WASHINGTON (CN) — In a boon to conservative state legislatures that have been adopting harsh voter restrictions in the wake of the 2020 election, the Supreme Court split 6-3 Thursday to uphold two Arizona laws found to suppress minority votes.
The majority opinion by Justice Samuel Alito drove a scathing dissent from Justice Elena Kagan, distraught that the court elected here to weaken the Voting Rights Act of 1965 for the second time in eight years. Kagan said the landmark law represents the best of America, as it marries democracy and racial equality, and the worst of America, as it remains necessary.
"What is tragic here is that 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," she wrote, joined by Justices Stephen Breyer and Sonia Sotomayor. "What is tragic is that the Court has damaged a statute designed to bring about 'the end of discrimination in voting.'"
Arizona passed the more recent of the two contested laws here in 2016, making it a felony punishable by prison and a $150,000 fine to collect early ballots from voters. Relatives of the voters are excepted from the prohibition, as are caregivers, mail carriers and election officials. The state's other law, a bar against voters from casting ballots outside of their precinct, dates back to 1970.
Though Democrats note that such policies disproportionately affect voters of color — populations of whom tend to move more often and to live in precincts where the polling locations frequently change — Arizona denies that its policies run afoul of Voting Rights Act.
“Today is a win for election integrity safeguards in Arizona and across the country,” Arizona Attorney General Mark Brnovich said in a statement. “Fair elections are the cornerstone of our republic, and they start with rational laws that protect both the right to vote and the accuracy of the results.”
Jessica Amunson, counsel to Arizona Secretary of State Katie Hobbs, the first Democrat to hold the post since 1995, found a silver lining for the challengers in Thursday's ruling.
“While the decision is not what we hoped for, the Court did not give petitioners what they wanted either. The petitioners swung for the fences, trying to get the Court to question the constitutionality of the Voting Rights Act and render it inapplicable to a broad swath of election laws," Amunson said. "They struck out. The Court does not so much as hint at a constitutional problem, and it affirms that facially neutral election laws remain subject to challenge.”
Section 2 of the federal law says states cannot impose any rule “which results in a denial or abridgment” of the right to vote on the basis of race, and Arizona's Republican Legislature emphasized that discriminatory results are not the same thing as discriminatory intent.
A conservative majority of the Supreme Court sided Thursday with the state, saying that the challengers themselves showed that out-of-precinct ballots were cast in the 2016 election by only "a little over 1% of Hispanic voters, 1% of African-American voters, and 1% of Native American voters."
"A policy 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," Alito wrote, joined by Chief Justice John Roberts and Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.
Kagan found more menace in the same numbers.
"In 2016, Hispanics, African Americans, and Native Americans were about twice as likely — or said another way, 100% more likely — to have their ballots discarded than whites," she wrote. "And it is possible to break that down a bit. Sixty percent of the voting in Arizona is from Maricopa County. There, Hispanics were 110% more likely, African Americans 86% more likely, and Native Americans 73% more likely to have their ballots tossed. Pima County, the next largest county, provides another 15% of the statewide vote. There, Hispanics were 148% more likely, African Americans 80% more likely, and Native Americans 74% more likely to lose their votes."