Brnovich v. Democratic National Committee
The Supreme Court upheld two of Arizona's voting rules — one that discards ballots cast in the wrong precinct and one that restricts who may collect mail-in ballots — finding neither violates Section 2 of the Voting Rights Act even though both disproportionately affect minority voters.
The decision marks the first time the Court applied Section 2 of the Voting Rights Act to neutral rules governing when, where, and how ballots are cast, and it established a set of guideposts that make such challenges significantly harder to win.
How it got here: A federal trial court upheld both Arizona voting rules; a divided Ninth Circuit panel affirmed; the full Ninth Circuit reversed, finding both rules violated the Voting Rights Act; Arizona's attorney general and the Arizona Republican Party asked the Supreme Court to step in and the Court agreed to hear the cases.
The Case in Depth
What happened
The Democratic National Committee sued Arizona over two voting rules. The first discards any ballot cast at the wrong precinct on election day, even for races appearing on every precinct's ballot. The second — enacted in 2016 as House Bill 2023 — makes it a crime for anyone other than a postal worker, an elections official, or a voter's family member, household member, or caregiver to collect a voter's mail-in ballot. Civil rights groups argued both rules disproportionately burdened Native American, Hispanic, and African American voters in violation of the Voting Rights Act.
The question before the Court
Do Arizona's rule throwing out ballots cast in the wrong precinct, and its law limiting who can collect a voter's mail-in ballot, violate the Voting Rights Act's guarantee of equal voting opportunity regardless of race?
The Court's answer
No — the Court ruled that neither of Arizona's challenged voting rules violates Section 2 of the Voting Rights Act, and that the ballot-collection restriction was not enacted with racially discriminatory intent.
For the out-of-precinct policy, the Court found only modest burdens — identifying one's assigned polling place is a "usual burden of voting" — combined with small racial disparities in absolute terms (roughly 1% of minority voters affected versus 0.5% of non-minority voters), the availability of many other ways to vote in Arizona, and strong state interests in orderly precinct-based administration. For the ballot-collection restriction, the plaintiffs failed to show the size of any racial disparity, and the State's interests in guarding against voter pressure and potential fraud justified the rule even if some disparity existed. The Court also refused to second-guess the district court's finding that the legislature had partisan rather than racial motives when enacting the ballot-collection ban.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
States can now defend neutral voting rules against Voting Rights Act challenges even when those rules have some racially disparate impact, so long as the burdens are modest, the disparities small in absolute terms, other ways to vote are available, and the state's interest is legitimate. Civil rights groups will face a higher bar when using Section 2 to challenge a broad range of election administration rules.
What changes now
The cases are sent back to the Ninth Circuit for further proceedings consistent with the Supreme Court's ruling. Both Arizona voting rules remain in effect. Lower courts handling future Section 2 challenges to neutral voting regulations will apply the five guideposts the Court identified, rather than a disparate-impact-focused or least-restrictive-means framework. The Court left open the possibility that different facts could produce a different outcome in a future case.
What this does not decide
The Court explicitly declined to set a definitive legal test for all Section 2 challenges to time, place, or manner voting rules, calling its guideposts sufficient only for the cases at hand. Justice Gorsuch's concurrence separately flags that the Court has never decided whether Section 2 creates a private right to sue at all — an open question that could affect future litigation.
Concurrences and dissents
Concurrence — Justice Gorsuch
Justice Gorsuch joined the majority opinion in full but wrote separately to flag an issue the Court did not resolve: the Court has long assumed — without ever deciding — that Section 2 of the Voting Rights Act creates an implied right for private parties to sue. Because no party raised that question here, and because such a right is not a matter of a court's power to hear a case, the Court left it unaddressed. Gorsuch suggests it remains available for future litigation.
Dissent — Justice Kagan
Justice Kagan argued that the majority rewrote Section 2 rather than applied it. In her reading, Section 2's broad text prohibits any voting rule that results in a statistically significant racial disparity in the opportunity to vote, unless the rule is necessary to serve a strong state interest — meaning a less discriminatory alternative would not adequately do the job. She would have struck down both Arizona rules, arguing the out-of-precinct policy disproportionately discards minority ballots due to Arizona's unusual rate of polling-place relocations, and the ballot-collection ban imposes a severe hardship on rural Native American voters who lack mail access. She also argued the majority's guideposts are invented restrictions with no basis in the statute's text.
How the Court got there
The legal reasoning, step by step
- The Court began with the text of Section 2(b) of the Voting Rights Act, which prohibits voting procedures that are not 'equally open to participation' by members of a racial group 'in that its members have less opportunity than other members of the electorate to participate in the political process.' The phrase 'in that' signals that equal 'opportunity' explains what equal 'openness' means — the two are not separate requirements. Equal openness is the touchstone.
- Because this was the Court's first case applying Section 2 to neutral time, place, or manner voting rules (rather than vote-dilution claims like redistricting), the Court declined to announce a definitive test. Instead it identified five guideposts for evaluating such rules: (1) the size of the burden imposed, which must exceed the 'usual burdens of voting' to matter; (2) how far the rule departs from what was standard practice when Section 2 was amended in 1982; (3) the size of any racial disparities in impact; (4) the opportunities provided by the State's entire voting system taken as a whole; and (5) the strength of the state's interest in the rule.
- The Court rejected importing a 'necessity' or 'least restrictive means' requirement from employment and housing discrimination law into Section 2 analysis. Section 2 does not force a State to prove it could not achieve its legitimate interests by some other, less burdensome means — such a standard would threaten to invalidate virtually any neutral voting rule.
- Applying the guideposts to Arizona's out-of-precinct policy, the Court found: the burden of finding one's assigned polling place is ordinary; Arizona makes extensive information available to help voters do so; the racial disparity is small in absolute terms (the gap between minority and non-minority out-of-precinct rates is roughly half a percentage point); Arizona offers many alternative ways to vote; and precinct-based voting serves strong state interests in orderly administration, shorter lines, and correct ballot assignment.
- For the ballot-collection restriction (HB 2023), the plaintiffs produced no statistical evidence of how large any racial disparity in impact actually was. Even setting that aside, Arizona's compelling interest in preserving election integrity — including deterring voter pressure and fraud risk associated with third-party ballot handling — sufficed under the totality-of-circumstances analysis. A State may take preventive action against fraud without waiting for it to occur inside its own borders.
- On the question of whether HB 2023 was enacted with discriminatory intent, the Court reviewed the district court's finding under a 'clear error' standard — meaning an appeals court may reverse only if the trial court's reading of the evidence was implausible. The district court had found the legislature was motivated primarily by sincere (if contested) concern about mail-in ballot security and by partisan interests, not racial animus. The Ninth Circuit's attempt to apply a 'cat's paw' theory — an employment-law doctrine holding an employer responsible when a biased supervisor manipulates a decision-maker — has no place in the legislative context, because legislators are not agents of a bill's sponsor.
Doctrinal impact
Cases affected by this decision
Limits Thornburg v. Gingles (478 U.S. 30)
The Gingles vote-dilution framework applies much more narrowly in cases challenging neutral time, place, or manner voting rules.
Reaffirms Crawford v. Marion County Election Bd. (553 U.S. 181)
The 'usual burdens of voting' standard from Crawford is adopted as a floor for Section 2 analysis of voting rules.
Distinguishes Mobile v. Bolden (446 U.S. 55)
The 1982 amendment to Section 2 was enacted to repudiate Bolden's requirement of discriminatory intent; no intent is needed to show a results-based violation.