By Emiley Pagrabs.
In Reynolds v. Sims (1964), the Supreme Court stated: “The right to vote freely for the candidate of one’s choice is of the essence of a democratic society, and any restrictions on that right strikes at the heart of representative government.” However, this right historically has not applied equally to all Americans.
After years of failed attempts to curb minority disenfranchisement, the Voting Rights Act (the “VRA”) entered into law on August 6, 1965. An innovative solution to historic discrepancies, the VRA curbed racial voter discrimination in two main ways. Through Section Five, Congress created a preclearance regime, which required states under the “coverage formula” to submit any changes in voting procedure to the federal government for approval before enactment. Through Section Two, which largely mirrored the Fifteenth Amendment, states were prohibited from passing any laws resulting in the denial or abridgment of the right to vote based on race.
The Supreme Court struck down the “coverage formula” in Shelby County v. Holder in June 2013, making Section Five inoperative. As a result, nine states—including Arizona—were released from the preclearance regime. Moving forward, the only barrier between the states and voter discrimination was fear of a Section Two challenge.
A Challenge Out of Arizona: DNC v. Hobbs
For the past century, Arizona has repeatedly limited the ability of Native American, Hispanic American, and African American citizens to vote. In 2016, the Democratic National Party (the “DNC”) sued Arizona’s Secretary of State, challenging two components of Arizona election law under Section Two and the Fifteenth Amendment. To succeed under Section Two, the DNC had to show that, first, the procedures had a disparate impact on minorities, and, second, the procedures related to the social and historical conditions of discrimination in Arizona. Under the Fifteenth Amendment, the DNC also had to show that the Arizona legislature intended to discriminate against minorities.
First, the DNC argued that Arizona’s Out-of-Precinct voting policy (“OOP policy”) violated Section Two. Under the OOP policy, a voter who voted at the incorrect polling location was permitted to cast a provisional ballot. If the election was close, election officials would review the provisional ballots. If it was determined the voter cast a provisional ballot out of precinct, the ballot was discarded entirely. In most cases, the voter cast votes for candidates for whom he or she was eligible to vote. Arizona discarded 38,335 OOP ballots from registered voters between 2008 and 2016. The DNC introduced evidence that minority voters cast twice as many OOP ballots than white voters, largely due to higher rates of residential mobility and changing polling locations. Therefore, they argued, the OOP policy “adversely and disparately” impacted the ability of Arizona’s minorities to vote in violation of Section Two.
Second, the DNC contended that House Bill 2023 (“H.B. 2023”) violated Section Two and the Fifteenth Amendment. H.B. 2023 criminalized ballot collection by third-parties—often called “ballot-harvesting”—in the 2016 legislative session, after multiple previous attempts to pass similar legislation and after it was released from the preclearance regime following Shelby County. As Hispanic and Native American voters often lack reliable outgoing mail services and transportation, minority populations rely on third-party ballot collection. The DNC also introduced evidence of racial motivations behind the passage of H.B. 2023. Therefore, the DNC argued that H.B. 2023 served as a barrier to minority voting.
After a ten-day bench trial in the U.S. District Court for the District of Arizona, Judge Rayes found in favor of Arizona. The DNC appealed the decision, and a three-judge panel of the Ninth Circuit Court of Appeals affirmed. In a rare decision, the Ninth Circuit voted to rehear the case en banc. On January 27, 2020, the Ninth Circuit issued its seven-four split en banc opinion, holding that Arizona’s procedures were in violation of Section Two and the Fifteenth Amendment.
Next Stop: The Supreme Court?
Likely, the Supreme Court will weigh in on DNC v. Hobbs. The Court has not taken up a Section Two vote denial claim since its ruling in Shelby County. In 2017, the Supreme Court denied certiorari in League of Women Voters v. NC, a case arising out of the aftermath of Shelby County. However, ballot-harvesting has raised questions in multiple jurisdictions. Considering the issue’s polarizing nature, the Supreme Court may take the opportunity to set a standard for the country. After the Court’s silence following Shelby County, DNC v. Hobbs provides an opportunity for the Court to either reinforce or further weaken the Voting Rights Act.