[19-1257] Brnovich v. Democratic National Committee

Brnovich v. Democratic National Committee

Wikipedia · Justia (with opinion) · Docket · oyez.org

Argued on Mar 2, 2021.
Decided on Jul 2, 2021.

Petitioner: Mark Brnovich, Attorney General of Arizona, et al..
Respondent: Democratic National Committee, et al..

Advocates:

• Michael A. Carvin (for the Petitioners in No. 19-1258 (Arizona Republican Party, et al.))
• Mark Brnovich (for the Petitioners in No. 19-1257 (Mark Brnovich, Attorney General of Arizona, et al.))
• Jessica R. Amunson (for Respondent Secretary Hobbs)
• Bruce V. Spiva (for Respondents Democratic National Committee, et al.)

Facts of the case (from oyez.org)

Arizona offers two methods of voting: (1) in-person voting at a precinct or vote center either on election day or during an early-vote period, or (2) “early voting” whereby the voter receives the ballot by mail and either mails back the voted ballot or delivers the ballot to a designated drop-off location.

Arizona law permits each county to choose a vote center or a precinct-based system for in-person voting. In counties using the vote-center system, registered voters may vote at any polling location in the county. In counties using the precinct-based system, registered voters may vote only at the designated polling place in their precinct. About 90% of Arizona’s population lives in counties using the precinct-based system. If a voter arrives at a polling place and is not listed on the voter rolls for that precinct, the voter may cast a provisional ballot. After election day, election officials review all provisional ballots to determine the voter’s identity and address. If officials determine the voter voted out of precinct (OOP), the county discards the ballot in its entirety, even if (as is the case in most instances), the OOP voter properly voted (i.e., was eligible to vote) in most of the races on the ballot. The Democratic National Committee challenged this OOP policy as violating Section 2 of the Voting Rights Act because it adversely and disparately affects Arizona’s Native American, Hispanic, and African American citizens.

Arizona law has permitted early voting for over 25 years, allowing voters to request an early vote-by-mail ballot either on a per-election basis or on a permanent basis. Some counties permit voters to drop their early ballots in special drop boxes, but all counties permit the return of early ballots by mail, or in person at a polling place, vote center, or authorized election official’s office. Many voters (particularly minorities) who vote early use third parties to collect and drop off voted ballots, which, until 2016, was permissible. Despite “no evidence of any fraud in the long history of third-party ballot collection in Arizona,” Republican legislators in 2016 passed H.B. 2023, which criminalized the collection and delivery of another person’s ballot. The DNC challenged H.B. 2023 as violating Section 2 of the Voting Rights Act and the Fifteenth Amendment because it was enacted with discriminatory intent.

After a ten-day bench trial, the district court found in favor of Arizona on all claims. The DNC appealed, and a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit affirmed. A majority of the full Ninth Circuit agreed to rehear the case en banc, and the court reversed, finding the district court “clearly erred.”

Question

1. Does Arizona’s out-of-precinct policy violate Section 2 of the Voting Rights Act?

2. Does Arizona’s H.B. 2023 violate Section 2 of the Voting Rights Act or the Fifteenth Amendment?

Conclusion

Neither Arizona’s out-of-precinct policy nor H.B. 2023 violates Section 2 of the Voting Rights Act (VRA), and H.B. 2023 was not enacted with a racially discriminatory purpose. Justice Samuel Alito wrote the 6-3 majority opinion of the Court.

As a threshold matter, the petitioner, Arizona Attorney General Brnovich, has standing to appeal the decision below because he is an authorized representative of the state. Additionally, the Court declined to establish a test to govern all VRA § 2 challenges; its decision applies only to the facts of the cases below.

This is the first time the Court has considered how Section 2 of the VRA applies to time, place, or manner voting rules. The text of that provision prohibits a state from abridging the right to vote on account of race or color. Although the statute requires equal openness and equal opportunity to vote, they are not separate requirements; equal openness is the “core.” This openness is assessed using the “totality of the circumstances.”

Neither Arizona’s out-of-precinct policy nor H.B. 2023, the ballot-collection law, violates Section 2 of the VRA. Neither imposes burdens on voters that exceed the “usual burdens of voting,” and any racial disparity in burdens is “small in absolute terms.” The state has legitimate and important interests in ensuring even distribution of voters among polling places and preserving the integrity of election procedures. Finally, the Court accepted the district court’s finding that H.B. 2023 was not enacted with a discriminatory purpose.

Justice Neil Gorsuch concurred with the majority opinion in full but wrote a concurring opinion, which Justice Clarence Thomas joined, to note that the parties did not raise the question (and therefore the Court did not decide) whether the VRA provides an implied cause of action under Section 2.

Justice Elena Kagan wrote a dissenting opinion, joined by Justices Stephen Breyer and Sonia Sotomayor. Justice Kagan argued that the majority’s decision narrowly reads the language of Section 2 of the VRA in a way that undermines its essential purpose to guarantee that members of every racial group have equal voting opportunities.