Nos. 19-1257, 19-1258
`
`
`
`IN THE
`Supreme Court of the United States
`_______________________
`
`MARK BRNOVICH, ATTORNEY GENERAL OF ARIZONA, ET AL.,
`Petitioners,
`
`v.
`DEMOCRATIC NATIONAL COMMITTEE, ET AL.,
`Respondents.
`
`__________
`ARIZONA REPUBLICAN PARTY, ET AL.,
`Petitioners,
`
`v.
`
`DEMOCRATIC NATIONAL COMMITTEE, ET AL.,
`Respondents.
`
`______________________
`On Writs of Certiorari to the
`U.S. Court of Appeals for the Ninth Circuit
`______________________
`BRIEF OF CONSTITUTIONAL
`ACCOUNTABILITY CENTER AS AMICUS
`CURIAE IN SUPPORT OF RESPONDENTS
`_______________________
`ELIZABETH B. WYDRA
`BRIANNE J. GOROD*
`DAVID H. GANS
`CONSTITUTIONAL
` ACCOUNTABILITY CENTER
`1200 18th Street NW, Suite 501
`Washington, D.C. 20036
`(202) 296-6889
`brianne@theusconstitution.org
`
`
`
`
`
`
`
`
`
`
`
`
`
`Counsel for Amicus Curiae
`January 19, 2021
`
`* Counsel of Record
`
`
`
`
`
`
`
`IN THE
`Supreme Court of the United States
`_______________________
`
`MARK BRNOVICH, ATTORNEY GENERAL OF ARIZONA, ET AL.,
`Petitioners,
`
`v.
`DEMOCRATIC NATIONAL COMMITTEE, ET AL.,
`Respondents.
`
`__________
`ARIZONA REPUBLICAN PARTY, ET AL.,
`Petitioners,
`
`v.
`
`DEMOCRATIC NATIONAL COMMITTEE, ET AL.,
`Respondents.
`
`______________________
`On Writs of Certiorari to the
`U.S. Court of Appeals for the Ninth Circuit
`______________________
`BRIEF OF CONSTITUTIONAL
`ACCOUNTABILITY CENTER AS AMICUS
`CURIAE IN SUPPORT OF RESPONDENTS
`_______________________
`ELIZABETH B. WYDRA
`BRIANNE J. GOROD*
`DAVID H. GANS
`CONSTITUTIONAL
` ACCOUNTABILITY CENTER
`1200 18th Street NW, Suite 501
`Washington, D.C. 20036
`(202) 296-6889
`brianne@theusconstitution.org
`
`
`
`
`
`
`
`
`
`
`
`
`
`Counsel for Amicus Curiae
`January 19, 2021
`
`* Counsel of Record
`
`
`
`
`
`
`
`TABLE OF CONTENTS
`
`1
`5
`
`5
`
`Page
`TABLE OF AUTHORITIES .................................
`ii
`INTEREST OF AMICUS CURIAE ......................
`1
`INTRODUCTION AND SUMMARY OF ARGU-
`MENT .................................................................
`ARGUMENT .........................................................
`I.
`THE TEXT AND HISTORY OF THE
`FIFTEENTH AMENDMENT GIVE
`CONGRESS BROAD ENFORCE-
`MENT POWER TO PROHIBIT LAWS
`THAT MAKE IT HARDER FOR VOT-
`ERS OF COLOR TO EXERCISE
`THEIR CONSTITUTIONAL RIGHT
`TO VOTE ..............................................
`THE FIFTEENTH AMENDMENT
`GIVES CONGRESS THE POWER TO
`PROHIBIT STATE VOTER IDENTI-
`FICATION LAWS THAT RESULT IN
`RACIAL DISCRIMINATION AS A
`MEANS OF EFFECTUATING THE
`AMENDMENT’S EQUALITY MAN-
`DATE ..................................................... 12
`III. THERE IS NO “TIME, PLACE, AND
`MANNER” EXCEPTION TO THE
`FIFTEENTH
`AMENDMENT’S
`GUARANTEE OF EQUAL POLITI-
`CAL OPPORTUNITY ........................... 18
`CONCLUSION ....................................................
`23
`
`
`
`II.
`
`
`
`(i)
`
`
`
`ii
`TABLE OF AUTHORITIES
`
`Page(s)
`
`Cases
`
`Allen v. State Bd. of Elections,
`393 U.S. 544 (1969) .................................... 15
`
`Bostock v. Clayton County,
`140 S. Ct. 1731 (2020) ................................ 2, 3
`
`Bush v. Vera,
`517 U.S. 952 (1996) .................................... 16
`
`Chisom v. Roemer,
`501 U.S. 380 (1991) .................................... 1, 14
`
`City of Mobile v. Bolden,
`446 U.S. 55 (1980) ...................................... 19
`
`City of Rome v. United States,
`446 U.S. 156 (1980) ........................ 7, 13, 19, 21
`
`Griggs v. Duke Power Co.,
`401 U.S. 424 (1971) .................................... 21
`
`Harris v. Graddick,
`593 F. Supp. 128 (M.D. Ala. 1984) ............ 15
`
`Hepburn v. Griswold,
`75 U.S. (8 Wall.) 603 (1869) .......................
`
`Holder v. Hall,
`512 U.S. 874 (1994) ....................................
`
`8
`
`2
`
`Houston Lawyers’ Ass’n v. Attorney Gen. of
`Tex.,
`501 U.S. 419 (1991) .................................... 13
`
`Johnson v. De Grandy,
`512 U.S. 997 (1994) .................................. 16, 20
`
`
`
`
`
`iii
`TABLE OF AUTHORITIES – cont’d
`Page(s)
`
`Jones v. City of Lubbock,
`727 F.2d 364 (5th Cir. 1984) ..................... 17, 18
`
`Lane v. Wilson,
`307 U.S. 268 (1939) ................................ 2, 6, 20
`
`League of United Latin Am. Citizens v.
`Perry,
`548 U.S. 399 (2006) ................................ passim
`
`Legal Tender Cases,
`79 U.S. (12 Wall.) 457 (1870) .....................
`
`8
`
`Major v. Treen,
`574 F. Supp. 325 (E.D. La. 1983)............... 17
`
`McCulloch v. Maryland,
`17 U.S. (4 Wheat.) 316 (1819) .................... 7, 8
`
`Miss. State Chapter, Operation Push, Inc.
`v. Mabus,
`932 F.2d 400 (5th Cir. 1991) ...................... 15
`
`N.C. St. Conf. of NAACP v. McCrory,
`831 F.3d 204 (4th Cir. 2016) ...................... 15
`
`Perkins v. Matthews,
`400 U.S. 379 (1971) .................................... 20
`
`Reno v. Bossier Parish Sch. Bd.,
`528 U.S. 320 (2000) ....................................
`
`6
`
`Rice v. Cayetano,
`528 U.S. 495 (2000) ............................... 5, 15, 20
`
`Rogers v. Lodge,
`458 U.S. 613 (1982) .................................... 16
`
`
`
`iv
`TABLE OF AUTHORITIES – cont’d
`Page(s)
`Schuette v. Coal. to Defend Affirmative Ac-
`tion,
`572 U.S. 291 (2014) ................................... 14, 15
`
`Shaw v. Reno,
`509 U.S. 630 (1993) .................................... 15
`
`Shelby Cty. v. Holder,
`570 U.S. 529 (2013) ....................... 14, 15, 16, 19
`
`South Carolina v. Katzenbach,
`383 U.S. 301 (1966) ................................ 6, 7, 19
`
`Spirit Lake Tribe v. Benson Cty., N.D.,
`2010 WL 4226614
` (D.N.D. Oct. 21, 2010) ................................ 16
`
`Tex. Dep’t of Hous. & Cmty. Affairs v. In-
`clusive Cmtys. Project,
`576 U.S. 519 (2015) ................................ passim
`
`Thornburg v. Gingles,
`478 U.S. 30 (1986) .............................. 14, 16, 18
`
`United States v. Blaine Cty., Mont.,
`363 F.3d 897 (9th Cir. 2004) ...................... 17
`
`United States v. Marengo Cty. Comm’n,
`731 F.2d 1546 (11th Cir. 1984) ................. 17, 22
`
`Veasey v. Abbott,
`830 F.3d 216 (5th Cir. 2016) .................. passim
`
`Yick Wo v. Hopkins,
`118 U.S. 356 (1886) ....................................
`
`6
`
`
`
`
`
`v
`TABLE OF AUTHORITIES – cont’d
`Page(s)
`Constitutional Provisions and Legislative Materials
`
`Cong. Globe, 40th Cong., 3d Sess.
`(1869) .................................................. 5, 8, 9, 10
`
`Cong. Globe, 41st Cong., 2d Sess.
`(1869-70) ................................................. passim
`
`Cong. Globe, 42d Cong., 2d Sess. (1872) ......
`
`2 Cong. Rec. (1874) ........................................
`
`7
`
`9
`
`S. Rep. No. 97-417 (1982) ...................... 13, 16, 21
`
`52 U.S.C. § 10301(a) ......................................
`
`2
`
`52 U.S.C. § 10301(b) ...................................... 3, 5
`
`U.S. Const. amend. XV ................................. 5, 6, 7
`
`
`
`Books, Articles, and Other Authorities
`
`Jack M. Balkin, The Reconstruction Power,
`85 N.Y.U. L. Rev. 1801 (2010) ................... 7, 8
`
`Steven G. Calabresi & Andrea Matthews,
`Originalism and Loving v. Virginia,
`2012 B.Y.U. L. Rev. 1393 (2012) ...............
`
`6
`
`Pamela S. Karlan, Turnout, Tenuousness,
`and Getting Results in Section 2 Vote De-
`nial Claims,
`77 Ohio St. L. J. 763 (2016) ....................... 21
`
`
`
`
`
`
`
`vi
`TABLE OF AUTHORITIES – cont’d
`Page(s)
`Pamela S. Karlan, Two Section Twos and
`Two Section Fives: Voting Rights and
`Remedies After Flores,
`39 Wm. & Mary L. Rev. 725 (1998) ........... 13
`
`Michael W. McConnell, Comment, Institu-
`tions and Interpretation: A Critique of
`City of Boerne v. Flores,
`111 Harv. L. Rev. 153 (1997) ..................... 7, 8
`
`John T. Noonan, Jr., Narrowing the Na-
`tion’s Power: The Supreme Court Sides
`with the States (2002) ................................
`
`7
`
`Journal of the Senate, State of Cal.,
`18th Sess. (1869-70) ................................... 10
`
`2 Journal of the State of Mich. H. R.
`(Mar. 5, 1869) ............................................. 10
`
`Michael Stokes Paulsen, A Government of
`Adequate Powers,
`31 Harv. J.L. & Pub. Pol’y 991 (2008) .......
`
`Webster’s New International Dictionary
`(2d ed. 1950) ...............................................
`
`7
`
`6
`
`
`
`
`
`
`
`1
`
`INTEREST OF AMICUS CURIAE1
`Amicus Constitutional Accountability Center
`(CAC) is a think tank, public interest law firm, and ac-
`tion center dedicated to fulfilling the progressive
`promise of our Constitution’s text and history. CAC
`works in our courts, through our government, and with
`legal scholars to improve understanding of the Consti-
`tution and to preserve the rights, freedoms, and struc-
`tural safeguards that our nation’s charter guarantees.
`CAC accordingly has a strong interest in this case and
`the questions it raises about the scope of the Fifteenth
`Amendment’s protections and Congress’s power to en-
`force those protections.
`INTRODUCTION AND
`SUMMARY OF ARGUMENT
`Exercising its express constitutional authority to
`enforce the Fifteenth Amendment, Congress passed
`the Voting Rights Act to prohibit all state electoral reg-
`ulations that result in citizens being denied equal po-
`litical opportunities on account of race, “a powerful, al-
`beit sometimes blunt, weapon with which to attack
`even the most subtle forms of discrimination.” Chisom
`v. Roemer, 501 U.S. 380, 406 (1991) (Scalia, J., dissent-
`ing). Section 2 of the Voting Rights Act provides that
`“[n]o voting qualification or prerequisite to voting or
`standard, practice, or procedure shall be imposed or
`
`
`1 The parties have consented to the filing of this brief, and their
`letters of consent have been filed with the Clerk. Under Rule 37.6
`of the Rules of this Court, amicus states that no counsel for a
`party authored this brief in whole or in part, and no counsel or
`party made a monetary contribution intended to fund the prepa-
`ration or submission of this brief. No person other than amicus
`or its counsel made a monetary contribution to its preparation or
`submission.
`
`
`
`
`2
`applied by any State or political subdivision in a man-
`ner which results in a denial or abridgement of the
`right of any citizen of the United States to vote on ac-
`count of race or color.” 52 U.S.C. § 10301(a). Section
`2’s text thus prohibits election rules and practices that
`function to exclude voters of color from full participa-
`tion in our democracy.
`The original impetus for Section 2’s results test
`was the need to redress state practices that diluted the
`votes of citizens in communities of color. But its reach
`is far broader than the original evil it was designed to
`counteract. See Bostock v. Clayton County, 140 S. Ct.
`1731, 1737 (2020) (“[T]he limits of the drafters’ imagi-
`nation supply no reason to ignore the law’s de-
`mands.”). “[W]hen Congress chooses not to include
`any exceptions to a broad rule, courts apply the broad
`rule.” Id. at 1747. Section 2’s text is indeed “written
`in starkly broad terms,” id. at 1753, and provides for
`no exceptions.
`By forbidding any state electoral regulation that
`“results” in the denial or abridgement of the right to
`vote on account of race, the plain language of Section
`2 of the Voting Rights Act annuls arbitrary and dis-
`criminatory barriers that make it harder for voters of
`color to exercise their constitutionally guaranteed
`right to vote. To help realize the Fifteenth Amend-
`ment’s promise of a multiracial democracy, Section 2
`prevents the imposition of “onerous procedural re-
`quirements which effectively handicap exercise of the
`franchise” by voters of color, Lane v. Wilson, 307 U.S.
`268, 275 (1939), as well other efforts to “manipulate[]”
`the “voting process” to “deny any citizen the right to
`cast a ballot and have it properly counted” on account
`of race, Holder v. Hall, 512 U.S. 874, 922 (1994)
`(Thomas, J., concurring).
`
`
`
`3
`Even if neutrally written and generally applicable,
`a state voting regulation violates the Voting Rights Act
`if, based on “the totality of circumstances,” it causes
`voters of color to 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). This rule incorporates “the ‘simple’
`and ‘traditional’ standard of but-for causation,” which
`asks whether “a particular outcome would not have
`happened ‘but for’ the purported cause.” Bostock, 140
`S. Ct. at 1739.
`In this case, the court below applied the basic rule
`of voter equality enshrined in the Voting Rights Act to
`strike down Arizona’s ban on out-of-precinct voting
`and its criminal prohibition on third-party ballot col-
`lection, finding that the regulations made it harder for
`voters in communities of color to exercise their right to
`vote and resulted in the disproportionate disenfran-
`chisement of voters of color without any adequate jus-
`tification. Petitioners and their amici, however, insist
`that, if Section 2 of the Voting Rights Act is interpreted
`to prohibit enforcement of these sorts of generally ap-
`plicable “time, place, and manner” regulations of the
`voting process, it would exceed the scope of Congress’s
`power to enforce the Fifteenth Amendment. And they
`therefore urge this Court to rewrite Section 2’s text to
`curtail drastically its scope. State Pet’rs Br. 22-23
`(adding to Section 2’s text a requirement that plaintiffs
`establish a substantial disparate impact); Private
`Pet’rs Br. 19 (arguing that race-neutral “time, place,
`and manner” electoral regulations should be exempt
`from Section 2 scrutiny across-the-board).
`Petitioners’ claim cannot be squared with the text
`and history of the Fifteenth Amendment, which give
`Congress broad powers to prohibit the denial or
`abridgment of the right to vote on account of race by
`
`
`
`4
`the states, including by adopting prophylactic rules to
`protect the right to vote, such as the results test con-
`tained in Section 2 of the Act. Petitioners’ argument,
`if accepted, would “effectively nullif[y] the protections
`of the Voting Rights Act by giving states a free pass to
`enact needlessly burdensome laws with impermissible
`racially discriminatory impacts.” Veasey v. Abbott, 830
`F.3d 216, 247 (5th Cir. 2016) (en banc).
`As its text and history demonstrate, the Fifteenth
`Amendment gave Congress the “power of conferring
`upon the colored man the full enjoyment of his right”
`and “enable[d] Congress to take every step that might
`be necessary to secure the colored man in the enjoy-
`ment of these rights.” Cong. Globe, 41st Cong., 2d
`Sess. 3670 (1870). The Fifteenth Amendment gave
`Congress broad power—no less sweeping than Con-
`gress’s Article I powers—to stamp out every conceiva-
`ble attempt by the states to deny or abridge the right
`to vote on account of race. The Fifteenth Amendment’s
`explicit grant of enforcement power gives Congress the
`authority to ensure that the right to vote is actually
`enjoyed by all citizens regardless of race.
`The “results” test contained in Section 2 of the Vot-
`ing Rights Act falls squarely within the scope of Con-
`gress’s express authority to enforce the Fifteenth
`Amendment, and prohibits the enforcement of state
`electoral regulations, such as the Arizona regulations
`at issue here, that “arbitrarily creat[e] discriminatory
`effects,” Tex. Dep’t of Hous. & Cmty. Affairs v. Inclu-
`sive Cmtys. Project, 576 U.S. 519, 540 (2015), and per-
`petuate “prior electoral discrimination,” League of
`United Latin Am. Citizens v. Perry, 548 U.S. 399, 442
`(2006). Tenuous election regulations that dispropor-
`tionately disenfranchise voters of color, such as the Ar-
`izona regulations at issue here, cannot be squared
`with the principle of voter equality enshrined in the
`
`
`
`5
`Constitution and the Voting Rights Act. Even if such
`measures are neutrally drawn and enacted for benign
`motives, they cause voters of color to have “less oppor-
`tunity than other members of the electorate to partici-
`pate in the political process and to elect representa-
`tives of their choice,” 52 U.S.C. § 10301(b), in violation
`of the textual mandate of equality of political oppor-
`tunity. The judgment of the court below should be af-
`firmed.
`
`ARGUMENT
`I. THE TEXT AND HISTORY OF THE FIF-
`TEENTH AMENDMENT GIVE CONGRESS
`BROAD ENFORCEMENT POWER TO PRO-
`HIBIT LAWS THAT MAKE IT HARDER FOR
`VOTERS OF COLOR TO EXERCISE THEIR
`CONSTITUTIONAL RIGHT TO VOTE.
`In language “as simple in command as it [is] com-
`prehensive in reach,” Rice v. Cayetano, 528 U.S. 495,
`512 (2000), the Fifteenth Amendment provides that
`“[t]he right of citizens of the United States to vote shall
`not be denied or abridged by the United States or by
`any State on account of race, color, or previous condi-
`tion of servitude.” U.S. Const. amend. XV, § 1. “Fun-
`damental in purpose and effect . . . , the Amendment
`prohibits all provisions denying or abridging the vot-
`ing franchise of any citizen or class of citizens on the
`basis of race.” Rice, 528 U.S. at 512.
`Recognizing that “[i]t is difficult by any language
`to provide against every imaginary wrong or evil which
`may arise in the administration of the law of suffrage
`in the several States,” Cong. Globe, 40th Cong., 3d
`Sess. 725 (1869), the Framers of the Fifteenth Amend-
`ment chose sweeping language requiring “the equality
`of races at the most basic level of the democratic pro-
`cess, the exercise of the voting franchise,” Rice, 528
`
`
`
`6
`U.S. at 512. The Fifteenth Amendment equally forbids
`laws that deny the right to vote outright on account of
`race, as well as those that abridge the right by making
`it harder for individuals in communities of color to ex-
`ercise their constitutional right to vote. See Reno v.
`Bossier Parish Sch. Bd., 528 U.S. 320, 333-34 (2000)
`(explaining that the “core meaning” of “‘abridge’” is
`“‘shorten’” (quoting Webster’s New International Dic-
`tionary 7 (2d ed. 1950))); Lane, 307 U.S. at 275 (observ-
`ing that the Fifteenth Amendment “hits onerous pro-
`cedural requirements which effectively handicap exer-
`cise of the franchise by the colored race although the
`abstract right to vote may remain unrestricted as to
`race”); Steven G. Calabresi & Andrea Matthews,
`Originalism and Loving v. Virginia, 2012 B.Y.U. L.
`Rev. 1393, 1417-18 (2012) (demonstrating that “[t]he
`word ‘abridge’ in 1868 meant . . . [t]o lessen” or “to di-
`minish” and that laws that gave “African Americans a
`lesser and diminished” set of freedoms unconstitution-
`ally abridged their constitutional rights).
`To make the Fifteenth Amendment’s guarantee a
`reality, the Framers explicitly invested Congress with
`a central role in protecting the right to vote—a consti-
`tutional right that is “preservative of all rights,” Yick
`Wo v. Hopkins, 118 U.S. 356, 370 (1886)—against all
`forms of racial discrimination. It did so by providing
`that “[t]he Congress shall have power to enforce this
`article by appropriate legislation.” U.S. Const. amend.
`XV, § 2. By adding this language, “the Framers indi-
`cated that Congress was to be chiefly responsible for
`implementing the rights created” by the Amendment
`and that Congress would have “full remedial powers to
`effectuate the constitutional prohibition against racial
`discrimination in voting.” South Carolina v. Katzen-
`bach, 383 U.S. 301, 325-26 (1966). As the Framers of
`the Fifteenth Amendment recognized, “the remedy for
`
`
`
`7
`the violation” of the Fifteenth Amendment, like the
`remedies for violation of the other Reconstruction
`Amendments, “was expressly not left to the courts.
`The remedy was legislative, because . . . the amend-
`ment itself provided that it shall be enforced by legis-
`lation on the part of Congress.” Cong. Globe, 42d
`Cong., 2d Sess. 525 (1872).
`The original meaning of the Fifteenth Amend-
`ment’s express grant of power to enact “appropriate
`legislation” gives Congress wide discretion to enact
`whatever measures it deems “appropriate” for achiev-
`ing the Amendment’s objective of ensuring that “[t]he
`right of citizens of the United States to vote shall not
`be denied or abridged . . . by any State on account of
`race.” U.S. Const. amend. XV. By authorizing Con-
`gress to enact “appropriate legislation,” the Framers
`granted Congress the sweeping authority of Article I’s
`“necessary and proper” powers as interpreted by the
`Supreme Court in McCulloch v. Maryland, 17 U.S. (4
`Wheat.) 316 (1819), a seminal case well known to the
`Reconstruction Framers. See, e.g., John T. Noonan,
`Jr., Narrowing the Nation’s Power: The Supreme Court
`Sides with the States 29-31 (2002); Jack M. Balkin, The
`Reconstruction Power, 85 N.Y.U. L. Rev. 1801, 1810-15
`(2010); Michael Stokes Paulsen, A Government of Ade-
`quate Powers, 31 Harv. J.L. & Pub. Pol’y 991, 1002-03
`(2008); Michael W. McConnell, Comment, Institutions
`and Interpretation: A Critique of City of Boerne v. Flo-
`res, 111 Harv. L. Rev. 153, 188 (1997). As history
`shows, “Congress’ authority under § 2 of the Fifteenth
`Amendment . . . [is] no less broad than its authority
`under the Necessary and Proper Clause.” City of Rome
`v. United States, 446 U.S. 156, 175 (1980); see also
`South Carolina, 383 U.S. at 326 (explaining that
`McCulloch’s “classic formulation” provides “[t]he basic
`
`
`
`8
`test to be applied in a case involving [Section] 2 of the
`Fifteenth Amendment”).
`In McCulloch, Chief Justice Marshall laid down
`the fundamental principle determining the scope of
`Congress’s powers under the Necessary and Proper
`Clause: “Let the end be legitimate, let it be within the
`scope of the constitution, and all means which are ap-
`propriate, which are plainly adapted to that end, which
`are not prohibited, but consist with the letter and
`spirit of the constitution, are constitutional.” McCul-
`loch, 17 U.S. at 421 (emphasis added); see also Hep-
`burn v. Griswold, 75 U.S. (8 Wall.) 603, 614-15 (1869)
`(quoting this passage in full and declaring that “[i]t
`must be taken then as finally settled, . . . that the
`words” of the Necessary and Proper Clause are “equiv-
`alent” to the word “appropriate”), overruled in part by
`Legal Tender Cases, 79 U.S. (12 Wall.) 457 (1870);
`McConnell, supra, at 178 n.153 (“In McCulloch v. Mar-
`yland, the terms ‘appropriate’ and ‘necessary and
`proper’ were used interchangeably.” (citation omit-
`ted)). Indeed, in McCulloch, Chief Justice Marshall
`used the word “appropriate” to describe the scope of
`congressional power no fewer than six times. McCul-
`loch, 17 U.S. at 408, 410, 415, 421, 422, 423. Thus, by
`giving Congress the power to enforce the constitu-
`tional prohibition on denying or abridging the right to
`vote on account of race by “appropriate legislation,” the
`Framers “actually embedded in the text” the “language
`of McCulloch.” Balkin, supra, at 1815 (emphasis
`added).
`As the text and history of the Fifteenth Amend-
`ment demonstrate, the Enforcement Clause gives Con-
`gress a broad “affirmative power” to secure the right to
`vote. Cong. Globe, 40th Cong., 3d Sess. 727 (1869); see
`id. at 1625 (“Congress . . . under the second clause of
`this amendment” has the power to “impart by direct
`
`
`
`9
`congressional legislation to the colored man his right
`to vote. No one can dispute this.”). Without a broad
`enforcement power, the Framers of the Fifteenth
`Amendment feared that the constitutional guarantee
`of equal voting rights would not be fully realized.
`“Who is to stand as the champion of the individual and
`enforce the guarantees of the Constitution in his be-
`half as against the so-called sovereignty of the States?
`Clearly no power but that of the central Government
`is or can be competent for their adjustment . . . .” Id.
`at 984.
`In 1870, the same year the Fifteenth Amendment
`was ratified, Congress employed the Amendment’s En-
`forcement Clause to enact federal voting rights legis-
`lation. As the debates over the Enforcement Act of
`1870 reflect, the Fifteenth Amendment “clothes Con-
`gress with all power to secure the end which it declares
`shall be accomplished.” Cong. Globe, 41st Cong., 2d
`Sess. 3563 (1870). The Amendment’s Enforcement
`Clause, Senator Oliver Morton explained, was “in-
`tended to give to Congress the power of conferring
`upon the colored man the full enjoyment of his right.
`We so understood it when we passed it.” Id. at 3670.
`“[T]he second section was put there,” he went on to ex-
`plain, “for the purpose of enabling Congress to take
`every step that might be necessary to secure the col-
`ored man in the enjoyment of these rights.” Id.; see id.
`at 3655 (explaining that the “intention and purpose” of
`the Fifteenth Amendment’s Enforcement Clause was
`to “secure to the colored man by proper legislation the
`right to go to the polls and quietly and peacefully de-
`posit his ballot there”); id. at 3663 (“Congress has a
`right by appropriate legislation to prevent any State
`from discriminating against a voter on account of his
`race . . . .”); see also 2 Cong. Rec. 4085 (1874) (observ-
`ing that the Enforcement Clause of the Fifteenth
`
`
`
`10
`Amendment was added to allow Congress “to act af-
`firmatively” and ensure that “the right to vote, should
`be enjoyed”).
`Both supporters and opponents alike recognized
`that the Fifteenth Amendment’s Enforcement Clause
`significantly altered the balance of powers between the
`federal government and the states, giving Congress
`broad authority to guarantee African Americans the
`right to vote and to eradicate racial discrimination in
`the electoral process. Congressional opponents of the
`Fifteenth Amendment objected that “when the Consti-
`tution of the United States takes away from the State
`the control over the subject of suffrage it takes away
`from the State the control of her own laws upon a sub-
`ject that the Constitution of the United States in-
`tended she should be sovereign upon.” Cong. Globe,
`40th Cong., 3d Sess. 989 (1869). Opponents of the Fif-
`teenth Amendment, both in Congress and in the
`states, worried that Congress would use its enforce-
`ment power to “send their satraps into every election
`district in this country,” Cong. Globe, 41st Cong., 2d
`Sess. 255 (1869), and put into effect “registry laws and
`laws regulating elections at our own doors, enacted by
`a power we cannot reach or control,” 2 Journal of the
`State of Mich. H.R. 1101 (Mar. 5, 1869). In their view,
`“[n]othing could be more loose and objectionable than
`the clause which authorizes Congress to enforce the
`restraint upon the States by ‘appropriate’ legisla-
`tion . . . . Under this phraseology, Congress is made
`the exclusive judge.” Journal of the Senate, State of
`Cal., 18th Sess. 150 (1869-70).
`These concerns over state sovereignty were flatly
`rejected by the Framers of the Fifteenth Amendment
`and the American people, who explicitly conferred on
`Congress the power to enact legislation to protect the
`right to vote free from racial discrimination. In giving
`
`
`
`11
`Congress the power to protect the right to vote, the Fif-
`teenth Amendment specifically limited state sover-
`eignty. During debates over Congress’s first attempt
`to enforce the Fifteenth Amendment, Senator Carl
`Schurz explained that “the Constitution of the United
`States has been changed in some most essential
`points; that change does amount to a great revolution.”
`Cong. Globe, 41st Cong., 2d Sess. 3607 (1870). As he
`put it:
`The revolution found the rights of the individual
`at the mercy of the States; it rescued them from
`their arbitrary discretion, and placed them un-
`der the shield of national protection. It made the
`liberty and rights of every citizen in every State
`a matter of national concern. . . . It grafted upon
`the Constitution of the United States the guar-
`antee of national citizenship; and it empowered
`Congress, as the organ of the national will, to
`enforce that guarantee by national legislation.
`Id. at 3608.
`As the debates reflect, the Framers of the Fif-
`teenth Amendment specifically recognized that a
`broad legislative power to protect the right to vote
`against all forms of racial discrimination—both deni-
`als and abridgements—was critical to ensuring “the
`colored man the full enjoyment of his right.” Id. at
`3670 .
`In the months following ratification of the Fif-
`teenth Amendment, Congress recognized the grim re-
`ality that many states would pursue novel methods of
`disenfranchising African Americans on account of
`their race. Highlighting the importance of providing
`“proper machinery . . . for enforcing the fifteenth
`amendment,” Senator William Stewart explained that
`“it is impossible to enumerate over-specifically all the
`
`
`
`12
`requirements that might be made as prerequisites for
`voting. . . . The States can invent just as many re-
`quirements [for voting] as you have fingers and toes.
`They could make one every day.” Id. at 3658. “There
`may be a hundred prerequisites invented by the
`States,” id., “a hundred modes whereby [the African
`American man] can be deprived of his vote.” Id. at
`3657; see also id. at 3568 (noting “it is our imperative
`duty . . . to pass suitable laws to enforce the fifteenth
`amendment” because, without them, “the fifteenth
`amendment will be practically disregarded in every
`community where there is a strong prejudice against
`negro voting”). The only means to ensure voting rights
`for African Americans, the Framers of the Fifteenth
`Amendment recognized, “are to be found in national
`legislation. This security cannot be obtained through
`State legislation,” where “the laws are made by an op-
`pressing race.” Id. at app. 392.
`The Framers thus granted Congress a significant
`new power when they enacted the Fifteenth Amend-
`ment, and as the next Section shows, the results test
`of the Voting Rights Act falls squarely within the scope
`of that broad enforcement power. There is no basis in
`constitutional law for diluting or carving out an excep-
`tion to the Voting Rights Act’s prohibition on nation-
`wide discrimination for “time, place, and manner” reg-
`ulations such as the Arizona regulations at issue here.
`II. THE FIFTEENTH AMENDMENT GIVES
`CONGRESS THE POWER TO PROHIBIT
`STATE VOTER IDENTIFICATION LAWS
`THAT RESULT IN RACIAL DISCRIMINA-
`TION AS A MEANS OF EFFECTUATING
`THE AMENDMENT’S EQUALITY MAN-
`DATE.
`The results test of the Voting Rights Act directly
`fulfills the Fifteenth Amendment’s guarantee of
`
`
`
`13
`equality by prohibiting the enforcement of state laws
`and policies that “function unfairly to exclude minori-
`ties” from the political process—either by denying or
`abridging their right to vote—“without any sufficient
`justification.” See Inclusive Cmtys., 576 U.S. at 539;
`Houston Lawyers’ Ass’n v. Attorney Gen. of Tex., 501
`U.S. 419, 427-28 (1991). “[U]nder the Fifteenth
`Amendment, Congress may prohibit voting practices
`that have only a discriminatory effect,” particularly
`when those practices create a “risk of purposeful dis-
`crimination.” City of Rome, 446 U.S. at 175, 177; DNC
`Resps. Br. at 47. Even Petitioners’ amici concede as
`much. See U.S. Br. at 16.
`In this way, the results test “plays a role in uncov-
`ering discriminatory intent.” Inclusive Cmtys., 576
`U.S. at 540; Pamela S. Karlan, Two Section Twos and
`Two Section Fives: Voting Rights and Remedies After
`Flores, 39 Wm. & Mary L. Rev. 725, 738 (1998) (argu-
`ing that the results test is appropriate under Section 2
`of the Fifteenth Amendment because of “the difficulty
`of detecting and stopping serious constitutional inju-
`ries” solely under an intent test); S. Rep. No. 97-417,
`at 40 (1982) (finding that “the difficulties faced by
`plaintiffs
`forced to prove discriminatory
`intent
`through case-by-case adjudication create a substantial
`risk that intentional discrimination . . . will go unde-
`tected, uncorrected and undeterred”). This is im-
`portant because election laws that result in racial dis-
`crimination and cannot be adequately justified likely
`reflect “unconscious prejudices and disguised animus
`that escape easy classification as disparate treat-
`ment.” Inclusive Cmtys., 576 U.S. at 540. “Section 2’s
`protections” thus “remain closely tied to the power
`granted Congress by the Fifteenth Amendment.” Ve-
`asey, 830 F.3d at 253.
`
`
`
`14
`Section 2 of the Voting Rights Act—the statute’s
`“permanent, nationwide ban on racial discrimination
`in voting,” Shelby Cty. v. Holder, 570 U.S. 529, 557
`(2013)—enforces the Fifteenth Amendment’s com-
`mand of racial equality by prohibiting a state from en-
`forcing a state law that disproportionately denies or
`abridges the right to vote of citizens of color, perpetu-
`ates past discrimination, and rests only on tenuous
`justifications. See Thornburg v. Gingles, 478 U.S. 30,
`47 (1986) (“The essence of a § 2 claim is that a certain
`electoral law, practice, or structure interacts with so-
`cial and historical conditions to cause an inequality in
`the opportunities enjoyed by black and white voters to
`elect their preferred representatives.”); League of
`United Latin Am. Citizens, 548 U.S. at 441 (finding
`state’s policy “tenuous” where state sought to protect
`an incumbent at the expense of Hispanic voters (quot-
`ing Gingles, 478 U.S. at 45)); see also Chisom, 501 U.S.
`at 408 (Scalia, J., dissenting) (“If . . . a county permit-
`ted voter registration for only three hours one day a
`week, and that made it more diffi
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