This petition to the U.S. Supreme Court has roots in a 2016 case (Feldman v. Arizona Sec’y of State) in which several arms of the Democratic Party (DNC) claimed that the Voting Rights Act, the Equal Protection Clause of the 14th Amendment, and the 1st Amendment were all violated, not solely by the administration of an election, but because of discriminatory intent at the legislative level. Specifically, they claimed that two restrictions and their resulting consequences discriminated against certain minorities:
- Arizona’s policy that people voting in-person must do so in their designated precinct, and votes cast outside those precincts would not be counted, and
- Arizona House Bill 2023’s (H.B.2023) limit on third-party ballot collection that, with some clear exceptions, would subject the third-party to criminal charges.
- Prior to the enactment of H.B 2023, Democrats would collect ballots from Hispanic, Native, and African Americans in its get-out-the-vote efforts.
In September 2016, the District Court denied Feldman’s requested injunctive relief because it determined that the case could not succeed on the merits. Feldman had not shown a meaningful disparity between minority and non-minority voters, and the slight burden placed on absentee voting was outweighed by Arizona’s interest in preventing voter fraud. The 9th Circuit Court of Appeals upheld the lower court’s ruling, but the DNC appealed for an en banc review that reversed the lower court and allowed the injunction to hold. The next, the U.S Supreme Court stayed the injunction, returning the case to the District Court for a ten-day trial with live testimony from experts and 33 lay witnesses. In an 83-page opinion with extensive factual findings, the court rejected the DNC’s claims, writing that they had not met the burden of proof.
A 9th Circuit panel affirmed the decision and granted en banc review where the ruling was reversed. Judge Fletcher, writing for the 6-5 majority, explained that the Voting Rights Act had been violated and that the ballot-collection law was enacted with discriminatory intent, although with mistaken, non-race-based beliefs. There were two dissenting opinions, joined by four judges.
Arizona Attorney General Mark Brnovich petitioned the U.S. Supreme Court, urging review of the circuit court’s rulings and presenting two questions:
- Does Arizona’s out-of-precinct policy violate Section 2 of the Voting Rights Act?
- Does Arizona’s ballot-collection law violate Section 2 of the Voting Rights Act or the Fifteenth Amendment?
To establish a violation of the Voting Rights Act, a plaintiff must look at the totality of circumstances around a state’s voter laws and prove that the political processes were not equally available to all to members of a protected class. However, there is no current test, at the national level, to determine whether the required elements are met. Unlike the 9th circuit, four circuits have held that the disparate impact of a law on a certain population is insufficient to prove unlawful discrimination without proving a lessened opportunity to vote.
Arizona is asking the U.S. Supreme Court to grant this petition to establish a consistent standard across the country.
The Supreme Court will hear oral arguments on March 2, 2021.
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