Brnovich v. Democratic National Committee
Whether two Arizona voting provisions — one requiring in-person voters to cast ballots in their assigned precinct, and another restricting third-party collection of mail-in ballots — violated Section 2 of the Voting Rights Act by producing a discriminatory result against minority voters.
The Decision
6-3 decision · Opinion by Samuel Alito · 2021
Majority Opinion— Samuel Alitoconcurring ↓dissent ↓
In a 6–3 decision authored by Justice Samuel Alito, the Supreme Court reversed the Ninth Circuit and upheld both of Arizona's challenged voting provisions. The majority held that neither the out-of-precinct policy nor H.B. 2023 violated Section 2 of the Voting Rights Act, and that H.B. 2023 was not enacted with discriminatory intent.
The majority opinion began by addressing the text and purpose of Section 2, noting that the 1982 amendments to the Voting Rights Act created a 'results test' — meaning challengers do not need to prove intentional discrimination but can prevail by showing that a voting practice results in minority voters having 'less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.' However, Justice Alito stressed that this language does not mean any statistical disparity in how a rule affects different racial groups automatically constitutes a violation. Congress chose the phrase 'less opportunity,' not 'less success,' and a voting rule that merely makes it marginally harder for some voters does not necessarily deny equal opportunity.
The Court then articulated several 'guideposts' for evaluating Section 2 challenges to ordinary time, place, and manner voting rules (as opposed to challenges alleging vote dilution through redistricting). These included: (1) the size of the burden imposed by the rule on voters; (2) the degree to which the rule departs from standard practices as of 1982, when Section 2 was amended; (3) the size of the racial disparity in the rule's impact; (4) the overall opportunities for voting provided by the state's entire electoral system; and (5) the strength of the state's justifications for the rule. On this last point, the Court emphasized that preventing fraud is a strong and legitimate state interest, even without specific evidence that fraud has actually occurred.
Applying these guideposts, the majority concluded that Arizona's out-of-precinct policy imposed only a small burden — most voters do go to the correct precinct, and Arizona provides other convenient ways to vote. The racial disparity, while real, was modest in absolute terms. Similarly, the Court found that H.B. 2023 did not meaningfully reduce minority voters' opportunity to participate, especially given Arizona's other generous voting options. The Court also rejected the Ninth Circuit's conclusion that H.B. 2023 was enacted with discriminatory purpose, finding that the legislature had legitimate, non-racial reasons for enacting the law — principally, protecting ballot integrity and public confidence in elections. The Court faulted the Ninth Circuit for improperly weighing the evidence on legislative intent and deferring too little to the trial court's findings.
Concurring Opinions
Justice Neil Gorsuch, joined by Justice Clarence Thomas, wrote a brief concurrence noting that the Court had not been asked to decide whether Section 2 of the Voting Rights Act provides a private right of action — that is, whether individual plaintiffs and organizations can sue under the statute at all, or whether only the federal government can bring enforcement actions. Gorsuch flagged this as an important open question for future cases, signaling potential interest in further limiting who can bring voting rights challenges.
Dissenting Opinions
Elena Kaganjoined by Stephen Breyer, Sonia Sotomayor
The dissent argued that the majority gutted Section 2 of the Voting Rights Act by creating new judge-made tests that Congress never intended and that would make it extremely difficult to challenge virtually any voting restriction. Justice Kagan contended that the majority's approach ignored the broad remedial purpose of the statute and the real-world evidence of discriminatory effects on minority voters in Arizona.
- The dissent argued that the majority invented a set of guideposts that appear nowhere in Section 2's text, effectively rewriting the statute to shield common voting restrictions from legal challenge — even when they demonstrably burden minority voters more than white voters.
- Justice Kagan emphasized that Section 2's 'totality of circumstances' test was Congress's deliberate effort to capture exactly the kind of facially neutral rules that interact with existing social and economic inequalities to disproportionately harm minority voting participation.
- The dissent pointed to the specific evidence in this case: Native American voters who live on reservations without regular mail service and who relied heavily on ballot collection, and minority voters who disproportionately lost their votes under the out-of-precinct policy.
- Justice Kagan argued that the majority's emphasis on what was 'standard practice' in 1982 would freeze voting rights law in time, preventing Section 2 from addressing new forms of voting restrictions that states adopt in response to changing demographics.
- The dissent warned that the decision came at a particularly dangerous moment, as states across the country were enacting new voting restrictions, and the Court was weakening the primary federal tool available to combat racially discriminatory election laws.
Background & Facts
Arizona, like all states, has rules governing how elections are conducted. Two of those rules became the centerpiece of this major voting rights dispute. The first was Arizona's out-of-precinct policy: if a voter showed up in person on Election Day but went to the wrong polling place (a precinct other than the one assigned to their address), their entire provisional ballot would be discarded, even for statewide or national races where the ballot choices would have been the same in any precinct. The second was House Bill 2023, enacted in 2016, which made it a crime for most third parties to collect and deliver another person's completed early mail-in ballot. Under this law, only a voter's family member, household member, caregiver, mail carrier, or election official could handle someone else's ballot. Critics called the restriction a ban on 'ballot collection' or 'ballot harvesting.'
The Democratic National Committee (DNC), along with other organizations and individual voters, sued the State of Arizona, arguing that both provisions violated Section 2 of the Voting Rights Act of 1965. Section 2 prohibits voting practices that result in the denial or abridgment of the right to vote on account of race or color. The challengers presented evidence that minority voters in Arizona — particularly Native American, Hispanic, and African American voters — were disproportionately affected by both rules. For example, minority voters were statistically more likely to cast out-of-precinct ballots and, in certain communities (especially remote Native American reservations with limited mail service), third-party ballot collection was a practical necessity for participating in elections.
After a ten-day bench trial, the U.S. District Court for the District of Arizona ruled in favor of the state, finding that neither provision violated Section 2 and that H.B. 2023 was not enacted with discriminatory intent. A three-judge panel of the Ninth Circuit Court of Appeals affirmed in part, but then the full Ninth Circuit reheard the case en banc. In a divided opinion, the en banc Ninth Circuit reversed, concluding that both provisions violated Section 2's results test — meaning they produced a discriminatory effect — and further held that H.B. 2023 had been enacted with a racially discriminatory purpose.
Arizona Attorney General Mark Brnovich petitioned the Supreme Court to review the Ninth Circuit's ruling. The Supreme Court agreed to hear the case, recognizing that it raised fundamental and unresolved questions about what legal standard should govern Section 2 challenges to ordinary voting regulations — an area where lower courts had developed conflicting approaches. The case was argued in March 2021 and decided on July 1, 2021.
The Arguments
Arizona's voting provisions were commonplace, race-neutral election administration rules well within the state's constitutional authority to regulate the time, place, and manner of elections. The minor statistical disparities in their effects on different racial groups did not rise to the level of a Section 2 violation.
- Arizona offers extensive voting opportunities — including 27 days of early voting and universal no-excuse mail-in voting — so no voter is denied meaningful access to the ballot by either provision.
- The out-of-precinct policy is a standard practice used by many states and serves the legitimate interest in orderly election administration, including ensuring voters receive the correct ballot for local races.
- H.B. 2023 was enacted to combat the risk of ballot tampering and fraud associated with third-party ballot collection, reflecting a legitimate state interest in election integrity, not racial discrimination.
- The statistical disparities cited by challengers were small in absolute terms and did not demonstrate that minority voters had less opportunity to participate in the political process.
Both Arizona provisions produced discriminatory results against minority voters in violation of Section 2 of the Voting Rights Act, and H.B. 2023 was also motivated by racially discriminatory intent. Section 2 was designed to address exactly these kinds of facially neutral rules that fall more heavily on minority communities.
- Statistical evidence showed that minority voters in Arizona were significantly more likely than white voters to have their ballots discarded under the out-of-precinct policy.
- Ballot collection was critically important for Native American voters living on remote reservations without home mail delivery or easy access to polling locations, and banning it created a real barrier to their participation.
- The legislative history of H.B. 2023 showed racial motivations: sponsors targeted a practice used heavily in minority communities, with little evidence of actual fraud to justify the restriction.
- Section 2's 'totality of circumstances' test, as established by Congress in the 1982 amendments, was specifically intended to capture rules that, while neutral on their face, interact with social and historical conditions to burden minority voters disproportionately.