By Richard Hasen
on February 22, 2021
at 8:41 am
This article is part of a symposium on the upcoming dispute between Brnovich and the Democratic National Committee. You can find our case preview here.
Richard L. Hasen is Professor of Law and Political Science at the University of California’s Irvine School of Law and founder of the Election Law Blog. Most recently, he was the author of Election Meltdown: Dirty Tricks, Suspicion, and the Threat to American Democracy.
Brnovich v Democratic National Committee is a strange case of voting rights. Instead of the typical case where a minority constituency sues a state or locality for electoral discrimination, the two major political parties compete against each other and Republican officials in Arizona against Democratic officials. Amicus pleadings from constituencies filed in Brnovich show great concern about compliance with Section 2 of the Voting Rights Act as a tool to combat discriminatory voting rights laws. This will be difficult in front of a new conservative super-major on the Supreme Court.
With the 2013 Shelby County Supreme Court effectively killing Holder Section 5 of the Voting Rights Act, Section 2 remains one of the most powerful voting instruments in the United States. Section 5 targeted jurisdictions with a history of racial discrimination in voting and asked them to seek federal approval before making changes to voting laws. This preliminary clarification required the jurisdictions to demonstrate that their proposed changes would not put minority voters at a disadvantage. In Section 2 in the 1982 version, another standard is used that applies nationally. It burdens voters to show that a law prevents protected minority voters from participating equally 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 context of redistribution thanks to a 1986 Supreme Court case, Thornburg v Gingles. This decision introduced a three-part threshold test that focused on the existence of racially polarized votes in a jurisdiction, followed by a “set of circumstances” test to assess when a redistribution plan denies fair representation to minority voters.
In recent years, proxies have increasingly used Section 2 to attack not only the “vote dilution” that results from redistribution, but also the “vote refusal” that results from laws that make registration and voting difficult. The opaque language of Section 2 has led the lower courts to devise various tests to examine voting rights under Section 2, and the proxy holders have had mixed successes so far. For example, the U.S. 5th Circuit Court of Appeals ruled that a strict voter identification act in Texas violated Section 2, but the same court that upheld a Section 2 challenged a slightly revised version of the bill several years later .
In general, proxy attorneys were reluctant to aggressively promote the use of Section 2, likely worried that the increasingly conservative panel would weaken Section 2’s protection or even consider aspects of it unconstitutional if a case were brought to the Supreme Court. The Democratic Party did not seem so concerned, and in Brnovich the party is challenging two Arizona policies that are far from the most egregious violations of voting rights. A policy prevents Arizona officials from counting votes if voters accidentally cast them in the wrong district. The other groups of third parties are not allowed to collect postal ballot papers (a practice pejoratively referred to as “ballot picking”).
The aggressiveness of the Democratic Party in using Section 2 in this case, and the deeply divided U.S. Court of Appeals for the Democratic-side 9th circuit decision, have given the State Republican Party, its Republican Attorney General, and the Trump administration an opportunity (who filed an amicus letter on behalf of the United States before Donald Trump left office) to suggest various ways to read Section 2, which is very stingy for voting rejection claims. Ranging from a United States proposed expanded requirement of “immediate causation” to a spin-off of Section 2 for laws that affect the “qualifications” of voters or the “time, place and manner” restrictions for the Voting, the Republican filings seek ways to evade Section 2 of all of its powers to be used in connection with the rejection of votes.
No wonder, then, that the brief filed by the Arizona Democratic Secretary of State contains arguments that part of the case will be dismissed on constant grounds and the stingy Section 2 tests proposed by the Republicans. A group of prominent electoral scholars filed a brief motion to dismiss the petition as improvised, maintaining the lower court’s opinion with no new law. Voting Rights Amicus Briefs advocate maintaining a meaningful Section 2 test for rejecting votes and spending little time defending the 9th Circle’s decision that these particular Arizona laws violate Section 2. Even the Biden government does not do so in a new letter to the court defending the result of the 9th circle; It is just trying to distance itself from the Trump administration’s stingy test of refusal to vote under the voting rights law.
It is extremely unfortunate that the first Section 2 refusal to vote comes as partisan struggle before the Supreme Court, as judges’ attention is less on the cost of restrictive electoral laws for minority voters and more on how the parties fight for the right to vote Rules for Partisan Gaining. Section 2 has done important work to contain some of the worst forms of voter resistance in recent years, and it would be a tremendous shame if this overreach of a case were to serve as a means to eradicate what remains of the crown jewel of the US civil rights movement.