The “Real” Issue In Brnovich (Update)

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.

Update: By vote of 220 to 210, the House passed the sweeping legislation to federalize control over voting rules.

23 thoughts on “The “Real” Issue In Brnovich (Update)

  1. David

    Reminds me of the issues raised by Ilya Somin’s low info voters. If voting matters so little to citizens that they can’t be bothered to do it if it requires any effort, then is it society’s burden to risk fraud so that no lawful voter has to be inconvenienced for even a moment.

    The trade-off here is between lazy and delusional. It’s almost as if voting isn’t a great method of deciding who should be in office.

    1. SHG Post author

      There are serious efforts at voter suppression, like an inadequate number of polling places in black neighborhoods so that they have to wait on lines for hours to vote. But the framing of the issue as voter suppression v. voter fraud isn’t entirely fair either. If people can’t be bothered to vote if it requires them to be inconvenienced, should they be voting? Much as the Reps want fewer voters, the Dems want more people to vote who otherwise can’t be bothered by harvesting votes from people who would never vote otherwise.

    2. David Meyer-Lindenberg

      I think “lazy” misses the mark. Because the value, in terms of “effecting political change,” of an individual vote often approaches zero, low-info voters may in fact be pursuing a rational-ignorance strategy – something Ilya acknowledges in Democracy and Political Ignorance.

      If this is so, we might predict a couple corollaries. One is that disorganized fraud committed by individual voters is unlikely to be a problem, because people have little incentive to commit crimes over something with so little real political value. (Institutional fraud committed by parties is another matter, and would probably be a good thing to continue to discourage, even though the kind of frenzied searching we saw after 2016 and 2020 suggests it doesn’t happen much above the ward-heeler level.)

      Another is that it can be tough to justify the opportunity cost not just of figuring out whom to vote for, but of actually going out to vote. For many, voting may in essence be a luxury good, something to conspicuously consume on social media or perhaps feel good about privately for philosophical reasons. If some poor, low-info voters decline to invest in a vote in part because they need to haul ass down to the booth to cast it, it doesn’t mean they’re lazy – it means they’re poor and don’t think the costs of that investment justify it! Which in turn means that making that investment a little more attractive isn’t the same as rewarding laziness.

      1. SHG Post author

        Who pays a higher opportunity cost, the poor or the middle class? Is there an optimal opportunity cost? Should there be?

        1. Jake

          The poor, regardless of the color of their skin, have a unique burden when voting is made more difficult. When was the last time you tried to change a shift in retail, restaurant, or the construction industry? Or considered how missing a few hours of work will impact your ability to meet basic obligations like feeding your family or paying the rent?

          1. SHG Post author

            Since I let Bob G’s little slice of idiocy post, why not yours as well to prove I’m bipartisan in allowing idiotic comments.

          2. Ron

            Lots of people work, Jake. In fact, most of us. We manage. We vote before work. We vote after work. We manage. I see you don’t actually know any poor people.

            1. SHG Post author

              Jake’s woke talking points work better at the lean-in meeting than with people who know better.

            2. Jake

              As you have missed the point, completely, on the contrary, Ron, I was raised by a single woman who was severely disabled with Multiple Sclerosis. Needless to say, I know poor people. I know what it is to be poor.

              Despite her many challenges, she too managed to get to work every day. Like many people who worked at wage, the decision to do something other than her daily routine was not a matter of personal choice.

              This is not the same for her two boys, who, after watching her literally crawl up the stairs at 6pm, 5 days a week, and bestowed with an impressive work ethic, managed to get slightly better jobs, with salaries, and paid time off.

              Voting is a luxury I can afford. That is not the same for everyone, and, Scott, this is not a partisan observation of fact.

            3. SHG Post author

              Your mother’s story does not prove a point, Jake. There are eleven million stories in the naked city. By the way, did your mother vote?

              See how the guys arguing that voter fraud matters make their case by cherry picking outliers and inductively reasoning them to prove generalities? That’s what you do. It’s no better when you do it than when they do it.

            4. Jake

              Oh boy, I know I’m going to get hammered but I can’t let it go today. Bullshit. You’re both-siding apples and oranges.

              There are 12 million working poor people in the US who are similarly challenged, and whose ability to vote hangs in the balance of decisions to further restrict their right to vote. That’s not an outlier, that’s a statistically meaningful percent of the people who voted in the 2020 Presidential.

              By comparison, the number of fraudulent votes cast is a rounding error. It’s absolute nonsense to talk about republicans cherry-picking fraud to restrict voting and the rest of us advocating for voting rights in the same context.

            5. Hunting Guy

              People can vote by mail. Several states make it super easy, Arizona is one. You don’t have to go to a polling station.

              Hell, our county would prefer mail in ballots. It’s less costly to process.

            6. SHG Post author

              I don’t think Ron was making a commentary about mail-in voting, but saying that if one has to go to the polls, they manage if they really want to.

      2. David

        Is lazy too pejorative? Fair enough. Insufficiently interested to suffer the monumental burden of voting. Yes, there are opportunity costs (for everyone, as Scott suggests) to get off their butt and vote under normal circumstances. Yet they don’t and never did.

        Remember 2016, when 20-somethings didn’t vote because they didn’t know where to get a stamp or how to use one? I bet their google could have helped them, but that was too much effort. So if it’s not lazy, but low value, why does anyone vote? The answer is that some make the effort even though they fully appreciate that one vote has a near-zero impact because they take their duty as citizens seriously, opportunity cost notwithstanding.

  2. Bob G

    More people participated. That’s good. The problem is that the recent presidential election was actually very close, and all those illegal ballots probably changed the result.

    And (as an aside), of course there’s no proof of fraud—how could there be when there are no safeguards in place, no way to verify the votes? And who is even investigating them? No one, as far as I know. State secretaries of state only have a handful of investigators, and local officials in blue areas have no motivation to pry into who’s stuffing the ballot boxes.

    I’ve worked on enough local election contests to know that there are a lot of illegally cast ballots even in uncontroversial elections (primaries can be particularly revealing since there’s no partisan aspect to it). No one ever finds the illegal ballots unless they’re motivated and have the means to dig and dig and dig, and even then it’s just a small number that can even be investigated. Voter fraud isn’t some massive conspiracy, it’s just a million (or 20,000 or 150,000, at it were) pinpricks. In local elections, at least, if one party can prove that the count isn’t reliable because enough illegal ballots were cast to change the result, they get a new election. But nationally? No dice. We just get to swallow four years of Biden. That sucks.

    1. SHG Post author

      I was thrilled that no one commented about the “all those illegal ballots change the result” that doesn’t exist. Then you did. Now I’m sad. That there’s no proof something happened doesn’t prove it happened. It proves you don’t belong here.

        1. Alex S.

          If you Google “Russell’s teapot” you might learn something today. Or you can continue to live in ignorance.

  3. JMK

    “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.“

    That’s… really not very good logic. Florida in 2000 decided the presidential election by 500 votes. Closer to the present, three congressional races (IA-2, NY-22, CA-25) were decided with margins less than 0.1%. IA-2 was decided by 6 votes.

    Our vote counting has error bars as it is (find a recount in the last two decades that came out with the same totals as the original count). If you’re going to state that “low level voter fraud” is a thing, dismissing it as irrelevant does not follow.

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