In a critical voting rights case, conservative Supreme Court justices on Tuesday suggested they were ready to uphold two provisions of an Arizona voting law that Democrats argue violate the historic Voting Rights Act.
Supporters of voting rights are fearful that the court’s new 6-3 solidified conservative majority will weaken a key provision of the act that prohibits laws that result in racial discrimination.
For over two hours of telephonic arguments, the justices grappled not only with the Arizona law at hand but with a standard that courts should apply when considering such laws going forward. Lawyers challenging the provisions came under consistent attack in various forms from all of the conservatives on the court who seemed skeptical of the tests put forward by a lawyer representing the Democratic National Committee.
Justice Samuel Alito told the DNC lawyer that his position in the case “is going to make every voting rule vulnerable to attack” under the law.
“People who are poor and less well educated on balance probably will find it more difficult to comply with just about every voting rule than do people who are more affluent and have had the benefit of more education,” said Alito, a conservative appointed by President George W. Bush. He asked whether it would “not be possible to show with respect to just about every voting rule” statistical disparities can emerge.
What was less clear from arguments is what test the justices will settle on that could impact a raft of new voting restrictions introduced throughout the states.
The Arizona law being challenged requires that in-person Election Day voters cast their votes in their assigned precinct. Another provision says that only certain persons – family, caregivers, mail carriers and elections officials – may deliver another person’s completed ballot to the polling place.
Chief Justice John Roberts noted at one point, that a bipartisan commission had determined that such laws may be necessary to combat voter fraud. Justice Brett Kavanaugh agreed on that point and asked a DNC lawyer whether there might be a “strong justification” for the laws that are also common in other states.
Bruce Spiva, a lawyer for the DNC, reminded the justices that “voting discrimination still exists, no one doubts this.”
“More voting restrictions have been enacted over the last decade than at any point since the end of Jim Crow,” Spiva said, and added that “the last three months have seen an even greater uptick in proposed voting restrictions, many aimed squarely at the minority groups whose participation Congress intended to protect.”
While several states have versions of both laws, they function differently from state to state. Arizona, for instance, has one of the strictest “out of precinct” regulations and it has a significant Native American population living on rural reservations without traditional mailing addresses and limited access to mail.
“For that reason, they are more likely to rely on ballot collection to turn in their mail in ballots,” said Sean Morales-Doyle of the Brennan Center for Justice.
Last year, a federal appeals court invalidated the Arizona provisions, stressing the state’s “long history of race-based discrimination against its American Indian, Hispanic, and African American citizens” and highlighting a “pattern of discrimination against minority voters has continued to the present day.”
Justice Clarence Thomas, an active participant in the telephonic arguments, asked a lawyer for the state “what percentage” of minorities who cast ballots in the state were affected by the policies. A lawyer for Arizona’s secretary of state responded it was “less than 1%.”
But when Justice Amy Coney Barrett pushed Michael Carvin, a lawyer representing the Arizona Republican Party, as to the GOP’s interest in the two laws, Carvin didn’t mention that it was necessary to combat voter fraud. Instead he talked about pure politics.
“It puts us at a competitive disadvantage relative to Democrats,” he said. “Politics is a zero sum game, and every extra vote they get through unlawful interpretations of Section 2 hurts us.”
Context of voting rights challenges
Liberal justices, meanwhile, focused their attention on future challenges concerning laws that on their face don’t seem problematic but result in racial discrimination.
The dispute comes in the aftermath of a contentious election that prompted former President Donald Trump to make unfounded claims of voter fraud and inspired his supporters to storm the US Capitol in an attempt to overturn the election.
Republican state legislators across the country are also moving at a fast clip to pass laws to restrict voting access. According to the Brennan Center for Justice, as of February 19, state lawmakers have carried over or introduced 253 bills with provisions that restrict voting access in 43 states.
Eight years ago, Roberts wrote the 5-4 majority opinion in Shelby County v. Holder, effectively gutting Section 5 of the Voting Rights Act, a provision that required states with a history of discrimination to obtain the permission of the federal government or the courts before enacting new laws related to voting.
Since that decision, challengers to voting restrictions have increasingly turned to Section 2 of the law, that holds that no voting regulation can be imposed that “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” (Unlike a challenge brought under Section 5, a Section 2 challenge occurs after the voting rule is in place.)
Liberal justices voice discrimination concerns
Liberal justices on Tuesday focused their attention on future challenges concerning laws that on their face don’t seem problematic but result in racial discrimination.
Justice Elena Kagan used her time to posit several hypotheticals about laws that might seem legitimate on their fact but result in racial discrimination. She mentioned an array of circumstances including ballot places that could be closed on Sunday, placing polling places at country clubs or poling hours limited to the hours of 9 a.m. to 5 p.m.
At another point she seemed to be searching for a line the court could draw.
“There are some things that are really quite obvious burdens, which you just know looking at them is going to lead to read difficulty for black voters or for Native American voters or for Latino voters,” Kagan said.
Justice Sonia Sotomayor was critical of a standard put forward by Carvin. “Aren’t you rewriting Section 2?” she asked.
She also pointed out that a district court found “no meaningful threat” that a ballot collection law leads to fraud.
In court, Arizona’s Attorney General Mark Brnovich told the justices that the two provisions “do not create any disparate impact on racial minorities but serve us all equally well.”
Justice Stephen Breyer pushed back on the notion that a law could pass legal muster if all voters still had the same opportunities to vote. He referenced literacy tests used early in the nation’s history to disenfranchise voters. “One question,” he asked, “is a literacy test, does that provide people with the same opportunity?”
This story has been updated with additional details from oral arguments.
CNN’s Haley Burton contributed to this report.