A partisan battle in an overreach of a case
on Feb 22, 2021 at 8:41 am
Richard L. Hasen is the chancellor’s professor of law and political science at the University of California, Irvine School of Law and the founder of Election Law Blog. He is the author, most recently, of Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy.
Brnovich v. Democratic National Committee is a strange voting rights case. Rather than the typical case, in which a voting rights group representing minority voters sues a state or locality for engaging in electoral discrimination, this case pits the two major political parties against each other, and Republican officials in Arizona against Democratic officials. Amicus briefs from voting rights groups filed in Brnovich exhibit strong concern about preserving Section 2 of the Voting Rights Act as a tool to tackle discriminatory voting laws. Doing so will be tough before a new conservative supermajority on the Supreme Court.
With the Supreme Court effectively killing Section 5 of the Voting Rights Act in 2013 in Shelby County v. Holder, Section 2 remains one of the strongest voting rights tools in the United States. Section 5 targeted jurisdictions with a history of racial discrimination in voting and required them to get federal approval before making changes in voting laws. This preclearance required jurisdictions to demonstrate that their proposed changes would not make minority voters worse off. Section 2, as amended in 1982, uses a different standard that applies nationally. It puts the burden on voters to show that a law prevents protected minority voters from equally participating in the political process and electing representatives of their choice.
The language of Section 2 is opaque, but its meaning is relatively clear in the redistricting context, thanks to a 1986 Supreme Court case, Thornburg v. Gingles. That decision established a three-part threshold test focused on the presence of racially polarized voting in a jurisdiction, followed by a “totality of the circumstances” test, to judge when a redistricting plan denies minority voters fair representation.
In recent years, voting rights plaintiffs have increasingly used Section 2 to attack not only the “vote dilution” that comes from redistricting, but also the “vote denial” that comes from laws that make it harder to register and vote. The opaque language of Section 2 has led lower courts to come up with different tests to consider Section 2 vote denial claims, and voting rights plaintiffs have had mixed success so far. For example, the U.S. Court of Appeals for the 5th Circuit held that a strict Texas voter identification law violated Section 2, but the same court upheld against a Section 2 challenge a slightly tweaked version of the law a few years later.
Generally speaking, voting rights lawyers have been reluctant to push the use of Section 2 too aggressively, likely worried that if a case got to the Supreme Court, the increasingly conservative body would weaken Section 2 protections or even find aspects of it unconstitutional. The Democratic Party seemed to have no such worry, and in Brnovich, the party challenges two Arizona policies that are far from the most egregious voting rights violations. One policy prevents Arizona officials from counting votes when voters accidentally cast them in the wrong precinct; the other bars third party groups from collecting mail-in ballots (a practice pejoratively referred to as “ballot harvesting”).
The Democratic Party’s aggressiveness in using Section 2 in this case, and the deeply split en banc U.S. Court of Appeals for the 9th Circuit decision siding with the Democrats, has provided an opportunity for the state’s Republican Party, its Republican attorney general and the Trump administration (which filed an amicus brief on behalf of the United States before Donald Trump left office) to suggest various ways to read Section 2 as applied to vote denial claims in very stingy ways. From an enhanced “proximate causation” requirement suggested by the United States, to a carve-out from Section 2 for laws that affect voter “qualifications” or “time, place, and manner” restrictions for voting, the briefs filed by Republicans look for ways to drain Section 2 of all of its powers to be used in the vote denial context.
It is no wonder then that the brief filed by Arizona’s Democratic secretary of state makes arguments for part of the case to be dismissed on standing grounds and to reject the stingy Section 2 tests proposed by Republicans. A group of prominent election scholars filed a brief asking for the petition to be dismissed as improvidently granted, leaving the lower court opinion in place without making new law. Voting rights amicus briefs argue for preservation of a meaningful Section 2 test for vote denial, and spend little time defending the 9th Circuit’s decision that these particular Arizona laws violate Section 2. Even the Biden administration, in a new letter to the court, does not defend the 9th Circuit’s result; it only seeks to distance itself from the Trump administration’s stingy test for vote denial under the Voting Rights Act.
That the first Section 2 vote denial case comes to the Supreme Court as a partisan battle is exceptionally unfortunate, because it will focus the justices’ attention less on the cost of restrictive voting laws on minority voters and more on how the parties fight over voting rights rules for partisan gain. Section 2 has done important work to rein in some of the worst forms of vote denial in recent years, and it would be a tremendous shame if this overreach of a case ends up serving as the vehicle to eviscerate what remains of the crown jewel of the civil rights movement.