The 2020 presidential election and voter suppression efforts in its aftermath have highlighted the critical importance of voting rights. As razor-thin margins defined presidential victories in the past two elections, voting laws in pivotal states have become a matter of heated national debate. While the 2020 election brought the issue of vote by mail into sharp focus, other battles over redistricting, voter identification requirements, and voter registration campaigns have been ongoing over the past decade.
In recent years, both Republican and Democrat state and local level administrations have manipulated redistricting to strengthen their hands (in a process known as gerrymandering)—but Republicans have been the main proponents of initiatives that increase voter requirements and limit the possibility of voting by mail. Though some may claim these laws are necessary for “election integrity,” the reality is more insidious. Stringent voter ID requirements and restrictions for voting before Election Day disproportionately affect communities of color, especially considering people of color are more likely to have to work on Election Day, and less likely to have photo IDs.
The Voting Rights Act of 1964, amended in 1982, specifically forbids any impediment to minorities’ rights to participate in the democratic process. This landmark legislation has been hailed as the backbone of the “Second Reconstruction.” Section 2 in particular, which states political participation must be “equally open” to all minorities, meaning they must have the same opportunity as “other members of the electorate to participate in the political process and to elect representatives of their choice,” has become the basis for many lawsuits that challenge voting rights restrictions.
In the lead up to the presidential election, a series of Arizona voting restrictions were struck down by the Ninth Circuit Court of Appeals. House Bill 2023 (HB2023) forbids anyone but a caregiver or relative to collect a person’s absentee ballot and Arizona’s out-of-precinct policy (OOP) meant that ballots cast in the wrong precinct be thrown out, even if the voter is eligible to vote in the state for state or national-level offices. In Brnovich v. Democratic National Committee, lawyers for the Democratic National Committee argued that HB 2023 and OOP disproportionately affected minorities and consequently violated Section 2 of the Voting Rights Act, as well as the Fourteenth and Fifteenth amendments.
While the Ninth Court of Appeals ruled in favor of the plaintiffs in Brnovich, the Supreme Court did not, last month upholding Arizona’s HB2023 and OOP in a 6-3 decision. Both the Supreme Court’s minority and majority opinion found that the plaintiffs did not show a statistically significant disproportionate impact on minority voters when it came to ballot collection by third parties. The Supreme Court could have upheld the Arizona voting restrictions on that basis in this particular case. This would have been a narrow ruling: While it would be a blow to voting by mail in Arizona, its value as a precedent would be limited.
Instead, the court’s majority opinion included an understanding of Section 2 that makes future lawsuits challenging voting restrictions much more difficult to win. In the majority opinion, Justice Samuel Alito ruled that a “mere inconvenience” was insufficient to demonstrate that a violation of Section 2 occurred. Further, the ruling states that a disproportionate burden on minority groups alone does not constitute a violation of Section 2. Rather, the “the size of the burden” matters. As Harvard Law Professor and election law expert Nicholas Stephanopoulos explains, the introduction of the issue of burden with regards to Section 2 is novel and not present anywhere in the text of the statute. According to Professor Stephanopoulos, Section 2 speaks of “equal opportunity” and “equal openness,” suggesting that it is dealing with issues of “unequal treatment.” The court’s decision therefore partially conflates these two separate issues of “unequal treatments” and “rights burdens,” the latter notably absent from the text of the statute.
The way in which the court outlines how the magnitude of the burden ought to be determined adds a further level of difficulty for plaintiffs. The burden imposed by a measure must be significant within the context of the entirety of the jurisdiction’s voting opportunities. That is to say that “where a State provides multiple ways to vote, any burden imposed on voters who choose one of the available options cannot be evaluated without also taking into account the other available means.” The majority opinion also sets 1982, the last time the Voting Rights Act was amended, as a “benchmark,” calling on courts to consider how common any given practice was at that time. The reasoning goes that if a practice was widespread when Section 2 was adopted, surely the writers of the amendment did not consider those practices excessively burdensome. The ruling is particularly momentous when it comes to the “time, place, or manner” of voting, because, as Justice Alito wrote, it is the first time the court has considered a voting dilution claim pertaining to the “time, place or manner” in which an election is conducted.
Justice Kagan’s minority opinion, supported by Justices Breyer and Sotomayor, argued that the Court’s decision “undermines Section 2 and the right it provides.” Kagan also suggests that the interpretation of the court contradicts the text of the statute, saying that “the majority writes its own set of rules, limiting Section 2 from multiple directions.”
Going forward, some aspects of voting rights litigation will likely remain the same. As before, plaintiffs must show that a given voting law disproportionately affects minority populations. Brnovich has highlighted the increasing importance of statistical analysis in litigation, as the Court explicitly states that the plaintiffs failed to show that the measure concerning ballot collection caused a statistically significant racial disparity. Further, although there are many requirements to demonstrate an excessive burden, Professor Stephanopolous clarified that this does not mean that litigators will necessarily have to show all the aspects that the court set out as standards. For example, while a voter law may have been in place in 1982, it is possible that litigators may be able to show that it has a disproportionate impact on minorities and causes a very significant burden even in the context of the state’s other voting mechanisms. In that case, the courts could rule in favor of the plaintiffs even if the measure was widespread in 1982. That is to say a challenge to a given voting law needs to meet several of the standards set by the Court to demonstrate that the law creates an excessive burden, but importantly it does not necessarily need to show that every single one of the standards is met.
Yet Stephanopoulos also explained that Brnovich “stacked the deck” against voting rights advocates. States can defend their voter restrictions, even if they cause a considerable burden to voters, on the basis that the measure fulfills a legitimate state interest. As Alito wrote in Brnovich, “even if the plaintiffs were able to demonstrate a disparate burden…the State’s ‘compelling interest in preserving the integrity of its election procedures’ would suffice to avoid [Section] 2 liability.” The compelling interest in question in this case is that of preventing fraud, and the Court sets an extremely low standard for states to demonstrate that it needed to take action to protect this interest. The majority opinion states that “a State may take action to prevent election fraud without waiting for it to occur within its own borders.” States therefore need no evidence of fraud (Arizona notably had 0 cases of fraud in the last presidential election) in order to justify their restrictive voter measures. The court has upheld the state’s interest in “protecting fraud as an abstract value,” according to Stephanopoulos.
There are compelling alternative ways to balance legitimate state interests and equal access to voting. Stephanopoulos articulated one such alternative in his testimony before Congress. He suggested adopting a “disparate impact framework” where jurisdictions must prove that a voting practice that affects a racial minority disproportionately is necessary to achieve a substantial state interest. If the jurisdiction effectively shows this, the plaintiff would have an opportunity to offer an alternative practice that causes a smaller racial disparity but that still achieves the jurisdiction’s stated interest.
As interesting as this and other alternatives set forward by legal academics are, they are mere theoretical exercises. The drastic shift in the interpretation of Section 2—frankly, it’s rewriting by the Supreme Court—will be enduring. The Supreme Court must be extra deferential to its past interpretations of statutes: Even if the composition of the court changes over time, the precedent set by Brnovich will last.
This will certainly affect how lower courts deal with these cases. The court has offered many justifications through which conservative lower courts can reject voting rights lawsuits. Stephanopoulos notes that while it was already difficult for voting rights suits to succeed in conservative lower courts, their chances of success are now even slimmer. A perhaps less evident but potentially significant result of Brnovich is an increase in the partisanship of judicial decisions regarding voting laws. While this trend is already present, it is likely to grow now that the court has provided many grounds for rejecting voter rights lawsuits that show that minorities were disproportionately affected.
The impact of this court decision is going to have almost immediate effects across the country. GOP lawmakers in Georgia and Texas have recently pushed restrictive voting bills and the Biden Justice Department announced that it would challenge the Georgia bill in court. Brnovich effectively dashes hopes of a successful challenge to Georgia’s law, and the recent escape of Texas Democratic lawmakers to Washington exemplifies the difficulty of halting restrictive voting laws at the legislative level in red states.
What, then, is the way forward for voting rights advocates? History offers only a partial answer. In Bolden, the Supreme Court ruled that “facially neutral voting practices” violated Section 2 “only if [they were] motivated by a discriminatory purpose.” In response, Congress modified Section 2 to clarify “that ‘results’ alone could lead to liability.” Section 2 then is itself a reaction from the legislative branch to a Supreme Court decision. Similar action from Congress would likely be necessary to reaffirm the fundamental aim of the Voting Rights Act. Yet Congress’ ongoing failure to pass an expansive voting rights bill strongly suggests that legislative action in this area is unlikely.
The United States thus finds itself in a somewhat circular predicament. The protection of voting rights depends on a body that is elected under voting procedures that increasingly curtail the access of minorities to the political process and whose institutional barriers prevent the majority of the voters from having their will heard. There is still, however, room for hope. The 2020 presidential election reached record levels of voter turnout, in large part thanks to tireless grassroots activism best exemplified by Stacey Abrams in Georgia. Community-centered efforts to bring voters to the polls, despite the mounting barriers to their participation, need to be redoubled and focused particularly on local and state elections. These elections typically see a much lower level of civic engagement from the population, and unsurprisingly also a lower turnout rate. Yet it is at the state and local level that so many crucial electoral decisions are made. In a federal system gridlocked over voting rights reform, and with the scales so severely tipped against plaintiffs at the judicial level, activists and community organizers must focus on the state legislatures so that restrictive voting bills never become the law of the land.