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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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      Georgia Takes Center Stage in Battle Over Voting Rights

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      AdvertisementContinue reading the main storySupported byContinue reading the main storyGeorgia Takes Center Stage in Battle Over Voting RightsTwo bills moving through the Republican-controlled Legislature would place new restrictions on voting access, in ways Democrats say would have an outsize impact on Black voters.A protest of a bill that would restrict voting access outside the State Capitol in Atlanta on Monday.Credit…Alyssa Pointer/Atlanta Journal-Constitution, via Associated PressRichard Fausset, Nick Corasaniti and March 3, 2021Updated 7:14 a.m. ETATLANTA — After record turnout flipped Georgia blue for the first time in decades, Republicans who control the state Legislature are moving swiftly to implement a raft of new restrictions on voting access, mounting one of the biggest challenges to voting rights in a major battleground state following the 2020 election.Two bills, one passed by the House on Monday and another that could pass the Senate this week, seek to alter foundational elements of voting in Georgia, which supported President Biden in November and a pair of Democratic senators in January — narrow victories attributable in part to the array of voting options in the state.The Republican legislation would undermine pillars of voting access by ending automatic voter registration, banning drop boxes for mail ballots and eliminating the broad availability of absentee voting. The bills would restrict early voting on the weekends, limiting the longstanding civic tradition of “Souls to the Polls” in which Black voters cast ballots on Sunday after church services.Taken together, the new barriers would have an outsize impact on Black voters, who make up roughly one-third of the state’s population and vote overwhelmingly Democratic.Black voters were a major force in Democratic success in recent elections, with roughly 88 percent voting for Mr. Biden and more than 90 percent voting for Senators Raphael Warnock and Jon Ossoff in the January runoff elections, according to exit polls.Democrats say that Republicans are effectively returning to one of the ugliest tactics in the state’s history — oppressive laws aimed at disenfranchising voters. “Rather than grappling with whether their ideology is causing them to fail, they are instead relying on what has worked in the past,” Stacey Abrams, the voting rights activist, said, referring to what she said were laws designed to suppress votes. “Instead of winning new voters, you rig the system against their participation, and you steal the right to vote.”The Georgia effort comes as former President Donald J. Trump continues to publicly promote the lie that the election was stolen from him, which has swayed millions of Republican voters. It has also put further pressure on Republican state legislatures across the country to continue drafting new legislation aimed at restricting voting rights under the banner of “election integrity” as a way of appeasing the former president and his loyal base.New restrictions on voting have already passed in Iowa, and multiple other states are lining up similar efforts, while the Supreme Court is hearing oral arguments this week on another challenge to the Voting Rights Act. Should the high court make changes to Section 2 of the act, which allows after-the-fact challenges to voting restrictions that may disproportionately affect members of minority groups, Democrats and voting rights groups could be left without one of their most essential tools to challenge new laws.People waited in line to vote early at a community center in Suwanee, Ga., in October.Credit…Nicole Craine for The New York TimesJustice Elena Kagan, in her questioning on Tuesday, appeared to allude to Georgia’s proposed limitations on Sunday voting.“If a state has long had two weeks of early voting and then the state decides that it is going to get rid of Sunday voting on those two weeks, leave everything else in place, and Black voters vote on Sunday 10 times more than white voters, is that system equally open?” Justice Kagan asked.For decades, Georgia has been at the center of the voting rights battle, with Democrats and advocacy groups fighting back against repeated efforts to disenfranchise Black voters in the state.As recently as 2018, Georgians faced hourslong lines to vote in many majority-Black neighborhoods, and thousands of Black voters were purged from the voting rolls before the election. Now Democrats and voting rights groups are alarmed that Republicans are again trying to change the state’s voting laws ahead of critical Senate and governor’s races in 2022.Though the bills in the Legislature have not been finalized, it is expected they will eventually reach the desk of Gov. Brian Kemp, a Republican. Mr. Kemp has not explicitly backed either bill, but he said on Tuesday morning that he was in favor of efforts “to further secure the vote.”“I’m supportive of putting the photo ID requirement on absentee ballots by mail and other things, making sure that there’s a fair process to observe,” Mr. Kemp told the radio host Hugh Hewitt. He said his decision on the bills would depend on “what it is and what’s in it.”Democrats, shut out of power in the Statehouse despite holding both United States Senate seats, are relatively powerless in the legislative process to stop the bills, though they do have avenues through the courts to challenge any final bill signed.In an interview on Tuesday, Ms. Abrams, the former Democratic minority leader in the Georgia House of Representatives, called Monday’s House vote “a sign of fear” over Republicans’ failure to win support from young and minority voters, two of the fastest-growing sectors of the state’s electorate.She added that the measure was also potentially self-defeating for the G.O.P. in that large percentages of rural white voters, a traditionally Republican-leaning bloc, could also be impeded by laws that make it harder for citizens to cast absentee ballots and vote by mail.Asked about restrictions to Sunday voting, Ms. Abrams cited a study by the Center for New Data, a nonprofit group, that found Black voters were more likely to vote on weekends than white voters in 107 of Georgia’s 159 counties. Over all, 11.8 percent of Black voters voted on weekends compared with 8.6 percent of white voters, according to the study.“We know that some version of this bill is likely to pass because Republicans face an existential crisis in Georgia,” Ms. Abrams said, portraying the party as shortsighted in refusing to address the factors that have put its traditional demographic advantages at risk in recent elections.Stacey Abrams, the voting rights activist and 2018 Democratic nominee for governor, may challenge Gov. Brian Kemp again in 2022.Credit…Nicole Craine for The New York TimesAmong the most pressing concerns for Georgia Democrats is the possibility that the House’s bill, H.B. 531, might be amended in the Senate to include provisions that put an end to automatic voter registration and a vote-by-mail system known as “no excuse,” which allows any voters to cast mail ballots if they choose. These proposals were included in a bill that passed out of a Senate committee last week.The automatic registration system, which registers voters when they apply for or renew a driver’s license, was put in place in 2016 under the Republican governor at the time, Nathan Deal.Georgia’s secretary of state, Brad Raffensperger, another Republican, has credited the system with drastically increasing voter registration numbers, and Republicans have cited such figures to push back against charges leveled by Ms. Abrams and others that Georgia Republicans want to suppress votes.No-excuse absentee voting was approved by the Republican-controlled Legislature in 2005 and was used by many voters during the pandemic. In December, Mr. Raffensperger supported ending no-excuse absentee voting, saying it “opens the door to potential illegal voting.”Mr. Raffensperger took that stance even as he defended Georgia’s electoral system against accusations by Mr. Trump that the election was somehow rigged; his refusal to support the former president’s baseless claims earned him the enmity of Mr. Trump and Georgia Republicans allied with him.Mr. Raffensperger’s office did not respond to a request for comment Tuesday on the current legislative efforts in the Legislature, including the House bill, which would remove the secretary of state from his role as chair of the State Elections Board.Cody Hall, a spokesman for Mr. Kemp, repeated an oft-used phrase of his, saying that the governor wanted to make it “easy to vote and hard to cheat” in Georgia.Kasey Carpenter, a Republican state representative whose district is a conservative swath of Northwest Georgia, said the House bill included a number of common-sense provisions that Democrats would be supporting if it were not for the intense partisan nature of the times. Changes to mail-in procedures, he said, were particularly important given the sharp increase in people who chose to vote that way because of the restrictions of the pandemic.“I think what you’re seeing is a measured approach,” he said.For example, Mr. Carpenter said, the bill requires voters to put the number of their driver’s license or state identification card on applications for a mail-in ballot, and requires photocopies to be sent in only if the voter is using alternative forms of identification.Mr. Kemp, a Republican, has not explicitly backed either bill, but said he favored efforts “to further secure the vote.”Credit…Dustin Chambers for The New York TimesIf a highly restrictive bill ends up on Mr. Kemp’s desk, he will be faced with a complicated dilemma.On the one hand, the governor must show his Trump-loyal Republican base that he has heard and responded to their concerns about election integrity. Doing so will be particularly important if Mr. Trump, who was incensed that Mr. Kemp did not take steps to overturn his electoral defeat in Georgia, carries out his threat to back a primary challenger on Mr. Kemp’s right flank.On the other hand, if Ms. Abrams chooses to engage Mr. Kemp in a rematch of their 2018 contest, she and her allies are likely to once again make allegations of voter suppression one of their most forceful and incessant attack lines against Mr. Kemp.In an electorate still reeling from the two-month effort to subvert the election result by Mr. Trump, and the rash of lawsuits attacking voting before and after the election, the bills in Georgia have quickly attracted national attention. More Than a Vote, a group founded by LeBron James, the basketball superstar, has vowed to draw attention to the issue during the N.B.A. All-Star game this weekend in Atlanta; his pledge was first reported by The Atlanta Journal-Constitution.Voting rights groups note that the severe limitations put on early voting could also have a cascading effect: By limiting the number of hours available for in-person voting, the bottlenecks created during high-volume times and on Election Day would very likely lead to more hourslong lines, like the waits that plagued the Georgia primary in June.“They’re creating a line management problem,” said Aunna Dennis, the executive director of Common Cause Georgia, a voting rights group. In the primary, she noted, “we saw people in line for over six hours. Just imagine if we were losing 108 hours of early voting time, of Sunday voting, access to the drop box, how many of those people are now going to have to wait in line?”Isabella Grullón Paz contributed reporting.AdvertisementContinue reading the main story More

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      The Brewing Voting Rights Clash

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      AdvertisementContinue reading the main storySupported byContinue reading the main storyOn PoliticsThe Brewing Voting Rights ClashRepublicans are reuniting — and re-energized — as they pursue a longstanding political goal.March 2, 2021, 6:47 p.m. ETCredit…Antonio de LucaThe 2020 election was a wild one. And under the strange circumstances, Republicans wound up turning against one another on an issue that tends to unite them: voting access and elections.Some Republican officials fought to restrict access to the ballot amid the pandemic, while others endorsed mail-in voting and other methods to make voting easier. After the election, some Republicans backed President Donald Trump’s unfounded claims of election fraud, while a number of state-level officials — such as Gov. Brian Kemp of Georgia and his secretary of state, Brad Raffensperger — defended the integrity of their own election systems.But now that the election is behind us, Republicans are reuniting on this issue, leading efforts around the country to restrict access to the vote. And in many cases they’re weaponizing Trump’s fabrications from 2020 to justify doing it. In Georgia this week, the Republican-led state legislature is moving forward with a bill to restrict absentee voting and limit early voting on weekends.The G.O.P. has one big advantage here: a newly cemented 6-to-3 conservative majority on the Supreme Court, which is broadly seen as receptive to restrictions on voting, even if it didn’t support Trump’s efforts to overturn the election. The justices heard oral arguments today in a challenge to the Voting Rights Act stemming from policies in Arizona during the 2020 election, and the court appeared sympathetic to the Republican plaintiffs’ arguments.Democrats, meanwhile, are equally unified in their efforts to preserve widespread voting access, particularly in Black and brown communities that are most heavily targeted by restrictive voting laws. The House today held a debate on the For the People Act, known as H.R. 1, which among other things would create a basic bill of rights for voting access. The legislation is expected to pass the chamber tomorrow along party lines.To put this all in perspective, I called Wendy Weiser, who studies these issues as the director of the Democracy Program at the Brennan Center for Justice at N.Y.U.’s law school. She took time out of a whirlwind news day on the voting front to answer a few questions for On Politics. The interview has been lightly edited and condensed for clarity.Hi, Wendy. Let’s begin with the news from Georgia. What is the significance of the legislation making its way through the state legislature there, and is it part of a trend?The bill in Georgia is one of the most significant and restrictive voter suppression bills in the country, but it is not unique right now. We’ve been tracking the legislation to restrict and also to expand voting access across the country for over a decade, and right now we have well over 250 bills pending in 43 states across the county that would restrict access to voting. That is seven times the number of restrictive voting bills we saw at the same time last year. So it is a dramatic spike in the push to restrict access to voting.So we’ve seen this is a growing movement. It’s not brand-new this year, it wasn’t invented by Donald Trump, but it was certainly supercharged by his regressive attack on our voting systems. We’re seeing its impact in Georgia, but also across the country.Republicans have been talking about voter fraud, and attempting to limit access to the ballot, for many years. How much is the current surge in restrictive voting legislation related to Donald Trump and the conspiracy theories he pushed last year, during and after the campaign?Many of these bills are fueled by the same rhetoric and grievances that were driving the challenges to the 2020 election. In addition to expressly referencing the big lie about widespread voter fraud and that Trump actually won the election, they’re targeting the methods of voting that the Trump campaign was complaining about. So, for example, the single biggest subject of regressive voter legislation in this session — roughly half the bills — is mail voting.That is new this year. We’ve been tracking efforts to restrict access to voting for a very long time, and absentee voting has not been the subject of legislative attack before. It was the politicization of that issue in the 2020 election, principally by the Trump campaign and allies, that I think helped elevate that issue to a grievance level that would cause it to be the subject of legislative attack.The Supreme Court today heard oral arguments in a challenge to the Voting Rights Act, brought by the attorney general of Arizona. What is at stake in that case?On a narrow level, the case is challenging two provisions of an Arizona law that made it harder for voters of color in Arizona to participate in the election process, but the case’s significance is much broader. The plaintiffs and the Republican National Committee are actually arguing to dramatically scale back the strength of the nationwide protections against voting discrimination in the federal Voting Rights Act.About eight years ago, the Supreme Court gutted the most powerful provision of the Voting Rights Act, the preclearance provision, which applied to states with a history of discrimination. That led to disastrous outcomes across the country, but it did not invalidate the nationwide protections against discrimination in voting, Section 2 of the Voting Rights Act. So this is the next shoe, which I hope will not drop.At a time when voting rights in America are under significant attack, more than they have been in decades — an attack through racially targeted efforts to restrict access to voting — we need the protections of the Voting Rights Act more than ever. So this is absolutely the wrong direction to go in.With the Voting Rights Act in peril, Democrats in Congress are moving forward with legislation to ensure people’s access to the ballot. What are their proposals?There are two major pieces of voting rights legislation that are moving through Congress. The one that was not voted on today is called the John Lewis Voting Rights Advancement Act, and it would restore the preclearance provision of the Voting Rights Act, which requires a federal review of changes in certain states to see if they’re discriminatory. It would also make other improvements to the Voting Rights Act to make it more effective.The other bill, which was voted on today, is called the For the People Act, H.R. 1. It would create a baseline level of voter access rules that every American could rely on for federal elections. This one would address almost comprehensively the attacks on voting rights that we’re seeing in state legislatures across the country. So, for example, in many states we’re seeing attempts to eliminate no-excuse absentee voting. H.R. 1 would require all states to offer no-excuse absentee voting. Every state would then offer that best practice of voting access, and it would no longer be manipulated, election by election, by state legislators to target voters they don’t like.On Politics is also available as a newsletter. Sign up here to get it delivered to your inbox.Is there anything you think we’re missing? Anything you want to see more of? We’d love to hear from you. Email us at onpolitics@nytimes.com.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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      Voter Suppression Is Grand Larceny

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      AdvertisementContinue reading the main storyOpinionSupported byContinue reading the main storyVoter Suppression Is Grand LarcenyWe are watching another theft of power.Opinion ColumnistFeb. 28, 2021, 7:20 p.m. ETCredit…Charles Krupa/Associated PressIn 1890, Mississippi became one of the first states in the country to call a constitutional convention for the express purpose of writing white supremacy into the DNA of the state.At the time, a majority of the registered voters in the state were Black men.The lone Black delegate to the convention, Isaiah Montgomery, participated in openly suppressing the voting eligibility of most of those Black men, in the hope that this would reduce the terror, intimidation and hostility that white supremacists aimed at Black people.The committee on which he sat went even further. As he said at the convention:“As a further precaution to secure unquestioned white supremacy the committee have fixed an arbitrary appointment of the state, which fixes the legislative branch of the government at 130 members and the senatorial branch at 45 members.” The majority of the seats in both branches were “from white constituencies.”Speaking to the Black people he was disenfranchising, Montgomery said:“I wish to tell them that the sacrifice has been made to restore confidence, the great missing link between the two races, to restore honesty and purity to the ballot-box and to confer the great boon of political liberty upon the Commonwealth of Mississippi.”That sacrifice backfired horribly, as states across the South followed the Mississippi example, suppressing the Black vote, and Jim Crow reigned.That same sort of language is being used today to prevent people from voting, because when it comes to voter suppression, ignoble intentions are always draped in noble language. Those who seek to impede others from voting, in some cases to strip them of the right, often say that they are doing so to ensure the sanctity, integrity or purity of the vote.However, when the truth is laid bare, the defilement against which they rail is the voting power of the racial minority, the young — in their eyes, naïve and liberally indoctrinated — and the dyed-in-the-wool Democrats.In early February, a Brennan Center for Justice report detailed:“Thus far this year, thirty-three states have introduced, prefiled, or carried over 165 bills to restrict voting access. These proposals primarily seek to: (1) limit mail voting access; (2) impose stricter voter ID requirements; (3) slash voter registration opportunities; and (4) enable more aggressive voter roll purges. These bills are an unmistakable response to the unfounded and dangerous lies about fraud that followed the 2020 election.”On Feb. 24, the center updated its account to reveal that “as of February 19, 2021, state lawmakers have carried over, prefiled, or introduced 253 bills with provisions that restrict voting access in 43 states.”But it is the coded language that harkens to the post-Reconstruction era racism that strikes me.In Georgia, which went for a Democrat for the first time since Bill Clinton in 1992 and just elected two Democratic senators — one Black and one Jewish — there have been a raft of proposed voter restrictions. As State Representative Barry Fleming, a Republican and chair of the newly formed Special Committee on Election Integrity, put it recently, according to The Washington Post, “Our due diligence in this legislature [is] to constantly update our laws to try to protect the sanctity of the vote.”Kelly Loeffler, who lost her Senate bid in the state, has launched a voter organization because, as she said, “for too many in our state, the importance — and even the sanctity of their vote — is in question.” She continued, “That’s why we’re rolling up our sleeves to register conservative-leaning voters who have been overlooked, to regularly engage more communities, and to strengthen election integrity across our state.”Senator Rick Scott and other Republicans on Feb. 25 introduced the Save Democracy Act in what they said was an effort to “restore confidence in our elections.”Jessica Anderson of the conservative lobbying organization Heritage Action for America said of the legislation: “I applaud Senator Scott for putting forward common-sense, targeted reforms to help protect the integrity of our federal elections and the sanctity of the vote. The Save Democracy Act will protect against fraud and restore American’s confidence in our election systems while respecting the state’s sovereignty.”Gov. Ron DeSantis of Florida is pushing a slate of restrictive voter laws that would make it harder for Democrats to win in the state. On his website, the announcement read this way: “Today, Governor Ron DeSantis proposed new measures to safeguard the sanctity of Florida elections. The Governor’s announcement reaffirms his commitment to the integrity of every vote and the importance of transparency in Florida elections.”They can use all manner of euphemism to make it sound honorable, but it is not. This is an electoral fleecing in plain sight, one targeting people of color. We are watching another of history’s racist robberies. It’s grand larceny and, as usual, what is being stolen is power.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 and Twitter (@NYTopinion), and Instagram.AdvertisementContinue reading the main story More

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      Stolen-Election Myth Fuels G.O.P. Push to Change Voting Laws

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      AdvertisementContinue reading the main storySupported byContinue reading the main storyIn Statehouses, Stolen-Election Myth Fuels a G.O.P. Drive to Rewrite RulesRepublican legislators want big changes to the laws for elections and other aspects of governance. A fight over the ground rules for voting may follow.Poll workers preparing absentee ballots for tabulation in Lansing, Mich.Credit…Bryan Denton for The New York TimesFeb. 27, 2021Updated 1:44 p.m. ETWASHINGTON — Led by loyalists who embrace former President Donald J. Trump’s baseless claims of a stolen election, Republicans in state legislatures nationwide are mounting extraordinary efforts to change the rules of voting and representation — and enhance their own political clout.At the top of those efforts is a slew of bills raising new barriers to casting votes, particularly the mail ballots that Democrats flocked to in the 2020 election. But other measures go well beyond that, including tweaking Electoral College and judicial election rules for the benefit of Republicans; clamping down on citizen-led ballot initiatives; and outlawing private donations that provide resources for administering elections, which were crucial to the smooth November vote.And although the decennial redrawing of political maps has been pushed to the fall because of delays in delivering 2020 census totals, there are already signs of an aggressive drive to further gerrymander political districts, particularly in states under complete Republican control.The national Republican Party joined the movement this past week by setting up a Committee on Election Integrity to scrutinize state election laws, echoing similar moves by Republicans in a number of state legislatures.Republicans have long thought — sometimes quietly, occasionally out loud — that large turnouts, particularly in urban areas, favor Democrats, and that Republicans benefit when fewer people vote. But politicians and scholars alike say that this moment feels like a dangerous plunge into uncharted waters. The avalanche of legislation also raises fundamental questions about the ability of a minority of voters to exert majority control in American politics, with Republicans winning the popular vote in just one of the last eight presidential elections but filling six of the nine seats on the Supreme Court.The party’s battle in the past decade to raise barriers to voting, principally among minorities, young people and other Democrat-leaning groups, has been waged under the banner of stopping voter fraud that multiple studies have shown barely exists. “The typical response by a losing party in a functioning democracy is that they alter their platform to make it more appealing,” Kenneth Mayer, an expert on voting and elections at the University of Wisconsin-Madison, said. “Here the response is to try to keep people from voting. It’s dangerously antidemocratic.”The most conspicuous of the Republicans’ efforts are a slew of bills raising barriers to casting votes, particularly mail-in ballots.Credit…Robert Nickelsberg for The New York TimesConsider Iowa, a state that has not been a major participant in the past decade’s wars over voting and election rules. The November election saw record turnout and little if any reported fraud. Republicans were the state’s big winners, including in the key races for the White House and Senate.Yet, in a vote strictly along party lines, the State Legislature voted this past week to cut early voting by nine days, close polls an hour earlier and tighten rules on absentee voting, as well as strip the authority of county auditors to decide how election rules can best serve voters.State Senator Jim Carlin, a Republican who recently announced his candidacy for the U.S. Senate, made the party’s position clear during the floor debate: “Most of us in my caucus and the Republican caucus believe the election was stolen,” he said.State Senator Joe Bolkcom, a Democrat, said that served as justification for a law that created “a voting system tailored to the voting tendency of older white Republican voters.”“They’ve convinced all their supporters of the big lie. They don’t see any downside in this,” he said in an interview. “It’s a bad sign for the country. We’re not going to have a working democracy on this path.”The issues are particularly stark because fresh restrictions would disproportionately hit minorities just as the nation is belatedly reckoning with a racist past, said Lauren Groh-Wargo, the chief executive of the voting advocacy group Fair Fight Action. The Republican push comes as the rules and procedures of American elections increasingly have become a central issue in the nation’s politics. The Brennan Center for Justice, a liberal-leaning law and justice institute at New York University, counts 253 bills in 43 states that seek to tighten voting rules. At the same time, 704 bills have been introduced with provisions to improve access to voting.The push also comes as Democrats in Congress are attempting to pass federal legislation that would tear down barriers to voting, automatically register new voters and outlaw gerrymanders, among many other measures. Some provisions, such as a prohibition on restricting a voter’s ability to cast a mail ballot, could undo some of the changes being proposed in state legislatures.Such legislation, combined with the renewed enforcement of federal voting laws, could counter some Republican initiatives in the 23 states where the party controls the legislature and governor’s office. But neither that Democratic proposal nor a companion effort to enact a stronger version of the 1965 Voting Rights Act stands any chance of passing unless Democrats modify or abolish Senate rules allowing filibusters. It remains unclear whether the party has either the will or the votes to do that.“Most of us in my caucus and the Republican caucus believe the election was stolen,” State Senator Jim Carlin of Iowa said of Donald J. Trump’s loss to President Biden.Credit…Anna Moneymaker for The New York TimesOn the legal front, the Supreme Court will hear arguments on Tuesday in an Arizona election lawsuit that turns on the enforcement of Section 2 of the Voting Rights Act. That section is the government’s main remaining weapon against discriminatory voting practices after the court struck down another provision in 2013 that gave the Justice Department broad authority over voting in states with histories of discrimination.Those who back the Republican legislative efforts say they are needed to restore flagging public confidence in elections and democracy, even as some of them continue to attack the system as corrupt. In Arizona, Pennsylvania and Wisconsin, for example, the chairs of House election committees refused for weeks or months to affirm that President Biden won the election. The chairs in Pennsylvania and Wisconsin urged U.S. House members or former Vice President Mike Pence to oppose the presidential electors certified after Mr. Biden won those states’ votes.Some respected Republican lawmakers reject charges that election proposals are bad-faith attempts to advance Republican power. “These are really big tweaks. I get that,” said State Senator Kathy Bernier, who heads an election committee in Wisconsin. “But we do this routinely every session.” Ms. Bernier said the party’s election-law bills, two of which would strengthen ID requirements for absentee ballots and limit ballot drop boxes to one per municipality, were honest efforts to make voting more secure.That said, proposals in many states have little or nothing to do with that goal. Georgia Republicans would sharply limit early voting on Sundays, when many Black voters follow church services with “souls to the polls” bus rides to cast ballots. On Friday, a State Senate committee approved bills to end no-excuse absentee voting and automatic voter registration at motor vehicle offices.Iowa’s legislation, passed this past week, also shortens the windows to apply for absentee ballots and petition for satellite polling places deployed at popular locations like college campuses and shopping centers.Bills in some states to outlaw private donations to fund elections are rooted in the unproven belief, popular on the right, that contributions in 2020 were designed to increase turnout in Democratic strongholds. The nonprofit Center for Technology and Civic Life distributed the $400 million that the Facebook founder Mark Zuckerberg and his wife, Priscilla Chan, donated to underwrite coronavirus protective equipment, polling place rentals, drop boxes and other election needs.Unsurprisingly, some of the most vigorous efforts by Republicans are in swing states where last year’s races for national offices were close.An early voting site for Georgia’s Senate runoff at the Mercedes-Benz Stadium in Atlanta in December. Credit…Erik S Lesser/EPA, via ShutterstockRepublicans in Georgia, which Mr. Biden won by roughly 12,000 votes, lined up this week behind a State Senate bill that would require vote-by-mail applications to be made under oath, with some requiring an additional ID and a witness signature.Arizona Republicans are backing bills to curtail the automatic mailing of absentee ballots to voters who skip elections, and to raise to 60 percent the share of votes required to pass most citizen ballot initiatives. Legislatures in at least five other Republican-run states are also considering bills making it harder to propose or pass citizen-led initiatives, which often involve issues like redistricting or tax hikes where the party supports the status quo.And that is not all: One Arizona Republican has proposed legislation that would allow state lawmakers to ignore the results of presidential elections and decide themselves which candidate would receive the state’s electoral votes.In Wisconsin, where gerrymanders of the State Legislature have locked in Republican control for a decade, the Legislature already has committed at least $1 million for law firms to defend its redistricting of legislative and congressional seats this year. The gerrymander proved impregnable in November; Democrats received 46 percent of the statewide vote for State Assembly seats and 47 percent of the State Senate vote, but won only 38 percent of seats in the Assembly and 36 percent in the Senate.In New Hampshire, where Republicans took full control of the Legislature in November, the party chairman, Stephen Stepanek, has indicated he backs a gerrymander of the state’s congressional map to “guarantee” that at least one of the state’s two Democrats in the U.S. House would not win re-election.“Elections have consequences,” he told the news outlet Seacoastonline. He did not respond to a request for comment.And in Nebraska, one of only two states that award electoral votes in presidential contests by congressional district, conservatives have proposed to switch to a winner-take-all model after Mr. Biden captured an electoral vote in the House district containing Omaha, the state’s sole Democratic bastion.Conversely, some New Hampshire Republicans would switch to Nebraska’s current Electoral College model instead of the existing winner-take-all method. That would appear to help Republicans in a state where Democrats have won the past five presidential elections.Pennsylvania’s Legislature is pushing a gerrymander-style apportionment of State Supreme Court seats via a constitutional amendment that would elect justices by regions rather than statewide. That would dismantle a lopsided Democratic majority on the court by creating judicial districts in more conservative rural reaches.Many Republicans argue — and some election experts at times agree — that fears about restrictive election laws among Democrats and civil liberties advocates can be overblown. Republicans point to record turnout in November as proof that restrictive laws do not suppress votes.Ms. Bernier of Wisconsin, for example, said she saw little problem with a bill that would allot one ballot drop box for voters in towns like New Berlin, with 40,000 residents, and one for voters in Milwaukee, with 590,000 residents. There were no drop boxes at all, she noted, until state officials made an emergency exception during the pandemic.“The Legislature could say that no drop boxes are necessary at all,” she said. Nathaniel Persily, a Stanford University political scientist and election expert, said he disagreed. Presidential elections always draw more voters, he said, but the grunt work of democracy often occurs in off-year votes for lesser offices where interest is lower. In those elections, “if there are barriers placed in the way of voters, they’re not going to turn out,” he said.Mike Noble, a Phoenix public-opinion expert, questioned whether the Arizona Legislature’s Trumpian anti-fraud agenda has political legs, even though polls show a level of Republican belief in Mr. Trump’s stolen election myth that he calls “mind-boggling.”Republicans who consider themselves more moderate make up about a third of the party’s support in Arizona, he said, and they are far less likely to believe the myth. And they may be turned off by a Legislature that wants to curtail absentee ballot mailings in a state where voters — especially Republicans — have long voted heavily by mail.“I don’t see how a rational person would see where the benefit is,” he said.Some other Republicans apparently agree. In Kentucky, which has some of the nation’s strictest voting laws, the solidly Republican State House voted almost unanimously on Friday to allow early voting, albeit only three days, and online applications for absentee ballots. Both were first tried during the pandemic and, importantly, were popular with voters and county election officials.If that kind of recognition of November’s successes resonated in other Republican states, Mr. Persily and another election scholar, Charles Stewart III of the Massachusetts Institute of Technology, wrote in a recent study, it could bode well for easing the deep divisions over future election rules. If the stolen election myth continues to drive Republican policy, Mr. Persily said, it could foretell a future with two kinds of elections in which voting rights, participation and faith in the results would be significantly different, depending on which party had written the rules.“Those trajectories are on the horizon,” he said. “Some states are adopting a blunderbuss approach to regulating voting that is only distantly related to fraud concerns. And it could mean massive collateral damage for voting rights.”Susan C. Beachy 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

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      How Not to Be at the Mercy of a Trumpified G.O.P.

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      AdvertisementContinue reading the main storyOpinionSupported byContinue reading the main storyHow Not to Be at the Mercy of a Trumpified G.O.P.Barack Obama asked Democrats to kill the filibuster and pass a voting rights bill because it was the right thing to do. There’s a stronger argument.Opinion ColumnistFeb. 23, 2021Credit…Elizabeth Bick for The New York TimesLast year, in his eulogy for Representative John Lewis, President Barack Obama urged Congress to pass a new voting rights act to continue the work of the lifelong civil rights activist.“If politicians want to honor John, and I’m so grateful for the legacy of work of all the Congressional leaders who are here, but there’s a better way than a statement calling him a hero,” Obama said. “You want to honor John? Let’s honor him by revitalizing the law that he was willing to die for.”Obama then called on federal lawmakers to lift as many barriers to voting as they could. “Once we pass the John Lewis Voting Rights Act, we should keep marching to make it even better,” he said, listing automatic voter registration, felon re-enfranchisement, a national voting holiday, D.C. statehood and curbs on partisan gerrymandering as reforms that would do justice to Lewis’s memory. “And if all this takes eliminating the filibuster,” Obama concluded, “then that’s what we should do.”Although he probably expected them to win in November, Obama said this not knowing whether Democrats would have a majority in the Senate come the start of the next Congress. Well, Democrats have that majority. And thanks in large part to the work of John Lewis and those who followed in his footsteps, it rests on two senators from Georgia, whose political futures rest in turn on whether every voter in the state has equal access to the ballot.The same is true in Arizona, Pennsylvania and Wisconsin, where slim margins made the difference between Democratic victory and Republican defeat in the last election, and where Republican legislative majorities are determined to keep Democrats as far from power as possible — and not to lose the next presidential election the way they lost the last one. To that end, they have introduced bills to restrict the vote, to make the race for the Electoral College — as well as any race for statewide office — as noncompetitive as possible, by taking as many Democratic voters off the board as they can.Obama asked Democrats to kill the filibuster and pass a voting rights bill because it was the right thing to do. But there’s a stronger argument: that if Democrats don’t do this, they’ll be at the mercy of a Trumpified Republican Party that has radicalized against democracy itself.Democrats have already written the kind of voting rights bill Obama spoke about. It’s the For the People Act, designated as H.R. 1 in the House and S. 1 in the Senate. If passed and signed into law, it would establish automatic, same-day and online voter registration, protect eligible voters from overly broad purges that remove them from the rolls, restore the Voting Rights Act with a new formula for federal preclearance (which would require select cities and localities to submit new voting rules to the Justice Department for clearance), re-enfranchise the formerly incarcerated, strengthen mail-in voting systems, institute nationwide early voting and increase criminal penalties for voter intimidation.House Democrats introduced H.R. 1 in 2019 at the start of the 116th Congress. Mitch McConnell, then the majority leader of the Senate, denounced the bill as a “naked attempt to change the rules of American politics to benefit one party” and told reporters it was dead on arrival. “This is a terrible proposal,” he said that March, “it will not get any floor time in the Senate.”McConnell no longer controls the floor, but with a de facto supermajority requirement in the Senate, the For the People Act is still dead on arrival. That is, unless Democrats kill the legislative filibuster and restore majority rule to the chamber. Right now, Senators Kyrsten Sinema of Arizona and Joe Manchin of West Virginia are the most vocal Democratic opponents of ending the filibuster. “I want to restore the 60-vote threshold for all elements of the Senate’s work,” Sinema said earlier this month, seemingly mistaking McConnell’s Obama-era innovation for an age-old tradition. Manchin has also been emphatic about keeping the supermajority requirement, telling Politico that he will “not vote in this Congress” to change the filibuster.Manchin, who has been winning elections in West Virginia for the last 20 years, is safe in his seat for as long as he wants it. Sinema, on the other hand, is much more vulnerable. Not the least because Arizona’s Republican state Legislature, to say nothing of its Republican Party, is all-in on “stop the steal” and Donald Trump’s war on mail-in voting. Arizona Republicans have already introduced bills to limit voter registration drives, require notarized signatures for mailed ballots and forbid voters from actually mailing-in completed ballots.Arizona Republicans are not alone. To date, according to the Brennan Center for Justice at N.Y.U.’s law school, Republicans in 33 states have introduced more than 165 bills to restrict voting, part of the national conservative backlash to the results of the 2020 presidential election. A bill in Georgia would put new restrictions on absentee and in-person early voting; four different bills in Pennsylvania would eliminate no-excuse absentee voting less than two years after Republican lawmakers voted it into law.Representative Steve Scalise of Louisiana, the No. 2 Republican in the House, captured the mood of the party when, on Sunday, he refused to say that the election wasn’t stolen from Trump. “Once the electors are counted, yes, he’s the legitimate president,” Scalise said in an interview with Jonathan Karl of ABC News, speaking of Joe Biden. “But if you’re going to ignore the fact that there were states that did not follow their own state legislatively set laws. That’s the issue at heart, that millions of people still are not happy with and don’t want to see happen again.”This is euphemism. There was no issue with the election. State legislatures passed laws, courts interpreted them, and officials put them into action. This was true in states Trump won, like Texas and North Carolina, as much as it was in states he lost. It almost goes without saying that the real issue, the reason Republicans are actually unhappy, is that Biden is president and Democrats control Congress.Devoted to Trump, and committed to his fictions about the election, Republicans are doing everything they can to keep voters from holding them and their leaders accountable. They will restrict the vote. They will continue to gerrymander themselves into near-permanent majorities. A Republican in Arizona has even proposed a legislative veto over the popular vote in presidential elections, under the dubious theory that state legislatures have unconditional, unlimited and unrestricted power to allocate electoral votes.The good news is that Democrats in Congress have it in their power to stop a lot of this nonsense, to pre-emptively weaken the rising tide of voter suppression. All it takes is a simple vote to make the Senate work according to majority rule, as the founding fathers intended.The alternative is to allow the supermajority requirement to stand, to allow endless stagnation, to abdicate the authority of Congress to govern the country and tackle its problems, to deny the party of collective action the ability to act for the public good and to give the party of plutocrats and demagogues free rein to twist the institutions of the American republic against its values.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