By Cornell William Clayton and Michael Ritter
Arizona may keep two voting laws that Republicans say protect election integrity and Democrats believe will make it harder for some residents to cast ballots.
That’s the United States Supreme Court’s decision in Brnovich v. Democratic National Committee, one of the decade’s most important voting rights cases.
One Arizona law challenged in the case, H.B. 2023, makes it a felony for anyone other than a family member, caregiver or postal worker to collect and deliver ballots. The other requires ballots to be cast in the assigned precinct where a voter lives. If a person votes at the wrong polling place, Arizona election officials will reject their ballot.
The Democratic National Committee argued at the Supreme Court that both Arizona rules disproportionately hurt minority voters. The majority of justices, split 6-to-3 along ideological lines, disagreed.
“Voting necessarily requires some effort and compliance with some rules,” Justice Samuel Alito wrote for the court’s majority on July 1, 2021. Merely making it more “inconvenient” for certain groups to vote does not violate federal law, according to the court.
The ruling will have national consequences. Arizona is one of 14 states restricting third-party ballot collection. It is one of 26 that require in-precinct voting.
The Supreme Court’s decision makes it more difficult to legally challenge such laws, which, according to our research on elections, significantly affect voting, particularly among racial minorities and the poor.
From Arizona to the Supreme Court
In Arizona, nearly 80% of voters in 2018 cast their ballots by mail. But mail service is not always available in rural areas of the state where many Hispanic and Native Americans live. Only 18% of Native Americans in the state, for example, have access to home mail delivery.
The Tohono O’odham reservation, which covers an area larger than Rhode Island and Delaware, has no home delivery and only one post office. These rural voters often rely on friends or get-out-the-vote workers to deliver their ballots to polling stations.
The burdens on rural and tribal voters were cited in a 2016 lawsuit filed by the Democratic National Committee to block the Arizona ballot collection ban and out-of-precinct vote restriction. The Democratic National Committee claimed both policies violated Section 2 of the federal Voting Rights Act, which prohibits practices that “result in a denial or abridgment of the right (to vote) on account of race or color.”
The lawsuit, which was supported by Arizona’s Democratic secretary of state, also argued that the ballot collection ban purposely targeted minority voters. That would violate the 15th Amendment to the U.S. Constitution, which prohibits states from intentionally denying the right to vote on account of race.
Arizona’s Republican attorney general and the state’s Republican Party argued the laws were race-neutral restrictions that do not impede Arizonans’ equal opportunity to vote and were enacted to safeguard election integrity.
The case reached the Supreme Court after an appeal process in which the full Arizona Ninth Circuit Court ultimately determined that the state’s ballot collection ban violated both Section 2 of the Voting Rights Act and the 15th Amendment because minority voters were more likely than nonminorities to rely on others to return their ballots. And the law could not be credibly defended as an election integrity measure because judges saw no evidence that third-party ballot collection led to vote fraud in the past.
The appeals court also found that the out-of-precinct policy violated Section 2 of the Voting Rights Act. Arizona officials frequently changed polling places in urban counties, so voters there easily made mistakes. In 2016, 3,709 out-of-precinct Arizona ballots were rejected, and minority voters were twice as likely as whites to have their ballots discarded in that process.
The justices’ reasoning
In deciding against Arizona in 2020, the Ninth Circuit Court relied on a “results test.” This means that a law does not require proof of an intent to discriminate to be struck down. Judges ask only whether the law disproportionately affects historically disadvantaged groups.
In overturning the Ninth Circuit, the Supreme Court concluded the Arizona laws did not intentionally discriminate and rejected the logic of the “results test.”
Section 2 of the Voting Rights Act still prevents states from enacting voting rules that purposely discriminate. But proving intentional discrimination is much more difficult than showing a law disproportionately impacts minority voting.
The three liberal justices on the court, led by Justice Elena Kagan, dissented.
The “Court has (yet again) rewritten — in order to weaken — a statute that stands as a monument to America’s greatness, and protects against its basest impulses,” Kagan wrote.
Electoral consequences
The Brnovich ruling means Arizona’s voting restrictions stand. It also gives other states greater latitude when adopting similar rules and limits the federal government’s ability to police restrictive voting practices.
Since the 2020 presidential election, legislators in at least 48 states have introduced 389 so-called “election integrity” bills placing new restrictions on voting. Of these, 22 have been enacted.
For example, Georgia’s March 2021 election law imposes new limits on the use of absentee ballots, makes it a crime for outside groups to provide food and water to voters waiting at polling stations and hands greater control over election administration to the Republican-led state legislature.
On June 25 the U.S. Department of Justice sued Georgia, arguing these rules violated Section 2 of the Voting Rights Act and that Georgia’s law is intended to discriminate.
Before 2013, states with a history of racial discrimination needed federal approval before enacting new voting laws, under Section 5 of the Voting Rights Act. But in 2013, the Supreme Court in Shelby County v. Holder – an Alabama voting rights case – dismantled these procedures.
As a “preclearance” state, Arizona was previously blocked by the federal government from enacting voter restrictions like H.B. 2023. Other former preclearance states that have passed restrictive laws since 2013 include Georgia, Texas and Florida.
Since Shelby County v. Holder, voting rights advocates have had to rely on a different part of the Voting Rights Act – Section 2 – to block these restrictive voting laws. Brnovich v. DNC was the first Supreme Court test of this strategy.
The court’s decision severely cripples it, further eroding the Voting Rights Act. Attention now shifts to Congress to see whether it will respond.
Cornell William Clayton is C.O. Johnson Distinguished Professor of Political Science, Michael Ritter is Assistant Professor of Political Science, both at Washington State University at Washington State University. This article is republished from The Conversation under a Creative Commons license. Read the original article.
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Ray W. says
The Court overturned a “results test”, which test required lower courts to analyze statutory language for evidence of a disproportionate effect on historically disadvantaged groups. If I am reading the article accurately, the Court ruled that lower courts, when addressing challenges to state legislation, must now find intentional discrimination as the motive for the legislation, a high bar for a plaintiff to hurdle, as legislators almost always hold committee hearings prior to the legislation coming up for vote on the floor of the full chamber, during which hearings the committee receives sworn testimony from witnesses, expert and otherwise, and legislators are allowed to comment on their intent. In the future, with full knowledge of the new standard, whenever Republican legislators in a Republican majority state introduce legislation to restrict voting rights, I suspect that Republican investigating committee members will not ask witnesses if they intend to use the new legislation to discriminate against historically disadvantaged groups. I also suspect that Republican investigating committee members will trip over themselves in giving voice to the many reasons they can find to justify the legislation, but not one of the stated reasons will be to intentionally discriminate against historically disadvantaged groups. Remember, the result does not count any more, only the stated intent.
One need only recall legislation passed by Florida Republicans about a decade ago that placed monetary caps on medical malpractice claims. Multiple expert witnesses told committee members that doctors were leaving Florida to practice in other states that were allegedly more reasonable in approaches to medical malpractice legislation. Other witnesses testified that excessively large medical malpractice awards were driving premiums ever higher and that a cap would curb premium increases. A few years passed and Florida’s Supreme Court declared the legislation unconstitutional. As it turned out, doctors were never leaving the state because of Florida’s old legislative scheme. In truth, while doctors do move from state to state, the rate of those moving out of Florida had not changed, nor did the rate of doctors leaving Florida drop once the malpractice limits were enacted into law. As for insurance premiums rising because of medical malpractice verdicts, the evidence showed that medical malpractice insurance premiums continued to rise after the legislation passed and insurance companies simply kept the profits. Florida’s Supreme Court found that the expert witnesses had been less than fully discerning in their claims to the committee and struck down the legislation. After all, legislation that places limits on the value of an injury, which is defined as an individual right, must be supported by valid claims. Simply sounding good to the base doesn’t cut it. Once the several claims were established as invalid, the foundation for the legislation disappeared. In other words, the testimony just could not pass the smell test. When it is someone else’s injury, it is OK to place limits on damages. When it is your own injury, it is an outrage.
Speaking of outrage, I recall receiving a call from a woman who advised that she headed the Florida chapter of a parent’s organization for students attending a prestigious institution. She told me she was on her way to Tallahassee to meet with “my” legislator to secure another year’s funding for the chapter. The complaint affidavit filed against the student reflected an accusation that my client had fondled an underage girl’s breasts by touching her sweater, which covered her bra, while both were in Daytona for Spring Break. She had returned to his motel room late at night, only to be told to leave by his roommates; he was asleep in another room. Angered by the rejection by the intermediary, she returned to her motel room and told her mother, who called in the complaint. My caller commented that the young woman must have consented to the contact. She expressed outrage when I told her consent was not a defense. She immediately announced a plan to talk to “my” legislator about getting the “consent is not a defense” language changed. I wished her well, but advised that I would not get my hopes up about getting a conservative legislator to go on record as wanting to delete that particular language from the lewd & lascivious statute. The complaint never made it past the intake stage.
This Supreme Court ruling will be with us for a long time. Any structure created by the mind of mankind can be abused by the mind of mankind and intent to discriminate will prove to be an elusive truth.
Fredrick says
When will far left liberals finally get it? Americans want and demand that there can be no question in the integrity of voting. And requiring someone to put out a little effort to perform their duty and right as an American is not “racist”, does not cause undo restriction to someone who wants to vote. If you want to cast a ballot, and you need help getting to voting location there are ways to do it. D0es anyone remember pictures of elderly Iraqi’s who walked miles and miles, under the threat of being killed to cast their vote and hold up their finger that was dipped in purple die to show they voted in a free election. If you want to cast a vote you can find away but if the integrity of the process cannot be assured it means nothing. Stop the bullshit and calling everything racist and implying people are incapable of getting an ID, and incapable of getting someone to take them to voting place or make other arrangements. You just look foolish.
Stretchem says
I think we may be making mountains out of molehills here. It’s not like these states and districts in these states are stepping up to the plate and hitting home runs every time. These are last ditch efforts to grab what usually amount to miniscule votes. The GOP has been in a nosedive for years or even decades now, and their attempted fixes bite their noses off to spite their faces. Rather than address the needs of the entire population, they’ll focus on the select few guaranteed votes, while subsequently riling up the rest of the populace who rally and show up to oust them. Arizona (and Georgia) are prime examples of this shift and tolerance levels, with Florida soon to follow. People in America are sick of the division. Sick of the racism. Sick of the misogyny. Sick of the homophobia. Sick of the modern fascist GOP.
Pogo says
@Stretchem
We’re sick (and literally dying) because of.
I hope you’re correct that the fascists are digging their own grave, but in view of their shameless gaslighting and baldfaced lying (abetted by more money than God has) I’m not hopeful.
Moreover, Jim Crow 2.0, includes these pricks’ (Republicans) boldest nonsense ever. If they lose, they can simply declare they suspect cheating and preempt the election. Do you have the slightest doubt that they won’t steal whatever they please? Hell, it’s what they do. Period.
Pogo says
@Oops
Meant to say: Do you have the slightest doubt that they will steal whatever they please?
Fredrick says
@Stretchen… You are 100% correct. People in America are sick of the division. They are sick of the division because by people who cry racism, misogyny and homophobia whenever someone disagrees with you.
Steve says
It’s a backfire mechanism that worked beautifully in the runoffs after Election. Thanks to a certain someone who cant admit he lost by a landslide. Get over it already LOL
erobot says
All residents can’t vote. Only residents who are citizens can vote if they are of legal age and can show proof of same.