GOP asks Supreme Court to reinstate Arizona voting rules deemed racially biased

Arizona Republicans on Wednesday will ask the Supreme Court for permission to revive a pair of voting restrictions, struck down by a lower court as racially discriminatory, that could make it harder for people of color to cast ballots in the battleground state this fall.

The request to reinstate the controversial policies is backed by Arizona Gov. Doug Ducey (R) and more than a half-dozen GOP senators, including Sen. Ted Cruz of Texas. A conservative litigation shop involved in election lawsuits across the country — and represented by the law firm handling President Trump’s tax returns case — has also lent its support.

The issue of Arizona’s voting rules will reach the justices at a time of social and political flux: Widespread protests over racial injustice have been ongoing since the May 25 killing of George Floyd while in Minneapolis police custody, and polls in the once-reliably Republican state of Arizona now show Trump trailing former Vice President Joe Biden with less than 100 days before the election.

At issue in the lawsuit are a pair of Arizona voting restrictions that were struck down earlier this year by the San Francisco-based 9th Circuit Court of Appeals, which sparked the GOP petition to the Supreme Court.

In its January ruling siding with Democratic challengers, the appeals court went so far as to conclude that one of the two voting rules under review was intentionally designed to discriminate against people of color. The blistering decision took Arizona to task for its historic practice of burdening the franchise of nonwhite voters.

“For over a century, Arizona has repeatedly targeted its American Indian, Hispanic, and African American citizens, limiting or eliminating their ability to vote and to participate in the political process,” the appeals court wrote.

Minority populations — whom the 9th Circuit Court found were disproportionately harmed in recent elections by the two Arizona policies — tend to vote Democratic.

While the Supreme Court will receive Arizona’s request for an appeal on Wednesday, its decision on whether to take up the case is likely to arrive this fall, perhaps just weeks before Election Day. Denying the appeal would give Democrats momentum heading into the final stretch of what’s expected to be a tight Senate and presidential race in the Grand Canyon State.

Yet so far this election cycle, the conservative-majority court has let voting restrictions stand in Alabama, Florida, Texas and Wisconsin. In a dissent earlier this month, Justice Sonia Sotomayor, one of the court’s more liberal justices, accused the court of engaging in “a trend of condoning disfranchisement.”

The procedural setting for the Arizona case is complex, but if four or more justices agree to take up the state’s appeal, then it will likely be permitted to carry out its restrictions in November. Some court-watchers believe the dispute is likely to garner enough votes to effectively allow Arizona to revive its controversial past practices.

“I think the court is fairly likely to grant the petition,” said Rick Hasen, an election law expert and law professor at University of California Irvine. “If they don’t, I expect one or more conservative justices will write something about the denial.”

In their Supreme Court petition, Arizona Republicans argue the 9th Circuit was wrong to invalidate the restrictions, which they say are needed to protect the integrity of the vote.

One of the disputed policies deals with how Arizona election administrators must handle ballots that are cast at the wrong polling place, or precinct. Under Arizona’s out-of-precinct rule, which has its roots in a policy that dates back to the 1970s, administrators are required to throw away any miscast ballot in its entirety.

Arizona Republicans say out-of-precinct policies are common across the U.S. and help ensure ineligible voters do not cast ballots in local races for officeholders who are running to represent a different geographic area.

But in its decision striking down the policy, the 9th Circuit found that Arizona had a pattern of destroying a far higher rate of out-of-precinct ballots than other states.

The appeals court also pointed to efforts by other states to only discard the portion of the ballot that might affect local elections. That policy allows for the preservation of votes cast for statewide and federal races, like U.S. Senate and the White House, since the precinct where such votes are cast bears no electoral significance.

In contrast, Arizona’s policy of requiring out-of-precinct ballots to be discarded entirely placed a disparate burden on minorities, the 9th Circuit found.

The court said Arizona’s minority population is more likely than whites to live in rented homes, which are subject to rent hikes, and thus lead to more-frequent changes in residency. When paired with Arizona’s seemingly irrational precinct map, this dynamic resulted in minorities casting more out-of-precinct votes, which would then be destroyed.

“[W]holly discarding, rather than counting or partially counting, out-of-precinct ballots, [has] a discriminatory impact on American Indian, Hispanic, and African American voters in Arizona, in violation of” the 1965 Voting Rights Act, the 9th Circuit said in its ruling.

The second voting restriction at issue is a 2016 Arizona law — H.B. 2023 — that criminalizes the collection and delivery of another person’s ballot, a service which minority voters are overwhelmingly more likely to rely on than white voters, the court found.

The court cited myriad reasons for this discrepancy, including that Arizona’s minority voters were disproportionately more likely to lack easy access to transportation, child care or the amount of time off work needed to personally deliver ballots.

In striking down the law, the 9th Circuit considered a number of factors: Arizona’s history of race-based voting discrimination, the increase in minorities’ share of the state’s overall vote and “the degree of racially polarized voting in Arizona.”

“The totality of the circumstances,” the court said, “cumulatively and unmistakably reveal that racial discrimination was a motivating factor in enacting H.B. 2023.”

The case, No. 19-1257, is Mark Brnovich, Attorney General of Arizona v. Democratic National Committee.