Gov. Kristi Noem has filed a brief in an Arizona case before the U.S. Supreme Court that's related to the Voting Rights Act of 1965.
The 9th Circuit Court of Appeals ruled that Arizona’s Republican legislators violated the act because they were motivated by suppressing minorities from voting when they passed a 2016 law banning ballot collection/harvesting and changed rules related to out-of-precinct voting. The court also found that minority voting numbers were impacted once the law went into effect.
Arizona Attorney General Mark Brnovich and Noem’s lawyers say the law is about election integrity, not discrimination.
The 9th Circuit overstepped the Constitution and requirements of the Voting Rights Act by ruling that lawmakers don’t just violate the act if they intentionally discriminate but if voting laws result in “minor statistical differences in election turnout," Noem's brief says.
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States need the “ability to enforce nondiscriminatory regulations designed to protect the integrity of their elections” so the Supreme Court should rule that the act only prohibits “election laws that are motivated by purposeful discrimination and that deny or abridge the right to vote by substantially burdening that right beyond the ordinary burdens of voting," the filing says.
“The 2020 election has shaken the American people’s faith in the integrity of the electoral process,” Noem said in a Thursday news release. “Fortunately, the Brnovich case presents the Supreme Court with a fantastic opportunity to restore public trust in American elections.
“In South Dakota, our election system is fair and transparent, and all states should be held to the same standard,” she said. “Our hope is the Supreme Court will set a clear precedent that upholds the powers of states to enforce neutral, non-discriminatory voting rules that apply fairly to all by supporting the petitioners.”
The Arizona lawsuit is not specifically related to the 2020 election and does not ask for votes to be thrown out like the Texas lawsuit the South Dakota attorney general signed on to earlier this week.
Ian Fury, Noem’s spokesman, declined to explain why Noem decided to intervene in this specific case and how the various outcomes of the case would directly impact South Dakotans.
“I’ll let the release and the brief itself speak to these,” he said.
Noem’s statement and brief talk about the importance of a fair, nondiscriminatory election system and how all states will benefit from judicial clarity on the requirements of the Civil Rights Act. However, they do not outline how the possible outcomes of the case would impact South Dakota’s laws or people.
Noem’s 41-page brief was prepared at no cost by the DC-based Schaerr Jaffe law firm, Fury said.
The lawsuit
What follows is from an Oct. 2 article by Arizona reporter Howard Fischer.
The lawsuit stems from a 2016 Arizona law that banned ballot collection, when a third party brings voters signed and filled-out absentee ballots to the polls. The law says only postal and election workers, family members, roommates and caregivers can deliver other people's ballots.
The law also said that if someone votes in the wrong precinct, their entire ballot — including ballots cast for statewide office — must be thrown out.
Neither Brnovich nor Republicans who supported the law provided evidence of ballot collection-related fraud, but Brnovich said it's irrelevant, that the case is about preventing fraud, tampering and intimidation.
The Arizona and national Democratic parties sued, arguing that the law violated the Voting Rights Act since minorities are more likely to rely on the help of third-party ballot collectors and be impacted by the precinct rule.
A federal Arizona judge and a three-judge panel at the 9th Circuit said the law was legal and didn’t violate the Voting Rights Act.
The Democratic parties asked a larger panel to hear the case and in a divided decision, the majority of judges “concluded that what actually was behind the law was a desire by the GOP majority in the legislature to suppress minority votes,” Fischer wrote.
The judges also said that if people vote in the wrong precinct officials “should count the votes that would have been legal had the person been at the right place, such as for a statewide office like governor.”
Brnovich then petitioned to the Supreme Court, which agreed in October to hear the case.
Brnovich says the law is not about discrimination and “pointed to the 2005 recommendations of the Commission on Federal Elections Reform, co-chaired by former President Jimmy Carter, a Democrat, that said states should prohibit outsiders from handling absentee ballots of others,” Fischer wrote.
Like Arizona, South Dakota also discards the entire ballot when someone votes at the wrong precinct, according to Kea Warne, deputy secretary of state. Unlike Arizona, South Dakota does not ban third-party ballot collection. She said she’s not aware of any organizations that do this in South Dakota.
Warne said she’s not aware of any lawsuits or bills that have challenged these laws in South Dakota.
Fury declined to answer when asked if Noem is opposed to South Dakota's precinct and third-party collection laws.
