MARY REICHARD, HOST: It’s Monday morning and it’s so good to be back at it for a new week of The World and Everything in It. It’s March 8th, 2021. Good morning to you! I’m Mary Reichard.
NICK EICHER, HOST: And I’m Nick Eicher. The U.S. Supreme Court handed down an opinion last week we didn’t have for on Friday, so we’ll recap it first.
This ruling may have an impact on transparency in government. A majority seven justices found that federal agencies do not have to hand over draft documents sought under a Freedom of Information Act request.
The FOIA law exempts records that are part of the so-called “deliberative process” of agencies. As a result, those documents are considered privileged and are thus protected from disclosure.
The case grew out of a FOIA request by the environmental group Sierra Club. It had sought documents related to an Environmental Protection Agency proposal for power plants. Over time the proposal changed and the group sought internal documents that would explain the changes.
Now that the Supreme Court has ruled, the case returns to the Court of Appeals for the 9th Circuit. There, the parties will face further proceedings that will determine whether some parts of the documents can be sifted out from the privileged portions and then disclosed under FOIA.
REICHARD: Our argument analysis for today comes from two cases related to election law.
In 2020—in response to the COVID pandemic—several states loosened their election rules to make it easier to vote remotely. One state in particular, the battleground state Pennsylvania, made substantial changes. Three justices wanted to take up a review of those controversial accommodations, but a majority did not, so the high court sat that one out.
The justices did agree, though, to hear two Arizona cases consolidated into one and today I’ll tell you about the oral argument in that case. Now, this is not related to Covid loosening, but the result may offer states some legal options to prevent fraud in the future.
In 2016, the DNC—the Democratic National Committee—sued Arizona over two state election laws. One in use for 25 years rejects ballots cast in the wrong precinct. Around 20 other states use some form of the same rule.
The other makes it a crime for someone outside the voter’s immediate circle to collect or deliver early ballots—someone other than, say, a family member or caregiver. When party activists collect up ballots, that practice is called ballot harvesting and Arizona doesn’t allow it.
The DNC argues these are illegal and discriminatory rules that hurt minorities. The state attorney general and the state Republican party says these are about election integrity.
Lawyer Michael Carvin for the Arizona Republican Party put it this way:
CARVIN: I think the key conceptual point here to understand is that Arizona has not denied anyone any voting opportunity of any kind. There’s not like a literacy test which denies you the right to vote. It’s not like 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.
Carvin referenced the literacy test. The Voting Rights Act of 1965 put an end to practices designed to disenfranchise minority voters, like literacy tests or poll taxes. States could no longer enact voting practices that resulted in abridgement of the right to vote “on account of race or color.”
In 1982, Congress clarified that these prohibitions applied to both intentional discrimination and to discriminatory effect.
Justice Elena Kagan lobbed a series of hypotheticals at Carvin, again, lawyer for the Arizona Republican Party. Note I’ve edited audio clips for flow.
KAGAN: So the first one is that the state decides that each county can have one polling 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. Is that system equally open in the language of the statute?
CARVIN: I would think 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.
KAGAN: Thank you, Mr. Carvin. Can we go — just 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 have to go into places which, you know, are traditionally hostile to them.
CARVIN: Yeah, I would think that would provide them with less opportunity than non-minorities. Or else they’d –
KAGAN: And why is that?
CARVIN: Well, because they have to travel further into hostile territory where non-minorities can — can travel one block to very sympathetic. Under any definition of —
KAGAN: Okay. That’s helpful.
Later, Chief Justice John Roberts brought up a bipartisan report from 2004. Former President Jimmy Carter and James Baker, a top official under two Republican presidents, headed up a commission that found absentee votes are the biggest source of potential voter fraud. And people in nursing homes and workplaces are more susceptible to intimidation when political party workers go to collect ballots.
When Chief Justice Roberts worked for the Department of Justice under President Ronald Reagan, he wrote that it shouldn’t be too easy to prove violations under this part of the Voting Rights Act. That, he wrote, would be “the most intrusive interference imaginable by federal courts into state and local processes.”
Listen to this exchange between the Chief Justice and lawyer Jessica Amunson who argued in support of the DNC. Note I’ve edited the audio for flow in this report.
ROBERTS: So, the law, you would strike down because there’s not racial proportionality in enforcing the law, and that means that your pursuit of racial proportionality would require you to keep in place…the intimidation that caused President Carter and Secretary Baker to recommend that that harvesting practice be eliminated?
AMUNSON: Your Honor, it has nothing to do with racial proportionality. What it has to do with are the burdens that the law actually imposes on voters here…What I’m saying is that here what we have is a record that shows that Native Americans and Latinos in Arizona rely disproportionately on ballot collection and white voters do not. So that is why this is before you.
Carvin, on the other side for the Republican party, pointed out that nobody thinks it’s too much to ask job applicants to send in an application. That’s so no matter if some people don’t have good mail access or transportation. It’s just part of the process, applied equally to everyone.
But Justice Sonia Sotomayor had qualms with that.
SOTOMAYOR: 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…your vote is not being counted, you’ve been denied the right to vote, haven’t you?”
CARVIN: Well, again, the only way they could remedy it is to engage in the counterintuitive policies allowing everybody to vote in any precinct they want or to have partisan operatives collect their ballots in a real threat —
SOTOMAYOR: I thought that — but I’m sorry —
CARVIN: — to fraud. And that’s not —
SOTOMAYOR: — if you —
CARVIN: — that’s a Hobson’s Choice…
Justice Sotomayor was referencing Native Americans who live in distinct communities within reservations. Those boundaries don’t line up with the state’s precincts. So it may confuse those who don’t keep the two different jurisdictions straight. And a vote in the wrong precinct means that vote is thrown out.
Justice Clarence Thomas wanted to know numbers. What percentage of minorities who cast ballots in the state were affected by these policies?
Amunson answered less than 1 percent, but this isn’t about numbers, she argued. The law says this is about the right of any voter being abridged.
Justice Thomas also pressed another lawyer for the DNC, Bruce Spiva:
THOMAS: I’m wondering how you would analyze that if, in addition to what was said that was somewhat of a pejorative nature about minorities, if someone said the opposite, or something similar or countervailing about whites, and you had both sets of pejoratives in the legislative history. How would you analyze that and how would it change the way you would analyze this case?
SPIVA: I’m not sure that it would make a difference, Your Honor…
Spiva pointed out that sometimes all you have is circumstantial evidence about whether race is a motivating factor behind a rule. Other Supreme Court decisions lay out how to determine motivation in such a case.
Justice Samuel Alito picked up on a common thread the conservative justices mentioned a few times Here he addresses Spiva for the DNC.
ALITO: What concerns me is that your position is going to make every voting rule vulnerable to attack because people who are poor and less well educated on balance probably will find it more difficult to comply with just about every voting rule than do people who are more affluent and have had the benefit of more education. Explain to me why that is not so.
Spiva answered that kind of litigation hasn’t happened yet. And even if it does, safeguards are in place. He cited as an example that Virginia’s voter ID requirements were upheld by the Supreme Court because the state gave out IDs for free to anyone who asked. So no disparate impact on any racial group. No problem.
It didn’t sound to me that the conservative justices saw Arizona’s voting rules as racial discrimination. It seemed they saw them as reasonable safeguards against fraud.
Millions of Americans distrust the integrity of their elections. Some reasons for that: many jurisdictions related voting rules to accommodate Covid fears, and mass mailing of unsolicited ballots without chain of custody security fueled concerns.
This case is a chance to at least put forth a clear standard of how to interpret the Voting Rights Act in light of states’ attempts to right the ship.
And that’s this week’s Legal Docket.