On January 6, 2021, American democracy was under threat. Hundreds of supporters of former President Trump stormed the U.S. Capitol in an attempt to stop the lawful certification of President Biden’s victory in the 2020 general election.1 The insurrection, coupled with the flood of voter suppression laws that soon followed, has underscored how fragile the United States’ multiracial democracy truly is.2 Six months after the attack on the Capitol, the Supreme Court delivered its own blow. Last Term, in Brnovich v. Democratic National Committee,3 the Supreme Court upheld two Arizona voting restrictions under section 2 of the Voting Rights Act4 (VRA), and in so doing articulated five “guideposts” for how courts should evaluate section 2 claims going forward.5 The majority’s ahistorical and atextual approach to section 2 is deeply concerning. Bypassing the Court’s interpretive commitments from recent antidiscrimination cases, Brnovich foretells further hostility to the disparate impact theory of discrimination under other antidiscrimination statutes that are also critical to democracy.
Brnovich concerned two provisions of Arizona election law: the out-of-precinct (OOP) policy and a prohibition on third-party ballot collection, known as H.B. 2023.6 Under the OOP policy, a voter can cast a provisional ballot if she attempts to vote but does not appear at her assigned precinct.7 If, after the election, poll workers confirm that the voter does not live in that precinct, the entire ballot is thrown out, even if the voter was eligible to vote for certain offices on the ballot.8 Under H.B. 2023, it is a felony for “[a] person [to] knowingly collect[] voted or unvoted early ballots from another person.”9 The Democratic National Committee along with other plaintiffs (“the DNC”) challenged these provisions as imposing unconstitutional burdens on voters’ First and Fourteenth Amendment rights; as having a disparate impact on minority voters in violation of section 2; and, for H.B. 2023 only, as being passed with discriminatory intent in violation of section 2 and the Fifteenth Amendment.10
The district court ruled against the DNC on all claims.11 On the First and Fourteenth Amendment claims, Judge Rayes found that, under the Anderson–Burdick framework,12 the challenged law imposed minimal burdens that were sufficiently justified by the state’s important regulatory interests to prevent fraud and maintain election integrity.13 With respect to the section 2 claims,14 the court employed a two-part results test that multiple circuits had adopted for vote denial claims.15 The test asked whether the provisions had a disparate impact on minority voters, and if so, whether that impact was connected to social and historical conditions leading to discrimination against the burdened group.16 Judge Rayes found that H.B. 2023 and the OOP policy failed to satisfy both steps.17 Lastly, he found that H.B. 2023 was passed not with discriminatory intent but with validly partisan interests.18
In a divided panel, the Ninth Circuit affirmed.19 Writing for the majority, Judge Ikuta20 underscored that to establish disparate impact under the first step of the section 2 results test, a “plaintiff must show a causal connection between the challenged voting practice and the lessened opportunity of the protected class to participate and elect representatives.”21 The panel affirmed the district court’s findings and conclusions as to all of the plaintiffs’ constitutional and section 2 claims,22 including their claim of intentional discrimination.23
Chief Judge Thomas dissented.24 He disagreed with the panel majority’s reading of section 2, reasoning that the statute “should be interpreted [with] ‘the broadest possible scope’ in combating racial discrimination.”25 For the dissent, so long as the policy had a disparate impact on minority voters, the first step of the section 2 results test was satisfied without a need to show causation.26 The dissent found that both the OOP policy and H.B. 2023 disparately impacted minority voters,27 and that the Senate factors also weighed in favor of the DNC,28 and therefore concluded that both policies violated section 2.29 The dissent then analyzed the constitutional claims and similarly found that the district court erred.30 Lastly, the dissent found that H.B. 2023 was passed with racial animus in violation of section 2 and the Fifteenth Amendment.31 The Ninth Circuit voted to rehear the case en banc.32
The en banc majority reversed and remanded the district court decision, holding that the OOP policy and H.B. 2023 violated the VRA.33 Writing for the majority, Judge Fletcher34 first analyzed the OOP policy. He found that the district court erred in its analysis when it concluded that the 3,709 OOP ballots discarded in Arizona’s general election in 2016 burdened a de minimus number of voters.35 Next, he analyzed the Senate factors and concluded that they all favored the plaintiffs.36 Judge Fletcher then turned to H.B. 2023, similarly holding that the law had a disparate impact on minority voters37 — who disproportionately used ballot-collection services38 — and that the Senate factors favored the plaintiffs.39 Lastly, the majority considered the intent-based challenges to H.B. 2023 and held that the law was passed with discriminatory intent.40
Judges O’Scannlain and Bybee dissented. In his dissent, Judge O’Scannlain41 criticized the majority for “draw[ing] factual inferences that the evidence cannot support and misread[ing] precedent along the way.”42 He emphasized that the standard of review for analyzing the district court’s factual findings was clear error, which was not satisfied here.43 Judge Bybee44 dissented as well. He focused on the necessity for states to enact policies to determine the “time, place, and manner” of elections and argued that both of the challenged Arizona policies were relatively common among states.45
The Supreme Court reversed.46 Writing for the majority, Justice Alito47 held that “the en banc court misunderstood and misapplied” section 2.48 After quickly dismissing challenges to the petitioners’ standing to appeal, Justice Alito made clear that the Court was not creating a test for section 2 cases; instead, it was announcing “certain guideposts” to inform future cases.49
First, Justice Alito briefly examined the text of section 2, finding that the operative phrase was “equally open,”50 meaning that political processes must be “‘equally open’ to minority and non-minority groups alike.”51 Next, Justice Alito put forth five nonexhaustive factors that courts should consider in their “totality of the circumstances” analysis.52 These were: (1) the size of the burden on voters beyond mere inconveniences,53 (2) the law’s departure from “standard practice when [section 2] was amended in 1982,”54 (3) the size of the disparity,55 (4) the means of voting other than the one burdened by the challenged policy,56 and (5) the state’s interest in promulgating the electoral practice.57 Using these guideposts, the Court concluded that the Arizona policies did not violate the VRA.58
Justice Gorsuch, joined by Justice Thomas, briefly concurred to note that the Court has assumed but never held that the VRA includes an implied cause of action.59 Since Brnovich did not present this question as an issue, however, he did not elaborate on this point further.60
Justice Kagan dissented.61 She critiqued the majority’s reading of the statute, writing that the Court had “rewritten — in order to weaken — a statute that stands as a monument to America’s greatness, and protects against its basest impulses.”62 Examining the language of the statute, Justice Kagan noted that by using the term “results in,” section 2 focuses on the consequences of electoral practices, as opposed to the motives by which they were enacted.63 Justice Kagan continued to interpret the words “equally open,” writing that “equal opportunity” does not exist when “it [is] harder for members of one racial group . . . to cast ballots.”64 Lastly, she focused on the “totality of the circumstances” inquiry and its attention to how the voting rule operates with the “facts on the ground” and state interests.65 Justice Kagan dismissed the majority opinion as occupying a “law-free zone”66 and reprimanded the Court for abandoning the text and adopting “mostly made-up factors.”67 Finally, Justice Kagan analyzed the Arizona policies68 and found that both had a disparate impact on minority voters in violation of section 2.69
After the Court’s ruling in Shelby County v. Holder,70 which effectively invalidated the preclearance requirements in section 5 of the VRA,71 lawyers and scholars correctly predicted that section 2 vote denial claims would percolate through the courts to fill the gap left by section 5’s invalidation.72 Section 2’s increasing importance culminated in the first occasion for the Court to announce how vote denial claims would be analyzed under section 2 of the VRA.73 The Court’s choice to opt for “guideposts” instead of a rigid test might lead some to assume that the Court chose a less consequential path. However, the majority’s ahistorical and atextual analysis of section 2 should ring alarm bells for voting rights advocates and all those fighting for robust antidiscrimination regimes. The Court’s departure from the interpretive methods it has used in recent antidiscrimination cases, coupled with recent trends against the disparate impact theory of discrimination, previews how the Court will approach with hostility similar critical antidiscrimination statutes in the future.
In subordinating racial equality to state interest, the Brnovich Court’s interpretation was contrary to section 2’s text and purpose. The Court first heightened plaintiffs’ evidentiary burden to establish disparate impact,74 and then held that even if plaintiffs satisfy this burden, a state’s compelling interest in election integrity can overcome section 2 liability.75 But to do so, Justice Alito had to brush over section 2(a)’s text, which explicitly focuses on disparate “results” without any reference to lawmakers’ motives or justifications.76 Congress added this explicit focus on “results” in 1982 to overturn the Court’s decision in City of Mobile v. Bolden,77 which limited section 2 to discriminatory intent claims.78 Congress has thus made it clear that it is not the state but “voters of color [who] get the benefit of the doubt.”79
Brnovich represents a departure from the Court’s interpretive approaches in recent antidiscrimination cases. For example, in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc.,80 the Court held that the Fair Housing Act81 (FHA) encompassed disparate impact liability, with an analysis grounded in the text.82 Justice Kennedy, writing for the majority, held that the words “otherwise make unavailable” speak to consequences rather than intent.83 Similarly, in Bostock v. Clayton County,84 Justice Gorsuch wrote a hypertextualist opinion and concluded that discrimination “because of . . . sex” in Title VII85 included discrimination on the basis of sexual orientation and gender identity.86 Throughout the opinion, Justice Gorsuch repeatedly emphasized the importance of the statute’s text.87 And although Bostock was only one year before Brnovich, this Term brought with it a newly constituted Court.88 The methods of statutory interpretation used in Inclusive Communities and Bostock are glaringly absent in Brnovich, leaving advocates to wonder what the Court will use next.
One potential explanation for Justice Alito’s interpretation of section 2 may reside in the “totality of the circumstances” inquiry embedded in section 2. This broad language has allowed the Court to use its judicial discretion to create entirely new rules and standards to govern vote dilution claims.89 Some commentators have supported the Court using its discretion in this way, writing that, so long as the Court is guided by the underlying norms of section 2, it should use its discretion to create “a common law of racially fair elections.”90 Justice Alito’s general guideposts, then, could be another instance of taking a broadly worded statute as a congressional delegation to develop judicially created standards for adjudicating claims that necessarily evolve over time.
However, even if Congress delegated this interpretive authority to courts, this delegation should not give the Court free rein to read the statute contrary to its goals.91 In line with this principle, in Chisom v. Roemer,92 the Court recognized that section 2’s broad language “cannot justify a judicially created limitation” of the statute.93 Similarly, in Thornburg v. Gingles,94 the Court relied heavily on the legislative history and purposes of section 2.95 A coherent development of a common law for voting rights protection must rely on the Court abiding by the norms underlying section 2.96 As Professor Elmendorf puts it, courts should act in partnership with Congress when making this statutory common law while being faithful to Congress’s purpose.97 In stark contrast, none of the Brnovich factors refer to section 2’s goals, and, even worse, each one makes it more difficult for plaintiffs to succeed on section 2 claims.98 Judges crafting standards to enforce broadly worded statutes is one thing; the Supreme Court creating atextual standards that actively undermine the efficacy of federal statutes like the VRA just because it might disagree with the statute is something else entirely.
The freedom the majority took with the statutory interpretation in Brnovich is especially troublesome when paired with the Court’s recently increasing skepticism of the disparate impact theory of discrimination. In Washington v. Davis,99 the Court held that disparate impact alone cannot establish a violation under the Equal Protection Clause,100 but it suggested that Congress could still allow disparate impact liability under civil rights statutes, including the VRA, Title VII, and the FHA.101 Times have changed, and the Court today is much more intolerant of the disparate impact theory of discrimination.102 This hostility intensified in Brnovich when Justice Alito called the dissent’s proposal of a disparate impact framework for the VRA a “radical project.”103 Even more, some Justices have questioned the constitutionality of disparate impact,104 a question that until recently was “all but unthinkable.”105
With this backdrop in mind, Brnovich offers an insight into how this Court will tackle disparate impact in other antidiscrimination statutes, and the forecast is concerning. The VRA has historically occupied a special status among civil rights statutes,106 and Title VII has similarly been deemed a common law statute that warrants pragmatic statutory interpretation in line with its goals.107 Notably, however, “the disparate impact prong of Title VII has never much shared in that status.”108 Were the Court to narrowly construe disparate impact under Title VII as it did under the VRA, its construction would likely spread to other statutes, as is often the case with its Title VII decisions.109 Given the similarity between Title VII, the FHA, the VRA, and other antidiscrimination statutes, the Court’s departure from text and history to narrow the VRA can easily repeat in future civil rights statutory cases to the detriment of the purpose behind these statutes: preventing discrimination.
Contextualizing Brnovich with its contemporaries serves as a warning that antidiscrimination provisions across a variety of fields are in danger. Brnovich weakened the last hope that voting rights advocates had to fight voter suppression,110 but its consequences for American democracy extend far beyond the ballot box. Although the VRA is the principal statute to protect against antidiscrimination in voting, robust antidiscrimination regimes across all issue areas are vital to maintaining our nation’s democracy. While the Brnovich Court undervalued the role that socioeconomic disparities play in undermining our democracy,111 social equality and economic agency are essential to ensuring that ev-eryone can participate in our democracy,112 and disparate impact antidiscrimination regimes in housing, employment, and more play a critical role in that project. The Brnovich Court’s threat to democracy runs much deeper than the immediate ramifications of the decision may suggest. And in times when our multiracial democracy is consistently under threat, the Supreme Court is making advocates’ and organizers’ ability to fight for it in the courts all the more difficult.