Today, the Supreme Court handed its last decisions of the 2021 term, including a controversial case regarding Arizona’s voting regulations, which Democrats have argued, without evidence, are intended to suppress the minority vote. In a 6-3 decision, the Supreme Court upheld the Arizona voting law, with all of the six “conservative” judges and all three “liberal” justices ending in opposing sides of the argument.
Although the Court has managed to issue many decisions that have surprisingly gone beyond ideological lines, this decision would surely reopen the debate on courts, as Democrats flirt with the idea of packing it with more aligned supporters and as Republicans seek to enact similar voting legislation across the country.
What are the Arizona’s voting regulations upheld by the Court?
The controversial issue decided by the Court was the challenge by the Democratic Party over Arizona electoral law, which prohibits third parties (although it allows family and caregivers) to collect mail ballots and deliver them to election officials (a practice known as “ballot harvesting”), and another regulation that does not allow voters to cast ballots in a different precinct from that which they are registered.
Democrats say that these voting regulations are a direct violation of the 1965 Voting Rights Act (specifically Section 2) as it would make it harder for racial minorities to cast a ballot during the elections, while Republicans have argued that such accusations are not true and that the Arizona voting laws are only there to ensure a transparent and safe electoral process.
Section 2 of the voting rights act prohibits any state to pass legislation which “results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color”. Such violation of voting rights should be determined if the legislation prevents elections to be “equally open for participation” to citizens of a racial or ethnic minority or if such individuals have “less opportunity” than others.
The 9th Circuit Court agreed with the Democrats last year and determined that the Arizona policies had, in fact, violated the Voting Rights Act, saying that the rationale for prohibiting “ballot-harvesting” was “contrived” and disproportionately affected racial and ethnic minorities in the state. However, today’s ruling upholds Arizona’s law and overrules the previous decision of the lower court.
In a decision written by Justice Alito, the Court considered that any type of voting system (including those that are equally open) requires “some effort and compliance with some rules” and he says that any voting regime that ensures equality “must tolerate the usual burdens of voting”, scathingly adding that “mere inconvenience is insufficient to rule a law to be in violation of the Voting Rights Act.
Alito also says that just because there are some disparities in the voting numbers among different racial/ethnic populations does not mean that the legislation itself prevents voters the equal opportunity to go to the polls, saying that the size of such disparities is a crucial factor on determining a law that violates Section 2 as “small disparities should not be artificially magnified”.
Alito writes that, having taken into account all of the considerations necessary, the Arizona voting regulations do not violate the Voting Rights Act of 1965, despite the claims of the contrary by both Democrats and the lower courts, saying that just a very tiny amount of minority voters were affected by the out-of-precinct ruling and that the ban on ballot harvesting (Democrats call it ballot collection) falls within the “usual burdens of voting” category.
The future of the Court and election laws
The ruling was heavily criticized by Democrats, with President Biden tweeting that the Court’s decision “undercuts voting rights in this country” saying that American democracy “depends” on Congress passing the “For the People Act” and the John Lewis Voting Act.
The Court’s decision is just the latest development on the ongoing war regarding voting legislation throughout the country, with Republican-dominated legislatures introducing new voter laws which Democrats claim have the intention to suppress the vote of minorities. Just a few days ago, Biden’s Department of Justice decided to fill out a lawsuit against the Georgia Electoral law enacted earlier this year, today’s Court decision could reshape the debate around voting laws in the near future, making it harder to challenge voter laws enacted by Republican legislatures.
The Court’s decision could also bolster the rhetoric of the progressive wing of the Democratic Party, who have already been pressuring President Biden and the Democratic leadership to “pack the Court” with judges with more liberal leanings.
In fact, Senator Ed Markey quickly condemned the decision of the Court and called for his Democratic colleagues to both end the filibuster and “expand the Supreme Court”.
However, Markey’s plans are facing formidable obstacles as he would need every single Democratic Senator to agree with ending the Filibuster and with court-packing, due to the evenly divided composition of the Senate. As of now, Senators like Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ) have opposed such radical measures.
Markey’s radical position could also be hampered by the fact that, just a few weeks ago, the Court upheld (with the support of four “conservative” justices) the constitutionality of the Affordable Care Act, despite the law being sued by more than a dozen of republican states.
The latest decision of the Supreme Court highlights the high stakes of each case taken by the bench. Not only its decision will determine the fate of public policy throughout the country, in this case how elections are conducted, but it would also play a role in the political fight regarding the composition of the Court.
Judges, especially Chief Justice Roberts, will have to play a delicate balancing act between their responsibility of firmly deciding thorny constitutional matters while also maintaining its legitimacy as an independent branch of government.