This post was updated on July 1 at 5:45 p.m.
On the last day before its summer recess, the Supreme Court issued a major decision on voting rights that will make it more difficult to contest election regulations under the Voting Rights Act. By a vote of 6-3, the justices upheld two Arizona voting provisions that Democrats and civil rights groups challenged as disproportionately burdening minority voters. In an opinion by Justice Samuel Alito, the majority outlined what it described as “guideposts” for future challenges to voting laws under Section 2 of the Voting Rights Act, which bans racial discrimination in election practices. The court’s three liberal justices dissented, with Justice Elena Kagan complaining that Thursday’s decision “undermines Section 2 and the right it provides.”
One of the provisions at the heart of the case, Brnovich v. Democratic National Committee, is known as the “out of precinct” policy. It requires election officials to throw out an entire ballot if it was cast at the wrong precinct. A voter whose name does not appear on the voting rolls in a particular precinct is allowed to cast a provisional ballot, but if election officials later conclude that she voted in the wrong place, her entire ballot is discarded – even if she was eligible to vote for statewide or national offices, like governor or president, for which her precinct would not matter.
The second provision at issue bans what is sometimes called “ballot harvesting.” Enacted in 2016, a state law makes it a felony to collect and deliver another person’s ballot (with exceptions for family members, caregivers, mail carriers and election officials).
The Democratic National Committee went to federal court in 2016, arguing that both restrictions violated Section 2 of the Voting Rights Act. The U.S. Court of Appeals for the 9th Circuit agreed, but the Supreme Court decided to review that decision, and on Thursday it reversed.
In his opinion, Alito observed that the Supreme Court has never weighed in on a Section 2 challenge to a law regulating the “time, place, or manner” of voting. Rather, voting-rights advocates have typically used Section 2 to bring “vote-dilution” lawsuits – challenges to redistricting maps that are alleged to dilute minorities’ voting power.
The “core” of Section 2, Alito emphasized, is the “requirement that voting be ‘equally open.’” And the determination of whether voting is “equally open” to all, he added, should be made taking all of the circumstances into account.
Alito declined to provide an “exhaustive list” of what circumstances courts should consider to determine whether a law violates Section 2, but he outlined what he described as “several important circumstances” that, particularly when taken together, strongly suggest that it will be more difficult for plaintiffs to prevail in the future in cases arguing that a voting law violates Section 2. He noted first that the size of the burden imposed by a voting rule is “highly relevant.” “After all,” he wrote, “every voting rule imposes a burden of some sort.” “Mere inconvenience,” he added, “cannot be enough to demonstrate a violation of” Section 2.
Courts should also consider, Alito wrote next, the extent to which the voting rule being challenged differs from voting practices in 1982, when Congress amended Section 2 to prohibit any policy or practice that “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” “[I]t is relevant,” Alito stressed, “that in 1982 States typically required nearly all voters to cast their ballots in person on Election Day and allowed only narrow and tightly defined categories of voters to cast absentee ballots.” Indeed, Alito observed, “only three States permitted no-excuse absentee voting” in January 1980. Put another way, Alito continued, it is doubtful that “Congress intended to uproot facially neutral time, place, and manner regulations that have a long pedigree or are in widespread use in the United States.”
If a voting rule affects some racial or ethnic groups more than others, Alito continued, courts should consider the size of that disparate impact. Just because there is some disparate impact does not, standing alone, mean that everyone does not have an equal opportunity to vote, Alito made clear. “The size of any disparity matters,” and any comparisons should be “meaningful”: “What are at bottom very small differences should not be artificially magnified.”
Courts should also consider the challenged voting rules in the context of the state’s entire voting system, and the other opportunities that it provides to its voters, Alito noted. Therefore, he wrote, “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.”
Fifth and finally, Alito concluded, courts should look at the reason why states want to impose a particular voting rule. Although guaranteeing that votes are cast freely is “a valid and important state interest,” wanting to prevent voter fraud is, Alito made clear, also a “strong and entirely legitimate state interest.”
Stressing that “Arizona law generally makes it easy to vote,” Alito explained that, in light of these considerations, neither of the Arizona rules at issue in this case violates Section 2. The only burden imposed by the out-of-precinct policy is having to identify the appropriate polling place and then go there to vote – which, Alito reasoned, is a “quintessential example of the usual burdens of voting.” Any racial disparity in the impact of the out-of-precinct policy is, Alito stressed, “small in absolute terms,” with approximately 1% of minority voters affected and 0.5% of non-minority voters affected in 2016. Moreover, Alito added, the state had good reasons for wanting voters to cast their ballots at their assigned polling places.
The ballot-collection restriction similarly imposes only one of the “usual burdens of voting,” requiring a voter to – for example – return an early ballot to a post office or a drop box, Alito wrote. Moreover, Alito added, the challengers didn’t provide data showing that the ballot-collection rule disproportionately affected minority voters. Instead, they relied on witnesses “who testified that third-party ballot collection tends to be used most heavily in disadvantaged communities and that minorities in Arizona – especially Native Americans – are disproportionately disadvantaged.” In any event, Alito added, the state has a strong interest in restricting ballot collection to “deter potential fraud and improve voter confidence.”
The court also reversed the 9th Circuit’s holding that the state had a discriminatory purpose when it enacted the ballot-collection restriction. Alito acknowledged that the catalyst “for the debate over mail-in voting” and the ballot-collection restriction “may well have been provided by one [state] Senator’s enflamed partisanship, but partisan motives are not the same as racial motives” – even when voting preferences of members of a particular racial group “may make the former look like the latter.” The district court in this case, Alito underscored, “found no evidence that the legislature as a whole was imbued with racial motives.”
In her dissenting opinion, Kagan began by observing that the Voting Rights Act “represents the best of America” but also “reminds us of the worst of America” because “it was — and remains — so necessary.” Section 2, she wrote, “remains, as written, as expansive as ever — demanding that every citizen of this country possess a right at once grand and obvious: the right to an equal opportunity to vote.” But Thursday’s ruling, she continued, “undermines Section 2 and the right it provides.”
Kagan noted that Section 2 was supposed to be a “back-up,” rather than the primary mechanism to ensure that voting rights are protected. Section 2 relies on litigation, she explained, which is “generally incapable of providing relief until an election.” But since the Supreme Court’s 2013 decision in Shelby County v. Holder, striking down the formula used to determine which jurisdictions must obtain preapproval for changes to their voting laws, she wrote, many state and local governments have implemented new voting restrictions. Some of those changes, Kagan posited, likely “have the kind of impact the Act was designed to prevent — that they make the political process less open to minority voters than to others.” As a result of Shelby County, Kagan concluded, “Section 2 is what voters have left.”
Out of concern that the Voting Rights Act is too “radical” and that the statute, as written, “will invalidate too many state voting laws,” the court reads Section 2 too narrowly, Kagan contended. The court then uses that “cramped reading” to uphold two provisions “that discriminate against minority voters,” Kagan continued. Although this is not “how the Court is supposed to interpret and apply statutes,” she wrote, “that ordinary critique woefully undersells the problem.” “What’s tragic,” she concluded, “is that the Court has damaged a statute designed to bring about ‘the end of discrimination in voting.’”
This post is also published on SCOTUSblog.