The United States Supreme Court heard oral arguments today in Brnovich v. DNC, a case from the 9th Circuit discussing whether Arizona's long-standing out-of-precinct voting policy and recent prohibition on ballot harvesting violate Section 2 of the Voting Rights Act. With election integrity in the national spotlight after 2020's contentious general election, the future of states' ability to enact meaningful election safeguards now lays in the hands of the nine Justices.
Four parties spoke before the Supreme Court to propose which standard should be adopted to determine whether a law violates Section 2 of the Voting Rights Act (VRA) of 1965, which prohibits voting practices or procedures that discriminate on the basis of race, color, or membership in one of the language minority groups.
First in the spotlight was Arizona's out-of-precinct voting policy. Arizona has long required in-person voters to cast their ballots in the precinct in which they reside because the offices on the ballot vary by precinct. When a voter tries to vote out-of-precinct, they are redirected to the proper precinct or required, if they so choose, to vote provisionally. Arizona's Election Procedures Manual does not permit county recorders to count provisional ballots where voters are ineligible to vote in that particular precinct.
The system has been in place for numerous election cycles, but Democrats stood before the Court today to claim it disproportionately disenfranchises minority voters 2-1. But when asked by Justice Thomas what percentage of minority voters in the state of Arizona were actually affected by the out-of-precinct policy, attorney Jessica Amunson, representing the Arizona Secretary of State, conceded that it was less than 1% of minority voters. It was this less than 1% that the 9th Circuit Court used to strike down Arizona's out-of-precinct policy for violating Section 2 of the VRA.
The Justices, especially Justice Alito, were skeptical to accept Democrats' arguments that the 9th Circuit's decision was proper on these grounds. In questioning Bruce Spiva, the attorney representing the Democratic National Committee, Justice Alito considered the impact a decision like this could have on states' ability to implement future election procedures:
"I think what concerns me is that your position is going to make every voting rule vulnerable to attack under Section 2 to the same extent that the out-of-precinct policy was found to violate section 2 by the 9th Circuit."
Democrats also attacked Arizona's prohibition on ballot harvesting. Arizona criminalized ballot harvesting in 2016 by making it a class 6 felony for a person to knowingly collect early mail ballots from another person unless certain exceptions are met. As soon as the law was enacted, it was challenged in court.
But ballot harvesting prohibitions go a long way in protecting ballots from bad actors who seek to use these ballots to influence the election and coerce voters in the process. As Lawyers Democracy Fund, a non-partisan organization that advocates for commonsense election integrity safeguards, puts it:
The lack of administrative oversight under vote-by-mail election systems affords too great an opportunity for ballot harvesters to undermine the fairness and honesty of elections and further interfere with the freewill and autonomy of voters who alone have the responsibility to determine who to vote for or whether to vote at all.
Arizona Attorney General Mark Brnovich argued just this as he stood before the Court to defend both of Arizona's policies.
Restricting early ballot collection by 3rd parties, including political operatives, protects against voter coercion & preserves ballot secrecy. Arizona urges #SCOTUS to adopt a clear & workable test for vote-denial claims that allows States to properly regulate elections. (4/4)— Mark Brnovich (@GeneralBrnovich) March 2, 2021
Michael Carvin, the attorney on behalf of the Arizona Republican Party, pushed back on Democrats' baseless arguments concerning Arizona's laws and expounded upon the ramifications a decision striking down Arizona's procedures could have on states' ability to safeguard their elections during his closing arguments:
“I want to get back to the colloquy that Justice Alito was having with Mr. Spiva. Given the ubiquity of socio-economic disparities, this would clearly put states in a straitjacket. This case brilliantly illustrates that. They claim that there’s a lot of problems for minorities to get to precincts relative to non-minorities. What does Arizona do? It has this free mail system for 27 days that’s utilized by 80% of the people––the very system that the DNC went around the country advocating as an expansion of the franchise. Now we are told that a mail system somehow discriminates against minorities, which is completely untrue under the facts.
But the only fact you need to know is: anybody whose ballot is harvested received the ballot through the mail. This is all people who have already got the ballots, and they are picked up after they’re voted. Well, how did they get the ballots? They received them through the mail. So, for that reason, the district court was quite correct to hold that there’s no connection between access to mail and the need for ballot harvesting. They couldn’t produce a single voter who said it was more difficult to vote without ballot harvesting.
Same things in terms of precincts. The notion that socio-economic disparities make it difficult to find a precinct has nothing to do with this case, because everyone involved here found a precinct. They simply found the wrong precinct. So, transportation and work schedules had no inhibiting effect on minorities.”
The decision to follow in the coming months could dramatically impact states' ability to bolster election integrity in the future and further allow Democrats to demonize every effort by states to safeguard elections.