Washington — The U.S. Supreme Court is poised to take up a major voting rights dispute Tuesday that poses a crucial test of the court’s new conservative tilt, as states weigh expansive changes to election procedures that would restrict voting access.
The legal battle before the justices, which centers around a pair of election rules in the battleground state of Arizona, is set against the backdrop of the 2020 general election, during which Republicans and former President Donald Trump made unfounded claims of widespread voter fraud and sought to unwind policies that made it easier to vote amid the ongoing coronavirus pandemic.
Now, voting rights groups worry that a ruling from the Supreme Court’s 6-3 conservative majority ahead of the next election cycle will further weaken the landmark Voting Rights Act, a key portion of which was dismantled by the justices in 2013.
The case set to be argued Tuesday dates back to 2016, when Democrats challenged two Arizona voting laws ahead of the general election, arguing they adversely and disparately affected Hispanic, African American and Native American voters in the state in violation of Section 2 of the Voting Rights Act. That provision of the civil-rights era law prohibits voting practices that result “in the denial or abridgement” of the right to vote on the basis of race.
The first measure, the out-of-precinct policy, discards ballots from those who vote in the wrong precinct. The second rule outlaws so-called “ballot harvesting” and allows only election officials, mail carriers, family or household members, or caregivers to return another person’s mail-in ballot. Those who run afoul of the ballot-collection law face up to two years in prison and a $150,000 fine.
A federal district court in Arizona rejected the Democrats’ claims, finding they failed to show the two election rules “impose[d] meaningfully disparate burdens on minority voters as compared to non-minority voters.”
The ruling was appealed to the 9th U.S. Circuit Court of Appeals, and a divided three-judge panel affirmed. But last year, the San Francisco-based court reviewed the decision and then reversed it, finding the two election rules “have a discriminatory impact on American Indian, Hispanic, and African American Voters in Arizona,” in violation of Section 2.
The 9th Circuit also ruled Democrats’ successfully demonstrated the challenged policies “imposed a significant disparate burden on its American Indian, Hispanic and African American citizens, resulting in the ‘denial or abridgement of the right of its citizens to vote on account of race or color.'”
Although the 9th Circuit struck down the election rules, they remained in place for the 2020 general election.
In urging the Supreme Court to take up the dispute, Arizona Attorney General Mark Brnovich, a Republican, warned the 9th Circuit’s ruling threatens similar laws on the books in other states and other “sensible” election rules.
“Only this court can clarify this area of the law,” Brnovich wrote in a filing with the court. “This court has never spoken on how Section 2 applies to vote-denial claims, even though state election laws have faced a wave of this litigation since Shelby County v. Holder.”
Brnovich is squaring off against Democrats, including Arizona’s Democratic Secretary of State Katie Hobbs, who has encouraged the court to affirm the 9th Circuit’s decision.
“Section 2 does not give defendants a get-out-of-jail-free card for one policy with discriminatory intent just because they have other nondiscriminatory policies,” Hobbs told the court. “The entire political process must be ‘equally open’ to voters of all races. If the government gives voters of one race more opportunity to vote than voters of other races, it is no answer to say the process is open enough for the disadvantaged voters.”
Voting rights activists have warned that the court could deal a blow to the Voting Rights Act if the court rules that claims brought under Section 2 can only apply to policies with intentional discrimination, rather than challenging policies that result in discrimination.
“Even if they don’t find Arizona’s policy to be discriminatory, they can make that determination and not take up some of these extreme arguments that are being made to do harm to the remedy that we have left under the Voting Rights Act,” Sean Morales-Doyle, deputy director for voting rights and elections at the Brennan Center for Justice, told reporters on a call last week.
The court is hearing the case as lawmakers around the country are considering sweeping changes to state election laws following the 2020 election. More than 40 states have introduced over 250 bills that would restrict voting access, according to the Brennan Center.
Meanwhile, at the federal level, the Democrat-led U.S. House is pursuing a wide-ranging election-reform package that would create automatic voter registration systems, expand access to early and absentee voting and curb partisan gerrymandering. Senate Republicans are expected to filibuster the bill if it passes the House.
The Justice Department under former President Trump supported Arizona Republicans in the dispute and defended the election rules in a brief filed with the court as enacted “to promote the orderly administration and integrity of its elections.” But in February, Deputy Solicitor General Edwin Kneedler told the Supreme Court that while the department, now under President Biden, “does not disagree with the conclusion in that brief that brief that neither Arizona measure violates Section 2’s results test, the Department does not adhere to the framework for application of Section 2 in vote-denial cases set forth in the brief.”
The legal battle also presents a key test of voting rights for the Supreme Court’s conservative majority, which expanded to 6-3 following the appointment of Justice Amy Coney Barrett in October.
The justices dealt a blow to the Voting Rights Act in 2013, when a majority of the high court gutted a provision of the law that required states and counties with a history of race-based voter discrimination, primarily in the South, to receive federal approval before changing voting laws.
The Supreme Court’s ruling in that case, Shelby County v. Holder, paved the way for some states that were previously subject to the Voting Rights Act’ preclearance requirement to enact more stringent voting laws, while others have drastically reduced the number of polling places available to voters.
The high court agreed to hear the challenge to Arizona’s laws in early October, and a decision is expected by the end of June.