In the same week the U.S. Supreme Court upheld Arizona laws banning third-party ballot collection and the counting of ballots cast in the wrong precinct, Colorado Gov. Jared Polis, a Democrat, signed a very different bill into law.
House Bill 21-1011 is supposed to make voting easier for people whose primary language is not English. The bill requires the secretary of state’s office, as well as county clerk and recorders from certain Colorado counties, to establish a multilingual voting hotline. The hotline must provide voters with access to ballot information in every language other than English used by at least 2,000 citizens 18 and older, or 2.5% of the voting-eligible population, who can’t speak English very well.
Similarly, state and local elections must feature sample ballots in any language that qualifies, with translated ballots for in-person voting available upon request. The bill’s requirements go into effect starting with the November 2022 election.
The new law represents just one way in which Colorado, like other Democratic-majority states, is moving in the opposite direction of Republican-led states that are making it harder for people to vote. The rift between voting practices in red and blue states seems sure to grow, thanks to the Supreme Court decision regarding Arizona. That decision, experts say, will make it much harder to prove that restrictions on voting violate federal law.
Voting Rights Act enforcement power weakened
The Arizona case, in which a majority of Supreme Court justices sided with Republican state officials over voting-rights groups, marked a significant loss for Democrats and civil rights advocates. The ruling showed the court will probably be unwilling to use the Voting Rights Act to strike down restrictive voting laws passed by Republican state legislatures in recent months.
The Voting Rights Act, first passed in 1965, aimed to ensure states didn’t pass laws that made it disproportionately harder for Black people, Indigenous people and people of color to vote. The high court’s decision substantially weakens that law’s remaining power, according to experts.
On July 1, a 6-3 majority of justices upheld Arizona’s ban on third-party ballot collection, often referred to by critics as “ballot harvesting.” Those critics, most often Republicans, say the practice of collecting ballots and placing them in drop boxes on behalf of voters opens up opportunities for election fraud. The Democratic National Committee sued to overturn the 2016 law, arguing that it violated the Voting Rights Act by discriminating against people of color, because they are less likely to have reliable access to postal services.
The same six justices simultaneously upheld an Arizona law that prohibited the counting of ballots cast in the wrong precinct.
In his opinion, written on behalf of the conservative Supreme Court majority, Justice Samuel Alito wrote that the plaintiffs hadn’t adequately demonstrated disparate impacts of the laws on minority voters.“It’s basically so difficult that nobody’s ever going to be able to provide enough evidence to win a case.” — Doug Spencer, of the University of Connecticut
“I don’t think that very many people viewed Arizona’s law as particularly bad (for voting rights),” acknowledged Doug Spencer, a professor of law and public policy at the University of Connecticut. “Even those of us that — like, I’m a civil rights lawyer. Before I became a professor I sued people for violating the Voting Rights Act. And the Arizona law was really, frankly, just not that bad of a law.”
The main reason the decision troubled voting rights advocates, Spencer said: In his opinion, Alito laid out a five-part test that courts will have to apply to future state-passed voting restrictions to determine whether they violate federal law.
“This five-part test is very stingy,” Spencer said. “It’s basically so difficult that nobody’s ever going to be able to provide enough evidence to win a case. Because … you basically have to have hard evidence that somebody intended to discriminate against a Black or Hispanic voter, and that’s very difficult.”
That’s despite the fact that in 1982, Congress amended the Voting Rights Act to explicitly say that state voting systems must be “equally open” for people of all races. The federal law was amended to make sure that courts didn’t need proof of discriminatory intent to strike down state laws.
Alito, however, interpreted “equally open” to mean that today’s voting systems must be open to people of all races — relative to how open they were in 1982.
According to that interpretation, a future Colorado law that banned voting by mail for people who lived in urban areas would pass muster under the Voting Rights Act, Spencer said. That’s despite the obvious disparate impacts such a law would have on Black people, who are more likely than white people to live in cities.
“In 1982 … these groups didn’t have the opportunity to vote by mail, and as long as you’re not making it worse than in 1982, you can basically do whatever you want,” he explained. “That opened the door for states to roll back all kinds of voting rights. And so that’s why, I think, there’s so much attention and controversy about the opinion.”
Colorado laws move in opposite direction
This year, Democrats controlling the state House, Senate and governor’s office passed legislation that goes in the opposite direction from states like Arizona, Georgia and Florida, which recently imposed new restrictions on voting.
While those red-leaning states appeared likely to test the limits of what’s left of the Voting Rights Act, Colorado and other blue states are going beyond what the VRA requires.
Take HB-1011, for example. Under current federal requirements — included in the 1965 Voting Rights Act passed by Congress — only Conejos, Costilla, Denver and Saguache counties must provide ballot translation in Spanish. Montezuma County must provide translation in Ute. The Voting Rights Act rule kicks in when at least 10,000 people, who can’t speak English well, speak the same language in a given county or state. Translation services must also be provided for a group of non-English speakers comprising 5% of a county’s population or an American Indian reservation’s population.
But HB-1011 will soon require translation in counties with groups of at least 2,000 people over 18 who speak the same language and aren’t fluent in English. This lower threshold will lead to new translation services in several Colorado counties. Sponsors of HB-1011 include Rep. Yadira Caraveo, a Democrat from Thornton, along with Sens. Julie Gonzales, a Democrat from Denver, and Dominick Moreno, a Commerce City Democrat.
Secretary of State Jena Griswold — a Democrat who joined Polis for the signing ceremony — praised HB-1011 in an emailed statement Monday.
“Part of what makes Colorado’s elections the country’s gold standard is our dedication to continual improvement,” Griswold said. “While other states are rolling back voting access, Colorado reaches across party lines to further strengthen our election system.”
HB-1011 won the support of four Republican lawmakers in the Senate, where it passed on a vote of 24 to 11. In the House, Rep. Richard Holtorf of Akron — who is fluent in Spanish — was the sole Republican to vote for the bill. Given Democrats’ large majority, the bill still easily passed in that chamber, on a vote of 40 to 23.
In a Thursday statement, Democrats in the Colorado House used political language to sharply criticize the Supreme Court’s recent move.
“The conservative majority on the Supreme Court handed down a decision that will allow states to make it harder for their citizens to exercise their right to vote and which will have a disproportionate impact on people of color,” Caraveo said in the statement. “Colorado House Democrats will continue to defend the rights of voters and improve the security and accessibility of our elections, and we call on Congress to take action to address this critical threat to our democracy.”
Last session Colorado lawmakers also passed Senate Bill 21-250, which tweaks various aspects of the state’s election procedures. One section of the legislation that proponents say will improve access allows Coloradans to register to vote online using a Social Security number. Colorado citizens can already use a state driver’s license or ID card to register online.
Spencer said the purple states — those where one party doesn’t have a clear upper hand — will be the ones to watch in the aftermath of the Supreme Court’s Thursday decision in Brnovich v. Democratic National Committee.
If in states that may be starting to lean blue, but where Republicans in power seek to restrict voting from certain groups that don’t favor the party, “then the rest of the country will bear that effect by not having the outcome that actually reflects the will of the people,” Spencer said. The more that state voting laws determine who holds power in Congress and the White House, the more people will notice.
“Voting is a fundamental right, and everybody should have the right to vote who’s eligible,” he argued. “The politicians are getting to choose who their voters are, instead of the voters getting to choose who their politicians are, and that’s just a backwards political system.”
Jeremy Duda of the Arizona Mirror contributed to this report.