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Supreme Court Upholds Arizona Ballot Harvesting Restrictions

Supreme Court Upholds Arizona Ballot Harvesting Restrictions

SCOTUS rules 6-3 in Opinion by Alito.

The U.S. Supreme Court just issued its Opinion in Brnovich v. Democratic National Committee, upholding Arizona restrictions on ballot harvesting and out-of-district provisional voting.

The District Court, after a trial, upheld the law. A 9th Circuit panel upheld that ruling, but then 9th Circuit en banc reversed. In the Petition for Writ of Certiorari, the Arizona Attorney General presented the case as follows:


Arizona, like every other State, has adopted rules to promote the order and integrity of its elections. At issue here are two such provisions: an “out-ofprecinct policy,” which does not count provisional ballots cast in person on Election Day outside of the voter’s designated precinct, and a “ballot-collection law,” known as H.B. 2023, which permits only certain persons (i.e., family and household members, caregivers, mail carriers, and elections officials) to handle another person’s completed early ballot. A majority of States require in-precinct voting, and about twenty States limit ballot collection. After a ten-day trial, the district court upheld these provisions against claims under Section 2 of the Voting Rights Act and the Fifteenth Amendment. A Ninth Circuit panel affirmed. At the en banc stage, however, the Ninth Circuit reversed—against the urging of the United States and over two vigorous dissents joined by four judges.

The questions presented are:

1. Does Arizona’s out-of-precinct policy violate Section 2 of the Voting Rights Act?

2. Does Arizona’s ballot-collection law violate Section 2 of the Voting Rights Act or the Fifteenth Amendment?

After oral argument in early March, the consensus based on the questioning was that the law would be upheld.

In the 6-3 Majority Opinion, authored by Justice Alito, the Supreme Court upheld the Arizona law.

In these cases, we are called upon for the first time to apply §2 of the Voting Rights Act of 1965 to regulations that govern how ballots are collected and counted. Arizona law generally makes it very easy to vote. All voters may vote by mail or in person for nearly a month before election day, but Arizona imposes two restrictions that are claimed to be unlawful. First, in some counties, voters who choose to cast a ballot in person on election day must vote in their own precincts or else their ballots will not be counted. Second, mailin ballots cannot be collected by anyone other than an election official, a mail carrier, or a voter’s family member, household member, or caregiver. After a trial, a District Court upheld these rules, as did a panel of the United States Court of Appeals for the Ninth Circuit. But an en banc court, by a divided vote, found them to be unlawful. It relied on the rules’ small disparate impacts on members of minority groups, as well as past discrimination dating back to the State’s territorial days. And it overturned the District Court’s finding that the Arizona Legislature did not adopt the ballot-collection restriction for a discriminatory purpose. We now hold that the en banc court misunderstood and misapplied §2 and that it exceeded its authority in rejecting the District Court’s factual finding on the issue of legislative intent.

Gorsuch, joined by Thomas, issued a concurring opinion:

I join the Court’s opinion in full, but flag one thing it does not decide. Our cases have assumed—without deciding— that the Voting Rights Act of 1965 furnishes an implied cause of action under §2. See Mobile v. Bolden, 446 U. S. 55, 60, and n. 8 (1980) (plurality opinion). Lower courts have treated this as an open question. E.g., Washington v. Finlay, 664 F. 2d 913, 926 (CA4 1981). Because no party argues that the plaintiffs lack a cause of action here, and because the existence (or not) of a cause of action does not go to a court’s subject-matter jurisdiction, see Reyes Mata v. Lynch, 576 U. S. 143, 150 (2015), this Court need not and does not address that issue today.

Kagan, joined by Breyer and Sotomayor, dissented:

If a single statute represents the best of America, it is the Voting Rights Act. It marries two great ideals: democracy and racial equality. And it dedicates our country to carrying them out. Section 2, the provision at issue here, guarantees that members of every racial group will have equal voting opportunities. Citizens of every race will have the same shot to participate in the political process and to elect representatives of their choice. They will all own our democracy together—no one more and no one less than any other.

If a single statute reminds us of the worst of America, it is the Voting Rights Act. Because it was—and remains—so necessary….

Today, the Court undermines Section 2 and the right it provides. The majority fears that the statute Congress wrote is too “radical”—that it will invalidate too many state voting laws. See ante, at 21, 25. So the majority writes its own set of rules, limiting Section 2 from multiple directions. See ante, at 16–19. Wherever it can, the majority gives a cramped reading to broad language. And then it uses that reading to uphold two election laws from Arizona that discriminate against minority voters. I could say—and will in the following pages—that this is not how the Court is supposed to interpret and apply statutes. But that ordinary critique woefully undersells the problem. What is tragic here is that the Court has (yet again) rewritten—in order to weaken—a statute that stands as a monument to America’s greatness, and protects against its basest impulses. What is tragic is that the Court has damaged a statute designed to bring about “the end of discrimination in voting.” I respectfully dissent.


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State’s rights aren’t dead, at least not today

“Kagan, joined by Breyer and Sotomayor, dissented”

Now, where’d I put my shocked face?

    UserP in reply to JohnC. | July 1, 2021 at 11:59 am

    If you’re like me you only need to wear your shocked face on special occasions. You need it now because John Roberts said there is no such thing as liberal or conservative judges. And he was wearing his straight face when he said that.

    henrybowman in reply to JohnC. | July 1, 2021 at 11:21 pm

    Brnovich: “voters who choose to cast a ballot in person on election day must vote in their own precincts or else their ballots will not be counted.”

    Kagan, Sotomeyer: “guarantees that members of every racial group will have equal voting opportunities.”

    Must be a turrible burden to be so stupid that you can’t find your way home to vote there.
    Solution: Give the Uber driver your photo ID! It has your address on it!
    Oh, wait…

Where there is no chain of custody or other verification of ballot authenticity, fraud will determine the outcome of elections.

This ruling seems to significantly impact the DoJ complaint v GA election laws. Particularly the out of precinct voter portion. The absentee ballot procedures as to who may ‘handle’ ballots and the State interest in regulation/oversight of third parties who seek to ‘handle’ ballots.

    WillS68 in reply to CommoChief. | July 1, 2021 at 11:44 am

    I felt the DOJ filing against GA when they knew this ruling would be in the hopper was a political “shot across the bow”. I think the dissent will give Biden’s commission the ammo they want to call for an expansion of the court in an effort to “protect the minority”.

      Bruce Hayden in reply to WillS68. | July 1, 2021 at 2:33 pm

      Much of DOJ v GA, et al is essentially made frivolous by this case. My guess is that the timing of the GA case (filed 6 days before this decision) was primarily driven by the expectation that they would lose here, and lose big. Filing the GA case after the SCOTUS Brnovich v DNC decision would make many, if not most, of their causes of action legally frivolous. This way, they can pretend that they didn’t know any better.

amatuerwrangler | July 1, 2021 at 11:13 am

That dissent is pathetic. A law that requires people to vote in their own precinct is suppressing black votes? Limiting delivery of a ballot to 1) the voter, 2) a relative, 3) a member of the household, 4) the mailman, 5) an election official (did I miss any) is suppressing votes? Give me a break!

Are black people really so incompetent that they cannot mail a letter? Or are they that short of family or household members? (Anyone can say they are a relative or household member and how would you prove otherwise??)

These dissenting justices are the worst enemies the black Americans could ever have.

    The dissent is pathetic for all the reasons you state, and also because unlike the majority and concurring opinions, it’s extremely heavy on emotion and ideology, and extremely light on facts, reason, and precedent.

    IOW, it reads more like a propaganda piece than a legal opinion. It’s what I would expect to hear from a DNC-funded advertisement leading up to a ballot initiative vote on the laws in question, full of straw-man arguments attacking a mischaracterisation of the law, and not addressing the law itself.

    I should be able to expect better from SCOTUS Justices, but sadly I’m not even a little bit surprised.

    (Actually, that’s not true. I’m shocked at the 6-3 split, that Roberts joined the majority opinion and not the Leftist dissent. That was a pleasant surprise.)

    Milhouse in reply to amatuerwrangler. | July 1, 2021 at 1:29 pm

    You missed 6) a carer.

      amatuerwrangler in reply to Milhouse. | July 1, 2021 at 7:38 pm

      I have to plead that five out of six ain’t bad, especially for someone walking that valley of long shadows… 🙂

2smartforlibs | July 1, 2021 at 11:38 am

The propaganda machine is already spinning this as restrictions on voters’ rights.

This Decision as described in the article is perhaps not as favorable as many commenters think.

First, the opinion from Alito as described suggests certain voting practices are required (“easy to vote”) in order to rule against other questioned practices; i.e., there should be no state requirement that citizens need a month to vote or should anyone be entitled to “mail in” ballots, etc., in order to “decide” whether to vote outside of one’s Election District or for parties to “ballot harvest” is lawful or unlawful. …

Second, perhaps most troubling is SCOTUS accepted the case which I argue is outside its jurisdiction. There is nothing in the US Constitution that provides for the use of Federal law and courts to dictate voting practices and requirements to the states – the 9th and 14th Amendments should dictate, not Federal law. … And, the “dissenters” reference the “Voting Rights Act” as the “best of America”; when was Congress delegated the power to create “rights” ? And, who made that “delegation” ?

The United States of America was formed as a “republic” with the states delegating / ceding certain prescribed powers to the federal government, and procedures for electing “representatives” and the “executive”; dictating the making of other voting procedures was not among said powers. …

Finally, both Houses of Congress are absolutely conflicted when it comes to establishing the rules by which they are entrusted to represent their constituents and states. And, it should be considered that the 17th Amendment providing for the election of Senators by popular vote not only undermined (if not eliminated) representation of each state and therefore should be “unconstitutional on its face” (it was a major self-defeating shift away from a “republic” towards a “democracy” for citizens) but as well may not have been properly ratified.

The “mess” that is the “federal government” is not going to be remediated by SCOTUS ruling on process outside its scope of authority and unlawful laws passed by “corrupt” politicians. … It does require the states and their governors to assert their absolute authority over the federal government, including the ability to revoke delegated / ceded powers.

    CommoChief in reply to Sisu. | July 1, 2021 at 1:22 pm


    You may be reading too much into the decision. A State isn’t required to have ‘no excuse’ absentee voting. They can limit it to those required to be absent due to government service and Citizens who reside overseas.

    Alternatively they could go the other end of the spectrum and allow ‘no excuse’ absentee voting. In either case the State can determine the limits, if any, on 3rd party handling of ballots. They could limit it to elections officials, the Post Office and the individual voter.

    If absentee ballot or a lengthy period of early voting was constitutionally mandated then it’s a little late to be asserting that. Over 235 years since ratification, and only now are we discovering a requirement that isn’t in the text of the Constitution or the multiple Voting Rights Acts passed by Congress? A mandate that some States have never complied with; Delaware for example?

    Milhouse in reply to Sisu. | July 1, 2021 at 1:41 pm

    You’re nuts.

    Let’s start with the most obvious thing: By definition a constitutional amendment cannot be unconstitutional. That’s what the word “amendment” means.

    Now let’s go back to the beginning and take these points in order.

    1. Congress has the explicit authority to regulate congressional elections. So as applied to them there’s no question that the VRA is valid.

    2. Congress also has explicit authority under the 14th, 15th, 19th, 24th, and 26th amendments to legislate against state election laws that violate those amendments. (The 14th doesn’t directly guarantee a right to vote, but the equal protection clause does affect election laws in the same way that it does all other laws.) That alone was sufficient, in 1965, to justify the VRA. You surely don’t deny that elections laws in many states at that time brazenly violated black voters’ rights.

    3. The 17th amendment, which as I said earlier is constitutional by definition, did not in any way undermine states’ representation in the senate. Senators are still elected by their states, and represent them. On the contrary: A state’s legislature is not the state. Its people are. And it’s those people who now elect their own senators, who were always supposed to represent them, not their state legislators. Just as it was the states’ people, not their legislatures, who ratified the constitution in the first place.

    I largely agree with you on principle, but….

    First: Justice Alito doesn’t seem to be using the “easy to vote” comment as a qualifier for or against the challenged laws or any other reasonable measures to ensure the sanctity and accuracy of the vote. It’s merely a comment that overall, AZ doesn’t impose undue conditions or limitations on voting.

    Second: It could just as easily be argued that the “Voting Rights Act” grants nothing. It merely recognizes that people of all races/ethnicities/colors have the same right to vote and provides that they cannot be barred or be subject to separate rules because of their race/ethnicity/color.

    It’s not any different from the argument that the First Amendment doesn’t grant the rights to free speech or religious practice; it only recognizes and protects the pre-existing rights.

    Finally: By challenging the AZ laws against a federal law and the 15th Amendment, it falls squarely under the jurisdiction of the federal courts, up to and including SCOTUS. If it had been challenged under the AZ State Constitution, then it would be decided by the State courts, but it wasn’t.

    I agree with you that between Article I Section 4 of the U.S. Constitution (the only place where voting rules are mentioned, which applies to U.S. House and Senate elections, and explicitly leaves them to the States) and the 9th Amendment, the States get to decide how to run their elections. (As an aside, this makes H.B. 1, currently under Congressional consideration, unconstitutional on its face.) I also agree that the 17th Amendment, providing that Senators are elected directly by the people, was a mistake. (The 16th Amendment, providing for a federal income tax, was another mistake, but that’s for another thread.)

    But this SCOTUS decision, in my admittedly non-expert opinion, was decided correctly and in the correct venue.

      james h in reply to Archer. | July 1, 2021 at 3:10 pm

      I agree, the amendments and any laws or acts do not grant rights to people. That is not possible, the government cannot grant rights as it does not have any rights to grant. The people have unlimited natural rights as we are all equals. The government has only powers that the people decided to grant it.

      Milhouse in reply to Archer. | July 1, 2021 at 4:01 pm

      I agree with you that between Article I Section 4 of the U.S. Constitution (the only place where voting rules are mentioned, which applies to U.S. House and Senate elections, and explicitly leaves them to the States) and the 9th Amendment, the States get to decide how to run their elections. (As an aside, this makes H.B. 1, currently under Congressional consideration, unconstitutional on its face.)

      Bulldust. Article 1 section 4 explicitly authorizes Congress to regulate congressional elections.

      Also, voting is not a natural right. It’s not even a constitutional right. The right to vote is entirely a creation of the states, and therefore the states are entitled to restrict it however it likes, except where prohibited by the constitution (amendments 15, 19, 24, 26, and to a certain extent the equal protection clause of 14) or by a federal statute (e.g. the VRA) made pursuant to those amendments. (The 15th amendment was needed because the 14th doesn’t, by itself, protect black people’s right to vote.)

        Sisu in reply to Milhouse. | July 1, 2021 at 7:06 pm

        Nonsense. The discussion is not about “congressional elections”; and I don’t even conceded that point. … The case is about the “presidential elections” and if the 17th is constitutional the election of senators. …

          Milhouse in reply to Sisu. | July 1, 2021 at 7:59 pm

          The discussion is certainly about congressional elections. And senators are congressmen.

      Sisu in reply to Archer. | July 1, 2021 at 7:02 pm

      First: Agree, “easy to vote” is not a qualifier but that is how it will be used in future citations.

      Second: Agree, “Voting Rights Act” granted nothing (neither did “Civil Rights Act(s)”; they are political statements and SCOTUS should not even refer to them in “opinions”.

      “Finally”: I don’t think the 15th Amendment applies as AZ is not “abridging” on any of the enumerated conditions.

      16th Amendment: (contrary to the always “expert” Millhouse) is “unconstitutional” as is the “17th”; the unconstitutionality of 16th is acknowledged by the mere fact the “states failed their ‘people’” because the states did not have the power to delegate taxing authority to the federal government “without apportionment”; this point is evidenced by the fact that “while the system of taxation as originally created (and taught to “private sector” de facto agents of the federal government through at least the ‘70s) is voluntary”, “one must file an ‘accurate return’” thus when you acknowledge that according to the “rules of preparing the return” you owe tax, you “voluntarily” acknowledge that obligation (or you are subject to penalties for filing a “false return”). … The substance of the 16th Amendment as applied is “unconstitutional”. For emphasis: no amendment was needed as “Article. 1., Section 1. (1st sentence states) All legislative Powers herein granted shall be vested in a Congress …”

      Again, the “process” by which the 17th Amendment (and certain others) was ratified “failed” to meet the requirements for ratification. But, why would a “senator” empowered by (usurping the powers of the state legislatures and governors) the “17th“ acknowledge such ?

      In conclusion: “but this SCOTUS decision … decided correctly”: The simplest way to explain my perspective is (the decision is “appropriate”, but) this is an “ends justified the means result”; and I do not believe that that benefits the lawful citizens of this Republic.

      It is a “victory” but on the wrong “battlefield”.

        Milhouse in reply to Sisu. | July 1, 2021 at 7:58 pm

        You’re completely stark staring bonkers. Constitutional amendments amend the constitution. By definition they cannot be unconstitutional. Anyone who claims otherwise belongs in a padded room.

        Littering your comment with random quote marks, as if you’re quoting something, but without saying what it is you’re quoting, is another mark of your complete detatchment from reality.

          Sisu in reply to Milhouse. | July 1, 2021 at 9:14 pm

          Nonsense. The discussion is not about “congressional elections”. … The case is about the “2020 Presidential Election”, and if the 17th is constitutional the then election of senators. …

          For posterity, why not assert your personal authority. … You are such an “obvious expert” – identify yourself; and state for the record your credentials and all the peer reviewed articles, papers and books you have authored ? … If none, state “None.”

          The Constitution and supposed “laws” were written such that “non-lawyers” could understand the “rule of laws”. … FYI, originally “attorneys” did not need be certified by the “International Bar Association”, and that was the point of the “missing 13th Amendment”; hence the premise: “ignorance of the law is no excuse”.

          Thus, the benefit to most readers of the comments of others who bring a “pragmatic (if imperfect) understanding by educated, legal citizens” to the issues on this site; versus your “pontification”, “know-it-all” nonsense.

          In summary, you are either a “troll” or an “idle ass”. Regardless, you need to “get a life” or “acknowledge” that typing “comments” is neither a proper substitute for actual relationships or a proper use of your intellect and communication skills.

          Milhouse in reply to Milhouse. | July 1, 2021 at 10:27 pm

          The insane person heard from again.

          1. “The case is about the “2020 Presidential Election”, ”

          That is a flat-out LIE. The case has nothing at all to do with any election held in 2020 or in any other year.

          2.. “and if the 17th is constitutional”

          The same insanity again. Nobody needs any credentials to understand that constitutional amendments are by definition constitutional. They amend the constitution, for crying out loud. That’s what the word “amendment” means! The fact that we’re even discussing this is insane. And every normal person understands this.

          3. “the then election of senators. … ”

          The election of senators is a congressional election. And yes, the constitution expressly authorizes congress to regulate those, with the sole exception of the location of polling places for senatorial elections. (It can regulate the location of polling places for house elections.)

      geronl in reply to Archer. | July 2, 2021 at 2:13 pm

      “Easy to vote” is a nothing statement. There is no legal or Constitutional standard for what “easy” even means. A judge would be right to ignore it.

    henrybowman in reply to Sisu. | July 1, 2021 at 11:30 pm

    “when was Congress delegated the power to create “rights” ?”

    Congress cannot create or destroy “natural rights.” Those predate the constitution.
    Congress can create and destroy “civil rights.” These are procedural rights that have meaning only because of the particular form the operation of a government takes. There is no “natural right to vote,” because elections are not a process of nature. There is no “natural right to counsel” because trials are not a process of nature. If there were no government, these could not be rights because they would have no meaning.

Real American | July 1, 2021 at 12:27 pm

Once again, leftist judges show their antipathy and racist attitudes towards minorities: “Well, THOSE PEOPLE can’t be expected to follow these simple voting rules…”

I minority voter suppression is a smoke screen for what vote harvesting is really about and that is voting for all registered voters regardless of wether or not they actually y want to vote and making sure they vote for the right candidates. It’s the government compels you to vote and actually votes for you. Not a republic any more.

    Milhouse in reply to r2468. | July 1, 2021 at 1:44 pm

    It’s been notorious for decades that in some nursing homes Democrat activist staff vote on behalf of their residents. The Arizona law doesn’t even prevent that, since it allows carers to handle ballots.

    Not a republic any more.

    Nope. At that point it’s a “People’s Republic”.

    Pair that with severe penalties/punishments for not voting or voting for the “wrong” person, and it becomes a “Democratic People’s Republic”. 😀

Dead voters are disenfranchised again. No wonder they always vote Democrat.

I would be interested in checking Nursing home voters out. The Guardianship hearing for my mother-in-law ruled that she can’t vote or own a gun because he had Alzheimer There might be actually court orders that says they can’t vote.

I think this is flat out wrong.

“And then it uses that reading to uphold two election laws from Arizona that discriminate against minority voters. “

    amatuerwrangler in reply to MarkSmith. | July 1, 2021 at 7:59 pm

    Oh, really? Please provide some detail to support the claim that the AZ law discriminates against minority voters. As I noted earlier today, are minorities truly unable to mail a letter, find a relative, household member or caregiver* to deliver their ballot during the 30 dy voting period leading up to the election.

    What this law does is restrict the ability of dead people to vote (minority or otherwise) and limit the ability of the left to cheat on elections.

    Again, its the tyranny (not soft) or low expectations…

    * Thanks Milhouse.

Democrats claim that the Arizona election law discriminates against racial minorities, but they never explain how. Without offering evidence, they imply that minorities are too stupid to follow the law.

Jonathan Cohen | July 2, 2021 at 8:33 am

The point that the dissenters are really making is that they believe that Arizona rule might have a disparate impact on Democratic Party voters as those voters are lazier about exercising their right to vote. It is not surprising that the liberal judges would feel that ginning up Democrat votes is the ultimate purpose of voting since it is Democratic Party presidents that put them on the court.

Talk of conflict of interest!!

Oh look a bus pulled up and Democrat Party officials are carrying in a dozen boxes full of ballots to be counted, I’m sure this is totally fine….

Can you imagine if the GOP did things like that?