Supreme Court upholds Arizona ‘ballot harvesting’ ban, in setback for voting rights law
Justice Kagan in dissent highlights ‘severe hardship’ for some voters
The Guardian or Authority of Law, created by sculptor James Earle Fraser, rests on the side of the U.S. Supreme Court on Sept. 28, 2020. (Al Drago/Getty Images)
The U.S. Supreme Court upheld Arizona’s ban on third-party ballot collections, reversing the 9th Circuit’s ruling last year that the prohibition violated the Voting Rights Act and raising the bar on future voting rights lawsuits.
In a 6-3 opinion, the high court ruled on Thursday that Arizona’s 2016 law doesn’t violate Section 2 of the Voting Rights Act and that it wasn’t enacted with a racially discriminatory purpose. Justice Samuel Alito, writing for the majority, found that the plaintiffs in the case hadn’t adequately demonstrated that the ban had a disparate impact on minority voters, and wrote that the post-ban requirements for casting early ballots exceeded the usual burdens of voting.
The court also upheld Arizona’s policy of rejecting ballots that voters cast outside their precincts, even when that voter is still eligible to vote on most or all of the races on that ballot.
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Section 2 of the 1965 Voting Rights Act prohibits voting and election laws that deny or limit the right to vote based on race or color, which is known as the “intent” clause of the landmark law. A subsequent amendment prohibited laws that result in the limitation of voting rights based on race, regardless of the intent of such laws, which is known as the “results” test.
The 9th Circuit Court of Appeals last year found that the ban on ballot collecting, pejoratively referred to by critics as ballot harvesting, ran afoul of both tests by intentionally banning a practice that disproportionately aids Hispanic, Native American and other minority voters. Arizona Attorney General Mark Brnovich appealed that ruling to the Supreme Court.
Alito wrote that the plaintiffs in the case were unable to show that the ballot collection ban, implemented by legislation known as House Bill 2023, has a disparate impact on minority voters, instead relying on testimony from witnesses who said the practice was most often used in minority communities.
“And without more concrete evidence, we cannot conclude that HB 2023 results in less opportunity to participate in the political process,” Alito wrote.
And even if they had shown a disparate burden, he said, the state “has a compelling interest in preserving the integrity of its election process.” Despite the lack of evidence that ballot collection had resulted in election fraud in Arizona, Alito wrote that states need not wait for such crimes to occur before taking action. He pointed to a 2018 congressional election in North Carolina in which Republican operatives were found to have committed mass fraud through third-party collection of absentee ballots.
Alito said the existence of disparities in the way a voting law affects racial or ethnic groups does not necessarily mean that an election system is not equally open to all voters. The size of those disparities must be taken into account, and small disparities are less likely than larger ones to signify unequal access to the election system.
“To the extent that minority and non-minority groups differ with respect to employment, wealth, and education, even neutral regulations, no matter how crafted, may well result in some predictable disparities in rates of voting and noncompliance with voting rules,” Alito wrote.
Alito noted that voters can put their early ballots in mailboxes, take them to post offices or drop boxes, or to an election office during Arizona’s 27-day early voting period.
“Making any of these trips — much like traveling to an assigned polling place — falls squarely within the heartland of the ‘usual burdens of voting,’” Alito wrote, citing prior case law.
Relatives, household members and caregivers are also permitted to deliver a voter’s ballot under the state’s 2016 law, Alito wrote.
Alito wrote that Section 2 “does not deprive the States of their authority to establish non-discriminatory voting rules” such as the ballot collection ban. Alito agreed with Justice Elena Kagan, who wrote a dissenting opinion, that “the Voting Rights Act exemplifies our country’s commitment to democracy.” But, he wrote, there is nothing democratic about an “attempt to bring about a wholesale transfer of the authority to set voting rules from the States to the federal courts.”
Kagan: Ruling ignores ‘severe hardship’
In her dissent, which was joined by fellow liberal justices Stephen Breyer and Sonia Sotomayor, Kagan wrote that the majority failed to consider the totality of circumstances surrounding the ballot collection ban. She agreed with her conservative colleagues that “very small differences” in the way election laws affect different racial groups are insignificant. But if a law “produces different voting opportunities across races,” she said, then the Voting Rights Act becomes a factor.
“It applies, in short, whenever the law makes it harder for citizens of one race than others to cast a vote,” Kagan wrote.
Specifically, Kagan wrote that the majority largely ignored the evidence of the hardships that the ballot harvesting ban imposed on Native American communities. She noted that only 18% of rural Native American voters have mail service at their homes, and that it’s common for them to have to travel an hour or more to get to a post office — a task that is especially difficult considering many don’t have vehicles. And due to the low population density, they must travel unusually long distances to get to polling places where they can cast their ballots in person.
“Given those facts, the law prevents many Native Americans from making effective use of one of the principal means of voting in Arizona. What is an inconsequential burden for others is for these citizens a severe hardship,” Kagan said.
Kagan also noted that a previous restriction on ballot collection, which only required people to register with the state if they collected more than 10 ballots, raised concerns at the Department of Justice that it was racially discriminatory. Rather than face the consequences of having the law rejected — Arizona at the time was subject to Section 5 of the Voting Rights Act, which required states with histories of racial discrimination in elections to get federal preapproval for all election law changes — the legislature repealed the law.
Regarding the policy on out-of-precinct ballots, Alito wrote that requiring voters to identify their own polling place and travel there also does not exceed the “usual burdens of voting.”
“On the contrary, these tasks are quintessential examples of the usual burdens of voting,” Alito wrote.
Kagan countered that the rejection of out-of-precinct ballots encompassed far more than just a normal burden of the voting process. She noted that Arizona led the nation, with the next worst state in a distant second place, in rejecting out-of-precinct ballots, and that statistics clearly showed that those rejections disproportionately affected minority voters.
The reason for that, she wrote in her dissent, was that Arizona changes the location of its polling places at a “startling rate.” For example, she wrote that from 2008 to 2012, Maricopa County changed the location of at least 40% of its polling places. In 2012, she said, the county moved polling places in Latino and African American neighborhoods 30% more often than in predominantly white areas. Lower education and income levels in minority areas, as well as the further average distances Black and Latino voters had to travel to reach their polling places, contributed to the problem, Kagan wrote.
Maricopa County now uses a vote center model in which voters from anywhere in the county can go to any vote center and get the correct ballot. State law provides every county with the ability to use vote centers. In the wake of Thursday’s ruling, Pima County said it would follow suit.
A staple of Democratic campaigning
Arizona voters have the option of voting using early ballots that election officials mail to their homes. They can mail the ballot back, or drop them off in person. Prior to the ban, it was common for Democratic campaigns and organizations to visit the homes of voters who hadn’t yet cast their ballots and collect them to mail themselves.
The 2016 ban marked the culmination of a years-long effort by legislative Republicans to ban ballot collection, which they argued was susceptible to fraud, though no such cases of fraud had ever been verified. The practice was a staple of Democratic get-out-the-vote efforts that often targeted low-efficacy voters, particularly in minority communities.
The Democratic National Committee sued to overturn the ban, arguing that it was discriminatory toward Latinos, Native Americans, African Americans and other minority voters, many of whom often have unreliable access to postal services.
Brnovich lauded the court’s ruling as a victory for election integrity.
“The ability to conduct elections with integrity and transparency is absolutely vital to the continuation of our republic, as the events of the last election demonstrated,” Brnovich said in a press statement. “The right of states to sovereignly govern the integrity of their own elections has been tested constantly by a federal government eager to overstep and a Democratic party desperate to achieve their own political ends. This decision is a clear repudiation of those tactics.”
Brnovich’s office earlier this year initiated the first prosecution under the ballot harvesting ban, charging two San Luis, Arizona, women with collecting and delivering other people’s ballots.
Conversely, Democrats, including Secretary of State Katie Hobbs, lamented the ruling as weakening “one of our country’s landmark civil rights laws.”
“This decision upholds the criminalization of neighbors for helping one another vote, allows for entire ballots to be disregarded if the voter goes to the wrong polling place, and will make it more difficult for voters to rely on the VRA to fight discriminatory voting rules and policies,” Hobbs said in a written statement.
No test, but new ‘guideposts’ for future courts
Alito wrote that the court declined to “announce a test” that would apply to all future claims under Section 2 of the Voting Rights Act that involve rules governing the times, places and manners of casting ballots. But the majority did craft “guideposts” explaining how it reached its conclusion, which will be a template for other courts to follow when ruling in voting-rights cases.
Opinions on how significant those new guideposts are varied.
Bruce Adelson, a former Department of Justice civil rights attorney, called the ruling a “powerful federalism opinion.” He found it significant that the court gave so much weight to state interests and that the court shied away from using the federal judiciary to supplant state laws, though that was arguably the purpose of the Voting Rights Act in the first place. And the opinion made it clear that the court believes that the effect of a law on minority voters must be significant for it to violate Section 2 of the Voting Rights Act, he said.
Adelson noted that the court didn’t consider it significant that 1% of minority voters’ in-person ballots were rejected for being cast out of precinct, twice the rate of white voters. The court didn’t set any specific benchmark, but made it clear that such effects must be more significant, he said.
“That does raise the bar for plaintiffs looking to challenge state laws to show … that if you’re going to claim that something deviates, OK, you’re going to have to have some pretty good proof of that,” Adelson said.
But though he considered the ruling to be significant, Adelson doesn’t consider it a major change, given its consistency with the current court’s recent jurisprudence.
Others found it more troubling. Kagan described it as a substantial weakening of the Voting Rights Act, while law professor and election law guru Rick Hasen wrote in his blog that the high court “severely weakened” Section 2 by making it harder to prove intentional racial discrimination in voting laws.
“Rather than focus on disparate impact — whether a law leads to minority voters registering or voting in lower numbers — the court applies a much broader totality of the circumstances test with a huge thumb on the scale favoring the state and its restrictive law,” Hasen wrote.
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