Supreme Court Seems Ready To Uphold Restrictive Voting Laws

Mar 2, 2021
Originally published on March 2, 2021 8:15 pm

The U.S. Supreme Court seemed ready on Tuesday to uphold Arizona's restrictive voting laws, setting the stage for what happens in the coming months and years, as Republican-dominated state legislatures seek to make voting more difficult.

Since the November election, and President Trump's false claims that the balloting was rigged, Republican-run state legislatures have raced to pass new laws that would curb the modern-day expansion of the right to vote. Many of these laws likely will be challenged in court, and on Tuesday the Supreme Court heard arguments in a case that could set the parameters for which of those restrictive laws survive, and which don't.

The Voting Rights Act, first passed in 1965, makes it illegal for states to enact laws that result in voting discrimination based on race. Eight years ago, the conservative court, by a 5-to-4 vote, gutted one of the two major parts of the law. Now, it is the other major section that is in the conservative court's crosshairs.

Tuesday's case involved two Arizona laws. One bars the counting of provisional ballots cast in the wrong precinct. The other bars the collection of absentee ballots by anyone other than a family member or caregiver.

State Republicans and the Republican National Committee argued that both laws are needed to prevent fraud, but the Ninth Circuit Court of Appeals disagreed. It found no record of ballot fraud, but it did find evidence that the two laws make voting more difficult for minorities who often live in huge rural areas without a nearby post office or mail route.

Tuesday's Supreme Court argument focused on what standard the court should use to determine whether these laws, or others like them, result in unconstitutional discrimination against minority voters. And the justices' questions appeared to be plucked straight from the headlines.

Justice Elena Kagan, on the liberal side of the court, led off, quizzing Republican lawyer Michael Carvin with a series of hypotheticals that sounded very much like some of the laws proposed by the GOP since the November election, which Trump lost to Democrat Joe Biden.

Suppose, Kagan said, that "a state has long had two weeks of early voting and then the state decides that it's going to get rid of Sunday voting" during those two weeks, and suppose the evidence is that Black voters cast their ballots on Sunday 10 times more often than white voters. "Is that system equally open?" she asked.

"I think it would be," replied Carvin, because "Sunday is the day we traditionally close government offices."

Kagan clearly found that answer wanting, since, as she observed, states don't usually have Saturday hours either but they do for early voting, just as they have in the past for Sundays when Black voters often go to the polls from church.

Turning to another hypothetical, Kagan posited that a state says "we're going to have Election Day voting only, and it's going to be from 9 to 5. And there's plenty of evidence in the record that voters of one race are 10 times more likely to work a job that wouldn't allow them to vote during that time period. Is that system equally open?"

Carvin said it would seem to be.

Kagan persisted: "What about 9-to-3 or 10-to 4?"

"These are all hypotheticals that have never existed in the real world," Carvin protested. To that, Kagan replied, "It doesn't seem so fanciful to me."

Conservative Justice Samuel Alito had similarly tough questions for the other side. Suppose, he said, that a state has a two-week early voting period, and minority groups claim it should have been 60 days.

Lawyer Jessica Amunson, representing Arizona's Democratic Secretary of State, replied that such an expansion is not required by the Voting Rights Act. The Act looks with suspicion on a measure that cuts back on previous voting rights, but it doesn't require a broad expansion.

Alito followed up with a different hypothetical about how a ballot must be filled out.

"You have to ... fill in a little box to vote for a candidate," but some voters instead put a check mark next to the box, "and it can be shown that there's a statistical disparity with respect to voters who don't actually fill in the box but make a check mark" instead.

Amunson suggested that this hypothetical likely wouldn't wash either.

"You would have to show that this is, in fact, imposing a ... discriminatory burden on the minority voters" — a burden that it is not imposing on non-minority voters, she said.

Chief Justice John Roberts and several other conservative justices pointed to a 2005 report issued by former President Jimmy Carter and former Secretary of State James Baker that cited ballot collection as presenting a particular potential for fraud.

Amunson reiterated that there was no record of fraud in Arizona's absentee vote collection, but, she said, there is a record of racial animus by the legislators who introduced the bill to ban the practice.

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ARI SHAPIRO, HOST:

Since the 2020 election, Republican-dominated state legislatures have been passing restrictive voting laws. The Supreme Court heard arguments today that could determine whether those laws survive. NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: The Voting Rights Act, first passed in 1965, makes it illegal for states to enact laws that result in voting discrimination based on race. Eight years ago, the Conservative court, by a 5 to 4 vote, gutted one of the two major parts of the law. And now it is the other major section that's in the Conservative court's crosshairs.

At issue are two Arizona laws. One bars the counting of provisional ballots cast in the wrong precinct. The other bars the collection of absentee ballots by anyone other than a family member or caregiver. Arizona Republicans and the Republican National Committee argue that both are needed to prevent fraud, but the Ninth Circuit Court of Appeals ruled there's no record of such fraud. At the same time, the lower court said there is evidence that these two laws make it more difficult to vote for minorities, who often live in huge rural areas without a nearby post office or mail route.

Today's argument focused on what standard the court should use to determine whether these laws or others like them result in discrimination against minority voters, and the justices asked questions using hypotheticals plucked straight from the headlines. Justice Elena Kagan, on the liberal side of the court, led off quizzing Republican lawyer Michael Carvin with a series of hypotheticals that sound very much like some of the laws proposed by the GOP since the November election.

(SOUNDBITE OF ARCHIVED RECORDING)

ELENA KAGAN: The state has long had two weeks of early voting, and then the state decides that it's going to get rid of Sunday voting on those two weeks. Black voters vote on Sunday 10 times more than white voters. Is that system equally open?

MICHAEL CARVIN: I would think it would be because Sunday is the day that we traditionally close government offices.

KAGAN: The state says we're going to have Election Day voting only, and it's going to be from 9 to 5. And there's plenty of evidence on the record that voters of one race is - are 10 times more likely to work a job that wouldn't allow them to vote during that time period. Is that system equally open?

CARVIN: Seems like it.

TOTENBERG: Kagan persisted. What about 9 to 3 or 10 to 4?

(SOUNDBITE OF ARCHIVED RECORDING)

CARVIN: These are all hypotheticals that have never existed in the real world because...

KAGAN: This seems like - it doesn't seem so fanciful to me.

TOTENBERG: Conservative Justice Samuel Alito had similarly tough questions for the other side. Suppose, said Alito, that a state has a two-week early voting period and minority groups claim it should have been 60 days. Lawyer Jessica Amunson, representing Arizona's Democratic secretary of state, replied that such an expansion would not be required by the Voting Rights Act.

(SOUNDBITE OF ARCHIVED RECORDING)

SAMUEL ALITO: How about a rule that you have to fill in a little box to vote for a candidate but it can be shown that there's a statistical disparity with respect to voters who don't actually fill in the box but they make a checkmark beside the box?

TOTENBERG: Amunson replied that you'd have to show that the checkmark exclusion more often hurt minority voters than non-minorities. Chief Justice Roberts and several other Conservative justices pointed to a 2005 report issued by former President Jimmy Carter and former Secretary of State James Baker that cited ballot collection as presenting a particular potential for fraud. Lawyer Amunson replied that there was no record of fraud in Arizona's absentee collection, but she said there is a record of racial animus by the legislators who introduced the bill to ban the practice. By the time the argument neared an end, Justice Kagan opined, the longer this argument goes on, the less clear I am about what each side wants.

Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.