Brnovich v. Democratic National Committee — Today’s Phony Panic about Voting

    The U.S. Supreme Court building in Washington, D.C. (Molly Riley/Reuters)

    Today’s talking points on the left, judging from the news media and Twitter, are about a Republican lawyer supposedly admitting to the Supreme Court that the party needs racist voter suppression to win elections. As an example, this viral tweet with over 11,000 retweets and 22,000 likes at last count:

    Notice the combination of “literally” with a parenthetical ellipsis to avoid giving the reader the actual, literal words. There is a reason for that. In fact, the case, Brnovich v. Democratic National Committee, involves a particularly flimsy claim of “laws that suppress minority voters.” As Ilya Shapiro and Stacy Hanson note:

    The Supreme Court took up Brnovich v. DNC to review Arizona’s out-of-precinct policy, which doesn’t count provisional ballots cast in person outside a voter’s designated precinct, and its ballot-collection law, which allows only certain people (essentially family, postmen and election officials) to handle someone else’s completed early ballot. The question is whether these policies comply with Section 2 of the Voting Rights Act and the 15th Amendment. It would be surprising if they didn’t, given that a majority of states require in-precinct voting, and nearly half limit ballot collection (often known as “ballot harvesting”).

    Liberal election-law professor Rick Hasen adds that the case has liberal voting-rights lawyers in a panic precisely because it is so weak:

    Generally speaking, voting rights lawyers have been reluctant to push the use of Section 2 too aggressively, likely worried that if a case got to the Supreme Court, the increasingly conservative body would weaken Section 2 protections or even find aspects of it unconstitutional. The Democratic Party seemed to have no such worry, and in Brnovich, the party challenges two Arizona policies that are far from the most egregious voting rights violations. One policy prevents Arizona officials from counting votes when voters accidentally cast them in the wrong precinct; the other bars third party groups from collecting mail-in ballots (a practice pejoratively referred to as “ballot harvesting”).

    For precisely this reason, the DNC and amicus briefs supporting it have been in a panicked scramble to get the case thrown out on procedural grounds before the Court can decide that there is no voting-rights violation going on here. Chief among those procedural arguments is the DNC’s claim that the Arizona Republican Party does not have standing to defend the law. Justice Amy Coney Barrett noted that Democrats had standing to sue because educating their voters to comply with the law cost them money and risked losing votes, and asked Michael Carvin, the Republican lawyer, what the GOP’s interest was:

    JUSTICE BARRETT: “What’s the interest of the Arizona RNC in keeping, say, the out-of-precinct ballot disqualification rules on the books?”

    CARVIN: “Because it puts us at a competitive disadvantage relative to Democrats. Politics is a zero-sum game. And every extra vote they get through unlawful interpretation of Section 2 hurts us, it’s the difference between winning an election 50-49 and losing an election 51 to 50.”

    This is not, contra what left-wing sources would have you believe, a concession that “says the quiet part out loud” that Republicans have an interest in suppressing minority voters. It is simply an acknowledgement that if Democratic voters break the law, that helps Democrats at Republicans’ expense. Carvin’s premise is that the law is a valid one — it requires people to vote where they are registered, an entirely commonplace and race-neutral requirement. If you accept that premise, then there is nothing wrong with defending the GOP’s standing on grounds that it benefits from enforcing an entirely fair and valid law against counting illegal ballots. Anybody who tells you otherwise is selling you something.

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