July 21, 2021

A Silver Lining for Rural America in the Supreme Court’s Decision in Brnovich?

Cross-posted to the Daily Yonder and Legal Ruralism.

Lisa R. Pruitt & Ezera Miller-Walfish, Class of 2022

Although the U.S. Supreme Court’s recent voting rights decision in Brnovich v. Democratic National Committee was very bad news for rural residents (and, indeed, all voters) in terms of the precedent set, there is perhaps a silver lining to be found in the dissenting opinion, written by Justice Elena Kagan and joined by Justices Stephen Breyer and Sonia Sotomayor.  

That dissent took the concept of distance–rural spatiality–more seriously than any faction of the Supreme Court has ever done. Unlike the majority opinion, Kagan’s dissent examines the extra burden that living in a rural area can place on access, in this case to the ballot box.

In Brnovich v. Democratic National Committee, the Court split along ideological lines, voting 6-3 to uphold the State of Arizona’s restrictions on voting. The Arizona law limits the practice of ballot collection—a process whereby third-party individuals can return a voter’s signed and sealed mail-in ballot—and allows election officials to discard ballots cast at the wrong precinct.

We are a law professor and law student engaged in a thinking critically about the difference rurality makes to the operation of law, and we have followed this case for reasons other than those that have led election and constitutional law scholars to follow it: we’re interested in the case’s implications for rural populations and also how the Court understands lived realities in rural America.

Brnovich’s “Big Picture”

Before we get into the “rural weeds,” though, let us first refer to what Professor Rick Hasen of the UC Irvine School of Law said on his Election Law Blog about the big picture of Brnovich in relation to voting rights precedents.

[The decision] severely weakened Section 2 of the Voting Rights Act [a federal law dating to the Civil Rights Era] as a tool to fight against laws that make it harder to register and vote. Rather than focus on disparate impact—whether a law leads to minority voters registering or voting in lower numbers—the court applies a much broader totality of the circumstances test with a huge thumb on the scale favoring the state and its restrictive law. If a law imposes just a “usual burden of voting,” and the burden on minorities is not too much, and the state can assert (but does not need to prove) a significant interest in preventing voter fraud or another interest, then the law can stand.

The term “usual burden” is interesting here because in some prior cases, the focus has been on the opposite — on an “undue burden” on exercising the right. We will come back to that below when we draw the parallel between this voting rights case and another strand of constitutional litigation that uses an “undue burden” standard: abortion restrictions. On voting, Hasen continues:

When you couple this opinion with the 2008 ruling in the Crawford case, upholding Indiana’s voter ID law against a Fourteenth Amendment equal protection challenge, the 2013 ruling in Shelby County killing off the preclearance provision of the Voting Rights Act for states with a history of discrimination, and today’s reading of Section 2, the conservative Supreme Court has taken away all the major available tools for going after voting restrictions. This at a time when some Republican states are passing new restrictive voting law.
The Court today also makes it harder to prove intentional racial discrimination in passing a voting rule.

In a guest post on the Election Law Blog, Professor Doug Spencer provided further big-picture context in relation to the Court’s approach to other enumerated rights.

It’s hard to reconcile the Court’s indifference to inconveniences on voting rights (e.g., fn 11, slip op. at 16) with its uncompromising protection of gun rights or its “most-favored-nation” approach to religious freedom. Why are voting rights so different? And so less worthy of protection?

(Congratulations to Prof. Spencer and UC Davis' own Prof. Chris Elmendorf, whose Columbia Law Review article on Section  2 of the Voting Rigths Act was cited by Justice Kagan in dissent).

A New Response to Rurality

OK, enough on the broad U.S. Constitutional and voting rights context. We want to turn now to why this case is exceptional from a ruralist standpoint.

The backstory here is that we have been arguing in legal scholarship–if not in amicus briefs or any other form that would actually get directly before the Justices–that rural spatiality, aka material distance, is an obstacle the Supreme Court should take seriously in considering “undue burdens” on the exercise of constitutional rights like voting and abortion.

The context in which the issue of distance has arisen most frequently is abortion access, which one of us has written about herehere, and here. The Supreme Court of the United States has rarely grappled in any meaningful way with the distance a woman must travel to reach an abortion provider, an issue that arises when waiting periods make two trips necessary or when state abortion regulations force providers to close, thus forcing women to travel longer distances to other providers. But in Whole Woman’s Health v. Hellerstedt, Justice Breyer, writing for the majority in the 2016 opinion, used the word “rural” only once, though he used the word “miles” 19 times.

Specifically, Breyer quoted the trial (federal district) court opinion, which acknowledged the added burden the clinic closures were causing “poor, rural, or disadvantaged women.” The disadvantaged group most focused on in that litigation were Latinas living in the Rio Grande Valley, who tended to be “poor, rural and disadvantaged.” Interestingly, the Court did not again use the word “poor” or “poverty” in the majority opinion, which is bit unusual–and disappointing–given that poor women disproportionately seek abortions compared to their more affluent counterparts. The Court did, however, use the term “Rio Grande Valley” twice, which suggests that population drew particular solicitude.

The Hellerstedt Court’s use of “miles” also mostly tracked the district court’s findings, here about the specific impact of the law on women’s abortion access. Because the challenged law had the effect of closing abortion providers across Texas, the geographical distribution of abortion providers shifted, with these consequences:

[T]he number of women of reproductive age living more than 50 miles from a clinic has doubled, the number living more than 100 miles away has increased by 150%, the number living more than 150 miles away by more than 350%, and the number living more than 200 miles away by about 2,800%.

Also looming was the fact that if another pending restriction went into effect, Texas would have abortion providers “only in five metropolitan areas.” Finally, Breyer used “miles” when quoting the federal district court for the proposition that Texas is big–specifically, that it covers nearly 280,000 square miles and that 25 million people–5.4 million of them women of reproductive age–live on that vast land area.

Ultimately, Breyer’s opinion concluded:

We recognize that increased driving distances do not always constitute an “undue burden.” See Casey, 505 U. S., at 885–887 (joint opinion of O’Connor, KENNEDY, and Souter, JJ.). But here, those increases are but one additional burden, which, when taken together with others that the closings brought about, and when viewed in light of the virtual absence of any health benefit [from the Texas law], lead us to conclude that the record adequately supports the District Court’s “undue burden” conclusion.

That was a real victory for rural women, however defined, though the focus was much more on the distance–really increased distance–that any woman might have to travel to reach an abortion provider. This did not explicitly focus on rural women, but the Hellerstedt majority went much further than any prior opinion in taking seriously material distance, expressed as miles traveled.

Rural America and Voting Rights

That brings us to Brnovich and voting rights. In discussing this case, it makes sense to discuss first the number of times the dissent mentions the word “rural” because it far outnumbers–and outweighs–what the majority had to say. Justice Kagan, writing for the dissent, used the word “rural” twelve times, frequently as part of the phrase “rural Native Americans.” The reason for this linkage is that the Voting Rights Act responds to discrimination on the basis of race. Thus, the sensitivity–if there is any–is to racial or ethnic difference, and that difference gets paired with rurality in what scholars call intersectionality. That is, status as a Native American intersects with rurality to aggravate the disadvantage experienced by this population, just as status as a poor woman intersected with status as a Latina and rural location to disadvantage women in Texas’ Rio Grande Valley in Hellerstedt.

Here’s perhaps the most salient quote from Kagan’s dissent:

Arizona’s law mostly banning third-party ballot collection also results in a significant race-based disparity in voting opportunities. The problem with that law again lies in facts nearly unique to Arizona—here, the presence of rural Native American communities that lack ready access to mail service. Given that circumstance, the Arizona statute discriminates in just the way Section 2 proscribes. The majority once more comes to a different conclusion only by ignoring the local conditions with which Arizona’s law interacts.
The critical facts for evaluating the ballot-collection rule have to do with mail service. Most Arizonans vote by mail. But many rural Native American voters lack access to mail service, to a degree hard for most of us to fathom.

This language–humble for a Supreme Court Justice-–reminds me of Justice Thurgood Marshall’s rhetorical practice of putting himself in the shoes of litigants and acknowledging the challenge for Supreme Court justices to do just that. He wrote in United States v. Kras (1973), a case involving a court filing fee:

It may be easy for some people to think that weekly savings of less than $2 are no burden. But no one who has had close contact with poor people can fail to understand how close to the margin of survival many of them are. . . .It is perfectly proper for judges to disagree about what the Constitution requires. But it is disgraceful for an interpretation of the Constitution to be premised upon unfounded assumptions about how people live.

One of us has made similar arguments re the Supreme Court’s struggle to grasp the burden of distance, especially with so many current justices having grown up in New York City. There is not, after all, much geographic diversity on the Court, and no current justice has any meaningful links to rurality.

Kagan’s dissent in Brnovich continues with a focus on the burden of rurality in relation to Native Americans, veering into the subject of those who rely on the U.S. mail in order to vote:

Only 18% of Native voters in rural counties receive home mail delivery, compared to 86% of white voters living in those counties. And for many or most, there is no nearby post office. Native Americans in rural Arizona “often must travel 45 minutes to 2 hours just to get to a mailbox.” (“Ready access to reliable and secure mail service is nonexistent” in some Native American communities). And between a quarter to a half of households in these Native communities do not have a car. See ibid. So getting ballots by mail and sending them back poses a serious challenge for Arizona’s rural Native Americans.

For that reason, an unusually high rate of Native Americans used to “return their early ballots with the assistance of third parties.” As the District Court found: “[F]or many Native Americans living in rural locations,” voting “is an activity that requires the active assistance of friends and neighbors.” So in some Native communities, third-party collection of ballots—mostly by fellow clan members—became “standard practice.” And stopping it, as one tribal election official testified, “would be a huge devastation.” [citations omitted]

It bears noting that Arizona, the sixth largest state in land area, is not alone in terms of challenges facing rural residents—and Native American voters in particular. Similar issues in Montana, the fourth largest state in the nation, are highlighted in this recent New York Times story, which focuses on the details of voting on Blackfeet reservation in the northwest part of the state.

Geography, poverty and politics all create obstacles for Native Americans. The Blackfeet reservation is roughly the size of Delaware but had only two election offices and four ballot drop-off locations last year, one of which was listed as open for just 14 hours over two days. Many other reservations in Montana have no polling places, meaning residents must go to the county seat to vote, and many don’t have cars or can’t afford to take time off.

The Majority’s Dismissiveness of Rural and Over-reliance on the U.S. Post Office

From a ruralist standpoint, the most shocking thing about the Brnovich litigation is the Supreme Court majority’s response to the dissent’s concern over these rural realities, especially as they impact Native Americans. Indeed, the majority was so dismissive of these concerns as to relegate its response to a footnote, footnote 21. Justice Alito, writing for the majority, notes the ways people will be still able to vote under the challenged Arizona law, e.g., the legality of having a ballot picked up and mailed by family or household members. Beyond that, he simply relies on provisions of the U.S. Code about the postal service, specifically the provisions about the circumstances under which small post offices may be closed. Here’s the full quote.

The burdens that fall on remote communities are mitigated by the long period of time prior to an election during which a vote may be cast either in person or by mail and by the legality of having a ballot picked up and mailed by family or household members. And in this suit, no individual voter testified that HB 2023 would make it significantly more difficult for him or her to vote. 329 F. Supp. 3d, at 871. Moreover, the Postal Service is required by law to “provide a maximum degree of effective and regular postal services to rural areas, communities, and small towns where post offices are not self-sustaining.” 39 U. S. C. §101(b); see also §403(b)(3). Small post offices may not be closed “solely for operating at a deficit,” §101(b), and any decision to close or consolidate a post office may be appealed to the Postal Regulatory Commission, see §404(d)(5). An alleged failure by the Postal Service to comply with its statutory obligations in a particular location does not in itself provide a ground for overturning a voting rule that applies throughout an entire state. [emphasis added]

So, on the one hand, there’s this federal statute that says the USPS must provide a “maximum degree of effective and regular” delivery even to places–including rural ones–where the local post office doesn’t “break even.” On the other hand, if the USPS fails to comply with this statute, that lack of compliance won’t be grounds for overturning a state voting law.

Folks who’ve followed the recent degradation in U.S. Postal Service will immediately see some irony in the majority’s reliance on this institution. Those who’ve followed the decades long efforts to close and consolidate rural post offices will see yet another level of irony. Indeed, the latest proposal to downgrade postal service, detailed here, would ”disproportionately affect states west of the Rocky Mountains,” which includes a lot of Indian Country–and many other rural places, too. Specifically, 57% of first-class mail sent in Montana and 55% sent in Arizona will take longer to arrive.

This has us wondering if rural postal service advocates will try to rely on this footnote in Brnovich majority to resist some future effort to close more post offices. The argument would be, we guess, that if the Supreme Court says it won’t be done because of this statute, then it should not be done. But what the footnote–and the statute–give, they also take away in saying that post offices can, of course, be closed, although there’s a right to appeal such closures.

This is all pretty grim—for all patrons of the U.S. Postal Service, but especially for rural and Native American folks whose local post offices are most likely to be on the chopping block.

The majority opinion in Brnovich is devastating for voting rights generally speaking, and for Native American and rural communities in particular. But there is a sliver of hope to be found here: the dissent in this case shows that the U.S. Supreme Court is capable of taking rurality seriously–at least as a factor intersecting with Native American status. The Brnovich dissent grapples with the lived realities of distance, with the material spatiality of the rural, in an even more explicit and compelling way than the Hellerstedt majority did five years ago.

This leaves us with hope that the groundwork laid by the Brnovich dissent will be invoked in some future case, if and when the liberal wing of the Court is in the majority and called on to take seriously the rights of rural folks and therefore also the state-imposed barriers that undermine their ability to exercise those rights. The liberal bloc has finally shown they know how to do this. Let’s hope they don’t forget if they are some day back in a position to be the final arbiters of what is or is not an “undue burden.”

Ezera Miller-Walfish is a rising third-year law student at UC Davis School of Law.  She grew up in rural northern New Mexico.