Preventing Voter Fraud or a Front for Discrimination? Supreme Court Grants Cert to Review Arizona’s “Ballot-Harvesting” Law

By Brie Alford.

The contentious battle over mail-in ballots continues as the United States Supreme Court recently announced its plans to review an Arizona voting law. The so-called “ballot-harvesting law” bars anyone other than a family member or caregiver from returning a voter’s absentee ballot. The law has ignited a fierce partisan debate over voting access and voter fraud. But even more importantly, it has highlighted Arizona’s continued history of suppressing minority votes.

“Vote!” by kgroovy is licensed under CC BY-SA 2.0

A Long History of Voter Discrimination

Since its inception, Arizona has enacted discriminatory policies to discourage minority communities from voting. In the early 1900s, these policies were overt. For example, Arizona prohibited Native Americans from voting until 1948 and required individuals to pass an English literacy test to register to vote for nearly six decades. The test required voters to read the Constitution and write their names. While Arizona claimed the test ensured voters were well-informed, the state’s discriminatory intent was obvious. Arizona county registrars enforced the requirement unequally, often administering easier tests to white voters, or excusing them from the requirement altogether. Furthermore, white voters frequently intimidated minorities in voting lines by asking for their literacy verification. Unsurprisingly, when Congress passed the 1965 Voting Rights Act, Arizona was one of sixteen states called out for their disparate treatment of minority voters. And when the Voting Rights Act Amendments of 1970 instituted a nationwide ban on literacy tests, Arizona vehemently fought to uphold their discriminatory voting law.

Unfortunately, Arizona’s treatment of minority voters has not improved in recent years. Limited access to polling locations, language access, voter ID laws, and dual voter registration requirements continue to limit voting in minority communities. Arizona has attracted national attention as election officials continue to reduce the number of polling locations, which are already disproportionately low in minority neighborhoods. A 2015 Center for American Progress report corroborated this reduction, ranking Arizona 39th in the nation for voting accessibility.

Ballot-Harvesting as a Partisan Issue

Democrats argue that the ballot-harvesting law is just another attempt by the Arizona legislature to suppress minority votes. They also contend that Republicans introduced the law to thwart their success in increasing minority voter turnout. Before the law was passed, Democrats and Republicans would go door to door collecting absentee ballots. This practice, coined “ballot-harvesting,” helped communities that lack easy access to outgoing mail services vote. Democrats directed their efforts towards minority neighborhoods, where voters are more likely to need help turning in their ballots. Under the ballot-harvesting law, however, their efforts are illegal.  Republicans contend that the law merely intends to prevent voter fraud.  

“Disparate Impact” and “Discriminatory Intent”

In their lawsuit, the Democratic National Committee (“DNC”) argued that the law violates Section 2 of the Voting Rights Act, as well as the 15thAmendment. Section 2 of the Voting Rights Act (“the Act”) prohibits voting procedures that discriminate on the basis of race, color, or membership in a minority language group. The 15thAmendment similarly prohibits the government from denying its citizens the right to vote because of race. The DNC argued that the ballot-harvesting law violated the Act because it “adversely and disparately” affects Arizona’s American Indian, Hispanic, and African American communities. They also contended the law was enacted with discriminatory intent in contravention of the Act and the 15th Amendment.

The Ninth Circuit found the DNC’s arguments persuasive. First, they held that the ballot-harvesting law violated the Act, noting its “substantial” adverse impact on minority communities. They cited the struggles minority communities face when trying to vote, including lack of access to at-home mail services, lack of transportation, and frequent mail theft. They concluded that “without access to reliable and secure mail services and without reliable transportation, many minority voters prefer to give their ballots to a volunteer.” Further, given Arizona’s long history of suppressing minority votes, the policy hampered minorities’ opportunities to elect their chosen representatives. Thus, the court concluded that the ballot-harvesting law violated the Act. 

Second, the court found that the ballot-harvesting law was enacted to discriminate against minorities, and not to prevent voter fraud. The court explained that the allegations of voter fraud as related to third-party collections were baseless and racially motivated. The court noted that several Arizona senators presented false allegations and “racially-tinged” videos to encourage fellow senators to approve the bill. And while some legislators did not have a discriminatory purpose, their votes were still influenced by the false accusations. Thus, the law was enacted with a discriminatory intent in violation of the Act and the 15thAmendment.

Supreme Court Grants Cert

Following the Ninth Circuit’s ruling, Arizona Attorney General Mark Brnovich and state Republicans appealed to the U.S. Supreme Court. On Friday, October 2nd, the Supreme Court granted cert, meaning it will review the Ninth Court’s decision. The law will remain in effect until the Supreme Court issues a ruling, the date of which has not yet been set.

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By Brie Alford.

J.D. Candidate, 2022

Brie is a 2L staff writer from Queen Creek, Arizona. She earned a Bachelor of Arts in Philosophy, Politics, Economics, and Law from the University of Arizona. In her free time, she enjoys yoga, hiking, and trying new restaurants in the valley.

The opinions expressed herein are those of the individual contributors to the ASLJ Blog and should not be construed as the opinions of the Arizona State Law Journal or the Sandra Day O’Connor College of Law at Arizona State University.