Santa Fe New Mexican

High court poised to sustain voting limits

- By Adam Liptak

WASHINGTON — The Supreme Court seemed ready Tuesday to uphold two election restrictio­ns in Arizona and to make it harder to challenge all sorts of limits on voting around the nation.

In its most important voting rights case in almost a decade, the court for the first time considered how a crucial part of the Voting Rights Act of 1965 applies to voting restrictio­ns that have a disproport­ionate impact on members of minority groups. The court heard the case as disputes over voting rights have again become a flash point in American politics.

The immediate question for the justices was whether two Arizona measures ran afoul of the 1965 law. One of the measures requires election officials to discard ballots cast at the wrong precinct. The other makes it a crime for campaign workers, community activists and most other people to collect ballots for delivery to polling places, a practice critics call “ballot harvesting.”

Several members of the court’s conservati­ve majority said the restrictio­ns were sensible, commonplac­e and at least partly endorsed by a bipartisan consensus reflected in a 2005 report signed by former President Jimmy Carter and James A. Baker III, who served as secretary of state under President George H.W. Bush.

The Biden administra­tion, too, told the justices in an unusual letter two weeks ago that the Arizona measures appeared to be lawful. But the letter disavowed the Trump administra­tion’s position that the relevant section of the Voting Rights Act should not be widely used to keep states from enacting more restrictiv­e voting procedures.

Much of the argument Tuesday centered on that larger issue in the case, Brnovich v. Democratic National Committee, No. 19-1257, of what standard courts should apply to challenges under Section 2 of the Voting Rights Act. The court’s answer to that question could determine the fate of scores if not hundreds of laws addressing election rules in the coming years.

As Republican-controlled state legislatur­es increasing­ly seek to impose restrictiv­e new voting rules, Democrats and civil rights groups are turning to the courts to argue that Republican­s are trying to suppress the vote, thwart the will of the majority and deny equal access to minority voters and others who have been underrepre­sented at the polls.

“More voting restrictio­ns have been enacted over the past decade than at any point since the end of Jim Crow,” Bruce V. Spiva, a lawyer for the Democratic National Committee, which is challengin­g the two Arizona measures, told the justices. “The last three months have seen an even greater uptick in proposed voting restrictio­ns, many aimed squarely at the minority groups whose participat­ion Congress intended to protect.”

Although the Voting Rights Act seeks to protect minority voting rights, as a practical matter litigation under it tends to proceed on partisan lines. When Justice Amy Coney Barrett asked a lawyer for the Arizona Republican Party why his client cared about whether votes cast at the wrong precinct should be counted, he gave a candid answer.

“Because it puts us at a competitiv­e disadvanta­ge relative to Democrats,” said the lawyer, Michael A. Carvin. “Politics is a zero-sum game, and every extra vote they get through unlawful interpreta­tions of Section 2 hurts us.”

Jessica R. Amunson, a lawyer for Katie Hobbs, Arizona’s secretary of state, a Democrat, said electoral contests should not turn on voting procedures.

“Candidates and parties should be trying to win over voters on the basis of their ideas,” Amunson said, “not trying to remove voters from the electorate by imposing unjustifie­d and discrimina­tory burdens.”

Section 2 took on additional prominence after the Supreme Court in 2013 effectivel­y struck down the heart of the Voting Rights Act, its Section 5, which required prior federal approval of changes to voting procedures in parts of the country with a history of racial and other discrimina­tion.

Until then, Section 2, which allows after-the-fact challenges, had mostly been used in redistrict­ing cases, where the question was whether voting maps had unlawfully diluted minority voting power. Its role in addressing the denial of the right to vote itself has been subject to much less attention.

Over two hours of arguments by telephone, the justices struggled to identify a standard that would allow courts to distinguis­h lawful restrictio­ns from improper ones.

The court did not seem receptive to a rigorous test proposed by Carvin, the lawyer for the Arizona Republican Party, who said that ordinary election regulation­s are not subject to challenges under Section 2.

 ?? ADRIANA ZEHBRAUSKA­S/NEW YORK TIMES FILE PHOTO ?? Election workers count ballots in November at the Maricopa County Recorder’s office in Phoenix. In arguments heard Tuesday, the Supreme Court seemed ready to uphold two Arizona voting restrictio­ns, including requiring election officials to discard ballots cast at the wrong precinct.
ADRIANA ZEHBRAUSKA­S/NEW YORK TIMES FILE PHOTO Election workers count ballots in November at the Maricopa County Recorder’s office in Phoenix. In arguments heard Tuesday, the Supreme Court seemed ready to uphold two Arizona voting restrictio­ns, including requiring election officials to discard ballots cast at the wrong precinct.

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