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Arizona voter-suppression laws survive U.S. Supreme Court appeal

In a boon to conservative state legislatures that have been adopting harsh voter restrictions in the wake of the 2020 election, the Supreme Court split 6-3 Thursday to uphold two Arizona laws found to suppress minority votes.

The majority opinion by Justice Samuel Alito drove a scathing dissent from Justice Elena Kagan, distraught that the court elected here to weaken the Voting Rights Act of 1965 for the second time in eight years. Kagan said the landmark law represents the best of America, as it marries democracy and racial equality, and the worst of America, as it remains necessary. 

“What is tragic here is that the Court has (yet again) rewritten — in order to weaken — a statute that stands as a monument to America’s greatness, and protects against its basest impulses,” she wrote, joined by Justices Stephen Breyer and Sonia Sotomayor. “What is tragic is that the Court has damaged a statute designed to bring about ‘the end of discrimination in voting.'”

Arizona passed the more recent of the two contested laws here in 2016, making it a felony punishable by prison and a $150,000 fine to collect early ballots from voters. Relatives of the voters are excepted from the prohibition, as are caregivers, mail carriers and election officials. The state’s other law, a bar against voters from casting ballots outside of their precinct, dates back to 1970.

Though Democrats note that such policies disproportionately affect voters of color — populations of whom tend to move more often and to live in precincts where the polling locations frequently change — Arizona denies that its policies run afoul of Voting Rights Act.

“Today is a win for election integrity safeguards in Arizona and across the country,” Arizona Attorney General Mark Brnovich said in a statement. “Fair elections are the cornerstone of our republic, and they start with rational laws that protect both the right to vote and the accuracy of the results.”

Section 2 of the federal law says states cannot impose any rule “which results in a denial or abridgment” of the right to vote on the basis of race, and Arizona emphasized that discriminatory results are not the same thing as discriminatory intent.

A conservative majority of the Supreme Court sided Thursday with the state, saying that the challengers themselves showed that out-of-precinct ballots were cast in the 2016 election by only “a little over 1% of Hispanic voters, 1% of African-American voters, and 1% of Native American voters.”

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“A policy that appears to work for 98% or more of voters to whom it applies — minority and non-minority alike — is unlikely to render a system unequally open,” Alito wrote, joined by Chief Justice John Roberts and Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. 

Kagan found more menace in the same numbers.

“In 2016, Hispanics, African Americans, and Native Americans were about twice as likely — or said another way, 100% more likely — to have their ballots discarded than whites,” she wrote. “And it is possible to break that down a bit. Sixty percent of the voting in Arizona is from Maricopa County. There, Hispanics were 110% more likely, African Americans 86% more likely, and Native Americans 73% more likely to have their ballots tossed. Pima County, the next largest county, provides another 15% of the statewide vote. There, Hispanics were 148% more likely, African Americans 80% more likely, and Native Americans 74% more likely to lose their votes.”

Kagan also reminds the reader that elections in Arizona tend to be decided on fairly thin margins: fewer than 11,000 votes separated the two presidential candidates in the latest election.

“A rule that throws out, each and every election, thousands of votes cast by minority citizens is a rule that can affect election outcomes,” she wrote. “If you were a minority vote suppressor in Arizona or elsewhere, you would want that rule in your bag of tricks. You would not think it remotely irrelevant.”

In addition to downplaying the number of voters affected — the challengers “were unable to provide statistical evidence showing that HB 2023 had a disparate impact on minority voters,” Alito said — the majority did not see anything particularly onerous about the ballot-collection law or the out-of-precinct policy.

“Having to identify one’s own polling place and then travel there to vote does not exceed the ‘usual burdens of voting,'” Alito wrote. “On the contrary, these tasks are quintessential examples of the usual burdens of voting.”

The court’s liberal wing scoffed at that logic.

“Whatever the majority might say about the ordinariness of such a rule, Arizona applies it in extra-ordinary fashion: Arizona is the national outlier in dealing with out-of-precinct votes, with the next-worst offender nowhere in sight,” Kagan wrote. “The second rule — the ballot-collection ban — makes voting meaningfully more difficult for Native American citizens than for others. And nothing about how that ban is applied is ‘usual’ either — this time because of how many of the state’s Native American citizens need to travel long distances to use the mail. Both policies violate Section 2, on a straightforward application of its text. Considering the ‘totality of circumstances,’ both ‘result in’ members of some races having ‘less opportunity than other members of the electorate to participate in the political process and to elect a representative of their choice.’ The majority reaches the opposite conclusion because it closes its eyes to the facts on the ground.”

In an amicus brief, the Navajo Nation said that members who live on the reservation have to travel up to 45 miles to the nearest post office, and only one in 10 families own a car. Because of the circumstances, it’s not uncommon for Navajos to ask their neighbors to deliver their mail for them. 

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But Alito said that, even if it is marginally harder for Arizona voters to find their assigned polling places, the state offers early mail-in voting and early-voting locations. 

Kagan slammed the majority for effectively white-washing the history and threat of efforts to suppress minority votes in America, dating back to Dred Scott v. Sandford in 1857 when “our court’s most deplorable holding made sure that no black people could enter the voting booth.”

Though “efforts to suppress the minority vote continue,” Kagan said the majority opinion offers no hint of this.

“It hails the ‘good news’ that legislative efforts had mostly shifted by the 1980s from vote denial to vote dilution,” she wrote. “And then it moves on to other matters, as though the Voting Rights Act no longer has a problem to address — as though once literacy tests and poll taxes disappeared, so too did efforts to curb minority voting.”

The case comes eight years after the Supreme Court largely gutted other requirements of the 1965 Voting Rights Act with a 5-4 ruling in Shelby Co. v. Holder.

After that court overturned the federal law’s requirement for states to seek Department of Justice preclearance before changing their election procedures, Alito remarked during oral arguments in March that Democrats seemed to be stretching what’s left of the federal statute.

“What concerns me,” Alito told Democrats at the time, “is that your position is going to make every voting rule vulnerable to attack under Section 2.”

In her dissent, Kagan swiftly recounted how the early months after the Shelby County decision saw states with histories of voter discrimination passing laws that preclearance would have made impossible. Those efforts have been amplified in recent months, Kagan continued, pointing to a May 2021 compilation from the Brennan Center.

“So the Court decides this Voting Rights Act case at a perilous moment for the Nation’s commitment to equal citizenship,” she wrote. “It decides this case in an era of voting-rights retrenchment — when too many States and localities are restricting access to voting in ways that will predictably deprive members of minority groups of equal access to the ballot box. … Congress never meant for Section 2 to bear all of the weight of the Act’s commitments. … Section 2 was supposed to be a back-up, for all its sweep and power. But after Shelby County, the vitality of Section 2 — a ‘permanent, nationwide ban on racial discrimination in voting’—matters more than ever.”

As her dissent concludes, Kagan noted how Arizona specifically excluded clan members or people with Native kinship ties from exemptions in the ballot-collection ban. And it did so with zero “evidence of fraud in ballot collection, or even an account of a harm threatening to happen,” Kagan balked.

“Recall that only 18% of rural Native Americans in the state have home delivery; that travel times of an hour or more to the nearest post office are common; that many members of the community do not have cars,” she wrote. “Given those facts, the law prevents many Native Americans from making effective use of one of the principal means of voting in Arizona. What is an inconsequential burden for others is for these citizens a severe hardship.”

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Jul 1, 2021, 1:17 pm
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Why does the caption have the voter supression laws written into it?

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The case comes eight years after the Supreme Court largely gutted other requirements of the 1965 Voting Rights Act with a 5-4 ruling in Shelby Co. v. Holder.

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