Two Arizona election laws will be up for review before the U.S. Supreme Court in a case that will be watched by other states.

 Kelly Presnell / Arizona Daily Star 2020

PHOENIX — On paper, the dispute playing out Tuesday at the U.S. Supreme Court is a simple question of the legality of two Arizona laws: where you can vote and who can handle your ballot.

But the case is being followed nationally because it sets the stage for the justices to decide the scope of the Voting Rights Act: Can state legislators enact and enforce what appear to be “facially neutral” laws even when it turns out they impact minorities to a higher degree than others?

Attorney General Mark Brnvoich contends the answer is yes. In essence, he is arguing that the courts should stay out of the issue of how lawmakers handle their job of regulating elections to prevent chaos.

In 1954, four Puerto Rican nationalists opened fire from the spectators’ gallery of the U.S. House of Representatives, wounding five members of Congress, and more events that happened on this day in history.

And the Arizona Republican Party, which also is defending the statutes, takes an even more strident stance.

Attorney Michael Carvin wants the justices to rule that there is no requirement for states to “maximize participation by racial minorities.” The only thing that’s necessary, he said, is there be an equal opportunity to vote.

And the fact that fewer minorities may vote because of the change is legally irrelevant.

What makes Tuesday’s hearing — and what the justices ultimately rule — so critical is that a decision to side with Arizona could send a signal to other states that they, too, are free to enact new voting laws that, while neutral on their face, end up throwing new roadblocks in the path of minority voters.

Central to the legal dispute is Section 2 of the Voting Rights Act. It bars enactment of any voting practice or procedure that results in “denial or abridgement” of the right to vote on account of race or color.

Against that are two Arizona issues.

One is a 2016 law that makes what’s called “ballot harvesting” a crime.

That involves political groups going to the homes of people who have requested early ballots and asking them if they have returned them yet. Then they offer to take them in, especially if the election is just a few days away and there is no way the ballot could be mailed and arrive on time to be counted.

The Republican-controlled Legislature concluded that creates too much opportunity for mischief. So the law now allows only family members, those in the same household and caregivers to handle the ballots.

The 9th Circuit Court of Appeals concluded that minority voters, by having less access to transportation and mail services, were more likely to rely on ballot collectors than Anglo voters. And the judges said the record is that, prior to the 2016 law, minorities were more likely than non-minorities to get someone else to turn in their ballots.

Thus, the judges said, the law has a “discriminatory impact” on minorities who were more likely to be disenfranchised.

The other is a 1970 Arizona policy that tosses all the votes cast by someone who goes to the wrong precinct. That includes statewide candidates whose name is on all ballots and for whom the voter could have cast a ballot for had he or she gone to the right location.

Here, too, the appellate judges the evidence shows minority voters cast out-of-precinct votes twice as often as Anglo voters, possibly due to changes in polling places and locating them in “inconvenient and misleading places.”

Brnovich is arguing to the Supreme Court that it was wrong for the 9th Circuit to focus on the issue of “disparate impact.”

He contends the true intent of Section 2 is to determine if minorities have “less opportunity than other members of the electorate” to vote. And he said the justices should “look at the totality of the voting system to determine whether minority voters have an equal opportunity to vote.”

Brnovich said he is not alone in that conclusion. He said four other federal appellate courts agree with his position.

Just not the 9th Circuit whose rulings govern Arizona.

It’s that angle that has drawn national attention to the case and the precedents it will set.

“The 9th Circuit’s expansive disparate-impact theory threatens not only similar laws in dozens of states, but a host of other sensible election laws that would be vulnerable to the same analysis,” Brnovich told the justices. “Only this court can clarify this area of law.”

Brnovich also said there are specific justifications for both challenged provisions.

GOP legislators said they enacted the 2016 law to prevent fraud.

During debate, though, they could not cite a single confirmed incident where a ballot was altered or did not get delivered. Brnovich said that’s irrelevant.

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