The Supreme Court upholds states’ efforts to ensure voter integrity

Last week in Brnovich v. Democratic National Committee, the Supreme Court concluded that states could enact commonsense and necessary protections to ensure the integrity of their electoral systems. States such as Georgia, Iowa and Florida can rest assured that specious challenges to their legitimate efforts to guarantee the sanctity of the vote will not be supported by activist judges.

The Supreme Court overturned a decision by the Ninth Circuit striking down two policies Arizona uses to protect voting. First, the Supreme Court ruled that Arizona’s policy requiring in-person voters to vote in their designated precincts did not violate the Voting Rights Act. In practice, the overwhelming majority of in-person voters (both minority and non-minority) in Arizona vote in the correct precinct, and challengers could show only a minute difference in the numbers of minority versus non-minority votes rejected. This wasn’t enough to sustain an allegation that the policy posed a significant barrier to voting. 

Second, the Court ruled that the Voting Rights Act did not prohibit Arizona from limiting who could handle mail ballots. Arizona’s policy prohibited “ballot harvesting,” a practice where partisan groups sometimes descend upon vulnerable populations such as nursing home residents, exert influence on these voters and collect their ballots. The inherent vulnerabilities associated with widespread usage of vote-by-mail requires protections such as limitations on who may handle these types of ballots. Challengers to this provision only presented anecdotal evidence that the prohibition adversely affected minority voters. In other words, they did not show that banning ballot harvesting harmed a measurable number of voters.  

Under our constitutional system, states are empowered to regulate the time, place and manner of their elections. The Court sets forth five factors in determining whether a given voting protection is legal. Lower courts will now look to the size of the burden imposed by the protection. Simple inconvenience is not enough to sustain a challenge. They will also look to how much the rule departs from voting standards when the Voting Rights Act was passed. Third, courts must analyze the size of the disparities in a rule’s impact on minority versus minority groups. Fourth, a court should look at a state’s entire voting system and the opportunities afforded to voters before concluding a single protection is illegal.

Finally, a court must consider the state’s interest in preventing voter fraud. Justice Alito, writing for the majority, stated, “[f]raud can affect the outcome of a close election, and fraudulent votes dilute the right of citizens to cast ballots that carry appropriate weight.” He continued, “[f]raud can also undermine public confidence in the fairness of elections and [their] perceived legitimacy.”  This means that a state has a legitimate interest in “[e]nsuring that every vote is cast freely, without intimidation or undue influence…”   

Overturning the Ninth Circuit’s decision means that non-substantive challenges to a state’s voting or voting registration laws will not survive. Simple allegations that a particular practice is inconvenient for a few dozen or a couple of hundred voters (out of millions) does not mean that the practice is discriminatory. Nor does it mean that the practice should be banned at the expense of voter security. 

In 2020, many states began to implement widespread use of vote-by-mail. The more individuals elect to vote by mail, the greater the need for increased protections. Protections such as limiting those who can handle ballots and requiring an individual to verify his or her identify before receiving a ballot are reasonable and necessary to guarantee that the electorate has faith in the outcome of the election. And these laws ensure Americans continue to have confidence in the fundamental fairness of the election process. 

The Supreme Court’s decision means efforts to protect the sanctity of the vote will not fail when leftists challenge protections on our right to vote. But the fight continues. Even now, Democrats in Congress are pushing multiple pieces of legislation that would federalize the election process and empower Democrats with the authority to declare voting protections invalid.

For the time being, states may take reasonable measures to protect the integrity of their electoral systems, and the courts will not interfere. Whether this continues remains to be seen.

Michael O’Neill is the assistant general counsel at Landmark Legal Foundation.