CITY OF WASHINGTON (July 1, 2021)— today the U.S. Supreme Court affirmed in Brnovich v. Democratic National Committee and Americans for Prosperity Foundation v. Bonta/Thomas More Law Center v. Bonta that protection of the right to vote remains under the power of the states and the states have the weight to empower and to administer elections.
Arizona law generally makes it very easy to vote. Voters may cast their ballots on election day in person at a traditional precinct or a “voting center” in their county of residence. Arizonans also may cast an “early ballot” by mail up to 27 days before an election, according to the law, and they also may vote in person at an early voting location in each county according to the laws of the State. These cases involve challenges under the Arizona’s Voting Rights Act of 1965 (VRA) to aspects of the State’s regulations governing precinct-based election day voting and early mail-in voting.
First, Arizonans who vote in person on election day in a county that uses the precinct system must vote in the precinct to which they are assigned based on their address. If a voter votes in the wrong precinct, the vote is not counted.
Second, for Arizonans who vote early by mail, Arizona House Bill 2023 (HB 2023) makes it a crime for any person other
than a postal worker, an elections official, or a voter’s caregiver, family member, or household member to knowingly collect an early ballot— either before or after it has been completed.
The Democratic National Committee(DNC) and certain affiliates filed suit, alleging that both the State’s refusal to count ballots cast in the wrong precinct and its ballot-collection restriction had an adverse and disparate effect on the State’s American Indian, Hispanic, and African-American citizens in violation of the VRA. Additionally, they alleged
that the ballot-collection restriction was “enacted with discriminatory. intent” and thus violated both §2 of the VRA and the Fifteenth Amendment.
The District Court’s Decision:
The District Court rejected all of the DNC’s claims and sided with the Arizona. The court found that the out-of-precinct policy had no “meaningfully disparate impact” on minority voters’ opportunities to elect representatives of their choice. Turning to the ballot-collection restriction, the court found that it was unlikely to cause “a meaningful inequality” in
minority voters’ electoral opportunities and that it had not been enacted with discriminatory intent.
A divided panel of the Ninth Circuit affirmed, but the en banc court reversed. It first concluded that both the out-of-precinct policy and the ballot-collection restriction imposed a disparate burden on minority voters because they were more likely to be adversely affected by those rules. The en banc court also held that the District Court had committed clear error in finding that the ballot-collection law was not enacted with discriminatory intent.
Arizona’s law states that a violation would occur only where “the political processes leading to nomination or election” are not “equally open to participation” by members of the relevant protected group “in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of
their choice.” Thus, equal openness and equal opportunity are not separate requirements. Instead, it appears that the core of the law is the requirement that voting be “equally open.” The statute’s reference to equal “opportunity” may stretch that concept to some degree to include consideration of a person’s ability to use the means that are equally open. But equal openness remains the touchstone.
Another important feature of the Arizona’s law ” is its “totality of circumstances” requirement. Any circumstance that has a logical bearing on whether voting is “equally open” and affords equal “opportunity” may be considered. ” The Court mentions several important circumstances but does not attempt to compile an exhaustive list.
The size of the burden imposed by a challenged voting rule is highly relevant. Voting necessarily requires some effort and compliance with some rules; thus, the concept of a voting system that is “equally open” and that furnishes equal “opportunity” to cast a ballot must tolerate the “usual burdens of voting.”
The US Supreme Court’s Decision:
Arizona has always regulated these activities to prevent fraud. State law makes it a felony offense for a ballot collector to fail to deliver a ballot. . It is also a felony for a ballot collector to tamper with a ballot in any manner. And as the District Court found, “tamper evident envelopes and a rigorous voter signature verification procedure” protect against any such attempts. For those reasons and others, no fraud involving ballot collection has ever come to light in the State.
“Under our form of government, legislators have a duty to exercise their judgment and to represent their constituents. It is insulting to suggest that they are mere dupes or tools.”
“For decades, Section 2 of the Voting Rights Act has protected Americans from discrimination at the ballot box. Thanks in large part to Section 2, it is easier for Americans to vote today than it has ever been.
“Section 2 remains a strong and crucial safe against racial discrimination, but the Court right to reject its attempted use by activists to eliminate commonsense voting laws in Brnovich v. Democratic National Committee.
“Democrats who try to equate laws limiting the influence of political operatives on state elections to Jim Crow-era repression make their real aim even clearer: not to protect the voters from discrimination, but to protect themselves from the voters.
“The Court also confirmed in its decision that “decades-old legal precedent already tells us: that associational privacy is a fundamental American right. As the NAACP argued forcefully more than half a center ago, the defense of First Amendment rights is especially important in places where citizens’ views cut against those of governing majorities.
“As such, the ruling in Americans for Prosperity Foundation v. Bonta is a stern warning to those corners of the left where naming and shaming is treated like a routine political tool. It should also serve as a cautionary tale for any elected Democrat still hoping to codify dragnet disclosure and tip the scales of our electoral system.
“Arizona’s out-of-precinct policy and HB 2023 do not violate §2 of the VRA, and HB 2023 was not enacted with a
racially discriminatory purpose. The judgment of the Court of Appeals is reversed, and the cases are remanded for further proceedings consistent with this opinion.”
Read the entire opinion here.
Source: US Supreme Court