By Amy Howe
on March 2, 2021
at 4:59 p.m.
Jessica Amunson for Arizona Secretary of State Katie Hobbs was one of four attorneys in Tuesday’s dispute (Art Lien).
With the ink barely dry in the 2020 election, the Supreme Court heard a hearing on Tuesday on two Arizona voting rights that could affect future elections in this state and other states. The cases – Brnovich v Democratic National Committee and Arizona Republican Party v Democratic National Committee – challenge two different provisions for voting in Arizona. One is a policy requiring an entire ballot to be thrown away if it is cast in the wrong district, while the other is state law that prohibits third party collection of ballots in what is sometimes referred to as “ballot harvest”. After nearly two hours of debate, a majority of the judges appeared to be upholding both provisions. The real question that remained open after Tuesday’s hearing was whether a majority would band together around a standard to determine whether voting laws and practices violated Section 2 of the Federal Voting Rights Act, which prohibits racial discrimination in voting – and if so, what standard it would be.
The rule that an entire ballot must be discarded if it was cast in the wrong district is known as the “out-of-precinct” policy. Almost all Arizona counties – roughly 90% – assign voters to a specific county based on their home address. If a voter shows up at the elections and does not appear in the voting lists there, she can cast a preliminary vote. However, if election officials later discover that she voted in the wrong district, her entire ballot will be discarded without counting any of the votes – even if she was eligible to cast a vote for statewide or national offices such as a U.S. president, senator, or governor .
Arizona lawmakers enacted the voting ban in 2016. The law makes it a crime to collect and cast someone else’s completed ballot (excluding family members, carers, postmen, and election officials).
The U.S. Court of Appeals for the 9th Circuit has dismissed both the out-of-district policy and the ban on voting as Section 2 violations. The appeals court used a two-part test called the “score test”. to achieve this result. In the first step, according to the appellate court, the question arises whether the contested policy or the contested law disproportionately affects the ability of an ethnic minority to “participate in political processes and elect candidates of their choice”. If so, the next question is whether there is a link between the policy or law being challenged and the social and historical conditions that create the inequality of opportunity.
Attorney Michael Carvin, who represented the Republican Party of Arizona, urged judges to draw a clear line at the hearing on Tuesday. He stressed that by enforcing policies outside the electoral district and banning the electoral harvest, Arizona had not denied anyone the opportunity to vote – unlike, for example, a literacy test.
The court’s conservative judges were skeptical that one of the two provisions should become invalid. Jessica Amunson represented Katie Hobbs, Arizona’s Secretary of State and Democrat, who refused to defend the regulations after taking office in 2019. Judge Clarence Thomas urged Amunson to determine the percentage of minority voters who cast ballots that were affected by alien district policies. When Amunson replied that it was “less than 1%”, Thomas remarked that “Arizona is a large state and quite rural”. “How do you compare,” asked Thomas Amunson, the burden of politics outside of the county with the burden of having to walk a long distance to vote?
Amunson responded that Thomas’s question was “our point here” because Native American voters in the state needed to be able to “rely on voting to vote” precisely because it was difficult to vote in person , and postal services are unreliable or non-existent.
Justice Amy Coney Barrett wondered aloud why the problem was not the county system itself but the politics outside the county. The inequality, according to Barrett, is due to the “inability to find the right district and show up there.”
Mark Brnovich, Arizona’s attorney general and Republican, defended the provisions. He repeatedly stressed that both out-of-constituency politics and voting bans had been put in place to ensure the integrity of state elections. Several judges appeared to particularly agree with this concern when it came to the ban on voting.
Judge Neil Gorsuch asked Amunson to explain why preventing potential fraud was not a valid state interest. “Does Arizona have to wait for fraud in Arizona,” asked Gorsuch, “have a practice before it can ban it?” If not, Gorsuch went on, what evidence will be required of electoral fraud in other states before Arizona can ban it there?
Amunson stressed that Arizona “already has a law prohibiting the collection of fraudulent ballots. This law, “she told Gorsuch,” criminalizes neighbors who help neighbors cast ballots. “It is not a matter of the state’s interest in preventing fraud. But it was clear that Gorsuch remained in doubt.
Chief Justice John Roberts was also skeptical. He referred to a 2005 report on election reform by a commission headed by former President Jimmy Carter and former Foreign Secretary James Baker. The commission, said Roberts, “said that postal votes were the largest [source] of potential electoral fraud ”and“ recommended eliminating the practice of allowing candidates or party employees to collect and deliver postal ballot papers. “
Amunson acknowledged that states have an interest in electoral integrity but urged Roberts to look specifically at Arizona’s case. Minority voters in Arizona “rely disproportionately on ballot collection” while “white voters do not”. And here, the story of the law banning ballot harvesting shows Roberts, “that Arizona actually restricted Hispanic and Native American participation.”
Barrett had another concern in her questions to Carvin. Why, she asked, is the Arizona Republican Party at all in this case? Why do you care, she inquired, keep these laws in the books?
Carvin was open about what was at stake, responding that the 9th Circle decision “puts us at a competitive disadvantage over the Democrats”. “Politics,” noted Carvin, “is a zero-sum game, and any extra vote they get through illegal interpretations of Section 2 hurts us.” It’s the difference between a 50 to 49 election victory and a loss. “
Even if a majority seemed willing to uphold non-constituency politics and the ban on voting, judges differed in their views as to which standard the court should apply in this case and how it should evaluate a practice’s allegations or violate the law in the future Section 2. Judge Stephen Breyer asked Carvin how he would ask the other attorneys at issue Tuesday to weigh a standard proposed by Nicholas Stephanopoulos, professor of voting rights at Harvard Law School. In a “Friend of the Court” letter filed in the case, Stephanopoulos suggested replacing the “Score Test” with the standard used in other civil rights laws, including federal employment discrimination and fair housing laws. This test, according to Breyer, would not only take into account whether a practice affects minorities disproportionately, but would also allow the state to provide its justification for the practice that has nothing to do with race.
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 said, the courts should consider all the circumstances of the vote. In this case, Brnovich emphasized, “Regardless of who they are or what their background is, Arizona offers a multitude of choices for people.”
Bruce Spiva, a Washington attorney who argued on behalf of the Democratic National Committee, was more receptive to Breyer’s proposal. He told Breyer that there is “not much daylight” between the scoresheet and the Stephanopoulos standard, and noted that even if the scoresheet does not necessarily require that the different effects of the policy or law under attack on minorities be significant. In practice, in most cases it was successful that the plaintiffs were successful.
That may not have been reassuring to Justice Samuel Alito, who told Spiva that his position would “make any voting rule vulnerable to Section 2 attack” because “people who are poor and generally less educated are likely to find it more difficult to do so.” to do.” Follow just about any voting rule than people who are wealthier and better educated.
Spiva countered that the results test did not and would not lead to the result Alito feared. As an example, he cited a 2016 federal appeals court ruling that upheld the Virginia Voter Identification Act. The court in this case concluded that the law did not have different effects on minorities as the state provided free identification cards to anyone who wanted them.
Barrett raised similar concerns when she asked Amunson. Your position, Barrett told Amunson, runs the risk of invalidating all electoral rules.
Judge Brett Kavanaugh proposed a different standard, which he saw as a middle ground between the score test and a test like Carvin’s, which only looked at whether minorities had the same choices as other voters. Kavanaugh would have the courts consider other factors such as: B. Whether a rule is widely used in other countries and whether there is a good justification for the rule. For Kavanaugh, these two factors would speak in favor of Arizona: over two dozen other states have similar policies outside of the county, including some without past discrimination, while the Carter-Baker Commission recommended a ban on voting.
During her time interviewing Amunson, Justice Elena Kagan seemed to speak for a large audience when she noted that “the longer this argument goes on, the less clear I am about how the parties’ standards differ.” Carvin tried to remove this uncertainty during his rebuttal by telling the judges that he and his client are “the only people who can put forward a clear rule that can be applied by the lower courts”. Most judges seemed inclined to give Carvin the results he advocates; We will know by summer whether they will also agree with his argument.
This article was originally published by Howe on the Court.