Supreme Court justices consider extent of voting-rights protections for minorities

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A man walks past barbed wire and security fencing as it surrounds the U.S. Supreme Court in Washington, January 26, 2021.Al Drago | ReutersThanks to former President Donald Trump’s baseless claims of widespread fraud in the 2020 election, a tidal wave of new election bills aimed at tightening voting procedures is on the horizon. Many…

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A man walks past barbed wire and security fencing as it surrounds the U.S. Supreme Court in Washington, January 26, 2021.

Al Drago | Reuters

Thanks to former President Donald Trump‘s baseless claims of widespread fraud in the 2020 election, a tidal wave of new election bills aimed at tightening voting procedures is on the horizon. Many of those laws will undoubtedly be challenged in court on the grounds that they limit the rights of Black people and other minorities to vote.

On Tuesday, during Supreme Court arguments over which standard will apply when courts consider those cases, the justices shed much heat but little light, offering a smattering of different possible tests for whether those measures will survive or fail. At issue in particular was how to judge laws that seem to be neutral on their face, but prove to limit minority voters when put into practice.

The court was considering an appeal from Arizona Republicans from a federal appeals court decision that found that two state measures that disproportionately impacted minority voters were unlawful under Section 2 of the Voting Rights Act. One policy struck votes from voters cast on Election Day in the wrong precinct. Another barred third-party vote collection, which is sometimes called ballot harvesting.

Michael Carvin, an attorney for the Arizona GOP, one of four parties that argued the case, argued that the only thing that should matter is whether the laws present equal opportunity to all. Whether socioeconomic factors contribute to minority groups “ability to use that opportunity,” he said, were irrelevant.

On the other hand, Jessica Amunson, who argued on behalf of Arizona’s Democratic Secretary of State Katie Hobbs, said that courts must look at the “facts on the ground.”

Arizona’s Republican attorney general Mark Brnovich won the case before a U.S. District Court after the Democratic National Committee filed a lawsuit in 2016, but the 9th U.S. Circuit Court of Appeals ruled in favor of the Democrats on appeal.

Amunson and attorney Bruce Spiva, who argued for the DNC, said that minority groups in Arizona were twice as likely to have their ballots discarded as a result of the state’s out-of-precinct policy. Native Americans and Hispanic voters, they argued, were also affected by lack of mail service, low car-ownership rates, and other factors that made them more reliant on friends and neighbors who could deliver their ballots for them.

Dividing along partisan lines

The case did seem to divide the justices along partisan lines, with the court’s six Republican appointees appearing more sympathetic to a narrow reading of Section 2. But at the conclusion of two hours of arguments, conducted by phone as a precaution against the Covid-19 pandemic, it was not clear where they would draw the line.

“What concerns me is that your position is going to make every voting rule vulnerable to attack under Section 2,” Justice Samuel Alito, an appointee of former President George W. Bush, told Spiva.

“People who are poor and less well educated will on balance find it harder to comply with just about every voting rule than people who are more affluent and people who have had the benefit of more education,” Alito said.

Justice Brett Kavanaugh, a Trump appointee, said that the language of Section 2 was “elusive,” the result, he said, of a compromise reached in 1982 over its language.

That year, Congress updated the 1965 Voting Rights Act to specify that it wasn’t necessary to prove that a voting law was intended to discriminate in order to invalidate it. But the compromise did require courts to consider the “totality of the circumstances,” including whether, as a result of the law, minority groups had equal access to the polls.

Kavanaugh said the result of the compromise was “something of a gray area between a pure results and a pure opportunity” approach. He suggested that courts weigh heavily whether similar laws are on the books in other states, particularly those without legacies of discrimination.

How the justices come down on the scope of Section 2 of the Voting Rights Act has taken on more importance in the years since the panel struck down another provision of the landmark law in the 2013 case Shelby County v. Holder.

Prior to Shelby County, states and counties with histories of discriminating against minority groups were required to get federal approval for new voting measures. By contrast, under Section 2 of the Voting Rights Act, plaintiffs can only challenge laws once they are in effect.

In 2011, Arizona asked the Department of Justice for approval for a previous version of its ban on third-party voter collection, but withdrew its request after the agency asked for more information about its impact on minority voters.

The court’s three liberal appointees seemed more amenable to arguments that courts should consider socioeconomic factors that could contribute to whether a law proves to be discriminatory.

At the start of arguments, for instance, Justice Stephen Breyer, an appointee of former President Bill Clinton, pressed Carvin on whether his opportunity test would allow even a literacy test. Carvin said it did not.

Later, Spiva, arguing in favor of the Democrats, said that a literacy test is technically similar in scope.

Discrimination in education

“The problem is that because of discrimination in education and opportunities, it has a disparate impact on racial minorities,” he explained.

Justice Sonia Sotomayor indicated that she disagreed strongly with looking strictly at whether laws simply allowed for equality of opportunity.

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

Another issue the court wrestled with was how large the apparent disparities in voting levels have to be before a law crosses the threshold and becomes illegal. In an exchange with Thomas, Amunson acknowledged that fewer than one percent of minority votes were discarded as a result of Arizona’s policy against voting in the wrong precinct.

At times, the exact bounds of what each side was asking for appeared muddled.

Pressed by Alito whether, for instance, a law requiring voters to fill out a bubble could be unlawful if statistical analyses showed discrepancies in the percentage of white versus minority voters who did so correctly, Amunson said that more would need to be known.

“You have to take a functional view of the political process,” she said, looking at how it’s affecting voters “on the ground.”

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

“The longer this argument goes on, the less clear I am on how the parties’ standards differ,” Justice Elena Kagan, an appointee of former President Barack Obama, who used her time during arguments to pose a variety of hypotheticals, said at one point.

The Department of Justice under Trump argued in favor Brnovich and the state Republican Party in the case, writing a supportive brief in December.

In a letter last month, the Justice Department notified the justices that it had reconsidered the case after President Joe Biden took office. The agency said it no longer supported Brnovich’s interpretation of the Voting Rights Act, but continued to believe, nonetheless, that Arizona’s two policies were lawful.

Competitive disadvantage

The partisan dynamics of the case were displayed unusually starkly during an exchange between Justice Amy Coney Barrett, a Trump appointee and the most recent addition to the bench, and Carvin. Barrett asked Carvin why the Republicans even had standing, or the ability to bring the case.

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

In another exchange, between Justice Neil Gorsuch and Amunson, the Trump appointee seemed taken with allegations, popular among Republicans, that third-party ballot collection results in fraud.

Amunson said that there had been no instances of that sort of fraud in Arizona in decades, and that, regardless, a separate law criminalized fraudulent ballot collection.

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

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

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