Bloomberg Law
July 13, 2021, 8:00 AM

Supreme Court Got It Right in Arizona Voting Law Decision

Chris Kieser
Chris Kieser
Pacific Legal Foundation

In one of the most anticipated decisions of the term, the U.S. Supreme Court sustained two Arizona voting procedures against a sweeping challenge under Section 2 of the Voting Rights Act of 1965. In the process, the court shaped the course of election litigation for years to come. But most importantly, the justices got it right.

At issue in Brnvoich v. Democratic National Committee were Arizona’s policy against counting votes cast in the wrong precinct on Election Day, and its law criminalizing the collection of an absentee ballot by anyone other than a postal worker, an elections official, or a voter’s caregiver, family member, or household member.

Brnovich was the latest in a series of Section 2 challenges to various state election laws, including voter ID requirements and early voting changes, but it was the first to reach the Supreme Court.

Based on statistical and anecdotal evidence introduced in the district court that minority voters cast more out-of-precinct ballots and used ballot-collection more frequently than White voters, challengers argued that both provisions violated Section 2, which prohibits the enforcement of any “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.”

Section 2(b) of Voting Rights Act Offers ‘Results Test’

In rejecting the challenges, the Supreme Court produced a clear opinion faithful to the statutory text. The “results” language appears in Section 2(a), but it is Section 2(b) that provides the interpretive guide for the so-called “results test.” And that latter subsection makes it clear that the Voting Rights Act does not prohibit any state law that might produce a statistically disparate impact by race.

Instead, it protects the right of each individual, regardless of race, to have an equal opportunity to cast a ballot. In the words of the statute, a state’s political process must be “equally open” to participation by members of each racial group.

A voting regulation violates Section 2 only when it results in individuals of a particular race having “less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” In short, Section 2 protects equality of opportunity, not equality of outcome.

To be sure, a racially disparate impact may be relevant in determining whether individuals of all races have the same chance to vote. But Section 2 requires an assessment of the “totality of circumstances,” and the court correctly demanded consideration of a state’s entire electoral system, not simply the challenged provisions in isolation.

That proved dispositive in Arizona—not only did 99% of minority voters vote in the proper precinct in 2016, but Arizona makes it easy to vote otherwise, with nearly a month of in-person early voting and vote-by-mail. The court could not have invalidated the out-of-precinct provision without declaring that practically any voting regulation that affects voters differently by race violates Section 2. It correctly rejected that extreme reading of the statute.

Key Virtue: Avoiding Potential Conflict With the Constitution

Perhaps the most important virtue of the Brnovich majority opinion is what it didn’t do. Because it emphasized the rights of individual voters and rejected the pure disparate impact interpretation of Section 2, the court avoided a potential conflict with the Constitution.

The Equal Protection Clause requires that the government treat Americans as individuals, not simply members of racial groups. Disparate impact statutes encourage the opposite. If any racially disparate usage of a voting device violated the Voting Rights Act, state legislatures could not pass any election laws without considering race.

Since the Equal Protection Clause prohibits race-based decision-making except in extremely narrow circumstances, that would place decision-makers an unenviable position—consider race to avoid Section 2 liability, but be careful to avoid racial considerations for constitutional purposes. By confining Section 2 to its text, the court averted that catch-22.

The Voting Rights Act was one of the most important pieces of legislation of the 20th century. It broke the Jim Crow disenfranchisement of Black Americans in the South and ensured that all Americans, regardless the color of their skin, could participate in American elections. And it still provides important protections that require states to provide every citizen an equal opportunity to vote.

But the court refused to expand the Voting Rights Act to prohibit any election law that has even a small statistical impact on a particular racial group. In doing so, the court remained faithful to the text of the law and avoided conflict with the Constitution.

Americans should rest easy that Section 2 remains a bulwark against discrimination, but also be thankful that states no longer consistently violate its terms.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Chris Kieser is an attorney at Pacific Legal Foundation, practicing in PLF’s Equality Under the Law group. He wrote an amicus brief in support of the petitioners in Brnovich v. DNC.

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