The Supreme Court on Tuesday confronted the growing partisan division over voting rights in a case in Arizona in which Democrats are challenging two Republican-sponsored rules that appeared likely to win the approval of judges.
A rule calls for rejecting ballots from voters who arrive in the wrong constituency on election day but still want to vote there. The other prohibits the “harvesting of ballots”, making it a state crime for anyone – other than family members, caregivers or postal workers – to collect and return the ballots by the house. post.
In their comments and questions, most of the judges said they were looking for a middle position, blocking new restrictions that could have a significant impact on blacks, Latinos or Native Americans, rather than automatically invalidating any rule that has implications. different impacts depending on the race.
Arizona’s two rules were in effect in last year’s election, when Joe Biden narrowly defeated then-President Trump in the previously Republican-leaning state, which also elected another Democrat in the Senate. But since then, lawmakers in Republican states there and in other GOP-controlled states have proposed dozens of new rules that could make voting more difficult for blacks and Latinos.
The Arizona case – Brnovich vs Democratic National Committee – has attracted attention as it is the first time the High Court has drafted an opinion on how to apply a key element of the voting rights law that Congress adopted as a compromise in 1982.
Section 2 of the Voting Rights Act prohibits electoral rules that discriminate against voters on the basis of their race or ethnicity, but it is unclear what this means. Republicans and the state of Arizona say that cannot mean that a rule can be considered illegal if it can be shown to disproportionately affect different groups.
Washington attorney Michael Carvin, representing Republicans in Arizona, said the court should follow state election rules as long as voting is “equally open” to all groups. He cited as an example the requirement to register to vote in advance, which can exclude more racial minorities than whites.
During Tuesday’s discussion, Judge Elena Kagan urged counsel for the Republicans to clarify when the voting rules should be considered “equally open” to racial minorities.
What if the state had one polling station per county, which means black voters in urban counties have to wait 10 times longer than white voters, she asked.
Carvin said it should be illegal. “Equally open” takes into account the demographic reality, “he replied.
What if a state with two weeks of early voting, including Sunday, passes new law to close polling stations on Sunday, Kagan asked. Several Republican states are considering doing this.
Carvin said it should be allowed, even if it would have a discriminatory impact on black voters. “Sunday is the day we traditionally close government offices,” he said.
Kagan continued with another scenario: “The state says we put all of our polling stations in country clubs.”
Carvin said it would be a problem and unfair to minority voters.
Other judges pointed to Kagan’s questions as proof that it is not enough to say that a voting rule is legal because minorities are not “denied” the right to vote.
But several of them also expressed their approval for Arizona’s rule against ballot harvesting.
The court’s ruling on this issue is not likely to affect California law allowing this practice. But a move approving Arizona’s ban on the practice would likely encourage other GOP-led states to follow suit.
Eight years ago, the court’s Tories struck down the best-known and most effective provision of the 1965 Voting Rights Act. Section 5 gave the federal government additional authority over elections in the southern states and a few others that had a history of discrimination. Black and Latino voters.
But Chief Justice John G. Roberts Jr. said at the time that “things had changed in the South,” so there was no longer a need for a special provision that prevented some states – including Arizona – to change their electoral rules without “preclearance” from Washington.
Democrats and civil rights activists have been unable to secure congressional approval to reactivate this provision.
But Roberts pointed out in the 2013 ruling that section 2 of the voting rights law – currently at issue – remains in full force across the country. However, the precise meaning of this article is less clear.
One provision states that states and localities may not apply any “standard, practice or procedure” that “results in” denying citizens the right to vote “on the basis of race or color”.
But he also says that the conclusion depends on whether, “on the basis of all the circumstances,” blacks, Latin Americans and Native Americans are “less likely than other members of the electorate. to participate in the political process ”.
Democrats and civil rights advocates focus on the first sentence and argue that any electoral rule that has more impact statistically on minority voters than white voters is illegal. In Arizona, they said, Latino and black voters were twice as likely as white voters to have their ballots not counted because they were cast in the wrong constituency.
The overall number affected was relatively small: less than 4,000 out of more than 2 million ballots were spoiled in 2016 because they were cast in the wrong constituency. Over 80% of voters in the state voted early or by mail, and they are unaffected by the “bad neighborhood” rule.
Nonetheless, the 9th Circuit Court of Appeals ruled that Arizona’s “bad neighborhood” rule was illegal and discriminatory. The majority justices said that the constituencies in the Phoenix area were often changed, resulting in their ballots being rejected by more minorities.
In their appeal, State Republicans and Arizona Atty. General Mark Brnovich focused on the second clause of the law and argued that Arizona’s electoral rules should be respected because in their “totality” they do not deny minorities an equal chance to vote. Republicans have said the voting rights law imposes “a requirement of equal treatment, not an order of equal results.”
The Trump administration had filed a brief urging the court to follow Arizona’s rules because they were not discriminatory. Last month, the Biden administration told the court it disagreed with much of what was in the brief, but agreed Arizona’s rules should not be overturned.
This story originally appeared in the Los Angeles Times.