WASHINGTON – The Supreme Court seemed ready on Tuesday to maintain two election restrictions in Arizona and make it harder to question all possible restrictions on voting across the country.
In its most important voting rights case in nearly a decade, the court examined for the first time how an integral part of the 1965 Voting Rights Act applies to restrictions on voting rights that disproportionately affect members of minority groups. The court heard the case as voting disputes became a focus of American politics again.
The immediate question for the judges was whether two actions in Arizona violated the 1965 law. One of the measures is that electoral officials must file ballot papers that were cast in the wrong district. The other makes it a crime for campaign workers, community activists, and most other people to collect ballots for delivery to polling stations, a practice that critics refer to as “ballot picking.”
Several members of the court’s conservative majority said the restrictions were sensible, commonplace, and were at least partially confirmed by a bipartisan consensus, which was reflected in a 2005 report signed by former Presidents Jimmy Carter and James A. Baker III who served as Secretary of State under President George Busch.
The Biden government also informed the judges an unusual letter Two weeks ago, the measures in Arizona appeared to be legal. But the letter was rejected the position of the Trump administration that the relevant section of the Voting Rights Act should not be widely used to deter states from adopting more restrictive voting procedures.
Much of the argument on Tuesday centered around this larger issue in the case Brnovich against the Democratic National Committee19-1257 by Which standard courts should apply to disputes under Section 2 of the Voting Rights Act? The court’s answer to that question could determine the fate of the scores, if not hundreds, of laws dealing with electoral rules in the years to come.
As Republican-controlled state lawmakers increasingly seek to introduce restrictive new voting rules, Democrats and civil rights groups turn to the courts to argue that Republicans are attempting to suppress the vote, thwart the will of the majority, and equal access to minority voters and to refuse others who were underrepresented in the elections.
“There have been more voting restrictions in the last decade than ever since the end of Jim Crow,” Bruce V. Spiva, attorney for the Democratic National Committee, which is questioning the two measures in Arizona, told judges. “In the past three months, the proposed election restrictions have increased even further, with many targeting the minority groups whose participation Congress wanted to protect.”
Although the Voting Rights Act aims to protect the voting rights of minorities, in practice litigation tends to be party-political. When Justice Amy Coney Barrett asked an Arizona Republican Party attorney why his client cared about whether votes cast in the wrong district should be counted, he responded frankly.
“Because it puts us at a competitive disadvantage compared to the Democrats,” said attorney Michael A. Carvin. “Politics is a zero-sum game and any extra vote they get from unlawful interpretations of Section 2 hurts us.”
Jessica R. Amunson, an attorney for Katie Hobbs, Arizona Democratic Secretary of State, said election campaigns should not activate the voting process.
“Candidates and parties should try to win voters on the basis of their ideas,” said Ms. Amunson, “and not try to remove voters from the electorate by placing unjustified and discriminatory burdens.”
Section 2 gained additional relevance after the Supreme Court in 2013 put down the core of the Voting Rights Act, Section 5, which required prior federal consent to changes in voting procedures in parts of the country with a history of racial and other discrimination.
Until then, Section 2, which allows for subsequent appeals, was mainly used in redistribution cases where the question was whether voting cards had unlawfully diluted minority voting rights. Their role in combating denial of voting rights itself has received much less attention.
During two hours of telephoning, the judges struggled to establish a standard that would enable the courts to distinguish between legitimate and inadmissible restrictions.
The court did not appear to be receptive to a rigorous test proposed by Mr. Carvin, Attorney for the Republican Party of Arizona. He said the Ordinary Election Regulations are not subject to Section 2 challenges. Most judges appeared to accept these provisions, which could place significant burdens on minority voters who violate the law.
However, there has been some disputes over what was considered essential and what justification states could offer for their restrictions. The more conservative members of the court seemed inclined to demand substantial differences unrelated to socio-economic conditions and accept the need to combat even potential electoral fraud as a sufficient reason to impose voting restrictions.
Judge Elena Kagan tested the limits of Mr. Carvin’s reasoning and asked if much longer queues at polling stations in minority neighborhoods could be legally challenged. He said yes. He gave the same answer when asked if all country club polling stations should be located far from minority neighborhoods.
But he said it was lawful to cut Sunday’s vote, even if black voters rely heavily on it, and limit voting to business hours on election day.
Arizona Attorney General Mark Brnovich, a Republican, suggested a vague standard, saying the differential impact on minority voters must be significant and must be caused by the practice being challenged rather than some other factor.
When asked by Justice Kagan whether the four hypothetical restrictions it placed on Mr Carvin would survive under this test, Mr Brnovich did not give a direct answer.
He said the number of ballots disqualified for casting in the wrong district is very small and that the general electoral system in Arizona makes it easy to vote.
Ms. Amunson, the Arizona Secretary of State’s attorney, urged the judges to lift the contested restrictions.
“Arizona already has a law that bans the collection of fraudulent ballots,” she said, exemplary. “This law criminalizes neighbors who assist neighbors in casting ballot papers with a prison sentence of up to two years.”
Judge Samuel A. Alito Jr. asked her a series of hypothetical questions about early voting, ballot papers, and deadlines for postal ballots. Mrs. Amunson gave a general answer.
“You have to have a functional view of the political process and a holistic view of how it actually affects the local voter,” she said.
Justice Alito seemed dissatisfied. “Well, that’s a lot of words,” he said. “I really don’t understand what they mean.”
Several judges suggested that most of the standards proposed by the attorneys before them were quite similar. “The longer this argument goes on,” said Judge Kagan, “the less I realize how the parties’ standards differ.”
Judge Stephen G. Breyer repeated the point. “A lot of parties on both sides are pretty close to standards,” he said.
Justices Kagan and Breyer, both members of the liberal wing of the court, may have played the defense in hopes that the court’s decision, expected by July, would leave Section 2 more or less unscathed.
But Justice Alito said he was cautious “making any voting rule vulnerable to Section 2 attacks”.
“People who are poor and generally less educated are likely to find it more difficult to follow nearly every voting rule than people who are wealthier and have benefited from more education,” he said.
Judge Barrett seemed to agree. “All voting rules,” she said, “will make it easier for some to vote than for others.”
But Justice Brett M. Kavanaugh said he could envision two workable standards for applying the law. “One factor would be if you move to a new rule that puts minorities in a worse position than the old rule,” he said, “and a second factor would be whether a rule is common in other states that do . ” do not have a similar history of racial discrimination. “
Last year the United States Court of Appeals for the Ninth Circuit in San Francisco ruled that both Arizona restrictions violated Section 2 because they disproportionately disadvantaged minority voters.