Thursday, July 1, 2021
The Supreme Court ruled today that two Arizona voting restrictions--the out-of-precinct ban and the ballot-collection ban--did not violate Section 2 of the Voting Rights Act. Along the way, the Court interpreted Section 2 in a way that'll likely make it harder, even much harder, for plaintiffs to successfully challenge the myriad new and proposed state voting restrictions.
The ruling means that Arizona's restrictions stay on the books, and that new and proposed voting restrictions are likely also to pass muster. Under the Court's approach, a plaintiff could, in theory, still succeed in a claim that a facially neutral voting law violates Section 2 because of its disparate impact by race. But it'll be a lot, lot harder. The ruling may make it harder to prove a discriminatory intent claim, too, given the the way the Court analyzed the question, and given the Court's rejection of the "cat's paw" approach in the lower court.
The case, Brnovich v. DNC, tested two Arizona voting restrictions, the out-of-precinct ban and the ballot-collection ban. Under the out-of-precinct ban, election officials discard any ballot cast by a voter on election day in the wrong precinct. Under the ballot-collection ban, it's a crime for any person (except a postal worker, an elections official, or a voter's caregiver, family member, or household member) to collect another person's early ballot.
Plaintiffs argued that the provisions had a disparate impact on the state's Native American, Latinx, and Black voters, and that the ballot-collection provision was enacted with discriminatory intent, all in violation of Section 2 of the Voting Rights Act.
In a sharply divided, 6-3 ruling, along conventional ideological lines, he Court rejected the challenge.
Justice Alito wrote for the majority. He wrote that Section 2(a) bans voting practices that "result in a denial or abridgement of the right to vote on account of race or color," and that Section 2(b) says that this applies only where "the political processes" are not "equally open to participation by members of a class of citizens protected by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." He acknowledged that subsection (b) requires a "totality of the circumstances approach." Putting the statutory language together, he wrote that
the core of Section 2(b) is the requirement that voting be "equally open." The statute's reference to equal "opportunity" may stretch that concept to some degree to include consideration of a person's ability to use the means that are equally open. But equal openness remains the touchstone.
The Court then identified a nonexhaustive list of circumstances that go to "equal openness" and "equal opportunity." First, it said "the size of the burden imposed by a challenged voting rule is highly relevant." Next, "the degree to which a voting rule departs from what was standard practice when Section 2 was amended in 1982 is a relevant consideration." Third, "[t]he size of any disparities in a rule's impact on members of different racial or ethnic groups is also an important factor to consider." Fourth, "courts must consider the opportunities provided by a State's entire system of voting when assessing the burden imposed by a challenged provision." And finally, "the strength of the state interests served by a challenged voting rule is also an important factor that must be taken into account."
Considering these principles, the Court held that Arizona's restrictions didn't violate Section 2's "equal openness" and "equal opportunity" commands. The Court said that the rules don't pose an unusual burden on voting, and that Arizona acted to mitigate any burdens. The Court said that the plaintiffs failed to show a significant racially disparate outcome for the out-of-precinct policy, and no actual disparity for the ballot-collection ban. And the Court said that the state had valid justifications for the policies, and that the state didn't need to adopt the least restrictive means to achieve those justifications.
The Court went on to hold that the ballot-collection ban was not enacted with a discriminatory purpose in violation of Section 2. It said that any evidence of discriminatory purpose was outweighed by the later "serious legislative debate" that "led to the passage" of the policy. The Court held that the lower court's "cat's paw" theory (which a plaintiff can use in employment-discrimination cases to hold an employer liable for "the animus of a supervisor who was not charged with making the ultimate [adverse] employment decision") had no place in the Section 2 analysis.
Justice Gorsuch concurred, joined by Justice Thomas. He argued that it's not obvious that Section 2 provides an individual cause of action. But he declined to say more, because the parties hadn't raised the point.
Justice Kagan dissented, joined by Justices Breyer and Sotomayor. She started with a comprehensive history of voting rights, discrimination, and the Voting Rights Act, right up to the present day--"a perilous moment for the Nation's commitment to equal citizenship . . . when too many States and localities are restricting access to voting in ways that will predictably deprive members of minority groups of equal access to the ballot." She argued that Section 2's "essential import is plain:"
Courts are to strike down voting rules that contribute to a racial disparity in the opportunity to vote, taking all the relevant circumstances into account.
She argued that by this standard, both of Arizona's restrictions fail. "Considering the 'totality of circumstances,' both 'result in' members of some races having 'less opportunity than other members of the electorate to participate in the political process and to elect a representative of their choice.'"