Supreme Court Will Weigh Weakening Voting Rights Act After Election

(Bloomberg) -- The U.S. Supreme Court will take up a case that could further weaken the landmark Voting Rights Act, agreeing to rule after the election on two Arizona voting policies, including its criminal ban on what critics call “ballot harvesting.”

Acting in advance of the formal opening of their term on Monday, the justices said they will review a lower court's conclusion that the Arizona rules discriminate against racial minorities.

The justices will be giving renewed scrutiny to a law they cut back significantly in 2013. The 1965 measure was designed to protect the rights of Black voters at the polling place.

Under its normal scheduling practices, the court will probably hear arguments in January, potentially with Amy Coney Barrett in place to provide a 6-3 conservative majority. A ruling is likely by late June.

The case concerns Arizona's longstanding policy of rejecting ballots cast in the wrong precinct, as well as a 2016 statute that makes it a crime for most people to collect or deliver another person's early ballot. The 7-4 decision by the 9th U.S. Circuit Court of Appeals said each rule had a disproportionate impact on minority voters.

The latest showdown pits state and national Democrats against Arizona Republican officials. Republicans say the San Francisco-based appeals court made it too easy for judges to overturn racially neutral voting rules designed to ensure a fair election.

“The majority invalidated two commonplace election administration provisions used by Arizona and dozens of other states to prevent multiple voting, protect against voter intimidation, preserve the secrecy of the ballot, and safeguard election integrity,” Arizona Attorney General Mark Brnovich, a Republican, argued in his appeal.

But Democrats say the Arizona provisions serve primarily to disadvantage Black, Hispanic and American Indian voters. In the 2016 general election, minority voters cast ballots in the wrong precinct at more than twice the rate of Whites, according to the appeals court.

Read more: How Voting in the U.S. Is Harder Than Just Checking a Box: QuickTake

Racial Impact

“The court performed a careful, intensely local appraisal of the challenged practices, determining that they did indeed result in less opportunity for minorities to participate in the political process,” groups led by the Democratic National Committee argued.

More than 3,700 people cast ballots in the wrong Arizona precinct in the 2016 general election, by far the most in the nation in percentage terms. Arizona discards out-of-precinct ballots entirely, including votes for races in which the voter was eligible to participate.

The case echoes the divisive fight over the rules governing the 2020 election. Republicans say the Arizona ban on what they call “ballot harvesting” guards against fraud, pointing to a handful of elections that courts have overturned elsewhere in recent decades.

The 9th Circuit majority said no evidence existed that third-party ballot collection had ever tainted an Arizona race. The appeals court said ballot collection is particularly important to Arizona Hispanic and Native American voters, who often have poor or nonexistent in-home mail service and live far from polling places with few transportation options.

The law makes exceptions to allow ballot-handling by family and household members, caregivers, mail carriers and elections officials.

Shelby County

The 9th Circuit said both Arizona policies had a disproportionate impact on minority voters in violation of Section 2 of the Voting Rights Act. The appeals court majority said the ballot-collection law also amounted to intentional discrimination, violating both Section 2 and the Constitution's 15th Amendment.

The 2013 Supreme Court decision, Shelby County v. Holder, centered on the Voting Rights Act's Section 5, which required jurisdictions with a deep history of discrimination to get federal clearance before changing their voting rules. The 5-4 decision gutted that provision by striking down the formula for determining which states are covered.

The cases are Brnovich v. Democratic National Committee, 19-1257, and Arizona Republican Party v. Democratic National Committee, 19-1258.

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