On Thursday, the U.S. Supreme Court upheld Arizona’s laws prohibiting ‘ballot harvesting’ and allowing counties to discard ballots cast in the wrong precinct.
Arizona’s ‘ballot harvesting’ law prohibits the collection of mail-in ballots by anyone other than an election official, a mail carrier, or a voter’s family member, household member, or caregiver. A second Arizona law allows some counties to discard in-person ballots not cast in the voter’s assigned precinct.
The challenge to the two provisions arose under the Voting Rights Act. Section 2 of the Act in particular states that “[n]o voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color.”
The Ninth Circuit Court of Appeals struck down both laws, noting that there was no record of voting fraud in the state and there was evidence that the provisions were obstructing minorities’ right to vote. The court pointed specifically to the Navajo Nation, a large and remote area of the state with few post offices and postal routes and little to no way for voters without cars to return ballots.
The U.S. Supreme Court reversed the lower court’s ruling. Justice Samuel Alito wrote the opinion for the majority, while the Court’s three liberal justices dissented.
The Court held that Arizona’s ‘ballot harvesting’ law did not violate Section 2 because the state offers many options for returning a ballot that fall “squarely within the heartland of the ‘usual burdens of voting.’” It found, among other things, that Arizona gave mail-in voters 27 days to drop their ballot in a mailbox or at a post office, an early ballot drop box, or an authorized election official’s office. The law also allows voters to ask a statutorily authorized proxy to make the trip.
Furthermore, the Court found the plaintiffs did not establish any statistical evidence of a disparate impact, only presenting testimony that third-party ballot collection tends to be used in heavily disadvantaged communities like Arizona’s Native American community. The Court noted that even if the plaintiffs had presented such statistical evidence, the state had a legitimate interest in limiting the types of people authorized to handle early ballots. It added that a state does not need to wait for election fraud to occur to enact measures to prevent it.
Addressing the law allowing counties to toss votes cast in the incorrect precinct, the Court said “Having to identify one’s own polling place and travel there to vote does not exceed the ‘usual burdens of voting.’” It noted that not only did Arizona have a legitimate interest in encouraging voters to vote in their assigned precinct, but the state had also made “extensive efforts” to help voters locate their precinct and avoid voting in the wrong one.
The Court also took issue with how the lower court calculated the apparent racial disparity caused by the out-of-precinct policy. It said that the Ninth Circuit’s characterization of the difference between 99 percent of minority voters casting their ballots in the correct precinct compared to 99.5 percent of non-minority voters as discriminatory was “statistical manipulation.” (The Ninth Circuit had concluded that, “minority voters in Arizona cast [out-of-precinct] ballots at twice the rate of white voters.”)
Justice Elena Kagan’s dissent noted flaws in each aspect of the majority’s analysis, including its interpretation of the out-of-precinct voting statistics. Justice Kagan wrote, “This Court has no right to remake Section 2. Maybe some think that vote suppression is a relic of history – and so the need for a potent Section 2 has come and gone […] But Congress gets to make that call.”
The Court’s decision comes just after the Senate declined to consider a new voting rights bill, the For the People Act.
Supreme Court upholds Arizona voting restrictions, including ‘ballot harvesting’ ban, ABA Journal (July 1, 2021)
Brnovich v. Democratic National Committee, 594 U.S. ___ (2021)
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