WASHINGTON (Reuters) – U.S. Supreme Court justices on Tuesday appeared inclined to uphold two Republican-backed voting restrictions in Arizona in a case that could further weaken the Voting Rights Act, a landmark 1965 federal law that bars racial discrimination in voting.
During nearly two hours of oral arguments by teleconference the court’s conservative justices, who hold a 6-3 majority, asked questions that suggested they could make it easier for states to defend voting restrictions. But it remained unclear how far they would raise the bar to prove violations under the Voting Rights Act.
The important voting rights case was heard by the justices at a time when Republicans in numerous states are pursuing new restrictions after former President Donald Trump made false claims of widespread fraud in the Nov. 3 election that he lost to Democratic President Joe Biden. Republican proponents of Arizona’s restrictions cite the need to combat voting fraud.
The justices heard arguments in appeals by Arizona’s Republican Attorney General Mark Brnovich and the state Republican Party of a lower court ruling that found that the voting restrictions at issue disproportionately burdened Black, Hispanic and Native American voters.
One of the measures made it a crime to provide another person’s completed early ballot to election officials, with the exception of family members or caregivers. The other disqualified ballots cast in-person at a precinct other than the one to which a voter has been assigned.
Community activists sometimes engage in ballot collection to facilitate voting and increase voter turnout. The practice, which critics call “ballot harvesting,” is legal in most states, with varying limitations. Voting rights advocates said voters sometimes inadvertently cast ballots at the wrong precinct, with the assigned polling place sometimes not the one closest to a voter’s home.
Some of the conservative justices noted that the voting curbs at issue are either common in other states or address voting practices amenable to fraud. But much of the argument focused on the proper standard by which courts can still remedy discrimination in voting.
Conservative Chief Justice John Roberts pushed back on Michael Carvin, one of the lawyers defending Arizona’s measures, who said that it is not a state’s role to maximize the voting participation of minorities when considering a voting regulation.
“Is it maximizing participation or equalizing it? In other words, that only comes up when you have disparate results. And why should there be disparate results if you can avoid them?” Roberts asked.
Liberal Justice Sonia Sotomayor noted that a lower court that previously ruled in the case “found no meaningful threat that ballot collection leads to fraud.”
A broad ruling by the high court endorsing the restrictions could impair the Voting Rights Act by making it harder to prove violations. A ruling is due by the end of June.
Liberal justices probed Carvin on the dividing line between what kinds of restrictions are acceptable and which ones are not. Carvin conceded to liberal Justice Elena Kagan that a rule that would require Black voters to travel to country clubs to vote would likely be unlawful. But Carvin indicated that restricting voting hours to the traditional business day would be lawful even if there was evidence that minority voters would face greater difficulties in voting.
Carvin also admitted that the out-of-precinct ballot disqualification policy helps Republicans.
At issue is the Voting Rights Act’s Section 2, which bans any rule that results in voting discrimination “on account of race or color.” This provision has been the main tool used to show that voting curbs discriminate against minorities since the Supreme Court in 2013 gutted another section of the statute that determined which states with a history of racial discrimination needed federal approval to change voting laws.
‘QUITE OBVIOUS BURDENS’
Kagan noted that some voting restrictions are more of an imposition on voters than others, signaling her interest in the precedent the court could set in the Arizona case that would affect challenges to future laws that may be more restrictive.
“There are some things that are really quite obvious burdens which you just know by looking at them is going to lead to real difficulty for Black voters or for Native American voters or for Latino voters and other restrictions where you can say, well that’s kind of an inconvenience but they could overcome that inconvenience if they really wanted to,” Kagan said.
During the argument, Roberts said it has been widely noted that voter fraud is most likely to occur when the ballot collection practice is used.
Conservative Justice Samuel Alito told a lawyer opposing the Arizona restrictions: “What concerns me is that your position is going to make every voting rule vulnerable to attack under Section 2.”
The Democratic National Committee and the Arizona Democratic Party sued to try to overturn Arizona’s restrictions. The San Francisco-based 9th U.S. Circuit Court of Appeals last year found that the restrictions violated the Voting Rights Act, though they remained in effect for the Nov. 3 election. Biden defeated Trump in Arizona.
The 9th Circuit also found that “false, race-based claims of ballot collection fraud” were used to convince Arizona legislators to enact that restriction with discriminatory intent, violating the U.S. Constitution’s prohibition on denying voting rights based on race.
Calling all HuffPost superfans!
Sign up for membership to become a founding member and help shape HuffPost’s next chapter