Arizona’s ban on ballot-harvesting and out-of-precinct voting does not violate the federal Voting Rights Act, the Supreme Court ruled 6-3 this morning in a closely watched case with implications for future elections.
The court opinion split neatly along ideological and partisan lines with the 6 conservative justices nominated by Republican presidents voting to uphold the state law and the 3 liberal justices voting to strike it down.
The decision reverses a judgment issued by the 9th Circuit Court of Appeals and comes the week after the Biden administration filed a lawsuit against Georgia over the state’s new electoral integrity-promoting law claiming it amounts to so-called voter suppression. The state’s Republican governor, Brian Kemp, said the U.S. Department of Justice’s suit was “legally and constitutionally dead wrong.”
Justice Samuel Alito wrote the court’s opinion in Brnovich v. Democratic National Committee (DNC), court file 19-1257, and Arizona Republican Party v. DNC, court file 19-1258, which was published July 1. Mark Brnovich is the Republican attorney general of Arizona. Oral arguments took place telephonically March 2 after the Supreme Court decided Oct. 2, 2020, to hear the consolidated case.
The reach of Section 2 of the Voting Rights Act (VRA) of 1965 was at issue in the case.
The Supreme Court today concluded that Arizona’s out-of-precinct policy and the law known as HB 2023 do not violate Section 2 of the VRA. The court also found that HB 2023 was not enacted with a racially discriminatory purpose.
The 9th Circuit Court of Appeals, sitting en banc, “misunderstood and misapplied [Section 2] and … exceeded its authority in rejecting the District Court’s factual finding on the issue of legislative intent,” Alito wrote in the court’s opinion.
Section 2 of the law forbids voting practices that result “in a denial or abridgment of the right … to vote on account of race or color [or language-minority status],” and provides that such a result “is established” if a jurisdiction’s “political processes … are not equally open” to members of such a group “in that [they] have less opportunity … to participate in the political process and to elect representatives of their choice.”
The Biden administration sent a letter to the court Feb. 16 in which it, like the Trump administration before it, acknowledged the challenged Arizona laws were consistent with the federal statute.
Alito’s opinion was joined by Chief Justice John Roberts, along with Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. Gorsuch filed a separate concurring opinion, which Thomas joined. Justice Elena Kagan filed a dissenting opinion, which Justices Stephen Breyer and Sonia Sotomayor joined.
Arizona, like other states, enforces rules to promote the order and integrity of its elections.
The out-of-precinct policy excludes provisional ballots cast in person on Election Day outside of the voter’s designated precinct. The ballot-collection law known as HB 2023 allows only specific persons such as family and household members, caregivers, mail carriers, and election officials to handle another person’s completed early ballot. Most states require voters to vote in their own precincts, and around 20 states limit ballot collection by third parties.
U.S. District Judge Douglas L. Rayes, an Obama appointee, previously upheld Arizona’s rules.
At first, the 9th Circuit Court of Appeals affirmed the trial court, but the appeal court’s ruling was then reversed when all the judges of the circuit reviewed it at the en banc stage.
“Arizona’s policy of wholly discarding … out-of-precinct ballots, and … criminalization of the collection of another person’s ballot, have a discriminatory impact on American Indian, Hispanic, and African American voters in Arizona, in violation of the ‘results test’ of Section 2 of the VRA,” Judge William A. Fletcher, a Clinton appointee, wrote for the appeals court.
The ballot-collection ban “was enacted with discriminatory intent, in violation of the ‘intent test’ of Section 2 of the VRA and of the Fifteenth Amendment,” Fletcher wrote. The Arizona rules are unfair because American Indian voters, other minorities, renters, and poor people are disadvantaged because they have difficulty receiving and sending mail, he added.
“Minority voters rely on third-party ballot collection for many reasons,” he wrote.
The 9th Circuit stayed enforcement of its judgment pending appeal, allowing Arizona’s disputed laws to remain in place for the 2020 elections.
Today was the last day of the Supreme Court’s term that began in October 2020. In a historic first, all oral arguments of the term were conducted telephonically because of the ongoing pandemic.
Although media speculation was rampant that the oldest member of the court, Justice Stephen Breyer, 82, would announce his retirement, no such announcement had been made as of press time.
This is a developing story. This article will be updated.
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