Arizona Voting Laws Win as the Supreme Court Clarifies the Voting Rights Act
The decision is a positive step for the rule of law and a setback for lawsuits that hamstring states from running efficient elections.
The decision is a positive step for the rule of law and a setback for lawsuits that hamstring states from running efficient elections.
T he U.S. Supreme Court this morning, in Brnovich v. Democratic National Committee, upheld two voting laws in Arizona that are widely used in many states: (1) an “out-of-precinct rule” that bans counting provisional ballots if they are cast in person in the wrong precinct, and (2) a ban on “ballot harvesting” that permits only certain persons — i.e., family and household members, caregivers, mail carriers, and elections officials — to handle another person’s completed mail-in ballot. The Court’s decision, in an opinion by Justice Samuel Alito, divided 6–3 along ideological lines. This is a big one.
The two Arizona laws were challenged under Section 2 of the Voting Rights Act, 52 U.S.C. § 10301, and under the 15th Amendment’s ban on intentional race discrimination in voting. Section 2 is the primary tool used to challenge voting laws across the country. Brnovich is a landmark decision because it is the first time a majority of the Court has set some basic “guideposts” for what Section 2 prohibits, and what it allows, in how ballots are collected and counted. The result should make it harder for Democrats to bring knee-jerk lawsuits over every change in voting laws without showing that they present a genuinely discriminatory obstacle to the overall opportunity to vote. For that reason, we should expect to hear lots of alarmist shrieking about the Court “gutting” the Voting Rights Act.
But in reality, while Alito’s opinion declined to adopt a rigid test, its list of five main guideposts for Section 2 cases should make it easier for federal courts to distinguish real, substantial burdens on voting rights from the ordinary inconveniences that come from any system that has rules. The most controversial of those factors will likely be the Court’s emphasis on upholding election laws that were already long-standing and widespread when Section 2 was passed in its current form in 1982, rather than requiring that ever marginal expansion enacted in recent years be immunized from every being repealed. The Court also made clear that a Section 2 case cannot be based on attacks on the purpose or intent of the legislators without showing that there was, in fact, a discriminatory effect on the opportunity to vote.
Justice Neil Gorsuch, joined by Justice Clarence Thomas, wrote separately to note that the Court left open the question whether a Section 2 lawsuit can be brought by any private party, or needs to be enforced only by the Justice Department.
Finally, turning to discriminatory purpose under the 15th Amendment, the Court rejected the Ninth Circuit’s view that an entire legislature can be charged with intentional discrimination just because a debate over a voting-law change started with an aggrieved individual legislator who had spun wild conspiracy theories. That, too, will limit adventuresome lower courts and litigants who want to change the subject from what a law does to what the fringiest members of a legislature may have said somewhere in the process. In practice, it may insulate new Republican-enacted voting laws from challenges that highlight the nuttier “Stop the Steal” conspiracy theories following the 2020 election, so long as the legislatures took a thoughtful approach to working out a final bill, rather than just running blindly with whatever was proposed by the most extreme legislators.
Back to Basics
The Court’s previous Section 2 decisions have typically involved questions about racial gerrymandering and related district-drawing issues. The language of Section 2, enacted in 1965 and revised in 1982, currently reads:
(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or [language] . . .
(b) A violation of subsection (a) is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens 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 . . . (Emphasis added).
The reference to “results” was added in 1982, in response to a 1980 decision (Mobile v. Bolden) in which a four-justice plurality allowed Section 2 claims to go forward based upon a state legislature’s discriminatory purpose, even where the rules adopted were race-neutral, applying equally to all groups. The statute now says nothing about purpose or intent; it focuses in objective terms on whether a voting law — as written, or as enforced in practice — has a discriminatory impact. It allows courts to take a broad look at “the totality of circumstances” to make that determination. But in defining what actually amounts to a discriminatory result, Congress spoke in terms of “denial or abridgement” of voting rights, of voting being “open to participation,” and of “opportunity . . . to participate” — in other words, things that actually reduced the ability of voters to vote, not just things that were marginally less convenient or popular with different groups of voters.
Notwithstanding the 1982 amendment, lower courts have continued to interpret Section 2 in a number of misguided ways: They focused on the purpose or intent of laws rather than their effects; they applied tests drawn from redistricting cases that were poorly adapted to voting rules; and they focused on the language of the 14th and 15th Amendments rather than the language of the statute. Some of the fault for this lies at the feet of the Court’s 1986 decision in Thornburg v. Gingles, in which Justice William Brennan’s opinion interpreted Section 2 in a redistricting case mainly by looking at a committee report from the legislative history, rather than by looking at the statutory language.
Alito was having nothing of Brennan-style judicial creativity, and went back to basics — the language Congress actually passed into law in 1982: “Because this is our first §2 time, place, or manner case, a fresh look at the statutory text is appropriate. Today, our statutory interpretation cases almost always start with a careful consideration of the text, and there is no reason to do otherwise here.” That language, Alito wrote, focuses on the opportunity to vote:
The key requirement is that the political processes leading to nomination and election (here, the process of voting) must be “equally open” to minority and non-minority groups alike, and the most relevant definition of the term “open,” as used in §2(b), is “without restrictions as to who may participate,” or “requiring no special status, identification, or permit for entry or participation,” . . . . Equal openness and equal opportunity are not separate requirements. Instead, equal opportunity helps to explain the meaning of equal openness. And the term “opportunity” means, among other things, “a combination of circumstances, time, and place suitable or favorable for a particular activity or action.” . . . Putting these terms together, it appears that the core of §2(b) is the requirement that voting be “equally open.” The statute’s reference to equal “opportunity” may stretch that concept to some degree to include consideration of a person’s ability to use the means that are equally open. But equal openness remains the touchstone. (Emphasis added).
Alito stressed, however, that “that an ‘abridgement’ of the right to vote under §2 does not require outright denial of the right; that §2 does not demand proof of discriminatory purpose; and that a ‘facially neutral’ law or practice may violate that provision.” Notably, the dissent agreed that Section 2 commands “looking to effects, not purposes.” After Brnovich, it will be hard for anybody to bring a Section 2 case mainly on the basis of stray statements from legislators instead of a rigorous analysis of the opportunity of voters to vote. That alone may be fatal to the Justice Department’s lawsuit filed last week against Georgia, which relies heavily on a discriminatory-purpose theory.
Five Factors
Given that the “totality of the circumstances” test for measuring openness is, literally, written to allow consideration of every circumstance, the Court declined to impose a detailed test. It did, however, lay out five key factors that courts should consider:
- “The size of the burden imposed by a challenged voting rule is highly relevant. . . . Mere inconvenience cannot be enough to demonstrate a violation of §2.” This is a serious blow to the theory, current among Democrats and progressives, that any inconvenience that “makes it harder to vote” in even the most trifling way is “voter suppression” and a Voting Rights Act violation.
- “The degree to which a voting rule departs from what was standard practice when §2 was amended in 1982 is a relevant consideration… in 1982 States typically required nearly all voters to cast their ballots in person on election day and allowed only narrow and tightly defined categories of voters to cast absentee ballots. . . . As of January 1980, only three States permitted no-excuse absentee voting. . . . We doubt that Congress intended to uproot facially neutral time, place, and manner regulations that have a long pedigree or are in widespread use in the United States.” This factor particularly undermines efforts by Democrats to generate Section 2 violations out of states rolling back temporary emergency measures adopted for the first time in 2020 to deal with pandemic voting conditions. It is also bad news for efforts to bring Section 2 cases over adjustments to fairly recent innovations such as early in-person voting. It does, however, leave room for challenges to genuinely new voting and election rules, which are likely to face more scrutiny of their justifications.
- “The size of any disparities in a rule’s impact on members of different racial or ethnic groups is also an important factor to consider. Small disparities are less likely than large ones to indicate that a system is not equally open.” The Court cautioned against theories that rely entirely on differences “with respect to employment, wealth, and education,” given that “even neutral regulations, no matter how crafted, may well result in some predictable disparities in rates of voting and noncompliance with voting rules.” It also warned against using comparative measures designed to magnify small differences into large ones, calling instead for “meaningful comparison.”
- “Courts must consider the opportunities provided by a State’s entire system of voting” rather than just look narrowly at a single provision. Thus, for example, a rule that makes it harder to vote by mail may matter less if the state makes it easy to vote in person, or vice versa. A reduction in early-voting days may matter less if the state still has a long early-voting period.
- “The strength of the state interests served by a challenged voting rule is also an important factor that must be taken into account. . . . One strong and entirely legitimate state interest is the prevention of fraud. Fraud can affect the outcome of a close election, and fraudulent votes dilute the right of citizens to cast ballots that carry appropriate weight. Fraud can also undermine public confidence in the fairness of elections and the perceived legitimacy of the announced outcome.” The Court explicitly rejected the dissent’s view that an anti-fraud rule violates Section 2 unless the state “could demonstrate an inability to combat voting fraud in any other way, such as by hiring more investigators and prosecutors, prioritizing voting fraud investigations, and heightening criminal penalties.” It also noted that “it should go without saying that a State may take action to prevent election fraud without waiting for it to occur and be detected within its own borders.”
The Court’s analysis relegated to a much less important place some of the factors that have been used in redistricting cases, such as patterns of racially polarized partisan voting. It also rejected importing a “disparate impact” analysis championed by Justice Elena Kagan’s dissent that shifts the burden to the state any time there is any racial variance in patterns of voting:
We think it inappropriate to read §2 to impose a strict “necessity requirement” that would force States to demonstrate that their legitimate interests can be accomplished only by means of the voting regulations in question. . . . Demanding such a tight fit would have the effect of invalidating a great many neutral voting regulations with long pedigrees that are reasonable means of pursuing legitimate interests. It would also transfer much of the authority to regulate election procedures from the States to the federal courts.
As Alito noted, Kagan’s dissent would launch the Court into a “radical project” drawn from the language of a completely different statute, and would try to impose the version of Section 2 that was proposed by House Democrats in 1982, rather than the one that actually passed the Republican-controlled Senate and was signed into law by Ronald Reagan. Kagan argued that “election officials can all too often . . . offer a non-racial rationalization for even laws that purposely discriminate” — a point with which the Court did not quarrel. But while Kagan claims that “a necessity test” is needed to “filter[] out those offerings,” that is not the law Congress passed. As Alito put it, “the version enacted into law includes §2(b), and that subsection directs us to consider ‘the totality of circumstances,’ not, as the dissent would have it, the totality of just one circumstance.”
Upholding Arizona
Alito made quick work of the challenge to the out-of-precinct policy, noting that “Arizona law generally makes it very easy to vote,” the burdens of traveling to the right voting place are modest, and the number of voters casting ballots in the wrong precinct was very low in every racial group, making the comparison of racial disparity in those rates a largely meaningless measure. Alito quoted Seventh Circuit Judge Frank Easterbrook:
A distorted picture can be created by dividing one percentage by another. . . . If 99.9% of whites had photo IDs, and 99.7% of blacks did, it could be said that ‘blacks are three times as likely as whites to lack qualifying ID’ (0.3 ÷ 0.1 = 3), but such a statement would mask the fact that the populations were effectively identical. . . . That is exactly what the en banc Ninth Circuit did here. (Quotation and citation omitted).
Alito also noted “precinct-based voting has a long pedigree in the United States,” and that a precinct system serves important interests:
It helps to distribute voters more evenly among polling places and thus reduces wait times. It can put polling places closer to voter residences than would a more centralized voting-center model. In addition, precinct-based voting helps to ensure that each voter receives a ballot that lists only the candidates and public questions on which he or she can vote, and this orderly administration tends to decrease voter confusion and increase voter confidence in elections.
Turning to the ballot-harvesting rule, Alito noted the importance of the secret ballot:
Ensuring that every vote is cast freely, without intimidation or undue influence, is also a valid and important state interest. This interest helped to spur the adoption of what soon became standard practice in this country and in other democratic nations the world round: the use of private voting booths. . . . The [2005] Carter-Baker Commission noted that “[a]bsentee balloting is vulnerable to abuse in several ways: . . . Citizens who vote at home, at nursing homes, at the workplace, or in church are more susceptible to pressure, overt and subtle, or to intimidation.”
Notably, there was not even any evidence in the case that banning ballot harvesting had any actual disparate impact on minority-group voters, only that it had been used by those groups. The Court also rejected the view that special consideration could be given to the possibility that the Postal Service might fail to “comply with its statutory obligations” to deliver the mail.
Cat’s Paw
Maybe as important as the Court’s reading of Section 2 is its treatment of discriminatory intent under the 15th Amendment. The ballot-harvesting ban originally got on the radar of Arizona’s legislature after “increased use of ballot collection as a Democratic get-out-the-vote strategy” and a single Arizona state senator, Don Shooter, who made “unfounded and often far-fetched allegations of ballot collection fraud.” But for the Roberts Court, as it has done in the census and travel ban cases, what mattered was that the legislature then did its homework: “What came after the airing of Shooter’s claims and a ‘racially-tinged’ video created by a private party was a serious legislative debate on the wisdom of early mail-in voting. . . . That debate, the District Court concluded, was sincere and led to the passage of [the ballot-harvesting rule] in 2016.”
The Ninth Circuit’s view was that the entire process was irretrievably tainted by the origin of the debate. It invoked the “cat’s paw” theory from employment-discrimination cases, where an employment decision made without a racially discriminatory motive can sometimes be found to violate civil-rights laws if the decisionmaker was manipulated by someone with a racial animus. The Court rejected the use of that theory to damn an entire legislature:
The “cat’s paw” theory has no application to legislative bodies. The theory rests on the agency relationship that exists between an employer and a supervisor, but the legislators who vote to adopt a bill are not the agents of the bill’s sponsor or proponents. Under our form of government, legislators have a duty to exercise their judgment and to represent their constituents. It is insulting to suggest that they are mere dupes or tools.
Brnovich will not bring an end to lawsuits over election and voting laws, nor should it. But it ought to greatly reduce the Democrats’ reflexive recourse to the courts every time the law imposes any rules at all. In that sense, it is a positive step for the rule of law and a setback for efforts to use the legal system to hamstring states from running efficient elections free of fraud, intimidation, or undue delays in counting the votes.