On July 1, 2021, the U.S. Supreme Court, in a 6-3 opinion, upheld several Arizona voting laws despite claims of racial discrimination in Brnovich v. Democratic National Committee. The Supreme Court reversed an en banc opinion in the Ninth Circuit, agreed with the initial Ninth Circuit panel and the district court opinions, and declined to overturn a law passed by the state legislature.
A key issue was how to interpret Section 2 of the Voting Rights Act, which prohibits state and local voting laws that “result” in a denial or abridgment of voting rights on the basis of race or color. To demonstrate a violation of Section 2, challengers must show, considering a totality of circumstances, that the political process is not equally open to participation by members of a particular race because it offers less opportunity for members of that race to elect representatives of their choice. However, by its text, Section 2 does not establish a right to elect representatives in equal proportion to a racial group’s representation in the population.
The dispute centered on Arizona’s time, place, and manner laws related to elections, specifically laws that address voting precincts (place) and how mail ballots may be handled (manner). For Arizona counties that use the precinct voting system, the voter rolls are organized by precinct, and voters register and vote in the precinct they reside in. If a person votes by mail, the only people who may handle another person’s ballot are election officials, family members, caregivers, household members, and postal workers.
The Democratic National Committee challenged Arizona’s rules requiring that in-person votes only count if the voter is on the voter rolls of the precinct or shows proof of residency. The DNC also challenged the “ballot harvesting” ban of House Bill 2023, which Arizona passed in 2016, making it a felony for third parties to collect blank or filled-out ballots unless they are in one of the categories exempted in the state law. This provision would ban certain partisan get-out-the-vote drives. The DNC alleged that these laws violated Section 2 of the Voting Rights Act and the 15th Amendment to the U.S. Constitution because they had a disproportionately negative impact on African Americans, Native Americans, and Hispanics.
The Supreme Court upheld the ballot collection law under the 15th Amendment and Section 2. The majority, in an opinion by Justice Alito, reasoned that the voting law was not intentionally discriminatory in violation of the U.S. Constitution and did not dilute the votes of racial minorities in violation of Section 2. The majority recognized the state’s compelling interests in (1) preventing voter intimidation by third party ballot collectors, citing concerns from minority officials and organizations concerned about intimidation of elderly Latino voters; and (2) preventing vote buying, citing undue influence by ballot collectors seeking to buy votes. The Court also noted that the Arizona law added four different types of groups who could deliver mail ballots, when originally only voters themselves could deliver their ballots. By contrast, the dissent, in an opinion by Justice Kagan, questioned whether the stated interests of Arizona were sincere, stating that “States could too easily get away with offering non-racial but pretextual rationalization[s]” (internal quotation marks omitted).
The Supreme Court also agreed with the district court and the Ninth Circuit panel that the in-precinct voting law should be upheld. The majority held that there was no discrimination under Section 2 because the disparate impact on minorities was statistically insignificant (only 0.15% of all ballots cast in 2016 were out of precinct), the precinct policy was not shown to cause discriminatory effect, and Arizona’s policy was to train poll workers to direct voters to the correct precincts and to count ballots when the voter showed proof of precinct residency.
The dissent disagreed with these reasons and would have accepted small disparities as sufficient evidence of discriminatory effect. Justice Kagan would have required the state to show that an alternative law would not be more likely to advance the government’s interests, suggesting for example that Arizona should have added an exception to the law to allow third-party ballot collection by Native American clan members. Justice Alito rejected the dissent’s approach, which would heighten the burden on state governments to justify reforms, set a lower bar for factual evidence in challenges to state laws, and open the door to more litigation over the validity of new legislation.
The Supreme Court’s decision on the application of Section 2 of the Voting Rights will impact the hundreds of state voting bills under consideration in state legislatures across the country. Challengers are required to present a strong factual record at the trial level to overturn state laws by alleging intentional or disparate impact discrimination. The Court limited judges’ ability to use Section 2 to say what state election laws should be rather than what the law is.