Brnovich v. Democratic National Committee
The Supreme Court upheld two Arizona voting rules — one discarding ballots cast in the wrong precinct and one limiting who can collect completed mail-in ballots — ruling that neither violated the Voting Rights Act's protections for minority voters.
The decision is the Court's first major ruling on how the Voting Rights Act applies to ordinary election administration rules, and it established a framework that makes it harder to challenge facially neutral voting laws based on their racially unequal effects.
How it got here: A federal district court upheld both Arizona rules after a bench trial; a Ninth Circuit panel affirmed; the en banc Ninth Circuit reversed; Arizona sought and the Supreme Court granted review.
The Case in Depth
What happened
Arizona makes voting broadly accessible — residents can vote by mail for 27 days before any election, with no excuse needed, or in person at early voting locations. But the state also discards ballots cast in the wrong precinct on Election Day, and it passed a law (HB 2023) making it a crime for anyone except postal workers, elections officials, family members, household members, or caregivers to collect and deliver a voter's completed mail-in ballot. The Democratic National Committee sued, arguing both rules fell disproportionately on Hispanic, Black, and Native American voters.
The question before the Court
Do Arizona's rules discarding ballots cast in the wrong precinct and restricting who may collect mail-in ballots violate the Voting Rights Act's ban on election practices that give minority voters less opportunity to participate?
The Court's answer
No — neither rule violates the Voting Rights Act, and HB 2023 was not passed with racially discriminatory intent. The Court read §2's requirement that voting be "equally open" to mean that small, usual burdens of participating in an election do not by themselves prove a violation. Applying a five-factor "totality of circumstances" framework for the first time to election administration rules, the Court found that Arizona's out-of-precinct policy imposes only ordinary burdens, the racial disparity in its impact is small in absolute terms (about 1% vs. 0.5% of voters affected), and the state offers abundant alternative ways to vote.
For the mail-ballot collection restriction, the plaintiffs could not show with concrete statistical evidence the extent of any racially disparate burden; and even if they could, the state's compelling interest in guarding against pressure and fraud in mail-in voting would suffice. On the question of intent, the District Court's finding that HB 2023 was not motivated by racial animus was amply supported by the record and could not be overturned on appeal.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
States now have more room to defend election administration rules — like precinct assignment requirements and restrictions on who handles mail-in ballots — against Voting Rights Act challenges. Courts must weigh several factors together rather than treating any racial disparity in a rule's effects as nearly decisive. Voting rights groups will face a higher bar when challenging such policies as racially discriminatory.
What changes now
The case was sent back to the Ninth Circuit for further proceedings consistent with the Supreme Court's ruling. Both Arizona policies remain in effect. The decision provides guideposts for future §2 challenges to election administration rules, but the Court deliberately declined to announce a comprehensive test — leaving courts to continue applying a totality-of-circumstances approach to future cases involving different rules in different states. A separate concurrence also left open, for a future case, whether §2 even provides an implied right to sue.
What this does not decide
The Court explicitly declined to announce a definitive test for all §2 challenges to time, place, and manner voting rules, offering only guideposts. A concurrence also preserved — without deciding — whether §2 implies a private right to sue at all, an issue that could significantly affect future Voting Rights Act litigation.
Concurrences and dissents
Concurrence — Justice Gorsuch
Justice Gorsuch joined the majority in full but wrote separately to flag an unresolved question the Court's prior cases have assumed but never decided: whether §2 of the Voting Rights Act even creates an implied private right to sue. Because no party argued the plaintiffs lacked a cause of action, the Court left that question open. Lower courts have treated it as unsettled, and Justice Gorsuch signaled it remains available for a future case.
Dissent — Justice Kagan
Justice Kagan argued the majority rewrote §2 to be far weaker than Congress intended, inventing extra-textual limitations that stack the deck against minority voters. She would have read §2 broadly — as covering any facially neutral rule that results in racial disparities in voting opportunity — and would have required states to show that a discriminatory rule is necessary to achieve their goals, not merely that it reasonably pursues them. She concluded both Arizona policies violated §2, given Arizona's outlier status in discarding out-of-precinct ballots and the unique mail-service hardships faced by rural Native American voters.
How the Court got there
The legal reasoning, step by step
- The Court began with §2's text, which bars voting rules that 'result in' members of a racial group having 'less opportunity' to participate in the political process. Section 2(b) says a violation is shown when the political process is not 'equally open' — and uses the phrase 'in that' to explain that equal openness and equal opportunity are not separate requirements but a single standard, with equal openness as the touchstone. Mere inconvenience, the Court concluded, does not establish a violation.
- Applying §2 to time, place, and manner voting rules for the first time, the Court identified five key circumstances to weigh: (1) how large a burden the rule imposes; (2) how much it departs from practices that were standard in 1982 when §2 was amended — longstanding, widespread rules are less suspect; (3) the size of any racial disparity in the rule's impact — small differences carry less weight; (4) what other ways to vote the state provides — a challenged rule must be evaluated in context; and (5) the strength of the state's interest, such as preventing fraud or voter intimidation.
- The Court rejected two competing frameworks: the dissent's approach of treating any statistically significant racial disparity as nearly decisive, and a 'least-restrictive-means' requirement borrowed from Title VII and Fair Housing Act cases. The Court found no basis for either in §2's text. A least-restrictive-means standard would, the Court said, threaten to invalidate virtually every state voting rule because nearly any legitimate interest could theoretically be served in some less burdensome way.
- Applying those guideposts to the out-of-precinct policy: finding one's assigned polling place and traveling there is a classic 'usual burden of voting.' The racial disparity is small in absolute terms — roughly 1% of minority voters cast out-of-precinct ballots versus 0.5% of non-minority voters. Arizona also offers 27 days of no-excuse early voting and other alternatives. Precinct-based voting has a long history and serves real administrative interests, like reducing wait times and ensuring voters receive the correct ballot.
- For HB 2023, the Court found that submitting an early ballot by mailbox, post office, drop box, or elections office all fall within the usual burdens of voting. The plaintiffs could not quantify the racial disparity with statistical evidence. Even setting that aside, the State's compelling interest in preventing pressure on voters during mail-in voting — and the risk of fraud inherent in allowing broad third-party ballot handling — independently supported the restriction.
- On whether HB 2023 was enacted with discriminatory purpose, the Court applied the clear-error standard — appellate courts cannot reverse a trial court's factual finding simply because they would have weighed the evidence differently. The District Court carefully distinguished racial motives from partisan ones, applied the established Arlington Heights framework for evaluating legislative intent, and found the law was the product of sincere debate about mail-ballot security. The Ninth Circuit's 'cat's paw' theory — drawn from employment law, where a biased supervisor can infect an employer's decision — has no application to legislatures, because legislators are not agents of a bill's sponsors and have an independent duty to exercise their own judgment.
Doctrinal impact
Cases affected by this decision
Distinguishes Thornburg v. Gingles (478 U.S. 30)
Gingles factors were designed for vote-dilution cases and most do not directly apply to challenges to facially neutral time, place, or manner voting rules.
Reaffirms Crawford v. Marion County Election Bd. (553 U.S. 181)
Reaffirmed that voting systems must tolerate the 'usual burdens of voting' and that mere inconvenience cannot establish a statutory violation.