With one contentious election behind it, the Supreme Court this week will consider the rules for the next and how federal law protects minority voters as states across the nation race to revamp their regulations.
The cases at the Supreme Court involve two voting regulations from Arizona that are in common use across the country. One throws out the ballots of those who vote in the wrong precinct. The other restricts who may collect ballots cast early for delivery to polling places, a practice then-President Donald Trump denounced as “ballot harvesting.”
But the greater impact will be the test that the increasingly conservative court develops for proving violations of the VRA, as new laws are proposed and state legislatures begin redrawing congressional and legislative districts following the 2020 Census.
Reacting to Trump’s false claims of widespread fraud, Republican-led legislatures are racing to enact laws that cut back on easements to voting implemented in part because of the coronavirus pandemic. Even if investigations by Trump’s Justice Department and other Republican officials failed to substantiate the charges, they say changes are needed to assure public confidence in election outcomes.
The liberal Brennan Center for Justice says lawmakers in 33 states have crafted more than 165 bills to restrict voting so far this year — more than four times the number in last year’s legislative sessions. The group attributed the surge to “a rash of baseless and racist allegations of voter fraud” and accused lawmakers of a “backlash to historic voter turnout” last year.
Arizona leads the nation in restrictive proposals, the center said.
In 2013, the Supreme Court made it harder for civil rights groups to challenge such changes. It effectively eliminated the requirement that states proven to have discriminated against minorities in the past receive advance approval from a panel of federal judges or the Justice Department before changing their laws.
Civil rights groups openly worry that the 2013 decision in Shelby County v. Holder portends a further weakening of the federal law, as the court’s conservative majority has been bolstered since then.
The cases provide the court with “ample invitation to do a lot of harm,” said Myrna Pérez, who is director of voting rights and elections at the Brennan Center. She said the recent election and Trump supporters’ storming of the U.S. Capitol showed the protections are more necessary than ever.
“I think if there was one thing that the election and the insurrection showed us, it’s that not everyone buys into the idea of free, fair and accessible elections,” Pérez said in a call with reporters. “We are going to need our institutions like the (Supreme) Court to protect against those who would try to keep our country for themselves.”
While the law protects minorities from government discrimination, the cases at the Supreme Court illustrate how minority voting and partisan politics have become entwined.
The Democratic National Committee brought the challenge of Arizona’s laws, and the Republican Party is on the other side. The state’s Republican governor, attorney general and legislative leaders defend the laws; Arizona’s Democratic secretary of state is content with a federal appeals court striking them down.
The battle plays out in a changing state: President Biden won Arizona in November, only the second time a Democratic presidential candidate has prevailed since 1948. The election also provided the state with two Democratic senators for the first time since 1952.
The challenged laws were in place when Biden won the state by more than 10,000 votes, and Attorney General Mark Brnovich said in an interview that it was easier for him to defend the state’s election results from charges of fraud because of the “prophylactic measures” the state had put in place to ensure “voter integrity.”
He took away a different lesson from the election than Pérez. “If we learned anything from the last election cycle, it’s that people have to have confidence in the election results,” Brnovich said.
The court will be examining a part of the voter protection law called Section 2, which was amended in 1982 to prohibit any voting practice that “results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color.”
It most often has been employed against jurisdictions that rig election lines to dilute minority voters’ impact. But after the Shelby County decision, civil rights groups are using it to challenge restrictions they say place a heavier burden on minority groups.
Lower courts are working through how to apply the law in these new challenges, election law experts say.
“That the first Section 2 vote denial case comes to the Supreme Court as a partisan battle is exceptionally unfortunate,” University of California at Irvine law professor Richard Hasen wrote in an essay on Scotusblog.com. “Because it will focus the justices’ attention less on the cost of restrictive voting laws on minority voters and more on how the parties fight over voting rights rules for partisan gain.”
Both of the Arizona restrictions the court is considering are “commonplace election administration provisions used by Arizona and dozens of other states,” Brnovich told the Supreme Court in asking it to review a ruling of the U.S. Court of Appeals for the 9th Circuit.
After Democrats challenged the provisions, a district judge held a trial and upheld them. A panel of the 9th Circuit agreed on a 2-to-1 vote.
But a larger panel of the 9th Circuit reviewed those decisions and said that the way the provisions were applied in Arizona disproportionately affected Black and Hispanic voters.
Those judges said that the state changed locations of voting places more often in minority communities, leading to voter confusion, and that the rates of discarded “out of precinct” (OOP) votes were far higher in Arizona than in other states. Arizona throws out the entire ballot, even if some races — governor, for instance — are not affected by the voter’s precinct location.
Democrats said that between 2008 and 2016, Arizona discarded 38,335 OOP ballots in general elections, all of which were cast by registered, eligible voters.
The judges said the ban on collecting ballots was intentionally passed to harm minority voters, who they said were more likely to be homebound or disabled and also lacking reliable means to vote in person. Native Americans had in the past been served by community or political leaders who collected early vote ballots, the court said.
“There is no evidence of any fraud in the long history of third-party ballot collection in Arizona,” Judge William A. Fletcher wrote. The court’s 6-to-5 ruling that the discrimination was intentional is a rarity in federal court reviews of state actions.
Arizona countered that it makes exceptions for ballot-handling by family and household members and caregivers, and that nothing prevents Arizona from taking action to prevent fraud.
In the interview, Brnovich said the court focused on the restrictions rather than the other ways the state made it easier for voters to request ballots, vote early, use drop-off boxes or visit voting centers before Election Day.
The Supreme Court accepted the case before the election, and the Trump administration supported Arizona in defending its laws. But civil rights groups were disappointed when the Justice Department recently declined to change its position.
While a career lawyer in the solicitor general’s office separated the Biden administration from the department’s previous view of how Section 2 should be interpreted, he said the department “does not disagree” that Arizona’s restrictions do not violate the law.
Brnovich translated: "Even the Biden Department of Justice seems to agree that our voting laws do not violate Section 2 of the Voting Rights Act, and I think that's an indication that maybe the facts aren't as egregious as the DNC wants everyone to believe."
The cases are Brnovich v. DNC and Arizona Republican Party v. DNC.