A competitive disadvantage: breaking down Brnovich v. DNC
2020 was a significant chapter in the centuries long story of voting rights in America. It was a contentious year of challenges across the country, but democracy won the day, with important victories in helping secure the right to vote to more people and in more places. Most significantly though, Donald Trump’s big lie that the election was rigged did not prevail. Though seemingly damaged by false and hateful rhetoric, the integrity of the vote was maintained. 2021 is already promising to be an even more important year when it comes to voting rights.
On Tuesday March 2nd the Supreme Court began hearing oral arguments in Brnovich vs. Democratic National Committee, a could-be landmark case with massive implications for Section 2 of the Voting Rights Act of 1965.
The case involves two issues of Arizona election law: the collection of mail-in ballots for drop off by someone other than a caretaker or family member, and the rejection of mail-in ballots by state election officials based on the location of the ballot drop box in relation to the voters home precinct.
For context, Arizona has been a remarkable success story in elections law since adopting vote-by-mail in the early 1990s and then creating the Permanent Early Voting List in 2009, which allows registered voters to vote early and absentee for the rest of their lives in the state. According to data published by the Elections Assistance Commission, 77.8% of all ballots in the 2018 midterm elections were cast by mail or absentee; the highest percentage for a state outside of the five universal vote-by-mail states: Colorado, Hawaii, Oregon, Utah, and Washington.
This begs the question: in a state with such a strong record of vote-by-mail, why are state Republicans trying to make it harder to vote? The changes in laws I’m about to describe are a blatant attempt to reverse some of the democratic gains in Arizona since the 1990s.
First, the issue of ballot collecting. In 2016, Republicans in the Arizona state legislature, despite no evidence of voter fraud, passed House Bill 2023, prohibiting anyone but a family member or a caretaker from collecting and returning a mail-in ballot for someone else. Arizona Republicans introduced the bill to prevent “mass ballot harvesting”, which they claimed leads to voter fraud. The DNC challenged the law, which was championed by Republican Attorney General of Arizona Mark Brnovich, because of its discriminatory intent in limiting access to the ballot.
Second, the issue of ballot rejection. Arizona rejects ballots dropped off outside of that voter’s precinct. Arizona rejected more than 38,000 absentee ballots for this reason between 2008 and 2016 and minority voters were found to be two times more likely to have their ballots rejected than white voters. The Democratic National Committee argues that minority voters, whose use of mail-in ballots and absentee drop-offs is critical in their accessing the right to vote, are discriminated against by Arizona Republicans hoping to nullify their votes after the fact. BIPOC voters, but especially the state’s Native population, which played a huge role in securing Arizona for Joe Biden in 2020, are harmed by this legislation because of a lack of reliable mail service and need the ability to cast their votes from outside their precinct.
In 2018 a court ruled that the changes in Arizona election law were not discriminatory, a ruling that was later upheld by a three-judge panel of the US court of appeals 9th district. But in 2020, the full circuit court found that the Arizona laws did in fact violate the Voting Rights Act, and that decision was appealed to the Supreme Court, which is where we find ourselves today. Tuesday the 2nd was just the start of oral arguments, with a decision expected sometime in June.
Those are the facts of the case and the unfolding situation. But what about our commentary?
It’s no longer a dog whistle. It’s a bullhorn.
Simply put, these laws are just a few of the decades long strategy of discriminatory voting practices to come out of state legislatures. The Republican Party, especially at the state and local level, actively makes it hard for BIPOC communities to vote because it solidifies and grows their power over time.
But don’t take our word for it. They even said so themselves during oral arguments on Tuesday.
When asked by the recently, and undemocratically, appointed Associate Justice Amy Coney Barrett why the GOP has a legitimate interest in upholding laws with discriminatory intent, Republican lawyer Michael Carvin replied that the GOP has “a competitive disadvantage” to Democrats in elections and that “politics is a zero sum game.”
So trust us, it’s really not hyperbole when we say that Republicans don’t want people of color to vote: they’re openly admitting it’s in their political and economic interest. These quotes are not taken out of context, but straight from the record of the United States Supreme Court.
And rather than asking “is it true that the GOP doesn’t want people of color to vote,” we believe the more important question to be asking is “what does it say about the state of our politics and country that one party’s electoral strategy depends on anti-democratic tactics?”
The implications of this week’s case are particularly scary when you take them in context, as a wave of racist voting access bills make their way to state chambers this spring. A whopping 253 bills restricting voter access are under consideration across 43 states, according to The Brennan Center. The most prominent example of Republican controlled states looking to restrict voting access in 2021 is Georgia, where Black organizing over the last decade ensured record turnout in the Black community and sent Rev. Raphael Warnock and Jon Ossoff to the U.S. Senate in January.
In a sign of extreme backlash against Black organizations and voters, and what we’d describe very plainly as some messed up legislation, the bill would among other things, “give voters less time to request and return mail-in ballots, require election officials to reject ballots mistakenly cast in the wrong precinct, and ban organizations from offering food or water to voters standing in line to cast a ballot.” Perhaps the most overtly anti-Black provision however, is the proposed limit of early voting on Sunday mornings, directly impacting Black churches and the popular “souls to the polls” practice.
That’s why this week’s decision by the Supreme Court is so significant. Will the Supreme Court and it’s now heinously secured 6–3 conservative majority open the floodgates for racist laws in state legislatures that undermine the key protections outlined in Section 2 of Voting Rights Act?
We’ll have to see.
Unfortunately, we need not look far in the history books to find a relevant example, as Section 2 of the Voting Rights Act sustained its most significant weakening in the 2013 decision Shelby County v. Holder. This was the case in which the late great Justice Ruth Bader-Ginsburg famously dissented that “throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.” That’s specifically referencing Section 2, which at one time required certain states to report their changes in election law and accessibility to the Department of Justice.
Bader-Ginsburg was forward thinking in her dissent and she could have foreseen the Brnovich vs. DNC case as another challenge to the protections under Section 2 of the Voting Rights Act. A victory for Brnovich and Arizona Republicans in this case may mean open season on election laws all across America, and make that wave of 253 laws across 43 states all that more frightening.
As impactful as the year 2020 was in safeguarding our democracy, 2021 proves to be a similarly formidable year in securing it. In other words, these laws are some of the last arms of white supremacy reaching back to Jim Crow times. We cannot be mistaken in understanding these laws as ensuring election integrity and protecting against voter fraud. Categorically, they are racist attempts to systematically intimidate, dissuade, and disenfranchise America’s people of color in order to hold onto power. We will look back on these times years from now and universally understand this period as one of the most consequential moments in our rights-based democracy.
