WASHINGTON - The Supreme Court on Tuesday seemed inclined to make it more difficult to challenge widely used voting laws that in practice might be more of a burden to minority voters.
The justices spent two hours in a telephone hearing reviewing the protections provided by the Voting Rights Act (VRA), first passed in 1965 to forbid laws that result in discrimination based on race.
The cases involve two voting regulations that are in common use across the country. One throws out the ballots of those who vote in the wrong precinct. The other restricts who may collect ballots cast early for delivery to polling places, a practice then-President Donald Trump denounced as “ballot harvesting.”
But the greater impact will be the test that the increasingly conservative court develops for proving violations of the VRA, as new laws are proposed and state legislatures begin redrawing congressional and legislative districts following the 2020 Census. The justices on Tuesday appeared to be trying to find middle ground.
A growing list compiled by the liberal Brennan Center for Justice shows lawmakers in 43 states have crafted more than 253 bills with provisions that restrict voting access. The group attributes the surge to “a rash of baseless and racist allegations of voter fraud” and accused lawmakers pushing such legislation of a “backlash to historic voter turnout” last year.
Arizona leads the nation in restrictive proposals, the center said.
It seemed from the questioning Tuesday that the key justices in formulating a test could be Chief Justice John Roberts, Brett Kavanaugh and new Justice Amy Coney Barrett, who asked tough questions of both sides. In general, the other conservative justices seemed inclined to support Arizona’s laws, while the court’s three liberal justices advocated that it conduct a more searching investigation into the way seemingly neutral laws work against minority voters.
When Washington lawyer Michael Carvin, representing the Republican Party of Arizona and defending the laws, said a lower court order invalidating the law would require racial proportionality in all voting laws, Roberts asked why that was a bad thing.
Why use voting restrictions that burden minority voters disproportionately “if you can avoid them?” Roberts asked.
Barrett asked Carvin why the Republican Party had an interest in protecting the laws, Carvin responded that eliminating them “would put us at a competitive disadvantage with Democrats.”
But when lawyers for the other side were up, Roberts - and other conservative justices - pointed out that a commission headed by President Jimmy Carter and former Secretary of State James Baker had advocated just the kind of restrictions on ballot gathering that Arizona had imposed.
And Arizona has discarded ballots cast by voters in the wrong precinct for years. Jessica Amunson, representing Arizona’s Democratic secretary of state, acknowledged in questions from Justice Clarence Thomas that only a tiny percentage of minority voters had their ballots discarded because they were cast in the wrong precinct.
The states contend the laws are necessary to protect against voter fraud, adding that they don’t need evidence of fraud to take prophylactic measures that would contribute to public confidence in the “integrity” of the vote.
Both sides acknowledged the Voting Rights Act requires a look at the “totality” of circumstances. For the Democrats, though, that meant the unique way Arizona frequently changes polling places and how geography makes ballot collecting in the state more important for Native Americans and Latinos.
But state Attorney General Mark Brnovich, R, said the court had to look at the “plethora” of ways the state makes it easy to cast a vote, beginning 27 days before the election.
In 2013, the Supreme Court made it harder for civil rights groups to challenge such changes before they go into effect. It effectively eliminated the requirement that states proven to have discriminated against minorities in the past - Arizona was one - receive advance approval from a panel of federal judges or the Justice Department before changing their laws.
Civil rights groups openly worry that the 2013 decision in Shelby County v. Holder, which was written by Roberts, portends a further weakening of the federal law, as the court’s conservative majority has been bolstered since then.
The Democratic National Committee brought the challenge of Arizona’s laws, and the Republican Party is on the other side. The state’s Republican governor, attorney general and legislative leaders defend the laws; Arizona’s Democratic secretary of state is content with a federal appeals court striking them down.
The battle plays out in a changing state: President Biden won Arizona in November, only the second time a Democratic presidential candidate has prevailed since 1948. The election also provided the state with two Democratic senators for the first time since 1952.
The court is examining a part of the voter protection law called Section 2, which was amended in 1982 to prohibit any voting practice that “results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color.
It most often has been employed against jurisdictions that rig election lines to dilute minority voters’ impact.
But after the Shelby County decision, civil rights groups are using it to challenge restrictions they say place a heavier burden on minority groups. Lower courts are working through how to apply the law in these new challenges, election law experts say.
After Democrats challenged the Arizona provisions, a district judge held a trial and upheld them. A panel of the 9th Circuit agreed on a 2-to-1 vote.
But a larger panel of the 9th Circuit reviewed those decisions and said that the way the provisions were applied in Arizona disproportionately affected Black and Hispanic voters.
Those judges said that the state changed locations of voting places more often in minority communities, leading to voter confusion, and that the rates of discarded “out of precinct” (OOP) votes were far higher in Arizona than in other states. Arizona throws out the entire ballot, even if some races - governor, for instance - are not affected by the voter’s precinct location.
The judges said the ban on collecting ballots was intentionally passed to harm minority voters, who they said were more likely to be homebound or disabled and also lacking reliable means to vote in person. Native Americans had in the past been served by community or political leaders who collected early vote ballots, the court said.
“There is no evidence of any fraud in the long history of third-party ballot collection in Arizona,” Judge William Fletcher wrote. The court’s 6-to-5 ruling that the discrimination was intentional is a rarity in federal court reviews of state actions.
Dissenting judges agreed with Arizona that it did not need to wait for evidence of a problem before acting.
“Arizona was free to enact prophylactic measures even though no evidence of actual voter fraud was before the legislature,” Judge Diarmuid O’Scannlain wrote.
The cases are Brnovich v. DNC and Arizona Republican Party v. DNC.