The Supreme Court usually leaves some tough cases until right before their summer break. Brnovich v. DNC was handed down on the last day with a very strong dissenting opinion in July of 2021. The Supreme Court held that two Arizona voting regulations were not intentionally racist and did not violate a federal voting rights law. It explained why, providing a guide for future lawmakers.
Supreme Court Summary
It took a while, but the Supreme Court has entered the Internet Age.
When the Supreme Court hands down an opinion it is posted on their website. They also now provide text to the link of their opinions. If you wave your cursor over the name of the case on the opinions page, a basic summary of each opinion is provided. This summary is not meant to be an “official” statement for lawyers, but a basic summary to inform the public (you and me).
Brnovich is summarized this way:
“Arizona’s challenged voting regulations governing precinct-based election-day voting (rejecting ballots cast in the wrong precinct) and early mail-in voting (making it a crime for anyone other than an authorized proxy to possess the early ballot of another voter) do not violate §2 of the Voting Rights Act of 1965; Arizona House Bill 2023 (enacting the early mail-in voting regulations) was not enacted with a racially discriminatory purpose.”
supremecourt.gov
That’s a lot of information. Let’s see if we can break things down to make it more clear.
The Parties (Who’s Who)
The name of the case is Brnovich v. DNC.
Mark Brnovich is the Attorney General of Arizona.
Bronvich is listed first because he is the petitioner or one who asked the Supreme Court to decide the case.
The Democratic National Committee (DNC) represents the Democratic Party. The DNC originally sued the Attorney General of Arizona. Now, the DNC was defending itself as the respondent.
Democratic National Committee Sues
The DNC thought two Arizona voting rules would make it harder for voters — particularly voters that are likely to vote Democratic — to vote. The DNC argued that the rules were illegal or unconstitutional. The Attorney General therefore did not have the right (said the DNC) to enforce the rules.
The first judge who heard the case agreed with Arizona. But, the court of appeals — the court that oversees individual federal judges — agreed with the DNC. The court of appeals ruled that the rules were illegal. Arizona lost again.
The Supreme Court Takes the Case
The Supreme Court each year chooses a few lower court cases and lets the losing party have one more shot. A major reason the Supreme Court does this is that often lower courts disagree on what the law is. The Supreme Court helps clear things up.
The Supreme Court agreed to take Brnovich’s case.
The Voting Rules
Two voting rules were being challenged.
[1] Out of Precinct Policy
The first rule allowed each county in Arizona to require each voter to vote in a specific place. This place to vote or “polling place” is called a “precinct.”
The voter has to register to vote specifically for that precinct. If a person votes at another location, their ballot can be thrown away, not counted. This is so even if the voter did so by mistake and is still eligible to vote in the state.
Counties can also use a “voting center” approach. If that rule is used, voters can cast their ballots at any county voting location. This leads to less votes being rejected.
[2] Ballot Collection
The second rule is one the state requires each county to follow. The state made it a felony (punishable for up to two years and a $150,000 fine) to collect and deliver another person’s ballot (except family/household members, caregivers, mail carriers, and election officials).
Arizona allows people to vote by mail as part of its early voting system. For various reasons, direct mail service can be difficult in Arizona. Many use other people to deliver their votes instead. This is known as ballot collection (or by critics, ballot harvesting).
Various laws were in place against tampering or otherwise mishandling these ballots.
Arizona House Bill 2023 added a new rule: voters had to personally mail or deliver the ballot. Certain exceptions were made, but many categories (such as friends, neighbors, or members of political campaigns) of people were no longer able to do so.
If these people possessed someone’s ballot, it was now a felony.
Why Might That Be A Problem?
[1] Voting Rights Act
DNC argued that both voting regulations violated the Voting Rights Act (VRA) of 1965 and later amendments passed to strengthen its provisions.
The Voting Rights Act is a very important piece of legislation. The U.S. Congress passed it to address historical racial discrimination in voting.
The Fifteenth Amendment bans racial discrimination in voting as well as giving the power of Congress to enforce the ban. The VRA is in place to enforce the amendment.
The Voting Rights Act has various sections. Section Two (§2) is the one that the DNC argues is being violated here. The section says:
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.
Voting Rights Act (1965)
DNC argues that the two voting rules (a “voting qualification” and so on) have the “result” of making it harder (abridgement) to vote. Specifically for non-white groups.
The Voting Rights Act does not require this to be intentional. Arizona does not have to purposely aim to deny or make it harder to vote. The voting rules merely have to lead to that result. This is known as a “results test.”
The VRA requires the courts to use the “totality of the circumstances” to decide whether a law gives minority voters “less opportunity” to vote. This is a fancy way of saying that you have to look at the whole situation when seeing if a law makes voting harder on the basis of race.
DNC, for instance, pointed out that the regulation of vote by mail is particularly a problem in Arizona. It is harder for a person to vote by mail in Arizona. Also, it is specifically harder for certain racial groups, including Native Americans, to vote with the new regulation in place.
[2] Fifteenth Amendment
The DNC argued that the state-wide limit on ballot collection was intentionally passed to burden the right to vote for certain racial groups. This is called having a “discriminatory purpose.”
The Arizona legislature might have in some fashion been motivated by the fact these racial groups would likely vote for the “wrong” political party. That would not save them.
If Arizona chose to pass a voting regulation that discriminates on account of race, it violates the Fifteenth Amendment. It does not just violate a law passed to enforce the amendment.
The Supreme Court Rules on Brnovich
In July of 2021 the Supreme Court, in a 6-3 opinion written by Justice Alito, agreed with Arizona.
Both voting regulations did not violate the Voting Rights Act. And, the ballot collection rule did not intentionally discriminate by race. Justice Kagan wrote the dissent.
Explanation of the Majority Opinion in the Case
[1] Voting Rights Act
The majority opens with a statement that “Arizona law generally makes it very easy to vote.” This sentiment carries on throughout the opinion as it explains why the rules are okay.
The state provides “extensive efforts to reduce their impact on the number of valid votes ultimately cast” in respect to the out of precinct provision.
And, the same theme is repeated in respect to the ballot collection law. Many people can still collect ballots. It is a law quite “usual” as far as voting regulations go. Plus, the burden is not great in “absolute terms.”
Totality of Circumstances Rule
Anyway, just because a law somehow burdens racial minorities more than whites (known as “disparate impact”), the VRA is not violated. “Totality of circumstances” is the rule.
The majority provides various guideposts that would generally mean a voting regulation is acceptable. For instance, a “mere inconvenience” will not make it so hard to vote that the VRA is broken. The two rules here might make it somewhat harder to vote, but it still is pretty easy.
The Supreme Court made it easier to pass stricter voting regulations. For instance, it said that a new regulation that was similar to a voting law used regularly over the years is likely to be acceptable. Regulating voting by mail is not a new and suspicious thing.
Also, the majority voices concerns about state interests. A guidepost cited was the “strength of the state interests served,” including concerns about voter fraud. The rule is not “absolute necessity.” The Constitution itself provides states with a wide discretion in passing voting laws. This is part of our federalist government.
Note: The voter fraud citation is a red flag for critics of the decision. Voter fraud is an allegation raised largely by the Republican Party. Many experts argue it is not a big problem. If you make it harder to vote, it is a good idea to have a good reason to do so.
Also, the Supreme Court here was deciding the meaning of a federal law. Congress could, as it has in the past, pass a new law “correcting” the Supreme Court (part of our checks and balances).
This is not possible when the Court decides a constitutional question. For instance, if the Supreme Court held Congress violated the constitutional right of freedom of speech, Congress does not have the power simply to pass a new law “vetoing” the Supreme Court.
[2] Fifteenth Amendment
The majority decided that the district judge’s decision that the ballot collection law was not a result of intentional racial discrimination is reasonable. No reason to second guess it.
Maybe, politics factored in. That still would not be racial discrimination. Fear of fraud might be mistaken, but it still is not intentionally racist. Racism might have been involved somehow but “as a whole” the legislature was not motivated by racism.
The lower court’s argument that the “neutral” argument provided by Arizona was really a sort of “dupe” for racism was rejected as an insulting conspiracy theory.
The Dissenting Opinion
Justice Kagan wrote the dissent for the three justices usually labeled the “liberal wing” of the Supreme Court (Breyer, Sotomayor, and Kagan). Her dissent was very strong:
Today, the Court undermines Section 2 and the right it provides. The majority fears that the statute Congress wrote is too “radical”—that it will invalidate too many state voting laws. [Cites pages of majority opinion.] So the majority writes its own set of rules, limiting Section 2 from multiple directions.
Dissenting Opinion
The dissent argues this effort is a continuation of an earlier Voting Right Act case, Shelby v. Holder, which also split the conservative and liberal wings of the Court. Shelby blocked a provision that allowed the federal government to stop areas found to have discriminated in the past from passing new voting laws. Such as the limit of ballot collection here.
The dissent charges that the majority opinion “mostly inhabits a law-free zone” while the dissent defends the “real law” that Congress passed. THAT law “applies, in short, whenever the law makes it harder for citizens of one race than of others to cast a vote.”
Mere Inconvenience
The dissent underlines the breadth of the VRA, one that lacks what it challenges are basically made up “safe harbors” as cited by the majority opinion. A law that causes “mere inconvenience” is enough. It abridges the right to vote. The majority opinion, it says, is making stuff up.
The dissent also argues a discriminatory voting regulation is often not saved if it furthers a valid state interest such as stopping fraud. If there is another way to stop fraud, for instance, that does not discriminate by race, it must be used. Such ways were available here.
And, the dissent argues the two regulations clearly “disproportionately affect minority citizens’ opportunity to vote.” The out of precinct policy is a “national aberration,” votes thrown away eleven times as much as the next state involved. It is not just a ho hum average sort of law.
Unequal Mail Delivery
The ballot collection rule also is particularly problematic in Arizona given local conditions such as a large number of Native Americans without home mail delivery.
Justice Kagan ends as she begins — accusing the majority opinion of not respecting the actual terms of the VRA, which she deems particularly problematic given the importance of the law at stake. This “law, of all laws, should not be diminished by this Court.”
[The dissent argues that the two voting rules break federal law even without worrying about the possibility that either law was an intentional act of discrimination. So, the dissent does not address that claim, deciding it is not necessary to do so.]
Note: The strong tone of the dissent is particularly notable. The justices often disagree, but when a dissent is as strong and as sarcastic as this one, it suggests a particularly strong feeling that the majority is dead wrong and will have troubling long lasting effects.
To Be Continued
The Supreme Court only decides a few cases each year, each one providing “guideposts” for future disputes. Brnovich is a particularly important case, no matter if you agree or disagree with its holding. But, it is not the end of the line. Voting rights, including fights over how best to apply them, will continue for years to come. Including in front of the Supreme Court.
By Joe Cocurullo
