Brnovich v. Democratic National Committee

Great Debates
1

Continuing the discussion from The Republican War on Voting Thread:

My vision for this topic is general discussion on the merits of the case, purely political commentary can stay over in P&E.

In a nutshell, in 2016 the Democratic National Committee and Arizona Republicans went to court over whether some of Arizona’s voting laws violate section two of the (amended) Voting Rights Act of 1965 (VRA) and Amendment XV to the Constitution. The two provisions of state law being challenged:

  • out-of-precinct (OOP) policy: votes cast in the wrong precinct will be discarded, if the county decides to use voting precincts (Arizona allows counties to use an alternate model which is not at issue here)
  • ballot-collection law: it is a crime to collect someone else’s early ballot, unless you are a family/household member, caregiver, mail carrier, or election official

The DNC alleged that both the out-of-precinct policy and the ballot-collection law violated section two of the Voting Rights Act. They also alleged that the ballot-collection law was enacted with racial discriminatory intent, in violation of section two of the VRA and the Fifteenth Amendment.

In 2018 the District Court ruled in favor of Arizona on all counts, and a split 9th Circuit panel upheld that ruling. The case was reheard before the full 9th Circuit court, who reversed in favor of the DNC: both provisions violated the VRA and the District Court clearly erred in deciding whether the ballot-collection law was enacted with discriminatory intent.

Arizona petitioned the Supreme Court, which granted certiorari. Just this month the Supreme Court reversed the 9th Circuit without providing a general test. Here are my highlights of the opinion,

Regarding the out-of-precinct policy: (click to show/hide)
  • "Having to identify one’s own polling place and then travel there to vote does not exceed the “usual burdens of voting.”
  • “the racial disparity in burdens allegedly caused by the out-of-precinct policy is small in absolute terms […] A policy that appears to work for 98% or more of voters to whom it applies—minority and non-minority alike—is unlikely to render a system unequally open.”
  • “precinct-based voting has a long pedigree in the United States […] [a]nd the policy of not counting out-of-precinct ballots is widespread.”
  • “Section 2 [of the VRA] does not require a State to show that its chosen policy is absolutely necessary or that a less restrictive means would not adequately serve the State’s objectives.”
  • “In light of the modest burdens allegedly imposed by Arizona’s out-of-precinct policy, the small size of its disparate impact, and the State’s justifications, we conclude the rule does not violate §2 of the VRA.”
Regarding the ballot-collection law and the VRA: (click to show/hide)
  • “Arizonians who receive early ballots can submit them by going to a mailbox, a post office, an early ballot drop box, [&etc. …] Making any of these trips—much like traveling to an assigned polling place—falls squarely within the heartland of the ‘usual burdens of voting’.”
  • “Every county must establish a special election board to serve voters who are ‘confined as the result of a continuing illness or physical disability,’ are unable to go to the polls on election day, and do not wish to cast an early vote by mail.”
  • “Arizona law also requires employers to give employees time off to vote when they are otherwise scheduled to work certain shifts on election day.”
  • “The plaintiffs were unable to provide statistical evidence showing that HB 2023 had a disparate impact on minority voters. […] without more concrete evidence, we cannot conclude that HB 2023 results in less opportunity to participate in the political process.”
  • “Even if the plaintiffs had shown a disparate burden caused by HB 2023, the State’s justifications would suffice to avoid §2 liability. ‘A State indisputably has a compelling interest in preserving the integrity of its election process.’ […] Limiting the classes of persons who may handle early ballots to those less likely to have ulterior motives deters potential fraud and improves voter confidence.”
  • “third-party ballot collection can lead to pressure and intimidation. And it should go without saying that a State may take action to prevent election fraud without waiting for it to occur and be detected within its own borders. Section 2’s command that the political processes remain equally open surely does not demand that ‘a State’s political system sustain some level of damage before the legislature [can] take corrective action.’”
  • “As with the out-of-precinct policy, the modest evidence of racially disparate burdens caused by HB 2023, in light of the State’s justifications, leads us to the conclusion that the law does not violate §2 of the VRA.”
Regarding the ballot-collection law and discriminatory intent: (click to show/hide)
  • “If the district court’s view of the evidence is plausible in light of the entire record, an appellate court may not reverse even if it is convinced that it would have weighed the evidence differently in the first instance.”
  • “[Arizona State Sen.] Shooter made what the court termed ‘unfounded and often far-fetched allegations of ballot collection fraud.’ […] But what came after the airing of Shooter’s claims and a “racially-tinged” video created by a private party was a serious legislative debate on the wisdom of early mail-in voting. That debate, the District Court concluded, was sincere and led to the passage of HB 2023 in 2016.”
  • “We are more than satisfied that the District Court’s interpretation of the evidence is permissible. The spark for the debate over mail-in voting may well have been provided by one Senator’s enflamed partisanship, but partisan motives are not the same as racial motives. […] And while the District Court recognized that the ‘racially-tinged’ video helped spur the debate about ballot collection, it found no evidence that the legislature as a whole was imbued with racial motives.”
  • “The Court of Appeals nevertheless concluded that the District Court committed clear error by failing to apply a ‘cat’s paw’ theory sometimes used in employment discrimination cases. […] A ‘cat’s paw’ is a ‘dupe’ who is ‘used by another to accomplish his purposes.’ […] The ‘cat’s paw’ theory has no application to legislative bodies. The theory rests on the agency relationship that exists between an employer and a supervisor, but the legislators who vote to adopt a bill are not the agents of the bill’s sponsor or proponents. Under our form of government, legislators have a duty to exercise their judgment and to represent their constituents. It is insulting to suggest that they are mere dupes or tools.”

"Arizona’s out-of-precinct policy and HB 2023 do not violate §2 of the VRA, and HB 2023 was not enacted with a racially discriminatory purpose. The judgment of the Court of Appeals is reversed, and the cases are remanded for further proceedings consistent with this opinion.

It is so ordered."

Primary sources below.

~Max

§2 of the Voting Rights Act of 1965, as amended (click to show/hide)

§10301. Denial or abridgement of right to vote on account of race or color through voting qualifications or prerequisites; establishment of violation

    (a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision 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, or in contravention of the guarantees set forth in section 10303(f)(2) of this title, as provided in subsection (b).

    (b) A violation of subsection (a) is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) 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. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided , That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.

Amendment XV to the U.S. Constitution (click to show/hide)

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

District Court Opinion (4.54 mB PDF, p. 246-363 [JA 242-359])

9th Circuit Panel Opinion and Dissent (same document as above, p. 364-496 [JA 360-492])

9th Circuit en banc Opinion and Dissent (same document as above, p. 580-834 [JA 576-830])

Arizona’s brief (316 kB PDF)

DNC’s brief (438 kB PDF)

Supreme Court Opinion (646 kB PDF)

2

In my opinion, the majority made the right decision. But there are a couple parts I do not agree with.

The Court takes pains to note how Arizona tries to educate its voters on correct polling places. It does not address the DNC’s allegations that Maricopa County "election officials ‘repeatedly misrepresented or mistranslated key information in Spanish-language voter materials.’” If the state intentionally or with reckless negligence misrepresents the minority assistance touted, then the court’s argument here falls flat.

It is not clear to me how many people were actually affected by mistranslations. I am led to believe the number of people whose ballots were thrown out due to the out-of-precinct policy numbers around four thousand people over three years (?). The number who might have done so because of the state’s alleged mistranslations would probably be a small fraction of that.

I do not understand why this is relevant whatsoever. Earlier in the background section of the opinion, the court says the laws in effect in 1983 provide some sort of guideline as to what the VRA means by ‘equally open’ or ‘equal opportunity’. That makes zero sense to me, the 1983 amendment which added that language was a change to existing law. You cannot interpret laws as if each law is compatible with the status quo at the time - it would be impossible to make changes via law. It makes even less sense to apply this logic to legislation so radical and progressive as the Voting Rights Act.

I may have missed something basic here, but I do not understand how a State’s interests - no matter how “compelling” - can override federal legislation regulating the time, place, or manner of federal elections. The federal government has the explicit constitutional authority to override State regulations concerning federal elections. State police powers are no defense, right?

Article I, section 4

“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”

So the court’s backup argument is out.

~Max

3

The points you disagree with are going to wind up mattering the most in the long run. IMO the court made the decision it did using the reasoning it did so that they could weaken multiple facets of voting rights law and give the court system more cover to allow voter suppression in future cases.

The court’s decision could have been even more expensive - they could have allowed it to set precedent for anything covered by the VRA. However making it as expansive as it was, as you demonstrated requires creative interpretation.

4

I’m not familiar with that factual portion. But I would assume that the District Court heard evidence on that and made a determination in the state’s favor that was not appealed. As the Court didn’t address it, I don’t have enough knowledge of what exactly happened to comment on it.

I agree with the Court here. I also understand your position. However, you look at what the law is trying to do. Obviously you can change the law. If the drinking age is 21 today, you can say it is 18 tomorrow. Courts won’t have a problem with that.

But in this instance, when Congress passes an amendment to the VRA in 1982 and you are trying to interpret what it means, you look at the understanding and surrounding context. If Congress was saying that the voting laws of all 50 states were now illegal, which you would have to say to adopt the DNC’s argument that the AZ law was illegal, you would have expected more to be said about it at the time. You wouldn’t expect such a drastic sea change in law to be hidden in vague phrases like “equally open” or “equal opportunity” so that the public has to make five different leaps to come to the conclusion that all 50 states now have to change the law.

Especially given that the VRA itself is billed as a limited intrusion only into those states with a history of racial discrimination always keeping ahead of the feds trying to police them.

Given all of that, I agree with the Court that a proper construction of this amendment would be that Congress did not intend to prohibit such a widespread practice, so we need to look elsewhere for the correct meaning.

Indeed Congress may do that, but the initial question is did they try to do it? They did not. The justification for the VRA was section 2 enforcement powers in the Fifteenth Amendment to prohibit racial discrimination in voting by the state processes. Congress did not “make or alter” any regulations except those that discriminated based upon race. I think surely in a different case where Congress did in fact directly regulate the times, places, and manner of elections, it would clearly be in its power to do so. But I think that is the Court’s point—if Congress wanted to do that, why hide it in such vague language?

5

Is this the rule you apply across the board when it comes to how legislation should be interpreted? It’s relevant to your consideration what you “should” have “expected…to be said” if the plain meaning was intended?

And then, separate question from the above, but if you were able to zoom back into the minds of the people who actually passed this act and the relevant amendments, actually in the real world and not in a statutory construction sense, what do you think they would think about the state of their legislation as applied in July of 2021? I’m genuinely curious how you think they would think this is going, particularly if you think that matters.

6

It’s not me. You are responding as if I made this up. The Supreme Court has talked about this in many cases and used the phrase “Congress doesn’t hide elephants in mouseholes.”

I dispute your “plain meaning” argument. Those are very broad and vague terms which don’t lend themselves to plain meaning.

Finally, yes, I think if you told any Congressman from 1982 that a voting law required a voter to vote at the correct precinct or mail a ballot in that wasn’t collected by a third party, they would not object to that in any way. How do we know this? Because they lived in a world where all 50 states required a correct precinct, but didn’t provide any mail in option and were fine with that.

7

To clarify, I do not believe that you made up the Supreme Court opinion with the caption Brnovich v. DNC. I was asking you about the post you wrote, and while I don’t really agree that the court has talked about “this” many times in previous cases, where “this” is the opinion you’re putting forward, that isn’t really the question. My first question was just whether you always take into account how much you understood people to have complained at the time about a piece of legislation before deciding what it means.

And to further clarify, my second question wasn’t what you think the drafters would have said about this case, since your opinion on that was already clear. It was whether, if you took all the people who passed the VRA and subsequent amendments, and asked them all whether the entire act and its amendments were being applied in keeping with what they expected and desired when they passed it, you think they would say “yes, this is how it was supposed to go.” Or whether, for example, you think they might say “this was supposed to change things much more than it has, that is why we passed it.”

8

The district court both touted and derided Arizona’s bilingual voter education materials (JA 304-305; JA 310).

In addition, several Arizona counties, including Maricopa and Pima Counties, operate online polling place locators that are available in English and Spanish. Voters also can learn their assigned polling locations by calling the office of the county recorder for the county in which they reside. Counties spread awareness about polling place locations and the consequences of OOP voting through news and social media. This information is communicated in both English and Spanish.

Along with the State’s hostility to bilingual education, Maricopa County has sometimes failed to send properly translated education materials to its Spanish speaking residents, resulting in confusion and distrust from Hispanic voters. For example, in 2012, Maricopa County misprinted the date of the election on over 2,000 Spanish language information cards and bookmarks, some of which were distributed into the community. (Ex. 89 at 22; Ex. 91 at 51; Healy Dep. 114:1-22.)

~Max

9

No, I do not agree with this kind of interpretation. If you are faced with an ambiguous word or phrase, or even a term of art, it is in my opinion fine to look at the legislative history or other historical sources. Not so when it comes to standards of what is or is not acceptable.

For example, look at the words commonly given to juries in criminal cases: “reasonable person”. A “reasonable person” described by an act of 1850 is not to be interpreted as a person whose idea of “reasonable” matches the social standards of 1850. Yet, logically your theory extends to statutes that mention a “reasonable person”.

Look at the words “equally open” and “equal opportunity”. These words have not undergone any significant change in definition since 1982 - there is no dispute in the record as to whether Arizona’s policies present a burden. The answer is yes at every level of litigation, trivially. The question is whether an act presents a reasonable burden to equal openness or opportunity. You don’t get to go back and ask 1982 what is or is not reasonable today. That would be literally backwards-thinking. If Congress had wanted to enshrine the standards of 1982 into law, it could have done so explicitly.

You and the Court attempt to make a coherent argument here, “Congress doesn’t hide elephants in mouseholes”. But it fails to apply to this situation. The totality of circumstances in 1982 would not, in my opinion (nor the Court’s), allow me to conclude an OOP policy such as here burdens equal openness to election participation. I don’t even think the current policy creates such a burden - I agree with most of the Court’s opinion. Going to the right polling place is a normal part of voting today, coincidentally it was a normal part of voting in 1982.

The reasoning you present - that the NDC’s argument is wrong, therefore the statute should be interpreted according to the intent of its drafters in 1983 - is fallacious.

Nonsense, it is the Court’s duty to interpret any given law as favorably to Congress as possible. There is no requirement that Congress cite its authorities in positive law, let alone that any cited authorities are dispositive.

Whatever your interpretation of “equally open”, the statute in question clearly prohibits the States from doing something, and if it is admitted that the State did do that something, a violation “is established”. No exceptions are allowed for in the text of the statute.

Even if you are right about the act being limited to Amendment XV’s section 2 enforcement power, note that the Amendment is explicitly superior to State laws and is not constrained by compelling interest jurisprudence (concerning Amendment XIV). In adopting Amendment XV the States quite explicitly resigned their sovereign powers to deny citizens the right to vote on account of race. In so far as Congress is exercising that power, it is no defense for a State to claim they are justified by “compelling” interests.

~Max

10

I agree that if a law discusses what a “reasonable person” would do, then every time you apply the law, whether in 1850 or 2021 or 1987, you apply it to what a reasonable person would have done at that point in time.

However, I disagree with the leap you then take. “Equally open” and “equal opportunity” are not definitions which change with time–or at least haven’t in any relevant sense. An opportunity that was equal in 1982 is still equal today. If it was equally open in 1982, it is equally open today. But as you said, what do those terms mean in this context.

They are inherently ambiguous. One could argue that whites and minorities alike have to find the correct polling place or whites and minorities alike have to place their ballot in the mail without third party help. Equally open; equal opportunity. Or you can go the complete other way and say that the smallest detail that might hurt minorities as a whole, no matter what it is, will invalidate the election law. Or the answer could be somewhere in between.

So in order to find out, the Court cobbled together five factors from its previous cases and the text of the law to look at the “totality of the circumstances” to try to find out what “equal” means in this context. And in just one of the factors in this totality, it noted that it is unlikely that Congress was invalidating the voting laws of all 50 states in 1982. The opinion didn’t rise or fall on this observation. It was one of many factors the Court considered.

Also, I believe you made a logical error by inserting “reasonable” in describing whether the law was reasonable equally open, and then comparing it back to the reasonable person standard. That word appears nowhere in the statute or the opinion. That is simply not the test. Many voting laws could be reasonably equally open and reasonably provide equal opportunity yet still be in violation of the VRA.

What is “favorably” to Congress in this context? If you apply the VRA more harshly to states than Congress wrote, then that is just as unfavorable as applying it more leniently if that is not what Congress wrote. The “favorably” comes into play when the Court is striking down an act of Congress as unconstitutional, which it did not do here. This is plain statutory interpretation.

Further, it is indisputable that Congress did not make or alter any election law. It didn’t say that AZ must conduct its congressional elections in this particular way. It didn’t pass a law overriding a particular regulation of AZ election law. The VRA was passed precisely because Congress would alter a regulation only to have the state pass another racially restrictive law.

The DNC claimed, and nobody disputed, that this was a question of statutory construction of the VRA enacted under powers granted to Congress by article two of the Fifteenth Amendment.

As far as “compelling interest” you are correct in that if the law conflicts with the VRA, it doesn’t matter how compelling the state interest is. However, that is not how the Court used that term. In order to determine if there was racial animus involved, the Court looks to see if the state otherwise has a compelling interest. If it does, then that makes it far less likely there was racial animus.

11

I think you have misremembered. The Court’s consideration of the state’s interests is one of the “circumstances” for the purpose of determining whether the state’s election process is “equally open to participation by members of” eg: Black, Hispanic, and Native American citizens. I’m looking at p. 19 and 32 (also 28-29) of the opinion. Racial animus is dealt with in section V, p. 34-38.

Critically, the state’s interests are part of the results test (p. 32 of the opinion). The state’s interest is apparently strong enough to avoid liability despite a showing of ‘disparate burden’ - meaning a showing that the policy is actually “not equally open to participation by members of a class of citizens protected by” 52 U.S.C. §10301(a). Quote from p.32,

Even if the plaintiffs had shown a disparate burden caused by HB 2023, the State’s justifications would suffice to avoid §2 liability.

I struggle to understand where the Court’s opinion on this matter of statutory construction is supported by the text of the statute.

~Max

12

That doesn’t hold if you are taking the totality of circumstances into consideration. Circumstances may change between 1982 and 2021 which would cause the same process to be considered equally open to all races in 1982, and to disproportionately burden minorities in 2021.

You and I agree that the definitions of “equally open” and “equal opportunity” have not changed over time. But you seem to think the terms are ambiguous. I do not. You write, “you can go the complete other way and say that the smallest detail that might hurt minorities as a whole, no matter what it is, will invalidate the election law”. To an extent I agree, the smallest change in process that actually causes elections to be less than equally open to all races, is in fact enough to make that election process unequal to all races. I don’t think that necessarily invalidates the election law, though, because the previous sentence does not touch on the totality of the circumstances.

So when you write,

You have it backwards. One should look at the law in modern context, taking into consideration the totality of the circumstances, and try to find out if the elections process is equally open to all races.

The statutory word “circumstances” refers to the circumstances surrounding the elections process today, just like “reasonable person” in a criminal statute applies to a person today. It does not apply to the circumstances surrounding the elections process in 1982, nor the circumstances surrounding the enactment of the law itself.

Don’t look at state laws from 1982 for the meaning of ‘equal’. ‘Equal’ is not ambiguous. Find out if the process is equally open to all, as the statute literally directs.

If this is not the Court proclaiming that all voting rules present a burden, and applying a test of reason, I do not know what reason is.

After all, every voting rule imposes a burden of some sort. Voting takes time and, for almost everyone, some travel, even if only to a nearby mailbox. Casting a vote, whether by following the directions for using a voting machine or completing a paper ballot, requires compliance with certain rules. But because voting necessarily requires some effort and compliance with some rules, the concept of a voting sys-tem that is “equally open” and that furnishes an equal “op-portunity” to cast a ballot must tolerate the “usual burdens of voting.” Crawford v. Marion County Election Bd., 553 U. S. 181, 198 (2008) (opinion of Stevens, J.).

I admit to not having done my due diligence before. Now that I’ve read Crawford I think the Court made a grave error in citing it. That case and the cases it rests upon deal with state elections, not federal elections. The analysis relied upon deals with equal protection clause theory under the Fourteenth Amendment, which does not apply here.

Yet without some kind of reasonableness test, I admit my interpretation of the statute is unworkable. Every voting process is at least slightly disparate in impact across any cut of the population, be it race, age, sex, &etc. Even taking all circumstances into account, only an ideal electoral process is ever equally open.

And there is no judicial remedy I can think of if the statute is properly unworkable.

What a conundrum. :frowning:

~Max

13

That is a very valid point in general. If you could show that traveling to a correct polling place became more difficult for minorities in 2021 compared to 1982, then that would make a difference. But AFAIK, nobody has made that claim. As such, my point stands. Getting to a correct polling place was no more difficult in 1982 than in 2021, so if it was “equal” then, it is equal now.

I disagree. You are using the term “equal” to mean “absolutely equal in all respects.” Nothing in life or law is absolutely identical in all respects, which is the force you are giving the word “equal.” That may be the definition of the word in science or mathematics, but not in law. In that sense, the word “equal” is definitely ambiguous. How equal are we talking about?

All of the Court’s decisions are predicated on that point, including Crawford, written by Stevens. The “usual burdens of voting” such as going to the correct polling place, or proving identification are just flat outside any of these corrective pieces of legislation. If you take this instead of your position, the statute is perfectly workable.

14

That is not what I meant by process. The opinion goes into this, the statutory word “process” refers to the entire election process and not any one aspect.

For example lets say there is a particular method of voting that disproportionately burdens Hispanic voters, but the state also has a particular method of voting that disproportionately caters to Hispanic voters. Think the location of registration sites near Hispanic communities vs registration online (presuming Hispanic citizens have significantly less access to internet). In theory the two could balance out, making the process as a whole equally open to all races.

~Max