January 21, 2021
Maine’s Attorney General and Secretary of State join coalition defending key provision of the Voting Rights Act before Supreme Court
Frey and Bellows Argue That Provision Removes
Racial Barriers to Voting Without Infringing State Sovereignty
AUGUSTA – Attorney General Aaron M. Frey and Secretary of State Shenna Bellows have joined amicus briefs urging the Supreme Court to uphold a robust test for applying Section 2 of the Voting Rights Act (VRA)—which prohibits policies and practices that deny or abridge citizens’ right to vote based on their race.
Attorney General Frey joined an amicusbrief signed by 18 attorneys general, and Secretary Bellows joined an amicus briefsigned by nine secretaries of state as well as numerous state and local elections officials. These briefs were filed in Brnovich v. Democratic National Committee and Arizona Republican Party v. Democratic National Committee, two consolidated cases concerning Arizona laws that challengers allege make it harder to vote. The coalition argues that the courts apply a sufficient inquiry into whether state laws actually discriminate against voters of color and that the Supreme Court should maintain this standard instead of narrowing it or striking down critical voting rights legislation.
“Section 2 is essential to the Voting Rights Act and ensuring that the democratic process is available to all citizens, regardless of their color,” said Attorney General Frey. “My fellow attorneys general and I support the Ninth Circuit’s decision, which correctly recognized that even seemingly neutral election laws can result in the denial or abridgment of the right to vote on account of race, in violation of the Voting Rights Act.”
“Section 2 of the Voting Rights Act ensures equitable and fair access to elections nationwide, and has served that role for decades now without negative impacts on other elections laws,” said Secretary of State Shenna Bellows. “It is an important guard against racial discrimination in our elections and I’m proud to join the 37 other elections officials in showing our support for these protections of our citizens’ voting rights.”
Section 2 of the Voting Rights Act prohibits any “qualification or prerequisite to voting” or “standard, practice, or procedure” that “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” Since 1982, this has contained a discriminatory-results provision, which prohibits election laws or structures that create unequal opportunities for participation in the political process.
Arizona has two laws that have been challenged because of discriminatory results: an “out-of-precinct policy,” under which provisional ballots cast in person are not counted if the voter, even inadvertently, cast the ballot outside their designated precinct; and a “ballot-collection” statute that prohibits so-called ballot harvesting and only allows certain individuals, such as family members, to collect and submit another person’s completed early ballot. The Ninth Circuit concluded that both laws produced a disparate impact on voters of color, creating unequal opportunities for political participation, and thus both violated the VRA. The Arizona Attorney General and the Arizona Republican Party are challenging the Ninth Circuit’s ruling in the Supreme Court, joined by Republican state attorneys general. They argue that the current test would strike down all laws that impose even small differential effects on voters of different races.
The 18-Attorney General coalition supporting the ruling filed an amicus brief defending the existing test for assessing violations to the VRA. Specifically, the states urge the Supreme Court to uphold the Ninth Circuit’s decision because:
- Generally applicable election laws like Arizona’s can violate Section 2 of the VRA: Previous cases have demonstrated that seemingly “neutral, generally applicable election laws” can result in denial or abridgment of the vote to people of color. The Supreme Court has interpreted the text of the Voting Rights Act to provide the broadest possible scope, extending to facially neutral and generally applicable laws.
- The existing test incorporates a rigorous analysis that only threatens election laws that actually operate to abridge or deny electoral opportunities: The Ninth Circuit’s test, which is similar to ones used by other courts—requires more than a disparate impact. Once a finding of disparate impact is made, the Court engages in a more searching inquiry into whether electoral systems actually function to exclude minority voters. The plaintiff must demonstrate the disparate burden actually denies voters of color equal opportunities to participate in the electoral process. This rigorous analysis provides a workable framework that gives States flexibility while preventing discrimination.
- The two-part test is constitutional because it prevents and deters lawmakers from enacting discriminatory laws: Intentional discrimination is very difficult to prove. The results test is important because it helps to weed out intentional discrimination and prevents future unconstitutional conduct by targeting the racially polarized conditions most likely to incentivize intentional discrimination in the regulation of elections.
Copies of both briefs are attached.