Supreme Court Seems Ready To Uphold Restrictive Voting Laws

Mar 2, 2021
Originally published on March 2, 2021 4:15 pm

The U.S. Supreme Court seemed ready on Tuesday to uphold Arizona's restrictive voting laws, setting the stage for what happens in the coming months and years, as Republican-dominated state legislatures seek to make voting more difficult.

Since the November election, and President Trump's false claims that the balloting was rigged, Republican-run state legislatures have raced to pass new laws that would curb the modern-day expansion of the right to vote. Many of these laws likely will be challenged in court, and on Tuesday the Supreme Court heard arguments in a case that could set the parameters for which of those restrictive laws survive, and which don't.

The Voting Rights Act, first passed in 1965, makes it illegal for states to enact laws that result in voting discrimination based on race. Eight years ago, the conservative court, by a 5-to-4 vote, gutted one of the two major parts of the law. Now, it is the other major section that is in the conservative court's crosshairs.

Tuesday's case involved two Arizona laws. One bars the counting of provisional ballots cast in the wrong precinct. The other bars the collection of absentee ballots by anyone other than a family member or caregiver.

State Republicans and the Republican National Committee argued that both laws are needed to prevent fraud, but the Ninth Circuit Court of Appeals disagreed. It found no record of ballot fraud, but it did find evidence that the two laws make voting more difficult for minorities who often live in huge rural areas without a nearby post office or mail route.

Tuesday's Supreme Court argument focused on what standard the court should use to determine whether these laws, or others like them, result in unconstitutional discrimination against minority voters. And the justices' questions appeared to be plucked straight from the headlines.

Justice Elena Kagan, on the liberal side of the court, led off, quizzing Republican lawyer Michael Carvin with a series of hypotheticals that sounded very much like some of the laws proposed by the GOP since the November election, which Trump lost to Democrat Joe Biden.

Suppose, Kagan said, that "a state has long had two weeks of early voting and then the state decides that it's going to get rid of Sunday voting" during those two weeks, and suppose the evidence is that Black voters cast their ballots on Sunday 10 times more often than white voters. "Is that system equally open?" she asked.

"I think it would be," replied Carvin, because "Sunday is the day we traditionally close government offices."

Kagan clearly found that answer wanting, since, as she observed, states don't usually have Saturday hours either but they do for early voting, just as they have in the past for Sundays when Black voters often go to the polls from church.

Turning to another hypothetical, Kagan posited that a state says "we're going to have Election Day voting only, and it's going to be from 9 to 5. And there's plenty of evidence in the record that voters of one race are 10 times more likely to work a job that wouldn't allow them to vote during that time period. Is that system equally open?"

Carvin said it would seem to be.

Kagan persisted: "What about 9-to-3 or 10-to 4?"

"These are all hypotheticals that have never existed in the real world," Carvin protested. To that, Kagan replied, "It doesn't seem so fanciful to me."

Conservative Justice Samuel Alito had similarly tough questions for the other side. Suppose, he said, that a state has a two-week early voting period, and minority groups claim it should have been 60 days.

Lawyer Jessica Amunson, representing Arizona's Democratic Secretary of State, replied that such an expansion is not required by the Voting Rights Act. The Act looks with suspicion on a measure that cuts back on previous voting rights, but it doesn't require a broad expansion.

Alito followed up with a different hypothetical about how a ballot must be filled out.

"You have to ... fill in a little box to vote for a candidate," but some voters instead put a check mark next to the box, "and it can be shown that there's a statistical disparity with respect to voters who don't actually fill in the box but make a check mark" instead.

Amunson suggested that this hypothetical likely wouldn't wash either.

"You would have to show that this is, in fact, imposing a ... discriminatory burden on the minority voters" — a burden that it is not imposing on non-minority voters, she said.

Chief Justice John Roberts and several other conservative justices pointed to a 2005 report issued by former President Jimmy Carter and former Secretary of State James Baker that cited ballot collection as presenting a particular potential for fraud.

Amunson reiterated that there was no record of fraud in Arizona's absentee vote collection, but, she said, there is a record of racial animus by the legislators who introduced the bill to ban the practice.

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Neera Tanden has withdrawn her name as President Biden's nominee to head the Office of Management and Budget. Her nomination has been controversial, mostly because of disparaging comments she's made in the past about Republican lawmakers. White House correspondent Franco Ordoñez is with us now for more.

Hi, Franco.


SHAPIRO: What did the White House and Tanden say this evening?

ORDOÑEZ: Well, the White House released a letter from Neera Tanden sent to President Biden saying, quote, "now seems clear that there is no path forward to gain confirmation." She basically said she didn't want a process - she didn't want the process to distract from Biden's priorities. And in a statement, Biden responded that he looks forward to having her serve in some capacity in his administration. But it's clear tonight that that won't be in the role that they had hoped for. You know, this is a big loss for Biden in Congress, and it's a sign just - one of the many signs of how difficult it will be for him to push his legislative priorities, given, you know, what is really a very slim majority that Democrats have in Congress.

SHAPIRO: Right, with this 50-50 Senate, you can't lose one vote. Remind us why Tanden's nomination became so controversial.

ORDOÑEZ: Well, you know, she was seen as a Democratic Party warrior. As head of the Center for American Progress, she sent tweets that some lawmakers saw as very polarizing. I mean, just some examples - she's called Senate Minority Leader Mitch McConnell Voldemort, you know, the "Harry Potter" villain. She described Senator Susan Collins of Maine as, quote, "the worst" and said that vampires have more heart than Ted Cruz, obviously the Republican senator from Texas. And it wasn't just Republicans. She was also critical of Senator Bernie Sanders of Vermont and some of his supporters. You know, during her confirmation hearing, Tanden did say that she regretted that kind of language. But Biden faced a lot of pressure over this, considering he had promised a new tone, a more civil tone, in Washington.

SHAPIRO: But the Biden administration stood by Neera Tanden despite the controversy, so what changed?

ORDOÑEZ: That's right. You know, several lawmakers, though, on both sides of the aisle had made clear that they wouldn't support her nomination, and that included Democratic Senator Joe Manchin. You know, Senator Susan Collins had said Tanden lacked the experience and the temperament to lead the agency. And the administration had been making the rounds on Capitol Hill until recently, just trying to sell a couple Republican senators on her nomination. But that was always going to be a tall order.

SHAPIRO: Now, you said it seems likely that Tanden will serve in some other role in the administration, but this leaves a vacancy in the OMB position, which is really important. What are you hearing about who else Biden is considering right now?

ORDOÑEZ: So a congressional source and a source familiar with the deliberations tell me that there are several candidates being considered. One is John Jones. He's a former chief of staff to Representative Emanuel Cleaver and a veteran Democratic aide with deep ties to the Congressional Black Caucus. There has been a lot of attention recently on Shalanda Young as she is Biden's nominee for deputy OMB director. She had her first Senate confirmation hearing for the job on Tuesday. Also, Jared Bernstein - he's a longtime adviser to Biden, who is on - currently on the Council of Economic Advisers. There is also Gene Sperling, who was a top economic adviser to former Presidents Barack Obama and Bill Clinton, and Ann O'Leary, former chief of staff to California Governor Gavin Newsom. And she was also a former adviser to Hillary Clinton. You know, Ari, this is just such an important position, and I expect we'll hear a lot more in the coming days about how quickly the president is going to move.

SHAPIRO: That's NPR's Franco Ordoñez.

Thanks a lot.

ORDOÑEZ: Thank you. Transcript provided by NPR, Copyright NPR.