Case No. 19-1257 & 19-1258 | 9th Cir.
March 2, 2021
Preview by Nick Contarino, Online Editor
Section 2 of the Voting Rights Act (“VRA”) prohibits states from applying any policy that “results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color [or language-minority status].” 52 U.S.C. § 10301(a).Two Arizona voting restrictions are at issue in these consolidated cases: (1) Arizona’s “out-of-precinct policy” whereby Arizona discards ballots cast by a voter in a precinct other than the one to which the voter is assigned, even if the voter cast their vote in the correct county; and (2) Arizona’s “ballot-collection ban” whereby Arizona criminalizes non-fraudulent ballot collection. DNC Respondents’ Brief at 1, Brnovich v. Democratic Nat’l Comm., Nos. 19-1257 & 19-1258 (U.S. filed Jan. 13, 2021). In examining these policies, the Ninth Circuit followed a two-part test whereby it first examined whether the challenged polices resulted in a disparate burden on members of a protected class. See id. at 24. Finding a disparate burden, the Ninth Circuit then evaluated “whether, under the ‘totality of the circumstances,’” there was “a legally significant relationship between the disparate burden on minority voters and the social and historical conditions affecting them.” Democratic Nat’l Comm. v. Hobbs, 948 F.3d 989, 1012 (9th Cir. 2020) (quoting Thornburg v. Gingles, 478 U.S. 30, 47 (1986)). The Ninth Circuit held that both policies violated Section 2 of the VRA. In determining if Arizona’s “out-of-precinct policy” and “ballot-collection ban” violated Section 2 of the VRA, the Supreme Court must also decide if the Ninth Circuit’s test was correct.
The Democratic National Committee (“DNC”)and the Arizona Secretary of State argue that the Supreme Court should affirm the Ninth Circuit, stating that the Ninth Circuit correctly found that Arizona’s policies disparately impact minorities and deny them an equal opportunity to participate in Arizona’s political process. See DNC Respondents’ Brief at 21; Brief of Respondent Arizona Secretary of State Katie Hobbs at , Brnovich v. Democratic Nat’l Comm., Nos. 19-1257 & 19-1258 (U.S. filed Jan. 13, 2021). The DNC states that Arizona’s “out-of-precinct policy” “has disenfranchised over 38,000 Arizonans since 2008.” DNC Respondents’ Brief at 2. Under that policy, minority voters are twice as likely to have their votes rejected as compared to white voters. Id. The DNC also argues that Arizona’s non-fraudulent ballot collection ban is “directly tied to racial discrimination.” Id. It notes that “[u]ncontested evidence in the district court established [that] . . . prior to the enactment of [the ban], a large and disproportionate number of minority voters relied on third parties to collect and deliver their early ballots.” Id. at 3 (quoting Hobbs, 948 F.3d at 1014) (alteration in original). The DNC argues that the Republican effort in the Arizona Legislature to ban ballot collection has “never been anything other than a racially-charged [method] to suppress minority votes.” Id. Respondents argue that the Ninth Circuit’s two-part test is consistent with the text and purpose of the VRA as well as the Supreme Court’s jurisprudence. Id. at 24; Brief of Respondent Hobbs at 16.
The Arizona Republican Party (“ARP”) and Mark Brnovich, the Arizona Attorney General, allege that the DNC’s arguments ignore the statutory text of the VRA and are unconstitutional. See Reply Brief for Private Petitioners at 2, Brnovich v. Democratic Nat’l Comm., Nos. 19-1257 & 19-1258 (U.S. filed Feb. 12, 2021); Reply Brief for State Petitioners at 3, Brnovich v. Democratic Nat’l Comm., Nos. 19-1257 & 19-1258 (U.S. filed Feb. 12, 2021). Focusing on the “denial or abridgment” language in the statute, the ARP argues that race-neutral rules setting the time, place, or manner of voting do not constitute the denial of the right to vote. Reply Brief for Private Petitioners at 2. The ARP states that subsection (b) of the VRA confirms its position, as subsection (b) states that a denial or abridgment occurs if minorities are afforded “less opportunity” to participate in the “political process” than non-minorities. Id. at 3; § 10301(b). The ARP argues that Arizona’s racially neutral policies merely define where, when, and how to vote, and thereby do not result in any racial group having “less opportunity” to participate in the political process. Id. The ARP and Brnovich also allege that if the Court adopted the DNC’s reading of the VRA, it would “let loose a runaway racial-proportionality train” that would raise serious constitutional concerns. Id. at 19. They state that the respondents’ reading “would require race-based action to favor minorities, mandating a sweeping overhaul of ordinary and important election rules without any plausible nexus to ‘enforcing’ the ban on intentional discrimination.” Id. at 17 (emphasis in original).
The DNC and Hobbs respond to the petitioners’ argument that the two-part test will lead to invalidation of neutral election laws nationwide by stating such a claim is “demonstrably hyperbolic.” DNC Respondents’ Brief at 40. They note that this two-part test is “employed by the majority of circuits.” Id. at 14. They also state that the courts, in applying this test, have never achieved the “outcome that Petitioners fear.” Id. at 40. Finally, the DNC and Hobbs also disagree with the ARP’s and Brnovich’s argument that racially neutral time, place, and manner laws do not run afoul of the VRA, noting that this interpretation of the VRA would nullify the VRA’s protections. See id. at 43.