The Supreme Court heard a pair of cases on Tuesday challenging Arizona’s election laws. Democrats claim that state laws on ballot harvesting and absentee ballots violate Section 2 of the Voting Rights Act (VRA) and the Constitution’s Fifteenth Amendment.
“The Court has a stark choice between two systems here,” Supreme Court heavyweight Michael Carvin said in conclusion of the Arizona Republican Party’s argument. “Ours is clear, and we think derived directly from the text, and is easy to apply.”
Chief Justice John Roberts kicked off the questioning of Carvin, with the chief questioning Carvin’s argument that VRA and the Constitution are violated when a legislature intends to disadvantage a racial group, rather than the Democrats’ argument that the law is violated whenever plaintiffs can show that a state law impacts one racial group more than others.
Carvin responded that such a rule would “eliminate all the valid anti-fraud concerns implicated” by these election integrity laws, adding that “the question is why a system that imposes no unfairness on the group should nonetheless be changed simply because they find a different method of voting more convenient.”
When Justice Clarence Thomas asked about this principle of intending to treat all races neutrally rather than looking at socioeconomic and other differences between racial groups, Carvin responded that virtually every election regulatory would have become illegal as a result, and that “if Congress had intended that kind of sea change,” the federal law would have been explicit about it.
“The question is not the outcome,” Carvin explained. “The question is the opportunity and if the state has provided everyone the same opportunity.”
As Justice Samuel Alito asked Carvin to explain this rule in the context of the “usual burdens of voting,” Carvin responded that the ordinary effort required to cast a ballot in an election does impose a burden on voters, but that Congress and the Constitution do not makes such burdens illegal, even though some voters may find them more burdensome than others.
“This is not some mystery,” Carvin later added. “We have a long history of how people go about voting. They show up at precincts and cast a vote.”
Justice Sonia Sotomayor accused Republicans of rewriting the VRA, insisting that the VRA focuses on the effect of state government actions. Carvin disagreed, saying that the Constitution empowers state legislatures to pass laws on the time, place, and manner of elections, and that these laws do precisely that, while not denying the right of voters to cast ballots.
Justice Brett Kavanaugh followed up with the question, “Can you tell us how courts are supposed to distinguish ordinary regulations from extraordinary ones?”
Carvin responded that Democrats’ lawyers were casting countless voting laws in the latter category, that voters “can’t find precincts” or “get to mailboxes because of socioeconomic disparities, which means that the state needs to allow partisan operatives to go collect the ballots.”
The justices also heard arguments on the Republican side from Arizona Attorney General Mark Brnovich, who began, “Public servants have no more sacred duty than protecting the people’s right to vote while maintaining confidence in the integrity of election results,” insisting the law must have “a clear and constitutional test that allows states to meet these imperatives.”
“Requiring in-person voters to cast their ballots at assigned precincts ensures that they can vote in local races and helps officials monitor for fraud,” Brnovich said, describing such measures as commonsense. “Restricting early ballot collections by third parties, including political operatives, protects against voter coercion and preserves ballot secrecy.”
In response to a question from Alito regarding whether Democrats’ expressing alarm about how many voters would suffer burdens from the precinct requirement, Brnovich responded, “Mark Twain famously said there are three types of lies: Lies, damn lies, and statistics,” explaining that the Ninth Circuit appeals court in this case had “cherry-picked” statistics that seemed to support the Democrats’ argument, but that in reality less than 0.1 percent of votes are potentially not counted under that Arizona law.
Brnovich added, “Arizona’s requirements that ballots be cast at assigned local precincts and its restrictions on ballot harvesting are appropriate election integrity measures that do not create any disparate impact on racial minorities but serve us all equally well.”
“The desire to enhance the convenience of voting must never outweigh the imperative of securing the integrity of the result,” he concluded.
Several of the justices – especially the chief justice – had probing questions for the Democrats’ lawyers, raising issues that have been in the news recently.
“You’re aware of what the Carter-Baker Commission found about ballot harvesting,” Roberts said to one of the Democrats’ lawyers, Jessica Amunson. “They said absentee ballots are the largest source of potential voter fraud.”
Citing different forms of voter intimidation, Roberts added that the 2005 bipartisan commission report “recommended that the practice of allowing candidates or party workers to pick up and deliver absentee ballots should be eliminated.”
“All election rules are going to make it easier for some to vote than others,” Justice Amy Coney Barrett said to Amunson during her questioning, adding that “your approach risks ruling them all out.”
During Carvin’s part of the hearing, he concluded that the argument pushed by the Democratic National Committee and Arizona’s Democrat Secretary of State:
… is one that requires the courts to engage in a maximization policy, which anything that has a disproportionate result is somehow taken out of the hands of state legislatures.
If you go down that path … that still gets the courts involved in an amorphous, manipulable situation where no one knows what the rules are going into the next election and they’ll all be decided on an ad hoc basis in a hyper-partisan environment.
So, in addition to the fact that our test is the only one that comports with the text of Section 2 [of the VRA] and the Constitution, it’s also the only one that gives lower courts the clarity that is especially important in the voting context.
A decision is expected by late June.
The cases are Brnovich v. Democratic National Committee and Arizona Republican Party v. Democratic National Committee, Nos. 19-1257 and 19-1258 in the Supreme Court of the United States.
Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). He is the author of the recent e-book, Neither Free nor Fair: The 2020 U.S. Presidential Election. His recent book, RED NOVEMBER, tells the story of the 2020 Democratic presidential primary from a conservative perspective. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.