Supreme Court decision rules Arizona’s laws constitutional

While the Voting Rights Act should be interpreted broadly, the latest decision has a patina of fairness, says legal historian Mary Frances Berry.

 Glass doors read "polling station" with opening times listed
“What you should be doing with voting is trying to make it as easy as possible for people to vote with the fewest restrictions,” says Mary Frances Berry. 

In a 6-3 decision penned by Justice Samuel A. Alito Jr., the Supreme Court has ruled that Arizona’s election laws do not violate the Voting Rights Act. In her dissent in the Brnovich v. Democratic National Committee decision, Justice Elena Kagan called the ruling “tragic,” saying that “too many states and localities are restricting access to voting in ways that will predictably deprive members of minority groups of equal access to the ballot box.”

Two points were up for debate. Arizona’s out-of-precinct policy, wherein the county discards any provisional ballots cast out of precinct regardless of whether or not the person is eligible to vote, and H.B. 2023, a new law passed in 2016 by Republican legislators, which ensures that ballots have to be collected and dropped off by the voter rather than a third party. The Democratic National Committee alleged that this law is racially discriminatory.

“The Arizona cases have told us what the present court considers the standard for deciding whether a voting procedure discriminates on the basis of race or color,” says Mary Frances Berry, Geraldine R. Segal Professor of American Social Thought and professor of history and Africana studies. The majority decision is “not a serious interference” with the Voting Rights Act she says, if one agrees with the Carter/Baker 2005 Commission report, cited by the court’s majority, that mail-in and absentee ballots may present issues of fraud. 

“However, Justice Kagan’s dissent drills down on the issues to makes clear that what the majority sees as inconveniences—such as transportation—are major burdens on the opportunity to choose a candidate of their choice for many voters, especially Native Americans and Latinos in Arizona,” says Berry. 

The Arizona case played out while congressional Republicans filibustered the For the People Act on June 22, which proposed a change to processes, including a mandate for same-day voter registration in national elections and campaign-finance reforms. It also proposed to make Election Day a national holiday and give redistricting commissions the authority to draw electoral district boundaries, rather than leaving it up to state legislatures. This act would undercut “the power of states over electoral processes and prohibit the kind of laws some states are passing regarding voting,” says Berry. Democrats and civil rights groups say these laws are tantamount to a denial of civil rights in the form of voter suppression, she says.

“The act was filibustered because Republicans do not want to undercut the powers of the states over voting in the U.S. Constitution, and they do not want to end the practices those states are enacting because they think Democrats will then defeat them in elections,” says Berry.

“The fundamental problem is that when the Constitution was framed the framers left most of the legal responsibility up to the states, and the states are all different,” she says. Leaving voting processes largely up to the discretion of the states was not made just to institutionalize slavery but was rather the result of compromise “because otherwise the framers couldn’t get approval of the Constitution,” Berry says.

The more concerning decision remains Shelby County v. Holder, (2013), she says. The Shelby County ruling found that Section 4(b) of the Voting Rights Act, which determines which localities are subject to preclearance based on their history of voter suppression, was outdated and no longer valid. This means that there is no longer a review of changes in state laws to prevent discrimination before the law become operative.

During the next five years, 23 states imposed more restrictive voter laws, an independent commission found. Kagan noted in her Arizona dissent that after Shelby “other states—Alabama, Virginia, Mississippi—fell like dominoes, adopting measures similarly vulnerable to preclearance review.” Measures included polling place closures in areas dominated by minority voters, moving away from same-day registration, and restricting early voting.

“The Voting Rights Act ought to be interpreted broadly,” says Berry, but the Arizona laws are not the overriding concern. “We’ve dodged a bullet here, in a sense. The main problem is doing something about Shelby v. Holder and trying to get preclearance back in place where it should be.” The Arizona decision makes clear that Section 2 of the Voting Rights Act is not an adequate substitute, she says.

Kagan’s dissent is correct in that “what you should be doing with voting is trying to make it as easy as possible for people to vote with the fewest restrictions,” Berry says. “Any decision that makes it harder could be considered an erosion of democracy.”