By Todd Lassa

Should the state of Arizona throw out entire ballots cast outside a voter’s assigned precincts, and should it be allowed to restrict collections of ballots by third parties? Those are the questions the U.S. Supreme Court considered Wednesday in arguments for Brnovich vs. Democratic National Committee, and Arizona Republican Party vs. Democratic National Committee. 

The question the Supremes will attempt to answer when the court issues its rulings in the two cases by summer could set a standard for “determining whether a majority would coalesce around a standard for determining whether voting laws and practices violate Section 2 of the federal Voting Rights Act” of 1965, Amy Howe writes in SCOTUSblog.

The Arizona legislature’s ban on collecting ballots, commonly known as “ballot harvesting,” goes back to 2016. The U.S. Court of Appeals for the Ninth Circuit struck down the out-of-precinct policy (the Brnovich case) and the restriction on ballot harvesting (Arizona Republican Party vs. Democratic National Committee) as violations of Section 2, which prohibits state ballot rules “that discriminate on the basis of race, color, or membership in one of the language minority groups,” and is one of the only provisions of the 1965 Voting Rights Act with no expiration date. 

SCOTUS in 2013 ruled in Shelby County vs. Holder that Section 5 of the VRA was no longer necessary. That provision required a freeze on voter laws enacted by certain states and municipalities with a history of discrimination (as in Shelby County, Alabama), subject to administrative review, or by the U.S. attorney general (such as Eric Holder in the Obama administration) or in a lawsuit before the U.S. District Court for the District of Columbia. 

Brnovich vs. Democratic National Committee seeks to overturn the appeals court’s rule against legislation that requires an entire ballot, even the votes for state and national races, to be discarded if it was cast in the wrong precinct. The DNC argues that the state provision discriminates against native Americans living in rural and desert areas in Arizona who may have trouble reaching their designated polling place, while attorneys for the state’s attorney general, Mark Brnovich, a Republican, say it affects very few people in such sparsely populated areas, and is designed to prevent fraud in more densely populated areas where precincts are closer together. 

Democrats are more typically concerned about voter suppression in crowded urban areas where the majority tends to favor their party. Much of ex-President Trump’s gripes about the November 3 election were the result of late-counted votes in cities like Milwaukee and Philadelphia that came in after 3 a.m. and flipped the tally from his early lead for Wisconsin and Pennsylvania, for example, that came from counting sparse rural areas first.

In Tuesday’s hearing, Chief Justice John Roberts noted the 2005 report on federal election reform from a commission led by former President Jimmy Carter and former Secretary of State James Baker, which “said that absentee ballots are the largest (source) of potential voter fraud” and recommended eliminating party workers picking up and delivering ballots. 

Jessica Amunson, attorney for Arizona Secretary of State Katie Hobbs, a Democrat, argued that minority voters in Arizona “rely disproportionately on ballot collection,” according to the SCOTUSblog report, and that the state was trying to limit “participation of Hispanics and Native Americans, in particular.”

Justice Amy Coney Barrett asked Arizona Republican Party attorney Michael Carvin why his client was at all interested in keeping the anti-ballot-harvesting law on the books.

The Ninth Circuit’s ruling “puts us at a competitive disadvantage relative to Democrats,” Carvin responded. “Politics is a zero-sum game, and every extra vote they get through unlawful interpretations of Section 2 hurts us. It’s the difference between winning an election 50 to 49 and losing.”

The Brennan Center, a left-leaning organization, tracks voting legislation across the country and reports as of February 19, 2021, legislatures in 43 states have carried over, pre-filed, or introduced more than 250 bills that would make it harder to vote – more than seven times the number of restrictive bills as compared to roughly this time last year.” The bills most likely to pass are in Republican-majority state houses, and the connection to President Trump’s repeated warnings months in advance that he could only lose re-election if there is widespread voter fraud is obvious.

The most high-profile example of such legislation is what Georgia’s Republican-led General Assembly passed Monday evening, just four months after Joseph R. Biden became the first Democrat since 1992 to take the state’s Electoral College votes, and two months after Democrats won runoff elections for the U.S. Senate.

Georgia’s legislation, which must still pass the state’s Senate, requires additional identification for absentee voting, restricts ballot drop-boxes and limits weekend days for early voting prior to election day. Democratic opponents consider the latter provision extraordinarily discriminatory because it would restrict voting after church hours on Sundays, a tradition in the Black community known as “souls to the polls.” According to The New York Times, about 88% of Black voters chose Biden over Trump, and more than 90% of Black voters chose Democrats Raphael Warnock and Jon Ossoff for the two Senate seats, thus giving that party control of the chamber.

To counter Republican efforts to tighten voting procedures, the U.S. House of Representatives Wednesday, March3, passed HR 1 along party lines, with all 220 Democrats voting in favor to 210 Republicans’ opposed. The For the People Act, designed to restore and strengthen original provisions of the 1965 VRA, seeks to require automatic, same-day and online voter registration, restore voting rights to citizens with prior convictions, strengthen the mail-in voting system and institute nationwide early voting. It complements the John Lewis Voting Rights Advancement Act, which proposes a new formula to replace the pre-clearance formula Shelby County vs. Holder removed so “states that have repeated voting rights violations over 25 years need special permission to change rules.”

Former Vice President Mike Pence criticized HR 1 in his first commentary Wednesday for The Heritage Foundation’s e-newsletter, The Daily Signal, as an 800-page election overhaul “that would increase opportunities for election fraud, trample the First Amendment, further erode confidence in our elections, and forever dilute the votes of legally qualified eligible voters.” The bill’s single goal, Pence continues, is “to give leftists a permanent, unfair, and unconstitutional advantage in our political system.”

The House passed the John Lewis Act last year, but then-Senate Majority Leader Mitch McConnell refused a single hearing on the bill. Democrats will need to kill the legislative filibuster to have any chance to pass either bill in the Senate this session, and their success or failure in the upper chamber almost certainly will affect each party’s success or failure in the 2022 and 2024 elections.