The Supreme Court will hear arguments on Tuesday over a set of Arizona voting restrictions alleged to be racially discriminatory in a dispute that could set the most important voting rights precedent in nearly a decade.
A potentially landmark ruling in the coming months may determine whether a suite of voting curbs working their way through GOP state legislatures across the country will survive legal scrutiny before the pivotal 2022 midterms and the next race for the White House.
For the 6-3 conservative-majority court, the case marks a first chance to define the sweep of a key provision of the Voting Rights Act (VRA). That provision, Section 2, makes it illegal to enact laws that place an unequal burden on the franchise of racial minorities.
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Civil rights groups say it’s crucial that the justices use the Arizona case to give a robust reading to Section 2 in light of a past Supreme Court ruling that narrowed safeguards for minority voters.
“It is imperative that this Court continue to construe Section 2 expansively, as Congress intended,” the NAACP Legal Defense Fund wrote in an amicus brief.
Such a ruling, the group said, is the only way to fulfill the law’s “original purpose of ridding the political process of racial discrimination.”
Tuesday’s arguments will see the justices revisit the scope of voting protections after the court’s highly controversial decision eight years ago in Shelby County v. Holder. There, a 5-4 court voted to invalidate a section of the VRA that forced former Jim Crow states and other locations with a discriminatory past to get federal approval before changing their voting rules.
In striking down the preclearance requirement, Chief Justice John Roberts, writing for the majority in 2013, said the VRA could continue to guard against racist voting laws after the fact — through Section 2, the provision at issue in Tuesday’s case.
The Arizona dispute now tees up a critical test for a Supreme Court bench that skews even more conservative than when the Shelby County case was decided, with the addition of three Trump-appointed justices: Neil Gorsuch
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The politically charged clash has drawn interest from a number of high-profile conservatives backing Arizona Republicans, among them Arizona Gov. Doug Ducey
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At issue in the lawsuit are two Arizona voting restrictions that were struck down last year by the San Francisco-based 9th Circuit Court of Appeals, which said the measures would make it harder for people of color to cast ballots in the Grand Canyon State.
Arizona Republicans, in defending the measures, told the justices in court briefs that the appeals court erred and that the voting curbs are needed for election integrity.
One of the two disputed restrictions deals with ballots that are cast at the wrong polling place or precinct. Arizona’s out-of-precinct rule required elections officials to throw away any miscast ballot in its entirety rather than preserve valid votes for federal or statewide office and discard only votes that were erroneously cast for local office.
The 9th Circuit Court ruled 7-4 that the restriction failed the “results test” of the VRA’s Section 2.
“Wholly discarding, rather than counting or partially counting, out-of-precinct ballots, [has] a discriminatory impact on American Indian, Hispanic, and African American voters in Arizona,” the court ruled.
The other limit makes it illegal for most third parties to collect and deliver ballots to polling places. The practice, which voting rights advocates refer to as “community ballot collection,” is dubbed by critics as “ballot harvesting.”
The 9th Circuit ruled that this too failed Section 2’s results test — as well as its more stringent “intent test.”
“The totality of the circumstances,” the court said, “cumulatively and unmistakably reveal that racial discrimination was a motivating factor in enacting” Arizona’s ballot collection restriction.
The appeals court found that minority voters are more likely than whites to live in rented homes, making changes in residency and unfamiliarity with the state’s confusing precinct maps more common. Arizona’s minority voters were also more likely to lack easy access to transportation, child care or the amount of time off work needed to personally deliver ballots, the court ruled, making them more reliant on third-person ballot delivery services.
On Tuesday, Arizona’s Republican attorney general, Mark Brnovich, and an attorney for the Arizona GOP will defend the restrictions before the justices against the challengers in the case, led by the Democratic National Committee. Brnovich, in his brief to the court, noted that “a majority of states require in-precinct voting, and about 20 States limit ballot collection.”
Beyond the specific outcome of the immediate contest, voting rights advocates and state governments across the country will be watching to see what legal rule the justices adopt in resolving the dispute.
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According to Rick Hasen, a law professor at the University of California, Irvine, voting rights groups have been wary of letting a Section 2 dispute of this kind reach the justices, fearing the conservative majority court could further defang the VRA — and their worries could be justified.
Hasen, writing in SCOTUSBlog, said the case has given the GOP litigants an opportunity “to suggest various ways to read Section 2 as applied to vote denial claims in very stingy ways.”
A number of voting rights groups, however, urged the justices in amicus briefs not to go down that path.
“The Voting Rights Act and its core enforcement provision, Section 2, represent a hard-won federal embrace of a bedrock minority-inclusion principle in American democracy,” the Leadership Conference on Civil and Human Rights wrote in a brief. “This Court should adhere to that principle and vindicate Section 2.”
A decision in the case, Brnovich v. Democratic National Committee, No. 19-1257, is expected this summer.
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