We The People

Arizona Election Rules at SCOTUS

February 25, 2021

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On March 2, the Supreme Court will hear oral arguments in Brnovich v. Democratic National Committee. The case centers on two of Arizona’s election rules: 1) Arizona does not count provisional ballots cast in person on Election Day outside of the voter’s designated precinct and 2) its ballot-collection law permits only certain persons (family and household members, caregivers, mail carriers, and elections officials) to handle another person’s completed early ballot. The DNC challenged the rules, arguing that both discriminate against racial minorities in Arizona. On appeal, the Supreme Court will consider whether both policies violate Section 2 of the Voting Rights Act of 1965—which prohibits nationally any election laws or policies that “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color”—and whether the second violates the 15th Amendment—which states that “the 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.” Chris Kieser of Pacific Legal Foundation, who wrote a brief in support of Arizona Attorney General Mark Brnovich, and Sean Morales-Doyle of the Brennan Center, who wrote a brief in support of the DNC, explore the case and its potential implications in conversation with Jeffrey Rosen.

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PARTICIPANTS

Chris Keiser is an attorney at Pacific Legal Foundation. He co-authored Pacific Legal Foundation’s amicus brief in support of Arizona Attorney General Mark Brnovich, and wrote the SCOTUSblog article, “Section 2 of the Voting Rights Act: Equal opportunity vs. disparate impact.”

Sean Morales-Doyle is deputy director of the Voting Rights and Elections Program at the Brennan Center for Justice. He co-authored Brennan’s amicus brief in support of the Democratic National Committee.

Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.

This episode was produced by Jackie McDermott and engineered by Greg Scheckler. Research was provided by Jackie McDermott, Alexandra "Mac" Taylor, Angelys Torres, and Lana Ulrich.

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TRANSCRIPT

This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.

Jeffrey Rosen: [00:00:00] I'm Jeffrey Rosen, president and CEO of the National Constitution Center and welcome to We the People, a weekly show of constitutional debate. The National Constitution Center is a nonpartisan nonprofit chartered by Congress to increase awareness and understanding of the constitution among the American people. On March 2nd, the Supreme Court will hear arguments in Brnovich versus DNC. The case asks whether two of Arizona's election policies violate Section Two of the Voting Rights Act of 1965. Today we'll explore the case and its potential implications with two of America's leading experts on voting rights. Chris Kaiser is an attorney at the Pacific Legal Foundation. He coauthored the Pacific Legal Foundation's amicus brief in support of Mark Brnovich, who is the attorney general of Arizona, and wrote the SCOTUS blog article Section Two of the Voting Rights Act: Equal Opportunity versus Disparate Impact. Chris, thank you so much for joining.

Chris Kieser: [00:00:59] Great to be on.

Jeffrey Rosen: [00:01:01] And Sean Morales-Doyle is Deputy Director of the Voting Rights and Elections Program at the Brennan Center for Justice. He co-authored the Brennan Center's amicus brief in support of the Democratic National Committee. Sean, thank you so much for joining.

Sean Morales-Doyle: [00:01:14] Great to be here. Thanks for having me.

Jeffrey Rosen: [00:01:16] Chris. Let's begin with the stakes of the Brnovich case. What are the policies that are being challenged before the Supreme Court? And what is the constitutional debate about whether Section Two should be interpreted in terms of what you call equal opportunity versus disparate impact?

Chris Kieser: [00:01:35] So first of all, there are two policies that are being challenged here. One is Arizona's general policy that prohibits out of precinct voting. So the state will not count any vote that's cast in the wrong precinct. And the other policy is a recent statute that prohibits what its supporters call ballot harvesting and opponents called ballot collection; which basically limits the people who can deliver a voted absentee ballot to immediate family and caregivers for those who are in need of assistance. And both of these policies were challenged, I believe it was back in 2015, as violations of Section Two of the Voting Rights Act. And now it's been played into this longstanding debate over the reach of Section Two. Which really goes back to at least 1982, when Congress amended Section Two to establish the results tests, which was in response to the Supreme Court's decision in City of Mobile versus Bolden that had held that Section Two required discriminatory intent coterminous with the 15th amendment. So really the question in these cases is, we know that Congress intended that something more than, or something less than, discriminatory intent was required to prove a Section Two violation. The question is how much less.  I think for that we look to the statutory text and in Section Two B) the statute speaks of equality of opportunity to participate in the electoral process and it specifically disclaims proportional representation. Now for a Section Two claim to succeed under the standard in the Ninth Circuit, essentially the court analyzed two factors. The first was disparate burden on voters based on race. And the second was that the disparate burdens interaction with social and historical conditions. And we think the problem here from our point of view is that, from my point of view is that in every case where in recent times and every case where the court has found a disparate burden, it has always managed to link it to social historical conditions that produce the outcome and find a violation of the results test. And in that event, Section Two becomes essentially a disparate impact statute which even where the Supreme Court has found that disparate impact liability is permissible such as under the Fair Housing Act, it's always cautioned that a causation requirement. A robust causation requirement is required to cabin the statute so that it doesn't require race-based decision-making in all of its applications. So for Section Two, in the  redistricting context, you can see this very clearly; how Section Two has applied to essentially require state legislatures to consider race when they're drawing legislative districts. Now in the context here, which are called vote denial cases where you're looking at a disproportionate impact on participation or turnout or some other metric, it's been less clear. But still, we've seen in the past decade, as these cases have proliferated, that the focus on race in state legislatures has continued and it's only going to continue if the Ninth Circuit's  interpretation of Section Two is affirmed here.

Jeffrey Rosen: [00:05:21] Thank you so much for setting up this very complicated topic. So clearly when I teach constitutional law, these Section Two cases are among the most complicated. So I'm so grateful to both of you for helping We the People listeners understand the constitutional stakes. Sean, pick up from where Chris started. Tell us more about how in 1982 Congress repudiated the Supreme Court's Mobile case, which said that you need evidence of intentional discrimination before you can find a violation of Section Two of the Voting Rights Act and instead substituted this language about a violation being established based on the totality of the circumstances if political processes leading to nomination or election are not equally open to participation by members of a protected class, and that they have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. As Chris said, it wasn't clear from that text exactly what the standard was for determining a Section Two violation. Congress repudiated proportional representation, but in the Thornburg and Gingles case, which you cite in your brief, the Supreme Court laid the framework for evaluating violations of Section Two. And the Senate included a number of factors that you endorse, including a history of voting related discrimination in the state, and the extent to which voting is racially polarized in trying to decide whether Section Two has been triggered. So there's a lot going on here, but take our listeners through what Congress was trying to do in 1982 and how you think that Section Two should be interpreted.

Sean Morales-Doyle: [00:06:58] Sure. So I think going back to your original question about what the constitutional stakes are here, I think the constitutional stakes from my perspective are whether we can have an effective enforcement mechanism for the 15th amendment, for the ban on racial discrimination in voting in the 15th amendment. And, you know for the first hundred years of the 15th amendment, we pretty clearly didn't have an effective enforcement mechanism and so we continued to see rampant race discrimination in voting. That's why we have the Voting Rights Act of 1965 is to provide that enforcement mechanism. But after the Voting Rights Act was passed in 1965, as Chris and you had mentioned, the Supreme Court found that in order to violate Section Two of the Voting Rights Act, which is the nationwide prohibition on race discrimination in voting that provides for a right of action to sue to challenge discriminatory practices, that it required proof of discriminatory intent to bring a claim under Section Two. Congress, in 1982, essentially said that is not going to provide us an effective enforcement mechanism for the 15th amendment. That it is incredibly difficult to prove discriminatory intent. You know, we actually don't want to force plaintiffs to prove discriminatory intent for a number of reasons. It requires delving into the background of the legislative process in a way that we're not necessarily comfortable with. It requires accusing state legislators and legislatures of racism in a way that isn't helpful. And  frankly, given the way race works in our society, it is quite possible to pass discriminatory policies without doing anything that sort of reveals some animus in a way that would allow you to prove discriminatory intent in a court. And so Congress, in 1982, said we're going to make clear in response to the Supreme Court's decision that in order to ensure that we can have an effective remedy for race discrimination in voting in this country and really make the 15th Amendment promise of equality in our elections come to fruition, we are going to create a results test where the courts can look at whether or not a policy causes discriminatory results. And that is the test that's now been on the books since 1982 and has functioned in case after  case under Section Two in both vote dilution and vote denial claims. In the Gingles case, but I'll say it is first of all in our opinion, this is one place where Chris and I might agree, not a what folks might call a pure disparate impact tes t. In our brief we describe it as an an impact plus test. It looks at whether or not there's a disparity in the impact of a policy, but then what the text of Section Two says is you have to look at the totality of the circumstances in order to decide whether the inequality in access is on account of race. And what is the totality of the circumstances mean? Well, you know, Court's conduct a totality of the circumstances inquiries in a lot of different contexts. This is what courts are good at, right? They look at all of the facts, they understand what's happening, and try to decide whether or not there are discriminatory results here. But when Congress passed the amendments in 1982, the Senate issued a report, which we just now call the Senate report, and laid out a number of examples of the kinds of factors that a court might take into account when evaluating the totality of the circumstances. And so in the Gingles case, the Supreme Court essentially said, we're gonna use that guidance that Congress gave us when they passed this law, to help us understand what the totality of the circumstances that we should be looking at is. It's not a definitive list. Every factor isn't going to be relevant in every case. But courts are capable of figuring that out. And so in this case, for example, the Ninth Circuit looked at conducted what the courts call an intensely local appraisal of the way that these two policies function on the ground in Arizona, given Arizona's history, given the way race functions in Arizona's society, and figured out whether or not these policies based on the totality of the circumstances, are causing discriminatory results and making it harder for Native American, Latino, and Black voters to cast their ballots. And the court determined that these policies did do that and therefore violated the results test of Section Two. And I think if we, if the court, as some of the, the petitioners in their amici have asked, were to change that approach and were to make it much harder to bring Section Two claims and were to make it much harder to stop discriminatory policies in voting, the result would be to put us back to a place where we don't have that effective enforcement mechanism for the 15th Amendment. And that is ultimately what the constitutional stakes are here.

Jeffrey Rosen: [00:12:05] Chris, Sean says that the stakes will be an effective enforcement mechanism for the 15th Amendment. The background for this case is that Section Two of the 14th amendment is now being used to attack not only so-called vote dilution claims that come from redistricting and how you draw boundaries, but vote denial claims that come from laws that make it harder to register to vote. They include the Arizona laws at issue in this case involving whether you have to vote in a particular precinct or whether you can bundle your ballots with other folks and have them taken in, but also voter ID laws and other laws that challengers say are designed to discriminate against minorities and defenders say are necessary to avoid voter fraud. Tell us about the interpretation of Section Two that you think is most appropriate in light of its text and history and what are you urging the Supreme Court to adopt as a test?

Chris Kieser: [00:13:06] Yeah. So first the interpretation of Section Two that I think, it's helpful to present a dichotomy of what the recently in the post Shelby County cases, that what courts have adopted is essentially this two-part test where first they look for a disparate impact and second, they either apply the the Gingles factors or do some other sort of analysis, totality of the circumstances analysis, to link the disparate impact to social and historical conditions of discrimination. The problem from my perspective is that unfortunately, the conditions that the Ninth Circuit talked about in Arizona, and that the Fifth Circuit talked about in the Texas voter ID case Veasey versus Abbott, and that the Fourth Circuit talked about in the North Carolina case, they exist in a variety of States and oftentimes are very difficult to pin down onto a state. Which you know, States obviously have a sorted history of racial discrimination in this country, particularly the ones who are covered under Section Five's pre-clearance test before Shelby County was decided. However at some point, there must be some disconnect where a state can no longer be responsible for its past racial discrimination. The problem is that under the Gingles test, there is no line where there's no distinguishing between private discrimination and state discrimination. And in every case, the courts have analyzed this, they have come up with the conclusion that a disparate impact is linked to social and historical conditions of discrimination and that includes this case. Take the out of precinct policy for example, Arizona has very liberal mail-in voting and 80% of Arizonans vote by mail. The remaining 20% vote at their precincts on election day and out of those less than 1% of people voted in the wrong precinct, regardless of race. So we were talking about a total of 0.2% of minority voters and 0.1% of white voters who voted in the wrong precinct combined on election day versus early voting where precinct system doesn't matter. So to the point of the totality of the circumstances test, you can look at the totality of, and this is what I would urge the court to do, look at the totality of Arizona's system where you have a vote by mail and you have election day voting. Then from that you can make the determination that Arizona does have a system that is open for all to participate regardless of race. The problem is that if the court were to adopt the Ninth Circuit's position, it's hard to envision any law that has a disparate impact based on race that would not violate Section Two. And I think that might be why the Biden administration, although it repudiated the Trump administration's proposed Section Two tests, still would not go as far as to say that these particular provisions would violate the results test. The problem is the test applied in the Ninth Circuit would lead to that happening in almost  every case. S o  my position is that the court ought to focus on the totality of a state's voting apparatus and determine whether the state provides everyone, regardless of race, with an equal opportunity to participate in elections. I think you see how in some other cases how this might this might be different from the test applied in the Ninth Circuit. For example, I'm intensely familiar with the Fourth Circuit North Carolina case. I was a district court clerk when that case first came up. In that case one of the main challenges was the reduction of early voting from 17 days to 10 days while keeping the same number of hours of early voting. So it actually required counties to add certain accommodations for more hours during the compressed 10 day schedule. The parties in that case disputed whether the proper measure of disparate impact was to say well, we went from 17 days to 10 days and since Black voters used those seven days of early voting disproportionately that's a disparate impact. Or is the proper measure to look at the current system of 10 days of early voting with the expanded hours requirement and determine whether that system provides all voters with an equal opportunity to participate in the political process. Under that standard, I think that case also involved in out of precinct challenge to which the Fourth Circuit found violated the results tests. Very similar to the Arizona provision. In both cases, I would argue that the equality of opportunity to participate under the current system, is the proper standard. I think often these cases are not necessarily in the Arizona case because we're not comparing what happened before to what happened after, but often in a voter ID case or a case involving early voting, you're comparing what happened before to what happened after when the proper the proper inquiry should be to look at the current system and determine whether everyone, regardless of race has an equal opportunity to participate. I think the numbers here in Arizona where you see that 99.8% of people vote in the right precinct or vote early, demonstrate that everyone does.

Jeffrey Rosen: [00:19:20] Thank you very much for that. Sean, as Chris says the Biden administration has written a letter to the Supreme Court and it does not defend the result of the Ninth Circuit, which struck down those two Arizona provisions, but it does want to distance itself from the Trump administration's test for vote denial under the Voting Rights Act. So tell our listeners why the Biden administration decided that these two Arizona provisions perhaps could survive even the more robust totality of the circumstances test that it and you are urging. And then tell us why you disagree with the test that Chris has endorsed, which is just asking whether the current system, all things considered, gives people an equal opportunity to participate. And instead you'd focus on the impact on those most effected which in Arizona may have been only 0.2%, but as your brief suggests, that's a meaningful number of votes that could actually make a difference in elections.

Sean Morales-Doyle: [00:20:17] Yeah. So on the first point I think. I can't speak for the Biden administration as to why they decided to come down the way they did on the Arizona policies themselves, because the Biden administration did not offer up an explanation on that. Right. But for background, what the Biden administration did. The Biden administration filed this letter after the briefing was complete in the case and so given the stage of the proceedings, the Biden administration just filed a letter that essentially said we're not changing our position on whether or not the Ninth Circuit should be overturned without any more explanation about why they were coming down that way. But the administration did also say that the substance of the brief that the Trump administration Department of Justice had submitted, they were not in agreement with the substance of the brief. That they were no longer standing by the positions that they took and the arguments that they made in the brief that they had filed in December. That is significant because that brief departed significantly from the position that the Department of Justice has taken on how to apply Section Two in the past. In fact it departed, in part and in large part, by insisting on a stronger causation standard in Section Two along the lines of what Chris and his organization and others have asked the court to take up in this case. The Biden administration's DOJ said we are stepping back. We are correcting course. We are essentially not going to depart from the way the Department of Justice has always interpreted Section Two. But apparently, even in the way that they have historically interpreted Section Two, they think these Arizona policies in particular do not violate that standard. I think that it's important that regardless of how they come down on the Arizona policy, this letter makes clear that they aren't going in a new direction in how they think Section Two should work. I think it's also important to keep in mind that the district court and the Ninth Circuit panel and the Ninth Circuit Court of Appeals here, the Ninth Circuit sitting en banc, disagreed as to how Section Two, as it is currently understand to function, applied to the facts in this case. The fact is that this is a fact intensive appraisal. It's a totality of the circumstances appraisal. Courts are meant to look at all of the circumstances and decide whether or not the policies in question violate the results test. That is a complicated inquiry and you could come down different ways on any particular policy in a particular local situation. That doesn't mean that the fact that you might disagree with the way the Ninth Circuit came down, ultimately in how they applied this test, doesn't mean we should throw out the test. Doesn't mean we should go a new way in the way that we apply Section Two.  To respond to the test that Chris is proposing here, I would say to me of course it is important that a state decided to restrict access to voting and we should be looking at a state's decision to restrict access to voting to determine whether or not that decision was discriminatory. Not just to look at after the state restricted access to voting. Are we comfortable with this system in the abstract? If a state restricted access to voting with a discriminatory purpose as the Fourth Circuit found that North Carolina did, but the Fourth Circuit found that North Carolina acted with targeted Black voters with surgical precision. If they did that, we wouldn't just ask is the end result okay? We would ask, as the court did, was North Carolina targeting Black voters when it did this thing. And of course, all of us would say, it's not okay for North Carolina to restrict voting in a way that targets Black voters that obviously violates Section Two and it obviously violates the 15th Amendment. The same is true if we can't definitively prove that that was North Carolina's purpose. That's the whole point of the 1982 amendments to Section Two. If North Carolina is restricting access to voting, because of the way race works, because of the impact that it has on our society, as Chris pointed out, it's ubiquitous. The legislature in a state, policy makers in the state, elections officials in the state, can produce discriminatory results without doing anything that reveals that they were doing so for that purpose in some obvious way. It is easy to take advantage of, to exploit the reality of, the way race works in our society in order to make it harder for certain groups of people to vote without saying that you're doing it in order to make it harder for certain groups to vote. Just as we would not be okay with it if you said it out loud, we're not okay with it if you pull it off without saying it out loud. So absolutely, I think it's important to take into account that a state is deciding to restrict access to voting differently than it did in the past. That it is actually changing its system to make it harder to vote is something that we need to take into account. I also think that, if you can show that that restriction makes it harder for people of color to vote or for Native American voters to vote, then the fact that there may be some other part of the electoral system that provides a different opportunity for someone to participate doesn't change the fact that you've limited this opportunity to participate. We call these claims vote denial claims, but that's not actually a complete description of what Section Two is all about. Section Two talks about the denial or abridgment of the right to vote. It doesn't require completely cutting off all opportunities for somebody to cast a ballot for there to be a violation. That was also very clear when Congress passed the 1982 amendments. That Congress didn't want to limit this to situations where there was some absolute prohibition to voting for folks. They were looking at the practical realities. It's not about whether there's some theoretical opportunity for people to participate in an equal way. It's about the practical reality of how a policy functions on the ground and whether or not it cuts off opportunities in a discriminatory way.  I think if we would go the route that Chris is proposing, we would very clearly be going against what was intended by Congress in 1982. I would encourage folks to go look at the brief. One of the amicus briefs filed here was a brief by Senate staffers from both sides of the aisle in 1982, who were intimately involved in the passage of the 1982 amendments and that's what they say. They say that the approach that's being proposed by a number of the petitioners in their amici here is a pretty obvious departure from what it was that Congress intended back in 1982. So you sort of have it from the source there and it's not a partisan source. This wasn't a bill that was passed only by one party ever. Every time it was enacted and reenacted, the 1982 amendments, it was always bipartisan. There was always pretty amazing agreement across the political spectrum that this is what we needed in order to ensure that we didn't see discrimination in our elections. I think right now would be a terrible time given everything that we are seeing happening in the world, given the wave of restrictive voting laws that we're seeing being introduced across the country, it would be a terrible time to limit once again, as the Supreme Court already did just a few years back, to limit once again the tools that we have to challenge discriminatory policies.

Jeffrey Rosen: [00:28:15] Chris, in your brief, you say that the current split of authority covers two discreet questions about Section Two. First, what is a discriminatory result? And second, to what extent must this result be connected to discrete state action? That involves the thorny question of causation which Sean just mentioned. To what extent does section two hold States responsible for socioeconomic conditions? Tell our listeners why you think that a causation requirement should be tighter than the one that Sean is suggesting and why you believe that the broader totality of the circumstances test that he is proposing runs the risk of running a foul of the Constitution itself by requiring the government to be race conscious in a way that might make Section Two itself an unconstitutional violation of the equal protection of the laws.

Chris Kieser: [00:29:08] Sure. So I'll start with the causation question and in other contexts the Supreme Court has addressed this precise question. For instance, in the in the school busing cases, Milliken versus Bradley, where the court held that a school district could not be held responsible for racial discrimination of a neighboring school district.  Then in Parents Involved in Community Schools versus Seattle School District the court said that the school districts can not be held responsible for societal discrimination. So in the same vein, a state, and now I agree that there could be some connection between a state discriminatory policy and socioeconomic conditions. However the further along we go removed from those discriminatory laws that were in place, for example Jim Crow, the harder it becomes to pin on a state the results of socio-economic results. As Judge Easterbrook explained in his Seventh Circuit opinion in Frank vs Walker, we can't attribute to States every aspect of private discrimination or we run the risk of essentially requiring that Section Two is essentially going to strike down every state's voting apparatus.  I don't expect that that will happen. Certainly in the majority of States currently restrict out of precinct voting and that hasn't been struck down as far as I know, outside of North Carolina. But if you adopt the totality of the circumstances test that the DNC and their amici have put forth, it lends itself to eventually that being a possibility. For example, I want to go back to the North Carolina case where you really see the clear example of a one way ratchet that could possibly happen. First of all, there were two North Carolina Fourth Circuit cases and I'm absolutely not referring to the 2016 case that found discriminatory intent. I don't take any position on that. As for the 2014 case that applied the results test, that's the one I was referring to. And in that case, the court analyzed North Carolina's prohibition on same day registration, for example, and out of precinct voting. Both policies had been enacted for  less than 10 years and before that the state had the same policy that was being challenged. It seems very strange that those policies under the totality of the circumstances test that the other side is proposing here, that the DNC is proposing, that those policies become a violation of Section Two only because the state had previously decided to liberalize its voting laws. Unfortunately these things are often partisan tug of war. State legislature certainly act in a partisan manner in hoping that whatever voting regulations they pass are going to help their party win and there's no question about that. I don't endorse that. But unfortunately, when you are looking at this, it's hard to distinguish between well a policy like no same day registration being a violation of Section Two in 2014 because it was just repealed versus before North Carolina ever had same day registration were they in violation of Section Two. I think that's the conundrum you see when you have a benchmark of the prior system and is this more restrictive than the prior system to prove disparate impact? That's why I endorsed the totality of the circumstances test that looks to the state's entire voting apparatus and determines whether, all things considered, everyone has an equal chance to participate in the political process. I do want to move on to the constitutional question that you mentioned. I think you can see this most clearly in Section Two redistricting cases which are the most common form of Section Two case, especially before the last decade where the court has essentially constructed a system that is an exception to the general requirement that the Equal Protection Clause provides a personal right against racial discrimination as opposed to a collective right to enforce group representation. In cases like Shaw versus Reno, the court has said that  the Equal Protection Clause permits consideration of race as long as race is not the predominant consideration  for redistricting. Some courts have, and I believe the Supreme Court has said this too, gone as far as to say that considering race for the purposes of complying with Section Two is a compelling state interest such that Section Two might be read to require the consideration of race in districting. I think the same thing is popping up now in these vote denial claims and you see it in the legislatures that have become consumed with racial debate over voting changes. For example, I think one concrete thing that happens is that now state legislatures have to look at racial data before they will enact a voting change that its opponents say will have a disparate impact. And then the very idea that they looked at racial data could be used against them and in its encase because they had to consider the disparate impact that might that might occur if they went ahead and pass the ball. I don't want to get into the intent test here because I don't take a position on that in my brief. But the fact is that the way Section Two has been interpreted in the majority of the circuits in the recent years, it encourages and in some cases requires race-based decision-making and we should want Section Two to protect equality of opportunity for all voters to vote regardless of race. Section Two and voting rights and the Equal Protection Clause protects a personal rights to vote, a personal right to participate without discrimination on the basis of race.  Too often, I think these interpretations of Section Two that require a less causation and therefore essentially warp into a disparate impact test, that  they discard that individual right in service of a collective right to vote. And I I don't think that that is consistent with the text of Section Two or with the Equal Protection Clause.

Jeffrey Rosen: [00:36:05] Sean, the constitutional question is stark and I want to ask you, if you think this Supreme Court is likely to confront it? Tell us about the stakes here. Do you think in this Arizona case, the current Roberts court will confront whether Section Two, to the degree that requires race-based decision-making, is constitutional? And do you think that a majority might possibly say that it doesn't and strike down a race conscious use of Section Two?

Sean Morales-Doyle: [00:36:29] So, I think there's sort of two different, related constitutional questions that are coming out here. One of them is the extent to which Section Two, or other tests like it, end up bringing race into the conversation where it wasn't there before or something like that. Making legislatures consider race, take race into account, engage in race-based decision-making. But the other is a different, but related issue that Chris raised earlier, which is whether or not this is a legitimate enforcement mechanism, as I talked about before for the reconstruction era amendments to the Constitution. And Chris referenced to the case called City of Burney which was a case about whether or not  a disparate impact law, comported with the 14th amendment, was a proper mechanism for enforcing the 14th amendment equal protection clause. And I want to talk about both of them and they are related questions. But first, just for purposes of understanding our standard here, I would say, first of all, that the City of Burney test which asks whether or not a statute is proportional and congruent with the 14th Amendment's mandate of equal protection and is a remedy that matches up with what the 14th Amendment barred has never been applied in the context of the 15th Amendment. It is not a test that the court has ever As ever used in the context of the 15th amendment. And in fact, in the cases where the Voting Rights Act has been challenged in Shelby County in Katzenbach where the court was evaluating a different part of the Voting Rights Act, Section Five of the Voting Rights Act, the court did not apply that proportional and congruent test. In City of Burney, the court asked whether this was a rational means of enforcing and providing a remedy for violations of the 15th Amendment and that should be the standard here. Again, Congress has broad authority. The 15th Amendment says that they have the power to use whatever means are appropriate to enforce the 15th Amendment. That was intended to give them broad authority to do what Congress determined in its wisdom was necessary to ensure that there was not race discrimination in voting. So for that first reason, I hope that the Supreme Court doesn't get into that constitutional question because they don't need to. Congress has determined for decades repeatedly that this is what is necessary in order to, and is appropriate, in order to ensure there's not race discrimination in voting. That frankly has been relatively uncontroversial for decades. That when the courts deciding Shelby County, and taking issue with what is a far more significant limitation on state power and differentiates between States and requires them to basically get clearance for their policies before they can pass them from the federal government, the court essentially assumes that Section Two is going to continue to function as it has in that decision. So I don't think the court needs to come anywhere close to that constitutional question, but to shift slightly that's because this is an effective and appropriate way of remedying race discrimination in voting. But to this question of whether or not the test in Section Two sort of requires legislatures to engage in race-based decision-making, I think that that argument is not giving enough. It's sort of ignoring the reality of, as Chris has said, how ubiquitous the impact of racism on our society.  The fact is that these legislatures operate in the real world and they know how the real world functions just as the rest of us do. They can pass facially, neutral policies that look like they have nothing to do with race, but given the way that race functions in our society obviously are going to interact with race, to produce the results that they're going to produce. This is an example of sort of outside the Voting Rights Act context, but we litigated a case in Florida for the last year plus over Florida's decision to make people pay to vote if they had a felony conviction in their background, right? If you had a felony conviction, in order to have your voting rights restored you'd have to pay off all of the fines and fees that you owed before you'd get your rights restored to you. When the Florida legislature decided to pass that law they didn't need anybody to give them  race data for everybody to know that there was going to be an impact, a racial impact of requiring people with felony convictions to pay money to get the right to vote back. They did have that data and people said it during the debates, but anybody who lives in our society in the year 2019, anyone who knows how our criminal justice system functions, how the economic realities of this country are, what it looks like to be a Black person with a felony conviction in your past that owes tens of thousands of dollars in debt to the state in Florida, knows that there is going to be a racial component to passing this facially race neutral policy. So to pretend like that's not happening and to suggest that providing a remedy for race discrimination in policymaking is the thing that is going to make legislatures have to start taking race into account, I think is that it's just that it's pretending. The reality is that race is there. It has a real impact. We can't pretend that we're colorblind when we're not. And this social construct is operating to have serious impacts throughout our society. And to say that race only gets injected into the conversation when we start trying to figure out a way to remedy race discrimination, to me is just not true. It's imagining a reality in which we do not live. We're nowhere near that colorblind society and so what we need are ways to prevent race from becoming a weapon for people to use to make it harder for folks to vote. That's what Section Two has provided for so long. To restrict it because we're worried that race is going to become part of the conversation, to me is ignoring the way things are working right now. I don't think it's hard for people to see in 2021, after everything we just witnessed, the role that race is playing in all parts of our society, but absolutely in elections and the way that people approach the regulation of our elections. And I'll just also want to briefly address a couple of points that came up. One of which is this idea that the, I will say I understand and agree with Chris that there are two different North Carolina cases in the Fourth Circuit and I didn't mean to confuse them. But my point stands that the case that found that North Carolina acted with racial intent that they were intentionally discriminating, was about rolling back policies that had been on the books that they were restricting access that had previously existed in order to target Black voters. And just as it should violate Section Two when you can prove they were doing that intentionally, it also violates Section Two when they're doing that and producing discriminatory results, taking the totality of the circumstances into account. So yes, there are two different cases, but the way that it works in the intentional discrimination context, I think explains why it also needs to work that way in the results test conversation. I also want to quickly say. It is not easy to bring a Section Two claim and win. It's just not. And no one could claim that it is by looking at the landscape of Section Two cases that have been brought and won. It is an incredibly difficult thing to do. And there are, as Chris says, out of precinct policies across the country, but only two of them have been challenged successfully under Section Two. And one of them is the one that's at issue here. And that is because it isn't just any out of precinct policy is racially discriminatory. An out of precinct policy violates Section Two if, when you take into account the totality of the circumstances and conduct an intensely local appraisal for how it functions in a particular place at a particular time, it produces discriminatory results. And that is why there's an amicus brief from 70 elections officials from 38 different States in Washington, DC from both parties saying in this case, we're not worried about a strong Section Two making it hard for us to do our job. We're not worried about it wiping out all legitimate election administration and election regulation. In fact, we think a strong Section Two is important for us to continue to do our job of running elections because it helps enforce what we're trying to do which is to provide everybody an equal opportunity to cast a ballot. So the current status quo is not that we can just challenge any policy you want under Section Two and all of our elections mechanisms are under threat. That's not the way it functions now. It's not the way it's functioned since 1982. And to suggest that we need to change course now and go a very different direction because of the threat of this powerful Section Two, I think is sort of a revisionist history view of what's been going on since 1982.

Jeffrey Rosen: [00:46:09] Well, it is time for closing arguments in this extremely illuminating discussion of a complicated and important topic. And Chris, the first one is to you. In just a few sentences please tell We the People listeners why the Brnovich case is important  and why listeners should care about it.

Chris Kieser: [00:46:28] Well, I think the case is important because I think it's the first time the Supreme Court is going to really deal with the vote denial standard and what tests should apply. And we have a clear circuit split. And the court is going to have to decide unless it adopts some sort of, like the Biden administration's position, that which test is proper and that's going to affect the future of voting regulations. So whichever side you're on, the result here is likely going to affect how States conduct their voting regulation. From here on out and I think the stakes are particularly high because this is an issue that's been in the last you know, in the last decade has been ubiquitous, every election sees Section Two claims and they're increasingly high profile. And I think the court needs to resolve it at this point.  Going forward, I hope that the court will adopt the test that we propose that will protect equality of opportunity to vote without requiring that almost every law that that might have a disparate impact on a particular racial group violate Section Two.

Jeffrey Rosen: [00:47:36] Sean, the last word is to you. Why is the Brnovich case important? And why should We the People listeners care about it?

Sean Morales-Doyle: [00:47:42] The Brnovich case is important because there is no doubt, in 2021, that our democracy faces serious challenges. There is no doubt in 2021 that we are still a society that is struggling with race and race discrimination, and we need effective tools like the Voting Rights Act to deal with those problems that we face. The Supreme court, unfortunately dealt a major blow to the tools that we have to remedy those problems in 2013 in the Shelby County case. And now unfortunately the petitioners and their amici in this case seem to see this as an opportunity to do further harm to the Voting Rights Act. And so it is important because it is an opportunity for the Supreme Court to reaffirm the principles that underlie our democracy of equality and equal opportunity to participate and  that the Supreme Court reaffirm the important role that the Voting Rights Act plays in ensuring that we stick to those principles. The Supreme Court has the opportunity to do that in this case and we hope that it does. We hope that it does not take up any of the suggestions that it should somehow narrow or limit the application of Section Two, because even small limitations on the way that it has functioned for decades could cause real harm.

Jeffrey Rosen: [00:49:07] Thank you so much, Chris Kaiser and Sean Morales-Doyle for an illuminating, deep and important discussion of the future of voting rights at the Supreme Court. Chris, Sean, thank you so much for joining.

Sean Morales-Doyle: [00:49:22] Thanks for having me.

Chris Kieser: [00:49:23] Thanks for having me.

Jeffrey Rosen: [00:49:28] This show is produced by Jackie McDermott and engineered by Greg Scheckler. Research was provided by Mac Taylor, Jackie McDermott, and Lana Ulrich. Please rate, review, and subscribe to We the People on Apple podcasts and recommend the show to friends, colleagues, or anyone anywhere who's hungry for a weekly dose of constitutional debate. It's been inspiring to see how many of you have been listening in recently and we're looking forward to lots of learning together and always remember that the National Constitution Center is a private nonprofit. We rely on the generosity, passion, and engagement of people from around the country who are inspired by our non-partisan mission of constitutional education and debate. If you've just started listening, it would be so great if you would signal your support for our mission by becoming a [email protected]/membership. Or give a donation of any amount, including a dollar or $5 has an expression of enthusiasm and support for our work, including this [email protected]/donate. On behalf of the National Constitution Center, I'm  Jeffrey Rosen.

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