This June, a 6-3 Supreme Court decision further eroded the Voting Rights Act (VRA) by upholding an Arizona law that disqualifies ballots cast by voters at any poll site other than the one assigned — an administrative technicality that has been shown to disproportionately impact minority communities in multiple states

Berg, Jarrett

Landy, Rachel

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State Lawmakers Must Step in to Remedy Supreme Court Voting Rights Blunder

LARC Cardoso Law (Yeshida Univ)

Yeshiva University, Cardozo School of Law LARC @ Cardozo Law Online Publications Faculty 11-3-2021 State Lawmakers Must Step in to Remedy Supreme Court Voting Rights Blunder Rachel Landy Jarrett Berg Follow this and additional works at: https://larc.cardozo.yu.edu/faculty-online-pubs  Part of the Constitutional Law Commons, and the Election Law Commons State Lawmakers Must Step in to RemedySupreme Court Voting Rights BlunderBy Jarret Berg and Rachel LandyNovember 3, 2021This June, a 6-3 Supreme Court decision further eroded the VotingRights Act (VRA) by upholding an Arizona law that disquali es ballotscast by voters at any poll site other than the one assigned — anadministrative technicality that has been shown to disproportionatelyimpact minority communities in multiple states.  Sweeping new voting rights legislation introduced in Congress inSeptember would prohibit this policy, as many states already do,which caused tens of thousands of registered voters to have theirentire 2020 ballot suppressed merely because they were cast “out-of-precinct,” including their votes for contests all voters were eligible toparticipate in, like presidential, gubernatorial, congressional electionsand more.This punishing policy silenced nearly 40,000 voters in Arizonabetween 2008 and 2016, with voters of color impacted most severely.In the 2016 general election (the last general election prior to thelawsuit), Arizona’s “American Indians, Hispanics and AfricanAmericans voted [out-of-precinct] at twice the rate of whites.” TheSupreme Court majority upheld the law,  nding no violation of theVoting Rights Act.Earlier this year, the nonpartisan VoteEarlyNY discovered that in the2020 election, the ballots of nearly 14,000 registered New Yorkerswere voided merely because they were cast at a different pollingsite from the one these voters were assigned.At the heart of the Court’s decision is an ideological dispute about theexpendability of fundamental rights, and what process is due beforeneutrally drafted technicalities can extinguish them.The Court’s holding, couched in terms of the “usual burdens ofvoting”, green lights Arizona’s overbroad policy, and by extension,similar laws across the country that void entire ballots even whenvoters are misdirected, despite evidence that minority voters havetheir fundamental rights unequally nulli ed as a result — this isexactly what the VRA was intended to prevent. Earlier this year, the nonpartisan VoteEarlyNY discovered that in the2020 election, the ballots of nearly 14,000 registered New Yorkerswere voided merely because they were cast at a different polling sitefrom the one these voters were assigned.  Of more than 9,000 votesdisquali ed in New York City, a disproportionate share (25%) camefrom majority-minority Bronx County where only 9% of the populationidenti es as non-Hispanic white. By comparison, Manhattan is 47%non-Hispanic white and has over 350,000 more registered voters, yetit accounted for only 17.2% of the disquali ed out-of-precinct ballots.  In terms of scale, more registered voters had their ballots voided forthis reason across New York than President Biden’s margin of victoryin Georgia over Donald Trump. Soon after, Georgia’s GOP-controlledlegislature passed new voting restrictions that will, among otherthings, disqualify more ballots from lost voters in the future.  The presidential horse race aside, the road to a 2022 House majoritymay actually run through New York for both parties. But in New York’s22nd Congressional District — the last 2020 House race in the countryto be decided — more ballots cast by registered voters entitled to votein that contest were voided due to this overbroad rule than the  nal109-vote victory certi ed in GOP Rep. Claudia Tenney’s favor overDemocrat Anthony Brindisi.Moreover, similar laws remain on the books in many states, includingbattlegrounds like Florida, Michigan, Ohio and Wisconsin. LikeArizona, in New York, the data demonstrated that this technical pitfallmost impacts population-dense areas, with the 15 most denselypopulated counties in the state accounting for 94% of thesedisquali cations. Intuitively, that makes sense: a voter is more likely tounintentionally walk into a different poll site in a denser residentialarea that has multiple assigned sites placed close together thanthose residing in less densely populated communities.  Nationally, minority populations tend to be concentrated in densemetro areas where the impact of such a restriction is greater than inthe more rural, whiter regions. And because voting is linked toresidency, socio-economic markers like how often voters move, ratesof homeownership and racial disparities found in poll site changes orconsolidations likely magnify the impact. One study of New Orleans,for example, found that majority Black neighborhoods bore the bruntof polling place changes over several election cycles. It is unclear what quantum of disproportionate racial impact mayhave persuaded the Supreme Court to rule differently in Arizona,where the scale of voters impacted has declined in recent years asalternatives like vote-by-mail and the shift to countywide “votecenters” (without single-site assignments) have grown in popularity.Although 3,709 out-of-precinct ballots were disquali ed in Arizona in2016, that was 10,000 ballots less than the 2020  gure for New York.Lawmakers have options to protect voters from this overbroadpenalty. Some states, like New Jersey, Maryland, New Mexico andUtah require the counting of any votes a voter would have beeneligible to cast had they been redirected to their assigned poll site.Others (Washington and Colorado) mail every voter a ballot. In morepopulous areas of some states that otherwise disqualify out-of-precinct ballots, like Clark County in Nevada and Harris County inTexas, administrators deploy vote centers, circumventing the harm.California has embraced versions of all three in recent elections.Without state-level action, however, thousands of registered voterswill continue to be unknowingly disenfranchised. With federallegislation stymied by Jim Crow-era  libuster rules and courtsdeferring to state legislatures on questions fundamental to thecharacter and legitimacy of our democracy, state policymakers muststep in to remedy this unjust technicality.Jarret Berg is a co-founder of VoteEarlyNY. Rachel Landy is a voting rights advocate.

https://larc.cardozo.yu.edu/cgi/viewcontent.cgi?article=1036&context=faculty-online-pubs

State Lawmakers Must Step in to Remedy Supreme Court Voting Rights Blunder

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