Supreme Court conservative majority chips away at Voting Rights Act with 6-3 ruling

Voting 6-3, the court said Arizona didn’t violate the landmark 1965 law with its criminal ban on what critics call “ballot harvesting” and its practice of rejecting ballots cast in the wrong precinct.

The ruling builds on a 2013 Supreme Court ruling that wiped out part of the Voting Rights Act. In the new decision, the court’s conservative majority laid out a tough legal test when a different provision, known as Section 2, is invoked to challenge policies that make it harder for minorities to register and vote.

Writing for the majority, Justice Samuel Alito said the Arizona rules were justified in part to prevent fraud. “Fraud is a real risk that accompanies mail-in voting even if Arizona had the good fortune to avoid it,” Alito wrote.

The three liberal justices — Stephen Breyer, Elena Kagan and Sonia Sotomayor — dissented, saying the court was undermining a landmark law.

“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,” Kagan wrote for the group. “What is tragic is that the court has damaged a statute designed to bring about the end of discrimination in voting.”

Georgia and Florida have already enacted new voting restrictions that critics say suppress voting by racial minorities, and Texas Republicans are pushing to impose new rules as well. The Supreme Court ruling could affect the Justice Department lawsuit that challenges the Georgia changes.

Trump Impact

Former President Donald Trump has fueled the Republican-backed laws with his unfounded claims that fraud cost him the 2020 election. Though courts, state election officials and Trump’s own election-security chief repeatedly rejected those allegations, Republicans now say voter confidence has been shaken — and needs to be shored up.

The Arizona “ballot harvesting” provision, enacted in 2016, makes it a crime for most people to collect or deliver another person’s early ballot. The longstanding out-of-precinct rule requires officials to completely discard any ballot cast in the wrong precinct.

Democrats challenged both provisions under Section 2, saying they have a disproportionate impact on Black, Hispanic and American Indian voters. Democrats also said lawmakers intentionally discriminated when they enacted the ballot-collection law.

A San Francisco-based federal appeals court backed both claims, saying the disputed rules serve primarily to disadvantage Black, Hispanic and American Indian voters.

Alito said the out-of-precinct policy imposed only “modest burdens” on voters. He said the challengers “were unable to provide statistical evidence” to show the ballot-collection law had a disproportionate impact on racial minorities.

Section 2 bars any voting practice that “results in a denial or abridgement” of the right to vote based on race. The measure says courts should look at the “totality of the circumstances” to determine whether some groups “have less opportunity” to participate than other voters.

The Supreme Court also overturned the appeals court’s conclusion that Republicans intentionally discriminated with the ballot-collection law.

Section 2 “does not deprive the states of their authority to establish non-discriminatory voting rules, and that is precisely what the dissent’s radical interpretation would mean in practice,” Alito wrote.

Congressional Action

Senator Ed Markey used the ruling to reiterate his call for ending the filibuster and to advocate for expanding the size of the Supreme Court.

“Today’s ruling is another blow to voting rights. We have no time to waste to protect the right to vote. We must abolish the filibuster and pass the For the People Act and John Lewis Voting Rights Act. And we must expand the Supreme Court,” the Massachusetts Democrat tweeted.

Section 2 took on heightened importance after the Supreme Court’s 2013 Shelby County decision effectively killed a separate section that had required some states to get federal clearance before they changed their voting rules.

The Justice Department suit against Georgia alleges intentional discrimination against Black voters. The Georgia law imposes new voter identification requirements, lets state officials take over local elections boards, limits the use of ballot drop boxes, shortens the absentee voting window and makes it illegal to approach voters in line to give them food and water.

The cases are Brnovich v. Democratic National Committee, 19-1257, and Arizona Republican Party v. Democratic National Committee, 19-1258.