Supreme Court Upholds Arizona Voting Restrictions

Supreme Court Upholds Arizona Voting Restrictions

The decision, a test of what remains of the Voting Rights Act, suggested that challenges to many new measures making it harder to vote may not be successful.

By Adam Liptak
July 1, 2021Updated 12:31 p.m. ET

WASHINGTON — The Supreme Court on Thursday upheld voting restrictions in Arizona and signaled that challenges to new state laws making it harder to vote would face a hostile reception from a majority of the justices.

The vote was 6 to 3, with the court’s three liberal members in dissent.

The decision was the court’s first consideration of how a crucial part of the Voting Rights Act of 1965 applies to voting restrictions that have a disproportionate impact on members of minority groups, and it was issued as disputes over voting rights have taken center stage in American politics.

As Republican-controlled state legislatures increasingly seek to impose restrictive new voting rules, Democrats and civil rights groups have turned to the courts to argue that Republicans are trying to suppress the vote, thwart the will of the majority and deny equal access to voters of color. The Arizona decision suggested that Supreme Court would not be inclined to overturn many of the state measures.

Justice Samuel A. Alito Jr., writing for the majority, said courts should strike down voting restrictions only when they impose substantial burdens on minority voters that effectively block their ability to vote.

“Where a state provides multiple ways to vote,” he wrote, “any burden imposed on voters who choose one of the available options cannot be evaluated without also taking into account the other available means.”

Justice Alito added that states had a legitimate interest in rooting out fraud.

“Fraud can affect the outcome of a close election, and fraudulent votes dilute the right of citizens to cast ballots that carry appropriate weight,” he wrote. “Fraud can also undermine public confidence in the fairness of elections and the perceived legitimacy of the announced outcome.”

In dissent, Justice Elena Kagan wrote that the majority had done violence to the Voting Rights Act, a civil rights landmark.

“Wherever it can, the majority gives a cramped reading to broad language,” she wrote. “And then it uses that reading to uphold two election laws from Arizona that discriminate against minority voters.”

The ruling will draw fresh attention to congressional efforts to address new state voting restrictions. An ambitious, sprawling bill being pushed by Democrats, called the For the People Act, is stalled in the evenly divided Senate. Unless moderate Democrats like Senator Joe Manchin of West Virginia change their minds and agree to change Senate filibuster rules to allow legislation to pass with a simple majority rather than the 60 votes necessary for most bills, it has little chance of becoming law.

Some congressional Democrats hold out hope for narrower legislation, notably the John Lewis Voting Rights Advancement Act, which seeks to restore a key provision of the Voting Rights Act. Still, there is little sign of sufficient Republican support to get that measure through the Senate either.

The court’s decision may also complicate the Justice Department’s suit against a new Georgia voting law. Though the department appeared to anticipate Thursday’s ruling, pressing the argument that Georgia lawmakers acted with discriminatory intent, legal experts said the decision addressed that approach, too.

“The court today also makes it harder to prove intentional racial discrimination in passing a voting rule, making it that much harder for D.O.J. to win in its suit against the new Georgia voting law,” Richard L. Hasen, a law professor at the University of California, Irvine, wrote in a blog post.

The larger message of the ruling was that the Voting Rights Act of 1965, hobbled after the Supreme Court in 2013 effectively struck down its central provision, retains only limited power to combat voting restrictions said to disproportionately affect minority voters’ access to the polls.

The 2013 decision, Shelby County v. Holder, concerned the law’s Section 5, which required prior federal approval of changes to voting procedures in parts of the country with a history of racial and other discrimination. But Chief Justice John G. Roberts Jr.’s majority opinion said the law’s Section 2 would remain in place to protect voting rights by allowing litigation after the fact.

While Section 5 was available, Section 2 was used mostly in redistricting cases, where the question was whether voting maps had unlawfully diluted minority voting power. Its role in testing restrictions on the denial of the right to vote itself has been subject to much less attention.

President Biden said in a statement that “the court has now done severe damage” to two important provisions of the Voting Rights Act.

“After all we have been through to deliver the promise of this nation to all Americans, we should be fully enforcing voting rights laws, not weakening them,” he said. “Yet this decision comes just over a week after Senate Republicans blocked even a debate — even consideration — of the For the People Act that would have protected the right to vote from action by Republican legislators in states across the country.”

“While this broad assault against voting rights is sadly not unprecedented, it is taking on new forms,” Mr. Biden said. “It is no longer just about a fight over who gets to vote and making it easier for eligible voters to vote. It is about who gets to count the vote and whether your vote counts at all.”

The new case, Brnovich v. Democratic National Committee, No. 19-1257, concerned two kinds of voting restrictions in Arizona. One required election officials to discard ballots cast at the wrong precinct. The other made it a crime for campaign workers, community activists and most other people to collect ballots for delivery to polling places, a practice critics call “ballot harvesting.” The law made exceptions for family members, caregivers and election officials.

The larger battle in the case was not whether the particular challenged restrictions should survive. The Biden administration, for instance, told the justices in an unusual letter that the Arizona measures did not violate Section 2. But the letter disavowed the Trump administration’s interpretation of Section 2, which would have limited its availability to test the lawfulness of all sorts of voting restrictions.

Section 2 bars any voting procedure that “results in a denial or abridgment of the right of any citizen of the United States to vote on account of race.” That happens, the provision goes on, when, “based on the totality of circumstances,” racial minorities “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.”

The Arizona case was filed by the Democratic National Committee in 2016. Last year, the United States Court of Appeals for the Ninth Circuit, in San Francisco, ruled that both Arizona restrictions violated Section 2 because they disproportionately disadvantaged minority voters.

In 2016, Black, Latino and Native American voters were about twice as likely to cast ballots in the wrong precinct as were white voters, Judge William A. Fletcher wrote for the majority in the 7-to-4 decision. Among the reasons for this, he said, were “frequent changes in polling locations; confusing placement of polling locations; and high rates of residential mobility.”

Similarly, he wrote, the ban on ballot collectors had an outsize effect on minority voters, who use ballot collection services far more than white voters because they are more likely to be poor, older, homebound or disabled; to lack reliable transportation, child care and mail service; and to need help understanding voting rules.

Judge Fletcher added that “there is no evidence of any fraud in the long history of third-party ballot collection in Arizona.”

In dissent, four judges wrote that the state’s restrictions were commonplace, supported by common sense and applied neutrally to all voters.

Lawmakers were entitled to try to prevent potential fraud, Judge Diarmuid F. O’Scannlain wrote. “Given its interest in addressing its valid concerns of voter fraud,” he wrote, “Arizona was free to enact prophylactic measures even though no evidence of actual voter fraud was before the legislature.”

The appeals court stayed its ruling, and the restrictions were in place for the election last November.