WASHINGTON — The US Supreme Court on Thursday upheld two Arizona voting laws that the challengers had argued discriminated against Native American, Latino, and Black voters, and in doing so applied legal reasoning that will generally make it harder to challenge state voting restrictions going forward.
The 6–3 decision was written by Justice Samuel Alito Jr. and joined by the rest of the court’s conservative wing. Although Alito made a point of saying that the court was not adopting a strict “test” for how to apply the federal Voting Rights Act to similar cases in the future, he presented a series of “guideposts” that directed courts to consider a variety of factors in deciding whether a voting practice unlawfully discriminated on the basis of race. Those include the relative “size” of any burdens on voting access or racial disparities, as well as the state’s interests, such as preventing election fraud.
Justice Elena Kagan’s dissent blasted the majority for putting forward a set of rules that she said undermined the strength and purpose of Section 2 of the Voting Rights Act, which broadly prohibits racial discrimination in voting.
“What is tragic here is that the Court has (yet again) rewritten — in order to weaken — a statute that stands as a monument to America’s greatness, and protects against its basest impulses. What is tragic is that the Court has damaged a statute designed to bring about ‘the end of discrimination in voting.’ I respectfully dissent,” Kagan wrote, joined by Justices Stephen Breyer and Sonia Sotomayor.
The decision could have ripple effects on the Biden administration’s efforts to make voting rights enforcement and voting access for BIPOC communities a priority. Just last week, Attorney General Merrick Garland announced a federal civil rights lawsuit against the state of Georgia, challenging a series of voting restrictions that Republican lawmakers adopted earlier this year that the Justice Department contends were designed to make it harder for Black people to vote. One of the Georgia rules tightened rules around when ballots can be counted if voters show up at a precinct other than the one they were assigned to vote at — similar to one of the Arizona laws that the Supreme Court has now upheld as lawful.
Garland’s announcement came on the eighth anniversary of Shelby County v. Holder, a 2013 Supreme Court decision that struck down a key part of the Voting Rights Act that had required certain state and local jurisdictions with a history of voter discrimination to get approval or “preclearance” from a court or the Justice Department before making changes to election practices. Arizona and Georgia had been covered by the preclearance requirements before the Supreme Court invalidated it.
Section 2 of the Voting Rights Act traditionally has come up in case about redistricting. The Arizona case marked the first time the Supreme Court weighed in on when and how it could apply to cases that accused states of enacting discriminatory laws restricting how ballots are cast and counted. A central question was how courts should weigh the discriminatory effect of a law — that is, whether evidence showed that it did, in fact, disproportionately make it harder for BIPOC to vote — against other factors, such as a state's reasons for adopting the law and the size of the burden a particular law placed on voting in the broader context of a state's election practices.
The "guideposts" that Alito presented, taken together, directed courts to give significant weight to the "totality of circumstances," as opposed to a stronger focus on the effect on voters. These factors, he wrote, included whether a law created a substantial burden on voting access as opposed to "mere inconvenience"; how it compared to the stringency of voting laws when Section 2 was last updated by Congress in 1982; the size of any racial disparities; the range of other options a state provided for voting; and the "strength" of the state's reasons for adopting the law in the first place.
Alito then made a point of citing preventing election fraud as an example of a "strong and entirely legitimate state interest."
"Fraud can affect the outcome of a close election, and fraudulent votes dilute the right of citizens to cast ballots that carry appropriate weight. Fraud can also undermine public confidence in the fairness of elections and the perceived legitimacy of the announced outcome," Alito wrote.
Although historically states have cited fraud as a reason to adopt a host of voting rules, it's taken on politically loaded significance over the past year. Former president Donald Trump and other Republicans have repeatedly and without basis claimed that the 2020 presidential election was undermined by widespread fraud, and GOP lawmakers in several states have used that as a jumping-off point to launch investigations and put forward more limits on mail-in voting and voting access.
The Republican National Committee, which supported Arizona's defense, released a statement that alluded to the fraud issue and called the decision "a resounding victory for election integrity and the rule of law."
"In Arizona and across the nation, states know best how to manage their own elections. The RNC is proud to have worked closely with the Arizona GOP to support this historic victory, and we will continue our comprehensive efforts to make it easier to vote and harder to cheat," chairperson Ronna McDaniel said.
President Joe Biden released a statement calling the decision "deeply disappointing" and urging Congress to step in.
"Today’s decision also makes it all the more imperative to continue the fight for the For the People Act and the John Lewis Voting Rights Advancement Act to restore and expand voting protections. The Court’s decision, harmful as it is, does not limit Congress’ ability to repair the damage done today: it puts the burden back on Congress to restore the Voting Rights Act to its intended strength," Biden said.
DNC chairperson Jaime Harrison also called for action by Congress and state lawmakers, saying in a statement that they were "disappointed in the Court’s ruling today, but we will continue to work to make sure every voter's vote is counted and protected."
The Arizona case dates back to 2016, when the Democratic National Committee and other groups sued the state. They challenged two voting policies. The first, known as the “out-of-precinct” policy, penalizes voters for submitting a provisional ballot in a precinct that’s different from the one they were assigned to vote in based on where they live.
If a voter shows up at a polling site on election day and their name isn’t on the voter rolls, they can still cast a provisional ballot. If it turns out the voter went to the wrong polling site after election workers check the provisional ballot against the person’s address, the entire ballot is thrown out, even if the voter was legally eligible to vote in national or state races, separate from local races they might not have been eligible to vote in that were on that precinct’s ballot.
The second Arizona policy at issue was a law passed by the Republican-led state legislature in 2016, H.B. 2023, that made it a crime to collect and deliver someone else’s ballot except in limited circumstances, sometimes referred to as “ballot harvesting.”
A federal judge in Arizona ruled in favor of the state after a 10-day trial, but the US Court of Appeals for the 9th Circuit reversed that judgment and ruled in favor of the Democratic challengers. In a January 2020 decision that split the court 7–4, the majority of judges concluded that the out-of-precinct policy and the ban on third-party collection violated Section 2 of the federal Voting Rights Act, which prohibits racial discrimination in voting, because they both had a discriminatory impact on the state’s Native American, Latino, and Black voters.
The appeals court also held that the state had passed H.B. 2023 with the intent to discriminate against BIPOC voters, also in violation of the Voting Rights Act and the 15th Amendment of the US Constitution.
Arizona petitioned the US Supreme Court to take up the case. The justices heard arguments in March.
At the heart of the case was a two-step test that the 9th Circuit used to consider whether the two Arizona laws violated Section 2 of the Voting Rights Act. The first part, known as the “results test,” gauges whether a law does, in fact, have a discriminatory effect on voting. The second part, known as the “intent test,” explores whether lawmakers passed a law with the goal of disenfranchising voters based on their race.
The 9th Circuit found both Arizona policies at issue failed the “results test,” and also that H.B. 2023 failed the “intent test.” The court noted that the district court judge credited an expert who found that Arizona was the “national leader” in rejecting provisional ballots, and that the “out-of-precinct” policy was a major factor.
The judges credited the challengers’ arguments for why stringent enforcement of the precinct policy harmed BIPOC voters, including evidence that polling locations were more likely to stay stable from election to election for white voters; Native American and Latino voters were more likely to live farther away from polling sites; and that BIPOC residents were more likely to be renters and move more frequently, leading to confusion about their polling place. In Pima County, for instance, the court cited evidence that in the 2012 general election Latino, Native American, and Black voters were more likely to cast ballots at the wrong precinct at far higher rates than white voters — 123%, 47%, and 37%, respectively.
The Supreme Court majority found that under the standards they'd said courts had to balance and considering the "totality" of election practices in Arizona, the two laws at issue didn't violate Section 2. Alito wrote that any racial disparities were relatively small, and accused the 9th Circuit of parsing state data in a way that was "highly misleading." He also found that the appeals court had failed to give enough weight to the state's interests in making sure people voted at their assigned precinct, which distributed wait times and ensured ballots only included races voters were eligible to vote in. The third-party collection ban also survived, the court concluded, citing the various options people had for how they could submit a ballot.
"Having to identify one’s own polling place and then travel there to vote does not exceed the 'usual burdens of voting,'" Alito wrote. "On the contrary, these tasks are quintessential examples of the usual burdens of voting."
Kagan wrote that the majority's "guideposts" had the effect of "limiting Section 2 from multiple directions" and gave "a cramped reading to broad language."
"In sum, the majority skates over the strong words Congress drafted to accomplish its equally strong purpose: ensuring that minority citizens can access the electoral system as easily as whites," Kagan wrote. "The majority instead founds its decision on a list of mostly made-up factors, at odds with Section 2 itself."