Today's oral arguments in the U.S. Supreme Court lived up to the hype, as the justices grilled Arizona's Attorney General and counsel for the Secretary of State and both major parties about Arizona's voting laws and the nation's Voting Rights Act. After all of the arguments, the outcome of the case looks like it could end up somewhere in between what the opposing parties want.
Arizona's Law provided live-tweeting with Chandler trial(!) attorney Tom Ryan, and provide news analysis* here. We also urge you to read and/or listen to today's arguments, and have provided both the audio and the transcript at the bottom of this article.
As we discussed this morning, the long and winding road of this case started back in 2016, a couple of years after the Supreme Court had freed Arizona and other states - those that had had a history of discrimination against minority voters - from pre-clearing new laws through the U.S. Department of Justice. Arizona passed a ban on turning in early ballots from people not in your family, and the Democratic party challenged it.
That challenge was paired with another 2016 case challenging Arizona law throwing out the entire ballot when cast Outside Of the voter's Precinct ("OOP"). Both disproportionately impacted Arizona's minorites, the Democrats claim.
Perhaps the most startling moment of today's arguments came when Justice Coney Barrett asked the AZGOP attorney why the Republican Party was in this case, and Michael Carvin replied bluntly, "It puts us at a competitive disadvantage relative to Democrats. Politics is a zero-sum game and every extra vote they get through unlawful interpretations of Sxn 2 hurts us." (In our live-tweeting, that prompted an immediate "bad answer" reaction.)
AZAG Mark Brnovich chose to handle the high-profile arguments himself, and more than held his own under the rapid-fire round-robin questioning from the nine Justices. (A previous AZAG probably regretted not handing off that 2013 election law case, though.)
Brnovich twice urged the Justices to keep in mind that Arizona offers a "plethora" of voting opportunities, and that the totality of those options may blunt the impact if one law or another creates a burden for minority voters.
As Ryan bluntly put it, "his responses were shameful as it related to the "plethora" of voting options in the State of Arizona. Yes, but his own party is out to gut that "plethora" and there is a high likelihood they will be passed and enacted into law." (Ryan is referring to a plethora of bills currently percolating through the GOP-controlled legislature.)
Secretary of State Katie Hobbs (D) was then represented by outside counsel Jessica Amunson, and the Democrats by Bruce Spiva. They were asked repeatedly - by Chief Justice Roberts and Justices Gorsuch and Kavanaugh - about the Carter-Baker Commission which had identified ballot collection efforts to be a possible point of weakness for fraudulent conduct.
Amunson and Spiva both argued that Arizona's Legislature had not considered that when passing the ban, and that Arizona already had a law criminalizing any fraudulent conduct with ballots. The most spirited exchange on the subject occurred between Gorsuch and Amunson and can be found on pages 83-86 in the transcript below.
Priya Sundareshan, the Chair of the Arizona Democrats' Election Integrity Committee, told Arizona's Law afterwards that she thought it went well. "Voting access is fundamental for citizen participation in democracy. The laws at issue in the case heard today would unnecessarily restrict voter access using the cover of election integrity (which has been validated multiple times these last few months). We hope the Supreme Court removes these barriers to voting and does not further damage the Voting Rights Act."
It is possible, however, that the Justices fashion a resolution which will make neither side completely happy. In fact, some of the Justices - especially Chief Justice Roberts and Justices Coney Barrett and Kavanaugh - seemed to be looking for a way of finding in favor of the Republicans' ballot harvesting ban (and, even the somewhat less partisan OOP policy) but in a narrow way which would still leave some teeth in Section 2 of the Voting Rights Act.
Ryan pointed out the bit of hypocrisy in the postion the Justices face themselves. "We would not be here today if the U.S. Supreme Court had not gutted Sec. 5 of the Voting Rights Act in the Shelby County v. Holder decision in 2013. Sec. 5 of the VRA required the Dept of Justice to pre-clear voting law changes in states where there had been a history or pattern of voter discrimination against protected classes of citizens. Experienced and trained attorneys in the DOJ knew when a covered state was acting to violate the voting rights of a protected class. Sec. 5 placed the burden on covered states to prove there was a non-discriminatory animus in any voting law change. Once the Court in Shelby County determined Sec. 5 was no longer needed (apparently thought racial hatred was now so passe) it moved the protection of voting rights to the Courthouse under Sec. 2. For five decades Sec. 5 worked just fine. But now we may see the Supreme Court in Brno v. DNC make mince meat out of even Sec. 2."
As we jokingly answered on Twitter this morning, the Supreme Court's decision should be handed down this Friday. In reality, however, because this has shaped up to be one of their most significant and possibly closely-divided cases of the term, chances are that it will be among the few released near the end of their term in May or June.
* "News analysis": Arizona's Law and Arizona's Politics are independent, non-partisan political news blogs. When we engage in analysis or commentary, we attempt to label it as such. This article may be classified as "news analysis" because it attempts to "provid(e) interpretations that add to a reader's understanding of a subject."
***
"AZ Law" includes articles, commentaries and updates about opinions from the Arizona Supreme Court, U.S. Supreme Court, as well as trial and appellate courts, etc. AZ Law is founded by Phoenix attorney Paul Weich, and joins Arizona's Politics on the internet.
AZ Law airs on non-profit Sun Sounds of Arizona, a statewide reading service that provides audio access to printed material for people who cannot hold or read print material due to a disability. If you know someone who could benefit from this 24/7 service, please let them know about member-supported Sun Sounds. And, YOU can donate or listen here.
Previous episodes of AZ Law can be streamed or downloaded here, or wherever you get your podcasts.
