Brnovich v. Democratic National Committee (DNC)

Brnovich v. Democratic National Committee (DNC) is a 2021 United States Supreme Court case that involves the constitutionality of the Voting Rights Act of 1965, specifically Section 2. The Voting Rights Act was already partially gutted with the Supreme Court decision in Shelby County v. Holder (2013) that rendered the Section 5 preclearance requirements for new election laws in counties with a history of voter discriminaiton inoperative. This new case effectively inactivates what remains of the Act.

The issues at hand were two Arizona voting laws. The first law banned third-party collection (called ballot harvesting by its critics). The law would ensure that only a relative or caregiver could collect and deliver absentee ballots. This law poses serious problems to individuals who may not have access to reliable mail services such as Native Americans. The second law invalidated ballots cast in the wrong precinct. While this policy made sense in elections that depend on location, the law would additionally invalidate wrongfully cast ballots in statewide races in which all Arizona citizens choose among the same candidates regardless of location. Arizona has a tendency to frequently change precinct locations. Combined with this new policy, Latino and other minority voters in Arizona would be disproportionately impacted.

In 2016, the DNC and the Arizona Democratic Party challenged the two laws as being violations of Section 2 of the Voting Rights Act which prohibits any “standard, practice or procedure … which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” In 2018, the District Court for the District of Arizona ruled against the DNC. However, the United States Court of Appeals for the Ninth Circuit struck down both electoral laws. The court’s reasoning was that the laws would have a disproportionate impact on minority voters and that there was no evidence of fraud that would have justified implementation of the laws.

On July 1, 2021 though, the Supreme Court in a 6-3 vote reinstated the laws. The court proposed several reasons for their decision. It contended that the effect on minority voters would be minor, that other states have similar laws, and that states can enact laws to prevent fraud before fraud occurs. The decision was along ideological lines with Justice Samuel Alito writing the majority decision.

Previously, The Voting Rights Act had always been a powerful tool that combated voter suppression and discriminaiton. Section 5 was the most prominent part of the Act and issued preclearance requirements for new electoral laws in places with a history of voter discrimination. In fact, Arizona’s ballot collection ban originally failed to obtain preclearance when it was proposed in 2011. When Section 5 of the Act was still active, Section 2 had been mostly used to combat vote dilution in the redistricting context. With the invalidation of Section 5 in Shelby County v. Holder (2013), voting rights advocates began exploring Section 2’s application to vote denial. Vote dilution has a standard of application developed in the Supreme Court case Thornbury v. Gingles (1986). However, the Supreme Court previously did not provide any standards for application of Section 2 in the vote denial context.

Brnovich v. DNC was the first time the Supreme Court had to deal with a claim of vote denial under Section 2. Sadly, the court’s decision will have a lasting impact on other voter suppression laws. Arizona’s two laws were not unique and many other states have similar laws. The U.S. Justice Department in a statement said, “The department remains strongly committed to challenging discriminatory election laws and will continue to use every legal tool available to protect all qualified Americans seeking to participate in the electoral process.” The Supreme Court’s decision may make it more difficult for the U.S. Justice Department and others to challenge other voting laws in the future.

References

Alerasool, O. (2021). A primer on Brnovich v. DNC: The Supreme Court’s latest voting rights case. The Equal Democracy Project. https://orgs.law.harvard.edu/equaldemocracy/2021/03/07/a-primer-on-brnovich-v-dnc/

Totenberg, N. (2021). The Supreme Court deals a new blow to voting rights, upholding Arizona restrictions. NPR.

https://www.npr.org/2021/07/01/998758022/the-supreme-court-upheld-upholds-arizona-measures-that-restrict-voting