By: Megan Kelly

What do ballot harvesting and out-of-precinct votes have in common? Arizona is sending cases about both to the Supreme Court next term. In early October, the Supreme Court granted certiorari on two cases about voting regulations in Arizona. The first is Arizona’s law banning ballot harvesting. The law bans third parties from turning in voter ballots, except in the case of family, members of the household, or caregivers. The second is Arizona’s law requiring that ballots cast at the wrong precinct not be counted.

In both of these cases, the courts considered if the regulations violated the Voting Rights Act (VRA) Section 2 claims, by denying minority voters equal access. The District Court ruled in favor of the State, upholding both of the laws. The plaintiffs appealed. Initially, a Ninth Circuit panel agreed with the district court, maintaining that the laws did not unconstitutionally deny minority voters access to vote. But this was not the end of the case. Rehearing the case en banc, the Ninth Circuit reversed the panel’s decision, holding that the two laws were a violation of the VRA Section 2.

The court was particularly concerned with the effect of these laws on American Indian and Hispanic communities in Arizona. The court pointed out that frequented changes in polling locations, confusing polling locations, and residential mobility in Arizona, allowed the out-of-precinct laws to have a disparate impact on minority voters. As for the impact of the ballot harvesting ban, the Ninth Circuit cited potential lack of transportation, inaccessible mail services, lack of childcare services, or need for voter assistance as reasons this ban affects minority voters. The Court’s ruling overturns these laws.

But that was not the end of these cases; the State petitioned to have their case heard by the Supreme Court. In fact, soon after the Ninth Circuit decision came down, reporters and scholars alike speculated that the Supreme Court would take up this case. The Supreme Court’s choice to hear the appeal of the Ninth Circuit decision is not a good signal for the plaintiffs or for the VRA Section 2 as a whole.

The Court took on this case in spite of the Democratic Party urging it to leave the Ninth Circuit decision be. This indicates that the court believes there are important questions to resolve within these cases. And indeed, there are. These cases present two questions for the Supreme Court: how to weigh the benefits and burdens of the Anderson-Burdick test and whether Section 2 applies to vote denial claims at all.

There are a multitude of reasons why the Supreme Court may grant cert in any case, but some speculate that the decision to grant cert signals a poor prognosis for the VRA Section 2. In recent years, the Court has been chipping away at various provisions in the VRA, with the heftiest blow coming in Shelby Counter v. Holder. In that case, the court invalidated the coverage formula in VRA Section 4, essentially stripping that section of its power.

So the speculation continues that the Court is placing another provision of the Voting Rights Act on the chopping block. But just how much—or how little—will the Act get chopped? There are many possible outcomes.

While it is worth stating, the likelihood of the Court affirming the Ninth Circuit’s decision is slim. This would expand the power of the Voting Rights Act Section 2 when it seems the court is moving in the opposite direction. Another potential outcome is that the Supreme Court may change the standards for Section 2 vote denial claims, moving from a purely effects test to an intent-based test. An effects-based test looks at the outcomes and effects of the voting regulation on minority voters. It does not require plaintiffs to show evidence of subjective discrimination on the part of lawmakers. An intent test, on the other hand, requires a showing of actual discriminatory purpose or motive in the making of the laws. In an era in which most voting discrimination comes from second-generation barriers, moving to an intent-based test would likely set the standard for plaintiffs extraordinarily high. Lastly, of course, the Supreme Court could strike down Section 2 altogether, holding that, like the coverage formula, it has outlived its use.

No matter the exact outcome that the Supreme Court reaches in these Arizona cases, it seems likely that it will weaken, rather than strengthen, the power of the Voting Rights Act. The Act itself has arguably been one of the most influential pieces of legislation in American history, helping to secure and maintain the right to vote for all of “We the People”. As legislatures, lawyers, judges, and society as a whole looks to a potential future without the VRA, we would do well to recall Justice Ginsburg’s words in Shelby County, spinning off Martin Luther King Jr.’s famous quote: “In King’s words, ‘the arc of the moral universe is long, but it bends toward justice’ … [only if there is] a steadfast national commitment to see the task through to completion.”

 

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