Key Takeaways

1. Brnovich v. DNC narrowed the scope of Section 2 of the Voting Rights Act, making it more difficult to challenge state voting restrictions on the grounds of racial discrimination.
2. The Supreme Court upheld two Arizona voting policies—the out-of-precinct ballot policy and H.B. 2023’s ballot collection restrictions—finding they did not violate federal law.
3. The decision established five “guideposts” for evaluating Section 2 claims, creating a new, more restrictive framework for future voting rights litigation.

Introduction

Brnovich v. Democratic National Committee, 594 U.S. ___ (2021), stands as one of the most consequential Supreme Court cases in recent years regarding voting rights and the interpretation of the Voting Rights Act of 1965 (VRA). The decision has fundamentally altered the legal landscape for challenging state election laws under Section 2 of the VRA, which prohibits voting practices that discriminate on the basis of race, color, or membership in a language minority group.

This guide provides a comprehensive overview of the Brnovich case, including its factual background, procedural history, the Supreme Court’s reasoning, and the broader implications for voting rights in the United States. We also discuss the ongoing debates and legislative efforts that have arisen in response to the decision. For official documents and further reading, see the Supreme Court opinion, Oyez case summary, and SCOTUSblog analysis.

Background of the Case

The Voting Rights Act of 1965 and Section 2

The Voting Rights Act of 1965 (VRA) is a landmark federal statute designed to eliminate racial discrimination in voting. Section 2 of the VRA is particularly significant, as it prohibits any voting practice or procedure that results in a denial or abridgment of the right to vote on account of race or color. Section 2 claims can be brought when a law has either a discriminatory purpose or effect.

Prior to Brnovich, Section 2 had been interpreted to allow challenges to voting rules that, even if facially neutral, resulted in minority voters having less opportunity than others to participate in the political process and to elect representatives of their choice.

Arizona’s Voting Policies

The dispute in Brnovich centered on two Arizona election policies:

1. Out-of-Precinct Policy: Arizona required voters to cast ballots in their assigned precincts. If a voter cast a provisional ballot in the wrong precinct, the entire ballot was discarded, even if the voter was eligible to vote in some races (such as statewide offices).
2. H.B. 2023 Ballot Collection Law: Enacted in 2016, this law made it a felony for anyone other than a family member, household member, or caregiver to collect and deliver another person’s completed early ballot. This practice, sometimes called “ballot harvesting,” had been used by community groups to assist voters, particularly in minority communities.

The Challenge

In 2016, several Arizona voters and the Democratic Party filed suit, alleging that both policies violated Section 2 of the VRA because they disproportionately impacted minority voters, especially Native American, Hispanic, and African American communities. The plaintiffs also argued that the ballot collection law was enacted with discriminatory intent, in violation of both the VRA and the Fifteenth Amendment.

Procedural History

District Court Proceedings

The case began in the United States District Court for the District of Arizona. After a lengthy trial, the district court ruled in favor of Arizona, finding that neither policy violated Section 2 or was enacted with discriminatory intent. The court concluded that the impact on minority voters was minimal and not sufficient to establish a violation.

Ninth Circuit Court of Appeals

On appeal, a divided panel of the Ninth Circuit initially affirmed the district court. However, upon rehearing en banc, the full Ninth Circuit reversed, holding that both policies violated Section 2 because they had a discriminatory impact on minority voters. The court also found that the ballot collection law was enacted with discriminatory intent.

Supreme Court Review

The State of Arizona and the Arizona Republican Party sought review by the Supreme Court. The Court granted certiorari to resolve the standards for Section 2 claims and to determine the legality of Arizona’s policies.

For more details on the case’s procedural history and filings, consult the case docket on the Supreme Court’s official website.

The Supreme Court’s Decision

The Majority Opinion

In a 6-3 decision delivered by Justice Samuel Alito and joined by Chief Justice Roberts and Justices Thomas, Gorsuch, Kavanaugh, and Barrett, the Supreme Court reversed the Ninth Circuit and upheld both Arizona policies. The majority concluded that neither the out-of-precinct policy nor the ballot collection law violated Section 2 of the VRA.

The Five “Guideposts” for Section 2 Claims

The Court’s analysis introduced five key “guideposts” for evaluating whether a voting rule violates Section 2:

1. Size of the Burden: The majority emphasized that “mere inconvenience” is not enough to establish a Section 2 violation. The burden imposed by the challenged rule must be significant.
2. Extent of Departure from Standard Practice: Courts should consider whether the challenged rule departs from standard voting practices. The majority noted that many states require voters to vote in their assigned precincts and limit third-party ballot collection.
3. Totality of the Circumstances: Section 2 requires a “totality of circumstances” analysis, including the opportunities provided by the state’s entire voting system.
4. Racial Disparities in Impact: The Court acknowledged that some disparities may exist, but the mere existence of a statistical disparity is not sufficient; the disparity must be substantial.
5. Legitimate State Interests: The Court gave weight to the state’s interests in preventing fraud and maintaining election integrity, even absent evidence that fraud had occurred.

Application to Arizona’s Policies

• Out-of-Precinct Policy: The Court found that requiring voters to vote in their assigned precincts did not impose a significant burden and was a common practice across the country. Any disparate impact on minority voters was relatively small.
• Ballot Collection Law (H.B. 2023): The Court held that restricting third-party ballot collection was justified by the state’s interest in preventing potential fraud and preserving public confidence in elections. The majority found no sufficient evidence of a discriminatory effect or intent.

The official Supreme Court opinion is available here (PDF).

The Dissent

Justice Elena Kagan, joined by Justices Breyer and Sotomayor, authored a vigorous dissent. The dissent argued that the majority’s new guideposts “undercut Section 2 and the right it provides.” Justice Kagan contended that both Arizona policies disproportionately burdened minority voters and that the majority’s approach would make it nearly impossible to challenge discriminatory voting laws in the future.

The dissent also criticized the majority for giving too much deference to state justifications and for downplaying the history and purpose of the VRA.

Legal Analysis and Implications

The New Standard for Section 2 Claims

The Brnovich decision marks a significant shift in how courts evaluate Section 2 claims. By emphasizing the five guideposts, the Supreme Court has made it more challenging for plaintiffs to prove that a voting law has a discriminatory effect. The ruling suggests that only substantial and demonstrable burdens, coupled with significant racial disparities, will suffice.

This new standard has several important implications:

• Higher Burden of Proof: Plaintiffs must now show not just a statistical disparity, but a substantial one, and must also demonstrate that the challenged law imposes more than mere inconvenience.
• Deference to State Interests: States’ stated interests in preventing fraud and maintaining election integrity are given significant weight, even if there is little evidence that such problems exist.
• Impact on Litigation: Voting rights advocates anticipate that Brnovich will make it much more difficult to challenge restrictive voting laws under Section 2.

Effect on Minority Voters

Many civil rights organizations and legal scholars have expressed concern that the Brnovich decision will disproportionately affect minority voters. The practices at issue in Arizona—out-of-precinct ballot disqualification and restrictions on ballot collection—were shown at trial to impact Native American, Hispanic, and African American voters at higher rates than white voters.

By narrowing the scope of Section 2, the Supreme Court has limited one of the primary legal tools available to challenge voting laws that have a disparate impact on minority communities.

Relation to Previous Voting Rights Cases

Brnovich follows in the wake of Shelby County v. Holder (2013), another landmark Supreme Court case that struck down the VRA’s Section 4(b) coverage formula, effectively disabling the Section 5 preclearance regime. Together, these decisions have significantly curtailed federal oversight of state election laws.

For more context, see the Shelby County v. Holder opinion.

Legislative Responses

In response to Brnovich and Shelby County, there have been calls for Congress to update and strengthen the VRA. Proposed legislation, such as the John R. Lewis Voting Rights Advancement Act, aims to restore and expand protections against discriminatory voting laws. However, as of mid-2024, such efforts have faced significant political obstacles.

For updates on federal voting rights legislation, visit congress.gov.

Broader Impact and Ongoing Debates

State Voting Laws Nationwide

Since Brnovich, several states have enacted or proposed new voting restrictions, often citing concerns about election integrity. Critics argue that these laws disproportionately impact minority and low-income voters, and that Brnovich’s new standard makes it harder to challenge such laws in court.

The Future of Voting Rights Litigation

Legal experts anticipate that future Section 2 litigation will focus on laws with especially severe burdens or egregious racial disparities. More subtle or indirect forms of discrimination may now be insulated from challenge. This has led to debates about the future effectiveness of the VRA and the role of the federal courts in protecting voting rights.

Academic and Policy Reactions

Scholars and policy advocates have offered varied perspectives on Brnovich. Some argue that the decision appropriately balances state authority to regulate elections with the need to prevent discrimination. Others contend that it represents a retreat from the VRA’s historic mission and undermines democracy.

For thoughtful analysis, see the SCOTUSblog case page and the Oyez summary.

Practical Guidance for Attorneys and Advocates

Assessing Voting Law Challenges After Brnovich

Attorneys considering challenges to state voting laws under Section 2 should:

• Carefully evaluate the magnitude of the burden imposed by the law.
• Gather robust statistical evidence showing substantial racial disparities.
• Prepare to address and counter state justifications for the law, particularly claims of fraud prevention or election integrity.
• Consider alternative legal theories, including constitutional claims, where appropriate.

Legislative and Community Advocacy

Given the higher bar for Section 2 claims, advocates may need to focus more on legislative advocacy and public education to protect voting rights. Community engagement and coalition-building will also be critical.

For in-depth research tools and legal resources, attorneys are encouraged to visit Counsel Stack.

Conclusion

Brnovich v. DNC is a watershed moment in the evolution of American voting rights law. By upholding Arizona’s voting restrictions and narrowing the interpretation of Section 2 of the Voting Rights Act, the Supreme Court has set a precedent that will shape election law and civil rights litigation for years to come. The decision has sparked renewed debate over the balance between state control of elections and federal protections against racial discrimination.

As voting rights continue to be a contentious and evolving area of law, attorneys and advocates must stay informed and proactive. For comprehensive legal research and guidance, consider leveraging resources like Counsel Stack.

Disclaimer: This guide is intended for informational purposes only and does not constitute legal advice. The law in this area is complex and subject to change. For specific legal questions or advice, consult a qualified attorney.