'Thumb on the scale'? Supreme Court decision could give advantage to new restrictive voting laws

Election workers review absentee and provisional ballots in Georgia on November 6, 2020.
John Fritze

WASHINGTON – A recent Supreme Court decision upholding two Arizona voting rules could make it easier for other states to cite fraud as a justification for similar laws – even if there is zero evidence of past shenanigans in their elections.

Though legal experts are still assessing the decision, the high court's conservative majority signaled this month that a state could point to fraud that occurred outside its borders – and potentially years in the past – to defend tighter voter ID requirements, shorter early voting windows and tougher controls on absentee ballots. 

At a time when more than a dozen conservative states have enacted new voting limitations and no evidence of substantial fraud has emerged from the 2020 presidential contest, election law experts say the lower standard could have an enormous impact on a wave of lawsuits that may be filed under the 1965 Voting Rights Act in coming years.

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In the Arizona case, Associate Justice Samuel Alito wrote that it was enough for state lawmakers to point to fraud in North Carolina to justify their ban on third-party groups collecting absentee ballots from voters, a practice critics call "ballot harvesting." The Copper State, he wrote, didn't have to wait for a similar problem to crop up locally.

"The fear is that Justice Alito's language may be construed by lower courts and even worse by state legislators to think they get a free pass for voter suppressive legislation by the incantation of 'voter fraud prevention,'" said Ezra Rosenberg, co-director of the Voting Rights Project at the Lawyers' Committee for Civil Rights Under Law.

"We do not think that is the case or should be the case."

Conservatives applauded the Supreme Court's recent decision in Brnovich v. Democratic National Committee, which they say clarified how the landmark Voter Rights Act is supposed to work in practice. States, they say, may have good reason to shorten voting hours on Election Day that have nothing to do with discrimination, for instance. 

And when it comes to fraud, they argue, states shouldn't have to wait for problems to occur before they pass a law to plug potential vulnerabilities in their electoral systems. 

"That's a bit like saying, 'I’m a homeowner and there has been no evidence of a break-in in my own home, therefore I'm not going to lock my front door,'" said Jason Snead, executive director of the Honest Elections Project, a group that advocates for stricter voting laws across the country. "No one thinks that way."

Voters line up in Virginia during the 2020 presidential election.

Assessing fraud 

Voting rights has erupted as one of the most divisive issues in U.S. politics. Responding to false claims of fraud by former President Donald Trump and his allies, 18 states enacted 30 new laws this year to restrict voting, according to the Brennan Center for Justice. Meanwhile, sweeping federal legislation that Democrats say would make voting easier nationwide has stalled in the Senate

But evidence of fraud remains scant, and opponents say the real reason for the restrictions is to make it harder for Democratic-leaning minority groups such as African Americans, Latinos and Asian Americans to vote. After all, poll taxes and other discriminatory laws were once justified on the ground that they preserved "honest" elections. 

"Sometimes states make race-neutral claims as to why they need a law – to 'prevent fraud, promote the purity of the ballot box' or whatever, but it's really a subterfuge for voter suppression," said Rick Hasen, a professor and election law expert at the University of California, Irvine School of Law. 

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In the past, federal courts have assessed whether a state has a genuine interest in preventing fraud, or whether that interest is tenuous. One of the ways they have made that call is to look for evidence of fraud actually happening.   

The New Orleans-based U.S. Court of Appeals for the 5th Circuit engaged in such an analysis in a 2016 challenge to Texas' voter ID requirements. In a 9-6 ruling from the  generally conservative court, the judges said Texas had a history of justifying suppression efforts such as poll taxes and literacy tests by claiming fraud prevention.

What Texas didn't have much history with, the court said, was fraud. The judges cited two convictions for in-person voter fraud out of 20 million votes cast over a decade. 

"Even under the least searching standard of review we employ for these types of challenges, there cannot be a total disconnect between the state's announced interests and the statute enacted," wrote Judge Catharina Haynes, who was nominated to the appeals court by President George W. Bush. 

In Brnovich, Alito included "the strength of the state interest" in the majority opinion as one "guidepost" for weighing whether a law is illegally discriminatory. But by concluding that a state doesn’t have to wait for fraud to occur within its borders before passing a law to address it, Hasen and other experts say the majority is allowing lower courts to just assume such an interest exists.

And that, Hasen said, "turns the Voting Rights Act on its head."

Natalie Azmitia of Los Angeles listens to a mariachi band performing at a voting center during the 2020 presidential election.

Ballot collection 

Arizona approved its prohibition on ballot collection years before the 2020 election. Supporters say the practice helps far-flung voters, including Native Americans who can't easily access mail service to return their ballots.

When Arizona Gov. Doug Ducey signed the law in 2016, the Republican framed the measure as a "common sense approach to maintaining the integrity of our elections.” A federal district court, which upheld the law, nevertheless noted that "there has never been a case of voter fraud associated with ballot collection charged in Arizona."

But the Supreme Court said that didn't matter, since states have an interest in protecting their elections even if fraud hasn't yet occurred.

"One strong and entirely legitimate state interest is the prevention of fraud," Alito wrote for the majority.

"And it should go without saying that a state may take action to prevent election fraud without waiting for it to occur and be detected within its own borders," he added.

Alito's opinion points to a single example of ballot fraud: the often-cited 2018 congressional race involving North Carolina Republican Mark Harris. Republican operatives have been charged in that state with mishandling ballots and other crimes. Harris dropped out, and another GOP candidate ultimately won a do-over election. 

A Gwinnett County election worker processes absentee and provisional ballots on November 6, 2020 in Georgia.

In a blistering dissent that recounted the history of discriminatory voting laws, Associate Justice Elena Kagan, acknowledged that preventing fraud and voter intimidation are important state interests. But, Kagan wrote, "those interests are also easy to assert groundlessly or pretextually in voting discrimination cases."

"States have always found it natural to wrap discriminatory policies in election-integrity garb," wrote Kagan, who was joined by the court's two other liberals.

The Arizona case is not the first time the high court has touched on the issue. In a 2008 constitutional challenge to Indiana's voter ID law, a plurality of the court acknowledged "the record contains no evidence" of fraud – specifically, in-person voter impersonation – but upheld the law anyway.

"Flagrant examples of such fraud in other parts of the country have been documented," then-Associate Justice John Paul Stevens wrote.

Supporters of the new state election restrictions balk at the idea that they are intended to suppress turnout of minority voters.  

"The grandfather laws, absurd literacy tests, poll taxes, intimidation and terroristic violence of the Jim Crow era have nothing whatever to do with, say, Ohio's restriction of early voting from 35 to 29 days, or with limiting same-day registration," Robert Popper, a senior attorney with the conservative Judicial Watch told a House subcommitteethis month. 

Others see the Arizonadecision as weakening the ability of disenfranchised voters to challenge state restrictions. The court's approach to fraud, they say, is a big part of the reason why. 

"The conservatives on the court are willing to credit completely evidence-free assertions of fraud prevention," said Nicholas Stephanopoulos, a Harvard Law School professor and election law expert. "To me, this really reveals an effort to put a thumb on the scale."