Travis Crum: “Rethinking the Race or Party Question in Brnovich”

Here is a guest post from Travis Crum of Wash U:

The Supreme Court will soon hear oral argument in Brnovich v. DNC, a major voting rights case. As relevant here, the case concerns an Arizona ballot-collection law that the Ninth Circuit concluded was enacted with discriminatory intent in violation of the Fifteenth Amendment’s prohibition against racial discrimination in voting. I filed an amicus brief in support of respondents addressing the Fifteenth Amendment’s drafting and ratification as well as Congress’s enforcement authority under that Amendment. But in this post, I want to expound on a different point: Brnovich provides the Supreme Court with its first opportunity after the 2020 presidential election to address allegations of voter fraud—and to correct its past willingness to uphold voter-suppression laws based on unfounded allegations.

For decades, Arizona permitted individuals to collect early ballots and deliver them to a polling place. Historically, minority voters were far more likely than white voters to rely on ballot collectors due to unreliable mail service and lack of transportation options. And in recent years, a “substantial increase in American Indian and Hispanic voting [was] attributable to ballot collection.”

Then, in 2016, Arizona passed H.B. 2023, which criminalizes the collection of another person’s early ballot, with exceptions for postal workers, caregivers, and family and household members. Arizona enacted H.B. 2023 notwithstanding the dearth of “evidence of any fraud in the long history of third-party ballot collection in Arizona.” As the Ninth Circuit explained, the state legislators who supported H.B. 2023 relied on two pieces of “evidence.”

The first was “farfetched allegations of ballot collection fraud” made by a former state senator who had introduced a predecessor bill that was “motivated by a desire to eliminate the increasingly effective efforts to ensure that Hispanic votes in his district were collected, delivered, and counted.” The second was a “racially tinged video” produced by the Maricopa County Republican Party Chair showing “a man of apparent Hispanic heritage appearing to deliver early ballots.” The video included commentary stating that “the man was … stuff[ing] the ballot box” and that, although it was unknown whether the man “was an illegal alien, a dreamer, or citizen,” he was a “thug.” The video was “widely distributed … on Facebook and YouTube.” There was zero evidence that the man delivering the ballots was engaged in illegal activity.

The rationales underlying H.B. 2023 strongly resemble the unfounded voter fraud allegations surrounding the 2020 election. Indeed, they read like a bad prequel to the past few months.

A key issue in Brnovich is whether racial or partisan considerations motivated H.B. 2023’s passage and provided the underlying rationales for the Arizona legislature’s anti-fraud concerns. As Rick Hasen has shown, the question whether race or party motivated a governmental decision comes up frequently in election law cases given high rates of racially polarized voting. The paradigmatic example arises in the redistricting context, where courts must determine whether a district was drawn along racial or partisan lines. The Supreme Court has required that race predominate in the redistricting context before rigorously reviewing a map. That high threshold has been justified on the pragmatic grounds that mere awareness of race in the redistricting process would risk invalidating virtually every redistricting plan. After all, even casual visitors to, say, Chicago will notice that its south side is predominately black whereas its north side is overwhelmingly white—and redistricting plans are frequently drawn by politicians with intimate knowledge of local demographics.

That framework is inappropriate in a case like Brnovich that involves the fundamental right to cast a ballot. Indeed, in its first-ever decision addressing voter ID laws, the Supreme Court left the door open to this argument. Although the Court concluded that states could pass prophylactic measures even absent evidence of voter fraud, a plurality of Justices observed that a voter ID law would be unconstitutional if “partisan considerations … had provided the only justification.”

In Brnovich, the Court should breathe new life into this language and make clear that it will invalidate pre-textual anti-fraud measures enacted for either racist or partisan reasons. When disentangling a legislature’s reasons for restricting access to the ballot, neither race nor party are proper motivations. We live in an age where claims of voter fraud are often stalking horses for racist or partisan motives—and the Court’s deferential approach has allowed these claims to fester.

This begs the question: does the Roberts Court care about unsubstantiated allegations of voter fraud? While the Court intervened in several pre-election disputes last fall, it assiduously avoided them after the election. Indeed, the Court recently denied cert in the Pennsylvania election cases over the dissents of three Justices. A majority of Justices clearly viewed the cases as radioactive and sought to distance the Court from the election’s partisan fallout. Thus, there is at least some appetite on the Court to avoid disputes about election fraud, and if those Justices are looking for a way to tamp down on such baseless claims, then Brnovich provides that opportunity.

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