WASHINGTON — The Supreme Court seemed poised on Tuesday to uphold two Arizona voting restrictions, one requiring election officials to discard ballots cast at the wrong precinct and the other making it a crime for campaign workers, community activists and most other people to collect ballots for delivery to polling places, a practice critics call “ballot harvesting.”
Several members of the court’s conservative majority said the restrictions were sensible, commonplace and at least partly endorsed by a bipartisan consensus reflected in a 2005 report signed by former President Jimmy Carter and James A. Baker III, who served as secretary of state under President George Bush.
The Biden administration, too, told the justices in an unusual letter two weeks ago that the Arizona measures appeared to be lawful.
The court heard the case as disputes over voting rights have again become a flash point in American politics, with Democrats arguing that Republicans are increasingly trying to suppress the vote, thwart the will of the majority and deny equal access to minority voters and others who have been underrepresented at the polls.
The justices were harder to read on the larger issue in the case, Brnovich v. Democratic National Committee, No. 19-1257, which was filed by the Democratic National Committee in 2016 to challenge the voting restrictions under Section 2 of the Voting Rights Act of 1965.
That part of the act took on additional prominence after the Supreme Court effectively struck down the heart of the law, its Section 5, which required prior federal approval of changes to voting procedures in parts of the country with a history of racial and other discrimination.
The Supreme Court has never considered how Section 2, which allows after-the-fact challenges to laws that result in disproportionate limitations on voting by members of minority groups, applies to voting restrictions. The provision has been used mostly in redistricting cases, where the question was whether voting maps had unlawfully diluted minority voting power. Its role in addressing the denial of the right to vote itself has been subject to much less attention.
Section 2 bars any voting procedure that “results in a denial or abridgment of the right of any citizen of the United States to vote on account of race.” That happens, the provision goes on, when, “based on the totality of circumstances,” racial minorities “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.”
Over two hours of arguments, the justices struggled to identify a standard that would allow courts to distinguish lawful restrictions from improper ones.
The court did not seem receptive to an extreme test proposed by Michael A. Carvin, a lawyer for the Arizona Republican Party, who said that race-neutral election regulations that impose ordinary burdens on voting are not subject at all to challenges under Section 2. Most justices appeared to accept that placing substantial burdens on minority voters could run afoul of the law.
But there was some dispute about what counted as substantial and what justifications states could offer for their restrictions. The court’s more conservative members seemed inclined to require significant disparities unconnected to socioeconomic conditions and to accept the need to combat even potential election fraud as a sufficient reason to impose restrictions on voting.
In an exchange with Mr. Carvin, Justice Elena Kagan tested the limits of his argument. Asked whether much longer lines at polling places in minority neighborhoods could be challenged under the law, he said yes. He gave the same answer when asked about locating all polling places at country clubs far from minority neighborhoods.
But he said cutting back on Sunday voting, even if heavily relied on by Black voters, was lawful, as was restricting voting to business hours on Election Day.
Mark Brnovich, Arizona’s attorney general, said the disparate effect on minority voters must be substantial and caused by the challenged practice rather than some other factor. Several justices suggested that the formulation was little different from the ones lawyers challenging the law had proposed.
“The longer this argument goes on,” Justice Kagan said, “the less clear I am about how the parties’ positions differ.”
Justice Stephen G. Breyer echoed the point. “Lots of the parties on both sides are pretty close on the standard,” he said.
Justices Kagan and Breyer, both members of the court’s liberal wing, may have been playing defense, hoping the court’s decision, expected by July, would leave Section 2 more or less unscathed.
But it was not clear that lower courts would be much helped if the Supreme Court were to adopt a vague and flexible approach.
Justice Amy Coney Barrett suggested that the court should adopt a clear standard. “All election rules,” she said, “are going to make it easier for some to vote than others.”
Last year, the United States Court of Appeals for the Ninth Circuit, in San Francisco, ruled that both Arizona restrictions violated Section 2 because they disproportionately disadvantaged minority voters.
In 2016, Black, Latino and Native American voters were about twice as likely to cast ballots in the wrong precinct as were white voters, Judge William A. Fletcher wrote for the majority in the 7-to-4 decision. Among the reasons for this, he said, were “frequent changes in polling locations; confusing placement of polling locations; and high rates of residential mobility.”
Similarly, he wrote, the ban on ballot collectors had an outsize effect on minority voters, who use ballot collection services far more than white voters because they are more likely to be poor, older, homebound or disabled; to lack reliable transportation, child care and mail service; and to need help understanding voting rules.
Judge Fletcher added that “there is no evidence of any fraud in the long history of third-party ballot collection in Arizona.”
In dissent, four judges wrote that the state’s restrictions applied neutrally to all voters.
Lawmakers were entitled to try to prevent potential fraud, Judge Diarmuid F. O’Scannlain wrote. “Given its interest in addressing its valid concerns of voter fraud,” he wrote, “Arizona was free to enact prophylactic measures even though no evidence of actual voter fraud was before the legislature.”
The appeals court stayed its ruling, and the restrictions were in place for the election in November.
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