Justices Indicate Arizona Overreached, The Voting Rights Act May Survive For Another Day

The headlines from Supreme Court reporters for the Supreme Court arguments of two Arizona cases on Section 2 of the Voting Rights Act on Tuesday appear foreboding:

Amy Howe at SCOTUSblog, Majority appears poised to uphold Arizona voting rules.

Nina Totenberg at NPR, Supreme Court Seems Ready To Uphold Restrictive Voting Laws.

Adam Liptak at the New York Times, Supreme Court Seems Ready to Sustain Arizona Voting Limits.

Robert Barnes at the Washington Post, Supreme Court appears to favor upholding voting laws lower court found unfair to minorities.

But there are contrarian views after what the Arizona Republican Party’s attorney freely admitted to during oral argument. In Supreme Court, GOP attorney defends voting restrictions by saying they help Republicans win:

An attorney for Arizona’s Republican Party offered a blunt reason for his presence defending the state’s voting restrictions before the Supreme Court on Tuesday: The measures disadvantage Democrats.

“What’s the interest of the Arizona RNC in keeping, say, the out-of-precinct ballot disqualification rules on the books?” Justice Amy Coney Barrett asked, referencing legal standing.

He actually said the quiet part out loud, as if proud of it:

“Because it puts us at a competitive disadvantage relative to Democrats,” said Michael Carvin, the lawyer defending the state’s restrictions. “Politics is a zero-sum game. And every extra vote they get through unlawful interpretation of Section 2 hurts us, it’s the difference between winning an election 50-49 and losing an election 51 to 50.”

So it has nothing to do with “election integrity,” as Republicans falsely assert, but it it is about disenfranchising as many Democratic voters as possible to gain a competitive edge. “Politics is a zero-sum game.” That could be fatal to your case, genius.

Listen to the oral argument at C-Span. (appx. 1:55 running time).

Supreme Court reporter Ian Millhiser, who in a preview of the oral argument wrote, Two Supreme Court cases could destroy what remains of the Voting Rights Act, had a change of heart after this faux pas at oral argument. The Voting Rights Act had a surprisingly good day at the Supreme Court:

Two separate teams of Republican lawyers looked at Brnovich v. Democratic National Committee, a case the Supreme Court heard on Tuesday, and saw an opportunity to stick a knife in the Voting Rights Act — potentially eliminating any meaningful safeguards against racist voting laws in the process.

The case involves two Arizona laws that make it harder for some voters to cast a ballot. One law requires election officials to discard ballots that are cast in the wrong precinct. The second prohibits many forms of “ballot collection,” where a voter gives their absentee ballot to another person, who then delivers that ballot to the election office so it can be counted.

Michael Carvin, a lawyer for the Arizona Republican Party, argued in his brief that states have broad power to enact laws restricting the “time, place, or manner” where voters cast their ballots — though he rapidly backpedaled after Justice Elena Kagan suggested that this proposed rule would allow a state to require all voters to cast their ballots at, say, country clubs.

Arizona’s Republican Attorney General Mark Brnovich, meanwhile, suggested in his brief that states that wish to disenfranchise voters of color may take advantage of existing demographic disparities to target racial minorities, so long as the state does not create those disparities. As Brnovich argued, the restriction on out-of-precinct voting should be upheld because “the fact that a ballot cast by a voter outside of his or her assigned precinct is discarded does not cause minorities to vote out-of-precinct disproportionately.”

Taken to its logical extreme, this proposed rule could permit truly outlandish attempts to restrict voting. Suppose that Arizona had passed a law limiting the franchise to country music fans, on the theory that white voters are more likely to listen to country music than voters of color. Under Brnovich’s standard, that law might not violate the Voting Rights Act’s protections against race discrimination because the state did not cause non-white voters to prefer other genres of music.

Both Carvin and Brnovich’s briefs, in other words, proposed reading a key prong of the Voting Rights Act so narrowly that it would become virtually meaningless. States would gain a broad power to disenfranchise voters of color, so long as they were somewhat clever about how they did so.

By the end of Tuesday’s arguments in Brnovich, however, it appeared unlikely that these attempts to neutralize the Voting Rights Act will prevail. There may very well be five votes — or even more than five votes — to uphold the two Arizona laws at issue in Brnovich. But several key justices appeared reluctant to go as far as Carvin and Brnovich asked them to go.

Chief Justice John Roberts, and Justices Clarence Thomas, Samuel Alito, Brett Kavanaugh, and Amy Coney Barrett — all conservatives — each expressed concerns that Carvin’s proposed test either wasn’t workable or contradicted the text of the Voting Rights Act. After Carvin conceded that a state could not require every ballot to be cast at a country club, Barrett warned him that his argument “has some contradictions in it.”

Brnovich ran into similar trouble when he stepped up to the podium. Roberts, for example, appeared unconvinced that a key prong of Brnovich’s argument could be squared with the text of the Voting Rights Act. Kavanaugh suggested that a state law might violate the Voting Rights Act if it imposes unnecessary burdens on racial minorities. Barrett suggested that Brnovich’s approach would make it too easy for a state to disenfranchise racial minorities, so long as it enacted a series of laws that each disenfranchised a relatively small group of voters.

AG Brnovich fared no better with the court’s liberal justices.Justices Sotomayor, Kagan and Breyer Had No Time for Republican Justifications of Voter Suppression. Justice Sotomayor humiliated him for refusing to answer her questions: “Counsel, why is that question is so hard to answer? Yes or no?” snapped an obviously annoyed Sotomayor.

None of this means that the Arizona laws are likely to be struck down — many of the conservative justices appeared to spend the latter half of the argument trying to devise a legal standard that would allow them to uphold the laws. But the mere fact that they felt it necessary to come up with a new legal standard is a somewhat optimistic sign for voting rights, as it suggests that the Court is not ready to strangle the Voting Rights Act in the way proposed by Carvin’s or Brnovich’s brief.

These Republican lawyers simply asked for too much. [Overreached.]

So what happens now?

Carvin’s brief took the bold position that “race-neutral regulations of the where, when, and how of voting do not implicate § 2” — though the brief does suggest at some points that only “ordinary” restrictions on “the time, place, or manner of voting” are permissible. But several justices appeared to view this proposed test as unworkable.

Kagan, for example, spent her questioning time with Carvin peppering him with questions about hypothetical voting restrictions — such as whether a state could require everyone to vote at a country club with a history of racist policies, or whether a state could require everyone to vote between 10 am and 2 pm on a particular day. And Carvin quickly started backtracking from the position he took in his brief when confronted with Kagan’s hypotheticals.

Even Carvin appeared to realize that it would be untenable to require every voter to cast their ballot at a country club.

Kavanaugh, meanwhile, homed in on Carvin’s suggestion that only “ordinary” voting restrictions may be allowed — wondering how a judge is supposed to distinguish an “ordinary” restriction from an “extraordinary” one.

Brnovich received a somewhat less chilly reception from the justices than Carvin did, but he still faced a barrage of skeptical questions. A key prong of Brnovich’s argument, for example, is that a plaintiff can only prevail under the results test if they can show that a challenged law “causes a substantial disparity in minority voters’ opportunity to vote and to elect their preferred candidates.” But that argument prompted Roberts to wonder where Brnovich is able to find this “substantial disparity” requirement in the Voting Rights Act’s text.

By the time Jessica Ring Amunson and Bruce Spiva, two of the lawyers challenging Arizona’s election laws, began their arguments, the Court’s conservatives appeared more interested in coming up with a new framework that would allow them to uphold Arizona’s laws, then they were in applying the scorched-earth frameworks proposed by Carvin and Brnovich.

Several justices repeatedly brought up the 2005 Carter-Baker Commission Report, a report produced by a commission chaired by former President Jimmy Carter and former Secretary of State James Baker, which, as Roberts noted, suggested that states should have some safeguards against fraud in “ballot harvesting.” Ballot harvesting is a pejorative term for a practice in which absentee voters give their ballots to a third party, who delivers that ballot to a polling place.

According to Kavanaugh, it is “a matter of common sense” that a voting restriction supported by such a commission probably isn’t a racist attempt to restrict minority voting.

Similarly, Kavanaugh also suggested that voting laws that are “commonplace” in states that do not have a history of racist voting restrictions are likely permissible under the Voting Rights Act — reasoning that could save Arizona’s restrictions on out-of-precinct voting. According to Kavanaugh, similar restrictions exist in about two dozen states.

The bottom line is that there’s a good chance that Arizona’s restrictions on ballot collection and out-of-precinct voting will be upheld. And there’s even a good chance that the Court will take a significant bite out of the Voting Rights Act in Brnovich.

But going by today’s arguments, at least, the full-scale attack on the Act proposed by Carvin and Brnovich seems less likely. Such an attack may still come in a future case, but Carvin and Brnovich’s ham-handed lawyering left the justices little to work with if they hope to dismantle the results test right now.

Supreme Court reporter Mark Joseph Stern at Slate takes a similar view. Not All the Supreme Court’s Conservatives May Be Ready to Kill the Voting Rights Act (excerpt):

As [the justices’] questions suggest, it’s pretty clear that Gorsuch and Alito are ready to kneecap the VRA immediately. Thomas, a longtime foe of the law, is also surely happy to strike now. Yet Chief Justice John Roberts, along with Justices Brett Kavanaugh and Amy Coney Barrett, did not appear ready to obliterate the law just yet. These three justices each mused about middle grounds that would allow that court to uphold Arizona’s laws without doing immense damage to the results test in future cases.

Kavanaugh, in particular, seemed supportive of some test that rests on “common sense.” He proposed asking courts to examine whether “a rule is commonplace in other states” and whether it has “a good justification.”

* * *

[T]he 2005 Carter-Baker Commission Report, “which condemned vote by mail and praised voter ID laws, was widely criticized among voting rights advocates at the time for buying into Republican myths about fraud. So Kavanaugh’s test would greenlight voting restrictions that civil rights advocates consider useless, harmful, and unjust.”

And yet Kavanaugh’s test may be the best progressives can hope for. A decision allowing voting restrictions as long as they’re common and sound commonsensical would dent the VRA—especially since states are currently rushing to crack down on voting rights, expanding the number of racist laws that meet Kavanaugh’s standard. Still, his approach might leave some room for lower courts to invalidate egregiously racist voter suppression laws, and that’s more than a lot of liberals expected from this Supreme Court. There is a larger battle over the VRA looming in the background of Brnovich, one that questions the very constitutionality of the results test. The court did not squarely consider that issue in Brnovich, but it will eventually have to confront it. Once that happens, Tuesday’s case may be remembered, at most, as an early skirmish in the broader war over the remains of the VRA.

Of course, the answer to this continuing assault on the Voting Rights Act is for Congress to enact the John Lewis Voting Rights Advancement Act with a provision stripping Article III courts of jurisdiction to review the statute to safeguard the fundamental constitutional right to vote from right-wing reactionary judge’s attempts to preserve a tyranny of white Republican minority rule in an increasingly diverse America. Congress Must Enact New Voting Rights Laws And Safeguard The Fundamental Right To Vote From A Reactionary SCOTUS.