The Supreme Court on Tuesday will take up its most consequential case since the election about the future of a functional and fair democracy.
Hanging in the balance are the most meaningful remaining voting rights protections for minority groups under federal law. But even if the justices don't make a sweeping ruling upholding or eliminating those, their decision in a dispute over election restrictions in battleground Arizona will shape the fate of similar rules across the country.
Arizona disallows ballots cast at the wrong precinct and also bars so-called ballot harvesting, the term for campaign operatives or community activists collecting and delivering others' sealed vote envelopes. Last year a federal appeals court ruled that both laws violate the Voting Rights Act because they disproportionately disadvantage Black, Latino and Native American voters.
No decision from the high court is likely before June, and oral arguments like those set for a Tuesday teleconference do not always produce reliable clues about the justices' views of the case.
But the court's decisive 6-3 conservative majority combined with its landmark decision eight years ago effectively gutting the most powerful aspect of the voting rights law — which made places with histories of racial discrimination get Washington's "preclreraance," or permission, before setting new election rules — has civil rights groups and Democratic politicians very worried about the outcome.
Sign up for The Fulcrum newsletter
Moreover, the case is being argued as Republican-majority legislatures across the country consider as many as 150 bills to make access to the polls more difficult than last year. A broad ruling upholding Arizona's rules would make it more difficult to challenge any measures that get enacted.
"It would be taking away one of the big tools, in fact, the main tool we have left now, to protect voters against racial discrimination," Myrna Perez of the progressive Brennan Center for Justice told the Associated Press.
At issue is the part of the Voting Rights Act that creates two separate protections against racial bias in election rules.
One provision is known as the "intent test." It says state or local election regulations must be struck down if plaintiffs in a lawsuit show the provisions were enacted for the purpose of making it harder for people of a certain race to vote. This protection was significantly weakened when the Supreme Court ruled in 2018 that lawmakers must be given "the presumption of legislative good faith," significantly raising the bar for proving any racist intent.
The fallback provision is called the "results test." It says states may not maintain any law that "results in a denial or abridgement" of the right to vote "on account of race or color." In other words, even when a statute is written without any discriminatory motive, it can still be tossed if the courts conclude it has a disproportionate impact on voters of color.
That was the test that Arizona's two laws failed, the 9th Circuit Court of Appeals decided 7-4 in January 2020.
In the 2016 presidential election, the first after the law took effect, Black, Latino and Native American voters were twice as likely as white people to cast ballots in the wrong precinct, Judge William Fletcher wrote for the majority, thanks to "frequent changes in polling locations; confusing placement of polling locations; and high rates of residential mobility."
And the ban on ballot harvesting also has an outsize effect on minority voters, he said, because they are more likely to have trouble getting to the polls because of their poverty or disability — or to rely on mail service when they live on remote reservations.
Arizona's Republican attorney general, Mark Brnovich, argues the ruling applied the results test much too assertively, and that if the high court agrees then similar laws around the country will fall and the integrity of elections will be imperiled.
If a majority of justices agree, their choice will be to delineate a tougher legal standard for failing the results test — or effectively jettison it altogether. Brnovich has proposed a complex new standard for administering the results test that would appear to make its application all but impossible.
The Biden administration has disappointed some civil rights advocates by deciding not to formally intervene. Instead the Justice Department told the court two weeks ago that, while it does not support tougher standards for proving discriminatory results from election laws, it also does not think Arizona's provisions fail the current test.
If the court sees things the same way, it could uphold Arizona's rules without making big changes to voting discrimination law.
Arizona had been one of nine states where all election laws were subject to federal oversight under the Voting Rights Act until 2013, when the Supreme Court in Shelby County v. Holder effectively scrapped the preclearance system. It would be revived under legislation the Democratic-majority House is on course to pass this year — and that bill's language could be amended before the vote to reverse any weakening of the law by the court in the Arizona case.
But, either way, the measure would surely be consigned to limbo in the Senate so long as the legislative filibuster stays in place, because almost all 50 Republicans oppose it.
As many as one in 10 voters in most elections cast their votes in a precinct where they don't live, the National Conference of State Legislatures estimates, and generally the mistake involves ignorance of neighborhood political geography and goes unnoticed. But when such votes are challenged, Arizona is one of more than a dozen states mandating the entire ballot be thrown out — negating not only votes in local contests such as for city council and school board but also for statewide offices, Congress and president.
Arizona is also among the 10 states that make it a crime for people other than family members or caregivers to act as the third-party courier for an absentee ballot. Half the states make that widely permissible, and the rest have no state laws on the matter.
The results of the case will have an impact not only on minority voting rights but on the balance of partisan power, because any new permissiveness for laws with racially discriminatory consequences could cut down on the Democratic vote. President Biden won last fall with the support of 87 percent of Black voters, 65 percent of Latino voters, 61 percent of Asian voters, and 55 percent of other nonwhite voters.
The challenged Arizona provisions remained in effect last fall because the case was on appeal. still making its way through the courts. Biden still narrowly carried the state, the first Democrat to do so since 1996.
