tv Supreme Court Oral Argument on Arizona Voting Laws CSPAN July 1, 2021 11:10pm-1:08am EDT
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opinion. justice elena kagan dissented,. we will hear the oral arguments in the case must march. >> the honorable, the chief justice, and the associate justices of the supreme court of the united states. oy e.a., oy e.a., oyez, >> all persons having business before the honorable the supreme court of the united states are admonishing to give their attention, the court is now sitting. god save the united states and this honorable court. >> we will hear argument this morning and case number -- berkowitz versus democratic national committee and that consolidated case. >> the chief justice, may it please the court. i think the key conceptual point here to understand is that arizona is not denied anyone a
budding opportunity of mankind. this is not like a literacy test which denies you the right to vote. it's not like vote dilution where white block voting denies minorities an equal opportunity to elect. everyone here is eligible and registered to vote. all they have to do is utilize the myriad opportunities that arizona's offered them over 27 days to vote by mail for free or in person. and since there's no denial of opportunities, this is a disparate impact claim that would not be cognizable in other contexts. under title 7, disparate impact relates to denial of an employment opportunity, a job or promotion. it doesn't get involved in the process. no one's ever brought a title 7 claim saying you can't require people to send in applications because minorities have less access to transportation and mail. analogous to the claim being made here. so, responding to trying to move disparate impact into an entirely different context. since there's no denial of any voting opportunity in this
context, the circumstances in which time, place and manner rules can violate section 2 are extraordinarily limited. they only occur if the state has organized the time, place and manner rules and stacked them in such a way that minorities have less opportunity than non-minorities to cast their votes. that comes directly from the plain language of section 2 and it's also, of course, a practical matter the only circumstance in which the state has erected any kind of barrier to minority voting. respondents' alternative view is that war with the text of section 2. section 2 says, again, voting practices cannot provide less opportunity. they say that voting practices, which provide the same opportunity are nonetheless unlawful, if external, socioeconomic factors somehow contribute to disproportionate utilization. but that language is nowhere in
the text and was never even mentioned in the legislative history, which is -- >> mr. carvin. as i understand your test as you've just articulated it, it reduces to anything dealing with time, place or manner, it's an intent test. rather than a results test that's provided under section 2. in other words, so long as it's a time, place or manner restriction, it's only when there's a difference between minority voters and white voters that you have a problem. is that not true? >> not entirely, mr. chief justice. for this reason. it does involve differential systems, unequal access. but regardless of whether or not that unequal access is racially motivated. you would not have to prove that the intent behind the differential access provided to
minorities was to suppress or hinder the minority vote and that's a key distinction from mobile versus bone. >> you talk about the concern being that the analysis would be driven to racial proportionality. under the respondents' approach. now i understand the concerns about that when you're talking about districting, but why is that a bad thing when you're talking about electoral procedures? >> what it means is that any neutral system must be changed in order to maximize minority voting strength. regardless of how strong the justification is. things that provide no unfairness at all to minorities, you must reach every aspect of the time, place and manner. from registration to election day, to early voting in order to maximize minorities' participation.
why is that bad? because it's the same kind of race-conscious activity of subordinating neutral principles -- >> is it maximizing participation or equalizing it? in other words, that only comes up when you have disparate results. and why should there be disparate results if you can avoid them? >> because why should you -- well. for example it would eliminate , all the valuable anti-fraud concerns implicated on the ban of ballot harvesting and because it would substitute the federal courts and state legislatures to make these rules. the question is not what's wrong with it, the question is why a system that imposse no unfairness on the group should be changed simply because they find a different method of voting more convenient. there's no reason saying -- >> justice thomas? >> i apologize your honor.
>> thank you, mr. chief justice. mr. carvin, i understand your race neutrality argument. and normally you see that in the context of a nondiscrimination statute or 14th amendment that really requires equal treatment. how does that race neutrality approach fit within the language of the voting rights act? it doesn't speak in those terms. >> justice thomas, i think it speaks precisely in those terms. it says that a voting practice cannot result in minorities having less opportunity than nonminorities. it's is the system needs to be equally open. what it is saying is, as long as everyone has the same opportunity, session -- section two does not condemn it. the respondents would say even
if minorities are given the same opportunity, unless they utilize it proportionality, that comes within the constraints of section 2. there is nothing in the text of section 2 that you need to expand time place and manner to -- restrictions to enhance proportionality or maximization. if that had been the rule, every time place and manner in the country would have been illegal overnight because there was disproportionate utilization and socioeconomic disparities. if congress had intended that kind of change, it would have given some hints of it in the legislative history. this rule is contrary to the text of section 2 and any formulation of what congress was intending. >> is there a causation standard implicit in your neutrality
argument? >> only in the sense that it connotes causation and what can you not cause, what is the prohibited result? and the plain language of section 2 tells you what the system can't result in is providing less opportunity to minorities. it doesn't say it can't provide them the same opportunity but for whatever reason they don't utilize it to the same extent. there is a causation question but the question is what can the , state not cause? we say it can't cause less opportunity the other side you , can't do anything that results in disproportionate outcomes. >> how much less opportunity? the 9th circuit speaks in terms of the minimus language and judge scanlon talks about the language of substantial. how much less opportunity?
>> it depends what you are talking about. if you are talking about disproportionate outcomes, we don't think that is the issue. we don't think it jeopardizes -- is severely disproportionate outcome jeopardizes section 2 viability nor does a minor disproportionate outcome. the question is not the outcome, the question is the opportunity and if the state has provided everyone the same opportunity. now i will agree with the attorney general if you get past that, there needs to be something substantial for two reasons. no one -- >> i'm sorry to cut you off. >> justice breyer. two questions. >> one question, a literacy test, does that provide people the same opportunity? >> no. by definition -- >> how do we know whether the test of the o.o.p. whether they
do or they don't? >> i think there's an obvious deception, -- distinction, my polity. >> everyone has the complete opportunity to vote. >> it doesn't permit, but it might be that the rule that prevents them from using equally results in abridgment on account of race. >> that is the key point. the literacy test denies you the opportunity to vote. nothing like that is going on here. everyone has the complete opportunity to vote. the state has not erected any barrier. if the state denies you an opportunity, like under section seven. -- >> i have another more important question. what would you think of
professor stephanopoulos is tests or standards which bring in from title 6, title 7, the housing act, the a.d.a., he uses roughly the same approach and there would be an opportunity for the state to say, we have a good nonrace-related reason for doing this. and therefore, whatever result is, fewer minorities use it, but it's not on account of race. it's on account of our good reason. that's what we have in these statutes, something like that. what would you think of taking forms of those rules and using them here? >> two points, there is nothing in the language which allows you to justify a discriminatory result based on the strength of the words on account of race. -- if the reason you're doing it
is because you have the most wonderful nonrace-related reason in the world for doing this, then it is not on account of race. >> on account of race, as you know means because of race and the results means it doesn't have to be on account intentional discrimination. in terms of reading a justification, obvious that -- obviously, that would make the proportionality mandate somewhat less inflexible. but even if you could read it into the statute, you would be subbing the policy judgments to some ad hoc determinations to what was where think can find out of precinct voting and even under the totality of -- circumstances, the tenuousness of the policy is the ninth of the factors. i don't understand why if the
statute had actually prohibited , as respondent said, any kind of disparate outcome, why we would allow the state to get away with it. >> justice alito. >> mr. carvin, you argue that one benchmark for evaluating whether members of the protected class have less opportunity to participate is what we refer to in crawford as quote the usual burdens of voting, what does that mean? what are the usual burdens of voting? are they the burdens as they existed in 1982? do they change? how do we determine what they are? >> what the court meant in crawford which is the usual burdenens of voting. -- burdens of voting. you make a good point about we 1982. know that needs to be the
benchmark for the usual burdens because congress in 1982 was invalidating virtually every time place and manner , restriction. so that needs to be if you will the safe harbor. the only point, section 2 did not immunize from the usual -- immunize mind nor days from the usual burdens of voting. it didn't say you don't have to show up at the right precinct and those sorts of things and nothing in the language of section 2 which exempts them from doing so. so as long as it is commensurate with the normal election day system that exists, that would constitute the usual burdenen of voting. >> this relates to what you were discussing with justice breyer. your approach differs from the attorney general and solicitor general's brief in that i don't understand you to argue that a consideration of the strength of
the state's interest for a voting practice has a role to play here, is that the correct understanding of your position, and if so why isn't that a , legitimate consideration? your honor -- >> your honor, i would love if the state could justify its systems if you impose a proportionate mandate. it is note a proportionate mandate and shouldn't be and affirmative defense. if you want to read that into the statute that would make it , better than the straight proportionality mandate. i will emphasize again, even under houston lawyers association, which the solicitor general puts forward the , justification is merely one factor out of the nine to be considered. so that means you are into this report factors where every district court and appellate court can do a balancing tests which would lead to ad hoc
results and not give you the clarity and guidance that state legislatures need prior to election day. >> thank you. >> justice sotomayor. >> counsel, you keep talking about equal opportunity but i don't see it anywhere in the statute. aren't you rewriting section 2? you keep saying it prohibits giving or providing an unequal opportunity to vote. the language is very clear that focuses on the effects of government action. not the government action in a vacuum. it says no voting qualification or practice can quote result in a denial or abridgement of the right to vote on account of race. where do you get equal opportunity from in that language? >> in two places, it's not a denial in time place and manner. >> excuse me.
if you can't vote because you are a native american or a non-hispanic in areas where -- correlation rates are very small, where you don't have mail pickup or delivery, where your post office is at the edge of town and so that you require either a relative to pick up your vote or you happen to vote in a wrong precinct because your particular area has a confusion of precinct assignments, if you just can't vote for those reasons and your vote is not being counted, you have been denied the right to vote. haven't you? >> i don't think anyone would say you are denied a due process hearing. >> this is not a due process
claim. >> i'm trying to get between -- >> you are denying something if you are not not given the right to vote because the results in your denial from circumstances that the state could remedy easily. >> well, again, only way they could remedy it is to engage in the counterintuitive to allow people to vote in any precinct they want or collect their -- or have partisan operatives collect their ballots. >> i have to say if you look at the district court findings , which they vote on your behalf, but the district court found no meaningful thread that about collection leads to fraud. it found no meaningful threat, perceived threat, but none. but with respect to voting out of precinct, there was no finding by the district court
that the ballots couldn't easily be counted. >> only way they could be counted is by defeating the purpose of the precinct system. which is to have a uniform ballot so you don't need to have these remedies to figure out -- which offices are on the ballot and are not. >> counsel, your state house out out of precinct ballot type things very easily. it has a whole mechanism in place according to the district court. >> what the district said what , the ninth circuit said the precinct served very valuable purposes, and enforcing the precinct system must serve those precinct systems. >> justice kagan. justice kagan. >> i have a number of hint calls -- hypotheticals for you.
i would be grateful if we could run through these fairly quickly so i can get no understanding of your position. the first one is the state decides that each county can have one polling place and because of who lives in larger counties, that creates a disparate impact that black voters have to wait in line 10 times the amount that white voters do. 2.5 hours, instead of 15 minutes. is that system equally open in the language of the statute? >> i would say not. equally open takes into account demographic realities. one polling place for five if you haveone polling place for five people and you have one polling place for five million people, in the later situation, they don't have an equal opportunity. >> that's helpful, mr. carbon. state has long had two weeks of early voting and then the state decides that it's going to get rid of sunday voting on those
two weeks and leave everything else in place, black voters on -- vote on sunday, 10 times more than white voters. is that system equally open? >> i would think it would be. sunday is the day we traditionally close government offices. it would be the exception -- exception to have government workers to come in on a saturday, too. that's not a real problem. >> there are sunday closing laws as we know from mccall of the maryland which are different than saturday. saturday would implicate -- >> thank you, mr. carvin. can we go on to another one. the state says replacing our polling places at country clubs -- we are placing our polling places at country clubs and means black voters have to drive 10 times as long to the polls and have to go into places which
are traditionally hostile to them. >> i would think that would provide them for less opportunity. >> why? >> they have to travel into hostile territories. where nonminorities can travel one block, i'm very sympathetic. under a definition -- under any >> that's helpful. the state says we are going to have election day voting only and from 9:00 to 5:00 and plenty of evidence that voters of one race are 10 times more likely to work a job that wouldn't allow them to vote during a time period. is that system open? >> seems like it. that is the status quo in 1982 and if it was 8:00 to 7:00, you you could make the same argument -- >> what about 9:00 to 3:00? >> any time you diminish from the usual burdens and went from
15 minutes to use an extreme example then obviously you are , denying. >> 9:00 to 5:00 is ok but not 10:00 to 4:00. is that the idea? >> these are hypothetical. these didn't exist in the real world. >> these don't seem so fancyful. >> they may or may not be -- >> 10:00 to 3:00 is not. >> that is a sliding scale and getting away from the normal hours, the more suspicious it becomes. >> justice gorsuch. >> i would like to return to some questions justice thomas touched on. what is the relationship between your task focused on -- test focused on opportunities, and that solicitor general's brief suggestion about causation and proximate causeation test? >> i don't go that there's a
difference. the first step is minorities have the ability to vote. they say that is synonymous with equal opportunity. i think we are on the same page. they also cite the socioeconomic factors lead to underutilization by minorities. that is not -- under section two. it has to be the voting practice that pauses the diminished opportunity. we are fully in agreement with that as well. the two key points are the system itself needs to provide less opportunity to voters, and the socioeconomic factors, which are external to the voting practice lead to diminished utilization. neither our test and would there be a problem under section 2. >> anything in the solicitor general's brief that you disagree with? >> i don't know why they used the word ability instead of opportunity, but other than that semantic level, no.
we also talked about reading justification into the statute. a result which i warmly embrace. we may be more skeptical whether that flows from the statutory language. in the solicitor general was. but no, we have no real disagreements with the solicitor general >> and then the other question justice thomas questioned on, you speak of equality of opportunity. does not permit any demented mess distinctions -- the minimus distinctions or does it require equality of opportunity under all circumstances? >> right. obviously, any of these phrases need to take into the demographic realities and if a polling place was a foot further away for minorities than for nonminorities i don't think anybody could argue that has an cognizable effect on opportunity.
there is common sense definition. >> to add one more hypothetical -- maybe i will just stop there. >> justice kavanaugh. >> your brief says time place your brief says -- to not violate section 2, end quote and that will put pressure on the word ordinary. can you tell us how courts are to distinguish ordinary regulations from extraordinary regulations? >> i think the way the court in a line of cases and in crawford. this is not some mystery. we have a long history about how people go about voting. they show up at precincts and cast a ballot. that requires you to leave your
house, but that is not an ordinary burden of voting. -- not an unusual ardent of voting. where the other side says, you could never have a system that requires anybody to leave their house. they claim they can't find the precinct because of socioeconomic disparities or mail boxes, which means the state needs to allow partisan operatives to collect the ballots. if that is true, the only system that would satisfy their test is something where the government is sent house to house to collect the ballots. and that can't come within a -- any rational definition of the usual voting where you register and cast your vote. that is not a difficult burden when 99.8% of minorities were able to find the right precinct. >> you said that the test can take account of demographic realities, how does that occur?
>> do they preside -- provide precincts that are analogous for minorities and nonminorities. we can't put one precinct here and one precinct there, therefore it's equal. if there are huge population disparities in terms of whom the , precincts are serving, that would not be a realistic equal opportunity. if you have 10 times the population and roughly eight to 10 more precincts would have to be provided. >> you referred to common sense and two factors among others ta -- that is a matter of common sense as i think about it would , trigger more suspicion, one factor is if you are changing to a new rule that puts minorities in a worse position than they were under the old rule and the
second factor is whether a rule is commonplace in other states that do not have a history of racial discrimination. to those two considerations matter under your view under section 2? >> not really. the court is cautioned in terms of the retro aggression that is point. an analysis under section 5 not under section 2. if you think about it, there is a commonsense reason. if one party takes power and expands the vote dramatically without concern for ballot integrity or security and the other party comes in and wants to re-emphasize the notion of secure ballots they would be hamstrung by whatever the -- predecessor group did. >> justice barrett. >> i want to make sure i understand your position because it has some contradictions. as i understand from your brief, your is that section 2 doesn't apply to the time place and
manner and only about the who, am i right about that? >> qualifications would deny the opportunity and time place and manner do not denny anybody to -- deny anybody the opportunity to vote. they are simply providing -- >> i don't understand why you conceded in your example that time place and manner restricks, s restrictions you can only vote , at a country club or this is the placement of the polls and placed in areas that are they are placed in areas that are burdensome to minorities. aren't those time, place and manner restrictions. >> they aren't neutral and don't give minorities the same opportunities to access the precincts that are given to whites. if you put your precincts at country clubs, the notion that minorities have the opportunity to vote is laughable. no one is arguing for an unrealistic opportunity in terms
of what the state has provided -- >> i really don't think that the relevant distinction is between those who regulate who and those who regulate time place and manner manner but looking at , opportunity. i don't see why time place and manner carries a lot of weight in your analysis. can you explain to me why i'm wrong? >> if a literacy test denies you the opportunity to vote, we would think that the state has erected a barrier, you need to look at the composition who the literacy test. -- applies to. they stopped you from voting. it denied you an opportunity, if the state has not stopped you from voting and the electoral system doesn't skew how you can vote, you haven't established the threshold required to look at the disproportionate outcome. in other words, the state has
not done anything wrong. in a time place are manner case, the answer in the literacy test would be because the state told them not to. >> let me move on to a different question, why is the r.n.c. in the case? the d.n.c. has standing and the district court said you could tell it has standing -- because it places an imperative undemocratic organizations and because the policy harmed its members who would have voted at a precinct. what is the interest of the arizona r.n.c. in keeping the ballot disqualification rules on the books? >> because it puts us at a disadvantage. politics is a zero sum game. and every extra vote they get through unlawful interpretation to section 2 hurts us. it is a difference in winning the election -- -- >> thank you, my time is up.
>> thank you, my time is up. 50-49. >> minute to wrap up? >> thank you, mr. chief justice. the court has a stark choice between two systems here. ours is clear, we think derived directly from the text and is easy to apply. there's is one that requires the courts to engage in a maximization policy, with anything that hasn't disproportionate result is somehow taken out of the state -- kansas state legislatures. if you go down that path, by suggesting that the state can justify or will examine socioeconomic factors that gets , the courts involved in a situation where no one knows what the rules are going into the next election and will be decided on an ad hoc basis in a hyper partisan environment. in addition to the fact that artest is the only one that gives -- it's also the only one
that gives lower courts the clarity that is important in the voting context. >> thank you, mr. carvin, mr. brnovich. >> public servants have no more sacred duty than protecting the people's right to vote, while maintaining confidence in the react -- election results. this case before the court establishing a clear and constitutional test to allow states to meet these imperatives. it requires substantial disparate impact that is caused by the challenge law. the laws issued here are valid they are common sense and under this test. they are common sense and commonplace. requiring in-person voters to cast their voters -- cast about that assigned precincts ensures that they can vote in local races and helps officials monitor for fraud. allowing collection by third parties including political operatives protects against voter coercion and protects.
arizona urges this court to have a clear and workable test that allows states to properly regulate their elections. i will be happy to take questions. >> your approach requires that the burden should be substantial . where'd you get that in the statutory language >> section two prevents -- any sort of infancy will look at -- what if the provision results in a 1% decline in participation by not minority voters, is not substantial enough.
1% has been denied the opportunity to vote, why is that stanzel? >> we believe our test is the most and when you look at what a substantial impact would be and we must analyze that. it has to rise to a level of the denial or abridgement of the right to vote and opportunity to elect candidates of their choice. section 2 is to snuff out the whole point ofsection 2 is to snuff out intentional discrimination when it is used as a proxy. this court looks at harris. versus irc. at that point, the court determined that 10% was something that was substantial number. >> when you are looking at the impact, do you look at alternative procedures. let's say there is a significant impact for minorities voting at the polls.
in analyzing that, do you say, they can vote by mail, so overall it is not that substantial and impact. >> we believe in arizona there are numerous ways people can vote. there is no excuse, absentee and voting by mail. they can vote early 27 days up to the election. the only way to determine a substantial impact is to look at the totality. >> thank you, counsel. justice thomas. >> there has been some disagreement as to your standing in this case. would you take a minute to discuss why you have standing here. >> justice thomas, first and foremost, the ninth circuit allowed us to intervene on behalf of the state. title 41 and the statutes allows the attorney general to
represent the state in federal court. >> there was the theory that the ninth circuit used to discuss some question about legislative intent involved in the arizona legislation was the theory. i would like you to address that i would also like you to discuss how you would determine the intent of the arizona legislature in passing this legislation. >> justice thomas, we believe that the doctrine is completely inpoliticable. as inapplicable. that doctrine arose out of the context of agency relationships and imputes the motives of superiors to the agents. as this court knows that you cannot impugn a motive from one legislator to a group of 90 independent co-equal actors
spread across two houses in the legislature. this is no different than the court's prior recognition that what motivates speak out or vote -- one legislator to speak out or vote for a bill is not necessarily what motivates other legislators to vote for that bill. at the end of the day, we believe the two-prong test and -- is designed to make sure and determine whether an intentional discrimination is done by proxy. that's why we have to look at the disparity you have the , totality of circumstances and analyze whether that caused that distance in voting. >> justice breyer. >> i'm curious to know of the professor's test. my reason is this, it seems to me in many discrimination, title 7, title 6, the housing act, the age discrimination, the courts
have come down in disparate impacts to three elements, the plaintiff has to show that there is some significant disparity. second, the plaintiff has to show there is at least a, but -- at least a but for cause and the states of the employer' policy is the but for clause. and third, the defendant can come back and show we have a good non-race related reason for this and can't be accomplished. those three elements run through the law. many of the tests and the professor who said it explicitly embody those three elements. are you against us saying those three elements are the statutory language are the basis of a cause, we'll never get it
perfect, and we will always be case-by-case and involve the circumstances, but those are the three key elements? >> justice breyer, that's an interesting test. but at the end of the day, congress didn't require that and to adopt those tests would shift the burden and once again, i believe that analyzing any of these burdens, we have to look at a totality of the circumstances and totality of the circumstances in that state. if you look at the opportunities that people have to vote, this provides options for people to exercise their franchise. >> justice alito. >> can i ask you something about the statistics about of
precinct voting. do they only refer to both -- voters that cast their ballots at a polling place on election day, or do they also include voters who voted early? >> mark twain said there are three types of lies, lies, damn lies and statistics. we believe the ninth circuit cherry picked some of those statistics. if you look at the people that voted in arizona, we are talking about a tenth of a percent that may have been affected by the rules related to in precinct voting. two million votes cast, about 4,000 people voted out of precinct. to answer your question, that only included day of voting and not 80% of people who voted by mail. >> what would happen if someone showed up for early voting and went to the wrong present sink? -- prong precinct.
>> they would be told they are voting in the wrong precinct and be told where to go to vote. if they insist on voting in that precinct they would be given a , provisional ballot but the they are told the valid -- the ballot may not count. all ballots are available early voting centers, but not every county in arizona has voting centers. if i understand your question correctly. >> let me go on to another point. you say we should give some peace to the requirement that challengers must not show art must show not only that that protected class has less opportunity to protect some pate, but also less opportunity to elect representatives of their choice. what would that look like in
practice? does it require 22, a very close election on a particular day. >> under our test it with require looking at both of those prongs. first there would have to be at -- to show there is a substantial disparate impact on the voters ability to participate in electing the representative >> justice of their choice. >> justice sotomayor. >> my time is up. >> justice sotomayor. >> counsel, you said that the general test under title 7 and other civil rights statutes in response to justice breyer puts the burden on the state, but the only burden that that test requires is for the state to justify its practice to explain why. why is that a burden that you can't meet? >> well, the text of section 2 doesn't require it.
>> i'm sorry, counsel. by your own admission, the test under voting rights 2 is a totality of the circumstances test. isn't justification one of the circumstances that the senate report pointed to? >> the burden beyond the plaintiff to establish that. \[talking over one another. >> the test requires an examination of the totality of the circumstances. can you seriously argue that the reason why you did something isn't part of that test? >> first and foremost, we looked to the text of the statute itself -- >> the statute i'm asking you a talks about totality of circumstances. simple question are you arguing that the reason you did
something is not part of that totality of circumstances? >> two-fold -- >> counsel, why is that question so hard to answer, yes or no, is the reason why the state has picked a particular practice an important part of the totality of the circumstances test? >> yes. >> thank you, counsel. >> justice kagan. >> would you have answered my hypotheticals the same weight that mr. carbon did. >> no. >> what would be different? >> i think our test would require looking if there is a substantial disparity -- >> which hypothetical would be different? which ones would you have answered differently? >> all three of them. all three of them would require
analysis. >> if you could stop for a second and i want to know what the answers are. mr. carvin said both polling place hypotheticals would be impermissible. are they impermissible? >> justice, it would depend on the evidence that was presented at trial. >> i just gave you the evidence, the evidence is 10 times more weight times, 10 times fewer votes for blacks than whites. that's the evidence. >> under our analysis, you would look if there is a substantial disparity. in that situation, what percentage of african-american voters were voting less than white voters. >> the hypothetical is a hypothetical. it's 10 times the impact, right?
>> justice gorsuch, after a 10 day trial we found both of the statutes constitutional. there was additionally states, when it comes to time place and manner and regulations that are designed to uphold the integrity of the process the court should be skeptical that it overturns it. >> what do you say about what you call the statistical anomalies and the other side would call proof. why don't they rise to the level of substantial burden? somehow that arizona's laws were racist or unconstitutional. thel of substantial burden?
arizona provides early voting. there is no. 80% of people in arizona vote by mail. there are a plethora of options for people to exercise the right to franchise. what the ninth circuit did is they took a small number for people who actually voted to have and try to extrapolate that. somehow that arizona's laws were racist or unconstitutional. >> thank you chief justice. >> you acknowledged several times the totality of the circumstances are relevant here and that is in the statutory text, as my colleagues have pointed out. is the availability of atlanta -- of alternatives that could serve your policy goals a circumstance that matters when
we consider the totality of the circumstances? >> yes. absolutely, justice. >> if there is an alternative available that would that would serve the disproportionate -- the policy objective without causing the disproportionate impact, you have to go with that. it's not why not. >> that is in the law and we believe that causation plays an important role and we look at the substantial impact but also on the causation because it plays an important role in connecting the totality of the circumstances with the integrity measures. there could be is lated -- there could be multiple or isolated instances of disparity and those could be remedied without and that would be strongly preferred.
>> thank you. >> justice barrett. >> one of the dispute in this case is about whether we look at the electoral system as a whole or the challenge regulation or regulation by regulation basis. and i want to give you this example and in the secretary's brief. she makes a pretty good point. she says in response to your argument that we have to look at the process itself and say overall is the process open up -- open enough for disadvantaged voters. even if they can send their ballot in, they have many other opportunities to do so. early voting, etc. she points out on footnote six on page 23 that if a state has unsole is -- has sent unsolicited bell applications to residents of white neighborhoods but not to
residents of black neighborhoods that would amount of giving the latter less opportunity to participate and quoting the republican party here. wouldn't that be true even if black voters could vote in other ways in other words reducing an opportunity in the text of the statute if there are avenues open to the black voters. >> in the hypothetical example you provided, that would seem to be unconstitutional on its face because it is not mutual. >> we might disagree about that, but let's say that justice kagan's examples seem to be neutral, time place and manner restrictions, if it takes one opportunity away, i don't understand why it isn't reducing the ability of those voters to vote, relative to other white voters who don't share that same burden.
>> if we focus too much on small disparities, we run into grounds within the statute itself running afoul of the 14th and 15th amendment. if we take a step back and analyze it, looking at substantial impact and the totality of circumstances -- >> thank you, i'm out of time. >> take a minute to wrap up. >> thank you, chief justice. arizona endorses without qualification the voting rights act a goal of ending to racial discrimination of voting. the constitution demands that all americans be freed from this pernicious evil. disparate impact on minority voters can be a proxy for illegal discrimination. section 2 would exceed congres'' powers to enforce the reconstruction amendments and inject race into all voting laws. and impede a state's ability to
run their elections. arizona's requirements for ballots to be cast and restrictions on ballot harvesting are appropriate measures do not have a disparate impact. they serve us all equally well. the desire to enhance the convenience of voting must not outweigh the security of the integrity of the result. we ask this court to vote in favor of the state. >> thank you, counsel. >> good morning. and may it please the court. when an eligible casts a vote, that voter has been denied. when they rely on ballot collection to vote in that process is criminalized that , right has been abridged. the question then is whether that denial or abridgement has occurred on account of race. section 2 tells courts how to answer and the statutory
commands necessarily requires rejection of the inflexible rules. to the contrary, it mandates what this court is searching of evaluation of past and present reality. petitioners have said the section 2 results test resulting on their disparities that will call into question every irregularity. not true. it has been in place for 40 years and nothing has come to past. section 2 challenges to statewide election laws number in a single digit. section 2 liability has been limited to policies that due to their interaction are outliars are outliers -- are outliers in the discriminatory burden they impose on minority voters. as the chief election officer the out of precinct policy and impose discriminatory on native
american and plaque and we thfer -- native american, latino, and black voters that are not justified by any state interests. we ask this court to affirm the judgment below. i welcome the courts question. >> counsel, you are aware of what the carter-baker commission found about ballot harvesting. they said that absentee ballots are the largest source of voter fraud at nursing homes or the work and susceptible to -- or the workplace or church are more susceptible to intimidation and they recommended the practice of allowing candidates to pick up or deliver absentee ballots should be eliminated. you disagree with that in this case, right? given your position on ballot harvesting. >> in this case, and that is important distinction. they can have an interest
through limiting ballot collection. but when you look at the fact, that doesn't appear to be in arizona's interest. in mccutchen, the court noted that where, as here a legislature takes approach, the -- takes a prophylaxis upon prophylaxis approach, the court should be diligent in scrutenidsing the law. >> you would strike down the law because there is not racial proportionality in enforcing the law and that means your pursuit of racial proportionality would require you to keep in place, the pressure, the intimidation that caused president carter and secretary baker to recommend that that harvesting practice be eliminated. >> it has nothing to do with racial proportionality but the burdens that the law imposes on voters here. there are facts and
circumstances in arizona that may not be present in other states. >> when you say it doesn't involve racial proportionality, if the burdens were equally distributed among the races, that issue wouldn't be before us, would it? >> your honor, what i'm saying is, here what we have is a record that native americans and latinos in arizona rely disproportionately on ballot collection and white voters do not. this is why this is before you. for example, as the district court found voting on native american reservations is -- an activity that requires the active -- >> i understand your position is if there isn't racial proportionality then the law should be struck down. i'm asking you if thatry quires to look at the pressures that
-- asked me if that requires you to tolerate the pressures that are president carter and secretary baker outlined in their report? >> i am saying while states can have an interest in securing absentee ballots and limiting ballot collection, that is not the interest here and the legislative history shows that what arizona was asking to do was to limit the participation of hispanics and native americans in particular. >> thank you, counsel. justice thomas. >> thank you, mr. chief justice, is the out of precinct policy still in place? >> it is. >> and the secretary of state plans to enforce it? >> the out of precinct policy is part of the election procedures manual that is in place until at least the end of this year. the out of precinct policy was in force in the 2020 election. >> the -- what percentage of the
minority voters in the state of arizona are affected by the out of precinct policy or were adversely affected as well as the ballot collection policies? >> as to the out of precinct policies, the record shows that minority voters were affected at a rate of 2-to-1. as to the out of precinct policy. >> i understand what you are saying there, but what percentage of the minorities who cast ballots in the state of arizona were affected by the policies? >> it was less than 1%, your honor. however, your honor, this court has never held and, in fact, the text of section 2 says it is the right of any voter to be
abridged. of course recognize the number of voters effective may affect how a plaintiff can approve that policy or on account of race, but it is not the case that a small number of voters being affected by the policy is to be immune from section 2 liability as the united states agrees in the briefs below and in this case. >> i often wonder when we say there is an additional burden, arizona is a big state and quite rural, i am sure there are some people in very rural parts of arizona who are quite burdened by the distance they have to travel in order to vote. how do you compare someone is supposedly burdened or allegedly burdenened by the out of present -- out of precinct policy to a person like that?
>> that's exactly our point. for example with respect to native american voters who have rely on ballot collection to vote simply saying that those voters can vote in person or go ahead and vote by mail when they don't have access to postal facilities that is the contrast , we draw with mr. carvin's position that it is about opportunity. you have to look at the reality how the burden is affecting voters on the ground. under the said sally of circumstances inquiry. >> thank you. >> justice breyer. >> i have two questions and both are about standards which is the main issue here. what do you think of disparate impact that this isn't the only field that it comes up.
that we think employment, age \and housing and so forth and and say they are roughly the same here. the statute does speak on account of race, which means if it is justified, it is not on account of race. we take those standards. that's my general question. my specific question, what do you speak about the question that justice thomas was asking. if you read in the details here in many of the majority of the states they won't engage in increased voting because many of the precincts will turn out to be 10 feet or maybe 100 yards or 1,000 yards or in general further away from a minority group of houses. you go out with a tape measure or what? that's a concern in the specific case.
i'm interested in both. one, what's your general view of using the same standards? and two, what about that specific case? >> as to the disparate impact standard, we think those elements are incorporated in the test that the court applied below and only quibble with the standard that your honor has set forth. the requirement of a significant disparity. we don't think that importing adjectives like significant or substantial moves the ball. we recognize that the size of the disparity will matter for purposes to prove whether a policy is discriminatory. as to your second question whether states can still engage in precincts-based voting --
certainly, states maintain plenty of discretion and authority to regulate their elections as they see fit. the reality is that is not what is happening in arizona. 5% of voters voted in counties that do not use precinct-based -- 75% of voters voted in counties that do not use precinct-based systems. while there may be some interest in maintaining precinct-based systems in other states, that's not the reality on the ground in arizona. we don't think states need to take out tape measures. instead, what they have to do is ensure they are not providing less opportunity to minorities. so they do have to be conscious of ensuring that in fact opportunities are equalized across the races and that is what section 2 is meant to do. >> thank you. >> justice alito? >> counsel, i want to try to give you a couple of examples
and ask you, for each one, to assume that a title, a section 2 plaintiff is able to show statistical disparities that are at least as great as those shown here with respect to out of precinct, precinct voting and that those disparities were caused or but for caused by the same socioeconomic factors that you say were the but-for causes here. so the first example is a state that has the early voting period begin two weeks before election day. and the plaintiffs say, and they show that it should have been 60 days and there's the same statistical disparities. >> your honor, if i may, in your hypothetical, does the plaintiff want to go from 14 to 60 days? >> they want to go from 14 to 60. a lot of minority voters are unable, they are -- they don't
vote within 14-day period to the same extent they would within the 60-day period. >> well, your honor, we think there is a difference in text and in precedent in asking a court, or asking a state to adopt a new policy, versus a state taking away a policy that already exists. so i don't think that text 2 plaintiffs could come in and say you are required to expand from 14 to 60. and that's because the text actually talks about the challenge to standard practice or procedure in the state where political -- >> all right, how about a rule that, the state has a rule that you have to -- you have to fill in a little box to vote for a candidate but it can be shown that there's a statistical disparity with respect to voters who don't actually fill in the box but they make a check mark. beside the box. >> your honor, again, i think
that what section 2 calls for and what this court has said is a practical valuation of the past and present reality. i just want to be clear, statistical disparities aloan are not enough to make a section violation. you would have to show that this is in fact imposing a burden -- a discriminatory burden on minority voters, that it is not imposing -- >> i don't see the difference between, let me give you one more example. e more example. the state has a rule that says mailed in ball los have to be received within three days after election day. and section 2 plaintiff says it should be one week. and they show the same kind of statistical disparities. >> and again, your honor, my answer is the same. statistical disparities alone are not enough. 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. >> i really don't understand what those words mean but i'm out of time, thanks. >> justice sotomayor. >> council, i'd like to -- counsel, i'd like to return to a question justice thomas asked, not of you, i believe, but more generally, which is, how do you prove a legislature acted with discriminatory intent? assuming, as we must, that the legislature is made up of individuals. so if you show only two or three of them have discriminatory intent how can you assume the others do? >> as this court has upheld in the case of arlington heights and cases applying it, it must be shown that discriminatory intent was a motivating factor
and i think it was clear, more clear than it is in many such cases, that the discriminatory intent was the majority, and the judgment by judge suter was to keep hispanics in his district from voted and was tinged with allegations that latinos were engaging in fraud with respect to ballot collection. >> can you remind me if the district -- district court found if absent those two legislative motives this law would not have passed? just, the chief justice pointed out that there are independent reasons for passing the ballot collection limitations. did the district court actually look to determine that even if
this was a motivating factor, that the law would not have passed without it? >> your honor, the district court found it was not a motivating factor did not reach that question. but as the court held, clearly discriminatory intent was a motivating factor and it used the district court's own fact findings, the district court minimized the importance of those findings. they do show that discriminatory intent was a motivating factor and certainly the state did not meet its burden to show that the law would have been enacted absent that. >> thank you, counselor. >> justice kagan. >> the longer this argument goes on, the less clear i am as to how the party's standards -- party's standards differ. if i understood what mr. carver said at argument as opposed to what he said in the brief, he said of course you should look at demographic realities. he even said it would have
laughable not to look at demographic realities on occasion. and i bring you back to this hypothetical question where black voters have fewer voting sites, even though it's completely neutral on its face, it makes it so the black voters have fewer opportunities that can white voters. he said sure you can look at that. and similarly, you talked about the practical evaluation of realities on the ground. so tell me how you think these things differ? and i guess more specifically, i guess, when you start thinking about a whole run of hypotheticals, there are some things that are really quite obvious burdens, which you just know looking at them is going to lead to real difficulty for some
, to black for black voters, for native american voters, for latino voters and then other restrictions where you can say, well, that's kind of an inconvenience. but they could overcome the inconvenience if they wanted to. so how -- i guess what i'm saying is there's a spectrum of restrictions and a spectrum of the effects that those restrictions cause. how are we to think about that? >> well, your honor, as to the -- mr. car vin's concession that the court needs to look to demographic realities, i find myself in agreement with him on that. and as the court has said in its jurisprudence the essence of a section 2 claim is looking to how the states practice interacts with social and
historic conditions to cause the inequality. so your honor, as to the spectrum of regulations that's exactly what section 2 is meant for courts to do. to undertake a functional inquiry into the totality of the circumstances. what i took mr. car vin's brief to be saying, as opposed to what mr. car vin argued here today, is that in fact, so-called neutral time, place and manner implications don't even use section 2, that you dent get through the door. what courts should be doing is looking at how the restriction interacts with the facts on the ground to see whether it is in fact causing a discriminatory burden on minority voters. here, that's what the court did and in fact found that the out of precinct policy and the ballot collection law imposed discriminatory burdens that are not justified by any legitimate
state interests. >> justice gorshutch. >> good morning, ms. amunson. would the state agree, or would the secretary of state agree that arizona could have a law saying we will not count fraudulent ballots? >> in fact arizona does have such a law, your honor, yes. >> if that's the case, can the state also have some laws that try to prevent fraud in balloting? >> certainly, your honor, states have an interest in preventing fraud in balloting. but as this court has recognized in its campaign finance jurisprudence, when it is acting to prevent fraud in balloting, a state must actually have record evidence that there is in fact the danger that it is acting to prevent. here there was -- >> so let's take the harvesting one, for example.
the district court found there was evidence available, the chief justices referred to the cart -baker commission and there's also evidence i believe in the record of harvesting affecting fraudulent practices, harvesting affecting at least one election elsewhere. what about that is insufficient? >> your honor work respect, there was no such evidence of there ever being any ballot collection fraud in arizona. >> i didn't say arizona. that was in another state. does arizona have to wait for fraud to occur in arizona using a practice? >> no, your honor. but as this court has said -- >> so it doesn't matter then. you agree it doesn't matter that their -- that harvesting hasn't resulted in fraud in arizona. how many state, how many elections does it need to affect before -- out of state before arizona can take cognizance of it in its own state? >> what this court said is that
when -- in mccutchen, is when a legislature takes a pro fi lactic approach, the court should be diligent in scrutinizing the law. >> i'm just asking, how many elections? what would be enough? in the secretaries view. how many states does it have to happen in? how many elections? >> to be clear, arizona already has a law prohibiting fraudulent ballot collection. what this law does is criminalizes neighbors helping neighbors deliver ballots with up to two years in jail and -- >> counsel, i guess -- i'm just asking a pretty simple question. you agree that some prophylactics are allowed. and this addresses a prophylactic issue that other states have found to be problematic. and a blue ribbon commission found to be problematic. what more concretely would you require? >> your honor, what i'm saying
is arizona already has a law -- >> i understand what you've said. i'm asking how much more would you require before arizona could do this? are you saying it could never do this? >> i'm saying criminalizing nonfraudulent ballot collection simply is -- does not get at the state's interests in preventing fraud. and as with respect to paragraph lactic restrictions, the court's inquiry should be at least as searching for restrictions on the ability to participate in the political process through voting as it is for restrictions on the political process through spending money. >> thank you. >> justice kavanaugh. >> thank you, chief justice. good morning, ms. amunson. how we got here is a statutory matter, try to square up statutory text and commonsense a bit. it seems like there are two polar positions one could have reading different parts of the statutes. the section 2-a seeks only
results, that was the house bill, of course. and that strongly supports a position that any disproportionate impact would be problematic. under the statute. of course the dole compromise meant that section 2-b was added to the statute and that speaks of opportunity and a polar position on that would be as was suggested in mr. car vin's brief that time, place, and manner restribs that are race-neutral provide equal opportunity. but as justice kagan pointed out, mr. car vin alluded to demographic realities being relevant, the attorney talked about the totality of the circumstances being relevant and of course in section 2-b refers to the totality of the circumstances. so to the extent we're not in either polar position, we're
between pure results and pure opportunity, as defined in the -- in carvin's brief and total i have to the circumstances, two circumstances that seem to make a difference as a matter of common sense, one as the chief justice pointed out, when you have the carter-baker commission saying that a particular state law is a good idea as a matter of policy, that would seem to be a circumstance that is as a matter of common sense would support for state's rule. secondly, i mentioned this earlier, when a state rule is common place in other states, that would seem to be a circumstance that puts a thumb on the scale in the favor of the legitimacy of the state rule and it not being reflection of discriminatory intent. here the out of precinct policy is in something like 26 other states including a wide variety of states including states with no history of discrimination. so if we get into totality of
the circumstances, why don't those two things matter? and you can comment more generally on how i've outlined this. >> thank you, your honor. taking both policies in turn, it certainly is relevant that policies are common place. however, it doesn't give a state free pass just by sayings that common policy. instead you have to look at whether in fact the policy is justified in that state. so for example, with the out of precinct policy, the state justified it by saying it needs to maintain a precinct-based system. but the reality in arizona is 75% of voters in the 2020 election voted in counties that do not use a precinct-based system and so that should cause a court to question whether in fact such a policy is actually necessary or is in fact doing something else which is disenfranchising minority voters. second, with respect to the ballot collection statute, again, arizona had a 25-year
history of literally not a single instance of fraud with ballot collection. it already has a statute that criminalizes ballot collection. and it -- the way the policy will operate on the ground will be to disenfranchise native american and hispanic voters. that it is common place doesn't give the state a pass. >> justice barrett. >> sorry, i got distracted by the run-on there. ms. amunson, i want to ask a question about the degree of inconvenience versus burden. one of the difficulties in this case is that the attorney general says that the burden has to be substantial. mr. carvin is talking about the ordinary burdens of voting. and there's a difficulty that, you know, the statutory language and lack of clarity presents in trying to figure out when something crosses from an inconvenience to a burden.
on the other side, and i think some of the hypotheticals that justice ali to is asking you emphasize this, i think your position and its emphasis on any disparity at all risks saying that any election rule, you know, which as judge easters be grook -- easterbrook pointed out in his frank opinion, all election rules are going to make it easier for some to vote than others. so your approach risks ruling them all out. let me give you an example. what about the rule that the polls close at 7:00 p.m. and because of sose yo economic reasons it's harder for minority voters to get to the polls before 7:00 p.m. because of the time of their work hours in the day. is that the kind of burden that triggers section 2? would such a rule, poll closure rule, would that violate section 2? >> your honor, no, i don't believe so. and again, though, your honor, you would look to the actual
facts on the ground and as i said to justice alito, a statistical disparity is not enough. you'd have to see whether in fact on the ground this is acting to actually cause less opportunity for minority voters. >> i'm telling that it is. because of sose yo economic conditions and the hours that minorities work, you know, that is the cause of their not being able to get to the polls during hours. that the polls are open. >> again, your honor, one would have to make out a case that those minority voters have no other alternatives of voting. if one was able to do that -- >> i thought your position was that you look at it on a regulation by regulation basis, not the system as a whole so it didn't matter if there were other alternatives, the question is whether this alternative -- >> our position is that you should consider the regulations in the context of the system as a whole. however, you can't simply excuse one determinant by saying there are others. so for example to say to a
native american voters who lives on a reservation 45 miles from the post office -- >> i want you to explain why my hypothetical doesn't fail your test. >> your honor, under our test you would have to show that the voter in fact had less ability to vote, that's the -- that the policy is a but-for cause of that lesser ability to vote and that there -- you would consider the total i have to circumstances including in particular the state's justification. >> ok, thank you. >> strong justifications in ending elections by a reasonable time. >> a minute to wrap up counsel. >> thank you, your honor. as this court has repeatedly said, no right is more precious in a democracy than the right to vote and to have that vote counted. that is what section 2 protects. petitioners have pejoretively called section 2 a one-way ratchet but in a democracy 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 vote thornse basis of their ideas, not trying to remove voters from the electorate by imposing unjustified and discriminatory burdens. unfortunately, petitioners have made clear thats that not their vision of democracy. i were deed, mr. carvin's clients frankly admitted to this court in their briefing that they are here because they view enforcement of the voting rights act as a, quote, injury to their electoral prospects. secretary hobbs submits that the real injury here is to the native american, latino and black citizens of arizona whose right to vote has been denied or abridged by the out of precinct policy and the criminalization of neighbors helping neighbors deliver their ballots. we ask the court to affirm the judgment below. >> thank you, counsel. >> mr. chief justice, may it please the court. the ninth circuit applied the correct test to determine that
arizona's policy is entirely disenfranchising voters who cast out of precinct ballots and its criminal ban viles section 2 of the voting rights act. the text is rooted in the plain text of section 2, clear intent, and this court's long-standing precedent. it has proven workable over many years in the circuit court. this test has resulted neither in the rejection of all man over commonsense voting regulations, nor in the impermissible consideration of race in the adoption of voting laws. far from it. using this test, courts have done the intensely localized analysis called for by the act. applying the right test, the ninth circuit also reached the correct result in this case. i welcome your question. i want to touch on a question raised by justice sotomayor with
your friends. say you have people who speak and give good reasons for adopting a law against ballot harvesting. they quote the carter-baker commission. 49 of the legislatures don't say anything. legislators don't say anything at all. two legislators have a clear racial motivation. the law passes 80-20. was race a motivating factor in that case so that the legislation would be suspect? >> probably not, your honor, assuming that in your hypothetical that only the two were motivated by race and did not in fact -- infect any of the other members. what we have here in this record is far from that. it is a careful application of this court's test in arlington heights that looked at not only -- >> i thought the evidence of racial intent was quite limited in this case? >> it's actually well beyond what you normally have, your honor. not only do you have the
pervasive influence of senator chuter but also the lofaro video that was widely played at the district -- as the district court found. >> how many -- how much evidence did you have? is there any evidence of other legislators under mr. -- other than mr. juder? -- mr. chuter? >> yes, your honor. there was evidence that, in terms of the history of the -- of the act that precursor bill was withdrawn when the d.o.j. asked for additional information, declined to preclear it until it could get additional information. >> with respect to this legislation, the only racial motivation, i thought, on the record was mr. chuter, one of the legislators. >> no, that's not accurate. i think in each of these prongs of the arlington heights test, the circumstantial and direct evidence that's available, there were several things that indicated a racial motivation.
one was mr. chuter but also there was the lofaro video, the sequence of events that started with the d.o.j. declining to preclear. >> thank you, counsel. justice thomas. >> thank you, mr. chief justice. counsel, the again the reg slate i intent is interesting and i don't know how much weight we should put on it but the ninth circuit did put some weight on that i'm wondering how you would analyze -- analyze that if in addition to what was said that was somewhat of a pejoretive nature about minorities if -- and you have both sets of pejoretives in the legislative history. how would you analyze that and
how would it change the way you would analyze this case. >> i'm not sure it would make a difference, your honor. i guess it would depend on what you said and what rule -- what role it played if any in the passage of legislation. as this court tells in arlington heights, determining whether racial motivation was a factor, doesn't have to be the only factor but a factor in the passage of the act is not simply a question of counting heads or statements, oftentimes there are no discriminatory statements available, yet the court has said that the way to determine whether racial discrimination is at work as a motivating factor is to analyze the arlington heights factors because often in this day and age the circumstantial evidence of that is all that's available. here is one of these extraordinary cases where you have, in addition to a wealth of circumstantial evidence, actually direct evidence of racial motivation at work. >> there have been questions raised about the r.n.c. roles or
participation in the case. if there are doubts about the r.n.c., if those prevail should that undermine your standings in this case too? >> no, your honor. the d.n.c. and other plaintiffs' standing rests on organizational standing principals because they have -- principles because to expend resources to overcome discriminatory effects of to these laws, their constituents and members are also impacted because it makes it harder at least sometimes results in denial of their vote. the r.n.c. standings is if the ruling stands, that more minorities who will vote for democrats ends up taking the view of their brief, will vote against them. that's not a cognizable interest trying to concern that more people will be able to vote and it's because you don't like the way they're going to vote. >> justice breyer.
>> i appreciate your comments. you've listed the same argument i have here and it seems to me that lots of parties on both sides are pretty close on the standards. say you take the title 7 or these other title standards. you might have to modify it a little. i think you do have to use the word significant. harm. because you have to -- some way or other you have to get rid of this happening just by chance. maybe you'd say it was reasonably foreseeable that minorities would be impacted negatively. and there's room there for who has the burden of proof of showing that there's a justification? and there's a question about the extent to which non-race-based tradition would count as a justification. now, any comments you want to make are welcome, any additions to what i'm saying is open areas or not, any comment?
>> yes, your honor. i think there's not a lot of daylight between what we think the statute and the legislative history in this court's precedence require in terms of standard and say the stephanopoulos, i think, principle that your honor has asked about. i do think the existing standard that's been applied in a number of cases over the last several years in vote denial cases does look at the magnitude. it doesn't require it as a threshold matter and it shouldn't, but most of the cases where plaintiffs have prevailed have found a significant disparity as the ninth circuit found here. and in -- and that the state's interest come into consideration under the tenses youness factor under the totality of the circumstances. that's an appropriate thing to look at and should be looked at and was looked at here and what the ninth circuit found was that really the state did not have a justifiable interest in continuing these policies.
>> justice alito? >> i think -- what concerns me is that your position is going to make every voting roll voting -- as a rule herbal to attack under section 2 to the same extent that the out of precinct policy is -- was found to violate section 2. by the ninth circuit. because people who are poor, 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. explain to me why that is not so? what would not be possible to show with respect to just about every voting rule that there is
the kind of statistical disparity shown with respect to out of precinct voting and that the disparity was caused by the same sose yo economic factors that you would say were sufficient here. >> it won't result, and it hasn't resulted, your honor, we don't have to project -- >> not whether it has up to this point. this is a new area of litigation. explain to me why it will not result in that. >> the standard that we, that has been applied in numerous cases over the last decade, i'll give you an example. voter i.d. in the lee vs. virginia state board of elections case, voter i.d. was upheld there because the court found that there wasn't a disparate impact because the state provided free i.d.'s in that context. again, using the totality of think circumstances test, came to the conclusion that voter i.d. in virginia was -- was
permissible and section 2 didn't require it to be struck down. compare that to the fifth circuit in see -- veasey. >> thank you, my time is up. >> justice sotomayor. >> counsel, should there be a different burden between changing a long-established voting requirement and imposing a new one? let's go back to the two -- the question of the propractices at issue here. the out of precinct voting has always been in effect. and so whether is that fact considered in the totality of circumstances as you define it? and i have an easier time understanding how the ballot collection is a change in law and one in which the information provided to the legislature and
the voters, a lot of it was racially tinged and false, correct? >> that's correct, your honor. >> so answer -- tell me how those factors get considered in your -- in your views. >> yes, i think that, it is part of the consideration. i think where you're talking about adding a new method of voting that that is very different from taking away a method of voting that people have come, minority people have come to rely upon because the text speaks in terms of abridging the right to vote. i.e. the shortening, lessening, taking something away. i think a plaintiff would have a harder time in the general case advocating for a new rule, some hypotheticals abadding additional days of early voting and the like. >> so why don't you have the difficulty of that burden?
with respect to the out of precinct voting here? that's been around working imperfectly but it's been around for a long time. what makes your circumstances compelling enough to justify interference. >> that, of course, is a standard that's resulted in the denial of the vote and it has been for a long time. so i think that's one difference. but secondly, i think the passage of time here cuts the other way because whereas there may have at one time, before such things as electronic poll books and the like that made it necessary perhaps to disenfranchise people if they voted in the wrong precinct, as the secretary stated and the record reflects here, there's no longer any such justification for entirely disenfranchising
people if they go to the wrong precinct. >> mr. spiva, you spoke with justice breyer about the stephanopoulos test. i would like to ask you about the old s.g. test. if you look at the s.g. brief that was filed in this case, what do you think is right with what the s.g. said and what do you think is wrong with it? >> well, what i think was wrong with it, which is easier for me to answer is the proximate cause standard that they were advocating, which essentially as i read it was saying you shouldn't consider the senate factors in the totality, essentially that the challenge standard of practice by itself must have caused the disparity and i think the problem with that is that it essentially would immunize any voting rule
including literacy tests that were not either facially or intentionally discriminatory. a literacy test does not in itself, despite what my distinguished colleague on the other side said, stop anybody voting. if you pass the test, you can vote. everybody has an equal opportunity on its face to pass the test. this court in lassiter v. northampton said the literacy tests were ok prior to the passage of the voting rights act. the problem is that because of discrimination in education and opportunity, it has a disparate impact on racial minorities. >> what's right with it? what don't you disagree with? >> well, i think that they maintain the position they maintained at the ninth circuit that there shouldn't be some arbitrary threshold requirement in the test that you show that a certain number of minorities were disenfranchised before the court proceeds to analyze under
the totality of the circumstances whether it's a prohibited discriminatory result. i think that's right. >> justice gorsuch? >> good morning, mr. spiva. did off chance to comment on the solicitor general's causation test? what do you think of that? >> they advocated, they've of course withdrawn it, the proximate causation and i think that that's wrong because i think but-for causation is the appropriate standard as this court said in the the vosock case. >> the court sometimes uses proximate cause and sometimes the but-far cause. that was a title 7 case thises a section 2 case. any thoughts on why a proximate cause test would be inappropriate given the language of the statute? >> yes, your honor.
because the -- the statute and the legislative history as well called for a totality of the circumstances inquiry which requires evaluating whether the standard -- >> what evidence you use to -- is one question. what test you apply that evidence against is another. so i'm not sure that explains it. what explains the need for but-for rather than a proximate cause test? what evidence you look at. >> as i understand the proximate cause standard that the s.g. was advocating for and the petitioners still are, it would not look to any interacting factors to establish i.e. the senate factors to establish the causal link betweens the -- between the disparate impact and race. i think that is countertext
yule. and would actually inappropriately limit the prohibition of section 2 only to those circumstances where the standard was discriminatory in intent or facially discriminatory. >> justice kavanaugh. >> good morning, counsel. section 2's language is elusive in the wake of the dole compromise which created murkiness because it was a compromise that generated that overwhelming support in congress and from president reagan. but the statute after the dole compromise, i think you agree, creating something of a gray area between a pure result and pure opportunity and you look at the totality of the circumstances several counsel said including, i think you said, the senate factors. one of those factors is, is
there a good justification for the rules and then on the ballot collection, i'm going to repeat the question, you have the carter-baker recommendation on the out of precinct, you have it being common place in other states. that on its face, at least to me, suggests a strong justification for doing these rules. how does that weigh in the balance in your view? >> two things, your honor. the carter-baker report was not something the legislature here considered. even the recommendation for the carter-baker report was not based on any evidence of ballot collection fraud anywhere in the country. the legislateture, the court found that it had no evidence of voter fraud not only in arizona but in the rest of the country at the time of the ban. in terms of it being common place in other states. you have to look to the context. it's relevant.
but there are more states that permit some form of ballot collection than don't. >> out of precinct is common in other states, correct? 26 states? >> but also at least 20 partially count out of precinct ballots. and so you have to do the intensely localized analysis, to use this court's phrase, in the jurisdiction. and when you do that, in arizona, you find that -- that the arizona moves its precincts around a lot. locates them further from minority households than from white households. that there are all these factors at work in arizona in particular that make -- that cause the policy to be discriminatory. >> justice barrett. >> i want to pick up where you left off with justice kavanaugh. you said there were a number of factors in arizona that caused the out of precinct policy to
discriminate on the basis of race including the fact that arizona changes its precincts often. let's assume that we adopt a but-for standard of causation as you propose. i want to ask you a question that justice scanlon raised in his response to the ninth circuit which is why isn't it the precinct system itself rather than the policy of discounting votes that causes the disparity? because as you described it, it's the fact that the, you know, precincts change, the locations move around. you've expressly disavowed any challenge to the precinct policy itself, am i right? >> well, we have challenged -- the -- to answer your question directly, the reason that we challenged and the reason it's the but-for cause, the policy of not counting the votes, is that is what causes minority groups to be disenfranchised by 2-1. >> but it's not what causes them as opposed to the ballot collection where the argument is the inability to vote by relying on a third party actually reduces the opportunity to vote.
here it's not the discounting of the votes. it's the inability to locate and show up at the right precinct that causes the disparity, correct? >> well, but the results, what causes the results is the fact that arizona doesn't partially count those ballots. i don't quarrel at all with the fact that arizona's practices contribute to that. and that is -- that was and is part of our challenge. but the claim, though, is focused on the practice that causes not only an abridgment but the outright denial of the right to vote in this case. >> thank you, counsel. >> mr. spiva, a minute to wrap up. >> thank you, mr. chief justice. this court said in shelby county that section 2 remained a as permanent nationwide ban on voting discrimination and the court acknowledged that voting discrimination still exists.
no one doubts this. this has proven not just an accurate description of the times in 2013 but also prophetic. more voting restrictions have been enact orde the last tech cade than at any point since the end of jim crow. the last few months have seen an uptick in voting changes, many aimed squarely as those congress intended to protect. rigorous enforce oment -- enforcement of section 2 is as important today as it was when it was passed. it has been used to carefully review and where necessary strike down discriminatory voting laws. thank you. >> mr. carvin, rebuttal. >> thank you, mr. chief justice. i think the colloquy makes clear that we're the only people providing a clear rule that can be applied by the lower courts. to clarify any ambiguity in this both at argument and in our brief we have been making the same argument.
does the voting system provide different opportunities to minorities than it does to nonvortes? has the voting system stacked the deck to favor nonminorities? if it hasn't, if it doesn't treat minority neighborhoods differently, then nonminority neighborhoods -- than nonminority neighborhoods then there's no problem. if there does that's what gets at it. figuring out whether there's this kind of differential treatment tow yao need to look at population or democrat photographic reality. one precinct with five people in it is quite different than one polling place with 5,000 people in it because the latter has much less opportunity. but if there's no differential treatment of that kind, sose yo economic factors, contributions to minorities' ability to utilize that same opportunity is irrelevant. finally, i want to get back to the colloquy that justice alito was having with mr. spiva. given the ewe wickyity of sose yo economic disparities this
would put states in a straitjacket. this case brilliantly illustrates that. they claim there's a lot of opportunity for minorities to get to precincts. what does arizona does? free mail system for 27 days utilized by 80% of the people. the very system the d.n.c. went around the country advocating as an expansion of the franchise. now we're told that a mail system somehow discriminates against minorities which is completely untrue under the facts. but the only fact you need to know is anybody whose ballot is harvested received the ballot through the mail. this is all people who have already got the ballots and they're picked up after they're voted. how did they get the ballots? they received them through the mail. for that reason, the district court was quite correct to hold that there's no connection between access to mail and the need for ballot harvesting. they couldn't produce a single voter who said it was more difficult to vote without ballot harvesting.
same thing in terms of precincts. this notion that sose yo economic disparities make it difficult to find a precinct has nothing do with this case because everybody involved here found a precinct, they they simply found the wrong precinct. so transportation and work schedules have no inhibiting effect on minorities. and finally of course they didn't challenge the arrangement of precincts, the court found it precincts are no harder to find and indeed, plaintiffs -- plaintiff's expert said precincts were closer to latinos in maricopa county than to non >> c-span washington journal. we discuss policy issues that
impact you. american principle's project. and jane harman in her new book. watch washington journal live at 7:00 p.m. eastern. be sure to join the discussion. >> friday morning, a discussion about the biden agenda. with anita dunn. posted by political. -- politico. listen on the free c-span radio app. ♪
♪ >> next, a look at health care access with the administrator of the centers for medicare and medicaid services. axios hosted this event. it is 30 minutes. >> welcome to aid another vitals check-up virtual event, our monthly series spotlighting the most pressing health care issues and trends. i'm tina reid, axios health care editor, and i'm joining you from the washington d.c. you from the washington d.c. thank you to united health group for making this conversation on strengthening health care accessibility and the future of providing care possible. welcome the our audiences on