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18 BRNOVICH v. DEMOCRATIC NATIONAL COMMITTEE Opinion of the Court (B. Griffith ed. 2008); see also J. Sargent et al., Congressional Research Service, The Growth of Early and Nonprecinct Place Balloting, in Election Laws of the Fifty States and the District of Columbia (rev. 1976). We doubt that Congress intended to uproot facially neutral time, place, and manner regulations that have a long pedigree or are in widespread use in the United States. We have no need to decide whether adherence to, or a return to, a 1982 framework is necessarily lawful under §2, but 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. To the extent that minority and non-minority groups differ with respect to employment, wealth, and education, even neutral regulations, no matter how crafted, may well result in some predictable disparities in rates of voting and noncompliance with voting rules. But the mere fact there is some disparity in impact does not necessarily mean that a system is not equally open or that it does not give everyone an equal opportunity to vote. The size of any disparity matters. And in assessing the size of any disparity, a meaningful comparison is essential. What are at bottom very small differences should not be artificially magnified. E.g., Frank v. Walker, 768 F. 3d 744, 752, n. 3 (CA7 2014). 4. Next, courts must consider the opportunities provided by a State’s entire system of voting when assessing the burden imposed by a challenged provision. This follows from §2(b)’s reference to the collective concept of a State’s “political processes” and its “political process” as a whole. Thus, 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

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Brnovich v. Democratic National Committee

Judgment

Question Presented: Whether Arizona's out-of-precinct ballot policy and ballot collection ban (HB 2023) violated Section 2 of the Voting Rights Act, and more broadly, what legal standard governs Section 2 challenges to "time, place, or manner" voting rules—specifically, whether the "totality of the circumstances" test from Thornburg v. Gingles and the Senate Factors applies to challenges to facially neutral voting procedures.

Alleged Acts: Arizona maintained two voting policies that were challenged by the Democratic National Committee (DNC). Through the Out-of-Precinct Policy, if a voter cast a provisional ballot at a polling place assigned to the wrong precinct, the entire ballot was discarded rather than counted or partially counted. This policy resulted in a disproportionate number of ballots cast by minority voters (American Indian, Hispanic, and African American) being rejected. Under HB 2023, the law made it a felony for anyone other than a family member, household member, or caregiver to collect and deliver another person's early-voting ballot. This law was commonly referred to as the "ballot collection ban." The DNC argued that it disproportionately burdened minority voters who relied on ballot collection by community organizers and others. The DNC challenged both policies under Section 2 of the Voting Rights Act and the Fourteenth and Fifteenth Amendments, alleging that they had a discriminatory impact on minority voters.

Procedural history: After a bench trial, the district court ruled in favor of Arizona, holding that neither the OOP policy nor HB 2023 violated Section 2 of the VRA or the Fourteenth and Fifteenth Amendments. The court found insufficient evidence of discriminatory impact or purpose. A three-judge panel affirmed the district court's ruling, holding that the OOP policy and HB 2023 did not violate Section 2 of the VRA or the First and Fourteenth Amendments because they imposed only a minimal burden on voters and were adequately designed to serve Arizona's important regulatory interests. The en banc court reversed, holding that the OOP policy and HB 2023 violated Section 2's "results test" because they had a discriminatory impact on American Indian, Hispanic, and African American voters in Arizona under the "totality of the circumstances" analysis.

Summary: Brnovich v. Democratic National Committee is a significant voting rights decision in which the Supreme Court upheld two Arizona voting restrictions under Section 2 of the Voting Rights Act. The Court's most enduring contribution was the creation of a new five-factor "guideposts" framework for evaluating Section 2 challenges to facially neutral voting rules, making it substantially harder for plaintiffs to succeed in challenges to "time, place, or manner" election regulations. The decision marked a departure from the more flexible "totality of the circumstances" approach previously applied, emphasizing the size of the burden, historical practice at the time of Section 2's 1982 amendment, the availability of alternative voting methods, and the strength of state justifications. The dissent, authored by Justice Kagan, argued that the majority's new framework effectively rewrote Section 2 and made it exceedingly difficult to challenge voting rules that disproportionately burden minority voters, contrary to Congress's intent in amending the VRA in 1982.

Conclusion: In a 6–3 decision, the Supreme Court reversed the Ninth Circuit en banc decision and held that neither Arizona's OOP policy nor HB 2023 violated Section 2 of the VRA, and that HB 2023 was not enacted with a racially discriminatory purpose. The Court established a new framework for evaluating Section 2 challenges to "time, place, or manner" voting rules, drawing on the text of Section 2 and the "totality of the circumstances" standard. The five guideposts are (A) The size of the burden imposed by a challenged voting rule is highly relevant... (B) The degree to which a voting rule departs from what was standard practice when §2 was amended in 1982 is a relevant consideration... (C) The size of any disparities in a rule's impact on members of different racial or ethnic groups is an important factor to consider... (D) ...courts must consider the opportunities provided by a State's entire system of voting... (E) The strength of the state interests... served by a challenged voting rule is an important factor. The Court held that the burden of casting a ballot in the wrong precinct was minimal, as Arizona offered multiple convenient voting options (early in-person voting, no-excuse absentee voting, and Election Day voting). The state's interest in ensuring that voters cast ballots in the correct precinct to receive the correct local ballot was justified. The Court held that HB 2023 imposed only modest burdens and served legitimate state interests in preventing ballot fraud and protecting voter confidence. The Court noted that many states had similar ballot collection restrictions and that the practice was not standard when Section 2 was amended in 1982.

Legal Issue(s)

Electoral Administration Irregularities
Electoral Integrity
Voters' Rights

Applicable Law(s): Voting Rights Act of 1965, Fourteenth Amendment, and Fifteenth Amendment of the United States Constitution

Region: Americas

Country: United States of America

Language of Decision

English

Court: Supreme Court

Election Type: General

Date of decision: Jul 1, 2021

Geolocation

Latitude: 38.890591

Longitude: -77.004745

: Geolocation

Link: https://www.supremecourt.gov/opinions/20pdf/19-1257_g204.pdf

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Brnovich v. Democratic National Committee

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