Brnovich v. Democratic Nat'l Comm., 19-1257

• Court: United States Supreme Court
• Writing for the Court: Justice ALITO delivered the opinion of the Court.
• Citation: 210 L.Ed.2d 753,141 S.Ct. 2321
• Parties: Mark BRNOVICH, Attorney General of Arizona, et al., Petitioners v. DEMOCRATIC NATIONAL COMMITTEE, et al.; Arizona Republican Party, et al., Petitioners v. Democratic National Committee, et al.
• Docket Number: No. 19-1258,No. 19-1257,19-1257
• Decision Date: 01 July 2021

141 S.Ct. 2321
210 L.Ed.2d 753

Mark BRNOVICH, Attorney General of Arizona, et al., Petitioners
v.
DEMOCRATIC NATIONAL COMMITTEE, et al.;

Arizona Republican Party, et al., Petitioners
v.
Democratic National Committee, et al.

No. 19-1257
No. 19-1258

Supreme Court of the United States.

Argued March 2, 2021
Decided July 1, 2021

Brett W. Johnson, Colin P. Ahler, Tracy A. Olson, Snell & Wilmer L.L.P., Phoenix, AZ, Michael A. Carvin, Yaakov M. Roth, Anthony J. Dick, E. Stewart Crosland, Stephen J. Kenny, Stephen J. Petrany, Jones Day, Washington, DC, for Petitioners.

William S. Consovoy, Tyler R. Green, Consovoy McCarthy PLLC, Arlington, VA, Mark Brnovich, Attorney General, Joseph A. Kanefield, Chief Deputy and, Chief of Staff, Brunn W. Roysden III, Solicitor General, Drew C. Ensign, Deputy Solicitor General, Kate B. Sawyer, Assistant Solicitor General, Office of the Arizona, Attorney General, Phoenix, AZ, for Petitioners.

Jessica Ring Amunson, Sam Hirsch, Tassity S. Johnson, Noah B. Bokat-Lindell, Elizabeth B. Deutsch, Jonathan A. Langlinais, Jenner & Block LLP, Washington, DC, for Respondent.

Sarah R. Gonski, Perkins Coie LLP, Phoenix, AZ, Lauren P. Ruben, Perkins Coie LLP, Denver, CO, Marc E. Elias, Bruce v. Spiva, Elisabeth C. Frost, Amanda R. Callais, Lalitha D. Madduri, Alexander G. Tischenko, Perkins Coie LLP, Washington, DC, for Respondents.

Justice ALITO delivered the opinion of the Court.

141 S.Ct. 2330

In these cases, we are called upon for the first time to apply § 2 of the Voting Rights Act of 1965 to regulations that govern how ballots are collected and counted. Arizona law generally makes it very easy to vote. All voters may vote by mail or in person for nearly a month before election day, but Arizona imposes two restrictions that are claimed to be unlawful. First, in some counties, voters who choose to cast a ballot in person on election day must vote in their own precincts or else their ballots will not be counted. Second, mail-in ballots cannot be collected by anyone other than an election official, a mail carrier, or a voter's family member, household member, or caregiver. After a trial, a District Court upheld these rules, as did a panel of the United States Court of Appeals for the Ninth Circuit. But an en banc court, by a divided vote, found them to be unlawful. It relied on the rules' small disparate impacts on members of minority groups, as well as past discrimination dating back to the State's territorial days. And it overturned the District Court's finding that the Arizona Legislature did not adopt the ballot-collection restriction for a discriminatory purpose. We now hold that the en banc court misunderstood and misapplied § 2 and that it exceeded its authority in rejecting the District Court's factual finding on the issue of legislative intent.

I

A

Congress enacted the landmark Voting Rights Act of 1965, 79 Stat. 437, as amended, 52 U.S.C. § 10301 et seq. , in an effort to achieve at long last what the Fifteenth Amendment had sought to bring about 95 years earlier: an end to the denial of the right to vote based on race. Ratified in 1870, the Fifteenth Amendment provides in § 1 that "[t]he right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude." Section 2 of the Amendment then grants Congress the "power to enforce [the Amendment] by appropriate legislation."

Despite the ratification of the Fifteenth Amendment, the right of African-Americans to vote was heavily suppressed for nearly a century. States employed a variety of notorious methods, including poll taxes, literacy tests, property qualifications, " ‘white primar[ies],’ " and " ‘grandfather clause[s].’ "¹ Challenges to some blatant efforts reached this Court and were held to violate the Fifteenth Amendment. See, e.g. , Guinn v. United States , 238 U.S. 347, 360–365, 35 S.Ct. 926, 59 L.Ed. 1340 (1915) (grandfather clause); Myers v. Anderson , 238 U.S. 368, 379–380, 35 S.Ct. 932, 59 L.Ed. 1349 (1915) (same); Lane v. Wilson , 307 U.S. 268, 275–277, 59 S.Ct. 872, 83 L.Ed. 1281 (1939) (registration scheme predicated on grandfather clause); Smith v. Allwright , 321 U.S. 649, 659–666, 64 S.Ct. 757, 88 L.Ed. 987 (1944) (white primaries); Schnell v. Davis , 336 U.S. 933, 69 S.Ct. 749, 93 L.Ed. 1093 (1949) (per curiam ), affirming 81 F.Supp. 872 (S.D. Ala. 1949) (test of constitutional knowledge); Gomillion v. Lightfoot , 364 U.S. 339, 347, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960) (racial gerrymander). But as late as the mid-1960s, black registration and voting

141 S.Ct. 2331

rates in some States were appallingly low. See South Carolina v. Katzenbach , 383 U.S. 301, 313, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966).

Invoking the power conferred by § 2 of the Fifteenth Amendment, see 383 U.S. at 308, 86 S.Ct. 803 ; City of Rome v. United States , 446 U.S. 156, 173, 100 S.Ct. 1548, 64 L.Ed.2d 119 (1980), Congress enacted the Voting Rights Act (VRA) to address this entrenched problem. The Act and its amendments in the 1970s specifically forbade some of the practices that had been used to suppress black voting. See §§ 4(a), (c), 79 Stat. 438–439; § 6, 84 Stat. 315; § 102, 89 Stat. 400, as amended, 52 U.S.C. §§ 10303(a), (c), 10501 (prohibiting the denial of the right to vote in any election for failure to pass a test demonstrating literacy, educational achievement or knowledge of any particular subject, or good moral character); see also § 10, 79 Stat. 442, as amended, 52 U.S.C. § 10306 (declaring poll taxes unlawful); § 11, 79 Stat. 443, as amended, 52 U.S.C. § 10307 (prohibiting intimidation and the refusal to allow or count votes). Sections 4 and 5 of the VRA imposed special requirements for States and subdivisions where violations of the right to vote had been severe. And § 2 addressed the denial or abridgment of the right to vote in any part of the country.

As originally enacted, § 2 closely tracked the language of the Amendment it was adopted to enforce. Section 2 stated simply that "[n]o 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." 79 Stat. 437.

Unlike other provisions of the VRA, § 2 attracted relatively little attention during the congressional debates² and was "little-used" for more than a decade after its passage.³ But during the same period, this Court considered several cases involving "vote-dilution" claims asserted under the Equal Protection Clause of the Fourteenth Amendment. See Whitcomb v. Chavis , 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971) ; Burns v. Richardson , 384 U.S. 73, 86 S.Ct. 1286, 16 L.Ed.2d 376 (1966) ; Fortson v. Dorsey , 379 U.S. 433, 85 S.Ct. 498, 13 L.Ed.2d 401 (1965). In these and later vote-dilution cases, plaintiffs claimed that features of legislative districting plans, including the configuration of legislative districts and the use of multi-member districts, diluted the ability of particular voters to affect the outcome of elections.

One Fourteenth Amendment vote-dilution case, White v. Regester , 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973), came to have outsized importance in the development of our VRA case law. In White , the Court affirmed a District Court's judgment that two multi-member electoral districts were "being used invidiously to cancel out or minimize the voting strength of racial groups." Id. , at 765, 93 S.Ct. 2332. The Court explained what a vote-dilution plaintiff must prove, and the words the Court chose would later assume great importance in VRA § 2 matters. According to White , a vote-dilution plaintiff had to show that "the political processes leading to nomination and election were not equally open to participation by the group in question—that its members had less opportunity than did other residents in the

141 S.Ct. 2332

district to participate in the political processes and to elect legislators of their choice." Id. , at 766, 93 S.Ct. 2332 (emphasis added). The decision then recited many pieces of evidence the District Court had taken into account, and it found that this evidence sufficed to prove the plaintiffs' claim. See id. , at 766–769, 93 S.Ct. 2332. The decision in White predated Washington v. Davis , 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), where the Court held that an equal-protection challenge to a facially neutral rule requires proof of discriminatory purpose or intent, id. , at 238–245, 96 S.Ct. 2040, and the White opinion said nothing one way or the other about purpose or intent.

A few years later, the question whether a VRA § 2 claim required discriminatory purpose or intent came before this Court in Mobile v. Bolden , 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980). The plurality opinion for four Justices concluded first that § 2 of the VRA added nothing to the protections afforded by the Fifteenth Amendment. Id. , at 60–61, 100 S.Ct. 1490. The plurality then observed that prior decisions "ha[d] made clear that action by a State that is racially neutral on its face violates the Fifteenth Amendment only if motivated by a discriminatory purpose." Id. , at 62, 100 S.Ct. 1490. The obvious result of those...