On July 1, the U.S. Supreme Court issued an opinion in Brnovich v Democratic National Committee, 19-1257. The issues were two Arizona election laws that made it more difficult for certain kinds of voters to vote. A federal lawsuit was filed to overturn the two laws, on the grounds that they had a disparate effect on certain racial and ethnic minorities. One of the laws banned most people from delivering voted postal ballots to the post office or to an election administration center. Evidence strongly showed that law had a particular severe burden on Native Americans living in the very remote northeast corner of Arizona. The other law banned people from submitting provisional ballots on election day in precincts other than their home precincts.

The Republican appointees on the U.S. Supreme Court upheld the laws and ruled that Section Two of the Voting Rights Act, which bans election laws that put an unequal burden on racial and ethnic minorities, does not prohibit laws like that. Because this case was not a constitutional case, but a case in which the court was interpreting federal law, Congress is free, if it wishes, to amend the law and make it clear that such laws are barred.

The same day the court decision came down, Congressman Mondaire Jones (D-New York) introduced HR 4298, to amend the law so that it more clearly applies to laws such as these two Arizona laws. Thanks to Thomas Jones for the news about HR 4298. The text of the bill is not yet on the congressional website.

On July 2, the New Hampshire Supreme Court unanimously struck down a law passed in 2018 that makes it more difficult to register to vote. New Hampshire Democratic Party v Secretary of State, 2020-0252. Here is the 19-page opinion.

On July 2, the Eighth Circuit ruled that the Arkansas ballot access lawsuit Whitfield v Thurston, 20-2309, is moot. This is the case filed by independent U.S. Senate candidate Dan Whitfield in 2020. He needed 10,000 signatures and was unable to get them because of the covid health crisis. He also challenged the May 1 deadline. The U.S. District Court had upheld the law and had refused any relief.

The Eighth Circuit says the case is moot. Here is the 5-page opinion. It says that if Whitfield had alleged he wanted to be an independent candidate in a future election, it would not have been moot.

In the past ballot access constitutional cases have never been held moot just because the election was over, whether the candidate expected to run in a future election or not. The opinion acknowledges this, but says the U.S. Supreme Court has changed that old understanding, and says the plaintiff must show a personal future impact. However, none of the U.S. Supreme Court precedents cited by today’s Eighth Circuit are ballot access cases; instead they are campaign finance cases.

The new mootness rule discriminates against independent candidates, relative to minor parties. Minor parties are always assumed to be interested in the next election, but independent candidates are not. Thanks to Derek Muller for the link.