SCOTUS Appeared Ready To Uphold AZ Voting Limits | Another Chance To Chip Away At The VRA
March 3, 2021
TIME TO FINISH WHAT WAS STARTED
|The Supreme Court yesterday heard oral arguments by telephone in one of its most significant voting rights cases in nearly a decade. The case comes as a follow-up to the high court’s decision in 2013 to eliminate a key provision of the Voting Rights Act that had required states with a history of discrimination to get federal approval for electoral changes — a decision that was led by CHIEF JUSTICE JOHN ROBERTS. Joan Biskupic with CNN writes, “Chief Justice John Roberts has singlehandedly slowed a conservative revolution at the Supreme Court in recent years, but he has for even longer — 40 years — opposed racial remedies and narrowly construed the landmark Voting Rights Act. During oral arguments Tuesday in an Arizona voting rights case with national implications, Roberts sounded ready to hew to that latter path. The court’s ruling could diminish the ability of Native American, Latino and Black voters to claim discrimination under the 1965 law.”
ZERO-SUM GAME
|The voting case yesterday came out of Arizona which has two measures on the books that may run afoul of the Voting Rights Act. Adam Liptak with The New York Times reports it’s the first time SCOTUS has been asked to decide how the VRA applies to voting restrictions that have a disproportionate impact on minority voters, and it comes at a particularly turbulent time in American politics. “As Republican-controlled state legislatures increasingly seek to impose restrictive new voting rules, Democrats and civil rights groups are turning to the courts to argue that Republicans are trying to suppress the vote, thwart the will of the majority and deny equal access to minority voters and others who have been underrepresented at the polls…Though the Voting Rights Act seeks to protect minority voting rights, as a practical matter litigation under it tends to proceed on partisan lines. When JUSTICE AMY CONEY BARRETT asked a lawyer for the Arizona Republican Party why his client cared about whether votes cast at the wrong precinct should be counted, he gave a candid answer. ‘Because it puts us at a competitive disadvantage relative to Democrats,’ said the lawyer, MICHAEL A. CARVIN. ‘Politics is a zero-sum game, and every extra vote they get through unlawful interpretations of Section 2 hurts us.'”
SURVIVING AND THRIVING
|Jess Bravin with The Wall Street Journal also reports on yesterday’s hearing noting, “Two minor restrictions on casting ballots in Arizona appeared likely to survive after Supreme Court arguments Tuesday, but justices appeared dissatisfied with what one called the ‘polar positions’ of attorneys representing the Republican and Democratic parties alike over ways to identify election regulations that violate the Voting Rights Act. That broader question could determine the survival under future court scrutiny of efforts by Republican-led state legislatures to restrict ballot access. Such measures tend to depress minority turnout in the name of election security.”
TOO FAR
|Robert Barnes with The Washington Post suggests that the conservative justices seemed to generally support Arizona’s laws, but both conservative and liberal justices thought MICHAEL CARVIN’S arguments in support of the Republican Party of Arizona went too far. He said states should, for the most part, have a free hand to oversee when and how they hold elections, and that race-neutral regulations aren’t open to challenge under Section 2 of the Voting Rights Act. Barnes writes, “Under questioning from JUSTICE ELENA KAGAN, Carvin acknowledged that some restrictions — reducing voting places in densely populated counties, for instance, or at country clubs — could be unlawful because they disproportionately affected minorities. But it is fine, he said, for a state to get rid of early voting on Sundays, even if proportionately it is used more by Black voters. Several states have done just that in recent years, and Georgia is attempting the change now.”
A SILVER LINING FOR VOTING RIGHTS
|Ian Millhiser with Vox also notes that both MICHAEL CARVIN, and Arizona’s Republican Attorney General MARK BRNOVICH seemed to go too far in their suggested interpretation of the Voting Rights Act. But Millhiser explains, “None of this means that the Arizona laws are likely to be struck down — many of the conservative justices appeared to spend the latter half of the argument trying to devise a legal standard that would allow them to uphold the laws. But the mere fact that they felt it necessary to come up with a new legal standard is a somewhat optimistic sign for voting rights, as it suggests that the court is not ready to strangle the Voting Rights Act in the way proposed by Carvin’s or Brnovich’s brief.”
OTHER NEWS
At the Supreme Court, Even Time Is Up To Interpretation
CNN“‘Life is short,’ Chief Justice John Roberts said during a Supreme Court oral argument session in January. ‘They only have so much time.’ Roberts was referring to Federal Communications Commission rule changes, but he could easily have meant his eight fellow justices as the court continues to work remotely during the coronavirus pandemic. The justices have heard oral arguments by phone since last May, but only in recent weeks has the chief justice imposed a new procedure requiring individual justices to watch the clock to know when they have hit or gone over their allotted three minutes apiece for questions to each side of the case.”
Biden’s Hurdle: Courts Dubious Of Rule By Regulation
The Wall Street Journal“President Biden is moving swiftly on his agenda to remake large parts of the economy by wielding the powers of the executive branch. He signed more than 30 executive orders in his first month, nearly as many as the past four presidents combined at this point in their terms. He is about to run into a formidable obstacle: a judiciary turned increasingly skeptical of regulatory authority, and conservatives determined to tap into that skepticism.”