Brnovich v. Democratic National Committee
594 U. S. ____ (2021) (2021)
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Rule of Law:
Section 2 of the Voting Rights Act of 1965 prohibits voting regulations that create an unequal opportunity to vote on account of race or color, requiring courts to consider the 'totality of circumstances' including the burden imposed, the rule's historical use and current prevalence, the availability of other voting methods, the absolute size and meaningfulness of any racial disparities, and the strength of the state's interest, without imposing a strict 'least restrictive means' requirement; additionally, discriminatory intent for legislative action must be proven by direct evidence, and the 'cat's paw' theory does not apply to legislative bodies.
Facts:
- Arizona law generally allows all voters to cast early ballots by mail for 27 days before an election or vote in person at an early voting location in each county.
- Arizonans who vote in person on election day in counties using the precinct system must vote in their assigned precinct; if they vote in the wrong one, their entire ballot is not counted.
- Arizona House Bill 2023 (HB 2023) made it a crime for any person other than a postal worker, election official, or a voter’s caregiver, family member, or household member to knowingly collect an early ballot.
- The Democratic National Committee and certain affiliates filed suit, alleging that Arizona’s out-of-precinct policy and ballot-collection restriction had an adverse and disparate effect on American Indian, Hispanic, and African-American citizens.
- The plaintiffs also alleged that the ballot-collection restriction was enacted with discriminatory intent.
Procedural Posture:
- The Democratic National Committee and certain affiliates (plaintiffs) filed suit against the Arizona attorney general and secretary of state (defendants) in federal district court (District of Arizona).
- The plaintiffs alleged that Arizona’s out-of-precinct policy and ballot-collection restriction violated Section 2 of the VRA due to disparate impact, and that the ballot-collection restriction also violated Section 2 and the Fifteenth Amendment due to discriminatory intent.
- After a 10-day bench trial, the District Court rejected all of the plaintiffs’ claims, finding no 'meaningfully disparate impact' or 'meaningful inequality' and no discriminatory intent.
- A divided panel of the Ninth Circuit Court of Appeals (appellate court) affirmed the District Court's judgment.
- The en banc Ninth Circuit Court of Appeals (a larger panel of the appellate court) reversed, concluding that both policies imposed a disparate burden on minority voters and that the District Court had committed clear error in finding no discriminatory intent for the ballot-collection law, applying a 'cat’s paw' theory of legislative intent.
- The Arizona Attorney General Mark Brnovich and the Arizona Republican Party (petitioners) filed petitions for a writ of certiorari to the Supreme Court of the United States.
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Issue:
Does a state's generally applicable time, place, or manner voting rule violate Section 2 of the Voting Rights Act of 1965 if it imposes a racially disparate burden on minority voters' opportunity to participate in the political process when considering the totality of circumstances, including the rule's burdens, commonality, available voting options, and the strength of state interests; and was Arizona's ballot-collection restriction enacted with a racially discriminatory purpose?
Opinions:
Majority - Justice Alito
No, Arizona’s out-of-precinct policy and HB 2023 do not violate §2 of the VRA, and HB 2023 was not enacted with a racially discriminatory purpose. The Court held that §2(b) focuses on whether 'political processes' are 'equally open to participation' and afford 'equal opportunity' to minority groups, considering the 'totality of circumstances.' This standard does not require states to prove their policies are the 'least restrictive means' to achieve their objectives. For the out-of-precinct policy, the Court found the burdens of identifying and traveling to one's precinct to be 'usual burdens of voting,' mitigated by state efforts and alternative voting options. The racial disparity in discarded ballots was deemed small in absolute terms (e.g., 1% for minorities vs. 0.5% for non-minorities), and the state's interests in precinct-based voting (e.g., distributing voters, ensuring correct ballots, reducing wait times) were strong and legitimate. For HB 2023, the Court found alternative ballot submission methods (mail, drop boxes) were 'usual burdens.' Plaintiffs failed to show the extent of any disparate burden. The state's 'compelling interest in preserving the integrity of its election procedures,' including preventing fraud and intimidation associated with third-party ballot collection, was a strong justification, and the state was not required to wait for fraud to occur. Finally, the Court reversed the Ninth Circuit's finding of discriminatory intent for HB 2023, holding that the District Court's factual finding of no discriminatory intent was plausible and not clearly erroneous. The 'cat’s paw' theory, which the Ninth Circuit applied, is inapplicable to legislative bodies, as legislators are not agents of bill sponsors.
Concurring - Justice Gorsuch
The Court assumes, without deciding, that the Voting Rights Act of 1965 furnishes an implied cause of action under §2. This issue was not raised by the parties and does not concern a court's subject-matter jurisdiction, thus the Court did not need to address it.
Dissenting - Justice Kagan
Yes, Arizona’s out-of-precinct policy and HB 2023 violate §2 of the VRA because they result in minority citizens having less opportunity to vote, and HB 2023 was enacted with a discriminatory purpose. Justice Kagan argued that Section 2's broad text prohibits any voting rule that 'results in' an 'abridgement' of voting rights 'on account of race or color,' meaning unequal 'opportunity,' especially when interacting with existing social and economic conditions. States should be required to show that a challenged policy is 'necessary' to achieve a legitimate goal, or that no less discriminatory means would suffice. The majority's 'extra-textual restrictions' undermine the Act. For the out-of-precinct policy, Arizona is a national outlier in discarding out-of-precinct ballots, and this policy creates a statistically significant disparity where minority voters are twice as likely to have ballots discarded. This disparate impact is exacerbated by Arizona’s frequent polling place changes and the disproportionate siting of polling places affecting minority communities. Other states employ less discriminatory alternatives like partial counting. For HB 2023, the ban creates unequal voting opportunities for rural Native Americans due to severe lack of home mail delivery, long travel distances to post offices, and limited access to transportation. Third-party collection was 'standard practice' in these communities, and the state offered no evidence of fraud while existing laws already address it. A less discriminatory alternative, such as an exception for Native kinship ties, could have achieved the state's purported interest. The District Court's discriminatory intent finding was clear error, as the 'cat's paw' theory, even if applied, would indicate discriminatory motive.
Analysis:
This decision significantly redefines the application of Section 2 of the Voting Rights Act to generally applicable voting rules, particularly those governing the time, place, and manner of voting. By emphasizing a high bar for demonstrating discriminatory 'results' and affording substantial deference to state interests without requiring a 'least restrictive means' analysis, the Court makes it more difficult for plaintiffs to challenge voting laws that have a racially disparate impact. The guideposts established will likely be central to future litigation, requiring plaintiffs to demonstrate not merely statistical disparities, but 'large' and 'meaningful' ones, while states can more easily justify their policies. The rejection of the 'cat’s paw' theory for legislative bodies also limits avenues for proving discriminatory intent in the enactment of voting laws.
