Brnovich, election law trade-offs, and the limited role of courts
July 6, 2021
Derek T. Muller is a bachelor of law and professor of law at the University of Iowa School of Law.
Arizona “usually makes it easy for residents to vote.” This framework comes from Justice Samuel Alito Brnovich v. Democratic National Committee It paved the way for the six Supreme Court justices to refuse to challenge two Arizona laws.
For states seeking to innovate or amend their election laws — to expand or contract them — this marks a major victory. This is the latest in a series of cases, forcing the Federal Court to get rid of second guesses about state election laws.
The Democratic National Committee challenged two Arizona laws. One is the prohibition of voting outside the constituency, which has existed for more than 50 years. If a voter votes in the wrong district, even if the voter is eligible to participate in a statewide election, such as a presidential election, the vote will not be counted.
The other is a regulation issued in 2016 that restricts third parties-postal workers, election officials, caregivers, family members or family members-from being able to collect full absentee ballots from voters.Arizona has long restricted who can distribution Blank ballots, but it adds about who can collect The completed ballot. The lower court ruled that these two laws have placed a disproportionate burden on minority voters and that the promulgation of the third-party collection ban has discriminatory intent.
This case provided the Supreme Court with the first opportunity to consider a “refusal to vote” law, which may deprive someone of the opportunity to vote, and how they comply with Section 2 of the Voting Rights Act. The language in Section 2 is fairly open, requiring that the “overall circumstances” be taken into account and the political process must be “equally open” to minority and non-minority voters.
The court provided several considerations for the lower courts in future Voting Rights Act cases, but two measures deserve special attention.
First, the court adopted the language in its 2008 opinion Crawford v. Marion County Election Commission, Six of the judges approved Indiana’s voter identification law. The opinion of Justice John Paul Stevens admitted that voting rights must take into account the “usual voting burden”, including the presentation of identification in some cases.This language recurs in court Brnovic Opinion as a factor in the “overall situation”.
The court explained that every voting rule will put some burden on voters. Voting inevitably requires time and travel, even if you go to the mailbox. The court accepted the argument that under the Voting Rights Act, “inconvenience” alone is not enough to win. An open process with a “normal voting burden” usually does not violate Section 2.
Second, Section 2 of the current version was amended by Congress in 1982, and the Supreme Court instructed the lower courts to base the voting burden at that time. In 1982, the state’s absentee voting rules were very narrow, but today’s voting opportunities are much greater. This means that few rules will significantly deviate from the 1982 baseline, which means that more laws will be passed under Section 2.
These two measures—the usual burden of voting is legal and related to the degree of departure from the 1982 rule—will make it challenging for future plaintiffs to win a refusal to vote under Section 2. Expand voting opportunities and sign a contract with them if they think it is appropriate.
The court rejected the challenge to the Arizona law. These two rules affect a small number of voters, and there is almost no difference in the behavior of minority and non-minority voters. These rules are in full compliance with the “usual voting burden”, especially considering ample voting opportunities. “All situations” include 27 days of mail voting and early voting in person, as well as voting in person on election day.
The states will continue to formulate the “time, place, and method” rules they deem appropriate. Every election law requires trade-offs. New or increased voting opportunities will increase the cost or complexity of the system. The public may think that the electoral law is particularly good or bad and communicate it to their elected representatives. States can choose to keep or change these rules based on their own experience.
Brnovic It is the latest in a series of cases, showing that the federal courts should play a smaller role in overseeing how the states manage elections. Crawford Approved Indiana’s voter identification law.The court’s 2019 decision Rucho v. Common Cause Said that the Federal Court should not accept challenges to the division of party constituencies under the Constitution. In 2020, a series of cases were decided, including Republican National Committee v. Democratic National Committee, It mainly instructs federal courts not to make the latest changes to the way states manage elections even during the pandemic.It rejected the challenge to the presidential election Texas v Pennsylvania, Let the decision of the state election officials stand.
It will be more difficult for future plaintiffs to challenge under Section 2 of the Voting Rights Act. However, it wasn’t until the Supreme Court ruled in Article 2 that Article 2 was actually used in cases of refusal to vote. Shelby County v. Holder In 2013, this restricted the application of another part of the Voting Rights Act. The litigants then moved to Part 2. Brnovic, They are likely to move elsewhere in the future.
But other places may just refer to a place outside the federal court. If desired, Congress can set specific rules for absentee ballots (this is part of HR 1, “Bill for the people“). State courts may review election laws in accordance with the state constitution. In many states, people can take the initiative by voting. In the upcoming re-election cycle, Section 2 will continue to play an important role to ensure that minority voters are in Appropriate representation in the legislature has always been its main purpose.