On July 1, 2021, the Supreme Court issued its decision in Brnovich, Attorney General of Arizona v. Democratic National Convention. The DNC sued the state of Arizona arguing that two of the State’s election procedures—refusing to count ballots that were incorrectly cast out of precinct and forbidding most third parties from collecting vote-by-mail ballots for delivery—had a disparate impact on racial minority voters in violation of Section 2 of the Voting Rights Act (VRA). The DNC also alleged that the ballot-collection measure was enacted with discriminatory intent.
Although the District Court found no violation of the Voting Rights Act and a panel of the Ninth Circuit affirmed, an en banc panel of the Ninth Circuit reversed finding disparate impact and that the District Court had clearly erred in finding no discriminatory intent. The Supreme Court reversed and remanded the Ninth Circuit’s decision, holding 6-3 that Arizona’s voting rules did not violate Section 2 of the Voting Rights Act and that the ballot collection measure was not enacted with discriminatory intent.
Justice Alito delivered the opinion of the Court joined by Chief Justice Roberts and Justices Thomas, Gorsuch, Kavanaugh, and Barrett. Justice Gorsuch filed a concurrence in which Justice Thomas joined. Justices Kagan, Breyer, and Sotomayor dissented.
- Derek T. Muller, Professor of Law, University of Iowa College of Law
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Nicholas Marr: Welcome, everyone, to this Federalist Society virtual event. This afternoon, Friday, July 2, 2021, we’re pleased to bring you this Courthouse Steps Decision Webinar. As the Supreme Court wraps up its term, this case is called Brnovich v. Democratic National Convention. It was handed down earlier yesterday to close out the term. I’m Nick Marr, Assistant Director of Practice Groups here at The Federalist Society. As always, please note that expressions of opinion on our call today are those of our expert.
We’re very pleased to be joined this afternoon by Professor Derek Muller. He’s a professor of law at the University of Iowa College of Law. Professor Muller covered this case for us for oral arguments and he’s back to cover the decision. After Professor Muller gives his remarks and covers the case, we’ll be looking to you, the audience, for your questions. So, please submit those via the chat or the Q and A chat function. We’ll take them when we get to that portion of the call. And with that, thanks very much for being with us. Professor Muller, the floor is yours.
Prof. Derek T. Muller: Well, thank you. It’s a pleasure to present today. I feel a little bit of déjà vu, in the sense that it’s the middle of the summer -- I’m reading a lot of headlines over the last 24 hours saying Supreme Court is putting democracy or republic voting rights all in peril, at risk, in jeopardy, we’re slouching toward tyranny, whatever it might be. And we saw similar headlines about one year ago today as the Supreme Court refused to intervene in cases involving the pandemic—changing voting rules in the middle of the pandemic. I saw the same headlines two years ago as the Supreme Court refused to intervene in partisan gerrymandering cases, in Rucho v. Common Cause. And there’s a long litany of other cases I could talk about.
So, in a way, there’s a little bit of a sense of doom and gloom that seems to always come with these cases. But hopefully, I think, I’ll present today a little bit about the circumstances giving rise to Brnovich and, maybe, why I think it’s going to have a relatively modest impact going forward. But it does provide, I think, an important interpretation of Section Two of The Voting Rights Act and I think we’ll at least clamp down on some of the litigation that’s cropped up in recent years over a number of fairly—as the court puts it—neutral time, place, and manner rules.
So, Brnovich arose in 2016 when the Democratic National Committee filed a lawsuit in Arizona challenging two statutes. One was a long-standing statute that had been in the books for over 50 years, saying that the State would not count a ballot if a voter cast a vote in the wrong precinct on election day. You mail in your ballot, no problem. You show up on election day, they’ll direct you to the right precinct, but if you’re in the wrong precinct they won’t count your ballot. It’s a rule that many states have had, but some states have moved in the direction of saying, “Well, if you’re in the wrong precinct, we’ll count things like, maybe, your statewide offices like US senate or president.” So, the Democratic National Committee -- again, in particular, the fact that Hillary Clinton joined this lawsuit very early on -- was interested in making sure that Arizona would count more of these ballots -- sued to challenge that, again, long-standing rule that been on the books.
The second was a recently enacted statute called HB2023, which was a statute that prohibited most third parties from collecting ballots—what we call ballot harvesting—once a voter had completed the ballot. So, Arizona had, for some time, a rule prohibiting people from delivering blank ballots—third parties from delivering those things—but then they said, “Well, we also want to provide a symmetrical rule prohibiting the collection of completed ballots” -- I’m not sure a postal worker or a caregiver, a household member, a family member that -- they enumerate some exceptions -- “because we’re concerned about voter fraud, we’re concerned about intimidation of voters and so on.” So, the Democratic National Committee also challenged that statute as well.
A lot of the commentary at the time—and even maybe up until the case and a little bit of the case commentary that came out yesterday—talked about this opinion. Recognize, this was probably some overreach thinking about these rules. These rules -- at least challenges to the rules -- the rules affected a fairly small subset of people. HB2023 had not even taken effect yet. It was challenged just weeks after it had passed the legislature and had not yet taken effect. The outer-precinct policy was a rule that had been getting better and better over the years. Well over 99 percent of voters who vote on election day were in the right precinct. Some counties had moved to alternative models that would prevent you -- that would allow your vote to be counted wherever you showed up in the county. More and more voters were moving to absentee voting and so on.
And this wasn’t a challenge brought by the Department of Justice or by a group like the NAACP. It was brought by the Democratic National Committee and I think this was a circumstance where it was sort of aggressive litigation that ultimately ends up in the Supreme Court. And it gets to the Supreme Court because the district court has a ten-day trial, taking evidence, looking at the case, and concludes that these policies did not impermissibly infringe on racial minorities’ right to vote.
The challenge was brought under Section Two of the Voting Rights Act, which was a fairly open-ended statute asking whether or not the political processes of the State are equally open to participation on the basis of race. And you’re supposed to examine the totality of the circumstances when it comes to these things. The district court looked at it after ten days and said, “Not discriminatory.” It goes to the Ninth Circuit and the panel of the Ninth Circuit says, “Not discriminatory.”
And then the Ninth Circuit takes it en banc, and the en banc court, in an opinion written by Judge Willy Fletcher, indicated not only did both of these statutes end up having a disparate impact on racial minorities and their ability to participate in the political process, it also concluded that Arizona had enacted HB2023 with discriminatory intent. And, essentially, the bill’s sponsor, who had made some racially-charged statements early in the process, somehow infected the rest of the process in sort of a catspaw theory, which is sometimes used in the employment context to suggest that when a supervisor acts in a way that can be attributed to the decisions of the employer more generally -- to suggest that that sort of infected the entire process and therefore HB2023 was actually enacted with discriminatory intent.
So it comes up to the Supreme Court. And I think that intentional-discrimination finding was the one that really caught the Court’s eye but also looking at these two rules – again, that I think were pretty commonplace to the kind of things you can see in other states and have been used in other states. So, the Supreme Court is, though, trying to figure out what to do with the text of this statute—of Section Two of the Voting Rights Act.
For many years, Section Two of the Voting Rights Act had principally been used for one thing. It had been used to deal with what we call vote-dilution claims. That is, if there’s racial minorities who have not been able to effectively elect their preferred candidate of choice, and there had been, sort of racial, polarization in the political process such that minority voters’ will was consistently being thwarted, the thought was we can provide some benchmarks to draw districts, in a way, that will prevent racial minorities votes from being diluted amongst the population.
And what’s happened—especially since 1982 when Congress amended the Voting Rights Act in this particular provision—is that courts, in a 1986 case called Thornburg v. Gingles, dealt with this sort of opportunity to look at these factors to say, “If there’s racial polarization in the voting, and if there’s a sufficiently cohesive block of racial minority voters, we’re going to draw districts in a way that empowers that minority vote to be able to elect the preferred candidate of their choice.” And so, there’s been a lot of litigation, a lot of use as these cases involving redistricting for many, many years. And it will be used. It will continue to be used in the 2020/2021 redistricting cycle up ahead where we’ll continue to see Section Two of the Voting Rights Act being used for those claims.
But it wasn’t really until five or ten years ago—and really, probably, after the Supreme Court’s 2013 decision in Shelby County v. Holder—that litigants began to look for alternative avenues for litigating claims that could affect the votes of racial minorities. And one thought was, “Well, what about this language in Section Two of the Voting Rights Act, which is pretty open-ended.” Could we use this to apply to what we called vote denial claims? That is, I don’t have a voter identification. I don’t have the opportunity to show up at the polling place when it’s open. I can’t have someone collect my ballot for me. Effectively, I’m denied the right to vote. Can we say that there are some violation of the Voting Rights Act here in this statute?
So, these things are of very recent vintage. Ten years ago, basically nobody was litigating these things. So, I think it’s also worth thinking about the perspective about how Section Two has been used in this mechanism when the Supreme Court decided Brnovich. And the Supreme Court, when it did issue this decision on July 1, the very last day of the term, the Court split 6-3 along what people might call sort of ideological lines. Justice Alito wrote the majority opinion on behalf of six justices, and Justice Elena Kagan wrote the dissent on behalf of three justices. And Justice Alito took that language from the statute and really emphasized that when we were looking at whether or not there is this equal opportunity, we ask whether or not the political processes are equally open to everyone.
And in order to determine that, one of the things the statute says is we look at the totality of the circumstances. And the totality of the circumstances in the statute is a pretty open phrase. And the Court says any circumstance could have a logical bearing on whether or not this voting practice or procedure is equally open and affords equal opportunity. And it says, “Well, we can’t offer, sort of, a comprehensive list, but we’ll offer five things that we’ll call guideposts that we can use because any circumstance is very open-ended in the statute.” And we could walk through what those circumstances are, but I want to highlight a couple of them. And maybe we can talk about it more in the Q and A if people want.
But one thing is, the Court emphasizes that the size of the burden matters. The Court emphasized that every rule of voting imposes some kind of burden, right? If the polls are open for 14 hours, it’s more burdensome than if they were open for 14 ½ hours. It requires time. It requires some travel, even if you’re just going to the post office or to your mailbox out the front door. It requires some sort of movement. There are always costs associated with voting.
And the Court looked to its 2008 decision in Crawford v. Marion County Election Board, where it upheld Indiana’s voter identification law by a 6-3 vote, with some fractured decisions within the Court. But one of the things that the plurality opinion in Crawford emphasized was that sometimes there’s just what we can describe as the usual burdens of voting: getting up, going out, showing up on a normal day to cast the ballot. And the Court said we need to look at the burdens. And we look at those burdens especially in the context of all of the opportunities that are out there to vote.
So, I think taking that language from Crawford—the 2008 case, again, in a different context—is an important caveat for the majority here and an important guidepost for the lower courts. The Court highlights that mere inconvenience is not going to be enough to rise to the level of a Section Two violation.
A second thing the Court does is look at the Section Two claim as it was -- the Section Two provision of the statute was amended in 1982 -- and says, “When we’re looking at whether or not the political processes were equally open to participation, we should be looking at it as Congress framed that in 1982.” And so what that means is, we can think about the departure from the level of voting, or the availability of voting, that was available to people in 1982. And when you look at 1982, pretty much everyone showed up to the polling place on election day. Absentee balloting was narrow. It was tight. It was circumscribed. There was almost no no-excuse absentee voting. Only a couple of states had it at the time. So, when we think about that as the benchmark, the states have lots of opportunities and flexibility to change and depart from those practices in 1982, and it doesn’t sort of do too much beholden to that window, but that’s an important frame of reference.
Again, I think this is going to be an important touchstone going forward because, today in the United States, 2021, we have dramatically more opportunities to vote. And I think anytime the state tweaks or changes, expands, or contracts certain kinds of opportunities, if we’re looking back to that framework of 1982, it’s often going to be a challenge to meet the standard to say that we’ve somehow clamped down and provided -- that we don’t have equal opportunity under the statute.
So the Court provided some other guideposts. They look at that -- Courts are supposed to look at the disparities. Smaller disparities are less likely. We should look at the totality of the political process and not these rules in isolation. We could look at the strengths of the states interest, including the prevention of fraud. And they would have looked at these two statutes and emphasized, on the one hand, out-of-precinct voting, it affects a minuscule percentage of voters—something about a tenth of a percent or fifteen-hundredths of a percent of those who participate in in-person voting, not counting the absentee voters. When we look at it in terms of the racial disparities, depending on the racial group, it’s between 99 percent and 99.5 percent are effective in terms of the ability to have their votes counted. We shouldn’t view that as a difference of one percent to half a percent and say that it’s twice as much. And so, the Court says we should look at it from the absolute terms and the opportunity to participate in the political process.
And so, given how little out-of-precinct voting affected individuals, we should be very skeptical to think that it, somehow, was inappropriate for the State to have this rule on the books that it had for more than 50 years, including the entire duration that Arizona was subject to preclearance under the Section Five of the Voting Rights Act. The second thing the Court did is it looks at what happened with the ballot-harvesting rule, the prohibition on collecting ballots -- points out, “Listen, other states have these rules. They had a similar rule on the distribution of ballots. There’s only anecdotal evidence in the record indicating whether or not it has any effect on racial minorities. We can talk about the convenience of absentee voting, but we have this expansive window of opportunities to vote.”
And the Court early frames this as Arizona generally makes it very easy to vote with 27 days of absentee voting, 27 days of early in-person voting, coupled with all of the decisions relating to in-person voting on election day and the flexibility that some of the counties have moved to in terms of how precincts operate. And the Court looked at all of these things. The Court said, “Yeah, we feel pretty comfortable in saying that these two things do not have a disparate impact on racial minorities in such a way that we think the political processes are not equally open to participation.”
Now, the dissenting opinion by Justice Kagan spends a lot of time talking about the background and history of all this—about the Voting Rights Act and voting rights in America. And really, what emphasized -- or had a disparate impact looking at any kind of disparity between the racial groups -- to suggest that it might rise to the level to say, “Well, now they’re not equally open, there’s some disparity.” It would open far more state rules— or as the majority described, sort of, neutral time, place, and manner rules to being reviewed by the federal courts. But, again, the Supreme Court is very much not interested in reviewing those things and having the federal court sort of second guess the number of these decisions.
So, Justice Kagan would look at it in a very different light and say that we can look at the evidence of any kind of disparity and the State’s interest here, maybe, is not so great or it’s not sufficiently articulated in the record about what it’s concerns of fraud are, how expensive these measures are, why can’t we just accommodate them. And so, the thought is that there would be many more opportunities for federal courts to intervene and change what those state rules are.
Now, there’s also this finding of intentional discrimination. It’s important to note when we talk about intentional discrimination that if there is this finding that the State engaged in intentional discrimination, there’s a provision of the Voting Rights Act called Section Three, which would allow a state to be bailed into preclearance. What bailed-in means is that the State is normally able to enact election laws, voting rights laws, as it sees fit, but if it’s been found to have been intentionally discriminatory, a court might conclude that it needs now to seek preclearance of its laws for a period of time in the future to ensure that it’s complying with court directives and not further infringing the rights of racial minorities. And so, the finding of intentional discrimination is a separate important finding that the Court needed to conclude.
Now the dissenting justices -- Justice Kagan drops a footnote saying, “We’re not going to talk about that. We don’t need to talk about that.” I think there probably was a reason that they needed to talk about it, for the reason I just identified, but the majority says, “We have no problem, also, in concluding that the district courts record indicated that there was no intentional discrimination on the part of the Arizona legislature and, as a result, that finding should have been given deference by the Ninth Circuit, which it wasn’t.”
Additionally, we can’t just impute the sort of motives of the legislature to what one sponsor of the bill says, right? This sort of catspaw theory is not going to work when it comes to the legislature. And the majority of the court says it’s frankly insulting to think otherwise. And they walk through, sort of, the debates that happened in the legislative process, how Arizona had considered similar laws in 2011 and 2013 before enacting this one in 2016 and so on. And so, the intentional-discrimination finding, the Court says, was inappropriate and reversed on that claim as well.
And this part of the opinion -- and I’ll wrap up here -- is noteworthy for the reason -- the Department of Justice, last week, filed an action against the state of Georgia for Georgia’s recently enacted election law, alleging that portions of that statute were enacted, at least, with intentional discrimination—with a discriminatory intent by a majority of the legislature. And some of the factors that it alleges—that it was through a rushed legislative process or irregular procedures used by the legislature—are the kinds of things the district courts are supposed to consider when looking at making a finding of intentional discrimination. But I think this does put the Justice Department on its’ toes to think that whatever the district court finds is going to be given that deference on appeal and that the findings of the district court are going to be significant -- and additionally, that it’s going to have to show pretty sustained discrimination allegations throughout the record.
And here, Justice Alito’s opinion in Brnovich emphasizes that because race and party so often overlap, the intentions of republicans worried about how democrats are behaving, sometimes overlap with the concerns of white legislators when it comes to how black voters might be behaving -- or white voters and black voters because there is some racial polarization in the electorate. But the Court says we have to carefully parse the record to make sure that racial motivations and partisan motivations are distinct because partisan motivations are not prohibited under the Voting Rights Act, unlike racial motivations which would be prohibited. And so, I think it’s going to be incumbent on the Justice Department examining Georgia or other states to try to make those findings and distinguish racial versus partisan findings.
So, with that, we will see how the case proceeds. But I think the upshot of this case is that, as I mentioned earlier, there have not been very many situations in the last 10 -- up until 10 years ago -- where individuals were litigating, sort of, time, place, manner rules, voter ID laws, precinct rules, polling hour locations and times, whatever they might be. They were not litigating those under Section Two of the Voting Rights Act. These are claims of relatively recent vintage. And so, the Supreme Court’s guidance here provides that there’s still some opportunity to challenge those things in the district courts. But it’s really going to be limited to those things that are the most egregious kinds of discrimination, where it’s a significant disparate impact, and where the opportunities to participate in the political process are really narrowed substantially for one voting group as opposed to another.
But to the extent that there’s a lot of voting alternatives available and the state is tweaking or adjusting or modifying certain portions of its election code, the vast majority of these statutes -- at least under Section Two of the Voting Rights Act -- will remain in place, and federal courts will not be striking them down or limiting them under the Voting Rights Act going forward. With that, I’m happy to take any questions that folks might have.
Nicholas Marr: Great. So, it doesn’t look like we have any questions now through the chat. Well, first one -- I’ve got one. And we like to ask this of every case just to track how thing are going. So, one, what was the most surprising part of this decision to you, or the opinions? And then, secondly, how did the case -- how did the result track with your expectations coming out of oral argument if you had any?
Prof. Derek T. Muller: Let’s start with the second one first. After oral argument, I think there was some sense that the justices were not going to, sort of, shut down Section Two of the Voting Rights Act although there was some concern about certain kinds of egregious or outlier practices. And I think you see that in the opinion here, where the sense is, it’s going to take substantial evidence or a substantial record to strike down one of these laws.
I think Justice Kavanaugh, near the end of oral argument, had suggested something that we should be looking at the circumstances, and when we’re thinking about opportunities, here are some circumstances to be looking at. And I really do think that the majority of the Court—again, in this sort of totality of the circumstances analysis—is offering those guideposts as a way for lower courts to be developing a record and thinking about the evidence moving forward in certain kinds of circumstances.
And so, there’s been some criticism. I’ve seen in the last day or two on this opinion, to say, “Well, it’s sort of this multi-factored past and this is the kind of thing that conservatives have long railed against.” But another place, there’s a statute that says totality of the circumstances. I think you have to give some construction to that phrase and provide sufficient guidance for the lower courts about the kinds of circumstances that are logically related and how they’re supposed to weigh that evidence. So, in a way, I think it tracks with some of the concerns that were raised at oral argument, and in that way, it is, maybe, not surprising.
In terms of looking at the opinion itself and -- the Court has this term -- had a lot of opinions where there -- you could say it’s unusual alliances or fractured opinions or people peeling off from the remedy and writing separately. There’s a brief opinion where Justices Gorsuch and Thomas have a question about whether or not there’s an independent cause of action under Section Two of the Voting Rights Act. But for the most part -- I mean the rest of the opinion, it’s a clean -- six justices sign on for everything in Justice Alito’s majority opinion, three justices in the dissenting opinion of Justice Kagan, and at least it provides a little bit of cleanliness and clarity for the courts moving forward.
We’re not trying to parse out or predict what the future is going to be. And again, I think, maybe some commentators were expecting far more cases that looked like this—6-3 along these kinds of ideological lines. So we didn’t see many of those this term, and so maybe that’s what’s drawing some attention. But I think having the, if you will, sort of, the sharp opinions from the majority in the dissent in this matter of statutory interpretation without a lot of people peeling off, I think, was a little bit noteworthy in my judgment.
Nicholas Marr: So, we’ve gotten a couple questions in the meantime. And just a reminder to the audience, submit your questions via chat and we will take them. So, this question says, “Could you compare and contrast the concept of discriminatory intent in this case and the discriminatory intent that the Supreme Court found in Masterpiece Cake Shop? If they’re related -- if so, how? If not, why not?
Prof. Derek T. Muller: Yeah. I have to think back to my record in Masterpiece. In Masterpiece, you were dealing with kind of a relatively small administrative tribunal with a record where there was avowed hostility given to the party that was bringing the claim. And at least based on that record, the Court felt like, because of the size of the tribunal that was making the decision coupled with that hostility -- the Court sends it back. So, then you have sort of a contrast in this case where the most overt, sort of, racial statement came from a senator -- I think it was a state senator -- who aired a video that had a racial tinge to it. But part of it is that he had just come out of an election where there was strong polarization not only on race but also on party—republican versus democratic challenges.
And then, after that sort of initial salvo, there’s an extensive record, including by opponents of the bill, discussing, sort of, the merits of what it means to prohibit third-party collection of ballots. I think for the majority here, at least, when they’re looking at the district court’s record and looking at everything the district court relied upon, they’re saying that there’s far more here substantively happening than to say whatever was happening in that tribunal in Masterpiece.
So, again, it’s been a while since I’ve looked at Masterpiece and the facts, but I think that was the driving concern about having a small tribunal with one of those statements pretty prominent in the record as opposed to what the Court sees here as one sort of statement or one legislator who might have had that animus—or at least partially had that animus—coupled with the totality of the circumstances in the rest of the process where it was an ordinary legislative process, where many others were debating the merits on both sides of the issue and so on. So again, it will be interesting to see how cases like the litigation against Georgia play out to determine whether or not there’s that finding of intent or the kind of evidence that they’re able to muster to show discriminatory intent.
Nicholas Marr: Very good. So, on the question of the future, we have two questions. One’s court-related, so we’ll go to that one first. What do you think about the language of -- in Alito’s writing, do you think that’s going to have any effect on how the Ninth Circuit operates, given that many of their decisions have been vacated this term?
Prof. Derek T. Muller: Well, I mean, you can never say never with the Ninth Circuit, I suppose. It’s worth noting on the Ninth Circuit -- when this went en banc, Judge Watford joined the majority opinion on the discriminatory effect but would not join in on the discriminatory intent. And then there were a number of justices who, sort of, dissented from that—issuing dissents—and that was the kind of stuff that was highlighted by the Supreme Court. And the Ninth Circuit has had, I think, a checkered history with the Supreme Court. Certainly, in one way it got better in recent years. This year it feels like it’s gotten worse. It’s not clear why. I think the question is, going forward, how many judges feel humbled by what the Supreme Court has done and want to sort of be beholden to that?
One separate problem has been that the Ninth Circuit has been reluctant to go en banc to correct panel decisions. This was a different circumstance, obviously, where the en banc reversed the panel decision that the Supreme Court would have affirmed. So, it might incentivize the Ninth Circuit to think more about going en banc to review some of these things, or it might just embolden them, at least some of the judges on the Ninth Circuit who say, “Listen, we think we’ve got it right and the Supreme Court doesn’t, and they can’t reverse them all,” in the words of one late Ninth Circuit judge. Multiple slips there as I describe a Ninth Circuit judge. I guess going forward, we just don’t’ know what the tenor of the Ninth Circuit is going to look like going forward and it’s going to be a sort of wait-and-see approach after this term about how they respond to all of these reversals.
Nicholas Marr: All right. And then the second future-related question is about legislation. Do you think that the Voting Rights Act will be amended in response to this decision?
Prof. Derek T. Muller: I mean, it’s interesting. There are multiple ways to go here, right? I think you can go with -- we want to say that third parties should be able to collect ballots like this. And that’s actually a component of HR1, right? If you’re looking at the specific practices, Congress has the power to pass rules about the times, places, and manner of holding elections. And if it wants to pass rules about how precincts work, if it wants to pass rules about how you count votes for out of precinct ballots cast in federal elections, if it wants to pass rules about who can collect your ballot, it can do that.
So, HR1 has some components addressing the specifics of this case. In fact, HR1 also has things saying you can’t have voter identification laws. It has a whole variety of rules in it. So, you could think about one path that would say, “We should have the federal government have more specific rules on some of the practices, like Arizona’s using, that we think are inappropriate.” So that would be one path forward.
Another path forward is the more flexible one to say, “Well, we should amend the Voting Rights Act and updated it in a way to require things like preclearance—that Shelby County v. Holder effectively got rid of by saying that the formula for determining which states are subject to preclearance was outdated—by having an updated and dynamic formula where certain kinds of things would always have to be -- where if states were found to be discriminatory, they would be subject to these things. That has some limitations.
Again, when I mentioned the out-of-precinct voting policy, that’s not a change. That’s been something Arizona’s had in the books for a very long time, right? So, while something like HB2023 might need to seek preclearance in the event that Arizona were subject to this rule, other rules that have, longstanding, been on the books would not be subject to that. And it would -- something like the Voting Rights Act, the amendments would require nationwide preclearance for certain kinds of rules. If you’re enacting a voter identification rule or whatever it might -- or whatever some of these provisions are -- you have to go to a court at the Department of Justice and ask for approval to ensure that it doesn’t have a discriminatory effect.
And so then we start to get into these questions about, “Well this is the stuff that Shelby County gets at.” Does Congress have the authority to require those things? Does it have the authority to distinguish between states? I think the dynamic formula helps that. Does it have the authority to require preclearance? I mean, it can dictate the single flat rule under the times, places, and manner clause. Can it then require states to go ask the government for it? On the one hand, you might say, “Well, that seems less intrusive to allow the states to do what they want, subject to the federal government’s approval.” On the flip side, as Shelby County made clear, preclearance is an extraordinary remedy. The framers rejected James Madison’s proposal that the federal government would have a veto on state laws, and that was something that was important to the Court’s analysis in Shelby County.
So, I think a separate concern is to think about this scope of the Voting Rights Act. And even if proponents get what they want—if democrats are able to enact it or maybe to get some republicans on board that this something that we need to think about—there’s still lingering questions about whether or not it’s as expansive as the Court would allow under, sort of, existing constitutional doctrine to sustain that moving forward. So, I think that’s going to be an open question if it chooses to do so. So, multiple routes for Congress to consider as a political response to this case. Absolutely.
Nicholas Marr: Well, very interesting We don’t have any questions in the queue, otherwise. Professor, I’ll give the floor to you if you want to offer some closing remarks. It seems like you’ve covered everything today.
Prof. Derek T. Muller: Sure. I just really want to highlight that these kinds of claims—these specific kinds of Section Two claims—are of very recent vintage. And so, what this does is it puts plaintiffs back to essentially where they were in 2013 or 2014, which is -- you’ve got to seek these changes legislatively, federally, or at the state level, by ballot initiative, in litigation under the state constitution under other kinds of challenges. We sometimes talk about the freedom-of-association cases that sometimes are raised, and they’re often unsuccessful in the federal courts, whatever they might be.
But what this does, especially, is -- to emphasize -- that if states are tinkering with their election laws, if they’re experimenting if they’re going to expand and contract, if they’re going to expand here and contract in a different area and they’re going to shift around -- and we’re seeing a lot of that in my judgment right now after 2020 election, partially in response to the pandemic, partially in response to some allegations largely unfounded about fraud. And to the extent that the states are, sort of, tweaking things to say, “We think in-person voting is better, we think in-person voting is more secure, we think we should be driving more people to in-person voting after the pandemic,” we can look at those rules in, sort of, the total suite of options that voters have at their disposal. And I think the thought is, moving forward, that there’s just going to be fewer places to litigate and challenge those things. And so, while there’s still going to be litigation, I think it’s going to be much less successful moving forward in challenging a number of these state laws that are being enacted this year and in the years to come.
But, again, to emphasize, Section Two still has a major role when it comes to redistricting. And it will continue to have a major role, absent some new Supreme Court precedent to the contrary. It will drive a significant number of redistricting decisions. It will create a number of what we described as a majority-minority districts throughout the United States, both for Congress and for state legislatures. And there will continue to be litigation about those things, but this ruling today from Brnovich doesn’t touch any of those decisions, at least not yet.
Michael Marr: Makes good sense. Well, I think we’ll close out a bit early if you want to have an extra 20 minutes on this Friday afternoon. On behalf of The Federalist Society, we want to thank you, Professor Muller, very much for the benefit of your time and your valuable expertise in covering this case—you did a very good job—to our audience for calling in for your great questions.
As always, we welcome your feedback on this program and others. You can email us at [email protected]. Also check our website for announcements about upcoming Zoom events like this one. The Supreme Court term is over, but we do have a couple others still in the pipe next week and we’ll be getting more events about all kinds of legal issues coming down this summer. So please check out the website and otherwise, until that next time, for now, we are adjourned.
Dean Reuter: Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.