National spotlight on Ariz. vote laws
Supreme Court to hear ‘ballot harvesting’ case
Arizona will be at the center of what could be the nation’s most far-reaching voting rights cases in years today as the U.S. Supreme Court hears arguments about two state election laws previously struck down by judges as discriminatory.
One law disqualifies ballots if voters cast them in the wrong precinct and the other prohibits anyone but a family member, household member or caregiver from turning in another person’s ballot.
In striking down those laws, the 9th U.S. Circuit Court of Appeals pointed to the disproportionate impact on Black, Latino and Indigenous voters, as well as Arizona’s long history of discriminatory voting policies. The court sided with opponents of the measures
who have argued that ballot collection, for example, is important to help voters with no transportation or unreliable mail service.
But in appealing that decision to the high court, Arizona Attorney General Mark Brnovich argues that these merely are commonsense measures to protect against fraud and that disparate impacts on some communities are not necessarily a reason to strike them down.
Raising questions about when, exactly, election policies cross a line under the Voting Rights Act, the case has the potential to affect voters across the country at a time when many states are considering sweeping changes to how Americans can cast their ballots.
The case, Brnovich v. Democratic National Committee, comes after the U.S. Supreme Court struck down the heart of the Voting Rights Act, which required federal approval to changes in election laws in states like Arizona with a long history of racial discrimination in the electoral process.
At issue now is Section 2 of the act, which prohibits any election rule that denies or abridges a citizen’s right to vote on account of race or color, requiring that — in the totality of circumstances — elections are equally open to participation.
“If you accept the logic of the 9th Circuit, any time there is a statistical disparity, it would be a violation of the Voting Rights Act,” said Brnovich, who plans to argue the case in front of the Supreme Court today. “That can’t be consistent with the 14th and 15th Amendments. Furthermore, it would jeopardize every state’s commonsense election integrity measures.”
Brnovich, a Republican, said the question should be whether a law has a substantially disparate impact on the ability of voters to participate in elections and elect candidates of their choice. Then, the question should be whether that impact is caused by the law at issue, he said.
Critics have argued this would leave Section 2 of the Voting Rights Act toothless and make it much more difficult for voters to fight back against a flurry of new laws that could make it harder for them to vote.
Laws effect Navajo Nation
One of the laws at issue requires election officials to disqualify ballots cast in the wrong precinct. Proponents say this is merely a means of preventing fraud. But critics of the law contend it disproportionately affects voters who cast their ballots at chapter houses on the Navajo Nation, but where chapter boundaries do not necessarily align with precinct boundaries.
The other law at issue bans anyone but a family member, household member or caregiver from turning in another person’s ballot. Several states have similar laws and proponents of the law contend this is meant to prevent tampering with ballots and improve election security. Opponents of the ban argue that it has deprived campaigns of a way to turn out voters who otherwise may not be inclined to vote due to a lack of transportation or unreliable mail service.
Navajo Nation Attorney General Doreen McPaul argued in a brief submitted to the U.S. Supreme Court that disparate impacts of the two Arizona laws on Navajo voters are not merely the products of chance but a result of social and historical discrimination.
“Arizona’s ballot collection law criminalizes ways in which Navajos historically participated in early voting by mail,” the brief said. “Due to the remoteness of the Nation and lack of transportation, it is not uncommon for Navajos to ask their neighbors or clan members to deliver their mail. Navajo voters should be able to use their traditional networks of neighbors and clan members to perform this function.”
The U.S. Department of Justice weighed in on the case during President Donald Trump’s administration, siding with Arizona’s attorney general in contending that the two laws at issue did not violate Section 2 of the Voting Rights Act.
The department sent a letter to the U.S. Supreme Court after President Joe Biden took office, stating it still doesn’t believe Arizona’s laws violated the act, though the department appeared to disagree with how the Trump administration interpreted the federal law.
Whatever happens, the case will be the first prominent election case in front of the U.S. Supreme Court with its new 6-3 conservative majority, following the death of Justice Ruth Bader Ginsburg and confirmation of Justice Amy Coney Barrett.