Bloomberg Law
July 1, 2021, 5:21 PM

Supreme Court Curbs Voting Rights Act, Backs State Ballot Rules

Greg Stohr
Greg Stohr
Bloomberg News

An ideologically divided U.S. Supreme Court upheld two Arizona voting restrictions, limiting the reach of the Voting Rights Act in a decision that provides legal cover for Republicans as they push for new rules around the country ahead of the 2022 election.

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 came on the final decision day of the court’s nine-month term.

The decision 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 restricted the use of a different provision, known as Section 2, to challenge policies that make it harder for minorities to register and vote.

Writing for the majority, Justice Samuel Alito said “mere inconvenience” wasn’t reason to invalidate voting rules, and he said a small disparity in the impact on different racial groups might not be enough either.

“The mere fact there is some disparity in impact does not necessarily mean that a system is not equally open or that it does not give everyone an equal opportunity to vote,” he wrote.

The ruling drew a stinging dissent from Justice Elena Kagan. In an opinion joined by fellow liberals Stephen Breyer and Sonia Sotomayor, Kagan said 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. “What is tragic is that the court has damaged a statute designed to bring about the end of discrimination in voting.”

Read more: How Voting Itself Escalated Into a U.S. Political War: QuickTake

President Joe Biden’s administration told the justices earlier this year it didn’t view the Arizona restrictions as violating Section 2. But the president blasted the ruling in a statement Thursday.

“In a span of just eight years, the court has now done severe damage to two of the most important provisions of the Voting Rights Act of 1965 -- a law that took years of struggle and strife to secure,” Biden said.

Republican state lawmakers across the country have enacted dozens of new restrictions on voting this year, tightening deadlines, adding voter ID requirements and targeting innovations used by large urban counties such as mobile voting centers.

Trump Impact

A high-profile fight over a massive voting bill in Georgia led major corporations in Texas such as American Airlines Group Inc. and Dell Technologies Inc. to speak up about a similar effort there. The Supreme Court ruling could affect a Justice Department lawsuit that challenges those changes.

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.

‘Modest Burdens’

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.

Section 2 “does not deprive the states of their authority to establish non-discriminatory voting rules,” Alito wrote.

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

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.

Experts say vote-by-mail is more vulnerable than other forms of voting, but there is no evidence for the kind of widespread fraud that would affect an election outcome that has been alleged by many Republicans in the wake of the 2020 election.

Elections officials can also spot attempts at vote-by-mail fraud fairly quickly, as happened in a high-profile case in North Carolina in 2018, where a Republican operative was charged with tampering with absentee ballots.

Congressional Action

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.

Critics of the new voting rules decried the decision.

“It is simply unconscionable that the court’s conservative majority chose to double down on their gutting of the Voting Rights Act, failing to properly respond to a wave of restrictive and discriminatory laws in the wake of Shelby and a flood of suppressive laws that have followed President Trump’s Big Lie about the November election,” Senate Majority Leader Chuck Schumer, a Democrat from New York, said in an emailed statement.

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.

Arizona Attorney General Mark Brnovich, who argued at the high court in defense of the rules, called the ruling a “big win for election integrity.”

“I am thankful the justices upheld states’ ability to pass and maintain commonsense election laws, at a time when our country needs it most,” Brnovich said in a tweet.

Arizona Secretary of State Katie Hobbs, who opposed the rules at the high court, called the decision “very harmful” in an interview on CNN.

“It’s going to make it harder for anyone to be able to challenge discriminatory voting laws,” she said.

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.

--With assistance from Steven T. Dennis and Ryan Teague Beckwith.

To contact the reporter on this story:
Greg Stohr in Washington at

To contact the editors responsible for this story:
Elizabeth Wasserman at

Magan Crane

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