GOP Voting Rights Act Position Falls Apart in SCOTUS Arguments

Yves here. Normally the big action in litigation is when cases are first filed and courts issue rulings. But sometimes the byplay can be entertaining and revealing. Even though the mavens seem to think the Arizona case before the Supreme Court on its restrictions on voting rights is bound to yield some concessions to the right wing, it appears the conservative forces scored an own goal yesterday. It’s not clear if this fumble will ultimately matter much. Nevertheless, it appears even the GOP realizes there are some practices that it can’t justify, which then raises the uncomfortable question of how to defend drawing other lines.

By run75441. Originally published at Angry Bear

Tuesday brief update on Arizona and GOP oral arguments in SCOTUS.

Hardcore GOP Position For Defanging VRA Falls Apart Under SCOTUS Questioning,” Tierney Sneed, TPM

The Arizona case before the Supreme Court involves two restrictive voting practices in the state which invalidates a vote:

– Arizona’s 2016 ban on most third-party mail-ballot collection, and

– its longstanding policy of discarding a voter’s entire ballot if she casts it at the wrong precinct.

Many states have a similar rule, while in other places, an out-of-precinct voter’s ballot counts for non-local races.

Beyond the question of whether those specific policies — which the 9th Circuit U.S. Court of Appeals struck down — should be reinstated, the bigger potential consequence of the case is whether the Supreme Court uses it as a vehicle to further narrow the scope of the Voting Rights Act.

The state Republican party, at least in its briefs, argued that it should. It wanted to severely limit the use of Voting Rights Act Section 2 “results test,” which prohibits policies that have the effect of discriminating against minority voters (as opposed to those that are proven to be  intentionally  discriminatory). The test should only be applied in a redistricting context or for voter qualification measures, the GOP said in its brief. Election regulations — i.e. the measures that dictate the “time, place and manner” in which the ballots are cast — should be off the table for “results test” cases, the GOP was arguing.

Or, at least, that was the state party’s position until Carvin was thrown a series of hypotheticals by Justice Elena Kagan. She asked him if each example would be compliant under the interpretation of the Voting Rights Act he was putting forward.

Carvin said that permissible under the VRA were examples of policies that ended Sunday in-person early voting or that limited polling places hours to 9-5. But faced with her hypothetical about counties of vastly different sizes being restricted to one polling place each, as well as an example of a policy that put polling places only in country clubs, Carvin waffled. He said the former would likely be illegal under the relevant VRA provision, because it has to take “into account demographic realities.” The latter scenario would provide minorities “with less opportunity” to vote than non-minorities, Carvin said.

With those answers, Carvin cut against his own brief’s argument about election regulations not being covered under the relevant part of Section 2. That flip-flop attracted scrutiny from two conservative justices. Justice Brett Kavanaugh asked Carvin to elaborate on how the results test, under his interpretation, is supposed to take into account demographic realities. Justice Coney Barrett said his answers to Kagan’s examples suggested some “contradictions” in his position.

I don’t understand why you conceded, in your examples to Justice Kagan, that some of those time, place and manner restrictions — like time-place-and-manner ‘you can only vote at a country club,’ or time-place-and-manner ‘this is the placement of the polls and they’re going to be placed in areas that are burdensome to minorities’ — aren’t those time, place and manner restrictions?

Coney Barrett asked, later adding that the distinctions made in the brief were not relevant to what Carvin was now arguing Tuesday.

In questions posed to other lawyers arguing the case, both Kagan and Kavanaugh made snide remarks about the theory laid out in the GOP’s brief being different than what Carvin had argued in court on Tuesday.

The longer this argument goes on, the less clear I am as to how the parties’ standards differ,

Kagan said at one point, addressing Jessica Ring Amunson, a lawyer for Arizona’s Secretary of State Katie Hobbs (D).

So if I understood what Mr. Carvin said at argument, as opposed to what he said in his brief, he said, of course, you should look at demographic realities,

she continued.

Coney Barrett’s harsh exchange with Carvin suggested that there were not five votes on the court for the state GOP’s original position that put election regulations out of reach for the results test of the VRA. The potential that the Court would take the state GOP’s suggestion and say that the “results test” did not cover election regulations was the absolute doomsday scenario for federal voting rights enforcement. There were plenty other ways, however, that the conservatives flirted with limiting the scope of that provision.

Several Republican appointees appeared focused on a standard (since withdrawn) laid out by the Trump administration. That standard would raise the bar on the kind of evidence challengers would have to bring in alleging an election measure had a discriminatory effect.

Here is where I believe we see the real intent of the Arizona GOP being in SCOTUS along with the state came out if you did not know previously.

How Carvin wavered on his even more hostile take on the VRA was not the only surprising moment from the hearing. He was surprisingly candid when he was asked by Justice Coney Barrett why the GOP should be allowed to be in the case in the first place. (Its opponents have argued that striking down the measures does not inflict the kind of harm to the GOP that would allow it to defend the measures in court.)

Carvin justified the GOP presence in the case by saying that

blocking the policies put Republicans at a “disadvantage” because it would help more people to vote, and those people would lean Democratic.

“Politics is a zero-sum game, and every extra vote they get through unlawful interpretations of Section 2 hurts us,”

Hardcore GOP Position For Defanging VRA Falls Apart Under SCOTUS Questioning,” Tierney Sneed, TPM

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  1. Basil Pesto

    blocking the policies put Republicans at a “disadvantage” because it would help more people to vote, and those people would lean Democratic.

    jeeeeesus. best country in the world!

    1. Ian Ollmann

      As has been evident for years, the goal is winning. It isn’t to advance a policy, or an agenda, or some idea. It is merely to install the “right people” on the throne. In a word, it is aristocracy.

      1. Old Jake

        That is the original orientation of conservatism, since it became a differentiated component of the political scene in the late 18th century, no?

  2. Josef K

    The GOP has an overall odious agenda, which is why it’s usually not clearly articulated, only implied or dog-whistled out to those for whom a wink and a nod is insufficient.
    It’s still obvious enough to most people that they wouldn’t vote for GOP candidates under most circumstances. So the only way to win is to steal (and then project that on the Dems when they win despite all odds).
    Obviously the Dems do dirty too, but there remains at least a hint of a scrap of the intent to play fair, vs winning is everything.

    1. Samuel Conner

      > at least a hint of a scrap of the intent to play fair

      Perhaps this is part of what underlies the Ds’ apparent inability to govern when in power. /s

      1. Patrick

        Aye. The Dems are no longer the party of change (reform). Captured by (corporate) money, they too work to preserve the status quo (and camouflage their status quo class-based policies with identity politics).

    2. Amfortas the hippie

      all that pissing in my ear, for as long as i can remember, about morality and responsibility and “The People!” (with stern jaw, intense gaze, etc) was nonsense.
      the dems are certainly not pillars of fortitude and integrity, but i think that they’ve learned at the feet of the masters…at least since Bill sold the party down the river.
      the Aristocracy* is inherently conservative(original, dictionary definition).
      Buckley defined it thus:” Standing athwart History, yelling ‘STOP!'”.
      But that, just like the pretend christian morality and steadfast support for “free markets”, all that is just the brochure.
      They needed footsoldiers, circa 1965…couldn’t win free and fair because “The GOP has an overall odious agenda”.
      so they coat it with a mishmash of halfbaked philosophical manure, scare the hell out of their supporters with nightmare tales of the Revolutionary Madman, Joe Biden and baby flaying Hilldog….cry about the Decadence…enabled by the Sins of the “left”…
      it’s always been ridiculous…and when confronted, many at the lower end are well aware of it….they just still believe the terrifying stories about dem=commie=pol pot.

      it’s good to see them falling out of the closet like this, though.
      after all these years observing parts of this cohort, i’ve often wondered what it would take( —-or tom delay so obviously cheating on that redistricting mess—or any of an hundred more scandals of low character and lawlessness.)

      (* we really need new words for our classes…which might be useful in countering the Woke Mob, as well)

      1. Patrick

        I’m north of you up in oklahoma. I crossed paths with this welltodo banker type in the runup to the election. From what I could glean from our much too long chat (lol) he seemed to actually believe that a Biden victory meant a return of socialism. I laughed and offered that “socialism is long dead and buried in this country”. Adding to that my neighbor (a retired secretary in her 80’s) circa that same time asked if Biden was going to take her money. I assured her that the constitution was designed to make sure that wouldn’t likely happen. Lordamercy! These folks remain fully in the embrace of the Red Scare (which of course in it’s original iteration was not a reality based kind of thang).

    3. Darius

      If the Dems were anything more than a bunch of poseurs who are squeamish about power and would rather throw elections than win them, they could dispatch the Republicans pretty easily. They are afraid of power because their donors don’t want them to do anything that would help people and take us off the road to doom. Republicans get away with this fraud because the Democrats let them.

      1. Amfortas the hippie

        i yelled at texas dems and my local bunch(when they would emerge, briefly, from their hillforts) about this very thing, from 2000 until i gave up on both, towards the end of Obamatime:
        flog an Amendment to the Constitution universalising and automatising the Right to Vote as an inalienable Right, and run on it…dare the teabillies/maga/whatever to advocate against it(resulting in the hamhanded mess in the article, it would be hoped)
        but none of those dems wanted to talk about that…local bunch had long wine and cheese meetings in hilltop manses(once, with a picture window looking directly down upon the Barrio, where i then lived), where they discussed how the richest among them would be flying off(or had flown off) to some other state to campaign for some wishywashy former repub or another.

        at the end, i challenged my local bunch in the local paper to join me at the cop shop to get deputised for voter registration.
        not a single one showed up….and i haven’t been invited to any of their “meetings”, since.
        scared of power…pursuing it, holding it, using it…and terrified that someone will 1. get upset with them, or 2. uncle billy will learn that they are pinkos and take offense.

  3. flora

    Thanks for the link. Pleasantly surprised. Apparently the sense of democracy vs. established parochial power is still a thing. Good to know.

    Noting that ‘democracy’ in this comment is not assigned to any particular party.

  4. Trustee

    The candor is interesting. However, it won’t make a difference.

    The law is designed to suppress votes and will be upheld.

  5. John

    The answer to all of the legal kerfuffle is to automatically register everyone to vote when they come of age, have national standards or a model law for absentee, mail-in, and early voting, don’t try to hide the polling places, and paper ballots counted in public. Did I miss anything?

    1. HotFlash

      I would add mandatory voting like they have in Australia*, proportional voting instead of first-past-post, and the option “none of the above” as well as write-in. I’ve often thought I would like the option of voting against a candidate, too.

      *note: still some glitches in registering indigenous Australians, and even with nearly all Australians voting they stil got Scotty from Marketing.

  6. Hayek's Heelbiter

    I’m curious.
    SCOTUS and POTUS are essentially self-defined, but I never heard anyone use a term for Legislators of the United States, “LOTUS.”
    It would seem to me very apt, as news reports about Congressional shenanigans often read like dispatches from the Land of the Lotus Eaters.
    “The Lotus Eaters prove to be dangerous, for they offer a honeyed plant, the Lotus, which makes those who eat it lose their interest in returning home,” i.e., to the constituents who got them elected.


    The ultimate question is whether SCOTUS will put aside its right-wing leanings and simply do what’s right. That will depend on the justices’ concerns about their role in history.

  8. run75441

    TPM does a nice job of detailing the Voting Rights Case of which a major point is what the Arizona Republican Party Attorney Garvin reveals in his answer to Justice Barret when asks why he was there:

    Barrett: “Why is the Arizona Republican Party in this case at all? Why do you care about keeping these laws on the books?”

    Garvin: the 9th Circuit’s ruling “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 Section 2 hurts us. It’s the difference between winning an election 50 to 49 and losing.”

    Painfully Obvious what Repubs want out of SCOTUS. Such bravado by Repubs.

    Other justices may have a different opinion than what I suspect Barrett has on this blatant attempt by Republicans to make voting more rigorous for minorities and native Americans than what is now in place. A better interpretation of the testimony by attorneys and comments by Justices can be found at SCOTUS Blog. I had first thought this might come out favorably. After reading the SCOTUS Blog, I do not believe so.

  9. neo-realist

    Reading and listening to some of the black podcasts, and websites, e.g., black voters matter, there may be some street action, which may include a march on Washington while congress is in session. I think the HR1 issue is far from settled.

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