The U.S. Supreme Court upheld two Arizona restrictions on voting, which will have an impact on reservation communities in Gila, Apache and Navajo counties.
The ruling overturned the 9th Circuit Court of Appeals and immediately fed into a furious partisan struggle already casting a shadow over the next election, spawning dueling press releases and fundraising appeals.
On a 6-3 vote, the high court found that the state’s ban on allowing people to turn in another person’s sealed, marked ballots doesn’t violate the voting rights act. The court also upheld an Arizona law that discards the ballot of anyone who votes in a precinct different from the one in which they’re registered.
Opponents of the law argued that since the ban on ballot harvesting and out-of-precinct voting are discriminatory since the restrictions affect blacks, Hispanics and Native Americans more than it affects Whites.
However, the court majority said the difference in impact is so small that it wouldn’t affect election outcomes and that there’s no evidence that the legislature intended a discriminatory impact in passing the restrictions.
Arizona Attorney Mark Brnovich immediately issued a press release hailing the ruling and linking it to his just-launched campaign for U.S. Senate.
“As Arizona’s Attorney General, I will continue to stand up for the integrity of our elections. As your next U.S. Senator, I will take the fight directly to Washington and tell corrupt bureaucrats and the Democratic Party to stop undermining our ability to conduct secure elections.
"The ability to conduct elections with integrity and transparency is absolutely vital to the continuation of our republic, as the events of the last election demonstrated. The right of states to sovereignly govern the integrity of their own elections has been tested constantly by a federal government eager to overstep and a Democratic party desperate to achieve their own political ends. This decision is a clear repudiation of those tactics.”
The Navajo Nation decried the ruling, saying it will contribute to the low voting participation on the reservation. The Navajo Nation had filed a brief in the case, which said, “Arizona’s ballot collection law criminalizes ways in which Navajos historically participated in early voting by mail. Due to the remoteness of the Nation and lack of transportation, it is not uncommon for Navajos to ask their neighbors or clan members to deliver their mail. Navajo voters should be able to use their traditional networks of neighbors and clan members to perform this function. Arizona’s out-of-precinct policy leads to a higher rejection of Navajo ballots than non-Navajo voters, and it is more difficult for Navajos to discover their correct polling location than those with standard street addresses. Throughout the Nation, homes are unmarked and lack street addresses. The lack of street addresses often results in Navajos being placed in the wrong precinct by their county. To make matters more confusing for some voters, county precincts do not match tribal precincts.”
The same issues apply to other reservation communities, including the San Carlos Apache and the White Mountain Apache in Apache, Navajo and Gila counties.
Arizona Democratic Party Chair Raquel Teran said, “This disappointing Supreme Court decision is an attack on Arizonans trying to exercise their right to vote. It’s impossible to ignore that this ruling and these voter restriction laws are the culmination of Republicans’ longtime efforts to sow distrust and doubt in our election system, with politicians like Mark Brnovich leading the charge. In open court, the Arizona Republican Party’s own lawyer admitted that the purpose of the laws was to gain political advantage.”
The Brennan Center, a non-partisan think tank based at NYU Law School, issued a statement saying, “Today the Supreme Court made it much harder to challenge discriminatory voting laws in court. The justices stopped short of eviscerating the Voting Rights Act, but nevertheless did significant damage to this vital civil rights law and to the freedom to vote.”
The 9th District Court found that the state had presented no evidence of actual voter fraud involving ballot harvesting or out-of-precinct voting. However, opponents did present evidence that the two restrictions are likely to have a bigger impact on White voters.
Nonetheless, the new majority on the U.S. Supreme Court dismissed those arguments.
Associate Justice Samuel A. Alito, Jr., wrote for the majority that collection of ballots could reasonably lead to intimidation and pressure – so the state need not prove fraud has taken place to make the restriction reasonable. “A State may take action to prevent election fraud without waiting for it to occur within its own borders.”
He also noted that in the 2016 election, about half a percent of White votes were discarded for out-of-precinct voting, but about 1% of the ballots of minority voters. Such a small disparity, would not affect election outcomes.
“A procedure that appears to work for 98% or more of voters to whom it applies – minority and non-minority alike – is unlikely to render a system unequally open,” wrote Alito.
The three remaining liberals on the court dissented.
"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. What is tragic is that the Court has damaged a statute designed to bring about 'the end of discrimination in voting,'" Associate Justice Elena Kagan wrote for the group.
In most precincts in Arizona, the ban on ballot harvesting and out-of-precinct voting has only modest impacts. The restrictions were in place for the 2020 elections and did not prevent Democrat Mark Kelly and Democrat Joe Biden from winning the statewide vote.
However, reservation communities have unique challenges when it comes to getting to the polls or taking advantage of mail-in balloting.
Navajo Nation President Jonathan Nez told Native News Online, “The opinion ignores the unique challenges that many tribal nations face during every election and does nothing to protect our voting rights and increase voting access. Notably, the Voting Rights Act sought to end practices that deprived equal access to the ballot for minority voters. Congress must provide guidance on how the Courts should review Section 2 Vote Denial claims, enact the Native American Voting Rights Act, and the For the People Act to protect all voters."
Nez has also decried additional voting restrictions approved by the legislature this year, including dropping from the mail-in, early-voting list anyone who doesn’t vote in two consecutive voting cycles.
“This is an assault to the election process for people of color throughout this country. Here in Arizona, it’s pushing back on the voters of tribal communities and we came out in big numbers to vote our candidate of choice, which is President Biden.”
Biden won Arizona by just 11,000 votes, partly by piling up big majorities on the state’s reservations.