Supreme Court Decides Brnovich v. Democratic National Committee

On July 1, 2021, the U.S. Supreme Court decided Brnovich v. Democratic National Committee, holding that “neither Arizona’s out-of-precinct nor its ballot-collection law violates § 2” of the Voting Rights Act, and that the ballot-collection law was not “enacted with a racially discriminatory purpose.”

Section 2 of the Voting Rights Act (“VRA” or “The Act”) bans States from imposing “voting qualifications or prerequisite to voting or standard, practice, or procedure. . . which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color[.]” The Act is violated when, “based on the totality of circumstances, it is shown that the political process” is not “equally open to participation by members of a class of citizens.”

The Democratic National Committee brought suit challenging the lawfulness of precinct-based election-day voting and early mail-in voting regulations in Arizona. “Among other things, the plaintiffs claimed that both the State’s refusal to count ballots cast in the wrong precinct and its ballot-collection restriction ‘adversely and disparately affect Arizona’s American Indian, Hispanic, and African American citizens,’ in violation of § 2 of the VRA.” Further, plaintiffs alleged that “the ballot-collection restriction was ‘enacted with discriminatory intent’ and thus violated both § 2 of the VRA and the Fifteenth Amendment.” The district court disagreed and dismissed. A divided panel of the Ninth Circuit affirmed, but an en banc court reversed. The en banc court concluded that both regulations “imposed disparate burdens on minority voters because such voters are more likely to be adversely affected” and that these “desperate burdens were ‘in part caused by or linked to social and historical conditions’ that produce inequality.”

The Supreme Court reversed, declining to establish a test, but holding that after considering “‘the totality of the circumstances,’” as required by the Act, “neither Arizona’s out-of-precinct rule nor its ballot-collection law violates § 2 of the VRA.” Such circumstances included, but were not limited to: (1) “the size of the burden imposed by a challenged voting rule,” (2) “the degree to which a voting rule departs from what was standard practice when § 2 was amended in 1982,” (3) “the size of any disparities in a rule’s impact on members of different racial or ethnic groups,” (4) “the opportunities provided by a State’s entire system of voting,” and (5) “the strength of the state interests served by a challenged voting rule.”

Applying the “principles set out above,” the Court concluded that: (1) “having to identify one’s own polling place and then travel there to vote does not exceed the ‘usual burdens of voting;’” (2) the State “made extensive efforts to reduce the requirements’ impact on the number of votes ultimately cast;” (3) Arizona’s “‘political process’ as a whole” provides “other easy ways to vote” including by requesting an early ballot, ballot drop off, and early voting,” and (4) the “racial disparity in burdens allegedly caused by the out-of-precinct policy is small in absolute terms.” Further, the Court concluded that “even if the plaintiffs had shown a desperate burden caused by” the ballot collection law, Arizona’s “justifications would suffice to avoid § 2 liability.” The state’s interest in preventing voter fraud as well as the interest in preventing voter intimidation was adequate to support any additional burden placed on voters.

Finally, the Court concluded that the ballot collection law was not enacted with a discriminatory purpose. Noting that even if the “spark for the debate over mail-in voting” was “one Senator’s enflamed partisanship” and a “‘racially-tinged’ video,” that “partisan motives are not the same as racial motives,” and the District Court “found no evidence that the legislature as a whole was imbued with racial motives.”

Justice Alito delivered the opinion of the Court, in which Chief Justice Roberts and Justices Thomas, Gorsuch, Kavanaugh, and Barrett joined. Justice Gorsuch filed a concurring opinion, in which Justice Thomas joined. Justice Kagan filed a dissenting opinion, in which Justices Breyer and Sotomayor joined.