The Supreme Court issued its decision in Brnovich, Attorney General of Arizona v. Democratic National Committee today, upholding Arizona’s voting restrictions in a 6 to 3 vote, with the Court’s three liberal justices in dissent. At issue was how a crucial part of the Voting Rights Act of 1965 applies to voting restrictions disproportionately impact minority groups. Here, law of democracy expert Nate Persily, who has served as a special master or court-appointed expert to craft congressional or legislative districting plans for Georgia, Maryland, Connecticut, New York, North Carolina, and Pennsylvania and served as the senior research director for the Presidential Commission on Election Administration, weighs in on the decision.

What are the key points of the decision that stand out to you?

Brnovich was as expected. Three things stood out:
1 – Voting practices existing in 1982 deserve some special presumption of validity?!
2 – Reinforcement of partisan purpose not being a racially discriminatory purpose.
3  – Now about what constitutes the “usual burdens of voting”:

This new 1982 non-retrogression standard is, shall we say, novel, since the 1982 Amendments were, as Kagan’s dissent makes clear, intended to disrupt the status quo, not preserve it.

Election administration today (let alone due to improvements made to deal with the pandemic) is very different than it was in 1982. Were states to turn back the clock forty years (!) on voting, there would be lots of racially disparate impacts.

Moreover, virtually all the “new” rollbacks we have seen in the states since this past election nevertheless do not bring them back to 1981, so the decision blunts the use of Section 2 of the Voting Rights Act as a tool in striking them down.

This brings us to discriminatory purpose—as the Court says, “partisan motives are not racial motives.” Here, we hear echoes of the redistricting cases, in which partisanship is being used to “save” plans alleged to be racially discriminatory.

Whatever might be the difficulty of adjudicating excessive partisanship in the redistricting context, though, it is a little, um, peculiar to say “we passed this voting restriction to advantage our party.”

Indeed, partisan motivations are not necessarily racial ones, but as many (esp @rickhasen ) have written, it is becoming increasingly difficult in some states to disentangle race and party. (And by the way, this has implications for the DOJ suit in Georgia.)

Finally, it seems that vote-denial litigation under section 2 will now depend on what courts consider the “usual burdens of voting” — So the question one might ask with respect to all these new laws — most, but not all of which exist in other states — how unusual are they?