WASHINGTON (Reuters) — U.S. Supreme Court justices on Tuesday appeared inclined to uphold two Republican-backed voting restrictions in Arizona in a case that could further hobble the Voting Rights Act, a landmark 1965 federal law that prohibits racial discrimination in voting.
During nearly two hours of oral arguments by teleconference the court’s conservative justices, who hold a 6-3 majority, asked questions indicating they could issue a ruling that would make it harder to prove violations of the Voting Right Act.
The important voting rights case comes before the justices at a time when Republicans in numerous states are pursuing new restrictions after former President Donald Trump made false claims of widespread fraud in the Nov. 3 election that he lost to Democratic President Joe Biden. Republican proponents of Arizona’s restrictions cite the need to combat voting fraud.
One of Arizona’s measures made it a crime to provide another person’s completed early ballot to election officials, with the exception of family members or caregivers. Community activists sometimes engage in ballot collection to facilitate voting and increase voter turnout. The practice, which critics call “ballot harvesting,” is legal in most states, with varying limitations.
The other provision disqualified ballots cast in-person at a precinct other than the one to which a voter has been assigned. Voting rights advocates said voters sometimes inadvertently cast ballots at the wrong precinct, with the assigned polling place sometimes not the one closest to a voter’s home.
A lower court found that Arizona’s restrictions, challenged in court by Democrats, disproportionately burdened Black, Hispanic and Native American voters. Democrats have accused Republicans nationwide of pursuing voter-suppression measures to make it harder for racial minorities who tend to support Democratic candidates to cast ballots.
Asked what the Republican Party’s interest was in defending the out-of-precinct rule, Michael Carvin, one of the lawyers defending Arizona’s measures, said that a ruling striking down the restrictions “puts us at a competitive disadvantage to Democrats. Politics is a zero-sum game.”
At issue is the Voting Rights Act’s Section 2, which bans any rule that results in voting discrimination “on account of race or color.” This has been the main tool used to show that voting curbs discriminate against minorities since the Supreme Court in 2013 gutted another section of the statute that determined which states with a history of racial discrimination needed federal approval before changing voting laws.
A ruling, due by the end of June, could impact the 2022 elections in which Republicans are trying to regain control of the U.S. Congress from the Democrats.
THE PROPER STANDARD
Much of the argument focused on the proper standard courts could use to remedy voting discrimination. Conservative Justice Samuel Alito suggested that, because poorer and less-educated people are likely to be more affected by any voting rule, a standard allowing claims based on statistics showing racial voting disparities is “going to make every voting rule vulnerable to attack.”
With an eye toward challenges against future voting curbs, liberal justices probed the dividing line between lawful and unlawful restrictions. Liberal Justice Elena Kagan wondered how the court should examine those that obviously target minorities versus those that are merely inconvenient.
Questioned by Kagan, Carvin said a hypothetical rule that would require Black voters to travel to country clubs to vote would likely be unlawful, but one restricting voting hours to traditional business hours or banning Sunday voting would be lawful even if evidence showed minorities would face greater difficulties.
Lawyer Jessica Amunson, representing Arizona’s Democratic secretary of state against the voting restrictions, said in a democracy policymakers should want to increase voter participation.
“Candidates and parties should be trying to win over voters on the basis of their ideas, not trying to remove voters from the electorate by imposing unjustified and discriminatory burdens,” Amunson said.
Some conservative justices appeared skeptical of the standard for complying with the Voting Rights Act proposed by Republicans in the case. Conservative Justice Amy Coney Barrett questioned Republican arguments that a regulation that causes a burden on minorities should not be invalidated if the electoral system as a whole is fair.
“If it takes one opportunity away I guess I still don’t understand why that isn’t reducing the ability of those voters to vote relative to other white voters that don’t share that same burden,” Barrett said.
Conservative Chief Justice John Roberts asked Carvin: “Why should there be disparate results if you can avoid them?”
The argument also revealed a divide over whether voter fraud must be documented before lawmakers enact laws to prevent it.
The San Francisco-based 9th U.S. Circuit Court of Appeals last year found that the restrictions violated the Voting Rights Act, though they remained in effect for the Nov. 3 election. The Voting Rights Act was enacted at a time when numerous Southern states effectively prevented most Black people from voting.
