Election laws have become a dangerous political flashpoint, as Americans recently learned the hard way. On Tuesday the Supreme Court will hear a potentially landmark case (Brnovich v. DNC) that offers an opportunity to restore the Voting Rights Act to its original purpose.
At issue is Arizona’s requirement that voters cast ballots on election day in their assigned precinct and its ban on ballot harvesting by outside groups. A majority of states require in-precinct voting, and 20 or so limit ballot harvesting, which allows third parties to collect ballots in bunches. Both rules are intended to bolster ballot integrity.
Democrats say this violates Section 2 of the Voting Rights Act, which prohibits states from adopting voting qualifications, standards, or practices that result in “denial or abridgement” of the right to vote “on account of race or color.” But they provide no evidence that Arizona’s rules limit minorities’ ballot access.
Congress passed the Voting Rights Act of 1965 to stop states from disenfranchising blacks with underhanded methods like poll taxes and literacy tests. But Democrats now argue that any state regulation that makes it a little harder for anyone to vote violates the law—even if it applies equally to minorities and whites.
Importantly, the Voting Rights Act (VRA) puts the burden on plaintiffs to show that minorities, based on the “totality of circumstances,” have “less opportunity” than others “to participate in the political process and to elect representatives of their choice.”
The High Court hasn’t provided a clear standard for lower courts to interpret Section 2. And many lower court judges have blocked voter ID requirements, early-voting curbs and same-day registration restrictions, among other rules, based on statistics that purportedly show that minorities are disparately impacted.
The Sixth Circuit Court of Appeals in 2014 enjoined Ohio’s reduction of early voting from five weeks to four. Ohio settled the case with the NAACP by agreeing to start early voting 29 days before Election Day. But the Ohio Democratic Party sued and said 29 days wasn’t enough.
In the current Arizona case, a federal judge ruled there is no evidence that the state’s in-precinct voting rule and ballot harvesting ban disproportionately burdens or discriminates against minorities. A Ninth Circuit Court of Appeals panel affirmed the ruling but was overruled en banc. Backers of Arizona’s ballot harvesting ban “had a sincere, though mistaken, non-race-based belief that there had been fraud in third-party ballot collection, and that the problem needed to be addressed,” the Ninth Circuit’s liberal judges held.
There’s no guiding legal principle to the Ninth Circuit’s ruling, and any law that bolsters election integrity may violate the VRA if judges say so. Even the Biden Justice Department told the High Court last month that it doesn’t “disagree” with Arizona’s argument that its law is legal under Section 2’s “results test.”
The Court is highly likely to agree, and the shrewd liberal Justice Elena Kagan will no doubt tell Chief Justice
he can get a 9-0 ruling by holding that the Ninth Circuit committed a clear error in overturning the lower court findings of fact. But that would be a lost opportunity.
Arizona’s election laws are clearly not a violation of Section 2 as a matter of law, and the Court needs to protect state procedures that protect ballot integrity from electioneering lawsuits. But it would be even better if the Court goes further and clearly defines what the language of Section 2 means.
Courts have defined this so broadly that it has invited political mischief and judicial activism on an ad hoc basis. As the Chief Justice wrote in a memo when he served in the Reagan Justice Department, “Violations of Section 2 should not be made too easy to prove, since they provide a basis for the most intrusive interference imaginable by federal courts into state and local processes.”
That’s exactly what Americans saw in 2020, with enormous damage to public confidence in the election results. With so much political contention over voting access and election laws at the current moment, the Court needs to set proper parameters around Section 2 to distinguish between real and invented legal violations.
Copyright ©2020 Dow Jones & Company, Inc. All Rights Reserved. 87990cbe856818d5eddac44c7b1cdeb8