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Trump Justices Cast Deciding Votes to Further Devastate Voting Rights: Confirmed Judges, Confirmed Fears

Six people hold up blue signs that read 'protect my vote' at a rally in front of the supreme court
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Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.


Trump justices Brett Kavanaugh, Neil Gorsuch, and Amy Coney Barrett cast deciding votes in a 6-3 decision to reverse a lower court and approve state practices that had the effect of discriminating against minority voters. The ruling also devastates Section 2 of the Voting Rights Act, an important tool to help fight discrimination in voting. The July 2021 decision was in Brnovich v Democratic National Committee.

In 2016, a challenge was filed to two Arizona voting rules on the ground that they “adversely and disparately affect Arizona’s American Indian, Hispanic, and African American citizens” and thus violated Section 2 of the Voting Rights Act. These mandates included throwing out completely a person’s ballot if it was mistakenly cast in the wrong precinct, even with respect to state-wide and national offices where the precinct location makes no difference, and a law making it a crime for anyone other than a person’s caregiver, family member, postal worker, or election official to collect and turn in completed absentee ballots. The lawsuit also contended that the ballot collection restriction was illegal because it was “enacted with discriminatory intent.”

A district court and a three-judge appellate panel rejected these claims, but a decision by the full Ninth Circuit reversed and found against the state. Based on clear statistics, the court found that both requirements “imposed disparate burdens on minority voters” since they were “more likely to be adversely affected” than white voters. Based on Supreme Court precedent, the court also found that these burdens were “in part caused by or linked to social and historical conditions that produce inequality,” and violated Section 2 of the Voting Rights Act. The Ninth Circuit also concluded that the lower court had committed “clear error” in determining that the ballot collection restriction was not enacted with discriminatory intent.  The Supreme Court decided to review the case.

In a 6-3 ruling in which Trump justices Barrett, Gorsuch, and Kavanaugh cast the deciding votes, the Supreme Court reversed the Ninth Circuit and upheld both Arizona rules. Although Justice Alito’s decision stated that it was not announcing rules that would govern all Section 2 cases challenging restrictions on the “time, place or manner of casting ballots,” it did set forth what Alito called “guideposts” which, in fact, seriously harm Section 2.

Before considering the Arizona restrictions specifically, Alito discussed a number of “circumstances” that should be considered in deciding whether a practice violates Section 2. These included the “size of the burden imposed,” the extent to which a practice “departs from what was standard practice” when Section 2 was “amended in 1982,” the “size of any disparities” in impact on minority vs white voters, other “opportunities provided” to voters by a state’s “entire system of voting,” and the “strength of the state interests,” including what Alito called the “strong” interest in “prevention of fraud.” According to Alito, it is “less helpful” to consider other factors that lower courts have taken into account, such as past discrimination and its continuing effects and the “disparate impact” analysis used in fair housing and employment cases, which would require that a state demonstrate that its asserted interests can be accomplished “only” through the voting restrictions in question. Alito maintained that it should be enough for a state to show that challenged practices are “reasonable means” of pursuing “legitimate interests.”

Based on these criteria, Alito had no trouble in concluding that the Arizona restrictions did not violate Section 2. Requiring voters to vote in the correct precinct in order for votes to count, he claimed, was a “modest” and “unremarkable” burden, and the state’s other actions to try to help people find the right precinct “reduce their impact.” The “racial disparity” in effect was “small,” he went on, and the state interests were “important,” including encouraging people to vote in the right precinct and avoiding the “complic[ation of] the process” that would result from counting votes for statewide and national elections cast in the wrong precinct.

Alito similarly upheld the third-party ballot collection restriction, on both effect and intent grounds. Complying with one of the permitted means to turn in an absentee ballot, Alito claimed, was nothing more than one of the “usual burdens” of voting. Testimony that Native Americans rely more heavily on third-part collection and are “disproportionately disadvantaged” by the restriction, Alito went on, was not enough “concrete evidence.” And in any event, he claimed, the state’s interest in “deter[ring] potential fraud” was enough to “avoid” liability under Section 2. As to discriminatory intent, Alito concluded that “we are more than satisfied” that the district court’s “interpretation of the evidence” to find no intent was “permissible.”

On behalf of herself and Justices Stephen Breyer and Sonia Sotomayor, Justice Elena Kagan strongly dissented. She explained that the majority had “rewritten” and “damaged” Section 2, and thus “undermines” the law “and the right it provides” to equal voting without discrimination. Alito’s analysis of the proper factors in a Section 2 claim, she went on, “mostly inhabits a law-free zone.” Most of the “circumstances” Alito talks about, she complained, are “extra-textual restrictions” on the law that “stacks the deck against minority citizens’ voting rights.”

For example, Kagan wrote, the notion that because something is one of the “usual burdens” of voting it is an “exception” to Section 2 ignores the fact that this is “nowhere in the provision’s text,” which instead makes clear that any such burden is illegal if it disproportionately harms minorities.  The same is true of whether “other opportunities” exist. What was standard practice in 1982, she went on, is “no part of the Section 2 test,” which makes clear that if a practice at the time makes voting harder for minority citizens, then “section 2 covers” it. The majority’s discussion of state interests, Kagan noted, contradicts the Court’s own previous precedent that an election law or practice with discriminatory effects “must fall” if a less discriminatory alternative would not “significantly impair” those interests. Allowing a state to justify a discriminatory practice if it “reasonably pursues” an important interest, Kagan noted, “gives election officials too easy an escape from Section 2.”

Based on the correct analysis, Kagan explained, both Arizona restrictions violate Section 2. The record shows that the precinct limitation, she wrote, results in minority voters’ ballots being “thrown out at a statistically higher rate” than whites, and Arizona is a “national aberration” in throwing out more ballots completely because they were cast at the wrong precinct. More than 20 states partly count such out-of-precinct ballots, Kagan went on, and even the district court found that it would be “administratively feasible” for Arizona to do the same.

The majority’s conclusion about the ballot collection law, Kagan wrote, was possible “only by ignoring the local conditions” which the record shows create a disproportionate burden on Native Americans. Because these voters live in rural areas and “lack access to mail service” to a very large extent, Kagan continued, they are particularly dependent on “third parties” to turn in absentee ballots. In addition, she pointed out, the state already has laws that “deter fraudulent collection practices.” Based on the record, Kagan concluded, the majority opinion “flouts what Section 2 commands” – the “eradication” of the ballot collection restriction because it clearly results in “unequal opportunities” for minority (in this case Native American) voters. Because Kagan concluded that the collection law violated Section 2 and the results test, she did not review the majority’s conclusion on intent.

As a result of the deciding votes of Trump justices Barrett, Gorsuch, and Kavanaugh, however, the Arizona practices that disproportionately harm minorities have now been upheld. Perhaps even more important, as Justice Kagan wrote, the majority opinion “cuts Section 2 down to its own preferred size” and proceeds to “sap the Act’s strength,” just as it did almost a decade ago with respect to the Act’s preclearance provisions in Section 5. It is now more crucial than ever that Congress pass the For the People Act and the John Lewis Voting Rights Act to restore the protections of the landmark Voting Rights Act. And for the sake of our fight for our courts, it is similarly critical for the Senate to promptly confirm Biden judicial nominees to all levels of the federal courts who will truly respect the right to vote and Congress’ laws to help protect it.