The votes of Arizonans and the future of the Voting Rights Act nationally hang in the balance after the U.S. Supreme Court on Tuesday heard arguments about whether two Arizona election laws violate prohibitions on discrimination.
The case also pits the state’s attorney general, who argues the measures are merely reasonable anti-fraud policies, against the secretary of state, who argues both policies are discriminatory.
The justices now must weigh when, exactly, changes in election rules violate the historic federal law and wrongly disenfranchise voters.
The hearing came after the 9th U.S. Circuit Court of Appeals last year struck down the two Arizona laws, pointing to the disproportionate impact of the policies on Black, Latino and Indigenous voters as well as Arizona’s long history of discrimination.
One of the laws disqualifies ballots if voters cast them in the wrong precinct and the other prohibits anyone but a family member, household member or caregiver from turning in another person’s ballot.
But in a telephonic appearance before the Supreme Court, Arizona Attorney General Mark Brnovich argued the appeals court got it wrong, accusing it of “cherry picking” data and relying on “statistical anomalies.”
Brnovich said the court should look at the broader election system, which does not allow ballot collection but does allow for no-excuse voting by mail and early voting — a plethora of options, as he put it.
“No one was denied the opportunity to vote,” the attorney general argued.
Justice Sonia Sotomayor challenged that thinking, though, pointing to the circumstances of voters living in rural parts of Arizona with limited transportation.
“Where your post office is at the edge of town, and so you require either a relative to pick up your vote or you happen to vote in the 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 have been denied the right to vote, haven’t you?” Sotomayor asked a lawyer for the state Republican Party, which is also involved in the case.
While Brnovich has argued the laws are commonsense measures to prevent fraud in elections, a lawyer for Arizona Secretary of State Katie Hobbs countered that the courts should consider the disproportionate impact these laws have on Black, Latino and Indigenous voters.
“What the courts should be doing is looking at how that restriction interacts with the facts on the ground to see whether in fact it is causing a discriminatory burden on minority voters,” Jessica Ring Amunson told the justices.
If it is going to enact such measures to prevent fraud, the state should be able to point to evidence — a real danger of fraud — she added.
But there is no evidence of ballot collection leading to any case of fraud in Arizona, she said.
“Does Arizona have to wait for fraud to occur in Arizona?” Justice Neil Gorsuch replied.
He signaled, along with others in the nine-member court’s conservative majority, that they may be inclined to let the state’s laws stand.
A lawyer for the state Republican Party argued that striking down Arizona’s laws would stop states from instituting all manner of election policies.
“Given the ubiquity of socioeconomic disparities, this would clearly put states in a straightjacket,” attorney Michael Carvin said.
That leaves the court to decide where to draw the line.
National implications of case
The case has drawn national attention as one of the most significant voting rights cases in years.
The U.S. Supreme Court struck down the core of the Voting Rights Act in 2013, which required Arizona and other states with a history of disenfranchisement to get approval for proposed voting laws from the U.S. Department of Justice.
This case could have profound implications for Section 2 of the Voting Rights Act, which remains in place and prohibits any election rule that denies or abridges a citizen’s right to vote on account of race or color. The section requires that — in the totality of circumstances — elections are equally open to participation.
Voting rights groups argue that proponents of Arizona’s laws are using the case, Brnovich v. DNC, to dispense with Section 2 and its protections.
“Now is not the time to weaken the key provisions of the Voting Rights Act. Instead, we should be working to strengthen protections for communities of color to make sure every voice is heard in our democracy,” said Paul Smith, vice president of the Campaign Legal Center, which filed an amicus brief in the case.
The arguments at the U.S. Supreme Court come as many states, including Arizona, consider sweeping changes in election laws following a surge of turnout in some typically Republican states that carried Democratic President Joe Biden to victory last year.
While the arguments on Tuesday revolved around a historic civil rights law, its implications for the future were top of mind.
When Justice Amy Coney Barrett asked Carvin why the state Republican Party was involved in the case and cared whether Arizona enforced these election laws, he replied that every extra vote Democrats win through the 9th Circuit’s interpretation of the Voting Rights Act hurts Republicans.
“It puts us at a competitive disadvantage,” he said.
A decision is expected in the summer.