## Facts

- Arizona offered multiple ways to vote, including voting by mail for 27 days before an election using an “early ballot,” voting in person at early-voting locations, and voting in person on Election Day.
- Many Arizona counties used a precinct-based system on Election Day. Under that model, voters had to vote in their assigned precinct, which was tied to their address.
- Arizona required election officials to reject ballots cast in the wrong precinct (the out-of-precinct or “OOP” rule). The State justified the rule as an administrative measure that helps prevent overcrowding, avoids ballot shortages, and ensures voters receive the correct ballot style for local contests.
- In 2016, Arizona enacted House Bill 2023 (HB 2023). HB 2023 made it a crime for anyone other than a postal worker, an elections official, or the voter’s caregiver, family member, or household member to knowingly collect and deliver another person’s completed early ballot.
- The Democratic National Committee and other plaintiffs sued Arizona officials in federal district court, alleging that the OOP rule and HB 2023 violated § 2 of the Voting Rights Act because they resulted in minority voters having less opportunity than other voters to participate in the political process and elect candidates of their choice.
- Plaintiffs also alleged that HB 2023 was enacted with discriminatory purpose, in violation of § 2 and the Fifteenth Amendment.
- After a bench trial, the district court rejected the § 2 results challenges and found no discriminatory intent behind HB 2023.
- A Ninth Circuit panel affirmed, but the Ninth Circuit sitting en banc reversed, holding both provisions violated § 2’s results test and that HB 2023 was enacted with discriminatory purpose.
- The Supreme Court granted certiorari (consolidating the case with a related petition) and reversed.

## Issues

1. Whether Arizona’s rule discarding ballots cast in the wrong precinct violates § 2 of the Voting Rights Act as a vote-denial measure with unlawful discriminatory results.
2. Whether HB 2023’s limits on third-party collection of completed early ballots violate § 2’s results standard.
3. Whether HB 2023 was enacted with a racially discriminatory purpose in violation of § 2 and the Fifteenth Amendment.

## Decision

- The Supreme Court reversed the Ninth Circuit’s en banc judgment and upheld both the OOP rule and HB 2023.
- The Court held that § 2 does not make every voting rule with some disparate impact unlawful; the statute requires assessment of the “totality of circumstances” and whether the political process is “equally open,” not a search for any statistical difference.
- For vote-denial claims, the Court identified several “guideposts” to help apply § 2’s text to common election regulations, including the size of the burden, the size of the disparity, the opportunities provided by the State’s entire voting system, the extent of departure from practices common when Congress amended § 2 in 1982, and the strength of state interests served.
- Applying those guideposts, the Court concluded the OOP rule imposed a modest burden on voters who chose to vote in person on Election Day in precinct-based counties and that any racial disparity shown in OOP voting was too small, in context, to establish a § 2 results violation.
- The Court similarly concluded HB 2023 did not violate § 2’s results test, giving weight to Arizona’s interest in preventing election fraud and maintaining voter confidence, and finding the law’s burdens and disparities insufficient when considered alongside Arizona’s broad options for early and mail voting.
- On discriminatory intent, the Court held that the Ninth Circuit erred by not giving proper deference to the district court’s finding that HB 2023 was not enacted with racial discriminatory purpose.
- A concurring opinion raised (without deciding) whether § 2 contains a private right of action. A dissent argued the majority’s approach narrowed § 2 and discounted how Arizona’s social conditions and voting practices interacted to burden minority voters.

## Legal Principles

- § 2 of the VRA forbids voting practices that, under the “totality of circumstances,” result in members of a racial minority having less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.
- In vote-denial cases, courts may apply non-exhaustive “guideposts” to assess whether a challenged rule results in unequal openness, including:
  - the size of the burden imposed by the rule (ordinary, usual burdens weigh against liability);
  - the degree of any racial disparity in the rule’s impact;
  - the State’s overall voting opportunities and alternatives within its election system;
  - the extent to which the rule departs from what was standard practice when Congress amended § 2 in 1982; and
  - the strength and legitimacy of the State’s interests served by the rule (including election integrity and orderly administration).
- “Mere inconvenience” from a generally applicable voting rule is not enough, by itself, to establish a § 2 violation.
- For discriminatory-purpose challenges to voting laws, courts apply the Arlington Heights framework; appellate courts must respect trial-court factual findings unless clearly erroneous, including findings about legislative intent.
- A State may enact measures aimed at preventing election fraud without waiting for proven instances of fraud, and the asserted interest may be weighed even when the record contains little evidence of past fraud.

## Conclusion

The Supreme Court held that Arizona’s out-of-precinct ballot rule and HB 2023’s limits on third-party ballot collection did not violate § 2’s results standard and that HB 2023 was not enacted with racially discriminatory purpose, while setting guideposts that make § 2 vote-denial liability depend on context, relative burdens, disparities, and state interests under the totality of circumstances.


Brnovich v. Democratic National Committee, 141 S.Ct. 2321 (2021)