WASHINGTON (CN) — Arizona will likely be allowed to enforce election laws found to suppress minority votes after oral arguments Tuesday where the Supreme Court appeared split on party lines.
The challenge comes at an already precarious time for the Voting Rights Act some eight years after the Supreme Court overturned one of the 1965 law’s requirements that said states with records of voter discrimination had to seek federal preclearance before changing their election procedures.
While it was a 5-4 court that decided Shelby Co. v. Holder, Arizona’s chances only improved as the court achieved a 6-3 conservative majority in the Trump administration.
The state passed one of the laws in question in 2016, making it a felony punishable by prison and a $150,000 fine to collect early ballots from voters, with exceptions for relatives, caregivers, mail carriers and election officials.
The other law dates back to 1970, forbidding voters from casting ballots outside of their precinct.
A number of other states have similar practices, but the Ninth Circuit found Arizona’s unconstitutional in 2018, and the state headed to the Supreme Court after facing en banc defeat last year.
Though Section 2 of the Voting Rights Act says states cannot impose any rule “which results in a denial or abridgment” of the right to vote on the basis of race, the Arizona Republican Party insists that its policies are neutral, and that making it difficult to vote is not by itself illegal.
“We don’t think severe — or minor — disproportionate outcomes violate Section 2,” Michael Carvin, an attorney for the Arizona Republican Party, told the justices during oral arguments. “It’s not the outcome, it’s the opportunity.”
“The question is not what’s wrong with it, the question is why a system that poses no unfairness on the group be changed simply because they find a different method of voting more convenient,” the Jones Day lawyer continued.
Justice Samuel Alito appeared skeptical meanwhile of the law’s breadth.
“What concerns me,” Alito told a lawyer for the challengers, “is that your position is going to make every voting rule vulnerable to attack under Section 2.”
Bruce Spiva, counsel for the Democratic National Committee, told justices this morning that antidiscrimination protections are as relevant today as they ever were in 1965.
“More voting restrictions have been enacted over the last decade than at any point since the end of Jim Crow,” Spiva said. “The last three months have seen an even greater uptick in proposed voting restrictions, many aimed squarely at the minority groups that Congress intended to protect.”
Alito undercut this point, however, by focusing on intent. “People who are poor and less well educated probably will find it more difficult to comply with almost every voting rule than people who are more affluent and have the benefit of more education,” he said.
In its challenge of Arizona’s laws, the Democratic National Committee has noted that Native American, Latino and Black voters have their ballots rejected for being out-of-precinct nearly twice as much than their white counterparts. The committee said these voters are going to the wrong poll sites by mistake because, in communities of color, voting locations are frequently moved. Also partly to blame, according to the committee, is that people of color tend to move more often than white voters.
For Democrats, the state's awareness of such barriers is sufficient to show discriminatory intent.
They note that get-out-the-vote groups have been relying on volunteer-driven ballot collections since at least 2002 to boost minority voter turnout in Arizona.
In an amicus brief, the Navajo Nation said that members who live on the reservation have to travel up to 45 miles to the nearest post office, and only one in 10 families own a car. Because of the circumstances, it’s not uncommon for Navajos to ask their neighbors to deliver their mail for them.
The Ninth Circuit’s ruling found that racial minorities, especially Native Americans who live far from polling places, have trouble returning their ballots personally.
“These laws and policies either ignore or dismiss the unique challenges faced by Navajo voters,” the brief from the Navajo states.
According to the liberal Brennan Center, following a tumultuous 2020 election with a historic turnout and widespread claims of voter fraud, over 250 bills aimed at restricting voter access are moving through state legislatures across the country.
A ruling from the justices in the Arizona case is due by the end of June.
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