Bloomberg Law
March 2, 2021, 8:17 PM

U.S. Supreme Court Suggests Support for Arizona Voting Curbs (2)

Greg Stohr
Greg Stohr
Bloomberg News

U.S. Supreme Court justices grappled with a case that could further weaken the landmark Voting Rights Act, suggesting they would back two Arizona ballot restrictions while exploring possible middle grounds on the standard that would apply to future lawsuits.

In a two-hour telephone argument that was alternatively combative and conciliatory, the justices gave renewed scrutiny to a 1965 law the court cut back significantly in 2013. The measure was designed to protect the rights of Black voters at the polling place.

The clash comes as Republican-controlled states consider a barrage of new restrictions that could make it harder for minorities to cast ballots in the 2022 elections. It follows November’s presidential contest in which Donald Trump refused to concede and instead made baseless assertions of widespread fraud.

The court’s conservative justices indicated in Tuesday’s session they would uphold the two Arizona restrictions at issue in the case: a criminal ban on most third-party ballot collection and a separate, longstanding policy of rejecting ballots cast in the wrong precinct. They pointed to the adoption of similar laws in other states and the recommendations of a bipartisan commission that in 2005 backed so-called ballot-harvesting limits as a way to reduce the risk of fraud.

“That on its face, at least to me, suggests a strong justification for doing these rules,” said Justice Brett Kavanaugh.

Barrett Questioning

But Kavanaugh and fellow Trump appointee Amy Coney Barrett also suggested they weren’t comfortable with the standards being proposed by Republican lawyers. Barrett challenged Arizona Attorney General Mark Brnovich’s argument that courts should allow individual restrictions, even if they might have some discriminatory impact, as long as the election system as a whole gives voters a fair opportunity to cast ballots.

“If it takes one opportunity away, I guess I still don’t understand why that isn’t reducing the ability of those voters to vote, relative to other white voters that don’t share that same burden,” she said.

The case centers on the Voting Rights Act’s Section 2, a provision that’s now the primary tool for challenging ballot laws as discriminatory. Section 2 took on heightened importance after the high court’s 2013 Shelby County decision effectively killed a separate section that had required some states to get federal clearance before they changed their voting rules.

President Joe Biden’s administration told the justices in a letter last month last month it doesn’t view the Arizona restrictions as violating Section 2. The new administration, however, didn’t file a brief or take part in Tuesday’s argument, which took place less than six weeks after Biden’s inauguration.

A lawyer representing the Arizona Republican Party, Michael Carvin, offered a blunt assessment of the GOP’s interest in the case.

‘Zero Sum Game’

Out-of-precinct voting “puts us at a competitive disadvantage to Democrats,” Carvin said. “Politics is a zero sum game, and every extra vote they get through unlawful interpretations of Section 2 hurts us.”

Carvin argued that states have broad authority to regulate the time, place and manner of elections as long as any restrictions are racially neutral.

But under questioning from Justice Elena Kagan, Carvin acknowledged that some superficially neutral restrictions -- such as a hypothetical law that limited each county to one polling place -- might be problematic if they forced Black voters to wait in line far longer than White voters.

Carvin said courts could take “demographic reality” into account, a statement Kagan later suggested she understood as a concession. “The longer this argument goes on the less clear I am as to how the parties’ standards differ,” Kagan said.

Lawyers for the Democratic National Committee and Arizona’s Democratic secretary of state urged the justices to uphold a federal appeals court decision that struck down the rules.

‘Discriminatory Burdens’

“Candidates and parties should be trying to win over voters on the basis of their ideas, not trying to remove voters from the electorate by imposing unjustified and discriminatory burdens,” said Jessica Amunson, the lawyer for Secretary of State Katie Hobbs.

Brnovich, the attorney general, said that Arizona “provides a plethora of options for people to exercise their franchise.”

Section 2 bars any voting practice that “results in a denial or abridgement” of the right to vote based on race. The measure says courts should look at the “totality of the circumstances” to determine whether some groups “have less opportunity” to participate than other voters.

The court has never said what standard should apply when Section 2 is invoked to challenge laws that make it harder for minorities to register and vote. The court is scheduled to rule by late June.

The cases are Brnovich v. Democratic National Committee, 19-1257, and Arizona Republican Party v. Democratic National Committee, 19-1258.

(Updates with excerpts from arguments starting in 11th paragraph)

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Elizabeth Wasserman

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