The Daily - A Crucial Voting Rights Decision

Episode Date: June 21, 2021

How does the 1965 Voting Rights Act work? That is the question in front of the Supreme Court as it rules on a pair of Arizona laws from 2016 — the most important voting rights case in a decade.What arguments have been made in the case? And what implications will the decision have?Guest: Adam Liptak, a reporter covering the United States Supreme Court for The New York Times. Sign up here to get The Daily in your inbox each morning. And for an exclusive look at how the biggest stories on our show come together, subscribe to our newsletter. Background reading: The Supreme Court has signaled that it could tighten the standards for using the Voting Rights Act to challenge all kinds of voting restrictions.The sprawling voting rights legislation known as H.R. 1, could result in lawsuits leading to a dozen Supreme Court cases, according to legal experts.For more information on today’s episode, visit nytimes.com/thedaily. Transcripts of each episode will be made available by the next workday. 

From The New York Times, I'm Michael Barbaro. This is The Daily. As Republicans race to restrict voting in states across the country, and Democrats look for ways to block their efforts, the Supreme Court is set to issue a ruling as early as today that will reveal whether it's willing to step in and settle the fight. I spoke with my colleague, Adam Liptap, about the story behind the case and where the justices are likely to land. It's Monday, June 21st. Hello, Mr. Lipt... Oh, oh, oh.

Sorry, I... I didn't... I had myself muted. I'm out of practice. Get back in the game, Michael. As any listener of The Daily would know. Adam, describe this case and the story of how it arrived at the Supreme Court. In 2016, Arizona lawmakers imposed two voting restrictions, one that required ballots cast in the wrong precinct to be thrown away,

and the other forbidding what critics call ballot harvesting, letting community activists and others collect ballots and bring them to the voting place. These are fairly commonplace restrictions, but Democrats in Arizona went to court to challenge them, saying that they had a disproportionate effect on minority voters. And because of that, they argued, the restrictions ran afoul of what's left of the civil rights landmark, the 1965 Voting Rights Act. And what evidence did Democrats marshal to make the claim that those two restrictions in Arizona are racially discriminatory? So Democrats said

that Black, Latino, and Native American voters were about twice as likely to cast ballots in the wrong precinct, partly because there are more frequent changes in polling locations in those kinds of neighborhoods, and partly because they tend to move around more than white voters do. They also said that the ban on ballot collectors disproportionately affects minority voters because they're more likely to be poor, older, disabled. They're less likely to have reliable transportation. And so they require help in getting their ballots to the polling place. And in Arizona, especially Native American voters on Indian reservations quite often need that kind of help. Got it. So when the challenge to these two Arizona laws reaches the Supreme Court,

Got it. So when the challenge to these two Arizona laws reaches the Supreme Court, the question before the court is, under the rules of the Voting Rights Act of 1965, are these two provisions of Arizona's laws racially discriminatory? That's the question. That's right. very familiar at this point because there have been several Republican state legislative efforts to restrict voting in places like Georgia, Florida, and Texas. And they have been challenged by Democrats on the grounds that they are going to make it harder for voters of color to cast their ballots. And a lot of these cases are landing in courts. Yes. The point of the Supreme Court case is only partly about whether these two restrictions should be upheld or not. The larger question is how does the Voting Rights Act work? What future challenges against the many, many new restrictions that are being passed by Republican legislatures across the country?

What sort of standards will apply to them. And we'll soon find out whether it's very hard to show that a law has racially discriminatory effects or whether you merely have to show that some minority voters somewhere are disadvantaged by the restrictions. And it would seem like the implications of that are enormous given the raft of new laws being passed by Republican legislatures around the country on voting rights. Right. If those restrictions are to be challenged in federal court, this is the vehicle to do it. And we don't know yet whether the court will give people tools to challenge those voting restrictions or whether they will simply go into effect and be impervious to court challenges. Which is why this case is the most important voting rights case in a decade. Which is why this is the most closely watched case that the Supreme Court has not yet decided this term,

and which is why I found the oral arguments in this case so fascinating. We will hear argument this morning in case number 19-1257, Brnovich v. Democratic National Committee. So Adam, describe these oral arguments in this case. So the two sides had very different visions. Good morning, Mr. Chief Justice, and may I please the court? The challenger said... When an eligible voter casts a ballot and that ballot is discarded rather than counted, that voter has been denied the right to vote. That in the real world of Arizona... Likewise, when an eligible voter relies

on ballot collection to vote, and that was enough to strike down the restrictions. That the standard simply needs to be, it's harder to vote for people of color. Yes. That is the case here. As Arizona's chief elections officer, Secretary of State Hobbs knows that the out-of-precinct policy and the ballot collection statute impose discriminatory burdens on Native American, Latino, and Black voters that are not justified by any legitimate state interest.

It has to be tied to local circumstances. It has to be tied to the particular law. But a disproportionate impact caused by the voting restriction on minorities' ability to vote is enough, they say. Okay. And Adam, what about the lawyers defending the Arizona laws? What is their argument before the justices? Well, there were two of them, and their arguments were different. Mr. Chief Justice, and may it please the court, I think the key conceptual point here to understand is that Arizona has not denied anyone any voting opportunity of any kind. The more extreme position was adopted by a lawyer for the Arizona Republican Party,

Michael Carvin, who said that you can't even challenge a race-neutral measure that imposes ordinary restrictions on voting. And what is race-neutral in his telling? In his telling, if it's not addressed at minority voters, it just has an incidental impact on them. Even though minority voters are apt to be poorer or live further from a voting place or not to have ID, if it's a facially neutral law that imposes those kinds of requirements, he says you can't even challenge them under the Voting Rights Act. The question is not the outcome. The question is the opportunity.

And if the state has provided everyone the same opportunity. And what is the response from the justices to that proposed standard? Justice Kagan. Mr. Carvin, I have a number of hypotheticals for you, and I'd be grateful if we could run through these fairly quickly just so I can get an understanding of your position. Well, one set of questions from Justice Elena Kagan to the lawyer for the Arizona Republican Party struck me as quite telling. And they sort of did help you understand the distinction he was drawing. So the first one is that the state decides that each county can

have one poll in place. And because of who lives in larger counties, that creates a disparate impact that black voters have to wait in line for 10 times the amount that white voters do, two and a half hours instead of 15 minutes. So Justice Kagan questioned the lawyer, Michael Carvin, about whether much longer lines at polling places in minority neighborhoods could be challenged under the law. Is that system equally open in the language of the statute? I would say not. Equally open means takes into account demographic realities. If you have one polling place for five people and one polling place for five million people, obviously in the latter situation, those people do not have an equal opportunity to vote. And he said yes. Right. Because that's targeted at minority voters. Can we go to go on to another one? The state says we're placing all our polling places at country clubs.

And that decision means that black voters have to drive 10 times as long to the polls. And he gave the same answer when she asked him about locating all polling places at country clubs far from minority neighborhoods. So these are hypothetical questions. Yeah, I would think that would provide them with less opportunity than non-minorities. And why is that? Well, because they have to travel further into hostile territory where non-minorities can travel one block to very sympathetic under any definition of whether or not they have less opportunity. But he said that cutting rid of Sunday voting on those two weeks, leave everything else in place. Which is neutral on its face, even if that were heavily relied on by black voters. Black voters vote on Sunday 10 times more than white voters. Is that system equally open? Was lawful.

I would think it would be because let's think about it. Sunday is the day that we traditionally close government offices. It would be the exception rather than the rule to have government workers. He said the same thing about restricting voting to business hours on election day. That might disproportionately affect black voters, but it's neutral on its face. So what he's getting at is that the Arizona restrictions, voting in the wrong district, being disqualified, that is, in his telling, racially neutral. So if it happens to have a disproportionate impact on voters of color, that's not the intent of the law. Therefore, the law should not be struck down.

Right. It's not the intent of the law, it's not plain on the face of the law. Got it. So that's the logic of his position. Okay. And what did the second lawyer defending these Arizona laws argue? Mr. Brnovich? Mr. Chief Justice, and may it please the court. Mr. Brnovich. Mr. Chief Justice, and may it please the court. Arizona's attorney general proposed, by contrast at least to the Republican Party position, a more moderate standard. He said that you can challenge a law if you can show that it significantly has a disparate impact

on minority voters. We believe that in Arizona, there are numerous ways that people can vote. There's no excuse to absentee balloting. They can vote by mail. We have voting centers in some counties. They can vote early, up to 27 days before the election. And he said the restrictions in Arizona at issue in the case had only minor impacts

on not very large numbers of minority voters and therefore should be sustained. And so the only way to determine whether there's a substantial impact is to look at the totality of the election. Thank you. And how open did the justices seem to that line of thinking? I think there will be a majority for some version of that. A lot of the devil is in the details of what you mean by a

significant disparate impact. But I don't think the justices are going to say that a single voter disadvantaged by a voting restriction can challenge it. You need to have some kind of critical mass. So the key question in the case will be how much disparate impact. There was no burden on the ability to vote. And literally we're talking, for example, the out of precinct voting of about 4000 ballots of more than two million cast. No one was denied the opportunity. And if we look at these statistical anomalies, that's those slight statistical differences. We have to look at that in the context of the totality of our voting system.

You know, once again, Arizona provides early voting. People can vote in voting centers. They can vote 27 days before the election. We'll be right back. Adam, so far you're describing an oral argument in which everyone is talking about race and what the standard should be for proving that these Arizona laws or any laws are racially discriminatory. But is it possible that laws like those passed by Republicans in Arizona are not so much about race as they are about Republicans trying to disadvantage all Democrats, not just certain Democrats? I would think that the main goal of these restrictions is a partisan goal, not a racial goal. Now, it's hard to disentangle those two things because minority voters do tend to be Democratic voters. But in exchange with Justice Amy Coney Barrett, I'm interested in

knowing why the RNC is in the case, highlighted the point when she asked the Republican Party's lawyer, why his client cares so much about whether votes cast at the wrong precinct should be counted. What's the interest of the Arizona RNC here in keeping, say, the out of precinct voter ballot disqualification rules on the books? And he gave a really candid answer. Because it puts us at a competitive disadvantage relative to Democrats. Politics is a zero-sum game. He said, because it puts us at a competitive disadvantage

relative to Democrats. He didn't say relative to Black, Hispanic, or Native American people. He's saying, we're not interested in race. We're interested in partisan advantage. And every extra vote Democrats get through what he believes are unlawful interpretations of parts of the Voting Rights Act hurts us. It's the difference between winning an election 50 to 49 and losing an election 50 to 45. Okay, thank you. My time is up.

Hmm. So he's very openly saying the reason why we want a law in Arizona that disqualifies a vote cast in the wrong precinct is because we think that will subtract some number of Democratic votes in an election and help us, the Republicans, win those elections. That's very disarmingly honest. I guess you have to give him some credit for saying what everyone knows to be true. But what's the legal rationale for disclosing that kind of political calculation? One reason he might have had is to deflect the question about whether this is about race. If it's about politics, it's about partisanship that takes the discussion away from race. Right. And because this whole case is about whether these Arizona laws are racially discriminatory, this lawyer admitting that the law's original intent is about Republicans beating Democrats, he's saying, see, it's not really about race. Republicans beating Democrats, he's saying, see, it's not really about race.

It's hard to avoid saying what everybody knows, which is that we're having a proxy war, in large part, about racial minorities. But it's a proxy war on behalf of a partisan interest. Democrats generally would like to make it easier to vote. Republicans generally want to make it harder to vote. And that has an impact on minorities. But the ultimate goal is partisan. So does that suggest that even though this case is all about the Voting Rights Act of 1965, which is all about race, that this case is, at the end of the day, really about Democrats and

Republicans fighting over voting restrictions, and Democrats really only having the legal tools of a law that's about race to fight these Republican efforts. That's right. For the most part, state legislatures made up of politicians are allowed to make political calculations about gerrymandering, about voting restrictions. And the tool that's available to challenge voting restrictions is the Voting Rights Act, which is about race. But lurking not very far in the background are partisan issues. Okay. Is it possible that the justices may accept the idea that these laws were not designed to disproportionately hurt voters of color, but then look at the evidence and say that they had that effect and strike those laws down. Yes. So it's important to note that the Voting Rights Act doesn't call for the law to be intentionally racially discriminatory. It just has to have racially discriminatory results. And what the court is

probing is how do you decide whether something has had a racially discriminatory result? whether something has had a racially discriminatory result. Right. And it may decide that based on actual impact, and it may decide that based on intent? Well, I mean, if something is intentionally racially discriminatory, then that law is in deep trouble. That's the easy case. The harder case is when you have a law that incidentally affects a disproportionate amount

of minority voters. Which these Arizona laws would seem to be. These Arizona laws are fairly typical of restrictions around the country. And you really have to look at local circumstances to decide whether they have a racially discriminatory impact. It could be that the self-same law in one part of the country does not, and in another part of the country does. So if the justices ultimately uphold the Arizona laws in their ruling, will that mean that they don't think that these two provisions are disproportionately hurting voters of color? It would mean that they would think that there had not been an adequate case made that substantial numbers of minority voters in Arizona were disadvantaged by these particular

restrictions. Adam, by the end of the oral arguments, where did you feel that the justices' heads were on this case and on this Arizona voting restrictions? Yeah, so I feel confident on one point and less confident on a second point. I think the court will sustain the restrictions. But the big question in the case is not whether these particular restrictions are sustained, but what standard the court announces for lower courts to entertain challenges like this one. And there, I think the court could be fractured, could be in a muddle, or could conceivably announce a legal standard that cuts back on the force of the Voting Rights Act. In which case, those seeking to challenge voting restrictions around the country would not have very much to work with in the law.

That's right. So let's assume, Adam, that your instincts are right. They often are. And these justices uphold the Arizona rules. And that the legal precedent said is that it's more or less fruitless to try to challenge these kinds of laws in court. That would seem to be a major victory for Republican state legislators around the country. And it would seem to leave Democrats with really one option left, which is congressional action. Right. And Democrats are trying. There are at least

two sets of bills that they're trying to pass. One called the For the People Act or H.R. 1 or S.1, which is probably an empty hope because Senator Mitch McConnell, the Republican leader, has just recently and adamantly said he would filibuster any attempt to enact that law. And Democrats can't overcome that 60 vote threshold. There's a more limited law, the John Lewis Act, but it faces some of the same problems. So Adam, we've reached this interesting moment where just as Republican lawmakers around the country are moving to restrict voting, the court seems to be taking itself out of that fight. Congress is not likely to weigh in because the Democratic Party doesn't

have enough votes to do anything, which would really seem to leave all of this in the hands of state legislators. And perhaps this is therefore a useful reminder that local elections matter, right? Who your state senator or state assembly person is matters because that's where all of these laws are being written or not being written. That's entirely right. And that does capture what the Supreme Court in many cases has said, that it wants to stay out of what justices have called the political thicket, that these decisions are fundamentally political, committed by the Constitution to be made by the political branches, by state legislatures. And just as the court effectively struck down

part of the Voting Rights Act in 2013, just as it said that partisan gerrymandering can't be challenged in federal court. Here, too, we may get the answer that this is meant to be a political process and it's meant to be controlled by politicians and state legislatures. Not by courts. That seems to be the direction we're heading in. Thank you, Adam. We appreciate it. Thank you, Michael. We'll be right back. Here's what else you need to know today.

In a closely watched vote, Roman Catholic bishops in the United States advanced a plan that could eventually deny communion to President Biden, himself an observant Catholic, over his support of abortion rights. The move, championed by conservative bishops who fear Biden's agenda on abortion, was opposed by the Vatican. The decision immediately drew criticism from 60 Catholic Democrats in Congress who urged the bishops not to proceed with the plan. And the death toll from COVID-19 in Brazil has now surpassed 500,000 as the country struggles to vaccinate its population. Brazil is averaging almost 73,000 new infections a day, compared with about 11,000 a day in the U.S. and is believed to have vaccinated just 11% of its citizens, compared with 45% in the U.S. Today's episode was produced by Michael Simon-Johnson and Eric Krupke, with help from Daniel Guimet.

It was edited by Dave Shaw and Lisa Chow, and engineered by Chris Wood. That's it for The Daily. I'm Michael Barbaro. See you tomorrow.