Brnovich v. Democratic National Committee

P R E L I M I N A R Y P R I N T
Volume 594 U. S. Part 2
Pages 647–730
OFFICIAL REPORTS
OF
T H E S U P R E M E C O U R T
July 1, 2021
REBECCA A. WOMELDORF
reporter of decisions
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647
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BRNOVICH, ATTORNEY GENERAL OF ARIZONA, et
al.
v. DEMOCRATIC NATIONAL COMMITTEE et al.
certiorari to the united states court of appeals for
the ninth circuit
No. 19–1257. Argued March 2, 2021—Decided July 1, 2021*
Arizona law generally makes it very easy to vote. Voters may cast their
ballots on election day in person at a traditional precinct or a “voting
center” in their county of residence. Ariz. Rev. Stat. § 16–411(B)(4).
Arizonans also may cast an “early ballot” by mail up to 27 days before
an election, §§ 16–541, 16–542(C), and they also may vote in person at
an early voting location in each county, §§ 16–542(A), (E). These cases
involve challenges under § 2 of the Voting Rights Act of 1965 (VRA) to
aspects of the State's regulations governing precinct-based election-day
voting and early mail-in voting. First, Arizonans who vote in person
on election day in a county that uses the precinct system must vote in
the precinct to which they are assigned based on their address. See
§ 16–122; see also § 16–135. If a voter votes in the wrong precinct, the
vote is not counted. Second, for Arizonans who vote early by mail,
Arizona House Bill 2023 (HB 2023) makes it a crime for any person
other than a postal worker, an elections offcial, or a voter's caregiver,
family member, or household member to knowingly collect an early bal-
lot—either before or after it has been completed. §§ 16–1005(H)–(I).
The Democratic National Committee and certain affliates fled
suit, alleging that both the State's refusal to count ballots cast in the
wrong precinct and its ballot-collection restriction had an adverse and
disparate effect on the State's American Indian, Hispanic, and African-
American citizens in violation of § 2 of the VRA. Additionally, they
alleged that the ballot-collection restriction was “enacted with discrimi-
natory intent” and thus violated both § 2 of the VRA and the Fifteenth
Amendment. The District Court rejected all of the plaintiffs' claims.
The court found that the out-of-precinct policy had no “meaningfully
disparate impact” on minority voters' opportunities to elect representa-
tives of their choice. Turning to the ballot-collection restriction, the
court found that it was unlikely to cause “a meaningful inequality” in
minority voters' electoral opportunities and that it had not been enacted
with discriminatory intent. A divided panel of the Ninth Circuit af-
frmed, but the en banc court reversed. It frst concluded that both
*Together with No. 19–1258, Arizona Republican Party et al. v. Demo-
cratic National Committee et al., also on certiorari to the same court.

648 BRNO
VICH v. DEMOCRATIC NATIONAL COMMITTEE
Syllabus
the out-of-precinct policy and the ballot-collection restriction imposed a
disparate
burden on minority voters because they were more likely to
be adversely affected by those rules. The en banc court also held that
the District Court had committed clear error in fnding that the ballot-
collection law was not enacted with discriminatory intent.
Held: Arizona's out-of-precinct policy and HB 2023 do not violate § 2 of the
VRA, and HB 2023 was not enacted with a racially discriminatory pur-
pose. Pp. 665–690.
(a) Two threshold matters require the Court's attention. First, the
Court rejects the contention that no petitioner has Article III standing
to appeal the decision below as to the out-of-precinct policy. All that is
needed to entertain an appeal of that issue is one party with standing.
Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania,
591 U. S. 657, 674, n. 6. Attorney General Brnovich, as an authorized
representative of the State (which intervened below) in any action in
federal court, fts the bill. See Virginia House of Delegates v. Bethune-
Hill, 587 U. S. –––, –––. Second, the Court declines in these cases to
announce a test to govern all VRA § 2 challenges to rules that specify
the time, place, or manner for casting ballots. It is suffcient for
present purposes to identify certain guideposts that lead to the Court's
decision in these cases. Pp. 665–666.
(b) The Court's statutory interpretation starts with a careful consid-
eration of the text. Pp. 666–678.
(1) The Court frst construed the current version of § 2 in Thorn-
burg v. Gingles, 478 U. S. 30, which was a vote-dilution case where the
Court took its cue from § 2's legislative history. The Court's many sub-
sequent vote-dilution cases have followed the path Gingles charted.
Because the Court here considers for the frst time how § 2 applies to
generally applicable time, place, or manner voting rules, it is appro-
priate to take a fresh look at the statutory text. Pp. 666–667.
(2) In 1982, Congress amended the language in § 2 that had been
interpreted to require proof of discriminatory intent by a plurality of
the Court in Mobile v. Bolden, 446 U. S. 55. In place of that language,
§ 2(a) now uses the phrase “in a manner which results in a denial or
abridgement of the right . . . to vote on account of race or color.” Sec-
tion 2(b) in turn explains what must be shown to establish a § 2 violation.
Section 2(b) states that § 2 is violated only where “the political processes
leading to nomination or election” are not “equally open to participa-
tion” by members of the relevant protected group “in that its members
have less opportunity than other members of the electorate to partici-
pate in the political process and to elect representatives of their choice.”
(Emphasis added.) In § 2(b), the phrase “in that” is “used to specify
the respect in which a statement is true.” New Oxford American
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Dictionary 851. Thus, equal openness and equal opportunity are not
separate
requirements. Instead, it appears that the core of § 2(b) is the
requirement that voting be “equally open.” The statute's reference to
equal “opportunity” may stretch that concept to some degree to include
consideration of a person's ability to use the means that are equally
open. But equal openness remains the touchstone. Pp. 667–668.
(3) Another important feature of § 2(b) is its “totality of circum-
stances” requirement. Any circumstance that has a logical bearing on
whether voting is “equally open” and affords equal “opportunity” may
be considered. Pp. 668–674.
(i) The Court mentions several important circumstances but does
not attempt to compile an exhaustive list. Pp. 668–672.
(A) The size of the burden imposed by a challenged voting rule
is highly relevant. Voting necessarily requires some effort and compli-
ance with some rules; thus, the concept of a voting system that is
“equally open” and that furnishes equal “opportunity” to cast a ballot
must tolerate the “usual burdens of voting.” Crawford v. Marion
County Election Bd., 553 U. S. 181, 198. Mere inconvenience is insuff-
cient. P. 669.
(B) The degree to which a voting rule departs from what was
standard practice when § 2 was amended in 1982 is a relevant consider-
ation. The burdens associated with the rules in effect at that time are
useful in gauging whether the burdens imposed by a challenged rule
are suffcient to prevent voting from being equally “open” or furnishing
an equal “opportunity” to vote in the sense meant by § 2. Widespread
current use is also relevant. Pp. 669–671.
(C) The size of any disparities in a rule's impact on members
of different racial or ethnic groups is an important factor to consider.
Even neutral regulations may well result in disparities in rates of voting
and noncompliance with voting rules. The mere fact that there is some
disparity in impact does not necessarily mean that a system is not
equally open or that it does not give everyone an equal opportunity to
vote. And small disparities should not be artifcially magnifed. P. 671.
(D) Consistent with § 2(b)'s reference to a States' “political
processes,” courts must consider the opportunities provided by a State's
entire system of voting when assessing the burden imposed by a chal-
lenged provision. Thus, where a State provides multiple ways to vote,
any burden associated with one option cannot be evaluated without also
taking into account the other available means. P. 671.
(E) The strength of the state interests—such as the strong and
entirely legitimate state interest in preventing election fraud—served
by a challenged voting rule is an important factor. Ensuring that every
vote is cast freely, without intimidation or undue infuence, is also a valid

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and important state interest. In determining whether a rule goes too
far
“based on the totality of circumstances,” rules that are supported
by strong state interests are less likely to violate § 2. Pp. 671–672.
(ii) Some factors identifed in Thornburg v. Gingles, 478 U. S. 30,
were designed for use in vote-dilution cases and are plainly inapplicable
in a case that involves a challenge to a facially neutral time, place, or
manner voting rule. While § 2(b)'s “totality of circumstances” language
permits consideration of certain other Gingles factors, their only rele-
vance in cases involving neutral time, place, and manner rules is to show
that minority group members suffered discrimination in the past and
that effects of that discrimination persist. The disparate-impact model
employed in Title VII and Fair Housing Act cases is not useful here.
Pp. 672–674.
(4) Section 2(b) directs courts to consider “the totality of circum-
stances,” but the dissent would make § 2 turn almost entirely on one
circumstance: disparate impact. The dissent also would adopt a least-
restrictive means requirement that would force a State to prove that
the interest served by its voting rule could not be accomplished in any
other less burdensome way. Such a requirement has no footing in the
text of § 2 or the Court's precedent construing it and would have the
potential to invalidate just about any voting rule a State adopts. Sec-
tion 2 of the VRA provides vital protection against discriminatory vot-
ing rules, and no one suggests that discrimination in voting has been
extirpated or that the threat has been eliminated. Even so, § 2 does
not transfer the States' authority to set non-discriminatory voting rules
to the federal courts. Pp. 674–678.
(c) Neither Arizona's out-of-precinct policy nor its ballot-collection law
violates § 2 of the VRA. Pp. 678–687.
(1) Having to identify one's polling place and then travel there to
vote does not exceed the “usual burdens of voting.” Crawford, 553
U. S., at 198. In addition, the State made extensive efforts to reduce
the impact of the out-of-precinct policy on the number of valid votes
ultimately cast, e. g., by sending a sample ballot to each household that
includes a voter's proper polling location. The burdens of identifying
and traveling to one's assigned precinct are also modest when consider-
ing Arizona's “political processes” as a whole. The State offers other
easy ways to vote, which likely explains why out-of-precinct votes on
election day make up such a small and apparently diminishing portion
of overall ballots cast.
Next, the racial disparity in burdens allegedly caused by the out-of-
precinct policy is small in absolute terms. Of the Arizona counties that
reported out-of-precinct ballots in the 2016 general election, a little over
1% of Hispanic voters, 1% of African-American voters, and 1% of Native
American voters who voted on election day cast an out-of-precinct bal-

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lot. For non-minority voters, the rate was around 0.5%. A procedure
that
appears to work for 98% or more of voters to whom it applies—
minority and non-minority alike—is unlikely to render a system un-
equally open.
Appropriate weight must be given to the important state interests
furthered by precinct-based voting. It helps to distribute voters more
evenly among polling places; it can put polling places closer to voter
residences; and it helps to ensure that each voter receives a ballot that
lists only the candidates and public questions on which he or she can
vote. Precinct-based voting has a long pedigree in the United States,
and the policy of not counting out-of-precinct ballots is widespread.
The Court of Appeals discounted the State's interests because it found
no evidence that a less restrictive alternative would threaten the integ-
rity of precinct-based voting. But § 2 does not require a State to show
that its chosen policy is absolutely necessary or that a less restrictive
means would not adequately serve the State's objectives. Considering
the modest burdens allegedly imposed by Arizona's out-of-precinct pol-
icy, the small size of its disparate impact, and the State's justifcations,
the rule does not violate § 2. Pp. 678–682.
(2) Arizona's HB 2023 also passes muster under § 2. Arizonans can
submit early ballots by going to a mailbox, a post offce, an early ballot
drop box, or an authorized election offcial's offce. These options entail
the “usual burdens of voting,” and assistance from a statutorily author-
ized proxy is also available. The State also makes special provision for
certain groups of voters who are unable to use the early voting system.
See § 16–549(C). And here, the plaintiffs were unable to show the ex-
tent to which HB 2023 disproportionately burdens minority voters.
Even if the plaintiffs were able to demonstrate a disparate burden
caused by HB 2023, the State's “compelling interest in preserving the
integrity of its election procedures” would suffce to avoid § 2 liability.
Purcell v. Gonzalez, 549 U. S. 1, 4. The Court of Appeals viewed the
State's justifcations for HB 2023 as tenuous largely because there was
no evidence of early ballot fraud in Arizona. But prevention of fraud
is not the only legitimate interest served by restrictions on ballot collec-
tion. Third-party ballot collection can lead to pressure and intimida-
tion. Further, a State may take action to prevent election fraud with-
out waiting for it to occur within its own borders. Pp. 683–687.
(d) HB 2023 was not enacted with a discriminatory purpose, as the
District Court found. Appellate review of that conclusion is for clear
error. Pullman-Standard v. Swint, 456 U. S. 273, 287–288. The Dis-
trict Court's fnding on the question of discriminatory intent had ample
support in the record. The court considered the historical background
and the highly politicized sequence of events leading to HB 2023's enact-
ment; it looked for any departures from the normal legislative process;

652 BRNO
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Syllabus
it considered relevant legislative history; and it weighed the law's im-
pac
t on different racial groups. See Arlington Heights v. Metropolitan
Housing Development Corp., 429 U. S. 252, 266–268. The court found
HB 2023 to be the product of sincere legislative debate over the wisdom
of early mail-in voting and the potential for fraud. And it took care to
distinguish between racial motives and partisan motives. The District
Court's interpretation of the evidence was plausible based on the record,
so its permissible view is not clearly erroneous. See Anderson v. Bes-
semer City, 470 U. S. 564, 573–574. The Court of Appeals concluded
that the District Court committed clear error by failing to apply a “cat's
paw” theory—which analyzes whether an actor was a “dupe” who was
“used by another to accomplish his purposes.” That theory has its ori-
gin in employment discrimination cases and has no application to legisla-
tive bodies. Pp. 687–690.
948 F. 3d 989, reversed and remanded.
Alito, J., delivered the opinion of the Court, in which Roberts, C. J.,
and Thomas, Gorsuch, Kavanaugh, and Barrett, JJ., joined. Gor-
such, J., fled a concurring opinion, in which Thomas, J., joined, post,
p. 690. Kagan, J., fled a dissenting opinion, in which Breyer and Soto-
mayor, JJ., joined, post, p. 690.
Michael A. Carvin argued the cause for private petition-
ers in No. 19–1258. With him on the briefs fled in both
cases were Yaakov M. Roth, Anthony J. Dick, and Brett W.
Johnson. Mark Brnovich, Attorney General of Arizona, ar-
gued the cause for state petitioners in No. 19–1257. With
him on the briefs fled in both cases were Joseph A. Kane-
feld, Brunn W. Roysden III, Solicitor General, Drew C. En-
sign, Deputy Solicitor General, Kate B. Sawyer, Assistant
Solicitor General, William S. Consovoy, and Tyler R. Green.
Jessica Ring Amunson argued the cause for respondent
Arizona Secretary of State Katie Hobbs. With her on the
brief in both cases was Sam Hirsch. Bruce V. Spiva argued
the cause for respondent DNC et al. With him on the brief
in both cases were Marc E. Elias, Elisabeth C. Frost, Lali-
tha D. Madduri, and Sarah R. Gonski.*
*Briefs of amici curiae urging reversal in both cases were fled for the
United States as amicus curiae by Acting Solicitor General Wall, Has-
him M. Mooppan, Principal Deputy Assistant Attorney General Daukas,
Jonathan C. Bond, and Thomas E. Chandler; for the State of Ohio et
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653
Opinion of the Court
Justice Alito delivered the opinion of the Court.
In
these cases, we are called upon for the frst time to
apply § 2 of the Voting Rights Act of 1965 to regulations that
al. by Dave Yost, Attorney General of Ohio, Benjamin M. Flowers, Solici-
tor General, Michael J. Hendershot, Chief Deputy Solicitor General, and
Zachery P. Keller, Deputy Solicitor General, by Clyde Sniffen, Jr., Acting
Attorney General of Alaska, and by the Attorneys General for their re-
spective jurisdictions as follows: Steve Marshall of Alabama, Leslie Rut-
ledge of Arkansas, Christopher M. Carr of Georgia, Lawrence G. Wasden
of Idaho, Curtis T. Hill, Jr., of Indiana, Daniel Cameron of Kentucky, Jeff
Landry of Louisiana, Lynn Fitch of Mississippi, Eric Schmitt of Missouri,
Douglas J. Peterson of Nebraska, Wayne Steneh jem of North Dakota,
Mike Hunter of Oklahoma, Alan Wilson of South Carolina, Jason Ravns-
borg of South Dakota, Herbert H. Slatery III of Tennessee, Ken Paxton
of Texas, Sean D. Reyes of Utah, and Patrick Morrisey of West Virginia;
for the American Constitutional Rights Union by John J. Park, Jr.;
for Election Integrity Project California, Inc., et al. by Michael J. O'Neill,
Matthew C. Forys, and Richard P. Hutchison; for the Honest Elections
Project by Jonathan P. Lienhard; for Judicial Watch, Inc., et al. by
H. Christopher Coates, Robert D. Popper, and T. Russell Nobile; for the
Pacifc Legal Foundation et al. by Joshua P. Thompson and Christopher
M. Kieser; for the Republican Governors Public Policy Committee by
Jason Torchinsky and Jessica Furst Johnson; for Sen. Ted Cruz et al. by
Bradley A. Benbrook, Stephen M. Duvernay, and Jonathan F. Mitchell;
for Gov. Douglas A. Ducey et al. by Dominic E. Draye and Andrew G.
Pappas; for Scott Fitzgerald et al. by Jessie Augustyn; for Gov. Kristi
Noem by Gene C. Schaerr, Erik S. Jaffe, Hannah C. Smith, and Kathryn
E. Tarbert; and for Helen Purcell by David J. Cantelme and D. Aaron
Brown.
J. Christian Adams fled a brief for the Public Interest Legal Founda-
tion et al. as amici curiae urging reversal in No. 19–1257.
Briefs of amici curiae urging affrmance in both cases were fled for the
District of Columbia et al. by Karl A. Racine, Attorney General of the
District of Columbia, Loren L. Alikhan, Solicitor General, Caroline S. Van
Zile, Principal Deputy Solicitor General, and Harrison M. Stark, Assist-
ant Attorney General, and by the Attorneys General for their respective
jurisdictions as follows: Xavier Becerra of California, Philip J. Weiser of
Colorado, William Tong of Connecticut, Clare E. Connors of Hawaii,
Kwame Raoul of Illinois, Aaron M. Frey of Maine, Brian E. Frosh of
Maryland, Maura Healey of Massachusetts, Aaron D. Ford of Nevada,
Gurbir S. Grewal of New Jersey, Hector Balderas of New Mexico, Letitia
James of New York, Ellen F. Rosenblum of Oregon, Peter F. Neronha of

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VICH v. DEMOCRATIC NATIONAL COMMITTEE
Opinion of the Court
govern how ballots are collected and counted. Arizona law
genera
lly makes it very easy to vote. All voters may vote
by mail or in person for nearly a month before election day,
but Arizona imposes two restrictions that are claimed to be
unlawful. First, in some counties, voters who choose to cast
a ballot in person on election day must vote in their own
precincts or else their ballots will not be counted. Second,
mail-in ballots cannot be collected by anyone other than an
Rhode Island, Thomas J. Donovan, Jr., of Vermont, Mark R. Herring of
Virginia, and Robert W. Ferguson of Washington; for the American Civil
Liberties Union et al. by Davin M. Rosborough, Sophia Lin Lakin,
T. Alora Thomas-Lundborg, Dale E. Ho, Cecillia D. Wang, and David D.
Cole; for the Brennan Center for Justice at NYU School of Law by Antony
L. Ryan, Helam Gebremariam, Myrna Pérez, Michael Li, and Wendy
Weiser; for the Campaign Legal Center by Paul M. Smith, Danielle M.
Lang, and Jonathan M. Diaz; for the Constitutional Accountability Center
by Elizabeth B. Wydra, Brianne J. Gorod, and David H. Gans; for Empiri-
cal Elections Scholars by Maxwell V. Pritt; for Fair Fight Action, Inc.,
et al. by W. Scott Bales, Roopali H. Desai, D. Andrew Gaona, and Allegra
J. Lawrence; for the Leadership Conference on Civil and Human Rights
et al. by Debo P. Adegbile, Arpit K. Garg, LaShawn Warren, and Michael
Zubrensky; for Mi Familia Vota et al. by Jason A. Leckerman; for the
NAACP Legal Defense & Educational Fund, Inc., by Sherrilyn Ifll,
Janai S. Nelson, Samuel Spital, Leah C. Aden, and Mahogane D. Reed;
for the National Association for the Advancement of Colored People et al.
by Kathleen R. Hartnett, Adam S. Gershenson, Damon Hewitt, Jon
Greenbaum, Ezra D. Rosenberg, and Barrett J. Anderson; for the National
Congress of American Indians by Jacqueline de León, John Echohawk,
and Samantha Blencke Kelty; for the North Carolina, Memphis, Central
Virginia, and Miami-Dade Chapters of the A. Philip Randolph Institute by
Charles A. Rothfeld, Allison J. Riggs, and Jonathan C. Augustine; for
State and Local Election Offcials by Zachary D. Tripp; and for Travis
Crum by Mr. Crum, pro se, and Gregory Dubinsky.
Briefs of amici curiae were fled in both cases for Casper Sleep Inc.
et al. by Nathaniel B. Edmonds; for the Cato Institute by Ilya Shapiro;
for the Liberty Justice Center by Daniel R. Suhr and Jeffrey M. Schwab;
for the Navajo Nation by Judith M. Dworking, Paul Spruhan, and Patri-
cia A. Ferguson-Bohnee; for Senate Staffers et al. by Laura W. Brill; for
Voting Rights Scholars by Justin Levitt, Allison A. Davis, and Chris
Swift; for Elijah Haahr et al. by Frederick R. Yarger; and for Nicholas
Stephanopoulos by Jenna A. Hudson and Mark A. Packman.

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as: 594 U. S. 647 (2021)
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Opinion of the Court
election offcial, a mail carrier, or a voter's family member,
household
member, or caregiver. After a trial, a District
Court upheld these rules, as did a panel of the United States
Court of Appeals for the Ninth Circuit. But an en banc
court, by a divided vote, found them to be unlawful. It re-
lied on the rules' small disparate impacts on members of mi-
nority groups, as well as past discrimination dating back to
the State's territorial days. And it overturned the District
Court's fnding that the Arizona Legislature did not adopt
the ballot-collection restriction for a discriminatory purpose.
We now hold that the en banc court misunderstood and mis-
applied § 2 and that it exceeded its authority in rejecting the
District Court's factual fnding on the issue of legislative
intent.
I
A
Congress enacted the landmark Voting Rights Act of 1965,
79 Stat. 437, as amended, 52 U. S. C. § 10301 et seq., in an
effort to achieve at long last what the Fifteenth Amendment
had sought to bring about 95 years earlier: an end to the
denial of the right to vote based on race. Ratifed in 1870,
the Fifteenth Amendment provides in § 1 that “[t]he right of
citizens of the United States to vote shall not be denied or
abridged by the United States or by any State on account of
race, color, or previous condition of servitude.” Section 2 of
the Amendment then grants Congress the “power to enforce
[the Amendment] by appropriate legislation.”
Despite the ratifcation of the Fifteenth Amendment, the
right of African-Americans to vote was heavily suppressed
for nearly a century. States employed a variety of notorious
methods, including poll taxes, literacy tests, property qualif-
cations, “ `white primar[ies],' ” and “ `grandfather clause[s].' ”
1
1
H. R. Rep. No. 439, 89th Cong., 1st Sess., 8, 11–13 (1965); S. Rep. No.
162, 89th Cong., 1st Sess., pt. 3, pp. 4–5 (1965); see South Carolina v.
Katzenbach, 383 U. S. 301, 309–315 (1966).
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Challenges to some blatant efforts reached this Court and
were
held to violate the Fifteenth Amendment. See, e. g.,
Guinn v. United States, 238 U. S. 347, 360–365 (1915) (grand-
father clause); Myers v. Anderson, 238 U. S. 368, 379–
380 (1915) (same); Lane v. Wilson, 307 U. S. 268, 275–277 (1939)
(registration scheme predicated on grandfather clause);
Smith v. Allwright, 321 U. S. 649, 659–666 (1944) (white pri-
maries); Schnell v. Davis, 336 U. S. 933 (1949) (per curiam),
affrming 81 F. Supp. 872 (SD Ala. 1949) (test of constitutional
knowledge); Gomillion v. Lightfoot, 364 U. S. 339, 347 (1960)
(racial gerrymander). But as late as the mid-1960s, black
registration and voting rates in some States were appallingly
low. See South Carolina v. Katzenbach, 383 U. S. 301, 313
(1966).
Invoking the power conferred by § 2 of the Fifteenth
Amendment, see 383 U. S., at 308; City of Rome v. United
States, 446 U. S. 156, 173 (1980), Congress enacted the Voting
Rights Act (VRA) to address this entrenched problem. The
Act and its amendments in the 1970s specifcally forbade
some of the practices that had been used to suppress black
voting. See §§ 4(a), (c), 79 Stat. 438–439; § 6, 84 Stat. 315;
§ 102, 89 Stat. 400, as amended, 52 U. S. C. §§ 10303(a), (c),
10501 (prohibiting the denial of the right to vote in any elec-
tion for failure to pass a test demonstrating literacy, educa-
tional achievement or knowledge of any particular subject,
or good moral character); see also § 10, 79 Stat. 442, as
amended, 52 U. S. C. § 10306 (declaring poll taxes unlawful);
§ 11, 79 Stat. 443, as amended, 52 U. S. C. § 10307 (prohibiting
intimidation and the refusal to allow or count votes). Sec-
tions 4 and 5 of the VRA imposed special requirements for
States and subdivisions where violations of the right to vote
had been severe. And § 2 addressed the denial or abridg-
ment of the right to vote in any part of the country.
As originally enacted, § 2 closely tracked the language of
the Amendment it was adopted to enforce. Section 2 stated
simply that “[n]o voting qualifcation or prerequisite to vot-
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657
Opinion of the Court
ing, or standard, practice, or procedure shall be imposed or
appl
ied by any State or political subdivision to deny or
abridge the right of any citizen of the United States to vote
on account of race or color.” 79 Stat. 437.
Unlike other provisions of the VRA, § 2 attracted rela-
tively little attention during the congressional debates
2
and
was “little-used” for more than a decade after its passage.
3
But during the same period, this Court considered several
cases involving “vote-dilution” claims asserted under the
Equal Protection Clause of the Fourteenth Amendment.
See Whitcomb v. Chavis, 403 U. S. 124 (1971); Burns v. Rich-
ardson, 384 U. S. 73 (1966); Fortson v. Dorsey, 379 U. S. 433
(1965). In these and later vote-dilution cases, plaintiffs
claimed that features of legislative districting plans, includ-
ing the confguration of legislative districts and the use of
multi-member districts, diluted the ability of particular vot-
ers to affect the outcome of elections.
One Fourteenth Amendment vote-dilution case, White v.
Regester, 412 U. S. 755 (1973), came to have outsized impor-
tance in the development of our VRA case law. In White,
the Court affrmed a District Court's judgment that two
multi-member electoral districts were “being used invidi-
ously to cancel out or minimize the voting strength of racial
groups.” Id., at 765. The Court explained what a vote-
dilution plaintiff must prove, and the words the Court chose
would later assume great importance in VRA § 2 matters.
According to White, a vote-dilution plaintiff had to show that
“the political processes leading to nomination and election
were not equally open to participation by the group in ques-
tion—that its members had less opportunity than did other
residents in the district to participate in the political proc-
esses and to elect legislators of their choice.” Id., at 766
2
See Mobile v. Bolden, 446 U. S. 55, 60–61 (1980) (plurality opinion)
(describing § 2's “sparse” legislative history).
3
Boyd & Markman, The 1982 Amendments to the Voting Rights Act: A
Legislative History, 40 Wash. & Lee L. Rev. 1347, 1352–1353 (1983).
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(emphasis added). The decision then recited many pieces of
e
vidence the District Court had taken into account, and it
found that this evidence suffced to prove the plaintiffs'
claim. See id., at 766–769. The decision in White predated
Washington v. Davis, 426 U. S. 229 (1976), where the Court
held that an equal-protection challenge to a facially neutral
rule requires proof of discriminatory purpose or intent, id.,
at 238–245, and the White opinion said nothing one way or
the other about purpose or intent.
A few years later, the question whether a VRA § 2 claim
required discriminatory purpose or intent came before this
Court in Mobile v. Bolden, 446 U. S. 55 (1980). The plurality
opinion for four Justices concluded frst that § 2 of the VRA
added nothing to the protections afforded by the Fifteenth
Amendment. Id., at 60–61. The plurality then observed
that prior decisions “ha[d] made clear that action by a State
that is racially neutral on its face violates the Fifteenth
Amendment only if motivated by a discriminatory purpose.”
Id., at 62. The obvious result of those premises was that
facially neutral voting practices violate § 2 only if motivated
by a discriminatory purpose. The plurality read White
as consistent with this requirement. Bolden, 446 U. S., at
68–70.
Shor tly af ter Bo l den was handed down, Congress
amended § 2 of the VRA. The oft-cited Report of the Sen-
ate Judiciary Committee accompanying the 1982 Amendment
stated that the amendment's purpose was to repudiate Bol-
den and establish a new vote-dilution test based on what the
Court had said in White. See S. Rep. No. 97–417, pp. 2, 15–
16, 27. The bill that was initially passed by the House of
Representatives included what is now § 2(a). In place of the
phrase “to deny or abridge the right . . . to vote on account
of race or color,” the amendment substituted “in a manner
which results in a denial or abridgement of the right . . . to
vote on account of race or color.” H. R. Rep. No. 97–227,
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p. 48 (1981) (emphasis added); H. R. 3112, 97th Cong., 1st
Sess.,
§ 2, p. 8 (introduced Oct. 7, 1981).
The House bill “originally passed . . . under a loose under-
standing that § 2 would prohibit all discriminatory `effects'
of voting practices, and that intent would be `irrelevant,' ”
but “[t]his version met stiff resistance in the Senate.” Mis-
sissippi Republican Executive Committee v. Brooks, 469
U. S. 1002, 1010 (1984) (Rehnquist, J., dissenting) (quoting
H. R. Rep. No. 97–227, at 29). The House and Senate com-
promised, and the fnal product included language proposed
by Senator Dole. 469 U. S., at 1010–1011; S. Rep. No. 97–
417, at 3–4; 128 Cong. Rec. 14131–14133 (1982) (Sen. Dole
describing his amendment).
What is now § 2(b) was added, and that provision sets out
what must be shown to prove a § 2 violation. It requires
consideration of “the totality of circumstances” in each case
and demands proof that “the political processes leading to
nomination or election in the State or political subdivision
are not equally open to participation” by members of a pro-
tected class “in that its members have less opportunity than
other members of the electorate to participate in the political
process and to elect representatives of their choice.” 52
U. S. C. § 10301(b) (emphasis added). Refecting the Senate
Judiciary Committee's stated focus on the issue of vote dilu-
tion, this language was taken almost verbatim from White.
This concentration on the contentious issue of vote dilution
refected the results of the Senate Judiciary Committee's ex-
tensive survey of what it regarded as Fifteenth Amendment
violations that called out for legislative redress. See, e. g.,
S. Rep. No. 97–417, at 6, 8, 23–24, 27, 29. That survey listed
many examples of what the Committee took to be unconstitu-
tional vote dilution, but the survey identifed only three iso-
lated episodes involving the outright denial of the right to
vote, and none of these concerned the equal application of a
facially neutral rule specifying the time, place, or manner of
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voting. See id., at 30, and n. 119.
4
These
sparse results
were presumably good news. They likely showed that the
VRA and other efforts had achieved a large measure of suc-
cess in combating the previously widespread practice of
using such rules to hinder minority groups from voting.
This Court frst construed the amended § 2 in Thornburg
v. Gingles, 478 U. S. 30 (1986)—another vote-dilution case.
Justice Brennan's opinion for the Court set out three thresh-
old requirements for proving a § 2 vote-dilution claim, and,
taking its cue from the Senate Report, provided a non-
exhaustive list of factors to be considered in determining
whether § 2 had been violated. Id., at 44–45, 48–51, 80.
“The essence of a § 2 claim,” the Court said, “is that a certain
electoral law, practice, or structure interacts with social and
historical conditions to cause an inequality in the opportuni-
ties” of minority and non-minority voters to elect their pre-
ferred representatives. Id., at 47.
In the years since Gingles, we have heard a steady stream
of § 2 vote-dilution cases,
5
but until today, we have not con-
sidered how § 2 applies to generally applicable time, place, or
manner voting rules. In recent years, however, such claims
have proliferated in the lower courts.
6
4
See Brown v. Post, 279 F. Supp. 60, 63 (WD La. 1968) (parish clerks
discriminated with respect to absentee voting); United States v. Post, 297
F. Supp. 46, 51 (WD La. 1969) (election offcial induced blacks to vote in
accordance with outdated procedures and made votes ineffective); Toney
v. White, 488 F. 2d 310, 312 (CA5 1973) (registrar discriminated in purging
voting rolls).
5
See Chisom v. Roemer, 501 U. S. 380 (1991) (multi-member district);
Houston Lawyers' Assn. v. Attorney General of Tex., 501 U. S. 419 (1991)
(at-large elections); Voinovich v. Quilter, 507 U. S. 146 (1993) (districting);
Growe v. Emison, 507 U. S. 25 (1993) (same); Holder v. Hall, 512 U. S. 874
(1994) (single-member commission); Johnson v. De Grandy, 512 U. S. 997
(1994) (districting); Abrams v. Johnson, 521 U. S. 74 (1997) (same); League
of United Latin American Citizens v. Perry, 548 U. S. 399 (2006) (same);
Abbott v. Perez, 585 U. S. 579 (2018) (same).
6
See Brief for Sen. Ted Cruz et al. as Amici Curiae 22–24 (describing
§ 2 challenges to laws regulating absentee voting, precinct voting, early
voting periods, voter identifcation (ID), election observer zones, same-
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B
The
present dispute concerns two features of Arizona vot-
ing law, which generally makes it quite easy for residents to
vote. All Arizonans may vote by mail for 27 days before an
election using an “early ballot.” Ariz. Rev. Stat. Ann. §§ 16–
541 (2015), 16–542(C) (Cum. Supp. 2020). No special excuse
is needed, §§ 16–541(A), 16–542(A), and any voter may ask
to be sent an early ballot automatically in future elections,
§ 16–544(A) (2015). In addition, during the 27 days before
an election, Arizonans may vote in person at an early voting
location in each county. See §§ 16–542(A), (E). And they
may also vote in person on election day.
Each county is free to conduct election-day voting either
by using the traditional precinct model or by setting up “vot-
ing centers.” § 16–411(B)(4) (Cum. Supp. 2020). Voting
centers are equipped to provide all voters in a county with
the appropriate ballot for the precinct in which they are reg-
istered, and this allows voters in the county to use whichever
vote center they prefer. See ibid.
The regulations at issue in this suit govern precinct-based
election-day voting and early mail-in voting. Voters who
choose to vote in person on election day in a county that uses
the precinct system must vote in their assigned precincts.
See § 16–122 (2015); see also § 16–135. If a voter goes to the
wrong polling place, poll workers are trained to direct the
voter to the right location. Democratic Nat. Comm. v.
Reagan, 329 F. Supp. 3d 824, 859 (Ariz. 2018); see Tr. 1559,
1586 (Oct. 12, 2017); Tr. Exh. 370 (Pima County Elections
Inspectors Handbook). If a voter fnds that his or her name
does not appear on the register at what the voter believes is
the right precinct, the voter ordinarily may cast a provi-
day registration, durational residency, and straight-ticket voting); Brief
for State of Ohio et al. as Amici Curiae 23–25 (describing various
§ 2 challenges); Brief for Liberty Justice Center as Amicus Curiae 1–3,
7–11 (describing long-running § 2 challenges to Wisconsin voter ID
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662 BRNO
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sional ballot. Ariz. Rev. Stat. Ann. § 16–584 (Cum. Supp.
2020).
That ballot is later counted if the voter's address is
determined to be within the precinct. See ibid. But if it
turns out that the voter cast a ballot at the wrong precinct,
that vote is not counted. See § 16–584(E); App. 37–41 (elec-
tion procedures manual); Ariz. Rev. Stat. Ann. § 16–452(C)
(misdemeanor to violate rules in election procedures manual).
For those who choose to vote early by mail, Arizona has
long required that “[o]nly the elector may be in possession of
that elector's unvoted early ballot.” § 16–542(D). In 2016,
the state legislature enacted House Bill 2023 (HB 2023),
which makes it a crime for any person other than a postal
worker, an elections offcial, or a voter's caregiver, family
member, or household member to knowingly collect an early
ballot—either before or after it has been completed. §§ 16–
1005(H)–(I).
In 2016, the Democratic National Committee and certain
affliates brought this suit and named as defendants (among
others) the Arizona attorney general and secretary of state
in their offcial capacities. Among other things, the plain-
tiffs claimed that both the State's refusal to count ballots
cast in the wrong precinct and its ballot-collection restriction
“adversely and disparately affect Arizona's American Indian,
Hispanic, and African American citizens,” in violation of § 2
of the VRA. Democratic Nat. Comm. v. Hobbs, 948 F. 3d
989, 998 (CA9 2020) (en banc). In addition, they alleged that
the ballot-collection restriction was “enacted with discrimi-
natory intent” and thus violated both § 2 of the VRA and the
Fifteenth Amendment. Ibid.
After a 10-day bench trial, 329 F. Supp. 3d, at 832, 833–
838, the District Court made extensive fndings of fact and
rejected all the plaintiffs' claims, id., at 838–883. The court
frst found that the out-of-precinct policy “has no meaning-
fully disparate impact on the opportunities of minority vot-
ers to elect” representatives of their choice. Id., at 872.
The percentage of ballots invalidated under this policy was
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very small (0.15% of all ballots cast in 2016) and decreasing,
and
while the percentages were slightly higher for members
of minority groups, the court found that this disparity “does
not result in minorities having unequal access to the political
process.” Ibid. The court also found that the plaintiffs had
not proved that the policy “causes minorities to show up to
vote at the wrong precinct at rates higher than their non-
minority counterparts,” id., at 873, and the court noted that
the plaintiffs had not even challenged “the manner in which
Arizona counties allocate and assign polling places or Arizo-
na's requirement that voters re-register to vote when they
move,” ibid.
The D istr ic t Cour t si mi lar ly found that the ba l lot-
collection restriction is unlikely to “cause a meaningful in-
equality in the electoral opportunities of minorities.” Id., at
871. Rather, the court noted, the restriction applies equally
to all voters and “does not impose burdens beyond those tra-
ditionally associated with voting.” Ibid. The court ob-
served that the plaintiffs had presented no records showing
how many voters had previously relied on now-prohibited
third-party ballot collectors and that the plaintiffs also had
“provided no quantitative or statistical evidence” of the per-
centage of minority and non-minority voters in this group.
Id., at 866. “[T]he vast majority” of early voters, the court
found, “do not return their ballots with the assistance of a
[now-prohibited] third-party collector,” id., at 845, and the
evidence largely showed that those who had used such collec-
tors in the past “ha[d] done so out of convenience or personal
preference, or because of circumstances that Arizona law ad-
equately accommodates in other ways,” id., at 847.
7
In addi-
tion, the court noted, none of the individual voters called
by the plaintiffs had even claimed that the ballot-collection
7
An ill or disabled voter may have a ballot delivered by a special elec-
tion board, and curbside voting at polling places is also allowed. 329
F. Supp. 3d, at 848.
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restriction “would make it signifcantly more diffcult to
vote
.” Id., at 871.
Finally, the court found that the ballot-collection law had
not been enacted with discriminatory intent. “[T]he major-
ity of H.B. 2023's proponents,” the court found, “were sincere
in their belief that ballot collection increased the risk of early
voting fraud, and that H.B. 2023 was a necessary prophylac-
tic measure to bring early mail ballot security in line with
in-person voting.” Id., at 879. The court added that “some
individual legislators and proponents were motivated in part
by partisan interests.” Id., at 882. But it distinguished be-
tween partisan and racial motives, while recognizing that “ra-
cially polarized voting can sometimes blur the lines.” Ibid.
A divided panel of the Ninth Circuit affrmed, but an en
banc court reversed. The en banc court frst concluded that
both the out-of-precinct policy and the ballot-collection re-
striction imposed disparate burdens on minority voters be-
cause such voters were more likely to be adversely affected
by those rules. 948 F. 3d, at 1014–1016, 1032–1033. Then,
based on an assessment of the vote-dilution factors used in
Gingles, the en banc majority found that these disparate bur-
dens were “in part caused by or linked to `social and histori-
cal conditions' ” that produce inequality. 948 F. 3d, at 1032
(quoting Gingles, 478 U. S., at 47); see 948 F. 3d, at 1037.
Among other things, the court relied on racial discrimination
dating back to Arizona's territorial days, current socioeco-
nomic disparities, racially polarized voting, and racial cam-
paign appeals. See id., at 1016–1032, 1033–1037.
The en banc majority also held that the District Court had
committed clear error in fnding that the ballot-collection law
was not enacted with discriminatory intent. The en banc
court did not claim that a majority of legislators had voted
for the law for a discriminatory purpose, but the court held
that these lawmakers “were used as `cat's paws' ” by others.
Id., at 1041.
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One judge in the majority declined to join the court's hold-
i
ng on discriminatory intent, and four others dissented
across the board. A petition for a writ of certiorari was
fled by the Arizona attorney general on his own behalf and
on behalf of the State, which had intervened below; another
petition was fled by the Arizona Republican Party and other
private parties who also had intervened. We granted the
petitions and agreed to review both the Ninth Circuit's un-
derstanding and application of VRA § 2 and its holding on
discriminatory intent. 591 U. S. ––– (2020).
II
We begin with two preliminary matters. Secretary of
State Hobbs contends that no petitioner has Article III
standing to appeal the decision below as to the out-of-
precinct policy, but we reject that argument. All that is
needed to entertain an appeal of that issue is one party with
standing, see Little Sisters of the Poor Saints Peter and
Paul Home v. Pennsylvania, 591 U. S. 657, 674, n. 6 (2020),
and we are satisfed that Attorney General Brnovich fts the
bill. The State of Arizona intervened below, see App. 834;
there is “[n]o doubt” as an Article III matter that “the State
itself c[an] press this appeal,” Virginia House of Delegates
v. Bethune-Hill, 587 U. S. –––, ––– (2019); and the attorney
general is authorized to represent the State in any action in
federal court, Ariz. Rev. Stat. Ann. § 41–193(A)(3) (2021); see
Arizonans for Offcial English v. Arizona, 520 U. S. 43, 51,
n. 4 (1997).
Second, we think it prudent to make clear at the beginning
that we decline in these cases to announce a test to govern
all VRA § 2 claims involving rules, like those at issue here,
that specify the time, place, or manner for casting ballots.
Each of the parties advocated a different test, as did many
amici and the courts below. In a brief fled in December in
support of petitioners, the Department of Justice proposed
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one such test but later disavowed the analysis in that brief.
8
The
Department informed us, however, that it did not dis-
agree with its prior conclusion that the two provisions of
Arizona law at issue in these cases do not violate § 2 of the
Voting Rights Act.
9
All told, no fewer than 10 tests have
been proposed. But as this is our frst foray into the area,
we think it suffcient for present purposes to identify certain
guideposts that lead us to our decision in these cases.
III
A
We start with the text of VRA § 2. It now provides:
“(a) No voting qualifcation 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 pro-
tected 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 repre-
sentatives of their choice. The extent to which mem-
bers of a protected class have been elected to offce in
the State or political subdivision is one circumstance
which may be considered: Provided, That nothing in this
8
Letter from E. Kneedler, Deputy Solicitor General, to S. Harris, Clerk
of Court (Feb. 16, 2021).
9
Ibid.
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section establishes a right to have members of a pro-
tec
ted class elected in numbers equal to their proportion
in the population.” 52 U. S. C. § 10301.
In Gingles, our seminal § 2 vote-dilution case, the Court
quoted the text of amended § 2 and then jumped right to the
Senate Judiciary Committee Report, which focused on the
issue of vote dilution. 478 U. S., at 36–37, 43, and n. 7. Our
many subsequent vote-dilution cases have largely followed
the path that Gingles charted. But because this is our frst
§ 2 time, place, or manner case, a fresh look at the statutory
text is appropriate. Today, our statutory interpretation
cases almost always start with a careful consideration of the
text, and there is no reason to do otherwise here.
B
Section 2(a), as noted, omits the phrase “to deny or abridge
the right . . . to vote on account of race or color,” which the
Bolden plurality had interpreted to require proof of discrimi-
natory intent. In place of that language, § 2(a) substitutes
the phrase “in a manner which results in a denial or abridge-
ment of the right . . . to vote on account of race or color.”
(Emphasis added.) We need not decide what this text would
mean if it stood alone because § 2(b), which was added to win
Senate approval, explains what must be shown to establish
a § 2 violation. Section 2(b) states that § 2 is violated only
where “the political processes leading to nomination or elec-
tion” are not “equally open to participation” by members of
the relevant protected group “in that its members have less
opportunity than other members of the electorate to partici-
pate in the political process and to elect representatives of
their choice.” (Emphasis added.)
The key requirement is that the political processes leading
to nomination and election (here, the process of voting) must
be “equally open” to minority and non-minority groups alike,
and the most relevant defnition of the term “open,” as used
in § 2(b), is “without restrictions as to who may participate,”
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Random House Dictionary of the English Language 1008 (J.
Stei
n ed. 1966), or “requiring no special status, identifcation,
or permit for entry or participation,” Webster's Third New
International Dictionary 1579 (1976).
What § 2(b) means by voting that is not “equally open” is
further explained by this language: “in that its members
have less opportunity than other members of the electorate
to participate in the political process and to elect representa-
tives of their choice.” The phrase “in that” is “used to spec-
ify the respect in which a statement is true.”
10
Thus, equal
openness and equal opportunity are not separate require-
ments. Instead, equal opportunity helps to explain the
meaning of equal openness. And the term “opportunity”
means, among other things, “a combination of circumstances,
time, and place suitable or favorable for a particular activity
or action.” Id., at 1583; see also Random House Dictionary
of the English Language, at 1010 (“an appropriate or favor-
able time or occasion,” “a situation or condition favorable for
attainment of a goal”).
Putting these terms together, it appears that the core of
§ 2(b) is the requirement that voting be “equally open.” The
statute's reference to equal “opportunity” may stretch that
concept to some degree to include consideration of a person's
ability to use the means that are equally open. But equal
openness remains the touchstone.
C
One other important feature of § 2(b) stands out. The pro-
vision requires consideration of “the totality of circum-
stances.” Thus, any circumstance that has a logical bearing
on whether voting is “equally open” and affords equal “op-
10
The New Oxford American Dictionary 851 (2d ed. 2005); see 7 Oxford
English Dictionary 763 (2d ed. 1989) (“in presence, view, or consequence
of the fact that”); Webster's New International Dictionary 1253 (2d ed.
1934) (“Because; for the reason that”).
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portunity” may be considered. We will not attempt to com-
pi
le an exhaustive list, but several important circumstances
should be mentioned.
1
1. First, the size of the burden imposed by a challenged
voting rule is highly relevant. The concepts of “open[ness]”
and “opportunity” connote the absence of obstacles and bur-
dens that block or seriously hinder voting, and therefore the
size of the burden imposed by a voting rule is important.
After all, every voting rule imposes a burden of some sort.
Voting takes time and, for almost everyone, some travel,
even if only to a nearby mailbox. Casting a vote, whether
by following the directions for using a voting machine or
completing a paper ballot, requires compliance with certain
rules. But because voting necessarily requires some effort
and compliance with some rules, the concept of a voting sys-
tem that is “equally open” and that furnishes an equal
“opportunity” to cast a ballot must tolerate the “usual bur-
dens of voting.” Crawford v. Marion County Election Bd.,
553 U. S. 181, 198 (2008) (opinion of Stevens, J.). Mere incon-
venience cannot be enough to demonstrate a violation of § 2.
11
2. For similar reasons, the degree to which a voting rule
departs from what was standard practice when § 2 was
11
There is a difference between openness and opportunity, on the one
hand, and the absence of inconvenience, on the other. For example, sup-
pose that an exhibit at a museum in a particular city is open to everyone
free of charge every day of the week for several months. Some residents
of the city who have the opportunity to view the exhibit may fnd it incon-
venient to do so for many reasons—the problem of fnding parking, dislike
of public transportation, anticipation that the exhibit will be crowded, a
plethora of weekend chores and obligations, etc. Or, to take another ex-
ample, a college course may be open to all students and all may have the
opportunity to enroll, but some students may fnd it inconvenient to take
the class for a variety of reasons. For example, classes may occur too
early in the morning or on Friday afternoon; too much reading may be
assigned; the professor may have a reputation as a hard grader; etc.
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amended in 1982 is a relevant consideration. Because every
voti
ng rule imposes a burden of some sort, it is useful to
have benchmarks with which the burdens imposed by a chal-
lenged rule can be compared. The burdens associated with
the rules in widespread use when § 2 was adopted are there-
fore useful in gauging whether the burdens imposed by a
challenged rule are suffcient to prevent voting from being
equally “open” or furnishing an equal “opportunity” to vote
in the sense meant by § 2. Therefore, it is relevant that in
1982 States typically required nearly all voters to cast their
ballots in person on election day and allowed only narrow
and tightly defned categories of voters to cast absentee
ballots. See, e. g., 17 N. Y. Elec. Law Ann. § 8–100 et seq.
(West 1978), § 8–300 et seq. (in-person voting), § 8–400 et seq.
(limited-excuse absentee voting); Pa. Stat. Ann., Tit. 25,
§ 3045 et seq. (Purdon 1963) (in-person voting), § 3149.1 et seq.
(limited-excuse absentee voting); see § 3146.1 (Purdon Cum.
Supp. 1993) (same); Ohio Rev. Code Ann. § 3501.02 et seq.
(Lexis 1972) (in-person voting), § 3509.01 et seq. (limited-
excuse absentee voting); see § 3509.02 (Lexis Supp. 1986)
(same); Fla. Stat. Ann. § 101.011 et seq. (1973) (in-person vot-
ing), § 101.62 et seq. (limited-excuse absentee voting); see
§ 97.063 (1982) (same); Ill. Rev. Stat., ch. 46, § 17–1 et seq.
(West 1977) (in-person voting), § 19–1 et seq. (limited-excuse
absentee voting); D. C. Code §§ 1–1109, 1–1110 (1973) (in-
person voting and limited-excuse absentee voting); see
§ 1–1313 (1981) (same). As of January 1980, only three
States permitted no-excuse absentee voting. See Gronke &
Galanes-Rosenbaum, America Votes! 261, 267–269 (B. Grif-
fth ed. 2008); see also J. Sargent et al., Congressional Re-
search Service, The Growth of Early and Nonprecinct Place
Balloting, in Election Laws of the Fifty States and the Dis-
trict of Columbia (rev. 1976). We doubt that Congress in-
tended to uproot facially neutral time, place, and manner reg-
ulations that have a long pedigree or are in widespread use
in the United States. We have no need to decide whether
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adherence to, or a return to, a 1982 framework is neces-
sar
ily lawful under § 2, but the degree to which a chal-
lenged rule has a long pedigree or is in widespread use in
the United States is a circumstance that must be taken into
account.
3. The size of any disparities in a rule's impact on mem-
bers of different racial or ethnic groups is also an important
factor to consider. Small disparities are less likely than
large ones to indicate that a system is not equally open. To
the extent that minority and non-minority groups differ with
respect to employment, wealth, and education, even neutral
regulations, no matter how crafted, may well result in some
predictable disparities in rates of voting and noncompliance
with voting rules. But the mere fact there is some disparity
in impact does not necessarily mean that a system is not
equally open or that it does not give everyone an equal op-
portunity to vote. The size of any disparity matters. And
in assessing the size of any disparity, a meaningful compari-
son is essential. What are at bottom very small differences
should not be artifcially magnifed. E. g., Frank v. Walker,
768 F. 3d 744, 752, n. 3 (CA7 2014).
4. Next, courts must consider the opportunities provided
by a State's entire system of voting when assessing the bur-
den imposed by a challenged provision. This follows from
§ 2(b)'s reference to the collective concept of a State's “politi-
cal processes” and its “political process” as a whole. Thus,
where a State provides multiple ways to vote, any burden
imposed on voters who choose one of the available options
cannot be evaluated without also taking into account the
other available means.
5. Finally, the strength of the state interests served by a
challenged voting rule is also an important factor that must
be taken into account. As noted, every voting rule imposes
a burden of some sort, and therefore, in determining “based
on the totality of circumstances” whether a rule goes too far,
it is important to consider the reason for the rule. Rules
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that are supported by strong state interests are less likely
to
violate § 2.
One strong and entirely legitimate state interest is the
prevention of fraud. Fraud can affect the outcome of a close
election, and fraudulent votes dilute the right of citizens to
cast ballots that carry appropriate weight. Fraud can also
undermine public confdence in the fairness of elections and
the perceived legitimacy of the announced outcome.
Ensuring that every vote is cast freely, without intimida-
tion or undue infuence, is also a valid and important state
interest. This interest helped to spur the adoption of what
soon became standard practice in this country and in other
democratic nations the world round: the use of private voting
booths. See Burson v. Freeman, 504 U. S. 191, 202–205
(1992) (plurality opinion).
2
While the factors set out above are important, others con-
sidered by some lower courts are less helpful in a case like
the ones at hand. First, it is important to keep in mind that
the Gingles or “Senate” factors grew out of and were de-
signed for use in vote-dilution cases. Some of those factors
are plainly inapplicable in a case involving a challenge to a
facially neutral time, place, or manner voting rule. Factors
three and four concern districting and election procedures
like “majority vote requirements,” “anti-single shot provi-
sions,”
12
and a “candidate slating process.”
13
See Gingles,
12
Where voters are allowed to vote for multiple candidates in a race for
multiple seats, single-shot voting is the practice of voting for only one
candidate. “ ` “Single-shot voting enables a minority group to win some
at-large seats if it concentrates its vote behind a limited number of candi-
dates and if the vote of the majority is divided among a number of candi-
dates.” ' ” Gingles, 478 U. S., at 38–39, n. 5 (quoting City of Rome v.
United States, 446 U. S. 156, 184, n. 19 (1980)); see also United States
Commission on Civil Rights, The Voting Rights Act: Ten Years After 206–
207 (1975).
13
Slating has been described as “a process in which some infuential non-
governmental organization selects and endorses a group or `slate' of

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478 U. S., at 37 (internal quotation marks omitted). Factors
two
, six, and seven (which concern racially polarized voting,
racia l ly ti nged campaig n appea ls, and the elec ti on of
minority-group candidates), ibid., have a bearing on whether
a districting plan affects the opportunity of minority voters
to elect their candidates of choice. But in cases involving
neutral time, place, and manner rules, the only relevance of
these and the remaining factors is to show that minority
group members suffered discrimination in the past (factor
one) and that effects of that discrimination persist (factor
fve). Id., at 36–37. We do not suggest that these factors
should be disregarded. After all, § 2(b) requires consider-
ation of “the totality of circumstances.” But their relevance
is much less direct.
We also do not fnd the disparate-impact model employed
in Title VII and Fair Housing Act cases useful here. The
text of the relevant provisions of Title VII and the Fair
Housing Act differ from that of VRA § 2, and it is not obvious
why Congress would conform rules regulating voting to
those regulating employment and housing. For example, we
think it inappropriate to read § 2 to impose a strict “necessity
requirement” that would force States to demonstrate that
their legitimate interests can be accomplished only by means
of the voting regulations in question. Stephanopoulos, Dis-
parate Impact, Unifed Law, 128 Yale L. J. 1566, 1617–1619
(2019) (advocating such a requirement). Demanding such a
tight ft would have the effect of invalidating a great many
neutral voting regulations with long pedigrees that are rea-
sonable means of pursuing legitimate interests. It would
also transfer much of the authority to regulate election pro-
candidates, rendering the election little more than a stamp of approval for
the candidates selected.” Westwego Citizens for Better Govt. v. West-
wego, 946 F. 2d 1109, 1116, n. 5 (CA5 1991). Exclusion from such a system
can make it diffcult for minority groups to elect their preferred candi-
dates. See, e. g., White v. Regester, 412 U. S. 755, 766–767, and n. 11 (1973)
(describing one example).
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cedures from the States to the federal courts. For those
reasons,
the Title VII and Fair Housing Act models are un-
helpful in § 2 cases.
D
The interpretation set out above follows directly from
what § 2 commands: consideration of “the totality of circum-
stances” that have a bearing on whether a State makes vot-
ing “equally open” to all and gives everyone an equal “oppor-
tunity” to vote. The dissent, by contrast, would rewrite the
text of § 2 and make it turn almost entirely on just one cir-
cumstance—disparate impact.
That is a radical project, and the dissent strains mightily
to obscure its objective. To that end, it spends 20 pages
discussing matters that have little bearing on the questions
before us. The dissent provides historical background that
all Americans should remember, see post, at 692–696 (opinion
of Kagan, J.), but that background does not tell us how to
decide these cases. The dissent quarrels with the decision
in Shelby County v. Holder, 570 U. S. 529 (2013), see post, at
696–698, which concerned §§ 4 and 5 of the VRA, not § 2. It
discusses all sorts of voting rules that are not at issue here.
See post, at 698–701. And it dwells on points of law that
nobody disputes: that § 2 applies to a broad range of voting
rules, practices, and procedures; that an “abridgement” of
the right to vote under § 2 does not require outright denial
of the right; that § 2 does not demand proof of discriminatory
purpose; and that a “facially neutral” law or practice may
violate that provision. See post, at 701–709.
Only after this extended effort at misdirection is the dis-
sent's aim fnally unveiled: to undo as much as possible the
compromise that was reached between the House and Senate
when § 2 was amended in 1982. Recall that the version origi-
nally passed by the House did not contain § 2(b) and was
thought to prohibit any voting practice that had “discrimina-
tory effects,” loosely defned. See supra, at 658–659. That
is the freewheeling disparate-impact regime the dissent
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wants to impose on the States. But the version enacted into
law
includes § 2(b), and that subsection directs us to consider
“the totality of circumstances,” not, as the dissent would
have it, the totality of just one circumstance.
14
There is
noth i ng to the dissent's charge that we are depar ti ng
from the st atutory text by identi fy i ng some of those
considerations.
We have listed fve relevant circumstances and have ex-
plained why they all stem from the statutory text and have
a bearing on the determination that § 2 requires. The dis-
sent does not mention a single additional consideration, and
it does its best to push aside all but one of the circumstances
we discuss. It entirely rejects three of them: the size of the
burden imposed by a challenged rule, see post, at 711–712,
the landscape of voting rules both in 1982 and in the present,
post, at 713–714,
15
and the availability of other ways to vote,
14
The dissent erroneously claims that the Senate-House compromise was
only about proportional representation and not about “the equal-access
right” at issue in the present cases. Post, at 708, n. 6. The text of the
bill initially passed by the House had no equal-access right. See H. R.
Rep. No. 97–227, p. 48 (1981); H. R. 3112, 97th Cong., 1st Sess., § 2, p. 8
(introduced Oct. 7, 1981). Section 2(b) was the Senate's creation, and that
provision is what directed courts to look beyond mere “results” to whether
a State's “political processes” are “equally open,” considering “the totality
of circumstances.” See Mississippi Republican Executive Committee v.
Brooks, 469 U. S. 1002, 1010 (1984) (Rehnquist, J., dissenting) (“The com-
promise bill retained the `results' language but also incorporated language
directly from this Court's opinion in White v. Regester”). And while the
proviso on proportional representation may not apply as directly in this
suit, it is still a signal that § 2 imposes something other than a pure
disparate-impact regime.
15
The dissent objects to consideration of the 1982 landscape because
even rules that were prevalent at that time are invalid under § 2 if they,
well, violate § 2. Post, at 713. We of course agree with that tautology.
But the question is what it means to provide equal opportunity, and given
that every voting rule imposes some amount of burden, rules that were
and are commonplace are useful comparators when considering the totality
of circumstances. Unlike the dissent, Congress did not set its sights
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post, at 712–713. Unable to bring itself to completely reject
considerati
on of the state interests that a challenged rule
serves, the dissent tries to diminish the signifcance of this
circumstance as much as possible. See post, at 715–718.
According to the dissent, an interest served by a voting rule,
no matter how compelling, cannot support the rule unless a
State can prove to the satisfaction of the courts that this
interest could not be served by any other means. Post, at
706–707, 715–718. Such a requirement has no footing in the
text of § 2 or our precedent construing it.
16
ence. See, e. g., S. Rep. No. 97–417, at 10, n. 22 (describing what the Sen-
ate Judiciary Committee viewed as “blatant direct impediments to
voting ”).
16
For support, the dissent offers a baseless reading of one of our vote-
dilution decisions. In Houston Lawyers' Assn., 501 U. S. 419, we consid-
ered a § 2 challenge to an electoral scheme wherein all trial judges in a
judicial district were elected on a district-wide basis. Id., at 422. The
State asserted that it had a strong interest in district-wide judicial elec-
tions on the theory that they make every individual judge at least partly
accountable to minority voters in the jurisdiction. Id., at 424, 426. That
unique interest, the State contended, should have “automatically” ex-
empted the electoral scheme from § 2 scrutiny altogether. Id., at 426.
We disagreed, holding that the State's interest was instead “a legitimate
factor to be considered by courts among the `totality of circumstances' in
determining whether a § 2 violation has occurred.” Ibid. To illustrate
why an “automati[c]” exemption from § 2's coverage was inappropriate,
the Court hypothesized a case involving an “uncouth” district shaped like
the one in Gomillion v. Lightfoot, 364 U. S. 339, 340 (1960), for which an
inquiry under § 2 “would at least arguably be required.” 501 U. S., at
427. The Court then wrote the language upon which the dissent seizes:
“Placing elections for single-member offces entirely beyond the scope of
coverage of § 2 would preclude such an inquiry, even if the State's interest
in maintaining the `uncouth' electoral system was trivial or illusory and
even if any resulting impairment of a minority group's voting strength
could be remedied without signifcantly impairing the State's interest in
electing judges on a district-wide basis.” Id., at 427–428.
That reductio ad absurdum, used to demonstrate only why an automatic
exemption from § 2 scrutiny was inappropriate, did not announce an “in-
quiry” at all—much less the least-burdensome-means requirement the dis-
sent would have us smuggle in from materially different statutory re-

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That requirement also would have the potential to invali-
date
just about any voting rule a State adopts. Take the
example of a State's interest in preventing voting fraud.
Even if a State could point to a history of serious voting
fraud within its own borders, the dissent would apparently
strike down a rule designed to prevent fraud unless the State
could demonstrate an inability to combat voting fraud in any
other way, such as by hiring more investigators and prosecu-
tors, prioritizing voting fraud investigations, and heighten-
ing criminal penalties. Nothing about equal openness and
equal opportunity dictates such a high bar for States to pur-
sue their legitimate interests.
With all other circumstances swept away, all that remains
in the dissent's approach is the size of any disparity in a
rule's impact on members of protected groups. As we have
noted, differences in employment, wealth, and education may
make it virtually impossible for a State to devise rules that
do not have some disparate impact. But under the dissent's
interpretation of § 2, any “statistically signifcant” dispar-
ity—wherever that is in the statute—may be enough to take
down even facially neutral voting rules with long pedigrees
that reasonably pursue important state interests. Post, at
704, n. 4, 708–709, 721.
17
gimes. Post, at 707, n. 5, 715. Perhaps that is why no one—not the
parties, not the United States, not the 36 other amici, not the courts
below, and certainly not this Court in subsequent decisions—has advanced
the dissent's surprising reading of a single phrase in Houston Lawyers
Assn. The dissent apparently thinks that in 1991 we silently abrogated
the principle that the nature of a State's interest is but one of many factors
to consider, see Thornburg v. Gingles, 478 U. S. 30, 44–45 (1986), and that
our subsequent cases have erred by failing simply to ask whether a less
burdensome measure would suffce. Who knew?
17
We do not think § 2 is so procrustean. Statistical signifcance may
provide “evidence that something besides random error is at work,” Fed-
eral Judicial Center, Reference Manual on Scientifc Evidence 252 (3d ed.
2011), but it does not necessarily determine causes, and as the dissent
acknowledges, post, at 704, n. 4, it is not the be-all and end-all of disparate-
impact analysis. See Federal Judicial Center, Reference Manual, at 252
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Section 2 of the Voting Rights Act provides vital protec-
ti
on against discriminatory voting rules, and no one suggests
that discrimination in voting has been extirpated or that the
threat has been eliminated. But § 2 does not deprive the
States of their authority to establish non-discriminatory vot-
ing rules, and that is precisely what the dissent's radical in-
terpretation would mean in practice. The dissent is correct
that the Voting Rights Act exemplifes our country's commit-
ment to democracy, but there is nothing democratic about
the dissent's attempt to bring about a wholesale transfer of
the authority to set voting rules from the States to the fed-
eral courts.
IV
A
In light of the principles set out above, neither Arizona's
out-of-precinct rule nor its ballot-collection law violates § 2
of the VRA. Arizona's out-of-precinct rule enforces the re-
quirement that voters who choose to vote in person on elec-
tion day must do so in their assigned precincts. Having to
identify one's own polling place and then travel there to vote
does not exceed the “usual burdens of voting.” Crawford,
553 U. S., at 198 (opinion of Stevens, J.) (noting the same
about making a trip to the department of motor vehicles).
On the contrary, these tasks are quintessential examples of
the usual burdens of voting.
Not only are these unremarkable burdens, but the District
Court's uncontested fndings show that the State made ex-
(“[S]ignifcant differences . . . are not evidence that [what is at work] is
legally or practically important. Statisticians distinguish between statis-
tical and practical signifcance to make the point. When practical signif-
cance is lacking—when the size of a disparity is negligible—there is no
reason to worry about statistical signifcance”); ibid., n. 102 (citing authori-
ties). Moreover, whatever might be “standard” in other contexts, post, at
704, n. 4, we have explained that VRA § 2's focus on equal “open[ness]”
and equal “opportunity” does not impose a standard disparate-impact
regime.
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tensive efforts to reduce their impact on the number of valid
votes
ultimately cast. The State makes accurate precinct
information available to all voters. When precincts or poll-
ing places are altered between elections, each registered
voter is sent a notice showing the voter's new polling place.
329 F. Supp. 3d, at 859. Arizona law also mandates that
election offcials send a sample ballot to each household that
includes a registered voter who has not opted to be placed
on the permanent early voter list, Ariz. Rev. Stat. Ann. § 16–
510(C) (2015), and this mailing also identifes the voter's
proper polling location, 329 F. Supp. 3d, at 859. In addition,
the Arizona secretary of state's offce sends voters pamphlets
that include information (in both English and Spanish) about
how to identify their assigned precinct. Ibid.
Polling place information is also made available by other
means. The secretary of state's offce operates websites
that provide voter-specifc polling place information and
allow voters to make inquiries to the secretary's staff. Ibid.
Arizona's two most populous counties, Maricopa and Pima,
provide online polling place locators with information avail-
able in English and Spanish. Ibid. Other groups offer sim-
ilar online tools. Ibid. Voters may also identify their as-
signed polling place by calling the offce of their respective
county recorder. Ibid. And on election day, poll workers
in at least some counties are trained to redirect voters who
arrive at the wrong precinct. Ibid., see Tr. 1559, 1586; Tr.
Exh. 370 (Pima County Elections Inspectors Handbook).
The burdens of identifying and traveling to one's assigned
precinct are also modest when considering Arizona's “politi-
cal processes” as a whole. The Court of Appeals noted that
Arizona leads other States in the rate of votes rejected on
the ground that they were cast in the wrong precinct, and
the court attributed this to frequent changes in polling loca-
tions, confusing placement of polling places, and high levels
of residential mobility. 948 F. 3d, at 1000–1004. But even
if it is marginally harder for Arizona voters to fnd their
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assigned polling places, the State offers other easy ways to
vote
. Any voter can request an early ballot without ex-
cuse. Any voter can ask to be placed on the permanent
early voter list so that an early ballot will be mailed auto-
matically. Voters may drop off their early ballots at any
polling place, even one to which they are not assigned. And
for nearly a month before election day, any voter can vote in
person at an early voting location in his or her county. The
availability of those options likely explains why out-of-
precinct votes on election day make up such a small and ap-
parently diminishing portion of overall ballots cast—0.47%
of all ballots in the 2012 general election and just 0.15% in
2016. 329 F. Supp. 3d, at 872.
Next, the racial disparity in burdens allegedly caused by
the out-of-precinct policy is small in absolute terms. The
District Court accepted the plaintiffs' evidence that, of the
Arizona counties that reported out-of-precinct ballots in the
2016 general election, a little over 1% of Hispanic voters,
1% of African-American voters, and 1% of Native American
voters who voted on election day cast an out-of-precinct bal-
lot. Ibid. For non-minority voters, the rate was around
0.5%. Ibid. (citing Tr. Exh. 97, at 3, 20–21). A policy that
appears to work for 98% or more of voters to whom it
applies—minority and non-minority alike—is unlikely to
render a system unequally open.
The Court of Appeals attempted to paint a different pic-
ture, but its use of statistics was highly misleading for rea-
sons that were well explained by Judge Easterbrook in a § 2
case involving voter IDs. As he put it, a distorted picture
can be created by dividing one percentage by another.
Frank, 768 F. 3d, at 752, n. 3. He gave this example: “If
99.9% of whites had photo IDs, and 99.7% of blacks did,” it
could be said that “ `blacks are three times as likely as whites
to lack qualifying ID' (0.3 ÷ 0.1 = 3), but such a statement
would mask the fact that the populations were effectively
identical.” Ibid.
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That is exactly what the en banc Ninth Circuit did here.
The
District Court found that among the counties that re-
ported out-of-precinct ballots in the 2016 general election,
roughly 99% of Hispanic voters, 99% of African-American
voters, and 99% of Native American voters who voted on
election day cast their ballots in the right precinct, while
roughly 99.5% of non-minority voters did so. 329 F. Supp.
3d, at 872. Based on these statistics, the en banc Ninth Cir-
cuit concluded that “minority voters in Arizona cast [out-of-
precinct] ballots at twice the rate of white voters.” 948
F. 3d, at 1014; see id., at 1004–1005. This is precisely the
sort of statistical manipulation that Judge Easterbrook
rightly criticized, namely, 1.0 ÷ 0.5 = 2. Properly under-
stood, the statistics show only a small disparity that provides
little support for concluding that Arizona's political processes
are not equally open.
The Court of Appeals' decision also failed to give appro-
priate weight to the state interests that the out-of-precinct
rule serves. Not counting out-of-precinct votes induces
compliance with the requirement that Arizonans who choose
to vote in-person on election day do so at their assigned poll-
ing places. And as the District Court recognized, precinct-
based voting furthers important state interests. It helps to
distribute voters more evenly among polling places and thus
reduces wait times. It can put polling places closer to voter
residences than would a more centralized voting-center
model. In addition, precinct-based voting helps to ensure
that each voter receives a ballot that lists only the candidates
and public questions on which he or she can vote, and this
orderly administration tends to decrease voter confusion and
increase voter confdence in elections. See 329 F. Supp. 3d,
at 878. It is also signifcant that precinct-based voting has
a long pedigree in the United States. See 948 F. 3d, at 1062–
1063 (Bybee, J., dissenting) (citing J. Harris, Election Admin-
istration in the United States 206–207 (1934)). And the pol-
icy of not counting out-of-precinct ballots is widespread.
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See 948 F. 3d, at 1072–1088 (collecting and categorizing
st
ate laws).
The Court of Appeals discounted the State's interests
because, in its view, there was no evidence that a less restric-
tive alternative would threaten the integrity of precinct-
based voting. The court thought the State had no good rea-
son for not counting an out-of-precinct voter's choices with
respect to the candidates and issues also on the ballot in the
voter's proper precinct. See id., at 1030–1031. We dis-
agree with this reasoning.
Section 2 does not require a State to show that its chosen
policy is absolutely necessary or that a less restrictive means
would not adequately serve the State's objectives. And the
Court of Appeals' preferred alternative would have obvious
disadvantages. Partially counting out-of-precinct ballots
would complicate the process of tabulation and could lead to
disputes and delay. In addition, as one of the en banc dis-
senters noted, it would tend to encourage voters who are
primarily interested in only national or state-wide elections
to vote in whichever place is most convenient even if they
know that it is not their assigned polling place. See id., at
1065–1066 (opinion of Bybee, J.).
In light of the modest burdens allegedly imposed by Arizo-
na's out-of-precinct policy, the small size of its disparate im-
pact, and the State's justifcations, we conclude the rule does
not violate § 2 of the VRA.
18
18
In arguing that Arizona's out-of-precinct policy violates § 2, the dissent
focuses on the State's decisions about the siting of polling places and the
frequency with which voting precincts are changed. See post, at 722
(“Much of the story has to do with the siting and shifting of polling
places”). But the plaintiffs did not challenge those practices. See 329
F. Supp. 3d, at 873 (“Plaintiffs . . . do not challenge the manner in which
Arizona counties allocate and assign polling places or Arizona's require-
ment that voters re-register to vote when they move”). The dissent is
thus left with the unenviable task of explaining how something like a 0.5%
disparity in discarded ballots between minority and non-minority groups
suffces to render Arizona's political processes not equally open to partici-
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B
HB
2023 likewise passes muster under the results test of
§ 2. Arizonans who receive early ballots can submit them
by going to a mailbox, a post offce, an early ballot drop box,
or an authorized election offcial's offce within the 27-day
early voting period. They can also drop off their ballots at
any polling place or voting center on election day, and in
order to do so, they can skip the line of voters waiting to
vote in person. 329 F. Supp. 3d, at 839 (citing ECF Doc.
361, ¶57). Making any of these trips—much like traveling
to an assigned polling place—falls squarely within the heart-
land of the “usual burdens of voting.” Crawford, 553 U. S.,
at 198 (opinion of Stevens, J.). And voters can also ask a
statutorily authorized proxy—a family member, a household
member, or a caregiver—to mail a ballot or drop it off at any
time within 27 days of an election.
Arizona also makes special provision for certain groups of
voters who are unable to use the early voting system.
Every county must establish a special election board to serve
voters who are “confned as the result of a continuing illness
or physical disability,” are unable to go to the polls on elec-
tion day, and do not wish to cast an early vote by mail. Ariz.
Rev. Stat. Ann. § 16–549(C) (Cum. Supp. 2020). At the re-
quest of a voter in this group, the board will deliver a ballot
in person and return it on the voter's behalf. §§ 16–549(C),
(E). Arizona law also requires employers to give employees
time off to vote when they are otherwise scheduled to work
certain shifts on election day. § 16–402 (2015).
The plaintiffs were unable to provide statistical evidence
showing that HB 2023 had a disparate impact on minority
voters. Instead, they called witnesses who testifed that
third-party ballot collection tends to be used most heavily in
pation. See supra, at 680. A voting rule with that effect would not be—
to use the dissent's forid example—one that a “minority vote suppressor
in Arizona” would want in his or her “bag of tricks.” Post, at 722.
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disadvantaged communities and that minorities in Arizona—
especia
lly Native Americans—are disproportionately dis-
advantaged. 329 F. Supp. 3d, at 868, 870. But from that
evidence the District Court could conclude only that prior to
HB 2023's enactment, “minorities generically were more
likely than non-minorities to return their early ballots with
the assistance of third parties.” Id., at 870. How much
more, the court could not say from the record. Ibid. Nei-
ther can we. And without more concrete evidence, we can-
not conclude that HB 2023 results in less opportunity to par-
ticipate in the political process.
19
19
Not one to let the absence of a key fnding get in the way, the dissent
concludes from its own review of the evidence that HB 2023 “prevents
many Native Americans from making effective use of one of the principal
means of voting in Arizona,” and that “[w]hat is an inconsequential burden
for others is for these citizens a severe hardship.” Post, at 727. What is
missing from those statements is any evidence about the actual size of the
disparity. (For that matter, by the time the dissent gets around to assess-
ing HB 2023, it appears to have lost its zeal for statistical signifcance,
which is nowhere to be seen. See post, at 724–729, and n. 13.) The
reader will search in vain to discover where the District Court “found” to
what extent HB 2023 would make it “ `signifcantly more diffcult' ” for
Native Americans to vote. Post, at 728, n. 15 (citing 329 F. Supp. 3d, at
868, 870). Rather, “[b]ased on” the very same evidence the dissent cites,
the District Court could fnd only that minorities were “generically” more
likely than non-minorities to make use of third-party ballot-collection.
Id., at 870. The District Court's explanation as to why speaks for itself:
“Although there are signifcant socioeconomic disparities between mi-
norities and non-minorities in Arizona, these disparities are an imprecise
proxy for disparities in ballot collection use. Plaintiffs do not argue that
all or even most socioeconomically disadvantaged voters use ballot collec-
tion services, nor does the evidence support such a fnding. Rather, the
anecdotal estimates from individual ballot collectors indicate that a rela-
tively small number of voters have used ballot collection services in past
elections.” Ibid.; see also id., at 881 (“[B]allot collection was used as a
[get-out-the-vote] strategy in mostly low-effcacy minority communities,
though the Court cannot say how often voters used ballot collection, nor
can it measure the degree or signifcance of any disparities in its usage”
(emphasis added)).

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Opinion of the Court
Even if the plaintiffs had shown a disparate burden caused
by
HB 2023, the State's justifcations would suffce to avoid
§ 2 liability. “A State indisputably has a compelling interest
in preserving the integrity of its election process.” Purcell
v. Gonzalez, 549 U. S. 1, 4 (2006) (per curiam) (internal quo-
tation marks omitted). Limiting the classes of persons who
may handle early ballots to those less likely to have ulterior
motives deters potential fraud and improves voter conf-
dence. That was the view of the bipartisan Commission on
Federal Election Reform chaired by former President Jimmy
Carter and former Secretary of State James Baker. The
Carter-Baker Commission noted that “[a]bsentee 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.” Report of the Comm'n on Fed. Election Re-
form, Building Confdence in U. S. Elections 46 (Sept. 2005).
The Commission warned that “[v]ote buying schemes are
far more diffcult to detect when citizens vote by mail,” and
it recommended that “States therefore should reduce the
risks of fraud and abuse in absentee voting by prohibiting
`third-party' organizations, candidates, and political party
activists from handling absentee ballots.” Ibid. The Com-
mission ultimately recommended that States limit the classes
of persons who may handle absentee ballots to “the voter, an
acknowledged family member, the U. S. Postal Service or
other legitimate shipper, or election offcials.” Id., at 47.
HB 2023 is even more permissive in that it also authorizes
ballot-handling by a voter's household member and care-
giver. See Ariz. Rev. Stat. Ann. § 16–1005(I)(2). Restric-
tions on ballot collection are also common in other States.
See 948 F. 3d, at 1068–1069, 1088–1143 (Bybee, J., dissenting)
(collecting state provisions).
The Court of Appeals thought that the State's justifca-
tions for HB 2023 were tenuous in large part because there

686 BRNO
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Opinion of the Court
was no evidence that fraud in connection with early ballots
had
occurred in Arizona. See id., at 1045–1046. But pre-
vention of fraud is not the only legitimate interest served by
restrictions on ballot collection. As the Carter-Baker Com-
mission recognized, third-party ballot collection can lead to
pressure and intimidation. And it should go without saying
that a State may take action to prevent election fraud with-
out waiting for it to occur and be detected within its own
borders. Section 2's command that the political processes
remain equally open surely does not demand that “a State's
political system sustain some level of damage before the leg-
islature [can] take corrective action.” Munro v. Socialist
Workers Party, 479 U. S. 189, 195 (1986). Fraud is a real
risk that accompanies mail-in voting even if Arizona had the
good fortune to avoid it. Election fraud has had serious con-
sequences in other States. For example, the North Carolina
Board of Elections invalidated the results of a 2018 race for
a seat in the House of Representatives for evidence of fraud-
ulent mail-in ballots.
20
The Arizona Legislature was not ob-
ligated to wait for something similar to happen closer to
home.
21
20
See Blinder, Election Fraud in North Carolina Leads to New
Charges for Republican Operative, N. Y. Times, July 30, 2019, https://
www.nytimes.com/2019/07/30/us/mccrae-dowless-indictment.html; Graham,
North Carolina Had No Choice, The Atlantic, Feb. 22, 2019, https://www.
theatlantic.com/politics/archive/2019/02/north-carolina-9th-fraud-board-
orders-new-election/583369/.
21
The dissent's primary argument regarding HB 2023 concerns its effect
on Native Americans who live on remote reservations. The dissent notes
that many of these voters do not receive mail delivery at home, that the
nearest post offce may be some distance from their homes, and that they
may not have automobiles. Post, at 724–725. We do not dismiss these
problems, but for a number of reasons, they do not provide a basis for invali-
dating HB 2023. The burdens that fall on remote communities are miti-
gated by the long period of time prior to an election during which a vote may
be cast either in person or by mail and by the legality of having a ballot
picked up and mailed by family or household members. And in this suit,
no individual voter testifed that HB 2023 would make it signifcantly more
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Opinion of the Court
As with the out-of-precinct policy, the modest evidence of
racia
lly disparate burdens caused by HB 2023, in light of the
State's justifcations, leads us to the conclusion that the law
does not violate § 2 of the VRA.
V
We also granted certiorari to review whether the Court of
Appeals erred in concluding that HB 2023 was enacted with
a discriminatory purpose. The District Court found that it
was not, 329 F. Supp. 3d, at 882, and appellate review of that
conclusion is for clear error, Pullman-Standard v. Swint, 456
U. S. 273, 287–288 (1982). If the district court's view of the
evidence is plausible in light of the entire record, an appellate
court may not reverse even if it is convinced that it would
have weighed the evidence differently in the frst instance.
Anderson v. Bessemer City, 470 U. S. 564, 573–574 (1985).
“Where there are two permissible views of the evidence,
the factfnder's choice between them cannot be clearly
erroneous.” Id., at 574.
The District Court's fnding on the question of discrimina-
tory intent had ample support in the record. Applying the
familiar approach outlined in Arlington Heights v. Metropol-
itan Housing Development Corp., 429 U. S. 252, 266–268
(1977), the District Court considered the historical back-
ground and the sequence of events leading to HB 2023's
enactment; it looked for any departures from the normal leg-
islative process; it considered relevant legislative history;
diffcult for him or her to vote. 329 F. Supp. 3d, at 871. Moreover, the
Postal Service is required by law to “provide a maximum degree of effec-
tive and regular postal services to rural areas, communities, and small
towns where post offces are not self-sustaining.” 39 U. S. C. § 101(b); see
also § 403(b)(3). Small post offces may not be closed “solely for operating
at a defcit,” § 101(b), and any decision to close or consolidate a post offce
may be appealed to the Postal Regulatory Commission, see § 404(d)(5).
An alleged failure by the Postal Service to comply with its statutory obli-
gations in a particular location does not in itself provide a ground for
overturning a voting rule that applies throughout an entire State.
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and it weighed the law's impact on different racial groups.
See
329 F. Supp. 3d, at 879.
The court noted, among other things, that HB 2023's
enactment followed increased use of ballot collection as a
Democratic get-out-the-vote strategy and came “on the heels
of several prior efforts to restrict ballot collection, some of
which were spearheaded by former Arizona State Senator
Don Shooter.” Id., at 879. Shooter's own election in 2010
had been close and racially polarized. Aiming in part to
frustrate the Democratic Party's get-out-the-vote strategy,
Shooter made what the court termed “unfounded and often
far-fetched allegations of ballot collection fraud.” Id., at
880. But what came after the airing of Shooter's claims and
a “racially-tinged” video created by a private party was
a serious legislative debate on the wisdom of early mail-in
voting. Ibid.
22
That debate, the District Court concluded, was sincere and
led to the passage of HB 2023 in 2016. Proponents of the
bill repeatedly argued that mail-in ballots are more suscepti-
ble to fraud than in-person voting. Ibid. The bill found
support from a few minority offcials and organizations, one
of which expressed concern that ballot collectors were taking
advantage of elderly Latino voters. Ibid. And while some
opponents of the bill accused Republican legislators of har-
boring racially discriminatory motives, that view was not
uniform. See ibid. One Democratic state senator pithily
described the “ `problem' ” HB 2023 aimed to “ `solv[e]' ” as
the fact that “ `one party is better at collecting ballots than
the other one.' ” Id., at 882 (quoting Tr. Exh. 25, at 35).
22
The District Court also noted prior attempts on the part of the Ari-
zona Legislature to regulate or limit third-party ballot collection in 2011
and 2013. It reasonably concluded that any procedural irregularities in
those attempts had less probative value for inferring the purpose behind
HB 2023 because the bills were passed “during different legislative ses-
sions by a substantially different composition of legislators.” 329 F. Supp.
3d, at 881.
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Opinion of the Court
We are more than satisfed that the District Court's inter-
pret
ation of the evidence is permissible. The spark for the
debate over mail-in voting may well have been provided by
one Senator's enfamed partisanship, but partisan motives
are not the same as racial motives. See Cooper v. Harris,
581 U. S. 285, 308 (2017). The District Court noted that the
voting preferences of members of a racial group may make
the former look like the latter, but it carefully distinguished
between the two. See 329 F. Supp. 3d, at 879, 882. And
while the District Court recognized that the “racially-
tinged” video helped spur the debate about ballot collection,
it found no evidence that the legislature as a whole was im-
bued with racial motives. Id., at 879–880.
The Court of Appeals did not dispute the District Court's
assessment of the sincerity of HB 2023's proponents. It
even agreed that some members of the legislature had a “sin-
cere, though mistaken, non-race-based belief that there had
been fraud in third-party ballot collection, and that the prob-
lem needed to be addressed.” 948 F. 3d, at 1040. The
Court of Appeals nevertheless concluded that the District
Court committed clear error by failing to apply a “ `cat's
paw' ” theory sometimes used in employment discrimination
cases. Id., at 1040–1041. A “cat's paw” is a “dupe” who is
“used by another to accomplish his purposes.” Webster's
New International Dictionary 425 (2d ed. 1934). A plaintiff
in a “cat's paw” case typically seeks to hold the plaintiff 's
employer liable for “the animus of a supervisor who was not
charged with making the ultimate [adverse] employment
decision.” Staub v. Proctor Hospital, 562 U. S. 411, 415
(2011).
The “cat's paw” theory has no application to legislative
bodies. The theory rests on the agency relationship that ex-
ists between an employer and a supervisor, but the legisla-
tors who vote to adopt a bill are not the agents of the bill's
sponsor or proponents. Under our form of government, leg-
islators have a duty to exercise their judgment and to repre-
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sent their constituents. It is insulting to suggest that they
are
mere dupes or tools.
***
Arizona's out-of-precinct policy and HB 2023 do not violate
§ 2 of the VRA, and HB 2023 was not enacted with a racially
discriminatory purpose. The judgment of the Court of Ap-
peals is reversed, and the cases are remanded for further
proceedings consistent with this opinion.
It is so ordered.
Justice Gorsuch, with whom Justice Thomas joins,
concurring.
I join the Court's opinion in full, but fag one thing it does
not decide. Our cases have assumed—without deciding—
that the Voting Rights Act of 1965 furnishes an implied cause
of action under § 2. See Mobile v. Bolden, 446 U. S. 55,
60, and n. 8 (1980) (plurality opinion). Lower courts have
treated th is as an open questi on. E. g., Wash ing t o n v.
Finlay, 664 F. 2d 913, 926 (CA4 1981). Because no party
argues that the plaintiffs lack a cause of action here, and
because the existence (or not) of a cause of action does not
go to a court's subject-matter jurisdiction, see Reyes Mata
v. Lynch, 576 U. S. 143, 150 (2015), this Court need not and
does not address that issue today.
Justice Kagan, with whom Justice Breyer and
Justice Sotomayor join, dissenting.
If a single statute represents the best of America, it is the
Voting Rights Act. It marries two great ideals: democracy
and racial equality. And it dedicates our country to carry-
ing them out. Section 2, the provision at issue here, guaran-
tees that members of every racial group will have equal
voting opportunities. Citizens of every race will have the
same shot to participate in the political process and to elect
representatives of their choice. They will all own our de-
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691
Kagan, J., dissenting
mocracy together—no one more and no one less than any
other
.
If a single statute reminds us of the worst of America, it
is the Voting Rights Act. Because it was—and remains—so
necessary. Because a century after the Civil War was
fought, at the time of the Act's passage, the promise of politi-
cal equality remained a distant dream for African American
citizens. Because States and localities continually “con-
triv[ed] new rules,” mostly neutral on their face but discrimi-
natory in operation, to keep minority voters from the polls.
South Carolina v. Katzenbach, 383 U. S. 301, 335 (1966).
Because “Congress had reason to suppose” that States would
“try similar maneuvers in the future”—“pour[ing] old poison
into new bottles” to suppress minority votes. Ibid.; Reno v.
Bossier Parish School Bd., 528 U. S. 320, 366 (2000) (Sou-
ter, J., concurring in part and dissenting in part). Because
Congress has been proved right.
The Voting Rights Act is ambitious, in both goal and scope.
When President Lyndon Johnson sent the bill to Congress,
ten days after John Lewis led marchers across the Edmund
Pettus Bridge, he explained that it was “carefully drafted to
meet its objective—the end of discrimination in voting in
America.” H. R. Doc. No. 120, 89th Cong., 1st Sess., 1–2
(1965). He was right about how the Act's drafting refected
its aim. “The end of discrimination in voting ” is a far-
reaching goal. And the Voting Rights Act's text is just as
far-reaching. A later amendment, adding the provision at
issue here, became necessary when this Court construed the
statute too narrowly. And in the last decade, this Court as-
sailed the Act again, undoing its vital Section 5. See Shelby
County v. Holder, 570 U. S. 529 (2013). But Section 2 of the
Act remains, as written, as expansive as ever—demanding
that every citizen of this country possess a right at once
grand and obvious: the right to an equal opportunity to vote.
Today, the Court undermines Section 2 and the right it
provides. The majority fears that the statute Congress

692 BRNO
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Kagan, J., dissenting
wrote is too “radical”—that it will invalidate too many state
voti
ng laws. See ante, at 674, 677–678. So the majority
writes its own set of rules, limiting Section 2 from multiple
directions. See ante, at 669–672. Wherever it can, the ma-
jority gives a cramped reading to broad language. And then
it uses that reading to uphold two election laws from Arizona
that discriminate against minority voters. I could say—and
will in the following pages—that this is not how the Court is
supposed to interpret and apply statutes. But that ordinary
critique woefully undersells the problem. What is tragic
here is that the Court has (yet again) rewritten—in order to
weaken—a statute that stands as a monument to America's
greatness, and protects against its basest impulses. What
is tragic is that the Court has damaged a statute designed
to bring about “the end of discrimination in voting.” I re-
spectfully dissent.
I
The Voting Rights Act of 1965 is an extraordinary law.
Rarely has a statute required so much sacrifce to ensure
its passage. Never has a statute done more to advance the
Nation's highest ideals. And few laws are more vital in the
current moment. Yet in the last decade, this Court has
treated no statute worse. To take the measure of today's
harm, a look to the Act's past must come frst. The idea is
not to recount, as the majority hurriedly does, some bygone
era of voting discrimination. See ante, at 655–656. It is in-
stead to describe the electoral practices that the Act targets—
and to show the high stakes of the present controversy.
A
Democratic ideals in America got off to a glorious start;
democratic practice not so much. The Declaration of In-
dependence made an awe-inspiring promise: to institute a
government “deriving [its] just powers from the consent of
the governed.” But for most of the Nation's frst century,
that pledge ran to white men only. The earliest state elec-
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693
Kagan, J., dissenting
tion laws excluded from the franchise African Americans,
Native
Americans, women, and those without property. See
A. Keyssar, The Right To Vote: The Contested History of
Democracy in the United States 8–21, 54–60 (2000). In
1855, on the precipice of the Civil War, only fve States per-
mitted African Americans to vote. Id., at 55. And at the
federal level, our Court's most deplorable holding made sure
that no black people could enter the voting booth. See Dred
Scott v. Sandford, 19 How. 393 (1857).
But the “American ideal of political equality . . . could not
forever tolerate the limitation of the right to vote” to whites
only. Mobile v. Bolden, 446 U. S. 55, 103–104 (1980) (Mar-
shall, J., dissenting). And a civil war, dedicated to ensuring
“government of the people, by the people, for the people,”
brought constitutional change. In 1870, after a hard-fought
battle over ratifcation, the Fifteenth Amendment carried
the Nation closer to its founding aspirations. “The right of
citizens of the United States to vote shall not be denied or
abridged by the United States or by any State on account of
race, color, or previous condition of servitude.” Those
words promised to enfranchise millions of black citizens who
only a decade earlier had been slaves. Frederick Douglass
held that the Amendment “means that we are placed upon
an equal footing with all other men”—that with the vote,
“liberty is to be the right of all.” 4 The Frederick Douglass
Papers 270–271 (J. Blassingame & J. McKivigan eds. 1991).
President Grant had seen much blood spilled in the Civil
War; now he spoke of the fruits of that sacrifce. In a self-
described “unusual” message to Congress, he heralded the
Fifteenth Amendment as “a measure of grander importance
than any other one act of the kind from the foundation of our
free Government”—as “the most important event that has
occurred since the nation came into life.” Ulysses S. Grant,
Message to the Senate and House of Representatives (Mar.
30, 1870), in 7 Compilation of the Messages and Papers of the
Presidents 1789–1897, pp. 55–56 (J. Richardson ed. 1898).
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Momentous as the Fifteenth Amendment was, celebration
of
its achievements soon proved premature. The Amend-
ment's guarantees “quickly became dead letters in much of
the country.” Foner, The Strange Career of the Recon-
struction Amendments, 108 Yale L. J. 2003, 2007 (1999).
African Americans daring to go to the polls often “met with
coordinated intimidation and violence.” Northwest Austin
Municipal Util. Dist. No. One v. Holder, 557 U. S. 193, 218–
219 (2009) (Thomas, J., concurring in judgment in part and
dissenting in part). And almost immediately, legislators dis-
covered that bloodless actions could also suffce to limit the
electorate to white citizens. Many States, especially in the
South, suppressed the black vote through a dizzying array of
methods: literacy tests, poll taxes, registration requirements,
and property qualifcations. See Katzenbach, 383 U. S., at
310–312. Most of those laws, though facially neutral, gave
enough discretion to election offcials to prevent signifcant
effects on poor or uneducated whites. The idea, as one Vir-
ginia representative put it, was “to disfranchise every negro
that [he] could disfranchise,” and “as few white people as
possible.” Keyssar 113. Decade after decade after decade,
election rules blocked African Americans—and in some
States, Hispanics and Native Americans too—from making
use of the ballot. See Oregon v. Mitchell, 400 U. S. 112, 132
(1970) (opinion of Black, J.) (discussing treatment of non-black
groups). By 1965, only 27% of black Georgians, 19% of black
Alabamians, and 7%—yes, 7%—of black Mississippians were
registered to vote. See C. Bullock, R. Gaddie, & J. Wert,
The Rise and Fall of the Voting Rights Act 23 (2016).
The civil rights movement, and the events of a single
Bloody Sunday, created pressure for change. Selma was the
heart of an Alabama county whose 15,000 black citizens in-
cluded, in 1961, only 156 on the voting rolls. See D. Garrow,
Protest at Selma 31 (1978). In the frst days of 1965, the
city became the epicenter of demonstrations meant to force

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Kagan, J., dissenting
Southern election offcials to register African American
voters.
As weeks went by without results, organizers an-
nounced a march from Selma to Montgomery. On March 7,
some 600 protesters, led by future Congressman John Lewis,
sought to cross the Edmund Pettus Bridge. State troopers
in riot gear responded brutally: “Turning their nightsticks
horizontally, they rushed into the crowd, knocking people
over like bowling pins.” G. May, Bending Toward Justice 87
(2013). Then came men on horseback, “swinging their clubs
and ropes like cowboys driving cattle to market.” Ibid.
The protesters were beaten, knocked unconscious, and blood-
ied. Lewis's skull was fractured. “I thought I was going to
die on this bridge,” he later recalled. Rojas, Selma Helped
Defne John Lewis's Life, N. Y. Times, July 28, 2020.
A galvanized country responded. Ten days after the
Selma march, President Johnson wrote to Congress propos-
ing legislation to “help rid the Nation of racial discrimination
in every aspect of the electoral process and thereby insure
the right of all to vote.” H. R. Doc. No. 120, at 1. (To his
attorney general, Johnson was still more emphatic: “I want
you to write the goddamnedest toughest voting rights act
that you can devise.” H. Raines, My Soul Is Rested 337
(1983).) And in August 1965, after the bill's supporters
overcame a Senate flibuster, Johnson signed the Voting
Rights Act into law. Echoing Grant's description of the Fif-
teenth Amendment, Johnson called the statute “one of the
most monumental laws in the entire history of American
freedom.” Public Papers of the Presidents, Lyndon B. John-
son, Vol. 2, Aug. 6, 1965, p. 841 (1966) (Johnson Papers).
“After a century's failure to fulfll the promise” of the Fif-
teenth Amendment, “passage of the VRA fnally led to signal
improvement.” Shelby County, 570 U. S., at 562 (Ginsburg,
J., dissenting). In the fve years after the statute's passage,
almost as many African Americans registered to vote in six
Southern States as in the entire century before 1965. See

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Davidson, The Voting Rights Act: A Brief History, in Contro-
versies
in Minority Voting 21 (B. Grofman & C. Davidson
eds. 1992). The crudest attempts to block voting access, like
literacy tests and poll taxes, disappeared. Legislatures
often replaced those vote denial schemes with new meas-
ures—mostly to do with districting—designed to dilute
the impact of minority votes. But the Voting Rights Act,
operating for decades at full strength, stopped many of those
measures too. See, e.g., Chisom v. Roemer, 501 U. S. 380
(1991); Allen v. State Bd. of Elections, 393 U. S. 544 (1969).
As a famed dissent assessed the situation about a half-
century after the statute's enactment: The Voting Rights Act
had become “one of the most consequential, effcacious, and
amply justifed exercises of federal legislative power in our
Nation's history.” Shelby County, 570 U. S., at 562 (Gins-
burg, J., dissenting).
1
B
Yet efforts to suppress the minority vote continue. No one
would know this from reading the majority opinion. It hails
the “good news” that legislative efforts had mostly shifted by
the 1980s from vote denial to vote dilution. Ante, at 660.
And then it moves on to other matters, as though the Voting
Rights Act no longer has a problem to address—as though once
literacy tests and poll taxes disappeared, so too did efforts to
curb minority voting. But as this Court recognized about a
decade ago, “racial discrimination and racially polarized vot-
ing are not ancient history.” Bartlett v. Strickland, 556
U. S. 1, 25 (2009) (opinion of Kennedy, J.). Indeed, the prob-
lem of voting discrimination has become worse since that
1
The majority brands this historical account part of an “extended effort
at misdirection.” Ante, at 674. I am tempted merely to reply: Enough
said about the majority's outlook on the statute before us. But I will add
what should be obvious—that no one can understand the Voting Rights
Act without recognizing what led Congress to enact it, and what Congress
wanted it to change.

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Kagan, J., dissenting
time—in part because of what this Court did in Shelby
C
ounty. Weaken the Voting Rights Act, and predictable
consequences follow: yet a further generation of voter sup-
pression laws.
Much of the Voting Rights Act's success lay in its capacity
to meet ever-new forms of discrimination. Experience
showed that “[w]henever one form of voting discrimination
was identifed and prohibited, others sprang up in its
place.” Shelby County, 570 U. S., at 560 (Ginsburg, J., dis-
senting). Combating those efforts was like “battling the
Hydra”—or to use a less cultured reference, like playing
a game of whack-a-mole. Ibid. So Congress, in Section 5
of the Act, gave the Department of Justice authority to re-
view all new rules devised by jurisdictions with a history
of voter suppression—and to block any that would have dis-
criminatory effects. See 52 U. S. C. §§ 10304(a)–(b). In that
way, the Act would prevent the use of new, more nuanced
methods to restrict the voting opportunities of non-white
citizens.
And for decades, Section 5 operated as intended. Be-
tween 1965 and 2006, the Department stopped almost 1200
voting laws in covered areas from taking effect. See Shelby
County, 570 U. S., at 571 (Ginsburg, J., dissenting). Some
of those laws used districting to dilute minority voting
strength—making sure that the votes of minority citizens
would carry less weight than the votes of whites in electing
candidates. Other laws, even if facially neutral, dispropor-
tionately curbed the ability of non-white citizens to cast a
ballot at all. So, for example, a jurisdiction might require
forms of identifcation that those voters were less likely to
have; or it might limit voting places and times convenient
for those voters; or it might purge its voter rolls through
mechanisms especially likely to ensnare them. See id., at
574–575. In reviewing mountains of such evidence in 2006,
Congress saw a continuing need for Section 5. Although
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“[d]iscrimination today is more subtle than the visible meth-
ods
used in 1965,” Congress found, it still produces “the same
[effects], namely a diminishing of the minority community's
ability to fully participate in the electoral process.” H. R.
Rep. No. 109–478, p. 6 (2006). Congress thus reauthorized
the preclearance scheme for 25 years.
But this Court took a different view. Finding that “[o]ur
country has changed,” the Court saw only limited instances
of voting discrimination—and so no further need for pre-
clearance. Shelby County, 570 U. S., at 547–549, 557. Dis-
placing Congress's contrary judgment, the Court struck
down the coverage formula essential to the statute's opera-
tion. The legal analysis offered was perplexing: The Court
based its decision on a “principle of equal [state] sover-
eignty” that a prior decision of ours had rejected—and that
has not made an appearance since. Id., at 544 (majority
opinion); see id., at 587–588 (Ginsburg, J., dissenting).
Worse yet was the Court's blithe confdence in assessing
what was needed and what was not. “[T]hings have
changed dramatically,” the Court reiterated, id., at 547: The
statute that was once a necessity had become an imposition.
But how did the majority know there was nothing more for
Section 5 to do—that the (undoubted) changes in the country
went so far as to make the provision unnecessary? It didn't,
as Justice Ginsburg explained in dissent. The majority's
faith that discrimination was almost gone derived, at least in
part, from the success of Section 5—from its record of block-
ing discriminatory voting schemes. Discarding Section 5
because those schemes had diminished was “like throwing
away your umbrella in a rainstorm because you are not get-
ting wet.” Id., at 590.
The rashness of the act soon became evident. Once Sec-
tion 5's strictures came off, States and localities put in place
new restrictive voting laws, with foreseeably adverse effects
on minority voters. On the very day Shelby County issued,
Texas announced that it would implement a strict voter-

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identifcation requirement that had failed to clear Section 5.
See
Elmendorf & Spencer, Administering Section 2 of the
Voting Rights Act After Shelby County, 115 Colum. L. Rev.
2143, 2145–2146 (2015). Other States—Alabama, Virginia,
Mississippi—fell like dominoes, adopting measures similarly
vulnerable to preclearance review. See ibid. The North
Carolina Legislature, starting work the day after Shelby
County, enacted a sweeping election bill eliminating same-
day registration, forbidding out-of-precinct voting, and re-
ducing early voting, including souls-to-the-polls Sundays.
(That law went too far even without Section 5: A court
struck it down because the State's legislators had a racially
discriminatory purpose. North Carolina State Conference
of NAACP v. McCrory, 831 F. 3d 204 (CA4 2016).) States
and localities redistricted—drawing new boundary lines or
replacing neighborhood-based seats with at-large seats—in
ways guaranteed to reduce minority representation. See
Elmendorf, 115 Colum. L. Rev., at 2146. And jurisdictions
closed polling places in mostly minority areas, enhancing an
already pronounced problem. See Brief for Leadership
Conference on Civil and Human Rights et al. as Amici Cu-
riae 14–15 (listing closure schemes); Pettigrew, The Racial
Gap in Wait Times, 132 Pol. Sci. Q. 527, 527 (2017) (fnding
that lines in minority precincts are twice as long as in white
ones, and that a minority voter is six times more likely to
wait more than an hour).
2
2
Although causation is hard to establish defnitively, those post-Shelby
County changes appear to have reduced minority participation in the next
election cycle. The most comprehensive study available found that in
areas freed from Section 5 review, white turnout remained the same, but
“minority participation dropped by 2.1 percentage points”—a stark rever-
sal in direction from prior elections. Ang, Do 40-Year-Old Facts Still
Matter?, 11 Am. Econ. J.: Applied Economics, No. 3, pp. 1, 35 (2019). The
results, said the scholar who crunched the numbers, “provide early evi-
dence that the Shelby ruling may jeopardize decades of voting rights prog-
ress.” Id., at 36. The election laws passed in Shelby County's wake
“may have negated many of the gains made under preclearance.” Ibid.
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And that was just the frst wave of post-Shelby County
laws.
In recent months, State after State has taken up or
enacted legislation erecting new barriers to voting. See
Brennan Center for Justice, Voting Laws Roundup: May 2021
(online source archived at www.supremecourt.gov) (compil-
ing legislation). Those laws shorten the time polls are open,
both on Election Day and before. They impose new prereq-
uisites to voting by mail, and shorten the windows to apply
for and return mail ballots. They make it harder to register
to vote, and easier to purge voters from the rolls. Two laws
even ban handing out food or water to voters standing in
line. Some of those restrictions may be lawful under the
Voting Rights Act. But chances are that some have the
kind of impact the Act was designed to prevent—that they
make the political process less open to minority voters than
to others.
So the Court decides this Voting Rights Act case at a peril-
ous moment for the Nation's commitment to equal citizen-
sh ip. It decides th is case i n an era of voti ng-r ights
retrenchment—when too many States and localities are re-
stricting access to voting in ways that will predictably de-
prive members of minority groups of equal access to the
ballot box. If “any racial discrimination in voting is too
much,” as the Shelby County Court recited, then the Act still
has much to do. 570 U. S., at 557. Or more precisely, the
fraction of the Act remaining—the Act as diminished by the
Court's hand. Congress never meant for Section 2 to bear
all of the weight of the Act's commitments. That provision
looks to courts, not to the Executive Branch, to restrain dis-
criminatory voting practices. And litigation is an after-the-
fact remedy, incapable of providing relief until an election—
usually, more than one election—has come and gone. See
id., at 572 (Ginsburg, J., dissenting). So Section 2 was sup-
posed to be a back-up, for all its sweep and power. But
after Shelby County, the vitality of Section 2—a “permanent,
nationwide ban on racial discrimination in voting ”—matters
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Kagan, J., dissenting
more than ever. Id., at 557 (majority opinion). For after
Sh
elby County, Section 2 is what voters have left.
II
Section 2, as drafted, is well-equipped to meet the chal-
lenge. Congress meant to eliminate all “discriminatory
election systems or practices which operate, designedly or
otherwise, to minimize or cancel out the voting strength and
political effectiveness of minority groups.” S. Rep. No. 97–
417, p. 28 (1982) (S. Rep.). And that broad intent is manifest
in the provision's broad text. As always, this Court's task
is to read that language as Congress wrote it—to give the
section all the scope and potency Congress drafted it to have.
So I start by showing how Section 2's text requires courts
to eradicate voting practices that make it harder for mem-
bers of some races than of others to cast a vote, unless such
a practice is necessary to support a strong state interest. I
then show how far from that text the majority strays. Its
analysis permits exactly the kind of vote suppression that
Section 2, by its terms, rules out of bounds.
A
Section 2, as relevant here, has two interlocking parts.
Subsection (a) states the law's basic prohibition:
“No voting qualifcation or prerequisite to voting or
standard, practice, or procedure shall be imposed or ap-
plied by any State or political subdivision in a manner
which results in a denial or abridgement of the right of
any citizen of the United States to vote on account of
race or color.” 52 U. S. C. § 10301(a).
Subsection (b) then tells courts how to apply that bar—or
otherwise said, when to fnd that an infringement of the vot-
ing right has occurred:
“A violation of subsection (a) is established if, based on
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cal processes leading to nomination or election in the
St
ate or political subdivision are not equally open to par-
ticipation by members of [a given race] in that [those]
members have less opportunity than other members of
the electorate to participate in the political process and
to elect representatives of their choice.” § 10301(b).
3
Those provisions have a great many words, and I address
them further below. But their essential import is plain:
Courts are to strike down voting rules that contribute to a
racial disparity in the opportunity to vote, taking all the rele-
vant circumstances into account.
The frst thing to note about Section 2 is how far its pro-
hibitory language sweeps. The provision bars any “voting
qualifcation,” any “prerequisite to voting,” or any “standard,
practice, or procedure” that “results in a denial or abridge-
ment of the right” to “vote on account of race.” The over-
lapping list of covered state actions makes clear that Section
2 extends to every kind of voting or election rule. Congress
carved out nothing pertaining to “voter qualifcations or
the manner in which elections are conducted.” Holder v.
Hall, 512 U. S. 874, 922 (1994) (Thomas, J., concurring in
judgment). So, for example, the provision “covers all man-
ner of registration requirements, the practices surrounding
registration,” the “locations of polling places, the times polls
are open, the use of paper ballots as opposed to voting
machines, and other similar aspects of the voting process
that might be manipulated to deny any citizen the right to
cast a ballot and have it properly counted.” Ibid. All those
rules and more come within the statute—so long as they
result in a race-based “denial or abridgement” of the vot-
ing right. And the “denial or abridgement” phrase speaks
3
A fnal sentence, not at issue here, specifes that the voting right pro-
vided does not entitle minority citizens to proportional representation in
electoral offces. See in fra, at 708, n. 6.
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Kagan, J., dissenting
broadly too. “[A]bridgment necessarily means something
more
subtle and less drastic than the complete denial of
the right to cast a ballot, denial being separately forbidden.”
Bossier, 528 U. S., at 359 (Souter, J., concurring in part and
dissenting in part). It means to “curtail,” rather than take
away, the voting right. American Heritage Dictionary 4
(1969).
The “results in” language, connecting the covered voting
rules to the prohibited voting abridgment, tells courts that
they are to focus on the law's effects. Rather than hinge
liability on state offcials' motives, Congress made it ride
on their actions' consequences. That decision was as con-
sidered as considered comes. This Court, as the majority
notes, had construed the original Section 2 to apply to fa-
cially neutral voting practices “only if [they were] motivated
by a discriminatory purpose.” Bolden, 446 U. S., at 62; see
ante, at 658. Congress enacted the current Section 2 to re-
verse that outcome—to make clear that “results” alone could
lead to liability. An intent test, the Senate Report ex-
plained, “asks the wrong question.” S. Rep., at 36. If mi-
nority citizens “are denied a fair opportunity to participate,”
then “the system should be changed, regardless of ” what
“motives were in an offcial's mind.” Ibid. Congress also
saw an intent test as imposing “an inordinately diffcult bur-
den for plaintiffs.” Ibid. Even if state actors had purpose-
fully discriminated, they would likely be “ab[le] to offer a
non-racial rationalization,” supported by “a false trail” of “of-
fcial resolutions” and “other legislative history eschewing
any racial motive.” Id., at 37. So only a results-focused
statute could prevent States from fnding ways to abridge
minority citizens' voting rights.
But when to conclude—looking to effects, not purposes—
that a denial or abridgment has occurred? Again, answer-
ing that question is subsection (b)'s function. See supra, at
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“based on the totality of circumstances,” a State's electoral
system
is “not equally open” to members of a racial group.
And then the subsection tells us what that means. A sys-
tem is not equally open if members of one race have “less
opportunity” than others to cast votes, to participate in poli-
tics, or to elect representatives. The key demand, then, is
for equal political opportunity across races.
That equal “opportunity” is absent when a law or practice
makes it harder for members of one racial group, than for
others, to cast ballots. When Congress amended Section 2,
the word “opportunity” meant what it also does today: “a
favorable or advantageous combination of circumstances” for
some action. See American Heritage Dictionary, at 922.
In using that word, Congress made clear that the Voting
Rights Act does not demand equal outcomes. If members
of different races have the same opportunity to vote, but go
to the ballot box at different rates, then so be it—that is
their preference, and Section 2 has nothing to say. But if a
law produces different voting opportunities across races—if
it establishes rules and conditions of political participation
that are less favorable (or advantageous) for one racial group
than for others—then Section 2 kicks in. It applies, in
short, whenever the law makes it harder for citizens of one
race than of others to cast a vote.
4
4
I agree with the majority that “very small differences” among racial
groups do not matter. Ante, at 671. Some racial disparities are too small
to support a fnding of unequal access because they are not statistically
signifcant—that is, because they might have arisen from chance alone.
See Matrixx Initiatives, Inc. v. Siracusano, 563 U. S. 27, 39 (2011). The
statistical signifcance test is standard in all legal contexts addressing dis-
parate impact. See Ricci v. DeStefano, 557 U. S. 557, 587 (2009). In addi-
tion, there may be some threshold of what is sometimes called “practical
signifcance”—a level of inequality that, even if statistically meaningful, is
just too trivial for the legal system to care about. See Federal Judicial
Center, Reference Manual on Scientifc Evidence 252 (3d ed. 2011) (discuss-
ing differences that are not “practically important”).
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Kagan, J., dissenting
And that is so even if (as is usually true) the law does not
si
ngle out any race, but instead is facially neutral. Suppose,
as Justice Scalia once did, that a county has a law limiting
“voter registration [to] only three hours one day a week.”
Chisom, 501 U. S., at 408 (dissenting opinion). And suppose
that policy makes it “more diffcult for blacks to register than
whites”—say, because the jobs African Americans dispropor-
tionately hold make it harder to take time off in that window.
Ibid. Those citizens, Justice Scalia concluded, would then
“have less opportunity `to participate in the political process'
than whites, and § 2 would therefore be violated.” Ibid.
(emphasis deleted). In enacting Section 2, Congress docu-
mented many similar (if less extreme) facially neutral
rules—“registration requirements,” “voting and registration
hours,” voter “purging ” policies, and so forth—that create
disparities in voting opportunities. S. Rep., at 10, n. 22;
H. R. Rep. No. 97–227, pp. 11–17 (1981) (H. R. Rep.). Those
laws, Congress thought, would violate Section 2, though they
were not facially discriminatory, because they gave voters of
different races unequal access to the political process.
Congress also made plain, in calling for a totality-of-
circumstances inquiry, that equal voting opportunity is a
function of both law and background conditions—in other
words, that a voting rule's validity depends on how the rule
operates in conjunction with facts on the ground. “[T]otal-
ity review,” this Court has explained, stems from Congress's
recognition of “the demonstrated ingenuity of state and local
governments in hobbling minority voting power.” Johnson
v. De Grandy, 512 U. S. 997, 1018 (1994). Sometimes, of
course, state actions overtly target a single race: For exam-
ple, Congress was acutely aware, in amending Section 2, of
the elimination of polling places in African American neigh-
borhoods. See S. Rep., at 10, 11, and n. 22; H. R. Rep., at
17, 35. But sometimes government offcials enact facially
neutral laws that leverage—and become discriminatory by
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dint of—pre-existing social and economic conditions. The
classic
historical cases are literacy tests and poll taxes. A
more modern example is the one Justice Scalia gave, of lim-
ited registration hours. Congress knew how those laws
worked: It saw that “inferior education, poor employment
opportunities, and low incomes”—all conditions often corre-
lated with race—could turn even an ordinary-seeming
election rule into an effective barrier to minority voting in
certain circumstances. Thornburg v. Gingles, 478 U. S. 30,
69 (1986) (plurality opinion). So Congress demanded, as this
Court has recognized, “an intensely local appraisal” of a
rule's impact—“a searching practical evaluation of the `past
and present reality.' ” Id., at 79 (majority opinion); De
Grandy, 512 U. S., at 1018 (quoting S. Rep., at 30). “The es-
sence of a § 2 claim,” we have said, is that an election law “in-
teracts with social and historical conditions” in a particular
place to cause race-based inequality in voting opportunity.
Gingles, 478 U. S., at 47 (majority opinion). That interaction
is what the totality inquiry is mostly designed to discover.
At the same time, the totality inquiry enables courts to
take into account strong state interests supporting an elec-
tion rule. An all-things-considered inquiry, we have ex-
plained, is by its nature fexible. See De Grandy, 512 U. S.,
at 1018. On the one hand, it allows no “safe harbor[s]” for
election rules resulting in discrimination. Ibid. On the
other hand, it precludes automatic condemnation of those
rules. Among the “balance of considerations” a court is to
weigh is a State's need for the challenged policy. Houston
Lawyers' Assn. v. Attorney General of Tex., 501 U. S. 419,
427 (1991). But in making that assessment of state inter-
ests, a court must keep in mind—just as Congress did—the
ease of “offer[ing] a non-racial rationalization” for even
blatantly discriminatory laws. S. Rep., at 37; see supra, at
703. State interests do not get accepted on faith. And even
a genuine and strong interest will not suffce if a plaintiff can
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Kagan, J., dissenting
prove that it can be accomplished in a less discriminatory
way
. As we have put the point before: When a less racially
biased law would not “signifcantly impair[ ] the State's inter-
est,” the discriminatory election rule must fall. Houston
Lawyers' Assn., 501 U. S., at 428.
5
So the text of Section 2, as applied in our precedents, tells
us the following, every part of which speaks to the ambition
of Congress's action. Section 2 applies to any voting rule,
of any kind. The provision prohibits not just the denial but
also the abridgment of a citizen's voting rights on account of
race. The inquiry is focused on effects: It asks not about
why state offcials enacted a rule, but about whether that
rule results in racial discrimination. The discrimination
that is of concern is inequality of voting opportunity. That
5
The majority pretends that Houston Lawyers' Assn. did not ask about
the availability of a less discriminatory means of serving the State's end,
see ante, at 676, n. 16—but the inquiry is right there on page 428 (examin-
ing “if [the] impairment of a minority group's voting strength could be
remedied without signifcantly impairing the State's interest in electing
judges on a district-wide basis”). In posing that question, the Court did
what Congress wanted, because absent a necessity test, States could too
easily get away with offering “non-racial” but pretextual “rationaliza-
tion[s].” S. Rep., at 37; see supra, at 703. And the Court did what it
always does in applying laws barring discriminatory effects—ask whether
a challenged policy is necessary to achieve the asserted goal. See in fra,
at 715.
Contrary to the majority's view, that kind of inquiry would not result
in “invalidat[ing] just about any voting rule a State adopts.” Ante, at
677. A plaintiff bears the burden of showing that a less discriminatory
law would be “at least as effective in achieving the [State's] legitimate
purpose.” Reno v. American Civil Liberties Union, 521 U. S. 844, 874
(1997). And “cost may be an important factor” in that analysis, so the
plaintiff could not (as the majority proposes) say merely that the State can
combat fraud by “hiring more investigators and prosecutors.” Burwell v.
Hobby Lobby Stores, Inc., 573 U. S. 682, 730 (2014); ante, at 677. Given
those features of the alternative-means inquiry, a State that tries both to
serve its electoral interests and to give its minority citizens equal electoral
access will rarely have anything to fear from a Section 2 suit.

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kind of discrimination can arise from facially neutral (not just
t
argeted) rules. There is a Section 2 problem when an elec-
tion rule, operating against the backdrop of historical, social,
and economic conditions, makes it harder for minority citi-
zens than for others to cast ballots. And strong state inter-
ests may save an otherwise discriminatory rule, but only if
that rule is needed to achieve them—that is, only if a less
discriminatory rule will not attain the State's goal.
That is a lot of law to apply in a Section 2 case. Real
law—the kind created by Congress. (A strange thing, to
hear about it all only in a dissent.)
6
None of this law threat-
ens to “take down,” as the majority charges, the mass of
state and local election rules. Ante, at 677. Here is the
fipside of what I have said above, now from the plaintiff 's
perspective: Section 2 demands proof of a statistically sig-
6
Contra the majority, see ante, at 658–659, 674–675, and n. 14, the
House-Senate compromise reached in amending Section 2 has nothing to
do with the law relevant here. The majority is hazy about the content of
this compromise for a reason: It was about proportional representation.
As then-Justice Rehnquist explained, members of the Senate expressed
concern that the “results in” language of the House-passed bill would pro-
vide not “merely for equal `access' to the political process” but also “for
proportional representation” of minority voters. Mississippi Republican
Executive Committee v. Brooks, 469 U. S. 1002, 1010 (1984) (dissenting
opinion). Senator Dole's solution was to add text making clear that mi-
nority voters had a right to equal voting opportunities, but no right to
elect minority candidates “in numbers equal to their proportion in the
population.” 52 U. S. C. § 10301(b). The Dole Amendment, as Justice
Rehnquist noted, ensured that under the “results in” language equal “ `ac-
cess' only was required.” 469 U. S., at 1010–1011; see 128 Cong. Rec.
14132 (1982) (Sen. Dole explaining that as amended “the focus of the stand-
ard is on whether there is equal access to the political process, not on
whether members of a particular minority group have achieved propor-
tional election results”). Nothing—literally nothing—suggests that the
Senate wanted to water down the equal-access right that everyone agreed
the House's language covered. So the majority is dead wrong to say that
I want to “undo” the House-Senate compromise. Ante, at 674. It is the
majority that wants to transform that compromise to support a view of
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nificant racia l dispar ity in elec tora l oppor tunities (not
outcomes)
resulting from a law not needed to achieve a gov-
ernment's legitimate goals. That showing is hardly insub-
stantial; and as a result, Section 2 vote denial suits do not
often succeed (even with lower courts applying the law as
written, not the majority's new, concocted version). See
Brief for State and Local Election Offcials as Amici Curiae
15 (fnding only nine winning cases since Shelby County, each
involving “an intensely local appraisal” of a “controversial
polic[y] in specifc places”). But Section 2 was indeed meant
to do something important—crucial to the operation of our
democracy. The provision tells courts—however “radical”
the majority might fnd the idea, ante, at 678—to eliminate
facially neutral (as well as targeted) electoral rules that
unnecessarily create inequalities of access to the political
process. That is the very project of the statute, as con-
ceived and as written—and now as damaged by this Court.
B
The majority's opinion mostly inhabits a law-free zone. It
congratulates itself in advance for giving Section 2's text
“careful consideration.” Ante, at 667. And then it leaves
that language almost wholly behind. See ante, at 667–674.
(Every once in a while, when its lawmaking threatens to leap
off the page, it thinks to sprinkle in a few random statutory
words.) So too the majority barely mentions this Court's
precedents constr uing Secti on 2's text. On both those
counts, you can see why. As just described, Section 2's lan-
guage is broad. See supra, at 701–709. To read it fairly,
then, is to read it broadly. And to read it broadly is to do
much that the majority is determined to avoid. So the ma-
jority ignores the sweep of Section 2's prohibitory language.
It fails to note Section 2's application to every conceivable
kind of voting rule. It neglects to address the provision's
concern with how those rules may “abridge[ ],” not just deny,
minority citizens' voting rights. It declines to consider Con-
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gress's use of an effects test, rather than a purpose test, to
assess
the rules' legality. Nor does the majority acknowl-
edge the force of Section 2's implementing provision. The
majority says as little as possible about what it means for
voting to be “equally open,” or for voters to have an equal
“opportunity” to cast a ballot. See ante, at 667–668. It
only grudgingly accepts—and then apparently forgets—that
the provision applies to facially neutral laws with discrimina-
tory consequences. Compare ante, at 674, with ante, at 677.
And it hints that as long as a voting system is suffciently
“open,” it need not be equally so. See ante, at 669, 671. In
sum, the majority skates over the strong words Congress
drafted to accomplish its equally strong purpose: ensuring
that minority citizens can access the electoral system as eas-
ily as whites.
7
The majority instead founds its decision on a list of mostly
made-up factors, at odds with Section 2 itself. To excuse
this unusual free-form exercise, the majority notes that Sec-
tion 2 authorizes courts to conduct a “totality of circum-
7
In a single sentence, the majority huffs that “nobody disputes” various
of these “points of law.” Ante, at 674. Excellent! I only wish the ma-
jority would take them to heart, both individually and in combination.
For example, the majority says it agrees that Section 2 reaches beyond
denials of voting to any “abridgement.” But then, as I'll later discuss, it
insists that Section 2 has an interest only in rules that “block or seriously
hinder voting ”—which appears to create a “denial or serious abridge-
ment” standard. Ante, at 669; see in fra, at 711–712. Or, for example, the
majority says it accepts that Section 2 may prohibit facially neutral election
rules. But the majority takes every opportunity of casting doubt on those
applications. Each facially neutral rule it mentions is one that it “doubt[s]”
Congress could have “intended to uproot.” Ante, at 670; see ante, at 659–
660, 670, 673–674, 677. And it criticizes this dissent for understanding the
statute (but how could anyone understand it differently?) as focusing on
the racially “disparate impact” of neutral election rules on the opportunity
to vote. Ante, at 674. Most fundamentally, the majority refuses to ac-
knowledge how all the “points of law” it professes to agree with work in
tandem to signal a statute of signifcant power and scope.
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Kagan, J., dissenting
stances” analysis. Ante, at 668. But as described above,
Congress
mainly added that language so that Section 2 could
protect against “the demonstrated ingenuity of state and
local governments in hobbling minority voting power.”
De Grandy, 512 U. S., at 1018; see supra, at 705–706. The
totality inquiry requires courts to explore how ordinary-
seeming laws can interact with local conditions—economic,
social, historical—to produce race-based voting inequalities.
That inquiry hardly gives a court the license to devise what-
ever limitations on Section 2's reach it would have liked Con-
gress to enact. But that is the license the majority takes.
The “important circumstances” it invents all cut in one
direction—toward limiting liability for race-based voting
inequalities. Ante, at 669. (Indeed, the majority gratu-
itously dismisses several factors that point the opposite way.
See ante, at 672–674.) Think of the majority's list as a set
of extra-textual restrictions on Section 2—methods of coun-
teracting the law Congress actually drafted to achieve the
purposes Congress thought “important.” The list—not a
test, the majority hastens to assure us, with delusions of
modesty—stacks the deck against minority citizens' voting
rights. Never mind that Congress drafted a statute to pro-
tect those rights—to prohibit any number of schemes the
majority's non-test test makes it possible to save.
Start with the majority's frst idea: a “[m]ere inconven-
ience” exception to Section 2. Ante, at 669. Voting, the
majority says, imposes a set of “usual burdens”: Some time,
some travel, some rule compliance. Ibid. And all of that is
beneath the notice of Section 2—even if those burdens fall
highly unequally on members of different races. See ibid.
But that categorical exclusion, for seemingly small (or
“usual” or “[un]serious”) burdens, is nowhere in the provi-
sion's text. To the contrary (and as this Court has recog-
nized before), Section 2 allows no “safe harbor[s]” for elec-
tion rules resulting in disparate voting opportunities. De
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Grandy, 512 U. S., at 1018; see supra, at 706. The section
appl
ies to any discriminatory “voting qualifcation,” “prereq-
uisite to voting,” or “standard, practice, or procedure”—even
the kind creating only (what the majority thinks of as) an
ordinary burden. And the section cares about any race-
based “abridgments” of voting, not just measures that come
near to preventing that activity. Congress, recall, was in-
tent on eradicating the “subtle, as well as the obvious,” ways
of suppressing minority voting. Allen, 393 U. S., at 565; see
supra, at 703. One of those more subtle ways is to impose
“inconveniences,” especially a collection of them, differen-
tially affecting members of one race. The certain result—
because every inconvenience makes voting both somewhat
more diffcult and somewhat less likely—will be to deter mi-
nority votes. In countenancing such an election system, the
majority departs from Congress's vision, set down in text, of
ensuring equal voting opportunity. It chooses equality-lite.
And what is a “mere inconvenience” or “usual burden”
anyway? The drafters of the Voting Rights Act under-
stood that “social and historical conditions,” including dispar-
ities in education, wealth, and employment, often affect op-
portunities to vote. Gingles, 478 U. S., at 47; see supra, at
705–706. What does not prevent one citizen from casting a
vote might prevent another. How is a judge supposed to
draw an “inconvenience” line in some reasonable place, tak-
ing those differences into account? Consider a law banning
the handing out of water to voters. No more than—or not
even—an inconvenience when lines are short; but what of
when they are, as in some neighborhoods, hours-long? The
point here is that judges lack an objective way to decide
which voting obstacles are “mere” and which are not, for
all voters at all times. And so Section 2 does not ask the
question.
The majority's “multiple ways to vote” factor is similarly
fawed. Ante, at 671. True enough, a State with three ways
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to vote (say, on Election Day; early in person; or by mail)
may
be more “open” than a State with only one (on Election
Day). And some other statute might care about that. But
Section 2 does not. What it cares about is that a State's
“political processes” are “equally open” to voters of all races.
And a State's electoral process is not equally open if, for
example, the State “only” makes Election Day voting by
members of one race peculiarly diffcult. The House Report
on Section 2 addresses that issue. It explains that an elec-
tion system would violate Section 2 if minority citizens had
a lesser opportunity than white citizens to use absentee bal-
lots. See H. R. Rep., at 31, n. 106. Even if the minority
citizens could just as easily vote in person, the scheme would
“result in unequal access to the political process.” Id., at
31. That is not some piece of contestable legislative history.
It is the only reading of Section 2 possible, given the stat-
ute's focus on equality. Maybe the majority does not mean
to contest that proposition; its discussion of this supposed
factor is short and cryptic. But if the majority does intend
to excuse so much discrimination, it is wrong. Making one
method of voting less available to minority citizens than to
whites necessarily means giving the former “less opportu-
nity than other members of the electorate to participate in
the political process.” § 10301(b).
The majority's history-and-commonality factor also pushes
the inquiry away from what the statute demands. The odd-
est part of the majority's analysis is the idea that “what was
standard practice when § 2 was amended in 1982 is a relevant
consideration.” Ante, at 669–670. The 1982 state of the
world is no part of the Section 2 test. An election rule preva-
lent at that time may make voting harder for minority than for
white citizens; Section 2 then covers such a rule, as it covers
any other. And contrary to the majority's unsupported
speculation, Congress “intended” exactly that. Ante, at 670;
see H. R. Rep., at 14 (explaining that the Act aimed to eradi-
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cate the “numerous practices and procedures which act as
conti
nued barriers to registration and voting ”).
8
Section 2
was meant to disrupt the status quo, not to preserve it—to
eradicate then-current discriminatory practices, not to set
them in amber. See Bossier, 528 U. S., at 334 (under Section
2, “[i]f the status quo” abridges the right to vote “relative to
what the right to vote ought to be, the status quo itself must
be changed”).
9
And as to election rules common now, the
majority oversimplifes. Even if those rules are unlikely to
violate Section 2 everywhere, they may easily do so some-
where. That is because the demographics and political
geography of States vary widely and Section 2's application
depends on place-specifc facts. As we have recognized, the
statute calls for “an intensely local appraisal,” not a count-
up-the-States exercise. Gingles, 478 U. S., at 79; see supra,
at 706. This case, as I'll later discuss, offers a perfect illus-
tration of how the difference between those two approaches
can matter. See infra, at 718–729.
8
The House Report listed some of those offensive, even though facially
neutral and then-prevalent, practices: “inconvenient location and hours of
registration, dual registration for county and city elections,” “frequent
and unnecessary purgings and burdensome registration requirements, and
failure to provide . . . assistance to illiterates.” H. R. Rep., at 14. So too
the Senate Report complained of “inconvenient voting and registration
hours” and “reregistration requirements and purging of voters.” S. Rep.,
at 10, n. 22; see supra, at 705.
9
Even setting aside Section 2's status-quo-disrupting lean, this Court
has long rejected—including just last Term—the majority's claim that the
state of the world at the time of a statute's enactment provides a useful
“benchmark[ ]” when applying a broadly written law. Ante, at 670. Such
a law will typically come to encompass applications—even “important”
ones—that were not “foreseen at the time of enactment.” Bostock v.
Clayton County, 590 U. S. 644, 676 (2020). To prevent that from happen-
ing—as the majority does today, on the ground that Congress simply must
have “intended” it—is “to displace the plain meaning of the law in favor
of something lying beyond it.” Ibid.; see id., at 680 (When a law is “writ-
ten in starkly broad terms,” it is “virtually guaranteed that unexpected
applications [will] emerge over time”).
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That leaves only the majority's discussion of state inter-
ests,
which is again skewed so as to limit Section 2 liability.
No doubt that under our precedent, a state interest in
an election rule “is a legitimate factor to be considered.”
Houston Lawyers' Assn., 501 U. S., at 426. But the major-
ity wrongly dismisses the need for the closest possible ft
between means and end—that is, between the terms of the
rule and the State's asserted interest. Ante, at 673–674.
In the past, this Court has stated that a discriminatory elec-
tion rule must fall, no matter how weighty the interest
claimed, if a less biased law would not “signifcantly impair
[that] interest.” Houston Lawyers' Assn., 501 U. S., at 428;
see supra, at 706–707, and n. 5. And as the majority con-
cedes, we apply that kind of means-end standard in every
other context—employment, housing, banking—where the
law addresses racially discriminatory effects: There, the rule
must be “strict[ly] necess[ary]” to the interest. Ante, at 673;
see, e.g., Albemarle Paper Co. v. Moody, 422 U. S. 405, 425
(1975) (holding that an employment policy cannot stand if
another policy, “without a similarly undesirable racial effect,
would also serve the employer's legitimate interest”). The
majority argues that “[t]he text of [those] provisions” differs
from Section 2's. Ante, at 673. But if anything, Section 2
gives less weight to competing interests: Unlike in most dis-
crimination laws, they enter the inquiry only through the
provision's reference to the “totality of circumstances”—
through, then, a statutory backdoor. So the majority falls
back on the idea that “[d]emanding such a tight ft would
have the effect of invalidating a great many neutral voting
regulations.” Ante, at 673; see ante, at 677. But a state
interest becomes relevant only when a voting rule, even if
neutral on its face, is found not neutral in operation—only,
that is, when the rule provides unequal access to the political
process. Apparently, the majority does not want to “invali-
date [too] many” of those actually discriminatory rules. But
Congress had a different goal in enacting Section 2.
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The majority's approach, which would ask only whether
a
discriminatory law “reasonably pursue[s] important state
interests,” gives election offcials too easy an escape from
Section 2. Ante, at 677 (emphasis added). Of course pre-
venting voter intimidation is an important state interest.
And of course preventing election fraud is the same. But
those interests are also easy to assert groundlessly or pre-
textually in voting discrimination cases. Congress knew
that when it passed Section 2. Election offcials can all too
often, the Senate Report noted, “offer a non-racial rational-
ization” for even laws that “purposely discriminate[ ].”
S. Rep., at 37; see supra, at 703, 706–707, and n. 5. A neces-
sity test flters out those offerings. See, e.g., Albemarle, 422
U. S., at 425. It thereby prevents election offcials from
fouting, circumventing, or discounting Section 2's command
not to discriminate.
In that regard, the past offers a lesson to the present.
Throughout American history, election offcials have as-
serted anti-fraud interests in using voter suppression laws.
Poll taxes, the classic mechanism to keep black people from
voting, were often justifed as “preserv[ing] the purity of the
ballot box [and] facilitat[ing] honest elections.” J. Kousser,
The Shaping of Southern Politics 111, n. 9 (1974). A raft of
election regulations—including “elaborate registration pro-
cedures” and “early poll closings”—similarly excluded white
immigrants (Irish, Italians, and so on) from the polls on the
ground of “prevent[ing] fraud and corruption.” Keyssar
159; see ibid. (noting that in those times “claims of wide-
spread corruption” were backed “almost entirely” by “anec-
dotes [with] little systematic investigation or evidence”).
Take even the majority's example of a policy advancing
an “important state interest”: “the use of private voting
booths, ” i n wh ich voters marked their own ba l lots.
Ante, at 672. In the majority's high-minded account, that
innovation—then known as the Australian voting system, for
the country that introduced it—served entirely to prevent
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undue infuence. But when adopted, it also prevented many
i
lliterate citizens—especially African Americans—from vot-
ing. And indeed, that was partly the point. As an 1892
Arkansas song went:
The Australian Ballot works like a charm,
It makes them think and scratch,
And when a Negro gets a ballot
He has certainly got his match.
Kousser 54. Across the South, the Austra l ian ba l lot
decreased voter participation among whites by anywhere
from 8% to 28% but among African Americans by anywhere
from 15% to 45%. See id., at 56. Does that mean secret
ballot laws violate Section 2 today? Of course not. But
should the majority's own example give us all a bit of pause?
Yes, it should. It serves as a reminder that States have
always found it natural to wrap discriminatory policies in
election-integrity garb.
Congress enacted Section 2 to prevent those maneuvers
from working. It knew that States and localities had over
time enacted measure after measure imposing discrimina-
tory voting burdens. And it knew that governments were
profcient in justifying those measures on non-racial grounds.
So Congress called a halt. It enacted a statute that would
strike down all unnecessary laws, including facially neutral
ones, that result in members of a racial group having unequal
access to the political process.
But the majority is out of sympathy with that measure.
The majority thinks a statute that would remove those laws
is not, as Justice Ginsburg once called it, “consequential,
effcacious, and amply justifed.” Shelby County, 570 U. S.,
at 562 (dissenting opinion). Instead, the majority thinks it
too “radical” to stomach. Ante, at 674, 678. The majority
objects to an excessive “transfer of the authority to set vot-
ing rules from the States to the federal courts.” Ante, at 678.
It even sees that transfer as “[un]democratic.” Ibid. But
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maybe the majority should pay more attention to the “histor-
ica
l background” that it insists “does not tell us how to decide
these cases.” Ante, at 674. That history makes clear the
incongruity, in interpreting this statute, of the majority's
paean to state authority—and conversely, its denigration of
federal responsibility for ensuring non-discriminatory voting
rules. The Voting Rights Act was meant to replace state
and local election rules that needlessly make voting harder
for members of one race than for others. The text of the Act
perfectly refects that objective. The “democratic” princi-
ple it upholds is not one of States' rights as against fed-
eral courts. The democratic principle it upholds is the right
of every American, of every race, to have equal access to
the ballot box. The majority today undermines that princi-
ple as it refuses to apply the terms of the statute. By de-
claring some racially discriminatory burdens inconsequen-
tial, and by refusing to subject asserted state interests to
serious means-end scrutiny, the majority enables voting
discrimination.
III
Just look at Arizona. Two of that State's policies dispro-
portionately affect minority citizens' opportunity to vote.
The frst—the out-of-precinct policy—results in Hispanic and
African American voters' ballots being thrown out at a sta-
tistically higher rate than those of whites. And whatever
the majority might say about the ordinariness of such a rule,
Arizona applies it in extra-ordinary fashion: Arizona is the
national outlier in dealing with out-of-precinct votes, with
the next-worst offender nowhere in sight. The second
rule—the ballot-collection ban—makes voting meaningfully
more diffcult for Native American citizens than for others.
And nothing about how that ban is applied is “usual” either—
this time because of how many of the State's Native Ameri-
can citizens need to travel long distances to use the mail.
Both policies violate Section 2, on a straightforward applica-
tion of its text. Considering the “totality of circumstances,”
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both “result in” members of some races having “less oppor-
tunity
than other members of the electorate to participate
in the political process and to elect representatives of their
choice.” § 10301(b). The majority reaches the opposite
conclusion because it closes its eyes to the facts on the
ground.
10
A
Arizona's out-of-precinct policy requires discarding any
Election Day ballot cast elsewhere than in a voter's assigned
precinct. Under the policy, offcials throw out every choice
in every race—including national or statewide races (e.g., for
President or Governor) that appear identically on every pre-
cinct's ballot. The question is whether that policy unequally
affects minority citizens' opportunity to cast a vote.
Although the majority portrays Arizona's use of the rule
as “unremarkable,” ante, at 678, the State is in fact a national
aberration when it comes to discarding out-of-precinct bal-
lots. In 2012, about 35,000 ballots across the country were
thrown out because they were cast at the wrong precinct.
See U. S. Election Assistance Commission, 2012 Election Ad-
ministration and Voting Survey 53 (2013). Nearly one in
three of those discarded votes—10,979—was cast in Arizona.
Id., at 52. As the Court of Appeals concluded, and the chart
below indicates, Arizona threw away ballots in that year at
11 times the rate of the second-place discarder (Washington
State). Democratic Nat. Committee v. Hobbs, 948 F. 3d 989,
1001 (CA9 2020); see App. 72. Somehow the majority labels
that difference “marginal[ ],” ante, at 679, but it is anything
but. More recently, the number of discarded ballots in the
State has gotten smaller: Arizona counties have increasingly
abandoned precinct-based voting (in favor of county-wide
“vote centers”), so the out-of-precinct rule has fewer votes
10
Because I would affrm the Court of Appeals' holding that the effects
of these policies violate Section 2, I need not pass on that court's alterna-
tive holding that the laws were enacted with discriminatory intent.
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to operate on. And the majority primarily relies on those
latest
(2016) numbers. But across the fve elections at issue
in this litigation (2008–2016), Arizona threw away far more
out-of-precinct votes—almost 40,000—than did any other
State in the country.
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Votes in such numbers can matter—enough for Section 2
to apply. The majority obliquely suggests not, comparing
the smallish number of thrown-out votes (minority and non-
minority alike) to the far larger number of votes cast and
counted. See ante, at 680. But elections are often fought
and won at the margins—certainly in Arizona. Consider
the number of votes separating the two presidential candi-
dates in the most recent election: 10,457. That is fewer
votes than Arizona discarded under the out-of-precinct policy
in two of the prior three presidential elections. This Court
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“that a small group of voters can never infuence the outcome
of
an election.” Chisom, 501 U. S., at 397, n. 24. For that
reason, we held that even “a small minority” group can claim
Section 2 protection. See ibid. Similarly here, the out-of-
precinct policy—which discards thousands upon thousands of
ballots in every election—affects more than suffcient votes
to i mpl icate Sec ti on 2's g uarantee of equa l elec tora l
opportunity.
And the out-of-precinct policy operates unequally: Ballots
cast by minorities are more likely to be discarded. In 2016,
Hispanics, African Americans, and Native Americans were
about twice as likely—or said another way, 100% more
likely—to have their ballots discarded than whites. See
App. 122. And it is possible to break that down a bit. Sixty
percent of the voting in Arizona is from Maricopa County.
There, Hispanics were 110% more likely, African Americans
86% more likely, and Native Americans 73% more likely to
have their ballots tossed. See id., at 153. Pima County, the
next largest county, provides another 15% of the statewide
vote. There, Hispanics were 148% more likely, African
Americans 80% more likely, and Native Americans 74% more
likely to lose their votes. See id., at 157. The record does
not contain statewide fgures for 2012. But in Maricopa and
Pima Counties, the percentages were about the same as in
2016. See id., at 87, 91. Assessing those disparities, the
plaintiffs' expert found, and the District Court accepted, that
the discriminatory impact of the out-of-precinct policy was
statistically signifcant—meaning, again, that it was highly
unlikely to occur by chance. See Democratic Nat. Commit-
tee v. Reagan, 329 F. Supp. 3d 824, 871 (Ariz. 2018); supra,
at 704, n. 4.
The majority is wrong to assert that those statistics are
“highly misleading.” Ante, at 680. In the majority's view,
they can be dismissed because the great mass of voters are
unaffected by the out-of-precinct policy. See ibid. But
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ity calls them) than in relative ones. Ante, at 680; see
sup
ra, at 703–704. Arizona's policy creates a statistically
signifcant disparity between minority and white voters: Be-
cause of the policy, members of different racial groups do not
in fact have an equal likelihood of having their ballots
counted. Suppose a State decided to throw out 1% of the
Hispanic vote each election. Presumably, the majority
would not approve the action just because 99% of the His-
panic vote is unaffected. Nor would the majority say that
Hispanics in that system have an equal shot of casting an
effective ballot. Here, the policy is not so overt; but under
Section 2, that difference does not matter. Because the pol-
icy “results in” statistically signifcant inequality, it impli-
cates Section 2. And the kind of inequality that the policy
produces is not the kind only a statistician could see. A rule
that throws out, each and every election, thousands of votes
cast by minority citizens is a rule that can affect election
outcomes. If you were a minority vote suppressor in Ari-
zona or elsewhere, you would want that rule in your bag of
tricks. You would not think it remotely irrelevant.
And the case against Arizona's policy grows only stronger
the deeper one digs. The majority fails to conduct the
“searching practical evaluation” of “past and present reality”
that Section 2's “totality of circumstances” inquiry demands.
De Grandy, 512 U. S., at 1018. Had the majority done so, it
would have discovered why Arizona's out-of-precinct policy
has such a racially disparate impact on voting opportunity.
Much of the story has to do with the siting and shifting of
polling places. Arizona moves polling places at a startling
rate. Maricopa County (recall, Arizona's largest by far)
changed 40% or more of polling places before both the 2008
and the 2012 elections. See 329 F. Supp. 3d, at 858 (noting
also that changes “continued to occur in 2016”). In 2012 (the
election with the best data), voters affected by those changes
had an out-of-precinct voting rate that was 40% higher than
other voters did. See ibid. And, critically, Maricopa's relo-
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cations hit minority voters harder than others. In 2012, the
county
moved polling stations in African American and His-
panic neighborhoods 30% more often than in white ones.
See App. 110–111. The odds of those changes leading to
mistakes increased yet further because the affected areas
are home to citizens with relatively low education and income
levels. See id., at 170–171. And even putting relocations
aside, the siting of polling stations in minority areas caused
sig nificant out-of-precinct voting. Hispanic and Native
American voters had to travel further than white voters did
to their assigned polling places. See id., at 109. And all
minority voters were disproportionately likely to be assigned
to polling places other than the ones closest to where they
lived. See id., at 109, and n. 30, 175–176. Small wonder,
given such siting decisions, that minority voters found it
harder to identify and get to their correct precincts. But
the majority does not address these matters.
11
Facts also undermine the State's asserted interests, which
the majority hangs its hat on. A government interest, as
even the majority recognizes, is “merely one factor to be con-
sidered” in Section 2's totality analysis. Houston Lawyers'
Assn., 501 U. S., at 427; see ante, at 671. Here, the State
contends that it needs the out-of-precinct policy to support a
precinct-based voting system. But 20 other States combine
precinct-based systems with mechanisms for partially count-
11
The majority's excuse for failing to consider the plaintiffs' evidence on
Arizona's siting of polling places is that the plaintiffs did not bring a sepa-
rate claim against those practices. See ante, at 682, n. 18. If that sounds
odd, it is. The majority does not contest that the evidence on polling-
place siting is relevant to the plaintiffs' challenge to the out-of-precinct
policy. Nor could the majority do so. The siting practices are one of the
background conditions against which the out-of-precinct policy operates—
exactly the kind of thing that a totality-of-circumstances analysis demands
a court take into account. To refuse to think about those practices be-
cause the plaintiffs might have brought a freestanding claim against them
is to impose an out-of-thin-air pleading requirement that operates to ex-
clude exactly the evidence that most strongly signals a Section 2 violation.
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ing out-of-precinct ballots (that is, counting the votes for of-
fces
like President or Governor). And the District Court
found that it would be “administratively feasible” for Arizona
to join that group. 329 F. Supp. 3d, at 860. Arizona—
echoed by the majority—objects that adopting a partial-
counting approach would decrease compliance with the vote-
in-your-precinct rule (by reducing the penalty for a voter's
going elsewhere). But there is more than a little paradox
in that response. We know from the extraordinary number
of ballots Arizona discards that its current system fails ut-
terly to “induce[ ] compliance.” Ante, at 681; see supra, at
719–720. Presumably, that is because the system—most
notably, its placement and shifting of polling places—sows
an unparalleled level of voter confusion. A State that makes
compliance with an election rule so unusually hard is in no
position to claim that its interest in “induc[ing] compliance”
outweighs the need to remedy the race-based discrimination
that rule has caused.
B
Arizona's law mostly banning third-party ballot collection
also results in a signifcant race-based disparity in voting
opportunities. The problem with that law again lies in facts
nearly unique to Arizona—here, the presence of rural Native
American communities that lack ready access to mail service.
Given that circumstance, the Arizona statute discriminates
in just the way Section 2 proscribes. The majority once
more comes to a different conclusion only by ignoring the
local conditions with which Arizona's law interacts.
The critical facts for evaluating the ballot-collection rule
have to do with mail service. Most Arizonans vote by mail.
But many rural Native American voters lack access to mail
service, to a degree hard for most of us to fathom. Only
18% of Native voters in rural counties receive home mail
delivery, compared to 86% of white voters living in those
counties. See 329 F. Supp. 3d, at 836. And for many or
most, there is no nearby post offce. Native Americans in
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rural Arizona “often must travel 45 minutes to 2 hours just
to
get to a mailbox.” 948 F. 3d, at 1006; see 329 F. Supp. 3d,
at 869 (“Ready access to reliable and secure mail service is
nonexistent” in some Native American communities). And
between a quarter to a half of households in these Native
communities do not have a car. See ibid. So getting bal-
lots by mail and sending them back poses a serious challenge
for Arizona's rural Native Americans.
12
For that reason, an unusually high rate of Native Ameri-
cans used to “return their early ballots with the assistance of
third parties.” Id., at 870.
13
As the District Court found:
“[F]or many Native Americans living in rural locations,”
voting “is an activity that requires the active assistance of
friends and neighbors.” Ibid. So in some Native communi-
ties, third-party collection of ballots—mostly by fellow clan
members—became “standard practice.” Ibid. And stop-
ping it, as one tribal election offcial testifed, “would be a
huge devastation.” Ibid.; see Brief for Navajo Nation as
Amicus Curiae 19–20 (explaining that ballot collection is
how Navajo voters “have historically handled their mail-in
ballots”).
Arizona has always regulated these activities to prevent
fraud. State law makes it a felony offense for a ballot collec-
tor to fail to deliver a ballot. See Ariz. Rev. Stat. Ann. § 16–
12
Certain Hispanic communities in Arizona confront similar diffculties.
For example, in the border town of San Luis, which is 98% Hispanic, “[a]l-
most 13,000 residents rely on a post offce located across a major highway”
for their mail service. 329 F. Supp. 3d, at 869. The median income in
San Luis is $22,000, so “many people [do] not own[ ] cars”—making it “dif-
fcult” to “receiv[e] and send[ ] mail.” Ibid.
13
The majority faults the plaintiffs for failing to provide “concrete” sta-
tistical evidence on this point. See ante, at 684. But no evidence of that
kind exists: Arizona has never compiled data on third-party ballot collec-
tion. And the witness testimony the plaintiffs offered in its stead allowed
the District Court to conclude that minority voters, and especially Native
Americans, disproportionately needed third-party assistance to vote. See
329 F. Supp. 3d, at 869–870.
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1005 (Cum. Supp. 2020). It is also a felony for a ballot collec-
tor
to tamper with a ballot in any manner. See ibid. And
as the District Court found, “tamper evident envelopes and
a rigorous voter signature verifcation procedure” protect
against any such attempts. 329 F. Supp. 3d, at 854. For
those reasons and others, no fraud involving ballot collection
has ever come to light in the State. Id., at 852.
Still, Arizona enacted—with full knowledge of the
likely discriminatory consequences—the near-blanket ballot-
collection ban challenged here. The frst version of the
law—much less stringent than the current one—passed the
Arizona Legislature in 2011. But the Department of Jus-
tice, in its Section 5 review, expressed skepticism about the
statute's compliance with the Voting Rights Act, and the leg-
islature decided to repeal the law rather than see it blocked
(and thereby incur statutory penalties). See 329 F. Supp.
3d, at 880; 52 U. S. C. § 10303(a)(1)(E) (providing that if a
state law fails Section 5 review, the State may not escape
the preclearance process for another 10 years). Then, this
Court decided Shelby County. With Section 5 gone, the
State Legislature felt free to proceed with a new ballot-
collection ban, despite the potentially discriminatory effects
that the preclearance process had revealed. The enacted
law contains limited exceptions for family members and care-
givers. But it includes no similar exceptions for clan mem-
bers or others with Native kinship ties. They and anyone
else who picks up a neighbor's ballot and takes it to a post
offce, or delivers it to an election site, is punishable as a
felon. See Ariz. Rev. Stat. § 16–1005(H).
Put all of that together, and Arizona's ballot-collection ban
violates Section 2. The ban interacts with conditions on the
ground—most crucially, disparate access to mail service—to
create unequal voting opportunities for Native Americans.
Recall that only 18% of rural Native Americans in the State
have home delivery; that travel times of an hour or more to
the nearest post offce are common; that many members of

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Kagan, J., dissenting
the community do not have cars. See supra, at 724–725.
Given
those facts, the law prevents many Native Americans
from making effective use of one of the principal means of
voting in Arizona.
14
What is an inconsequential burden for
others is for these citizens a severe hardship. And the State
has shown no need for the law to go so far. Arizona, as
noted above, already has statutes in place to deter fraudulent
collection practices. See supra, at 725–726. Those laws
give every sign of working. Arizona has not offered any
evidence of fraud in ballot collection, or even an account of a
harm threatening to happen. See 329 F. Supp. 3d, at 852
(“[T]here has never been a case of voter fraud associated
with ballot collection charged in Arizona”). And anyway,
Arizona did not have to entirely forgo a ballot-collection re-
striction to comply with Section 2. It could, for example,
have added an exception to the statute for Native clan or
kinship ties, to accommodate the special, “intensely local”
situation of the rural Native American community. Gingles,
478 U. S., at 79. That Arizona did not do so shows, at best,
selective indifference to the voting opportunities of its Na-
tive American citizens.
The majority's opinion fails to acknowledge any of these
facts. It quotes extensively from the District Court's fnd-
ing that the ballot-collection ban does not interfere with the
voting opportunities of minority groups generally. See
ante, at 684, n. 19. But it never addresses the court's sepa-
14
To make matters worse, in-person voting does not provide a feasible
alternative for many rural Native voters. Given the low population den-
sity on Arizona's reservations, the distance to an assigned polling place—
like that to a post offce—is usually long. Again, many Native citizens do
not own cars. And the State's polling-place siting practices cause some
voters to go to the wrong precincts. Respecting the last factor, the Dis-
trict Court found that because Navajo voters “lack standard addresses[,]
their precinct assignments” are “based upon guesswork.” Democratic
Nat. Committee v. Reagan, 329 F. Supp. 3d 824, 873 (Ariz. 2018). As a
result, there is frequent “confusion about the voter's correct polling
place.” Ibid.
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rate fnding that the ban poses a unique burden for Native
Amer
icans. See supra, at 724–726. Except in a pair of
footnotes responding to this dissent, the term “Native Amer-
ican” appears once (count it, once) in the majority's fve-page
discussion of Arizona's ballot-collection ban. So of course
that community's strikingly limited access to mail service is
not addressed.
15
In the majority's alternate world, the
collection ban is just a “usual burden[ ] of voting ” for every-
one. Ante, at 683. And in that world, “[f]raud is a real
risk” of ballot collection—as to every community, in every
circumstance—just because the State in litigation asserts
that it is. Ante, at 686. The State need not even show that
the discriminatory rule it enacted is necessary to prevent
the fraud it purports to fear. So the State has no duty to
substitute a non-discriminatory rule that would adequately
15
In one of those footnotes, the majority defends its omission by saying
that “no individual [Native American] voter testifed that [the collection
ban] would make it signifcantly more diffcult for him or her to vote.”
Ante, at 686–687, n. 21. But as stated above, the District Court found,
based on the testimony of “lawmakers, elections offcials[,] community ad-
vocates,” and tribal representatives, that the ban would have that effect
for many Native American voters. 329 F. Supp. 3d, at 868; see id., at 870
(“[F]or many Native Americans living in rural locations,” voting “is an
activity that requires the active assistance of friends and neighbors”);
supra, at 724–726. The idea that the claim here fails because the plain-
tiffs did not produce less meaningful evidence (a single person's experi-
ence) does not meet the straight-face standard. And the majority's re-
maining argument is, if anything, more eccentric. Here, the majority
assures us that the Postal Service has a “statutory obligation[ ]” to provide
“effective and regular postal services to rural areas.” Ante, at 687, n. 21.
But the record shows what the record shows—once again, in the Court of
Appeals' words, that Native Americans in rural Arizona “often must
travel 45 minutes to 2 hours just to get to a mailbox.” Democratic Nat.
Committee v. Hobbs, 948 F. 3d 989, 1006 (CA9 2020). That kind of back-
ground circumstance is central to Section 2's totality-of-circumstances
analysis—and here produces a signifcant racial disparity in the opportu-
nity to vote. The majority's argument to the contrary is no better than
if it condoned a literacy test on the ground that a State had long had a
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Kagan, J., dissenting
serve its professed goal. Like the rest of today's opinion,
the
majority's treatment of the collection ban thus fouts
what Section 2 commands: the eradication of election rules
resulting in unequal opportunities for minority voters.
IV
Congress enacted the Voting Rights Act to address a deep
fault of our democracy—the historical and continuing at-
tempt to withhold from a race of citizens their fair share
of infuence on the political process. For a century, African
Americans had struggled and sacrifced to wrest their voting
rights from a resistant Nation. The statute they and their
allies at long last attained made a promise to all Americans.
From then on, Congress demanded, the political process
would be equally open to every citizen, regardless of race.
One does not hear much in the majority opinion about that
promise. One does not hear much about what brought Con-
gress to enact the Voting Rights Act, what Congress hoped
for it to achieve, and what obstacles to that vision remain
today. One would never guess that the Act is, as the Presi-
dent who signed it wrote, “monumental.” Johnson Papers
841. For all the opinion reveals, the majority might be con-
sidering any old piece of legislation—say, the Lanham Act
or ERISA.
But then, at least, the majority should treat the Voting
Rights Act as if it were ordinary legislation. The Court al-
ways says that it must interpret a statute according to its
text—that it has no warrant to override congressional
choices. But the majority today fouts those choices with
abandon. The language of Section 2 is as broad as broad
can be. It applies to any policy that “results in” disparate
voting opportunities for minority citizens. It prohibits,
without any need to show bad motive, even facially neutral
laws that make voting harder for members of one race than
of another, given their differing life circumstances. That is
the expansive statute Congress wrote, and that our prior
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decisions have recognized. But the majority today lessens
the
law—cuts Section 2 down to its own preferred size. The
majority creates a set of extra-textual exceptions and consid-
erations to sap the Act's strength, and to save laws like Ari-
zona's. No matter what Congress wanted, the majority has
other ideas.
This Court has no right to remake Section 2. Maybe
some think that vote suppression is a relic of history—and
so the need for a potent Section 2 has come and gone. Cf.
Shelby County, 570 U. S., at 547 (“[T]hings have changed
dramatically”). But Congress gets to make that call. Be-
cause it has not done so, this Court's duty is to apply the law
as it is written. The law that confronted one of this coun-
try's most enduring wrongs; pledged to give every American,
of every race, an equal chance to participate in our democ-
racy; and now stands as the crucial tool to achieve that goal.
That law, of all laws, deserves the sweep and power Con-
gress gave it. That law, of all laws, should not be diminished
by this Court.
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