If the Voting Rights Act survives this latest challenge, thank bad lawyering on the GOP side.
Two separate teams of Republican lawyers looked at Brnovich v. Democratic National Committee, a case the Supreme Court heard on Tuesday, and saw an opportunity to stick a knife in the Voting Rights Act — potentially eliminating any meaningful safeguards against racist voting laws in the process.
The case involves two Arizona laws that make it harder for some voters to cast a ballot. One law requires election officials to discard ballots that are cast in the wrong precinct. The second prohibits many forms of “ballot collection,” where a voter gives their absentee ballot to another person, who then delivers that ballot to the election office so it can be counted.
Michael Carvin, a lawyer for the Arizona Republican Party, argued in his brief that states have broad power to enact laws restricting the “time, place, or manner” where voters cast their ballots — though he rapidly back-pedaled after Justice Elena Kagan suggested that this proposed rule would allow a state to require all voters to cast their ballots at, say, country clubs.
Arizona’s Republican Attorney General Mark Brnovich, meanwhile, suggested in his brief that states that wish to disenfranchise voters of color may take advantage of existing demographic disparities to target racial minorities, so long as the state does not create those disparities. As Brnovich argued, the restriction on out-of-precinct voting should be upheld because “the fact that a ballot cast by a voter outside of his or her assigned precinct is discarded does not cause minorities to vote out-of-precinct disproportionately.”
Taken to its logical extreme, this proposed rule could permit truly outlandish attempts to restrict voting. Suppose that Arizona had passed a law limiting the franchise to country music fans, on the theory that white voters are more likely to listen to country music than voters of color. Under Brnovich’s standard, that law might not violate the Voting Rights Act’s protections against race discrimination because the state did not cause non-white voters to prefer other genres of music.
Both Carvin and Brnovich’s briefs, in other words, proposed reading a key prong of the Voting Rights Act so narrowly that it would become virtually meaningless. States would gain a broad power to disenfranchise voters of color, so long as they were somewhat clever about how they did so.
By the end of Tuesday’s arguments in Brnovich, however, it appeared unlikely that these attempts to neutralize the Voting Rights Act will prevail. There may very well be five votes — or even more than five votes — to uphold the two Arizona laws at issue in Brnovich. But several key justices appeared reluctant to go as far as Carvin and Brnovich asked them to go.
Chief Justice John Roberts, and Justices Clarence Thomas, Samuel Alito, Brett Kavanaugh, and Amy Coney Barrett — all conservatives — each expressed concerns that Carvin’s proposed test either wasn’t workable or contradicted the text of the Voting Rights Act. After Carvin conceded that a state could not require every ballot to be cast at a country club, Barrett warned him that his argument “has some contradictions in it.”
Brnovich ran into similar trouble when he stepped up to the podium. Roberts, for example, appeared unconvinced that a key prong of Brnovich’s argument could be squared with the text of the Voting Rights Act. Kavanaugh suggested that a state law might violate the Voting Rights Act if it imposes unnecessary burdens on racial minorities. Barrett suggested that Brnovich’s approach would make it too easy for a state to disenfranchise racial minorities, so long as it enacted a series of laws that each disenfranchised a relatively small group of voters.
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 or Brnovich’s briefs.
These Republican lawyers simply asked for too much.
The Voting Rights Act, briefly explained
Enacted in 1965, the Voting Rights Act is one of the most important civil rights laws in American history. It dismantled, at least for a while, many of the tools that Jim Crow lawmakers used to disenfranchise Black voters, and began a half-century long experiment in pluralistic democracy.
On the day that the Voting Rights Act was signed, only about 5 percent of Black voters in Mississippi were registered to vote. Two years later, that number was 60 percent.
Broadly speaking, the Voting Rights Act provides three safeguards against racist state and local voting laws. Section 5 of the law required state and local governments with a history of enacting such laws to “preclear” any new election rules with officials in Washington, DC before those rules could take effect. Section 2 of the law, meanwhile, provides two separate protections against discriminations — known as the “intent test” and the “results test.”
If a voting rights plaintiff can show that an election law was enacted for the purpose of making it harder for voters of a particular race to cast their ballot, then the law violates Section 2’s “intent test.”
Under a 1982 amendment to the Voting Rights Act, state and local governments also may not enact a law that “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color” — and this “results test” applies even if the lawmakers who enacted an allegedly racist law did not do so with any racial animus.
Under Chief Justice Roberts’s leadership, however, the Supreme Court has largely dismantled the first two prongs of the Voting Rights Act.
In Shelby County v. Holder (2013), the Supreme Court effectively deactivated Section 5’s preclearance requirement by striking down the formula that the Act used to determine which jurisdictions are subject to preclearance. Then, in Abbott v. Perez (2018), the Court held that lawmakers enjoy such a strong presumption of racial innocence that voting rights plaintiffs will struggle to prove racist intent in all but the most egregious cases.
Brnovich primarily concerns whether the two challenged Arizona laws violate the Voting Rights Act’s results test, which prohibits at least some laws that have a disproportionate impact on racial minorities. Given the Court’s decisions in Shelby County and Perez, many Supreme Court observers (including myself) feared that the Court’s conservative majority would use Brnovich to gut the results test in much the same way that the Court previously hobbled preclearance and the intent test.
That may very well still happen, but the oral argument in Brnovich suggests that annihilation of the results test will probably have to wait until another case comes along. While many of the justices signaled that they are inclined to uphold Arizona’s laws, the justices seemed unwilling to go quite as far as lawyers like Carvin and Brnovich hoped.
So what happens now?
Carvin’s brief took the bold position that “race-neutral regulations of the where, when, and how of voting do not implicate § 2” — though the brief does suggest at some points that only “ordinary” restrictions on “the time, place, or manner of voting” are permissible. But several justices appeared to view this proposed test as unworkable.
Kagan, for example, spent her questioning time with Carvin peppering him with questions about hypothetical voting restrictions — such as whether a state could require everyone to vote at a country club with a history of racist policies, or whether a state could require everyone to vote between 10 am and 2 pm on a particular day. And Carvin quickly started backtracking from the position he took in his brief when confronted with Kagan’s hypotheticals.
Even Carvin appeared to realize that it would be untenable to require every voter to cast their ballot at a country club.
Kavanaugh, meanwhile, homed in on Carvin’s suggestion that only “ordinary” voting restrictions may be allowed — wondering how a judge is supposed to distinguish an “ordinary” restriction from an “extraordinary” one.
Brnovich received a somewhat less chilly reception from the justices than Carvin did, but he still faced a barrage of skeptical questions. A key prong of Brnovich’s argument, for example, is that a plaintiff can only prevail under the results test if they can show that a challenged law “causes a substantial disparity in minority voters’ opportunity to vote and to elect their preferred candidates.” But that argument prompted Roberts to wonder where Brnovich is able to find this “substantial disparity” requirement in the Voting Rights Act’s text.
By the time Jessica Ring Amunson and Bruce Spiva, two of the lawyers challenging Arizona’s election laws, began their arguments, the Court’s conservatives appeared more interested in coming up with a new framework that would allow them to uphold Arizona’s laws, then they were in applying the scorched-earth frameworks proposed by Carvin and Brnovich.
Several justices repeatedly brought up the 2005 Carter-Baker Commission Report, a report produced by a commission chaired by former President Jimmy Carter and former Secretary of State James Baker, which, as Roberts noted, suggested that states should have some safeguards against fraud in “ballot harvesting.” Ballot harvesting is a pejorative term for a practice in which absentee voters give their ballots to a third party, who delivers that ballot to a polling place.
According to Kavanaugh, it is “a matter of common sense” that a voting restriction supported by such a commission probably isn’t a racist attempt to restrict minority voting.
Similarly, Kavanaugh also suggested that voting laws that are “commonplace” in states that do not have a history of racist voting restrictions are likely permissible under the Voting Rights Act — reasoning that could save Arizona’s restrictions on out-of-precinct voting. According to Kavanaugh, similar restrictions exist in about two dozen states.
The bottom line is that there’s a good chance that Arizona’s restrictions on ballot collection and out-of-precinct voting will be upheld. And there’s even a good chance that the Court will take a significant bite out of the Voting Rights Act in Brnovich.
But going by today’s arguments, at least, the full-scale attack on the Act proposed by Carvin and Brnovich seems less likely. Such an attack may still come in a future case, but Carvin and Brnovich’s ham-handed lawyering left the justices little to work with if they hope to dismantle the results test right now.
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