WASHINGTON – The Supreme Court appeared poised on Tuesday to maintain two voting restrictions in Arizona, one forcing election officials to reject ballots cast in the wrong constituency and the other making ballot collection a crime for campaign agents, community activists, and most others. at the polling stations, a practice that critics call “the collection of ballots”.
Several members of the court’s Conservative majority said the restrictions were reasonable, mundane and at least in part endorsed by bipartisan consensus reflected in a 2005 report signed by former President Jimmy Carter and James A. Baker III, which served as Secretary of State under President George. Bush.
The Biden administration also told judges in an unusual letter two weeks ago that Arizona’s measures appeared legitimate.
The court heard the case as voting rights disputes once again became a flashpoint in U.S. politics, with Democrats arguing that Republicans are increasingly trying to suppress the vote, to thwart the will to majority and deny equal access to minority voters and others who have been under-represented at the polls.
The judges were harder to read on the larger issue of the case, Brnovich v. Democratic National Committee, No. 19-1257, which was filed by the Democratic National Committee in 2016 to challenge voting restrictions under section 2 of the Voting Rights Act. from 1965.
This part of the law took on added importance after the Supreme Court effectively overturned the core of the law, its section 5, which required the federal government’s prior approval of changes to voting procedures in areas of the country with history of racial and other discrimination.
The Supreme Court has never considered how section 2, which allows for after-the-fact challenges to laws that result in disproportionate voting limitations for members of minority groups, applies to voting restrictions. This provision has been used mainly in redistribution cases, where the question was whether the electoral cards had illegally diluted the voting power of minorities. Its role in tackling the denial of the right to vote itself has received much less attention.
Section 2 prohibits any voting procedure which “results in a denial or reduction of the right of any citizen of the United States to vote on the basis of race”. This occurs, the provision continues, when, “on the basis of all the circumstances”, racial minorities “have fewer opportunities than other members of the electorate to participate in the political process and elect representatives of the their choice”.
During two hours of argument, the judges struggled to identify a standard that would allow courts to distinguish legal restrictions from inappropriate restrictions.
The court did not seem receptive to an extreme test proposed by Michael A. Carvin, an Arizona Republican Party attorney, who said race-neutral election regulations that impose ordinary burdens on the vote are not not at all challenged under section 2. Most judges seemed to accept that imposing a significant burden on minority voters might be against the law.
But there was some disagreement about what was considered substantial and what justifications States could offer for their restrictions. The more conservative members of the court seemed inclined to demand significant disparities unrelated to socio-economic conditions and to accept the need to tackle even potential electoral fraud as sufficient reason to impose restrictions on voting.
In an exchange with Mr. Carvin, Judge Elena Kagan tested the limits of her argument. When asked if much longer lines at polling stations in minority neighborhoods could be challenged under the law, he said yes. He gave the same answer when asked about the location of all polling stations in campaign clubs away from minority neighborhoods.
But he said the reduction in Sunday voting, although heavily cited by black voters, was legal, as was restricting voting to working hours on election day.
Arizona Attorney General Mark Brnovich said the disparate effect on minority voters must be substantial and caused by the contested practice rather than some other factor. Several judges suggested that the wording was little different from what the lawyers challenging the law had proposed.
“The longer this argument lasts,” said Justice Kagan, “the less clear I am about how the parties’ positions differ.”
Justice Stephen G. Breyer echoed this point. “A lot of parties on both sides are pretty close to the norm,” he said.
Justices Kagan and Breyer, both members of the court’s liberal wing, may have played the defense, hoping the court’s decision, expected by July, would leave Section 2 more or less unscathed.
But it was not certain that the lower courts would be greatly helped if the Supreme Court took a vague and flexible approach.
Justice Amy Coney Barrett suggested the court adopt a clear standard. “All the electoral rules,” she said, “are going to make it easier for some to vote than others.”
Last year, the U.S. Court of Appeals for the Ninth Circuit in San Francisco ruled that Arizona’s two restrictions violate Section 2 because they disproportionately disadvantage minority voters.
In 2016, black, Latino and Native American voters were about twice as likely to vote in the wrong constituency as white voters, wrote Judge William A. Fletcher for the majority in the 7-to-4 decision. Among the reasons for this , he said, there were “frequent changes in the polling stations; confused placement of polling places; and high rates of residential mobility. “
Likewise, he wrote, the ban on ballot collectors has had a disproportionate effect on minority voters, who use ballot collection services much more than white voters because they are more likely to be poor, older, housebound or disabled; lack of reliable transportation, child care and courier services; and need help understanding the voting rules.
Judge Fletcher added that “there is no evidence of fraud in the long history of third party ballot collection in Arizona.”
In dissent, four justices wrote that the state’s restrictions applied neutrally to all voters.
Lawmakers had the right to try to prevent possible fraud, wrote Judge Diarmuid F. O’Scannlain. “Given its interest in addressing its valid concerns of voter fraud,” he wrote, “Arizona was free to enact prophylactic measures even if no evidence of actual voter fraud lay before the legislature.
The appeals court suspended its decision and restrictions were in place for the November elections.