On the last day before its summer recess, the Supreme Court upheld two Arizona voting provisions that Democrats and civil rights groups challenged as disproportionately burdening minority voters. The vote was 6-3, with only the three hardcore liberals dissenting.
Justice Alito wrote the opinion. That’s always a great sign.
Amy Howe at Scotusblog observes that the decision “will make it more difficult to contest election regulations under the Voting Rights Act.” That’s probably an understatement. The motion to dismiss Kristen Clarke’s suit challenging Georgia’s election law will all but write itself now.
The majority opinion found that the “core” of Section 2 of the Voting Rights Act, under which the challenge to the Arizona law was made, is the “requirement that voting be ‘equally open.” That determination should be made taking all of the circumstances into account.
Which circumstances are relevant? The majority declined to provide an exhaustive list. However, it outlined “several important circumstances.”
In a key passage, the majority stated that the size of the burden imposed by a voting rule is “highly relevant.” “After all,” it observed, “every voting rule imposes a burden of some sort.” Thus, “mere inconvenience cannot be enough to demonstrate a violation of” Section 2.
Furthermore, courts should also consider the extent to which the voting rule being challenged differs from voting practices in 1982, when Congress amended Section 2 to prohibit any policy or practice 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 majority found it “relevant” for purposes of evaluating Arizona’s law that “in 1982 States typically required nearly all voters to cast their ballots in person on Election Day and allowed only narrow and tightly defined categories of voters to cast absentee ballots.” The Court doubted that, in amending Section 2, “Congress intended to uproot facially neutral time, place, and manner regulations that have a long pedigree or are in widespread use in the United States.”
What if a voting rule affects some racial or ethnic groups more than others? In that event, the majority said, courts should consider the size of the disparate impact. The existence of some disparate impact does not, standing alone, mean that there is not equal opportunity to vote.
In my view, even a large disparity doesn’t mean, in itself, that any racial group lacks an equal opportunity to vote. But the majority didn’t go that far. “The size of any disparity matters,” it stated.
Finally, the majority stressed that in cases like this one, courts should look at the reason why states imposed a particular voting rule. And the majority was quite clear that the goal of preventing voter fraud is a “strong and entirely legitimate state interest.”
How could it not be?
Scotusblog’s Howe does a good job of explaining how the application of these guideposts caused the Court to reject the challenge to Arizona’s law. I think they will cause all but the most pro-Democrat lower courts to reject most other such challenges under Section 2.