“[W]hat matters … is … simply that ‘any’ minority voter is being denied equal opportunities.” LOWV, 769 F.3d at 244 (quoting 52 U.S.C. § 10301(a)). b. County’s Arbitrary Allocation Method Disproportionately Burdens Minority Voters The County’s arbitrary and unsupportable allocation decisions in the 2016 PPE plainly violated Section 2 and, without the issuance of the requested injunction, there is a strong likelihood that similar mistakes will again be made in the General Election, denying minority voters of an equal opportunity to participate and to elect the representatives of their choice.

Chisom, 501 U.S. at 404. The standard for proving prohibited “discriminatory results” is set out in 52 U.S.C. § 10301(b), which provides: A violation of [Section 2] is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a [protected class] in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. A Section 2 claim in this context has two components.

, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population. 52 U.S.C. § 10301.

If—and only if—Plaintiffs establish the three Gingles requirements, Plaintiffs then must prove that based on the “totality of circumstances,” they 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); Bartlett v. Strickland, 556 U.S. 1, 11–12 (2009) (plurality op.) (totality-of-the-circumstances analysis should be conducted only after Gingles prerequisites have been established); Sensley, 385 F.3d at 595 (same). The “Senate Factors”—first identified in a Senate Judiciary Committee Report accompanying the Voting Rights Act—represent “typical factors” that a court might Case 2:16-cv-00303 Document 74 Filed in TXSD on 12/15/17 Page 2 of 10 3 consider in determining whether plaintiffs have “demonstrate[d] that, under the totality of the circumstances, [an electoral device] result[s] in unequal access to the electoral process.”

Collectively, these Defendants are referred to as “County Defendants.” I. SUMMARY OF ARGUMENT County Defendants move to dismiss Plaintiffs’ Second Amended Complaint because the added allegations do not save Plaintiffs’ case under Section 2 of the Voting Rights Act, 52 U.S.C. §10301 (“Section 2”). They still lack standing, both Case 1:16-cv-02852-AT Document 93-1 Filed 05/26/17 Page 1 of 22 2 as individuals and associations, to bring the claim that their votes as a multiple minority coalition have been diluted.

Likewise, Plaintiffs do not allege facts showing that the Defendants imposed any particular voting qualification or prerequisite, or any standard, practice, or procedure, that disproportionately burdened any particular race’s ability to participate in the political process, as would have been proscribed by the Voting Rights Act. 52 U.S.C. § 10301(a). To the contrary, Plaintiffs allege “a chaotic and error-filled election process” in which “all standards of quality control” were “abandoned.

By the plain terms of the statute: A violation of subsection (a) is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by" citizens of protected races "in that [they] 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). Under Section 2 as it exists today, showing intentional discrimination is unnecessary.

#: 33 Filed: 05/14/15 Page: 1 of 10 PageID #: 127 2 their claim, Plaintiffs must establish that, “based on the totality of circumstances,” minority voters “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). The Supreme Court in Thornburg v. Gingles identified a list of nine non-dispositive, non-exclusive factors that are relevant to the totality of the circumstances inquiry.

¶ ¶ 8-37. Plaintiffs allege that the actions of the Defendants in canceling the registrations of voters under the North Carolina voter challenge statutes, N.C.G.S. §§ 163-85 and 163-86, violate provisions of the National Voter Registration Act, the Voting Rights Act, 52 U.S.C. § 10301, the Equal Protection Clause, and 42 U.S.C. § 1983. Plaintiffs seek declaratory and injunctive relief to permanently enjoin the Defendants from following the Case 1:16-cv-01274-LCB-JLW Document 62 Filed 01/26/17 Page 2 of 20 3 State statutes that allow any registered voter to challenge the registration of any other voter for change of residency, to reinstate all registrations canceled through the State’s voter challenge statutes prior to the November 8, 2016, General Election, and attorney fees.

In essence, Plaintiffs are contesting the procedures by which elections are conducted in San Juan County, including the location of polls, language assistance and other matters involved in the administration of elections in San Juan County, Utah. Plaintiffs have named as defendants San Juan County, Utah; San Juan County Commissioners Bruce Adams; Rebecca Benally; and Phil Lyman, as well 52 U.S.C. §§ 10301 and 10503.1 2 Case 2:16-cv-00154-JNP Document 127 Filed 10/14/16 Page 2 of 11 as San Juan County Clerk-Auditor, John David Nielson.