Brnovich, election-law tradeoffs, and the limited role of the courts

Bizar Male
Symposium

This article is part of a symposium on the court’s decision in Brnovich v. Democratic National Committee.

Derek T. Muller is the Bouma fellow in law and professor of law at the University of Iowa College of Law.

Arizona “generally makes it quite easy for residents to vote.” This framing from Justice Samuel Alito in Brnovich v. Democratic National Committee set the path for the six-justice majority of the Supreme Court to reject challenges to two Arizona laws.

It marks a major victory for states that seek to innovate or tinker with their election laws — to expand them or to contract them. And it is the latest in a string of cases pushing the federal courts out of second-guessing state election laws.

The Democratic National Committee challenged the two Arizona laws. One was a prohibition on out-of-precinct voting, which has been on the books for more than 50 years. If a voter cast a vote in the wrong precinct, that ballot would not be counted, even if the voter was eligible for a statewide election, like a presidential race.

The other was a statute enacted in 2016, which limited third parties — postal workers, election officials, caregivers, family members, or household members — who could collect completed absentee ballots from voters. Arizona had long limited who could distribute blank ballots, but it added a provision about who could collect completed ballots. A lower court determined that both laws disproportionately burdened minority voters and that the third-party collection ban was enacted with discriminatory intent.

The case presented the Supreme Court’s first opportunity to consider “vote denial” laws, which could deny someone the opportunity to vote, and how they fit within Section 2 of the Voting Rights Act. Section 2’s language is fairly open-ended, requiring that the political processes must be “equally open” to minority and non-minority voters, considering the “totality of the circumstances.”

The court offered several factors for lower courts to consider in future Voting Rights Act cases, but two moves merit special attention.

First, the court embraced language from its 2008 opinion in Crawford v. Marion County Election Board, in which six justices approved of Indiana’s voter-identification law. Justice John Paul Stevens’ opinion acknowledged that the right to vote must allow for the “usual burdens of voting,” including, in some cases, presenting identification. That language appeared repeatedly in the court’s Brnovich opinion as a factor among the “totality of the circumstances.”

Every voting rule, the court explained, places some burden on voters. Voting inevitably takes time and travel, even when going to the mailbox. And the court embraced the argument that “mere inconvenience” alone will not be sufficient to win under the Voting Rights Act. An open process that has the “usual burdens of voting” will typically not violate Section 2.

Second, the present version of Section 2 was amended by Congress in 1982, and the Supreme Court instructed lower courts to look at voting burdens at that time as the baseline. States had narrow absentee-voting rules in 1982, and voting opportunities are dramatically more generous today. That means few rules will depart significantly from the 1982 baseline, and it means more laws will pass muster under Section 2.

These two moves — the usual burdens of voting are legitimate, and the degree of departure from rules in 1982 is relevant — will make it challenging for future plaintiffs to win vote-denial cases under Section 2. States will have ample freedom to innovate, to expand opportunities to vote, and, if they see fit, to contract them.

The court rejected the challenge to Arizona’s laws. The two rules affected a tiny fraction of voters, and there was little disparity between how minority and non-minority voters behaved. The rules were well within the “usual burdens of voting,” especially given ample opportunities to vote. The “totality of the circumstances” included 27 days of vote-by-mail and early in-person voting, coupled with voting in person on Election Day.

States will continue to develop “time, place, and manner” rules as they see fit. Every election law presents tradeoffs. Novel or added voting opportunities can add cost or complexity to the system. The public may perceive election laws as particularly good or bad and communicate that to their elected representatives. States may choose to keep or change those rules based upon their experience.

Brnovich is the latest in a line of cases suggesting that the federal courts should play a smaller role in the patrolling of how states administer elections. Crawford approved Indiana’s voter-identification law. The court’s 2019 decision in Rucho v. Common Cause said that federal courts should not entertain challenges to partisan gerrymandering under the Constitution. In 2020, it decided a series of cases, including Republican National Committee v. Democratic National Committee, which mostly instructed federal courts not to make late-breaking changes to how states administer elections, even in the middle of a pandemic. And it rejected a challenge to the presidential election in Texas v. Pennsylvania, letting state election officials’ decisions stand.

Future plaintiffs will have greater difficulty raising challenges under Section 2 of the Voting Rights Act. Section 2, however, was not really used for vote-denial cases until after the Supreme Court’s decision in Shelby County v. Holder in 2013, which limited the application of another portion of the Voting Rights Act. Litigants then moved to Section 2. And after Brnovich, they may well move elsewhere in the future.

But elsewhere may simply mean some venue other than federal court. Congress can enact specific rules on absentee ballots if it desires (and it’s a part of H.R. 1, the “For the People Act”). State courts might review election laws under state constitutions. The people can act by ballot initiative in many states. And Section 2 will continue to play an important role during the upcoming redistricting cycle to ensure minority voters have proper representation in legislatures, which has long been its primary use.

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