WASHINGTON — The Supreme Court confronted the growing partisan divide over voting rights Tuesday in an Arizona case in which Democrats are challenging two Republican-sponsored rules that appeared likely to win approval from the justices.
One calls for throwing out ballots cast on Election Day by voters who arrive at the wrong precinct but insist on casting a ballot anyway. The other forbids “ballot harvesting,” and makes it a state crime for people — other than family members, caregivers or postal workers — to collect and return mail ballots.
In their comments and questions, most of the justices said they were in search of a middle-ground position that would block new voting restrictions if they could have a significant impact on Black people, Latinos or Native Americans, but not automatically invalidate any rule just because it has a different impact based on race.
Both of Arizona’s rules were in effect during last year’s election when Joe Biden narrowly defeated President Donald Trump, and when the previously Republican-leaning state elected two Democrats to the Senate. But since then, Republican state lawmakers there and in other GOP-controlled states have proposed dozens of new rules that could make it harder for Black people and Latinos to vote.
The Arizona case — Brnovich vs. Democratic National Committee — has drawn attention because it marks the first time the high court will write an opinion on how to apply a key part of the Voting Rights Act that Congress adopted as a compromise in 1982.
Section 2 of the Voting Rights Act forbids election rules that “result” in discrimination against voters based on their race or ethnicity, but it is unclear what that means. Republicans and the state of Arizona say that cannot mean that any rule can be deemed illegal if it can be shown to disproportionately affect minorities.
Washington attorney Michael Carvin, representing Arizona Republicans, said the court should uphold state election rules so as long as voting is “equally open” to all groups. He cited as an example the requirement to register to vote in advance, which may exclude more racial minorities than white voters.
During Tuesday’s argument, Justice Elena Kagan pressed the Republican attorney to clarify when voting rules should be considered to be “equally open” to racial minorities.
What if the state has one polling place per county, which means that Black voters in urban counties have to wait 10 times as long as white voters, she asked.
Carvin agreed that should be illegal. “Equally open takes into account demographic reality,” he replied.
What about if a state that had had two weeks of early voting, including Sundays, passes a new law to close polls on Sunday, Kagan asked. Several Republican states are weighing proposals to do that.
Carvin said that should be permitted, even if it had a discriminatory impact on Black voters. “Sunday is the day that we traditionally close government offices,” he said.
“Can we go to another one?” Kagan continued. “The state says we’re placing all our polling places at country clubs.”
Carvin agreed that would be a problem and unfair to minority voters.
Other justices pointed to Kagan’s questions as evidence that it is not enough to say a voting rule is legal because minorities are not “denied” the right to vote.
But several of them also spoke approvingly of Arizona’s rule against “ballot harvesting.”
The court’s decision on that issue is not likely to have an impact on California’s law permitting ballot-harvesting. But a ruling that approves Arizona’s ban on the practice will likely encourage other GOP-led states to follow suit.
Eight years ago, the court’s conservatives struck down the best known and most effective provision of the Voting Rights Act of 1965. Section 5 of the law kept a close watch over the Southern states and a few others that had a history of discriminating against Black and Latino voters.
But Chief Justice John G. Roberts Jr. said “things have changed in the South,” so there was no longer a need for a special provision that prevented these states — which included Arizona — from making changes in their election rules until they had obtained a “preclearance” from Washington.
Democrats and civil rights advocates have been unable to win approval in Congress to revive that provision.
But Roberts stressed in the 2013 decision that Section 2 of the Voting Rights Act — at issue now — remained in full effect nationwide. It is less clear, however, what the section means.
One provision says states and localities may not enforce any “standard, practice or procedure” that “results” in denying citizens their right to vote “on account of race or color.”
But it also says that conclusion turns on whether “based on totality of circumstances” that Black people, Latinos and Native Americans have “less opportunity than other members of the electorate to participate in the political process.”
Democrats and civil rights advocates focus on the first sentence, and argue that any election rule that has more impact statistically on minority voters compared to white voters is illegal under the law. In Arizona, they said, Latino and Black voters were twice as likely as white voters to have their ballots not counted because they were cast in the wrong precinct.
The overall number is small. Fewer than 4,000 ballots of more than 2 million in 2016 were canceled because voters cast a ballot in the wrong precinct. More than 80% of the state’s voters cast ballots early or by mail, and they are unaffected by the “wrong precinct” rule.
Nonetheless, the 9th Circuit Court of Appeals ruled Arizona’s “wrong precinct” rule is illegal and discriminatory. Judges in the majority said precincts in the Phoenix area are changed often, and that results in more minorities having their ballots rejected.
In their appeal, the state’s Republicans and Arizona Attorney General Mark Brnovich focused on the second clause of the law, and argued Arizona election rules should be upheld because in their “totality” they do not deny minorities an equal “opportunity” to vote. They told the court the law imposes “an equal treatment requirement, not an equal outcome command.”
The Trump administration had filed a brief urging the court to uphold Arizona’s rules because they were not discriminatory. Last month the Biden administration told the court it disagreed with much of what was in the brief, but agreed Arizona’s rules should not be struck down.