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      Constitutional Challenges Loom Over Proposed Voting Bill

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      The sprawling legislation, known as H.R. 1, could result in lawsuits leading to a dozen Supreme Court cases, legal experts said.WASHINGTON — If the sweeping voting rights bill that the House passed in March overcomes substantial hurdles in the Senate to become law, it would reshape American elections and represent a triumph for Democrats eager to combat the wave of election restrictions moving through Republican-controlled state legislatures.But passage of the bill, known as H.R. 1, would end a legislative fight and start a legal war that could dwarf the court challenges aimed at the Affordable Care Act over the past decade.“I have no doubt that if H.R. 1 passes, we’re going to have a dozen major Supreme Court cases on different pieces of it,” said Nicholas Stephanopoulos, a law professor at Harvard.The potential for the bill to set off a sprawling constitutional battle is largely a function of its ambitions. It would end felon disenfranchisement, require independent commissions to draw congressional districts, establish public financing for congressional candidates, order presidential candidates to disclose their tax returns, address dark money in political advertising and restructure the Federal Election Commission.The bill’s opponents say that it is, in the words of an editorial in The National Review, “a frontal assault on the Constitution” and “the most comprehensively unconstitutional bill in modern American history.”More measured critics take issue with specific provisions even as they acknowledge that the very nature of the bill — a grab bag of largely unrelated measures — would make it difficult to attack in a systematic way. In that respect, the anticipated challenges differ from those aimed at the Affordable Care Act, some of which sought to destroy the entire law.John O. McGinnis, a law professor at Northwestern University, said the bill went too far, partly because it was first proposed as an aspirational document rather than a practical one in 2019, when Republicans controlled the Senate and it had no hope of becoming law.“It seems very willing to brush past, at least in some cases, some relatively clear constitutional provisions,” he said, citing parts of the bill that require presidential candidates to disclose their tax returns and force advocacy groups to disclose their contributors.In March, 20 Republican state attorneys general said they were ready to litigate. “Should the act become law,” they wrote in a letter to congressional leaders, “we will seek legal remedies to protect the Constitution, the sovereignty of all states, our elections and the rights of our citizens.”Representative John Sarbanes, Democrat of Maryland and one of the lead authors of the package, said drafters had written it with a fusillade of Republican legal challenges in mind and were confident that it would “survive the great majority of them” in the Supreme Court.“I’m extremely comfortable that we built this to last,” Mr. Sarbanes said. “We think that the components are ones that are well girded against constitutional challenge — even by a court that we can imagine will probably start from a place of favorability to some of these challenges.”Democrats have made the bill a top legislative priority. But with Republicans united in opposition in the Senate, its path forward is rocky.Before a key committee vote this month, proponents of the overhaul are expected to introduce a slew of technical changes meant to address concerns raised by state elections administrators. But pushing it through the full chamber and to President Biden’s desk would require all 50 Senate Democrats to agree to suspend the filibuster rule and pass it on a simple party-line vote, a maneuver that at least two Democrats have so far rejected.Speaker Nancy Pelosi spoke at a news conference promoting H.R. 1 in March. Democrats have made the bill a top legislative priority.Anna Moneymaker for The New York TimesSome scholars have urged congressional Democrats to concentrate their efforts on narrower legislation, notably the John Lewis Voting Rights Advancement Act, which seeks to restore a key provision of the Voting Rights Act that the Supreme Court effectively eliminated by a 5-to-4 vote in 2013 in Shelby County v. Holder.The provision, the law’s Section 5, required states with a history of discrimination to obtain federal approval before changing voting procedures. In the Shelby County decision, the court ruled that the formula for deciding which states were covered violated the Constitution because it was based on outdated data.“Congress — if it is to divide the states — must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions,” Chief Justice John G. Roberts Jr. wrote for the majority.The John Lewis Voting Rights Advancement Act, named for the civil rights leader who served in the House for more than three decades until his death last year, responds to that invitation by updating the coverage formula. Whether the Supreme Court — which has become more conservative since 2013 — would uphold the new formula and allow Section 5 to be restored is an open question, but the Shelby County decision at least allows Congress to try.Similarly, the court’s precedents suggest that not all of the anticipated challenges to the much broader H.R. 1 would succeed.As a general matter, few doubt that Congress has broad authority to regulate congressional elections because of the elections clause of the Constitution.To be sure, the clause specifies that “the times, places and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof.”The clause’s next phrase, though, allows federal lawmakers to override most of the power granted to state legislatures: “But the Congress may at any time by law make or alter such regulations, except as to the places of choosing senators.”The elections clause, supplemented by other constitutional provisions, Professor Stephanopoulos wrote in an article to be published in the journal Constitutional Commentary, means that “even the bill’s most controversial elements lie within Congress’s electoral authority, and Congress could actually reach considerably further, if it were so inclined.”But he acknowledged that there was controversy over the sweep of the provision. In a majority opinion in 2013, Justice Antonin Scalia wrote in an aside that the clause “empowers Congress to regulate how federal elections are held, but not who may vote in them.” That statement was in tension with the controlling opinion in a 1970 decision that allowed Congress to lower the minimum voting age in congressional elections to 18 from 21.The Supreme Court justices last month. The court has become more conservative since 2013, when it effectively eliminated a key provision of the Voting Rights Act.Erin Schaff/The New York TimesIf the statement from Justice Scalia is followed, it would raise questions about language in H.R. 1 that seeks to restore voting rights to people with felony convictions who have completed their sentences in states that would otherwise disenfranchise them.Several scholars said the provision might be vulnerable to a legal challenge. “That’s probably the most obvious red flag,” said Franita Tolson, a law professor at the University of Southern California.The Constitution grants Congress considerably less authority over presidential elections than congressional ones, allowing it to set only the timing. But some Supreme Court opinions have said the two kinds of authority are comparable.The bill’s requirement that states create independent commissions to draw congressional districts could also lead to litigation. Such commissions were upheld by a 5-to-4 vote in 2015 in Arizona State Legislature v. Arizona Independent Redistricting Commission.Justice Ruth Bader Ginsburg, writing for the majority, said Arizona voters were entitled “to address the problem of partisan gerrymandering — the drawing of legislative district lines to subordinate adherents of one political party and entrench a rival party in power.”With changes in the makeup of the Supreme Court since then, the Arizona precedent might be vulnerable, said Travis Crum, a law professor at Washington University in St. Louis.“In litigation over the 2020 election, several justices — including Justice Brett Kavanaugh — questioned the validity of that precedent,” Professor Crum said. “Given the possibility that the court might overturn that decision in the near future, it is even more imperative that Congress step in and mandate the use of independent redistricting commissions for congressional districts.”In dissent in the Arizona case, Chief Justice Roberts wrote that the Constitution specified that only state legislatures had the power to draw congressional maps. Four years later, though, writing for the majority in rejecting a role for federal courts in addressing partisan gerrymandering, he wrote about independent commissions created by ballot measures with seeming approval and said Congress also had a role to play, citing an earlier version of H.R. 1.Representative John Lewis of Georgia outside the Supreme Court in 2013. A voting bill named for him seeks to restore enforcement of Section 5 of the Voting Rights Act, after the court effectively eliminated it.Chip Somodevilla/Getty ImagesThe provision in H.R. 1 establishing a public financing system appears to be consistent with current Supreme Court precedentsIn 2011, by a 5-to-4 vote, the court struck down a different Arizona law, which provided escalating matching funds to participating candidates based on their opponents’ spending. But Chief Justice Roberts, writing for the majority in the case, Arizona Free Enterprise Club v. Bennett, indicated that more routine public financing systems remained a valid constitutional option.“We do not today call into question the wisdom of public financing as a means of funding political candidacy,” Chief Justice Roberts wrote. “That is not our business.”Some of the disclosure requirements in H.R. 1 have drawn objections from across the ideological spectrum. The American Civil Liberties Union has said that it supports disclosures tied to “express advocacy” of a candidate’s election or defeat. The bill goes further, though, requiring disclosures in connection with policy debates that refer to candidates.That measure, two A.C.L.U. lawyers wrote in The Washington Post in March, “could directly interfere with the ability of many to engage in political speech about causes that they care about and that impact their lives by imposing new and onerous disclosure requirements on nonprofits committed to advancing those causes.”“When a group is advocating policy changes outside the mainstream,” they continued, “they need privacy protections to be able to speak freely and without fear of reprisal.”The Citizens United decision in 2010 upheld the disclosure requirements before it by an 8-to-1 vote, but a pending Supreme Court case, American for Prosperity v. Bonta, might alter the constitutional calculus.Professor McGinnis said he also questioned a provision in the bill that required leaders of organizations to say they stood by the messages in political advertisements. “This seems to me to be eating up airtime without any real justification and subjecting people to harassment,” he said.He also took issue with the bill’s requirement that presidential candidates disclose their tax returns, saying Congress cannot add qualifications to who can run for president beyond those set out in the Constitution: that candidates be natural-born citizens, residents for 14 years and at least 35 years old.A 1995 Supreme Court decision rejecting an attempt by Arkansas to impose term limits on its congressional representatives appears to support the view that lawmakers cannot alter the constitutional requirements.Even if every one of the objections to the bill discussed in this article were to prevail in court, most of the law would survive. “Part of why the attack on H.R. 1 is unlikely to be successful in the end is that the law is not a single coherent structure the way Obamacare was,” Professor Stephanopoulos said. “It’s a hundred different proposals, all packaged together.”“The Roberts court would dislike on policy grounds almost the entire law,” he added. “But I think even this court would end up upholding most — big, big swaths — of the law. It would still leave the most important election bill in American history intact even after the court took its pound of flesh.”Nicholas Fandos More

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      Supreme Court Wary of Donor Disclosure Requirement for Charities

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      The case, from California, could affect the regulation of “dark money” in political contests.WASHINGTON — The Supreme Court on Monday seemed skeptical of California’s demand that charities soliciting contributions in the state report the identities of their major donors.A majority of the justices appeared to agree that at least the two groups challenging the requirement — Americans for Prosperity, a foundation affiliated with the Koch family, and the Thomas More Law Center, a conservative Christian public-interest law firm — should prevail in the case.It was less clear whether the court would strike down the requirement entirely for all charities as a violation of the First Amendment’s protection of the freedom of association. And the justices gave few hints about whether their ruling, expected by June, would alter the constitutional calculus in the related area of disclosure requirements for campaign spending.Justice Stephen G. Breyer repeated concerns expressed in supporting briefs that the case could have broad implications. “This case is really a stalking horse for campaign finance disclosure laws,” he said.In the context of elections, the Supreme Court has supported laws requiring public disclosure. In the Citizens United campaign finance decision in 2010, the court upheld the disclosure requirements before it by an 8-to-1 vote. In a second 8-to-1 decision that year, Doe v. Reed, the court ruled that people who sign petitions to put referendums on state ballots do not have a general right under the First Amendment to keep their names secret.If the approach of the groups challenging California’s requirement for charities were adopted, Justice Sonia Sotomayor said, “I don’t see how the public disclosure at issue in Doe would have survived.”Derek L. Shaffer, a lawyer for the challengers in Monday’s case, said that the electoral context was different and that charities needed protection given the nation’s volatile political climate. He added that California’s reporting requirement subjected donors to the real potential of harassment, particularly in light of the state’s history of failing to keep the donor lists secret.“Think about medical organizations that may take views about masking, about vaccinations,” he said.Contributing to a charity for Asian-Americans, he said, might have seemed uncontroversial not long ago. “But today, in 2021, sad to say,” he said, “it could be a life-or-death issue that their identities have been disclosed.”Justice Clarence Thomas appeared to agree that donors may be endangered by disclosures of their identities. “In this era,” he said, “there seems to be quite a bit of loose accusations about organizations — for example, an organization that had certain views might be accused of being a white supremacist organization or racist or homophobic.”The challengers received support from hundreds of groups across the ideological spectrum, including the Chamber of Commerce, the Cato Institute, the Electronic Frontier Foundation, the American Civil Liberties Union, and the NAACP Legal Defense and Educational Fund.Justice Brett M. Kavanaugh read from a supporting brief filed by the last two groups: “A critical corollary of the freedom to associate is the right to maintain the confidentiality of one’s associations, absent a strong governmental interest in disclosure.”The case, Americans for Prosperity v. Bonta, No. 19-251, concerned a requirement that charities file with California a copy of an Internal Revenue Service form that identifies major donors. Federal law requires the I.R.S. to keep the form confidential.California also promised to keep the forms secret, but it has not always done so. According to court papers, it had inadvertently displayed over 1,800 forms on its website. The state has said that it has imposed new security measures.Justice Samuel A. Alito Jr. said there was little reason to trust the state. “The brief filed by the A.C.L.U. and the NAACP Legal Defense Fund says that we should regard your system as a system of de facto public disclosure because there have been such massive confidentiality breaches in California,” he told Aimee A. Feinberg, a lawyer for California.She responded that a judge had said the state’s efforts “to rectify past lapses and to prevent them in the future were commendable.”Mr. Shaffer said California had other ways to investigate potential fraud, including by auditing individual charities.Justice Elena Kagan said not all charities objected to making their donors’ names public, suggesting that a blanket rule was not needed. “Most charities disclose their donors,” she said. “In fact, it’s part of their strategy, that the more disclosure there is, the more fund-raising and association there is.”Mr. Shaffer said that anything less than a ruling doing away with the requirement entirely for all charities “will be a Pyrrhic victory.” Requiring thousands of charities to litigate whether their donors could be subject to harassment would be, he said, a burden at odds with First Amendment freedoms.Elizabeth B. Prelogar, the acting United States solicitor general, proposed a middle ground that did not seem to interest the justices. She urged the Supreme Court to return the case to the federal appeals court in California for a fresh look at whether the two groups challenging the requirement had provided sufficient evidence that their own First Amendment rights had been violated. More

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      Expanding Supreme Court Could Undermine It, Breyer Says

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      Justice Stephen G. Breyer warned on Tuesday that expanding the size of the Supreme Court could erode public trust in it by sending the message that it is at its core a political institution.Justice Breyer, 82, is the oldest member of the court and the senior member of its three-member liberal wing. He made his comments in a long speech streamed to members of the Harvard Law School community. He did not address the possibility that he might retire, giving President Biden a chance to name a new justice while the Senate is controlled by Democrats. But his talk had a valedictory quality.He explored the nature of the court’s authority, saying it was undermined by labeling justices as conservative or liberal. Drawing a distinction between law and politics, he said not all splits on the court are predictable and that those that are can generally be explained by differences in judicial philosophy or interpretive methods.Progressive groups and many Democrats were furious over Senate Republicans’ failure to give a hearing in 2016 to Judge Merrick B. Garland, President Barack Obama’s third Supreme Court nominee. That anger was compounded by the rushed confirmation last fall of Justice Amy Coney Barrett, President Donald J. Trump’s third nominee.Liberals have pressed Mr. Biden to respond with what they say is corresponding hardball: expanding the number of seats on the court to overcome what is now a 6-to-3 conservative majority. Mr. Biden has been noncommittal, but has created a commission to study possible changes to the structure of the court, including enlarging it and imposing term limits on the justices.Justice Breyer said it was a mistake to view the court as a political institution. He noted with seeming satisfaction that “the court did not hear or decide cases that affected the political disagreements arising out of the 2020 election.” And he listed four decisions — on the Affordable Care Act, abortion, the census and young immigrants — in which the court had disappointed conservatives.Those rulings were all decided by 5-to-4 votes. In all of them, the majority included Chief Justice John G. Roberts Jr. and what was then the court’s four-member liberal wing to form majorities.“I hope and expect that the court will retain its authority,” Justice Breyer said. “But that authority, like the rule of law, depends on trust, a trust that the court is guided by legal principle, not politics. Structural alteration motivated by the perception of political influence can only feed that perception, further eroding that trust.” More

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      Justice Breyer Should Retire Right Now

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      AdvertisementContinue reading the main storyOpinionSupported byContinue reading the main storyJustice Breyer Should Retire Right NowIf he doesn’t, Democrats run the very real risk that they would be unable to replace him.Mr. Campos is a law professor who writes extensively about politics and the Constitution.March 15, 2021, 5:00 a.m. ETCredit…Simone NoronhaJustice Ruth Bader Ginsburg was widely, and deservedly, criticized for her refusal to retire from the Supreme Court at a time when a Democratic president could have chosen her replacement.Justice Stephen Breyer is making a similar and arguably even more egregious mistake.The evident indifference on the part of Democrats regarding the failure of Justice Breyer, 82, to announce his retirement is apparently a product of the assumption that he will do so at some point during the current Congress and that therefore whether he does so anytime soon is not particularly important.This is a grave mistake.Consider that because of the extremely thin nature of their Democratic Senate control, the shift of a single seat from the Democrats to the Republicans or even one vacancy in the 50 seats now controlled by the Democratic caucus would probably result in the swift reinstallation of Mitch McConnell as the majority leader.What are the odds that something like this — a senator’s death, disabling health crisis or departure from office for other reasons — will happen sometime in this Congress’s remaining 22 months?Alarmingly for Democrats, if history is any guide, the odds are quite high. Since the end of World War II, 27 of the 38 Congresses have featured a change in the party composition of the Senate during a session.The probability that such a shift may occur during this particular Congress may well be even higher than that. At the moment, no fewer than six Democratic senators over the age of 70 represent states where a Republican governor would be free to replace them with a Republican, should a vacancy occur.Five other Democratic senators represent states for which a vacancy would go unfilled for months, until a special election to fill the seat was held — which would hand the G.O.P. control of the Senate at least until that election and likely for the rest of the current Congress if a Republican wins that contest. (In the case of Wisconsin, such a vacancy might not be filled until 2023.)All things considered, the odds that Democrats will lose control of the Senate in the next 22 months are probably close to a coin flip.Under the circumstances, for Democrats to run the very real risk that they would be unable to replace Justice Breyer is unacceptable. Of course, the only person who is in a position to ensure that this does not happen is Justice Breyer himself.It is true that, under normal circumstances, a Supreme Court justice planning to retire generally waits until the end of a court term to do so. But these are not normal circumstances.Nothing illustrates the anti-democratic dysfunction of our political system more clearly than the current makeup of the Supreme Court. Two-thirds of the sitting justices were nominated by Republican presidents, even though Republican presidential candidates have lost the popular vote in seven of the nine elections, which determined who nominated these justices.And these justices were confirmed by a Senate that has become skewed so radically in favor of electing Republicans that the 50 senators who caucus with the Democrats represent about 41.5 million more Americans than the 50 Republican senators do.Under the circumstances, it would be a travesty if the Supreme Court seat occupied by Justice Breyer was not filled by a replacement chosen by Democrats.He should announce his retirement immediately, effective upon the confirmation of his successor. For him to continue to make the same gamble that Justice Ginsburg made and lost runs the risk of tainting his legacy as a justice and has the potential to be an anti-democratic disaster for the nation as a whole.Paul F. Campos is a law professor at the University of Colorado, Boulder, and writes about law and politics at Lawyers, Guns & Money.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram.AdvertisementContinue reading the main story More

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      Supreme Court Case Could Limit Options to Fight Republican Voting Restrictions

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      AdvertisementContinue reading the main storySupported byContinue reading the main storySupreme Court Case Could Limit Options to Fight Republican Voting RestrictionsThe Supreme Court on Tuesday heard arguments on an Arizona case that could further undermine the ability of the Voting Rights Act to protect access to the ballot.People lined up to vote at a polling place in Phoenix in November. Arizona is one of several states where Republican legislatures are drafting legislation to restrict voting access.Credit…Adriana Zehbrauskas for The New York TimesReid J. Epstein and March 3, 2021, 1:27 p.m. ETWASHINGTON — There was not much subtlety to the Republicans’ argument to the Supreme Court on Tuesday for allowing laws that effectively limit voting access for people of color.Overturning a restrictive Arizona law, said Michael A. Carvin, the lawyer representing the Republican Party of Arizona, “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,” referring to the part of the Voting Rights Act that is generally used to protect voting access for minority groups.“It’s the difference between winning an election 50-49 and losing,” he said.Mr. Carvin’s explanation, in response to a softball question from Justice Amy Coney Barrett about the Republican Party’s interest in a lawsuit brought by Democrats against Arizona, struck at the heart of the latest Supreme Court case that could have a major impact on states’ ability to curtail voting rights.At issue before the court are Arizona laws forbidding third-party collection of ballots, which Republicans derisively call harvesting, and another requiring election officials to discard ballots cast at the wrong precinct. The broader question is the future of the Voting Rights Act, and whether states will be allowed to restrict voting access unimpeded.Should the Republican argument prevail at the Supreme Court, where conservative justices hold a six-to-three majority, it could give the party’s lawmakers wide latitude to enact voting restrictions to eliminate early voting on Sundays, end third-party ballot collection and restrict who can receive an absentee ballot — all voting mechanisms Democratic lawyers argued would disproportionately curtail voting access to people of color.Republicans, in the era of former President Donald J. Trump, have made limiting access to voting a key provision of their political identity. Republicans in at least 43 states are trying to roll back laws increasing access to the ballot box that even some of them had once supported.In Washington and across the country, Republicans have adopted Mr. Trump’s false claims that the 2020 election was stolen from him, say voters don’t trust the system, and argue, despite numerous studies to the contrary, that easier access to voting inevitably leads to fraud.While Republican officials have for a generation proffered specious arguments about voter fraud affecting election results, the Trump era marks the first time there has been a party-wide, nationwide effort to limit access to the ballot for people of color and young voters — a population far more inclined to vote for Democrats.“You can’t build a foundation of lies and then use that foundation to disenfranchise voters, particularly voters of color,” said Tom Perez, the former Democratic National Committee chairman who prosecuted voting rights cases as head of the Justice Department’s Civil Rights Division during the Obama administration. “We’re on really dangerous turf right now when you have Republicans fueling these laws on the basis of falsehoods and the courts are going to be a last resort.”In this case, the justices have a range of options. They could leave the existing law intact and rule narrowly that the Arizona case was wrongly decided. Arizona’s attorney general and a lawyer for the state’s Republican Party suggested on Tuesday that the court could also choose to exempt some parts of election law — such as a ballot-collection law that deals with how voting is conducted, rather than who votes — from Section 2 coverage.Or they could rule that a higher standard is needed to show that intentional discrimination or past injustices caused a violation — for example, requiring more substantial evidence of discrimination, or ruling that past discrimination no longer needs to be considered.Limiting what can be argued under the Voting Rights Act would cut off many legal avenues to challenge new voting restrictions passed by Republican lawmakers.Conservatives hold a six-to-three majority on the Supreme Court, which could lead to decisions that give Republicans wide latitude to enact voting restrictions.Credit…Alyssa Schukar for The New York TimesLast week, Iowa legislators sent to Gov. Kim Reynolds, a Republican, legislation that would cut a third of the state’s early-voting period and lop off an hour of Election Day voting. In Georgia, Republican lawmakers are aiming to sharply limit voting access on Sundays, when many Black voters follow church services with “souls to the polls” bus rides to cast ballots. And in Arizona, Republican lawmakers are backing bills to curtail the automatic mailing of absentee ballots to voters who skip elections, and trying to raise to 60 percent the threshold to pass citizen-led ballot referendums.Republicans in Pennsylvania and Wisconsin have also pushed for new voting restrictions, though their Democratic governors are certain to veto any such proposals. The key legal tool in question at the Supreme Court is Section 2 of the Voting Rights Act, which governs after-the-fact challenges to state voting laws. Limiting its application — as the court did in 2013 with the Voting Rights Act’s requirement that some states receive Justice Department clearance before changing voting laws or drawing new legislative maps — could allow states to enact far more sweeping restrictions on voting, while increasing legal hurdles to overturn the new laws.Section 2 lawsuits have proven pivotal in striking down or modifying restrictions on people’s ability to cast ballots. Among them are a 2015 case overturning Texas’ strict voter ID law and a 2016 decision nullifying a North Carolina voting law, whose constraints ranged from strict ID requirements to limiting voter registration and early voting. In the latter case, an appeals court wrote that Republicans in the state legislature had used the law to target Black voters “with almost surgical precision.”“It would make it all the harder to stop some of these really dangerous voting laws,” said Stephen Spaulding, a senior counsel for public policy at Common Cause. “It would be an accelerant for further voter suppression.”Mark Brnovich, the Arizona attorney general who argued the case before the court, said Section 2 can only apply if there is a “substantial” disparity impacting voters of color, a higher standard than Democrats believe exists under the 14th and 15th Amendments. He said that absent the higher bar, Section 2 would “improperly inject race into all voting laws, and impede a state’s ability to run their elections.”Without the Voting Rights Act, Democrats have few tools to stop Republican-controlled states from limiting voting access.House Democrats on Wednesday are expected to pass H.R. 1, a bill to standardize federal election rules by overriding many of the restrictive voting laws enacted in the states and to dramatically expand voting access. But the proposal has little chance of proceeding through the Senate unless Democrats there agree to suspend or terminate the filibuster’s 60-vote requirement to pass most legislation.Though a majority of justices seemed inclined to uphold Arizona’s laws at the end of the nearly two-hour argument on Tuesday, it was not at all clear how broadly their ruling might impact Section 2, the last remaining pillar of the 1965 law, voting-rights experts said.One big reason is that the law says that whether the section is violated rests heavily on local circumstance, such as whether a law purporting to stop fraud was preceded by actual evidence of fraud. Another is that many violations do not rest on proof of intentional bias — which can be difficult or impossible to prove — but on evidence that the law in question perpetuates old injustices.The justices appeared on Tuesday to be grappling with how direct that link between an old injustice and a new violation needs to be. For example, a voting literacy test like those of the Jim Crow era might be equally applied to all voters, but it might disproportionately keep minorities from voting because an old injustice — like a segregated school system that gave Black voters a poorer education — caused them to fail. That is a clear link.Activists from Black Voters Matter worked to direct people to polling places in Georgia in January.Credit…Audra Melton for The New York TimesBut other laws, including the ones in Arizona, may affect minorities disproportionately, yet require a finer judgment as to why. One question in the argument on Tuesday was whether the evidence of intentional bias, including an inflammatory video alleging ballot fraud by Latinos, was sufficient to support a violation.In striking down the heart of the Voting Rights Act in 2013, the justices effectively said that the federal government no longer could hold veto power over voting laws in states with a history of discrimination because times had changed, and past discrimination in those states no longer was relevant.“Nobody struck down Section 5,” said Myrna Pérez, who directs the voting rights and elections program at the Brennan Center for Justice, referring to the clause that gave the government veto power known as pre-clearance. “Nobody said it was an overextension of Congress’s power. They just said it didn’t apply.”Few expect the court to go that far in this case. But a substantial weakening of the standards could make it much harder for plaintiffs to prove that a restriction on voting rights was a violation.In her closing statement on Tuesday, Jessica Ring Amunson, the lawyer for Katie Hobbs, Arizona’s Democratic secretary of state, urged the court to seek a higher vision of democracy than the “zero-sum” game the Republicans described. The country functions best, she said, when all eligible Americans have the right and access to vote.“We should actually want to ratchet up participation so that every eligible citizen who wants to vote can do so. Candidates and parties should be trying to win over voters on the basis of their ideas, not trying to remove voters from the electorate by imposing unjustified and discriminatory burdens,” she said.Speaking of the Republicans, Ms. Amunson concluded: “Unfortunately, petitioners have made clear that that is not their vision of democracy.”AdvertisementContinue reading the main story More

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      Supreme Court Seems Ready to Sustain Arizona Voting Limits

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      AdvertisementContinue reading the main storySupported byContinue reading the main storySupreme Court Seems Ready to Sustain Arizona Voting LimitsThe court also signaled that it could tighten the standards for using the Voting Rights Act to challenge all kinds of voting restrictions.Election workers counting ballots in Phoenix in November. The case before the Supreme Court could determine the fate of scores if not hundreds of laws addressing election rules in the coming years.Credit…Adriana Zehbrauskas for The New York TimesMarch 2, 2021Updated 6:35 p.m. ETWASHINGTON — The Supreme Court seemed ready on Tuesday to uphold two election restrictions in Arizona and to make it harder to challenge all sorts of limits on voting around the nation.In its most important voting rights case in almost a decade, the court for the first time considered how a crucial part of the Voting Rights Act of 1965 applies to voting restrictions that have a disproportionate impact on members of minority groups. The court heard the case as disputes over voting rights have again become a flash point in American politics.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.”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.The Biden administration, too, told the justices in an unusual letter two weeks ago that the Arizona measures appeared to be lawful. But the letter disavowed the Trump administration’s position that the relevant section of the Voting Rights Act should not be widely used to keep states from enacting more restrictive voting procedures.Much of the argument on Tuesday centered on that larger issue in the case, Brnovich v. Democratic National Committee, No. 19-1257, of what standard courts should apply to challenges under Section 2 of the Voting Rights Act. The court’s answer to that question could determine the fate of scores if not hundreds of laws addressing election rules in the coming years.As Republican-controlled state legislatures increasingly seek to impose restrictive new voting rules, Democrats and civil rights groups are turning to the courts to argue that Republicans are trying to suppress the vote, thwart the will of the majority and deny equal access to minority voters and others who have been underrepresented at the polls.“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.”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.”Jessica R. Amunson, a lawyer for Katie Hobbs, Arizona’s secretary of state, a Democrat, said electoral contests should not turn on voting procedures.“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.”Section 2 took on additional prominence after the Supreme Court in 2013 effectively struck down the heart of the Voting Rights Act, its Section 5, which required prior federal approval of changes to voting procedures in parts of the country with a history of racial and other discrimination.Until then, Section 2, which allows after-the-fact challenges, had mostly been used in redistricting cases, where the question was whether voting maps had unlawfully diluted minority voting power. Its role in addressing the denial of the right to vote itself has been subject to much less attention.Over two hours of arguments by telephone, the justices struggled to identify a standard that would allow courts to distinguish lawful restrictions from improper ones.The court did not seem receptive to a rigorous test proposed by Mr. Carvin, the lawyer for the Arizona Republican Party, who said that ordinary election regulations are not subject to challenges under Section 2. Most justices appeared to accept that regulations that place substantial burdens on minority voters could run afoul of the law.But there was some dispute about what counted as substantial and what justifications states could offer for their restrictions. The court’s more conservative members seemed inclined to require significant disparities unconnected to socioeconomic conditions and to accept the need to combat even potential election fraud as a sufficient reason to impose restrictions on voting.Justice Elena Kagan tested the limits of Mr. Carvin’s argument, asking whether much longer lines at polling places in minority neighborhoods could be challenged under the law. He said yes. He gave the same answer when asked about locating all polling places at country clubs far from minority neighborhoods.But he said cutting back on Sunday voting, even if heavily relied on by Black voters, was lawful, as was restricting voting to business hours on Election Day.Mark Brnovich, Arizona’s attorney general, a Republican, proposed a vaguer standard, saying that the disparate effect on minority voters must be substantial and caused by the challenged practice rather than some other factor.Asked by Justice Kagan whether the four hypothetical restrictions she had posed to Mr. Carvin would survive under that test, Mr. Brnovich did not give a direct answer.He did say that the number of ballots disqualified for having been cast in the wrong district was very small and that Arizona’s overall election system makes it easy to vote.Ms. Amunson, the lawyer for Arizona’s secretary of state, urged the justices to strike down the challenged restrictions.“Arizona already has a law prohibiting fraudulent ballot collection,” she said by way of example. “What this law does is it criminalizes neighbors helping neighbors deliver ballots with up to two years in jail.”Justice Samuel A. Alito Jr. asked her a series of hypothetical questions about early voting, ballot forms and deadlines for mailed ballots. Ms. Amunson gave a general answer.“You have to take a functional view of the political process and look to a holistic view of how it is actually affecting the voter on the ground,” she said.Justice Alito appeared unsatisfied. “Well, those are a lot of words,” he said. “I really don’t understand what they mean.”Several justices suggested that most of the standards proposed by the lawyers before them were quite similar. “The longer this argument goes on,” Justice Kagan said, “the less clear I am as to how the parties’ standards differ.”Justice Stephen G. Breyer echoed the point. “Lots of the parties on both sides are pretty close on the standards,” he said.Justices Kagan and Breyer, both members of the court’s liberal wing, may have been playing defense, hoping the court’s decision, expected by July, would leave Section 2 more or less unscathed.But Justice Alito said he was wary of making “every voting rule vulnerable to attack under Section 2.”“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,” he said.Justice Barrett appeared to agree. “All election rules,” she said, “are going to make it easier for some to vote than others.”But Justice Brett M. Kavanaugh said he could think of two workable standards for applying the law. “One factor would be if you’re changing to a new rule that puts minorities in a worse position than they were under the old rule,” he said, “and a second factor would be whether a rule is commonplace in other states that do not have a similar history of racial discrimination.”Last year, the United States Court of Appeals for the Ninth Circuit, in San Francisco, ruled that both Arizona restrictions violated Section 2 because they disproportionately disadvantaged minority voters.AdvertisementContinue reading the main story More

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      A Supreme Court Test for What’s Left of the Voting Rights Act

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      AdvertisementContinue reading the main storySupported byContinue reading the main storyA Supreme Court Test for What’s Left of the Voting Rights ActWhile state legislatures consider new voting restrictions to address claims of election fraud, the justices will hear arguments on what kind of legal scrutiny such laws should face.The Supreme Court has never considered how a particular provision of the Voting Rights Act of 1965 applies to policies that restrict the vote.Credit…Anna Moneymaker for The New York TimesFeb. 28, 2021, 12:24 p.m. ETWASHINGTON — As Republican state lawmakers around the nation are working furiously to enact laws making it harder to vote, the Supreme Court on Tuesday will hear its most important election case in almost a decade, one that will determine what sort of judicial scrutiny those restrictions will face.The case centers on a crucial remaining provision of the Voting Rights Act, which prohibits voting practices that discriminate on the basis of race. Civil rights groups are nervous that the court, now with a six-justice conservative majority, will use the opportunity to render that provision, Section 2, toothless.The provision has taken on greater importance in election disputes since 2013, when the court effectively struck down the heart of the 1965 law, its Section 5, which required prior federal approval of changes to voting procedures in parts of the country with a history of racial and other discrimination.But Chief Justice John G. Roberts’s majority opinion in the 5-to-4 decision, Shelby County v. Holder, said Section 2 would remain in place to protect voting rights by allowing litigation after the fact.“Section 2 is permanent, applies nationwide and is not at issue in this case,” he wrote.But it is more than a little opaque, and the Supreme Court has never considered how it applies to voting restrictions.The new case, Brnovich v. Democratic National Committee, No. 19-1257, was filed by the Democratic National Committee in 2016 to challenge voting restrictions in Arizona. Lawyers for civil rights groups said they hoped the justices would not use the case to chip away at the protections offered by Section 2.“It would be just really out of step for what this country needs right now for the Supreme Court to weaken or limit Section 2,” said Myrna Pérez, a lawyer with the Brennan Center for Justice, which submitted a brief supporting the challengers.Civil rights lawyers have a particular reason to be wary of Chief Justice Roberts. When he was a young lawyer in the Reagan administration, he unsuccessfully worked to oppose the expansion of Section 2, which had initially covered only intentional discrimination, to address practices that had discriminatory results.The Arizona case concerns two kinds of voting restrictions. One 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.” The law makes exceptions for family members, caregivers and election officials.“I can’t believe the court would strike down common-sense election integrity measures,” Mark Brnovich, the state’s attorney general, said in an interview. In his brief, he wrote that “a majority of states require in-precinct voting, and about 20 states limit ballot collection.”Whether the particular restrictions challenged in the case should survive is in some ways not the central issue. The Biden administration, for instance, told the justices in an unusual letter two weeks ago that the Arizona measures did not violate Section 2. But the letter disavowed the Trump administration’s interpretation of Section 2, which would limit its availability to test the lawfulness of all sorts of voting restrictions.Section 2 bars any voting procedure that “results in a denial or abridgment of the right of any citizen of the United States to vote on account of race.” That happens, the provision goes on, when, “based on the totality of circumstances,” racial minorities “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.”Dissenting in the Shelby County case, Justice Ruth Bader Ginsburg said Section 2 was not nearly as valuable as Section 5.A polling site in Phoenix in 2016. The case, Brnovich v. Democratic National Committee, was filed by the Democratic National Committee that year to challenge voting restrictions in Arizona.Credit…Max Whittaker for The New York Times“Litigation occurs only after the fact, when the illegal voting scheme has already been put in place and individuals have been elected pursuant to it, thereby gaining the advantages of incumbency,” she wrote. “An illegal scheme might be in place for several election cycles before a Section 2 plaintiff can gather sufficient evidence to challenge it. And litigation places a heavy financial burden on minority voters.”While Section 5 was available, Section 2 was used mostly in redistricting cases, where the question was whether voting maps had unlawfully diluted minority voting power. Its role in testing restrictions on the denial of the right to vote itself has been subject to much less attention.But Paul M. Smith, a lawyer with the Campaign Legal Center, which submitted a brief supporting the challengers, said lower courts had worked out a sensible framework to identify restrictions that violate Section 2.“It is not enough that a rule has a racially disparate impact,” he said. “That disparity must be related to, and explained by, the history of discrimination in the jurisdiction. Our hope is that the court will recognize the importance of maintaining this workable test, which plays an essential role in reining in laws that operate to burden voting by Blacks or Latinos.”The two sets of lawyers defending the measures in Arizona did not agree on what standard the Supreme Court should adopt to sustain the challenged restrictions. Mr. Brnovich, the state attorney general, said the disparate effect on minority voters must be substantial and caused by the challenged practice rather than some other factor. Lawyers for the Arizona Republican Party took a harder line, saying that race-neutral election regulations that impose ordinary burdens on voting are not subject at all to challenges under Section 2.Last year, the United States Court of Appeals for the Ninth Circuit, in San Francisco, ruled that both Arizona restrictions violated Section 2 because they disproportionately disadvantaged minority voters.In 2016, Black, Latino and Native American voters were about twice as likely to cast ballots in the wrong precinct as were white voters, Judge William A. Fletcher wrote for the majority in the 7-to-4 decision. Among the reasons for this, he said, were “frequent changes in polling locations; confusing placement of polling locations; and high rates of residential mobility.”Similarly, he wrote, the ban on ballot collectors had an outsize effect on minority voters, who use ballot collection services far more than white voters because they are more likely to be poor, older, homebound or disabled; to lack reliable transportation, child care and mail service; and to need help understanding voting rules.Judge Fletcher added that “there is no evidence of any fraud in the long history of third-party ballot collection in Arizona.”In dissent, four judges wrote that the state’s restrictions were commonplace, supported by common sense and applied neutrally to all voters.Lawmakers were entitled to try to prevent potential fraud, Judge Diarmuid F. O’Scannlain wrote. “Given its interest in addressing its valid concerns of voter fraud,” he wrote, “Arizona was free to enact prophylactic measures even though no evidence of actual voter fraud was before the legislature.”The appeals court stayed its ruling, and the restrictions were in place for the election in November.Mr. Brnovich will argue before the justices on Tuesday in the case that bears his name. He said the Ninth Circuit’s approach “would jeopardize almost every voting integrity law in almost every state.”Leigh Chapman, a lawyer with the Leadership Conference on Civil and Human Rights, which filed a brief supporting the challengers, said the Supreme Court faced a crossroad.“Especially in the absence of Section 5,” she said, “Section 2 plays an essential role in advancing the federal commitment to protecting minority voters and ensuring that they have an equal opportunity to participate in the political process.”AdvertisementContinue reading the main story More

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      We Still Have to Worry About the Supreme Court and Elections

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      #masthead-section-label, #masthead-bar-one { display: none }Campaign to Subvert the 2020 ElectionKey TakeawaysTrump’s RoleGeorgia InvestigationExtremist Wing of G.O.P.AdvertisementContinue reading the main storyOpinionSupported byContinue reading the main storyWe Still Have to Worry About the Supreme Court and ElectionsThe justices are about to consider whether the Voting Rights Act applies to policies that restrict the vote.Contributing Opinion WriterFeb. 25, 2021, 5:00 a.m. ETCredit…Damon Winter/The New York TimesWhen the Supreme Court on Monday rejected Pennsylvania Republicans’ after-the-fact effort to invalidate late-arriving mailed ballots, it was tempting to suppose that the country’s courthouse doors had finally closed on this most litigated of presidential elections.If only it were that simple.True, in denying the Republicans’ petitions, the court didn’t issue an opinion. Of the four votes necessary to accept a case, these two cases (treated by the court as one) garnered only three. So for the official record, the only outcome in Republican Party of Pennsylvania v. DeGraffenreid and in Corman v. Pennsylvania Democratic Party was “denied.”But the three justices who would have accepted the cases — Clarence Thomas, Samuel Alito and Neil Gorsuch — issued dissenting opinions that provide both a road map and a rationale for the Supreme Court’s future intervention in the quintessentially state matter of how to conduct elections.Remember Bush v. Gore, the case that decided the 2000 presidential election, in which five justices voted to overturn the Florida Supreme Court’s handling of a statewide recount? That decision was based on a theory of equal protection so wacky that the majority opinion insisted that “our consideration is limited to the present circumstances” — that is to say, don’t dare invoke this poor excuse for an opinion as a precedent.That didn’t stop Justice Thomas from citing Bush v. Gore in his dissenting opinion on Monday, and he did so in a particularly shameless fashion. The language he cited wasn’t even from the Bush v. Gore majority opinion, but rather from a separate concurring opinion filed in that case by only three of the majority justices, who argued that the Florida Supreme Court had violated the U.S. Constitution by substituting its will for that of the state Legislature. Justice Thomas invoked that minority portion of the decision to assert that the Pennsylvania Supreme Court was constitutionally out of bounds when, citing both the Covid-19 pandemic and the collapse of the Postal Service as its reasons, it added three postelection days for lawful receipt of mailed ballots.He went on to warn that fraud was “more prevalent with mail-in ballots,” citing as evidence a 1994 Federal District Court case, an article in this newspaper from 2012 and the 2018 Republican ballot-harvesting fraud in North Carolina. Such occurrences, he said, raise “the likelihood that courts will be asked to adjudicate questions that go to the heart of election confidence.” This was the reason, he argued, that the Supreme Court should have taken and decided the Pennsylvania cases before the next election cycle.In his inventory of ballot fraud, Justice Thomas of course could not refer to fraud in the 2020 election, because there wasn’t any. Not a problem:We are fortunate that many of the cases we have seen alleged only improper rule changes, not fraud. But that observation provides only small comfort. An election free from strong evidence of systemic fraud is not alone sufficient for election confidence. Also important is the assurance that fraud will not go undetected.In other words, Justice Thomas would have it both ways: If there was fraud, the court needed to intervene, and if there was no fraud, the court needed to intervene because the fraud might simply be undetected. Despite his disclaimer, the entire structure of his opinion, suggesting that something bad had happened even if no one could prove it, is fairly read as validating the essence of the Trump narrative.Justice Alito, in a separate dissenting opinion that Justice Gorsuch also signed, was more circumspect about the fraud issue. His emphasis was the urgency of stopping state courts from substituting their judgment for that of the legislatures. He said that even though the election was over and late ballots were too few to have made a difference in Pennsylvania’s vote totals, state courts could be expected to behave in the same way in the future unless the Supreme Court used this occasion to stop them.There are several things to note about the Pennsylvania cases. The most obvious is the absence of a fourth vote. In an initial round in the Pennsylvania cases, in mid-October, Justice Brett Kavanaugh had provided Justices Thomas, Alito and Gorsuch with a fourth vote to grant a stay of the state court decision. But a stay requires five votes rather than four. With Amy Coney Barrett not yet confirmed, the eight justices divided 4 to 4, and the stay was denied without opinions. Justice Kavanaugh withheld his vote on Monday, without explanation. Maybe he decided this was a propitious time to offer some cover for Chief Justice John Roberts, who has voted in nearly all the election cases this fall with the three remaining liberal justices.Justice Barrett was also silent. During her confirmation hearing, Senate Democrats had pressed her to promise recusal from any election cases, given that President Donald Trump had said he needed a prompt replacement for Justice Ruth Bader Ginsburg so that he would have a majority of justices voting his way in any election disputes. Justice Barrett did not recuse herself from the Pennsylvania case. Perhaps her decision not to provide the fourth vote her dissenting colleagues needed was a kind of de facto recusal, in recognition that the optics of voting to hear a last-ditch Trump appeal would be awkward, to say the least.The deeper question raised by Monday’s development is why Justices Thomas, Alito and Gorsuch are so intent on what would seem to be a counterintuitive goal for conservatives: curbing the power of state courts. I’m cynical enough to think it has to do with how these three understand the position of state legislatures and state courts in today’s political climate. It’s been widely reported that Republican-controlled legislatures are rolling out bills by the dozens to restrict access to the polls, aimed at discouraging the kind of turnout that produced Democratic victories in Georgia last month. The vote-suppression effort has become so aggressive that some Republicans are starting to worry about voter backlash, according to a recent Washington Post article.State courts, on the other hand, are capable of standing in the way of this strategy. When state high-court judges are elected, as they are in many states, they typically run in statewide races that are not subject to the gerrymandering that has entrenched Republican power in states that are much more balanced politically than the makeup of their legislatures reflects. What better way to disable the state courts in their democracy-protecting role than to push them to the sidelines when it comes to federal elections.So there is no way the Supreme Court is finished with elections. Next Tuesday, as it happens, the justices will hear a crucial voting rights case. The case, from Arizona, asks the court to decide for the first time how Section 2 of the Voting Rights Act of 1965 applies to policies that restrict the vote, through such measures as voter ID requirements.Section 2, which pertains nationwide, is the major remaining provision of the Voting Rights Actfollowing the Supreme Court’s dismantling of the act’s Section 5, in the 2013 Shelby County case. That section barred certain states and smaller jurisdictions from making changes in their election procedures without first receiving federal permission, known as “preclearance.” Section 5 provided vital protection in parts of the country where racism had not released its grip on the levers of power.The issue now is whether Section 2 can be deployed to fill that gap. It prohibits any voting practice that “results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color.” It has typically been used to challenge redistricting plans that dilute the electoral power of racial and ethnic minorities. The question of whether it can be useful in challenging the wave of vote-suppression schemes, which can present complex problems of proof, hands the justices arguably the most important civil rights case of their current term.With the country exhausted and still reeling from the turmoil of the 2020 election and its bizarre aftermath, the urge not to think about elections for a while is powerful. I share it. But it’s a luxury the Supreme Court hasn’t given us, not now, not as long as some justices have more to say.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram.AdvertisementContinue reading the main story More