Brnovich v. Democratic National Committee

DETERMINATIVE TEST FOR A VRA VOTE DENIAL CLAIM

Petitioners Attorney General Mark Brnovich and the state of Arizona (“Arizona”) contend that vote-denial claims under the VRA, which challenge voting policies that deny or abridge the right to vote on the basis of race or color, must pass a strict two-part test in order to allow states to exercise their constitutional powers to enact voting legislation. Brief for State Petitioners, Mark Brnovich, in His Official Capacity as Arizona Attorney General, et al. at 18–19, 25–27. First, according to Arizona, this test requires the Court examine whether there was a “substantial disparate impact” on the ability of minority voters to vote “and to elect representatives of their choice.” Id. at 18–19; see also Brief for Private Petitioners, Arizona Republican Party et al. at 19–20. Arizona argues that the VRA only required equal treatment, not equal outcome, and thus facially neutral and generally applicable laws do not contravene the VRA. Brief for State Petitioners at 20; Brief for Private Petitioners at 20. Arizona interprets the VRA to require a “substantial” disparate impact in which the voting and registration system as a whole has been limited in order to find a law in violation of the VRA. Brief for State Petitioners at 21–22. Arizona further contends that the use of the word “and” in the statute requires that the voting policy “influence the outcome of the election,” as well as impacting the ability of minority voters to “elect representatives of their choice.” Id. at 22. Arizona suggests that if any level of disparate impact contravened the VRA, every voting policy would find itself “race conscious” and violative of the Equal Protection Clause of the Fourteenth Amendment. Id. at 26–27; Brief for Private Petitioners at 39, 41.

Second, Arizona argues that the Court must examine whether the law caused that “substantial disparate impact.” Brief for State Petitioners at 23; see also Brief for Private Petitioners at 29–30. Arizona asserts that virtually every appellate court demands causation in determining whether a vote denial claim is valid. Brief for State Petitioners at 23. In other words, Arizona maintains, the second prong of the VRA test requires that there be actual causation between the voting policy and the disparate impact on voting among minority communities. Id. at 28. Arizona contends that the impact must be due directly to the voting policy, and “not by ‘socioeconomic conditions’ or a ‘history of discrimination’ in the distant past.” Id.; Brief for Private Petitioners at 29–30.

In response, Respondent DNC argues that Arizona seeks to inappropriately narrow the scope of a vote-denial claim under the VRA. Brief for Respondents, Democratic National Committee et al. (“Brief for DNC”) at 35, 46; see also Brief for Respondent, Arizona Secretary of State Katie Hobbs (“Brief for Hobbs”) at 24. The DNC contends that the first step of determining whether a challenged voting policy violates the VRA asks only “whether minorities have less opportunity to participate than whites,” leading to a disparate impact test. Brief for DNC at 26. The DNC explains that there is no exception for facially neutral laws under the VRA, pointing out that voting restrictions like poll taxes were facially neutral and generally applicable but disproportionately impacted minority communities and thus invalid under the VRA. Id. at 43–44; Brief for Hobbs at 27. Furthermore, the DNC asserts that there is no “substantial” requirement contained within the disparate impact test of the VRA, and that the State’s assertion that the impact must be substantial enough to impact election results could “shield laws with even abundantly clear racially discriminatory impacts.” Brief for DNC at 25–27; see also Brief for Hobbs at 29–30. Finally, the DNC contends that the VRA only prohibits voting policies “that have the purpose or effect of making it more difficult for minority voters to vote,” a practice entirely within the scope of the Reconstruction Amendments and that would not have the “hyperbolic” effect of nullifying neutral election laws across the country. Brief for DNC at 40, 46; see also Brief for Hobbs at 35–36.

Next, the DNC argues that the VRA’s causation requirement demands that courts consider the “totality of the circumstances,” including the “consideration of historical, contextual, and local factors unique to each jurisdiction.” Brief for DNC at 36, 42; see also Brief for Hobbs at 20–21. The DNC contends that Congress intended the courts to examine whether challenged voting policies deny or abridge voting in conjunction with the social and historical racial inequality or discrimination. Brief for DNC at 32–33; see also Brief for Hobbs at 31. The DNC emphasizes that voting policies—even “indisputably discriminatory” policies—do not impact minorities in isolation; rather, the root cause of hampered voting rights and the disparate impact is the interaction of election law with the combined effects of discrimination. Brief for DNC at 35–36, 39; see also Brief for Hobbs at 21.

VALIDITY OF OUT-OF-PRECINCT POLICY

Arizona contends that the OOP policy does not violate either prong of the VRA test. Brief for State Petitioners at 34. First, Arizona asserts that the policy is facially neutral, impacting all ballots filed in incorrect precincts on Election Day with no targeting of minority communities, and further has had no substantial impact on voting disparities. Id. In particular, Arizona argues that the OOP affects only a tiny minority of the voting population and examining only the impact on that population ignores “the totality of the circumstances”—which in light of the overall election make the impact non-substantial. Id. at 36. Finally, Arizona contends that there was no disparate effect on the election outcome or the ability of voters to choose the candidates of their choice. Id. at 35.

Arizona also argues that even if minority voters are more likely to have their ballots discarded under the OOP policy, that is not caused by the policy itself. Id. at 37. Arizona cites “frequent changes in polling locations[,] confusing placement of polling locations[,] and high rates of residential mobility” as the causes of votes that are cast out of precinct. Id. at 38. However, Arizona contends, none of these factors are attributable to the OOP policy, or even the state, therefore any disparate impact fails the causation requirement. Id.

In response, the DNC argues that the OOP policy resulted in the consistent disenfranchisement of minority voters at a rate double that of white voters. Brief for DNC at 31; Brief for Hobbs at 39. The DNC contends that Arizona’s point describing a “relatively small overall percentage” of discarded ballots is irrelevant, because the OOP policy itself disparately impacts minority voters. Brief for DNC at 31; Brief for Hobbs at 41–42. Moreover, the DNC emphasizes that Arizona has the highest rate of OOP voting of any state, thus a policy expressly forbidding it has a much higher impact in Arizona than any other state. Brief for DNC at 31.

Next, the DNC contends that the effects of discrimination, including low rates of home ownership and high rates of residential movement, interact with the OOP policy to cause a disparate impact to minority voters. Id. at 33. In particular, the DNC notes that OOP voting occurs in densely populated precinct, disproportionately composed of minority communities, with high rates of movement and renting due to historical and current discrimination. Id. at 33–34. Due to the interaction of the OOP policy and long-standing housing discrimination, the DNC argues, the totality of the circumstances results in political processes less open to minority communities. Id. at 33.

VALIDITY OF BALLOT COLLECTION BAN

Arizona argues that the Ballot Collection Ban is a facially neutral law that does not intentionally discriminate against minority communities. Brief for State Petitioners at 46. According to Arizona, the courts “improperly conflated partisan motivations with racial ones,” and that partisan motivations are perfectly legitimate in structuring voting policy. Id. at 42; see also Brief for Private Petitioners at 45, 48. Arizona contends that the circuit court injected racial animus into the legislature from remarks made by a single official, in violation of previous voting law precedent. Brief for State Petitioners at 47; see also Brief for Private Petitioners at 43. Further, Arizona maintains that laws may be passed to prevent fraud, even with no evidence of fraudulent activities, and that doing so does not provide racial animus. Brief for State Petitioners at 48; see also Brief for Private Petitioners at 44–45.

Arizona then contends that the plaintiffs presented no evidence of substantial disparate impact in ballot collection. Id. at 40. Arizona argues that only anecdotal evidence of disparate impact was presented to show a negative impact on minority voters. Id. at 40–41. According to Arizona, the circuit court only pointed to “little comparative, non-statistical analysis” and supplemented that with inferred racial animus. Id. at 42. Finally, Arizona asserts that because there is no evidence of a substantive, disparate impact, it is “logically impossible” to draw any causal arguments. Id. at 43.

The DNC counters that the Ballot Collection Ban was motivated by racial discrimination. Brief for DNC at 58. The DNC argues that the court below correctly applied the Arlington Heights analysis to determine discriminatory intent, which showed that “racial discrimination was a motivating factor” of the ballot collection ban. Id. at 58–59; Brief for Hobbs at 47–48. The DNC responds to Arizona’s criticism of imputing racial animus from a single official by pointing out that remarks were made by the ban’s sponsor, who then convinced other legislatures to ban ballot collection. Brief for DNC at 60; Brief for Hobbs at 46. Furthermore, the DNC argues that even if the Arizona legislatures had partisan motivations for passing the Ballot Collection Ban, the process was tainted by “demonstrably false and racially-motivated allegations” of voting fraud and explicitly racist appeals. Brief for DNC at 60; Brief for Hobbs at 50.

The DNC further contends that statistical analysis is unnecessary to show disparate impact, and that no one possesses “detailed statistical records” of how many voters used ballot collection prior to the ban. Brief for DNC at 29. The DNC emphasizes that the “uncontroverted evidence,” including numerous witness statements, showed that “many thousands” of minority voters used ballot collection to vote. Id. at 30–32; Brief for Hobbs at 45. In comparison, the DNC notes, white voters did not rely on ballot collection. Brief for DNC at 30; Brief for Hobbs at 45. The DNC asserts that minorities rely on ballot collection “due to unique, contextual factors,” including that minorities are less likely to own personal vehicles and have inflexible hourly-wage jobs that increase the difficulty of returning a ballot. Brief for DNC at 34. Thus, the DNC argues the Ballot Collection Ban and the discriminatory factors that force minority communities to disproportionately rely on ballot collection interact to cause abridged opportunities for these minority communities to vote. Id.; see also Brief for Hobbs at 46.