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Brnovich v. Democratic National Committee

On July 1, 2021, the Supreme Court narrowly interpreted Section 2 of the Voting Rights Act of 1965, making it more difficult to challenge discriminatory voting laws in court.

Last Updated: July 1, 2021
Published: January 19, 2021

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

  • 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.

  • 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.

  • 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

  • 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.

  • 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.

  • Brief of the North Caro­lina, Memphis, Cent­ral Virginia, and Miami-Dade A. Philip Randolf Insti­tute in Support of Respond­ents

    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

  • Brief of Navajo Nation

    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.

  • Brief of Mi Familia Vota, Arizona Center for Empower­ment, Chispa Arizona, and League of Women Voters of Arizona

    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.

  • 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.

  • 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

  • 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.

  • 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.

  • 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.

  • 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.

  • 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.

  • 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.

  • 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.

  • Brief of Senate staffers and other lead­ing parti­cipants in the 1982 Amend­ments to the Voting Rights Act

    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.

  • 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.

Case Docu­ments