August 3, 2021

SCOTUS Election Law Update


  • At the end of its term in July, the Supreme Court decided two major cases that were noteworthy wins for conservative jurisprudence on election law.
  • In Americans for Prosperity Foundation v. Bonta, the court struck down a California statute requiring disclosure of the identities of donors who give more than $5,000 to a charity.
  • In Brnovich v. Democratic National Committee, the court upheld Arizona election laws that exclude ballots cast in the wrong precinct and ban ballot harvesting.

Senate Democrats have struggled to convince their own caucus of the need for radical changes to election law, and now they can add the Supreme Court to the list of the unconvinced. In two major decisions issued in July, the court struck down a California law requiring the disclosure of donors to a charity, and it upheld Arizona laws banning ballot harvesting and excluding ballots cast in the wrong precinct.

Americans for Prosperity FOundation v. Bonta

AFP v. Bonta is a major setback for Democrats’ efforts to deter people from donating to conservative political groups. Using authority granted by the state legislature, the attorney general of California had issued a rule requiring charities and nonprofits operating in the state to disclose to the state the names and addresses of donors who had given more than $5,000 or more than 2% of an organization’s total contributions. This information is contained in every charitable organization’s IRS Form 990 Schedule B, which is filed annually with the federal government but is not required to be made public.

AFP and the Thomas More Law Center sued California, arguing that the donor disclosure requirement violated the First Amendment by raising the likelihood of harassment if donors’ identities became public. The groups noted that disclosure to states in addition to the federal government would increase the likelihood of the information becoming public, either through leaks or lower security standards at the state level. The federal district court found for the plaintiffs, but the 9th Circuit reversed the decision, concluding that the state had an important interest in obtaining the information to police charity fraud. 

The Supreme Court ruled by a 6-3 margin on July 1 that the disclosure requirement was not sufficiently narrowly tailored to address the state’s legitimate interest in combating fraud. The court held that California could have obtained the necessary information from charitable organizations under investigation through a subpoena or an audit instead of subjecting 60,000 charities to increased filing requirements and risk of donors’ information becoming public.

The conservative justices split regarding what test should apply. Chief Justice Roberts, joined by Justices Kavanaugh and Barrett, held that courts should apply “exacting scrutiny” to compelled disclosure of donor information. That standard requires “a substantial relation between the disclosure requirement and a sufficiently important governmental interest.”

Justice Alito, joined by Justice Gorsuch, agreed with the outcome but noted that he did not think a single standard of review should apply to all disclosure requirements. Justice Thomas wrote separately that strict scrutiny, the highest level, should apply to compelled disclosure cases. He also argued that laws such as the one at issue in this case should be dealt with on a case-by-case “as applied” basis, not struck down in their entirety as “facially” unconstitutional.

The three liberal justices joined a dissenting opinion written by Justice Sotomayor.

Brnovich v. Democratic National Committee

Democrats have argued at length that prohibiting ballot harvesting and requiring people to vote in the correct precinct constitute the kind of discrimination outlawed by the Voting Rights Act. In Brnovich v. DNC, the Supreme Court ruled against that talking point.

Under Arizona law, voters who vote on Election Day must vote in their assigned precinct. Arizonans who vote early by mail cannot have anyone other than a household member, family member, caregiver, postal worker, or elections official collect their ballot. This rule effectively bans the practice of ballot harvesting, where a volunteer or paid employee can collect thousands of ballots.

The DNC sued Arizona, alleging that those laws had an adverse and disparate effect on American Indian, Hispanic, and Black citizens in violation of Section 2 of the VRA. The district court upheld the laws in question, as did a 9th Circuit panel. An en banc court of the 9th Circuit reversed.

By a 6-3 margin, the Supreme Court held that the Arizona laws did not violate the VRA’s prohibition of discriminatory voting laws. Justice Alito, writing for the majority, noted that Congress had amended the VRA to require that the court use a “totality of the circumstances” test in considering possible Section 2 violations. In his analysis, he listed several relevant factors in considering a possible Section 2 violation:

  • The size of the burden imposed by the challenged rule;

  • The extent to which the challenged rule departs from what was considered standard practice when the VRA was amended in 1982;

  • The size of the disparity in the challenged rule’s impact on different racial or ethnic groups;

  • Compensatory opportunities to vote provided by a state’s entire voting system; and

  • The strength of the state’s interest in the challenged rule.

The court found that Arizona’s laws did not impose a significant burden, did not deviate significantly from standard practice in 1982, and made only a small disparity in outcomes in absolute terms. Arizona offered all voters many opportunities to vote early, weakening the effect of the disparate impact of the rules in question. In Justice Alito’s opinion, Arizona’s interest in deterring voter fraud justified these burdens.

Justice Alito’s analysis and the fact that six justices signed on to it suggests it will be more difficult for Democrats to win other pending lawsuits alleging Section 2 violations. Most states limited early and absentee voting in 1982, and current limits on those practices are the source of many current lawsuits.

The outcome of this case will be particularly relevant to the Department of Justice’s lawsuit against Georgia that alleges the state’s new election law violates Section 2. Many legal observers have said that DOJ’s lawsuit is now extremely unlikely to succeed. Georgia Secretary of State Brad Raffensperger said that the court’s ruling in Brnovich “vindicated” Georgia’s law, adding, “We know that [the Georgia law] will also be affirmed if it gets to the Supreme Court.”

Issue Tag: Judiciary