The U.S. Supreme Court ruled provisions of Arizona law rejecting ballots cast in the wrong precinct and restricting who can collect mail ballots do not violate Section 2 of the federal Voting Rights Act (VRA). The 6-3 decision (PDF) affirms lower court rulings and overturns an en banc appellate ruling from the Ninth Circuit. It also appears to move the goalposts for demonstrating that a voting rule “results in a denial or abridgment” of any citizen’s right to vote regardless of their race.
“We now hold that the en banc court misunderstood and misapplied” Section 2 and “exceeded its authority in rejecting” the lower court’s decision, wrote Justice Samuel Alito for the majority.
It is the first ruling regarding the applicability of Section 2 to “generally applicable time, place or manner voting rules.” All the Court’s past rulings have been related to vote-dilution claims.
Today’s (Thursday’s) Brnovich ruling represents a statutory interpretation – not a constitutional one. Congress can change the statute, as it has before to clarity this section of law. The 1982 amendments mentioned several times in the decision in part overrode City of Mobile v. Bolden, in which the court ruled cities can continue to use at-large electoral systems that have discriminatory effects if they were not enacted with discriminatory purpose.
The potential impact of today’s Brnovich ruling depends on one’s perspective, but most observers agree that the decision narrowed the scope of voting laws or rules that could be invalidated under Section 2.
“In Texas, and across the country, we are seeing the most concerted efforts to undermine the vote since the civil rights era,” said Gilberto Hinojosa, state Democratic Party chair, in a statement. “These efforts in Republican-dominated state legislatures … continue to not only sow doubt in our elections but further manipulate our voting laws to produce results in their favor.”
In a tweet, Atty. Gen. Ken Paxton (R) hailed the decision. The court “rightly upheld Arizona’s right to control their own state elections.”
Challenged Provisions and Texas Versions
In Arizona, all registered voters may vote by mail – no excuse needed – or in person for 27 days prior to an election. Texas law permits in-person early voting for up to 12 days prior to an election and requires a statutory excuse for requesting a mail ballot. As in Texas, Arizona counties may conduct Election Day voting by using a precinct model or a vote-center model. The former requires a voter to cast ballots in the precinct in which they are registered, while the latter permits voters to cast ballots at any open vote center in the county.
In Texas, 76 of the state’s 254 counties have been approved to participate in the countywide polling place program, giving up to 79% of the state’s voters the option to vote in any polling place in their county on Election Day in addition to any polling place during early voting. The largest counties not currently participating in the program are Denton (551K registered voters), Montgomery (367K), Cameron (103K), Webb (136K) and Johnson (104K) Cos. An approved county is not required to implement or continue to use countywide polling.
Arizona law provides that a voter may cast a provisional ballot if they arrive at a precinct and their name and address are not on the roll there. If the voter’s address is determined to be in the precinct, then the vote is counted. If a voter casts a ballot at the wrong precinct, then that vote is not counted by state law. This provision is in effect only in counties using a precinct-based voting model, as is a similar provision in Texas law.
Arizona law authorizes postal workers, election officials, family members, household residents or caregivers to “knowingly collect” an absentee (mail) ballot. It is a crime for anyone else, aside from the voter, to “collect” an absentee ballot. Texas law (See Section 86.006, Election Code) has similar provisions.
The Democratic National Committee and others sued the state, claiming that these provisions “adversely and disparately affect Arizona’s American Indian, Hispanic and African-American citizens.” Additionally, plaintiffs claimed that the ballot collection law was enacted with “discriminatory intent.” Following a 10-day trial, the district court found the out-of-precinct and ballot-collection provisions had “no meaningfully disparate impact on the opportunities of minority voters.” The district court found that the ballot-collection law was passed by legislators “sincere in their belief that ballot collection increased the risk of early voting fraud,” though some individual legislators “were motivated in part by partisan interests.”
A three-judge panel of the Ninth Circuit Court of Appeals affirmed the district court’s decision, but the entire Ninth Circuit, sitting en banc, overturned it. The Supreme Court agreed with the district court and three-judge appellate panel.
Officially, the court declined to “announce a test to govern all [Section 2] claims involving rules” for voting like the Gingles test it uses for vote-dilution claims. However, the court essentially creates the framework of a test for vote-administration cases. This non-test includes five elements:
- Comparison to how “open” voting laws were when Section 2 was enacted in 1982
- Historical “pedigree” or widespread use of the provision
- Size of the disparity in how a provision impacts populations
- The overall opportunities afforded by the “entire system” of a state’s voting laws, and
- The strength of the state’s interests being served by the provision.
“Every voting rule imposes a burden of some sort,” Alito wrote. “Mere inconvenience cannot be enough to demonstrate a violation” of Section 2.
“The burdens associated with the rules in widespread use when [Section 2] was adopted are therefore useful in gauging whether the burdens imposed” deny equal opportunity or openness in voting. “The degree to which a challenged rule has a long pedigree or is in widespread use in the United States is a circumstance that must be taken into account.” As a practical matter, such an analysis necessarily compares a law in effect today to laws that were targeted by the 1982 amendments to the Voting Right Act.
Since Section 2 was enacted, nearly every state has passed laws making voting easier, more convenience and more “open” than it was in 1982. Even pulling back on some of those less restrictive laws leaves voting more “open” than before Section 2 was enacted.
The “size of any disparity matters,” Alito wrote. Very small differences should not be artificially magnified.” In this case, roughly 0.16% of ballots were invalidated under the wrong-precinct requirement, and Alito noted “percentages were slightly higher for members of minority groups.” However, plaintiffs did not demonstrate that minority groups showed up at the wrong polling place at “rates higher than their non-minority counterparts.” While 0.16% of votes seems a very small amount – roughly 4K in Arizona in 2016 – it nonetheless translates into roughly a quarter million votes nationwide in 2020. While the court declined to place a limit on the size of any resulting disparity necessary to reduce “openness” sufficiently to violate Section 2, it nonetheless established that a non-zero number is an acceptable aberration.
(It is doubtful that those celebrating today’s ruling would apply the same logic to the amount of actual voter fraud that occurs in elections, for which one could argue that “small differences” are being “artificially magnified” in the creation of new limitations and requirements on voting practices.)
Alito also argued “courts must consider the opportunities provided by a State’s entire system of voting when addressing the burden imposed by a challenged provision.” In other words, the relative “openness” of voting in general is a useful benchmark toward deciding whether a specific voting rule violates Section 2.
Finally, “it is important to consider the reason for a rule” when deciding whether it “goes too far.” In other words, ensuring the state’s policy interest may override the potentially disproportionate effects it may have on one group or another. In fact, “Section 2 does not require a State to show that its chosen policy is absolutely necessary or that a less restrictive means would not adequately serve the State’s objectives.” Alito wrote.
Framed in this manner, the court’s analysis of the challenged Arizona provisions is relatively straightforward:
- On the wrong-precinct provision: “Having to identify one’s own polling place and then travel there to vote does not exceed the ‘usual burdens of voting,’” Alito wrote. “On the contrary, these tasks are quintessential examples of the usual burdens of voting.”
- On the ballot-collection provision: “Limiting the classes of persons who may handle early ballots to those less likely to have ulterior motives deters potential fraud and improves voter confidence,” Alito wrote. The state’s reasoning for the limitation “would suffice” to avoid Section 2 liability “even if the plaintiffs had shown a disparate burden.”
In the case of both challenged provisions, the court determined that “modest evidence of racially disparate burdens” was insufficient “in light of the State’s justifications” to violate Section 2.
A Fiery Dissent
“Efforts to suppress the minority vote continue,” wrote Justice Elena Kagan in a 40-page dissent. “No one would know this from reading the majority opinion.”
The VRA was enacted “to meet ever-new forms of discrimination” and block those discriminatory effects on an individuals’ right to vote.
“Today, the Court undermines Section 2 and the right it provides,” Kagan wrote. “The majority fears that the statue Congress wrote … will invalidate too many state laws. So the majority writes its own set of rules, limiting Section 2 from multiple directions.” In doing so, “the majority gives a cramped reading to broad language.” In particular, the majority fails to acknowledge “a voting rule’s validity depends on how the rule operates in conjunction with facts on the ground.” Those facts, and not the intent of a legislature, should be the real test of Section 2.
She pointedly called out the majority’s use of how “open” voting laws were in 1982 as a guidepost. “An election rule prevalent at that time may make voting harder for minority than for white citizens. Section 2 then covers such a rule … Congress ‘intended’ exactly that.’” Section 2 was intended “to eradicate then-current discriminatory practices, not to set them in amber.”
She does say that history can still be a guidepost. “States have always found it natural to wrap discriminatory policies in election-integrity garb.” Section 2 was meant to “prevent those maneuvers from working.”
Implications for Texas
Following the failure of Senate Bill 7 by Sen. Kelly Hancock (R-North Richland Hills) in the House, Gov. Greg Abbott (R) promised he would place the issue on the call for a special session.
Today’s ruling likely emboldens Republican legislators crafting election-related bills for the special session that begins next week. Particularly salient is Alito’s assertion that a state would not be required to enact a “less restrictive means” of achieving its policy objectives, which will likely be the prevention of voter fraud. It is quite possible that opponents of Senate Bill 7 will find the provisions of the new bill even more objectionable as its authors adjust to the new goalposts erected by Brnovich.
The ruling also likely reduces the likelihood that any change in voting laws would be viewed as violating Section 2, absent Congressional action, even after a long and winding judicial process.
Dark Money Ruling
The Supreme Court also struck down California laws requiring charities and nonprofit organizations, including those with political arms, to disclose their top donors to the state attorney general’s office. The ruling (PDF) again reversed the Ninth Circuit.
“A government-mandated disclosure regime [must] be narrowly tailored to the government’s asserted interest,” wrote Chief Justice John Roberts for the 6-3 majority. “California’s blanket demand that all charities disclose Schedule B [donor]s to the attorney general is facially unconstitutional.” The disclosure requirement “creates an unnecessary risk of chilling” the First Amendment right of association.
The ruling is a blow to efforts to shine light on dark money groups that spend upwards of millions of dollars in election-related activities every cycle. Unlike Brnovich, this ruling is a constitutional one, so Congress and the states will have considerably narrower options to address the issue going forward.
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