Tuesday, July 6, 2021

Supreme Court limits the scope of the Voting Rights Act

The Supreme Court last week interpreted the Voting Rights Act in a manner that upheld two Arizona voting mechanisms that plaintiffs claim had a disparate impact on Black voters. In doing so, the Court looked at the VRA with fresh eyes, devising a legal standard that gives additional leeway to states that have imposed voting restrictions in recent years.

The case is Brnovich v. Democratic National Committee, issued on July 1. Section 2 of the VRA was at issue in this case. That provision says the VRA is violated only where "the political processes leading to nomination or election" are not "equally open to participation" by members of a protected class, including Black voters, "in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." This is the disparate impact provision of the VRA, where challenges to election procedures can prevail even if the lawmakers who put the measures in place did intend to discriminate on the basis of race. 

Writing for the 6-3 majority, Justice Alito focuses on the "equally open" and "less opportunity" language in Section 2. From the majority's vantage point, there is almost no federal case law that interprets this language, even though the VRA was passed in 1965. So the majority in part cites dictionary definitions of the relevant language to determine what the statute means. 

Justice Alito states that, according to Random House and Webster's, the term "open" means "without restrictions as to who may participate" or "requiring no special status, identification, or permit for entry or participation." "Opportunity" means "a combination of circumstances, time, and place suitable or favorable for a particular activity or action." Section 2 also asks us to consider the "totality of the circumstances" in determining whether a VRA violation exists. The majority then lists six factors in solving Section 2 cases:

1. "The size of the burden imposed by a challenged voting rule is highly relevant." This means that we discount the ordinary burdens associated with voting, such as travel to the polling place, following directions for the voting machines, etc. 

2. We look to that voting practices that were in place in 1982, when Congress incorporated the disparate impact liability provisions into the statute. "The burdens associated with the rules in widespread use when Section 2 was adopted are therefore useful in gauging whether the burdens imposed by a challenged rule are sufficient to prevent voting from being equally 'open' or furnishing an equal 'opportunity' to vote in the sense meant by Section 2." Put another way, "the degree to which a challenged rule has a long pedigree or is in widespread use in the United States is a circumstance that must be taken into account."

3. "The size of any disparities in a rule's impact on members of different racial or ethnic groups is also an important factor to consider. Small disparities are less likely than large ones to indicate that a system is not equally open." "Some disparity" may not be enough to prove a disparate impact.

4. In addition, and I regard this as the most important factor devised by the majority, courts must consider the opportunities provided by a State's entire system of voting when assessing the burden imposed by a challenged provision." This means that "where a State provides multiple ways to vote, any burden imposed on voters who choose one of the available options cannot be evaluated without also taking into account the other available means." So that if one voting mechanism, such as absentee balloting, has a disparate impact, other available voting mechanisms that have no disparate impact for which voters can avail themselves will diminish the strength of the disparate impact case. This is the language in the opinion that will most likely doom the challenges to restrictive election rules in the Republican states. While this is an important part of the ruing, it is not supported by any case law or statutory language. Nor is there any dictionary definition to support it.

5. We also consider "the strength of the state interests served by a challenged voting rule." Rules that are supported by a strong state interest are less likely to be struck down under Section 2. One strong state interest is fraud, and another is ensuring that votes are cast without intimidation or undue influence. 

These factors lead the majority to uphold two Arizona provisions: a rule that makes it illegal for people to vote out-of-precinct, i.e., you live in the third precinct but show up in the fourth precinct to cast your vote. Voting in the right precinct, even without fraud, is among the "usual burdens of voting." Even if it is difficult to find the right precinct, the state offers other ways to vote, such as early balloting. This reasoning will most likely kill off many Section 2 challenges as there are always other ways to vote. The problem is that if someone does not take advantage of early balloting for some reason and they show up at the wrong precinct, the vote will not count. The majority also says the disparate impact associated with this provision is slim. 

The other election challenge in this case is also upheld: the rule prohibiting people other than family members or caregivers to mail your ballot or deliver it to the election authorities within 27 days of the election. The majority sees no disparate impact associated with this rule, and the majority in any event think it promotes election integrity by preventing vote-buying and intimidation associated with voting by mail. 

The majority Justices were appointed by Republicans. The three dissenters, all Democratic appointees, dispute all of this. Writing for the dissenters, Justice Kagan states that each election rule is analyzed separately to see if there is a disparate impact, and that puzzle cannot be solved by determining whether other fair election rules are in place. Justice Kagan notes that the "majority's opinion mostly inhabits a law-free zone" in that, as I stated above, the majority cites little case law in its analysis and instead employs statutory analysis. The dissent also finds disparate impacts in the provisions that were challenged in this case. 

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