WASHINGTON, D.C. – Attorney General Karl A. Racine yesterday led a coalition of 18 Attorneys General urging the Supreme Court to uphold a robust test for applying Section 2 of the Voting Rights Act (VRA), which prohibits policies and practices that interfere with citizens’ right to vote based on their race. The coalition filed the amicus brief in Brnovich v. Democratic National Committee and Arizona Republican Party v. Democratic National Committee, two consolidated cases concerning Arizona laws that challengers allege make it harder to vote. The coalition argues that the courts apply a sufficient inquiry into whether state laws actually discriminate against voters of color and that the Supreme Court should maintain this standard instead of narrowing it or striking down critical voting rights legislation. 

“The right to vote is sacred, and Congress passed the Voting Rights Act specifically to protect that right against a long history of racial discrimination that continues today,” said AG Racine. “The Supreme Court should preserve the robust inquiry that courts have developed to identify laws that prevent voters of color from having a full voice in the political process. Striking down or narrowing these protections will make it harder for all voters to participate in our democracy.”

Section 2 of the Voting Rights Act prohibits any “qualification or prerequisite to voting” or “standard, practice, or procedure” 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.” Since 1982, this has contained a discriminatory-results provision, which prohibits election laws or structures that create unequal opportunities for participation in the political process.

Arizona has two laws that have been challenged because of discriminatory results: an “out-of-precinct policy,” under which provisional ballots cast in person are not counted if the voter cast the ballot outside their designated precinct, even inadvertently; and a “ballot-collection” statute that prohibits so-called ballot harvesting and only allows certain individuals, such as family members, to collect and submit another person’s completed early ballot. The Ninth Circuit concluded that both laws produced a disparate impact on voters of color, creating unequal opportunities for political participation, and thus both violated the VRA. The Arizona Attorney General and the Arizona Republican Party are challenging the Ninth Circuit’s ruling in the Supreme Court, joined by Republican state Attorneys General. They argue that the current test—which first weighs whether an ostensibly neutral law creates a disproportionate racial impact before examining whether that impact exacerbates longstanding patterns of inequality to hinder people of color from voting—would strike down all laws that impose even small differential effects on voters of different races.

The 18-Attorney General coalition supporting the ruling filed an amicus brief defending the existing test for assessing violations to the VRA. Specifically, the states urge the Supreme Court to uphold the Ninth Circuit’s decision because:

• Even election laws that seem neutral, like Arizona’s, can violate Section 2 of the VRA: Previous cases have demonstrated that seemingly “neutral, generally applicable election laws” can result in denial or abridgment of the vote to people of color. The Supreme Court has interpreted the text of the Voting Rights Act to provide the broadest possible scope, extending to facially neutral and generally applicable laws. 
   
• The existing test only threatens election laws if they actually deny or abridge the right to vote based on race or color: The Ninth Circuit’s test—which is similar to ones used by other courts—does not solely focus on the question of whether a law creates a disparate impact based on race. The Court engages in a more searching inquiry into whether electoral systems actually function to exclude voters of color. The plaintiff must demonstrate the disparate burden actually denies voters of color equal opportunities to participate in the electoral process. This rigorous analysis provides a workable framework that gives States flexibility while preventing discrimination. 
   
• The test is constitutional because it prevents and deters lawmakers from enacting discriminatory laws: Intentional discrimination is very difficult to prove. The test for whether a policy would create a discriminatory result is important because it helps to weed out intentional discrimination and prevents future unconstitutional conduct by targeting the racially polarized conditions most likely to incentivize intentional discrimination in the regulation of elections.

A copy of the amicus brief is available at: https://oag.dc.gov/sites/default/files/2021-01/Amicus-Voting-Rights.pdf

AG Racine led the amicus brief and was joined by Attorneys General from California, Colorado, Connecticut, Hawaii, Illinois, Maine, Maryland, Massachusetts, Nevada, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Virginia, and Washington.

Protecting the Vote
Since middle of 2020, AG Racine worked to defend the voices of American voters. He led multistate coalitions opposing unfair voting restrictions against returning citizens in Florida, North Carolina, and Minnesota. In the leadup the election, AG Racine spearheaded coalitions to protect voting access in Alabama, Mississippi, South Carolina and two Texas cases, and defending deadline extensions for mail-in ballots in Minnesota and North Carolina. He also led a coalition of 23 Attorneys General opposing Texas Attorney General Ken Paxton’s baseless effort to invalidate the results of the 2020 election, and secured a preliminary injunction stopping U.S. Postal Service cuts that threatened the right to vote for millions of Americans planning to vote by mail during the pandemic.