on Jul 7, 2021
at 11:16 am
This article is the final entry in a symposium on the court’s decision in Brnovich v. Democratic National Committee.
Hans von Spakovsky is a senior legal fellow and manager of the Election Law Reform Initiative at The Heritage Foundation. He is former career counsel to the assistant attorney general for civil rights at the U.S. Department of Justice.
The Supreme Court’s 6-3 decision in Brnovich v. Democratic National Committee is not only the correct result under the applicable law – Section 2 of the Voting Rights Act – it is a common-sense decision that upholds traditional state voting rules that Section 2 was never meant to reach. The court upheld Arizona’s ban on vote trafficking (or what is euphemistically referred to as “vote harvesting”) and the state’s requirement that an individual vote within his assigned precinct for his ballot to count.
The importance of this case in the field of voting law – and in the midst of a fierce, contentious fight over election-reform laws implemented by the states – cannot be overemphasized. Ever since the seminal case of Thornburg v. Gingles in 1986, where the court laid out the test (the Gingles factors) for determining a violation of Section 2 after it was amended by Congress in 1982, all of the cases that have come before the court have involved redistricting and vote-dilution claims.
Brnovich was the first case, as Justice Samuel Alito writes in his majority opinion, which considers how to apply a Section 2 challenge to state laws governing the time, place, or manner of an election, to wit, “how ballots are collected and counted.” Such cases have “proliferated” in the lower federal courts, but none have reached the Supreme Court before this one.
Those unhappy with the Shelby County decision in 2013 and the ending of the Section 5 preclearance process have been trying to persuade courts to lower the Section 2 test to the much looser “disparate impact” standard of Section 5. In fact, Alito points out that is exactly what the dissent, authored by Justice Elena Kagan and joined by Justices Stephen Breyer and Sonia Sotomayor, would do – use a simple disparate-impact standard to determine a Section 2 violation. This is not something contemplated by the text of the statute or its legislative history. It would create a standard that would make it difficult for a state to ever make any changes to its election laws.
The majority opinion rejects this proposed conversion of Section 2, and although Alito says that the court is not “announc[ing] a test to govern all VRA §2 claims” that apply to the “time, place, or manner for casting ballots,” it is identifying “certain guideposts” that lead to the court’s decision. For practicing election lawyers, this is virtually the same thing as a test.
One of the biggest problems the challengers faced in this case was captured by the second line in Alito’s opinion: “Arizona law generally makes it very easy to vote.” It is difficult to make a discrimination claim stick when a state has such an open and extended process for voting as Arizona does. The state gives its residents the ability to vote “by mail or in person for nearly a month before election day.”
This fed into the court’s application of the text of Section 2(b) that the law is violated only if the election process is not “equally open to participation” by a minority group “in that its members have less opportunity” than other voters to participate (emphasis added by the court). Thus, the “touchstone” of Section 2 is the requirement that voting be “equally open,” and the DNC just couldn’t make the case that voting is not equally open to all of the residents of Arizona regardless of their race.
On the Gingles “totality of the circumstances” factors and the guidelines applied in this case, the court said that “several important circumstances should be mentioned.” First of all, the “size of the burden imposed by a challenged rule is highly relevant” (emphasis added). Every voting rule imposes some burden on a voter since “voting takes time” and “some travel, even if only to a nearby mailbox.” A voting system that is “equally open” and that provides everyone an “equal opportunity” to vote “must tolerate the ‘usual burdens of voting,’” and “mere inconvenience cannot be enough to demonstrate a violation of §2.” This factor alone should be enough to eviscerate many of the challenges to voting laws over issues like drop boxes and rules governing absentee ballots.
Second, the “degree to which a voting rule departs from what was standard practice when §2 was amended in 1982 is a highly relevant decision.” Again, this factor should make many of today’s challenges extremely difficult to maintain because almost all of the rules governing the election process were much stricter in 1982, when no state had early voting, drop boxes, online voter registration, and as the court says, states “allowed only narrow and tightly defined categories of voters to cast absentee ballots.”
Third, 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.” However, all voting rules will have some “predictable disparities in rates of voting,” no matter how neutral they are. The “mere fact [that] there is some disparity in impact does not necessarily mean a system is not equally open” and most importantly, “very small differences should not be artificially magnified.” Given the very minimal disparities that exist among different groups of voters on almost every regulation governing registration and voting, this also weighs heavily against challengers.
Fourth, courts “must consider the opportunities provided by a State’s entire system of voting when assessing the burden imposed by a challenged provision.” This means that “where a State provides multiple ways to vote, any burden imposed on voters who choose one of the available options cannot be evaluated without taking into account the other available means.” Since states these days provide numerous, different avenues for individuals to vote, from early voting to absentee balloting to actually casting a ballot the old-fashioned way – on Election Day – challenging one particular change in one of these methods will be difficult to sustain.
Finally, “the strength of the state interests served by a challenged voting rule is also an important factor that must be taken into account.” No doubt to the dismay of opponents of election reforms, the court held that a “strong and entirely legitimate state interest is the prevention of fraud” because it can change the outcome of a close election, dilute the votes of eligible citizens, and “undermine public confidence in the fairness of elections and the perceived legitimacy of the announced outcome.” What is most important about this is that states don’t have to show evidence of past fraud to justify legislative actions intended to prevent future fraud.
As practitioners in this area know, the Gingles case outlined other factors to take into account in a Section 2 vote dilution analysis. The court says that those other factors “are less helpful” in cases like Brnovich, and some are, in fact, “plainly inapplicable in a case involving a challenge to a facially neutral time, place, or manner voting rule.”
The majority is extremely critical of the disparate-impact analysis that the dissent says should be applied to these types of Section 2 cases. Alito says that the dissent “strains mightily to obscure its objective,” which is to “undo as much as possible the compromise that was reached between the House and Senate when §2 was amended in 1982.” That compromise added the language of Section 2(b) to specifically avoid this provision being interpreted and applied as merely requiring the showing of a disparate impact or effect in order to prove a violation.
The majority has it right when it comes to how Section 2 should be applied in these types of cases. It will remain an effective tool to stop actual racial discrimination in the voting context, but it will not be what critics of this decision would like – a partisan tool that can be used to stop public-policy decisions with which they disagree on how individuals register and vote in a particular state.