This piece originally ran in Election Law Blog, a blog by law professor Rick Hasen focused on election law and the Supreme Court.
The Supreme Court’s upcoming decision in Brnovich v. DNC will determine whether Section 2 of the Voting Rights Act (VRA) remains a viable tool in the urgent fight to protect the freedom to vote. It would be a huge mistake for the Court to adopt an interpretation of that statute that effectively nullified its value as a protection against voter suppression measures that disproportionately harm communities depending on their race.
The Court has not previously ruled on how the Section 2 “results test” applies to discriminatory voting barriers. This void exists in part because Section 5 of the VRA previously blocked many voter suppression laws, making it unnecessary to resort to costly and burdensome Section 2 litigation. But since the Court made Section 5 unenforceable in the 2013 Shelby County v. Holder decision, voting rights advocates have used Section 2 to challenge a range of inventive laws that disenfranchise minority voters. The lower courts have drawn on the statutory text, purpose, and the Court’s vote dilution precedent to formulate a sensible Section 2 standard for this context that roots out voting discrimination without unduly interfering with legitimate election administration needs. Although plaintiffs lose more than they win under this standard, Section 2 has emerged as a vital tool for combating the most burdensome and least justified laws that harm voters of color.
We at Campaign Legal Center (CLC) submitted an amicus brief in Brnovich urging the Court to maintain this Section 2 results test standard and describing the two-part inquiry that enforces the statute. Section 2 states that a contested practice is in violation if, under the totality of circumstances, it “results in a denial or abridgement of the right . . . to vote on account of race[.]” As our brief lays out, the prevailing Section 2 results standard limits liability because it requires plaintiffs to prove causation at two separate stages.
At the first stage of the analysis, plaintiffs must establish that the challenged law disproportionately “results in a denial or abridgment” of minority voters’ rights to equally “participate in the political process.” Plaintiffs must prove a statistically significant racial disparity in the law’s negative effects. This analysis is focused on the nature rather than the magnitude of the challenged law’s differential racial impact, in order to carry out Congress’s “firm intention to” use the VRA to “rid the country of racial discrimination in voting” in its entirety. Applied to a hypothetical Justice Scalia posited, for example, if a jurisdiction “permitted voter registration for only three hours one day a week, and that made it more difficult for [Black voters] to register than whites, [Black voters] would have less opportunity ‘to participate in the political process’ than whites, and [Section] 2 would therefore be violated.”
At the second stage of the results test, Section 2 plaintiffs must prove that the disparate burden identified in part one occurred “on account of race.” They do this by establishing a but-for causal relationship between the contested law’s disparate burden and race discrimination. Following the analysis of the Court’s marquee Section 2 vote dilution case in Thornburg v. Gingles, plaintiffs must show how the challenged practice’s “interact[ion] with social or historical conditions” of discrimination explains the disparate result. Congress designated a list of considerations to make this causal connection, which are derived directly from the Supreme Court’s intentional discrimination cases and seek to “develop a gestalt view of the political and racial climate in a jurisdiction.” A key consideration is determining whether the government’s justification for its law is legitimate or tenuous. Courts must scrutinize the perverse and even latent incentives lawmakers may have to perpetuate the effects of racial discrimination and biases in the electoral process.
In short, Section 2 is best read to require plaintiffs to establish both that the contested voting restriction causes voters of color to disproportionately bear the brunt of its negative effects, and that this prohibited result is explained by the lasting scourge of race discrimination. Employing a totality-of-circumstances analysis that requires two levels of causation will ensure that courts intervene only when necessary to vindicate the Constitution and VRA’s promise of an equal right to vote. As Justice O’Connor described, Congress designed Section 2 to realize our “Nation’s commitment ‘to confront its conscience and fulfill the guarantee of the Constitution’ with respect to equality in voting.”
The need to reaffirm the continued importance of the VRA comes at a time of great uncertainty for our democracy. Responding to an unprecedented disinformation campaign following the 2020 presidential election, lawmakers in greater than 40 states have introducing a wave of legislation limiting Americans’ freedom to vote. Many of these proposals, if enacted, would disproportionately burden voters of color. Given this backdrop, it is essential for the Supreme Court to maintain the prevailing Section 2 standard developed in the lower courts.
The Brnovich case is an opportunity for the Court to make clear that the VRA leaves no room for racial disadvantage in our elections, and that the importance of democratic equality rises above the political fray. Maintaining the two-part Section 2 results standard that Congress devised, and the lower courts have dutifully applied, will ensure that the VRA continues to have a meaningful role in protecting the freedom to vote.