The Supreme Court confronted the growing partisan divide over voting rights Tuesday in an Arizona case in which Democrats are challenging two Republican-sponsored rules that appeared likely to win approval from the justices.
One rule calls for throwing out ballots cast by voters who arrive at the wrong precinct on election day but want to vote there anyway. The other forbids “ballot harvesting,” making it a state crime for anyone — other than family members, caregivers or postal workers — to collect and return mail ballots.
In their comments and questions, most of the justices said they were in search of a middle-ground position, blocking new restrictions that could have a significant impact on Black, Latino or Native Americans, rather than automatically invalidating any rule that has different impacts based on race.
Both of Arizona’s rules were in effect during last year’s election, when Joe Biden narrowly defeated then-President Trump in the previously Republican-leaning state, which also elected another Democrat to the Senate. But since then, Republican state lawmakers there and in other GOP-controlled states have proposed dozens of new rules that could make it harder for Black people and Latinos to vote.
The Arizona case — Brnovich vs. Democratic National Committee — has drawn attention because it marks the first time the high court will write an opinion on how to apply a key part of the Voting Rights Act that Congress adopted as a compromise in 1982.
Section 2 of the Voting Rights Act forbids election rules that result in discrimination against voters based on their race or ethnicity, but it is unclear what that means. Republicans and the state of Arizona say that cannot mean that any rule can be deemed illegal if it can be shown to disproportionately affect different groups.
Washington attorney Michael Carvin, representing Arizona Republicans, said the court should uphold state election rules as long as voting is “equally open” to all groups. He cited as an example the requirement to register to vote in advance, which may exclude more racial minorities than white people.
During Tuesday’s argument, Justice Elena Kagan pressed the Republicans’ attorney to clarify when voting rules should be considered to be “equally open” to racial minorities.
What if the state has one polling place per county, which means that Black voters in urban counties have to wait 10 times as long as white voters, she asked.
Carvin said that should be illegal. “‘Equally open’ takes into account demographic reality,” he replied.
What about if a state with two weeks of early voting, including Sundays, passes a new law to close polls on Sunday, Kagan asked. Several Republican states are weighing proposals to do that.
Carvin said that should be permitted, even if it would have a discriminatory impact on Black voters. “Sunday is the day that we traditionally close government offices,” he said.
Kagan continued with another scenario: “The state says we’re placing all our polling places at country clubs.”
Carvin said that would be a problem and unfair to minority voters.
Other justices pointed to Kagan’s questions as evidence that it is not enough to say a voting rule is legal because minorities are not “denied” the right to vote.
But several of them also spoke approvingly of Arizona’s rule against ballot harvesting.
The court’s decision on that issue is not likely to affect California’s law permitting the practice. But a ruling that approves Arizona’s ban on the practice would likely encourage other GOP-led states to follow suit.
Eight years ago, the court’s conservatives struck down the best-known and most effective provision of the Voting Rights Act of 1965. Section 5 gave the federal government extra authority over elections in the Southern states and a few others that had a history of discriminating against Black and Latino voters.
But Chief Justice John G. Roberts Jr. said at the time that “things have changed in the South” so there was no longer a need for a special provision that prevented some states — among them Arizona — from making changes in their election rules without “preclearance” from Washington.
Democrats and civil rights advocates have been unable to win approval in Congress to revive that provision.
But Roberts emphasized in the 2013 decision that Section 2 of the Voting Rights Act — at issue now — remained in full effect nationwide. It is less clear, however, precisely what the section means.
One provision says states and localities may not enforce any “standard, practice, or procedure” that “results” in denying citizens the right to vote “on account of race or color.”
But it also says that conclusion turns on whether, “based on totality of circumstances,” Black, Latino and Native Americans have “less opportunity than other members of the electorate to participate in the political process.”
Democrats and civil rights advocates focus on the first sentence, and argue that any election rule that has more impact statistically on minority voters than on white voters is illegal. In Arizona, they said, Latino and Black voters were twice as likely as white voters to have their ballots not counted because they were cast in the wrong precinct.
The overall number affected was relatively small: Fewer than 4,000 ballots out of over 2 million were canceled in 2016 because they were cast in the wrong precinct. More than 80% of the state’s voters cast ballots early or by mail, and they are unaffected by the “wrong precinct” rule.
Nonetheless, the 9th Circuit Court of Appeals ruled that Arizona’s “wrong precinct” rule was illegal and discriminatory. Judges in the majority said precincts in the Phoenix area were changed often, and that resulted in more minorities having their ballots rejected.
In their appeal, the state’s Republicans and Arizona Atty. Gen. Mark Brnovich focused on the second clause of the law, and argued Arizona election rules should be upheld because in their “totality” they do not deny minorities an equal opportunity to vote. The Republicans said the Voting Rights Act imposes “an equal treatment requirement, not an equal outcome command.”
The Trump administration had filed a brief urging the court to uphold Arizona’s rules because they were not discriminatory. Last month the Biden administration told the court it disagreed with much of what was in the brief but agreed Arizona’s rules should not be struck down.
