The Supreme Court today ruled that the Voting Rights Act (“VRA”), passed originally in 1965 to address a serious civil rights emergency, does not prohibit states from employing ordinary measures to protect the integrity of the election process.
In Brnovich v Democratic National Committee, the Court ruled (6-3) that the state of Arizona’s law allowing only voters, their family members, or their caregivers to collect and deliver a completed ballot does not deny or abridge the right of minorities to vote. The Court also upheld Arizona’s long-time policy of disqualifying ballots accidentally cast in the wrong precincts.
As a matter of both administrative convenience and fraud prevention, Arizona has long required voters to cast their ballots in the precinct in which they live. In 2016, Arizona passed a law prohibiting the collection and delivery of absentee ballots by third parties, such as campaign staff, political activists, or special interest groups. This practice is commonly referred to as “vote harvesting” or “ballot harvesting.”
Supporters of the ban on vote harvesting say it protects the secret ballot and prevents groups invested in the outcome of the election from tampering with the ballots.
Opponents of both the measures claim that they disfranchise minority voters.
Not All Inconveniences Are Discriminatory Burdens
When discussing voting rights, it’s important to remember that the Voting Rights Act was passed to prevent racist election officials from using seemingly neutral policies (such as literacy tests) to deny ballots to black citizens. Policies that make voting slightly more inconvenient are not the same as policies wielded deliberately to stop someone from voting.
In his opinion for the Court, Justice Samuel Alito explained that mere inconvenience cannot be the touchstone for a voting rights violation:
[E]very voting rule imposes a burden of some sort. Voting takes time and, for almost everyone, some travel, even if only to a nearby mailbox. Casting a vote, whether by following the directions for using a voting machine or completing a paper ballot, requires compliance with certain rules. But because voting necessarily requires some effort and compliance with some rules, . . .[m]ere inconvenience cannot be enough to demonstrate a violation of [the Act].
In a footnote, Alito went on to elaborate on the difference between “openness and opportunity,” which are required by the VRA, and “absence of inconvenience,” which is not. For example,
suppose that an exhibit at a museum in a particular city is open to everyone free of charge every day of the week for several months. Some residents of the city who have the opportunity to view the exhibit may find it inconvenient to do so for many reasons—the problem of finding parking, dislike of public transportation, anticipation that the exhibit will be crowded, a plethora of weekend chores and obligations, etc. Or, to take another example, a college course may be open to all students and all may have the opportunity to enroll, but some students may find it inconvenient to take the class for a variety of reasons. For example, classes may occur too early in the morning or on Friday afternoon; too much reading may be assigned; the professor may have a reputation as a hard grader; etc.
Statistics Alone Can’t Prove Discrimination
In Brnovich, the Court made clear that, even where election policies impact racial communities differently, statistical disparities alone are insufficient to prove voting discrimination. To the contrary, the law requires that findings of discrimination be based on the “totality of circumstances.”
While evidence of disparate impact may contribute to a finding that certain practices are discriminatory, raw statistical disparities do not render illegal policies that seek to prevent voter fraud before it occurs.
“[I]t should go without saying,” Justice Alito wrote,
that a State may take action to prevent election fraud without waiting for it to occur and be detected within its own borders. Section 2’s command that the political processes remain equally open surely does not demand that a State’s political system sustain some level of damage before the legislature can take corrective action.
Justice Alito also explained that, when it comes to racial disparities, size matters.
In assessing the size of any disparity, a meaningful comparison is essential. What are at bottom very small differences should not be artificially magnified.
While a large statistical disparity can, when considered as part of the totality of the circumstances, suggest the presence of discrimination, a tiny statistical disparity is less likely to indicate that a system is not open equally to all.
In this case, the racial disparity allegedly caused by precinct requirement was small in absolute terms: Roughly 99% of Hispanic voters, 99% of African-American voters, and 99% of Native American voters who voted in the correct precinct, compared to roughly 99.5% of non-minority voters. As Justice Alito explained,
A policy that appears to work for 98% or more of voters to whom it applies—minority and non-minority alike is unlikely to render a system unequally open.
With respect to the prohibition on ballot harvesting, plaintiffs presented no statistical evidence that the policy disproportionately burdens minorities. Instead, they offered only testimony that harvesting is used frequently in economically disadvantaged communities and that these communities tend to be heavily minority. This, the Court ruled, fails to demonstrate a disproportionately negative impact.
The Court in Brnovich refused to rewrite the Voting Rights Act to prohibit all election regulations that result in any racially disparate impact, no matter how small, clearing the way for states to enact common-sense, non-discriminatory election integrity measures.