Supreme Court Rules 6-3 in Arizona Voting Rights Case: Read It For Yourself
In a major voting rights case, the Supreme Court ruled 6-3 with Justice Alito writing the opinion in Brnovich v. Democratic National Committee that upholds bans on “ballot harvesting” and throwing out ballots casts in the wrong precinct.
The Supreme Court on Thursday upheld two election laws in the 2020 battleground state of Arizona that challengers said make it harder for minorities to vote.
The case was an important test for what’s left of one of the nation’s most important civil rights laws, the Voting Rights Act of 1965, which the Supreme Court scaled back in 2013. A remaining provision allows lawsuits claiming that voting changes would put minority voters at a disadvantage in electing candidates of their choice.
Civil rights groups were hoping the Supreme Court would use the Arizona case to strengthen their ability to challenge the dozens of post-2020 voting restrictions imposed by Republican legislatures in the wake of Donald Trump’s defeat.
The 6-3 ruling Thursday, which was split between the conservative and liberal justices, said Arizona did not violate the Voting Rights Act when it passed a law in 2016 allowing only voters, their family members or their caregivers to collect and deliver a completed ballot. The court also upheld a longstanding state policy requiring election officials to throw out ballots accidentally cast in the wrong precincts.
Lawyers for the state said they wanted to prohibit “unlimited third-party ballot harvesting,” which they called a commonsense way to protect the secret ballot. They said the out-of-precinct rule was intended to prevent fraudulent multiple voting.
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But Arizona Democrats said the state had a history of switching polling places more often in minority neighborhoods and locating them in places intended to cause mistakes. And the Democrats said minority voters are more likely to need help turning in their ballots. In many states where ballot collection is legal, community activists offer it to encourage voting, they said.A federal judge in Arizona rejected the challenges. But the 9th U.S. Circuit Court of Appeals reversed the decision, so the state appealed to the Supreme Court.
In the past, the Voting Right Act required states with a history of discrimination to get permission from a court or the Justice Department before changing election procedures, the test being whether the change would leave minority voters worse off. But in 2013 the Supreme Court suspended that preclearance requirement, ruling that Congress failed to properly update the formula for determining which states should be covered.
Read SCOTUS decision on the Arizona Voting Rights case for yourself here:
arizona voting rights
Ballot harvesting: I’ve never been comfortable with this as a concept. I get why it’s done, because states get stingy with polling places and official ballot drop-offs, but still.
Wrong precinct: How many such ballots are tossed every election?
Note: AZ is a vote by mail state. When I lived there, I signed up for it when I got my drivers license, and as you can see from the link, it’s very easy to sign up on line. I get less concerned about polling places and ballot drop offs when you can drop it off in any outgoing mailbox.Report
The DOJ argument was not based on the number of people affected, but that a large majority of those that were affected* were Native Americans living on the reservations, hence de facto racial discrimination.
* Eg, the example I’ve heard from an acquaintance living in Arizona is a group of families not all related to one another living in the same area, 40 miles from the nearest USPS drop-off or pick-up site, and one person makes a weekly run to get/send mail.Report
If everyone is voting by mail, is this legally ballot harvesting, or is it just sending the mail? How would the state know if one guy took in everyone’s mail and dropped it in a blue box when he ran into town?Report
If someone not a relative, caregiver, or election official conveys the ballot from house to mailbox/drop box, it’s harvesting under the law. In the event of a complaint, I wonder if “I take Danny’s mail to the drop-off place every week when I go there” would count as a caregiver?Report
Then I can see that as a problem, if the exceptions are so narrow. I don’t have a problem with the state not wanting some stranger (who is not known to/been vetted by the SOS office) to collect your ballot, but if I the voter can show that I have a relationship with the person taking my mail to PO, then the state should be OK with that. I mean, the ballots are in sealed envelopes, so absent evidence of tampering…Report
None of this has ever been about evidence. It’s always been about limiting participation by people who don’t reliably vote Republican.Report
Again, AZ is vote by mail, so in this particular case, the complaints are on the margins.
And the states have a great deal of constitutional leeway when it comes to how they run their elections, and as frustrating as it is, if that wasn’t the case, the SCOTUS might have been more inclined to step in for Trump and his cronies claims.Report
Let me try again – there’s no evidence that in Arizona, the two voting regulations contested in this suit are not based on evidence of fraud that needs to be combatted. You may not like ballot harvesting, but in Arizona that doesn’t appear to have ever been an issue in terms of election fraud. Thus there’s no evidence that provision does anything other then make it harder for Native Americans to vote. Which is, as noted above, racial discrimination. Its not a complaint on the margins.
As to the out of precinct vote tossing, as noted below that causes uniform problems for a great many people elsewhere. Arizona may avoid the need to reckon with bad law (which should have been stricken when the state went to majority vote by mail), but other states that still rely on in person voting now have a clear path to keep doing all sorts of things they shouldn’t.
Neither of these provisions makes voting easier on Arizona voters. Neither of them expands voter participation. And neither of them has evidence to support their necessity in terms of being a path to voter fraud.
That clear enough for ya?Report
That was Michael’s anecdote, was that argued before the court? (I haven’t read the decision, slogging through 85 pages of legalese will take me a while).
I’ll have to ask my Uncle Bob about how such things typically impact tribes (he was a tribal manager for a couple of tribes up in AK for most of his career, he knows how such things work). As I said above, I’m not sure how the state stops the tribal members living on tribal land from just having one neighbor run all the mail in from everyone in their ‘neighborhood’. What is the GOP going to do, park a ‘poll watcher’ at every mail drop near or on the reservation and interrogate anyone putting more than a single piece of mail in the box? Pretty sure that’s harassment.
And again, states have wide latitude to manage their elections and I’m not seeing the court running afoul of that. That latitude and the courts unwillingness to contend with it is a big part of the reason Trump is not on his second term. You take the good with the bad here.Report
Granted, the behavior the law is intended to quell, which has been known to happen, is when someone shows up at the drop box with the ballots from half the voters on a block. So far as I know, there have been no cases in Arizona where it was shown that such ballots were completed by anyone but the proper person, or that the voters were coerced to vote a particular way, or that ballots were selectively discarded.
If I were the Arizona Republicans, at this point in time I would be worried about (a) the governor is term-limited out, (b) my legislative majorities are razor thin, (c) the new districts will be drawn by commission, (d) the red-to-blue trend in the West is moving against me, and (e) all the polling suggests that the ballot audit and making it harder to vote are pissing the suburban voters off even more. I’m willing to bet a craft beer that the current Republican trifecta in Arizona is replaced by a Democratic trifecta in 2022. If that’s correct, laws like this one will be quietly repealed.Report
Agreed, AZ is rather purple and getting bluer all the time.Report
The fact that the elections in AZ are razor thin is exactly why this law was passed.
If they can suppress even a fraction of a percent of the votes, they can eke out a few more victories, and cement a permanent minority rule.Report
“cement a permanent minority rule”
That’s a boogieman. It’s never permanent because they always abuse the power and the majority will have them out.
I mean, AZ has been a comfortable GOP stronghold for decades, and has arguably enjoyed minority rule for quite a lot of that time, and that is being aggressively chipped away at by the majority.Report
Look at North Carolina. A legislative majority can suppress votes and gerrymander to preserve itself, and at the same time centralize power in the legislature.
And a 6-3 GOP SCOTUS majority is another example.Report
But is it permanent? Trust me, I’ve been very vocal over my disdain for TPTB being allowed to game the system so that they remain TPTB (Gerrymandering being a consistent favorite of mine).
But how are you defining permanent? A majority that hangs on for a decade, two? five? In my book, you want to show a permanent minority rule, you gotta show me that A) it really is a minority, not just a state that is 45/55 or closer,; and B) there is really no mechanism by which the majority could oust the minority if they actually voted? Gerrymandering can do a lot, but so does incumbent protection.
If a minority has a lock on power, that is because the voters let them.Report
Well, you’re right.
The Soviet Union only lasted, what, seventy years or so?
And what is this stuff, that only 45-55 doesn’t count as minority rule?
Lets apply your logic to Venezuela, Cuba, Nicaragua, and see if any of them count as “minority rule”.Report
Stop shifting the goal posts, Chip.
This isn’t about ‘minority rule’, it’s about ‘permanent minority rule’,; and it’s about ‘permanent minority rule’ in a US state, not a foreign country.
Try again.
What constitutes ‘permanent minority rule’ in a US state? And I want the mechanism by which the voters absolutely CAN NOT legally oust the minority party from power.Report
You’re defining the term out of existence.
There is never a case, in any regime anywhere where the people “absolutely CAN NOT” oust their rulers.
And no repressive regime has ever been “permanent”.
Once again, I need to point out that even the most repressive regimes are actually popular by some large minority of voters.
So that minority only need to shade the odds slightly, tilt the board just a little bit in their favor to stay in power for decades.Report
I’m not defining the term out of existence, “permanent” has a very clear definition.
What you describe is persistent minority rule, which is arguably a bad thing, because minority power tends to do bad things to stay in power.
But persistent minority rule is simply a flaw in our system. And it is a flaw that is allowed to persist during majority rule because the flaw that allows for persistent minority rule also allows for an easier time executing and maintaining majority rule.
For instance, the majority can also execute the soft authoritarianism you describe below, to keep dissent in check.Report
SCOTUS isn’t “permanent”, but it’s a generation at least. Longer if Breyer insists on bringing a peashooter to a gunfight.Report
I thought SCOTUS was ‘lifetime’, not ‘permanent’?
Although I am open to changing that ‘lifetime’ to ‘single term of X years’.Report
In the Brezhnev era, the Soviet Union had discovered “soft authoritarianism” where they didn’t need to use overt violence to keep order.
Since they controlled all the institutions like churches, colleges, and factors of production, they simply erected a system of carrots and sticks.
Like, if you advanced a critical theory the state didn’t like, you might suddenly be denied tenure; Or if your religion or ethnicity was suspect, your building application for a mosque or synagogue would be denied for reasons.
The Republican Party has already adopted this mindset, where all the organs of the state must be used to reward loyalty and punish dissent.Report
Wisconsin says hi. 30% of the vote, 60% of the seats in their Leg.Report
Remember, I grew up in WI, lived there until 2006. WI has been purple for as long as I’ve been alive.
https://en.wikipedia.org/wiki/Political_party_strength_in_WisconsinReport
Which has what to do with gaining 30 % of the votes and 60% of the seats?
I mean that seems a pretty solid definition of “minority rule”.
You get a minority of the votes, and super-majority of the representation.Report
First of, minority rule happens, it happens all across the political spectrum. There have been (and probably are, I’d have to look) places where team blue has held/holds sway over a red population. If minority rule is really a problem, it’s always a problem, regardless of the team holding power.
Second, it happens as a quirk of our system. WI maybe has a minority rule, but WI has not had persistent minority rule. It’s a battleground state for a reason, because the parties change out kinda regular. Right now, the GOP does not have a trifecta in play in the state. So you can’t even make the case that they have minority rule, unless you call 10 years of the GOP holding the legislature as minority rule somehow. Which is fine, I guess, but you look back and you’ll see team blue holding a lock for a long time as well. The GOP doesn’t have a monopoly on gerrymandering.
And despite the gerrymandering, the GOP in WI still has to work for it.
But again, I am all for not letting legislatures set their districts. The bad of it outweighs the good, IMHO. But I understand why SCOTUS won’t engage with that, so voters are just going to have to make it an issue and drive the non-partisan commissions.Report
So you can’t even make the case that they have minority rule, unless you call 10 years of the GOP holding the legislature as minority rule somehow.
Yes.
We call it that because…that’s exactly what minority rule means. They don’t have the consent of the majority, yet rule anyway.Report
Ever look at the WI political affiliation demographics? It’s an even split.
https://www.pewforum.org/religious-landscape-study/state/wisconsin/party-affiliation/Report
Wisconsin is 38 to 60.
Statewide they voted for Obama 53% over Romney, so call them 50/50.
7% of the state is Black. Highly likely that 7% is carved out into their own areas to encourage blacks in office.
If those Blacks vote as a block or near block, then we should expect the rest of Team Blue to struggle since they’re 43/50 without them.
And yes, Team Red controlled things in 2011, which helps a lot for the next election or two but less so right now.Report
I know my opinion is in the minority, but I believe 2020 was the last year where the AZ Republicans could steal an election by squeezing out a few votes on the margin. If they’re going to steal AZ in 2022, they’ll have to do much more. And the bills that would do much more are languishing in the legislature because there are at least a couple of Republican members who can see where their district is going. And that’s all it takes.
I think Colorado is instructive. Our new redistricting commission has released its first draft map for the eight (up from seven) Congressional districts. Much more urban-rural split. Six districts are carved out of the Front Range urban corridor, and at that, some of the exurbs and a couple of 100,000+ population cities had to be sliced off and tacked onto one of the rural areas to bring them up to enough people. The state legislature draft maps make it even clearer. The same population concentration is happening in AZ. And there’s that handful of Republican members in AZ who want to stay on and can see their districts are going to shed exurbs and be much more suburbs pissed off about stupid audits and making it harder to vote.
On the days when I want to depress myself, I remind me that there will be three new eminently winnable districts in the West and the DCCC will possibly screw up all three of them.Report
“Wrong precinct: How many such ballots are tossed every election?”
A surprising amount, especially if for some reason your correct voting location keeps getting shuffled around every election.
Harris County (Houston) a few years back, decided that since they have electronic voting machines, electronic poll books, and can serve the proper ballot to any machine, to go with precinct-less voting.
As long as you’re in Harris County, you simply walk into any polling location and vote. I’m surprised the State of Texas still allows it.
Admittedly, this grew OUT of early voting — wherein they had to lay down the infrastructure to serve your proper ballot to an early voting location (which was a tiny subset of the election day voting locations), but in the end they decided they had enough people voting wrong precinct on election day to do this.
And this was with Houston NOT playing some of the fun election day games the South loves, such as “Let’s change your voting location every 2 years and accidentally not tell you” — which is an old favorite they love to play on inner city precincts.
Right up there with “We’ve closed several locations” and “you have a four hour long line because you only have 6 working machines, which is one more than last election!”Report
And yet “conservative” jurisprudence seems to think this is fine, since no is outright getting turned away from a precinct.Report
Which, in a place without vote by mail, is a real problem.
If you can get a ballot sent to you, no reason needed, no questions asked, the wrong precinct question becomes less of an issue.
As for swapping precincts around, while I am certain some places do that in a manner of shenanigans, citizens do have an obligation to stay informed regarding where and how to vote. So I would need to see that the precincts shifted right before an election, with little to no public notice, and figuring out where your precinct is was difficult, or erroneous (all of which I am certain has happened, but you need some actual evidence of it happening before I’m going to nod along that it’s a bad thing).
But again, AZ is vote by mail (largely), which is something which, once established, is something voters by and large love, even conservative ones (the exceptions being people who are highly transient, or whackadoodle conservatives who believe in Rudy, Lin, & Sydney).Report
Doesn’t matter when – the impacts are still felt:
https://www.brennancenter.org/our-work/research-reports/did-consolidating-polling-places-milwaukee-depress-turnoutReport
Note that WI is not a VBM state. They should be. Hell, every state should be, it’s the way to go, IMHO. But again, how much do you want the federal government and federal courts to be able to muck around in state voting? I fully expect another populist with little respect for laws and norms to find their way to the top office, and I was very glad when those self same courts and states told the federal government to butt the feck out in 2020.Report
The VRA was the federal government and federal courts mucking around in state voting, but thanks to the Roberts Court, it’s pretty much dead now. The big risk now is partisan state legislatures mucking around in local election counts, as AZ is doing with the fraudit and Georgia recently passes enabling legislation for.Report
Have any of these laws prevented a demographic from voting, or merely made voting inconvenient? Absent chicanery (like purging voter rolls right before an election) that prevents a person from voting, or somehow interferes with the vote once cast (say, losing all the ballots from a given neighborhood), all I see are inconveniences to exercising a right.
And while, as I said above, I am all for making voting easy (no questions VBM in every state!); hell, I am all for making the exercise of every right as easy as possible; I have also been told by a lot of folks here that an inconvenience to exercising a right is not the same as the loss of the right. So the fact that I have to maybe jump through extra hoops to own a gun is not, in fact, an imposition of my right to own one.
I mean, we can say the same thing about abortion, right? Making it inconvenient to have an abortion is not really an imposition of the right.
Since everybody seems perfectly fine with making the exercising of rights they don’t really like as inconvenient as they can, I find myself with a significant lack of f*cks to give over this. IN THIS CASE, Arizona has an easy, no questions asked mail in voting system. All you have to do is be a tiny bit proactive and sign up or request a ballot a few weeks ahead of the election. The lack of physical polling places and what not is effectively moot. About the only question I have is whether or not dropping your neighbors mail off at the PO, when the mail contains a ballot, is considered ballot harvesting (I’d argue it’s not, but I have no idea if that question was argued before the court).
Now, if THIS CASE was talking about, say, WI, where there is not a robust VBM system in place, then my opinion would shift, because such restrictions would, in fact, be a problem.
However, seeing as how I grew up in rural WI, where the nearest polling place was at least a 30 minute drive (possibly much, much longer if we had an early winter storm) and a considerable wait in line, (since nobody in the rural part of the state can just take off work to go vote in the middle of the day, so they all show up in the late afternoon and evening), and no one really seemed to care back then (or even now, really, AFAICT) about how inconvenient it was to go haul your selves to the polls, I can’t help but see all of this concern as a wholly partisan exercise.Report
Destroying what was left of the VRA means a future of voting rights being eroded. As for right now, will a large number of Native American ballots be thrown out because the usual practice of mail being taken in together is declared illegal ballot harvesting? I don’t know, nor does anyone else but we do know that would be fine with SCOTUS.
We’ve seen the USPS sabotaged to interfere with VBM; we are seeing a GOP legislature commision fraud to slander a fair election. What more do you need to conclude that voting rights are under attack?Report
I’m not saying they aren’t, I am asking why I should care when there is a perfectly reliable, if somewhat inconvenient, way in AZ to make sure your vote is counted.
What I am asking for is consistency of position. If making the exercise of a right inconvenient based upon vague concerns is fine for those rights, but not for these, why should I care about your concerns?
As for SCOTUS, I am fine with them staying out of it, for the reasons I stated before.
I will concede that the question of ballot harvesting for mail in ballots needs to be answered sooner rather than later. That is not a question that can wait for next election.Report
Why do we care about requiring immense amounts of paperwork to buy a gun. They don’t take away your 2nd Amendment rights; they just make them less convenient to exercise.
Analogies aside, there’s the very practical issue that people respond to incentives. If voting is easy from group A but hard for group B, A is going to have greater turnout than if things were even. The ins always have an incentive to skew things against the outs, and the courts used to be a counterbalance against that.Report
Here’s something just ran across. The League of Women Voters is suspending their voter registration drives in Kansas because they might violate the latest vote suppression laws.
https://kansasreflector.com/2021/07/01/kansas-groups-halt-voter-registration-drives-to-avoid-being-jailed-under-new-law/Report
And they are asking a judge to clarify, well ahead of the next election, and if worse comes to worse, you just make sure all your volunteers wear T-Shirts that say in big letters “NOT an election official.”Report
Thank you for restating my point. In both paragraphs, actually.
Listen, people in rural areas have ALWAYS had a challenge being able to vote, not just Native American tribes, because of the distances and timing involved. This is even more pronounced in the West, and why quite a few western states have VBM. The issue Michael describes, of communities far removed where one person may run the mail in for all the neighbors, is not unique to the tribes. What is unique to the tribes is the lack of a deliverable address, so many of them rely on PO Boxes. So yes, that question of ballot harvesting versus mail collection is salient.
But honestly, improving broadband access to tribal areas is probably a greater boon to serving those communities than anything that SCOTUS was thinking about.Report
I think it’s naive to imagine the Roberts court acting on any sort of principle.
When the shoe is on the other foot, they will discover/ invent from whole cloth a reasoning by which the Republican led federal government can restrict voting laws over the wishes of a Democratic led state.Report
Because the Roberts court has expressed any kind of willingness to get involved with state elections? Evidence please, or are you just going off of your partisan dislike of the guy?Report
Because there doesn’t seem to be any principle involved in their decisions regarding voting, other than “whatever restricts voting the most, is what we agree with”.
The decision in this case explicitly rejects the intent of Congress in passing the VRA, which was to have the federal government remedy rights violations by states.
Which is contrary to the lectures we get from conservatives about how the courts must interpret laws according to the intent of the drafters.
There isn’t anything in the Constitution prohibiting the VRA. The Roberts court in Shelby and this case just invent legal theories out of whole cloth to arrive at the decision they like.Report
What you need is something in the Constitution enabling it.
The Constitution gives the gov the power to do stuff. Whatever rights that aren’t granted aren’t possible.
You’re claiming the reverse, anything that isn’t expressly forbidden is allowed.
The court thought there was no rights violation. Quoting the decision, “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”Report
The 15th Amendment enables the VRA. The Roberts Court has unilaterally repealed it.Report
15th AM: The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
I think it’s a serious non sequitur leap to claim discarding ballots cast in the wrong precinct is the same as saying blacks can’t vote.Report
My grandmother died when she was 92. The final years were rough. She stopped reading, then watching TV, then talking. I think she not only didn’t know me but she didn’t know herself.
“Helping her vote” would also be “stealing her vote”. Erecting minimal barriers which only the totally incompetent couldn’t pass is fine, even a good thing.
“Total incompetence” is not a protected trait.Report
“Total incompetence” is not a protected trait.
Yet the Proud Boys rioted in its defense.Report
If all you have is non sequiturs, then maybe the issue isn’t with the Supremes.Report
Keep going:
The Roberts Court keeps substituting its notion of “appropriate” for the letter of the law. Remember when we used to call that activism?
And yes, if a voting law has disparate effect along racial lines, the VRA forbids it.Report
Are minorities more likely to vote in the wrong precinct? Is targeting shear incompetence also targeting minorities?Report
The issue with wrong precinct voting is less about competence and more about politicians shifting precincts around and not notifying the effected populations very well.
Another issue that VBM makes moot, and why we should adopt VBM far and wide.Report
The current problem with VBM is that it gives Louis DeJoy a veto on vote collection.Report
If DeJoy manages to break mail delivery so badly that the USPS can’t deliver pre-sorted ballots delivered to the local major sorting center (eg, what happens to about two-thirds of Colorado’s ballots, all in the Front Range urban corridor), there will already be major repercussions. Start with all the other parts of the federal government where official business has to be conducted by mail; not phone calls, not e-mail, physical USPS mail.
If it starts screwing over the business communities in AZ and WV, Sinema and Manchin will find a way to support breaking the filibuster for the USPS and fixing things.Report
When it comes to the Constitution, conservatives are like hipsters: They only like the original album, not the later amendments.Report