Mark Brnovich v. Democratic National Committee
A rare "partisan" decision on voting rights caps off the 2021 summer Supreme Court term
On Thursday, 1 July, the Supreme Court handed down a long-awaited decision in Brnovich v. DNC. The dispute revolved around the Voting Rights Act of 1965 and its applicability to certain restrictions utilized by Arizona to ensure ballot integrity. This article will hope to explain the arguments presented by both sides and the ramifications of the ruling going forward.
Voting in Arizona
When it comes to access to the ballot box in Arizona, the history is mixed. Until the late 1960s, Arizona had a legal environment that made it nearly impossible for Latinos and Native Americans to vote. Therefore, it was placed under preclearance until the Shelby ruling in 2013. However, from the 1970s onwards, Arizona did implement changes to make it easier to vote for all Arizonans, including minorities. As Justice Alito noted in his decision:
“Arizona law generally makes it very easy to vote. Voters may cast their ballots on election day in person at a traditional precinct or a “voting center” in their county of residence. Arizonans also may cast an “early ballot” by mail up to 27 days before an election, and they also may vote in person at an early voting location in each county.”
- Justice Samuel Alito, Brnovich v. DNC
However, in the aftermath of Shelby County v. Holder, the Republicans in Arizona legislature passed H.B. 2023, claiming a need to clamp down on potential voter fraud. Among other items, it regulated two important issues:
Ballot Collection: H.B. 2023 outlawed ballot collection, often dubbed “ballot harvesting” by its critics. This is the practice of allowing third parties, such as churches, unions, non-profits, etc., to deliver votes from voters to state election officials. Proponents claim this allows for communities who are underserved by the state to still have a way to vote. However, opponents are concerned about the potential for fraud, considering that the third parties involved in collecting these ballots may have an incentive to favor one political party over the other. In addition, there is a concern that these ballot collectors could intimidate voters into handing in ballots with votes for the collectors’ preferred candidates. Except for family members and caregivers, handing in another person’s ballot is illegal in the state of Arizona, which implies that most people must hand in (or mail) their own vote directly to the state.
Voting Location: H.B 2023 requires those who choose to vote in-person to vote in the precinct that they live in. In other words, someone from Scottsdale cannot vote in Pheonix, Mesa, Flagstaff, or Tucson.
This law is enforced by the Attorney General of Arizona, currently Republican Mark Brnovich. While the Secretary of State, Democrat Katie Hobbs, also has a role in enforcement, her powers have been recently weakened.
Democrats sue Arizona and Brnovich
H.B. 2023 was criticized by Democrats, even in the early stages of its development. They argued that there was no evidence to suggest that systemic voter fraud existed in Arizona. Furthermore, and more importantly, the Democrats alleged that this law could have racist implications.
The Democratic Party was concerned that the ballot collection laws were designed to prevent Hispanics and Native Americans, two heavily Democratic-leaning communities, from voting. They claimed that, since there are few ballot collection places in minority-heavy counties, ballot-collecting is a major way minorities could get their vote despite the lack of official voting centers. The DNC, therefore, viewed the ban on ballot collecting as having racist outcomes and intent, and therefore, in violation of Section 2 of the VRA.
In addition, the out-of-precinct voting ban was also challenged as having racist intentions. Democrats alleged that service workers, who are disproportionally Latino, would face difficulty voting as many do not work in the same precinct they live. This would result in these workers not being able to take a break on the job to vote; service workers would need to vote before or after their commute. The Democrats, therefore, also viewed the out-of-precinct voting ban in violation of Section 2 of the VRA.
Because of these two perceived violations, the Democratic National Committee took Mark Brnovich to federal court, specifically in the Ninth Federal Circuit, which covers the west coast.
Lower Courts
The first stop was the Federal District Court of Arizona, the subdivision of the Ninth District which covered the state. That court ruled that the two challenged provisions were not in violation of the VRA and sided with Brnovich and Arizona. Their justification was that the relatively lax provisions regarding early voting allowed for plenty of time for people to plan how they would vote. Given this, the two provisions did not present a serious obstacle to minorities who sought to vote. This ruling was also upheld by a three-justice sub-panel of the Ninth Circuit on appeal.
However, the other eight justices who made up the 11-justice team that manages the Ninth Circuit decided to re-hear the case en banc (that is, with all 11 presiding). This led to the reversal of the sub-panel ruling in a 7-4 vote. The judgment decreed that the law specifically targeted voting methods utilized predominantly by minorities. Given Arizona’s troubled history with racist voting restrictions, combined with a Democratic “Get Out The Vote” strategy heavily dependent on ballot collection, the en banc panel viewed H.B. 2023 as clearly intending to discriminate against Hispanic and Native-American voters. They also said that it seemed unnecessary for Arizona to pass another voter-fraud law, given its strict existing penalties and the relative non-existence of fraud in the state.
AG Brnovich appealed, and the Supreme Court agreed to hear the case.
The Opinions of the Supreme Court
After much anticipation, the court handed down its ruling on July 1, 2021. In an unusual occurrence for this year, the court broke down on “partisan” lines, with the six Republican-appointed justices siding with Brnovich and the three Democratic-appointed justices siding with the DNC.
Justice Samuel Alito wrote for the majority. He dismissed the claim that Arizona did not need to combat voter fraud, even if there was little evidence of it happening. Rather, he used certain precedents to establish that states have a permanent right to do everything within their abilities to combat electoral fraud, regardless of its actual occurrence. Alito also stated that fraud isn't the only concern when it comes to banning ballot collection; issues considering voter intimidation by third parties also have to be considered.
Alito further ruled that having to vote in the precinct of residence doesn’t constitute an unfair burden, considering the 27-day period to cast an early vote. While acknowledging how H.B. 2023 could disproportionally affect minorities, Alito also said that it did not seem that the disproportionality was enough to override the interest in protecting election integrity.
Finally, and probably most importantly, Alito ruled that previous precedent that gave Section 2 wide-reaching powers could not be utilized in cases regarding voter integrity legislation because they mainly relate to stopping minority dilution in VRA districts. In other words, Section 2 legal precedent had now been split into cases regarding voter dilution and voting prevention.
Elena Kagan wrote a dissent, joined by her two “liberal” compatriots. She said that the majority failed to consider the possibility of racist voting laws still existing today. Therefore, the right of the state to secure their election could not trump protecting minority access to the ballot box.
The Ramifications of the Ruling
Reaction to the ruling was swift; the GOP celebrated it as a "resounding victory for election integrity" to use Chairwoman Ronna McDaniels’s words. On the other hand, President Joe Biden declared,
"In a span of just eight years, the Court has now done severe damage to two of the most important provisions of the Voting Rights Act of 1965 -- a law that took years of struggle and strife to secure.”
-Joe Biden, 46th President of the United States
The most immediate question is how this ruling will affect recently issued lawsuits by the Department of Justice (DOJ) against voting-integrity laws in Georgia. In response to new voter-integrity legislation passed in the Peach State, Biden’s DOJ sued them, accusing them of violation Section 2 of the VRA.
Unless the laws in Georgia can be shown to have a dramatically more disproportionate effect than Arizona’s H.B. 2023, it is unclear how the DOJ expects to win its case, especially since they have been cut off from a lot of the previous precedent that would have helped them.
In addition, this adds more fuel to the fire in Congress on the issue of voting rights. While the For The People Act, also known as H.R. 1/S. 1, seems to have stagnated in the Senate, the Democrats have not given up yet on updating preclearance measures. This ruling may give them cause to pause and tweak their bills to strengthen Section 2’s powers as well.
Also, Mark Brnovich is not some insignificant politician; he is considered one of the front runners for the Republican nomination in 2022 to challenge incumbent Democrat Senator Mark Kelly. Before this suit, Brnovich had been called out by Donald Trump for criticizing the ongoing Arizona election audits, which have been viewed as partisan wish-casting by extremist GOP state senators rather than a serious, forensic investigation. However, many wonder if this legal victory will allow Brnovich to regain the “tough-on-electoral-fraud” line and get in Trump’s good graces. If it works out that way, Brnovich may be the strongest candidate the GOP has to offer.
The Last Word (where I do a bit of theorizing)
The issue of voting rights and voting integrity presents, arguably, the biggest challenge to the nine-justice Supreme Court right now. Contrary to the expectations of a consistent 6-3 partisan split, there have usually been three groupings of the justices throughout the most recent term, which provide for interesting and cross-ideological coalitions.
Textualist Conservatives, such as Clarence Thomas, Samuel Alito, and Neil Gorsuch, tend to utilize textualism and originalism almost exclusively. These three are extremely focused on what the literal text of the law says and are often less concerned regarding the context of the case. They see themselves as impartial referees who look at what the law says and then hand down a ruling. This grouping formes the most conservative grouping on the court, though Gorsuch often will utilize interesting interpretations of the text to reach unconventional decisions.
Liberals, such as Elena Kagan, Sonia Sotomayor, and Stephen Breyer, tend to shun originalism to focus on the context. They believe that Supreme Court decisions are supposed to benefit the most underrepresented communities in the country. They are often willing to stretch the words of laws to achieve what they see as more just aims. They see themselves as people who balance the judicial playing field, who try to help those who have been disadvantaged in the American legal sphere.
Institutional Conservatives fall between these two groups on the ideological spectrum and are a relatively new phenomenon. The three justices who fall into this group are Brett Kavanaugh, Amy Coney Barett, and the Chief Justice himself, John Roberts. While he is not at liberty to say this explicitly, Chief Justice Roberts and all other eight justices are acutely aware of the risk of dilution of the legitimacy of the Supreme Court that may be caused by the legislature adding more justices to the slate. Democrats have been vocal about their disappointment at facing a 6-3 Republican-appointed majority on the Supreme Court, especially because of the perceived unfairness of the process that led to the confirmation of a few of the recent justices. I believe that not being in lockstep on a set of 6-3 judgments, Justices Roberts, Barett, and Kavanaugh are hoping to prove Justice Breyer’s statement
“[Judges] are loyal to the rule of law, not to the political party that helped to secure their appointment
- Stephen Breyer, Justice on the US Supreme Court
to be true, even in the polarized political climate of today. Roberts, alongside Kavanaugh and Barrett, have not been afraid to break with their more textualist allies and join with the liberals this term (as seen by the majority in California v. Texas, the case about the Affordable Care Act).
However, historically, Republican-appointed justices seem to reliably band together on one specific issue: voting rights. Given the possibility of continued 6-3 rulings on this issue, I believe that Chief Justice Roberts will try to sidestep this contentious matter by taking up only the most pressing and important cases. In reality, Brnovich v. DNC was a relatively moderate ruling; some court watchers on the conservative side hoped that Section 2 would be ruled unconstitutional in its entirety, which it was not. Therefore don’t be surprised if, just as the battle over voting rights warms up more, the Supreme Court gets very selective on which cases it chooses to hear on this topic. Chief Justice Roberts has built up capital on both sides of the aisle over the years, and this capital is simply too precious for him to dissipate over any one issue.
Excellent analysis - deep, well-researched yet easy to follow, without the biased rhetoric of partisan political posts. Well done!