AMERICANS FOR PROSPERITY FOUNDATION v. BONTA, ATTORNEY GENERAL OF CALIFORNIA

Certiorari To The United States Court Of Appeals For The Ninth Circuit

No. 19–251. Argued April 26, 2021—Decided July 1, 2021 1

Charitable organizations soliciting funds in California must disclose the identities of their major donors to the state Attorney General’s Office. Charities generally must register with the Attorney General and renew their registrations annually. The Attorney General requires charities renewing their registrations to file copies of their Internal Revenue Service Form 990, a form on which tax-exempt organizations provide information about their mission, leadership, and finances. Schedule B to Form 990—the document that gives rise to the present dispute—requires organizations to disclose the names and addresses of their major donors. The State contends that having this information readily available furthers its interest in policing misconduct by charities.

   The petitioners are two tax-exempt charities that solicit contributions in California. Since 2001, each petitioner has renewed its registration and has filed a copy of its Form 990 with the Attorney General, as required by Cal. Code Regs., tit. 11, §301. To preserve their donors’ anonymity, however, the petitioners have declined to file unredacted Schedule Bs, and they had until recently faced no consequences for noncompliance. In 2010, the State increased its enforcement of charities’ Schedule B disclosure obligations, and the Attorney General ultimately threatened the petitioners with suspension of their registrations and fines for noncompliance. The petitioners each responded by filing suit in District Court, alleging that the compelled disclosure requirement violated their First Amendment rights and the rights of their donors. Disclosure of their Schedule Bs, the petitioners alleged, would make their donors less likely to contribute and would subject them to the risk of reprisals. Both organizations challenged the constitutionality of the disclosure requirement on its face and as applied to them. In each case, the District Court granted preliminary injunctive relief prohibiting the Attorney General from collecting the petitioners’ Schedule B information. The Ninth Circuit vacated and remanded, reasoning that Circuit precedent required rejection of the petitioners’ facial challenge. Reviewing the petitioners’ as-applied claims under an “exacting scrutiny” standard, the panel narrowed the District Court’s injunction, and it allowed the Attorney General to collect the petitioners’ Schedule Bs so long as they were not publicly disclosed. On remand, the District Court held bench trials in both cases, after which it entered judgment for the petitioners and permanently enjoined the Attorney General from collecting their Schedule Bs. Applying exacting scrutiny, the District Court held that disclosure of Schedule Bs was not narrowly tailored to the State’s interest in investigating charitable misconduct. The court found little evidence that the Attorney General’s investigators relied on Schedule Bs to detect charitable fraud, and it determined that the disclosure regime burdened the associational rights of donors. The District Court also found that California was unable to ensure the confidentiality of donors’ information. The Ninth Circuit again vacated the District Court’s injunctions, and this time reversed the judgments and remanded for entry of judgment in favor of the Attorney General. The Ninth Circuit held that the District Court had erred by imposing a narrow tailoring requirement. And it reasoned that the disclosure regime satisfied exacting scrutiny because the up-front collection of charities’ Schedule Bs promoted investigative efficiency and effectiveness. The panel also found that the disclosure of Schedule Bs would not meaningfully burden donors’ associational rights. The Ninth Circuit denied rehearing en banc, over a dissent.

Held: The judgment is reversed, and the cases are remanded.

903 F. 3d 1000, reversed and remanded.

  The Chief Justice delivered the opinion of the Court with respect to all but Part II–B–1, concluding that California’s disclosure requirement is facially invalid because it burdens donors’ First Amendment rights and is not narrowly tailored to an important government interest. Pp. 6–7, 9–19.

  (a) The Court reviews the petitioners’ First Amendment challenge to California’s compelled disclosure requirement with the understanding that “compelled disclosure of affiliation with groups engaged in advocacy may constitute as effective a restraint on freedom of association as [other] forms of governmental action.” NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 462. NAACP v. Alabama did not phrase in precise terms the standard of review that applies to First Amendment challenges to compelled disclosure. In Buckley v. Valeo, 424 U. S. 1, 64 (per curiam), the Court articulated an “exacting scrutiny” standard, which requires “a substantial relation between the disclosure requirement and a sufficiently important governmental interest,” Doe v. Reed, 561 U. S. 186, 196. The parties dispute whether exacting scrutiny applies in these cases, and if so, whether that test imposes a least restrictive means requirement similar to the one imposed by strict scrutiny.

  The Court concludes that exacting scrutiny requires that a government-mandated disclosure regime be narrowly tailored to the government’s asserted interest, even if it is not the least restrictive means of achieving that end. The need for narrow tailoring was set forth early in the Court’s compelled disclosure cases. In Shelton v. Tucker, 364 U. S. 479, the Court considered an Arkansas statute that required teachers to disclose every organization to which they belonged or contributed. The Court acknowledged the importance of “the right of a State to investigate the competence and fitness of those whom it hires to teach in its schools,” and it distinguished prior decisions that had found “no substantially relevant correlation between the governmental interest asserted and the State’s effort to compel disclosure.” Id., at 485. But the Court invalidated the Arkansas statute because even a “legitimate and substantial” governmental interest “cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved.” Id., at 488. Shelton stands for the proposition that a substantial relation to an important interest is not enough to save a disclosure regime that is insufficiently tailored. Where exacting scrutiny applies, the challenged requirement must be narrowly tailored to the interest it promotes. Pp. 6–7, 9–11.

  (b) California’s blanket demand that all charities disclose Schedule Bs to the Attorney General is facially unconstitutional. Pp. 12–19.

   (1) The Ninth Circuit did not impose a narrow tailoring requirement to the relationship between the Attorney General’s demand for Schedule Bs and the identified governmental interest. That was error under the Court’s precedents. And properly applied, the narrow tailoring requirement is not satisfied by California’s disclosure regime. In fact, a dramatic mismatch exists between the interest the Attorney General seeks to promote and the disclosure regime that he has implemented.

  The Court does not doubt the importance of California’s interest in preventing charitable fraud and self-dealing. But the enormous amount of sensitive information collected through Schedule Bs does not form an integral part of California’s fraud detection efforts. California does not rely on Schedule Bs to initiate investigations, and evidence at trial did not support the State’s concern that alternative means of obtaining Schedule B information—such as a subpoena or audit letter—are inefficient and ineffective compared to up-front collection. In reality, California’s interest is less in investigating fraud and more in ease of administration. But “the prime objective of the First Amendment is not efficiency.” McCullen v. Coakley, 573 U. S. 464, 495. Mere administrative convenience does not remotely “reflect the seriousness of the actual burden” that the demand for Schedule Bs imposes on donors’ association rights. Reed, 561 U. S., at 196 (internal quotation marks omitted). Pp. 12–15.

   (2) In the First Amendment context, the Court has recognized a “type of facial challenge, whereby a law may be invalidated as overbroad if a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.” United States v. Stevens, 559 U. S. 460, 473 (internal quotation marks omitted). The Attorney General’s disclosure requirement is plainly overbroad under that standard. The regulation lacks any tailoring to the State’s investigative goals, and the State’s interest in administrative convenience is weak. As a result, every demand that might deter association “creates an unnecessary risk of chilling” in violation of the First Amendment. Secretary of State of Md. v. Joseph H. Munson Co., 467 U. S. 947, 968. It does not make a difference in these cases if there is no disclosure to the public, see Shelton, 364 U. S., at 486, if some donors do not mind having their identities revealed, or if the relevant donor information is already disclosed to the IRS as a condition of federal tax-exempt status. California’s disclosure requirement imposes a widespread burden on donors’ associational rights, and this burden cannot be justified on the ground that the regime is narrowly tailored to investigating charitable wrongdoing, or that the State’s interest in administrative convenience is sufficiently important. Pp. 15–19.

 Roberts, C. J., delivered the opinion of the Court, except as to Part II–B–1. Kavanaugh and Barrett, JJ., joined that opinion in full, Alito and Gorsuch, JJ., joined except as to Part II–B–1, and Thomas, J., joined except as to Parts II–B–1 and III–B. Thomas, J., filed an opinion concurring in part and concurring in the judgment. Alito, J., filed an opinion concurring in part and concurring in the judgment, in which Gorsuch, J., joined. Sotomayor, J., filed a dissenting opinion, in which Breyer and Kagan, JJ., joined.

Notes
1 Together with No. 19–255, Thomas More Law Center v. Bonta, also on certiorari to the same court.


BRNOVICH, ATTORNEY GENERAL OF ARIZONA, et al. v. DEMOCRATIC NATIONAL COMMITTEE et al.

Certiorari To The United States Court Of Appeals For The Ninth Circuit

No. 19–1257. Argued March 2, 2021—Decided July 1, 2021 1

Arizona law generally makes it very easy to vote. Voters may cast their ballots on election day in person at a traditional precinct or a “voting center” in their county of residence. Ariz. Rev. Stat. §16–411(B)(4). Arizonans also may cast an “early ballot” by mail up to 27 days before an election, §§16–541, 16–542(C), and they also may vote in person at an early voting location in each county, §§16–542(A), (E). These cases involve challenges under §2 of the Voting Rights Act of 1965 (VRA) to aspects of the State’s regulations governing precinct-based election-day voting and early mail-in voting. First, Arizonans who vote in person on election day in a county that uses the precinct system must vote in the precinct to which they are assigned based on their address. See §16–122; see also §16–135. If a voter votes in the wrong precinct, the vote is not counted. Second, for Arizonans who vote early by mail, Arizona House Bill 2023 (HB 2023) makes it a crime for any person other than a postal worker, an elections official, or a voter’s caregiver, family member, or household member to knowingly collect an early ballot—either before or after it has been completed. §§16–1005(H)–(I).

  The Democratic National Committee and certain affiliates filed suit, alleging that both the State’s refusal to count ballots cast in the wrong precinct and its ballot-collection restriction had an adverse and disparate effect on the State’s American Indian, Hispanic, and African-American citizens in violation of §2 of the VRA. Additionally, they alleged that the ballot-collection restriction was “enacted with discriminatory intent” and thus violated both §2 of the VRA and the Fifteenth Amendment. The District Court rejected all of the plaintiffs’ claims. The court found that the out-of-precinct policy had no “meaningfully disparate impact” on minority voters’ opportunities to elect representatives of their choice. Turning to the ballot-collection restriction, the court found that it was unlikely to cause “a meaningful inequality” in minority voters’ electoral opportunities and that it had not been enacted with discriminatory intent. A divided panel of the Ninth Circuit affirmed, but the en banc court reversed. It first concluded that both the out-of-precinct policy and the ballot-collection restriction imposed a disparate burden on minority voters because they were more likely to be adversely affected by those rules. The en banc court also held that the District Court had committed clear error in finding that the ballot-collection law was not enacted with discriminatory intent.

Held: Arizona’s out-of-precinct policy and HB 2023 do not violate §2 of the VRA, and HB 2023 was not enacted with a racially discriminatory purpose. Pp. 12–37.

 (a) Two threshold matters require the Court’s attention. First, the Court rejects the contention that no petitioner has Article III standing to appeal the decision below as to the out-of-precinct policy. All that is needed to entertain an appeal of that issue is one party with standing. Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, 591 U. S. ___, ___, n. 6. Attorney General Brnovich, as an authorized representative of the State (which intervened below) in any action in federal court, fits the bill. See Virginia House of Delegates v. Bethune-Hill, 587 U. S. ___, ___. Second, the Court declines in these cases to announce a test to govern all VRA §2 challenges to rules that specify the time, place, or manner for casting ballots. It is sufficient for present purposes to identify certain guideposts that lead to the Court’s decision in these cases. Pp. 12–13.

 (b) The Court’s statutory interpretation starts with a careful consideration of the text. Pp. 13–25.

  (1) The Court first construed the current version of §2 in Thornburg v. Gingles, 478 U. S. 30, which was a vote-dilution case where the Court took its cue from §2’s legislative history. The Court’s many subsequent vote-dilution cases have followed the path Gingles charted. Because the Court here considers for the first time how §2 applies to generally applicable time, place, or manner voting rules, it is appropriate to take a fresh look at the statutory text. Pp. 13–14.

  (2) In 1982, Congress amended the language in §2 that had been interpreted to require proof of discriminatory intent by a plurality of the Court in Mobile v. Bolden, 446 U. S. 55. In place of that language, §2(a) now uses the phrase “in a manner which results in a denial or abridgement of the right . . . to vote on account of race or color.” Section 2(b) in turn explains what must be shown to establish a §2 violation. Section 2(b) states that §2 is violated only where “the political processes leading to nomination or election” are not “equally open to participation” by members of the relevant protected group “in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” (Emphasis added.) In §2(b), the phrase “in that” is “used to specify the respect in which a statement is true.” New Oxford American Dictionary 851. Thus, equal openness and equal opportunity are not separate requirements. Instead, it appears that the core of §2(b) is the requirement that voting be “equally open.” The statute’s reference to equal “opportunity” may stretch that concept to some degree to include consideration of a person’s ability to use the means that are equally open. But equal openness remains the touchstone. Pp. 14–15.

  (3) Another important feature of §2(b) is its “totality of circumstances” requirement. Any circumstance that has a logical bearing on whether voting is “equally open” and affords equal “opportunity” may be considered. Pp. 15–21.

   (i) The Court mentions several important circumstances but does not attempt to compile an exhaustive list. Pp. 15–19.

    (A) The size of the burden imposed by a challenged voting rule is highly relevant. Voting necessarily requires some effort and compliance with some rules; thus, the concept of a voting system that is “equally open” and that furnishes equal “opportunity” to cast a ballot must tolerate the “usual burdens of voting.” Crawford v. Marion County Election Bd., 553 U. S. 181, 198. Mere inconvenience is insufficient. P. 16.

    (B) The degree to which a voting rule departs from what was standard practice when §2 was amended in 1982 is a relevant consideration. The burdens associated with the rules in effect at that time are useful in gauging whether the burdens imposed by a challenged rule are sufficient to prevent voting from being equally “open” or furnishing an equal “opportunity” to vote in the sense meant by §2. Widespread current use is also relevant. Pp. 17–18.

    (C) The size of any disparities in a rule’s impact on members of different racial or ethnic groups is an important factor to consider. Even neutral regulations may well result in disparities in rates of voting and noncompliance with voting rules. The mere fact that there is some disparity in impact does not necessarily mean that a system is not equally open or that it does not give everyone an equal opportunity to vote. And small disparities should not be artificially magnified. P. 18.

    (D) Consistent with §2(b)’s reference to a States’ “political processes,” courts must consider the opportunities provided by a State’s entire system of voting when assessing the burden imposed by a challenged provision. Thus, where a State provides multiple ways to vote, any burden associated with one option cannot be evaluated without also taking into account the other available means. P. 18.

    (E) The strength of the state interests—such as the strong and entirely legitimate state interest in preventing election fraud—served by a challenged voting rule is an important factor. Ensuring that every vote is cast freely, without intimidation or undue influence, is also a valid and important state interest. In determining whether a rule goes too far “based on the totality of circumstances,” rules that are supported by strong state interests are less likely to violate §2. Pp. 18–19.

   (ii) Some factors identified in Thornburg v. Gingles, 478 U. S. 30, were designed for use in vote-dilution cases and are plainly inapplicable in a case that involves a challenge to a facially neutral time, place, or manner voting rule. While §2(b)’s “totality of circumstances” language permits consideration of certain other Gingles factors, their only relevance in cases involving neutral time, place, and manner rules is to show that minority group members suffered discrimination in the past and that effects of that discrimination persist. The disparate-impact model employed in Title VII and Fair Housing Act cases is not useful here. Pp. 19–21.

  (4) Section 2(b) directs courts to consider “the totality of circumstances,” but the dissent would make §2 turn almost entirely on one circumstance: disparate impact. The dissent also would adopt a least-restrictive means requirement that would force a State to prove that the interest served by its voting rule could not be accomplished in any other less burdensome way. Such a requirement has no footing in the text of §2 or the Court’s precedent construing it and would have the potential to invalidate just about any voting rule a State adopts. Section 2 of the VRA provides vital protection against discriminatory voting rules, and no one suggests that discrimination in voting has been extirpated or that the threat has been eliminated. Even so, §2 does not transfer the States’ authority to set non-discriminatory voting rules to the federal courts. Pp. 21–25.

 (c) Neither Arizona’s out-of-precinct policy nor its ballot-collection law violates §2 of the VRA. Pp. 25–34.

  (1) Having to identify one’s polling place and then travel there to vote does not exceed the “usual burdens of voting.” Crawford, 553 U. S., at 198. In addition, the State made extensive efforts to reduce the impact of the out-of-precinct policy on the number of valid votes ultimately cast, e.g., by sending a sample ballot to each household that includes a voter’s proper polling location. The burdens of identifying and traveling to one’s assigned precinct are also modest when considering Arizona’s “political processes” as a whole. The State offers other easy ways to vote, which likely explains why out-of-precinct votes on election day make up such a small and apparently diminishing portion of overall ballots cast.

 Next, the racial disparity in burdens allegedly caused by the out-of-precinct policy is small in absolute terms. Of the Arizona counties that reported out-of-precinct ballots in the 2016 general election, a little over 1% of Hispanic voters, 1% of African-American voters, and 1% of Native American voters who voted on election day cast an out-of-precinct ballot. For non-minority voters, the rate was around 0.5%. A procedure that appears to work for 98% or more of voters to whom it applies—minority and non-minority alike—is unlikely to render a system unequally open.

 Appropriate weight must be given to the important state interests furthered by precinct-based voting. It helps to distribute voters more evenly among polling places; it can put polling places closer to voter residences; and it helps to ensure that each voter receives a ballot that lists only the candidates and public questions on which he or she can vote. Precinct-based voting has a long pedigree in the United States, and the policy of not counting out-of-precinct ballots is widespread.

 The Court of Appeals discounted the State’s interests because it found no evidence that a less restrictive alternative would threaten the integrity of precinct-based voting. But §2 does not require a State to show that its chosen policy is absolutely necessary or that a less restrictive means would not adequately serve the State’s objectives. Considering the modest burdens allegedly imposed by Arizona’s out-of-precinct policy, the small size of its disparate impact, and the State’s justifications, the rule does not violate §2. Pp. 25–30.

  (2) Arizona’s HB 2023 also passes muster under §2. Arizonans can submit early ballots by going to a mailbox, a post office, an early ballot drop box, or an authorized election official’s office. These options entail the “usual burdens of voting,” and assistance from a statutorily authorized proxy is also available. The State also makes special provision for certain groups of voters who are unable to use the early voting system. See §16–549(C). And here, the plaintiffs were unable to show the extent to which HB 2023 disproportionately burdens minority voters.

 Even if the plaintiffs were able to demonstrate a disparate burden caused by HB 2023, the State’s “compelling interest in preserving the integrity of its election procedures” would suffice to avoid §2 liability. Purcell v. Gonzalez, 549 U. S. 1, 4. The Court of Appeals viewed the State’s justifications for HB 2023 as tenuous largely because there was no evidence of early ballot fraud in Arizona. But prevention of fraud is not the only legitimate interest served by restrictions on ballot collection. Third-party ballot collection can lead to pressure and intimidation. Further, a State may take action to prevent election fraud without waiting for it to occur within its own borders. Pp. 30–34.

 (d) HB 2023 was not enacted with a discriminatory purpose, as the District Court found. Appellate review of that conclusion is for clear error. Pullman-Standard v. Swint, 456 U. S. 273, 287–288. The District Court’s finding on the question of discriminatory intent had ample support in the record. The court considered the historical background and the highly politicized sequence of events leading to HB 2023’s enactment; it looked for any departures from the normal legislative process; it considered relevant legislative history; and it weighed the law’s impact on different racial groups. See Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S. 252, 266–268. The court found HB 2023 to be the product of sincere legislative debate over the wisdom of early mail-in voting and the potential for fraud. And it took care to distinguish between racial motives and partisan motives. The District Court’s interpretation of the evidence was plausible based on the record, so its permissible view is not clearly erroneous. See Anderson v. Bessemer City, 470 U. S. 564, 573–574. The Court of Appeals concluded that the District Court committed clear error by failing to apply a “cat’s paw” theory—which analyzes whether an actor was a “dupe” who was “used by another to accomplish his purposes.” That theory has its origin in employment discrimination cases and has no application to legislative bodies. Pp. 34–37.

948 F. 3d 989, reversed and remanded.

 Alito, J., delivered the opinion of the Court, in which Roberts, C. J., and Thomas, Gorsuch, Kavanaugh, and Barrett, JJ., joined. Gorsuch, J., filed a concurring opinion, in which Thomas, J., joined. Kagan, J., filed a dissenting opinion, in which Breyer and Sotomayor, JJ., joined.

Notes
1 Together with No. 19–1258, Arizona Republican Party et al. v. Democratic National Committee et al., also on certiorari to the same court.