Arizona Plays a Key Role in Shaping the Future of U.S. Voters’ Rights

By Jacinda Stephens

The Democratic National Committee’s Challenges to Arizona Voting Policies

In 2016, the Democratic National Committee (“the DNC”) unsuccessfully petitioned for preliminary injunctions to stop Arizona from enforcing two of its voting policies. The first policy involved out-of-precinct voting: under Arizona law, if a voter casts a provisional ballot outside of his or her designated voting area, then it is considered invalid and is not counted. The second policy, created by a “ballot-collection” statute, states that the only people who can collect and submit completed early ballots are the voter, a family member, the U.S. Postal Service, or election officials. The DNC’s argument was that the two policies violated Section 2 of the Voting Rights Act. Section 2 prohibits any “qualification or prerequisite to voting or standard, practice, or procedure” that “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.”

The U.S. District Court for the District of Arizona denied the DNC’s petition, and the U.S. Court of Appeals for the Ninth Circuit agreed with the lower court’s ruling. In 2017, a trial was held to determine the case’s merits. The DNC lost before the District Court for failing to prove “either that the policy caused a disproportionate number of minority voters to go to the wrong precinct or that the racial disparities led to ‘meaningful inequality’ in the political process.” The DNC appealed, but the Ninth Circuit agreed with the District Court’s ruling. The Ninth Circuit granted a hearing en banc, meaning that all of the Ninth Circuit judges heard the case rather than a smaller panel of judges.

The Ninth Circuit’s Two-Part Test

The Ninth Circuit analyzed the Arizona policies under a two-part test to see whether they violated the Voting Rights Act. The test’s first part asks whether “as a result of the challenged practice . . . plaintiffs do not have an equal opportunity to participate in the political processes and to elect candidates of their choice.” If the first step is met, the second step considers whether the challenged practice “interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by [minority] and white voters to elect their preferred representatives or to participate in the political process.”

Regarding the out-of-precinct policy, the court first pointed out that minority voters voted out-of-precinct twice as often as white voters, leading to their votes not being counted. Having shown that there was a disparate burden, the court considered, among many factors, Arizona’s “long and unhappy history of official discrimination connected to voting.” This included discrimination against Native Americans and Hispanics that dated back to when Arizona first became a territory in 1848. Some specific examples that the court gave were confining Native Americans to reservations, passing a statute that required voters to take an English language literacy test as a precondition to voter registration, and Arizona politicians’ active efforts to prevent Native Americans from voting.

For the “ballot-collection” policy, the court noted that many apartment buildings did not have outgoing mail services in areas with a large Hispanic population. It also considered other issues “such as mail security, lack of accessible transportation, and community isolation.” This increased the importance of third-party ballot collections. These factors proved the disparate burden for voters. For the second step, the court looked at many of the factors that it had pointed out with the out-of-precinct policy. It also questioned Arizona’s policy justification of preventing voter fraud and increasing the public’s confidence in elections, as there was no evidence of “voter fraud associated with ballot collection.”

Thus, under the two-part test, the Ninth Circuit found that both policies violated Section 2 of the Voting Rights Act. Arizona Attorney General Mark Brnovich appealed this decision to the United States Supreme Court.

Divided Opinions and the Supreme Court’s Decision

State and national Democrats agree with the Ninth Circuit’s position, and believe that the two policies have a discriminatory intent and also disproportionately affect minorities. This stems from disenfranchised voters often lacking means to cast their vote due to factors such as no transportation, inadequate mail services, and polling places being far away. The ballot-collection ban in particular has been viewed as “effectively criminaliz[ing] people for helping neighbors vote.”

Another major Democratic concern is that the Supreme Court’s decision in this case could weaken the Voting Rights Act. Previously, the Voting Rights Act protected voter discrimination in three ways: (1) requiring certain jurisdictions with a history of discriminatory voting practices to obtain preclearance from Washington D.C. officials before passing new laws, (2) prohibiting racially discriminatory elections laws, and (3) prohibiting state laws that abridge citizens’ voting rights “on account of race or color.” But two more recent Supreme Court cases, Shelby County v. Holder and Abbott v. Perez, already significantly weakened the first protection. This case could now negatively impact the remaining two protections.

On the other side are Arizona Republican officials, who believe that these policies are commonplace laws that help to prevent voter fraud and tampering, a particularly fraught topic in recent months. There is also concern that implementing the Ninth Circuit’s test will make it possible to do away with other state laws that have “even small differential effects on voters of different races.”

In this case, the Supreme Court must choose between concerns about election integrity and fears about policies that burden marginalized communities, making it more difficult for them to vote. With Amy Coney Barrett’s recent appointment, the Supreme Court now has a 6-3 conservative majority. And in a 2019 case that Barrett heard as a Seventh Circuit judge, she ruled in the county’s favor in a case where a plaintiff met the state’s 5,000 signature requirement but not the higher county requirement. The plaintiff argued that because the county and state requirement conflicted, the county one was unconstitutional. In her opinion, Barrett stated that “[i]f the burden is slight . . . [precedent cases] make clear that no justification beyond the state’s interest in orderly and fair elections is necessary – even if less burdensome alternatives are available.” Although the issues in this case are fairly different, Barrett’s position on voting integrity may potentially be instructive.

As both parties wait with baited breath to see the Supreme Court’s position, the much-anticipated case will start soon, as oral arguments are scheduled for March 2, 2021.

"Ballot in the box" by knezovjb is licensed under CC BY-SA 2.0

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By Jacinda Stephen.

J.D. Candidate 2022

Jacinda is a 2L Staff Writer from Walnut Creek, California. She earned her Bachelor of Arts from the University of Southern California with a degree in English in 2017. After graduating, Jacinda spent a year in Mongolia teaching AP English Literature and Math to middle and high school kids. During law school, Jacinda enjoyed externing with the Arizona Supreme Court Staff Attorney’s Office. Outside of school, she enjoys hiking, going to coffee shops, and binging Love Island episodes.

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.