But Paul M. Smith, an attorney for the Campaign Legal Center, who submitted a brief supporting the challengers, said the lower courts have developed a sane framework for identifying restrictions that violate Section 2.
“It’s not enough for a rule to have a racially disparate impact,” he said. “This disparity must be linked to, and explained by, the history of discrimination in the jurisdiction. We hope the court recognizes the importance of keeping this test workable, which plays a vital role in monitoring laws that operate to make voting more difficult for blacks or Latinos. “
The two groups of lawyers defending the Arizona measures have not agreed on the standard the Supreme Court should adopt to maintain the contested restrictions. Mr Brnovich, the state attorney general, said the disparate effect on minority voters must be substantial and caused by the contested practice rather than some other factor. Lawyers for the Arizona Republican Party have taken a harder line, saying race-neutral election regulations that impose ordinary voting burdens are not subject to challenge at all under Section 2.
Last year, the U.S. Court of Appeals for the Ninth Circuit in San Francisco ruled that Arizona’s two restrictions violate Section 2 because they disproportionately disadvantage minority voters.
In 2016, black, Latino and Native American voters were about twice as likely to vote in the wrong constituency as white voters, wrote Judge William A. Fletcher for the majority in the 7-to-4 decision. Among the reasons for this , he said, there were “frequent changes in the polling stations; confused placement of polling places; and high rates of residential mobility. “
Likewise, he wrote, the ban on ballot collectors has had a disproportionate effect on minority voters, who use ballot collection services much more than white voters because they are more likely to be poor, older, housebound or disabled; lack of reliable transportation, child care and courier services; and need help understanding the voting rules.
Judge Fletcher added that “there is no evidence of fraud in the long history of third party ballot collection in Arizona.”