Will the Supreme Court Resurrect Jim Crow Election Laws?

The Supreme Court will hear two cases on Tuesday, March 2, involving whether Arizona’s ballot-harvesting law and out-of-precinct policy discriminate against Hispanics, Native Americans, and African Americans.

The Court will use Section 2 of the Voting Rights Act, passed in 1965 by Lyndon Johnson, to ascertain whether ballot harvesting and “out of precinct” policies discriminated against Natives and Latinos living in Arizona.

The “ballot-harvesting” law illegalizes carrying a friend’s ballot to a dropbox unopened, the custom of Latinos, who don’t always have reliable mail delivery.  (Only family and designated individuals may carry a third-party‘s ballot under the 2016 law.)

The out-of-precinct policy applies to Natives, where districts are moved so often that the Navajo and other tribes don’t know where to vote.

Most punishing in the nation

“The DNC called Arizona’s out-of-precinct policy one of the ‘most punishing in the nation’ and accused it of effectively disenfranchising more than 38,000 voters since 2008,” The Washington Examiner reported.

An Arizona district court ruled in favor of the Republican arguments in 2018 But in 2020 the progressive 9th U.S. Circuit Court of Appeals struck down the laws while agreeing to keep both laws in place until after the election.

SCOTUS Blog’s Amy Howe writes:

“The Court of appeals applied a two-part test, dubbed the results test, to determine that both the out-of-precinct policy and the ballot-harvesting ban violate Section 2.

“In the first step, the 9th Circuit explained, the focus is whether the policy or law being challenged disproportionately affects the ability of a racial minority group to ‘participate in the political processes and to elect candidates of their choice.’”

“If it does, the question in the second step is whether there is a link between the challenged policy or law and social and historical conditions, creating the inequality in opportunities.

“The Court of appeals concluded that both the out-of-precinct policy and the ballot-harvesting ban fail this test.

“For the out-of-precinct policy, the court of appeals noted that ‘Arizona election officials change voters’ assigned polling places with unusual frequency’ and that polling places are sometimes ‘located so counterintuitively that voters easily make mistakes.”

“During the three general elections leading up to the 2020 election, the court observed, Native Americans, Hispanics, and African Americans in Arizona were twice as likely as whites to vote outside of the precinct to which they had been assigned and therefore to have their votes not counted as a result of the policy – satisfying the first step of the results test,” Howe writes.

“The Court added that 3,709 out-of-precinct ballots were cast in the 2016 general election – which is a substantial number.

Literacy Test for Minorities

“Turning to the second step of its inquiry, the 9^th Circuit determined that the disparate impact on minority voters from the out-of-precinct policy is indeed linked to social and historical conditions in Arizona in a way that causes inequality in the opportunity for minority voters to elect their preferred representatives or otherwise participate in the political process.

Arizona, the Court found, has a long history of discriminating against its minority citizens based on race, much of which ‘is directly relevant’ to their ability to participate in politics – for example, the state-imposed a literacy test for minority voters for decades.”

“The effects of discrimination, the 9th Circuit continued, have also created disparities in areas like income, employment, and education that make it harder for minorities to participate in the political process.

“The Court of appeals arrived at a similar answer when it applied the results test to the ban on ballot harvesting. The Court explained that Arizona voters rely heavily on early voting by mail – with 80% voting by mail in the 2016 presidential election.

“But Arizona voters, and especially minority voters, often have trouble returning their ballots, the 9th Circuit continued: Only 18% of Native American voters in the state, for example, have access to regular mail services.

“To compensate for these obstacles, the court of appeals explained, ‘a large and disproportionate number of minority voters relied on’ others to collect and deliver their early ballots, without any evidence of fraud.

“The court of appeals also ruled that Arizona legislators had intended to discriminate against minority voters, in violation of Section 2 and the 15th Amendment, when they passed the ban on ballot harvesting,” Howe reports.

In Arizona, the GOP Attorney General indicted two democrats for ballot collection. The blatantly political indictment ignores the 9th Circuit Court ruling.

Jim Crow election laws

Until the Court’s 2013 ruling in Shelby County v. Holder, the federal government pre-clearance requirement, imposed on Arizona by Section 4b of the Voting Rights Act, would have blocked the state from writing the ballot-harvesting law and the “out of precinct” provision, Howe argues.

However, the Supreme Court, with Chief Justice Roberts writing for the majority in Shelby County, said in 2013the pre-clearance provision was no longer necessary.

Given that non-white voters are responsible for Democratic victories in battleground states, liberals are rightly concerned that a 6-3 conservative court will open the door to a new generation of Jim Crow election laws.