Crum: The Fifteenth Amendment and DNC v. Hobbs

The following is the fifth and final in a series of guest posts (Posts 1, 2, 3, and 4) by Travis Crum on the 150th anniversary of the 15th amendment:

In my posts this week, I’ve made the case for treating the Fifteenth Amendment as an independent constitutional provision and why the colorblind approach developed in equal protection jurisprudence is an ill-fit in voting rights cases.

For my final post, I’ll address the en banc Ninth Circuit’s serendipitously timed decision in DNC v. Hobbs, holding that Arizona violated the Fifteenth Amendment. In case you who haven’t read the 432-page opinion, here’s the basic facts as they relate to the Fifteenth Amendment holding. For brevity’s sake, I’m skipping over another invalidated Arizona law concerning out-of-precinct ballots and the court’s analysis of Section 2 of the VRA.

For years, Arizona permitted third parties to collect early ballots and deliver them by mail or to a polling place. Historically, minority voters were far more likely than white voters to rely on third-party ballot collectors due to unreliable mail service, inflexible work schedules, and transportation problems. And like in many jurisdictions, voting in Arizona is racially polarized.

In 2011, Arizona passed a law requiring a third-party ballot collector to provide a photo identification if they turned in more than ten ballots and that, after each election, a statewide public report be issued listing ballot collectors’ information. Back in 2011, Arizona was still a covered jurisdiction and had to apply for preclearance. After the DOJ requested more information about Arizona’s law, the state legislature repealed it and the preclearance request was withdrawn.

A week before Shelby County was decided in 2013, Arizona adopted another law that totally banned partisan ballot collectors and required non-partisan ballot collectors to complete an affidavit stating that they had returned the ballot. After more than 140,000 voters signed a petition to hold a referendum on the law at the next election, the state legislature repealed it.

Then, in 2016, Arizona passed H.B. 2023, the statute at issue in Hobbs. H.B. 2023 criminalizes the collection of another person’s early ballot, with certain exceptions for family members and postal workers. Arizona passed H.B. 2023 notwithstanding the absence of “evidence of any fraud in the long history of third-party ballot collection in Arizona” and “despite the extensive statutory provisions already criminalizing fraud” related to ballot collection.

As the Ninth Circuit explained, two incidents motivated the Republican state legislators who supported H.B. 2023. The first was “unfounded and often farfetched allegations of ballot collection fraud” made by a former state senator who had introduced the 2011 bill “following a close, racially polarized election” in his district. The second was a “racially tinged video” produced by the Maricopa County Republican Party Chair showing “a man of apparent Hispanic heritage appearing to deliver early ballots.” The video included voice-over commentary stating that “the man was … stuff[ing] the ballot box” and that, although it was unknown whether the man “was an illegal alien, a dreamer, or citizen,” he was a “thug.” There was no evidence that the man delivering the ballots was engaged in illegal activities.

In a 6-1-4 decision, the en banc Ninth Circuit held that H.B. 2023 was enacted with discriminatory intent and therefore violated the Fifteenth Amendment. In his opinion for the en banc court, Judge William Fletcher highlighted several factors revealing a racially discriminatory intent: the “false, race-based claims of ballot collection fraud,” Arizona’s history of racial discrimination in voting, the unsuccessful attempt to pass similar laws while Arizona was a covered jurisdiction, the degree of racially polarized voting, and the “substantial increase in American Indian and Hispanic voting attributable to ballot collection that was targeted by H.B. 2023.” Judge Watford joined the majority’s statutory holdings but wrote a short concurrence stating—without elaboration—that he did not join its constitutional holding.

Judges O’Scannlain and Bybee each wrote dissenting opinions, which largely focused on the statutory issues in the case. As relevant here, O’Scannlain faulted the Ninth Circuit for failing to distinguish between partisan and racial considerations in H.B. 2023’s passage and for giving short shrift to Crawford’s statement that States can pass prophylactic measures even in the absence of voter fraud. For his part, Bybee emphasized that H.B. 2023 is similar to laws in many other States and was a legitimate anti-fraud measure.

A few things to highlight about the Ninth Circuit’s decision. First, the Ninth Circuit stressed that racial discrimination need only be a motivating factor in H.B. 2023’s passage and that its decision does not mean that a majority of the Arizona state legislature harbored racist beliefs. Is so doing, the Ninth Circuit relied heavily on the Fourth Circuit’s decision in North Carolina State Conference of NAACP v. McCrory, which struck down North Carolina’s post-Shelby County voter suppression law on intentional-discrimination grounds. As I’ve explained before, McCrory reflects a resurgence of intent-based claims being litigated in the wake of Shelby County. Unfortunately, we are still confronting vote-denial cases 150 years after the Fifteenth Amendment’s ratification, but these cases have underscored the Fifteenth Amendment’s continuing relevance.

Second, the Ninth Circuit held that H.B. 2023 also violated Section 2’s discriminatory effects standard. The constitutional ruling was thus unnecessary to the judgment, though it does qualify Arizona for bail-in under Section 3(c) of the VRA.

Third, Arizona plans to file a cert petition. The fact-bound constitutional holding will likely be of less interest to the Supreme Court than the application of Section 2 to vote-denial claims. However, given the way the Ninth Circuit wrote its decision, the Court would need to grant cert on the constitutional question to reverse the decision. This wrinkle somewhat insulates the decision from review, but Hobbs could be the rare case where the Court elaborates on the meaning of the Fifteenth Amendment.

Finally, Hobbs is yet another example of how the VRA’s preclearance regime deterred discriminatory laws and why bail-in is an important part of the voting rights toolkit. After all, H.B. 2023 was not Arizona’s first attempt to pass a law restricting a third party’s right to collect early ballots. But after Shelby County, Arizona had a freehand to enact H.B. 2023, which was more restrictive than the predecessor bills. Once the dust has settled on the liability questions, it is possible that Arizona could be bailed-in to stop similar discriminatory measures in the future. Given Arizona’s pre-Shelby County attempts, it seems likely that it may do so again.

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