US supreme court deals blow to voting rights by upholding Arizona restrictions
The US supreme court has upheld two Arizona voting restrictions in a ruling that dealt a major blow to the Voting Rights Act, the landmark 1965 civil rights law designed to prevent voting discrimination.
In a 6-3 ruling, the justices upheld Arizona statutes that prohibit anyone other than a close family member or caregiver from collecting mail-in ballots, which are widely used in the state.
The court also upheld a statute that requires officials to wholly reject votes from people who show up to cast a ballot in the wrong precinct, even if the person is otherwise entitled to vote in the state.
“Neither Arizona’s out-of-precinct rule nor its ballot-collection law violates §2 of the VRA. Arizona’s out-of-precinct rule enforces the requirement that voters who choose to vote in person on election day must do so in their assigned precincts,” Justice Samuel Alito wrote for a majority that included the court’s five other conservative justices, referring to section 2 of the Voting Rights Act.
He added: “Having to identify one’s own polling place and then travel there to vote does not exceed the ‘usual burdens of voting’.”
The decision means that the Arizona statutes will remain in effect and make it harder to challenge discriminatory voting laws across the US at a time when a swath of Republican-run state legislatures are pushing a wave of new voting restrictions that voting rights advocates say are aimed at suppressing the vote and especially target communities of color.
“Today the supreme court made it much harder to challenge discriminatory voting laws in court. The justices stopped short of eviscerating the Voting Rights Act, but nevertheless did significant damage to this vital civil rights law and to the freedom to vote,” Sean Morales-Doyle, the acting director of the voting rights and elections program at the Brennan Center for Justice, said in a statement.
Richard Hasen, an election law scholar at the University of California, Irvine, said the decision was a significant blow to the Voting Rights Act, one of America’s landmark civil rights laws.
“The conservative supreme court has taken away all the major available tools for going after voting restrictions. This at a time when some Republican states are passing new restrictive voting law[s],” he wrote in a blogpost. “This is not a death blow for section 2 claims, but it will make it much, much harder for such challenges to succeed.”
The larger dispute in the case, Brnovich v Democratic National Committee, was how courts should interpret section 2 of the Voting Rights Act, which prohibits any voting practice that results in the “denial or abridgment” of the right to vote based on race. The provision has become a critical tool for civil rights lawyers to challenge discriminatory voting laws in recent years, especially after a 2013 supreme court ruling that dramatically weakened the Voting Rights Act.
Alito declined to endorse a specific test for future section 2 cases, but outlined five “guideposts” that could be applied in future cases.
Courts should weigh the size of the burden that a voting law imposes, the magnitude of disparities in how they affect different minority groups, the state’s interest in enacting such a law, as well as how far the challenged law departs from standard practice in 1982, the year when the relevant portion of the Voting Rights Act was adopted, Alito wrote.
And when courts evaluate a voting law, they need to consider the accessibility of a state’s entire electoral system, rather than just the law at hand, Alito added.
Alito used those five factors to set an extremely high bar for challenging the Arizona law.
Arizona’s prohibition on out-of-precinct voting only required voters to ensure they showed up at the right precinct on election day, a minimal burden in Alito’s view. Alito also dismissed evidence that minority voters were about twice as likely to have their provisional ballots rejected than white voters, noting that only a small percentage of Arizona voters overall cast an out-of-precinct provisional ballot on election day.
“A policy 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,” he stated.
Alito took a similar approach in upholding Arizona’s ban on third-party ballot collection. He noted that voters who cast their ballot by mail have several ways to return the ballot other than having someone collect it. The plaintiffs in the case also failed to provide statistically significant evidence, Alito said, that the ban disproportionately harmed Native American voters.
Alito also gave states significant leeway to use voter fraud – which is extremely rare – as an excuse to restrict voting. “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 wrote.
Justice Elena Kagan wrote a searing dissenting opinion for the court’s three liberal justices, bluntly saying the majority opinion “enables voting discrimination”.
The Voting Rights Act, Kagan wrote, makes any voting law that results in racial discrimination illegal, no matter how small the burden is for the voter, since even burdens that seem small can lead to discrimination in voting.
She also rejected Alito’s suggestion that the Arizona laws did not provide more of a burden on minority voters because 98% of voters overall were unaffected.
“Suppose a state decided to throw out 1% of the Hispanic vote each election. Presumably, the majority would not approve the action just because 99% of the Hispanic vote is unaffected,” she wrote.
She also dismissed Alito’s acceptance of voter fraud as an excuse to pass voting restrictions. “Of course preventing voter intimidation is an important state interest. And of course preventing election fraud is the same. But those interests are also easy to assert groundlessly or pre-textually in voting discrimination cases,” she wrote.
Joe Biden said in a statement he was “deeply disappointed” with the ruling and renewed his call for federal voting legislation, which Republicans blocked in the US Senate last month.
“In a span of just eight years, the court has now done severe damage to two of the most important provisions of the Voting Rights Act of 1965 – a law that took years of struggle and strife to secure,” he said in a statement.
Biden added: “While this broad assault against voting rights is sadly not unprecedented, it is taking on new forms. It is no longer just about a fight over who gets to vote and making it easier for eligible voters to vote. It is about who gets to count the vote and whether your vote counts at all.”
Democrats in Washington are scrambling to find a way to pass new federal voting rights protections.
One of the bills under consideration would restore the portion of the Voting Rights Act that section 2 has been used in lieu of in recent years and require certain states across the country to get voting changes approved by the federal government before they go into effect, in a bid to minimize discrimination.
Kagan also noted in her dissenting opinion that the case came to the court at a time when states were considering hundreds of laws that would make it harder to vote, a moment she described as uniquely dangerous for American democracy.
“The court decides this Voting Rights Act case at a perilous moment for the nation’s commitment to equal citizenship. It decides this case in an era of voting-rights retrenchment,” she wrote. “What is tragic here is that 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. What is tragic is that the court has damaged a statute designed to bring about ‘the end of discrimination in voting’.”