Supreme Court upholds Arizona ban on early ballot collecting

By: - July 1, 2021 2:41 pm

The Guardian or Authority of Law, created by sculptor James Earle Fraser, rests on the side of the U.S. Supreme Court in Washington, D.C. (Photo by Al Drago/Getty Images)

The U.S. Supreme Court upheld Arizona’s ban on third-party ballot collections, reversing the 9th Circuit’s ruling last year that the prohibition violated the Voting Rights Act.

In a 6-3 opinion, the high court ruled on Thursday that Arizona’s 2016 law doesn’t violate Section 2 of the Voting Rights Act and that it wasn’t enacted with a racially discriminatory purpose. Justice Samuel Alito, writing for the majority, found that the plaintiffs in the case hadn’t adequately demonstrated that the ban had a disparate impact on minority voters, and wrote that the post-ban requirements for casting early ballots exceeded the usual burdens of voting.

The court also upheld Arizona’s policy of rejecting ballots that voters cast outside their precincts, even when that voter is still eligible to vote on most or all of the races on that ballot.

Section 2 of the 1965 Voting Rights Act prohibits voting and election laws that deny or limit the right to vote based on race or color, which is known as the “intent” clause of the landmark law. A subsequent amendment prohibited laws that result in the limitation of voting rights based on race, regardless of the intent of such laws, which is known as the “results” test.

The 9th Circuit Court of Appeals last year found that the ban on ballot collecting, pejoratively referred to by critics as ballot harvesting, ran afoul of both tests by intentionally banning a practice that disproportionately aids Hispanic, Native American and other minority voters. Arizona Attorney General Mark Brnovich appealed that ruling to the Supreme Court. 

Alito wrote that the plaintiffs in the case were unable to show that the ballot collection ban, implemented by legislation known as House Bill 2023, has a disparate impact on minority voters, instead relying on testimony from witnesses who said the practice was most often used in minority communities. 

“And without more concrete evidence, we cannot conclude that HB 2023 results in less opportunity to participate in the political process,” Alito wrote.

And even if they had shown a disparate burden, he said, the state “has a compelling interest in preserving the integrity of its election process.” 

Alito noted that voters can put their early ballots in mailboxes, take them to post offices or drop boxes, or to an election office during Arizona’s 27-day early voting period. 

“Making any of these trips — much like traveling to an assigned polling place — falls squarely within the heartland of the ‘usual burdens of voting,’” Alito wrote, citing prior case law.

Relatives, household members and caregivers are also permitted to deliver a voter’s ballot under the state’s 2016 law, Alito wrote. 

Alito wrote that Section 2 “does not deprive the States of their authority to establish non-discriminatory voting rules” such as the ballot collection ban. Alito agreed with Justice Elena Kagan, who wrote a dissenting opinion, that “the Voting Rights Act exemplifies our country’s commitment to democracy.” But, he wrote, there is nothing democratic about an “attempt to bring about a wholesale transfer of the authority to set voting rules from the States to the federal courts.”

Regarding the policy on out-of-precinct ballots, Alito wrote that requiring voters to identify their own polling place and travel there also does not exceed the “usual burdens of voting.”

“On the contrary, these tasks are quintessential examples of the usual burdens of voting,” Alito wrote. 

Arizona voters have the option of voting using early ballots that election officials mail to their homes. They can mail the ballot back, or drop them off in person. Prior to the ban, it was common for Democratic campaigns and organizations to visit the homes of voters who hadn’t yet cast their ballots and collect them to mail themselves. 

The 2016 ban, which marked the culmination of a years-long effort by legislative Republicans to ban ballot collection, which they argued was susceptible to fraud, though no such cases of fraud had ever been verified. The practice was a staple of Democratic get-out-the-vote efforts that often targeted low-efficacy voters, particularly in minority communities. 

The Democratic National Committee sued to overturn the ban, arguing that it was discriminatory toward Latinos, Native Americans, African Americans and other minority voters, many of whom often have unreliable access to postal services.

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Jeremy Duda
Jeremy Duda

Jeremy Duda is associate editor at the Arizone Mirror. He is a Phoenix native and began his career in journalism in 2003 after graduating from the University of Arizona. Prior to joining the Arizona Mirror, he worked at the Arizona Capitol Times, where he spent eight years covering the governor's office and two years as editor of the Yellow Sheet Report. Before that, he wrote for the Hobbs News-Sun of Hobbs, NM, and the Daily Herald of Provo, Utah. Jeremy is also the author of the history book “If This Be Treason: the American Rogues and Rebels Who Walked the Line Between Dissent and Betrayal.”