Supreme Court delivers impactful decision on challenges to section 2 of the Voting Rights Act

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On July 1, 2021, the Supreme Court issued its ruling in a highly anticipated voting rights case, Brnovich v. Democratic National Committee, on appeal from the United States Court of Appeals for the Ninth Circuit. The case reached the court following earlier litigation filed by the Democratic National Committee (DNC) and some affiliates challenging the validity of two provisions of the Arizona state’s voting framework under the Article 2 of the Voting Rights Act 1965 (VRA). While Article 2 VRA cases have already been referred to the Court for consideration in cases involving redistribution challenges and vote dilution claims, Brnovich represents the Court’s attempt to answer the important question of how to respond to a challenge to section 2 of the state laws governing when, where and how an election is held. As summarized below, the impact of the court’s decision will have a profound effect on how courts interpret the challenges of Section 2 of the VRA going forward, and the ability of plaintiffs to challenge laws. neutral-face state elections based solely on claims of disparate impact on certain groups of voters.

The first electoral regulations under consideration in the Brnovich The case requires Arizona state residents who live in counties using a constituency system to vote in their assigned constituency if they choose to vote in person on election day. The second state regulation under review in the case makes it a crime for anyone other than an election official, postal worker or designated caregiver, family or household member to collect the ballot. advance vote of another voter before or after completion. In the underlying litigation associated with the case, the DNC and its affiliates challenged the two regulations as being in violation of Section 2 of the VRA on the basis that they caused an “adverse and disparate effect.” On Native American, Hispanic and African American voters in Arizona. . The district court in the case dismissed those claims, as did a divided Ninth Circuit panel. However, these conclusions were overturned in a in bench Ninth Circuit decision, which was then appealed to the Supreme Court.

Following a review and argument earlier this spring, a 6-3 majority of the Supreme Court overturned the in bench Ninth Circuit ruling and upheld the legality of Arizona’s two regulations. In its ruling, the court ruled that none of the regulations violated the VRA’s requirement that the voting process be “equally open” to all voters based on a review of the regulations challenged in the all the circumstances required by Article 2. Judge Samuel Alito, writing for the majority, noted that Brnovich was a case of first impression when it comes to the Court’s analysis of state laws governing time, place and manner of voting under Section 2 of the VRA. and the way the voting rules go forward, the majority has put together a list of guidelines for carrying out the mandated set of circumstances analysis. Factors identified by the Court for this analysis included: the magnitude of the burden imposed by a contested voting rule; the extent to which a voting rule deviates from what was common practice when Section 2 was last amended by Congress in 1982; the extent of disparities in the impact of a rule on members of different racial or ethnic groups; the opportunities offered by the entire electoral system of a state; and the strength of a state’s interests served by a contested voting rule.

Since Arizona’s system generally makes voting easier (through a combination of advance voting, permanent non-excuse postal voting, and voting centers), and because Arizona has “a strong state interest and everything.” quite legitimate in preventing electoral fraud, ”the court concluded that the contested regulations did not weigh on voters in a way that prevented the state’s voting process from being equally open to everyone. The majority argued that forcing voters on election day to vote in their assigned precinct and requiring voters to cast their own paper ballots or use legally authorized proxies for such activities were examples of “usual voting burdens”. The court also rejected the DNC’s argument that Arizona’s second rule was racially motivated, finding no evidence that the legislature’s restriction on early ballot collection was “racially permeated.”

Writing for the dissent, Justice Elena Kagan argued that the majority interpreted section 2 of the VRA too narrowly and created a set of extra-textual factors to apply the full set analysis. circumstances mandated by law. Rejecting this approach, Dissent noted that following a 1980 Supreme Court ruling requiring the demonstration of a discriminatory objective to substantiate an Section 2 claim, Congress amended the law to 1982 to “make it clear that only” results “could establish a violation of the VRA. The majority, however, took issue with this analysis, noting Kagan J.A.’s emphasis on adopting a standard of disparate impact under section 2 and on imposing a means requirement. least restrictive to the neutral facial regulation of voting by state legislatures.

Given the large number of states that enacted new electoral legislation following the 2020 elections and the range of pending court challenges across the country over these nascent laws, the legal standards announced in the Brnovich This decision will undoubtedly have a significant impact on the implementation and interpretation of state electoral law in many jurisdictions ahead of the 2022 midterm elections. Much remains to be seen as a result of this. consequent decision, but at the very least, the court’s opinion signals that the neutral rules of time, place and manner governing voting are likely to withstand Article 2 scrutiny provided that the electoral processes of one state also remain open to all. voters. The court ruling also likely strengthens the viability of nationwide efforts to implement and strengthen state laws restricting third-party ballot collection, sometimes referred to as “ballot harvest” activities.

Looking ahead to the important electoral cycle of 2022, Dentons’ political law team will continue to monitor major electoral disputes, legislation and political developments nationwide and provide updates as appropriate.

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