WASHINGTON – The Supreme Court was apparently ready to uphold two voting restrictions in Arizona on Tuesday, one of which required election officials to cast votes cast in the wrong area, and the other to make it a crime for campaigners, community activists and most other people. to collect votes for delivery to polling stations, a usage critic calls ‘the harvest of the ballot.’
Several members of the court’s Conservative majority said the restrictions were sensible, commonplace and at least partially endorsed by a dual consensus, reflected in a 2005 report signed by former President Jimmy Carter and James A. Baker III, which served as Secretary of State under President George. Bush.
The Biden government said in an unusual letter to judges two weeks ago that the Arizona measures appear to be legal.
The court heard the case as disputes over voting rights became a hotbed of U.S. politics again, and Democrats argued that Republicans were increasingly trying to suppress the vote, thwart the will of the majority and equal access to minority voters, and others who were not under-represented at the ballot box.
The judges were more difficult to read about the larger case in the case, Brnovich v. Democratic National Committee, no. 19-1257, which was submitted in 2016 by the Democratic National Committee to challenge the voting restrictions under Section 2 of the Voting Rights Act. of 1965.
This part of the law also became known after the Supreme Court effectively struck the core 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 Article 2, which allows the factual challenges for laws that result in excessive restrictions on voting by members of minority groups, applies to voting restrictions. The provision is mostly used in redistribution cases, where the question was whether voting cards illegally diluted minority voting power. His role in tackling the denial of the right to vote itself has been the subject of much less attention.
Section 2 includes any voting procedure that “results in the denial or shortening of the right of any citizen of the United States to vote on the basis of race.” This happens, the provision continues, if race-based minorities ‘on the basis of the overall circumstances’ are less likely than other members of the electorate to take part in the political process and to elect representatives of their choice. ‘
Over two hours of arguments, the judges struggled to identify a standard that allows courts to distinguish legal restrictions from improper.
The court does not appear to be receptive to an extreme test proposed by Michael A. Carvin, a lawyer for the Republican Party in Arizona, who said that racially neutral election regulations that impose ordinary burdens on the vote are not at all subject to challenges under Article 2 does not. Most judges apparently accepted that substantial burdens on minority voters could violate the law.
But there was a dispute over what was considered material and what justifications states could provide for their restrictions. The more conservative members of the court tended to demand significant differences unrelated to socio-economic conditions and to accept the possibility of combating even possible electoral fraud as sufficient reason to impose restrictions on voting.
In an exchange with Mr. Carvin tested Judge Elena Kagan to the limits of his argument. Asked if much longer lines at polling stations in minority neighborhoods could be challenged under the law, he said yes. He gave the same answer when asked about locating all polling stations at outlying clubs far from minority neighborhoods.
But he said Sunday’s cuts, although strongly backed by black voters, were legal, and that voting was limited to office hours on election day.
Mark Brnovich, Arizona’s attorney general, said the divergent impact on minority voters should be significant and caused by the disputed practice rather than by another factor. Several judges have suggested that the wording differs little from the advocates proposing the law.
“The longer this argument goes on,” Justice Kagan said, “the less clear I am about the difference between the parties.”
Judge Stephen G. Breyer set the point. “A lot of parties on both sides are pretty close to the standard,” he said.
Judges Kagan and Breyer, both members of the court’s liberal wing, may have played defense, hoping the court’s ruling, expected in July, would leave Section 2 more or less intact.
But it was not clear that lower courts would be much helped if the Supreme Court followed a vague and flexible approach.
Judge Amy Coney Barrett suggested that the court should adopt a clear standard. “All election rules,” she said, “will make it easier for some to vote than others.”
Last year, the U.S. Court of Appeals for the ninth track, in San Francisco, ruled that both Arizona violated Article 2 restrictions because they excessively harmed minority voters.
In 2016, black, Latino, and Native American voters were about twice as likely to vote in the wrong area as white voters, Judge William A. Fletcher wrote for the majority in the 7-to-4 decision. He says, among other things, the reasons for this were ‘frequent changes in polling stations; confusing placement of polling stations; and high rates of residential mobility. ”
Similarly, he wrote, the ban on voter turnout has an extraordinary effect on minority voters, who use vote-collection services far more than white voters because they are likely to be poor, elderly, home-bound or disabled; lack of reliable transport, childcare and postal service; and to need help understanding voice rules.
Judge Fletcher added that “there is no evidence of fraud in the long history of third-party collection in Arizona.”
In contrast, four judges wrote that state restrictions apply neutrally to all voters.
Lawyers were entitled to try to prevent possible fraud, Judge Diarmuid F. O’Scannlain wrote. “Given the importance of addressing the valid problems of voter fraud,” he wrote, “Arizona was free to take precautionary measures, although there was no evidence of actual voter fraud before the legislature.”
The Court of Appeal suspended its ruling, and the restrictions applied to the November election.