Supreme Court upholds Arizona voting limits in a major ruling concerning a key part of the Voting Rights Act

• The Supreme Court upheld two GOP-passed Arizona voting laws in a ruling.
• The court was tasked with deciding whether the laws violate Section 2 of the Voting Rights Act.
• The case has possible implications for new GOP voting cases and the upcoming redistricting cycle.

The US Supreme Court ruled 6-3 to uphold two Arizona voting restrictions in a pair of key cases over whether the laws violated Section 2 of the Voting Rights Act, one of the most important federal civil rights laws.

The cases, Brnovich vs. Democratic National Committee and Arizona Republican Party vs. DNC, were consolidated for one hour of oral arguments in early March and centered on Arizona laws that throw out provisional ballots filed at the wrong precinct and bar third-party groups from returning mail ballots. The petitioners argued the laws are discriminatory in their disproportionate impact on voters of color.

They not only concerned the legality of the two laws in question, but tested the limits of Section 2 itself, which bans voting laws or redistricting plans that result "in the denial or abridgment of the right of any citizen to vote on account of race, color, or membership in a language minority group."

Justice Samuel Alito authored the majority opinion, joined by Chief Justice John Roberts, Justice Neil Gorsuch, Justice Clarence Thomas, Justice Amy Coney Barrett, and Justice Brett Kavanaugh. Gorsuch also authored a concurring opinion joined by Thomas. Justice Elena Kagan authored the dissenting opinion joined by Justice Stephen Breyer and Justice Sonia Sotomayor.

Broadly, the Court ruled that neither voting rule imposes unacceptable barriers beyond "the usual burdens" of voting, finding that "mere inconvenience cannot be enough to demonstrate a violation of Section 2."

The Court did not, however, establish any new legal tests, instead issuing "guideposts" for such litigation as applied to voting cases.

"We think it prudent to make clear at the beginning that we decline in these cases to announce a test to govern all VRA §2 claims involving rules, like those at issue here, that specify the time, place, or manner for casting ballots," Alito's opinion said, adding that "as this is our first foray into the area, we think it sufficient for present purposes to identify certain guideposts that lead us to our decision in these cases."

The decision has significant implications for the ongoing federal lawsuits under Section 2 of the Voting Rights Act ongoing against the dozens of restrictive voting laws passed by Republican-controlled state legislatures in 2021, including a recently-filed Department of Justice lawsuit against Georgia.

The Arizona cases were the most consequential that the now 6-3 majority conservative court had taken up over the Voting Rights Act since Shelby County v. Holder case decided in 2013, and mark the first time the Court has considered whether voting and election laws violate Section 2 of the Voting Rights Act (the Court has previously decided Section 2 cases concerning redistricting and vote dilution).

In that ruling, the Court struck down the coverage formula used to determine which states needed to seek approval, or preclearance, from the federal government before enacting new voting policy changes under Section 5 due to histories of discrimination.

Shelby rendered Section 5 unenforceable, releasing Arizona from the preclearance requirement, and leaving Section 2 as one of the most powerful tools for plaintiffs to challenge discriminatory vote-dilution schemes in the apportionment of congressional districts and voting policies.

In 1982, Congress expanded the scope of Section 2 to cover not just intentional discrimination, but cases where voting policies resulted in discriminatory impacts in the "totality of the circumstance of the local electoral process."

The cases the Supreme Court ruled on originated in 2016, when the DNC sued Arizona under Section 2 of the VRA over two voting laws passed by the state legislature: a law prohibiting provisional ballots that a voter cast in the wrong voting precinct from being counted, and another barring third-party groups from returning voters' mail ballots to election offices, sometimes referred to as "ballot harvesting."

While a US District Court sided with Arizona and upheld the laws, the full 9th Circuit overturned that ruling.

The appellate court found that both laws violated Section 2 and had discriminatory impacts against Black, Latino, and Native American voters in Arizona. Applying a two-part results part, the Court found that the plaintiffs proved that the laws "imposed a significant disparate burden" on minority voters, and resulted from "social and historical conditions" that fostered hostile conditions for minorities' voting rights.

Under Arizona's out-of-precinct policy, even votes for statewide races at the top of the ticket like president, US senate, and governor, cast in the wrong precinct are not counted.

Alito's opinion, however, argued that "the racial disparity in burdens allegedly caused by the out-of precinct policy is small in absolute terms," accusing the appeals court of misleadingly portraying statistics to make the disparity seem larger than it is, and that the state of Arizona has a compelling interest in holding precinct-based voting.

The 9th Circuit further ruled that the ban on third-party ballot collection was enacted with discriminatory intent, citing the state's "long history of race-based voting discrimination," the legislature's prior attempts to restrict ballot collection, the increase in Latino and Native American voter turnout, unfounded claims of fraud used as a basis to pass the law, and racially polarized voting patterns in the state.

The Supreme Court found too that given the availability of early and mail voting in Arizona, the bans on third-party ballot collection do not go beyond "the usual burdens" on voting, and that the plaintiffs challenging the rule "were unable to provide statistical evidence showing that HB 2023 had a disparate impact on minority voters."

The Court further reversed the appellate court's finding that the Arizona legislature enacted the ballot collection ban with racially discriminatory intent, writing, "the spark for the debate over mail-in voting may well have been provided by one Senator's enflamed partisanship, but partisan motives are not the same as racial motives."

The Court also ruled that the Appeals Court erred in applying "the cat's paw" doctrine to the legislature's adoption of the bill, finding the doctrine, which has roots in employment law, does not apply to legislative bodies.

In her dissent, Kagan charged that the majority opinion had effectively re-written the law to blunt its ability to counter discriminatory voting rules.

"Today, the Court undermines Section 2 and the right it provides," the dissent said. "The majority fears that the statute Congress wrote is too 'radical'-that it will invalidate too many state voting laws. So the majority writes its own set of rules, limiting Section 2 from multiple directions. Wherever it can, the majority gives a cramped reading to broad language."