Supreme Court ponders limits of Voting Rights Act enforcement

Justices concerned about future challenges as much as the fate of Arizona’s laws

The Supreme Court is seen on Jan. 7.  (Bill Clark/CQ Roll Call file photo)
The Supreme Court is seen on Jan. 7. (Bill Clark/CQ Roll Call file photo)
Posted March 2, 2021 at 2:14pm

The Supreme Court appeared ready Tuesday to make it more difficult for voting rights advocates to prove that state election laws should be struck down as discriminatory.

In an oral argument centered on lawsuits over two Arizona election laws, the justices grappled with how to balance state laws with the anti-discrimination provisions in Section 2 of the federal Voting Rights Act of 1965.

A majority of the justices on the court’s conservative wing voiced concern about setting a legal test that could wipe out legitimate state election laws — ones that had the intent of limiting election fraud, for example — just because those laws affected racial minorities more.

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There was no clear indication from the Supreme Court on where exactly they might draw that line, but it was clear from arguments that the justices were concerned about future challenges as much as the fate of Arizona’s laws. The Supreme Court is expected to decide the case before the end of the term at the end of June.

Civil rights groups have warned that a decision that sets too high of a standard would “all but extinguish” the voting rights law and possibly would render the remaining key enforcement section “hopelessly ineffective” in combating new discriminatory election laws.

One of the laws at issue Tuesday was Arizona’s ban on ballot collection, a practice in which voters give their completed absentee ballots to someone else to drop off.

The Democratic National Committee argues that Arizona’s ban disproportionately affects Native Americans, rural Latinos and minorities in high-density urban housing units in the state who face trouble with mail service. Arizona pointed to desires to prevent election fraud.

Conservative justices questioned whether that was enough to overcome a state’s interest in preventing election fraud and pondered what it would take to prove a legislature enacted such a law with the intent of making it harder for certain populations to vote.

Chief Justice John G. Roberts Jr. pressed a report from a bipartisan Commission on Federal Election Reform in 2004 that said absentee ballots are the largest source of potential voter fraud.

“They said citizens who vote at home and nursing homes, at the workplace or church are more susceptible to pressure, or to intimidation, and that they recommended that the practice of allowing candidates or party workers to pick up and deliver absentee ballots should be eliminated,” Roberts said during oral argument.

And Justices Neil M. Gorsuch and Brett M. Kavanaugh also mentioned that commission report. Gorsuch also said the record in the case contained evidence of “harvesting practices” that had affected at least one election outside Arizona.

“What about that is insufficient?” Gorsuch asked an attorney arguing on behalf of Arizona Secretary of State Katie Hobbs.

Also, Justice Samuel A. Alito Jr. told an attorney for the Democratic National Committee he was concerned that every voting rule would be “vulnerable to attack” under Section 2 of the Voting Rights Act, as was Arizona’s law on voting out of precinct in this case, “because people who are poor and less well educated on balance probably will find it more difficult to comply.”

The House is expected to pass a sweeping election, campaign finance and ethics overhaul bill on Wednesday that includes a provision that would require states to allow voters to give their completed absentee ballots to someone else to drop off.

And state legislatures, such as those in Georgia, are expected to propose voting law changes in the wake of the 2020 election that could be challenged under the Voting Rights Act.