Let’s be completely honest. The John Roberts court has not been terribly friendly to voting rights.
I find that I’m quite anxious when a voting rights case gets in front of this court, and since we’ve added Brett Kavanaugh and Amy Coney Barrett, I’ve gotten even more pessimistic. (And I’m generally an optimist!)
So yesterday, when the Supreme Court was hearing a voting rights case out of Arizona, I was understandably on edge. I’ve now processed the news on how the oral arguments went, and wanted to give you all an update.
The case, Brnovich v. Democratic National Committee (DNC), looks at two of Arizona’s voting policies: 1) a policy that says a ballot must be thrown out if it was cast at the wrong precinct, and 2) a state law that bans third parties from collecting ballots and turning them in. (Brnovich refers to Mark Brnovich, Arizona’s Republican attorney general.)
The DNC filed a lawsuit back in 2016 to block both of these provisions, on the claim that they violated Section 2 of the Voting Rights Act. In district court, the Democrats lost.
The lawsuit then went to the 9th Circuit Court of Appeals, where they reversed the lower court’s decision. Among other things, the court noted that “Arizona election officials change voters’ assigned polling places with unusual frequency” and that polling places are sometimes “located so counterintuitively that voters easily make mistakes.” Source They also noted that these two policies affected minority voters substantially more than white voters.
Brnovich and the Arizona Republican party then asked the Supreme Court to weigh in, which they agreed to do.
The results were in part, encouraging, but also not encouraging.
The court reporters seem to agree that the lawyers representing the Republicans did a terrible job in court today. There was a lot of skepticism expressed by even some of the conservative judges to what they were asking for.
The central premise of Michael Carvin, the lawyer for the Arizona GOP, was that states have the power to create voting laws that restrict the “time, place, or manner” where voters cast their ballots, and therefore Arizona has the right to have these laws on their books.
However, he wilted when Justice Kagan asked him if that was true, wouldn’t it be legal for the state to only allow voters to vote at country clubs? She also threw other hypotheticals at him, and he backpedaled fairly quickly when she did so.
But like I said, it wasn’t just the liberal judges who grilled him. For example, after Carvin conceded the point that Justice Kagan made about forcing everyone to vote at country clubs, Justice Kavanaugh said, “Your arguments has some contradictions in it.” Ouch. Justices Roberts, Thomas, Alito and Barrett also expressed skepticism at the draconian interpretations presented by the GOP attorneys.
All that said, Supreme Court journalists feel that the justices indicated through their line of questioning that they are not willing to take voting rights to the dark ages, but may try to come up with a new “test” that would allow Arizona to keep their laws on the books with some restructuring.
This particular session ends in June, so we should get our answers in a few months. I know this was a very cursory look at the case, so if you’d like to read something a bit more in depth (yet still readable), I recommend this article at SCOTUS Blog.