Date Filed: 01/21/2021

In 2016, the DNC sued the state of Arizona, claiming that two of its voting policies violated the Voting Rights Act. In 2020, the full Ninth Circuit U.S. Court of Appeals ruled that Arizona’s ban on out-of-precinct voting which bars the counting of in-person ballots that are cast outside of a voter’s assigned polling place on Election Day and a ballot-collection law which makes it a crime for certain third parties to handle mail-in ballots violate Section 2 of the Voting Rights Act. Arizona appealed to the Supreme Court in April 2020. Brnovich v. Democratic National Committee is the first case after 1982 in which the Supreme Court will interpret Section 2 as applied to vote denial claims. These claims involve challenges to discriminatory voting rules, like voter identification laws, cuts to early voting, and other barriers to registration or voting, that block voting or make it harder to vote.

On January 21 2021, LDF filed an amicus brief in Brnovich v. Democratic National Committee highlighting how the text, history, and Congress’s purpose in enacting Section 2 of the VRA—which prohibits all voting laws that deny or abridge minority voters’ right to vote—requires consideration of all circumstances that burden Black voters and voters of color, including when evaluating present-day discriminatory voting rules. 

According to LDF’s brief, in enacting the Voting Rights Act, Congress designed Section 2 to scrutinize voting laws under the totality of circumstances and prevent voting laws that harm Black and other voters in unique ways because of the public and private discrimination that shapes housing, employment, transportation, and health opportunities, which limit political participation. Our brief urged that given the history of discrimination in this country, the totality of circumstances inquiry must include all acts of discrimination, not just those committed by the state or locality being challenged, as defendants desire. The impact of such laws on Black voters and other voters of color is obscured if they are scrutinized in isolation, i.e., not in the totality of circumstances, given the way that discrimination in all facets of life interacts with the ability to participate in the political process.

“Section 2 was designed to root out racial discrimination in the electoral system. As our brief establishes, Section 2 has a sizeable reach that mandates the consideration of the ‘totality of the circumstances’ when assessing whether a challenged voting rule or practice has resulted in illegal discrimination. Given the history of discrimination in this country, the ‘totality of circumstances’ inquiry must include all acts of discrimination, not just those committed by the state or locality being challenged,” said Mahogane Reed, LDF’s John Payton Appellate and Supreme Court Advocacy Fellow.

In its 2013 Shelby County v. Holder decision, the Supreme Court removed a different provision of the Voting Rights Act, Section 5, which had prevented Arizona from implementing a voting policy at issue in this case. This decision left Section 2 of the VRA as the primary tool that Black and other voters of color have to address current racial discrimination in voting. Plaintiffs in this case successfully relied on Section 2 to challenge Arizona’s discriminatory voting restrictions, but Arizona sought to overturn that result by urging the Supreme Court to narrow the reach of Section 2. 

On July 1 2021, the United States Supreme Court issued its decision in Brnovich v. Democratic National Committee, holding that the Voting Rights Act does not prohibit Arizona voting laws and procedures that prohibit third parties from returning completed absentee ballots and that do not count in-person ballots cast out of precinct, notwithstanding evidence that those provisions had a discriminatory result for voters of color and notwithstanding the lack of any evidence that the provisions were necessary to serve any legitimate state interest. In its opinion, a sharply divided Court substantially narrowed the scope of Section 2 by creating a new test that imposes new burdens on voters seeking to vindicate their rights under Section 2, and which has no support in the statute’s text or history.

The Court’s decision creates new and additional burdens to challenges of discriminatory voting laws. In doing so, it resists the storied and tragic history of sacrifice by Black Americans that led to the passage of the Act, and the democratic ideals the Act was passed to protect. It now establishes an indefensible barrier in Voting Rights Act cases at a time when the statute is most needed. Based on Congress’ purpose in enacting the Voting Rights Act, pervasive and unrelenting acts of voter discrimination, like strict voter ID laws, limits on early voting, and barriers to mail-in voting during a pandemic, negatively impact Black voters in unique ways because of the historic and ongoing consequences of discrimination in education, housing, transportation, healthcare, and more — all must be considered when assessing the discriminatory impact of voting rules. Voters’ experiences during countless elections have made it clear that strong protections are needed to rid the electoral process of systemic discrimination — and voters of color should not be left to overcome these myriad hurdles to the ballot box on their own.

There is an attack on democracy now unfolding in states across in the country—nearly 400 suppression measures have been introduced since the record turnout of Black voters in the 2020 elections and Georgia runoffs—which made the anti-discrimination provisions in Section 2 even more critical. This legislative push represents a clear backlash to the record turnout by Black voters and other voters of color in recent elections and is aimed at suppressing their future participation in the political process. LDF has filed lawsuits challenging the sweeping voter suppression laws in Florida and Georgia. LDF will continue to use all the tools available to protect the right to vote.

The Brnovich decision and the onslaught of restrictive voting legislation underscore the urgent need for Congress to pass robust and comprehensive federal voting rights legislation to protect the right to vote, with provisions like those found in the For the People Act and the John Lewis Voting Rights Advancement Act. No Senate rule – in this case, the filibuster – should take precedence over enforcing the Fourteenth and Fifteenth Amendments or the constitutional rights of Black people.