the court i think the key conceptual point here to understand is that arizona has not denied anyone any voting opportunity of any kind this is not like a literacy test which denies you the right to vote it's not like vote by lucia where white blood voting denies minorities an equal opportunity to a left everyone here is eligible and registered to vote all they have to do is utilize the myriad opportunities that arizona's offer them over twenty seven dollars days to vote by mail for free or in person and chance there's no denial of opportunities this is a disparate impact claim that would not even because now is a bill in other contexts under title seven disparate impact relates to a denial of an employment opportunity a job or promotion it doesn't get involved in the process no one's ever brought a title seven claim saying you can't require people to send in applications because minorities have less access to transportation and mail analogous to the claim being made here so we're sponsored try to move disparate impact into an entirely different context since there's no denial of any voting opportunity in this context the circumstances in which time place and manner rules can violate section two are extraordinarily limited they only occur if the state is organized the time place and manner rules and stacked them in such a way that minorities have less opportunity to not minorities to cast their vote that comes directly from the plain language of section two and it's also of course as a practical matter the only circumstance in which the state is directed any kind of cognizable barrier to minority  voting respondents alternative view is a war with the text the section to section two says again voting practices cannot provide less opportunity the they say that voting  provide the same opportunity for nonetheless unlawful if external socio economic factors somehow contribute to disproportionate utilization but that language is nowhere in the tax and was never even mentioned in the legislative history which is where article this mr card as i understand your test as you just articulated it reduces to anything dealing with time place or manner sent and intended test rather than a results test that's provided under section two in other words so long since a time place or manner restriction it's only when there's a difference in it's systems on equal access but regardless of whether or not an equal access was racially motivated you would not have to prove that the intent behind the differential access provided to minorities was to suppress or enter the minority vote and that's a key distinction from mobile versus bill and you talk about the concern being that the analysis would be driven to racial proportionality under the respondents approach no i understand the concerns about that when you're talking about a district ng but why is that why is it a bad thing when you're talking about electoral procedures well what it means is that any neutral system must be changed in order to maximize minority voting strength regardless of how strong the justification is things that provide no unfairness at all to minorities you must rejigger every aspect of the time place and manner from registration to election day to early voting in order to maximize minorities participation results and why should there be disparate results if if you can avoid them because why should you will you for example because it would eliminate all the valuable anti fraud concerns implicated in the ban on ballot harvesting and because it would substitute the federal courts the state legislatures to make these rules the question is not what's wrong with it the question is why a system that imposes no unfairness on the group should it says the system needs to be equally ok so what it's saying is as long as everyone as the same opportunity and the system is equally open session today is not condemning the respondents however would say that even if knowledge given precisely the same opportunity unless they utilize it proportionally then somehow that comes within the constraints of section two but again there's nothing in the text of section two which says have been illegal overnight because there were severe disproportionate utilization and social economic disparities were ubiquitous and surely if the congress had intended that kind of sea change it would have given some hint of it in the only in the sense that was all the usefully connotes causation right and the question is what is the prohibited what can you not cause what is the president result and the plain language of section two tells you what the system can result in is providing the last opportunity to minorities it doesn't say it can result in providing them the same opportunity but for whatever reason they don't utilize it to the same extent so there is a causation question but the question is what can the state not because we say can't cause less opportunity the other side says it can't do anything that results in disproportionate outcomes on how much less are much less opportunity well again it depends when you're talking about justice thomas if you're talking about disproportionate outcomes we don't think that's the issue so we don't think a severely disproportionate outcome jeopardizes the section to a minor disproportionate outcome the question is not the outcome the question is the opportunity and if the state has provided everyone the same opportunity now i will agree with the attorney general however if you get past that if they don't use it equally well it doesn't prove it but it might be the rule that prevents them from using it equally results in on the bridgeman on account of race  and that's a key point for the literacy test denies you the opportunity to vote you can vote for the polls they will let you vote nothing like that is going on here everyone has a complete opportunity to vote the state is not erected any barrier standards which bring in from title six title seven the housing activity you know uses roughly the same approach and there would be an opportunity for the state to say we have a good non race related reason for doing this and therefore whatever result is fewer fewer minorities use it but it's not on account of race it's on account of our good reason now that's what we have in all these other statutes something like that what would you think of just taking forms of those rules and using them here yes well two points one is of course there's nothing in the language section two which allows you to justify a discriminatory result based on the strength of the words all on account of race reason you are doing it is because you have the most wonderful non race related reason in the world for doing this then it is not on account of race right want to count of races you know generally and under jingles means because of race and the re means it doesn't have to be on account of intentional discrimination in terms of reading in a justification obviously that would make it make their proportionality mandate somewhat less inflexible but again even if you could read it into the statute you would nonetheless be subjecting the policy judgments of state legislatures to some ad hoc determinations of the sort that was engaged in but beyond backcourt where they can find simple factors and so i don't understand why if the statute had actually prohibited as respondents said any kind of disparate outcome and why why we would allow the state to get away with that do we determine what they are i think what they mean is what the court meant in crawford which is what we all understand to be the usual versions of o t you make a very good point about nine hundred and eighty two we know that needs to be the benchmark for the usual birds because section two did not immunized minorities from the usual burdens of voting it didn't say you don't have to show up at the right precinct and those sorts of things and there's nothing in the language of section two which to what you were just discussing with justice breyer your approach differs from that of the attorney general and the solicitor general's brief in that i don't understand you to argue that a  consideration of the strength of the state's interests for a voting practice has a role to play here is that correct understanding of your position and and if so why isn't that a with him a consideration your honor i would love it if the state to justify its systems if you're going to impose on them some kind of proportionality mandate our basic point is it's not a proportionality mandate and there justification should not be an affirmative  that if you want to read that into the statute that would make it better than a straight proportionality mandate i will emphasize again that even under is used to the lawyers association which the solicitor general's put forward  justification is merely one factor out of the nine to be considered so that means we're now into this amorphous nine senate report factors where every just record an appellate court can do its own kind of balancing test which will lead counsel you keep talking about equal opportunity but i don't see it anywhere in the statute aren't you rewriting section two you keep saying repeatedly that it prohibits giving or providing and an equal opportunity to vote but the language is very clear it focuses on the effects of government actions nothing at government action in the back and it says no letting qualification or practice can  a denial or abridgment of the right to vote on account of race so where do you get equal opportunity from in that language in two places one is we it's not is an island of time place and manner so where a code car ownership rates are very small where you don't have mail pickup or mail delivery where your post office is at the edge of town and show that you require either a relative to pick up your vote or you happen to vote in the wrong precinct because your particular area has a confusion of precinct  assignment if you just can't vote for those reasons and you're not and your vote is not being counted you've been denied the right to vote haven't to i don't think anyone would say you've been denied a due process right to a hearing this is not  your denial from circumstances that the state could remedy easily again the only way they could remedy it is to engage in the counterintuitive policies allowing everybody to vote any precinct they want behalf but the district court found no meaningful threat that ballot collections leads to pry it found no meaningful threat whatsoever perceived threat but and with respect to voting out  precinct there was no finding by the district court that the ballots couldn't speak easily kept it the on the only way they could be counted is by defeating the entire purpose of the precinct system which is that have a uniform i'd be grateful if we could run through these fairly quickly just so i can get an understanding of your position so the st one is that the state decides that each county can have one polling place and because of who lives in  is that system equally open in the language of the statute i would think not equally yoked it means takes into account demographic reality if you have one polling place for five people and one polling place for five million people  the state decides that it's going to get rid of sunday fill it in on those two weeks leave everything else and place that black voters vote on sunday ten times more than white voters is is that equally open i would think it would be because let's think about it sunday is the day that we traditionally closed government offices would be the exception rather than the rule the government workers come in on  record that voters and one races are ten times more likely to work a job than wouldn't allow them to vote during that time period is that system equally open seems like it because that would be pretty much the status quo in  two and of course it was eight dollars to seven dollars you could make the same argument about into three i think any time you diminish from what i will call the usual burdens if you wanted fifteen minutes to choose an on what is the relationship between your test focused on opportunities and test the solicitor general brief at least suggested about causation and the need for maybe approximate causation  i at the end of the day i don't know that there's really any difference they said they taught there st step is to do minorities have the ability to vote and they say that synonymous with equal opportunity so i think we're on the same page there they also say their socioeconomic factors lead to under utilization by minorities that's not a cognize of a factor under section two because it's got to be the voting practice that causes the diminished opportunity again we are in full throated agreement with that provision as well so the two key points are the system itself needs to provide less opportunity to voters and of social economic factors which are external to the voting practice lead to diminished utilization but other than that semantic quibble now we've also talked about reading justification into statute a result which i warmly embrace and we may be a tad more skeptical about whether that flows from the statutory language than the solicitor opportunity does that permit any de minimus distinctions or does it require equality of opportunity under all circumstances right yes obviously any ill any of these phrases need to take into account the sort of demographic realities for example the justice kagan was discussing and if a polling place was afoot farther away for minorities than for non minorities i don't think anybody could argue that that really has  that of course will put a lot of pressure on the word ordinary can you tell us how courts are supposed to distinguish ordinary regulations from extraordinary regulations i think the way the court has done a challenge times in the andersen vertical line of cases and in crawford one of the usual burns of a lot of this is not some mystery we have a long history of about how people go about voting they show up at precincts and they cast a ballot that requires you to leave your house but that is not an ordinary burden of all that unusual burden of voting whereas the other side says you can never have a system which requires anybody to leave their house they claim that they can't find the precincts because of social economic disparities they claim that they can't get to mailboxes because of social economic disparities which means that the state needs to allow partisan operatives to go collect the ballots well if that is true of course that means that the only system that would satisfy their test is something where the government is sent to house to house to collect the ballots and i'm just saying that that can come with any rational definition of the usual burns of voting which is you register and of whom the precincts are serving then that would not be a realistic equal opportunity if you have ten times the population then roughly eight dollars to ten dollars more precincts would need to be provided you referred to common sense and i think two factors among others but two factors that is a matter of common sense as i think about it would trigger more suspicion on one faction b if you're changing to a new rule  that puts minorities in a worse position than they were under the old rule and the nd factor would be whether a rule is commonplace in other states that do not have a similar history of racial discrimination do those two considerations matter under your view section two not really and i think the court is caution saying that you could look at it but no court is caution in terms of the retrogression point that that is an analysis under section five not under section two and if you think about it there's a common sense reason to that if one party takes power and expands the vote dramatically without concern for ballot integrity or security and then the other party comes in and wants to re position because it strikes me that it has some contradictions in it so as i understood from your brief your position is that section two does not apply to the house at the time place and manner restrictions as long as there are facially neutral it's only about the who am i right about qualifications would deny people the opportunity to vote time place and manner do not deny anybody the opportunity to vote they're simply providing ok but then i don't understand why you conceded in your examples to justice k but they're not neutral you know other words too because they don't give minorities the same opportunity to access the precincts is given to what you know the words if you put all of your presented country quote the notion that minorities have the same opportunity to you would need to look at the racial composition of who the literacy test applies to because they've denied you an opportunity they stopped you from voting if the state has not stopped you from voting and the electoral system doesn't show you how you can vote then you haven't established the threshold requirement to look at the disproportionate outcome in other words the state has not done anything wrong in a time place or manner of case if you ask why didn't this person vote the answer in the literacy test because the policy played the greater imperative and democratic organizations to educate their voters and because the policy harmed its members who would have voted out of creating what the interests of the arizona are and stay here and keeping  precinct buttered ballot the qualification rules on the bugs because it puts us at a competitive disadvantage relative to democrats politics is a zero sum game and every extra vote they get through unlawful interpretations the court has a stark choice between two systems here ours is clear we think derives directly from the text and is easy to apply there's is one that requires the courts to engage and a maximisation policy which anything that has a disproportionate result is somehow taken out of the hands of state legislatures if you go down that path even if you try and limit by suggesting that the state can justify it or there will examine socioeconomic factors that still gets the courts involved in a number of us manipulable a situation where no one knows what the rules are going into the next election and they'll all be decided on an ad hoc basis  partisan environment so in addition of the fact that our test of the only one that comports with the text of section two and the constitution it's also the only one that gives lower courts than clarity that is specially important in the voting cont case before the gorn establishing a clear and constitutional test that allows steve to meet these imperatives in session to vote in our claim requires substantial disparate impact that is also caused by the challenge law the law as it is you here are val  in participation by minority voters is that substantial enough i mean one percent according to the statistical analysis has been denied the opportunity to vote when right is that  justice roberts we believe that our test is the most workable because if you look at what he substantial impact would be we must analyze that under the totality of circumstances and after rise to a level of a denial an abridgement of the right to vote and the opportunity to speak unlike candidate other choice because the whole point of section two was discussed out just intentional discrimination when it's used as a proxy or guys so i believe that if this court looks at even the redistricting cases such as  procedures and other words let's say there's a significant impact on on minorities voting at the polls in analyzing that you say well they can vote by mail so overall it's not that substantial an impact justice we believe in arizona there are numerous ways that people have taken there's no skews absentee balloting they can vote by mail we have voting centers in some counties and they can vote early up to twenty seven days for the election and so the only way to standing in this case which you take a minute to discuss why you have standing here justice thomas st and foremost the th circuit allowed us to intervene on behalf of the state and the attorney general of the state of arizona title forty one air and arizona statute clearly allows the attorney general to represent the state in federal court the there was  catspaw theory one i'd like you to address but i also like you to tell us to discuss how you would determine the intent of the arizona legislature and passing this legislation just think we believe that the catspaw doctrine is completely in a political to a case like that that doctrine arose out of the context of agency relationships and imputes the motives for superiors to the agents our test we believe it's a two prong test and we need to and it's designed to make sure that and determine whether an intentional discrimination is done by proxy and that's why we need to look at the substantial disparity looking at the totality of circumstances and analyze whether that caused that difference in voting just as prior i'm curious to know what you think of professor stephanopoulos is test my reason is simply this it seems to me that many discrimination statutes anti discrimination title seven title six the housing act the age discrimination a century the courts have come down and disparate impact situations three element st the plane it has to show that there is some kind of significant to spirity second the plaintiff has to show that there is at least a for cause and the state to the employer's policy is the but for cause and then rd the defendant can come back and show well we have a good non race related reason for this and it can't be accomplished easily in other ways those three elements run through the law many of the tests and stephanopoulos who says it explicitly embody those three elements are you against are saying those same three elements fitting them into the statutory language here are the basis of a cause we'll never get it perfect will always be case by case it will always involve all the circumstances but those are the three key elements justice grier that those are that's an interesting task but i think at the end of the day congress d and we do believe that to adopt those tests in the title seven context would actually shift the burden and the text of section two doesn't require it once again i believe that when any analyzing any of these burdens on voters or if there's just disparities we have to look at  of the circumstances in a totalitarian the voting systems within that state and once again if you look at all the opportunities that people have to vote on this who they are in the background arizona provides a plethora of options for people to exercise  thousand people voted out of precincts so simply answer your question that only included voting it did not include the eighty percent of people who voted early by mail what would happen if someone showed up for early i'm sorry just we don't budge all ballots are available that early voting centers but not every county in arizona has voting centers if i understand your question question correctly ok let me go on to another another point you say we should give some teeth to the requirement that challengers from a show not only that a protected class have less opportunity to participate in the political process but also less opportunity to elect representatives of seven another civil rights statute and response justice prior puts the burden on the state but the only burden that that test requires is for the state to justify its practice to explain why why is that a bird but you the test requires an examination of  section talks about totality of circumstances i'm asking you a simple question are you arguing that the reason you did something is not part of that totality of circumstances right it's ten times the impact right ten times a greater distance to the polls ten times more polling stations voters will be very disproportionately impacted by hours that are tended to justice kagan and that hypothetical it very well could be a violation of section to that point i believe it would judge once again both of these problems we have to look at the totality of circumstances and so even with voting hours the question becomes well one of the alternative methods or ways for people to vote how many people act actually are affected by that tend to  voting those hours so we have before us to actual voting practices and precinct requirement in the rule against vocal action or are busting can you explain  additionally the scheme when it comes to time place and manner when it comes to regulations that are designed to uphold the integrity of the election process i think the court should be very skeptical when it counsel you acknowledged several times that the totality of the circumstances are relevant here and of course that's in the statutory taxed as my colleagues have pointed out i the availability of alternatives that could serve your policy goals a circumstance that matters when we consider the totality of the circumstances yes absolutely just sit down and so if there is an alternative available that it would serve the policy objective without causing the disproportionate impact or would cause less of a disproportionate case about is about whether we look at the electoral system as a whole or whether we look at the challenge regulation and isolation or let's say on a regulation by regulation basis and i want to give you this point in th brief she makes a pretty good point she says in response to your argument that we have to look at the process itself to say overall as the process you know open enough for disadvantaged voters so you know even if they can't send their ballot in via a ballot collection they have many other opportunities to do so early voting etc she points out and footnote six on page twenty three that if a state sen unsolicited ballot applications to residents of white neighborhoods but not to residents of black neighborhoods that would amount to giving the latter last opportunity to participate and she's you know quoting the republican party there wouldn't that be true even if black voters could vote in other ways and other words reducing an opportunity is reducing an opportunity in the text of the statute even if there are still other avenues open to the black voters kagan thing samples which seemed on their face to be i spent a one million in a trial on their face time place and manner restrictions if it takes one opportunity away i get they still don't understand why that is that reducing the ability of those voters to vote without qualification the voting rights act cool and ending racial discrimination in voting the constitution demands of all americans be free from this punishes evil a disparate impact on minority voters can be an appropriate proxy for legal discrimination when that disparity is substantial without the shellings section to what extent congress's power is to force the reconstruction amendment and properly inject race into all voting laws and impede a state's ability to run their elections arizona's requirement and assigned legal precincts and its restrictions on ballot harvesting are appropriate election time the measures that can not create any disparate impact the racial minorities but service all the equally well the desire to enhance the convenience of voting was never outweighed the imperative about and that ballot is discarded rather than counted that voter has been denied the right to vote likewise when an eligible voter relies on ballot collection to vote and that process is criminalized that citizen voter right has at the very least in a bridge the question then is whether that denial or abridgement have occurred on account of race section two the plain text tell the court how to answer that question and the statutory commands to answer based on the totality of circumstances necessarily requires rejection of the inflexible rules petitioners advocate to the contrary it mandates what this court is called the searching practical evaluation of the past and present reality and a functional view of the political forty years and nothing like what petitioners claim has come to pass indeed successful section two challenges to statewide election laws involving voter id early voting ballot collection and out of precinct voting number in the single digit  has been limited to policies that due to their interaction with particular back on the ground are outliers and the discriminatory burners they impose on minority voters that is the case here and arizona's chief ally had officer secretary of state h council you're aware of what the carter baker commission found about ballot harvesting they said that absentee ballots are the largest source of potential voter fraud they said citizens who voted home and nursing homes at the workplace or church are more susceptible to pressure or or to intimidation and that they recommended that the practice of allowing candidates or party workers to pick up and deliver absentee ballots should be eliminated you think that's you disagree with that in this case right given your position on the ballot harvesting in this case your honor and that is the important distinction here they can have an interest in insecure in their election through limiting ballot in forcing the law and that means that your pursuit of racial proportionality would require you to keep in place the pressure of the intimidation and it caused president carter and secretary baker to recommend as it has nothing to do with racial proportionality what it has to do is are the burden that they'll actually impose this on voters here so there are particular back in certain families in arizona that may not be present in other states well but it is when doesn't when you say it doesn't involve racial proportionality besides if the burdens were equally distributed among the races that it is true that policy wouldn't be before us would and what i'm saying is that here what we have is a record this show that native american and latino in arizona rely disproportionately on ballot collection and white voters are not so that is why this is before you be struck down i'm just asking you if that requires you to tolerate the difficulties and problems in pressures that president carter and secretary baker outlined in the report your honor i am simply saying that while they can have a an interesting in securing absentee ballots and limiting ballot collection that is not the interest here and i think the legislative history shows that in or this court has never held and in fact the text of section two says that it is about the right of any voter to be abridged of course we recognize that the number of voters affected may affect how a plaintiff can prove that policy denied or abridged the right to vote on account of race but it is not the case that simply a small number of voters being affected by the policy is enough to ren point here is that for example with st back to the need of american voters who have to vote who rely on ballot collection to vote simply saying that those voters can go ahead and vote in kirsan or go ahead and  vote by mail when they don't actually have home mail service or access to postal facilities that's exactly our contract that we draw with mr card in the position that it's all just about opportunity and that you which i think is the main issue here what do you think since disparate impact is this is not the only field in which it comes up that we take the standards from the other or has employment take those standards producing a uniformity in law that's my general question my specific question is what you really say about the question that i think justice thomas was asking but if you weigh in on the details  here in many in the majority of states they won't be able to engage increasing voting because a lot of the precincts will turn out to be maybe ten feet or maybe a one hundred yards or maybe a one thousand yards on in general further away from a minority group of houses than a majority group of houses are you supposed to out with a tape measure was alright that's a concern in the specific case i'm interested in both one already incorporated in the test that the court applied below and are only quibble with with the standard that your honor set forth is the requirement of a quote significant disparity we don't think that simply importing a textual adjective like significant or substantial really moves the ball that said we do recognize that you have to the size of a disparity will matter for purposes of being able to prove whether our policy is in fact discriminatory on account of br our nd question about whether states can engage in still engaging precinct based voting certainly around her face maintain plenty of discretion and authority to regulate their elections as see fit and to have precinct based voting system the reality is that is actually not not what is happening in arizona in fact in two hundred and two thousand and seventy five percent of voters voted in counties that do not actually use precinct based systems and so while there may be some interest in maintaining precinct based systems in other states that is not actually the reality on the ground in arizona we don't think this they need to take out the tape measure that instead what they have to do is ensure that they are not providing less opportunity to minorities so they do have to be conscious of ensuring that that in fact opportunities are equalized across the races and that is what section two is meant to do thank you justice alito counsel i want to try to give you a couple of examples and ask you for each one to assume that a title  two plaintiff is able to show statistical disparities that are at least as great as those that were shown here with respect to out of precinct precinct voting and that those disparities were caused for before election day and the plaintiffs say and they show that has that if it should have been sixty days and there's the same kind of statistical disparities here ira if i may ask in your hypothetical day period to sam and spend as they would within the sixty day period well your honor we think that there is a difference both in text and in precedent in asking a court or asking a state to adopt a new policy versus the state taking away a policy that already exists and so i don't think that section two plaintiffs could come in and say that you are required to expand from six from fourteen to sixty and that's because the text actually get i think that what section two calls for as what this court has said is a practical evaluation of the past and present reality i don't think this is i just want to be clear the typical disparities alone are not enough to make out a section  violation you would have to show that it is in fact imposing burden off a discriminatory burden on the minority voters that it is not imposing on not well i don't really see the difference between let me give you one more example say there's a rule statistical disparities and again you're on your honor my answer is the same statistical the disparities alone are not enough you have to take a functional view of the political process and look to holistic view  i don't believe but more generally which is how do you prove that a legislature acted with discriminatory intent assuming as we must that the legislature held in arlington heights and in cases applying it was the plaintiffs must do is show that discriminatory intent was a motivating factor for the legislation and here i think the record was abundantly clear in fact much more clear than it normally is in such cases that discriminatory intent was a motivating factor in that the entire purpose of introducing the law by senator shooter was to attempt to keep hispanics in his district from voting and was premise on far fetched racial racially change allegations that with geno's in the district were engaging in fraud with respect about collection do you know whether they can you remind me whether the district court found that action and those two legislative motives this law would not have passed just the chief justice pointed out that there are independent reasons for patching the ballot collection with patients the district court actually moved to determine that even if this was a motivating factor but the law would not have passed without it your honor that the district court because they found it was not a motivating factor did not reach the question but but as the court held clearly discriminatory intent was a motivating factor and it used the district court's own fact finding the district court simply minimize the importance of those findings they do show that discriminatory intent was a motivating factor and and party standards differ so if i understood what mr carvin said argument as opposed to what he said in his brief he said of course you should look at demographic realities even said you know it would laughable not to look at demographic realities on occasion and bring you back to this hypothetical question where black voters have many fewer polling stations even though that's a completely neutral rule on its face but the way it operates is to make road and more difficult for black voters than white for others and leave it to the the political system is not equally open to their participation and he said sure you can you can look at that and similarly you talked about the practical of valuation of realities on the ground so i mean tell me how you think these things to for and make us more specifically i guess when you start thinking about a whole run of hypotheticals there are some things that are really quite obvious burdens which you just know looking at them is going to lead to real difficulty but they could they could overcome that inconvenience if if they really wanted to so how are you hat is is is you know agnes what i'm saying is there's a spectrum of restrictions and a spectrum of the effects th restrictions cause how are we to think about that well you are adding to the mr carbon concession that the court needs to look to demographic realities i find myself in agreement with him on that and and as the court has said in its jingles and in its both dilution jurisprudence the essence of a section to claim it is looking for how the state practice interacts with social and historical conditions to cause the inequality and so here are as to the kind of spectrum of regulations that's exactly what section two is meant for courts to do to undertake a functional inquiry into the totality of the circumstances what i took mr carmen's brief to be saying as opposed to what mr harben argued here today is that in fact so called neutral time place and matter regulations don't even implicate section two that is you don't even get to get past the pleading stage if you come in with and say this is simply a neutral time place and manner restrictions instead what courts should be doing is looking at how that restriction interacts with the facts on the ground to see whether it is in fact causing a discriminatory burden on minority voters and here that's what the court did and in fact found that the out of precinct policy and the ballot collection of all impose discriminatory f prevent fraud in balloting earlier our states have an interest in preventing fraud in balloting but as this court has recognized in its campaign finance jurisprudence when it is acting to prevent fraud you know the district court found that there was evidence available the chief justices referred to the court or baker commission and there was also evidence i believe in the record of of harvesting affecting fraudulent practices in barba stings affecting least one election elsewhere but what about that is insufficient your honor and with respect there was no such evidence of there ever being any ballot collection fraud in arizona i so it doesn't matter the new you agree it doesn't matter that they're harvesting hasn't resulted in fraud in arizona how many states how many elections does it need to affect out of state before is on the can take cognizance of it in its own sta how many elections what would be enough in the secretary's view it doesn't have to happen in arizona how many states does it have to happen and how many elections iraq are to be clear arizona already has a law prohibit fraudulent ballot collection what did this law does is it criminalizes neighbors helping neighbors deliver ballots with up to two years in jail and higher until july august and i'm just as pretty simple question do you agree that  prophylactics are allowed and that this addresses a prophylactic issue that other states have found to be problematic and a blue ribbon commission found to be problematic how much more evidence more fraudulent ballots collection simply is does not get as the state interest in preventing fraud and as with respect to prophylactic st directions the courts incur a should be at least as searching for explore how we got here is a statutory matter and try to square up statutory tax and common sense a bit it seems like there are two polar positions one could have reading different parts of the to demographic realities being relevant the state attorney general also talked about the totality of the circumstances being relevant and of course in section two b refers to the totality of the circumstances so to the extent we're not  circumstances that didn't seem to make a difference as a matter of common sense one is the chief justice pointed out when you have the carter baker commission saying that a particular state law is a good idea as a matter of policy that would seem to be a circumstance that is as a matter of commonsense would would one support the state's role and secondly and i mentioned this earlier one a state rule is commonplace in other states it would seem to be a circumstance to put something on the scale in the favor of the legitimacy of the state rule on it not being a reflection of discriminatory intent and here the out of precinct policy is from something like twenty six dollars other states including a wide both policies then turned it certainly is relevant that these are commonplace however it doesn't give us a free pass just by saying this is a common policy and that you have to look at whether in fact the respect to the ballot collection data to again arizona had a twenty five year history of literally not a single instance of fraud with ballot collection it already has that today criminal the ballot collection and the way that the how the will operate on the ground will be to disenfranchise native american and hispanic voters justice o'connor and that is commonplace doesn't give the state  because one of the difficulties in this case is that the attorney general says that the burden has to be substantial mr carville was talking about the ordinary burdens of voting and there is a difficulty that you know the statutory language and its lack of clarity presents and trying to figure out when something crosses from an inconvenience to a burden you know on the other side and i think some of the hypotheticals that justice alito is asking you emphasize this i think you know any disparate at all risks saying that any election rule you know which as judge easterbrook pointed out in his frank opinion you know all election rules are going to make it easier for some to vote and others so your approach risks willing them all out so let me give you an example what about a rule that the polls close at seven pm and because of socioeconomic reasons it's harder for minority voters to get to the polls before seven pm because of the time have of their work hours in the day is that the kind of burden that triggers section two with that would such a rule pull closure rule where that violates section two no i don't believe so and  again though your honor you would look to the actual facts on the ground and as i said to justice alito a statistical disparity that is not enough instead you would have to see whether in fact on the ground is acting to actually cause less opportunity for minority but i'm telling you it is that because of socioeconomic conditions and the hours that minorities work that is the cause of their not being able to get to the polls during the hours that the polls are open well again your honor one would have to make out a case that that those minority voters had no other alternatives of voting if one was able to do that and i saw that you're in a position much that you look at it on a regulation by system of the whole however you can't simply excuse one discriminatory practice by saying that there are others so for example to say to a native american voter who lives on a reservation forty five miles from the post office that you're d hypothetical i want you to explain why my hypothetical doesn't fail your test your honor under our test you would have to show that the voter in fact has a less ability to vote that the that the policy  but for cause of that lesser ability to vote and that you would consider the totality of circumstances including in particular to face justification ok thank you that we have a strong justifications in ending elections by by a reasonable time thank you your honor as this court has repeatedly said no right is more precious in a democracy than the right to vote as have that vote counted that is what section two protect  a one way ratchet but in a democracy we should actually want to ratchet up participation so that every eligible citizen who wants to both can do so candidates and party should be trying to win over voters on the basis of their ideas not trying to remove voters from the electorate by imposing unjustified and discriminatory burdens unfortunately petitioners have made clear that that is not their vision of democracy indeed mr carden client frankly admitted to this court in their briefing that they are here because they view enforcement of the voting rights act as a quote injury to their own electoral prospects secretary hobson myths that the real injury here is to the native american latino and black citizens of arizona whose right to vote has been denied or abridged by the out of precinct policy and the criminalization of neighbors helping neighbors deliver their ballots we ask the court to affirm the judgment below thank you  section two of the voting rights act the test is rooted in the plain text of section two clear congressional intent and this court's longstanding president has proven workable over many years in both cases in a circuit court this test h resulted neither in the rejection of all manner of commonsense voting regulations nor in the impermissible consideration of race in the adoption of voting laws far from it using this test courts have done the intensely localized analysis called with your friend about legislative intent let's say that you have forty nine legislators who speak and give good reasons for adopting say a law against about harvesting they think quote the carter baker commission forty nine dollars of the legislature's don't say anything to legislators don't say anything at all and to legislators has a clear racial motivation in the law passes eighteen dollars to twenty dollars was race a motivating factor in that case so that the legislation would be suspect probably not your honor assuming that in your hypothetical that only the two were motivated by race and that did not infect any of the other members what we have here in this record your honor is is far from that it is a careful application of this court's test in arlington heights that looked at not only the evidence racial intent was really quite limited in this case it's actually will be on what you normally have your honor not only did you have the pervasive influence of senator shooter but also you had the lavaca pharo video that was widely played as a district court get additional information with respect to this this legislation and the only racial motivation i thought on the record was mr shooter one of the legislators no your honor that's not accurate and i think it each of these prongs of their only can hide a test that look at the circumstantial direct evidence that's available there were there were several things that indicated a racial motivation one was mr shooter but also there was look for a video also there was the sequence of events that was somewhat of a pejorative nature about minorities someone said the opposite or something similar or countervailing about whites and you have both  depend on what was said and what role if any it played in the passage of the legislation because as this court is held in arlington heights determining whether racial motivation was a factor doesn't have to be the only factor but a factor in the passage of the act is not simply a question of counting heads or or or statements oftentimes there are there are no discriminatory statements available and yet the court has has said that the way to determine whether racial discrimination is at work as a motivating factor is to analyze the arlington heights factors because often in this day and age the circumstantial evidence of that is all that's available here is one of these extraordinary cases where you actually have in addition to a wealth of a circumstantial should that also undermine your standing in this case to know your honor the d n c and the other point of standing rests on organ organizational standing principles because they have to expend resources in order to here and it seems to me a lot of the parties on both sides are pretty close on the standard so you take this title seven of these all the titles standards you might have to modify it a little i think you do have to use the word significant harm because you have to how you have to some way or other get rid of this happening just by chance maybe you'd say it was reasonably foreseeable that minorities would be impacted negatively and there is room there for who has the burden of proof of showing that there is a justification and there is a question about the extent to which non race based tradition would count as a justification now any comments you want to make are welcome any additions to what i'm saying is open areas of or not any comment yes your honor i think there's not a lot of daylight between what we think the statute and the legislative history in this court's precedents require in terms of a standard and say the stephanopoulos i think principle that your honor is asked about i do think the the distinct standard that has been applied in a number of cases over the last several years in most denial cases does generally doesn't look at the magnitude it doesn't require as a threshold matter in that shouldn't but but most of those cases where plaintiffs have prevailed have actually circumstances that that's an appropriate thing to look at and should be looked at and was with dad here and what the th circuit found was that really the state did not have a justifiable interest in continuing this policy justice  o i think what concerns me is that your position is going to make every voting will vulnerable to attack under section two to the same extent that the out of precinct policy is where it was found to to violate section two by the th circuit because people who are poor and less well educated on balance probably will find it more difficult to comply with just about every voting role than do people who are more affluent and of have the benefit of more precinct voting and that the disparity was caused by the same socio economic factors that you would say were sufficient here it won't result and it hasn't resulted your  disparate impact because the state provided free i d s in that context again using the totality of the circumstances test came to the conclusion that voter id in virginia was was was was permissible and section two didn't changing along a stablish voting requirement and imposing a new one and let's go back to the two questions and the two practices at issue here the out of precinct voting is not a new law it's always been in effect and so where is that fact considered in the totality of circumstances as you define it and i have an easier time understanding how the ballot collection is a change in the law and one in which the information provided to the legislature and the voters a lot of it was racially  method of voting that people have come in already people have come to rely upon because the text speaks in terms of a bridging a right to vote either shortening less than taking something away but i think in play it would have a harder time in the in the general case advocating for a new rule some of the hypotheticals about adding additional days of early voting in the like i think what you have the difficulty of that with respect to right and that and that of course is a is a standard that has resulted in the denial of the vote and it has been around for a long time so i think that that's one difference but but secondly i think the better the passage of time here cuts the other way because where is there may have at one time before that such things as electronic holy books and the like that that made it necessary perhaps to to disenfranchise people if they voted in the wrong precinct  prior about the stephanopoulos test i would like to ask you about the old s g test if you look at the s g brief that was filed in this case what do you think is right with what the s g said and what do you think is wrong with was saying that you should consider the senate factors in in the tally of the circumstances that essentially that would be the challenge standard of practice by itself must have caused the disparity and i circumstances inquiry which which requires evaluating whether the standard evidence you use to is one question and what what what test to apply that evidence against is another so i'm not sure that that explains it what explains the need for but for rather than a proximate cause test and with what evidence you look at em as i understand the proximate would actually in appropriately limit the prohibition of section two only to those circumstances where the standard it was discriminatory in intent or basically discriminatory  and from president reagan but those said should after the dull compromise i think you agree creates something of a gray area between a pure results and pure opportunity and you look at the totality of the circumstances several councils said including i think you said the senate factors one of those factors is is there a good justification for these rules and then on the ballot collection i'm going to repeat the question you have the corner baker recommendation on the out of precincts you have it being commonplace in other states that on its face at least to me suggests a strong justification for doing these rules how does that weigh in the balance any evidence of ballot collection fraud anywhere in the country the legislature and this court found it had no evidence of voter fraud not only in arizona but anywhere in the country at the time but it passed the criminal ballot question ban in terms of it being commonplace in other states i do think you have to look to the context it is relevant but there are also more states that actually permit some form of ballot collection then don't and so you know i think to pick up where you left off with justice cavanagh you said there are a number of factors in arizona that cause the out of precinct policy to discriminate on the basis of race including you know fact the arizona changes its precincts of that we adopt a but for standard of causation as you propose i want to ask you a question that judges can lead raised and his dissent to the th circuit sombong decision which is why isn't it the precincts itself rather than the policy of just counting votes that causes the disparity because as you described it it's the fact that the you know precincts change the locations move around but you've expressed a disavowed any challenge to the precinct policy itself am i right well we  challenge the reason or to answer your question directly the but the reason that we challenge in the reason it's the but for cause the policy of not counting the votes is that is what causes minority groups to be disenfranchised by two to one minutes not by pass them as opposed to the ballot collection where the argument is the inability to vote by relying on a rd party actually reduces the opportunity to vote here it's not the discounting of the votes it's the inability to locate and show up at the right precinct that causes this is proven not just an accurate description of the times in two thousand and thirteen but also prophetic more voting restrictions have been enacted over the last decade than at any point since the end of jim crow the last three months have seen an even greater uptick in proposed voting restrictions many aimed squarely at the minority groups whose participation congress intended to protect rigorous and fair and force me to section two is critical to the protection of minority voting rights today as it was when congress passed nine hundred and eighty two amendments the test used by the majority of circuits has not undermined a large swath of neutral voting restriction rather it has been used to carefully review and where necessary strike down discriminatory voting law thank you mr chairman remodel thank you mr chief justice i think the kalak we makes clear that we're the only people who are providing a clear rule that can be applied by the lower courts to clarify any ambiguity in this both that argument in our brief we've been making the same argument does the voting system provide different opportunities to minorities than it does to non minorities has a voting system stacked adapt to favor non minorities if it hasn't if it doesn't treat minority neighborhoods differently than no minority neighborhoods then there's no problem if it does that's really what gets at it now figuring out whether there's this kind of differential treatment you need to look at population were stated differently demographic reality one precinct  with five people in it is quite different than one polling place with five thousand people in it because the latter has much less opportunity but if there's no differential treatment of that kind of socioeconomic factors a contribution to states in a straitjacket this case it brilliantly illustrates that they claim that there's a lot of problem for minorities to get to precincts relative to non minorities what is arizona do has this free mail system for twenty seven days that utilized by eighty percent of the people the very system that the d n c went around the country advocating as an expansion of the franchise now we're told that a mail system somehow discriminates against minorities which is completely untrue under the facts but the only facts you need to know is anybody who's ballot is harvested receive the ballot through the mail this is all people who already got the ballots and they're picked up after they're voted wow did they get the ballots they received them through the mail so for that reason the gist record was quite correct to hold that there's no connection between access to mail and the need for ballot harvesting they couldn't produce a single voter who said it was more to vote without a ballot harvesting same thing in terms of precincts the notion that social economic disparities make it difficult to find a precinct has nothing to do with this case because everybody involved here found a precinct they simply found the wrong precinct so transportation and work schedules had no inhibiting effect on minorities and finally of course they didn't challenge the arrangement of precincts the court found