Since that decision, challengers to voting restrictions have increasingly turned to Section 2 of the law, that holds that no voting regulation can be imposed that “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” (Unlike a challenge brought under Section 5, a Section 2 challenge occurs after the voting rule is in place.)
Now the court, with its strong 6-3 conservative-liberal majority, will consider the standards courts will use to determine if a rule violates Section 2.
Brnovich v. DNC concerns a challenge brought by the Democratic National Committee against two provisions of an Arizona law. The first is a requirement that in-person Election Day voters cast their votes in their assigned precinct. Another concerns the so called “ballot-collection law” that permits only certain persons — family, caregivers, mail carriers and elections officials — to handle another person’s completed ballot.
While several states have versions of both laws, they function differently from state to state. Arizona, for instance, has one of the most strict “out of precinct” regulations and it has a significant Native American population living on rural reservations without traditional mailing addresses and limited access to mail.
“For that reason, they are more likely to rely on ballot collection to turn in their mail in ballots,” said Sean Morales-Doyle of the Brennan Center for Justice.
The provisions “help to ensure the smooth operation of elections and to safeguard the integrity of the process,” said Jason Snead of the Honest Elections Project, a group that filed a brief in support of Arizona.
“A rule that leaves all voters readily able to vote and simply eliminates a method some prefer does not abridge anyone’s ability to vote and keeps the voting process equally open,” Wall wrote.
Marc Elias, a lawyer for the DNC who handled dozens of cases fighting efforts to block the counting of votes and switching Electoral College votes in the aftermath of the 2020 presidential election, responded that Supreme Court precedents and the law “compelled the lower court to conclude that Arizona’s wholesale rejection of ballots cast out-of-precinct and its criminalization of ballot collection violated Voting Rights Act.”
When the legislature considered the laws, the record was “devoid of any evidence that fraud had in fact occurred,” Elias said.
Subtle change from the Biden DOJ
However, the Biden DOJ made clear it didn’t agree with the reasoning behind the Trump administration’s brief. That could be key. It would mean that the DNC could lose the case at hand, but prevail in a cascade of similar cases that could reach the court in the coming years.
“Under the Trump administration, the DOJ’s brief suggested a sizable change to existing law that would do real damage to the Voting Rights Act,” Justin Levitt, a voting law expert at Loyola Law School, said in an interview. He said that the fact that the Biden and the DNC don’t fully agree should be seen as a good sign.
“That shows a welcome return to normal standards at DOJ, where high-profile cases once again follow the best view of the law — even when it means that the President’s party loses an election case,” Levitt said.
“I think an insurrection that looks like it was led by White nationalists and other extreme groups, that was aimed at stopping the election, should serve as a stark reminder both as to why we still need protections and why we still need to be worried about the role that race plays in our democracy,” Morales-Doyle said.