U.S. Supreme Court’s Brnovice v. Democratic National Committee Decision Further Weakens Voting Rights Act of 1965

Civil Rights Policy Brief # 169 |
By: Rod Maggay, Senior USRENEW NEWS Writer | July 7, 2021

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Policy Summary

Under Section 2 of the Voting Rights Act (VRA) of 1965 “No voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color.” In 1982 amendments to the act provided a “results test” to Section 2. This meant that any voting law enacted which “resulted” in a discriminatory effect based on race or color was prohibited. An “intent test” which prohibited discriminatory voting laws only if the law was enacted with the intent to discriminate based on race or color had already been established under Section 2 in Mobile v. Bolden in 1980.

In 2016 the Arizona State Legislature passed H.B. 2023 which made it a felony crime to handle or submit a completed ballot on behalf of another person unless the person was a family member, caregiver or election official. Additionally, Arizona has an “out – of – precinct” policy which requires election officials to reject ballots if the voter submits his ballot to the wrong precinct.

The Democratic National Committee (DNC) brought a lawsuit to challenge these two voting provisions. The District Court ruled against the DNC and found that both provisions were not unconstitutional and not in violation of the Voting Rights Act of 1965. The case was appealed to the Court of Appeals for the Ninth Circuit, which reversed the judgment of the District Court in a 7 – 4 vote. The court found that both provisions violated Section 2 of the VRA. The court said that the “out – of – precinct” policy violated the “results test” of Section 2 of the VRA because the policy placed a significant burden on minority voters. As for H.B. 2023, the court ruled that this provision violated the “intent test” of Section 2 of the Voting Rights Act because the provision was enacted with discriminatory intent to burden ballot collectors who worked in predominantly minority areas. The case was then appealed to the U.S. Supreme Court which ultimately ruled 6 – 3 to overrule the Ninth Circuit decision. The Supreme Court held that both voting provisions were not in violation of Section 2 of the Voting Rights Act of 1965. LEARN MORE

Policy Analysis

The decision in Brnovice v. Democratic National Committee is clearly a blow for voting rights but when the case is viewed in a larger context with other recent Supreme Court voting rights cases it is clear that the active protections of the Voting Rights Act of 1965 has been significantly narrowed and weakened.

The Voting Rights Act of 1965 is one of the landmark legislative pieces of the Civil Rights Movement. Its intent is to prohibit racial discrimination in voting. The law had a number of provisions that sought to protect the right to vote but the most important were Section 2 (at issue in the Brnovice case) and Section 5.

Section 5 was designed to give the Federal Government a chance to review and object to proposed voting changes in selected states before they were implemented.

Pres Lyndon B Johnson Voting Rights Act July 2 1965

Photo taken from: Britannica

However, this Section was seriously weakened by the Supreme Court in Shelby County v. Holder in 2013. That left Section 2 as an avenue to try and stop attacks on voting rights but the Court again issued a decision that undercut Section 2 as a viable option to challenge voting laws.

In Abbot v. Perez in 2018 the Supreme Court raised the standard to prove intent to discriminate. Here, they imposed a presumption of legislative good faith. This rendered Section 2 “intent tests” cases difficult because of the high bar parties had to prove a racially motivated intent to discriminate. What remained was Section 2’s “results test.”

But in this case the Supreme Court completes the work it had started in previous cases by issuing an opinion that again makes implementation of the Voting Rights Act of 1965 so difficult as to make efforts to challenge voting laws, as a practical matter, nearly futile. While the intent test and the results test had been the test to challenge voting laws since 1982, Justice Alito scraped that and instead introduced a non – exhaustive five – factor “totality of the circumstances” test. Simply having a voting law that results in voter discrimination against a minority community is no longer enough to challenge the law.

Nor is a clear intent by a legislative body to enact a voting bill targeted at communities of color enough to challenge the voting law. Now to show a violation, according to Justice Alito, is to show what burdens the new voting rule imposes, show a comparison to the new voting rule and the prior standard practice in 1982 (when the Voting Rights amendments introducing the results test was passed), the disparities of the new voting rule among different minority communities, other opportunities to vote in the State’s voting system and the State’s interests in the proposed voting rule.


Photo taken from: The New Republic

This new legal standard just complicates matters and will likely make it harder to challenge any new voting rule or law and ultimately prevail. The five – factor test introduces too many requirements that groups would have to satisfy to show that a new voting rule is in violation of Section 2.

The Court, again, raised the legal standard to heights that question whether any party could meet it. And when this case is combined with the Shelby County and Abbott v. Perez cases and the conservative justices goal to defer to decisions made by state and local legislators except in the most egregious cases, it leaves one to wonder whether the Voting Rights Act of 1965 can be used to challenge questionable voting laws that are being introduced around the country. And this, in turn, raises the question whether the Voting Rights Act of 1965 can be used in a meaningful manner anymore.

The law was enacted to prohibit tactics and methods that prevent people from exercising their right to vote. But that protection disappears when additional legal requirements are imposed that act as another barrier to voting. These five new factors will simply be thrown up to make groups think twice about whether it is worth their time and effort to mount a challenge to a voting law and whether they can even succeed.

This will end up in the likely disenfranchisement of millions of minority voters around the country if the rate of voter suppression bills being introduced by Republicans around the country is any indication. After the Brnovice case, and taken together with the Supreme Court’s Shelby County and Abbott case, it is difficult to see if the Voting Rights Act of 1965 can continue to act in any meaningful way for the noble purpose for which it was enacted. LEARN MORE, LEARN MORE

Engagement Resources​

Click or tap on image to visit resource website.

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Brennan Center for Justice – infopage on Brnovice case and Supreme Court decision.

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American Civil Liberties Union (ACLU) – comment on Brnovice Supreme Court decision.

This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact Rod@USResistnews.org.

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