Third, “the size of any disparities in a rule’s impact on members of different racial or ethnic groups is also an important factor,” Justice Alito wrote, adding that courts may discount disparities “to the extent that minority and nonminority groups differ with respect to employment, wealth and education.”
Fourth, courts must consider all of the ways voters can cast ballots.
Fifth, he wrote, courts should consider the state’s reason for the restriction. “One strong and entirely legitimate state interest,” he wrote, “is the prevention of fraud.”
Chief Justice Roberts and Justices Clarence Thomas, Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett joined the majority opinion.
Justice Kagan said the majority’s list of guideposts amounted to a recipe for voter suppression.
“The list — not a test, the majority hastens to assure us, with delusions of modesty — stacks the deck against minority citizens’ voting rights,” she wrote. “Never mind that Congress drafted a statute to protect those rights — to prohibit any number of schemes the majority’s non-test test makes it possible to save.”
Two restrictions were at issue in the case, Brnovich v. Democratic National Committee, No. 19-1257. One required election officials to discard ballots cast at the wrong precinct. The other made it a crime for campaign workers, community activists and most other people to collect ballots for delivery to polling places, a practice that critics call “ballot harvesting.” The law made exceptions for family members, caregivers and election officials.
Both restrictions were lawful under the court’s new guideposts, Justice Alito wrote.
The ban on out-of-precinct voting was justified, he wrote, because the burden of finding the correct polling place is minor; there are other ways to vote, including by mail; and the number of discarded ballots was small.
Justice Kagan saw things differently.
“Arizona is the national outlier in dealing with out-of-precinct votes, with the next-worst offender nowhere in sight,” she wrote. “In 2012, about 35,000 ballots across the country were thrown out because they were cast at the wrong precinct. Nearly one in three of those discarded votes — 10,979 — was cast in Arizona.”