What Federal Litigators Might Be Reading In Alito’s Voting Rights Act Opinion

?? Hello readers! 

The Supreme Court leads off this week, with a 6-3 decision that two voting restrictions in Arizona comply with the Voting Rights Act, even though they disproportionately affect minority groups like Native American and Hispanic voters. 

More important than the specific restrictions, Justice Samuel Alito’s reasoning for why the restrictions were lawful — among them “that in 1982 States typically required nearly all voters to cast their ballots in person on election day” — spell trouble for new voting rights lawsuits.
 

Got a voting rights story you think our readers should hear? Respond to this email and tell us all about it. You can also call, text or Signal message me at 646-397-4678.
 

Alright, let’s dig in.

Brnovich And What It Means

The big story this week: 

The case decided by the Supreme Court Thursday, Brnovich v. Democratic National Committee, came down to a conservative interpretation — many said a conservative rewriting — of Section 2 of the Voting Rights Act, which prohibits discriminatory voting practices or procedures.
 

Alito, writing the court’s opinion, laid out “circumstances” that the court considered — including, yes, “the degree to which a voting rule departs from what was standard practice when [Section 2] was amended in 1982” and several other rules that, when applied, severely narrow the law. In effect, Justice Elanor Kagan wrote, the court chose “equality-lite.” Her whole opinion is worth a read (starting on pp. 45), as are analyses from Nicholas Stephanopoulos, Rick Hasen and Joshua A. Douglas. 

The natural question following Brnovich: How will it affect the numerous legal challenges facing new state voting restrictions, particularly the recently-filed federal suit against Georgia, which is also based on Section 2.
 

First, a distinction: The DNC, in Brnovich, focused on the effect of the Arizona restrictions, while federal litigators in Georgia are alleging that the state’s new voting laws were passed with discriminatory purpose. The law treats these assertions differently. “One thing to look out for, either by the Department of the Justice or by private plaintiffs in this case, is whether or not there’s going to be amended complaints” to address Alito’s opinion, Wendy Weiser of the Brennan Center told me.

As lower courts add meat to the bones of Alito’s opinion, there are tea leaves to read: As former U.S. Attorney and Deputy Assistant Attorney General Harry Litman told me, Alito gives significant weight to the state interest of preventing fraud, without confronting the fact that fraud of the type these laws were passed to prevent is virtually nonexistent.
 

“This will make it a lot easier for Georgia to defend the law, essentially ignoring the real-world fact staring everyone in the face that the rationale is a pretext for depression of the votes of minority groups that are more likely to vote Democratic,” he observed.
 

Also, Alito noted at one point that “partisan motives are not the same as racial motives,” which spells trouble for federal litigators in Georgia, who specifically quoted Republican lawmakers talking about the partisan advantage of voting restrictions, in order to show discriminatory intent.
 

What is to be done? The President, Justice Department and Democrats in Congress agree: Pass new laws. 

Campaign Finance Takes The Stage

Don’t forget the other decision the court rendered yesterday: Also on 6-3 ideological grounds, the court ruled that nonprofits were not to be required to hand over donor information to the state.
 

As Justice Sonia Sotomayor wrote in her dissent, the ruling will likely affect campaign finance disclosure laws:
 

>>> “Today’s analysis marks reporting and disclosure requirements with a bull’s-eye,” Sotomayor wrote. “Regulated entities who wish to avoid their obligations can do so by vaguely waving toward First Amendment ‘privacy concerns.’”
 

Florida man … U.S. District Judge Allen Winsor paused a Florida law that created $3,000 contribution caps for citizen ballot initiatives. If you’re interested in this stuff … Some campaign finance lawyers are trying to get an appeals court to take another look at why, exactly, the Federal Election Commission is so useless. 

From Around The States

The NEW HAMPSHIRE Supreme Court struck down a 2017 law that required a complex proof of residence process for people who registered to vote within 30 days of election day without photo ID.
 

PENNSYLVANIA Gov. Tom Wolf (D) vetoed the lengthy GOP elections bill we discussed last week, HB 1300, saying it was “incurably riddled with unacceptable barriers to voting.” But Republican legislators may attempt an increasingly familiar end-run: Going to voters directly with a ballot measure.
 

In MISSISSIPPI, the full panel of the U.S. 5th Circuit Court of Appeals has agreed to hear a lawsuit against the state’s Jim Crow-era law banning people convicted of certain felonies from ever voting. Did you know more than 10% of voting-age Mississippians, and 16% of Black voting age Mississippians, have lost their right to vote?
 

And finally, in ARIZONA, Republican bickering has again held up two election bills that could dramatically impact election administration in the state. 

The Latest In Audit Mania

Speaking of Arizona… the counting of ballots in the state has wrapped up, but the show is sticking around at the state fairgrounds for a few more weeks. The fallout from the disastrous “audit” continues: Maricopa County, Arizona’s largest county and the scene of the review, has said it will not use the voting machines reviewed by auditors. The polling on his whole situation, by the way, doesn’t look great for Arizona Republicans.
 

And in closing: This is one of the strangest letters I’ve ever read, in which Wisconsin’s Senate President Chris Kapenga (R) simultaneously tries to flatter Trump and correct the former president’s assertion that Republicans in the state were “working hard to cover up election corruption.”
 

“The power of your pen to mine,” Kapenga tells Trump, “is like Thor’s hammer to a Bobby pin.” (H/t WaPo)
 

In light of the Brnovich decision, Business insider reports: Despite a record turnout, Native American voters faced challenges new and old to casting a ballot in the 2020 election
 

Atlanta Journal-Constitution: See Fulton ballots with unclear markings and how officials ruled

The Atlantic: The Senator Who Decided to Tell the Truth, “A Michigan Republican spent eight months searching for evidence of election fraud, but all he found was lies.”
 

The New Yorker: Threats Against Election Officials Are a Threat to Democracy