The Supreme Court on Thursday upheld two election laws in the 2020 battleground state of Arizona that challengers said make it harder for minorities to vote.
The case was an important test for what’s left of one of the nation’s most important civil rights laws, the Voting Rights Act of 1965, which the Supreme Court scaled back in 2013. A remaining provision allows lawsuits claiming that voting changes would put minority voters at a disadvantage in electing candidates of their choice.
The vote was 6-3, with the court’s three liberals dissenting.
Election law experts said the court’s ruling will make it harder for minority groups to challenge voting laws.
“This significantly dilutes the Voting Rights Act,” said Rick Hasen, a law professor at the University of California, Irvine. “Minority groups will now have to meet a much higher standard beyond showing that a change presents a burden to voting. It puts a thumb on the scale for the states.”
Writing for the majority, Justice Samuel Alito said the law requires “equal openness” to the voting process. “Mere inconvenience cannot be enough to demonstrate a violation” of the law, he wrote.
Voting law changes may have a different impact on minority and nonminority groups, Alito said, “but the mere fact there is some disparity in impact does not necessarily mean that a system is not equally open or does not give everyone an equal opportunity to vote.”
Writing in dissent for herself and Justices Stephen Breyer and Sonia Sotomayor, Justice Elena Kagan said the decision undermines the Voting Rights Act, which she called “a statute that stands as a monument to America’s greatness and protects against its basest impulses.”
President Joe Biden said in a statement that he was “deeply disappointed” in the decision.
“In a span of just eight years, the court has now done severe damage to two of the most important provisions of the Voting Rights Act of 1965 — a law that took years of struggle and strife to secure,” he said in a statement, arguing that the ruling makes federal voting legislation all the more necessary.
“The court’s decision, harmful as it is, does not limit Congress’ ability to repair the damage done today: it puts the burden back on Congress to restore the Voting Rights Act to its intended strength,” Biden said.
Civil rights groups were hoping the Supreme Court would use the Arizona case to strengthen their ability to challenge the dozens of post-2020 voting restrictions imposed by Republican legislatures in the wake of Donald Trump’s defeat.
Thursday’s ruling said Arizona did not violate the Voting Rights Act when it passed a law in 2016 allowing only voters, their family members or their caregivers to collect and deliver a completed ballot. The court also upheld a longstanding state policy requiring election officials to throw out ballots accidentally cast in the wrong precincts.
Lawyers for the state said they wanted to prohibit “unlimited third-party ballot harvesting,” which they called a commonsense way to protect the secret ballot. They said the out-of-precinct rule was intended to prevent fraudulent multiple voting.
But Arizona Democrats said the state had a history of switching polling places more often in minority neighborhoods and putting them in places intended to cause mistakes. And the Democrats said minority voters are more likely to need help turning in their ballots. In many states where ballot collection is legal, community activists offer it to encourage voting, they said.
A federal judge in Arizona rejected the challenges. But the 9th U.S. Circuit Court of Appeals reversed the decision, so the state appealed to the Supreme Court.
In the past, the Voting Rights Act required states with a history of discrimination to get permission from a court or the Justice Department before changing election procedures, the test being whether the change would leave minority voters worse off. But in 2013 the Supreme Court suspended that pre-clearance requirement, ruling that Congress failed to properly update the formula for determining which states should be covered.
Before 2013, states had the burden of showing that their changes would not illegally affect minority voting. After the court’s ruling, the burden shifted to the challengers to show that a change in election law would harm minority voters. But the nation’s federal courts have disagreed about how to tell if a revised voting practice violates the law.
Advocates said the ruling will make it much harder for voting rights advocates to challenge discriminatory voting laws, particularly under Section 2 of the Voting Rights Act, which bans voting policies that result in racial discrimination.
“I think the court has also given cover to states that rely on the pretext of supposed fraud to burden the rights of voters of color and Native American voters,” said Sean Morales-Doyle, a voting rights expert at the Brennan Center for Justice at New York University School of Law.
Morales-Doyle said this is particularly dangerous because dozens of states have advanced voting restrictions this year, inspired by Trump’s frequent and false voter fraud claims.
Chad Dunn, co-founder and legal director of the UCLA Voting Rights Project, said some Republican-controlled legislatures will see it as license to pass voting restrictions under the guise of combating voter fraud.
“They’re going to see that if we call it voter fraud, then we can do whatever discriminatory practice we want,” he told NBC News.
[via NBC News]