Sunday, February 21, 2021

Supreme Court May Trim Voting Rights Safeguards

            The Roberts Court appears to be poised again to narrow federal safeguards for voting rights in the states. The justices are scheduled to hear arguments next week [March 2] in an important legal challenge brought by Democrats and minority group voters aimed at nullifying two Arizona laws that the challengers say have the effect of suppressing minority votes.

            The Grand Canyon State, it must be noted, has a history of racial discrimination in voting procedures comparable to the worst of the states in the pre-civil rights South. With its substantial Hispanic population, Arizona adopted an English literacy test as a prerequisite for voting when admitted as a state in 1912 and maintained that requirement until 1972. In fact, Arizona was one of the two states outside the South that were singled out for special federal scrutiny in the federal Voting Rights Act (VRA) because of their histories of racial discrimination.

            The two consolidated cases at the Supreme Court, Brnovich, Attorney General v. Democratic National Committee and Republican Party of Arizona v. DNC, pose the important, recurrent issue of whether the later-amended 1965 law prohibits election laws and policies that hurt minority group voting even if race-neutral on their face. In its ruling in the cases, the Ninth U.S. Circuit Court of Appeals found Arizona’s laws in violation of the federal law by following three other federal circuits that had similarly adopted a “results” test in applying the VRA.

            The Arizona laws at issue include one enacted in 2016 that was sponsored by a Republican legislator concerned with suppressing the minority vote in his politically competitive district. The law, known as HB 2023 and codified at Ariz. Rev. Stat. § 16-1005, prohibits the practice known as “ballot harvesting,” a get-out-the-vote tactic used by Arizona’s Democrats but not by the state’s Republicans.

            Arizona already had a law on the books that prohibited actual fraud in third-party ballot collection. The new law goes further to make it a low-level felony, punishable by fines or imprisonment, for anyone other than a family member or caregiver to collect a voter’s “voted or unvoted early ballot.” The other law at issue, codified at Ariz. Rev. Stat. §16-584, adopts a strict “out-of-precinct” (OOP) policy of discarding provisional ballots cast by voters outside their assigned voting precinct.

            The law requires that the out-of-precinct voter’s ballot be discarded in its entirety, not only for local races but also for district- or statewide races for legislative seats, Congress, or president. In a close race, the discarding of thousands of ballots under that policy could change the result, as plaintiffs argued through the four-year course of litigation and as dramatized by Joe Biden’s narrow 11,000-vote margin over President Trump in the 2020 election.

            Arizona may be thought of as a Republican state, based on the role that the state’s five-term senator Barry Goldwater played in birthing present-day Republican conservatism in the 1960s. The state’s longest serving senator, however, was Carl Hayden, a Democrat who served in the U.S. Senate from 1927 to 1969. Hayden’s colleague for two terms was a fellow Democrat, Ernest McFarland, who lost to Goldwater in seeking a third term in the 1952 election.

            Today, Arizona again has two Democratic senators: Krysten Sinema defeated her Republican opponent in 2018 by 56,000 votes and Mark Kelly beat his Republican opponent in 2020 by about 80,000 votes. Biden’s victory over Trump marked the ninth time the state voted for the Democratic presidential candidate out of twenty-seven elections since statehood.

            The evidence in a ten-day bench trial before U.S. District Court Judge Douglas Graves in October 2017 showed that the ballot collection and out-of-precinct laws affected minority voters, Hispanics and Native Americans, more than they affected white voters. But Graves accepted Arizona’s argument that the laws held up because they served the state’s interests in ballot security and administrative efficiency. On appeal, a panel of eleven Ninth Circuit judges voted 7-4 to find that H.B. 2023 had been enacted “with discriminatory intent” and that both policies “unduly burden minorities’ right to vote.”

            The Supreme Court agreed in October to hear Arizona’s appeal of that decision. The Court, it will be recalled, gutted the Voting Rights Act in a 5-4 decision eight years ago by effectively nullifying the act’s so-called preclearance requirement. That provision required states or counties with histories of racial discrimination to get approval from the Justice Department or a federal court for any changes in election laws or procedures. With that provision in effect, the three covered Arizona counties were frequently blocked from instituting proposed election law changes.

            At the Supreme Court, conservative groups and civil rights organizations have filed more than three dozen amicus briefs in the current cases to underline the high stakes for future voting rights cases. Even with the cases pending, however, Arizona lawmakers are working to make voting more difficult with pending proposals, for example, to eliminate no-excuse absentee voting and to bar election officials from sending ballot applications to voters except on the voter’s request.

            Supreme Court handicappers might view Arizona as a likely winner in the cases, given Roberts’ pivotal vote in the 2013 decision and the Court’s current 6-3 conservative majority after  President Trump’s three appointments. Conservative textualists can rule that way, however, only by ignoring Congress’s decision in 1982 to amend the law specifically to prohibit any voting practice that “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.”


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