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Brnovich v. Democratic National Committee

Conservative Supreme Court To Get Its Hands on the Voting Rights Act

ArgumentMarch 2, 2021
DecisionTBA
Opinion BelowNinth Circuit
Petitioner BriefsState of Arizona
Arizona Republicans, et al.
Respondent BriefsDemocratic National Committee
Katie Hobbs, AZ Secretary of State

Democrats in Arizona stand with favorable rulings after challenging two Arizona voting procedures, but the conservative-leaning Supreme Court could reverse. The fear is not just that the Arizona procedures — alleged to be racially discriminatory — might stand. It’s that the Supreme Court might weaken the already-watered down Voting Rights Act with its ruling in the case.

Case Background

The Democratic National Committee sued the state of Arizona, alleging that two of the state’s voting procedures discriminate against minority voters, making it harder for their votes to count. 

One policy, the “Out Of Precinct” policy, declares that any ballot cast at the wrong precinct’s polling place will be discarded in its entirety. In other words, if a voter goes to a polling place that happens to be closest to her but also happens to be the wrong polling place according to her residence, then her vote will not count. Even though many of the questions on the ballot from her rightful precinct are the same as the ones she answered, the state will discard her ballot entirely.

The second policy, the “Ballot Harvesting” law, affects people who engage in early voting. The policy criminalizes the act of collecting and turning in ballots for other voters, making “ballot harvesting” punishable by imprisonment and up to a $150,000 fine. Democrats allege that criminalizing ballot harvesting harms minority voters, especially Hispanic voters, who engage in this practice more than other voters in the state. Ballot harvesting is known to be an effective method of increasing Democratic turnout in minority communities and is used in the party’s “Get Out The Vote” effort. 

Discrimination under Section 2 of the Voting Rights Act

The case alleged that both of these policies violate the Voting Rights Act (VRA). Section 2 of the VRA says that states cannot create voting policies that have the effect of denying the right to vote on account of race or color. 

When the VRA was passed in 1965, courts took it to be a restatement of the 15th Amendment guarantee that states could not intentionally discriminate against minority voters. It wasn’t until 1982 that Congress clarified that Section 2 of the VRA banned not just intentional discrimination, but any policy — intentional or not — that had the effect of denying minorities of the right to vote. 

In this case, the DNC provided evidence that both policies had the effect of reducing minority votes. Although the Democrats did not win in the trial court, once the case reached en banc review in the Ninth Circuit Court of Appeals, the Democrats got a win on both policies. In other words, the Ninth Circuit ruling invalidated both policies for discrimination under the VRA.

The Ninth Circuit determined that evidence in the district court showed American Indian, Hispanic and African American voters were twice as likely to vote out of precinct than white voters. The district court had not allowed the evidence to support a finding of disparate impact, but the Ninth Circuit overruled the district court’s reasoning. 

The district court was swayed to consider that the total number of out-of-precinct ballots cast was small in relation to the total number of ballots; and that the number of out-of-precinct ballots fell between 2012 and 2016. The Ninth Circuit ruled that these numbers were irrelevant to a finding of disparate impact. The district court should consider simply the number of votes cast out-of-precinct for minority voters to white voters. And that number showed clearly a disparate impact.

Discrimination under the Constitution’s Fifteenth Amendment

The Fifteenth Amendment prohibits government voting policies that intentionally seek to reduce minority voting power. The Democrats challenged one of the policies, the Ballot Harvesting policy, as intentionally discriminatory. They argued the Congressmembers who introduced and supported the act criminalizing “ballot harvesting” knew exactly which people would be affected by the law, and they intended to minimize minority voting power. 

The Ninth Circuit ruled in the Democrats’ favor on the Fifteenth Amendment challenge to the Ballot Harvesting law. The en banc panel weighed four factors to determine whether the law was passed with racial animus:

The factors include (1) the historical background; (2) the sequence of events leading to enactment, including any substantive or procedural departures from the normal legislative process; (3) the relevant legislative history; and (4) whether the law has a disparate impact on a particular racial group. 

Ninth Circuit Opinion, citing Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 266-68 (1977).

According to the Ninth Circuit, each factor weighed towards ruling that the law was passed with racially discriminatory intent. The biggest pieces of evidence included the legislative history of the law and a bogus video, the “LaFaro video”, that Republicans used to try to demonstrate fraud in ballot collection. 

Regarding legislative history: an earlier form of the bill had been introduced by Senator Shooter years earlier. The Republican senator supported the precursor bill with claims of ballot collection fraud. The evidence did not support the alleged fraud but instead showed that Shooter was motivated by racial polarization and wanting to limit efforts to increase Hispanic vote in his own district. The Ninth Circuit ruled that the Ballot Harvesting law was passed directly from the momentum gained through Senator Shooter’s racist efforts in the precursor bill.

The LaFaro video was the other piece of evidence showing racial animus. As described by the Ninth Circuit:

Maricopa County Republican Chair LaFaro produced a video showing “a man of apparent Hispanic heritage”—a volunteer with a get-out-the-vote organization—apparently dropping off ballots at a polling place. LaFaro’s voice-over narration included unfounded statements, “that the man was acting to stuff the ballot box” and that LaFaro “knew that he was a thug.” The video was widely distributed. It was “shown at Republican district meetings,” “posted on Facebook and YouTube,” and “incorporated into a television advertisement.”

Internal citations omitted.

According to the Ninth Circuit, the legislative background and LaFaro video clearly were racially motivated, and they were simply untrue as evidence of ballot collection fraud. Yet the video was instrumental in gaining the votes necessary to pass the Ballot Harvesting law. 

The court admitted that many of the congress members who voted for the law probably actually believed that ballot collection fraud existed, but that’s no excuse for not investigating the issue on their own. The congresspeople who failed to verify the evidence of ballot collection fraud acted with the racial animus of the senators who offered the flawed evidence. This, the Ninth Circuit characterized as the “cat’s paw” doctrine:

The doctrine is based on the fable, often attributed to Aesop, in which a clever monkey induces a cat to use its paws to take chestnuts off of hot coals for the benefit of the monkey.

The Supreme Court Challenge

Both the state of Arizona and the Arizona Republican Party challenge the Ninth Circuit rulings in the Supreme Court. They argue the Ninth Circuit wrongly analyzed the Voting Rights Act issues and also wrongly attributed racially discriminatory motivation on the part of the Arizona lawmakers.

The Supreme Court will consider the standard by which a court should evaluate discriminatory effects under the Voting Rights Act. The Ninth Circuit ruled in favor of the Democrats by using the “results test,” which is a two-part framework. First, the court determined whether the law or policy disproportionately affects the ability of a minority group to “participate in the political processes and to elect candidates of their choice.” Second, the court asked whether the “disparate burden on minority voters is linked to social and historical conditions in Arizona so as ‘to cause an inequality in the opportunities enjoyed by [minority] and white voters to elect their preferred representatives’ or to participate in the political process.”

The Court will also consider whether the Ninth Circuit appropriately found evidence of intentional discrimination in passing the Ballot Harvesting law. The Court will probably address how to attribute intent to a legislative body as a whole, including the Ninth Circuit’s use of the “cat’s paw” doctrine. 

Arizona’s Arguments

Arizona argues Section 2 of the VRA should prohibit only policies that cause a substantial disparate impact, rather than merely a minimal disparate impact. In other words, the Ninth Circuit’s step 1 of the “results test” does not incorporate the right standard. 

The VRA Section 2, Arizona notes, requires an “equal opportunity for all voters to participate in a State’s political processes,” banning only “laws that cause substantial disparities in minority voters’ opportunities to participate in those processes.” Thus, a court should not invalidate a policy for having a minimally disparate impact, only a substantial one. 

When the Ninth Circuit found a disparate impact, it compared the number of minority out-of-precinct voters to the number of white out-of-precinct voters. And this number was 2-1, leading the Ninth Circuit to conclude a disparate impact. But Arizona argues that disparate impact should be considered relative to the voting scheme as a whole. As the district court pointed out, the number of out-of-precinct votes cast is small compared to the entire voting set. Because the impact of the Out-Of-Precinct policy compared to the state voting system as whole is minor, Arizona argues, the policy does not violate the VRA.

Arizona also argues against the disparate impact ruling for the Ballot Harvesting law: that the DNC was not able to show any real evidence that the law had a disparate impact on minorities.

Arizona argues against the Ninth Circuit’s finding of intentional discrimination in passing the Ballot Harvesting law. Arizona challenge the Ninth Circuit’s use of the “cat’s paw” doctrine, arguing a court cannot attribute the racial animus of one legislator to an entire legislative body.

Arizona Republican Party’s Arguments

The Arizona Republican argues that the Ninth Circuit incorrectly applied Section 2 of the VRA to this case. According to the AZ Republicans, the VRA really only applies to cases involving vote dilution, like challenges to political districting or political gerrymandering. According to the party, overbroad use of Section 2 will make it impossible for states to avoid suits against its race-neutral election policies.

In the [Ninth Circuit’s] view, Arizona must allow people to vote outside their precincts and must allow strangers (usually partisan operatives) to collect ballots from voters simply because minorities have disproportionately voted in those ways, even though Arizona’s rules apply equally and impose no barrier beyond the normal “burden” of casting one’s own ballot in the assigned precinct. 

Brief for Private Petitioners at 2.

The brief suggests that the Ninth Circuit’s interpretation of Section 2 would benefit the Democratic Party in using the courts to overhaul voting policies around the country:

The Ninth Circuit’s approach would subject nearly all ordinary election rules to § 2 challenge, and mandate court-ordered overhauls of state voting rules to achieve racial proportionality. A boon to one political party, to be sure, but a construction of the statute irreconcilable with its plain text—and one that would violate the Constitution.

Id. 

Regarding the Ninth Circuit’s ruling of intentional discrimination on the Ballot-Harvesting law, the AZ Republicans say the court equated a partisan political purpose (a real concern for election fraud on the part of Republican legislative members) with racial discrimination, which was simply not there.

The Democrats’ Arguments in Defense of the Ruling Below

The Democratic National Committee defends the Ninth Circuit’s use of the results test. The brief points out that the test at step 1 does not actually require a “substantial” disparate impact, like the petitioners state. Regarding the Out-Of-Precinct policy, for example, the effects are clearly disparate under “any standard,” the DNC states, calling the policy “consistently one of the most punishing in the nation.”

An “extreme outlier” among states with similar policies, it has disenfranchised over 38,000 Arizonans since 2008. JA.588. Minority voters are vastly over-represented among that number—they are twice as likely as white voters to have their votes rejected.

DNC Respondents’ Brief at 2.

The DNC notes Arizona’s history of racial discrimination in voting policies and the continuing effects of those policies in today’s voting procedures.

The brief also defends against the argument put forth by the Arizona Republican Party that Section 2 does not apply to cases involving race-neutral voting policies. Regarding the AZ Republican threat that such use of VRA Section 2 will lead to challenges to all voting practices nationwide, the DNC calls it “demonstrably hyperbolic.” 

Courts have been applying this test for years, without the outcome that Petitioners fear. The test’s “peculiar[] dependen[cy] upon the facts of each case” and “intensely local appraisal of the design and impact” of the contested electoral mechanisms.

Id. at 40 (internal citations omitted).

The DNC argues that it’s “obvious” the Section 2 results test applies to time, place and manner restrictions:

That is because the VRA “was enacted to prevent [] invidious, subtle forms of discrimination.” Veasey, 830 F.3d at 247; see also Allen v. State Bd. of Elections, 393 U.S. 544, 565-66 (1969). And it has been properly used for this purpose since its enactment. See, e.g., Katzenbach, 383 U.S. at 310-11 (finding that race-neutral literacy tests and registration requirements violate the VRA). That this purpose extends to §2 is obvious. If racially neutral time, place, and manner voting laws were exempt from §2, there would have been no need for Congress to specifically codify a results test, rather than proceed only under an intent standard.

Id. at 43.

The brief supports the Ninth’s Circuit’s ruling of intentional discrimination regarding the Ballot Harvesting law, saying the Republicans mischaracterized the court’s use of the “cat’s paw” doctrine. It’s not that the court imparted the racial animus of one Senator on the whole legislative body:

Instead, the district court expressly found that Senator Shooter’s demonstrably false allegations, as well as the “racially-charged” video and accompanying commentary by then-Republican Party Chair LaFaro, infused the debate over ballot collection and were “successful in convincing” other legislators “that ballot collection was a problem that needed to be solved.” JA.352. Given these facts, the court’s analogy to the “cat’s paw” doctrine was apt: demonstrably false and racially-motivated allegations peddled by influential actors tainted the whole process. 

Id. at 50.

The Supreme Court will hear arguments on March 2, 2021. Its decision will likely set the standards for challenges to voting practices for years to come.

Brnovich v. Democratic National Committee

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About the Author

Mariam Morshedi

Mariam Morshedi

Mariam Morshedi is the Founder and Executive Director of Subscript Law. Before starting Subscript Law, she practiced civil rights law for AARP Foundation, where she litigated housing, consumer and disability rights issues.

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