In a critical voting rights case, conservative Supreme Court justices on Tuesday suggested they were ready to uphold two provisions of an Arizona voting law that Democrats argue violate the historic Voting Rights Act.
Supporters of voting rights are fearful that the court’s new 6-3 solidified conservative majority will weaken a key provision of the act that prohibits laws that result in racial discrimination.
For over two hours of telephonic arguments, the justices grappled not only with the Arizona law at hand but with a standard that courts should apply when considering such laws going forward. Lawyers challenging the provisions came under consistent attack in various forms from all of the conservatives on the court who seemed skeptical of the tests put forward by a lawyer representing the Democratic National Committee.
Justice Samuel Alito told the DNC lawyer that his position in the case “is going to make every voting rule vulnerable to attack” under the law.
“People who are poor and less well educated on ballots probably will find it more difficult to comply with just about every voting rule than do people who are more affluent and have the benefit of more education,” said Alito, a conservative appointed by President George W. Bush. He asked whether it would “not be possible to show with respect to just about every voting rule” statistical disparities can emerge.
What was less clear from arguments is what test the justices will settle on that could impact a raft of new voting restrictions introduced throughout the states.
The Arizona law being challenged require that in-person Election Day voters cast their votes in their assigned precinct. Another provision says that only certain persons — family, caregivers, mail carriers and elections officials — may deliver another person’s completed ballot to the polling place.
Chief Justice John Roberts noted at one point, that a bipartisan commission had determined that such laws may be necessary to combat voter fraud. Justice Brett Kavanaugh agreed on that point and asked a DNC lawyer whether there might be a “strong justification” for the laws that are also common in other states.
While several states have versions of both laws, they function differently from state to state. Arizona, for instance, has one of the strictest “out of precinct” regulations and it has a significant Native American population living on rural reservations without traditional mailing addresses and limited access to mail.
“For that reason, they are more likely to rely on ballot collection to turn in their mail in ballots,” said Sean Morales-Doyle of the Brennan Center for Justice.
Last year, a federal appeals court invalidated the Arizona provisions, stressing the state’s “long history of race-based discrimination against its American Indian, Hispanic, and African American citizens” and highlighting a “pattern of discrimination against minority voters has continued to the present day.”
Justice Clarence Thomas, an active participant in the telephonic arguments asked a lawyer for the state “what percentage” of minorities who cast ballots in the state were affected by the policies. A lawyer for Arizona’s secretary of state responded it was “less than 1%.”
Context of voting rights challenges
Liberal justices, meanwhile, focused their attention on future challenges concerning laws that on their face don’t seem problematic but result in racial discrimination.
The dispute comes in the aftermath of a contentious election that prompted former President Donald Trump to make unfounded claims of voter fraud and inspired his supporters to storm the US Capitol in an attempt to overturn the election.
Republican state legislators across the country are also moving at a fast clip to pass laws to restrict voting access. According to the Brennan Center for Justice, as of February 19, state lawmakers have carried over or introduced 253 bills with provisions that restrict voting access in 43 states.
Eight years ago, Roberts wrote the 5-4 majority opinion in Shelby County v. Holder, effectively gutting Section 5 of the Voting Rights Act, a provision that required states with a history of discrimination to obtain the permission of the federal government or the courts before enacting new laws related to voting.
Since that decision, challengers to voting restrictions have increasingly turned to Section 2 of the law, that holds that no voting regulation can be imposed 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.” (Unlike a challenge brought under Section 5, a Section 2 challenge occurs after the voting rule is in place.)
This story is breaking and will be updated.