A contested 2020 presidential election and polarized American politics laced with racial tension coalesced in the Supreme Court case of Brnovich v. DNC, in which the Court upheld an Arizona election law by a 6-3 vote.
As the plaintiff, the Democratic National Committee (DNC) claimed two state election rules violated the discrimination provision of Section 2 of the federal Voting Rights Act (VRA): 1) out-of-precinct voting prohibition and 2) third-party restrictions on delivery of mail-in ballots.
Arizona law says a person cannot vote in a precinct in which he or she does not currently reside. Why is this a problem? According to expert evidence in the case from Dr. Jonathan Rodden, Professor of Political Science and Senior Fellow at Stanford University: “Voters must invest significant effort in order to negotiate a dizzying array of precinct and polling place schemes that change from one month to the next.
“Further, Arizona’s population is highly mobile and residential locations are fluid, especially for minorities, young people, and poor voters, which further contributes to confusion around voting locations.”
Simply said, it is easy to inadvertently vote in the wrong place, resulting in ballots going into the waste basket.
Arizona’s third-party restriction does not permit any person who is not an actual mail deliverer, a direct relative of the voter, or a live-in caretaker to deliver someone else’s ballot. It is a felony for any other third person to deliver a ballot. This restriction creates a difficult barrier for persons such as isolated Native Americans (a measurable electorate in Arizona) and others who do not have ready access to any of the above specific third parties.
After the Ninth Circuit Court of Appeals ruled that Arizona’s laws violated the VRA as discriminatory against minorities, the U.S. Supreme Court took Brnovich as a case of first impression. (In a case of first impression, the exact issue before the court has not been addressed by that court or within that court’s jurisdiction; thus, there is no binding authority on that matter.)
A case of first impression is significant because it means the Court will be interpreting the law on the issue for the very first time. In Brnovich, the Court’s application of Section 2 of the VRA to the challenge of Arizona’s election rules would create precedent carrying weight for similar laws in other states.
On July 1, the Supreme Court ruled that Arizona’s election rules do not violate the VRA. This much-awaited decision indicates, more than anything else thus far, that the Court intends to steer clear of states fiddling with the election process.
The VRA Prohibits Discriminatory Voting Procedures
The starting point for Brnovich is a reminder that the right to vote is a fundamental constitutional cornerstone of this country’s entire structure. When the nation’s founders wrote the Constitution, only free and white male citizens who owned land could vote. Hard-won subsequent constitutional amendments changed that to ensure that women and nonwhite citizens also have the right to vote.
One of these laws is the Fifteenth Amendment, ratified in 1870. It provides that no state shall deny or abridge the right to vote on account of race or color, and that Congress shall have the power to enforce this over the states by legislation.
But the process toward universal suffrage has not been so simple, as many states notoriously orchestrated local voting procedures in various ways in the post-Civil War era expressly to avoid the Fifteenth Amendment’s mandate giving former slaves the right to vote.
In 1965, Congress enacted the VRA to remedy discriminatory practices denying voting rights to minorities. Section 2 of the VRA, the legal centerpiece of Brnovich, is part of a 1982 amendment which prohibits any voting practice or procedure that discriminates against a minority, as shown by the “totality of the circumstance of the local electoral process.”
In other words, every person must be afforded equal opportunity to exercise the right to vote. This amendment was meant to ensure that right, but the Supreme Court has chosen to narrowly construe its application.
The Court Views a Little Bias Acceptable for the Greater Good
In an earlier election case, Crawford v Marion County Election Board, the Supreme Court discounted doubtful intent as motivating a challenged law, saying: “[Nondiscriminatory] justifications should not be disregarded simply because partisan interests may have provided one motivation for the votes of individual legislators.”
In other words, a measure of racial or other discriminatory bias is acceptable when considering the greater good.
Brnovich follows this premise. In ruling against Arizona, the Ninth Circuit Court found disparate results against minorities in Arizona’s out-of-precinct rule because uncontested records showed “Arizona changes polling places with extraordinary frequency, and often locates them in inconvenient and misleading places. This produces a high rate of [out of precinct] voting, particularly in urban areas and particularly for voters with high rates of residential mobility.”
However, the Supreme Court found the resulting loss of minority votes from this practice, in the “totality of the circumstances,” to be negligible in the overall voting population, and a detriment justified by Arizona’s legitimate interest in avoiding voter fraud.
The other concern of the Ninth Circuit Court was that Arizona’s limiting delivery of mail-in ballots resulted from legislators being unwitting “cats’ paw” agents for a biased political agenda, rather than acting in the best interests of their constituents. The Supreme Court majority took issue with this as offensive and insulting to the legislators and rejected it out of hand.
Justice Elena Kagan attacked the Court’s equivocation head on in a scathing dissenting opinion in Brnovich: “There is a … problem when an election rule, operating against the backdrop of historical, social, and economic conditions, makes it harder for minority citizens than for others to cast ballots. And strong state interests may save an otherwise discriminatory rule, but only if that rule is needed to achieve them – that is, only if a less discriminatory rule will not attain the State’s goal.”
Preventing Fraud Is a Doubtful Justification for Voting Barriers
Rather than interpreting the totality of circumstances in Justice Kagan’s broader context, the majority in Brnovich stressed that “every voting rule imposes a burden of some sort” and that an “entirely legitimate state interest” in its voting rules “is the prevention of fraud.”
Harvard Law School professor and voting rights expert Nicholas Stephanopoulas, calls the fraud justification of the Brnovich majority disingenuous, a “façade” of a partisan court. He says: “Fraud in theory could be a strong governmental interest, but a state has to show there actually is a worry about a particular kind of fraud in the jurisdiction.
“There have been times in American history where there was a real legitimate concern about fraud, but fortunately in modern America, there’s virtually no place where there is widespread fraud.”
Arizona did not have evidence of fraud in this case, only a theoretical concern about preventing it.
But the Court might also have another agenda underlying this opinion. Without question, Brnovich will have a chilling effect on challenges of laws like Arizona’s. In validating Arizona’s rules, the Court took pains to make clear that broad authority to regulate election procedures should not be transferred to the federal courts. The Court essentially kicked it back to Congress.
The Supreme Court’s Aloofness in This Case Is No Coincidence
The Supreme Court’s aloofness in this case is no coincidence, considering the present level of racial and minority electoral controversy not seen since the 1960s. It seems the conservative Court seeks to avoid the fray.
Still, it is unlikely the courts can stay out of it. The “totality of the circumstances” of the current VRA means a case-by-case evaluation. This is a fact-specific inquiry. One lesson that challengers of state election rules might take from Brnovich is how to build a tighter, more compelling case.
This case and other ways to combat voter restrictions are important questions for study, such as in our business, legal studies, and criminal justice programs. What can voting rights advocates lawfully do to get out the vote and overcome voting barriers in their communities? How should legitimate constitutional considerations be balanced in our democratic process?
We ask our students to explore these and similar important questions in our virtual classrooms, fostering debate and creative solutions. For example, in my next business ethics classes, we will debate the question whether Election Day should be an official paid holiday to give American citizens the opportunity to vote without penalty or, as an alternative, voluntarily give private industry employees paid time off for voting.