The Supreme Court heard oral argument in Brnovich v. Democratic National Committee, a case of extreme importance to both political parties for all the wrong reasons.
Though the Voting Rights Act seeks to protect minority voting rights, as a practical matter litigation under it tends to proceed on partisan lines. When Justice Amy Coney Barrett asked a lawyer for the Arizona Republican Party why his client cared about whether votes cast at the wrong precinct should be counted, he gave a candid answer.
“Because it puts us at a competitive disadvantage relative to Democrats,” said the lawyer, Michael A. Carvin. “Politics is a zero-sum game, and every extra vote they get through unlawful interpretations of Section 2 hurts us.”
Carvin gets points for honesty, although the truth reveals the practical desperation on the Republican side of the argument: the more people vote, the less likely Republicans win. This need not be the case in any future election, of course, where the sides could easily flip should the Rep’s platform appeal more to voters, or their candidate be less repulsive. But for the moment, Carvin said the words out loud.
The case itself involves two laws that, at another time, might not have been particularly controversial.
The immediate question for the justices was whether two Arizona measures ran afoul of the 1965 law. One of the measures requires election officials to discard ballots cast at the wrong precinct. The other makes it a crime for campaign workers, community activists and most other people to collect ballots for delivery to polling places, a practice critics call “ballot harvesting.”
Before Shelby County v. Holder, any changes to voting rights required pre-clearance under Section 5 of the Voting Rights Act, enacted as a temporary measure in 1965. The Court held its quizlet for approval unconstitutional, a decision which many found outrageous.
On June 25, 2013, the Supreme Court ruled that the coverage formula in Section 4(b) of the Voting Rights Act — which determines which jurisdictions are covered by Section 5 — is unconstitutional because it is based on an old formula. As a practical matter this means that Section 5 is inoperable until Congress enacts a new coverage formula, which the decision invited Congress to do.
The problem now is that the changes to voting laws at issue aren’t necessarily problematic, although any law that limits voting can be spun into an argument for racist voting restrictions.
Several members of the court’s conservative majority said the restrictions were sensible, commonplace and at least partly endorsed by a bipartisan consensus reflected in a 2005 report signed by former President Jimmy Carter and James A. Baker III, who served as secretary of state under President George Bush.
Is it too much to ask that people cast their ballot in the proper precinct? Is it too much to ask that people be responsible for casting their ballot rather than have partisan “harvesters” go into certain communities and emerge with boxes filled with ballots? For that matter, does anyone argue that people should be able to cast more than one vote, that dead people vote, that non-citizens should be allowed to vote? There are a litany of rather unremarkable restrictions that are suddenly inflammatory.
On the left, the contention is that these are “voter suppression” methods, ways in which Republican-majority government is making it harder for people to vote. If it’s harder to vote, marginal voters won’t do it. The specter of Jim Crow is raised, that these restrictions are aimed at black and brown voters, who are presumably Democratic voters.
“More voting restrictions have been enacted over the last decade than at any point since the end of Jim Crow,” Bruce V. Spiva, a lawyer for the Democratic National Committee, which is challenging the two Arizona measures, told the justices. “The last three months have seen an even greater uptick in proposed voting restrictions, many aimed squarely at the minority groups whose participation Congress intended to protect.”
To be fair, there has simultaneously been a significant push to expand the pool of eligible voters, from removing limitations on people convicted of crimes to “motor voter” registration to eliminating any requirement that voters prove their identity at the polls to expanding Election Day to election week or month and accepting mail-in ballots before, during and after Election Day.
Do these changes expose elections to a greater risk of fraud and manipulation? Of course they do. And that’s the argument internalized by Republicans, who aren’t nearly as concerned with how these changes expand voting rights to facilitate voting by citizens who are just as entitled to vote as anyone else.
So are these entirely reasonable, ordinary and legitimate protections for the integrity of our voting procedures or are these racist methods of suppressing the votes of black and brown citizens?
“Candidates and parties should be trying to win over voters on the basis of their ideas,” Ms. Amunson said, “not trying to remove voters from the electorate by imposing unjustified and discriminatory burdens.”
The irony here is, just as Carvin admitted that the Democrats benefited from an expanded pool of voters who might not have voted had the combination of pandemic-generated voting means and a candidate so repugnant that people who might not have cared enough to vote were willing to wait to make the effort this time to travel long distances and wait on ridiculously long lines, the Republicans raising theoretical voter fraud is a red herring.
There is normally low-level voter fraud in every election, but hardly enough to change the outcome making it an issue, but a trivial issue. Claiming that voter fraud is a big issue, particularly when there is no evidence whatsoever to support it and every investigation into the claim proved that it didn’t happen, doesn’t give rise to a problem in need of a solution.
It’s not that these restrictions are unreasonable, per se, but that they serve to burden the exercise of voting rights by lawful citizens to fix a problem that doesn’t exist. Could it be a problem? Sure, but so far it isn’t, and so far the only change is that more Americans voted than ever before. Whether that’s a good thing, at least in the last election, is a matter of party politics. The problem with enacting laws that make it harder for Americans to exercise the franchise is that if the only way to win an election is to make the process too burdensome for the other side’s voters, you don’t deserve to win. Crying voter fraud that didn’t happen does not change the fact that more people voted for the other guy than yours.