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A false choice between state sovereignty and multi-racial democracy

This article is the final entry in a symposium on the upcoming argument in Brnovich v. Democratic National Committee. Our case preview is here.

Loren L. AliKhan is the solicitor general of the District of Columbia. Harrison Stark is an appellate litigation fellow in the Office of the Solicitor General within the D.C. Office of the Attorney General. The District authored an amicus brief on behalf of 18 states urging affirmance.

As anyone following this past year’s election can tell you, states play a crucial role in managing the democratic process. While Congress retains the power to regulate some aspects of federal elections, the nuts and bolts of election administration still fall to states and localities. This “hyperfederalized” system (to use Alec Ewald’s memorable phrase) has been a core aspect of American self-government since the beginning. As Alexander Hamilton wrote in the Federalist Papers, “the regulation of elections for the federal government” falls “in the first instance[] to the local administrations,” which, he predicted, “may be both more convenient and more satisfactory.”

The Supreme Court had ample opportunity to emphasize this principle recently when it rejected challenge after challenge to voting procedures set by states in the run-up to the 2020 presidential election. Freezing a court order that would have granted relief from South Carolina’s signature-witness requirement because of COVID-19, Justice Brett Kavanaugh seemed to capture the Roberts court’s approach when he wrote that a state’s election administration choices — even those that might put voters at risk of a deadly disease — “should not be subject to second-guessing by an ‘unelected federal judiciary,’ which lacks the [necessary] background, competence, and expertise … and is not accountable to the people.’”

The day after South Carolina officials asked the Supreme Court for that stay, the court granted certiorari in Brnovich v. DNC and Arizona Republican Party v. DNC (collectively, “Brnovich”). Most narrowly, these now-consolidated petitions concern whether two specific Arizona election rules violate the Voting Rights Act’s results test. But the dispute sets the stage for a potentially larger — and more troubling — showdown between federal civil rights legislation and state control over elections more broadly. Thankfully, that conflict is illusory.

Since 1982, Section 2 of the Voting Rights Act has prohibited any state policy or procedure 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.” As the NAACP Legal Defense and Educational Fund, Inc. detailed in its amicus brief, Section 2 has recently taken on renewed importance. The majority of Section 2 “results” litigation has historically focused on “vote-dilution” claims that targeted the drawing of district lines and the make-up of political subdivisions — in other words, those suits challenged the relative weight afforded to votes cast as opposed to an individual’s ability to register or vote in the first place. But after the Supreme Court dismantled Section 5’s preclearance regime in Shelby County v. Holder, voting-rights advocates have increasingly turned to Section 2’s discriminatory-results test to challenge vote denial, too.

The U.S. Court of Appeals for the 9th Circuit, like nearly every other federal court of appeals, has adopted a two-part test for Section 2 vote-denial claims. Rooted in the familiar framework of Thornburg v. Gingles, the test asks first whether the challenged law “results in a disparate burden on members of the protected class.” If it does, the test then interrogates “whether, under the ‘totality of circumstances,’” the disproportionate burden on minority voters interacts with existing conditions of discrimination so as “to cause an inequality in the opportunities enjoyed by [minority] and white voters to elect their preferred representatives or to participate in the political process.” Applying that test in the current case, the en banc 9th Circuit held that two of Arizona’s facially neutral election provisions violated the Voting Rights Act.

Brnovich is the Supreme Court’s first opportunity to consider a vote-denial claim under Section 2, and the petitioners seek to place these claims on a collision course with states’ “major role … in structuring and monitoring the election process.” In the petitioners’ and their amici’s telling, the two-part test is an assault on state sovereignty that “enlist[s] the courts in a partisan project of maximizing minority voting rates” and threatens to “sweep away almost all registration and voting rules.”

As we argued in an amicus brief on behalf of 18 states, the two-part test does no such thing. Section 2 simply asks whether, under “the totality of the circumstances,” minority voters “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” Far from undermining judicial deference to state legislatures, Section 2 ensures that such deference is well placed. By asking whether state political systems remain responsive to all voters regardless of race, Section 2 simply requires that states’ promise of republican government operates as advertised.

While Section 2’s goal is profound, its burden on state election systems is not. States have long planned and conducted elections against the backdrop of Section 2; after all, the Senate report that accompanied the 1982 amendments described it as “the major statutory prohibition of all voting rights discrimination.” And, contrary to the framing of the petitioners and their amici, Section 2 is not a pure disparate-impact provision — and that is why no appellate court, including the 9th Circuit, imposes Section 2 liability based on disparate impact alone. Instead, the two-part test protects states from unnecessary liability by requiring a rigorous, context-specific factual inquiry to determine whether the disparate impact of a challenged procedure actually operates to render a political process “not equally open to participation by members of a class of citizens.” As our experience demonstrates, that test’s rigorous factual requirements impose both legal and practical constraints on liability, making reflexive invalidation of any state’s election procedures improbable.

To be sure, the two-part test isn’t perfect. Congress enacted the 1982 amendments with an eye toward the court’s decision in City of Mobile v. Bolden, a vote-dilution case. But, from the perspective of state autonomy, that imperfect fit is the extent of the two-part test’s shortcomings. At worst, the two-part test for vote denial acts as a creative-but-faithful heuristic — in the U.S. Court of Appeals for the 5th Circuit’s words, “a sufficient and familiar way to limit courts’ interference with ‘neutral’ election laws to those that truly have a discriminatory impact under Section 2 of the Voting Rights Act.” And like the vote-dilution framework, the two-part test vindicates the constitutional values that animated Congress’ passage of Section 2, all while protecting states from unnecessary legal exposure.

When the Supreme Court soon confronts this case, it should reject any imagined conflict between multi-racial democracy and state autonomy. None exists.

Recommended Citation: Harrison Stark and Loren Alikhan, A false choice between state sovereignty and multi-racial democracy, SCOTUSblog (Feb. 24, 2021, 1:41 PM),