Background:

In 2016, the Democratic National Committee or DNC sued Arizona over the Arizona election laws dealing with both the out-of-precinct policy and the ballot-collection law that violates section 2 of the 1965 Voting Rights Act (VRA). The SNC is suing Arizona because those two laws "adversely and disparately impact the electoral opportunities of Hispanic, African American, and Native American Arizonans'' (Petition to a writ of certiorari). Arizona Out of Precinct policy prohibits voters from casting their provisional ballots outside of their designated precinct. The Ballot-collection law limits certain people (family members, caregivers, mail givers, and election officials) from submitting another person's completed ballot. The Brnovich v. The DNC is not the only case that the Supreme Court dealt with the VRA. In Shelby County v. Holder (2013), the supreme court dismantled VRA Section 5 "preclearance" requirement. The VRA obligated states (mostly in the south) to seek preclearance from the federal government before making changes to election laws. It also declared that Section 4b of the VRA was unconstitutional. In light of Shelby v. Holder, states that are mostly Republicans, including Arizona, made changes to their election laws. One of them was H.B. 2023, which penalized the collection and delivery of ballots of another voter, or "ballot-harvesting." At first, the U.S. District Court of Arizona rejected the DNC's petition. Still, the U.S. Ninth Circuit court reversed the lower court's decision, stating that Arizona's election laws were unconstitutional since they violated Section 2 of the VRA. Arizona's Attorney General, Mark Brnovich, and the Republican National Committee (RNC) filed a petition to the Supreme Court to reverse the 9th circuit ruling, and the supreme court granted a writ of certiorari to the State of Arizona.

Analysis:

This is going to be an intriguing case to look at. I think that it will be very close, but I believe that the supreme court could go either way in a 5-4 decision. We know for certain that Justices Thomas and Alito will rule in favor of Arizona because, in the Shelby County v. Holder case, they ruled that parts of the VRA were unconstitutional since section 4b and the coverage formula violated the principles of federalism or state's rights. Justices Gorsuch and Kavanaugh also might lean in favor of Arizona if Arizona has a narrowly tailored interest in protecting election integrity, which is why the Out of Precinct laws exist for a reason. Justices Roberts and Amy Coney Barrett are the swing votes. I found it interesting that Justice Amy Coney Barrett interrupted the lawyer representing Arizona as he stated that the purpose of the Arizona law was "Because it puts us at a competitive disadvantage relative to Democrats and Politics is a zero-sum game." Maybe Barett and Roberts could support section 2 because the lawyer made it seem that the purpose of Arizona's law is political. Still, I will not be surprised if Barrett/Roberts votes for Arizona. For certain, the Supreme Court's left faction (Kagan, Sotomayor, and Breyer) will side with the DNC since they sided with Holder in Shelby County v. Holder. I will not be shocked if the supreme court side whichever parties of this case, as this is a swing case that can go either way.

The opinion of this case:

I do believe that the Supreme Court should rule in favor of the DNC in this case. The first reason why the Supreme Court should rule for DNC is that the out-of-precinct policy is linked to racial discrimination. Arizona has disenfranchised over "38,000 Arizonans since 2008… Minority voters are vastly over-represented among that number—they are twice as likely as white voters to have their votes rejected" (Respondent Brief). Another reason why the Supreme court should rule for DNC because the U.S. senate factors how voting laws interact with current and historical discrimination of a particular group, argued in Thornburg v. Gingles (Brennan Center Amici Curiae). We see how the petitioners and the Republican U.S. senators arguing that these laws are meant to protect against election fraud; there were just four credible instances of voter fraud in the 2016 election (Washington Post 12/16). I do not believe that Arizona does not have a reasonable and compelling interest in protecting electoral integrity, just a partisan one.

Works cited:

1. A Supreme Court Test for What’s Left of the Voting Rights Act

2. Petition for a Writ of Certiorari

3. DNC RESPONDENTS’ BRIEF

4. Reply of petitioner Mark Brnovich, et al. filed. (Distributed)

5. Brief amici curiae of United States Senators Ted Cruz, Marsha Blackburn, John Cornyn, Tom Cotton, James M. Inhofe, James Lankford, And Mike Lee filed. VIDED.

6. Brief amicus curiae of Brennan Center for Justice at NYU School of Law filed. VIDED. (Distributed)

7. A GOP Lawyer Says the Quiet Part Out Loud in SCOTUS Voting Rights Case – Mother Jones

8. Arizona Election Rules at SCOTUS

9. There have been just four documented cases of voter fraud in the 2016 election

Written by Brandon Blanco, Political Chair. The views expressed in the journal are their own and not the view of The La Raza Pre Law.