On Monday, a limited en banc panel* of the Ninth Circuit ruled (in Democratic National Committee v. Hobbs) that (1) Arizona’s policy of not counting ballots cast in the wrong precinct has a discriminatory impact on minority voters in violation of the “results test” of section 2 of the Voting Rights Act; (2) an Arizona law, enacted in 2016, that makes it illegal to collect and deliver another person’s early-vote ballot also violates the results test of section 2; and (3) the 2016 law was enacted with discriminatory intent and thus also violates the “intent test” of section 2 and the Fifteenth Amendment. The en banc panel, disagreeing with Judge Sandra Ikuta’s ruling for the majority on the original three-judge appellate panel, reversed the district court’s judgment in favor of Arizona. (The district judge, by the way, was an Obama appointee and a Republican, selected by President Obama in consultation with Arizona’s senators.)
The en banc panel divided 7-4 on the first two issues and 6-4 on the third. The division was straight along ideological lines: All of the judges in the majority were appointed by Democratic presidents. (Judge Paul Watford declined to join the ruling on the third issue.) All of the judges in dissent were appointed by Republican presidents.
The opinions in the case run 239 pages—113 pages for Judge William Fletcher’s majority opinion, 27 pages for Judge Diarmuid O’Scannlain’s dissent, 26 pages for the body of Judge Jay Bybee’s dissent and some 70-plus pages for accompanying statutory appendices. (Judges O’Scannlain and Bybee joined each other’s dissents and were also joined by Judges Clifton and Callahan.) I won’t claim to have digested the opinions already, and I doubt that I could summarize them concisely if I had.
In order to illustrate the divide between the majority and the dissenters, I’ll offer an overview of the dissents.
O’Scannlain dissent (my summary/paraphrase):
(1) The district court properly found that the DNC failed to carry its burden of showing that Arizona’s policy of not counting ballots cast out of precinct imposes a discriminatory burden on minority voters. Where a challenged election practice is not burdensome or the state offers easily accessible alternative means of voting, a court can reasonably conclude that the practice does not impose an unlawful burden even it if has a disproportionate impact. (Pp. 122-126.) The district court properly found that Arizona’s policy of not counting out-of-precinct ballots did not cause the identified disparities in out-of-precinct voting. The majority fails to recognize the distinction between the burden of complying with the precinct-based system and the consequence of failing to do so. (Pp. 126-129.)
(2) The district court properly found that the DNC failed to establish that the ballot-collection law imposed a discriminatory burden on minority voters. (Pp. 130-135.)
(3) The district court properly found that the Arizona legislature was not motivated by a desire to suppress minority voters when it enacted the ballot-collection law and that it was instead motivated by a sincere belief that mail-in ballots lacked adequate safeguards. The majority fails to distinguish between racial motives and partisan motives, and it wrongly assumes that a legislature’s desire to prevent voter fraud is pretextual when there is no direct evidence of voter fraud in the legislative record. (Pp. 135-140.)
Bybee dissent (my summary/paraphrase):
The Arizona rules challenged by the DNC are part of an electoral process that is structured to maintain the integrity of the democratic system. Time, place, and manner restrictions stand on different footing from status-based restraints on vote qualifications and legislative malapportionment. The majority has no limiting principle for identifying a de minimis effect in a facially neutral time, place, or manner rule, and it turns section 2 of the Voting Rights Act into a “one-minority-vote-veto rule.” (Pp. 141-146.)
Arizona’s policy of not counting votes cast out of precinct is a standard feature of American democracy. Some 26 states and the District of Columbia have such a rule. (Pp. 147-151.)
The majority’s holding that Arizona must accept the ballots of out-of-precinct voters, at least for national and statewide offices, has unintended consequences that will skew future elections and lead to minority ballots being underrepresented in local races. (Pp. 151-156.)
There is no right to vote by absentee ballot. Arizona’s 2016 law against the unauthorized collection of early ballots is substantially similar to the laws in effect in many other states. (Pp. 156-161.) It also follows precisely the anti-fraud recommendation of the bipartisan commission on federal election reform co-chaired by Jimmy Carter and James Baker. (Pp. 161-163.) Organized absentee ballot fraud isn’t a doomsday hypothetical. It happened as recently as 2018 in North Carolina. Arizona can act to prevent absentee ballot fraud before its elections have been tainted by it. (Pp. 164-166.)
This might not be the last you hear of this case. Liberal election-law expert Rick Hasen says that he “strongly suspect[s] that the Supreme Court will take this case” for review. (In an earlier phase of the case, the Supreme Court in 2016 overturned the Ninth Circuit’s preliminary injunction against the ballot-collection law.)
* The limited en banc panel—consisting of the chief judge and ten active judges drawn randomly—is unique to the Ninth Circuit and exists to avoid the unwieldiness of review by the full 29-member court. Update: A reader inquires how Judge O’Scannlain ended up on the panel, given that he took senior status at the end of 2016. I gather that the answer is that he was on an en banc panel in 2016 in the same case. The Ninth Circuit rules provide for the same en banc panel “for each case or group of related cases taken en banc,” and that rule evidently has been applied so that the en banc panel is (with one substitution that the opinion addresses in a footnote) the same as for that 2016 ruling.