2752, namely whether the political processes are equally open to minority voters. S. Rep. No. 97-417, at 2 (1982), as reprinted in 1982 U.S.C.C.A.N. 177, 205.
As amended, § 2 of the VRA provides:
§ 10301. Denial or abridgement of right to vote on account of race or color through voting qualifications or prerequisites; establishment of violation
(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 10303(f)(2) of this title, as provided in subsection (b).
(b) A violation of subsection (a) is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice....
52 U.S.C. § 10301.
Thus, § 2(a) prohibits a state or political subdivision from adopting a practice that results in a denial or abridgement of any U.S. citizens right to vote on account of race, color, or membership in a language minority group, as provided in subsection (b). Id. § 10301(a). Subsection (b), in turn, provides that a plaintiff can establish a violation of § 2(a) if based on the totality of circumstances, the members of a protected class identified in § 2(a) have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. Id. § 10301(b).
Thornburg v. Gingles further clarified that in analyzing whether a state practice violates § 2, a court must engage in a two-step process. First, the court must ask the key question set forth in § 2(b), whether as a result of the challenged practice or structure plaintiffs do not have an equal opportunity to participate in the political processes and to elect candidates of their choice. 478 U.S. at 44, 106 S.Ct. 2752 (quoting S. Rep. No. 97-417, at 28).
Second, a court must assess the impact of the practice on such electoral opportunities in light of the factors set forth in the Senate Report, which accompanied the 1982 amendments and elaborates on the nature of § 2 violations and on the proof required to establish these violations. Id. at 43-44, 106 S.Ct. 2752.
In the wake of Gingles , some lower courts interpreted the key question set forth in § 2(b) (whether as a result of the challenged practice plaintiffs do not have an equal opportunity to participate in the political process and to elect candidates of their choice) as provid[ing] two distinct types of protection for minority voters. Chisom , 501 U.S. at 396, 111 S.Ct. 2354 (citing League of United Latin Am. Citizens Council No. 4434 v. Clements , 914 F.2d 620, 625 (5th Cir. 1990) (en banc) ). These courts held that a vote denial claim, meaning a claim that a particular state election practice denied or abridged a minority groups right to vote, turned on whether members of that protected class had less opportunity ... to participate in the political process. By contrast, a vote dilution claim, meaning a claim that a state election practice diluted the effectiveness of a minority groups votes, turned on whether those members had less opportunity ... to elect representatives of their choice. Id. at 388, 395-96, 111 S.Ct. 2354 (citing Clements , 914 F.2d at 625 ).
The Supreme Court flatly rejected this interpretation. In Chisom , the Supreme Court explained that § 2(b) does not create two separate and distinct rights. Id. at 397, 111 S.Ct. 2354. The Court reasoned that if members of a protected class established that a challenged practice abridged their opportunity to participate in the political process, it would be relatively easy to show they were also unable to elect representatives of their choice, because [a]ny abridgment of the opportunity of members of a protected class to participate in the political process inevitably impairs their ability to influence the outcome of an election. Id . By contrast, evidence that members of a protected class are unable to elect representatives of their choice does not necessarily prove they had less opportunity to participate in the political process. Id. Accordingly, the Court concluded that the two-pronged results test required by the 1982 amendment is applicable to all claims arising under § 2, and all such claims must allege an abridgment of the opportunity to participate in the political process and to elect representatives of ones choice. Id. at 398, 111 S.Ct. 2354 ; see also Ortiz v. City of Phila. Office of City Commrs Voter Registration Div. , 28 F.3d 306, 314 (3d Cir. 1994) (Section 2 plaintiffs must demonstrate that they had less opportunity both (1) to participate in the political process, and (2) to elect representatives of their choice. (emphasis added) (citing Chisom , 501 U.S. at 397, 111 S.Ct. 2354 ) ).
In reaching this conclusion, the Chisom majority rejected Justice Scalias argument in dissent that requiring a plaintiff to prove both less opportunity to participate and less opportunity to elect representatives would prevent small numbers of voters from bringing a § 2 claim. According to Justice Scalia, the Court should have read and in § 2(b) to mean or, so that if 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 opportunity to participate in the political process than whites, and § 2 would therefore be violated-even if the number of potential black voters was so small that they would on no hypothesis be able to elect their own candidate. Chisom , 501 U.S. at 408, 111 S.Ct. 2354 (Scalia, J., dissenting). The majority rejected this argument, however, stating that it had no authority to divide a unitary claim created by Congress. Id. at 398, 111 S.Ct. 2354.
In light of Chisom , plaintiffs cannot establish a § 2 violation without showing that an electoral practice actually gives minorities less opportunity to elect representatives of their choice. This requires plaintiffs to show that the state election practice has some material effect on elections and their outcomes. As Gingles explained, [i]t is obvious that unless minority group members experience substantial difficulty electing representatives of their choice, they cannot prove that a challenged electoral mechanism impairs their ability to elect. 478 U.S. at 48 n.15, 106 S.Ct. 2752 (quoting 52 U.S.C. § 10301(b) ). It is the usual predictability of the majoritys success which distinguishes a structural problem from the mere loss of an occasional election. Id. at 51, 106 S.Ct. 2752. If an election practice would generally not impede the ability of minority voters to elect representatives of their choice there is no § 2 violation; rather a bloc voting majority must usually be able to defeat candidates supported by a politically cohesive, geographically insular minority group. Id . at 48-49, 106 S.Ct. 2752.
In a § 2 challenge, a courts focus must be on the question whether minorities have less opportunity to elect representatives of their choice; therefore, evidence that a particular election practice falls more heavily on minority than non-minority voters, or that electoral outcomes are not proportionate to the numbers of minorities in the population, is not sufficient by itself to establish a § 2 violation. As we have previously explained, a bare statistical showing of disproportionate impact on a racial minority does not satisfy the § 2 results inquiry. Salt River , 109 F.3d at 595. Rather, plaintiffs must show a causal connection between the challenged voting practice and [a] prohibited discriminatory result, i.e., less opportunity to participate in the political process and elect representatives. Id. (quoting Ortiz , 28 F.3d at 312 ). Because [n]o state has exactly equal registration rates, exactly equal turnout rates, and so on, at every stage of its voting system, Frank , 768 F.3d at 754, were it enough to merely point to some relevant statistical disparity implicated by the challenged law, Salt River , 109 F.3d at 595, then § 2 would dismantle every states voting apparatus, Frank , 768 F.3d at 754.
If a challenged election practice is not burdensome or the state offers easily accessible alternative means of voting, a court can reasonably conclude that the law does not impair any particular groups opportunity to influence the outcome of an election, Chisom , 501 U.S. at 397 n.24, 111 S.Ct. 2354, even if the practice has a disproportionate impact on minority voters. For instance, in Lee v. Virginia State Board of Elections , plaintiffs argued that Virginias photo ID law violated § 2 because more minorities than non-minorities lacked the necessary IDs, and the process of obtaining photo IDs requires those voters to spend time traveling to and from a registrars office. 843 F.3d 592, 600 (4th Cir. 2016). The Fourth Circuit rejected this argument. Observing that the state provided the option for voters without ID to cast a provisional ballot and obtain a free ID to verify their identity, the Fourth Circuit reasoned that every registered voter in Virginia has the full ability to vote when election day arrives, and therefore the election practice does not diminish the right of any member of the protected class to have an equal opportunity to participate in the political process. Id .
In sum, in considering a § 2 claim, a court must consider whether the challenged standard, practice, or procedure gives members of a protected class less opportunity than others both to participate in the political process and to elect representatives of their choice. Chisom , 501 U.S. at 397, 111 S.Ct. 2354 (quoting 52 U.S.C. § 10301(b) ). The plaintiff must show a causal connection between the challenged voting practice and the lessened opportunity of the protected class to participate and elect representatives; it is not enough that the burden of the challenged practice falls more heavily on minority voters. See Salt River , 109 F.3d at 595. Rather, the challenged practice must influence the outcome of an election, Chisom , 501 U.S. at 397 n.24, 111 S.Ct. 2354, and create some substantial difficulty for a protected class to elect representatives of its choice, not just the mere loss of an occasional election. Gingles , 478 U.S. at 48 n.15, 51, 106 S.Ct. 2752. If this sort of discriminatory result is found, then the practice must be considered in light of the Senate Factors, which are particularly pertinent to vote dilution claims, but will often be pertinent to other § 2 claims as well. Id. at 44-45, 106 S.Ct. 2752.
2
We now turn to the district courts determination here. We review the district courts legal determinations de novo, Gonzalez v. Arizona , 677 F.3d 383, 406 (9th Cir. 2012), but defer to the district courts superior fact-finding capabilities, and review its factual findings for clear error, Salt River , 109 F.3d at 591.
In analyzing the first step of a § 2 claim, the district court first found that DNC had provided no quantitative or statistical evidence showing how many people would be affected by H.B. 2023 and their minority status, noting that it was aware of no vote denial case in which a § 2 violation has been found without quantitative evidence measuring the alleged disparate impact of a challenged law on minority voters. Reagan , --- F.Supp.3d at ----, 2018 WL 2191664, at *30. Despite the lack of any statistical evidence establishing a disproportionate impact of H.B. 2023 on minorities, the court stated that it would not rule against DNC on this ground. Id . at ----, 2018 WL 2191664, at *31. Instead, it considered DNCs circumstantial and anecdotal evidence, and tentatively concluded that prior to H.B. 2023s enactment minorities generically were more likely than nonminorities to return their early ballots with the assistance of third parties, emphasizing the caveat that it could not speak in more specific or precise terms than more or less. Id . at ----, 2018 WL 2191664, at *33.
Having inferred, based on DNCs circumstantial and anecdotal evidence, that H.B. 2023 likely impacted more minority voters than non-minority voters, the district court nevertheless concluded that DNCs evidence did not establish that H.B. 2023 gave members of a protected class less opportunity than other members of the electorate both to participate in the political process and to elect representatives of their choice. Id . at ---- - ----, 2018 WL 2191664, at *32-34. The district court provided two reasons. First, the court reasoned that the evidence presented indicated that only a relatively small number of voters used ballot collection services at all. Id . at ----, 2018 WL 2191664, at *33. By logical extension, that meant that only a small number of minorities used ballot collection services to vote, and the vast majority of minority voters vote without the assistance of third-parties who would not fall within H.B. 2023s exceptions. Id . Because only a small number of minority voters were affected to any degree by H.B. 2023, the court found it is unlikely that H.B. 2023s limitations on who may collect an early ballot cause a meaningful inequality in the electoral opportunities of minorities as compared to nonminorities. Id .
Second, the court reasoned that even for the small number of minority voters who were affected by H.B. 2023 (i.e., who would use third-party ballot collectors no longer permitted by H.B. 2023 if they could), the evidence did not show that H.B. 2023 gave minorities less opportunity than other members of the electorate to participate in the political process and elect representatives. Id . at ----, 2018 WL 2191664, at *34. While H.B. 2023 might make it slightly more difficult or inconvenient for a small, yet unquantified subset of voters to return their early ballots, the court found that there was no evidence that H.B. 2023 would make it significantly more difficult to vote, particularly given that no individual voter had testified that H.B. 2023 had this impact. Id . Therefore, the district court found that DNC had not carried its burden at the first step of the § 2 analysis. Id .
Although the district court did not need to reach the second step, it nonetheless reviewed the relevant Senate Factors in order to develop the record and concluded that DNC had likewise failed to carry its burden at step two. Id . at ---- - ----, 2018 WL 2191664, at *36-40.
3
The district courts conclusion that the burden on a protected class of voters is so minimal that it would not give them less opportunity to elect representatives of their choice is not clearly erroneous. DNC produced anecdotal testimony that various sources collected between fifty and a few thousand ballots but DNCs counsel could not articulate an estimate more precise than that thousands of people used this opportunity. Id . at ----, 2018 WL 2191664, at *12. Accordingly, the district court did not clearly err in estimating that fewer than 10,000 voters used ballot collection services in each election. Moreover, the district court even considered a more generous, although unjustified, number of 100,000 voters, but nonetheless found that this was relatively small in relation to the 1.4 million early mail ballots and 2.3 million total voters. Id . The district courts view was, at minimum, a permissible view of the evidence. See Bessemer City , 470 U.S. at 573, 105 S.Ct. 1504. Given these small numbers, the district court did not clearly err in concluding that the unavailability of third party ballot collection would have minimal effect on the opportunity of minority voters to elect representatives of their choice.
Further, as explained in the Anderson / Burdick analysis, the evidence available indicated that the burden on even those few minority voters who used third-party ballot collection was minimal, because those voters had done so out of convenience or personal preference, or because of circumstances that Arizona law adequately accommodates in other ways, rather than from necessity.
Reagan , --- F.Supp.3d at ----, 2018 WL 2191664, at *14. As the district court pointed out, not a single voter testified at trial that H.B. 2023 made it significantly more difficult to vote, despite the fact that H.B. 2023 was in place for two 2016 elections. Id . at ----, 2018 WL 2191664, at *34.
In challenging the district courts conclusion, DNC and the dissent argue that under § 2, the total number of votes affected is not the relevant inquiry; the proper test is whether any minority votes are burdened. This argument is meritless. As we have explained, a bare statistical showing that an election practice has a disproportionate impact on a racial minority does not satisfy the § 2 results inquiry. Salt River , 109 F.3d at 595. Rather, the test under § 2 is whether the members [of a class of protected citizens] have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. 52 U.S.C. § 10301(b) (emphasis added). To determine whether a challenged law will result in members of a class having less opportunity to elect representatives of their choice, a court must necessarily consider the severity and breadth of the laws impacts on the protected class.
Accordingly, we affirm the district courts ruling that DNC failed to establish that H.B. 2023 results in less opportunity for minority voters to participate in the political process and to elect representatives of their choice, and therefore H.B. 2023 did not violate § 2 of the VRA.
C
Finally, we consider DNCs claim that H.B. 2023 violated the Fifteenth Amendment.
1
Plaintiffs can challenge a states election practice as violating their Fifteenth Amendment rights by showing that a state law was enacted with discriminatory intent. Abbott v. Perez , --- U.S. ----, 138 S.Ct. 2305, 2324, 201 L.Ed.2d 714 (2018). Discriminatory intent implies more than intent as volition or intent as awareness of consequences. Pers. Admr of Mass. v. Feeney , 442 U.S. 256, 279, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979). Rather, plaintiffs must show that a state legislature selected or reaffirmed a particular course of action at least in part because of, not merely in spite of, its adverse effects upon an identifiable group. Id. Thus, although racial discrimination need not be the dominant or primary factor underlying a legislative enactment, it must be a motivating factor. Vill. of Arlington Heights v. Metro. Hous. Dev. Corp. , 429 U.S. 252, 265-66, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977).
A law is not infected by discriminatory intent merely because it may affect a greater proportion of one race than of another. Washington v. Davis , 426 U.S. 229, 242, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976). Rather, [d]etermining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.
Arlington Heights , 429 U.S. at 266, 97 S.Ct. 555. This inquiry is guided by factors set forth in Arlington Heights . Id . at 266-68, 97 S.Ct. 555 ; see Bolden , 446 U.S. at 62, 72-74, 100 S.Ct. 1519 (holding that a facially neutral law violates the Fifteenth Amendment only if motivated by a discriminatory purpose and applying Arlington Heights in an analysis of discriminatory intent).
Under the Arlington Heights framework, the following, non-exhaustive factors are relevant in assessing whether a defendant acted with discriminatory purpose: (1) the impact of the official action and whether it bears more heavily on one race than another; (2) the historical background of the decision; (3) the specific sequence of events leading to the challenged action; (4) the defendants departures from normal procedures or substantive conclusions; and (5) the relevant legislative or administrative history. Arce v. Douglas , 793 F.3d 968, 977 (9th Cir. 2015). Because of the presumption of good faith that must be accorded legislative enactments and the evidentiary difficulty in determining whether race was a motivating factor, courts must exercise extraordinary caution when engaging in this inquiry. Miller v. Johnson , 515 U.S. 900, 916, 115 S.Ct. 2475, 132 L.Ed.2d 762 (1995).
Discriminatory intent is a pure question of fact subject to review for clear error. Pullman-Standard , 456 U.S. at 287-88, 102 S.Ct. 1781 ; Abbott , 138 S.Ct. at 2326. It is not a question of law and not a mixed question of law and fact. Pullman-Standard , 456 U.S. at 288, 102 S.Ct. 1781.
Given this standard, we must determine whether the district courts finding that the Arizona legislature did not have discriminatory intent is clearly erroneous. We consider the district courts findings on each Arlington Heights factor.
2
We start with two of the Arlington Heights factors, the historical background and legislative history of the enactment. Arce , 793 F.3d at 977. According to the district court, Arizonas history was a mixed bag of advancements and discriminatory actions. Reagan , --- F.Supp.3d at ----, 2018 WL 2191664, at *38. Although there was evidence of discrimination and racially polarized voting, there was also evidence of improvement. While Arizona was subject to § 5 preclearance, the DOJ did not issue any objections to any of [Arizonas] statewide procedures for registration or voting. Id . at ----, 2018 WL 2191664, at *37. Moreover, Arizona enacted an Independent Redistricting Commission to combat problems with discrimination in drawing statewide redistricting plans. Id . at ----, 2018 WL 2191664, at *38.
The district court also noted the relevant legislative history of H.B. 2023, including farfetched allegations of ballot collection fraud made by one legislator, Arizona State Senator Don Shooter, id . at ----, 2018 WL 2191664, at *41, and a video (referred to as the LaFaro Video) which showed surveillance footage of a man of apparent Hispanic heritage appearing to deliver early ballots, id . at ----, 2018 WL 2191664, at *38. However, the court concluded that the legislature was not motivated by discriminatory intent. Rather, the court found that Shooters allegations and the LaFaro Video were successful in convincing H.B. 2023s proponents that ballot collection presented opportunities for fraud that did not exist for in-person voting, and these proponents appear to have been sincere in their beliefs that this was a potential problem that needed to be addressed. Id . at ----, 2018 WL 2191664, at *41.
The district courts conclusion is well supported by the legislative record, which shows that legislative discussion focused on the danger of fraud. For example, the bills sponsor, Senator Michelle Ugenti-Rita, stated that H.B. 2023 was designed to limit fraud in ballot collection, which is important to maintaining integrity in our electoral process because the ballot collection practice is ripe to be taken advantage of. Senator Steve Smith testified that ballot fraud is certainly happening, and Michael Johnson, an African American who had served on the Phoenix City Council, testified that he had constituents call to complain about ballot collectors in minority communities. Senator Smith cited this testimony in a speech supporting the law. Senator Sylvia Allen expressed concern that we do not know what happens between the time the ballots are collected and when theyre finally delivered. This concern was confirmed by State Election Director Eric Spencer, who testified that there is a huge imbalance in the amount of security measures that are in place for polling place voting compared to early voting. Even though 77 percent of all the votes cast in Arizona are early votes, there are almost no prophylactic security procedures in place to govern that practice, whereas, at the polling place, where only 23 percent of the votes are taking place, we have every security measure in the world.
The legislature also heard testimony that other states had implemented similar security measures related to ballot collection. According to the legislative record, at the time H.B. 2023 was considered by the Arizona legislature, California, New Mexico, Colorado, [and] Nevada all ha[d] laws that restrict or prohibit ballot collection, and therefore Arizona was a little bit out of the norm especially among our neighbors. The legislature also heard that the California law was more draconian than H.B. 2023: it prohibited all ballot collection except by members of the household, family members, and spouses, and did not count votes in ballots that had been improperly collected.
DNC and the dissent claim that the district court erred in giving weight to this evidence because there was no evidence of actual fraud. According to DNC, this evidentiary gap established that the legislators expressed concerns regarding fraud in ballot collection were merely a facade for racial discrimination. This argument fails. The Arizona legislature was free to enact prophylactic measures even when the legislative record contains no evidence of any such fraud actually occurring. Crawford , 553 U.S. at 194, 128 S.Ct. 1610. Moreover, as the district court noted, H.B. 2023 found support among some minority officials and organizations, including Michael Johnson, the African American councilman, and the Arizona Latino Republican Association for the Tucson Chapter, which undermines DNCs claim that concerns about fraud were a mere front for discriminatory motives. Reagan , --- F.Supp.3d at ----, 2018 WL 2191664, at *41.
DNC argues that the district court erred in not giving sufficient weight to the evidence that the LaFaro video had racial overtones. The district courts decision to give this evidence less weight was not a legal error, however, because the district court was not obliged to impute the motives of a few legislators to the entire Arizona legislature that passed H.B. 2023. See Arlington Heights , 429 U.S. at 265-66, 97 S.Ct. 555. What motivates one legislator to make a speech about a statute is not necessarily what motivates scores of others to enact it. United States v. OBrien , 391 U.S. 367, 384, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). The Sixth Circuit recently recognized this point, holding that the clearly discriminatory statements and motive of one legislator did not show that the enacting legislature acted with racial animus. Ne. Ohio Coal. , 837 F.3d at 637.
The district court also did not err in giving little weight to evidence that some individual legislators and proponents were motivated in part by partisan interests. Reagan , --- F.Supp.3d at ----, 2018 WL 2191664, at *43. The record shows that State Senator Shooters concerns about ballot collection arose after he won a close election, that Michael Johnson complained that ballot collection put candidates without an effective get-out-the-vote effort at a disadvantage, and a 2014 Republican candidate for the Arizona House of Representatives claimed that he lost his election because of ballot collection activities. Id . Although DNC and the dissent seem to argue that, as a matter of law, legislators should be deemed to have a discriminatory intent for Fifteenth Amendment purposes when they are motivated by partisan interests to enact laws that disproportionately burden minorities, this is incorrect. Fifteenth Amendment plaintiffs must show that the legislature acted with racial motives, not merely partisan motives. See, e.g. , Cooper v. Harris , --- U.S. ----, 137 S.Ct. 1455, 1473, 197 L.Ed.2d 837 (2017) ([A] trial court has a formidable task: It must ... assess whether the plaintiffs have managed to disentangle race from politics and prove that the former drove a districts lines.); Easley v. Cromartie , 532 U.S. 234, 243, 121 S.Ct. 1452, 149 L.Ed.2d 430 (2001) (evaluating the district courts critical finding that race rather than politics motivated the districting map). The intent to preserve incumbencies is not equivalent to racially-discriminatory intent, and only the latter supports a finding of intentional discrimination. Garza v. County of Los Angeles , 918 F.2d 763, 771 & n.1 (9th Cir. 1990). Even when racial identification is highly correlated with political affiliation, Cooper , 137 S.Ct. at 1473 (quoting Easley , 532 U.S. at 243, 121 S.Ct. 1452 ), plaintiffs must still carry their burden of showing that the former was a motivating factor. Id. Accordingly, the determination whether racial or political interests motivated a legislature is one of fact subject to review for clear error. See Cooper , 137 S.Ct. at 1473-74. Here the district court disentangled racial motives from partisan motives, and its factual finding that even those few legislators harboring partisan interests did not act with a discriminatory purpose is not clearly erroneous. Therefore, the historical and legislative history factors support the district courts conclusion.
3
We next turn to the Arlington Heights factors of the sequence of events leading to the challenged action and departures from normal procedures. Arce , 793 F.3d at 977. First, the district court found that the Arizona legislature followed its normal course in enacting H.B. 2023, and therefore the legislative process itself did not raise an inference of discriminatory intent. Reagan , --- F.Supp.3d at ---- - ----, 2018 WL 2191664, at *42-43. This conclusion is supported by the record; there is no evidence that the legislature used unusual procedures or unprecedented speed to pass a law, N.C. State Conference of NAACP v. McCrory , 831 F.3d 204, 214, 228 (4th Cir. 2016), which other courts have deemed raise such an inference, see, e.g. , Veasey I , 830 F.3d at 238 (holding that the Texas legislatures unwonted procedure of designating the bill as emergency legislation, cutting debates short, passing it without the ordinary committee process, and suspending a two-thirds voting rule to get the bill passed, weighed in favor of a finding of discriminatory intent).
Second, in considering the historical sequence of events, the district court held that neither of the two prior efforts to limit ballot collection, S.B. 1412 (enacted in 2011) and H.B. 2305 (enacted in 2013), weighed in favor of finding that the legislature had a discriminatory intent in enacting H.B. 2023. Reagan , --- F.Supp.3d at ---- - ----, 2018 WL 2191664, at *42-43. The record showed that S.B. 1412 was subject to § 5 preclearance, and that after the DOJ requested additional information regarding the ballot collection provision, the Arizona Attorney General voluntarily withdrew the provision. Id . at ----, 2018 WL 2191664, at *42. Two years later, the legislature enacted H.B. 2305, which also regulated ballot collection. Id . After citizen groups organized referendum efforts against the law, the legislature repealed it. Id . The court held that while these circumstances were somewhat suspicious, they have less probative value because they involve different bills passed during different legislative sessions by a substantially different composition of legislators. Id .
The district court did not clearly err in giving little weight to these prior enactments. Even if the bills had been informed by a discriminatory intent, the Supreme Court has made clear that [p]ast discrimination cannot, in the manner of original sin, condemn governmental action that is not itself unlawful. Abbott , 138 S.Ct. at 2324 (quoting Bolden , 446 U.S. at 74, 100 S.Ct. 1519 ). The intent of a prior legislature cannot be imputed to a new legislature enacting a different bill notwithstanding the previous drafters intent. Veasey v. Abbott (Veasey II) , 888 F.3d 792, 802 (5th Cir. 2016). Indeed, it is a clear error to presume that any invidious intent behind a prior bill necessarily carried over to and fatally infected the law at issue. Id . Further, meaningful alterations in an amended statute may render even a previously discriminatory statute valid. Id . (citation omitted). Because Arizonas previous laws on ballot collection were different rules, passed by different legislatures, and H.B. 2023 is more lenient than its predecessors given its broad exceptions for family members, household members, and caregivers, these prior enactments do not materially bear on the legislatures intent in enacting H.B. 2023. Reagan , --- F.Supp.3d at ----, 2018 WL 2191664, at *43.
Moreover, the district court did not err in finding that neither S.B. 1412 or H.B. 2305 was enacted with racially discriminatory intent. Regarding S.B. 1412, the record shows only that the DOJ requested more information, but its primary concern was the laws impact on minority voters, Feldman III , 843 F.3d at 369 (emphasis added), not the intent of the legislature in enacting it. And as to H.B. 2305, the record does not disclose why citizens opposed the law or whether the referendum sought to combat a discriminatory purpose. The lack of evidence of past discrimination further undermines DNCs argument that the legislature had discriminatory intent in passing H.B. 2023.
4
In reviewing the final Arlington Heights factor (whether the law would have a disparate impact on a particular racial group), Arce , 793 F.3d at 977, the district court found that the legislature enacted H.B. 2023 in spite of its impact on minority [get out the vote] efforts, not because of that impact, and concluded that proponents of the bill seemed to view these concerns as less significant because of the minimal burdens associated with returning a mail ballot, Reagan , --- F.Supp.3d at ----, 2018 WL 2191664, at *43.
The district court did not clearly err in reaching this conclusion. Multiple senators expressed their view that H.B. 2023 imposes only a slight burden on voters. For instance, Senator Michelle Ugenti-Rita stated that voters have [l]ots of opportunities to vote in the 27 day early-voting window, and expressed her view that there is no reason to presume a voter who previously used ballot collection would have trouble voting. Given that these voters have already asked that their ballot be mailed to them, Senator Ugenti-Rita stated logic would tell you they are perfectly capable and understand that, in order to then get their ballot in, they need to put it back in to the mailbox or drop it off. Another proponent of the bill, John Kavanaugh, expressed a similar view: The only way you get an early ballot is to have it delivered to you by mail, and the way youre supposed to return an early ballot is to reverse that process. And its hard to imagine how, when you have an early ballot, somewhere in the area of 30 days, you somehow cant do that. Again, the record does not contain the sort of evidence that has led other courts to infer the legislature was acting with discriminatory intent, such as evidence that the legislators studied minority data and targeted the voting methods most used by minority voters. Cf. McCrory , 831 F.3d at 220. In fact, no voters, minority or non-minority, testified that they faced a substantial obstacle to voting because of H.B. 2023. Accordingly, we find no clear error in the courts holding that [b]ased on the totality of the circumstances, DNC had not shown that the legislature enacted H.B. 2023 with the intent to suppress minority votes. Reagan , --- F.Supp.3d at ----, 2018 WL 2191664, at *43.
In sum, the district court carefully weighed the evidence of discriminatory purpose and found the Arizona legislature was not motivated by an intent to discriminate. The findings supporting this conclusion are not clearly erroneous, and neither was the ultimate balancing of the Arlington Heights factors.
5
Because discriminatory intent is a pure question of fact, a court must defer to the district courts fact-finding unless it is clearly erroneous. Pullman-Standard , 456 U.S. at 288, 102 S.Ct. 1781. But the dissent once again reviews the record de novo, reweighs the evidence, and reaches its own conclusion. For instance, the district court referenced Senator Shooters allegations and the LaFaro video, but concluded, based on its review of the record, that the legislature was not motivated by discriminatory intent. Reagan , --- F.Supp.3d at ----, 2018 WL 2191664, at *41. The dissent simply reaches the opposite conclusion, based on the same evidence. Dissent at 748-49. Similarly, the dissent claims the district court was wrong to determine that a law is not racially motivated if any people of color support it. Dissent at 749. But that mischaracterizes the district courts holding. Rather, after reviewing the evidence in the record, the district court found that H.B. 2023 was supported by minority officials and organizations. Reagan , --- F.Supp.3d at ----, 2018 WL 2191664, at *41. The district court did not err in considering that fact, among others, in determining whether the supporters of H.B. 2023 were motivated by racial discrimination, and the district court need not have concluded, as does the dissent, that such evidence simply demonstrates that people of color have diverse interests. Dissent at 749. The Supreme Court has long held that an appellate court may not reject a district courts findings as clear error even when the court is convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Bessemer City , 470 U.S. at 574, 105 S.Ct. 1504. The dissents approach contradicts this rule.
Further, the dissent supports its conclusion that H.B. 2023 was enacted for the purpose of suppressing minority votes by creating its own per se rules that a legislatures anti-fraud motive is pretextual when there is no direct evidence of voter fraud, and that a legislatures partisan motives are evidence of racial discrimination. Dissent at 746-47, 748-49. The dissent cites no support for these new rules, likely because Supreme Court precedents contradict them: Crawford rejected the idea that actual evidence of voter fraud was needed to justify restrictions preventing voter fraud, 553 U.S. at 195-96 & nn.11-13, 128 S.Ct. 1610 ; and Cooper made clear plaintiffs must disentangle race from politics and prove that the former drove the legislature, 137 S.Ct. at 1473. The dissents attempt to reframe the evidence does not make the district courts resolution of this purely factual question clearly erroneous. Pullman-Standard , 456 U.S. at 287-88, 102 S.Ct. 1781.
IV
We now turn to DNCs challenges to the OOP policy. DNC argues that (1) the OOP policy violates the First and Fourteenth Amendment; and (2) the OOP policy violates § 2 of the VRA.
A
We begin with DNCs claims that the OOP policy violates the First and Fourteenth Amendment by imposing an unconstitutional burden under the Anderson / Burdick test.
1
As an initial matter, we agree with the district courts characterization of these claims as constituting a challenge to the precinct voter system. As discussed, most Arizona counties use a precinct-based system for the 20 percent of voters who vote in person on Election Day. In-person voters must cast their ballots in their assigned precinct, or their votes will not be counted. See Ariz. Rev. Stat. §§ 16-122, 16-135, 16-584 (codified in 1979); 1970 Ariz. Sess. Laws, ch. 151, § 64 (amending Ariz. Rev. Stat. § 16-895); Ariz. Rev. Stat. § 16-102 (1974). This rule does not apply to voters who cast their ballots in a county that use a vote center system, or who use other methods to vote.
On appeal, DNC argues that it is not challenging the rule requiring voting within a precinct, but rather Arizonas enforcement of the rule by not counting ballots cast in the wrong precinct (which it calls disenfranchisement). This argument is sophistical; it conflates the burden of complying with an election rule with the consequence of noncompliance. As the Supreme Court has recognized, a state has an obligation to structure and organize the voting process within the state through a system of election rules. Storer , 415 U.S. at 730, 94 S.Ct. 1274. For instance, states typically have election rules that require voters to register to vote and to cast their votes in person during the hours when polls are open. These rules impose certain minimal burdens on voters-the ordinary burdens of registering to vote and showing up on time. If voters fail to comply, they may be unable to vote or their ballots may not be counted. But it is the election rules that impose a burden on the voter-not the enforcement of those rules. Under DNCs theory, a state could not enforce even a rule requiring registration, because the states failure to count the vote of a non-registered voter would disenfranchise the noncompliant voter.
Rather than adopt DNCs fallacious approach, we are guided by the Supreme Courts approach in Crawford. Crawford considered a states election rule which provided that in-person voters who did not have valid photo ID, and did not thereafter verify their identities, were unable to have their votes counted. 553 U.S. at 186, 128 S.Ct. 1610. In conducting its Anderson / Burdick analysis, Crawford held that this photo ID rule imposed the burden of obtaining the requisite identification by making a trip to the [issuing agency], gathering the required documents, and posing for a photograph, id. at 198, 128 S.Ct. 1610, and potentially could impose a heavier burden on subgroups, such as the homeless or those lacking birth certificates, id. at 199, 128 S.Ct. 1610. The Courts analysis would make little sense if the relevant burden were the states enforcement of the photo ID rule; under that view, all voters would be subject to the same burden-that of having their non-compliant votes discounted. Accordingly, like the district court, we conclude that the appropriate analysis is whether compliance with the voter requirement in question-here, the requirement to vote in an assigned precinct-imposes an undue burden. See also Serv. Emps. Intl Union Local 1 v. Husted , 698 F.3d 341, 344 (6th Cir. 2012) (explaining that courts cannot absolve[ ] voters of all responsibility for voting in the correct precinct or correct polling place by assessing voter burden solely on the basis of the outcome-i.e. the states ballot validity determination).
2
Applying the Anderson / Burdick framework to the proper characterization of DNCs challenge, the district court found that the precinct voting rule did not unconstitutionally burden the right to vote. As with H.B. 2023, the district court first observed that Arizonas OOP policy has no impact on the vast majority of Arizona voters because 80 percent of them cast their ballots through early mail voting. Reagan , --- F.Supp.3d at ----, 2018 WL 2191664, at *21. The court also noted that the policy has no impact on voters in Graham, Greenlee, Cochise, Navajo, Yavapai, and Yuma counties, rural counties that adopted the vote center model. Id .
As to those few Arizonans who vote in person outside of the vote center counties, the district court found that the burden of voting in the correct precinct was minimal. The district court acknowledged that people who move frequently may fail to update their voter registration in a timely manner and, as a result, may not have their early ballot forwarded to their new address, and that changes in polling locations from election to election, inconsistent election regimes used by and within counties, and placement of polling locations all tend to increase OOP voting rates, as well as incorrect information provided by poll workers. Id . at ----, 2018 WL 2191664, at *22. The district court nevertheless concluded that the burdens imposed on voters to find and travel to their assigned precincts are minimal and do not represent significant increases in the ordinary burdens traditionally associated with voting. Id . at ----, 2018 WL 2191664, at *24. Moreover, the district court found, Arizona does not make it needlessly difficult for voters to find their assigned precincts, citing the myriad ways Arizona provides that information to voters: direct mailings, multiple state and county websites, town halls, live events, and social media and other advertising. Id . at ---- - ----, 2018 WL 2191664, at *23-24 This information is generally provided in both English and Spanish. Id . at ----, 2018 WL 2191664, at *24. Further, the court found that for those who find it too difficult to locate their assigned precinct, Arizona offers generous early mail voting alternatives. Id . In light of these measures, the district court did not clearly err in finding that the burden of voting in the correct precinct was minimal.
Considering the electorate as a whole, the court found that the number of out-of-precinct votes was small and ever-dwindling. Id . Only 14,885 of the 2,320,851 Arizonan votes cast in the 2008 general election were cast outside of the correct precinct-just 0.64 percent of total votes. Id . at ----, 2018 WL 2191664, at *21. That number dropped to 10,979 ballots in the 2012 general election-0.47 percent of total votes. Id . By the 2016 general election, only 3,970 votes were cast in the wrong precinct in Arizona-just 0.15 percent of the 2,661,497 total votes. Id . The small and decreasing number of out-of-precinct votes confirms the district courts conclusion that the burden of identifying the correct precinct is minimal.
We conclude that the district courts finding that the requirement to vote in the correct precinct is a minimal burden is not clearly erroneous. As the district court noted, precinct-based voting is an established method of conducting elections and is used in a majority of states. Id . at ----, 2018 WL 2191664, at *8 ; see also Serv. Emps. , 698 F.3d at 344 (precinct-voting system); Sandusky Cty. Democratic Party v. Blackwell , 387 F.3d 565, 568 (6th Cir. 2004) (per curiam) (One aspect common to elections in almost every state is that voters are required to vote in a particular precinct. Indeed, in at least 27 of the states using a precinct voting system, including Ohio, a voters ballot will only be counted as a valid ballot if it is cast in the correct precinct.). And a majority of the states that use precinct voting do not count out-of-precinct ballots. Reagan , --- F.Supp.3d at ----, 2018 WL 2191664, at *8. The requirement to use mail voting or locate the correct precinct and then travel to the correct precinct to vote does not represent a significant increase over the usual burdens of voting. Crawford , 553 U.S. at 198, 128 S.Ct. 1610.
DNCs arguments to the contrary are meritless. First, DNC argues that the burden imposed by Arizonas policy of not counting ballots cast outside of the proper precinct is not minimal because the ratio of Arizona voters who cast ballots outside of the correct precinct compared to total votes cast in-person on Election Day is higher than in any other state. This statistic is misleading, because the vast majority of Arizonans vote early by mail-not in-person on Election Day. Reagan , --- F.Supp.3d at ----, 2018 WL 2191664, at *21. More important, the relative difference between Arizona and other states does not shed any light on the only relevant issue: the size of the burden imposed by Arizonas precinct voter system.
Second, DNC points to the evidence in the record regarding the external factors that contribute to out-of-precinct voting in Arizona, such as residential mobility, polling place locations, and pollworker training, and argues that such external factors impose a heavier burden on minorities. But even if DNC presented evidence showing that the burden of finding the correct precinct fell more heavily on minorities than nonminorities, such evidence would not establish that the burden is any more than de minimis. DNC does not cite evidence that would allow a court to quantify either the magnitude of the burden on [any such] class of voters or the portion of the burden imposed on them that is fully justified, id . at 200, 128 S.Ct. 1610 ; nor does DNC directly contest the evidence on which the district court relied in determining the burden was minimal. For instance, the district court cited substantial evidence in the record showing that in Arizona counties with precinct-based systems, voters generally are assigned to precincts near where they live, and county officials consider access to public transportation when assigning polling places, and that Arizona voters also can learn of their assigned precincts in a variety of ways, by accessing multiple websites operated by Arizona or various counties, by being mailed notice of any changes in polling places, or by calling the county recorder, among numerous other methods. Reagan , --- F.Supp.3d at ----, 2018 WL 2191664, at *23. Further, the district court relied on a 2016 Survey of Performance of American Elections in which no Arizona respondents stated that it was very difficult to find their polling place, and 94 percent of Arizona respondents reported that it was very easy or somewhat easy to find their polling place. Id . Accordingly, we decline the invitation by DNC and the dissent to reweigh the same evidence considered by the district court and reach the opposite conclusion. See Bessemer City , 470 U.S. at 573, 105 S.Ct. 1504. Instead, we affirm the district courts determination that the Arizona precinct voter rule imposed only minimal burdens.
3
We next consider the district courts conclusion that Arizona had important regulatory interests for requiring precinct-based voting. The court found that this precinct system serves an important planning function by allowing counties to estimate the number of voters who may be expected at any particular precinct, allowing for better allocation of resources and personnel. Reagan , --- F.Supp.3d at ----, 2018 WL 2191664, at *24. A well-run election increases voter confidence and reduces wait times. Id . Second, the precinct voting system ensures that each voter receives a ballot reflecting only the races for which that person is entitled to vote, which promotes voting for local candidates and issues and helps make ballots less confusing by not providing voters with ballots that include races for which they are not eligible to vote. Id .
The court concluded that the OOP policy was sufficiently justified by Arizonas important interests in light of the minimal burdens it imposes, and held that Arizonas practice did not need to be the narrowest means of enforcement. Id . at ---- - ----, 2018 WL 2191664, at *24-26. The court therefore rejected DNCs arguments that Arizona should be required to adopt a more narrowly tailored rule and partially count ballots that were cast out-of-precinct, i.e., counting only the offices for which the OOP voter is eligible to vote. Id . at ----, 2018 WL 2191664, at *25. Moreover, the court concluded that such a requirement would have significant impacts. If Arizona no longer enforced in-precinct voting, the court reasoned, people would have far less incentive to vote in their assigned precincts and might decide to vote elsewhere. Id . at ----, 2018 WL 2191664, at *25. Voters could also be nefariously directed to vote elsewhere, id ., as detailed in N.C. State Conference of NAACP v. McCrory , 182 F.Supp.3d 320, 461 (M.D.N.C. 2016), revd on other grounds , 831 F.3d 204 (4th Cir. 2016). Further, partially counting ballots would burden candidates for local office, who would have to persuade voters to vote in-precinct. Reagan , --- F.Supp.3d at ----, 2018 WL 2191664, at *25. Finally, it would impose a significant financial and administrative burden on Maricopa and Pima Counties because of their high populations. Id . Accordingly, the court concluded that Arizonas rejection of ballots cast out-of-precinct does not violate the First and Fourteenth Amendments.
We agree with the district courts analysis. The interests served by precinct-based voting are well recognized. As the Sixth Circuit has explained:
The advantages of the precinct system are significant and numerous: it caps the number of voters attempting to vote in the same place on election day; it allows each precinct ballot to list all of the votes a citizen may cast for all pertinent federal, state, and local elections, referenda, initiatives, and levies; it allows each precinct ballot to list only those votes a citizen may cast, making ballots less confusing; it makes it easier for election officials to monitor votes and prevent election fraud; and it generally puts polling places in closer proximity to voter residences.
Sandusky Cty. Democratic Party , 387 F.3d at 569.
DNC does not dispute these legitimate interests, but argues that the OOP policy is not justified because it is administratively feasible to count ballots cast out-of-precinct, pointing to 20 other states which partially count out-of-precinct ballots. But restrictions such as the OOP policy that impose minimal burdens on voters rights need not be narrowly tailored, see Burdick , 504 U.S. at 433, 112 S.Ct. 2059, and thus Arizona is not required to show that its electoral system is the one best tailored to achieve its purposes. Dudum , 640 F.3d at 1114. Moreover, as the district court pointed out, DNCs requested relief essentially would transform Arizonas precinct-based counties, including its two most populous, into quasi-vote-center counties. Reagan , --- F.Supp.3d at ----, 2018 WL 2191664, at *26. The mere fact that a minority of jurisdictions adopt a different system does not mean that Arizonas choice is unjustified. Where, as here, the plaintiff effectively ask[s] the court to choose between electoral systems, we ordinarily reject such challenges. See Dudum , 640 F.3d at 1115. [A]bsent a truly serious burden on voting rights, we have held that we must have respect for governmental choices in running elections, particularly where the challenge is to an electoral system, as opposed to a discrete election rule (e.g., voter ID laws, candidacy filing deadlines, or restrictions on what information can be included on ballots). Id. at 1114-15 (emphasis omitted). As we have recognized, such variations are the product of our democratic federalism, a system that permits states to serve as laboratories for experimentation to devise various solutions where the best solution is far from clear. Pub. Integrity All. , 836 F.3d at 1028 (quoting Ariz. State Legislature v. Ariz. Indep. Redistricting Commn , --- U.S. ----, 135 S.Ct. 2652, 2673, 192 L.Ed.2d 704 (2015) ).
DNC also contends that there is insufficient evidence that more voters will vote out-of-precinct if Arizona began partially counting out-of-precinct ballots. But just as with fraud prevention, Arizona does not need to produce elaborate, empirical verification of the weightiness of [its] asserted justifications. Timmons v. Twin Cities Area New Party , 520 U.S. 351, 364, 117 S.Ct. 1364, 137 L.Ed.2d 589 (1997) ; see also Munro , 479 U.S. at 195, 107 S.Ct. 533 (To require States to prove actual voter confusion, ballot overcrowding, or the presence of frivolous candidacies as a predicate to the imposition of reasonable ballot access restrictions would invariably lead to endless court battles over the sufficiency of the evidence marshaled by a State to prove the predicate.). Courts wisely do not require that a States political system sustain some level of damage before it can impose reasonable restrictions on the electoral process. Munro , 479 U.S. at 195, 107 S.Ct. 533. Therefore, we affirm the district courts holding that the OOP policy is valid under the Anderson / Burdick framework.
B
Finally, we address DNCs claim that the OOP policy violates § 2 of the VRA.
As noted above, at the first step, DNC must carry its burden of showing that the challenged practice (here Arizonas requirement that in-person voters vote in the correct precinct) gives members of a protected class less opportunity than other members of the electorate both to participate in the political process and to elect representatives of their choice. Chisom , 501 U.S. at 397, 111 S.Ct. 2354 (quoting 52 U.S.C. § 10301(b) ).
The district court held that DNC did not carry its burden at the first step of its § 2 claim. Although finding that minorities are over-represented among the small number of voters casting OOP ballots, the court also found that out-of-precinct ballots represent ... a small and ever-decreasing fraction of the overall votes cast in any given election. Reagan , --- F.Supp.3d at ---- - ----, 2018 WL 2191664, at *34-35. As noted above, only 3,970 out of 2,661,497 total votes, or 0.15 percent, were cast in the wrong precinct during the 2016 general election. Id . at ----, 2018 WL 2191664, at *35. Further, as in its Anderson / Burdick analysis, the court found that the burden of identifying the correct precinct was minimal. The court noted that DNC had not challenged the manner in which Arizona counties allocate and assign polling places or Arizonas requirement that voters re-register to vote when they move. Id . Nor had DNC claimed that there was evidence of a systemic or pervasive history of disproportionately giving minority voters misinformation as to precinct locations, or evidence that precincts tended to be located in areas where it would be more difficult for minority voters to find them, as compared to non-minority voters. Id . Because the number of votes cast out of precinct by any voters was small and decreasing, and because the burden of finding the correct precinct was minimal (and the state had not made the burden more difficult for minorities), the district court concluded that the OOP policy did not give minority voters less opportunity than the rest of the electorate to participate in the political process and elect their preferred representatives.
Id . at ----, 2018 WL 2191664, at *36. Therefore, the court concluded that DNC had failed to carry its burden at the first step of § 2.
The district court did not clearly err in reaching this conclusion. Although DNC argues that minorities are more likely to cast out-of-precinct ballots, and that there have been close elections where out-of-precinct ballots could have made a difference, the fact that a practice falls more heavily on minorities is not sufficient to make out a § 2 violation. Salt River , 109 F.3d at 595. Rather, there must be a showing that the challenged practice causes a material impact on the opportunity provided to minorities to participate in the political process and to elect representatives of their choice. [U]nless minority group members experience substantial difficulty electing representatives of their choice, they cannot prove that a challenged electoral mechanism impairs their ability to elect. Gingles , at 48 n.15, 106 S.Ct. 2752 (quoting 52 U.S.C. § 10301(b) ). A precinct voting system, by itself, does not have such a causal effect. Such a common electoral practice is a minimum requirement, like the practice of registration, that does not impose anything beyond the usual burdens of voting. Crawford , 553 U.S. at 198, 128 S.Ct. 1610. As with other laws that impose such minimal burdens, a court can reasonably conclude that this background requirement, on its own, does not cause any particular group to have less opportunity to influence the outcome of an election. Chisom , 501 U.S. at 397, 111 S.Ct. 2354. Indeed, DNC has not adduced any evidence to the contrary.
In arguing that the district court erred, the dissent relies primarily on its erroneous view that any disparate impact on minorities constitutes a violation of step one of § 2. See supra at 714-15 n.18. Based on this misunderstanding, the dissent argues that the district court legally erred in determining that a critical mass of minority voters must be disenfranchised before § 2 is triggered. Dissent at 735. But it is the dissent that errs in arguing that evidence that an election rule has any disparate impact on minorities is sufficient to succeed on a § 2 claim. Dissent at 735-36. As the Supreme Court pointed out, to meet the language of § 2, all such claims must allege an abridgement of the opportunity to participate in the political process and to elect representatives of ones choice, Chisom , 501 U.S. at 398, 111 S.Ct. 2354, and must prove more than the mere loss of an occasional election. Gingles , 478 U.S. at 51, 106 S.Ct. 2752. Here, the district court was faithful to the language of § 2. 52 U.S.C. § 10301 (b).
This is not to say that plaintiffs could never carry their burden of showing a precinct-based voting system gave minority voters less opportunity. For instance, it is possible that a state could implement such a system in a manner that makes it more difficult for a significant number of members of a protected group to discover the correct precinct in order to cast a ballot. This could occur, for instance, if the state did not provide necessary information in the language best understood by a language minority. But here, the district court found that DNC did not present any evidence of this sort of practice. Reagan , --- F.Supp.3d at ---- - ----, 2018 WL 2191664, at *23-24. DNC does not contest this finding on appeal, nor does it challenge any other elements of Arizonas precinct voting system, such as individual counties location of polling places, as unlawful.
Therefore, the district court correctly determined that the precinct voter system did not lessen the opportunities of minorities to participate in the political process and to elect representatives of their choice, and did not clearly err in rejecting DNCs argument that it need not provide evidence of this factor so long as there is evidence of some disparity in out-of-precinct voting.
V
After an exhaustive ten-day bench trial involving the testimony of 51 witnesses and over 230 exhibits, the district court made two key factual findings. First, it found that neither Arizonas precinct voter system nor H.B. 2023 imposed more than a minimal burden on voters or increased the ordinary burdens traditionally associated with voting. Second, it found that the Arizona state legislature was not motivated by a discriminatory purpose in enacting H.B. 2023. These findings, which were not clearly erroneous, effectively preclude DNCs claims. The finding that Arizonas two election practices place only the most minimal burden on voters necessarily leads to the conclusion that the practices did not result in less opportunity for minority voters to participate in the political process and elect representatives of their choice for purposes of § 2 of the VRA. Further, in light of the courts finding that the burden imposed on voters by the two election practices was minimal, Arizona easily carried its burden under the Anderson / Burdick test to show that its election practices were reasonably tailored to achieve the States important regulatory interests. Finally, the courts finding that the legislature had no discriminatory purpose in enacting H.B. 2023 effectively eviscerates DNCs Fifteenth Amendment claim. Accordingly, we affirm the district courts determination that Arizonas election practices did not violate the First and Fourteenth Amendments or § 2 of the VRA, and H.B. 2023 did not violate the Fifteenth Amendment.
AFFIRMED .
The appellants here (plaintiffs below) are the Democratic National Committee, the Democratic Senatorial Campaign Committee, and the Arizona Democratic Party. For convenience, we refer to the appellants as DNC.
The appellees here (defendants below) are Arizona Secretary of State Michele Reagan, in her official capacity, and Arizona Attorney General Mark Brnovich, in his official capacity. The intervenor-defendants/appellees are the Arizona Republican Party; Debbie Lesko, an Arizona member of the U.S. House of Representatives; Tony Rivero, a member of the Arizona House of Representatives; Bill Gates, a member of the Maricopa County Board of Supervisors; and Suzanne Klapp, a City of Scottsdale Councilwoman and Precinct Committeewoman. For convenience, we refer to the appellees as Arizona.
A qualified elector is any person at least eighteen years of age on or before the date of the election who is properly registered to vote. Ariz. Rev. Stat. § 16-121(A).
Although Feldman III referenced the dissent in Feldman I , it did not incorporate it nor adopt any specific reasoning from the dissenting opinion, Because Feldman III did not provide a fully considered appellate ruling on an issue of law, we are guided by our general rule that decisions at the preliminary injunction phase do not constitute the law of the case. Ranchers Cattlemen Action Legal Fund United Stockgrowers of Am. v. U.S. Dept. of Agric. , 499 F.3d 1108, 1114 (9th Cir. 2007) (first quoting 18 Charles Alan Wright & Arthur R. Miller Federal Practice and Procedure § 4478.5 (2002) ; then citing S. Or. Barter Fair v. Jackson County , 372 F.3d 1128, 1136 (9th Cir. 2004) ). Moreover, the Supreme Courts immediate stay of Feldman III s injunction pending appeal undercut[s] [Feldman III s] theory or reasoning to a significant extent. Miller v. Gammie , 335 F.3d 889, 900 (9th Cir. 2003) (en banc). Therefore, we conclude that Feldman III s reference to the dissent in Feldman I does not make that dissent law of the case or of the circuit.
After the district court rendered its decision on the merits and final judgment, the en banc panel dismissed the interlocutory appeals of the denied preliminary injunctions as moot.
We deferred consideration of DNCs motion for an injunction pending appeal. Because we affirm the district court, we now DENY that motion as moot.
DNC does not specifically and distinctly argue that H.B. 2023 was enacted with a discriminatory purpose in violation of § 2 of the VRA, and therefore we do not consider this issue. Greenwood v. FAA , 28 F.3d 971, 977 (9th Cir. 1994).
DNC also identified as a potential subgroup voters who are unfamiliar with the voting process and therefore do not vote without assistance or tend to miss critical deadlines. Reagan , --- F.Supp.3d at ----, 2018 WL 2191664, at *14. The district court found that remembering relevant deadlines was not a burden on the right to vote, and therefore not a basis for finding a special burden. Id .
The district court expressed concerns about the credibility of the deposition testimony of a deceased witness, Victor Vasquez. Reagan , --- F.Supp.3d at ----, 2018 WL 2191664, at *16. When findings are based on determinations regarding the credibility of witnesses, Rule 52(a) demands even greater deference to the trial courts findings. Bessemer City , 470 U.S. at 575, 105 S.Ct. 1504.
Of course, had the husband not forgot, but had delivered the vote, there would have been no violation of H.B. 2023, which exempts family members. Ariz. Rev. Stat. § 16-1005(H)-(I).
Given that DNC did not meet its burden of showing how large the subgroup of specially burdened voters might be, see Democratic Party of Haw. , 833 F.3d at 1122-24, its unsupported claims that Arizonas many accommodations cannot adequately serve an unquantified number of voters are unpersuasive.
DNCs reliance on a vacated Sixth Circuit opinion is unpersuasive. See Ohio State Conference of the NAACP v. Husted , 768 F.3d 524 (6th Cir. 2014), vacated , No. 14-3877, 2014 WL 10384647 (6th Cir. Oct. 1, 2014). The Sixth Circuit has explained that any persuasive value in Ohio State Conference s analysis of this point is limited to cases involving significant although not severe burdens, Ohio Democratic Party v. Husted , 834 F.3d 620, 635 (6th Cir. 2016) (quoting Ohio State Conference , 768 F.3d at 539 ), and not those involving minimal burdens, id. (explaining that the district courts reliance on Ohio State Conference was not sound).
The district court took judicial notice of the report of the Commission on Federal Election Reform chaired by former President Jimmy Carter and former Secretary of State James A. Baker III. Reagan , --- F.Supp.3d at ---- n.12, 2018 WL 2191664, at *20 n.12. The district court noted that the report was cited favorably in Crawford , which remarked that [t]he historical perceptions of the Carter-Baker Report can largely be confirmed. 553 U.S. at 194 n.10, 128 S.Ct. 1610. The relevant portion of the report provides:
Fraud occurs in several ways. Absentee ballots remain the largest source of potential voter fraud.... Absentee balloting is vulnerable to abuse in several ways: ... Citizens who vote at home, at nursing homes, at the workplace, or in church are more susceptible to pressure, overt and subtle, or to intimidation. Vote buying schemes are far more difficult to detect when citizens vote by mail. States therefore should reduce the risks of fraud and abuse in absentee voting by prohibiting third-party organizations, candidates, and political party activists from handling absentee ballots.
Building Confidence in U.S. Elections § 5.2 (Sept. 2005), https://www.eac.gov/assets/1/6/Exhibit%20M.PDF. The district court did not abuse its discretion in taking judicial notice of the report publicly available on the website of the U.S. Election Assistance Commission. See Anderson v. Holder , 673 F.3d 1089, 1094 n.1 (9th Cir. 2012) (We may take judicial notice of records and reports of administrative bodies.) (internal quotation marks and citation omitted). There is no dispute as to the reports authenticity or that it contained the cited recommendation, and DNC was not unfairly surprised, given that counsel indicated at trial that he was well acquainted with it and its contents.
The Fifteenth Amendment provides that [t]he right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude, and authorizes Congress to enforce the provision by appropriate legislation. U.S. Const. amend. XV.
As explained in Gingles , the Senate Factors include the extent of any history of official discrimination, the use of election practices or structures that could enhance the opportunity for discrimination, the extent to which voting is racially polarized, and the extent to which minorities bear the effects of discrimination in education, employment and health. 478 U.S. at 36-37, 106 S.Ct. 2752. The factors are not exclusive, and the question whether the political processes are equally open depends upon a searching practical evaluation of the past and present reality, and on a functional view of the political process.Id . at 45, 106 S.Ct. 2752 (quoting S. Rep. No. 97-417, at 30 (1982), as reprinted in 1982 U.S.C.C.A.N. 177, 208). Because the essence of a § 2 claim is that a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives, 478 U.S. at 47, 106 S.Ct. 2752, if a court determines that a challenged practice does not cause unequal opportunities, it need not consider the practices interaction with the Senate Factors. Because we affirm the district courts finding that DNC failed to carry its burden of satisfying step one of the § 2 analysis for either H.B. 2023 or the OOP policy, we do not review in detail its factual findings that DNC also failed to carry its burdens at step two.
The majority also rejected Justice Scalias erroneous assumption that a small group of voters can never influence the outcome of an election, Chisom , 501 U.S. at 397 n.24, 111 S.Ct. 2354, although it did not explain what evidence would be necessary to establish that an election practice that affected only a small group of voters deprived minorities of an equal opportunity to elect candidates of their choice.
The VRA itself states that nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population. 52 U.S.C. § 10301(b).
Directly contrary to this longstanding precedent, the dissent insists that if a challenged practice disproportionately impacts members of a protected class, then it per se constitutes a violation under the first step of the § 2 test. See Dissent at 734-35 (arguing that because DNC showed that minorities are over-represented among those who cast out-of precinct ballots, [t]he analysis at step one of the § 2 results test ought to end at this point); id . at 735 (asserting that the district courts finding that OOP ballot rejection has no meaningfully disparate impact on the opportunities of minority voters to elect their preferred representatives is irrelevant to step one of § 2s results test, which focuses solely on the differences in opportunity and effect enjoyed by groups of voters); id . at 735 (arguing that under § 2, a state must correct any disparities that can be attributed to socioeconomic factors); id . at 751-52 (arguing that because H.B. 2023 imposes a disparate burden on members of protected classes, it meets step one). The dissents argument is not only contrary to our precedent, but is inconsistent with the plain language of § 2, and to the Supreme Courts interpretation of the VRA. Gingles , 478 U.S. at 51, 106 S.Ct. 2752 (§ 2 plaintiffs must show more than the mere loss of an occasional election); Chisom , 501 U.S. at 398, 111 S.Ct. 2354 (For all such [§ 2] claims must allege an abridgement of the opportunity to participate in the political process and to elect representatives of ones choice.).
Our two-step analysis, derived from the language of § 2, and Supreme Court precedent, is consistent with the two-step framework adopted by the Fourth, Fifth, and Sixth Circuits (and, in part, the Seventh Circuit):
[1] [T]he challenged standard, practice, or procedure must impose a discriminatory burden on members of a protected class, meaning that members of the protected class have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice, [and]
[2] [T]hat burden must in part be caused by or linked to social and historical conditions that have or currently produce discrimination against members of the protected class.
League of Women Voters of N.C. v. North Carolina , 769 F.3d 224, 240 (4th Cir. 2014) (citations and internal quotation marks omitted); Veasey v. Abbott (Veasey I ), 830 F.3d 216, 244 (5th Cir. 2016) ; Ohio Democratic Party , 834 F.3d at 637 ; Frank , 768 F.3d at 754-55 (adopting the test for the sake of argument). The first prong tracks the language of § 2, as interpreted by the Supreme Court, and the second prong implicates the Senate Factors.
As noted above, supra at 712-12 n.15, because the district court correctly determined that H.B. 2023 does not satisfy step one of the § 2 analysis, we need not evaluate the district courts analysis of these factors in detail. Nevertheless, the district courts factual conclusions were not clearly erroneous, and as explained below, see infra at 729-30 n.32, we reject the dissents factual reevaluations.
In arguing that H.B. 2023 had a disparate impact on the ability of minorities to participate in the political process, the dissent fails to address this key fact.
While DNC cites extensively to the dissent in Chisom in arguing that they need not prove members of a protected class have less opportunity to elect representatives of their choice, we are bound by the majority, which rejected this argument. 501 U.S. at 397 & n.24, 111 S.Ct. 2354.
The district court found that the narration by Maricopa County Republican Chair A.J. LaFaro contained a narration of Innuendos of illegality ... [and] racially tinged and inaccurate commentary by ... LaFaro. Reagan , --- F.Supp.3d at ----, 2018 WL 2191664, at *38. The video was first introduced in 2014, but became prominent in the debates over H.B. 2023. Id . at ----, 2018 WL 2191664, at *39.
DNC relies on Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission , --- U.S. ----, 138 S.Ct. 1719, 201 L.Ed.2d 35 (2018), for the principle that courts should put more weight on discriminatory statements of individual decisionmakers, but that case is not on point. In holding that statements of individual commissioners were relevant to determine whether a law intentionally discriminated on the basis of religion, the Court distinguished the adjudicatory context from the legislative context. See id. at 1730. Masterpiece Cakeshop explained that while [m]embers of the Court have disagreed on the question whether statements made by lawmakers may properly be taken into account in determining whether a law intentionally discriminates on the basis of religion, the remarks in this case were made in a very different context-by an adjudicatory body deciding a particular case. Id . Because our case involves a legislature enacting a general statute, rather than adjudicating a specific case, Masterpiece Cakeshop is not applicable.
Contrary to the dissent, the district court did not find that partisan self-interest [ ] absolve[d] discriminatory intent. Dissent at 748. Rather, the district court determined that the Arizona legislature did not act with discriminatory intent, and passed H.B. 2023 in spite of any potential disparate-impact on minority voters, not because of it. Reagan , --- F.Supp.3d at ----, 2018 WL 2191664, at *41.
To support its claim, DNC points to Representative Ruben Gallegos statements to the DOJ that S.B. 1412 was motivated by discriminatory intent. But Gallego opposed S.B. 1412, and [t]he Supreme Court has ... repeatedly cautioned-in the analogous context of statutory construction-against placing too much emphasis on the contemporaneous views of a bills opponents in determining a legislatures intent. Veasey I , 830 F.3d at 234 (quoting Butts v. City of New York , 779 F.2d 141, 147 (2d Cir. 1985) ). DNC also points to statements by Amy Chan (formerly Amy Bjelland) to the DOJ, but the district court reasonably interpreted her statements as merely explaining that the impetus for S.B. 1412 was an accusation of voter fraud in San Luis, a predominately Hispanic area in the southern portion of Arizona. Feldman III , 843 F.3d at 384.
This is a misnomer. A state disenfranchises voters (for example, pursuant to a felon disenfranchisement law) by depriving certain individuals of their right to vote, not by requiring voters to comply with an election rule in order to have their votes counted. As the Supreme Court has explained, an election rule, such as the requirement to have a valid photo ID in order to vote, may be valid, even if a voters noncompliance with such a rule means that the voters ballot will not be counted. Crawford , 553 U.S. at 187, 189, 128 S.Ct. 1610.
The dissent offers similarly misleading statistics to support its assertion that Arizona voters are far likelier to vote [out of precinct] than voters of other states. Dissent at 732. The dissents graph, Dissent at 732-33, shows only that the small subset of Arizona voters who cast their ballots in-person on Election Day are more likely to vote outside their precinct than voters in other states. Dissent at 732. The vast majority of Arizona voters, however, vote early by mail. Reagan , --- F.Supp.3d at ----, 2018 WL 2191664, at *21. Further, the dissent mentions the total number of votes cast out of precinct in the 2012 election, but not the more recent data from the 2016 election, which supports the district courts conclusion that the number of votes cast out of precinct is an ever-decreasing fraction of the overall votes cast in any given election. Reagan , --- F.Supp.3d at ----, 2018 WL 2191664, at *35.
As the district court noted, DNC did not challenge the manner in which individual counties locate polling places, or the manner in which Arizona trains its poll workers or informs voters of their assigned precincts, thus undercutting any argument that such practices violated § 2. Reagan , --- F.Supp.3d at ----, 2018 WL 2191664, at *23.
The dissent also challenges the wisdom of Arizonas OOP policy, labeling as illogical Arizonas concern that without the policy voters may not have an incentive to identify and vote in their correct precinct. Dissent at 745-46. In reaching this conclusion, the dissent relies only on its own view of proper policy, a view that contradicts a majority of states, which each adopt the same approach as Arizona. Reagan , --- F.Supp.3d at ----, 2018 WL 2191664, at *8. We therefore reject this argument.
For example, among all counties that reported out-of-precinct ballots in the 2016 general election, roughly 99 percent of Hispanic, African American, and Native American voters cast ballots in the correct precinct, while the other 1 percent voted in the wrong precinct. Reagan , --- F.Supp.3d at ----, 2018 WL 2191664, at *34. By comparison, 99.5 percent of non-minority voters voted in the correct precinct, with 0.5 percent casting out-of-precinct ballots. Id . While this data shows, as Arizona notes, that minority voters were twice as likely to cast OOP ballots as non-minority voters, the relative percentages of voters in each group who vote in the correct and incorrect precincts are far more meaningful. See Frank , 768 F.3d at 752 n.3.
Having reached this conclusion, the district court did not need to reach step two, but nonetheless analyzed both challenged election practices together and found that, although some of the Senate Factors were present, DNCs causation theory was too tenuous to meet its burden. Reagan , --- F.Supp.3d at ---- - ----, 2018 WL 2191664, at *36-40. These findings are not clearly erroneous. In arguing to the contrary, the dissent again engages in appellate fact-finding, emphasizing some parts of the extensive record and ignoring others. For example, the district court found that DNC did not carry its burden of proving that there is a significant lack of responsiveness on the part of elected officials to the particularized needs of the members of the minority groups. Id . at ----, 2018 WL 2191664, at *27. This conclusion is supported by substantial evidence in the record, including evidence of outreach efforts by the Arizona Citizens Clean Elections Commission to increase minority voter education and participation, and evidence that Arizona had the sixteenth-highest minority representation ratio in the country. Although the dissent points to other evidence in the record, e.g., evidence that Arizona has the fourth-poorest health insurance coverage for children, and is ranked second-lowest overall per-pupil spending for Fiscal Year 2014, Dissent at 702-03, our proper role is to determine whether the district courts account of the evidence is plausible in light of the record viewed in its entirety, Bessemer City , 470 U.S. at 574, 105 S.Ct. 1504, not to substitute our own evaluation of the record. Here, the district courts view of the evidence was clearly permissible, and we therefore disregard the dissents impermissible reweighing of the evidence.
Of course, as explained above, supra at 724-25 n.27, an election rule requiring voters to identify their correct precinct in order to have their ballots counted does not constitute a disenfranchisement of voters.
In the alternative, the dissent argues that in this instance, a critical mass has been shown. Dissent at 735 n.2. The record provides no support for this statement. Rather, the evidence shows that approximately 99 percent of Hispanic, African American, and Native American voters cast ballots in their correct precinct. Reagan , --- F.Supp.3d at ----, 2018 WL 2191664, at *34. In 2016 only 3,970 votes were cast out of precinct-0.15 percent of the total votes cast-and the record is silent on what number of those ballots were cast by minority voters. Reagan , --- F.Supp.3d at ---- - ----, 2018 WL 2191664, at *34-35. The dissents only support for its claim is its brief reference to the dissent in Feldman II , 842 F.3d at 634, which in turn references two close primary elections in Arizona (one Republican, one Democrat) in 2012 and 2014, and five other close races over the course of the past 100 years (from 1916 to 2012). Dissent at 735-36 n.2. This certainly does not compel a conclusion that the district courts view of the relevant evidence was clearly erroneous.