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What the Supreme Court’s decision on Arizona voting laws means for voting rights

On the final day of its term, the Supreme Court issued major decisions that put the court's 6-3 conservative majority in the spotlight, especially given the national debate on voting rights. John Yang reports with Marcia Coyle, chief Washington correspondent of The National Law Journal, and Tammy Patrick of the non-partisan Democracy Fund, who also is a former Arizona elections official.

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  • Judy Woodruff:

    On this, the final day of its term, the Supreme Court issued two major decisions on some of the most political topics, especially as the debate over voting rights continues in Congress and in the states.

    The decisions also put the court's new 6-3 conservative majority in the spotlight.

    John Yang reports.

  • John Yang:

    Judy, in one of the most closely watched cases of court's term, the justices split along ideological lines to narrow the scope of the landmark Voting Rights Act of 1965, just as states are putting new voting restrictions in place.

    The court upheld two Arizona laws that the Democratic Party says discriminate against minority voters.

    Marcia Coyle is chief Washington correspondent for "The National Law Journal." Tammy Patrick of the nonpartisan Democracy Fund was as an Arizona elections official for more than a decade.

    So, Tammy Patrick, what are these Arizona laws that were being challenged? And what's the argument that they are discriminatory?

  • Tammy Patrick:

    So, the first law had to do with provisional ballots being voted out of precinct, and that commonly occurs when a voter moves and then returns to their previous voting location, where they don't live any longer, and that requires a provisional ballot.

    Some states, they allow you to cast a provisional ballot, and they will count the portion of it that you're eligible for. Other states will throw out the ballot entirely and not count any of it.

    Now, part of the challenge with that is that, in Arizona, there were almost 1,500 of those across the year. And across the country, there are literally tens of thousands of voters who don't have their votes counted for president or statewide offices because they went to the wrong polling place.

    So, this disproportionately affects voters who move frequently and/or those who are at locations where they don't have good addressing, such as tribal reservations and rural voters. That same type of voter, that same cohort of voters, is also impacted by the second law that has to do with ballot collection, often referred to as ballot harvesting.

    This limits the options on how voters can successfully return their ballots. And we know that the Postal Service recommends you put your ballot back in the mail a week before Election Day. So if it's three or four days before the election, you need to get that ballot back in, and if you live in a remote or rural location, you may not have a drop box available, you can no longer mail it back in many states.

    And so those voters are impacted very negatively because they don't have the ability to turn it over to a trusted source in order to turn their ballots in for them and have it counted successfully.

  • John Yang:

    So, Marcia, what did the court say today about the challenge to these two laws?

  • Marcia Coyle:

    John, first of all, we should say what Section 2 actually is in the Voting Rights Act.

    And that's the section that prohibits any voting procedure that results in or has the effect of denying or abridging the right to vote on account of race. And you violate that section based on the totality of circumstances that show racial minorities have less opportunity than other voters to participate in the political process.

    So, what the court, the majority did, led by Justice Alito, was to take that language, the totality of circumstances in Section 2, and he created a list of factors, five of them, that courts should consider when they're faced with Section 2 violations.

    And just to give you one or two of those factors, for instance, consider the — how significant the disparity in voting is. There has to be a significant disparity in order to make out a Section 2 violation. Also, he said courts have to consider the states' interests here in enacting that voting procedure.

    And he said that a state's already is particularly strong, very strong and significant, if they're trying to prevent voter fraud. And also consider the size of the burden on the racial minority voter here. All voting schemes, he said, put a burden on almost all voters, but consider, how big a burden is this right here?

    Now, this was the problem that the dissenters, led by Justice Kagan, had with the majority's opinion. They said there was nothing in the text of Section 2 that lends itself to these factors, these five factors that the majority was creating.

    And all of these factors, according to Justice Kagan, worked against the challenger, created new burdens for those who want to challenge discriminatory voting practices.

  • John Yang:

    With those guidelines, Marcia, that the majority laid out, with the opinion written by Justice Alito, what does this say or what can we infer about future challenges to voting restrictions?

  • Marcia Coyle:

    Well, I think it's generally believed that they will make it such harder to bring Section 2 violations.

    And that's important, because, in 2013, the Supreme Court, in a 5-4 decision by the chief justice, struck down Section 4 of the Voting Rights Act. And that section was a formula for determining which voting practices by states that had past histories of vote discrimination had to have their procedures pre-cleared by a federal court or the Department of Justice.

    So, what was left was Section 2, basically. And now, with this majority opinion, there's a feeling that it's going — or a belief that it's just going to put more hurdle also in place of those who want the challenge what appear to be racially discriminating voting practices.

  • John Yang:

    Tammy Patrick, given the new restrictions that are — that state legislators around the country are putting in place or debating, what's the significance of today's ruling to you?

  • Tammy Patrick:

    The significance of what happened today is that it can give validation for some of the states that have restrictive laws on the books, those who are looking to implement restrictive laws, and also potential encouragement for other states to roll back more expansive policies.

    There's also a question around DOJ enforcement of Section 2. And I think, for myself and others, it really does further the argument and the stance that we need to have a vibrant Voting Rights Act in order to maintain some semblance of protection for voters across the country.

  • John Yang:

    Marcia, there was another 6-3 decision today, with the six conservative justices on one side, that the court struck down a California regulation that requires charities to disclose their funders, their donations, who gives them money. This was brought by two conservative advocacy groups.

    Next year, the court — next — this fall, the court has already said it's going to hear cases on gun rights and abortion. They have got a pending request to hear a case about affirmative action in college admissions. Could we be seeing more of this 6-3 division in coming cases?

  • Marcia Coyle:

    So, I think, John, that if the court has on the docket next term abortion, race and guns, that, yes, we — these are areas where they can be very divisive and in which they may have a very difficult time crafting the narrow kinds of decisions that we saw this term, that resulted in cross-ideological alignments of the justices.

    But, remember, these are certain types of cases that do divide them. And I think the voting rights case, more than the First Amendment case today, is that type of a case. Otherwise, we just have to wait and see.

  • John Yang:

    And, finally, Marcia, last day of the court's term, traditional day for — to watch for retirement announcements. Of course, everyone's been watching Justice Stephen Breyer.

    What are your thoughts?

  • Marcia Coyle:

    I think that Justice Breyer is well aware of all of the debate that's going on and the political considerations that are being talked about.

    And I just say it's totally up to Justice Breyer, and he will make the decision when he feels he's ready to.

  • John Yang:

    Wise words from Marcia Coyle of "The National Law Journal." Thanks also to Tammy Patrick of the Democracy Fund.

  • Marcia Coyle:

    Thanks, John.

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