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Supreme Court Appears Likely to Uphold Arizona Voting Restrictions

March 2, 2021 by Dan McCue
Outside the U.S. Supreme Court building. (Photo by Dan McCue)

WASHINGTON – All six conservative justices on the Supreme Court appeared inclined Tuesday to support voting restrictions imposed in Arizona that critics say discriminate against racial minorities. 

The case, Brnovich v. Democratic National Committee (Consolidated), is one of the most watched of the current Supreme Court term. 

Whichever way the justices decide the case, it is likely to have profound implications as state and federal lawmakers on both sides of the aisle aim to enact voting legislation. 

If the six justices toss out an appellate ruling that struck down the Arizona restrictions, the ruling could make it harder to challenge, on the basis of race, a raft of voting measures Republicans have proposed following last year’s elections. 

During two hours of oral arguments heard by telephone due to the coronavirus pandemic, the justices were sometimes combative and at other times seemed to be grasping for a middle ground for a legal standard on which they could all agree. 

Throughout the proceedings the three liberal members of the court, appointed by Democrats, seemed more sympathetic to those challenging the law. 

The Supreme Court’s last major Voting Rights Act decision was in 2013, when a 5-4 conservative majority struck down a provision requiring state and local governments with a history of discrimination to get advance approval from the Justice Department or a federal court before making any changes to elections. 

In that ruling, written by Chief Justice John Roberts, the majority held that Congress “must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions.” 

“It cannot rely simply on the past,” Chief Justice Roberts wrote. 

At the heart of the current case is an Arizona law that makes it a crime for most people to collect or deliver another individual’s early ballot, a practice commonly referred to as ballot harvesting. 

A federal court invalidated those provisions, noting a “pattern of discrimination against minority voters has continued to the present day” and arguing that Arizona has a “long history of race-based discrimination against its American Indian, Hispanic, and African American citizens.” 

Arizona Attorney General Mark Brnovich, a Republican, appealed the decision to the Supreme Court, arguing that the laws are “commonplace election administration provisions.” 

The court was also asked to determine whether Arizona’s longtime policy of rejecting ballots cast in the wrong precinct is constitutional. 

Chief Justice Roberts began his inquiry by questioning the assertion by attorney Michael Carvin, who was defending the measures, that it is not the state’s responsibility to maximize voter participation. 

“Is it maximizing participation or equalizing it?” Roberts asked. “In other words, that only comes up when you have disparate results. And why should there be disparate results if you can avoid them?” 

When Carvin later defended the “valuable anti-fraud concerns implicated in ballot harvesting,” Justice Sonia Sotomayor pushed back, arguing a lower court ruling in the case “found no meaningful threat that ballot collection leads to fraud.” 

Justice Brett Kavanaugh pointed to the 2005 recommendation of a commission chaired by former President Jimmy Carter and the late James Baker to eliminate ballot collection, among other ideas to reduce the chance for election fraud. 

 Kavanaugh said the recommendation seemed to be the sort of “circumstance that puts a thumb on the scale in favor of the legitimacy of the rule.” 

 But Jessica Amunson, representing Arizona Secretary of State Katie Hobbs in opposition to the restrictions, said the court should not ignore the state’s experience with ballot collection. 

“Arizona had a 25-year history of literally not a single instance of fraud with ballot collection,” Amunson said. 

Justice Elena Kagan posed a series of questions that seemed to be aimed at other restrictions that could find their way to the court, including reducing time for early voting and eliminating polling places. 

When she was through, Carvin suggested the examples she cited “have never existed in the real world.” 

Kagan replied that they didn’t “seem so fanciful to me.” 

A decision in the case is expected in June. 

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