New Justice Amy Coney Barrett, Chief Justice John Roberts, and Justice Brett Kavanaugh appear to have formed a moderately conservative bloc that could strike down Arizona’s voter suppression laws, judging from oral arguments on March 2 and prior cases the Justices have tried this term.
“Why use voting restrictions that burden minority voters disproportionately?” Roberts asked.
Tuesday’s case, Brnovich v. Democratic National Committee, involves voting rights established by the Voting Rights Act of 1965, and specifically the applicability of Section 2’s provision barring discrimination against minorities in state and local election laws in the wake of the Supreme Court decision in Shelby County v. Holder in 2013.
Shelby removed the Federal preclearance requirements mandating that states accused of racially-biased voting laws–including Arizona—receive Justice Department approval before changing election laws, or moving or closing polls, according to Sections 4(b) and 5 of the Voting Rights Act.
Tuesday’s consolidated cases deal with two of Arizona’s election policies; one law targeting ballot harvesting that was passed after Shelby before the 2016 elections and another policy banning out-of-precinct voting, also enacted before the 2016 election.
The Ninth Circuit allowed both laws to remain until after the 2020 election, even though the famously liberal court ruled the laws violated Section 2 of the Voting Rights Act.
Even with the ballot-harvesting and out-of-precinct laws in place, Joe Biden and Mark Kelly won their races.
Out-of-Precinct Voting
Out-of-precinct voting restrictions often make it impossible for Natives to vote, as election officials deliberately redraw boundaries for just that purpose.
The 9th Circuit Court of Appeals found both restrictions discriminated against minorities in violation of the 15th Amendment, which gives “all citizens” the right to vote.
A Test for Voter Suppression Cases
The Justices spent two hours via teleconference at 8 a.m. Arizona time. They were grappling to find a “results” test for ruling on voter suppression cases under Section 2 of the Voting Rights Act.
“Arizona has not denied anyone any voting opportunity of any kind. It’s not like a literacy test that denies you the right to vote,” argued state Republican Party attorney Michael Carvin.
Carvin pointed out that about 80 percent of Arizonans already cast their ballots by mail.
Justice Sonia Sotomayor retorted that many Native Americans in the state don’t get mail delivered to their homes, and some Hispanics in rural areas don’t own cars to drive to distant polling places.
“If you just can’t vote for those reasons and … your vote is not being counted, you’ve been denied the right to vote, haven’t you?” Sotomayor asked. “
While Roberts appeared to support minority voters, he also said that absentee-ballot fraud concerns are not frivolous.
On another score, Roberts challenged the Republican lawyer who said that it is not a state’s role to “maximize the voting participation of minorities” when considering a voting regulation.
“In other words, that only comes when you have disparate results. And why should there be disparate results if you can avoid them?” Roberts asked.
Justice Samuel Alito expressed his bigoted leanings when he told an attorney opposing the Arizona restrictions, “what concerns me is that your position is going to make every voting rule vulnerable to attack under Section 2.
“People who are poor and less well educated probably will find it more difficult to comply with almost every voting rule than people who are more affluent and have the benefit of more education.”
Barrett Rejects Republican Claims
Carvin said restricting Sunday voting, even if regularly practiced by Black voters, was lawful.
Arizona Attorney General, Mark Brnovich, said the disparate effect on minority voters “must be substantial and caused by challenged practice” to be considered unlawful.
Barrett suggested the Court adopt more precise standards for voting rights laws.
“All election rules,” she said, “are going to make it easier for some to vote than others.”
Justice Elena Kagan questioned Carvin’s argument that “time, place and manner limits” on voting could not trigger the Voting Rights Act provision that addresses the right to vote “on account of race.”
She asked if changing voting hours from 9 a.m.-5 p.m. to 10 a.m.-4 p.m. could trigger that provision if it was shown that minorities would have more trouble voting.
“These are all hypotheticals that have never existed in the real world,” Carvin told Kagan.
Barrett joined Kagan in rejecting the Republican attorney’s assertion that time, place, and manner restrictions shouldn’t be challenged.
“I don’t really see why time, place, and manner really … carries a lot of weight in your analysis,” Barrett said.
Kavanaugh also questioned the validity of Arizona’s voter suppression laws, while the other Conservative Justices seemed prepared to uphold Arizona’s Jim Crow laws.
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