Thread by @Joseph_La_Rue

As I predicted, the Supreme Court upheld Arizona's requirement that, for counties that use a "precinct based" model for voting, voters must cast their ballots in their correct precinct to be counted. It also upheld Arizona's ban on ballot collection/harvesting. #BrnovichvDNC

The second sentence of the opinion: "Arizona law generally makes it very easy to vote."

In #BrnovichvDNC, the SCOTUS notes that in Arizona, "no special excuse is needed" to vote early during the 27-day early voting period. That's part of what "generally makes it easy to vote in Arizona." (Some states require a "reason" to vote early, and/or have shorter periods).

The Court also notes that in Arizona, "Each county is free to conduct election-day voting either by using the traditional precinct model or by setting up 'voting centers.'" Another great feature of Arizona law: counties get to choose how they will conduct elections!

(A "vote center" is equipped to provide every possible ballot in the county, so that any voter can get their proper ballot, while "precinct polling places" only have the ballot style with the elections that voters in that particular precinct are eligible to vote for.)

(In 'vote centers', you don't get to 'pick your ballot' (i.e., I want to vote the ballot with the contest for CD7 instead of CD1). Rather, you still get 'your' ballot (i.e., with the election in Congressional District 1)).

The Court also noted another great thing about Arizona voting: in counties that use a "precinct-based" model, if a voter goes to the wrong precinct, poll workers are trained to direct voters to where they should go to vote. We don't leave voters hanging; we help voters!

So, the FIRST law challenged in this lawsuit was the "vote in the correct precinct" requirement, which is that, for counties using the precinct-based model, voters must vote in their correct precinct or their ballots cannot be counted. (More on this in a bit).

The SECOND law challenged was Arizona's general ban on "ballot collection" by third parties (i.e., "ballot harvesting).

Arizona law requires that, if you vote by early ballot (i.e., a vote-by-mail ballot), the only ones who can take that ballot to the post office or otherwise return it for you are you yourself, your family members, household members, or caregivers.

BIG: SCOTUS says that #BrnovichvDNC does not announce THE "test" for ALL future voting rights cases. In non-lawyer speak, that means that this decision gives some general principles for future cases, but not a "set in stone rule" stating how all cases should be decided.

SCOTUS says what many election lawyers have argued: the Voting Rights Act requires that political processes, like voting!, must be "equally open" to minority and non-minority voters. No discrimination!

(That seems like common sense, right? But it's still great to have SCOTUS say it here. At the very least, the Voting Rights Act requires us to treat all voters equally).

The Court digs a bit deeper, and says, "the core of
§2(b) [of the Voting Rights Act] is the requirement that voting be 'equally open.'” Again, no discrimination in voting.

The SCOTUS also notes that "the totality of the circumstances" must be considered to decide if a law violates the Voting Rights Act's requirement that voting be equally open. This, too, makes sense.

The "totality of circumstances" includes ALL opportunities to vote. So when states provide multiple ways to vote, any burden on voters by ONE of the ways (such as having to mail back their early ballot) can only be evaluated by taking into account the other options for voting.

Okay, this is HUGE. I'm going to quote it, in this tweet & the next. "Section 2 of the Voting Rights Act provides vital protection against discriminatory voting rules, and no one suggests that discrimination in voting has been extirpated or that the threat has been eliminated."

"But §2 does not deprive the States of their authority to establish non-discriminatory voting rules"

In other words, we need to recognize that there is ALWAYS a threat that discriminatory laws will be enacted. But, the fact that the threat exists does not mean states cannot enact NON-discriminatory laws to protect election integrity. That's HUGE!

Some people are tweeting at me, saying that the "vote in your precinct rule" makes it too hard for average voters to vote. Here's what SCOTUS said: "Having to
identify one’s own polling place and then travel there to
vote does not exceed the “'usual burdens of voting.'”

FULL DISCLOSURE: @modernista64, @KaraKarlson, and I might have written something similar in a brief we filed when we worked on this case together at AGO several years ago when it was at the Ninth Circuit.

@modernista64 @KaraKarlson The SCOTUS also noted that only a little more than 1% of Hispanic voters, 1% of African-American voters, 1% of Native American voters, and 0.5% of non-minority voters had ballots rejected because they cast them out-of-precinct.

@modernista64 @KaraKarlson The Court then said, "A policy 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."

@modernista64 @KaraKarlson Accordingly, the Court found that Arizona's "vote in your precinct" rule does NOT violate the Voting Rights Act, because it does not discriminate. Rather, voting in Arizona counties that use a precinct-based model is "equally open" to both minority and non-minority voters.

Turning to the Early Ballot part of the challenge, SCOTUS noted that "Arizonans who receive early ballots can submit them by going to a mailbox, a post office, an early ballot drop box, or an authorized election official’s office within the 27-day early voting period."

INTERRUPTING MYSELF JUST BRIEFLY: I want to be clear, nothing in #BrnovichvDNC REQUIRES counties to use the precinct-based model. In other words, counties are still allowed to use a vote center model, and also a "hybrid" between the two! More choices, which is good.

Now, back to the Early Ballot portion ...

The SCOTUS explained that "The plaintiffs were unable to provide statistical evidence showing that HB 2023 [the law banning "ballot collection"/"ballot harvesting" had a disparate impact on minority voters."

That is a HUGE part of why Plaintiffs lost this portion of their challenge: there was no statistical proof showing that banning ballot collection/harvesting "harmed" minority voters worse than any "harm" to non-minority voters.

The SCOTUS then said, "without more concrete evidence, we cannot conclude that HB 2023 results in less opportunity to participate in the political process."

The Court also noted that "Limiting the classes of
persons who may handle early ballots to those less likely to have ulterior motives deters potential fraud and improves voter confidence."

(Former President Jimmy Carter said the same thing, and the SCOTUS cited him [what is known as the Carter-Baker Commission on Federal Election Reform]).

Also, "the Carter-Baker Commission recognized, third-party ballot collection can lead to pressure and intimidation."

The SCOTUS concluded that because (1) states can lawfully enact anti-fraud measures for voting, and (2) there was no proof the ballot collection ban had a disparate impact on minority voters, the ban does not violate the Voting Rights Act.

The SCOTUS also considered whether the Arizona Legislature enacted the ban on ballot collection with a "discriminatory purpose," i.e., whether they were trying to discriminate against minority voters.

(Remember, this is the law that says that only you yourself, your family member, your household member, or your caregiver can possess your early ballot).

The SCOTUS noted that the trial court heard testimony and considered evidence on the question of whether the Legislature had improper discriminatory motives, and concluded that it did not.

The SCOTUS then concluded that the trial court did not commit "clear error" in reaching that decision (that is the legal test appellate courts must apply when considering appeals related to legislative intent).

So, the SCOTUS's conclusion was: "Arizona’s out-of-precinct policy and HB 2023 do not violate §2 of the VRA, and HB 2023 was not enacted with a racially discriminatory purpose." In other words, both laws are legal.

MY FINAL THOUGHTS . . .

1. Some are happy about the #Brnovich decision, while others are upset about it. That's understandable. But both sides should be careful about the hyperbole. This decision did not "gut the Voting Rights Act," or signal that this SCOTUS will approve every voting restriction.

2. Rather, #BrnovichvDNC was a carefully crafted decision, setting forth general principles--the main one affirming that laws regulating voting must be "equally open" to all races of voters when considered in the light of the "totality of circumstances."

3. Also, #Brnovich clarifies that very small statistical differences do not create a "disparate impact" when the challenged law generally works for everybody.

So, when 99% of minority voters correctly voted in their correct precinct, there is no "disparate impact" simply because 99.5% of white voters (a half percent more) voted in their correct precinct. The SCOTUS said that this shows that the law generally works for all voters.

4. Finally, I urge ALL of us to advocate for voting laws that are fair to everyone, while making it easy to vote but hard to cheat. Very high voter turnout, with very low (if any) voter fraud, should be the law's goal.