Supreme Court Upholds Arizona’s Ban on Ballot Harvesting, Voting in the Wrong Precinct

What’s the story?

• The Supreme Court issued its final decisions of the term on Thursday, including a ruling that upheld Arizona’s election laws. The case, known as Brnovich v. Democratic National Committee, concerns allegations raised by the DNC and its affiliates that some of Arizona’s election policies were discriminatory under the Voting Rights Act (VRA). 
• Specifically, Democrats alleged that Arizona’s prohibition on counting ballots cast at the wrong precinct had a disparate and adverse impact on minority voters and that the law which also banned the practice of “ballot harvesting” ― in which a third party collects and returns a voter’s ballot ― was enacted with discriminatory intent.
• A federal district court rejected the claims of adverse impact and discriminatory intent, while the Ninth Circuit reversed that decision and agreed with the Democrats’ claims.
• In a 6-3 decision along ideological lines, the Supreme Court overturned the Ninth Circuit’s decision, thereby upholding Arizona’s prohibitions on ballot harvesting and out-of-precinct voting.
• The ruling may have an impact on a lawsuit that was recently filed by the Biden administration’s Dept. of Justice which alleged discriminatory intent in a number of election policies enacted in Georgia, including a requirement that voters at the wrong precinct go to the proper precinct or cast a provisional ballot if it’s too late to do so.

What did the justices say?

• Justice Samuel Alito wrote the majority opinion for the Court which was joined by Chief Justice John Roberts, Justice Clarence Thomas, Justice Neil Gorsuch, Justice Brett Kavanaugh, and Justice Amy Coney Barrett. Alito’s opinion read in part:

“(N)either Arizona’s out-of-precinct rule nor its ballot-collection law violates Section 2 of the VRA. Arizona’s out-of-precinct rule enforces the requirement that voters who choose to vote in person on election day must do so in their assigned precincts. Having to identify one’s own polling place and then travel there to vote does not exceed the “usual burdens of voting.” On the contrary, these tasks are quintessential examples of the usual burdens of voting... 

The Court of Appeals noted that Arizona leads other States in the rate of votes rejected on the ground that they were cast in the wrong precinct, and the court attributed this to frequent changes in polling locations, confusing placement of polling places, and high levels of residential mobility. But even if it is marginally harder for Arizona voters to find their assigned polling places, the State offers other easy ways to vote. Any voter can request an early ballot without excuse. Any voter can ask to be placed on the permanent early voter list so that an early ballot will be mailed automatically. Voters may drop off their early ballots at any polling place, even one to which they are not assigned. And for nearly a month before election day, any voter can vote in person at an early voting location in his or her county…

Next, the racial disparity in burdens allegedly caused by the out-of-precinct policy is small in absolute terms. The District Court accepted the plaintiffs’ evidence that, of the Arizona counties that reported out-of-precinct ballots in the 2016 general election, a little over 1% of Hispanic voters, 1% of African-American voters, and 1% of Native American voters who voted on election day cast an out-of-precinct ballot. Ibid. For non-minority voters, the rate was around 0.5%. 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...

The plaintiffs were unable to provide statistical evidence showing that HB 2023 had a disparate impact on minority voters. Instead, they called witnesses who testified that third-party ballot collection tends to be used most heavily in disadvantaged communities and that minorities in Arizona—especially Native Americans—are disproportionately disadvantaged. But from that evidence the District Court could conclude only that prior to HB 2023’s enactment, “minorities generically were more likely than non-minorities to return their early ballots with the assistance of third parties.” How much more, the court could not say from the record. Neither can we. And without more concrete evidence, we cannot conclude that HB 2023 results in less opportunity to participate in the political process.”

• Gorsuch filed an opinion concurring with the majority’s decision that was joined by Thomas.
• Justice Elena Kagan wrote a dissenting opinion that was joined by Justice Stephen Breyer and Justice Sonia Sotomayor. It concluded:

“Congress enacted the Voting Rights Act to address a deep fault of our democracy—the historical and continuing attempt to withhold from a race of citizens their fair share of influence on the political process. For a century, African Americans had struggled and sacrificed to wrest their voting rights from a resistant Nation. The statute they and their allies at long last attained made a promise to all Americans. From then on, Congress demanded, the political process would be equally open to every citizen, regardless of race. One does not hear much in the majority opinion about that promise. One does not hear much about what brought Congress to enact the Voting Rights Act, what Congress hoped for it to achieve, and what obstacles to that vision remain today. One would never guess that the Act is, as the President who signed it wrote, “monumental.” Johnson Papers 841. For all the opinion reveals, the majority might be considering any old piece of legislation—say, the Lanham Act or ERISA.

But then, at least, the majority should treat the Voting Rights Act as if it were ordinary legislation. The Court always says that it must interpret a statute according to its text—that it has no warrant to override congressional choices. But the majority today flouts those choices with abandon. The language of Section 2 is as broad as broad can be. It applies to any policy that “results in” disparate voting opportunities for minority citizens. It prohibits, without any need to show bad motive, even facially neutral laws that make voting harder for members of one race than of another, given their differing life circumstances. That is the expansive statute Congress wrote, and that our prior decisions have recognized. But the majority today lessens the law—cuts Section 2 down to its own preferred size. The majority creates a set of extra-textual exceptions and considerations to sap the Act’s strength, and to save laws like Arizona’s. No matter what Congress wanted, the majority has other ideas.

This Court has no right to remake Section 2. Maybe some think that vote suppression is a relic of history—and so the need for a potent Section 2 has come and gone. (“[T]hings have changed dramatically”). But Congress gets to make that call. Because it has not done so, this Court’s duty is to apply the law as it is written. The law that confronted one of this country’s most enduring wrongs; pledged to give every American, of every race, an equal chance to participate in our democracy; and now stands as the crucial tool to achieve that goal. That law, of all laws, deserves the sweep and power Congress gave it. That law, of all laws, should not be diminished by this Court.”

— Eric Revell

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