It’s not just the future of whether Arizona gets to keep its ban on “ballot harvesting” that the U.S. Supreme Court will decide this week.
Hanging in the balance could be how far Arizona — and other states — get to go in enacting new restrictions on registration and voting, particularly when they are found to have disparate effect on minorities.
On paper, the justices are looking at the simple question of whether the state can regulate who can take someone else’s voted early ballot to a polling place. That had been the practice of some civic groups in Arizona for years.
They would go door to door and ask people if they had remembered to return their early ballot. And, given that a ballot has to be received by 7 p.m. on Election Day, they offered to take it to a polling place rather than risk it not arriving on time.
In 2016, however, the Republican-controlled legislature voted to make that a felony. The law has only a handful of exceptions, like family members, people living in the same household and caregivers.
Proponents argued that this would prevent fraud.
But during legislative debate supporters could not cite a single instance of someone’s early ballot being stolen, manipulated or discarded. In fact, J.D. Mesnard, then a state representative from Chandler and now a senator, argued that it’s irrelevant whether there is fraud or not.
“What is indisputable is that many people believe it’s happening,” he said. “And I think that matters.”
The state and national Democratic parties sued and a trial judge upheld the law.
But in a divided decision, a majority of the 9th Circuit Court of Appeals concluded that what actually was behind the law was a desire of the GOP majority in the legislature to suppress minority votes. And Justice William Fletcher, an appointee of President Clinton, writing for the majority, said the record shows it had that effect.
What makes that particularly relevant is the current debate in Arizona and elsewhere on legislation to alter registration and voting procedures.
For example, one measure already approved this year by the Republican majority would remove people from the permanent early voting list if they did not cast an early ballot during two successive election cycles.
Democrats argued this would have a harsher effect on minorities, saying they often are the ones who come out and vote only when there are issues of interest. And that, they said, occurred this year with a record turnout.
Another effort would have required voters to provide certain identification when they send in early ballots. And a third would have effectively outlawed early ballots, saying people could still get them by mail but would have to turn them in at a polling place.
All that goes to a key question before the high court: How far can a state go in the name of election security — especially when there is no proof of a problem — when there is evidence that minorities are more likely to be affected.
In this case, Fletcher said the record from the trial court showed that, prior to the 2016 law, minorities were more likely than non-minorities to get someone else to turn in their ballots.
“The district court found that, in contrast, the Republican Party has not significantly engaged in ballot collection as a Get Out the Vote strategy,” he wrote.
“The base of the Republican Party in Arizona is white,” Fletcher continued. “Individuals who engaged in ballot collection in past elections observed that voters in predominantly white areas were not as interested in ballot-collection services.”
That, in turn, relates to Section 2 of the Voting Rights Act. It bars enactment of any voting practice of procedure which results in “denial or abridgment” of the right to vote on account of race or color.
Attorney General Mark Brnovich, in defending the law, said there is nothing inherent in the ballot harvesting statute that decreases the opportunity for minorities to vote. He said that is the test under Section 2, regardless of whether there is some evidence that minorities are more likely to depend on someone else to take their early ballots to the polls.
He acknowledged there are “slight statistical differences” in how the law affect minorities. But Brnovich said the court needs to look at the totality of the circumstances.
“No one was denied the opportunity,” he said.
He said the state provides many ways of voting, including early voting and at voting centers ahead of Election Day. And the state has a “no excuse absentee balloting,” meaning that anyone can ask for an early ballot by mail.
“So there are a whole plethora of options in ways for people to exercise their right to the franchise,” Brnovich said.
But there is a political side to all of this.
The Arizona Republican Party was granted the right to intervene to help defend the 2016 law. That led to a question by Justice Amy Coney Barrett about why his client is in the case.
“Because it puts us at a competitive disadvantage relative to Democrats,” he acknowledged.
“Politics is a zero-sum game,” Carvin continued. “And every extra vote they get through unlawful interpretations of Section 2 hurts us. It’s the difference between winning an election 50 to 49 and losing an election.”
The justices actually have two Arizona laws before them.
Also at issue is the legality of a state statute that says only votes cast at the proper precinct are counted. Challengers said there is no reason to ignore votes that would be legal regardless of where they were cast, like for a president or statewide office.
Brnovich argued that is necessary to properly administer the voting system.
He also said that the extent of the impact of that law is minimal, saying that in the 2016 election there were only 3,970 ballots that were rejected because they were cast in the wrong precinct out of more than 2.6 million votes cast by all methods, including early and day-of voting.
But Jessica Ring Amunson, representing challengers, said the important thing for the justices to consider is the evidence that minority voters were twice as likely to have their ballots rejected because of being in the wrong precinct than white voters.