The national conversation around voting rights is deeply skewed. Republican lawmakers and operatives openly endorse disenfranchisement; they brag when their attacks on suffrage succeed; and they work feverishly to rig redistricting in favor of white people. But all too often, judges refuse to acknowledge the racism of voter suppression laws, dancing around the purpose of these measures. Only rarely will a court admit what every reasonable observer should already know: The disproportionate impact of these laws on minority voters is no coincidence; it is exactly what legislators intended.
It is refreshing, then, that on Monday the 9th U.S. Circuit Court of Appeals did not tiptoe around the bald facts: Arizona Republicans’ recent crackdown on voting rights was motivated by racism. The court invalidated a law that was plainly designed to stop Native American, Hispanic, and black voters from casting a ballot—not just because it happened to burden minorities more than whites, but because it is flat-out racist.
Arizona’s “long history of race-based voting discrimination,” combined with legislators’ “false, race-based” claims of voter fraud “unmistakably reveal” an intent to discriminate on the basis of race, the 9th Circuit announced.
The Supreme Court’s conservative justices may well reverse the ruling. But the 9th Circuit will at least force SCOTUS to confront the reality that white supremacy remains a driving force in Republicans’ assault on the franchise, despite Chief Justice John Roberts’ declaration that racism is a historical relic.
Monday’s decision in Democratic National Committee v. Hobbs involves two Arizona regulations: a ban on out-of-precinct voting (the “OOP policy”) and a restriction on volunteers’ collection of early ballots. In most of Arizona, voters are required to cast a ballot at a specific polling place within their precinct. If voters go to the wrong precinct, they can cast a provisional ballot. But election officials then throw this ballot away, even if the voter was otherwise eligible to vote. From 2008 to 2016, Arizona discarded 38,335 OOP ballots cast by registered voters, exponentially more than any other state. Voters’ assigned polling places change constantly, even month to month, and those assignments can be suspiciously inconvenient. Some polling places are located at the very edge of a precinct, and many citizens live closer to a different polling place within their precinct—at which they nonetheless are forbidden to vote.
This system places a heavy burden on people of color. In 2016, for example, the rate of OOP voting in Pima County was 150 percent higher for Hispanics, 80 percent higher for blacks, and 74 percent higher for Native Americans than for white voters. Across the state, racial minorities voted OOP at twice the rate of whites.
One key reason for this disparity is the state’s own crusade to shutter polling places following the Supreme Court’s 2013 decision in Shelby County v. Holder, which let Arizona change its voting laws without federal approval. Maricopa County, where more than 60 percent of Arizonans reside, slashed the number of polling places by 70 percent between 2012 and 2016. The county was disproportionately likely to close polling places in minority communities. These closures forced people of color to travel much farther than whites to reach their assigned polling places—raising the probability that they would mistakenly vote elsewhere in the precinct.
Under the “results test” of the Voting Rights Act, states may not enact laws with a disparate impact on minority voters that is linked to “social and historical conditions” of racism. “Extensive and uncontradicted evidence,” the court explained, proves precisely such an impact here. Arizona has a long history of racist voting restrictions, one that “has continued to the present day.” Election officials did not just close polling places in nonwhite neighborhoods; they also misled Spanish-speaking voters—by, for instance, claiming that the Nov. 6, 2012, election would be held on Nov. 8 in an official Spanish elections guide, a mistake mysteriously absent from the English-language pamphlet. And these officials provided the wrong translation of a ballot measure on Spanish-language ballots in an apparent effort to confuse voters. All of these factors, the court held, render Arizona’s OOP policy unlawful under the VRA.
The court then turned to H.B. 2023, which would forbid activists and community organizers from collecting absentee ballots and turning them in to election officials. White voters rarely vote in this manner, but minorities—especially Latino voters, including those who are elderly and disabled—rely upon third parties to collect their ballots. There is no evidence that this practice, sometimes derided as “ballot harvesting,” led to fraud in Arizona. Yet in 2016, the Legislature criminalized it, subjecting violators to felony charges.
Because H.B. 2023 indisputably affects minorities more than whites, the court found that it violated the VRA’s results test. But it went much further, also accusing the Arizona Legislature of intentional race discrimination in enacting the legislation, in violation of both the VRA and the 15th Amendment. The evidence for that claim is overwhelming. When Arizona first tried to pass this ban in 2011, the state’s elections director admitted to the Department of Justice that it was “targeted at voting practices in predominantly Hispanic areas.” Rather than face rejection from the DOJ, Arizona withdrew the measure.
After Shelby County, however, the state no longer needed the DOJ’s approval, and Republicans sought to reenact it. To support their allegations of voter fraud, GOP legislators circulated what the court called a “racially charged video,” created by Maricopa County Republican Chair A.J. LaFaro, that showed a Latino man lawfully dropping off ballots. LaFaro added “racially tinged and inaccurate commentary” asserting that the man may have been “an illegal alien” and was definitely “a thug.” Arizona Sen. Don Shooter, who spearheaded H.B. 2023, made “demonstrably false” allegations of fraud, and his efforts to limit ballot collection were motivated by the “high degree of racial polarization in his district.” Put simply, he needed to suppress Latino turnout to keep his seat. (Shooter was later expelled from the Legislature for serial sexual harassment.)
Supporters of H.B. 2023, the court wrote, used “false allegations and racial innuendo” to pass the bill. They vilified Latinos and concocted a slanderous narrative that minorities (like the “thug” in LaFaro’s video) were rigging elections against white politicians. All this evidence, the court concluded, demonstrates that lawmakers enacted the measure for racist purposes. If the decision stands, Arizona will be compelled to count OOP ballots and permit third-party ballot collection in 2020. Removing those hurdles will likely raise minority turnout in the closely divided state and could transform its political calculus.
DNC v. Hobbs was decided en banc, with 11 judges sitting. It split 7–4, though one member of the majority (Judge Paul Watford) did not join the portion finding racially discriminatory intent. He did not explain why. But perhaps Watford recognized that this Supreme Court will not be eager to acknowledge racist voter suppression after it declared, in Shelby County, that “the conditions that originally justified” the VRA “no longer characterize voting” in states with racist history. These states promptly proved SCOTUS wrong, passing a slew of voter suppression laws in the wake of Shelby County, including H.B. 2023, that placed new obstacles in the path of minority voters. The Supreme Court’s conservatives may be tempted to reverse the 9th Circuit’s finding of discrimination, at a minimum, if only to save face after predicting that racism in the United States is nearly extinct.
But the rest of us do not have to ignore the fact that Arizona—and other historically racist states—just happened to enact laws after Shelby County that swiftly curtailed minority suffrage. The 9th Circuit’s unflinching account of Arizona Republicans’ racism may not be a paragon of civility. But it is a rare and invigorating dose of sanity in our new age of judicial gaslighting.
