It appears likely that voter advocates will suffer at least some loss in their abilities to bring Voting Rights Act cases with the Arizona lawsuit heard by the Supreme Court Tuesday.
But the oral arguments produced another seeming loser. Michael Carvin, the high-profile Republican lawyer who was representing the state GOP in the hearing. Carvin backtracked on the sweeping arguments in the GOP’s briefs, prompting skepticism from the court’s left and right wing alike.
“I want to make sure that I understand your position because it strikes me that it has some contradictions in it,” Justice Amy Coney Barrett said in comments suggesting that there was little support on the bench for the GOP’s hardcore approach to defanging the VRA.
The case involves two restrictive voting practices in Arizona: the state’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.
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,” he said.
This post has been updated.