WASHINGTON — The Supreme Court confronted the growing partisan divide over voting rights Tuesday in an Arizona case in which Democrats are challenging two Republican-sponsored rules that appeared likely to win approval from the justices.
One calls for throwing out ballots cast on Election Day by voters who arrive at the wrong precinct but insist on casting a ballot anyway. The other forbids “ballot harvesting,” and makes it a state crime for people — other than family members, caregivers or postal workers — to collect and return mail ballots.
In their comments and questions, most of the justices said they were in search of a middle-ground position that would block new voting restrictions if they could have a significant impact on Black people, Latinos or Native Americans, but not automatically invalidate any rule just because it has a different impact based on race.
Both of Arizona’s rules were in effect during last year’s election when Joe Biden narrowly defeated President Donald Trump, and when the previously Republican-leaning state elected two Democrats to the Senate. But since then, Republican state lawmakers there and in other GOP-controlled states have proposed dozens of new rules that could make it harder for Black people and Latinos to vote.
The Arizona case — Brnovich vs. Democratic National Committee — has drawn attention because it marks the first time the high court will write an opinion on how to apply a key part of the Voting Rights Act that Congress adopted as a compromise in 1982.
Section 2 of the Voting Rights Act forbids election rules that “result” in discrimination against voters based on their race or ethnicity, but it is unclear what that means. Republicans and the state of Arizona say that cannot mean that any rule can be deemed illegal if it can be shown to disproportionately affect minorities.
Washington attorney Michael Carvin, representing Arizona Republicans, said the court should uphold state election rules so as long as voting is “equally open” to all groups. He cited as an example the requirement to register to vote in advance, which may exclude more racial minorities than white voters.
During Tuesday’s argument, Justice Elena Kagan pressed the Republican attorney to clarify when voting rules should be considered to be “equally open” to racial minorities.
What if the state has one polling place per county, which means that Black voters in urban counties have to wait 10 times as long as white voters, she asked.
Carvin agreed that should be illegal. “Equally open takes into account demographic reality,” he replied.