By Howard Fischer
Twitter: @azcapmedia

PHOENIX — Arizona is going to get to keep its laws against "ballot harvesting'' and saying that only votes cast within the proper precinct get counted.

In a 6-3 ruling, the U.S. Supreme Court concluded both laws had some effect on the ability of minorities to vote. And that is what is generally prohibited in under the Voting Rights Act.

But Justice Samuel Alito, writing for the majority, said the statistics provided by challengers, by themselves, are not enough to overturn what he said is the state's interest in election integrity.

"The mere fact that there is some disparity in impact does not necessarily mean that a system is not equally open or that it does not give everyone an equal opportunity to vote," he wrote. "And small disparities should not be artificially magnified."

Alito specifically said challengers were unable to to demonstrate there is a burden on minorities caused by the 2016 law that makes it a felony to take someone else's voted ballot to a polling place.

He acknowledged that there was no evidence such fraud is taking place.

"But prevention of fraud is not the only legitimate interest served by restrictions on ballot collection," the justice wrote.

"Third-party ballot collection can lead to pressure and intimidation," Alito continued. "Further a state may take action to prevent election fraud without waiting for it to occur within its own borders."

There was some disparity shown by the law which says that only votes cast within the proper precinct can be counted.

Challengers said votes should be counted if they would have been legal if cast in the right place. That would allow out-of-precinct votes to be tallied for things like presidential and statewide races.

But Alito said the evidence presented from the 2016 election showed that a little more than 1% of Hispanic voters, 1% of African-American voters, and 1% of Native American voters who voted on Election Day cast an out-of-precinct ballot. For non-minority voters, he said the rate was around 0.5%.

"A procedure that appears to work for 98% or more of voters to whom it applies — minority and non-minority alike — is unlikely to render a system unequally open," Alito said, referring to the test under the Voting Rights Act.

Thursday's ruling does more than just uphold the two state laws. It also appears to give wide leeway to states to enact laws with the purpose of protecting fraud even when there are claims the purpose behind them is to suppress minority voting.

But Alito was careful to say Thursday's ruling does not establish a test that the court will use in the future to determine whether other laws, in Arizona or elsewhere, violate the Voting Rights Act.

"As this is our first foray into the area, we think it sufficient for present purposes to identify certain guideposts that lead us to our decision in these cases," he wrote.

But Justice Elena Kagan, in a dissent for herself and two of her colleagues, said the majority ruling undermines the Voting Rights Act and the rights it provides.

"What is tragic here is the court has (yet again) rewritten  in order to weaken — a statute that stands as a monument to America's greatness and protects against its basest impulses," she wrote. "What is tragic is the court has damaged a statute designed to bring about 'the end of discrimination in voting.'"

She also said the ruling comes "at a perilous moment for the nation's commitment to equal citizenship."

Kagan noted that many states are moving to make it harder to register to vote and easier to purge voters from the rolls. And she specifically cited a new Georgia law that makes it illegal for political organizations to give out food and water to those waiting in line to vote.

"Chances are that some have the kind of impact the (Voting Rights) Act was designed to prevent — that they make the political process less open to minority voters than to others,'' she wrote.

But Alito said he and his colleagues find nothing in the Arizona statutes that interferes with the ability of minorities to have equal opportunity to vote, which is what he said the federal law requires.

It starts with the 2016 law that makes it a crime to handle someone else's ballot.

The practice had been used for years by some groups who would go door-to-door to see if people who had received early ballots in the mail had remembered to mail them back. With a hard-and-fast deadline of 7 p.m. on Election Day for receipt, these groups would offer to deliver them so as not to miss the deadline.

The 2016 law subjects violators to a year in state prison. There are exceptions for family members, those in the same household and caregivers.

Challengers, including the Democratic Committee, filed suit alleging a "disparate impact" on minority voters and that the ballot-collection law was "enacted with discriminatory intent.''

U.S. District Court Judge Douglas Rayes said there there was evidence that "some individuals legislators and proponents were motivated in part by partisan interests." That was based on testimony that Democrats and their allies had been more successful in these ballot-gathering efforts than Republicans.

But Rayes distinguished between partisan and racial motives — with the latter protected by the Voting Rights Act — though conceding that "racially polarized voting can sometimes blur the lines."

That was overturned by a majority of the the 9th Circuit Court of Appeals. But Alito said the appellate majority "misunderstood and misapplied Section 2 and that it exceeded its authority in rejecting the district court's factual finding on the issue of the intent of Arizona lawmakers."

He said the federal law is violated when the political processes "are not equally open" to participation by minorities "in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice."

Against that, Alito said the record shows Arizona generally "makes it quite easy for residents to vote."

For example, all Arizonans can vote by mail up to 27 days before an election with an early ballot, with no special excuse needed. There also is a law that allows any voter to ask to be sent an early ballot automatically in future elections.

State law also allows anyone to cast a ballot in person at an early voting location in each county.

On the issue precinct voting, challengers said there is no reason not to count the votes that would be legal if cast in the right place, like for president or statewide office. But Alito said that "would complicate the process of tabulation and could lead to disputes and delay."

Anyway, he said, Arizona makes accurate precinct information available to all voters, including a sample ballot sent to each household that identifies the polling location. And he said there is a website to provide voter-specific polling place information.
Alito said that voting necessarily requires some effort and compliance with some rules.

"Mere inconvenience cannot be enough to demonstrate a violation of Section 2," he wrote. And Alito said requiring people to mail in or drop off their own early ballots at a polling place is simply one of the "usual burdens of voting" that is not illegal.