In response to a question from Alito regarding whether Democrats’ expressing alarm about how many voters would suffer burdens from the precinct requirement, Brnovich responded, “Mark Twain famously said there are three types of lies: Lies, damn lies, and statistics,” explaining that the Ninth Circuit appeals court in this case had “cherry-picked” statistics that seemed to support the Democrats’ argument, but that in reality less than 0.1 percent of votes are potentially not counted under that Arizona law.
Brnovich added, “Arizona’s requirements that ballots be cast at assigned local precincts and its restrictions on ballot harvesting are appropriate election integrity measures that do not create any disparate impact on racial minorities but serve us all equally well.”
“The desire to enhance the convenience of voting must never outweigh the imperative of securing the integrity of the result,” he concluded.
Several of the justices – especially the chief justice – had probing questions for the Democrats’ lawyers, raising issues that have been in the news recently.
“You’re aware of what the Carter-Baker Commission found about ballot harvesting,” Roberts said to one of the Democrats’ lawyers, Jessica Amunson. “They said absentee ballots are the largest source of potential voter fraud.”
Citing different forms of voter intimidation, Roberts added that the 2005 bipartisan commission report “recommended that the practice of allowing candidates or party workers to pick up and deliver absentee ballots should be eliminated.”
“All election rules are going to make it easier for some to vote than others,” Justice Amy Coney Barrett said to Amunson during her questioning, adding that “your approach risks ruling them all out.”
During Carvin’s part of the hearing, he concluded that the argument pushed by the Democratic National Committee and Arizona’s Democrat Secretary of State:
… is one that requires the courts to engage in a maximization policy, which anything that has a disproportionate result is somehow taken out of the hands of state legislatures.
If you go down that path … that still gets the courts involved in an amorphous, manipulable situation where no one knows what the rules are going into the next election and they’ll all be decided on an ad hoc basis in a hyper-partisan environment.
So, in addition to the fact that our test is the only one that comports with the text of Section 2 [of the VRA] and the Constitution, it’s also the only one that gives lower courts the clarity that is especially important in the voting context.
A decision is expected by late June.
The cases are
Brnovich v. Democratic National Committee and Arizona Republican Party v. Democratic National Committee, Nos. 19-1257 and 19-1258 in the Supreme Court of the United States.