A Republican-dominated Supreme Court this morning issued another ruling granting wide deference to state legislatures in crafting voting rules and, according to some critics, further gutting the Voting Rights Act of 1965 (as amended).
NPR‘s Nina Totenberg (“The Supreme Court Deals A New Blow To Voting Rights, Upholding Arizona Restrictions“):
The U.S. Supreme Court on Thursday narrowed the only remaining section of 1965 Voting Rights Act, rendering the landmark civil rights law close to a dead letter.
Arizona had banned so-called “ballot harvesting” as well as a policy that threw out an entire ballot if it was cast in the wrong precinct.
The 6-3 vote was along ideological lines. Justice Samuel Alito write the majority opinion for the court’s conservatives. Justice Elena Kagan and the court’s two other liberals dissented.
The “Court declines in these cases to announce a test to govern all VRA [Section 2] challenges to rules that specify the time, place, or manner for casting ballots,” Alito wrote. “It is sufficient for present purposes to identify certain guideposts that lead to the Court’s decision in these cases.”
The landmark law, widely hailed as the most effective piece of civil rights legislation in the nation’s history, was reauthorized five times after its original passage in 1965, but for all practical purposes, all that is left of it now is the section of the law banning vote dilution in redistricting, based on race.
Eight years ago, the court by a 5-to-4 majority gutted the law’s key provision, which until then required state and local governments with a history of racial discrimination in voting to get approval from the U.S. Justice Department for any changes in voting procedures.
When that provision was struck down by the court in 2013, the only protections for voting rights that remained in the law were in Section 2.
Though Section 2 has largely been used to prevent minority vote dilution in redistricting, importantly, it does bar voting procedures that “result in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color.” So the Arizona case was viewed as particularly important because it was the first time the court dealt with a claim of vote denial under Section 2 and how to evaluate it.
“This Court has no right to remake Section 2,” Kagan wrote in her dissent. “Maybe some think that vote suppression is a relic of history—and so the need for a potent Section 2 has come and gone. … But Congress gets to make that call. Because it has not done so, this Court’s duty is to apply the law as it is written. The law that confronted one of this country’s most enduring wrongs; pledged to give every American, of every race, an equal chance to participate in our democracy; and now stands as the crucial tool to achieve that goal. That law, of all laws, deserves the sweep and power Congress gave it. That law, of all laws, should not be diminished by this Court.”
Specifically at issue were two laws. One barred the counting of provisional ballots cast in the wrong precinct. The other barred the collection of absentee ballots by anyone other than a family member or caregiver.
Arizona Republicans and the Republican National Committee argued that both were needed to prevent fraud. But the Ninth Circuit Court of Appeals ruled that there was no record of fraud, and that there was evidence that these two provisions ended up denying many minorities the right to vote. The appeals court noted, for instance, that ballot collectors were needed in some large, rural and remote parts of the state. It pointed, for instance to the Navajo Nation, an area the size West Virginia, where there are few post offices or postal routes, and where people without cars often have no way to send their ballots without collectors picking them up.
NYT‘s Adam Liptak (“Supreme Court Upholds Arizona Voting Restrictions“) adds:
The decision was the court’s first consideration of how a crucial part of the Voting Rights Act of 1965 applies to voting restrictions that have a disproportionate impact on members of minority groups, and it was issued as disputes over voting rights have taken center stage in American politics.
As Republican-controlled state legislatures increasingly seek to impose restrictive new voting rules, Democrats and civil rights groups have turned to the courts to argue that Republicans are trying to suppress the vote, thwart the will of the majority and deny equal access to minority voters. The decision suggested that Supreme Court would not be inclined to strike down many of the measures.
The larger message of the ruling was that the Voting Rights Act of 1965, hobbled after the Supreme Court in 2013 effectively struck down its central provision, retains only limited power to combat voting restrictions said to disproportionately affect minority voters’ access to the polls.
[…]
The larger battle in the case was not whether the particular challenged restrictions should survive. The Biden administration, for instance, told the justices in an unusual letter that the Arizona measures did not violate Section 2. But the letter disavowed the Trump administration’s interpretation of Section 2, which would have limited its availability to test the lawfulness of all sorts of voting restrictions.
Section 2 bars any voting procedure that “results in a denial or abridgment of the right of any citizen of the United States to vote on account of race.” That happens, the provision goes on, when, “based on the totality of circumstances,” racial minorities “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.”
WaPo‘s Robert Barnes (“Supreme Court upholds Arizona voting laws a lower court found were unfair to minorities“) adds:
[T]he greater impact could be how VRA relates to an outpouring of new laws enacted by state legislatures that have changed voting procedures, and on the drawing of congressional and legislative districts following the 2020 Census.
The decision was hardly surprising in light of recent Supreme Court decisions in related cases. The Court has been very reluctant to second guess even rather obviously partisan measures that had a disparate impact on minority voters and these restrictions are comparatively minor. And, of course, the most liberal Justice on those courts has been replaced by a much-more-conservative Justice.
The opinion by Alito is complicated and rather defies excerpting, stretching over 37 pages of a PDF. But his basic analysis is rather straightforward and reaches the same conclusion as the trial court and the original panel at the 9th Circuit. That people can’t vote in the wrong precinct seems rather obvious. And prohibiting anyone but “a postal worker, an elections official, or a voter’s caregiver, family member, or household member” from collecting mail-in ballots hardly seems burdensome enough to overturn the legislature’s Constitutional prerogatives. And, given that even the Biden Justice Department agrees that these provisions don’t violate the CRA, there’s no reason to interpret it otherwise.
As a matter of policy, though, I think the full 9th Circuit and the SCOTUS dissenters, led by Kagan, have a pretty good argument as to the latter. Namely, that the restriction disproportionately impacts poor, Black, Hispanic, and American Indian voters in the name of preventing fraud when there is no real evidence that there is significant fraud.
But Alito makes some solid counters. I highlight only a handful:
First, Arizona’s laws are actually much more conducive to voting now than they—and pretty much any state’s in the country—were in 1982, when the VRA provision in question was put into place. So it’s rather hard to make the argument that they violate said provision. (And, again, the Biden DOJ agrees.)
Second, the plaintiffs didn’t show an inordinate burden as a result of these provisions. The courts have been pretty clear that “mere inconvenience” is insufficent.
Third, because Arizona provides so many convenient ways of voting, it’s hard to argue that a bit of inconvenience in one of many options is a substantial violation of the right to vote.
Fourth, Arizona went out of its way to make sure people knew what district to vote in, going so far as to send multiple mailings, including a sample ballot, to each household.
Fifth,
[T]he racial disparity in burdens allegedly caused by the out-of precinct policy is small in absolute terms. Of the Arizona counties that reported out-of-precinct ballots in the 2016 general election, a little over 1% of Hispanic voters, 1% of African-American voters, and 1% of Native American voters who voted on election day cast an out-of-precinct ballot. For non-minority voters, the rate was around 0.5%. A procedure that appears to work for 98% or more of voters to whom it applies—minority and non-minority alike—is unlikely to render a system unequally open.
Finally, he closes with a response to what I think is Kagan’s strongest point:
The Court of Appeals viewed the State’s justifications for HB 2023 as tenuous largely because there was no evidence of early ballot fraud in Arizona. But prevention of fraud is not the only legitimate interest served by restrictions on ballot collection. Third-party ballot collection can lead to pressure and intimidation. Further, a State may take action to prevent election fraud without waiting for it to occur within its own borders. (d) HB 2023 was not enacted with a discriminatory purpose, as the District Court found. Appellate review of that conclusion is for clear error. The District Court’s finding on the question of discriminatory intent had ample support in the record. The court considered the historical background and the highly politicized sequence of events leading to HB 2023’s enactment; it looked for any departures from the normal legislative process; it considered relevant legislative history; and it weighed the law’s impact on different racial groups. The court found HB 2023 to be the product of sincere legislative debate over the wisdom of early mail-in voting and the potential for fraud. And it took care to distinguish between racial motives and partisan motives. The District Court’s interpretation of the evidence was plausible based on the record, so its permissible view is not clearly erroneous. The Court of Appeals concluded that the District Court committed clear error by failing to apply a “cat’s paw” theory—which analyzes whether an actor was a “dupe” who was “used by another to accomplish his purposes.” That theory has its origin in employment discrimination cases and has no application to legislative bodies. [redactions of citations made for ease of reading]
In the absence of a set of uniform voting rules established by Congress for all 50 states—which I would prefer but realize is unlikely to pass—states are empowered to enact reasonable rules of their own. In the totality of things, I agree with the Majority that these restrictions are reasonable.
Indeed, as the Case Syllabus begins,
Arizona law generally makes it very easy to vote. Voters may cast their ballots on election day in person at a traditional precinct or a “voting center” in their county of residence. Ariz. Rev. Stat. §16-411(B)(4). Arizonans also may cast an “early ballot” by mail up to 27 days before an election, §§16-541, 16-542(C), and they also may vote in person at an early voting location in each county, §§16-542(A),
Even a decade ago, that would have been deemed wildly progressive. Virginia is the first state I have lived in that allowed early voting other than absentee ballots under very limited circumstances. It’s not at all unreasonable, given these wide array of options, to expect voters who show up in person to do so at the right place and those who mail their ballots in to do so themselves or with the help of a family member.
