To get a sense of the partisan and unsettled future of election laws in the United States, look no further than the debates on ballot collection teed up in Congress and at the Supreme Court this week.
The House is expected to pass a sweeping election, campaign finance and ethics overhaul bill that includes a provision that would require states to allow voters to give their completed absentee ballots to someone else to drop off.
Democrats generally consider laws that limit ballot collection alongside others that seek to disenfranchise minority voters who are more likely to vote for their candidates, such as requiring photo identification at polling places.
Senate Minority Leader Mitch McConnell and Republicans already have balked at that provision on what they call “ballot harvesting,” and he highlighted it last week on the floor as allowing “paid operatives” to show up at polling places with “a big stack of filled-out ballots with other people’s names on them.”
With Congress at an apparent partisan deadlock on federal legislation on the issue without a major change in Senate rules, the Supreme Court will hear oral arguments Tuesday in a pair of cases about Arizona’s ballot collection ban.
In the cases, the Supreme Court for the first time will consider a 1982 amendment to the Voting Rights Act, specifically what challengers to a voting law must show in court before judges can strike down a law as discriminatory.
The cases could determine how difficult it will be for voter rights advocates to use the Voting Rights Act of 1965 to challenge not only future laws on ballot collection bans but also a wide swath of other state election laws.
And the decision, expected before the end of the term at the end of June, would come at a time when state legislatures are expected to propose voting law changes in the wake of the 2020 election.
That election saw historic numbers of absentee ballots because of the pandemic — and a flood of unproven allegations of election fraud flowing from former President Donald Trump and his supporters.
The Democratic National Committee and civil rights groups told the justices in briefs in the case that siding with Arizona’s interpretation of the Voting Rights Act would “all but extinguish” the law and possibly would render the remaining key enforcement section “hopelessly ineffective” in combating new discriminatory election laws.
The Arizona officials, the state Republican Party and 19 largely Republican-led states told the justices that a ruling that strikes down Arizona’s ballot collection law would prohibit all election-related laws that disproportionately affect a racial group, even if that doesn’t mean there is an unequal opportunity to vote.
Arizona is one of about 20 states that limit ballot collection. The Grand Canyon State’s law allows only certain people to handle another person’s completed ballot, such as family, caregivers, mail carriers and elections officials.
The Voting Rights Act prohibits any voting practice that “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.”
The U.S. Court of Appeals for the 9th Circuit looked specifically at the history of Arizona to rule that the ballot collection ban resulted in an unequal opportunity for Arizona’s minority voters, the Democratic National Committee wrote in its brief to the Supreme Court.
‘Particularly crucial’ assistance
Many Native Americans, rural Latinos and minorities in high-density urban housing units face troubles with mail service, and there has not been evidence of fraud in the state, which was the purported reason for enacting the ban, according to the DNC.
“As a result, many voters — a disproportionate share of whom are minorities — have come to rely upon friends, neighbors, activists, and campaigns to collect and deliver their voted mail ballots,” the DNC brief states. “Ballot-collection assistance is particularly crucial in the final days before an election when it is too late to return ballots by mail.”
Ten Republican senators, led by Ted Cruz of Texas, filed a brief in the case arguing that a lower court’s interpretation of the Voting Rights Act in this case would “eviscerate scores of legitimate time, place, and manner voting laws that prevent and deter fraud.”
And, Cruz and the other senators told the justices, that interpretation would expand the scope of the Voting Rights Act beyond the constitutional powers of Congress, allowing it to be used to invalidate voting laws regulating absentee voting, precinct voting, early voting, voter identification, election observer zones, voter registration, durational residency and straight-ticket voting.
“These election-integrity provisions are entirely unlike the draconian, invidious voting restrictions the original VRA was designed to address,” the lawmaker brief states. “And they do not deny anyone an equal ‘opportunity’ to vote.”
The current case on Arizona’s ballot collection ban follows the Supreme Court’s ruling in Shelby County v. Holder in 2013, which gutted a key enforcement provision of the Voting Rights Act that required states with a history of discriminatory voter laws to clear any new laws with the Justice Department.
The day after that Shelby County decision, the Republican-led legislature in North Carolina, which had been under those clearance requirements, passed a new voter identification law that a federal court later found targeted black voters “with surgical precision.”