The Supreme Court on Thursday, July 1, 2021, rejected a voting-rights challenge to Arizona’s election laws, ruling the state may discard legal ballots that are cast in the wrong precinct even if doing so results in throwing out a much higher percentage of votes cast by Latinos, Blacks, and Native Americans than whites.
The court also upheld a second provision that makes it a crime for anyone other than family members or postal workers to deliver a mail ballot, a rule that has a significant impact on tribal reservations.
By a 6-3 vote, the justices held the state’s election laws do not violate the Voting Rights Act and its ban on rules that have a discriminatory impact based on race or ethnicity.
The decision overturned a ruling by the 9th Circuit Court of Appeals, which said last year that Arizona discarded far more ballots than any state in the nation by shifting its precincts often and by canceling all votes cast in the wrong place. In nearly all cases, these “out of precinct” voters were legally entitled to vote for a candidate for U.S. senator, U.S. representative, governor or president who appeared on the ballot.
The ruling is a victory for the Arizona Republican Party, which defended the state’s rules, and a defeat for the Democratic National Committee, which sued to seek to have them declared discriminatory and illegal.
In its defense, Arizona argued that half the states have laws that require voters to cast their ballots in the right precinct. California is not among them.
The Arizona case took on major importance this year because it comes amid a partisan national battle over voting rights and election rules — and because the Supreme Court has said remarkably little to clarify when state election rules become so strict they may interfere with the right to vote.
Eight years ago, the conservative justices in a 5-4 opinion threw out the part of the Voting Rights Act of 1965 that imposed federal oversight on the Southern states with a history of discriminating against Black or Latino voters. Arizona was among them.
After that ruling in Shelby County vs. Holder, states from Georgia to Texas and Arizona were free to adopt new election rules without preapproval from the Justice Department in Washington.
They could still face discrimination suits under Section 2 of the Voting Rights Act, which applies nationwide. But exactly what constitutes discrimination under the law has been unclear.
In 1982, Congress amended the law with a bipartisan compromise to say it does more than forbid intentionally racist rules. Rather, the law also forbids states and localities from imposing any voting rule or procedure which “results in a denial or abridgment of the right…to vote on account of race.”
In recent decades, this part of the law has been used to challenge state election maps whose districts were drawn in a way that made it hard for Black or Latino candidates to be elected. But the Supreme Court had not spoken on how the law applies to voting rules.
The Democratic National Committee sued over the two Arizona provisions that it said resulted in discrimination. Their lawyers alleged the “wrong precinct” rule resulted in discrimination against Latino voters in the Phoenix area who moved more often. In some areas, more than 40% of the voters had their precinct changed in the two years between elections.
The Democrats also alleged the criminal ban on so-called “ballot harvesting” had a discriminatory effect on Navajos and other Native Americans who lived on reservations with poor mail service.
They lost before a federal judge and a three-judge panel of the 9th Circuit, but won before an 11-member group of the appeals court.
In a 7-4 decision, the appeals court said Arizona had by far the nation’s highest percentage of ballots discarded because they were cast in the wrong precinct. And it said Latinos, Blacks and Native Americans were more than twice as likely as whites to have their otherwise legal ballots thrown out.
The appeals court also described Arizona’s history of discriminating against Latino and Native American voters. Its opinion noted that an earlier version of its criminal ban on “ballot collection” had been blocked as discriminatory under the Voting Rights Act, but was revived after the Supreme Court’s ruling which lifted the “pre-clearance” rule.