The Supreme Court agreed last Friday to hear a defense filed by Republicans in Arizona, who are aiming to uphold two voting provisions, deemed unlawful for disproportionately burdening Black, Hispanic, and Native American voters. The case, Arizona Republican Party vs. Democratic National Committee, was not “fast-tracked,” and the court’s full argument calendar means the case will not be heard before January 2021. Current Arizonian law will stay in place for the November 3 election.
One provision concerns an “out-of-precinct" policy, passed in the 1970s. In Arizona, provisional ballots cast in-person at a precinct other than the one to which a voter has been assigned are discarded. Arizonian voters must show up at the precinct where they are on the voter roll. Citing statistics showing nearly 30,000 out-of-precinct ballots being tossed out during the 2008, 2012, and 2016 presidential elections in Arizona, the Democratic National Committee and the Arizona Democratic Party sued the state's Republican officials in 2016.
The second provision in the case regards Arizona’s ballot collection law, known as H.B. 2023, whereby only certain people – family and household members, caregivers, mail carriers, and election officials – are permitted to handle the completed ballot of another person.
Both Republicans and Democrats have used ballot collecting to boost turnout during Arizonian elections by going door to door and asking voters if they have completed their mail-in ballot. Democrats say their success in using the method aggressively in minority communities is what compelled the GOP to make the 2016 law making it a felony to return someone else’s ballot. Mark Brnovich, Arizona’s attorney general, counters saying, "public officials must maintain the integrity of elections. He argues that ballot collection laws are 'commonplace election administration provisions' used by Arizona and 'dozens of states,' to prevent election fraud ." In court filings, he wrote, “prohibiting unlimited third-party ballot harvesting is a common-sense means of protecting the secret ballot and preventing undue influence, voter fraud, ballot tampering, and voter intimidation.”
A district court upheld these provisions, and the San Francisco 9th Circuit of Appeals affirmed, but these decisions were then reversed by an 11-judge en banc panel in January. Appeals Court Judge William A. Fletcher wrote the opinion, stating that Arizona’s practice of discarding ballots cast in the wrong precinct and criminalizing the collection of another person’s ballot “have a discriminatory impact on American Indian, Hispanic and African American voters in Arizona” in violation of the Voting Rights Act. The ruling also found the ban on ballot harvesting was enacted with “discriminatory intent,” and thus violated the U.S. Constitution's 15th Amendment, which prohibits racial discrimination in voting. He said, "false, race-based claims of ballot collection fraud" were used to convince Arizona legislators to pass the law.
Arizona Democratic Party Executive Director Herschel Fink called the ruling an important victory. "This takes an undue burden off of working families and people of color, making it easier for them to exercise their right to vote,” Fink said. “We are pleased that the latest effort to suppress the voices of voters by Republicans has failed.” Marc Elias, of the Democratic law firm Perkins Coie, appears as counsel of record for the DNC in the Supreme Court docket. Mr. Elias has successfully challenged many electoral laws in court. Most notable are cases in Missouri, Iowa, and North Carolina where courts struck down voter ID laws.
The case is one of many responses to a wave of voting-related litigation filed by the DNC in battleground states ahead of the November election. Arizona holds 11 of the 270 electoral votes needed to elect the president.
Carol King received a first-class BA (honors) in History and Politics from Stirling University, along with an exceptional commendation for a study on US public opinion and Foreign Policy. She also completed a year of study at the University of London before taking up a Graduate Proctor Fellowship at Princeton University. She further completed a MPhil in American Politics at Dundee University. Aspiring to be a writer/commentator on American politics, she now writes for UncoverDC.