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Majority appears poised to uphold Arizona voting rules

Argument Analysis
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Jessica Amunson, for Arizona Secretary of State Katie Hobbs, was one of four attorneys at Tuesday’s argument (Art Lien)

With the ink barely dry on the 2020 election, the Supreme Court on Tuesday heard oral argument in two voting-rights cases from Arizona that could affect elections in that state and others in the future. The cases – Brnovich v. Democratic National Committee and Arizona Republican Party v. Democratic National Committee – are a challenge to two different Arizona voting provisions. One is a policy that requires an entire ballot to be thrown away if it was cast at the wrong precinct, while the other is a state law that bars the collection of ballots by third parties, sometimes dubbed “ballot harvesting.” After nearly two hours of debate, a majority of justices seemed likely to uphold both provisions. The real question left open after Tuesday’s oral argument was whether a majority would coalesce around a standard for determining whether voting laws and practices violate Section 2 of the federal Voting Rights Act, which bans racial discrimination in voting – and, if so, what standard that would be.

The provision requiring an entire ballot to be discarded if it was cast at the wrong precinct is known as the “out of precinct” policy. Almost all of Arizona’s counties – approximately 90% — assign voters to a specific precinct based on their home address. When a voter shows up at the polls and does not appear on the voting rolls there, she can cast a provisional ballot. But if election officials later determine that she voted in the wrong precinct, her whole ballot is thrown out, without any of the votes being counted – even if she was eligible to cast a vote for statewide or national offices like U.S. president, senator or governor.

Arizona’s legislature enacted the ban on ballot harvesting in 2016. The law makes it a felony to collect and deliver another person’s completed ballot (with exceptions for family members, caregivers, mail carriers and election officials).

The U.S. Court of Appeals for the 9th Circuit struck down both the out-of-precinct policy and the ban on ballot harvesting as violations of Section 2. The court of appeals applied a two-part test, known as the “results test,” to reach that outcome. In the first step, according to the court of appeals, the question is whether the policy or law being challenged disproportionately affects the ability of a racial minority group to “participate in the political processes and to elect candidates of their choice.” If it does, then the next question is whether there is a link between the challenged policy or law and social and historical conditions, creating the inequality in opportunities.

Lawyer Michael Carvin, representing the Arizona Republican Party, urged the justices to draw a bright line at Tuesday’s oral argument. He stressed that by enforcing the out-of-precinct policy and the ballot-harvest ban Arizona has not denied anyone the opportunity to vote – unlike, for example, a literacy test would.

The court’s conservative justices appeared skeptical that either provision should be invalidated. Jessica Amunson represented Katie Hobbs, Arizona’s secretary of state and a Democrat who declined to defend the provisions after she took office in 2019. Justice Clarence Thomas pressed Amunson to identify the percentage of minority voters who cast ballots who were affected by the out-of-precinct policy. When Amunson responded that it was “less than 1%,” Thomas observed that “Arizona is a big state and it’s quite rural.” “How do you compare,” Thomas asked Amunson, the burden from the out-of-precinct policy to the burden on someone who has to travel a long distance to vote?

Amunson responded that Thomas’ question made “exactly our point here,” because Native American voters in the state needed to be able to “rely on ballot collection to vote” precisely because it was difficult to vote in person and mail services are unreliable or nonexistent.

Justice Amy Coney Barrett wondered aloud why the problem wasn’t the precinct system itself, rather than the out-of-precinct policy. The disparity, Barrett suggested, is caused by the “inability to locate and show up at the right precinct.”

Mark Brnovich, Arizona’s attorney general and a Republican, defended the provisions. He repeatedly emphasized that both the out-of-precinct policy and the ban on ballot harvesting had been put in place to ensure the integrity of the state’s elections. Several justices seemed particularly sympathetic to this concern when it came to the ban on ballot harvesting.

Justice Neil Gorsuch asked Amunson to explain why preventing potential fraud wasn’t a valid state interest. “Does Arizona have to wait for fraud to occur in Arizona,” Gorsuch queried, “using a practice before it can outlaw it?” And if not, Gorsuch continued, what evidence does it need of fraud in other states’ elections before Arizona can outlaw it there?

Amunson emphasized that Arizona “already has a law prohibiting fraudulent ballot collection. What this law does,” she told Gorsuch, “is it criminalizes neighbors helping neighbors deliver ballots.” It does not “get at the state’s interest in preventing fraud.” But it was clear that Gorsuch remained dubious.

Chief Justice John Roberts was also skeptical. He pointed to a 2005 report on federal election reform by a commission led by former President Jimmy Carter and former Secretary of State James Baker. The commission, Roberts noted, “said that absentee ballots are the largest [source] of potential voter fraud” and “recommended that the practice of allowing candidates or party workers to pick up and deliver absentee ballots should be eliminated.”

Amunson acknowledged that states have an interest in election integrity, but she urged Roberts to look at Arizona’s case specifically. Minority voters in Arizona, “rely disproportionately on ballot collection,” while “white voters do not.” And here, the history of the law banning ballot harvesting, she told Roberts, “shows that, in fact, what Arizona was acting to do was to limit the participation of Hispanics and Native Americans, in particular.”

Barrett had a different concern in her questions for Carvin. Why, she asked, is the Arizona Republican Party in this case at all? Why do you care, she inquired, about keeping these laws on the books?

Carvin was frank about what’s at stake, answering that the 9th Circuit’s ruling “puts us at a competitive disadvantage relative to Democrats.” “Politics,” Carvin observed, “is a zero-sum game, and every extra vote they get through unlawful interpretations of Section 2 hurts us. It’s the difference between winning an election 50 to 49 and losing.”

Even if a majority seemed to be ready to uphold the out-of-precinct policy and the ban on ballot harvesting, there were different views among the justices about what standard the court should use in this case and going forward to evaluate claims that a practice or law violates Section 2. Justice Stephen Breyer asked Carvin, as he would ask the other lawyers arguing on Tuesday, to weigh in on a standard proposed by Harvard Law School professor Nicholas Stephanopoulos, an expert in voting rights. In a “friend of the court” brief filed in this case, Stephanopoulos suggested replacing the “results test” with the standard used in other civil rights laws, including federal employment discrimination and fair housing laws. That test, Breyer noted, would take into account not only whether a practice disproportionately affects minorities but also would let the state provide its rationale, having nothing to do with race, for the practice.

Carvin pushed back against the Stephanopoulous test, as did Brnovich, who described the test as “interesting” but stressed that Congress had not imposed such a test. Instead, Brnovich contended, courts should look at all of the circumstances surrounding voting. In this case, Brnovich emphasized, “regardless of who they are or their background, Arizona provides a plethora of options for people” to vote.

Bruce Spiva, a Washington lawyer who argued on behalf of the Democratic National Committee, was more receptive to Breyer’s suggestion. He told Breyer that there was “not a lot of daylight” between the results test and the Stephanopoulos standard, and he noted that even if the results test does not necessarily require the disparate impact of the challenged policy or law on minorities to be significant, in practice it has been in most of the cases in which plaintiffs have succeeded.

That was perhaps not reassuring to Justice Samuel Alito, who told Spiva that his position was “going to make every voting rule vulnerable to attack under Section 2” because “people who are poor and less well educated on balance probably will find it more difficult to comply with just about every voting rule than people who are more affluent and” better educated.

Spiva countered that the results test had not and would not lead to the outcome that Alito feared. He cited as an example a 2016 decision by a federal appeals court upholding Virginia’s voter identification law. The court in that case, Spiva noted, concluded that the law did not have a disparate impact on minorities because the state provided free IDs to anyone who wanted them.

Barrett voiced similar concerns in her questions for Amunson. Your position, Barrett told Amunson, runs the risk of invalidating all election rules.

Justice Brett Kavanaugh suggested a different standard, one that he regarded as a middle ground between the results test and a test like Carvin’s, which would look only at whether minorities had the same opportunities to vote as other voters. Kavanaugh would have courts consider other factors, such as whether a rule is widely used in other states and whether there is a good justification for the rule. For Kavanaugh, both of these factors would weigh in favor of Arizona: Over two dozen other states use a similar out-of-precinct policy, including some without a history of discrimination, while the Carter-Baker commission recommended a ban on ballot collection.

During her time to question Amunson, Justice Elena Kagan seemed to speak for many of those listening when she observed that “the longer this argument goes on, the less clear I am as to how the parties’ standards differ.” Carvin tried to address this uncertainty during his rebuttal, telling the justices that he and his client were “the only people who are providing a clear rule that can be applied by the lower courts.” Most justices seemed inclined to give Carvin the results for which he advocates; we’ll know by summer if they will agree with his reasoning as well.

This article was originally published at Howe on the Court.

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