In-Depth Analysis of Brnovich and HR-1

Voting Rights Collisions
in Congress and Supreme Court Create an Uncertain Path for Fair Representation

Today, the Princeton Electoral Innovation Lab considers a Supreme Court case (Brnovich) and a possible law which might affect voting rights (H.R. 1)--and what might come after, including state-based reform actions.

On March 2, the Court heard arguments in the cases Brnovich v. Democratic National Committee and Arizona Republican Party v. Democratic National Committee (argued together and called the “Brnovich'' case) concerning the Voting Rights Act of 1965. The decision probably won’t arrive until mid-summer, but election law experts already believe the Court will rule in a way which will make it easier for states to pass voter suppression laws.

Yet at almost the same moment, Congress began its debate over H.R. 1, the For the People Act, the broadest extension of voting rights in years. If passed, the law would prevent Brnovich-style restrictions on voting.

Why does Brnovich matter? Because it is a challenge to Arizona laws that criminalize ballot collecting and prevent counting out-of-precinct ballots. By limiting who can handle mail-in ballots, the law can disenfranchise voters with limited or irregular postal service, particularly Native American and Hispanic voters, or voters who cast ballots outside of their assigned precincts. As the Project knows from our OpenPrecincts project, precincts can change often or not be clearly communicated to voters. The justices seem unlikely to adopt the most extreme arguments presented, but it seems equally likely they will uphold the Arizona laws in a way which would make it much harder to bring challenges to future laws which restrict voting access.

H.R. 1 would arguably address many of the concerns raised by the parties challenging Arizona’s laws. The law would allow for out-of-precinct ballots and bar laws which limit vote-handling, among many other changes. For instance, H.R. 1 would clarify the criteria that all states have to use in their redistricting process and mandate that all states use independent commissions for congressional redistricting. The law would effectively ban partisan gerrymandering, by outlawing consideration of voting history or incumbent addresses in setting district lines.

H.R. 1 also explicitly allows for the use of data-based analysis of maps to ensure that they meet the outlined redistricting criteria, something the Princeton team is well-equipped to support. These redistricting reforms collectively will have representational effects far broader than even the most draconian of voter suppression laws. H.R. 1 has just cleared the Democratic-controlled U.S. House of Representatives. But its fate in the Senate remains unclear: the law may be defeated to protect the filibuster, which has a history of being used to stop civil rights legislation.

If the Court dismantles the Voting Rights Act protections, and H.R. 1 is defeated in the Senate, what comes next? In this case, we would recommend several pathways for friends of reform. First, federal action. Even if Congress declines to pass H.R. 1, they could pass H.R. 4, the John Lewis Voting Rights Advancement Act.

And if neither federal law is passed, there are alternatives. Redistricting is generally fought on a state-by-state level. For this reason, we believe it is important for reformers to channel their inner federalist. Every state presents its own possible ways of blocking gerrymandering feedback loops. In many states, reformers can engage with redistricters directly. We encourage citizen input via Representable.org, focusing public attention on the issue, scoring plans as they are offered - and, if necessary, file lawsuits in state courts.

The Electoral Innovation Lab focuses on the science behind democracy reform—including work that promotes fair redistricting, helps reform partisan primaries, and supports making the voting process more voter-centric. Drawing on resources from the Princeton Gerrymandering Project, Princeton Election Consortium, and the Open Primaries Education Fund, the Lab uses data science, math, law, and public policy to produce empirical research, promote analytical tools, and host cross-discipline conversations to illuminate practical and innovative approaches to political reform. Specific project areas include technical and scholarly electoral reform research, state redistricting guides and electoral commission training guides, technical and legal analysis of legislative reform proposals, electoral issues and trend reports, data tools for electoral researchers, expert testimony, and advisory support.