SPLC: SCOTUS Brnovich Ruling Further Undermines VRA, Congressional Action Needed to Restore and Strengthen VRA

WASHINGTON, D.C. – Today, the Supreme Court of the United States issued a decision in Brnovich v. Democratic National Committee and Arizona Republican Party v. Democratic National Committee. The SPLC filed a friend-of-the-court brief in support of the plaintiffs and against two Arizona laws that ban ballot assistance and throw out a voter’s entire ballot solely if they mistakenly voted in the wrong precinct.  

In a 6-3 decision, the Court held that Arizona’s policies disenfranchising in-county voters who cast a ballot but at the wrong precinct and criminalizing the return of a voter’s ballot by someone other than a postal worker, elections official, caregiver, or household or family member do not violate Section 2 of the Voting Rights Act. The Court declined to announce a test that would govern all Section 2 claims involving election administration policies, with no guidance as to how future voting restrictions should be evaluated. 

In her dissenting opinion, Justice Elena Kagan wrote: 
“...But the majority today lessens the [Voting Rights Act] — cuts Section 2 down to its own preferred size. The majority creates a set of extra-textual exceptions and considerations to sap the Act’s strength, and to save laws like Arizona’s. No matter what Congress wanted, the majority has other ideas. This Court has no right to remake Section 2. Maybe some think that vote suppression is a relic of history—and so the need for a potent Section 2 has come and gone...But Congress gets to make that call. Because it has not done so, this Court’s duty is to apply the law as it is written.”

The following statement is by Nancy Abudu, interim director of strategic litigation for the Southern Poverty Law Center (SPLC): 

“A true representative democracy in the U.S. will be achieved when every American, no matter their race, ZIP code, or income level, has easier and open access to cast a ballot free from unnecessary and discriminatory obstacles. The Arizona laws the Supreme Court upheld today are the kind of unnecessary and discriminatory laws the ‘monumental’ Voting Rights Act of 1965 (VRA) was designed to block. 

“Today’s decision makes clear Congress must step up again and ensure every American can cast a ballot and have it counted in future elections. That will happen when the John Lewis Voting Right Act is re-introduced and passed, and the anti-discriminatory protections within the VRA are fully restored free from the Supreme Court’s erosive decisions. 

“The VRA is one of the most important and successful civil rights laws ever passed. Section 2 of the VRA has been an essential tool for voters to fight back against racial discrimination in voting. The majority opinion today creates the conditions for a piecemeal chipping away at Section 2 with every negative election administration decision counties and states continue to make.

“Last week was the anniversary of the 2013 Shelby County v. Holder decision, in which the Court gutted Section 5 of the Voting Rights Act. Without the protection of Section 5, some states and jurisdictions which previously had to preclear new voting changes with the federal government have implemented voting changes – like photo ID laws, polling place closures, and massive voter purges - that have harmed voters of color. 

“In 2021 alone, nearly 400 restrictive voting bills have been introduced in 48 state legislatures across the country based on lies advanced by extremists and the disgraced former president about the security and accuracy of elections held last year.

“Without preclearance in effect, Section 2 of the VRA has been a critical tool for voters to successfully sue states and jurisdictions and end the implementation of laws, policies, and practices that deny or dilute the right to vote for voters of color. 

“Section 2 has been used to successfully challenge many laws passed since the Shelby decision, and is a key building block in the recently filed SPLC litigation challenging Georgia’s SB 202, a sweeping voter suppression bill passed earlier this year. 

“This decision today weakens Section 2 significantly and upholds the Arizona laws at issue.

“Ultimately, with the Shelby decision gutting Section 5, the decision today undermining Section 2 and the difficulty in mounting successful voting rights litigation generally, the John Lewis Voting Rights Act needs swift reintroduction and passage at the federal level now more than ever. The federal government must clarify Section 2’s broad anti-discriminatory intent and restore Section 5’s guarantee of robust Justice Department oversight so states and jurisdictions that erect barriers to voting that harm voters of color have to clear their voting changes once again with the federal government.”
 

ADDITIONAL BACKGROUND:
Brnovich v. Democratic National Committee and Arizona Republican Party v. Democratic National Committee challenge two different Arizona voting provisions as racially discriminatory: a regulation requiring an entire ballot to be thrown out if it was cast at the wrong precinct (the “out-of-precinct policy”); and a law criminalizing anyone but a voter’s family member or caregiver from returning mail-in, absentee ballots for another person (the “ballot collection ban”). 

The Arizona laws were challenged under Section 2 of the Voting Rights Act of 1965 (VRA), which prohibits states and localities from imposing any “qualification or prerequisite to voting or standard, practice, or procedure . . . in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.”  The Ninth Circuit Court of Appeals held that both policies violated Section 2 because they resulted in discrimination against Native American, Latino, and Black voters. The court also held that the ballot collection ban was passed by Arizona’s legislature for a discriminatory purpose, in violation of both the Voting Rights Act and the Fifteenth Amendment to the U.S. Constitution. The court acknowledged that the out-of-precinct policy was more likely to harm voters without a standard address and those who had recently moved, and the ballot collection ban was more likely to harm voters who lacked easy access to outgoing mail services and reliable transportation. Arizona’s voters of color — who are more likely to find themselves in these circumstances — are disproportionately injured by the out-of-precinct policy and ballot collection ban upheld by today’s Supreme Court ruling.