The Supreme Court’s term ended a bit over three weeks ago, when the Court released its opinions in two important cases: Brnovich v. DNC and Americans for Prosperity Foundation v. Bonta. The latter is a case whose main importance moving forward is about the constitutionality of disclosure requirements for campaign-finance regulation — that is, when and for what purposes can a government compel the disclosure of a private charity’s donors? It’s an important question because the answer to that question likely portends further movement against campaign-finance regulation. Note by comparison that in Citizens United (that oft-attacked 2010 decision where the Court struck down federal campaign-finance limits on “independent expenditures” by corporations and unions), eight members of the Court upheld the regulation’s disclosure requirements. In contrast, Bonta potentially signals that there is a majority of the Court that is skeptical of disclosure requirements’ constitutionality.
The main case I want to write about is Brnovich, the Supreme Court’s decision interpreting the application of Section 2 of the Voting Rights Act (VRA) to vote-denial claims (i.e., challenges to methods of or barriers to casting a ballot, such as voter ID laws or limits on mail-in balloting). I flagged this case a few months ago when the oral arguments took place, and the Supreme Court’s decision came down on July 1.
For some background, Brnovich interprets the provision of the VRA that bans any “voting qualification or prerequisite to voting” or “standard, practice, or procedure” that “results in a denial or abridgement” of a citizen’s voting rights “on account of race or color.” The broader provision is known as Section 2 of the VRA, which is broken into two paragraphs. Paragraph (a) contains that aforementioned rule, and paragraph (b) clarifies (or further mystifies, depending on your point of view) this requirement by stating that that ban is violated if “based on the totality of circumstances,” a person bringing a lawsuit (e.g., the federal government or a private plaintiff) shows that relevant “political processes . . . are not equally open to participation” by people based on their race or color “in that” said people “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.”
The question raised in Brnovich is whether two provisions of Arizona law (one that says that your ballot only counts if you cast it in the precinct in which you’re registered, and another that says you can’t have third parties other than family members submit your ballot for you) violate Section 2. The claim brought by the DNC was essentially that both of those provisions have disproportionate impacts on racial minorities — with the former, the trial court had found that few voters in total are affected by the out-of-precinct policy (around 1% of Hispanic, Black, and Native American voters have their ballots discarded, whereas 0.5% of white voters’ ballots are discarded by this policy) but that there was a significant disparity (i.e., minority voters were twice as likely to be affected); with the latter, the trial court had found reason to believe that racial minorities (specifically Native American voters who disproportionately lack access to reliable home mail service) were more likely to depend on third-party ballot casting. The key question for the Supreme Court: what are the legal standards for assessing whether this kind of evidence is sufficient to prove a violation of Section 2?
The Court makes a few moves in Brnovich that I find somewhat suspect. First, it sets out early on in its opinion that it “decline[s] . . . to announce a test to govern all VRA §2 claims involving rules, like those at issue here, that specify the time, place, or manner for casting ballots” (12–13). Yet the upshot of its analysis is both a definition of the relevant statutory text (the majority writes, “the core” of Section 2 “is the requirement that voting be ‘equally open’” (15)) and an enumeration of “several important circumstances” that define “whether voting is ‘equally open’ and affords equal ‘opportunity’” in accordance with Section 2’s reference about “the totality of circumstances” (16). Lower courts will clearly read Brnovich to imply that they must assess each of the Court’s noted factors (the Court lists five of them), just as they have done with the Supreme Court’s other landmark Section 2 case (Gingles, which called on courts to look to nine so-called “Senate factors” for assessing whether in “the totality of circumstances” a violation of Section 2 has been shown). In other words, the Court I think dresses up what is effectively a legal test in the language of acting timidly, as if lower courts will not parse every word carefully (as they are duty-bound to given the vertical relationship between the Supreme Court and other federal courts).
Second, though the Court’s opinion begins early on with “a careful consideration of the text” of the statute (14), harkening to the ascendance of textualism as a method of statutory interpretation, the substantive legal test is largely atextual. That is, the Court lists five factors as relevant considerations in assessing a Section 2 claim that aren’t really moored to the language of Section 2. The considerations are:
The “size of the burden imposed by a challenged voting rule,” such that “[m]ere inconvenience cannot be enough to demonstrate a violation” of Section 2 (16).
The “degree to which a voting rule departs from what was standard practice” in 1982, when the current text of Section 2 was made law (17).
The “size of any disparities” caused by a voting rule (18).
The “opportunities provided by a State’s entire system of voting” rather than focusing on specific rules in isolation.
The “strength of the state interests served by a challenged voting rule,” so that a strongly justified state interest is less likely to violate Section 2 than as poorly justified one (19).
For some of these factors, maybe the text justifies them. For example, Section 2’s reference to demonstrating “based on the totality of circumstances . . . that the political processes leading to nomination or election . . . are not equally open to participation” perhaps justifies the fourth factor, because the language does seem to reference, in the Brnovich majority’s words, a “collective concept of a State’s ‘political processes’ and its ‘political process’ as a whole” (18). For what it’s worth, I think the reading is probably wrong in light of the fundamental rule of Section 2(a), which references any “standard, practice, or procedure” that “results in a denial or abridgement of the right” to vote. That language, to me, suggests that Section 2 bans specific practices that result, in themselves, in vote denial or abridgement. The Court assumes that Section 2 “is violated only” when paragraph (b) is violated (i.e., that language about “the political processes” not being “equally open”) (14), and that provides the textualist hook for the argument that Section 2 claims should be assessed by reference to the entire electoral system. But that flips Section 2(b)’s syntactical logic, since Section 2(b) opens with “[a] violation of subsection (a) is established if” (emphasis added) various factors are met — Section 2(b) does not use the phrase “only if,” which is what the Brnovich majority assumes on page 14 of its opinion.
But that squabble is debatable, and I would be okay accepting the textualist argument in favor of factor four. The bigger problem is that many of these other factors have zero textualist hook. The first three factors have no justification in the text. Section 2 makes no reference to the “size of the burden” (factor one) precisely because it says that “[n]o” “standard, practice, or procedure shall be imposed or applied . . . in a manner which results in a denial or abridgement” of the right to vote. It doesn’t matter whether the disparities are large or small (factor three); Section 2 clearly only references whether the disparity exists. In that sense, I think the dissent’s argument (that what matters is whether there are statistically significant disparities) is much more persuasive and, indeed, textually grounded. The majority’s opinion laughs away the argument (“under the dissent’s interpretation of §2, any ‘statistically significant disparity’—wherever that is in the statute” (25)), but it follows from the conclusion that the statute bans actual disparities, since statistical significance is one of our best and broadly accepted ways for assessing whether a disparity is in fact real versus the artifact of random noise.
Beyond lacking a textualist hook, the factor that most troubles me is the second factor, which establishes the relevance of “standard practice” from 1982 for assessing whether a practice violates Section 2. From a textual perspective, of course, there is no meaningful argument here. The Court merely writes,
Because every voting rule imposes a burden of some sort, it is useful to have benchmarks with which the burdens imposed by a challenged rule can be compared. The burdens associated with the rules in widespread use when §2 was adopted are therefore useful in gauging whether the burdens imposed by a challenged rule are sufficient to prevent voting from being equally “open” or furnishing an equal “opportunity” to vote in the sense meant by §2. (17)
Note that despite the references to the statutory language, the textualism is an assertion rather than an interpretation. Nothing in the text suggests we ought to look to 1982 standards for assessing whether voting is “equally ‘open’” or whether all have an “equal ‘opportunity’ to vote in the sense meant” by Section 2. The only argument the Court makes — without citation to authority — is focused on congressional intent: “We doubt that Congress intended to uproot facially neutral time, place, and manner regulations that have a long pedigree or are in widespread use in the United States” (18). This argument seems quite weak to me: the VRA was clearly intended to be a transformative statute, and the 1982 rewrite of Section 2 was because Congress thought the Court has interpreted the language too narrowly in a case called Bolden dealing with vote-dilution claims. It is hard to believe that the purpose of the 1982 rewrite of Section 2 was to effectively immunize voting practices at the time.
It also doesn’t square with the VRA’s focus on equality, which is inherently a context-dependent standard. Because the VRA targets disparities in access and opportunity, any particular practice ought to be capable of violating the VRA based on surrounding environmental factors. To take a canonical example: a “literacy test,” which requires demonstrating one’s literacy to be eligible to vote, is theoretically perfectly open, but that equality is obviously contingent on equitable educational outcomes. Thus, in a theoretical moment in time, literacy rates could be equal among different races and thus literacy tests perhaps would not violate Section 2; but if those rates change, the tests could become a violation of Section 2 even if they originally weren’t. As such, Section 2 shouldn’t be thought of as categorically banning or allowing particular practices — instead, the focus needs to be on-the-ground implementation, facts, and empirical reality. (Note that this argument holds based on the theoretically perfectly implemented literacy test, where the test is not discriminatorily applied. In reality, of course, literacy tests were applied to Black Southerners and not to White ones. Indeed, the Voting Rights Act cleverly targeted specific practices, including literacy tests, in Section 4, but also included the broader prohibition on discriminatory practices in Section 2.)
Among the most damaging paragraphs in this opinion, then, is in the Court’s articulation of the third factor, concerning the size of disparities. The Court writes, “To the extent that minority and non-minority groups differ with respect to employment, wealth, and education, even neutral regulations, no matter how crafted, may well result in some predictable disparities in rates of voting and non-compliance with voting rules. But the mere fact there is some disparity in impact does not necessarily mean that a system is not equally open or that it does not give everyone an equal opportunity to vote” (18). This argument seems to me both question-raising (what does it mean for people to not have “an equal opportunity to vote” if showing that it is harder for some people to vote than others is not enough?) and ultimately contrary to the purpose of the VRA, which was to impose an affirmative obligation on states and localities to eliminate racial discrimination in voting (and indeed to actualize the Fifteenth Amendment’s constitutional promise of freedom from racial discrimination in voting). The natural implication of that obligation is that states and localities need to ensure equal participation despite those gaps in “employment, wealth, and education.” It flips the purpose of the VRA on its head to say that those gaps inevitably make neutral voting rules discriminatory and thus the VRA can’t outlaw those practices.
Brnovich, in short, will make it a lot harder for plaintiffs to win Section 2 cases in the vote-denial context. It does so in a way that I believe is neither textually warranted nor in accordance with the purpose of the VRA. Something to ask, though, is what the ultimate purpose of Brnovich was. It was litigation brought by the Democrats, and it was a case that many voting rights advocates thought was a weak vehicle for coming to the Supreme Court (largely because the facts were fairly weak — small disparities, poor expert testimony, and so on). When the Democrats lost in the district court with an opinion that was fairly balanced, why did they appeal? Why did they take the case further after the Ninth Circuit affirmed the district court? The Democrats got an en banc opinion vindicating their position, but that basically guaranteed an appeal to the Supreme Court, which everyone knew would be hostile to the claim and would reverse the Ninth Circuit. So why did they continue?
One answer, I think, is that the Democrats may not care much about the state of the law. Perhaps they really just wanted to generate political will or money through fundraising. They did get a lot of ugly headlines, think pieces, and a vigorous dissent from Justice Kagan, which will be cited much, I’m sure, in Democratic communications strategies around voting rights issues.
Will that strategy pan out, or will it end up shooting the Democrats in the foot as they’re now in a much weaker position to fight vote-denial efforts in court? (Not to mention, of course, the harm that such a strategy inflicts on the voting rights and civil rights groups who may not see their work as partisan!) I’m skeptical that this strategy is a good one.
But in the end, this is a statutory decision — one that Congress can (and should) fix. Congress has a long history in establishing civil rights. It spearheaded Reconstruction with a recalcitrant presidential administration, to the point of impeaching and almost successfully convicting the President. It passed the Second Reconstruction legislation, and its oversight was crucial for ensuring that legislation’s implementation — especially the Voting Rights Act. For all our contemporary disdain for Congress, it has been able to do great things for the cause of civil rights. Maybe it’ll do so again.
* * * * *
Roses:
* Last Sunday, I met up with a Marshall friend and an old college friend. We went to the Portobello Road Market, which is pretty far in West London (translation: very bougie part of London, near Kensington, where all the diplomats live). I got some good Iraqi food and a Turkish pastry. Because the Marshall friend works at a French bakery on a boat (isn’t that wild?), she also brought us a brioche loaf to share, which was heavenly.
* On Wednesday, we had our “Marshall Leavers’ dinner,” which celebrates people who are finishing their time in the UK. It was a bit of a strange experience. It was essentially a cocktail reception packed with people I didn’t know (everyone had to get a negative covid test, so hopefully it wasn’t a superspreader event!), so not an environment I particularly like, albeit perhaps one I’ll have to get used to with law school and whatnot. The food was rather insubstantial while the wine was rather plentiful, but nothing crazy happened.
* That evening, we left for Glasgow for a trip. (Yes, we took an overnight bus from London, leaving at 11:30pm, to Glasgow, arriving at around 9am.) I didn’t really get any sleep on the bus, so I was exhausted by the time we got to Glasgow, but luckily I was able to get a short nap that morning. Glasgow was a surprisingly fun place — lots of beautiful art and good food. I tried haggis (meh), Irn Bru (a Scottish soda, sort of like orange Fanta with a hint of bubblegum — also meh), and various whiskys (note the spelling without an ‘e,’ which signifies the liquor made in Scotland, as opposed to ‘whiskey,’ from the U.S. or Ireland; also meh, to be honest, but I could clearly tell bad from higher-quality whisky). We also visited the Necropolis, the Jewish Archives (housed in a community center and synagogue), and I wandered the city a bit to see some of the beautiful sights (including tributes to local heroes and the Central Gurdwara Singh Sabha, a holy place for Sikhs). Also, the next Indiana Jones film was being filmed in Glasgow, so we caught a lot of 1960s-era New York City paraphernalia.
* The Glasgow trip was from Wednesday evening to Sunday morning, but I had to leave Saturday afternoon for the 10K I ran on Sunday morning. I was pretty nervous about the 10K because I hadn’t been running for around the last month — my knee had been hurting when I ran, so my only cardio was doing interval training on a stationary bike (not fun). I ended up running much faster for the 10K than I ever would’ve thought — my goal was to keep a 9-minute mile, and I ended up keeping a 7:37 mile. But it was painful, and I don’t think I could do that pace again — I think I was only able to do that because one of the runners we were with was very fast, and so I was mostly trying to avoid getting overtaken by her.
Buds:
* I’m finally starting to hear back more for interview requests, which is giving me slightly more hope that I will get enough people to talk to me to make a dissertation! I also had a nice call with my supervisor where he suggested I shouldn’t be so worried about getting sufficient responses, so maybe things will work out.
Thorn:
* My entire body is in pain after running that 10K. But no regrets — I’m happy that I finished the race and was able to raise a decent amount of money for an important cause.
Gratitude:
* I’m thankful for all the folks who donated to the Alzheimer’s Society fundraiser! If you want to donate, I think the portal is still open! I’m also thankful that my friend pulled me into doing the 10K, and for all four of the friends also running the race. Misery loves company, as they say.