The Supreme Court’s six Republican-appointed justices were right on target on July 1 in upholding Arizona voting procedures challenged by the Democratic National Committee and other liberal interests.
Article 1, Section 4 of the U.S. Constitution explicitly says that except when Congress specifically delineates otherwise, “the times, places and manner of holding elections for Senators and Representatives shall be prescribed in each state by the Legislature thereof.” The other exceptions to state authority on such matters come in the 15th Amendment and in the Voting Rights Act of 1965 and its successor renewals, all of which were enacted to protect voting rights from laws and practices with racially discriminatory intent (or, in some cases, with obviously racially disparate effects).
In Brnovich v. Democratic National Committee, Democrats and their allies challenged two Arizona voting rules that are similar to rules in numerous other states. One rule bans the practice commonly known as “ballot-harvesting,” meaning the “collection” of early ballots by anyone other than relatives or official caregivers of the voters in question (elections officials and postal workers, of course, excepted). The other rule provides that a vote cast in the wrong precinct is not counted.
Both rules are intended to combat voter fraud. Neither rule places a significant burden on voters, especially in that state because, as Justice Samuel Alito noted in the second sentence of his decision, “Arizona law generally makes it very easy to vote.”
As the Pacific Legal Foundation (joined by others) wrote in a friend-of-the-court brief in the case, “Reasonable minds can and do differ as to whether these policies are advisable or necessary.” The question for the court was not to decide each policy’s wisdom but its constitutionality, which would be in doubt only if it places a significant, racially discriminatory burden on voting.
In sum, the court adopted the PLF’s conclusion that “neither policy imposes a racially discriminatory burden on voting. And neither policy deprives any Arizona voter of the equal opportunity to cast a legal ballot.”
We cite the PLF argument because it so concisely summarized the conclusion the 6-3 court, amid all the legal citations, statistics, and explanations, ultimately would reach. Alito and his five colleagues found that the district court, which had ruled in Arizona’s favor, was amply justified in determining that the rules were enacted with no “discriminatory purpose” but instead resulted from “sincere” legislative debate. And the percentage of voters who mistakenly cast out-of-precinct votes was negligible, as were any discrepancies (less than one-half of 1%) in the percentages of such votes cast by different ethnic groups.
Indeed, the “times, places, and manner” rule is so explicit, and the historical commonness and neutral applicability of Arizona’s rules so obvious, that it’s a near-scandal intellectually that the Supreme Court’s decision in the state’s favor wasn’t unanimous. Instead, only by what Alito called “an extended effort at misdirection,” is the alternative view of the three liberal justices even remotely plausible.
So, the court majority correctly expounded the Constitution and laws. Allow a word here, too, for the salutary policy result of the decision, which, while not a valid consideration for the Supreme Court, is indeed worth noting for its practical effects on election practices. While reasonable people can disagree about the wisdom of the out-of-precinct policy, there was until quite recently widespread agreement across the political spectrum about the evils of vote harvesting.
Mail-in voting itself long has been recognized, in the words of a 2012 New York Times straight-news report, as producing ballots “less likely to be counted, more likely to be compromised and more likely to be contested than those cast in a voting booth.” If the “harvesting” of mail-in ballots is allowed, those problems become greatly exacerbated. The most commonly cited example of perfidy, sometimes real, sometimes hypothetical, involves campaign workers “volunteering” to help nursing home residents cast or deliver mail-in ballots.
Even if the volunteers don’t engage in practices as blatant as signature forgery or the like, the opportunity for mischief is significant. How easy is it to ask confused elderly people about their voter preferences and then to deliver the ones for the volunteer’s candidate while “losing” the others? That is, in fact, one of the fraudulent practices in which a North Carolina Republican operative engaged in, a ballot-harvesting scheme, in 2018. Vote-harvesting of any sort is illegal in North Carolina, anyway, as it well should be, and the operative was caught and prosecuted.
Arizona, just as North Carolina does, has both the legal right and the practical reason to outlaw this dodgy practice. The nation’s voters should be happy that against such harvesting schemes, the Supreme Court showed, and sowed, right reason.
