The Supreme Court heard arguments last week in two consolidated cases that raise the specter of a hollowed-out Voting Rights Act and the prospect of efforts in some states to raise additional barriers to electoral participation.
The cases focus on two Arizona laws — one that mandates rejection of ballots cast at the wrong precinct and another that forbids efforts to collect and deliver ballots. The Democratic National Committee challenged the laws, arguing they cause “a racial disparity in the way they impact voters,” said Doug Spencer, a professor of law and public policy at the University of Connecticut and Distinguished Faculty Fellow at The Byron R. White Center for the Study of American Constitutional Law at the University of Colorado Law School. “But there’s not super-strong evidence that these laws were used to intentionally discriminate against minority voters.”
The Evolution of the Voting Rights Act
The DNC’s overarching argument is that the Arizona laws violate section 2 of the VRA, which forbids any “voting qualification or prerequisite to voting or standard, practice, or procedure” that “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.”
The justices’ questions on Tuesday seemed to indicate that a majority are likely to read that language from the same skeptical perspective of voting rights and the question whether American politics is affected by race discrimination that was demonstrated in the 2013 case Shelby County v. Holder that invalidated section 5 of the VRA. Chief Justice John Roberts rationalized the court’s decision in that case on grounds that racial prejudice had, in his view, effectively disappeared from the U.S. “Our country has changed,” Roberts wrote.
Notwithstanding Roberts’ perspective, which justices Clarence Thomas and Samuel Alito appear to share, Spencer said the history of Congress and the court’s interplay over the VRA should convince Roberts and other conservatives that a broad reading of the statute is appropriate. “In 1965, the Voting Rights Act says you can’t deny or abridge the right to vote,” he said. “Then the Supreme Court in 1980 [in City of Mobile v. Bolden] said ‘our interpretation of that language in section 2 is that it’s merely a mirror of the 15th Amendment. You just can’t discriminate based on race.’” In that 1980 case, City of Mobile v. Bolden, the court reached that conclusion because VRA section 2 then used the same language as the 15th Amendment, which required evidence of intentional discrimination. Congress responded to the Bolden decision in 1982 by changing the language of VRA section 2 “specifically to remove the intention requirement,” Spencer said. “The language itself looks like the argument the Democrats are making in the Brnovich case. It looks like a disparate impact standard.”
The court, however, has not accepted that standard. Since 1982, Spencer said, the court has insisted that plaintiffs “show that the disparate impact interacts with social and historical conditions in a way that prevents minorities from having power.” Spencer said that while this does not amount to a requirement to have “a smoking gun to prove intent,” the court has required challengers to voting laws “to show that there’s something social or cultural that interacts with the particular rule [and] that led to the adoption of that rule in order for it to be a violation of section 2.” The problem, he said, is that the court has not made clear what that means.
Questions of Access
Tuesday’s arguments brought the question regarding social and cultural interactions front and center. Michael Carvin, a partner at Jones Day in Washington, D.C., representing the Arizona Republican Party, argued that, because no voter is disadvantaged by the Arizona laws, a violation of section 2 cannot be found. “Arizona has not denied anyone any voting opportunity of any kind,” he said. Carvin also drew a distinction between a state’s denial of voting opportunities and inconvenient voting opportunities. “The plain language of section 2 tells you what the system can’t result in is providing less opportunity to minorities,” he said. “It doesn’t say it can’t result in providing them the same opportunity, but, for whatever reason, they don’t utilize it to the same extent.”
Justice Elena Kagan secured a concession from Carvin that the precinct requirement could result in unequal opportunities to vote. “‘Equally open’ means tak[ing] into account demographic realities,” Carvin said. But Carvin, a longtime GOP advocate who also represented President George W. Bush in litigation involving the 2000 election results, seemed to pull back from that concession under questioning by Justice Neil Gorsuch. “Socioeconomic factors” — which Carvin labeled “external to the voting practice” — that “lead to diminished utilization” create no section 2 violation, he said. Carvin also emphasized Arizona’s view that rules about when, where, and how to vote are outside the reach of the VRA when queried by Justice Amy Coney Barrett. “Time, place, and manner do not deny anybody the opportunity to vote,” Carvin said. “If the state has not stopped you from voting and the electoral system doesn’t skew how you can vote, then you haven’t established the threshold requirement to look at the disproportionate outcome. In other words, the state has not done anything wrong.”
Arizona Attorney General Mark Brnovich defended his state’s laws as “common-sense and commonplace.” In response to a question from Roberts seeking to clarify when an impact on minority communities would be “substantial” enough to violate the VRA, Brnovich argued that it must “rise to a level of the denial and abridgement of the right to vote and the opportunity to participate and elect candidates of their choice.” “The only way to determine whether there’s a substantial impact is to look at the totality of the election numbers,” he told Roberts. He expanded on that in response to a question from Gorsuch, referring to demographic differences as “statistical anomalies” and saying election access should be evaluated by looking at the number of voters affected by the laws in relation to the total number of votes cast in the election.
Closing his argument, Brnovich revisited the disparate impact analysis and drew a distinction between laws that have a large impact on minority voter turnout and those that do not. “A disparate impact on minority voters can be an appropriate proxy for legal discrimination when that disparity is substantial,” he said. “But, without these showings, section 2 would exceed Congress’ powers to enforce the Reconstruction amendments, improperly inject race into all voting laws, and impede a state’s ability to run their elections.” Brnovich referred to the 14th and 15th Amendments to the Constitution, both ratified in the aftermath of the Civil War.
Arizona Secretary of State, Democrat Katie Hobbs, weighed in on the side of the laws’ challengers. Jessica Ring Amunson, a partner at Jenner & Block in Washington, D.C., told the justices that attempts to draw a distinction between laws that have a large enough impact on voters to violate the VRA and those that don’t dodges the only question that matters: whether race is the reason a vote was discarded. “When an eligible voter casts a ballot, and that ballot is discarded rather than counted, that voter has been denied the right to vote,” Amunson said. “Likewise, when an eligible voter relies on ballot collection to vote and that practice is criminalized, that citizen’s vote right has at the very least been abridged.”
She argued that the VRA requires use of a “totality of circumstances” test that involves “a searching, practical evaluation of the past and present reality and a functional view of the political process.” She disputed Carver’s and Brnovich’s claims that the case is only about “statistical disparities.” “Section 2 liability has been limited to policies that, due to their interaction with particular facts on the ground, are outliers in the discriminatory burden that they impose on minority voters,” Amunson said. “Secretary of State Hobbs knows that the out-of-precinct policy and the ballot collection statute impose discriminatory burdens on Native American, Latino and Black voters that are not justified by any legitimate state interest.” She stressed the stark contrast in reliance on ballot harvesting among the state’s ethnic communities. “What we have is a record that shows that Native Americans and Latinos in Arizona rely disproportionately on ballot collection and white voters do not,” Amunson said. In response to a question from Thomas, Amunson said “the record showed that minority voters were affected at a rate of two to one as to the out-of-precinct policy” during the 2020 general election.
Amunson then took aim at Carver’s and Brnovich’s emphasis on “opportunity,” pointing to the geographic reality facing Native Americans in the state. “Simply saying that those voters can go ahead and vote in person or go ahead and vote by mail when they don’t actually have home mail service or access to postal facilities,” she said, is inconsistent with the “reality” that has to be considered under the VRA. Amunson also pointed to the relative paucity of precinct-based voting in Arizona, noting that in 2020, 75% of voters voted in counties that do not use precinct-based systems.
Responding to Sotomayor, she pointed to evidence that the Republican-led Arizona legislature pushed the precinct-based restriction into the state code for racially motivated reasons. “The en banc court held, clearly, discriminatory intent was a motivating factor,” she said, referring to the U.S. 9th Circuit Court of Appeals opinion under review. “And it used the district court’s own fact findings. The district court simply minimized the importance of those findings. They do show that discriminatory intent was a motivating factor, and certainly, the state did not meet its burden to show that the law would have been enacted absent that.”
Kagan expressed frustration with the fine line being drawn between “demographic realities” that cause a state election law to violate the VRA and demographic realities that do not have that effect. “There’s a spectrum of restrictions and a spectrum of the effects that those restrictions cause,” she said. “How are we to think about that?” Amunson reminded the justices of a precedent that requires a look at a state’s historical record of discrimination. “The Court has said in … its jurisprudence [that] the essence of a section 2 claim is looking [at] how the state’s practice interacts with social and historical conditions to cause the inequality,” she explained. “What courts should be doing is looking at how that restriction interacts with the facts on the ground to see whether it is, in fact, causing a discriminatory burden on minority voters.”
Bruce Spiva, the managing partner of Perkins Coie’s Washington, D.C., office, argued for the Democratic National Committee. He highlighted evidence that the Arizona ballot collection law was motivated by actual racial animus by the bill’s legislative sponsor, Don Shooter. Shooter introduced the bill, according to the Arizona Capitol Times, after he won the 2010 election for his seat representing a conservative western Arizona district with 53% of the vote that included 83% of the total non-minority vote but only 20% of the Latino vote.
‘Not all Losses are the Same’
Spencer is skeptical that the Supreme Court will agree to reject the Arizona laws as a violation of the Voting Rights Act. Instead, he thinks, the Supreme Court will read the language of section 2 in a parsimonious manner. “It’s pretty clear that the Democrats are going to lose this case, but as you know, not all losses are the same,” he said.
“The big question is just how much the Supreme Court will use the case to reign in section 2 of the Voting Rights Act,” Spencer said. “I would put a lot of money that the Supreme Court is not going to adopt” the DNC’s view that an unequal impact of a voting rights law violates the VRA, he continued. “What we don’t know is what they will require plaintiffs to provide in future cases.”
While he believes the arguments leave little doubt that most justices sympathize with Arizona, “There’s two underlying currents at play,” Spencer said. “The first is that, in Shelby County, the Supreme Court said ‘we’re getting rid of one part of the Voting Rights Act, but don’t worry, of course we really want section 2 to exist.’” On the other hand, he said, “the reason they got rid of section 5” was a concern that “it’s not fair to punish people now for the things they did in the past.”
He said that “voting rights scholars got their ears perked up about that” because the court’s section 2 precedents also require consideration of the jurisdiction’s history of discrimination. “If the historical data is irrelevant, which is what Roberts said in Shelby County, then we saw the writing on the wall, which was that maybe they’d use the same logic” in a future section 2 case, “which could be now.”
Spiva seemed to channel that worry, warning the court that reading section 2 in a manner that is too stingy will only result in even more discrimination against minority group voters. “This Court said in Shelby County that section 2 remained as a permanent nationwide ban on voting discrimination, and the court acknowledged that voting discrimination still exists,” he said. “No one doubts this. This [has] proven [to be] not just an accurate description of the times in 2013 but also prophetic. More voting restrictions have been enacted over the last decade than at any point since the end of Jim Crow.”
Whether or not Spencer’s fears are accurate, the partisan stakes in the case were left indelibly clear in the record. When Barrett pressed Carver to explain why the Arizona GOP has standing to defend that state’s election laws, he unhesitatingly pointed to a view of politics as a “zero-sum game.” Invalidation of the Arizona laws under the VRA “puts us at a competitive disadvantage relative to Democrats,” he said. “It’s the difference between winning an election 50 to 49 and losing 51-50.”
The cases are Brnovich v. Democratic National Committee, No. 19-1257, and Arizona Republican Party v. Democratic National Committee, No. 19-1258. A decision in both cases is expected by July.