By Omeed Alerasool | March 7, 2021
Described as the Supreme Court’s “chance to diminish the Voting Rights Act,” Brnovich v. Democratic National Committee was argued in front of the high court’s Justices on Tuesday, March 2, 2021.
WHAT IS THIS CASE ABOUT?
Brnovich involves two electoral policies in Arizona, enacted by Republicans ostensibly to promote election security. Voting rights advocates argue that these laws have the effect of denying minority voters the opportunity to vote.
The first is a ban on third-party ballot collection (referred to as “ballot harvesting” by its critics), which effectively prohibits third-party collection and delivery of voters’ absentee ballots with limited exceptions. Opponents of this law point to its especially detrimental effect on Native American voters, many of whom do not have access to reliable mail services in rural Arizona.
The second policy at issue invalidates ballots cast in the wrong precinct, even if those ballots include votes for statewide races in which all Arizonans choose among the same candidates regardless of precinct location. Challengers of this policy contend that, combined with Arizona’s tendency to frequently change precinct locations, it disproportionately impacts Latino and other minority voters in Arizona.
In 2016, the Democratic National Committee (DNC) and the Arizona Democratic Party challenged these two policies under Section 2 of the Voting Rights Act (VRA), which prohibits any “standard, practice, or procedure . . . 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.”
At trial, in 2018, the District Court for the District of Arizona ruled against the DNC and in favor of the defendants. On an en banc (full court) appeal in the Ninth Circuit, however, the DNC prevailed in January 2020.
WHY DOES THIS CASE MATTER?
The VRA was passed by Congress in 1965 during the Civil Rights Movement, and subsequently renewed in 1970, 1975, 1982, 1992, and 2006. Until 2013’s Supreme Court decision in Shelby County v. Holder, the VRA’s most powerful tool was Section 5. Under Section 5, policies such as those at issue here would need to be “precleared” by the U.S. Department of Justice or the D.C. federal district court. Section 5 applied to states with a history of discrimination, and, in fact, Arizona’s ballot collection ban failed to obtain preclearance when it was first proposed by the state legislature in 2011. In 2013, the Supreme Court delivered its Shelby County decision, which invalidated the formula that determined which jurisdictions were subject to Section 5 preclearance requirements, effectively striking down the most effective tool against racially discriminatory election practices.
Until this point, Section 2 had primarily been used in the redistricting context to combat “vote dilution” using a standard of application developed by the Supreme Court’s Thornburg v. Gingles decision in 1986. After the loss of Section 5, however, voting rights advocates have explored Section 2’s application to vote denial, in order to potentially fill (at least part of) the void left by Shelby County. While vote dilution has had standards for courts to apply when reviewing such claims, the Supreme Court has yet to provide standards for identifying and applying Section 2 in the vote denial context. Enter: Brnovich.
Both sides in Brnovich propose their own versions of a vote denial test—that is, standards by which courts should assess whether an election policy denies the right to vote on the basis of race in violation of Section 2. The respondents essentially propose versions of the test used by the Ninth Circuit, which struck down the two policies after finding that they created a racially disparate impact on voters in light of the “totality of the circumstances” in Arizona. The petitioners propose stricter tests which require challengers to meet a higher bar before a court could invalidate a policy, including proving a substantial racial disparity and evaluating the impact in light of alternative voting options available to affected voters. Among the many third parties (amici) submitting their ideas to the Supreme Court, Harvard Law School’s Nicholas Stephanopoulos proposed a test that would apply similar standards as those used in other anti-discrimination contexts, such as Title VII. (Justice Breyer appeared to prefer Prof. Stephanopoulos’ proposal at oral argument.)
Potential standards aside, the current Supreme Court’s 6-3 conservative tilt has also raised concerns that the entirety of Section 2 could be neutralized under an argument that application of the law in the manner used here is not permitted under the Fifteenth Amendment of the U.S. Constitution, which served as the justification for Congress’ enactment of the VRA.
WHAT HAPPENED AT ORAL ARGUMENT?
Four advocates argued the case to the nine Justices over the phone for two hours. Notably, no questions were raised about the constitutionality of Section 2, as the argument mostly focused on potential standards of application, as well as on Arizona’s state interests in administering and protecting its elections and the standing of the parties to raise these issues to the Supreme Court.
First, Michael Carvin argued for the private petitioners (the Arizona Republican Party). In response to several hypotheticals posed by Justice Kagan, Carvin appeared to contradict his side’s written briefs at times, conceding that there are circumstances in which “time, manner, and place” election regulations could produce impermissibly disparate impacts across racial lines. (Justice Kavanaugh later called him out on the apparent contradiction.) Most notably, in response to a question from Justice Barrett regarding the Arizona Republican Party’s standing to raise the case to the Supreme Court, Carvin effectively argued that allowing more people to vote by invalidating the policies at issue would hurt Republican chances of winning elections. (“[I]t puts us at a competitive disadvantage relative to Democrats. Politics is a zero sum game.”) Carvin was followed by Mark Brnovich, the Attorney General of Arizona and the named petitioner, who argued for the petitioners’ stricter version of a vote denial test and in favor of his state’s ability to regulate elections and “monitor for fraud.” He argued that the impact of the policies at issue here were not substantial enough to demonstrate legal discrimination.
Counsel for respondents included Jessica Amunson, representing Arizona’s Democratic Secretary of State, Katie Hobbs, and Bruce Spiva, representing the DNC. Both Amunson and Spiva fielded questions about voter fraud, election security, and on the scope of allegedly sweeping scope of their proposed standards. Amunson argued that the standards proposed by the petitioners were too inflexible to fulfill the mandate of Section 2. She dismissed petitioners’ contention that a more flexible test would result in all sorts of election regulations facing judicial scrutiny. Notably, in response to questions from Chief Justice Roberts on “ballot harvesting,” Amunson rejected the characterization of respondents’ test as pursuing “racial proportionality” and cited Roberts’ own words in the campaign finance context in arguing that courts should be particularly skeptical of reviewing policies which purportedly respond to yet unproven risks of fraud. Spiva echoed Amunson in asserting that the ballot collection ban could not have been motivated by anti-fraud concerns. He defended the DNC’s decision to challenge the out-of-precinct policy rather than the frequent changing of precinct locations, describing it as the “but-for cause” of the disenfranchisement of minority voters. Spiva closed with a reference to Shelby County, where Roberts wrote of Section 2 as a remaining nationwide ban on voting discrimination, and which was followed by more voting restrictions being enacted across the country than at any time since the end of Jim Crow.
For a complete transcript and audio recording of the oral argument, see here.
WHAT ARE THE POSSIBLE OUTCOMES?
While it seems unlikely that the entirety of Section 2 will be stripped of its power, it remains likely that the vote denial test ultimately adopted by the Supreme Court will be one that is quite strict. Even if a more favorable test (from the respondents’ perspective) is adopted, Arizona’s two policies are likely to be saved by the Court. In other words, even if the Court adopts standards for vote denial that future plaintiffs could find workable, it will probably also conclude that the DNC claim here against Arizona’s two policies fails to meet those new standards.
Looking at the nine members of the Court, the three liberal-leaning Justices (Breyer, Sotomayor, and Kagan) will probably support the respondents’ position. Meanwhile, Justices Thomas, Alito, and Gorsuch seem likely to take the strongest stance against the DNC’s position. The Justices to watch will be Chief Justice Roberts and the newest members, Justices Kavanaugh and Barrett. Roberts wrote the Shelby County decision, but that decision also referenced Section 2 as a remaining tool for voting rights advocates, and he may hesitate to make too dramatic a move. Kavanaugh and Barrett may be open to a somewhat more favorable result for the respondents, though where they ultimately land on the matter remains to be seen.
Given the number of proposed legal standards and issues at play, perhaps the Supreme Court will surprise everyone and decide the issue on standing grounds, punting the issue of Section 2 vote denial for another day (in the spirit of 2018’s Gill v. Whitford decision involving partisan gerrymandering, which was followed by 2019’s Rucho v. Common Cause).
And, notably, there are immediate political implications that add to what is already a complicated situation. For one, a decision resulting in a severely strict vote denial test, or a gutting of Section 2 in general, could serve as the final straw that breaks the filibuster in the U.S. Senate. With Democrats already pushing for major pro-democracy reforms, an adverse decision might be enough to give proposals such as H.R. 1 enough impetus to pass the Senate.
Ultimately, the Supreme Court’s decision, and its impact on voting rights and democracy, will be clear later this year.
Omeed Alerasool is Chief of Staff of the Equal Democracy Project and a 2L at Harvard Law School. He also serves as Editor-in-Chief of the Harvard Human Rights Journal. Omeed’s commentary on government, democracy, and foreign policy has appeared in HuffPost, Diplomatic Courier, and other outlets. Follow on Twitter: @OmeedAlerasool