Grand Canyon Times

The Supreme Court’s 6-3 decision last week upholding two Arizona election rules as nondiscriminatory is a win not just for Arizona but other states strengthening their election laws after wholesale ballot harvesting, and other unsecure voting practices, were allegedly ushered in during the pandemic, according to a Republican observer.

Ken Cuccinelli, the former Republican Virginia attorney general and currently chair of the Election Transparency Initiative, said the ruling in Brnovich v. Democratic National Committee reaffirms that evidence of discrimination must be presented when alleging violations of Section 2 of the 1965 Voting Rights act, which prohibits voting practices that discriminate based on race.

“There either has to be direct or circumstantial evidence that the practice is discriminatory,” Cuccinelli told the Grand Canyon Times. “You can’t just put the burden on the states to prove themselves innocent.”

In the July 1 ruling, the high court upheld two election rules in Arizona. The first banned the third-party collection of mail ballots (ballot harvesting) by unions and political groups and the other discarded votes cast in the wrong precinct on Election Day.

In his majority opinion, Justice Samuel Alito noted that the Arizona election practices are not only not discriminatory but are consistent with the state’s responsibility to secure elections. Alito wrote that “the strength of the state interests—such as the strong and entirely legitimate state interest in preventing election fraud—served by a challenged voting rule is an important factor. Ensuring that every vote is cast freely, without intimidation or undue influence is also a valid and important state interest.”

Cuccinelli said what surprised him most about the ruling – which he believed could have gone 9-0 – was the tone of Justice Elena Kagan’s dissent. Kagan wrote that the decision comes out a “perilous moment” when many states are pursuing new laws that will “predictably deprive members of minority groups equal access to the ballot box.”

Cuccinelli said, “Her opinions are typically very high-minded. Here she sounds like an activist.”

The Wall Street Journal editorial board wrote that “it is her [Kagan’s] worst opinion as a justice.”

President Joe Biden’s Department of Justice also believed the Arizona voting rules nondiscriminatory, according to some analysts. In February, Deputy Solicitor General Edwin Kneedler wrote to Supreme Court clerk Scott Harris that the department “did not disagree” with the opinion of the DOJ under the Trump administration that neither of the Arizona voting rules “violates Section. 2’s results test."  

Cuccinelli said that many Democrats quietly agree with measures that some of the states are taking to secure elections.

“They know that if you walk into a restaurant almost anywhere in the country most people are going to say they support voter ID and other security measures,” he said. “Most of the division on this is in the political arena.”