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The Supreme Court Case Challenging Voting Restrictions in Arizona, Explained

The lawsuit is a crucial test for the Voting Rights Act’s ability to protect people of color.

Published: February 25, 2021

On March 2, the Supreme Court will hear oral argu­ments in a chal­lenge to a pair of Arizona voting policies that make it harder for people to vote, espe­cially in communit­ies of color and Native Amer­ican communit­ies. The case, Brnovich v. Demo­cratic National Commit­tee, is signi­fic­ant because it likely won’t just affect voters in the state. It could have broad implic­a­tions for the fair­ness of our demo­cracy across the coun­try because of what the decision might mean for the Voting Rights Act of 1965, known as the VRA.

The Bren­nan Center and other groups are urging the court to enforce and preserve the VRA’s protec­tions, which were previ­ously scaled back by a damaging 2013 Supreme Court ruling. Now, in the midst of an expan­ded, nation­wide voter suppres­sion push fueled by lies about nonex­ist­ent fraud in the 2020 elec­tion, those safe­guards have taken on even greater import­ance — and so has this lawsuit.

What is the case about?

In 2016, the Demo­cratic Party and a group of indi­vidual voters filed suit in federal court to chal­lenge two Arizona policies as racially discrim­in­at­ory. The first is an “out-of-precinct” rule that any vote cast in the wrong polling place must be tossed out, even if it is for pres­id­ent, governor, or some other race in which the voter could have cast a ballot anywhere in the state. The other is a ban on collect­ing and turn­ing in mail ballots by anyone other than a voter’s imme­di­ate family members or care­givers.

The plaintiffs chal­lenged these policies under Section 2 of the VRA and the 15th Amend­ment, both of which bar voting policies and prac­tices that discrim­in­ate based on race. They lost in the trial court but won on appeal. The Ninth Circuit Court of Appeals found that both policies resul­ted in discrim­in­a­tion and that the ballot collec­tion prohib­i­tion was passed for a racially discrim­in­at­ory purpose. Arizona Attor­ney General Mark Brnovich and the Arizona Repub­lican Party asked the Supreme Court to take up the case.

Why did the appel­late court find Arizon­a’s policies to be discrim­in­at­ory?

The Ninth Circuit found that both of Arizon­a’s policies amoun­ted to illegal discrim­in­a­tion because of how they made it harder for people of color to vote given the specific circum­stances in the state. In other words, the court did not rule that a policy of disreg­ard­ing out-of-precinct ballots or limit­ing ballot collec­tion is always discrim­in­at­ory — just that these specific policies were discrim­in­at­ory in Arizona.

Voters can sue under Section 2 of the VRA whenever minor­ity voters “have less oppor­tun­ity than other members of the elect­or­ate to parti­cip­ate in the polit­ical process and to elect repres­ent­at­ives of their choice.” They do not have to prove that a policy was passed for a discrim­in­at­ory purpose, only that it led to these discrim­in­at­ory results.

In this case, the court noted that Latino, Native Amer­ican, and Black voters in Arizona have their ballots rejec­ted for being out-of-precinct reason far more often than their white coun­ter­parts. The court found that this was because poll loca­tions were moved around very frequently in Arizon­a’s communit­ies of color and were often located in coun­ter­in­tu­it­ive places near the edges of precincts. Adding to the burden was the fact that voters of color move more often.

The court also noted that voters of color and Native Amer­ican voters were more likely to rely on ballot collec­tion than white voters for reas­ons that are espe­cially present in Arizona. For example, the signi­fic­ant popu­la­tion of Native Amer­ican voters living on reser­va­tions often reside far from polling places and have nontra­di­tional addresses and limited mail access.

Further, the court found that the ballot collec­tion policy was enacted in order to take advant­age of these dispar­it­ies and target voters of color. Among other things, the court noted that the policy had been passed based on false rhet­oric about rampant voter fraud. The so-called “evid­ence” of voter fraud that motiv­ated the legis­lature was a video show­ing surveil­lance foot­age of a Latino man drop­ping off ballots with a voiceover describ­ing him as a “thug” and suggest­ing he might be an undoc­u­mented immig­rant.

Why is this case signi­fic­ant?

It’s certainly import­ant for stop­ping voter suppres­sion in Arizona. But its signi­fic­ance reaches far beyond Arizon­a’s borders because the case concerns the VRA, one of the most success­ful civil rights laws in our nation’s history. Brnovich, the Repub­lican Party, and a number of others that filed friend-of-the-court briefs have used the case to ask the Supreme Court to seri­ously limit on VRA Section 2, which allows voters and advoc­ates to chal­lenge racially discrim­in­at­ory policies and prac­tices. Any decision weak­en­ing Section 2 would make it much harder to stop voting discrim­in­a­tion in the future.

What is Section 2 of the Voting Rights Act and why is it so import­ant?

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[.]” It also allows voters to file suit to chal­lenge discrim­in­at­ory policies.

For many years, it was used primar­ily to combat schemes to dilute the voting power of communit­ies of color through discrim­in­at­ory redis­trict­ing and related plans. But it became even more import­ant in 2013, when the Supreme Court dealt a major blow to a differ­ent piece of the law — Section 5 — in Shelby County v. Holder.

Under Section 5, states and local­it­ies with a history of race discrim­in­a­tion in voting were subject to “preclear­ance” of their voting policies and prac­tices by the Depart­ment of Justice. That is, they had to run proposed changes in elec­tions by the federal govern­ment and show that they weren’t discrim­in­at­ory before putting them into effect. The preclear­ance process provided an incred­ibly effect­ive means for prevent­ing discrim­in­a­tion. In Shelby County, the Court held that the VRA’s formula for determ­in­ing which juris­dic­tions would be covered by preclear­ance was outdated and as a result, uncon­sti­tu­tional. So even though Section 5 remains, by strik­ing down the cover­age formula the Court effect­ively ended preclear­ance.

The consequences of this decision have been palp­able. Unen­cumbered by the preclear­ance process, previ­ously covered juris­dic­tions enacted a series of laws and other meas­ures that restrict voting. A number of states passed or imple­men­ted policies that had previ­ously been blocked by preclear­ance.

The ballot collec­tion prohib­i­tion in Arizona is a prime example. The state submit­ted the policy to the Depart­ment of Justice for preclear­ance in 2011. When the agency asked for more inform­a­tion, saying it was unable to determ­ine whether the policy was discrim­in­at­ory, the Arizona attor­ney general with­drew the policy from consid­er­a­tion for preclear­ance. As the Ninth Circuit Court of Appeals noted in its Brnovich opin­ion, “The Attor­ney General did so for good reason. Accord­ing to DOJ records, Arizon­a’s Elec­tions Director, who had helped draft the provi­sion, had admit­ted to DOJ that the provi­sion was ‘tar­geted at voting prac­tices in predom­in­antly Hispanic areas.’” But without preclear­ance in effect, Arizona was able to reen­act the policy in 2016.

After Shelby County, it became incum­bent on voters and their advoc­ates to identify and chal­lenge discrim­in­at­ory policies in previ­ously covered juris­dic­tions. And Section 2 is the primary tool they have to do so.

What could the Supreme Court do?

The justices are consid­er­ing whether to leave Arizon­a’s voting restric­tions in place. They do not have to reach beyond the facts of this case and depart from prior preced­ent about how Section 2 works to do so. However, many of the briefs filed in the case are asking the Supreme Court to make such a depar­ture.

Even though Section 2 was designed to protect against policies that result in discrim­in­a­tion, some have asked the justices to limit it to policies that plaintiffs can prove were inten­ded to discrim­in­ate. Some have asked the Court to limit the law only to chal­lenges against policies that dilute votes, such as in cases of gerry­man­der­ing, making it impossible to bring the suits against voter suppres­sion that have become more prom­in­ent since Shelby County. Some have even taken the radical posi­tion that Section 2 is uncon­sti­tu­tional in some way.

These attacks come as we are witness­ing a new and unpre­ced­en­ted wave of restrict­ive voting legis­la­tion under consid­er­a­tion across the coun­try. Already this year, over 253 restrict­ive bills are under consid­er­a­tion by legis­latures in 43 states, compared to 35 such bills in 15 states a year earlier. We are also head­ing into a new redis­trict­ing cycle, and without Section 5 preclear­ance in effect, the threat of discrim­in­at­ory maps is real. Unless Congress restores Section 5 of the VRA, Section 2 will remain the primary tool avail­able to combat any racially discrim­in­at­ory policies.

What should the Supreme Court do in order to safe­guard voting rights?

The Court should reaf­firm the role that the VRA plays in protect­ing voters of color, Native Amer­ican voters, and our demo­cracy, making clear that Section 2 will continue to oper­ate as a check on discrim­in­at­ory policies. In friend-of-the-court briefs, the Court has heard from a wide array of voices encour­aging it to do just that.

In our brief, the Bren­nan Center explained how and why Section 2 requires courts to take account of racial real­ity by look­ing to the relev­ant social, polit­ical, and histor­ical condi­tions in which voting rules and proced­ures oper­ate.

group of 70 state and local elec­tion offi­cials from 38 states and the District of Columbia respon­ded to claims that a robust Section 2 hinders legit­im­ate elec­tion admin­is­tra­tion through the threat of litig­a­tion, show­ing how Section 2 actu­ally supports their work.

More than 250 major corpor­a­tions, indi­vidual CEOs, board direct­ors, and busi­ness academ­ics joined a brief arguing that the Voting Rights Act is funda­mental to the health of Amer­ica’s economy and markets.

In short, the Supreme Court should uphold the bedrock prin­ciples of fair­ness and equal­ity that under­gird our demo­cracy and strike down Arizon­a’s racist voting restric­tions.