Justices to consider whether Arizona’s voting rules discriminate against minorities
The 2020 elections may be over, but the Supreme Court will soon hear oral argument in a pair of voting-rights cases from one of last year’s key battleground states, and the eventual outcome may determine how courts will assess allegedly discriminatory voting rules for years to come.
The cases challenge two Arizona voting provisions: a policy that requires an entire ballot to be thrown out if the ballot was cast at the wrong precinct, and a state law that bans the collection of ballots by third parties, sometimes called “ballot harvesting.” The challengers argue that both the policy and the law discriminate against racial minorities in Arizona, and the justices’ eventual ruling obviously could affect how the state carries out its elections going forward. More broadly, though, the justices could also weigh in on the proper test for evaluating voting-rights claims like these, which could have a sweeping effect nationwide.
The cases, Brnovich v. Democratic National Committee and Arizona Republican Party v. Democratic National Committee, have been consolidated for one hour of argument. The court will hear the cases on March 2.
The first provision at the heart of the cases now before the Supreme Court is known as the “out of precinct” policy. Roughly 90% of the state’s counties assign voters to a specific precinct based on their home address. (Counties can also opt to use a different model, in which voters can cast a ballot at any voting location within the county; that model is not being challenged here.) A voter who shows up at a polling place where she does not appear on the voting rolls can cast a provisional ballot. If election officials later determine that she voted in the wrong precinct, then her entire ballot is discarded. None of the votes that she cast are counted, even if she was otherwise eligible to cast them – for example, for president or statewide offices like U.S. senator or governor.
The second provision is the ban on ballot harvesting, which the state’s legislature enacted in 2016. The law makes it a felony, punishable by up to two years in prison and a $150,000 fine, to collect and deliver another person’s completed ballot (with exceptions for family members, caregivers, mail carriers and election officials).
The Democratic National Committee and voters went to federal court in 2016 to block both the “out of precinct” policy and the ban on ballot harvesting. They argued that both the policy and the ban violate Section 2 of the Voting Rights Act, which prohibits policies or laws that result in racial discrimination in voting. They also contended that the ban on ballot harvesting was the product of intentional discrimination by the state legislature, thereby violating both Section 2 and the 15th Amendment to the Constitution, which prohibits states from denying the right to vote based on race. The district court ruled for the state, concluding that neither provision violated the Constitution or the Voting Rights Act.
9th Circuit decision
The full U.S. Court of Appeals for the 9th Circuit reversed. Stressing that Section 2 no longer requires proof that legislators intended to discriminate, the court of appeals explained that plaintiffs can also establish a violation of Section 2 if they can show that “a challenged election practice has resulted in the denial or abridgement of the right to vote based on color or race.” The court of appeals applied a two-part test, dubbed the “results test,” to determine that both the out-of-precinct policy and the ballot-harvesting ban violate Section 2. In the first step, the 9th Circuit explained, the focus is whether the policy or law being challenged disproportionately affects the ability of a racial minority group to “participate in the political processes and to elect candidates of their choice.” If it does, the question in the second step is whether there is a link between the challenged policy or law and social and historical conditions, creating the inequality in opportunities.
The court of appeals concluded that both the out-of-precinct policy and the ballot-harvesting ban fail this test. For the out-of-precinct policy, the court of appeals noted that “Arizona election officials change voters’ assigned polling places with unusual frequency” and that polling places are sometimes “located so counterintuitively that voters easily make mistakes.” During the three general elections leading up to the 2020 election, the court observed, Native Americans, Hispanics and African Americans in Arizona were twice as likely as whites to vote outside of the precinct to which they had been assigned and therefore to have their votes not counted as a result of the policy – satisfying the first step of the results test. The court added that 3,709 out-of-precinct ballots were cast in the 2016 general election – which, it suggested, is not an insubstantial number.
Turning to the second step of its inquiry, the court of appeals determined that the disparate impact on minority voters from the out-of-precinct policy is indeed linked to social and historical conditions in Arizona in a way that causes an inequality in the opportunity for minority voters to elect their preferred representatives or otherwise participate in the political process. Arizona, the court found, has a long history of discriminating against its minority citizens based on race, much of which “is directly relevant” to their ability to participate in politics – for example, the state imposed a literacy test for minority voters for decades. The effects of discrimination, the 9th Circuit continued, have also created disparities in areas like income, employment and education that make it harder for minorities to participate in the political process.
The court of appeals arrived at a similar answer when it applied the results test to the ban on ballot harvesting. The court explained that Arizona voters rely heavily on early voting by mail – with 80% voting by mail in the 2016 presidential election. But Arizona voters, and especially minority voters, often have trouble returning their ballots, the 9th Circuit continued: Only 18% of Native American voters in the state, for example, have access to regular mail services. To compensate for these obstacles, the court of appeals explained, “a large and disproportionate number of minority voters relied on” others to collect and deliver their early ballots, without any evidence of fraud. Therefore, the court reasoned, the ban on ballot harvesting creates a disproportionate burden on minority voters. And the court found that the ban fails the second step of the results test for many of the same reasons that the out-of-precinct policy does.
The court of appeals also ruled that Arizona legislators had intended to discriminate against minority voters, in violation of Section 2 and the 15th Amendment, when they passed the ban on ballot harvesting. The court acknowledged that a majority of the state legislature had not necessarily “harbored racial hatred or animosity toward any minority group”; instead, they sincerely (although wrongly) believed that a ban on ballot harvesting was needed to combat voter fraud. However, the 9th Circuit continued, that sincere belief resulted from (among other things) allegations that were themselves false – allowing the court of appeals to attribute a discriminatory purpose to legislators under a theory known as the “cat’s paw” doctrine.
Both Mark Brnovich, Arizona’s Republican attorney general, and the Arizona Republican Party went to the Supreme Court last April, asking the justices to weigh in, which they agreed to do in early October 2020.
In his brief on the merits, Brnovich contends that the Supreme Court has never applied the Section 2 results test to a claim that a policy or law denies the right to vote. Instead, he tells the justices, the results test has been applied in cases alleging vote dilution – that is, claims that a system or district was structured to dilute the strength of minority voting groups.
When reviewing a claim that a law or policy violates Section 2, Brnovich explains, courts should keep in mind what Section 2 requires – an “equal opportunity for all voters to participate in a State’s political processes” – and what it bans – “laws that cause substantial disparities in minority voters’ opportunities to participate in those processes” and “to elect representatives of one’s choice.” When these two things are taken into account, Brnovich continues, it becomes clear that the 9th Circuit used the wrong formulation of the results test to evaluate the out-of-precinct policy and the ban on ballot harvesting.
First, Brnovich argues, the court of appeals was wrong to rule that the first step of the test was satisfied if the law or policy had more than a minimal impact on minority voters. When the argument is that a law or practice denies minority voters the opportunity to vote, Brnovich suggests, the proper question is instead whether, in light of the state’s entire voting system, the racially disparate impact of the law is substantial. For example, Brnovich observes, courts would need to consider other opportunities to vote – including early voting and vote by mail – when considering a challenge to a law that would close the polls 30 minutes earlier than in past years.
The 9th Circuit’s analysis at step two was also wrong, Brnovich adds, because it allowed the challengers to win as long as they could show that the minimal effect of the policy and the law was linked to social and historical conditions. Instead, he argues, the challengers should be required to show that the challenged law or practice “is responsible for the substantial disparate impact on minority voters” – a requirement that holds states responsible for their own discrimination but not for discrimination by others.
Under the proper test, Brnovich asserts, the out-of-precinct policy can survive because it applies to all voters, regardless of race, and its effect is “minimal” – affecting only 0.15% of all voters in 2016. And in any event, the challenge also does not satisfy the second step of the test because the plaintiffs “did not prove that the out-of-precinct policy caused voters of any race to vote in the wrong precinct.”
The same is true, Brnovich continues, for the ban on ballot harvesting, which Brnovich describes as “a commonsense means of protecting the secret ballot” recommended by a bipartisan commission on federal election reform co-chaired by former President Jimmy Carter and former Secretary of State James Baker. The ballot-harvesting ban should survive step one, Brnovich argues, because the plaintiffs could not prove that the ban had any disparate impact on minorities at all; all of the challengers’ evidence was purely anecdotal. The ban also survives step two, Brnovich suggests, because the ban was not responsible for “meaningful inequality” in the opportunities enjoyed by minority voters in comparison with non-minority voters.
Finally, Brnovich asserts, the 9th Circuit’s conclusion that the ballot-harvesting ban was enacted based on discriminatory intent was “plainly flawed.” Courts cannot attribute illegal discriminatory intent, Brnovich writes, “to each co-equal member of a legislative body.”
The Arizona Republican Party condemns the 9th Circuit’s ruling, suggesting that it would “subject nearly all ordinary election rules” to a challenge under Section 2, “and mandate court-ordered overhauls of state voting rules to achieve racial proportionality.” The party echoes some of the points made by Brnovich – noting, for example, that Section 2 “guarantees only equal opportunity, not equal outcome” and that the results test is primarily intended to address claims of vote dilution, rather than vote denial.
While Brnovich would subject claims like the challengers’ to more stringent review, the Republican Party seems to suggest that claims like the ones at issue in this case do not involve Section 2 at all. Laws and policies that regulate the time, place and manner for voting that treat everyone the same, regardless of race, “and impose only the ordinary burdens of voting,” the party posited, do not “implicate” Section 2 because they do not take away the right to vote.
Arguing that Arizona’s out-of-precinct policy is “consistently one of the most punishing in the nation” and that the ban on ballot harvesting “has never been anything other than a racially-charged tool to suppress minority votes,” the Democratic National Committee defends the 9th Circuit’s use of the results test. The test, the DNC contends, is widely used by most courts of appeals and is “firmly rooted” in both the text of Section 2 and the Supreme Court’s cases. By contrast, the DNC alleges, the defendants’ proposed test, by requiring the challengers to show that the law or practice at issue has directly caused the disproportionate effect on minority voters, is “overly narrow”: Even literacy tests would survive, the DNC warns, because the tests are not themselves the cause of the disproportionate effect on minorities.
At the first step of the results test, the DNC reasons, there is no minimum level at which a law or practice constitutes a burden on minority voters, because “any bright-line disparity requirement would be a moving target leaving voters unprotected against racially discriminatory laws if no sufficiently large number of other voters shared the same burden.” Instead, the DNC continues, the only question is “simply whether minority voters make up a disproportionate share of voters affected by the law.”
The court of appeals also used the correct formulation of the results test at step two, the DNC contends: It looked at all of the surrounding circumstances to determine whether a policy or law “‘results’ in ‘political processes’ that ‘are not equally open to participation’” by minority voters. Here, the DNC writes, the effects of discrimination – such as lower rates of home ownership and frequent moves – and the out-of-precinct policy combine to create discriminatory results. Similarly, the DNC adds, minorities are also more likely to have problems returning their early ballots because they lack access to regular mail service and are more likely to rely on public transportation, for example.
The 9th Circuit was also correct, the DNC continues, when it ruled that the ballot-harvesting ban was the product of intentional discrimination. When the state’s legislature enacted the ban, the DNC stresses, “demonstrably false and racially-motivated allegations peddled by influential actors tainted the whole process.”
Arizona Secretary of State Katie Hobbs, a Democrat, argues that the Supreme Court should not even consider the challenge to the out-of-precinct policy because, as the chief elections officer for the state, she concluded that there was no reason to maintain the policy and opted not to appeal the lower court’s decision. State law gives her, rather than the attorney general, that responsibility, Hobbs stresses. But in any event, Hobbs continues, the 9th Circuit’s decision was correct, and the defendants are suggesting “limits on Section 2 that have no basis in text, purpose, or precedent.”
Hobbs concedes that, as the defendants assert, most claims brought under Section 2 have involved allegations of vote dilution, rather than vote denial. But, she counters, that is because, until the court’s 2013 ruling in Shelby County v. Holder, the pre-approval requirements imposed by Section 5 of the Voting Rights Act would have prevented vote denial in areas covered by that requirement. Since 2013, however, Hobbs notes, plaintiffs bringing voting discrimination claims “have relied primarily on Section 2.”
Numerous advocacy groups and political officials from around the country have filed “friend of the court” briefs on both sides. Two briefs are particularly noteworthy.
Under the Trump administration, the federal government filed a brief in which it agreed with the defendants that the out-of-precinct policy and the ban on ballot harvesting should be allowed to stand. But the Trump administration argued for a different standard than the defendants — one that would require plaintiffs to show that the practice being challenged “causes voters of one race to have less ability to vote” – which, the Trump administration said, is not the case here. The Trump administration’s test also would require plaintiffs to demonstrate that the law or policy being challenged is responsible for the gap in ability to vote.
With two weeks remaining before the oral argument, the Biden administration could notify the justices that it has altered the federal government’s position in the case, as it did last week in the challenge to the Affordable Care Act. As in the ACA case, such a move would be largely symbolic, because the parties to the case have briefed both sides of the issues. And because the federal government has not asked the Supreme Court for permission to participate in the March 2 argument, it would not have to defend any change in its stance then.
[Update (Tuesday, Feb. 16, 8 p.m.): On Tuesday afternoon, the federal government informed the court that, after the change in administrations, the Department of Justice reconsidered the issues in the case. The department “does not disagree” with the federal government’s earlier stance that the out-of-precinct policy and the ban on ballot harvesting are legal, Deputy Solicitor General Edwin Kneedler explained in a letter. However, Kneedler continued, the department “does not adhere to the framework for application of Section 2 in vote-denial cases” laid out in the Trump administration’s brief. Because oral argument will take place soon, Kneedler added, the federal government will not ask for additional briefing.]
In a brief that did not support either side, the libertarian thinktank the Cato Institute tells the justices that the Arizona cases give them “an opportunity to make future elections cleaner and less litigious, with results that inspire greater public confidence” by providing “a clear framework by which lower courts are to evaluate” Section 2 claims. The 2020 presidential election, Cato observes, “has demonstrated the critical need to resolve such ambiguities not just for Arizona or for precinct-voting and ballot-harvesting rules, but for all voting-rights cases going forward.” The justices likely disagree among themselves about what a “clear framework” should look like, but memories of the 2020 election and its aftermath are almost certainly still fresh in their minds.
This article was originally published at Howe on the Court.