In the wake of the 2020 election, a wave of restrictive voting laws were enacted across the nation. And as the January 6th attack showcased the fragility of our democracy, voting rights are top of mind for many. This is why all eyes were on the Supreme Court as it took on Brnovich v. DNC: not only the most consequential election law dispute in nearly a decade (since the 2010 Citizens United decision) but the Court’s first “vote denial” case under Section 2 of the Voting Rights Act of 1965. Vote denial cases challenge laws that prohibit certain voting methods. Brnovich was not an exception. The case challenged Arizona’s policy of throwing out all ballots cast out-of-precinct and the criminalization of collecting and delivering another person’s ballot. Assessing these policies, the Court rejected the Ninth Circuit’s decision that struck down those laws as a violation of the VRA. I argue that the Ninth Circuit upheld the correct interpretation of Section 2’s “results test.”
Prior to the Brnovich decision, there was a circuit split surrounding Section 2’s results test. Section 2 states that no procedure shall result in a “denial or abridgement of the right of any citizen of the United States to vote on account of race,” by a “totality of circumstances” that the political process is not equally open to participation. Analyzing the statute, the majority of circuits apply a two-prong results test that assesses: (1) whether the law results in a disparate burden on members of a protected class and (2) whether there is a link between the law and other social and historical conditions. However, a minority of circuits apply a stricter results test that requires the challenged law or laws to actually cause the racial disparity seen. For example, under the minority interpretation, Arizona’s law would need to cause minority voters to vote out-of-precinct.
Previously, the Supreme Court has only ever applied, and thus interpreted, Section 2 to vote-dilution cases. Dilution claims are often levied against redistricting schemes or at-large voting systems that weaken minority voting power. The vote-dilution standard does not involve the same issue faced by vote-denial cases as the laws challenged in vote-dilution cases are the direct cause of the disparate burden. For example, in the landmark case Thornburg v. Gingles,the challenge was against North Carolina’s multimember district scheme. Here, the districting scheme was the clear cause of the vote dilution as the new districts dispersed African-American populations to weaken their collective voting power. However, in vote-denial cases such as Brnovich, it is more difficult to discern where the burden is coming from as the law itself is not directly causing it. While a small burden is acceptable—e.g., taking time to go to polling places, waiting in a short line, purchasing a stamp, etc.—when is the line crossed to essentially begin denying equal access to voting?
In Brnovich, the Ninth Circuit applied the test used by the majority of circuit courts, correctly noting that minority voters were experiencing a disparate burden by their overrepresentation among the number of voters casting the now illegal out-of-precinct ballots—specifically, that Hispanic, African-American, and Native American voters were twice as likely to vote out-of-precinct. With regard to the second law criminalizing the collection and delivery of another person’s ballot, Arizonans relied heavily on voting by mail even before the pandemic and thus many depend on collection services to return their ballots. Again, the Ninth Circuit found that minorities “generally were more likely than non-minorities to return their [ballots]” using third-party services. Anything more than de minimis discrimination, according to the Ninth Circuit, is too much discrimination and should be actionable to move the analysis to the second prong. Therefore, though it is unknown statistically how many more minority voters utilize third-party collection services, the denial of any vote due to discriminatory laws should be enough.
Next, in analyzing the social and historical conditions per the second prong of the results test, the Ninth Circuit utilized what are known as the “Senate Factors”. When implemented, the Senate Factors replaced the requirement for discriminatory intent, so defendants are not required to show that Arizona lawmakers intentionally discriminated against minority voters. These factors are used in Section 2 vote dilution cases, so judges are already well versed in applying the factors. The Ninth Circuit thus maintained consistency by applying the Senate Factors to determine a violation. The Supreme Court has already approved the Senate Factors as a workable “totality of the circumstance” test; it would seem strange to develop and implement new factors.
In applying the Senate Factors the Ninth Circuit found factor five—the effects of discrimination in other areas on minorities’ access to voting—and factor nine—the tenuousness of the justification for the challenged voting practices—to be particularly important. The district court found that discrimination in key areas of education, poverty and employment, homeownership, and health “hinder” minorities’ ability to effectively participate in the political process. Further, no pressing justification was found for either law.
Inconsistently, the Supreme Court devised a separate set of factors to guide lower courts—including if the voting rule serves a state interest or helps prevent voting fraud. This fails to take into consideration the generalized burden on minority voters, which is fundamental to determining whether challenged laws create less opportunity to participate in the electoral process. Justice Kagan shot multiple hypotheticals at the defendants outlining why it is necessary to contextualize the law. For example, in her first hypothetical, a law establishes one polling place per county. Although neutral on its face, because of this area’s demographics, African-American populations tend to live in densely populated counties, causing waits of several hours for a disproportionate number of African-American voters, while people in less populated counties may only wait, say, 15 minutes. These “race-neutral” laws that blatantly discriminate have been the calling card of the law for generations so if we genuinely want to change, we must stop repeating these mistakes. It is also worth noting, as stated in the oral argument by the defendant, that Arizona could simply justify the need for these regulations, thus it is suspicious that justification was not attempted for these laws.
This is not to suggest that the two-prong test is an easy test to apply. As with any totality of the circumstances test, lower courts can emphasize and devalue certain aspects more or less; however, to turn a blind eye to other areas of discrimination would violate the Senate Factors. If the Court had utilized the Senate Factors in Brnovich, as it did in Gingles,it could have better outlined how to discern a violation. How much discrimination in these other areas is enough to trigger a violation will always cause debate, but in this specific case it seems that discrimination within the socioeconomic conditions of the state is directly factoring into the disparity in voting patterns. For example, only 18% of Native American registered voters have access to home mail services it seems evident that criminalizing a mechanism to return their mail-in ballots would directly limit the opportunity for 82% of Arizona’s Native voters to participate without a higher burden.
Further, the test set out by the petitioners, which required that the law itself create the burden, was far too narrow. The defendant’s test would allow any race-neutral laws to continue to burden minority voters, including laws that require voters to undergo literacy tests. A literacy test likely does not directly discriminate under the petitioners’ test; rather, discrimination in access to education and other socioeconomic areas are the cause of lower literacy rates which then could lead to denial of the right to vote to a disproportionate amount of minority voters. Voting is the most consequential action citizens can take in our democracy and should be protected through more than narrow means. Additionally, this interpretation seems to ignore the text of the statute which calls for, at a minimum, a totality of the circumstances analysis. Plainly, this does not do enough to protect voters from thinly veiled discrimination and should not be the governing test.
I argue, in agreement with the majority of Circuit Courts, that the proper standard for Section 2 vote denial violations should be determined through the two-step results test. However, some Justices seem to disagree as Brnovich v. DNC reversed the Ninth Circuit six-to-three, down traditional ideological lines. The majority test wrongfully outlines a series of factors to guide lower courts, none of which are rooted in the text or history of the VRA. Further, the majority insists on giving leeway to states to regulate the electoral process. These are the same states that have denied voting rights for decades. As Justice Kagan in dissent asserted, the opinion “is mostly a law-free zone.” Regardless, the new attention to voting rights will hopefully prompt changes to the current system to stop discrimination and ease the difficulties many face when exercising their most basic democratic right.
Taylor Hoffman is a J.D. candidate (’22) at Northwestern University Pritzker School of Law and a Managing Editor of Volume 116 of the Northwestern University Law Review. She graduated from the University of Chicago in 2019.