Justices seek middle ground in voting-rights fight

Several members of the Supreme Court’s conservative majority seemed to search for a middle ground Tuesday in the most significant Voting Rights Act case the justices have taken up since the court struck down a critical part of that landmark law eight years ago.

During a nearly two-hourlong oral argument session, Chief Justice John Roberts and Justices Brett Kavanaugh and Amy Coney Barrett appeared to be seeking a way to allow states to maintain common, long-standing election rules while allowing suits over changes that disproportionately impact minority voters.

With the high court’s three liberals are relatively sympathetic to such claims, the stances Roberts, Kavanaugh and Barrett struck during the arguments suggested that Democrats and minority political activists are likely to avoid the worst-case scenario many feared of another major blow to enforcement of the Voting Rights Act.

The cases argued Tuesday involved challenges to a 2016 Arizona law banning what critics dub “ballot harvesting” and the state’s longstanding policy allowing counties to disregard ballots cast by voters who show up at the wrong precinct.

A lawyer arguing on behalf of Arizona's state Republican Party, Michael Carvin, contended Arizona’s rules amount to “time, place and manner” limits that don’t prevent anyone from voting — so the Voting Rights Act should only apply if someone can prove the rules were enacted for racial reasons.

“Arizona has not denied anyone any voting opportunity of any kind. It’s not like a literacy test that denies you the right to vote,” said Carvin. “Everyone here is eligible and registered to vote. All they have to do is utilize the myriad opportunities that Arizona has offered them.”

Carvin noted that about 80 percent of Arizonans already cast their ballots by mail, but Justice Sonia Sotomayor said many Native Americans in the state don’t get mail delivery at their homes, and some Hispanics in rural areas lack cars to get to post offices that are often far away.

“If you just can’t vote for those reasons and ... your vote is not being counted, you’ve been denied the right to vote, haven’t you?” she asked. “You’re denied something if you’re not given the right to vote, or it results in your denial from circumstances that the state could remedy easily.”

Carvin said those concerns should not result in a state having to abandon precinct voting or allow “partisan operatives” to collect ballots. “That’s a Hobson’s choice,” he said.

Justice Elena Kagan challenged Carvin’s claim that time, place and manner limits on voting could not trigger the Voting Rights Act provision that addresses burdening the right to vote “on account of race.” She asked if changing voting hours from 9 a.m.-5 p.m. to 10 a.m.-4 p.m. could trigger that provision if it was shown that minorities would have more trouble voting during the shorter hours.

“These are all hypotheticals that have never existed in the real world,” Carvin protested.

“This ... doesn’t seem that fanciful to me,” Kagan replied.

Barrett, the court’s newest member, also rejected the GOP lawyer’s claim that time, place and manner restrictions shouldn’t be subject to challenge. “I don’t really see why time, place and manner really ... carries a lot of weight in your analysis,” she said.

Kavanaugh repeatedly signaled that he favored an interpretation where courts would look more skeptically at changes that adversely affect minorities than at challenges that focus on existing practices. He also said rules that are “commonplace” in states that don’t have a history of racial discrimination might be presumed to be acceptable.

However, Carvin cautioned that suspicion about changes to election procedures could leave politicians concerned about “ballot integrity or security ... hamstrung” by the actions of their predecessors. He warned the court that a murky standard would result in “an amorphous, manipulable situation where no one knows what the rules are going into the next election.”

Even Sotomayor, who is widely considered the court’s most liberal justice, suggested Arizona’s newfound interest in limiting who can collect absentee ballots was more dubious than the state’s policy refusing to count out-of-precinct votes in counties with precinct voting.

“It’s been around for a long time,” Sotomayor said of the precinct-voting rule.

Arizona state Attorney General Mark Brnovich urged the justices to be cautious about using “statistical anomalies” to overturn state rules designed “to uphold the integrity of the election process.” He argued that rejections for out-of-precinct voting are very rare in Arizona, given that most voters vote by mail.

Despite the highly contentious presidential election the nation just experienced and former President Donald Trump’s repeated but unsubstantiated claims of voter fraud, there were few references to that tumult on Tuesday.

Carvin briefly asserted that the mail-in voting system that predominates in Arizona is essentially the same as the mail-in system that Democrats advocated across the country last year as a response to the coronavirus pandemic.

And, without explicitly mentioning Trump’s loss, a lawyer for the Democratic National Committee noted that there has been a sudden surge in interest in purported anti-fraud measures among Republican lawmakers in the wake of last fall’s election.

“The last three months have seen an even greater uptick in proposed voting restrictions, many aimed squarely at the minority groups whose participation Congress intended to protect,” Bruce Spiva said.

Justice Samuel Alito sounded deeply skeptical of arguments from minority voters and Democrats, including Jessica Amunson, an attorney for Arizona Secretary of State Katie Hobbs.

When Amunson said statistical disparities alone aren’t enough to show a Voting Rights Act violation and that courts need to “take a functional view of the political process and look to a holistic view of how it is actually affecting the voter on the ground,” Alito scoffed at her response.

“Well, those are a lot of words. I really don’t understand what they mean,” Alito said.

While Roberts seemed generally sympathetic to the position taken by Democrats in the cases, he also made clear he doesn’t think absentee-ballot fraud concerns are frivolous. He repeatedly referred to a 2005 report by former President Jimmy Carter and former Secretary of State James Baker that said such ballots have historically been the focus of fraud efforts.

Under Trump, the Justice Department filed a brief that did not go as far as the state or the Republicans, but largely sided with their view. Last month, with new officials in charge under President Joe Biden, the department withdrew its support for that brief.

However, Deputy Solicitor General Ed Kneedler stood by the Trump administration’s position that neither of Arizona’s challenged practices at issue in the cases violates the Voting Rights Act.