Justices Kagan and Breyer, both members of the court’s liberal wing, may have been playing defense, hoping the court’s decision, expected by July, would leave Section 2 more or less unscathed.
But it was not clear that lower courts would be much helped if the Supreme Court were to adopt a vague and flexible approach.
Justice Amy Coney Barrett suggested that the court should adopt a clear standard. “All election rules,” she said, “are going to make it easier for some to vote than others.”
Last year, the United States Court of Appeals for the Ninth Circuit, in San Francisco, ruled that both Arizona restrictions violated Section 2 because they disproportionately disadvantaged minority voters.
In 2016, Black, Latino and Native American voters were about twice as likely to cast ballots in the wrong precinct as were white voters, Judge William A. Fletcher wrote for the majority in the 7-to-4 decision. Among the reasons for this, he said, were “frequent changes in polling locations; confusing placement of polling locations; and high rates of residential mobility.”
Similarly, he wrote, the ban on ballot collectors had an outsize effect on minority voters, who use ballot collection services far more than white voters because they are more likely to be poor, older, homebound or disabled; to lack reliable transportation, child care and mail service; and to need help understanding voting rules.
Judge Fletcher added that “there is no evidence of any fraud in the long history of third-party ballot collection in Arizona.”