Earlier this week the Supreme Court issued an opinion in two cases: BRNOVICH V. DEMOCRATIC NATIONAL COMMITTEE and ARIZONA REPUBLICAN PARTY V. DEMOCRATIC NATIONAL COMMITTEE. The opinions from the two cases were consolidated under the Brnovich case. Justice Samuel Alito issued the opinion of the court, with a consenting opinion by Justice Neil Gorsuch, and a dissent by Justice Elana Kagan. The matter at issue, as summarized by Alito was that: “First, in some counties, voters who choose to cast a ballot in person on election day must vote in their own precincts or else their ballots will not be counted. Second, mail-in ballots cannot be collected by anyone other than an election official, a mail carrier, or a voter’s family member, household member, or caregiver.” Brnovich v. Democratic National Committee, 594 U.S. ___ (2021) There are two key issues with Alito’s opinion that I will address in this editorial. The first is that Alito and Gorsuch both demonstrate willful ignorance of how the out of precinct ballot policy could be leveraged by dishonest local election administrators to engage in widespread election fraud. The head of a local board of elections who wanted to tilt an election in his or her party’s favor could impact election results by dragging their feet on the processing of voter registration and change of address forms for members of the opposing political party. Unless there was an investigation of election irregularities after the fact, an average voter who moved and reported to the precinct that would be correct for their new address would have no way of knowing that they were denied the right to vote by an unscrupulous elections administrator who intentionally mishandled their registration or change of address documents.

We already know this can impact House races because such activity has already been documented in the NY-22 House race where Trump loyalist Claudia Tenney beat out Democrat Anthony Brandisi by only 109 votes. The Justice Department is currently suing Oneida County, NY (a rural county in Upstate, NY where Trump beat Biden by 15%) for failure to process voter documents in a timely manner. Recent news reports indicate that there may have been nearly 2400 voter registration and change of address forms that were not properly processed in Oneida county alone. If Trump loyalists were to coordinate that kind of willful negligence on a state-wide basis in other states where elections are much closer than they were in New York State, it could easily impact state-wide elections such as Governor, Senate and Presidential races. The argument that Alito didn’t address the problem of out of district ballots being willfully mishandled because that’s not a Voting Rights issue, but a matter that would most likely be prosecuted under state election codes as well as 18 USC § 595 – Interference by administrative employees of Federal, State, or Territorial Governments, is not an acceptable argument to this author.

Another issue has to do with enforcement of Arizona voting laws on Native American Reservations. There has been a great deal of attention to how the Court’s ruling in Brnovich will affect Native Americans living on tribal lands, where many voters live in extremely remote areas with irregular mail service. Native American tribal lands are regarded as “distinct, independent political communities” Worcester v. Georgia, 1832 Ergo, the state of Arizona does not have standing to attempt to enforce laws regarding the handling of ballots on any tribal lands. As justice Neil Gorsuch cites in McGirt v. Oklahoma, “State courts generally have no jurisdiction to try Indians for conduct committed in “Indian country.” McGirt v. Oklahoma, 591 U.S. ___ (2020) & Negonsott v. Samuels, 507 U.S. 99, 102–103 (1993).” Any attempt by the state of Arizona to impose conditions for ballot handling on tribal lands would be an insult to tribal sovereignty, a violation of Federal and Native American treaties, and a violation of the Supremacy Clause of the US Constitution. Ergo, the state of Arizona is obliged, by the requirements of Federal Law and existing treaties with Native American tribes, to accept ballots collected on tribal lands as they are delivered. So long as those ballots are handled in accordance with Arizona state law once they leave the reservation and while they are in process of being delivered from tribal lands to state or county election officials, then Native American tribes are in compliance with Arizona law. The state has no authority to attempt to enforce any additional conditions on the handling of ballots initially collected on Native American tribal lands.

At this point we have no way of knowing whether Alito’s failure to address the two issues above should be ascribed to malintent, or simple judicial incompetence. Regardless of the cause, there is no question that the issue of willful mishandling of voter documents with intent to sway the outcome of an election, and improper attempts by states to impose conditions on the handling of ballots on tribal lands are both matters that need to be addressed by the courts.