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John Roberts has another chance to diminish the Voting Rights Act

By Joan Biskupic, CNN legal analyst & Supreme Court biographer

Updated: Wed, 03 Mar 2021 02:38:23 GMT

Source: CNN

Chief Justice John Roberts has singlehandedly slowed a conservative revolution at the Supreme Court in recent years, but he has for even longer -- 40 years -- opposed racial remedies and narrowly construed the landmark Voting Rights Act.

During oral arguments Tuesday in an Arizona voting rights case with national implications, Roberts sounded ready to hew to that latter path. The court's ruling could diminish the ability of Native American, Latino and Black voters to claim discrimination under the 1965 law.

In 2013, Roberts led a narrow high court majority to eliminate separate Voting Rights Act coverage related to states with a history of bias. They no longer are required to obtain federal approval for new voting districts, poll closings or other electoral change -- which prompted some states to enact new voter ID requirements and polling changes.

Tuesday's case, tied to a section of the law covering claims of intentional discrimination once a regulation is in place, could have greater repercussions arising as several states consider new voter restrictions, some based on lingering and unproven allegations of fraud from the 2020 election.

Lawyers for the Democratic National Committee and Arizona Secretary of State told the justices wide swaths of Native Americans and other minorities could be disenfranchised by Arizona laws requiring ballots cast by people at the wrong precinct to be tossed and prohibiting most third parties -- beyond a relative or mail carrier -- from collecting absentee ballots, for example, at a nursing home.

Roberts focused on potential voter irregularities, highlighting a finding from a 2005 bipartisan commission on absentee ballot fraud. Countering arguments that rural Native Americans and Latinos rely disproportionately on third parties to collect their ballots, Roberts questioned whether that should force states "to tolerate" possible fraud.

The justices to Roberts' right appeared even readier to back the Arizona regulations. In the past as the justices wrestled with difficult social dilemmas, Roberts has inched to the center, sometimes with other conservatives, for a moderate ruling in these polarized times. Based on the tenor of oral arguments, the court majority appeared headed to the hard right.

The new 6-3, conservative-liberal bench seemed to have sufficient votes to reverse a US appellate court and uphold the Arizona restrictions. The crucial additional question that would affect future litigation nationwide is what standard the majority adopts to resolve claims of voter discrimination based on race.

A decision siding with Arizona Republicans and a tough standard for assessing the denial of voting rights would deepen the pattern of the 66-year-old Roberts, who has demonstrated he believes government remedies tied to race, whether in voter protections, public school integration plans or university affirmative action, violate the constitutional guarantee of equality and, in the end, disserve racial minorities.

As a young lawyer in the Ronald Reagan and George H.W. Bush administrations, Roberts wrote that voting-rights law interfered with state authority. It was a theme he carried to the bench.

Soon after joining the Supreme Court in 2005, Roberts wrote in a 2006 voting rights case, "It is a sordid business, this divvying us up by race."

The following year, as he rejected school integration plans, he said, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

Picking up from Shelby County

The Arizona controversy picked up from Roberts' consequential 2013 opinion that now prevents federal officials from pre-screening potentially discriminatory voting rules in states with histories of racial bias. Roberts said the problems that section of the Voting Rights Act was designed to correct no longer existed.

His decision in Shelby County v. Holder preserved the separate VRA section related to direct government discrimination and now at issue as the justices consider various standards for determining legislative intentions and when a person's right to vote is unconstitutionally impinged.

Referring to Roberts' opinion in the case, Bruce Spiva, representing the Democratic National Committee, said Tuesday, "The Court acknowledged that voting discrimination still exists. ... This is proven not just an accurate description of the times in 2013, but also prophetic. ... 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."

But during an earlier exchange, the chief justice questioned how judges could assess legislators' potentially discriminatory motives, particularly if only two of 100 lawmakers, for example, voice "clear racial motivation."

Spiva said the record in Arizona was not so scant: "What we have here in this record ... is far from that."

"I thought the evidence of racial intent was really quite limited in this case," Roberts countered.

"It's actually well beyond what you normally have," Spiva said, as Roberts continued to express doubts.

The Arizona Republican Party and Arizona Attorney General Mark Brnovich have appealed to the justices a California-based US appellate court decision rejecting both Arizona measures. The appeals court pointed up the state's long history of bias against Native American, Hispanic and Black voters and found the new regulations disproportionately fell on minorities.

In their arguments, Brnovich and Michael Carvin, who separately represented the Arizona Republican Party, emphasized state power to set election procedures and said the challengers failed to show voting rights were sufficiently burdened to prove a VRA claim. Brnovich said challengers must show a "substantial impact" on minorities' ability to participate and elect the candidate of their choice.

Roberts questioned how to define "substantial." Brnovich said judges should consider "the totality of the circumstances," including whether there are several ways to cast a vote, in person and by mail.

Overall, Brnovich said the Arizona restrictions are "common-sense and commonplace" measures to prevent voter fraud and coercion.

The Democratic challengers, however, contended Arizona frequently changes polling locations in minority areas and that minority voters were twice as likely to have their votes rejected for being out-of-precinct than white voters. Separately, Arizona's Native American and Latino communities were found to have limited access to mail delivery and often relied on third parties to deliver their ballots.

Roberts, questioning lawyer Jessica Amunson, referred to the 2005 commission on Federal Election Reform led by former President Jimmy Carter and former Secretary of State James Baker that warned that people who vote with mail ballots at nursing homes, work and church were more susceptible to pressure or intimidation.

"They said that absentee ballots are the largest sort of potential voter fraud," he said.

Amunson said some states may have an interest in limiting ballot collection "but when you look at the particular facts here, that does not appear to be Arizona's interest." She said the record in the case showed that Native Americans and Latinos relied more on ballot collection than white voters.

Roberts dismissed that as "racial proportionality" and said, "I'm just asking you if that requires you to tolerate the difficulties in problems and pressures that President Carter and Secretary Baker outlined in that report."

Amunson said Arizona officials were not trying to secure ballots and prevent fraud.

"What Arizona was acting to do," she said, "was to limit the participation of Hispanics and Native Americans in particular."


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