WASHINGTON – Eduardo Sainz was standing at the front door of a home in Tucson, Arizona, encouraging the family inside to vote when the young man and his mom asked for a favor that under the state’s current law would make him a felon.
Sainz, state director of the Latino advocacy group Mi Familia Vota, said neither the young man, who was in a wheelchair, nor his mother had a car or the time needed to mail their ballots before Arizona’s gubernatorial election in 2014. They asked Sainz to drop off their ballots on his way home – and he agreed.
“It made the difference between participation and their ballot sitting on a shelf and not being counted,” said Sainz, whose group collected thousands of votes in similar encounters before the state banned such handoffs. “It was a connector to democracy.”
Five years after Arizona criminalized what critics call “ballot harvesting,” and four months after a presidential election in which the practice was bitterly debated, the Supreme Court will hear arguments in a pair of cases that will determine when states may limit voting and, potentially, whether a provision of the 1965 Voting Rights Act will stand.
Arguments in the case are set for Tuesday.
Twenty-six states allow voters to designate a third party to turn in their ballots, though 12 of those states limit how many ballots a person may collect, according to the National Conference of State Legislatures. Ten states allow family members or caregivers to return ballots but not third-party groups such as Mi Familia Vota.
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Supporters say ballot collection enfranchises low-income voters who work multiple jobs or can’t access transportation. Critics see a potential for ballot tampering and voter intimidation and point to a bipartisan report in 2005 in which former President Jimmy Carter and former Secretary of State James Baker recommended prohibiting it.
President Donald Trump slammed ballot collection in the runup to the election Nov. 3, and there have been cases of fraud connected with the procedure – including in a New Jersey election last year. But Trump himself relied on someone else to submit his primary ballot, and nonpartisan observers say election fraud is exceedingly rare.
The outcome of the dispute before the justices could have far-reaching implications for the ability to challenge other controversial election laws, including voter ID requirements, that critics say have a disproportionate impact on Black and Latino voters.
About 165 bills that would restrict voting have been introduced this year in 33 states this year, a nearly fivefold increase from the same period in 2020, according to the Brennan Center for Justice.
“The court could decide this in a number of ways, which could include weakening” the ability to challenge ballot laws, said Myrna Pérez, director of the Brennan Center’s voting rights and elections program. That, she said, would undermine “the main tool we have left now to protect voters against racial discrimination.”
Ballot collection debated
Two Arizona polices are at issue in the cases.
First is the 2016 law prohibiting anyone but family, household members and mail carriers from collecting someone else’s ballot. The other is the state’s long-standing policy of not counting ballots submitted by voters in the wrong precinct.
Neither of those polices is unique to Arizona, but the California-based U.S. Circuit Court of Appeals for the 9th Circuit found that they had a disproportionate impact on Native American, Latino and Black voters and that they were enacted within a broader context of voter discrimination in the state. The court noted that only 18% of Native Americans in Arizona have access to home mail service. Arizona appealed to the Supreme Court.
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Mark Brnovich, the state’s Republican attorney general, argued the standard used by the appeals court could find virtually any voting restriction discriminatory. The district court, he noted, found state lawmakers were “sincere in their belief” that ballot collection fraud was occurring (the court called that belief misinformed). President Joe Biden’s administration told the justices in a letter Feb. 16 that, in its view, neither policy violates the landmark Voting Rights Act signed into law by President Lyndon Johnson.
“This isn’t some radical theory,” Brnovich told USA TODAY. “First and foremost, a majority of states have statutes similar to Arizona’s when it comes to out-of-precinct voting and ballot harvesting.”
Brnovich said the state’s overall voting system – including a 27-day window to cast an early ballot – makes it easy for racial and ethnic minorities and nonminorities to vote. Roughly 8 in 10 Arizonans cast early ballots in 2016, according to court documents. On Election Day, 99% of minorities and 99.5% of nonminorities vote in the correct precinct – a difference, the state argued, that is not statistically significant.
Democrats describe both policies as motivated by discrimination, and they point in part to decades of history as context for the claim. Arizona, for instance, used a literary test for voter registration for decades – until the early 1970s. It was one of nine states required in 2013 to secure approval from the Justice Department before making changes to voting laws, an effort to head off discriminatory practices before they began.
“Any objective look at the facts in this case would find, as the 9th Circuit did, that these laws are discriminatory and disenfranchise communities of color and tribal people,” Democratic National Committee chairman Jamie Harrison said.
Eight years ago, the Supreme Court eviscerated a provision of the Voting Rights Act that required Arizona and other states to obtain Justice Department approval of proposed voting laws. That 5-4 decision in Shelby County v. Holder put Chief Justice John Roberts and now-former Associate Justice Anthony Kennedy together with the court’s other conservatives.
After the death of Associate Justice Ruth Bader Ginsburg last year and the confirmation of Associate Justice Amy Coney Barrett, conservatives have a 6-3 majority. The Arizona dispute gives the newly configured court its first opportunity to flex its muscle in a major election case. It has, by contrast, declined many of the cases related to the 2020 election.
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Once the pre-clearance provision was gutted, voting rights advocates increasingly relied on another section of the law – known as Section 2 – to challenge voting restrictions such as those imposed in Arizona. A similar outcome in the case pending before the court, Pérez and others said, would make those challenges far more difficult to win.
In 1980, the Supreme Court ruled that Section 2 of the Voting Rights Act prohibited laws that were approved with a discriminatory intent. In response, Congress revised the act, and two years later, President Ronald Reagan signed a law that created a “results” test, meaning election laws could be found discriminatory regardless of lawmakers’ intent.
When weighing a Section 2 challenge to an election law, courts consider the “totality of the circumstances,” including the historical context of elections in the state or county in question. That means assessing how many minority candidates have won elections there, for instance, and whether candidates have used racist messaging.
The response by Congress in the 1980s is part of the reason Edward Foley, director of Ohio State University’s election law program, doesn’t see the Supreme Court driving a stake through the heart of the provision. The challenge for the court, he said, is to develop a workable test for discrimination that’s clear so states may follow it.
“There’s a strong need to just understand how this section of the law should operate,” he said. “How do you craft a meaningful results test … so you can really know what laws flunk the test and what laws don’t. I think you’re going to see a big struggle among the justices.”