The Supreme Court will hear arguments on Tuesday about a series of voting restrictions in Arizona, alleged to be racially discriminatory, in a dispute that could set the most important voting rights precedent in nearly a decade.
A potentially historic decision in the coming months could determine whether a set of electoral restrictions that make way for Republican state legislatures across the country will survive legal scrutiny before the half-yearly pivots of 2022 and the next White House race.
For the conservative 6-3 majority court, the case marks the first chance to define the scope of a key clause in the Voting Rights Act (VRA). This provision, Section 2, makes it illegal to enact laws that place an unequal burden on the concession of racial minorities.
Civil rights groups say it is crucial that judges use the Arizona case to give Section 2 a robust reading in light of an earlier Supreme Court decision that tightened safeguards for minority voters.
“It is imperative that this Court continue to interpret Section 2 as broadly as Congress intended,” wrote the NAACP Legal Defense Fund in an amicus brief.
Such a decision, the group said, is the only way to fulfill the “original purpose of the law to free the political process from racial discrimination”.
Tuesday’s arguments will cause judges to review the scope of voting protections after the highly controversial court decision eight years ago in Shelby County v. Holder. There, a 5-4 court voted to invalidate a section of the VRA that forced former Jim Crow states and other places with a discriminatory past to obtain federal approval before changing their voting rules.
By eliminating the pre-compensation requirement, court president John Roberts, writing by a majority in 2013, said that the VRA could continue to protect itself against racist voting laws after the fact – through Section 2, the provision in question in the case of Tuesday.
The Arizona dispute now becomes a critical test for a Supreme Court bank that leans even more conservatively than when the Shelby County case was decided, with the addition of three Trump-appointed judges: Neil Gorsuch
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The politically charged confrontation attracted the interest of a number of high-profile conservatives who support Arizona Republicans, including the Arizona governor. Doug Ducey
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At issue in the lawsuit are two voting restrictions in Arizona that were lifted last year by the 9th Circuit Court of Appeals in San Francisco, which said the measures would make it more difficult for black people to vote for the state of the Grand Canyon.
Arizona Republicans, defending the measures, told judges in court documents that the appeals court erred and that voting restrictions are necessary for electoral integrity.
One of the two disputed restrictions concerns ballots that are thrown at the wrong polling place or constituency. The rule outside the Arizona constituency required electoral officials to throw away any erroneous ballot in its entirety, instead of preserving valid votes for federal or state offices and discarding only votes that were cast incorrectly for local offices.
The 9th Circuit Court ruled 7-4 that the constraint failed in the “test of results” in Section 2 of the VRA.
“By totally discarding, instead of counting or partially counting, ballots from outside the electoral zone, [has] a discriminatory impact on Indian, Hispanic and African American voters in Arizona, ”the court ruled.
The other limit makes it illegal for most third parties to collect and deliver ballots to polling stations. The practice, which supporters of voting rights call “collecting votes from the community,” is dubbed by critics as “collecting votes.”
The 9th Circuit determined that this also failed to test the results of Section 2 – as well as its most rigorous “test of intent”.
“The totality of circumstances,” said the court, “cumulatively and unequivocally reveals that racial discrimination was a motivating factor in enacting” the restriction on the collection of votes in Arizona.
The appeals court found that minority voters are more likely than whites to live in rented houses, making changes in residence and ignorance of confusing maps of the state’s districts more common. Arizona’s minority voters were also more likely to not have easy access to transportation, daycare or time off from work needed to personally deliver ballots, the court ruled, making them more dependent on third-party ballot delivery services.
On Tuesday, Arizona Republican Attorney General Mark Brnovich and a lawyer for the Arizona Republican Party will defend the restrictions before the judges against opponents in the case, led by the Democratic National Committee. Brnovich, in his petition to the court, noted that “most states require voting in the electoral zone and about 20 states limit the collection of votes”.
In addition to the specific outcome of the immediate dispute, supporters of the right to vote and state governments across the country will be watching to see what legal rule the judges adopt to resolve the dispute.
According to Rick Hasen, a professor of law at the University of California, Irvine, voting rights groups fear letting such a Section 2 dispute reach the judges, fearing that the conservative majority court may further challenge the VRA – and its concerns can be justified.
Hasen, writing on SCOTUSBlog, said the case gave Republican Party litigants the opportunity to “suggest various ways of reading Section 2 applied to denial of vote claims in very petty ways.”
Several voting rights groups, however, urged judges in amicus briefs not to follow this path.
“The Voting Rights Act and its basic enforcement provision, Section 2, represent a hard-won federal adoption of a fundamental principle of inclusion of a minority in American democracy,” wrote the Leadership Conference on Civil and Human Rights in a statement. “This Court must adhere to that principle and claim Section 2.”
A decision in the case, Brnovich v. Democratic National Committee, No. 19-1257, is expected this summer.