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Judges seek common ground in the fight for the right to vote

The cases discussed on Tuesday involved challenges to a 2016 Arizona law banning what critics call “ballot harvesting” and the state’s long-standing policy of allowing counties to ignore the ballots. ballots issued by voters who present themselves in the wrong constituency.

Arizona State Republican litigator Michael Carvin argued that Arizona’s rules come down to “time, place and manner” limits that do not prevent anyone from doing so. vote – so voting rights law should only apply if someone can prove the rules. were adopted for racial reasons.

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

Carvin noted that about 80% of Arizonans have already voted by mail, but Judge Sonia Sotomayor said many Native Americans in the state did not receive mail delivery to their homes and some Hispanics in rural areas lacked mail. cars to get to post offices. are often far away.

“If you just can’t vote for these reasons and … your vote isn’t counted, you’ve been denied the right to vote, haven’t you?” she asked. “You are denied something if you are not given the right to vote, or it causes your denial of circumstances that the state could easily remedy.”

Carvin said those concerns should not lead a state to abandon constituency voting or allow “partisan agents” to collect ballots. “It’s a Hobson choice,” he says.

Judge Elena Kagan took issue with Carvin’s assertion that time, place and method of voting could not trigger the Voting Rights Act provision that deals with increased voting rights ” because of race ”. She asked if changing the voting hours from 9 a.m. to 5 p.m. to 10 a.m. to 4 p.m. could trigger this provision if it was shown that minorities would have more difficulty voting during the shorter hours.

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

“That… doesn’t sound so fancy to me,” Kagan replied.

Barrett, the newest member of the tribunal, also rejected the GOP attorney’s contention that the restrictions on time, place and manner should not be challenged. “I don’t really see why time, place, and manners… really matter that much in your analysis,” she says.

Kavanaugh has repeatedly signaled that he favors an interpretation in which courts view with more skepticism changes that negatively affect minorities than challenges that focus on existing practices. He also said rules that are “common” in states that do not have a history of racial discrimination could be presumed to be acceptable.

However, Carvin warned that suspicions about changes in electoral procedures could leave politicians concerned about the “integrity or safety of ballots … crippled” by the actions of their predecessors. He warned the court that an obscure standard would result in “an amorphous and manipulable situation where no one knows what rules will go into the next election.”

Even Sotomayor, who is widely regarded as the most liberal justice in the court, suggested Arizona’s new interest in limiting who can collect mail-in ballots was more dubious than state policy of refusing to count. non-constituency votes in counties with constituency voting.

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

Arizona State Attorney General Mark Brnovich urged judges to beware of using “statistical anomalies” to overturn state rules aimed “at maintaining the integrity of the electoral process “. He argued that refusals for out-of-riding voting are very rare in Arizona, given that most voters vote by mail.

Despite the highly controversial presidential election the country has just suffered and repeated but unfounded allegations by former President Donald Trump of electoral fraud, there were few references to the uproar on Tuesday.

Carvin briefly asserted that Arizona’s predominant postal voting system is essentially the same as the correspondence system Democrats advocated across the country last year in response to the coronavirus pandemic.

And, without explicitly mentioning the loss of Trump, an attorney for the Democratic National Committee noted that there had been a sudden surge in interest in the alleged anti-fraud measures among Republican lawmakers following last fall’s election.

“The past three months have seen an even greater increase in proposed voting restrictions, many of which were squarely aimed at minority groups whose participation in Congress was meant to protect,” said Bruce Spiva.

Judge Samuel Alito seemed deeply skeptical of arguments from minority voters and Democrats, including Jessica Amunson, a lawyer for Arizona Secretary of State Katie Hobbs.

When Amunson said statistical disparities alone were not enough to show a violation of voting rights law and that courts should “have a working view of the political process and consider a holistic view of how it affects really the voter on the ground, ”Alito scoffed at his answer.

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

While Roberts seemed generally supportive of the Democrats’ stance in these cases, he also made it clear that he did not think the mail-in vote fraud concerns were frivolous. He repeatedly referred to a 2005 report by former President Jimmy Carter and former Secretary of State James Baker that these ballots have always been at the center of fraud efforts.

Under Trump, the Justice Department filed a brief that didn’t go as far as the state or Republicans, but broadly shared their point of view. Last month, with new officials under President Joe Biden, the department withdrew its support for the brief.

However, Deputy Solicitor General Ed Kneedler supported the Trump administration’s position that none of Arizona’s contested business practices at issue violate voting rights law.

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