November 28, 2022

A man walks past the barbed wire and security fences that surround the U.S. Supreme Court in Washington on January 26, 2021.

Al Drago | Reuters

Thanks to the unsubstantiated claim by former President Donald Trump of widespread fraud in the 2020 elections, a tide of new electoral law is looming, aimed at tightening voting procedures. Many of these laws will undoubtedly be challenged in court for restricting the voting rights of blacks and other minorities.

During the Supreme Court wrangling over what standard will apply to the courts’ review of these cases, the judges on Tuesday give off a lot of warmth but little light and offer a few different possible tests of whether these measures will survive or fail. In particular, it was about how to judge laws that appear neutral at first glance, but which restrict minority voters when they are implemented.

The court was considering an appeal by Arizona Republicans against a federal appeals court ruling that found two state measures that disproportionately affected minority voters were illegal under Section 2 of the Suffrage Act. One policy hit the votes of voters cast in the wrong district on election day. Another banned collection of third party votes sometimes called ballot harvest.

Michael Carvin, an attorney for the Arizona GOP, one of four parties who argued the case, argued that the only thing that should matter is whether the laws offer equal opportunities for all. Whether socio-economic factors contribute to minorities “taking advantage of this opportunity” is irrelevant.

On the other hand, said Jessica Amunson, who argued on behalf of the Arizona Democratic Secretary of State Katie Hobbs, that the courts need to examine the “facts on the ground”.

Arizona Republican Attorney General Mark Brnovich won the case in a U.S. district court after the Democratic National Committee filed a lawsuit in 2016. However, the 9th US Court of Appeals ruled in favor of the Democrats on appeal.

Amunson and attorney Bruce Spiva, who spoke out for the DNC, said minority groups in Arizona were twice as likely to cast their ballots due to state policies outside the county. Native American and Hispanic voters were also affected by poor postal service, low car ownership rates and other factors that made them more dependent on friends and neighbors to deliver their ballots for them.

Division according to party-political standards

The case appeared to split judges on partisan lines, with the court’s six Republican candidates showing more sympathy for a narrow reading of Section 2. At the end of two hours of reasoning by phone as a precaution against the Covid-19 pandemic, it was not clear where they would draw the line.

“As for me, your position will make any voting rule vulnerable to Section 2 attacks,” Judge Samuel Alito, a representative for former President George W. Bush, told Spiva.

“Overall, people who are poor and less well educated will find it more difficult to adhere to nearly every voting rule than people who are wealthier and who have benefited from more education,” said Alito.

Judge Brett Kavanaugh, a Trump-appointed representative, said Section 2 language was “elusive,” which was the result of a compromise reached in 1982 on its language.

That year, Congress updated the 1965 Suffrage Act to stipulate that there was no need to demonstrate that an electoral law was intended to discriminate in order to invalidate it. However, the compromise required the courts to take into account “the entirety of the circumstances”, including whether minority groups had equal access to elections under the law.

Kavanaugh said the outcome of the compromise was “a kind of gray area between a pure result and a pure opportunity”. He suggested that the courts weigh heavily whether there are similar laws on the books in other states, especially those without a legacy of discrimination.

How judges address the scope of Section 2 of the Voting Rights Act has grown in importance in the years since the Panel put down another provision of the landmark law in the Shelby County v. Holder case in 2013.

Prior to Shelby County, states and counties with a history of discrimination against minority groups were required to obtain federal approval for new voting actions. In contrast, according to Section 2 of the Voting Rights Act, plaintiffs can only contest laws once they are in force.

In 2011, Arizona asked the Justice Department for approval of an earlier version of its ban on third party collection, but withdrew its application after the agency requested more information about the impact on minority voters.

The court’s three liberal advocates seemed more amenable to arguments that courts should consider socio-economic factors that could contribute to whether a law turns out to be discriminatory.

At the beginning of the argument, for example, Judge Stephen Breyer, a representative of former President Bill Clinton, pressed Carvin whether his opportunity test would even allow a literacy test. Carvin didn’t say it.

Spiva later said on behalf of the Democrats that a literacy test was technically similar.

Discrimination in Education

“The problem is that discrimination based on education and opportunity has different effects on ethnic minorities,” he said.

Justice Sonia Sotomayor said she disagreed with carefully scrutinizing whether laws only allow equality of opportunity.

“You always talk about equal opportunities. But I don’t see that anywhere in the statute. Aren’t you rewriting the statute?” she asked Carvin.

Another issue the court grappled with was how large the apparent differences in voter turnout must be before a law crosses the threshold and becomes illegal. In an exchange with Thomas, Amunson admitted that less than one percent of the minority votes were dropped because of Arizona policies against voting in the wrong district.

Sometimes the exact boundaries of what each side required seemed jumbled.

Under pressure from Alito whether, for example, a law requiring voters to fill out a bubble could be illegal if statistical analysis showed discrepancies in the percentage of white voters versus minority voters who did so correctly, Amunson said more should be known must.

“You have to have a functional view of the political process,” she said, looking at how that affects voters “on the ground”.

“That’s a lot of words. I really don’t understand what they mean,” said Alito.

“The longer this argument goes on, the less I understand how the parties’ standards differ,” said Judge Elena Kagan, an appointee for former President Barack Obama, who used her time during the arguments to hypothesize Point.

Trump’s Justice Department spoke out on behalf of Brnovich and the state’s Republican Party in this case, and drafted a supporting brief in December.

In a letter last month, the Justice Department informed judges that it had re-examined the case after President Joe Biden took office. The agency said it no longer supports Brnovich’s interpretation of the voting rights law, but continues to believe the two Arizona directives are lawful.

Competitive disadvantage

The partisan dynamic of the case became unusually clear during an exchange between Judge Amy Coney Barrett, a Trump-appointed person and the bank’s most recent addition, and Carvin. Barrett asked Carvin why the Republicans even stand, or if they could bring the case forward.

Carvin said Republicans had an interest in the case because invalidating Arizona’s laws would place them at a “competitive disadvantage” compared to Democrats in elections.

In another exchange between Judge Neil Gorsuch and Amunson, the Trump appointee appeared to have been moved by accusations popular with Republicans that third party ballot collection leads to fraud.

Amunson said that there had been no such case of fraud in Arizona in decades, and that separate law made collecting fraudulent ballots a criminal offense.

“It doesn’t have to happen in Arizona. How many states does it have to happen in? How many elections?” Asked Gorsuch.

A decision is expected by the end of June. The cases are officially known as Brnovich v Democratic National Committee, No. 19–1257 and Arizona Republican Party v DNC, No. 19–1258.