Symposium
on February 24, 2021
at 1:41 pm
This article is the final entry in a symposium about the next discussion in Brnovich v. Democratic National Committee. Our sample case is on here.
Loren L. AliKhan is the attorney general for the District of Columbia. Harrison Stark is an appeals litigation investigator in the Attorney General’s Office within the DC Attorney General’s Office. The district was the author of a brief amicus on behalf of 18 states asking for affirmation.
As anyone after last year’s election can tell you, states play a crucial role in managing the democratic process. Although Congress retains the power to regulate some aspects of federal elections, the basic details of electoral administration still lie with states and municipalities. This “hyperfederalized” system (to use Alec Ewald’s memorable phrase) has been a central aspect of American self-government since the beginning. As Alexander Hamilton wrote in the Federalist Papers, “the regulation of federal government elections” falls “in the first instance[] to local administrations “, which, he predicted,” may be more convenient and more satisfactory “.
The Supreme Court had ample opportunity to emphasize this principle recently, when it rejected contestation after contesting the voting procedures established by the states in the run for the 2020 presidential election. Freezing a court order that would have granted relief from the Carolina’s signature witness requirement. South because of COVID-19, Judge Brett Kavanaugh seemed to grasp the Roberts court approach when he wrote that the choices of a state’s electoral administration – even those that could put voters at risk of a deadly disease – “should not be divination object by an ‘unelected federal judiciary’, which lacks the [necessary] history, competence and experience … and is not accountable to people. ‘”
The day after the South Carolina authorities asked the Supreme Court for this suspension, the court granted certiorari in Brnovich v. DNC and Arizona Republican Party v. DNC (collectively, “Brnovich”). More strictly, these now consolidated petitions refer to the fact that two Arizona-specific electoral rules violate the results of the Voting Rights Act. But the dispute sets the stage for a potentially greater – and more worrying – confrontation between federal civil rights legislation and state control over elections more broadly. Fortunately, this conflict is illusory.
Since 1982, Section 2 of the Voting Rights Act has prohibited any state policy or procedure that “results in a denial or a reduction in the right of any United States citizen to vote for reasons of race or color.” As detailed in its amicus brief, Section 2 of the NAACP Legal Defense and Educational Fund, Inc. has recently acquired renewed importance. Most Section 2 “outcome” litigations have historically focused on “vote dilution” claims aimed at drawing district boundaries and composing political subdivisions – in other words, these processes challenged the relative Weight granted to votes cast in opposition to an individual’s ability to register or vote first. But after the Supreme Court dismantled the Section 5 pre-compensation regime in Shelby County x Holder, voting rights advocates increasingly resort to the Section 2 discriminatory results test to challenge the vote denial, also.
The US Court of Appeals for the 9th Circuit, like almost all other federal appeals courts, adopted a two-part test for Section 2 denial of vote claims rooted in the family structure of Thornburg v. Gingles, the test asks first whether the contested law “results in a different burden for members of the protected class”. If so, the test asks “whether, in ‘all circumstances’, the disproportionate burden on minority voters interacts with existing conditions of discrimination, in order to” cause an inequality in the opportunities they enjoy [minority] and white voters to elect their preferred representatives or to participate in the political process. ”Applying this test in the current case, the en banc 9th Circuit found that two of Arizona’s neutral electoral provisions violated the Voting Rights Act.
Brnovich it is the Supreme Court’s first opportunity to consider a denial of vote complaint under Section 2, and the petitioners seek to put these complaints on a collision course with the “primary role of states … in structuring and monitoring the electoral process” . In the account of the petitioners and their friends, the two-part test is an assault on the sovereignty of the state that “lists[s] the courts on a party project to maximize minority voting rates ”and threatens to“ sweep almost all registration and voting rules ”.
As we argued in an amicus brief on behalf of 18 states, the two-part test does not do that. Section 2 simply asks whether, in “all circumstances”, minority voters “have less opportunity than other members of the electorate to participate in the political process and elect representatives of their choice”. Far from undermining judicial deference to state legislatures, Section 2 ensures that this deference is well placed. In asking whether state political systems remain responsive to all voters regardless of race, Section 2 simply requires the pledge of republican government states to operate as advertised.
While the purpose of Section 2 is profound, its burden on state electoral systems is not. States have long planned and conducted elections against the backdrop of Section 2; after all, the Senate report that accompanied the 1982 amendments described it as “the main statutory prohibition on all discrimination of voting rights”. And, unlike the framework of the petitioners and their amici, Section 2 is not a purely disparate impact provision – which is why no court of appeal, including the 9th Circuit, imposes Section 2 liability based solely on the disparate impact. Instead, the two-part test protects states from unnecessary liability, requiring a rigorous and context-specific factual investigation to determine whether the disparate impact of a contested procedure really operates to make a political process “not equally open to participation by members of a class of citizens”. As our experience demonstrates, the rigorous factual requirements of this test impose legal and practical restrictions on liability, making it unlikely to reflexively invalidate any state’s electoral procedures.
To be sure, the two-part test is not perfect. Congress approved the 1982 amendments seeking the court’s decision on Mobile City v. Bolden, a case of dilution of votes. But from the perspective of state autonomy, this imperfect fit is the extent of the shortcomings of the two-part test. At worst, the two-part test for denial of voting acts as a creative but faithful heuristic – in the words of the United States Court of Appeals for the 5th Circuit, “a sufficient and familiar way of limiting court interference in ‘neutral’ electoral laws for those who really have a discriminatory impact under Section 2 of the Voting Rights Act. ”And, like the vote-diluting structure, the two-part test vindicates the constitutional values that animated approval Section 2 by Congress, while protecting states from unnecessary legal exposure.
When the Supreme Court immediately faces this case, it must reject any imaginary conflict between multiracial democracy and state autonomy. None exists.