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The Voting Rights Act isn’t a moving target, but the 9th Circuit’s test would turn it into one

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This article is part of a symposium on the upcoming argument in Brnovich v. Democratic National Committee. Our case preview is here.

Megan A. Larrondo and Robert A. Berry are deputy attorneys general for the state of Idaho, which joined an amicus brief on behalf of 20 states in support of the Arizona attorney general and the Arizona Republican Party.

The states are entrusted by the United States Constitution with the power to regulate elections for state and federal offices. States must ensure fair and honest elections, promulgate necessary regulations for voting procedures and issue safeguards to prevent fraud. In order to carry out this mission, Idaho, like its sister states, has enacted a number of laws governing the voting process. While those laws may impose some burdens on voters, they are necessary to ensure the integrity of the electoral system. Of especial concern in Idaho right now, as in many states, is the expanded role of absentee voting brought on by the coronavirus pandemic. The potential for voter fraud associated with absentee voting has state legislators considering legislation that would increase protections against voter fraud.

Should the U.S. Court of Appeals for the 9th Circuit’s en banc decision in Brnovich v. Democratic National Committee be upheld by the Supreme Court, this type of neutral and generally applicable legislation could be vulnerable to attack under Section 2 of the Voting Rights Act simply because a particular provision, standing alone, has an inadvertent disparate impact on one group over another. The 9th Circuit’s decision in Brnovich should be reversed. The court should clarify that, on a Section 2 challenge, the plaintiff must show that (1) the entire voting and registration system provides voters in some protected groups with unequal voting opportunities and (2) the challenged law, not some other factor, causes the unequal opportunity.   

The standard the 9th Circuit applied does not accord with the plain language of Section 2. The plain and ordinary meaning of the language in subsections (a) and (b) of Section 2 should be the starting point. Subsection (a) focuses on the effect of voting laws: in order to be violative, the state’s laws must “result[] in a denial or abridgement” of a voting-affiliated right on account of race. The effect is measured “as provided in subsection (b).” Subsection (b) looks to the access that voters of all races have to a state’s “political processes.” A state’s political processes are not equally open if voters of one race “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” In other words, Section 2 requires that a challenger show that a state’s election system as a whole offers minority voters less opportunity than other members to participate in the electoral process.

The language of subsections (a) and (b) also compels the conclusion that plaintiffs must prove that the challenged system itself causes the unequal opportunity. The phrase “results in” is classic causation language. And subsection (b) confirms the causal requirement with its language stating that a law violates Section 2 only if it affects a protected group’s ability to “elect representatives of their choice.”

The en banc 9th Circuit decision departs from this plain meaning. It instead asks whether a particular challenged law imposes a “disparate burden” on minority voters; this test is satisfied if the law adversely affects the voting ability of “more than a de minimis number of minority” voters. Once this standard is met, under the 9th Circuit’s test, the plaintiff need only show that, under the “totality of the circumstances,” there is some “relationship between” the act and “social and historical” considerations.

Under this loose standard, a disparate burden conceivably may be found based on the impact of a particular law on just a few voters. This standard is troublingly easy to meet. No state law can affect every citizen the same. And, given the realities of the continued impact of historical discrimination on minorities, the causal analysis becomes a mere formality. Compliance with Section 2 becomes a moving target. 

The ease with which this standard may be met is borne out in the 9th Circuit’s application of its standard to the facts. After a 10-day trial, no statistical or expert evidence of any racial disparity was provided with regard to Arizona’s ballot-collection law. The plaintiffs relied on only anecdotal evidence. The district court concluded that the lack of any statistical or quantitative evidence made it difficult to consider the law’s impact on different demographic populations to determine whether that impact was meaningful; however, the court still considered the anecdotal evidence and, drawing generous estimates from the evidence offered, concluded that the law would impact only a relatively small number of voters. Yet the 9th Circuit reversed the district court’s conclusion that the law imposed no “meaningful inequality in the electoral opportunities of minorities as compared to non-minorities” as clear error.

This backdrop makes it difficult for Idaho and other states to effectively discharge their duties to provide safe, secure and fair elections. How is a state to defend against allegations that its laws restrict the voting opportunities of more than a de minimis number of minority voters when all that is required is proof of a disparate impact and that proof can be made through anecdote? Such a test would upend the balance between state and federal power set by the Constitution, allowing the federal judiciary to invalidate virtually any state law that regulates registration and voting.

States are the entities entrusted with running elections. States must be given the space to enact and enforce neutral laws of general applicability to run those elections. The Supreme Court should reject an evidentiary standard that puts a wide swath of state laws at risk and improperly inserts the federal judiciary in the role of micromanager of state electoral systems.

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