WASHINGTON – The Supreme Court appeared prepared on Tuesday to maintain two voting restrictions in Arizona, one requiring election officials to discard ballots thrown in the wrong constituency and the other making it a crime for campaign workers, community activists and many others people collect ballots for delivery to polling places, a practice that critics call “collecting votes”.
Several members of the court’s conservative majority said the restrictions were sensible, common and at least partially endorsed by a bipartisan consensus reflected in a 2005 report signed by former President Jimmy Carter and James A. Baker III, who served as secretary of state of President George Arbusto.
The Biden government also told judges in an unusual letter two weeks ago that Arizona’s measures looked legal.
The court heard the case, as disputes over voting rights have again become a flashpoint in American politics, with Democrats arguing that Republicans are increasingly trying to suppress voting, frustrate the will of the majority and denying equal access to minority voters and others who have been underrepresented at the polls.
The judges were more difficult to read about the larger issue in the case, Brnovich v. Democratic National Committee, No. 19-1257, which was filed by the Democratic National Committee in 2016 to challenge voting restrictions under Section 2 of the 1965 Voting Rights Act.
This part of the act took on additional prominence after the Supreme Court effectively reached the heart of the law, its 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.
The Supreme Court has never considered how Section 2, which allows for post-law challenges that result in disproportionate limitations on the voting of members of minority groups, applies to voting restrictions. The provision has been used mainly in cases of redistricting, where the question was whether the voting maps illegally diluted the minority’s voting power. Its role in dealing with the denial of the right to vote itself has received much less attention.
Section 2 prohibits any voting procedure that “results in the denial or reduction of the right of any citizen of the United States to vote for reasons of race”. This happens, the disposition continues, 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 elect representatives of their choice”.
Over the course of two hours of argument, the judges struggled to identify a pattern that would allow courts to distinguish between legal and inappropriate restrictions.
The court did not seem receptive to an extreme test proposed by Michael A. Carvin, a lawyer for the Arizona Republican Party, who said race-neutral election regulations that impose ordinary voting burdens are not subject to challenge under Section 2 Most judges seemed to accept that placing substantial burdens on minority voters could conflict with the law.
But there was some controversy over what was considered substantial and what justifications States could offer for their restrictions. The most conservative members of the court seemed inclined to demand significant disparities unrelated to socioeconomic conditions and to accept the need to combat even potential electoral fraud as a sufficient reason to impose voting restrictions.
In a conversation with Mr. Carvin, Judge Elena Kagan tested the limits of her argument. Asked whether much longer queues at polling stations in minority neighborhoods could be challenged by the law, he said yes. He gave the same answer when asked about the location of all polling places in country clubs far from minority neighborhoods.
But he said that reducing Sunday’s vote, even though heavily dependent on black voters, is legal, as well as restricting voting to business hours on Election Day.
Mark Brnovich, Arizona’s attorney general, said the disparate effect on minority voters must be substantial and caused by the contested practice, not some other factor. Several judges suggested that the wording was slightly different from those proposed by lawyers who challenged the law.
“The longer that argument continues,” said Judge Kagan, “the less clear I am about how the parties’ positions differ.”
Judge Stephen G. Breyer agreed with the point. “Many of the parties on both sides are very close to the standard,” he said.
Judges Kagan and Breyer, both members of the liberal wing of the court, may have played defense, hoping that the court’s decision, expected in July, would leave Section 2 more or less unscathed.
But it was unclear whether the lower courts would be of much help if the Supreme Court took a vague and flexible approach.
Judge Amy Coney Barrett suggested that the court should adopt a clear standard. “All electoral rules,” she said, “will make it easier for some to vote than for others.”
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 hurt minority voters.
In 2016, black, Latino and Native American voters were about twice as likely to vote in the wrong constituency as white voters, wrote Judge William A. Fletcher by majority in the 7 to 4 decision. Among the reasons for this, he said, is “frequent changes in polling places; confusing location of polling places; and high rates of residential mobility. “
Likewise, he wrote, the ban on ballot collectors has had an extraordinary effect on minority voters, who use ballot collection services far more than white voters because they are more likely to be poor, older, without home or with a disability; lack reliable transportation, daycare and courier service; and need help to understand the voting rules.
Judge Fletcher added that “there is no evidence of any fraud in the long history of collecting votes from third parties in Arizona.”
In disagreement, four judges wrote that state restrictions applied neutrally to all voters.
Lawmakers had the right to try to prevent possible fraud, wrote Judge Diarmuid F. O’Scannlain. “Given his interest in addressing his valid concerns about electoral fraud,” he wrote, “Arizona was free to enact prophylactic measures, although no evidence of real electoral fraud has been presented to the legislature.”
The appeals court suspended the decision and restrictions were in place for the November election.