What kind of burden would that be? The court went out of its way to note that there was virtually no early or no-excuse mail absentee voting at the time. That can lead one to infer that the court may be fairly likely to accept restrictions on mail and early voting. From this point of view, convenience voting is a bonus option for voters, and any restriction would still leave voters less burdened than they were 40 years ago.
The court refrained from deciding “whether adherence to, or a return to, a 1982 framework is necessarily lawful.” Perhaps it would not be, since nonwhite voters now disproportionately use methods intended to make voting more convenient, like early voting. And many states have scaled back their traditional Election Day voting options as demand has declined; simply eliminating convenience voting would often leave many voters with fewer options than they had 40 years ago. On the other hand, there’s not much evidence that expanded voting options have narrowed racial disparities in turnout.
Wherever the court draws the line, it’s hard to avoid the conclusion that new ways to make voting more convenient will not be vigorously protected by the court.
Novel restrictions may be unprotected
At the same time, the court may look askance at novel regulations that impose burdens beyond what existed in 1982. Strict photo identification requirements, for instance, did not exist back then. And there was a certain level of basic access, in terms of the availability of in-person precincts, registration and voting hours, which the court would presumably be likely to protect.
In oral arguments, Justice Elena Kagan asked whether it would be legal for a state to put all of its polling places in country clubs, where Black voters would need to travel farther than whites and would fear discrimination and experience a high level of discomfort. A 1982 standard, whatever its merits, would offer some level of protections against that kind of extreme possibility, even as it may allow rollbacks in mail and early voting.
Size matters
With the court resigned to some inevitable racial disparities in voting, successful voting rights litigation may entail finding a fairly large racial disparity.
How large? Well, probably larger or clearer than in the Arizona case.
The court believed that the requirement to vote in your own precinct would affect 1 percent of nonwhite in-person voters and .5 percent of non-Hispanic white in-person voters, or a disparity of about .5 percentage points. Even these figures overstate the share of voters who would be affected by the provision, as the majority of Arizonans cast ballots by mail, not in-person.
