Monday, June 28, 2021

JULY 4TH FIREWORKS *INSIDE* SUPREME COURT??? No Word On Decision In Arizona's Major Voting Rights Case

UPDATE, 6/29, 8am:  Opinion in Brnovich v DNC will be released Thursday, July 1 (at 7 or 7:10am, Arizona Time).

UPDATE, 6/29, 7:20am: The Justices ended up releasing three opinions this morning. Arizona's Brnovich v DNC was not one of them. Only two cases remain. Date(s) have not yet been posted for them. (It is extremely rare for them to go into July.)

5pm Update: The Court has posted an after-hours "perhaps" announcement: "The Court may announce opinions on Tuesday, June 29." Election law expert and law professor Rick Hasen tells Arizona's Law: "I wouldn’t read anything into the short delay. These are tough cases and they have a lot to do at the end." 

***

Arizona's voting rights case in front of the U.S. Supreme Court is the most prominent of the five still-undecided cases, so the Court's surprising silence on when those Opinions will be announced has Arizona legal and political eyes looking for clues. 

"A loaded God complex, cock it and pull it"?

Typically, the Supreme Court gives advance notice of when it will announce opinions. However, after Friday's opinions came and went, there were no more such "Opinion Days" on their calendar. And, no updates were made to SupremeCourt.gov today.

Couple that with their tradition of finishing their "term" by the end of June and the upcoming Independence Day holiday, and speculation is ramping up.

Everyone seems to agree that this is an indication that the Justices are wrestling over elements of the case about Arizona's so-called ballot harvesting ban and the out-of-precinct rules. Those elements might include the actual result, but are more likely about portions of the written opinions and which Justices support which portions.

The case is titled Brnovich v. DNC, and Arizona Attorney Mark Brnovich has been tweeting about it frequently during the past few weeks. Brnovich argued the case for the state and he is advising people to "stay tuned" and to visit the AG's website for more info. He must be on pins and needles - they pinned the tweet about the coming ruling - but his office has not responded for comment.

Arizona's Law has asked several experts what Brnovich and other Arizonans should think of this silence.

Amy Howe, the co-founder and reporter for the popular SCOTUSblog, confirmed that it is "unusual".

"With the caveat that it is of course impossible to know exactly what's going on behind the scenes, the fact that the Court hasn't said when it will next release opinions this week is unusual. At a minimum, it suggests that they are going down to the wire on the five remaining opinions -- of which Brnovich is the highest-profile, and one on which the justices seemed likely to be divided."

Some of the Twitter speculation has been, errr, a bit whimsical. Michigan Law Professor Leah Litman spun out a hypothesis about Justice Samuel Alito going emo to persuade fellow Justices.

More seriously, though, Litman tells Arizona's Law that it is not "super weird" IF they finish up on Wednesday. 

"Honestly, I don't make that much of it yet. I assume they are waiting to see if they can finish up everything to release all on Wednesday (possible some lingering disagreements about opinions & Covid delays have created some uncertainty about whether that's possible) before announcing Wednesday. It's inconvenient but not (yet) super weird (to me)...assuming they finish up Wednesday"

 We also reached out to the Supreme Court for an explanation (just in case we could get a scoop), but the Public Information office was as quiet as the nine Justices have been.

"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.

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