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Today鈥檚 courtrooms serve as a regular battleground between those who seek to ensure election integrity through laws establishing stricter voting processes and those who wish to repeal such laws due to their potential to limit ballot accessibility for minority groups.

The tension between election integrity and voting access were on display earlier this year when the United States Supreme Court considered the legality and constitutionality of two Arizona election laws in a case brought by the Democratic National Committee and certain party affiliates. 

The Voting Rights Act, the Constitution, and Arizona鈥檚 election laws

The state Legislature in 2016 passed and Gov. Doug Ducey signed H.B. 2023, legislation barring so-called 鈥�,鈥� which the bill鈥檚 proponents claim occurs when anyone other than a United States Postal Service Postal Service worker or election official collects either voted or unvoted ballots. 

Essentially, ballot harvesting occurs when a surrogate 鈥渉arvests鈥� or collects voters鈥� completed ballots to submit those ballots at the polls. While for many this might seem like a helpful gesture and a voting option that assists voters in the submission of their ballot, the Legislature believed ballot harvesting could have the potential to undermine the fairness and honesty of elections. 

Also before the Supreme Court was a state law banning voters from casting ballots at voting precincts other than the ones assigned to them (A.R.S 16-122). 

In , the Court contemplated about the two Arizona election laws as they relate to Sec. 2 of the Voting Rights Act. Passed in 1965, the VRA is a landmark law that set certain standards for election regulation meant to enforce rights guaranteed by the Fourteenth Amendment, also known as the equal protection clause. of the law prohibits voting practices that discriminate on the basis of race, color, or affiliation. 

1. Does Arizona鈥檚 ballot harvesting law violate Sec. 2 and/or the Fifteenth Amendment, which ensures 鈥淭he right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.鈥� The DNC argued the law unduly burdened voters of minority groups and, as a result, was both a violation of Sec. 2 and the Fifteenth Amendment.

2. Does Arizona鈥檚 Out-of-Precinct policy violate Sec. 2 of the VRA? The DNC that 鈥淭he state鈥檚 refusal to count ballots cast in the wrong precinct and its ballot-collection restriction had an adverse and disparate effect on the State鈥檚 American Indian, Hispanic, and African-American citizens in violation of 搂2 of the VRA.鈥� 

Additionally, the DNC alleged that the ballot-casting restriction was in violation of Section 2 of the VRA because it was 鈥渆nacted with discriminatory intent.鈥� 

The Supreme Court in July ruled in a 6-3 decision that Arizona’s election laws were not in violation of Sec. 2 of the VRA, nor were they unconstitutional. The majority opinion was written by Justice Samuel Alito.

Ballot harvesting: A helpful gesture, or inviting corruption?

A few of H.B. 2023 directly target the behavior of ballot harvesters. 

• Section B reads: 鈥淚t is unlawful to offer or provide any consideration to acquire a voted or unvoted early ballot. A person who violates this subsection is guilty of a class 5 felony鈥�
• Section C reads: 鈥淚t is unlawful to receive or agree to receive any consideration  in exchange for a voted or unvoted ballot. A person who violates this subsection is guilty of a class 5 felony鈥�

鈥淭his bill ensures a secure chain of custody between the voter and the ballot box,鈥� Gov. when he signed the bill into law. 鈥淲e join 18 other states in this common-sense approach to maintaining the integrity of our elections.鈥�

Opponents of ballot harvesting worry that the practice might result in fraud or systematic disenfranchisement and could negatively affect any political party. Indeed, the results of the North Carolina 9^th Congressional District race in 2018 were overturned because a Republican political operative collected hundreds of mail-in ballots from disproportionately Democratic neighborhoods and never brought them to a polling place. The election鈥檚 margin was slim, and the outstanding ballots had the potential to change the election鈥檚 result. 

The Alito opinion

Alito鈥檚 opinion acknowledges the history of discriminatory voter restrictions such as poll taxes, literary tests, property qualifications, as well as 鈥淲hite Primaries” and 鈥済randfather clauses.鈥� 

Alito uses the aforementioned examples of discriminatory election regulation and his comprehensive understanding of Sec. 2 of the VRA as a baseline from which to judge the current Arizona statutes. 

Alito argues that the plaintiffs failed to prove either of the statutes鈥� 鈥渄isparate impact on the opportunities of minority voters to[vote]鈥� as well as how the policy encouraged unlawful voting procedure by minority voters any more than their non-minority counterparts.    

Alito explains how Sec. 2 of the VRA specifically requires a 鈥渃onsideration of the totality of circumstances鈥� when being applied to election regulations. 鈥淭hus any circumstance that has a logical bearing on whether voting is equally open and affords equal opportunity may be considered,鈥� he wrote. He proposes that could be used as a legal test for judging such applications of Sec. 2 in the future.  

Alito鈥檚 examination of the 鈥渢otality of circumstances鈥� surrounding Arizona鈥檚 election regulation offers a defense for an election law aimed at ensuring election integrity. 

The Alito opinion, however, is not a consensus shared by all members of the court, and it is certainly not an opinion shared by the entire public. Still, Alito鈥檚 majority opinion will likely influence future Supreme Court decisions concerning how Sec. 2 of the VRA should be applied to election regulation.