Brnovich v. Democratic National Committee

The Voting Rights Act Guarantees Equal Opportunity to Vote, Not Equal Racial Outcomes

Amicus Briefs > Equality Under the Law > Brnovich v. Democratic National Committee

This case is centered on the proper interpretation of a key provision of the Voting Rights Act of 1965. Specifically, whether Section 2 of the Act should be read to prohibit almost any state election regulation that produces some racially disparate impact. If the Ninth Circuit was correct that it does, race will necessarily take center stage in every debate over election law, to the exclusion of other important policy considerations. The Ninth Circuit’s reading encourages race-based decision making, directly contrary to the Equal Protection Clause’s command. 

In our friend-of-the-court brief, PLF argues that the Supreme Court should reverse the Ninth Circuit and hold that Section 2 of the Voting Rights Act protects the equal opportunity to vote, but it does not guarantee any particular racial outcome. 

  • The Ninth Circuit was wrong in concluding that Arizona’s policy against counting ballots cast in the wrong precinct on Election Day violates Section 2. A mere racial disparity in usage—here, in the number of voters who vote in the wrong precinct—is not enough to render a particular policy illegal. 
  • The Ninth Circuit’s decision is directly contrary to the text of Section 2, which emphasizes the equality of opportunity to participate in the electoral process. A state violates Section 2 only when it deprives individuals of that equal opportunity on account of race.
  • The expansion of disparate impact liability threatens to render Section 2 unconstitutional. The Equal Protection Clause forbids the government from making decisions based on race, but the specter of disparate impact liability brings race to the forefront. PLF’s amicus brief is the only one that stresses the potential for conflict between the Voting Rights Act and the Equal Protection Clause.

PLF regularly participates as amicus curiae, or friend of the court, in cases brought by others. This supplements our direct representation cases by providing judges with unique, strategic, and helpful arguments to consider when crafting their opinions. 

 

Related Documents

PLF regularly participates as amicus curiae, or friend of the court, in cases brought by others. This supplements our direct representation cases by providing judges with unique, strategic, and helpful arguments to consider when crafting their opinions in related cases

PLF Amicus Brief

December 04, 2020 Download

What’s at stake?

  • At stake is the future of voting regulation. In these cases, the Court’s decision will determine the extent to which states must consider race when crafting election policy.
  • The case could determine the future of disparate impact liability more generally. Whenever liability is based merely on statistical effect, rather than intent to discriminate based on race, governments will be encouraged to use race to avoid such liability. PLF has consistently argued for limiting disparate impact liability in various contexts.

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