In its first statement about voting rights since 2013, the Supreme Court on Thursday upheld a pair of Arizona voting regulations and gave a boost to Republican lawmakers enacting new election rules following the 2020 election.
The two rules at issue disqualify votes cast at the wrong precinct and limit third-party ballot collection, which critics call "ballot harvesting." The real flash point in Thursday’s case is the framework judges should use to identify voting procedures that violate Section Two of the Voting Rights Act, the focal point of election litigation.
Justice Samuel Alito delivered the opinion for a six justice majority over the dissent of Justice Elena Kagan for the liberal trio. The decision announced limits on the reach of the Voting Rights Act.
The ruling puts dozens of election rules promulgated in red states after the 2020 election on firmer footing. Many legal challenges to those procedures will arise under Section Two, and the Court’s decision has raised the bar leftwing challengers must clear to prevail.
"Today’s opinion is a significant win for the rule of law," Jason Snead of the Honest Elections Project told the Washington Free Beacon. "Thanks to the current ambiguity in the law, courts have considered virtually identical election laws and reached contradictory conclusions. The uncertainty has encouraged activist lawsuits and dissuaded states from making beneficial election reforms. Fortunately, the Court recognized the need to bring clarity and consistency to the law."
Bans on ballot harvesting in particular have been a top priority for Republican lawmakers. Arizona’s victory will buoy efforts across the country to regulate or abolish the practice. Democrats are strong proponents of third party ballot collection, citing the challenges of reaching shut-ins, the homeless, or rural voters without reliable mail service.
Section Two of the Voting Rights Act is at the center of Thursday's case. That provision bars any government action that prevents minorities from participating equally in the electoral process. Section Two has mostly come up in the redistricting context. The Supreme Court has not said much about what it means for election procedures like ballot harvesting.
As such, the stakes in the Arizona case were high. Democratic critics of Arizona’s laws hoped the Court would say voting rules that disproportionately affect minority groups and which are grounded in discriminatory history are unlawful. For example, many Native Americans in Arizona live on remote tribal lands without regular mail service, so the ban on ballot harvesting affects them more acutely than white voters.
"Throughout Indian Country, services such as election offices, post offices, and DLS can be unreasonably difficult to reach," lawyers for the National Congress of American Indians told the justices in legal papers. "Native Americans regularly have to travel hours to reach basic government services."
Republicans counter that sound election procedures can affect racial groups differently for all kinds of benign reasons. They also emphasize that the precinct rule and the ballot harvesting ban are common to states all over the country.
Writing for the Court, Alito said the key requirement of Section Two is that the political process be "equally open" to minority and non-minority voters. Several factors bear on whether the process is "equally open," the Court said.
One is the degree to which an election procedure makes voting more difficult. A contested procedure must block or seriously hinder would-be voters. "Mere inconvenience" is not enough, Alito wrote. Another is the scale of the disparity a rule might create among different racial groups. A procedure that has slightly larger consequences for a minority community isn’t necessarily unlawful, Alito said. And it’s relevant, the Court added, if a contested rule has a long pedigree or is in widespread use.
Applying those factors to the Arizona laws, the Court said both provisions should survive under Section Two. The justices elsewhere said that the states have a strong interest in heading-off voter fraud which can justify many election rules.
"It should go without saying that a state may take action to prevent election fraud without waiting for it to occur and be detected within its own borders," Alito wrote. "Section Two’s command that the political processes remain equally open surely does not demand that a state’s political system sustain some level of damage before the legislature can take corrective action."
In dissent, Kagan accused the majority of giving a cramped reading to the broad language of the Voting Rights Act for pure policy reasons. The factors the majority listed, Kagan said, have no basis in the statute.
"The majority today lessens the law—cuts Section Two down to its own preferred size," she wrote. "The majority creates a set of extra-textual exceptions and considerations to sap the Act’s strength, and to save laws like Arizona’s. No matter what Congress wanted, the majority has other ideas."
A federal trial court and a three-judge panel of the Ninth U.S. Circuit Court of Appeals sided with Arizona and upheld its rules. But a seldom-used "super panel" of 11 Ninth Circuit judges struck down the precinct and ballot harvesting regulations in January 2020.
The case is No. 19-1257 Brnovich v. DNC.
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Update 1:58 p.m.: This piece has been updated with additional information from the Court's opinion.