High stakes ahead in Arizona case before Supreme Court

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

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 which 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 which 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 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’s 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 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.

“Prohibiting unlimited third-party ballot harvesting is a commonsense means of protecting the secret ballot and preventing undue influence, voter fraud, ballot tampering, and voter intimidation,’’ he wrote.

The ban on counting out-of-precinct votes, Brnovich said, both prevents overcrowding at any precinct and fosters convenience because the ballots available there list “only those votes a citizen may cast, making ballots less confusing.’’

But Brnovich has something else working against him, at least as far as defending the law banning ballot harvesting.

In its majority ruling, the 9th Circuit concluded that it was the intend of the GOP majority in the legislature to actually suppress minority votes. And Justice William Fletcher, writing for the majority, sale the record shows it had that effect.

The judge said the record from the trial shows that before the law was enacted in 2016, minorities were more likely than non-minorities to get someone else to turn in their ballots. And he said Republicans had not significantly used ballot collection.

“The base of the Republican Party in Arizona is white,’’ Fletcher wrote. “Individuals who engaged in ballot collections in past elections observed that voters in predominantly white areas were not as interested in ballot-collect services.’’

Brnovich, told the justice they should slap down that verbiage. He said if it is allowed to stand it could pave the way for future challenges.

“This erroneous finding could be weaponized in future litigation to undermine Arizona’s autonomy to govern itself,’’ he wrote. He called the conclusion of the 9th Circuit majority “a loaded charge with potentially long-term legal, social and practical consequences.’’

But Fletcher said the 2016 law cannot be examined solely in a vacuum.

“For over a century, Arizona has repeatedly targeted its American Indian, Hispanic and African-American citizens, limiting or eliminating their ability to vote and to participate in the political process,’’ Fletcher wrote.

A ruling is likely in June.