on Feb 17, 2021
at 11:00 am
Christopher Kieser is an attorney at the Pacific Legal Foundation. He filed an amicus brief on behalf of the foundation and other groups in support of the Arizona attorney general and the Arizona Republican Party.
In the aftermath of the chaos that was the 2020 election-related litigation, it is easy to forget that the Supreme Court is now set to decide the most consequential election law dispute in nearly a decade. At issue in Brnovich v. DNC and Arizona Republican Party v. DNC is nothing less than the future of Section 2 of the Voting Rights Act, the nationwide prohibition of any election regulation that “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 court will likely resolve a significant circuit split over whether a disparate racial effect alone renders unlawful an otherwise legitimate state election regulation. In doing so, the court will set the boundaries for future state election laws, and it may even comment on the continuing vitality of disparate-impact liability.
Almost all agree that Congress intended its 1982 amendment to the Voting Rights Act at least in part to override the Supreme Court’s holding that the previous version required proof of discriminatory intent. But, as the briefing in these cases demonstrates, the scope of the change is highly contested. One of the policies being challenged is Arizona’s decision not to count ballots cast in the wrong precinct on Election Day. Because the challengers do not assert discriminatory intent with respect to that policy, it will almost certainly rise or fall based on the court’s interpretation of the so-called “results test” of Section 2.
In holding that Arizona’s policy violates Section 2, the U.S. Court of Appeals for the 9th Circuit placed itself clearly on one side of the circuit split. Even though the impact of out-of-precinct votes was minimal by any standard — less than 1% of all votes cast in recent elections — the court held that the racial makeup of the voters who cast these ballots rendered it suspect under Section 2. It reasoned that because minority voters were more likely to move and to live farther away from their assigned precinct, the policy against counting ballots cast in the wrong precinct “results” in the denial of the right to vote on account of race. The court did not meaningfully consider Arizona’s interest in streamlining election administration.
The 9th Circuit’s opinion tracks those of other circuits in similar cases. Particularly, the U.S. Court of Appeals for the 4th Circuit invalidated North Carolina’s decision to eliminate same-day registration and not count out-of-precinct votes, while the U.S. Court of Appeals for the 5th Circuit struck down Texas’ photo ID requirement. These courts essentially used a two-part test, requiring proof of disparate racial effect (for example, the fact that more Black or Hispanic voters relied on a particular method of voting) coupled with the existence of socioeconomic disparities and past racial discrimination. But because socioeconomic disparities and some form of past discrimination are sadly ubiquitous, this approach effectively renders Section 2 a disparate-impact statute. Any racial disparity in the usage of a particular voting practice thus becomes a violation of federal law, irrespective of the propriety of the policy or the state interest involved.
One consequence is to vault race to the center of every debate over election regulation, requiring state lawmakers to consider and discuss the potential racial effect of every significant voting law. Such a focus on race distracts from important concerns about the efficacy of various election policies. But more fundamentally, it hastens a conflict between Section 2 and the Constitution’s equal protection clause. That is why the court has warned against unfettered disparate-impact liability in similar contexts. For example, even as it held that the Fair Housing Act authorized disparate-impact liability in Texas Department of Housing v. Inclusive Communities Project, the court carefully emphasized the need for a “robust causality requirement” to protect “defendants from being held liable for racial disparities they did not create.” Without that safeguard, the court recognized, governments would inevitably turn to unconstitutional race-based decision-making to avoid liability.
The approach taken in the 4th, 5th and 9th Circuits contains no meaningful causation requirement. States — even those with a history of official discrimination decades ago — cannot indefinitely be held responsible for every extant socioeconomic disparity. Indeed, these courts would effectively impose the “non-retrogression” standard of Section 5 of the Voting Rights Act, which prohibits certain covered jurisdictions from enforcing any voting law that has a disparate impact on any minority group. But Section 5’s standard was never meant to apply nationwide (since Shelby County v. Holder, it effectively applies nowhere), and applying such a standard nationwide would be constitutionally questionable in any event.
Fortunately, the text of Section 2 does not support, much less require, such a broad interpretation. The statute instead speaks of equality of opportunity — a violation occurs when the political processes “are not equally open to participation by members of a class of citizens protected” by the Voting Rights Act, such that the protected group has “less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice” (emphasis added). It mandates an inquiry into the totality of the voting regime to determine whether a protected group lacks equal opportunity to participate in elections. And the emphasis on opportunity focuses the inquiry on whether state action has actually caused the observed racial disparity. As Judge Frank Easterbrook put it for the U.S. Court of Appeals for the 7th Circuit in sustaining Wisconsin’s voter ID law, Section 2 is an “equal-treatment requirement,” not an “equal-outcome command.”
The Supreme Court should settle this long-standing circuit split in favor of the equal-opportunity interpretation of Section 2. Under this reading, Arizona should be permitted to enforce its policy against counting wrong-precinct votes — the state’s voting apparatus provides everyone ample opportunity to vote, whether on Election Day or otherwise, and those who find the precinct system inconvenient may exercise one of those options. Most importantly, a ruling in favor of the state on this ground would confirm that Section 2 protects each individual’s equal opportunity to participate in elections. It does not require any particular racial result.