On July 1, 2021 the Supreme Court handed down its decision in a highly anticipated voting rights case, Brnovich v. Democratic National Committee, on appeal from the U.S. Court of Appeals for the Ninth Circuit. The case arrived at the Court as a result of past litigation filed by the Democratic National Committee (DNC) and certain affiliates challenging the validity of two provisions in the State of Arizona’s voting framework under Section 2 of the Voting Rights Act of 1965 (VRA). While VRA Section 2 cases have previously come before the Court for consideration in matters involving redistricting challenges and vote-dilution claims, Brnovich represents the Court's attempt at answering the important question of how to answer a Section 2 challenge to state laws governing the time, place and manner of an election. As summarized below, the impact of the Court’s ruling will have a profound effect on how courts interpret VRA Section 2 challenges going forward, and the ability of plaintiffs to challenge facially-neutral state election laws based purely upon allegations of disparate impact on certain groups of voters.

The first election regulation under review in the Brnovich case requires that Arizona state residents who live in counties using an electoral precinct system vote in their assigned registration precinct if they choose to vote in person on Election Day. The second state regulation under review in the case makes it a felony for anyone other than an election official, postal worker, or designated caregiver, family, or household member to collect another voter’s early ballot prior to or after completion. In the underlying litigation associated with the case, the DNC and its affiliates challenged both regulations as in violation of VRA Section 2 under the theory that they caused a purported “adverse and disparate effect” on Arizona’s American Indian, Hispanic, and African-American voters. The District Court in the case rejected these claims, as did a divided panel of the Ninth Circuit. Those findings were reversed, however, in an en banc decision by the Ninth Circuit, which was subsequently appealed to the Supreme Court.

Following review and oral argument earlier this spring, a 6-3 majority of the Supreme Court reversed the en banc decision of the Ninth Circuit and upheld the legality of both Arizona regulations. In its decision, the Court held that neither regulation violated the VRA’s requirement that the voting process be “equally open” to all voters based upon a review of the challenged regulations under the totality of circumstances required by Section 2. Justice Samuel Alito, writing for the majority, noted that Brnovich was a case of first impression as it relates to the Court analysis of state laws governing the time, place, and manner of voting under VRA Section 2. While the Court refused to announce a formal rubric for analyzing Section 2 challenges to time, place, and manner voting rules going forward, the majority did compile a list of guideposts by which to conduct the mandated totality of circumstances analysis. Factors identified by the Court for this analysis included: the size of the burden imposed by a challenged voting rule; the degree to which a voting rule departs from what was standard practice when Section 2 was last amended by Congress in 1982; the size of any disparities in a rule’s impact on members of different racial or ethnic groups; the opportunities provided by a state’s entire system of voting; and the strength of a state’s interests served by a challenged voting rule.

Since Arizona’s system generally makes it easy to vote (through a combination of early voting, permanent no-excuse mail voting, and vote centers), and because Arizona has a “strong and entirely legitimate state interest in preventing election fraud,” the Court found that the challenged regulations did not burden voters in a manner that kept the state’s voting process from being equally open to all. According to the majority, both requiring Election Day voters to cast their ballots at their assigned precincts, and requiring voters to cast their own paper ballots or use statutorily authorized proxies for such activities, were examples of “the usual burdens of voting.” The Court also rejected the DNC’s argument that Arizona’s second regulation was racially-motivated, finding no evidence that the legislature’s restriction on early ballot collection was “imbued with racial motives”.

Writing for the dissent, Justice Elena Kagan argued that the majority interpreted Section 2 of the VRA too narrowly, and created a set of extra-textual factors by which to apply the totality of circumstances analysis mandated by the statute. Rejecting this approach, the dissent noted that following a Supreme Court decision in 1980 requiring a showing of discriminatory purpose to support a Section 2 claim, Congress amended the law in 1982 to “make clear that ‘results’ alone” could establish a violation of the VRA. The majority, however, took issue with this analysis, highlighting Justice Kagan’s focus on adopting a disparate-impact standard for legality under Section 2 and placing a least-restrictive means requirement on the facially-neutral regulation of voting by state legislatures.

Given the substantial number of states that have enacted new voting legislation in the wake of the 2020 election and the assortment of legal challenges pending across the country regarding these nascent laws, the legal standards announced in the Brnovich decision will undoubtedly have a huge impact on the implementation and interpretation of state election law in many jurisdictions leading up to the 2022 midterm elections. Much remains to be seen in the wake of this consequential decision, but at the very least the Court’s opinion signals that neutral time, place, and manner rules governing voting will likely withstand Section 2 scrutiny provided that a state’s election processes remain equally open to all voters. The Court’s ruling also likely strengthens the viability of efforts around the country to implement and strengthen state laws restricting third-party ballot collection, sometimes referred to as “ballot harvesting” activities.

Looking ahead to the important 2022 election cycle, Dentons Political Law team will continue to monitor key election litigation, legislation and policy developments nationwide and provide updates as appropriate.