Thread by @TravisCrumLaw

I'll be providing live commentary in today's Supreme Court oral argument in Brnovich v. DNC. It starts in thirty minutes. See this thread for more details about the case and updates...

#SCOTUS #VRA

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Brnovich is the first time ever that SCOTUS will hear a vote-denial claim under Section 2 of the VRA. Prior cases involved gerrymandering rather than the right to cast a ballot. It's also the first time in 20 years that the Court will address the 15 Amendment's substantive scope.

And because the Ninth Circuit found that Arizona intentionally discriminated against minority voters, this case raises the prospect of "bailing-in" Arizona to the VRA's preclearance regime and restoring the process lost in Shelby County.

For more on how bail-in works, see this article:

yalelawjournal.org/pdf/895_hxmt6m…

I've also blogged about the issues in the case:

electionlawblog.org/?p=121026

electionlawblog.org/?p=109188

And I filed an amicus brief supporting respondents that focuses on the 15th Amendment's drafting and ratification as well as Congress's enforcement authority:

supremecourt.gov/DocketPDF/19/1…

Given the recent changes on the Roberts Court and the open legal questions at issue , Brnovich has the potential to be a blockbuster. What's especially worrisome is that some petitioners and amici are raising questions about Section 2's constitutionality.

There are two Arizona laws at issue in Brnovich. The first is Arizona's "out of precinct" policy (OOP), which throws away an entire ballot if a voter cast it in the wrong precinct, even though the vast majority of offices voted for on that ballot (all federal/statewide) are valid

The OOP policy was found to violate Section 2. The second law is Arizona's ballot-collection law, which bars third-party ballot collectors who were disproportionately used by Hispanic and Native American voters. This law was found to violate both Section 2 and the 15th Amendment.

On the Section 2 issue, the parties disagree about the proper standard. To simplify somewhat, the dispute boils down to debates about the size of the disparate impact, the role of causation, and the level of deference due to states.

The RNC is making the boldest argument that all time, place, and manner restrictions should not be scrutinized under Section 2, a ruling that would eviscerate the VRA's protections in vote-denial cases.

Another interesting wrinkle is that the Trump Administration sided with Arizona but the Biden Administration filed a letter changing its position. However, since no one from the SG's office is arguing this case, we unfortunately won't get to hear more about this development.

Michael Carvin is up first for the RNC. He has a pugnacious and matter-of-fact argument style. We'll see how that translates to argument by phone.

Carvin frames the debate as distinct from past VRA cases and that we should look to all the options available to minority voters. He says that this type of disparate impact claim would fail under other anti-discrimination statutes, like Title VII.

Carvin argues that these time, place, and manner restrictions don't endanger minority voters "opportunity" to vote and don't infringe Section 2.

The Chief asks if the time, place, and manner argument is an intent test rather than a discriminatory results test. Carvin responds by talking about Bolden and how disparate impact eliminates the intent requirement.

Roberts says that concerns about racial proportionality is problematic in redistricting but queries whether that concern is fine in vote-denial cases. Carvin says that race-conscious decisionmaking is problematic in any context.

Roberts interrupts Carvin and says that this is not racial maximization, which is a good sign. Carvin talks over the Chief and argues that we should not favor a particular groups chosen method of voting.

Now to Thomas: the VRA doesn't speak in the same terms of racial neutrality as other statutes. Carvin says that the VRA requires that systems be equally open to all races. Says Respondents would mandate proportionality and that nothing in Section 2's text requires maximization

Carvin says that racial disparities existed in 1982 and if respondents were correct then those rules would have been illegal then.

Thomas asks whether there's a causation requirement in Carvin's neutrality position. Carvin agrees but says that causation is "no less opportunity" but that the other side is fixated on outcomes. Criticizes the social and historical conditions analysis of Section 2.

Thomas: is there a threshold disparity that needs to be triggered under Section 2. Carvin: What matters is outcome.

Breyer: does a literacy test provide the same opportunity, and how do we know whether the OOP provides the same opportunity? If a policy prevents a group from using it equally that's abridgment.

Carvin: the state has not denied the right to case a ballot.

Breyer: Cites @ProfNickStephan amicus brief and his argument that we should borrow the disparate impact standards used in Title VII and the FHA. Can we transplant those rules and use them here?

Carvin: nothing in Section 2 adopts those forms of the test.

Now a debate about "on account of" between Breyer and Carvin and whether those terms include disparate impact claims. Carvin goes on to accuse the 9th Circuit to have engaged in ad hoc reasoning. Says tenuousness is not a major part of Section 2 analysis

Now to Alito: your benchmark is Crawford's "usual burdens of voting" What does that mean? is it fixed in 1982? Or do those change? Carvin: 1982 is the benchmark because otherwise Congress was invalidating virtually every TPM restriction

Alito: your approach is different from AZ and US SG brief. You don't argue that the strength of the State's interest doesn't play a role. Is that true and should it play a role. Carvin double downs: no proportionality mandates and state's justification is not affirmative defense

Now to Sotomayor: I don't see equal opportunity anywhere in the statute. Aren't you rewriting Section 2, which focuses on the effects of the govt action.

Sotomayor continues: if you can't vote b/c you're a Native American or Hispanic voter who lacks access to transportation or reliable mail, then you've been denied the right to vote

Carvin raises due process concerns but Sotomayor cuts him off. Sotomayor clarifies this isn't a due process claim. Carvin invokes partisan operatives collecting ballots.

Sotomayor references dct's findings that OOP ballots could be easily counted and that there was no evidence of fraud. Carvin: its actually hard to count these ballots. OOP serves valuable purposes because precincts matter

Kagan goes through hypos: AZ decides that each county can have one polling place and because of who lives in each county, that has a disparate impact. 2 hours for Black voters, 15 mins for White voters. is that equally open?

Carvin says no because you need to take into account demographic realities for equal opportunity

Kagan again: state has two weeks of early voting but then gets rid of Sunday voting even though blacks vote disproportionately on that day. Carvin: we usually close govt offices on Sunday.

Kagan: All polling places will be at country clubs, that are far from where they live and are hostile to Blacks. Carvin concedes thats problematic.

Kagan: only election day voting. Carvin: that's equally open b/c that's the 1982 status quo. If you went to a 15 mins window to vote that's a problem. Doesn't want to engage w/ Kagan about how long polls need to be open. Kagan asks if 9-5 is OK but 10-3 is not

Now to Gorsuch: what's the relationship between your test and its focus on opportunity and the SG's brief's focus on causation. is there a difference? Carvin says there's not a big difference in practice.

Gorsuch: do you disagree w/ anything in the SG brief. Carvin: just semantic differences. "no real disagreements"

Gorsuch: does equality of opportunity permit de minimus disparities. Carvin: need to take into account demographic realities. No one cares if a polling place is an extra foot away from where minority voters lives.

Now to Kavanaugh: you say that "ordinary, race-neutral TPM do not violate Section 2" How do you define "ordinary"? Carvin responds: we look to Anderson/Burdick and Crawford. There's usual burdens to voting.

Carvin elaborates: Respondents complain about socioeconomic disparity and want partisan ballot collectors and for the govt to go door to door collecting ballots

Kavanaugh: how do you account for demographic realities? Carvin: can't be formalistic, you need to be practical. If you have ten times the population, then you'd need a similarly high number of polling places

Kavanaugh: if you have a new rule that raises issues, and whether that rule is used by other states. Does that factor into your test? Carvin: No, that seems like a Section 5 retrogression test. If one party (Dems) expands the right to vote, then other party (GOP) can respond.

Barrett: says Carvin's brief has contradictions. Asks if TPM looks to who. Why did you concede to Kagan that country club was problematic? That's a TPM restriction? Carvin: the CC example wasn't neutral. Its laughable that minorities would feel comfortable voting in country clubs

Barrett: your TPM analysis doesn't carry any weight (this is a great sign!!). Carvin: if you adopted a literacy test, then you need to look at racial demographics. But if the state hasn't stopped you from voting, then that's a TPM restriction.

Barrett: why is RNC in this case? Why do you have standing here? DNC clearly has standing to defend these laws. What's RNC's interest in maintaining the OOP policy?? Carvin: the OOP policy puts us at a competitive disadvantage. politics is zero sum

Carvin conclusion: goes back to racial maximization arguments and courts getting drawn into these election disputes.

Now Brnovich himself. It's odd for an AG to argue a case. The Justices don't normally respond well to politicos arguing. Brnovich’s brief refers to the Senate factors (totality of the circumstances) as the Gingles factors (residential segregation and racially polarized voting)

Brnovich gives short opening. Roberts asks: where is the substantiality requirement in Section 2? Brnovich: several circuits have adopted this standard.

Chief: what if the disparity just one percent? Is that substantial? Brnovich: doesn't directly answer. our test is workable because we must analyze the disparity under a totality of the circumstances. You need to suss out intent

Chief: do you need to look at alternative procedures? Can you take mail-in voting into account when you close off other avenues? Brnovich: yes, and AZ has many options for voting

Thomas: do you have standing to appeal this decision? (SoS Hobbs declined to do so) Brnovich: the 9th Circuit allowed me to intervene on behalf of AZ. And AZ law permits this

Thomas: what do you make of the cat's paw theory of intent and the 15th Amendment. What was the AZ legislature's intent. Brnovich: cat's paw theory is inapplicable and arose in agency/principal cases. Here, it's 90 co-equal legislators.

Breyer: goes back to @ProfNickStephan's test about disparate impact. The Court's have adopted a unified disparate impact standard for all *other* disparate impact statutes. You need to prove 1) disparate impact, 2) causation, and 3) defendant can defend policy

Brnovich on Stephanopoulos's test: that's an interesting test but Congress didn't adopt that standard in the VRA. That test would shift the burden and we need to look to the totality of the circumstances

Alito: do the OOP statistics refer to voters who cast ballots on election day or do they also include voters who cast early ballots. Brnovich: Quotes Mark Twain. 9th Circuit cherry picked statistics. Eventually clarifies its only in-person voting.

Alito: if someone early voted in the wrong precinct, what happens? Brnovich: all ballots are available at early voting centers but if the showed up at wrong place, they would be directed elsewhere or given provisional ballot

Alito: what would your test look like in practice? Is it looking to a close election and seeing the impact on that? Brnovich: plaintiffs have burden to show substantial disparate impact.

Sotomayor: you say that general test under Title VII puts burden on States. why can't you meet that burden here? brnovich: VRA doesn't require that. Sotomayor: didn't Senate Report focus on tenuousness? If we look at totality of circumstances, why can't you justify it?

Kagan: would you have answered my hypos the same way that Carvin did? Brnovich: no, we would look to substantial disparity. Kagan: which ones would you answer differently? Brnovich: all of them.

Kagan and Brnovich clashing about hypos being hypos. Kagan gives wait time example and ten times impact on wait, distance, etc. Brnovich says we need facts and trial. Depends on the magnitude. Law students--don't fight hypos like this

Now to Gorsuch: lets Brnovich finish his answer, which focuses on totality of the circumstances and looks at how many people are affected.

Gorsuch: can you explain why OOP and ballot-harvesting don't raise substantial disparities. Brnovich: falls back on the dct's factual findings and says that these are just "statistical anomalies" Gorsuch: why don't these arise to substantial burden?

Brnovich: no one denied right to vote. Only talking about couple thousand(!!) of votes. Vast majority of Arizonians vote by mail

Kavanaugh: you acknowledged that the totality of the circumstances is in the statute's test. is the availability of alternative avenues part of that analysis? Brnovich: yes.

Kavanaugh: so if there's an alternative available that would have a less disparate impact, you have to go with that, right? Brnovich: only if there's causation and substantial disparities. Don't need to upset a race-neutral election integrity law

Barrett: do we look at election system as a whole or each policy in isolation? Let's look at Hobbs's "good point" example: Footnote 6 says that if States sent unsolicited mail-in ballots to white neighborhoods but not black neighborhoods, that's a problem. Do you agree?

Brnovich: that's not facially neutral. Barrett: something can be facially neutral, but in practice it can take other opportunities away. Brnovich: we shouldn't focus on small statistical disparities. That would run afoul of the 14th and 15th Amendments

Brnovich's rebuttal questions Section 2's constitutionality, and says AZ's policies are election integrity laws. This argument has been an example of why state SGs are so important.

Jessica Ring Amunson for @SecretaryHobbs opens for Respondents. Amunson argues that courts can take a functional view of the political process and calls the petitioners arguments a caricature of Section 2. The parade of horribles hasn't happened for 40 years.

Roberts invokes the Carter-Baker Commission's recommendation against ballot collectors. Notes risk of fraud for mail-in ballots. Says people voting in nursing homes can be coerced. Amunson: states do have an interest in integrity but that wasn't AZ's true motive

Amunson: a prophylactic on a prophylactic is questionable. Roberts: we should strike this down because there's no racial proportionality. Amunson: each State is different. Voting in Native American reservations in AZ is different than many other places.

Thomas: is the OOP still in place? Amunson: it is. Thomas: And its being enforced? Amunson: yes, it was enforced in the 2020 election.

Thomas: what percentage of minorities were adversely affected by OOP and ballot-collection. Amunson: minority voters affected by a 2-1 rate. Thomas wants the actual percentage of minority voters, not differential. Amunson: less than 1%. But VRA is about the right of *any* voter

Thomas: Arizona is very rural. How do we compare someone burdened by OOP to someone who needs to drive a long way? Amunson: Native American voters rely heavily on ballot collectors because of long distances and lack of mail/transportation options

Breyer: two "standards" questions. First, why can't we apply disparate impact standards from other statutes? And the language "account of race" is the same. Second, if you win on the details here, many States won't be able to engage in precinct based voting.

Amunson: on standard, those concerns are already part of the analysis just under a different formulation. We quibble with the substantiality requirement. On the ground, each state/election is different, and we're moving away from precinct based model.

Alito turns to hypos (the flip-side of Kagan's strategy). Focuses on whether statistical disparities would trigger liability. A state has early voting period two weeks before election day. Plaintiffs want it to be sixty days. Can they get that expansion?

Amunson: there's a difference between adopting a new policy and taking away a policy that already existed. Section 2 is more concerned with the latter

Alito: you need to fill in a box, but some voters put a check instead. Amunson: Section 2 requires a practical examination. To be clear: statistical disparities are NOT enough to establish liability (this should be shouted from the rooftops to the conservatives on the Court).

Alito: uses 2020 election hypo. What if ballots need to be received within three days after election. Plaintiffs say you get a week. Is unhappy with Amunson's invocation of functionalist account of elections.

Now to Sotomayor: how do we deal with intent by legislative bodies? Amunson: here, the record is clear that racist intent was a *motivating* factor. The initial intent of the first version of HB 2023 was racially motivated.

Sotomayor: what did dct find about motive? (Odd question since dct upheld the law; 9th circuit would be better court to focus on). Amunson: Dct didn't reach the question b/c it concluded was not a motivating factor. References 9th circuit's use of dct's fact findings

Kagan: the longer this argument goes on, the less clear I am on whether the parties disagree about standards. Carvin conceded you have to look at demographic realities. You've focused on practical realities on the ground. How do you think the standards differ?

Kagan continued: some burdens are obvious, others are more like inconveniences. Is there a spectrum of restrictions and the effects of those restrictions?

Amunson: we agree w/ Carvin on demographic realities. The essence of a Section 2 claim is how a law interacts with social/historical conditions to cause a disparity. Says that Carvin's brief was different from his argument here. Carvin's brief says TPM don't implicate Section 2

Gorsuch: Could Arizona have a law that prohibits counting fraudulent ballots? Amunson: yes, we have that law. Gorsuch: can you have prophylactic laws? Amunson: you can have those laws, but you need record evidence that fraud is likely to happen

Gorsuch: focuses on ballot-collection and invokes the Carter-Baker Commission. references the NC congressional race (but not by name). Does AZ need to wait for fraud to occur there? Amunson: no, then cut off. Gorsuch: how big must the threat be?

Amunson: references McCutcheon (a campaign finance case) and the argument that you need some evidence to stack prophylactics upon prophylactics. Says HB 2023 criminalizes neighbors delivering ballots for each other.

Gorsuch: how much more evidence would you require? Or are you saying AZ can never do this? Amunson: HB 2023 goes too far in prophylaxis and its criminal provisions (might have been helpful here to have pivoted to pretext based arguments but Gorsuch was a dog with a bone)

Kavanaugh: References the Dole compromise and that proportionality isn't mandated. Notes that everyone seems to agree that demographic realities and totality of the circumstances matter. Given that we're somewhere between pure results and pure opportunity, what about Carter-Baker

Kavanaugh: if a rule is commonplace, isn't that evidence this isn't motivated by discriminatory intent?

Amunson: just because a policy is commonplace doesn't give a state a free pass. With OOP, AZ says it needs a precinct system, but 75% of voters voted in counties withOUT a precinct based system. That should raise concerns about OOP being maintained.

Amunson: 20 year track record without fraud and lots of mail-in ballots. Already criminalize ballot fraud.

Barrett: How do we figure out when does a law go from an inconvenience to a burden? References Easterbrook's position in Frank v. Walker that a broad Section 2 risks invalidating all election admin laws.

Barrett: does poll closure rule at 7:00 violate Section 2 b/c minority voters find it harder to take off work and get to polling places. Amunson: need to look at conditions on the ground. Barrett: but i'm telling you that there is at this disparity.

Back and forth between Barrett and Amunson about whether you can look to the system as a whole or a single rule. Amunson says poll closure doesn't violate Section 2 and falls back on the standard.

Amunson's rebuttal: Criticizes petitioners for saying VRA is a one-way ratchet. Says we should be encouraging people to vote. Condemns RNC for saying VRA makes it harder for GOP to win elections.

Now to Bruce Spiva for DNC: says courts can easily apply Section 2's discriminatory effects standard to vote denial claims.

Roberts: let's talk about discriminatory intent. Most legislators don't say anything. Some invoke Carter-Baker, and two had racist motives. Spiva: if it was just two, then that's not enough. but this record shows that racist motives were far more prevalent.

Roberts: how widespread were these motives? Spiva: invokes Shooter's motives and the LaFaro video. Goes through history of the precursor bills that weren't precleared.

Roberts misreads record and says only evidence of racist intent was Shooter (ignores LaFaro video). Spiva: look at LaFaro and sequence of events

Thomas: how do we weigh legislative intent here? what if someone said something countervailing about whites in this record? (doesn't give concrete example) Spiva: hard to tell from that hypo. Arlington Heights looks to motivating factors and doesn't require smoking gun evidence

Thomas: if there are doubts about RNC's role in this case, do those same concerns apply to DNC? Spiva: no, because DNC has organization standing given its GOTV efforts. Says RNC has no cognizable interest in stopping people from voting.

Breyer: do parties disagree on the standard? Let's go back to Title VII. I do think we need a substantiality requirement. Spiva: not a ton of daylight between parties here. VRA looks at magnitude but it isn't a *threshold* consideration. Plaintiffs unlikely to win if minor impact

Alito: your position is going to make every voting rule vulnerable to attack under Section 2. Channels Easterbrook's argument. Poor voters find it more difficult to comply with voting rules. When won't there be a disparity?

Spiva: invokes voter ID case from Virginia. Fourth Circuit upheld the law b/c there was no disparate impact given VA's provision of free IDs. Tries to invoke Veasey (Texas voter ID) but cut off.

Sotomayor: should we distinguish between new and old policies? OOP is an old policy, so that's one thing and harder to challenge. HB 2023 (ballot-collection) is new and the evidence for its passage was racially motivated.

Spiva: agrees this distinction matters. references the term "arbridgment" and thus advocating for a "new" rule is harder. Sotomayor: so you have a higher burden for OOP, right? (signal that we could see court splitting the baby on these two AZ laws??)

Spiva: back in the day, you might need OOP policy but technology changes makes OOP outdated and throwing out entire ballot is overkill

Kagan: let's talk about the old SG's test. Do you agree with it? Spiva: the proximate cause standard is wrong. Reads it to exclude consideration of the Senate Factors in the totality of the circumstances. Would have immunized literacy tests that weren't facially discriminatory

Kagan: what's right about old SG's test. Spiva: we agree there is no arbitrary threshold requirement that a certain number of minorities need to be disenfranchised.

Gorsuch: can you comment on the causation test from the SG's brief? Spiva: well, they've withdrawn the proximate cause test (here, it would have been nice to see the SG's office argue). References Bostock's but-for test.

Gorsuch: Bostock was Title VII case. Why isn't proximate cause appropriate for VRA? Spiva: the totality of the circumstances approach is the proper one.

Kavanaugh: Section 2's language is elusive b/c of the Dole Compromise. Seems like we're in a gray area here. Repeats questions about tenuousness and commonness of a law. Spiva: Carter-Baker Report was NOT considered by AZ legislature.

Spiva: AZ had zero evidence of fraud in its record. We need to look at context, and more States permit ballot collection than don't.

Kavanaugh: what about common-place of OOP? Spiva: AZ applies this differently than other states because of mobility of population and changes of polling places

Barrett: if we adopt a but-for standard, why isn't O'Scannlainn right? Isn't the problem the precinct system, not the OOP policy? Spiva: the OOP is the but for cause b/c that's the disenfranchising mechanism.

Barrett: but for causation is there for ballot collection. But precincts are the cause, not OOP. Spiva: don't quarrel that other practices *contribute* to this, but our claim is against the OOP which denies, not merely abridges, the right to vote

Spiva rebuttal: invokes Shelby County's acknowledgment that racial discrimination still exists and that more voting restrictions have been enacted since 2013 than at any time since Jim Crow. The tests used by the circuits hasn't struck down all voting laws.

Carvin rebuttal: we are the only party advocating a clear rule. Does the voting system provide different opportunities to minorities and whites? Need to look at demographic realities to understand whether a restriction impacts opportunities.

Carvin rebuttal: given the ubiquity of socioeconomic disparities along racial lines, a robust Section 2 puts states in a straight-jacket. It's absurd that a mail system discriminates against minorities. Says that the mail is good enough to get people their ballots

Carvin rebuttal: DNC didn't challenge precincts, just the OOP policy. And precincts are closer to Latinos in Maricopa County.

And the argument is finished! A few concluding thoughts to come shortly.

My first reaction is that this argument went relatively well for the respondents. This was no Northwest Austin or Shelby County. You didn't see the conservative Justices call the VRA the "perpetuation of racial entitlement" or overtly question its constitutionality.

Indeed, the Chief seemed to disagree with Carvin's maximization argument and noted that vote-denial claims present distinct issues from the gerrymandering context.

If the Justices were hankering to totally kneecap Section 2, we would have heard a lot of Qs about the proper standard of review (Boerne, Katzenbach, Shelby County). There was basically radio silence on that point.

To be sure, Alito and Barrett channeled some of Judge Easterbrook's concerns about limiting Section 2 liability to avoid sweeping away all election administration laws. I'm not expecting a win for respondents, but I'm not expecting a devastating loss either.

For example, none of the Justices seemed interested in Carvin's exclusion of time, place, and manner restrictions from Section 2's scope. We'll likely see a majority opinion that imposes a robust causality requirement. It may put a thumb on the scale for commonplace voting laws

We should also expect an opinion from Breyer (and likely only Breyer) arguing that we should apply Title VII's disparate impact standard to Section 2.

I don't think other Justices will buy into @ProfNickStephan 's proposal for a few reasons:1) the court has never applied it to Section 2 vote-dilution claims; 2) the statutory text expressly endorses totality of the circumstances, drawn from White v. Regester;

3) keeping Section 2 tied to White v. Regester helps bolster its constitutionality at least as to vote-dilution claims; 4) the recent Title VII/FHA cases haven't looked to the VRA for guidance; and 5) Breyer is not (to put it mildly) a textualist.

I also expect a dissenting opinion, likely authored by Sotomayor, arguing that AZ's ballot-collection law was passed with discriminatory intent.

And we may still see an opinion from Thomas questioning the constitutionality of Section 2's discriminatory-effects test. But all in all, this argument could have gone a lot worse for defenders of voting rights.

And with that, I'm signing off for now. I may add some additional thoughts in the next day or so. Thanks to everyone who followed!!

#SCOTUS #VRA