By Mitch Kokai
The U.S. Supreme Court has upheld Arizona’s bans against ballot harvesting and out-of-precinct Election Day voting. The 6-3 ruling from the nation’s highest court could have an impact on N.C. election rules moving forward.
Justice Samuel Alito explained why he and five Supreme Court colleagues reversed a ruling from the full 9th U.S. Circuit Court of Appeals, meeting “en banc.”
“It relied on the rules’ small disparate impacts on members of minority groups, as well as past discrimination dating back to the State’s territorial days,” Alito wrote in the majority opinion. “And it overturned the District Court’s finding that the Arizona Legislature did not adopt the ballot-collection restriction for a discriminatory purpose. We now hold that the en banc court misunderstood and misapplied [Section] 2 [of the 1965 Voting Rights Act] and that it exceeded its authority in rejecting the District Court’s factual finding on the issue of legislative intent.”
The court’s majority rejected the argument brought by the “Democratic National Committee and certain affiliates” that a state ban on ballot harvesting and out-of-precinct voting “adversely and disparately” affected minority voters. The Supreme Court also rejected Democratic plaintiffs’ claim that the ballot-harvesting ban had been enacted “with discriminatory intent.”
“[T]he mere fact there is some disparity in impact does not necessarily mean that a system is not equally open or that it does not give everyone an equal opportunity to vote,” Alito wrote. “The size of any disparity matters. And in assessing the size of any disparity, a meaningful comparison is essential. What are at bottom very small differences should not be artificially magnified.”
The majority opinion clearly rejects a “freewheeling disparate-impact regime.”
Alito also turns to the historical record for bipartisan support of rules against ballot harvesting. “Limiting the classes of persons who may handle early ballots to those less likely to have ulterior motives deters potential fraud and improves voter confidence,” he wrote. “That was the view of the bipartisan Commission on Federal Election Reform chaired by former President Jimmy Carter and former Secretary of State James Baker. The Carter-Baker Commission noted that ‘[a]bsentee balloting is vulnerable to abuse in several ways: . . . Citizens who vote at home, at nursing homes, at the workplace, or in church are more susceptible to pressure, overt and subtle, or to intimidation.’”
Justice Elena Kagan wrote for the court’s three dissenters. She disagreed with Alito’s take on Section 2 of the Voting Rights Act.
“Today, the Court undermines Section 2 and the right it provides,” Kagan wrote. “The majority fears that the statute Congress wrote is too ‘radical’ — that it will invalidate too many state voting laws. So the majority writes its own set of rules. …”
“Wherever it can, the majority gives a cramped reading to broad language. And then it uses that reading to uphold two election laws from Arizona that discriminate against minority voters,” Kagan added.
“What is tragic here is that the Court has (yet again) rewritten — in order to weaken — a statute that stands as a monument to America’s greatness, and protects against its basest impulses.”
Republican State Board of Elections member Stacy “Four” Eggers of Boone liked the Supreme Court majority’s decision.
“I think today’s Supreme Court opinion opens the door to having more confidence in elections, as well as more reasonable secure ways to have those elections,” Eggers told Carolina Journal’s Dallas Woodhouse.
“The root question, with out-of-precinct voting, is you have judges, precinct officials, and official observers who have no way of knowing who those people are, and it opens the door for shenanigans.”
“Counties where you have many districts, out-of-precinct voting it is a huge hassle,” Eggers added. “Election administrators have to go through each provisional ballot and every single race marked on that provisional ballot to determine which race the voter is allowed to vote in, and which votes to count, because voting out of precinct gets you the wrong ballot with the wrong county commissioners and wrong state House and/or state Senate member.”
Eggers noted another problem with out-of-precinct voting. “I also think it is extremely concerning that allowing people to vote out of precinct disenfranchises the voter and deprives them of the right to vote in many races, when the simple and time-tested remedy is to send those voters to the correct voting location to receive the correct ballot, which is located near their legal voting residence.”
“Allowing voting out of precinct does a disservice to the voter.”
Ballot harvesting also attracted Eggers’ attention. “It is important to be able to regulate who handles absentee ballots and stop ballot harvesting,” he told Woodhouse. “We have all clearly seen this has been an issue here in North Carolina.”
“This reinforces our ability to have elections people have confidence in,” Eggers said of the U.S. Supreme Court ruling.
Republican Wake County elections board member Keith Weatherly also responded to the ruling on ballot harvesting and out-of-precinct voting. “I think we are going to have difficulties in the future with so many requesting absentee ballots, so this is a good step forward to stop ballot harvesting,” Weatherly told CJ’s Woodhouse. “Clearly it is better for the voter and for the safe, secure, and efficient administration of elections if people vote on the correct ballot in the correct place.”
Former Republican state elections board member John Lewis labeled the court ruling “a big victory for states who want to ensure that our elections remain fair, honest, and free of fraud and irregularities.”
The high court could have done more. “I am disappointed that this Supreme Court has yet again failed to produce a bright-line test, in this instance for examining Section 2 challenges,” Lewis said. “I fear that this will continue to result in endless litigation each time new legislation is passed.”