The Legacy of Shelby County: Brnovich and the Supreme Court's Ideological Struggle to Find a Standard for Vote-Deprivation Challenges to Section 2 of the Voting Rights Act.

• Author: Lynch, Rachel M.

"'We will not allow these cultural clear cutters to take [our rights] away and be removed to a racist reservation that exists in their mind.'... The Indian Wars of years gone by are no longer fought with smallpox, or demon rum, or post-Civil War cavalry with names such as Custer, Sheridan, Doane, or Baker, rather they come cloaked in judicial black robes armed with a 'voting rights philosophy as flawed as the Manifest Destiny.'" (1)

1. Introduction

   Laura Roundine, like many other Americans, was eager to vote in the 2020 presidential election and finally have her voice heard. (2) The week before, however, she underwent open-heart surgery that prevented her from voting in person. (3) Roundine, who lives on the Blackfeet Indian Reservation, could not even go to the post office to vote by mail, and Montana did not offer the option of home delivery in much of her reservation. (4) Luckily, Renee LaPlant--a Blackfeet community organizer for the Native American advocacy group Western Native Voice--helped Roundine and many others by providing paid-ballot-collection services. (5) These ballot collection efforts are now banned under House Bill 530 (H.B. 530), which the Republican-controlled Montana State Legislature passed in the spring of 2021. (6)

   H.B. 530 does not exist in a vacuum; rather, it is just one statute among many that state legislatures have passed in recent years making it more difficult for some citizens, including many Native Americans, to exercise their right to vote. (7) While the federal government originally treated Native American tribes as separate nations or entities, the Supreme Court has held that reservations shall be viewed as part of the surrounding state or territory, thereby endowing Native Americans with voting rights in state and federal elections. (8) Yet, as soon as Native Americans gained voting rights, states attempted to severely limit them. (9) In the past, courts viewed statutes making it more difficult to vote with suspicion, especially those made with a discriminatory purpose or that disproportionately affected marginalized populations, including Native Americans. (10) Nevertheless, in Brnovich v. DNC, (11) the Supreme Court signaled it would give considerable discretion to states passing strict voting laws, even those that primarily burden minority communities. (12)

   Brnovich involved two recently passed voting restrictions in Arizona that require the disposal of votes cast in undesignated locations, as well as a prohibition against collecting ballots for delivery to designated locations, unless the third party is a family member, caregiver, or household member. (13) Despite evidence that these restrictions would more heavily burden historically marginalized groups, the Court concluded that the disadvantages do not exceed the "usual burdens of voting." (14) Additionally, the Court explicitly rejected the use of the disparate-impact test--requiring a plaintiff to establish disparate impact from voting restrictions before the burden shifts to the defendant to prove the law accomplishes a substantial, legitimate justification--in favor of a totality-of- the-circumstances inquiry that provides considerable deference to states. (15)

   The Court's decision in Brnovich is part of a larger trend through which the importance of the Voting Rights Act (VRA) has been overlooked under the guise of state sovereignty. (16) Congress passed the VRA in 1965 due to rampant voter suppression at state and local levels that flourished beginning at the end of the Civil War through the Jim Crow era. (17) Despite promises of political progress after the Civil War ended, the Fifteenth Amendment, which addressed the issue of Black suffrage, was unable to stop states as they continued to marginalize Black Americans. (18) Finally, following the passage of the VRA, there initially appeared to be positive progress in the voting rights arena, as more and more Black Americans were able to exercise their right of political participation in the country. (19)

   The VRA has two major provisions that provide the power behind the statute. (20) First, section 2 contains a nationwide prohibition against discrimination in voting practices. (21) Second, section 5 includes a temporary provision that requires certain jurisdictions--determined by the preclearance formula outlined in section 4(b)--to obtain permission, or "preclearance," before altering their voting practices. (22)

   While historically viewed as a success, recent decisions have severely weakened the VRA, such as Shelby County v. Holder, (23) which held that section 4(b) of the VRA was unconstitutional, thus immobilizing section 5.24 Without section 5, states are free to enact discriminatory voting laws with little to no oversight. (25) Shelby County, when viewed in conjunction with cases like Brnovich, demonstrates a new, concerning development in voting law: Despite strong evidence of discriminatory effect, courts will not overturn voting restrictions that disproportionately impact minority communities such as Black Americans. (26)

   This Note explores recent efforts by states to pass strict voting laws that disproportionately disenfranchise their most marginalized citizens. (27) Given that the Civil Rights Movement spurred the advancement of voting rights for all Americans, this Note begins with a discussion of the history of voting rights as they apply to Black Americans. (28) Subsequently, it transitions to the development of Native American voting rights throughout American history, as well as how Native Americans have been acutely affected by recent voter suppression efforts. (29) After describing current and pending voting legislation, this Note discusses the Supreme Court's recent decision in Brnovich, its reaffirmation and expansion of the holding in Shelby County, and the impact of future restrictive voting laws upon American citizens. (30) Finally, this Note argues that courts should apply the disparate-impact test to determine whether a newly passed time, place, or manner voting restriction violates the VRA in order to effectuate the original intent of the statute. (31)

2. History

   1. From Founding to Freedom: Understanding the Transformation of Voting Rights in a New Nation

      A discussion of the United States's voting laws naturally begins with the nation's founding document itself: the Constitution. (32) While heralded as the symbol of freedom and self-determination in a newly founded nation, the Constitution simultaneously defined who was worthy of political power and, by extension, who would be incapable of achieving it. (33) Despite their lofty ideals, the founders embedded clauses in the Constitution that Black Americans were three-fifths of a person and that Native Americans were not deserving of political rights. (34) Indeed, universal suffrage was not present in any state, and many states created property qualifications that restricted certain populations from voting. (35) Property qualifications were among the first barriers to voting for even the most privileged in the nation, and it would take until 1850 for all states to abolish them. (36)

      The next scene in the fight for voting rights--the Civil War--brought the country to the brink of dissolution. (37) Lasting from 1861 to 1865, the country fought the Civil War to end the barbaric practice of slavery within the country, which directly contradicted the supposed founding ideals of equality that the founders espoused. (38) At the war's end, the Thirteenth Amendment generally outlawed the practice of slavery and set the stage for future social and political progress. (39) Later, the Fourteenth Amendment granted citizenship to those born or naturalized in the United States, and the Fifteenth Amendment protected the right to vote for all Americans regardless of race, color, or previous condition of servitude. (40)

      Endowed with the rights granted by the Fourteenth and Fifteenth Amendments, Black Americans possessed significant political power in some southern states where they were the majority of citizens. (41) Ambitious and anxious to shape their political futures, Black men registered and voted in elections, leading to a change in the electorate that lasted nearly twenty years. (42) For the first time since its founding nearly 100 years prior, the United States showed potential for true social progress. (43)

      Yet, as history shows, this social progress was merely temporary. (44) By 1877, Reconstruction came to an abrupt end, leaving Black Americans stranded in the former Confederate states as victims of innumerable barriers to voting. (45) Outraged by the electoral successes of Black Americans, southern conservatives used voter-suppression tactics--such as poll taxes, grandfather clauses, and English language literacy requirements--to purge newly enfranchised Black Americans from the voter rolls and devastate their participation in the political system. (46) States used poll taxes as a monetary barrier to prevent newly freed slaves and poor white males from voting. (47) Literacy requirements, on the other hand, mandated the voter possess the basic ability to read and write, and some also required the voter to understand the U.S. Constitution or state constitution. (48)

      Abandoned by two branches of government, Black Americans sought an ally in the judicial branch. (49) Yet the Supreme Court once again disappointed Black Americans when it validated literacy tests and struck down the Federal Civil Rights Act of 1875, which prohibited racial discrimination in public places and facilities, reasoning that Congress did not have the authority to ban discrimination in public accommodations. (50)

      Threatened by political and economic violence, many Black Americans retreated from the political sphere, and by 1940, only 3% of voting-age Black people in the South were registered to vote. (51) Furthermore, Black women, as well as Native women, were doubly disenfranchised, as their race or political...