Wednesday Writs: Voting Rights in Brnovich v Democratic National Committee

Voting rights protesters outside the United States Supreme Court. Photo by Slowking4, GFDL 1.2 <http://www.gnu.org/licenses/old-licenses/fdl-1.2.html>, via Wikimedia Commons

As the Supreme Court wound up its busy opinion season last week, releasing two highly anticipated opinions on Thursday. The scuttle around these cases didn’t last long, eclipsed by the news that Bill Cosby was back on the loose. Never fear; Em Carpenter is here to give you a quick rundown. On one of them, anyway.

First was Brnovich v. Democratic National Committee, this term’s so-called “voting rights case”. Seniority practices and protocol regarding the order in which opinions by each justice are released pointed to Brnovich being written by either Chief Justice Roberts or Justice Alito. It turned out to be the latter, with the chief taking on Americans for Prosperity Foundation v. Bonta, the case concerning the anonymity of donors to non-profits in California. Both cases involve hot-button political issues, and the Court delivered 6-3 party line opinions on both — 2 of only 10 such ideologically divided opinions this term. Let’s discuss Brnovich.

In Brnovich, the DNC challenged a new Arizona statute that imposed 2 restrictions on the time, manner, and place of voting: 1) votes cast in the wrong precinct would not be counted; and 2) no ballots may be collected by a third party other than a postal worker, election official, family or household member/caregiver, an anti “ballot harvesting” provision. The DNC alleged that these restrictions violated §2 of the Voting Rights Act (VRA).

The VRA is of course the federal statute enacted in 1965 to address the disenfranchisement of racial minorities, particularly African Americans in the south and “Jim Crow” laws. The original text of §2 read as follows:

(a) No voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color.

Alito wrote for the majority, joined by his 5 conservative brethren/sister. He gives a history of the VRA, from its passage in 1965 to its modern iteration. In 1976, the Court held in White v. Regester, a case involving voting districts, that a vote dilution claimant must prove that “the political processes leading to nomination and election were not equally open to participation by the group in question— that its members had less opportunity than did other residents in the district to participate in the political processes and to elect legislators of their choice.” But Alito points out that another 1976 case (published after White), Washington v Davis, held that an equal protection challenge to a “facially neutral” law requires proof that the intent of the law was discriminatory, a question that the White case did not address.

Washington would be applied to §2 in 1980 in Mobile v Bolden, which required a plaintiff to prove that a law challenged under §2 was motivated by a discriminatory purpose. In response, Congress amended the VRA, specifically stating their intent to contradict Mobile. The new statute read:

No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color…

The bolded language negated the requirement of discriminatory intent; it was enough to violate the Act if there was a discriminatory impact. A section (b) was also added:

(b) A violation of subsection (a) is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice…

Alito quotes the interpretation of the amended statute set forth by Justice Brennan in 1986’s Thornburg v. Gingles: “‘The essence of a §2 claim,’ the Court said, ‘is that a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities’ of minority and non-minority voters to elect their preferred representatives.”

The Court is asked in the Brnovich case to determine whether Arizona’s new laws violate §2. The lower court had decided they did not, finding no “meaningful” impact on minority voters, citing the mere 0.15% of ballots thrown out under the provisions in 2016, while acknowledging that minority voters made up a larger chunk of that 0.15%. The District Court further conceded that there were in some cases “partisan interests” behind the passage of the law, but would not equate partisan interest with racially discriminatory motivation.

The Ninth Circuit sitting en banc (meaning the entire court heard the case, rather than a panel of judges) reversed the District Court’s decision, finding a disparate impact on minorities did exist as a result of the restrictions. The Circuit Court applied factors set forth by Justice Brennan in Gingles in its analysis, as well as a review of the history of racial discrimination in Arizona and current “socioeconomic disparities, racially polarized voting, and racial campaign appeals.” The Court also pointed to the District Court’s finding of lack of discriminatory intent, finding their reliance on such clearly erroneous (for reasons set forth above.) The Supreme Court granted the Arizona Attorney General’s appeal.

At the outset of analysis Alito states that the Court does not intend to set forth a test for analyzing rules of “time, manner, and place” under §2 but rather present “guideposts.” He turns to paragraph (b), quoted above, as containing all the information needed to analyze a law’s compliance with §2 of the VRA. Alito focuses on the phrase “equally open”, and defines open as “without restrictions as to who may participate”. He further parses the language and concludes that “equally open” is synonymous with equal opportunity:

Thus, equal openness and equal opportunity are not separate requirements. Instead, equal opportunity helps to explain the meaning of equal openness. And the term “opportunity”
means, among other things, “a combination of circumstances, time, and place suitable or favorable for a particular activity or action.” … Putting these terms together, it appears that the core of §2(b) is the requirement that voting be “equally open.” The statute’s reference to equal “opportunity” may stretch that concept to some degree to include consideration of a person’s ability to use the means that are equally open. But equal openness remains the touchstone.

This is an important distinction — or rather, an important conclusion that there is no distinction, because while voting may be open to all adult citizens, opponents of the Arizona law argue that minorities in the state do not have the same opportunity to participate, due to increased “obstacles and burdens” that non-minorities are less likely to face. The Court does not agree, dismissing the burdens asserted by the petitioners as “inconveniences” we all face. “After all, every voting rule imposes a burden of some sort.
Voting takes time and, for almost everyone, some travel, even if only to a nearby mailbox.”¹ The size of the burden is guidepost #1.

Secondly, a paragraph (b) analysis should ponder how much a proposed voting law differs from “standard practice” when the paragraph was added. Alito points out that when paragraph (b) was added back in 1982, nearly all voters were required to vote in person, at their assigned polling place, on election day. Thus, Alito reasons, Congress could not have intended the Act to prohibit those requirements, which are stricter than what Arizona has opposed.

Third, the size of the alleged disparate impact should be taken into account. Alito acknowledges disparities exist: “To the extent that minority and non-minority groups differ with respect to employment, wealth, and education, even neutral regulations, no matter how crafted, may well result in some predictable disparities in rates of voting and noncompliance with voting rules.” However, he finds that these disadvantages are not impactful or widespread enough to trigger a violation of the VRA.

Next the Court notes that analysis of the burdens presented by one method of voting should not occur without consideration of the other available methods. In other words, while one method may prove undoable for a person, there is no disparate impact if another method exists which does not present obstacles.

Lastly, Alito lists the strength of the state’s interest as a factor in balancing whether a rule goes too far. An interest like, say, preventing election fraud which can effect the outcome of close elections. (He’s just spitballin’ here, not referring to anything in particular, I’m certain.)

Alito notes that in his view, Arizona has done its due diligence to enable those who want to vote to do so. Precinct information is readily available, and changes are mailed to affected voters. In addition, each registered voter receives a sample ballot mailed to their home address which includes their polling place location, information also available online and in a pamphlet that is mailed out. Poll workers are trained to direct wayward voters to their proper poll. In other words, finding one’s correct place of voting is not difficult with a smidge of effort. Furthermore, a voter can ask to be placed on the “permanent early voter list” and receive a ballot at their home address each year. An early ballot can be dropped off at any polling place, without regard to where a person would be required to vote in person. Early voting lasts for a month prior to Election Day, giving voters ample time to get to the polls if that is their preference, in Alito’s opinion.

Addressing the evidence of the impact on minorities, Alito notes that among Indians, Hispanics, and African Americans, around 1% of each cast an out-of-precinct vote in 2016 (and around .5% of non-minority voters, which means, as the 9th Circuit pointed out, minority voters voted out-of-precinct at double the rate of non-minority voters.) “A policy that appears to work for 98% or more of voters to whom it applies—minority and non-minority alike—is unlikely to render a system unequally open,” writes Alito.

With regard to the anti “ballot harvesting” provision, Alito noted that the evidence presented showed that the practice was most prevalent in minority-heavy areas. There was no evidence presented to show that without the collection of ballots in this manner these voters would not otherwise be able to submit their votes. But he goes on to write that it would not have mattered if they had; the state’s “strong interest” would prevail, because “[L]imiting the classes of persons who may handle early ballots to those less likely to have ulterior motives deters potential fraud and improves voter confidence.” For this premise he cites the 2005 findings of the Commission on Federal Election Reform, co-chaired by Jimmy Carter and James Baker, which recommended limiting the class of persons permitted to collect absentee ballots to family members, the postal service, or election officials to prevent fraud or undue influence.

Finally, Alito addresses the allegation that the Arizona law was enacted with discriminatory intent, and finds that it was not. While he acknowledged the iffy beginnings of the law which included a “racially tinged” video and the baseless claims of election fraud by Republican former state senator Don Shooter, the ensuing legislative debate was “sincere” and not motivated by race. Partisanship, perhaps, but not race.

The 3 liberal justices joined in a dissent penned by Justice Kagan in which she decried the majority’s perceived neutering of paragraph (b), declaring that the majority has “rewritten — in order to weaken—a statute that stands as a monument to America’s greatness, and protects against its basest impulses.” After an eloquent lesson on the history of the 15th amendment, and impetus for and effects of the VRA, Kagan criticizes the majority for what she views as an overly narrow interpretation of paragraph (b). Kagan believes the statute is intended to prohibit any rule that makes it harder for minorities to vote than it does for whites, whether it is intentional or not.

My take, for what it’s worth: these two provisions in Arizona are not particularly onerous and I am not sure this was a great case to push to this point. Now these fairly innocuous voting rules have birthed a set of “guideposts” that permit great latitude in crafting other, more restrictive and egregious rules. The best conjecture on disenfranchisement based on Arizona’s changes are so small as to make the Court’s decision seem reasonable. But what percentage of tossed out ballots must be cast by minorities before the impact is enough to trigger a violation? How big must an “inconvenience” be before it becomes an unreasonable burden? The Court does not say, but I fear the bounds will be tested.

1. While I don’t necessarily disagree with the Court’s decision, I can’t help recalling here the famous quote of Anatole France: “The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal loaves of bread.”