Justices hear sparring over scope of safeguards for minority voters

The Supreme Court on Tuesday heard fierce debate in a dispute over GOP-backed Arizona voting restrictions that could see the justices weaken federal safeguards for minority voters.

The justices posed tough questions to both sides during a two-hour telephone argument that pitted Democrats, who alleged the voting curbs are racially discriminatory, against Arizona Republicans, who defended the rules as important anti-fraud measures.  

The case could redefine the scope of the Voting Rights Act and establish a new standard for judging the lawfulness of voting restrictions now working their way through GOP state legislatures ahead of the 2022 midterm elections.

There were some indications that the 6-3 majority court seemed inclined to uphold the pair of Arizona voting restrictions that were struck down last year by a federal appeals court. The most conservative justices, probing for an appropriate legal test, seemed wary of adopting a rule that could sweep too broadly. 

“I think what concerns me is that your position is going to make every voting rule vulnerable to attack,” Justice Samuel Alito said to a Democratic attorney. “People who are poor and less well educated on balance probably will find it more difficult to comply with just about every voting rule than do people who are more affluent and have had the benefit of more education.”

One Arizona law at issue bars most third parties from delivering ballots on behalf of others, a practice critics have dubbed “ballot harvesting.” The other disputed measure is Arizona’s policy of discarding ballots cast at the wrong precinct.

The restrictions were struck down last year by the San Francisco-based U.S. Court of Appeals for the Ninth Circuit, which found the measures made it harder for people of color to cast ballots, in violation of the VRA’s Section 2.

Democratic challengers in the case, backed by a raft of amicus briefs from civil rights groups, pointed to Section 2 as a key safeguard after the court’s 2013 decision in Shelby County v. Holder effectively gutted another provision of law.

Bruce Spiva, who argued on behalf of the Democratic National Committee, urged the justices to affirm the lower court’s ruling, arguing that robust safeguards were particularly critical in light of new voting restrictions being considered across the country. 

“The last three months have seen an even greater uptick in proposed voting restrictions,” Spiva said. “Many aim squarely at the minority groups whose participation Congress intended to protect rigorous and fair enforcement of Section 2 is as critical to the protection of minority voting rights today.”

Some of the court’s more liberal justices appeared to embrace an expansive application of Section 2 that heavily weighs the disparate impact on minority voters.

“If you can’t vote because you are a Native American or a non-Hispanic in areas where car ownership rates are very small, where you don’t have mail pickup or mail delivery, where your post office is at the edge of town and so that you require either a relative to pick up your vote, or you happen to vote in a wrong precinct because your particular area has a confusion of precinct assignments, if you just can’t vote for those reasons and your vote is not being counted, you’ve been denied the right to vote, haven’t you?” Justice Sonia Sotomayor said, pressing one of the GOP lawyers.

Chief Justice John Roberts, who wrote the 5-4 majority opinion in Shelby County, was among several justices who appeared on Tuesday to be searching for a workable test for applying challenges under Section 2.

He appeared sympathetic to the argument by lawyers defending the GOP-backed restrictions that states have a legitimate interest in enacting rules for the purpose of preventing voter fraud. 

Roberts and other conservative justices referred at points to a 2005 bipartisan report by former President Carter and James Baker, the former Republican secretary of State under former President George Bush, which endorsed various voting restrictions.

Arizona’s Republican attorney general, Mark Brnovich, said the court should require proof that any burden placed on minority voting rights as a result of a voting safeguard must be substantial. Statistical data showing a minor disparate effect should not be enough, he argued.

“When it comes to regulations that are designed to uphold the integrity of the election process,” he said, “I think the Court should be very skeptical when it overturns any sort of state election statutes based on some sort of statistical anomalies.”

Justice Brett Kavanaugh, one of the court’s more moderate conservatives, seemed to lean in favor of a datapoint that Brnovich highlighted in his court brief: Like Arizona, a majority of states require in-precinct voting and about 20 states limit ballot collection.

“When a state rule is commonplace in other states, that would seem to be a circumstance that puts a thumb on the scale in the favor of the legitimacy of the state rule and it not being a reflection of discriminatory intent,” Kavanaugh said. “And, here, the out-of-precinct policy is in something like 26 other states, including a wide variety of states, including states with no history of discrimination.”

Updated 3:06 p.m.