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What Arizona's Supreme Court Cases Mean For Voting Rights In America

Published: Wednesday, March 3, 2021 - 11:59am
Updated: Wednesday, March 3, 2021 - 12:01pm
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STEVE GOLDSTEIN: Two Arizona voting laws were considered by the U.S. Supreme Court on Tuesday. One had to do with the state's ban on so-called ballot harvesting or ballot collecting. The other had to do with throwing out the ballots of people who voted in the wrong precinct. The issues gave the justices the opportunity to revisit one key element of the Voting Rights Act. With me to recap the arguments and the justices' reactions to them is Adam Liptak, who covers the Supreme Court for the New York Times. Adam, the bigger picture suggests that Arizona laws are going to lead to a greater consideration of the Voting Rights Act. And you've reported the Biden administration has concerns about that.

ADAM LIPTAK: State legislatures around the country, especially ones dominated by Republicans, are passing all kinds of restrictive voting measures, and there's part one of the Voting Rights Act that remained intact. In 2013, the Supreme Court struck down one major provision. But the part of it that remains intact is kind of opaque and fuzzy. And depending on what kind of ruling we get from the Supreme Court about how much teeth that remaining provision of the Voting Rights Act has will tell us a lot about whether these other measures are likely to survive or not.

GOLDSTEIN: And the Voting Rights Act has really divided along party lines, certainly in recent years. When you see the voter related laws or voter registration laws, mostly pushed by, as you mentioned, if not entirely by Republican legislatures, does that give any insight in terms of concern by some that the Democratic Party would even have brought this case forward with the concern that when we've seen Republicans on the Supreme Court, at least the Roberts court, ruling in a certain way, there is a concern that this could just extend momentum for the sorts of measures we're seeing in some legislatures.

LIPTAK: Well, it's certainly true that voting rights groups are not happy that this case made it to the Supreme Court. I think when the Democratic National Committee filed to challenge the restrictions in 2016, that was not part of its game plan. And it won in the 9th Circuit, a far more sympathetic forum. And then I suppose they hoped the Supreme Court would not take the case, but it did. And you raise an interesting point, too, that these issues run along partisan lines — very much so. And in this particular case, it's the Democrats against the Republicans by name. But the Voting Rights Act is not concerned with partisanship — it's concerned with minority voting rights. It's concerned with whether restrictions disproportionately affect Blacks, Latinos and others. But I guess the thinking is that those groups vote predictably enough for Democrats that you can translate the racial disparities into partisan disparities.

GOLDSTEIN: Adam, you had the chance to listen to the oral arguments as they were happening. How did Attorney General Mark Brnovich and then the attorney for the Republican Party go about expressing the argument? How did they approach and what was the strategy behind it? And then, were you able to pick up on how the justices were reacting based on what questions they were asking?

LIPTAK: The two lawyers arguing in favor of the Arizona restrictions took slightly different approaches. Mike Carvin, arguing for the Arizona Republican Party, took a very hard line. He said that any voting restriction that was race neutral on its face and just presented the ordinary burdens of voting — that you have to travel to your polling place, that it's only open at certain hours and things like that — can't be challenged under the Voting Rights Act at all. And I don't think that met with a very sympathetic reception from even the conservative justices. They thought that Carvin was taking too hard a line. The attorney general had a softer standard, but one that was frustrating in a different direction for the justices because it was a little too squishy. He said that if a measure has a disproportionate effect on minority groups — but he couldn't really quite say what disproportionate meant, how disproportionate it had to be — and if the state had no good reason for the restriction, like combating voter fraud, then maybe it could be struck down. But that approach, which didn't differ all that much from the approach on the other side, that kind of fairly vague formulation, to put a little bit of teeth into the Voting Rights Act — some version of that is likely to be adopted by the justices.

GOLDSTEIN: One of the comments that the attorney general made when he spoke with us locally here recently related to voting outside of a precinct, is, his point was that Maricopa County, obviously the most populous county in the state with Phoenix and the suburbs, has actually moved away from a system that would really involve precincts to some extent. So there wouldn't be that many voters affected by it at all. Did he mention that? Did that seem to sway justices based on how they followed up with them if they did?

LIPTAK: I think a lot of the justices cared that the number of votes being thrown out because of out-of-precinct voting was quite small, both in absolute terms and as a percentage of all ballots. On the other hand, the fact that much of the state, I think he said 75% of the state, doesn't use precincts, maybe cuts against him, because if most of the state is not using it, it's not clear why you have to have parts of the state where if you go to the wrong precinct, your vote doesn't count.

GOLDSTEIN: There was one question by Justice Coney Barrett that got some attention here in Arizona. What's the interest of Arizona's GOP in keeping ballot disqualification rules on the books? And the attorney representing the GOP, as you mentioned, not the attorney general in this case, "it puts us at a competitive disadvantage relative to Democrats." It does seem like it really just makes it more of a political argument, as opposed to voters' ability to actually cast a legal vote when they are legally registered.

LIPTAK: Yeah, exactly right. I thought that Carvin on the one hand, was admirably candid. On the other hand, he really laid bare what the case is about. It's about partisan advantage for one side or the other. It's not about ensuring that minorities have the right to vote. And I guess I was a little surprised that he chose to be as candid as he turned out to be.

GOLDSTEIN: Adam, based on the fact that the Supreme Court seems to take fewer and fewer cases as the years go by, should we read something symbolically into the decision to take these two Arizona cases? Does that give us any more idea or direction in terms of a bigger picture?

LIPTAK: I think they probably should have taken this case. The scope of this part of the Voting Rights Act is completely untested in the Supreme Court. And it's going to come up a lot, because a lot of these new laws are going to be challenged in the lower courts, and the lower courts do need guidance about what the Voting Rights Act means. So in this case, although you're quite right that the court's docket seems to be shrinking by the year, it does make perfectly good sense for them to take the case and to try to establish some clear standards for what kinds of voting restrictions are allowable and what kinds are not.

GOLDSTEIN: Adam Liptak, who covers the Supreme Court for the New York Times. Thanks so much for your time today.

LIPTAK: Great to be here.

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