Caseflicks

Supreme Court of the United States • 2021

Brnovich v. Democratic National Committee

594 U.S. 647 | 210 L. Ed. 2d 753 | 141 S. Ct. 2321

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Takeaway

In short, Brnovich adopted restrictive guideposts for §2 challenges to neutral voting rules, emphasizing burden size, disparity magnitude, alternative voting opportunities, historical practice, and state interests—and upheld Arizona’s precinct and ballot-collection rules.

Background

Arizona offered several ways to vote: in person on Election Day, in person during a 27-day early-voting period, or by early ballot mailed in before the election. The case concerned two restrictions. First, in counties using precinct-based Election Day voting, Arizona did not count ballots cast outside a voter’s assigned precinct. Second, House Bill 2023 generally prohibited anyone other than a postal worker, election official, caregiver, family member, or household member from collecting another voter’s early ballot.

The Democratic National Committee and affiliated plaintiffs challenged both rules under §2 of the Voting Rights Act (VRA), alleging that each disproportionately burdened American Indian, Hispanic, and African-American voters. They also alleged that HB 2023 was enacted with discriminatory intent, violating §2 and the Fifteenth Amendment. After a 10-day bench trial, the District Court rejected all claims. It found no meaningful inequality in voting opportunities, concluded that the plaintiffs had not established a meaningful disparate burden from HB 2023, and found no discriminatory legislative purpose.

A Ninth Circuit panel affirmed, but the en banc Ninth Circuit reversed. The en banc court held that both policies disproportionately burdened minority voters in interaction with Arizona’s social and historical conditions. It also held that the District Court clearly erred in finding no discriminatory purpose behind HB 2023. The Supreme Court reversed and remanded.

Issues

Issue #1

Whether Arizona Attorney General Brnovich had Article III standing to appeal the ruling invalidating the out-of-precinct policy.

Holding

Yes. The Attorney General could pursue the appeal as an authorized representative of the State of Arizona.

Reasoning

Only one appellant needed standing for the Court to review the out-of-precinct issue. Arizona itself had intervened in the case, and the State plainly had an interest in defending its election rules.

Arizona law authorized the Attorney General to represent the State in federal litigation. That authority gave Attorney General Brnovich standing to press the State’s appeal, regardless of disputes about whether other petitioners also had standing.

Issue #2

What framework governs §2 Voting Rights Act challenges to facially neutral rules regulating the time, place, or manner of voting.

Holding

Section 2 requires a totality-of-the-circumstances inquiry into whether a State’s political processes are equally open to protected voters; the Court declined to announce a comprehensive test but identified relevant guideposts.

Reasoning

The Court treated equal openness as the touchstone of §2(b). The statute asks whether members of a protected racial or ethnic group have less opportunity than other voters to participate in the political process and elect representatives of their choice. Equal opportunity helps explain equal openness rather than creating a wholly separate requirement.

The size of the burden imposed by the challenged rule is highly relevant. Because voting necessarily entails effort, travel, and compliance with procedures, §2 tolerates the usual burdens of voting; mere inconvenience ordinarily does not establish a violation.

Courts may consider how far a challenged rule departs from voting practices prevalent when Congress amended §2 in 1982, as well as whether the rule has a long pedigree or is widely used today. Those comparisons help distinguish ordinary election regulations from burdens serious enough to make voting unequally open.

The magnitude of any racial disparity matters. A disparate impact alone does not establish a §2 violation, particularly where the difference is small in absolute terms or is presented in a statistically misleading way. Courts should not artificially magnify small differences by focusing only on relative rates.

Courts must assess the State’s voting system as a whole. When a State offers multiple accessible methods of voting, the burden associated with one option must be evaluated alongside the alternatives available to voters.

The State’s interests also matter. Preventing fraud, avoiding intimidation and undue influence, promoting orderly election administration, and preserving public confidence are legitimate and important interests. Section 2 does not impose a least-restrictive-means requirement or require a State to prove that its policy is indispensable.

The Court cautioned that the Gingles or Senate factors were developed principally for vote-dilution cases. In time, place, and manner cases, historical discrimination and its continuing effects may be relevant, but factors concerning districting, candidate slating, racially polarized voting, and minority electoral success have less direct relevance. The Court also rejected importing the disparate-impact frameworks used in employment and housing statutes.

Issue #3

Whether Arizona’s refusal to count Election Day ballots cast in the wrong precinct violated §2 of the Voting Rights Act.

Holding

No. The out-of-precinct policy did not make Arizona’s voting process unequally open to minority voters.

Reasoning

Locating one’s assigned polling place and traveling there are ordinary, usual burdens of voting. Arizona also took substantial steps to reduce those burdens: it provided polling-place information through mailed notices, sample ballots, voter pamphlets, websites, county offices, and, in some counties, poll-worker directions to the correct precinct.

Arizona’s entire voting system offered multiple other convenient options. Any voter could cast an early ballot by mail without an excuse, join a permanent early-voting list, vote in person during the early-voting period, or deposit an early ballot at any polling place. These alternatives reduced the practical significance of the Election Day precinct requirement.

The racial disparity was small in absolute terms. In the relevant counties during the 2016 election, about 1% of Hispanic, African-American, and Native American Election Day voters cast out-of-precinct ballots, compared with about 0.5% of nonminority voters. A system that worked for roughly 98% or more of all voters subject to it was unlikely to be unequally open.

Arizona had substantial interests in precinct-based voting. The system can distribute voters among polling places, reduce wait times, place sites nearer voters’ homes, ensure voters receive the correct local ballot, and promote orderly administration. Precinct voting and the practice of not counting out-of-precinct ballots also had long historical pedigrees and were widespread.

The Ninth Circuit erred by effectively requiring Arizona to prove that no less restrictive alternative, such as partially counting ballots, could serve its interests. Section 2 does not demand that a State use the least burdensome available election rule.

Issue #4

Whether Arizona’s restriction on third-party collection of early ballots, HB 2023, violated §2 of the Voting Rights Act.

Holding

No. The plaintiffs did not establish that HB 2023 produced a sufficiently demonstrated disparate burden, and Arizona’s election-integrity interests supported the law.

Reasoning

Voters could return early ballots through mailboxes, post offices, drop boxes, election offices, or polling places, and could use authorized family members, household members, or caregivers. Arizona also provided special assistance for certain disabled or ill voters. The Court regarded these options as leaving only the usual burdens of voting.

The plaintiffs did not provide quantitative evidence showing how many minority and nonminority voters relied on the third-party collectors prohibited by HB 2023. Their evidence supported only the general proposition that minority voters may have been more likely to use such collectors; it did not establish the size or practical significance of any disparity.

Even assuming some disparate burden, Arizona had a strong interest in protecting election integrity. Restricting who may handle ballots can deter fraud, reduce opportunities for pressure or intimidation, and increase voter confidence in election results.

Arizona was not required to wait until ballot-collection fraud had occurred within the State. The legislature could act prophylactically in light of recognized vulnerabilities of absentee and mail voting, including examples of serious ballot-related misconduct elsewhere.

Issue #5

Whether HB 2023 was enacted with a racially discriminatory purpose in violation of §2 of the Voting Rights Act and the Fifteenth Amendment.

Holding

No. The District Court’s finding of no discriminatory purpose was plausible on the record and therefore was not clearly erroneous.

Reasoning

Discriminatory-purpose findings are factual findings reviewed only for clear error. An appellate court may not reverse simply because it would have weighed the evidence differently; where two permissible views of the record exist, the trial court’s choice controls.

The District Court applied the Arlington Heights framework. It considered the historical background, sequence of events, legislative procedures, legislative history, and disparate impact of HB 2023. The record supported its conclusion that the law followed genuine debate about mail-ballot security and the risks associated with third-party ballot collection.

The District Court found that some supporters may have acted from partisan motives, including a desire to counter an opposing party’s ballot-collection strategy. But partisan motivation is not identical to racial motivation, even where voting patterns are racially polarized. The trial court permissibly distinguished the two.

The Ninth Circuit improperly relied on a 'cat’s paw' theory, under which an employer may be liable for the discriminatory animus of a subordinate who influences an employment decision. That agency-based doctrine does not fit a legislature, whose members are independent officials expected to exercise their own judgment rather than agents of a bill’s sponsor or proponents.

Concurrences

Justice Gorsuch

Reasoning

Justice Gorsuch joined the Court’s opinion in full but emphasized an unresolved threshold issue. The Court’s prior cases had assumed, without deciding, that §2 of the Voting Rights Act creates an implied private cause of action.

Because no party contested the plaintiffs’ ability to sue under §2, and because the existence of a cause of action is not a limit on subject-matter jurisdiction, Justice Gorsuch concluded that the Court had no need to decide that question. He flagged it for future litigation rather than resolving it.

Dissents

Justice Kagan

Reasoning

Justice Kagan argued that the Voting Rights Act was enacted to prevent both overt and facially neutral voting rules from denying minority citizens an equal opportunity to vote. In her view, the historical record shows that jurisdictions repeatedly devise new mechanisms for racial vote suppression, making a robust §2 especially important after Shelby County v. Holder disabled the VRA’s preclearance system.

She read §2’s broad text to cover every kind of voting rule that results in racial inequality of voting opportunity. Section 2, she explained, does not require proof of discriminatory purpose: it reaches facially neutral rules that, in light of local social, economic, and historical conditions, make it harder for members of one racial group than for others to cast ballots.

Justice Kagan agreed that §2 calls for a totality-of-the-circumstances inquiry, but she argued that the majority turned that flexible inquiry into a set of extra-textual limits favoring States. In particular, she rejected the majority’s 'mere inconvenience' concept, its reliance on voting practices prevalent in 1982 or common today, and its suggestion that other voting options can excuse racial inequality in a particular voting method.

In her view, a State’s asserted interests should receive meaningful scrutiny. A discriminatory election rule should fail when a less discriminatory alternative would serve the State’s goals without significant impairment. Otherwise, States can too easily invoke generalized interests in fraud prevention or election integrity to justify practices that unnecessarily burden minority voters.

Justice Kagan concluded that Arizona’s out-of-precinct policy violated §2 because Arizona discarded substantially more such ballots than any other State and minority voters were statistically significantly more likely than white voters to have their ballots rejected. She stressed that Arizona’s frequent polling-place changes and disparate siting practices helped create that result, and that Arizona could have partially counted votes for races common to every precinct ballot.

She also concluded that HB 2023 unequally burdened rural Native American voters. Many lacked home mail delivery, lived far from post offices, and had limited access to automobiles; in those communities, third-party ballot collection by neighbors or clan members had become an important means of returning ballots. Because Arizona had shown no actual ballot-collection fraud and could have adopted narrower protections, she viewed the near-total collection ban as an unjustified racial disparity in voting opportunity.