Joaqlin Estus
Indian Country Today

The Supreme Court on Thursday upheld voting restrictions in Arizona in a decision that could make it harder to challenge other voting measures put in place by Republican lawmakers following last year's elections.

The court, by a 6-3 vote, reversed a lower court ruling in deciding that Arizona's limits on who can return early ballots for another person and refusal to count ballots cast in the wrong precinct are not racially discriminatory.

The federal appeals court in San Francisco had held that the measures disproportionately affected Black, Hispanic and Native American voters in violation of the landmark Voting Rights Act.

Justice Samuel Alito wrote for a conservative majority that the state's interest in the integrity of elections justified the measures.

In dissent, Justice Elena Kagan wrote that the court was weakening the landmark voting rights law for the second time in eight years.

"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 the other two liberal justices.

Native people who have to travel long distances to put their ballots in the mail were more likely to be affected by the ballot collection law. Votes cast by Black and Hispanic voters were more likely to be tossed out because they were cast in the wrong precinct, the appeals court found.

But Alito said the measures were at most “modest burdens” that did not violate the law.

The challenged Arizona provisions remained in effect in 2020 because the case was still making its way through the courts.

President Joe Biden narrowly won Arizona last year, and since 2018, the state has elected two Democratic senators.

BACKGROUND

Let’s step back a bit before getting into the specific ruling.

In 1965, Congress passed the Voting Rights Act. Among other things, it required states with a history of racial discrimination to get changes to their voting laws cleared by the U.S. Justice Department before going into effect. The justice department would review the laws to make sure the changes would not deny or impair voting rights on account of race, color, or membership in a language minority group.

States and political subdivisions with a history of racial discrimination had to get pre-clearance of voting law changes. They included Alabama, Alaska, Georgia, Louisiana, Mississippi, South Carolina, and Virginia plus certain counties or districts in Arizona, Hawaii, Idaho, and North Carolina.

In 2013 the Supreme Court ruled that reliance on an “outdated” list of states requiring preclearance unconstitutionally discriminated against some states, and that the provision was no longer necessary. The court upheld Section 2 of the Voting Rights Act, which bans changes that result in the denial or abridgement of any citizen’s right to vote.

Dropping the preclearance requirement set states loose on a spree of new laws restricting voter access, an effort that gained steam after President Trump failed to get re-elected. The number of changes passed or being considered by state legislatures went from a few dozen to hundreds.

Arizona passed numerous voting law changes that restrict voters’ right to vote. Two were challenged in court.

One of Arizona’s new laws says only a voter’s family members or caregiver can pick up their ballot and take it to get mailed or to the ballot box. The second one affects voters who cast their ballot at the wrong polling place. It used to be that if you voted in the wrong district, you could vote a provisional ballot that would get checked to make sure it was legit. Under Arizona’s law now, if you vote in the wrong district, your vote is tossed out.

The main argument by the Arizona Republican party in favor of the new laws is to prevent voter fraud. However, the attorney for the Republican party also told Supreme Court justices it supports the new laws because they would help Republicans win.

“The 9th Circuit court decision “puts us at a competitive disadvantage relative to Democrats,” Michael Carvin said. “Politics,” he continued, “is a zero-sum game, and every extra vote they (Democrats) get through unlawful interpretations of Section 2 hurts us. It’s the difference between winning an election 50 to 49 and losing.”

Brnovich v. Democratic National Committee was appealed first to the 9th Circuit Court of Appeals then to the Supreme Court.

When the lawsuit over those two laws went to the 9th Circuit Court of Appeals, it ruled that both of the new laws made it harder for people of color in Arizona to vote and were discriminatory. It also said the main argument for the restrictions, to prevent voter fraud, was based on misinformation.

The 9th circuit cited data that showed that in areas with higher populations of Blacks, Native Americans and Latinos, the state moved polling places more often than in other districts. The law about having only family or guardians pick up and mail ballots unduly affected people living in remote areas of the Navajo reservation without home mail delivery and also discriminated against the elderly and disabled with limited transportation options.

The Navajo Nation joined the suit as amicus curiae, or “friend of the court.” Navajo said the laws make voting for Navajos overly burdensome.

“In comparison to AZ’s non-Native American voters, Navajo voters lack an equal opportunity to participate in the political process due to non-standard addresses, irregular or unreliable postal services, lack of residential mail delivery, lack of transportation, physical isolation, extreme poverty, and excessive distances to post offices or other postal service providers.”

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The Associated Press contributed to this report.