Arizona is going to get to keep its laws against “ballot harvesting” and counting only votes cast within the proper precinct.
In a 6-3 ruling, the U.S. Supreme Court concluded the provisions of the 2016 law do not violate the Voting Rights Act.
The majority concluded that there was no statistical evidence presented showing that requiring people to handle their own ballots was more likely to affect minorities than non-minorities. At best, the court concluded, the record showed that, prior to the 2016 law, minorities were more likely than others to return their early ballots with the assistance of someone else.
There was evidence that minorities were more likely to cast their ballots in the wrong precinct.
But Justice Samuel Alito, writing for the majority, said the data from the 2016 election showed that a little more than 1% of Hispanic voters, 1% of African-American voters, and 1% of Native American voters who voted on Election Day cast an out-of-precinct ballot. For non-minority voters, he said the rate was around 0.5%.
“A procedure that appears to work for 98% or more of voters to whom it applies – minority and non-minority alike – is unlikely to render a system unequally open,” Alito said. And that, he said is the test under Section 2 of the Voting Rights Act.
“The mere fact that there is some disparity in impact does not necessarily mean that a system is not equally open or that it does not give everyone an equal opportunity to vote,” he wrote. “And small disparities should not be artificially magnified.”
Alito acknowledged that, in enacting the ban on ballot harvesting, state lawmakers had no actual evidence of fraud. But he said that is irrelevant.
“Third-party ballot collection can lead to pressure and intimidation,” Alito continued.
“It should go without saying that a state may take action to prevent election fraud without waiting for it to occur and be detected within its own borders,” he continued. “Section 2’s command that the political processes remain equally open surely does not demand that a state’s political system sustain some level of damage before the legislature can take corrective action.”
The July 1 ruling does more than just uphold the two Arizona laws. It also appears to give additional leeway to states to enact laws that proponents say are designed to prevent fraud even when there are claims the purpose behind them is to suppress minority voting.
But Alito was careful to say that the ruling does not establish a test that the court will use in the future to determine whether other laws, in Arizona or elsewhere, violate the Voting Rights Act.
“As this is our first foray into the area, we think it sufficient for present purposes to identify certain guideposts that lead us to our decision in these cases,” he wrote.
But Justice Elena Kagan, in a dissent for herself and two of her colleagues, said the majority ruling undermines the Voting Rights Act and the rights it provides.
“What is tragic here is the court has (yet again) rewritten – in order to weaken – a statute that stands as a monument to America’s greatness and protects against its basest impulses,” she wrote. “What is tragic is the court has damaged a statute designed to bring about ‘the end of discrimination in voting.’ ”
She also said the ruling comes “at a perilous moment for the nation’s commitment to equal citizenship.”
Kagan noted that many states are moving to make it harder to register to vote and easier to purge voters from the rolls. And she specifically cited a new Georgia law that makes it illegal for political organizations to give out food and water to those waiting in line to vote.
“Chances are that some have the kind of impact the (Voting Rights) Act was designed to prevent – that they make the political process less open to minority voters than to others,” she wrote.
But Alito said he and his colleagues find nothing in the Arizona statutes that interferes with the ability of minorities to have equal opportunity to vote, which is what he said the federal law requires.
It starts with the 2016 law that makes it a crime to handle someone else’s ballot.
The practice had been used for years by some groups who would go door-to-door to see if people who had received early ballots in the mail had remembered to mail them back. With a hard-and-fast deadline of 7 p.m. on Election Day for receipt, these groups would offer to deliver them so as not to miss the deadline.
The 2016 law subjects violators to a year in state prison. There are exceptions for family members, those in the same household and caregivers.
Challengers, including the Democratic Committee, filed suit alleging a “disparate impact” on minority voters and that the ballot-collection law was “enacted with discriminatory intent.”
U.S. District Court Judge Douglas Rayes said there was evidence that “some individual legislators and proponents were motivated in part by partisan interests.” That was based on testimony that Democrats and their allies had been more successful in these ballot-gathering efforts than Republicans.
But Rayes distinguished between partisan and racial motives – with the latter protected by the Voting Rights Act – though conceding that “racially polarized voting can sometimes blur the lines.”
That was overturned by a majority of the 9th Circuit Court of Appeals. But Alito said the appellate majority “misunderstood and misapplied Section 2 and that it exceeded its authority in rejecting the district court’s factual finding on the issue of the intent of Arizona lawmakers.”
He said the federal law is violated when the political processes “are not equally open” to participation by minorities “in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.”
Against that, Alito said the record shows that Arizona generally “makes it quite easy for residents to vote.”
For example, all Arizonans can vote by mail up to 27 days before an election with an early ballot, with no special excuse needed. There also is a law that allows any voter to ask to be sent an early ballot automatically in future elections.
State law also allows anyone to cast a ballot in person at an early voting location in each county.
On the issue of precinct voting, challengers said there is no reason not to count the votes that would be legal if cast in the right place, like for president or statewide office. But Alito said that “would complicate the process of tabulation and could lead to disputes and delay.”
Anyway, he said, Arizona makes accurate precinct information available to all voters, including a sample ballot sent to each household that identifies the polling location. And he said there is a website to provide voter-specific polling place information.
Alito said that voting necessarily requires some effort and compliance with some rules.
“Mere inconvenience cannot be enough to demonstrate a violation of Section 2,” he wrote. And Alito said requiring people to mail in or drop off their own early ballots at a polling place is simply one of the “usual burdens of voting” that is not illegal.
Editor’s note: This story was revised as more information became available.