The Supreme Court’s docket is lighter than usual this term, though it’s hard to blame the justices for it. After Ruth Bader Ginsburg’s death and Amy Coney Barrett’s confirmation, the pace of new cases slowed as the court revisited its ideological bounds. The pandemic and the presidential election kept the justices busy on the shadow docket, where decisions are made without oral arguments or full briefings. And the Trump-to-Biden switchover this spring has upended a few cases that had already been slated for consideration.
One of the remaining cases yet to be heard, however, may prove to be its most important of the term. In early March, the justices will hear oral arguments in a dispute over Arizona’s election laws. At issue is the scope of Section 2 of the Voting Rights Act, one of the two central pillars of the landmark 1965 statute. This court already has a reputation in this area of the law: It is not exactly known for an expansive vision of voting rights. In 2013, it gutted Section 5, the second pillar of the law, in its decision in Shelby County v. Holder. Now the court will consider just how protective the law’s other major provisions will be—just when the country needs them most.
The dispute springs from two consolidated cases, Brnovich v. Democratic National Committee and Arizona Republican Party v. Democratic National Committee. One of them involves a challenge to the state’s out-of-precinct policy, which throws out provisional ballots cast by voters in the wrong precinct. The other takes aim at a law passed by the Arizona legislature in 2016 that bans most third parties from submitting a voter’s absentee ballot on their behalf, a practice sometimes referred to as “ballot harvesting.”
Shortly after that law’s passage, the Democratic National Committee and others sued Arizona to block both the out-of-precinct policy and the ballot harvesting ban. The DNC argued that the state had violated Section 2 of the Voting Rights Act. Section 2 generally imposed a nationwide ban on racial discrimination in state and local election laws. A federal district court and a three-judge panel in the Ninth Circuit Court of Appeals initially sided with Arizona. But a larger Ninth Circuit panel overruled that panel’s decision, ruling that both of Arizona’s voting practices had violated Section 2.
How does a court determine when something violates Section 2? The Ninth Circuit super-panel used a two-part “results test” to weigh the effects of the law or policy in question. First, it analyzed whether the challenged provisions imposed a “disparate burden” on minority voters’ ability to elect the candidates of their choice. The court then considered whether there was “a legally significant relationship between the disparate burden on minority voters and the social and historical conditions affecting them.” If both factors are met, the challenged provision is struck down.
In both the lower courts and the Supreme Court, the DNC argued that Arizona’s out-of-precinct ban would lead to abnormal levels of disenfranchisement. “Arizona has consistently been an extreme outlier in rejecting out-of-precinct ballots, discarding eleven times as many out-of-precinct ballots than the next closest state,” the party told the Supreme Court in its brief, citing findings presented to the lower courts. “Between 2008 and 2016, Arizona discarded 38,335 out-of-precinct ballots in general elections—all cast by registered, eligible voters. Minority voters are vastly over-represented among those casting out-of-precinct ballots and twice as likely as whites to have their votes rejected as a result of the out-of-precinct policy.”
Ballot collection, for its part, is a frequent point of contention in recent election disputes. Throughout his bid to overturn the results of the last presidential election, Donald Trump and his allies frequently claimed that it was an invidious source of potential election fraud. The DNC told the court, however, that mail-in ballots in Arizona are already protected by a battery of other anti-tampering measures and can be tracked online by voters themselves. What’s more, the Democrats argued, the ban would be felt most heavily among rural Latino and Native American communities without access to regular mail services, as well as voters who live in disadvantaged neighborhoods without “secure outgoing mail.”
Arizona Attorney General Mark Brnovich, a Republican who represented the state in the litigation, disputed those conclusions. He told the Supreme Court that the out-of-precinct policy was race-neutral since it applied to all Arizona voters equally. On the ballot-collection disputes, he dismissed the Democrats’ claims as “anecdotal” and unsupported by statistical evidence, a point on which the district court had agreed when ruling on the matter years earlier. Brnovich urged the high court to clarify the Section 2 test requires “equality of opportunity” for voters to elect their preferred candidates, regardless of race. “In other words,” he wrote. “[Section 2] imposes on states an ‘equal-treatment requirement,’ not ‘an equal-outcome command.’”
In its own brief for the Supreme Court, the Arizona Republican Party also asked the justices to abandon the results test for being overly restrictive. They candidly acknowledged that their reading of the law would disproportionately favor one of America’s two political parties. “The Ninth Circuit’s approach would subject nearly all ordinary election rules to Section 2 challenge, and mandate court-ordered overhauls of state voting rules to achieve racial proportionality,” the party told the court. “A boon to one political party, to be sure, but a construction of the statute irreconcilable with its plain text—and one that would violate the Constitution.”
Largely siding with the DNC is Arizona Secretary of State Katie Hobbs, a Democrat who oversees the state’s election system. She told the Supreme Court that the other side’s reading of Section 2 would immunize a broad swath of state election laws from review under the VRA’s remaining provisions. “In a radical departure from the status quo, [Brnovich and the RNC] argue that Section 2’s results test should not even apply to supposedly facially race-neutral policies or practices like those at issue here, regardless of their actual impact on minority voters,” she told the court. “That position finds no support in the text, structure, or purpose of the statute.” Hobbs also argued that her office, and not Brnovich, had legal standing to defend the out-of-precinct policy.
It’s hard to be optimistic that the Supreme Court will deliver a substantive ruling in favor of voting rights and the VRA. Until 2013, Section 5 of the VRA required Arizona and other states with long histories of racial discrimination to submit changes to their election laws to the federal government for review to ensure they wouldn’t have a racially disproportionate effect. That process, a core voter protection known as “preclearance,” came to an end after the Supreme Court’s conservative majority struck down the formula that had been used to determine which states were subject to this additional scrutiny in their Shelby County decision. While the court’s majority concluded that the country had “changed” since the civil-rights era, Ginsburg famously compared the majority’s ruling to “throwing away your umbrella in a rainstorm because you are not getting wet.”
Ginsburg’s understanding of American society turned out to be more accurate. The 2013 ruling led to a sharp uptick in laws and policies that would make it harder for voters to cast a ballot, especially if they came from minority communities. In states formerly covered by preclearance, state and local officials closed more than 1,200 polling places in the first six years after the ruling. And while preclearance did not cover every Republican-led state that raised new barriers to voter access over the past decade, the Roberts Court’s relaxed approach to voting-rights enforcement in general emboldened state lawmakers to pursue more aggressive measures.
Indeed, the reason Section 2 of the Voting Rights Act has suddenly become so consequential is, in part, related to the Supreme Court’s gutting of Section 5 back in 2013. “Since this Court struck down the preclearance formula in Shelby County, Section 2 has become the principal bulwark against policies and practices that disenfranchise minority voters,” Hobbs told the court. “But Section 2 claims are expensive to litigate, place the burden of proof on plaintiffs, and generally cannot stop laws prior to implementation. So it is unsurprising that pre-Shelby County, Section 5 was plaintiffs’ primary tool for combating vote denial.” Section 2 is nowhere near as strong as Section 5 once was, of course, but it’s certainly better than nothing.
How the Supreme Court handles this case could influence the future of voting rights in other ways. Over the past two years, Democrats in Congress have advanced the For the People Act, a legislative package that includes a sweeping number of voting-rights reforms, including automatic voter registration, expanded access to absentee ballots, and greater protections against malicious purges of the voter rolls. It would even make Election Day a federal holiday. If the Supreme Court moves decisively to narrow Section 2’s impact this summer, it may end up fueling the most sweeping reform of American election laws since, well, the Voting Rights Act of 1965.
