By: Mike Arnone
In July, the Supreme Court handed down its decision in Brnovich v. DNC, arguably its most significant voting rights decision since Shelby County v. Holder in 2013. Two Arizona election restrictions were at issue in Brnovich, but the Court’s holding will have far-reaching consequences beyond the Grand Canyon State.
The restrictions at the heart of Brnovich prohibited out-of-precinct ballots from being counted and criminalized the collection of ballots for delivery to polling places, a common practice sometimes called “ballot harvesting.” In a 6-3 majority opinion written by Justice Alito, the Court upheld both provisions under Section Two of the Voting Rights Act of 1965 (VRA). The majority ruled that Section Two of the VRA could only be used to invalidate voting restrictions that place “substantial and disproportionate burdens on minority voters.” Because Arizona provided multiple ways to vote, “any burden associated with one option cannot be evaluated without also taking into account the other available means.” Burdens on voting, then, must be evaluated by the totality of the circumstances.
Alito provided several “guideposts” for lower courts to use in evaluating similar Section Two claims, including: (1) the size of the burden; (2) the degree to which a voting rule departs from standard practice when the VRA was last amended in 1982; (3) the size of a rule’s impact on members of various racial and ethnic groups; (4) opportunities provided by a state’s entire system of voting compared to the asserted burden; and (5) the strength of the state’s interest served by a challenged voting rule.
While it is likely the effects of Brnovich will not be fully felt in Arizona until the 2022 midterm elections, it does not bode well for minority voters in the state. As Justice Kagan noted in her Brnovich dissent, African American, Hispanic, and Native American voters were more than two times more likely than White voters to have their ballots discarded in 2016 because they were cast in the wrong precinct. Furthermore, rural voters, especially Native Americans living on remote reservations, stand to be disproportionately affected by criminalization of ballot harvesting.
As troubling as these consequences are for minority voters in Arizona, Brnovich’s consequences are not confined to Arizona alone. The majority’s standard suggests that it is unlikely to overturn many Republican-passed measures to limit voting access since the 2020 election. As long as a state provides alternative ways of voting—no matter how practical those may be for certain communities—it seems likely they a restriction will pass muster under Brnovich.
Furthermore, Alito’s “guideposts” make it much more difficult for plaintiffs to challenge voting restrictions. A law cannot likely be challenged if it imposes the “usual burdens” on voting, conforms to standard practice in 1982, imposes only small disparities on minority voters, or is offset by other voting opportunities. Finally, a state need only demonstrate a compelling government interest—namely, preventing voter fraud, no matter how infrequent—to justify imposing a burden on voting. Taken together, these factors make it much more difficult for plaintiffs to use the VRA to invalidate voting restrictions.
Brnovich may have its roots in Arizona, and its holding certainly portends dramatic consequences for minority voters there, but it will have sweeping effects on voting access across the United States. Under this new regime, it is simultaneously easier to enact a restriction on voting and harder to successfully challenge it. The VRA is arguably weaker now than at any point since its passage—to the detriment of minority voters in all 50 states.