Matt Coles on Brnovich v. Democratic National Committee

Photo of Matt ColesIn the last 13 years, the Supreme Court has dismantled most of the litigation tools lawyers have used to keep elections honest.  Today, by a vote of 6-3, the Court did serious damage to one of the last remaining tools, Section 2 of the Voting Rights Act.  In an opinion by Justice Alito, the Court goes out of its way not to give any rules for applying Section 2.  Instead, the Court announces five “relevant” factors Courts should take into consideration in Section 2 cases (Brnovich v. Democratic National Committee). As a practical matter, the decision will make a case under the Voting Rights Act very difficult for plaintiffs to win.

Section 2 of the Voting Rights Act (VRA) bans any voting rule which “results” in a denial of or limitation on the right to vote because of race.  The VRA was enacted in 1965 to enforce the 15th Amendment’s ban on race discrimination in voting.  In 1982 Congress amended Section 2 to set the legal standard as whether a voting practice has the effect of creating less opportunity (“results” in denial or abridgement).  That amendment was expressly designed to overrule the Court’s decision in City of Mobile v. Bolden, which required stricter proof of an intent to discriminate.

In today’s case, the Democratic party challenged two Arizona voting laws.  The first has to do with “out of precinct” voting.  Arizona divides the state into relatively small geographical “precincts,” as do many states.  In nationwide or statewide elections, there is little or no difference between the candidates on the ballot in different precincts.  The candidates for President, Senator, Governor and statewide officers are the same in every precinct.  Differences typically occur with candidates for City Councils or party offices.  In many states, if you vote in the wrong precinct, the state counts all your votes except for those most local races where the candidates differ by precinct.  Arizona, on the other hand, simply throws out your ballot completely, even though almost all of your votes were for candidates in races where you are legally entitled to vote.  If you get your ballot by mail, Arizona also makes it illegal for anyone other than you or a family member or caregiver to collect and deliver your ballot.

The Democratic party charged that the out of precinct law discriminated against Native Americans, Latinos and African Americans.  People in these groups, the party showed, are more likely to vote in person.  By frequently changing voting locations, and putting them at odd locations, the party went on, the state made out-of-precinct votes more likely.  Worse, since people in these groups are often poorer, they move more often, which also increases the likelihood of out-of-precinct votes.  The upshot was that Native American, Latino and African American voters were twice as likely to have their ballots thrown out for out-of-precinct voting than white voters.

Similarly, the party charged, organized efforts to collect mail ballots are used more often by those same three groups.  The problem is particularly severe in Navajo country, the plaintiffs said, where many people do not have residential mail pick up and must travel many miles to reach either a post office or a county clerk.  Thus, for example, in Arizona’s rural counties only 18% of Native Americans have home mail delivery.  In those same counties, 86% of whites do.

Section 2 says that it is violated if the “totality of the circumstances” shows that the political process is not “equally open” to all racial groups.  “Equally open,” the text says, means if any group has less opportunity than others to participate.  The text of Section 2 bans all practices which have a discriminatory impact (“No voting…practice or procedure shall be imposed….”).

The majority today wrote that it was not going to explain how courts should apply Section 2 to laws which make it harder for some racial groups to vote.  Instead, it announced five factors which it says courts must consider in deciding if Section 2 was violated.  They are:

  1. Is the burden on voting greater than the usual burdens of voting?
  2. Is the law like laws on the books in 1982 (which suggests it is valid)?
  3. Is the number of people disadvantaged large or small?
  4. Do the election laws provide other ways of voting that don’t discriminate? and
  5. How strong is the state’s interest in the policy?

On that critical fifth factor, the Court says the state doesn’t need to prove that its law is the best way to achieve its goal, or even that the law in fact helps to achieve the goal.  What the Court wants to know is whether the law “reasonably” advances important interests.  As the Court applies this factor, it is pretty clear this means that even if you show that a law disadvantages people on the basis of race, it doesn’t violate the VRA if the state can “reason” that the law helps advance an important purpose.

Although the Court insists that its five factors “stem from the statutory text,” in fact they mostly defy it.  The text says that any law that results in a reduced opportunity to vote based on race is illegal; not just laws that impose “greater than usual burdens,” not just laws that hurt a large number of people, and not just laws the state can’t reasonably explain.  Even processes that exist alongside easier to use processes.  The point of the VRA was to eliminate racial disparities in all voting systems.

The second factor, “likely valid if it existed in 1982,” is surreal.  Congress strengthened the VRA in 1982 so that it would reach more laws, not to freeze the status quo.  It was designed to bring change.  Moreover, a year after a presidential election in which two states were decided by less than 12,000 votes, it seems perverse to insist that the absolute number of people prevented from voting must be large.

Unsurprisingly, the majority of this Court rules that Arizona’s laws are valid.  The out-of-precinct rule, it says, is an ordinary burden, and many states had similar rules in 1982.  Although the state had no evidence that any interest would actually be harmed by counting out of precinct ballots, the Court’s speculation that it could slow down the process is enough.  Driving to put a ballot in the mail—even a couple of hours—is (the Court says) also an ordinary burden.  And the collection rules might prevent fraud, even though there is zero evidence of fraud voting by mail in Arizona.

Today’s decision follows a pattern.  In 2008, in the course of upholding voter I.D. requirements, the Court significantly reduced constitutional protection for the right to vote by requiring little in the way of proof from states that limit it.  In 2019 the Court ruled the Constitution puts no enforceable limits on partisan gerrymandering.  In 2013, the Court struck down the part of the VRA that required states with the most serious history of denying the vote based on race to get approval of voting changes from the Department of Justice or a federal court.  In 2018 the Court made it very difficult to win an intentional discrimination case under Section 2 by creating (also without text) a heavy presumption of good faith for whatever a state does.

Today’s decision could have been worse.  Justice Gorsuch, in a short concurrence joined by Justice Thomas, suggests the Voting Rights Act may not allow lawsuits by private parties at all.  There are hints in several other decisions that the Court thinks Congress may lack the power to pass nondiscrimination laws that prohibit discriminatory impact.  At least for today, Section 2 survives.  Since the decision is entirely the Court’s interpretation of the VRA, Congress can undo much of it.

After today though, the Court’s five factors will make it very difficult to use the impact standard under the VRA to challenge modern vote suppression.  New state laws designed to make voting more difficult typically limit voting by mail, reduce early voting, eliminate same-day registration, and toughen I.D. requirements.  In 1982 many states only had in-person voting on election day.  The Court has already told us that I.D. requirements are an “ordinary burden” of voting.

As Justice Kagan says in a dissent for herself, Justice Breyer and Justice Sotomayor, a law making it illegal to give water to voters standing in line may be a trivial inconvenience when lines are short; not so when you have to stand in line for hours.  The Court’s easy assumptions about what burdens are trivial is all too much the perspective of those who don’t ever wait hours to vote.