On July 1, 2021, the U.S. Supreme Court made it more difficult to challenge discriminatory voting laws in court by rewriting the law that applies to lawsuits under Section 2 of the Voting Rights Act of 1965.
The case, Brnovich v. Democratic National Committee, concerns a challenge to two Arizona policies as racially discriminatory. The first is a regulation requiring out-of-precinct ballots to be entirely discarded, even votes for president, governor, or some other race in which the voter could have cast a ballot anywhere in the state (the “OOP policy”). The second is a criminal statute barring anyone but a voter’s family member or caregiver from returning early ballots for another person (the “ballot collection ban”).
Section 2 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 Supreme Court agreed to hear an appeal from that decision.
On July 1, 2021, the Supreme Court reversed the Ninth Circuit and upheld both Arizona policies. In doing so, the Court rewrote the law that applies to Section 2 lawsuits, focusing on factors never before considered in these cases, such as whether a state provides more opportunities to vote now than most states did when Section 2 was last amended in 1982. This means it will be even more difficult for voting rights advocates to challenge discriminatory voting laws. The Brennan Center’s statements on the decision are available here and here.
Section 2 took on new significance after a 5–4 majority of the Court gutted Section 5 of the Voting Rights Act in 2013 in a case called Shelby County v. Holder. That decision mothballed the requirement that jurisdictions with a history of race discrimination get certification in advance, or “pre-clearance,” that any election change they wanted to make would not be discriminatory. Now, after the Court’s decision in Brnovich, it will be more difficult for voting rights advocates to rely on affirmative litigation under Section 2 of the Voting Rights Act to stop the new wave of restrictive and discriminatory voting measures that followed the Shelby County decision and intensified this year. Section 2 will still be an option for challenging new restrictive voting bills, but will be much more difficult to use.
The Brennan Center, along with many other partners and allies, filed amicus briefs in support of the respondents, urging that the Court to reaffirm the principle that there must be equal access to the ballot box, free from discrimination, as well as the role that Section 2 plays in ensuring that principle is fulfilled. Below is a link to each brief, along with brief summaries of the most prominent or unique points they made.
You can find links to other important case documents further down the page.
Briefs addressing the practical effects of a robust Section 2
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Brief of State and Local Election Officials
This brief, filed on behalf of 70 state and local election officials, current and former, from 38 states and D.C., explains that Section 2 of the Voting Rights Act supports their work to run fair elections. It refutes the claim of petitioners and their amici that a robust Section 2 hinders legitimate election administration through the threat of litigation, noting that it is difficult to bring Section 2 claims because the law prohibits only discriminatory measures. The law firm Weil, Gotshal & Manges LLP is counsel on the brief.
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Brief of Casper Sleep Inc., with over 250 Business Leaders in Support
This brief, filed on behalf of over 250 business leaders, including companies in the Fortune 500, individual CEOs, board directors, and business academics, argues that the Voting Rights Act is fundamental to the health of America’s economy and markets. The brief draws on business leaders’ understanding of the relationship between an inclusive workforce and economic performance, research showing the economic impact of the Voting Rights Act, and scholarship by leading business academics to argue that robust democracies, free from discrimination, lead to more business-friendly environments. The law firm Paul Hastings LLP is counsel on the brief.
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Brief of State Attorneys General
This brief — filed by the attorneys general of the District of Columbia and 17 states — argues that, in their experience, the Ninth Circuit’s two-step test to evaluate claims brought under Section 2 of the Voting Rights Act does not conflict with states’ role in administering elections. The attorneys general contend that the two-part test protects regulated parties from unnecessary liability by requiring a rigorous, context-specific factual inquiry. The D.C. Attorney General’s office is counsel on the brief.
Briefs addressing the role Section 2 plays in addressing modern discrimination
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Brief of the Leadership Conference on Civil and Human Rights and other public interest organizations
This brief, filed on behalf of the Leadership Conference, the Leadership Conference Education Fund, and 52 other public interest organizations, argues that discriminatory voting policies that disproportionately affect minority communities have been on the rise in the past ten years, and that Section 2 has a vital continuing role in protecting minority voters’ equal access to the polls. The brief explains that the Court’s enforcement of Section 2 plays an important role in the vigilant protection of a fragile democracy. Finally, the brief concludes by comparing the Fifth Circuit’s approach to Section 2 in Veasey v. Abbott to the Seventh Circuit’s approach in Frank v. Walker, and argues that the Seventh Circuit application gives states a free pass to discriminate. The law firm Wilmer Cutler Pickering Hale and Dorr LLP is co-counsel on the brief.
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Brief of National Congress of American Indians
This brief discusses the many barriers Native Americans face to registration and voting as a result of historic discrimination and disenfranchisement that continues to this day. It focuses on the role that ballot collection plays to help Native Americans living on rural reservations overcome these barriers and how bans on ballot collection result in discrimination against Native communities. The Native American Rights Fund is co-counsel on the brief.
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This brief catalogs numerous ways in which facially neutral voting laws deny equal opportunities for Black voters to participate in the political process, both prior and subsequent to the Court’s decision in Shelby County v. Holder, 570 U.S. 529 (2013). It focuses on the amici’s recent experience with discrimination in North Carolina. And it argues that the standard applied by the Ninth Circuit is workable, effective, and necessary to provide protection against ongoing discrimination. The Southern Coalition for Social Justice and Mayer Brown LLP are co-counsel for this brief.
Briefs addressing the challenged policies in Arizona
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This brief details the ways in which the two challenged policies result in discrimination against Navajo voters in Arizona. The brief chronicles the long history of discrimination against Navajos and other Native Americans, as well as the many barriers that Navajo voters currently face, and explains how the OOP policy and the ballot collection ban interact with these realities to cause a violation of Section 2. The law firm Sacks Tierney P.A. and the Navajo Nation Department of Justice are counsel on the brief.
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This brief was filed on behalf of groups that work to register and turn out Latino voters in Arizona, Arizona Center for Empowerment, Chispa Arizona, the League of Women Voters of Arizona, and Mi Familia Vota. The brief discusses the history of anti-Latino rhetoric and discrimination in Arizona and how the challenged policies have a discriminatory burden on the state’s Latino voters. The brief also argues that a robust interpretation of section 2 is the best way to prevent the erosion of Latino voting rights. The law firm Ballard Spahr LLP is counsel on the brief.
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Brief of Fair Fight Action & Arizona Voter Empowerment Task Force
This brief discusses the Arizona Attorney General’s decision to investigate and prosecute two Latina women for felonies for possessing four ballots in alleged violation of the ballot collection prohibition challenged in the case. The brief argues that these prosecutions demonstrate that the prohibition is ripe for abuse and that, as the Ninth Circuit found, it was never really meant to address fraud, but rather as a means to engage in discrimination. W. Scott Bales, Coppersmith Brockelman PLC, Lawrence & Bundy LLC, and Sandler Reiff Lamb Rosenstein & Birkenstock, P.C., are counsel on the brief.
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Brief of Empirical Elections Scholars
This brief, filed on behalf of empirical scholars of elections administration, explains that the justification that Arizona’s legislature gave for passing its ballot collection ban—the need to prevent voter fraud—is not supported by empirical evidence. The brief summarize thse various studies that have been done on the problem of voter fraud and explains that they universally show that voter fraud is exceedingly rare. The law firm Boies Schiller Flexner LLP is counsel on the brief.
Briefs addressing Section 2’s application, scope, and constitutionality
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Brief of the Brennan Center for Justice
This brief details the test that courts apply to evaluate whether a voting policy or practice results in discrimination, and why that test works well to identify discriminatory laws and practices. It focuses on how the so-called “Senate Factors”—a set of factors originally set forth in a Senate report that accompanied Congress’s 1982 amendments to Section 2—guide courts in an evaluation of how and whether the policies in question interact with current and historical discrimination in a jurisdiction to limit the voting opportunities of a particular group. The law firm Cravath, Swaine, and Moore LLP is co-counsel on the brief.
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Brief of ACLU and ACLU of Arizona
This brief responds to petitioners’ arguments that Section 2 should be limited to apply only to facially discriminatory regulations of voter qualifications, and that it should not permit challenges to practices that are common around the country or to practices that limit some voting opportunities, so long as other options theoretically remain open to minority voters. The brief points out that each of these proposed limitations on Section 2 flies in the face of the law’s text, which plainly applies to facially race-neutral measures of any kind that “result” in the discriminatory denial or abridgement of the right to vote, and requires a real-life assessment of the way these measures function in practice.
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Brief of Campaign Legal Center
This brief explains the test courts apply to claims under Section 2 as a combination of two causation requirements: first, plaintiffs must show that a challenged practice “results in” a disproportionate burden on minority voters; then, they must show, based on the totality of circumstances, that this burden on voting happened “on account of” race. The brief sets out in detail how these causation requirements combine to ensure Section 2’s constitutionality.
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Brief of Constitutional Accountability Center
This brief stresses the breadth of Congress’s power under the Fifteenth Amendment. The brief reviews the history and context of the Amendment to explain its far-reaching scope and argues that Section 2’s “results test” falls squarely within its reach. For this reason, the brief argues, the Court should reject the limitations on Section 2 proposed by petitioners and their amici.
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Brief of NAACP and the Lawyers’ Committee for Civil Rights Under Law
This brief responds to a litany of arguments made by petitioners and their amici calling for the Court to either find Section 2 unconstitutional or severely limit its application. The brief explains that Section 2 must be interpreted broadly in order to combat pernicious discrimination, that most federal courts have interpreted it appropriately thus far, and that the standard they have applied has been smoothly functioning for decades. The law firm Cooley LLP is co-counsel on the brief.
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Brief of NAACP Legal Defense & Educational Fund, Inc.
This brief argues that it would be contrary to text, history, and purpose, as well as long-standing precedent, to read Section 2 to prohibit only voting laws that interact with state-sanctioned racial discrimination to cause significant disparities in access to the franchise. Rather, Section 2’s inquiry into the causal link between a challenged practice’s racially discriminatory impact and the totality of the circumstances in the jurisdiction is intended to expansively capture laws that operate within the full scope of socio-historical and ongoing conditions to deny or abridge the right to vote.
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Brief of Professor Travis Crum
This brief, filed by a scholar of voting rights and constitutional law, argues that the Fifteenth Amendment’s protection of voting rights goes beyond the protections provided by the Fourteenth Amendment, providing an independent source of authority for Congress to enact Section 2 of the Voting Rights Act. Additionally, the brief argues that the Fifteenth Amendment was intended to ban all forms of racial discrimination in voting, and not just discrimination against African Americans. The law firm Holwell Shuster & Goldberg LLP is counsel on the brief.
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This brief is filed on behalf of a group of staffers to both Democratic and Republican members of Congress that leaders of nongovernmental organizations that were intimately involved in the passage of the 1982 Amendments to the Voting Rights Act. The brief explains that those amendments were intended to create one standard for evaluating all procedures that, as a practical matter, deny minority groups equal opportunity to participate in the political process. That standard requires more than a mere “disparate impact,” but takes into account that some procedures produce discriminatory results because of the historical and social context in which they operate. The brief rebuts contrary statements about congressional intent made by petitioners and their amici. The law firm Kendall Brill & Kelly LLP is counsel on the brief.
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Brief of Voting Rights Scholars
This brief, filed on behalf of four voting right scholars, underscores the fact that Section 2’s importance and constitutionality has long been accepted without question, including by the Court. Thus, the brief notes, accepting the arguments of those challenging Section 2’s constitutionality would mark a substantial departure from prior precedent. Finally, the brief notes that because the disputes in the case are about the specific facts of how two policies functioned in Arizona—facts that have changed significantly since trial—it would be unwise for the Court to use this case as the vehicle for considering substantial constitutional questions. Justin Levitt and the law firm Davis Wright Tremaine LLP are counsel on the brief.
