Washington – The Supreme Court grappled Tuesday with the legality of two Arizona battlefield state electoral rules – one involving the return of mail-in ballots and the other, provisional ballots outside the precinct – in a case that could impose new limits on historic voting. Rights Act.
Voting rights advocates fear that if the High Court sides with Arizona Republicans, it could dismantle Section 2 of the Voting Rights Act, one of the last remaining enforcement mechanisms. 1965 law, after removing another provision eight years ago.
“Some things that are really pretty obvious burdens that you just know looking at is going to cause real hardship for some, for black voters or for Native American voters or for Latino voters, and then other restrictions where you can. say, well, you know, that’s a bit of a downside, but they could overcome that downside if they really wanted to, “Justice Elena Kagan said.” There’s a range of restrictions and a range of effects. that these restrictions cause. “
At issue in the dispute arechallenged by Democrats in 2016 as violations of section 2 of the Voting Rights Act, which prohibits discriminatory voting practices on the basis of race. The first, known as the “out of constituency” policy, rejects provisional ballots cast by a voter in the wrong constituency. The other, a ban on the so-called “ballot harvesting”, only allows a voter’s family member or caregiver to return a ballot by mail and imposes criminal penalties on those who do so. Rule.
The arguments lasted just under two hours in the legal battle, which presented a first test of voting rights before the broad conservative 6-3 majority in the Supreme Court.
Much of the argument centered on the proper test to determine whether the voting rules discriminate on the basis of race, in violation of Section 2.
Michael Carvin, an attorney representing the Arizona GOP, argued that the laws still provide voters with an opportunity to vote and are a safeguard against potential fraud.
“The question is not the outcome. The question is the opportunity and whether the state provided everyone with the same opportunity,” Carvin said. “Everyone has a full opportunity to vote. The state has not erected any barriers.”
Judge Sonia Sotomayor objected to the idea, saying there are Native American voters, as well as those in parts of the state where car ownership rates are low or do not have access to the postal system. , who may need help turning over a ballot or may inadvertently turn up in the wrong place.
“If you just can’t vote for these reasons and your vote isn’t counted, you’ve been denied the right to vote, haven’t you?” asked Sotomayor.
Chief Justice John Roberts and Justices Neil Gorsuch and Brett Kavanaugh noted the prevalence of both policies nationwide, including in states that do not have a history of racial discrimination in voting.
A commission headed by former President Jimmy Carter and former Secretary of State James Baker, for example, recommended in 2005 that what is known as the “ballot harvest,” where party officials or candidates collect and return the completed ballots in the mail, be disposed of because it is susceptible to fraud. And more than two dozen states have written rules that disqualify ballots cast in the wrong constituency.
“When a state rule is common in other states, it appears to be a circumstance that puts a thumb in the balance in favor of the legitimacy of the state rule and does not reflect discriminatory intent,” he said. said Kavanaugh.
He later said that looking at all of the circumstances, there must be “good rationale” for the rules at issue.
Regarding the ballot collection act, Kavanaugh said, “You have the Carter-Baker recommendation. Outside of the enclosure, it is common in other states. This, at first glance, at least to me, suggests a strong rationale for following these rules. “
Gorsuch, meanwhile, questioned whether Arizona should wait to adopt policies that mirror what other states have implemented in order to prevent potential fraud.
“Does Arizona have to wait for a fraud to happen in Arizona using a practice before they can ban it?” He asked Jessica Amunson, who advocated on behalf of Secretary of State Kate Hobbs, a Democrat.
Amunson, however, noted that the state criminalized a neighbor for helping another with his ballot.
“I am saying that criminalizing the non-fraudulent collection of ballots simply does not harm the state’s interest in preventing fraud,” she said.
Judge Samuel Alito feared that the positions of Hobbs and the Democrats would make “every voting rule vulnerable to attacks under Section 2”.
Bruce Spiva, an attorney representing the Democratic National Committee, responded that challenges to the laws were denied when courts found there was no disparate racial impact.
“The test used by the majority of circuits did not undermine a wide swath of neutral voting restrictions,” he said later. “Rather, it has been used to carefully review and, if necessary, repeal discriminatory election laws.”
The two rules at issue in the case remained in effect during the 2020 election, as the dispute unfolded in court. President Biden became the first Democratic presidential candidate to win Arizona since 1996.
A Federal District judge initially dismissed the Democrats’ claims of racial discrimination, saying they had failed to demonstrate that election procedures “impose[d] Significantly disparate charges on minority voters compared to non-minority voters. ”
A panel of the 9th U.S. Court of Appeals upheld the ruling, but last year the full court reconsidered the ruling and overturned the lower court.
Casting a shadow over the arguments – and the judges’ upcoming ruling expected by the summer – massive efforts in dozens of statesfollowing the 2020 general election. State lawmakers have introduced more than 250 bills that would restrict access to the vote, according to the Brennan Center.
If the Supreme Court were to limit challenges brought under Article 2, voting rights groups fear that it will be more difficult to protect voters from racial discrimination and more difficult to prove that violations of the law. the law has been committed.
In recent years, Democrats and voting advocates have sounded the alarm bells about the growing number of new rules restricting access to the ballot box following the 2013 Supreme Court ruling in Shelby County v. Holder. In that case, the court majority gutted part of the voting rights law that required states and counties with a history of electoral discrimination based on race to receive federal approval before they could change voting procedures. vote.
But the Democratic-led House is working to restore the preclearance requirement through legislation to expand voting rights. One measure, HR 1, would create automatic voter registration systems, expand access to advance and postal voting, and reduce partisan gerrymandering. Senate Republicans, however, are expected to block the bill if the House approves it.
Judge Amy Coney Barrett asked Arizona GOP attorney Carvin why Republicans were involved in the case and what their interest was in keeping the laws on the books.
“It puts us at a competitive disadvantage compared to Democrats,” Carvin said. “Politics is a zero-sum game, and every extra vote they get through illegal interpretations of Section 2 hurts us.”