As the Supreme Court considers a voting rights case involving Arizona, here’s more on that story, as concerns about voter suppression are sweeping the United States.
Justice Samuel Alito, a leader of the court’s more conservative wing, expressed concern that states could be subject to a wave of attacks under section 2 if a policy resulted in even a small burden against a minority group.
“What concerns me is that your position is going to make every voting rule subject to attack under Section 2,” Alito told Bruce Spiva, a lawyer for the DNC, which is challenging the restrictions. Chief Justice John Roberts, a key vote in the case, also noted that states had an interest in restricting ballot collection to prevent fraud.
Jessica Ring Amunson, a lawyer representing Arizona secretary of state Katie Hobbs, a Democrat who agreed with the 9th circuit ruling, noted repeatedly that bringing a section 2 challenge requires showing more than just a statistical disparity.
“Statistical disparities alone are not enough to make out a section 2 violation,” she said. “You would have to show it is in fact imposing a discriminatory burden on minority voters that it is not imposing on [non-minority voters].”
The case arrived at the court as concerns about voter suppression are sweeping the United States. There are more than 253 bills to restrict voting in 43 states, according to a Brennan Center tally.
And one exchange during the case noted how politicized the fight over voting has become in the United States. When Justice Amy Coney Barrett pressed Carvin on what interest the RNC had in preserving Arizona’s restrictions, he noted that his party would be harmed if those policies would be lifted.
“It puts us at a competitive disadvantage relative to Democrats. Politics is a zero sum game. Every extra vote that they get through unlawful interpretations of Section 2 hurts us. It’s the difference between winning an election 51-49 and losing an election.”
Notably, however, the court’s conservative justices didn’t seem particularly eager to embrace the most restrictive view of Section 2, put forth by Carvin and the Arizona GOP, that the law can’t be used to challenge the “time, manner, or place” or elections.
In a series of hypotheticals, Justice Elena Kagan, pointed out how such an approach would allow states to enact discriminatory laws. When she asked Carvin if a state could require counties to only offer one polling place, leading Black voters in crowded urban areas to wait longer in line to vote, Carvin conceded that it would not be an equally open system.
He also conceded that a state could not only offer polling places in a country club if it meant Black voters had to travel longer into hostile territory.
The exchange prompted Justice Amy Coney Barrett to note that Carvin’s position “had some contradictions in it,” because polling place locations are regulations that involve the “time, manner, and place” of elections.
After nearly 2 hours of oral argument, the US supreme court appears divided on how exactly courts should interpret a key provision of the Voting Rights Act designed to protect minority groups against discriminatory voting policies.
That’s the question at the heart of the case that was argued in the case at the court today, Brnovich v. Democratic National Committee.
The case involves two voting policies in Arizona, a ban on third-party collection of absentee ballots – sometimes called ballot harvesting – and a policy that requires election officials to reject provisional ballots cast in the wrong precinct.
The US court of Appeals for the 9th circuit, sitting en banc, said last year that both policies violated Section 2 of the Voting Rights Act, which bans voting laws that discriminate on the basis of race.
The court’s conservative majority seemed skeptical that the Arizona law did violate the Voting Rights Act.
They appeared sympathetic to arguments put forth by Mark Brnovich, Arizona’s Republican attorney general, and Michael Carvin, representing the state Republican party, that very few minority voters were affected by the policies and that the state had a legitimate interest in enforcing them.
But the larger question looming over the case is how courts should evaluate whether a voting law violated Section 2 – the court seemed more unsure.
A majority of the court did seem receptive to the idea, advanced by Mark Brnovich, the Arizona attorney general, that litigants should have to meet a higher standard to show a law or policy violated Section 2.
In general, the court seemed appeared to agree with the idea that litigants should have to show there is a substantive burden on minority voters not being placed on non-white voters and that burden exists even given all of the other ways to vote in the state.
A majority of justices also seemed to embrace the idea that states should be able to use anti-fraud justification to rebut a Voting Rights Act claim of discrimination.
The case arrived at the court as concerns about voter suppression are sweeping the United States. There are more than 253 bills to restrict voting in 43 states, according to a Brennan Center tally. More in the next post.