Brnovich v. DNC, and more
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By ED WHELAN
July 1, 2021 11:51 AM
In its decision today in Brnovich v. Democratic National Committee, the Supreme Court addressed two Arizona election measures: (1) its policy of not counting votes cast in the wrong precinct; and (2) and its law, HB 2023, allowing only postal workers, election officials, or a voter’s caregiver, family member, or household member to collect and deliver an early ballot on the voter’s behalf. Dividing 6 to 3 along ideological lines, the Court held that neither measure violates section 2 of the Voting Rights Act. Justice Alito wrote the forceful majority opinion. Justice Kagan wrote a fiery dissent.
In this post, I’ll summarize Alito’s majority opinion. (I’m quoting heavily but will not litter the summaries with lots of quotation marks and ellipses.)
In a follow-up, I’ll address Kagan’s dissent. I’ll simply note here that I’m surprised that the Court wasn’t unanimous in reversing the Ninth Circuit, even if under different approaches. Even the Biden DOJ informed the Court that “it does not disagree with the conclusion in [the Trump administration’s] brief that neither Arizona measure violates Section 2’s results test.”
1. This case presents the first opportunity for the Court to consider how section 2 applies to generally applicable time, place, or manner voting rules. We decline to announce a test to govern all such rules and instead “identify certain guideposts that lead us to our decision.”
Section 2 provides that it is violated “if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision 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.” Thus, equal openness is the touchstone, and the totality of circumstances must be considered. We derive these considerations from this statutory command:
a. The size of the burden imposed by a challenged voting rule is highly relevant. Every voting rule imposes a burden of some sort.
b. The degree to which a voting rule departs from what was standard practice when section 2 was amended in 1982 is a relevant consideration.
c. The size of any disparities in a rule’s impact on members of different racial or ethnic groups is an important factor to consider.
d. Courts must consider the opportunities provided by a state’s entire system of voting when assessing the burden imposed by a challenged provision.
e. The strength of the state interests served by a challenged voting rule must be taken into account. One strong and entirely legitimate state interest is the prevention of fraud. Ensuring that every vote is cast freely, without intimidation or undue influence, is also a valid and important state interest.
2. Kagan’s dissent “would rewrite the text of section 2 and make it turn almost entirely on just one circumstance—disparate impact. That is a radical project.” Congress rejected the “freewheeling disparate-impact regime the dissent wants to impose on the States.” “According to the dissent, an interest served by a voting rule, no matter how compelling, cannot support the rule unless a State can prove to the satisfaction of the courts that this interest could not be served by any other means. Such a requirement has no footing in the text of §2 or our precedent construing it.” And it “would have the potential to invalidate just about any voting rule a State adopts.” Under Kagan’s approach, “any ‘statistically significant’ disparity—wherever that is in the statute—may be enough to take down even facially neutral voting rules with long pedigrees that reasonably pursue important state interests.”
3. In light of these principles, the Arizona measures do not violate section 2.
a. Arizona’s out-of-precinct rule enforces the requirement that voters who choose to vote in person on election day must do so in their assigned precincts. Having to identify one’s own polling place and then travel there to vote does not exceed the usual burdens of voting. The District Court’s uncontested findings show that the State made extensive efforts to reduce their impact on the number of valid votes ultimately cast.
Even if it is marginally harder for Arizona voters than for voters in other states to find their assigned polling places, Arizona offers other easy ways to vote. Any voter can ask to be placed on the permanent early voter list so that an early ballot will be mailed automatically. Voters may drop off their early ballots at any polling place, even one to which they are not assigned. And for nearly a month before election day, any voter can vote in person at an early voting location in his or her county.
The racial disparity in burdens allegedly caused by the out-of-precinct policy is small in absolute terms. A policy that appears to work for 98% or more of voters to whom it applies—minority and non-minority alike—is unlikely to render a system unequally open.
Precinct-based voting furthers important state interests: It helps to distribute voters more evenly among polling places and thus reduces wait times. It can put polling places closer to voter residences than would a more centralized voting-center model. In addition, precinct-based voting helps to ensure that each voter receives a ballot that lists only the candidates and public questions on which he or she can vote, and this orderly administration tends to decrease voter confusion and increase voter confidence in elections. And the policy of not counting out-of-precinct ballots is widespread.
b. HB 2023 also passes muster. Arizonans who receive early ballots can submit them by going to a mailbox, a post office, an early ballot drop box, or an authorized election official’s office within the 27-day early voting period. They can also drop off their ballots at any polling place or voting center on election day, and in order to do so, they can skip the line of voters waiting to vote in person. Voters can also ask a statutorily authorized proxy—a family member, a household member, or a caregiver—to mail a ballot or drop it off at any time within 27 days of an election.
The plaintiffs were unable to provide statistical evidence showing that HB 2023 had a disparate impact on minority voters. Even if the plaintiffs had shown a disparate burden caused by HB 2023, the State’s justifications would suffice to avoid §2 liability. 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. That was the view of the bipartisan Commission on Federal Election Reform chaired by former President Jimmy Carter and former Secretary of State James Baker. HB 2023 tracks that Commission’s recommendation and is in fact even more permissive.
Prevention of fraud is not the only legitimate interest served by restrictions on ballot collection. Third-party ballot collection can lead to pressure and intimidation.
By ED WHELAN
July 1, 2021 12:32 PM
I have a lot of admiration for Justice Kagan, so I’m disappointed to see that her dissent from Justice Alito’s majority opinion in Brnovich v. Democratic National Committee seems to be playing to the grandstands on the Left. A few examples:
1. There is a lot of rousing rhetoric in Kagan’s opening and conclusion—all with respect to two common measures that even the Biden administration couldn’t bring itself to argue were unlawful.
2. Kagan contends that Alito “fears that the statute Congress wrote is too ‘radical.’” But what Alito in fact argues is that Kagan’s “rewrit[ing]” of section 2 is a “radical project.” It’s cheap of her to fool her readers into thinking that Alito applied the term “radical” to the Voting Rights Act.
3. Kagan writes: “Yet efforts to suppress the minority vote continue. No one would know this from reading the majority opinion.” But Alito explicitly states:
Section 2 of the Voting Rights Act provides vital protection against discriminatory voting rules, and no one suggests that discrimination in voting has been extirpated or that the threat has been eliminated.
Moving beyond what Alito labels Kagan’s extended effort at misdirection, I’ll briefly summarize the heart of her argument (joined in full by Justices Breyer and Sotomayor).
Kagan argues that Section 2’s text requires courts to eradicate voting practices that make it harder for members of some races than of others to cast a vote, unless such a practice is necessary to support a strong state interest. (Pp. 12-20.) She contends that the considerations that Alito draws from the text are instead “mostly made-up factors, at odds with Section 2 itself.” (Pp. 20-29.)
Kagan argues that Arizona’s out-of-precinct policy “results in Hispanic and African American voters’ ballots being thrown out at a statistically higher rate than those of whites” and that “Arizona is the national outlier in dealing with out-of-precinct votes, with the next-worst offender nowhere in sight.” (Pp. 29-35.) Similarly, “Arizona’s law mostly banning third-party ballot collection also results in a significant race-based disparity in voting opportunities” for rural Native American voters. (Pp. 35-40.)