Brnovich: A Significant Blow to Our Freedom to Vote

On July 1, in Brnovich v. Democratic National Committee, the Supreme Court dealt a significant blow to the freedom to vote. The decision held that Arizona laws discounting ballots cast out of precinct and banning nonrelative neighbors or friends to deliver mail-in ballots did not violate Section 2 of the Voting Rights Act of 1965 (VRA), despite these laws’ negative effects on Black and brown voters. It is a major loss for voting rights at a time when this sacred freedom is under attack across the nation. 

The League of Women Voters of the United States CEO Virginia Kase Solomón issued a statement in response to the Supreme Court’s decision: 

“The Court’s ruling today is a devastating blow to our democracy and will clear the way for states to pass discriminatory laws, put up barriers to voting, and chase problems that do not exist.” 

But what does that mean? 

Section 2 of the Voting Rights Act  

As is stated above, the Brnovich decision hinged on the determination that Arizona’s laws did not violate Section 2 of the VRA. 

Section 2(a) of the VRA makes it illegal for states to pass any law that “results in a denial or abridgement” of the right to vote “on account of race or color.” This can happen in one of two ways:  

1. Vote denial, where a state passes a law that makes its voting system “not equally open to  participation” for minority voters. For example, if a state passes a law removing all polling places from areas where voters are almost all Black, it creates an unequal voting system. The Supreme Court had never ruled on any case involving this “vote denial” provision of Section 2, until Brnovich.  
2. Vote dilution. This occurs when states draw districts in a way that gives minority voters less power “to elect representatives of their choice.” For example, a state may try to spread minority voters out across districts to give them as little voting power as possible. The Supreme Court has ruled on many “vote dilution” cases over the last 50 years. 

Put simply, Section 2 of the VRA prohibits any standard, practice, or procedure imposed or applied to deny or limit the right to vote on account of race or color. 

But Section 2(b) states that Section 2 is violated only when “the political processes leading to nomination or election” are not “equally open to participation...in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.”

This means that so long as the openness to voting remains technically available to all people, even if that availability is close to impossibility for certain groups, a law does not violate the VRA. 

Brnovich and Section 2  

Justice Alito, writing for the majority in Brnovich, declined to set up a test to fully evaluate Section 2 claims, but offered five “guideposts” to consider when evaluating a voting policy: 

1. The size of the burden imposed;  
2. The degree to which it departs from what was standard practice when Section 2 was amended in 1982;  
3. Disparities in its impact on members of different racial or ethnic groups; 
4. The opportunities provided by a state’s voting system; and 
5. The strength of the state interests — such as the interest in preventing election fraud — served by a challenged policy. 

The majority in Brnovich suggested that the most important guidepost is the fifth one: the strength of a state interest (in this case, an interest in voter fraud). Yet the Court's majority completely sidestepped the third guidepost: disparate impact, as championed by Justice Kagan in her dissent.  

Disagreeing with the majority decision, Justice Kagan pointed to the discriminatory impact of recent anti-voter laws. Indeed, the Arizona laws have had a harsh impact on voters of color; in 2020, the U.S. Court of Appeals for the Ninth Circuit found both of Arizona’s policies to be discriminatory because of their impact on real-life conditions for minority voters. A brief filed by the Navajo Nation noted: “Arizona’s ballot collection law criminalizes ways in which Navajos historically participated in early voting by mail. Due to the remoteness of the Nation and lack of transportation, it is not uncommon for Navajos to ask their neighbors or clan members to deliver their mail.” 

Brnovich sets a dangerous precedent for future voting rights cases. Since the Court's majority did not find any discriminatory intent in Arizona’s policies, other states may follow in Arizona’s footsteps and pass anti-voter laws which disparately affect minorities. This is a crushing blow to voter access. 

What’s Next for the Freedom to Vote? 

Since the 2013 Shelby Co. v. Holder decision that gutted key protections from the Voting Rights Act, there has been a sharp increase in the number of anti-voter policies across the country. Too often, they disenfranchise Latinx, Native American, and Black voters. The Brnovich decision will only exacerbate this trend. 

For those of us who believe in the freedom to vote, the decision is yet another sign that our democracy is being directly threatened. There is no time to waste in advocating for pro-voting laws and policies; we cannot look back years from now and ask why we failed to act at this major turning point. 

Here are a few actions you can take: 

1. Urge your senators to pass the For the People Act;  
2. Learn about the John Lewis Voting Rights Advancement Act and promote it to your representatives;
3. Make sure your community has access to the tools and information they need to vote by sharing VOTE411 (in English or Spanish!);  
4. Join your local League to learn about the laws impacting your state; or
5. Support our efforts to fight anti-voter legislation through a donation. 

The time for action is now. Let’s get to work.