Supreme Court Appears Favorable to Arizona Election Integrity Lawsuits
BY MATTHEW VADUM – March 2, 2021
Arizona Attorney General Mark Brnovich urged the Supreme Court on March 2 to affirm that his state’s electoral integrity laws were consistent with the federal Voting Rights Act and should be upheld.
The case Arizona’s top prosecutor argued is actually two consolidated cases: Brnovich v. Democratic National Committee (DNC) and Arizona Republican Party v. DNC.
Although the justices peppered counsel for Arizona and the state’s Republican Party with at-times hostile-sounding questions, members of the Supreme Court seemed receptive to their arguments. Except for the more liberal members, the justices did not seem convinced that Arizona’s election laws violated the Voting Rights Act.
The Supreme Court threw out a series of Republican-initiated legal challenges on Feb. 22 to voting processes and results in Arizona, Georgia, Michigan, Pennsylvania, and Wisconsin that were left over from the 2020 election cycle. And on March 1, the court dismissed an election challenge from Arizona, In Re Tyler Bowyer, and one from Wisconsin, In Re William Feehan, that were brought on Dec. 15, 2020, by pro-Trump attorney Sidney Powell.
The oral arguments in Brnovich’s case before the Supreme Court came days after an Arizona judge ruled in a separate case that state lawmakers have the right to access 2.1 million ballots cast in the state’s most populous county, Maricopa County, and related electronic materials in order to carry out an audit of the Nov. 3, 2020, election results, as The Epoch Times previously reported.
The Supreme Court agreed on Oct. 2, 2020, to hear the case at hand, which concerns efforts that Republicans say would undermine electoral integrity measures and throw the Grand Canyon State open to ballot-harvesting and out-of-precinct voting.
Understanding What Framers Intended
“I think we all should agree at this point that we want to have confidence in our election system,” Brnovich, the state’s Republican attorney general, said in an exclusive interview with The Epoch Times days before his Supreme Court appearance, in which he shared his views about the upcoming oral argument at the high court and electoral integrity measures in general.
“We want orderly elections,” he said, adding that he was optimistic that the court appearance would help to generate momentum for electoral integrity measures nationwide.
More Americans need to become active in defending the nation’s founding and the institutions that came out of it, he said.
There is a certain amount of establishment thinking out there “that just wants to go along to get along … [but] the stakes are so high right now in this country that we need champions that understand what the framers of our Constitution established here in this country.”
There is a “need to understand traditional notions of federalism and to understand that the Constitution is all about protecting rights, and that the government is supposed to be limited and its powers defined.”
Forbidding unlimited third-party ballot harvesting is a “commonsense” way to protect the secret ballot, and to prevent undue influence, voter fraud, ballot tampering, and voter intimidation, Brnovich said.
“We have seen in the past where people have used ballot harvesting to undermine the integrity of elections. We also know that no less than Jimmy Carter in 2005 had recommended that there be commonsense measures in place when it came to ballot harvesting because absentee ballots were one of the largest sources of potential fraud,” he said.
The bipartisan Commission on Federal Election Reform, chaired by former President Carter and former Secretary of State James A. Baker III, found “absentee ballots remain the largest source of potential voter fraud” and “vote-buying schemes are far more difficult to detect when citizens vote by mail.”
“There was a time when this was a bipartisan issue, when all sides could agree that we want to make sure that we have safe and secure elections, and now, for whatever reason, it’s become a partisan issue,” Brnovich said. “It’s unfortunate because everyone should have confidence in our elections.
“I think as a public official there is no higher priority among public officials than maintaining the public integrity of our elections, so we want to make sure that people are prevented from voting multiple times, we want to protect against voter intimidation, we want to preserve the secrecy of the ballot, and I think that’s what our laws were designed to do.”
Arizona, like other states, has adopted rules to promote the order and integrity of its elections.
One is an “out-of-precinct policy,” which excludes provisional ballots cast in person on Election Day outside of the voter’s designated precinct. Another is a “ballot-collection law,” known as H.B. 2023, that allows only specific persons such as family and household members, caregivers, mail carriers, and election officials to handle another person’s completed early ballot. Most states require voters to vote in their own precincts, and around 20 states limit ballot collection by third parties.
A U.S. district court upheld Arizona’s rules, which were challenged under the Voting Rights Act (VRA). A fortnight ago, the Biden administration sent a letter to the court in which it appeared to acknowledge the challenged Arizona laws were consistent with the VRA.
Section 2 of the VRA prevents states and localities from imposing any “qualification or prerequisite to voting or standard, practice, or procedure … in a manner which results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color.”
A panel of the 9th Circuit Court of Appeals affirmed the trial court but then reversed at the en banc stage, going against the recommendations of the Trump administration.
“Arizona’s policy of wholly discarding, rather than counting or partially counting, out-of-precinct ballots, and H.B. 2023’s criminalization of the collection of another person’s ballot, have a discriminatory impact on American Indian, Hispanic, and African American voters in Arizona, in violation of the ‘results test’ of Section 2 of the VRA,” Judge William A. Fletcher, a Clinton appointee, wrote for the court.
H.B. 2023’s ban on collecting another person’s ballot “was enacted with discriminatory intent, in violation of the ‘intent test’ of Section 2 of the VRA and of the Fifteenth Amendment.”
The Arizona laws in question are unfair because American Indian voters, other minorities, renters, and poor people are disadvantaged because they have difficulty receiving and sending mail, Fletcher wrote.
“Minority voters rely on third-party ballot collection for many reasons,” he added, citing the testimony of a community organizer. That court stayed enforcement pending appeal, allowing Arizona’s laws to remain in place for the 2020 election.
Brnovich said in the interview that he rejects those court findings, which were consistent with legal arguments made by Democrats.
“The state of Arizona endorses without qualifications the goals of the Voting Rights Act in racial discrimination and voting,” he said.
“Our laws do not violate section 2 of the Voting Rights Act.”
But Republicans, Brnovich added, have been falsely accused of racism for a long time.
“Accusing someone of racism is the last resort of an exhausted mind,” he said. “Unfortunately, nowadays there are too many people that are intellectually lazy on the left and that’s what they fall back on.”
The Supreme Court allotted 60 minutes to oral arguments but used 114 on March 2.
“Arizona has not denied anyone any voting opportunity of any kind,” said Michael Carvin, attorney for the Arizona Republican Party.
No literacy test denies the right to vote and there is no “vote dilution where white bloc voting denies minorities an equal opportunity to elect. Everyone here is eligible and registered to vote. All they have to do is utilize the myriad opportunities that Arizona has offered them over 27 days to vote by mail for free or in person. And since there’s no denial of opportunity, this is a disparate impact claim that would not even be cognizable in other contexts.”
Justice Sonia Sotomayor suggested to Carvin that being poor is itself a violation of a person’s voting rights.
“If you can’t vote because you are a Native American or a non-Hispanic in areas where car ownership rates are very small, where you don’t have mail pickup or mail delivery, where your post office is at the edge of town and so that you require either a relative to pick up your vote, or you happen to vote in a wrong precinct because your particular area has a confusion of precinct assignments, if you just can’t vote for those reasons and you’re not—your vote is not being counted, you’ve been denied the right to vote, haven’t you?”
Later, replying to Justice Neil Gorsuch, Carvin said, “if socioeconomic factors lead to underutilization by minorities, that’s not a cognizable factor under Section 2 because it’s got to be the voting practice that causes the diminished opportunity.”
Justice Amy Coney Barrett suggested to Jessica Amunson, counsel for Arizona’s Democratic secretary of state, Katie Hobbs, that a clear legal standard was needed.
“All election rules are going to make it easier for some to vote than others,” the justice said.
Barrett asked Carvin, “What’s the interest of the Arizona RNC here in keeping, say, the out-of-precinct voter ballot disqualification rules on the books?”
He responded: “Because it puts us at a competitive disadvantage relative to Democrats. Politics is a zero-sum game, and every extra vote they get through unlawful interpretations of Section 2 hurts us. It’s the difference between winning an election 50 to 49 and losing.”
Brnovich told the court that Arizona’s laws are consistent with the VRA.
“Requiring in-person voters to cast their ballots at assigned precincts ensures that they can vote in local races and helps officials monitor for fraud. Restricting early ballot collections by third parties, including political operatives, protects against voter coercion and preserves ballot secrecy. Arizona urges this Court to adopt a clear and workable test for voter denial claims that allows states to properly regulate their elections.”