Law & Principles

Lankford, Inhofe, defend election-security laws

June 4, 2020

Ray Carter

Oklahoma’s two U.S. senators—James Lankford of Oklahoma City and Jim Inhofe of Tulsa—are among a group of lawmakers who have filed a legal brief urging the U.S. Supreme Court to take up the appeal of a lower-court decision that threatens to roll back some of Oklahoma’s election-security laws if it is not overturned.

“Balancing voter access with election security is a crucial task that our Founders left almost entirely to the states. Laws that help prevent undue election influence or voter manipulation should be implemented wherever necessary to ensure free and fair elections. We should not accept Russian or domestic election tampering,” said Lankford. “The Voting Rights Act sought to rightfully correct malicious and discriminatory election restrictions around the country, not to interfere with states’ abilities to enact time, place, and manner voting laws that prevent potential fraud. Laws that prevent fraud-prone ballot harvesting help states like Oklahoma protect our elections. The Supreme Court should hear this case and clarify the constitutional limits of the Voting Rights Act.”

Lankford and Inhofe—joined by Senate colleagues Ted Cruz, R-Texas; Marsha Blackburn, R-Tenn.; John Cornyn, R-Texas; Tom Cotton, R-Ark.; and Mike Lee, R-Utah—submitted a joint amicus brief asking the Supreme Court of the United States to hear the case of DNC v. Hobbs, arguing a lower court decision jeopardizes scores of neutral voting laws that are designed to prevent and deter election fraud.

The case involves challenges to two Arizona election laws, including a law criminalizing ballot-harvesting, which is a practice strongly associated with vote fraud.

While a district court upheld the two laws, as well as a Ninth Circuit panel, when the Ninth Circuit took the case en banc, it struck down both laws.

The senators’ brief argues the Ninth Circuit’s ruling was based on an atextual and ahistorical reading of the federal Voting Rights Act. The brief says the senators are “concerned about an aggressive wave of litigation aimed at massively expanding Section 2 of the Voting Rights Act (VRA §2) in contravention of its plain text.” If those provisions of the VRA are “incorrectly interpreted,” the senators warn it will “jeopardize neutral time, place, and manner voting laws that States have adopted to deter and prevent voter fraud.”

The senators’ brief notes that various interest groups have filed numerous lawsuits in recent years seeking to invalidate voting laws regulating absentee voting, precinct voting, early voting, voter ID requirements, election observer zones, voter registration requirements, durational residency requirements, and straight-ticket voting.

The senators say those “election-integrity provisions are entirely unlike the draconian, invidious voting restrictions the original VRA was designed to address. And they do not deny anyone an equal ‘opportunity’ to vote.”

The Voting Rights Act was originally enacted to prevent states from imposing racially discriminatory laws that targeted black citizens and prevented them from voting.

The brief discusses at length the legislative record from the time that Section 2 of the Voting Rights Act was last addressed in a major way by Congress in the early 1980s. The senators say the legislative shows that section of the law “was not designed to target election-integrity provisions that have a mere disparate impact on different racial groups.”

“Ultimately, the plain text of VRA §2 shows Congress created an equal ‘opportunity’ law—not a disparate impact or ‘discriminatory effects’ test requiring racial proportionality,” the senators’ brief states.

The senators note that restrictions on ballot harvesting—a practice in which political operatives are allowed to collect and submit numerous voters’ absentee or mail-in ballots—were endorsed by the bipartisan Commission on Federal Election Reform led by former President Jimmy Carter and James A. Baker, III. That commission concluded absentee ballots “remain the largest source of potential voter fraud” and urged officials to reduce the likelihood of fraud by “prohibiting ‘third-party’ organizations, candidates, and political party activists from handling absentee ballots.”

Ballot harvesting was recently tied to major fraud in a congressional election in North Carolina. Election officials in that state were forced to toss out the results and order a new election.

Such concerns led the Oklahoma Legislature to pass a law this year that explicitly makes ballot harvesting illegal in Oklahoma.

Senate Bill 1779 states, “Absentee ballot harvesting shall be unlawful at any election conducted by a county election board, the State Election Board or any political subdivision of this state.” The legislation defines “absentee ballot harvesting” to include “collecting or obtaining an absentee ballot from another person with the intent to submit, transmit or return the ballot to election officials on behalf of that person.”

SB 1779 received overwhelming bipartisan support and passed the Oklahoma House of Representatives on an 88-1 vote and passed 43-0 in the Senate before being signed into law by Gov. Kevin Stitt.

The senators’ brief also notes that Arizona’s precinct-voting requirement, which requires that voters cast their ballot in the precinct in which they are registered, is similar to the laws of 26 other states.

“For both Arizona laws at issue, the court erroneously equated a disparate impact on ‘convenience’—that higher rates of minority voters cast out-of-precinct votes or availed themselves of ballot collection—with a ‘denial or abridgement of the right to vote,’” the senators’ brief states.

While the Ninth Circuit concluded that disparate rates of out-of-precinct voting “result in a disparate burden on minority voters,” the actual numbers undermine that conclusion, the senators argue. Their brief notes that in 2016, approximately 1 percent of Hispanic, African-American, and Native American voters cast an out-of-precinct ballot, compared to approximately 0.5 percent of “nonminority” voters.