Wednesday Writs: Voting Rights in Brnovich v Democratic National Committee

Em Carpenter

Em was one of those argumentative children who was sarcastically encouraged to become a lawyer, so she did. She is a proud life-long West Virginian, and, paradoxically, a liberal. In addition to writing about society, politics and culture, she enjoys cooking, podcasts, reading, and pretending to be a runner. She will correct your grammar. You can find her on Twitter.

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69 Responses

  1. Oscar Gordon says:

    Thank you, Em!Report

  2. Jaybird says:

    I saw a great essay a few days back (and can’t find it, dang it) that talked about how the downsides of going to the Supreme Court include not only losing but losing *BADLY*.

    Like, having it enshrined that “nope, you’re wrong and, worse than that, we’re going to clear up some ambiguity over here as well.”

    Citizens United is one of the examples of that that immediately comes to mind.

    This seems to be another.Report

  3. InMD says:

    It was a dumb fight to pick but I’m torn on which way this should have gone. I think the dissenters have a very strong point on the actual text of the statute and I’m never a fan of an analysis that suggests ‘Congress can’t possibly have meant what they seem to have said.’ Of course you then get into a question of Congress’ constitutional authority to write a law quite like the VRA which is itself a perilous issue to relitigate.Report

    • DensityDuck in reply to InMD says:

      ” I’m never a fan of an analysis that suggests ‘Congress can’t possibly have meant what they seem to have said.’ ”

      Although that was a key part of the argument in King v. BurwellReport

    • Michael Cain in reply to InMD says:

      You have to pick some place to make a stand, or it’s “death by a thousand cuts.” A little inconvenience that falls more heavily on a racial minority here, another little inconvenience that falls more heavily on a minority group there, and pretty soon you’ve suppressed a possibly significant number of votes. Biden won AZ by less than 11,000 votes. 44,000 votes spread across the right four states and Trump would have won.Report

      • InMD in reply to Michael Cain says:

        I think that’s the opposite of the strategy you want to follow. You can easily end up with a result like this where a small battle with weak facts turns into a huge defeat. Ideally what you want to do is win your stronger cases big then use that (if you’re lucky, overly broad) authority to attack the more tenuous situations.Report

    • Mike Schilling in reply to InMD says:

      “Congress can’t possibly have meant what the text says”, say the textualists.Report

  4. Brandon Berg says:

    I figured that “Brnovich” must have been a typo at the immigration office that never got corrected, but there’s actually a city in the Czech Republic called Brno. The r is trilled, it seems.

    https://en.wikipedia.org/wiki/BrnoReport

    • KenB in reply to Brandon Berg says:

      I believe it would be a flap rather than a trill.. but spoken English has vocalic r as well – it’s just English orthography that obscures it. There’s no vowel sound in, e.g., “burn” besides the r (unless you’re actually saying “Boo-urn”)Report

  5. Michael Cain says:

    No one has yet taken me up on my bet (for a craft beer) that AZ will flip from state-level Republican trifecta to Democratic trifecta in the 2022 elections*. If that happens: (1) this law will almost certainly be quietly repealed; and (2) I would be moderately surprised if AZ didn’t follow recent converts HI, NV, and UT and go to VBM for all registered voters (rather than their current large but voluntary permanent mail-ballot list (and yes, AZ already refers to them as mail ballots and not absentee ballots)).

    * The long-term state-wide trend towards Democrats will continue. The governor is term-limited out. The population growth and redistricting commission will transfer more seats out of the rural/exurb areas. The Phoenix suburbs will continue to be angry about the (still ongoing as I type) “audit” of Maricopa County. The Republicans, with very narrow legislative majorities and some members who would like to remain competitive in suburban districts, won’t suppress enough votes to avoid the flip.Report

  6. North says:

    Great analysis Em!

    Here’s a bleg: has the current court, say in the last decade or two, ever issued a ruling against a GOP led effort to restrict voting?Report

  7. Chip Daniels says:

    This is a good example of how soft authoritarianism becomes enacted and destroys democracy.
    It isn’t possible to destroy democracy by using only one lever of government, you need several.

    What we witnessed in the runup to Jan 6, where Trump was pressuring governors and secretaries of state to overturn the election, he was stymie by just a handful of officials who resisted.

    But one by one, the Republicans are forcing all the levers they can under their control.
    By next year’s elections, the officials who resisted in 2020 will be swept aside and replaced by compliant Party loyalists, and this decision has given them the signal that virtually no voting restriction will be struck down.Report

    • Philip H in reply to Chip Daniels says:

      this decision has given them the signal that virtually no voting restriction will be struck down.

      Add this to Citizens United and you get a real chilling effect on all sorts of political activity – which is what the Republican Party wants since they can no longer win on the merits.Report

  8. Marchmaine says:

    I was trying to find the recent twitter exchange where Liberals (not in good standing) like Chait and Yglesias were opining that the Democratic framing of Voting Access as constantly at odds with Voting Legitimacy was an own-goal that was hindering efforts at a better system on both fronts.

    That’s where I’m at… if we’re going to modernize Voting, we have to modernize Voting security. I’ve also commented that making Voting ‘easier’ vis-a-vis mail-in and (eventually) internet… also has downsides to voter intimidation and vote stealing that in-person Voting actually provides better protections for.

    Which is to say, much of the voting talk I hear from the left isn’t designed to modernize and protect voting but outcome based reasoning that eschews plans that should address and neutralize legitimate concerns from the right.

    The point of which is to make the illegitimate concerns from the right moot.

    Casting these issues a ‘voting restrictions’ is a category error that most Americans don’t support and the polling is consistent on that. There’s a path forward for modernization, and I concede Republican efforts to subvert that… which is why the path forward has to be modernization, security and inviolability…Report

    • Philip H in reply to Marchmaine says:

      ok, so here’s the left’s big problem – none of the alleged security issues are backed by evidence. Period. We can’t grant legitimacy to hand waving in the service of retaining power to a group that has – repeatedly – made it clear said retention of power rest on restricting voting access. You want to talk about voting security with zero data points on voting in any form being massively insecure. And over and over again when it is examined its so vanishingly small if it occurs that it impacts NO elections.

      Take 100% Mail voting. Multiple states have done it for multiple years, but Republicans resist implementing nationally allegedly for security reasons. But examining the states that do it – including Republican states – and one finds no evidence of insecurity or fraud. None. How to “address and neutralize legitimate concerns” that re in fact not legitimate because they lack a factual basis?

      We can’t because the concerns are not being raised to be neutralized by factual policy proscriptions. They are being raised to divert energy. And, preventing people from mailing ballots, forcing them to stand in long lines by closing polling places and preventing tribal collection of ballots where no one has actual postal service to their houses are all voting restrictions whether they poll well or not.Report

      • Marchmaine in reply to Philip H says:

        You’ve shot past the mark and are making the typical “left’s big problem” mistake.

        Voting Modernization is about all those things… you literally fall into a reactive trap by talking about fraud… the point of Voter ID and Voting Security is about legitimacy. If your Modernization plan doesn’t also address Security and Inviolability, then you’re whistling pass the graveyard.

        Plus, you have blindspots about Mail-in voting… blindspots that I humorously pointed out in the previous election where I invoked my Patriarchal Privilege to ‘help’ my wife and children vote for the American Solidarity party (that’s two “r’s” and two “l’s”). In the olden days I could only ‘enourage’ them… but the voting booth provided protection for *them* from well intentioned *me*. But with Mail-in votes… well, that’s just not an issue now, is it?

        I don’t have any particular problem with Voting-by-Mail per se, but saying there’s can’t be any concerns about the Inviolability of the vote (holding askance security for the moment) when I’ve basically pointed out that (soft) coercion is inevitable basically displays a certain form of ‘privilege’ in itself. ​

        Which is to say my primary criticism of the Left is that you *aren’t* advocating for a broadbased Voting Modernization program, but reasoning backwards from outcome preferences and/or reacting to the other side’s attempts to reason backwards from outcome preferences.

        I’m onboard with Voting Modernization… which I hope includes RCV and other aspects… but the Modernization plan has to address Access, Security, and Inviolability for Legitimacy.Report

        • Philip H in reply to Marchmaine says:

          the point of Voter ID and Voting Security is about legitimacy.

          Legitimacy wasn’t in question until Republicans started loosing elections because more non-whites started voting for democrats. There are rafts of voter ID laws on the books in multiples of states, and their existence has not increased legitimacy. So my data driven conclusion is that Voter ID is neither about security nor legitimacy but instead about making voting incrementally harder, since its well documented that that those same people of color have less “acceptable” ID then white people.

          We are also not a “Paper Please” country so if you want my ID you better have a damn good reason for it.

          If your Modernization plan doesn’t also address Security and Inviolability, then you’re whistling pass the graveyard.

          When you present evidence, not feelings not possibilities, evidence that these are failures that impact elections, and thus require addressing, we can talk.Report

          • Marchmaine in reply to Philip H says:

            Evidence… you keep using that word:
            “An overwhelming majority (81%) of respondents also said they support voters being required to show ID in order to vote, including 62% of Democrats, even as critics contend voter ID laws suppress turnout and unfairly discriminate against groups like low-income, elderly and minority voters.”Report

            • Philip H in reply to Marchmaine says:

              Well sure, they FEEL as if voter ID makes things “Safer” even where there is no evidence it does so. Lots of things make people FEEL safer. Taking your shoes off at the airport made people FEEL safer but lots of security experts said it was just for show. None of them are based in evidence. Which makes them a waste of time and resources.

              Again, expanding voter ID has been done in a lot of places – what’s the EVIDENCE that it has done any actual work to increase security? and if voter ID were to lend legitimacy, why isn’t its expansion across the US trumpeted by those who call legitimacy into question?Report

              • Marchmaine in reply to Philip H says:

                If 81% back this for Legitimacy, then incorporate this into your Legitimacy plan and move on to other aspects.

                Legitimacy *is* about feels… among other things.

                Ignoring 81% percent is bad politics if your goal is to modernize and manage change.Report

              • CJColucci in reply to Marchmaine says:

                I agree that there is no vote integrity problem that voter ID solves. I also agree that large numbers of people nevertheless think it’s a good idea, unaware of the actual facts on the ground and the motivation of the voter ID advocates. So here’s what I suggest. Put a voter ID provision in a package. Either have the states, or the feds, issue an Official Voter ID Card free of charge on registration, which, as part of the package, would be automatic, or accept a very wide variety of IDs not, as some proposals have it, designed with surgical precision to disadvantage certain classes of voters. Is it bullshit? Sure it is. It’s a bullshit solution to a non-problem, but if that’s the price of an overall good deal, I’m OK with it.Report

              • Marchmaine in reply to CJColucci says:

                Sure, that’s the spirit.

                Since its a Voting Modernization act, among the goals of a good ID system is also unique identifiers (whether sequential or hash, I’ll leave to the info sec guys) that can quickly be compared across precincts, statewide and maybe even nationally.

                We’ll want to modernize/digitalize the voting tabulation systems as well… plus even with Motor Voter Free ID, we have to deal with State Level systems that are, um, clunky… here’s an article from 2018 spelling out the errors in Motor Voter in California.

                But that’s the point… modernization looks at all the aspects of voting to make it better: Access, Security, and Inviolability for Legitimacy.

                Mail-in ballots should also come under scrutiny as something that might have been path-dependent upgrade in 1990, but might or might not be optimal given updates to tech and the guiding principles of the Modernization Act (whatever we decide those to be).

                The point isn’t to validate one system or another that might (or might not) benefit a party, but to address Legitimacy issues that are creeping into the system.Report

              • Philip H in reply to Marchmaine says:

                Do you agree that many of those legitimacy issues are made up propaganda? And if so wouldn’t we be better off addressing the propaganda then mandating another new ID after all the states just finished switching to Real ID. Which hasn’t made anything any more secure either.Report

              • Marchmaine in reply to Philip H says:

                Left: Ok, we’ll adopt your overwhelmingly popular idea that is foundational to legitimacy *and* gives us the opportunity to address any concerns we might have about Accessibility while also giving us an opportunity to look at the benefits of enhancing voter communications, auditability, and security… BUT, and this is important, only if you 81% admit you are not only wrong but also stupid. Deal?

                Normies: Ok, Mr. Left, we’ll admit you are the best after you pass the Voter ID legislation.

                https://youtu.be/9JfXrJJPDUE?t=145Report

              • Philip H in reply to Marchmaine says:

                We have voter ID requirements in 36 states. There is no data the have increased legitimacy if any election. Their support is thus largely an artifact of emotional spin.Report

              • Oscar Gordon in reply to Philip H says:

                I can saw the exact same thing about 90% of the sh*t the TSA makes me do before I get on a plane, and yet…Report

              • Dark Matter in reply to Philip H says:

                RE: Their support is thus largely an artifact of emotional spin.

                When we look at how other countries handle this sort of thing, we see the same thing. That emotional spin wasn’t invented by the GOP.Report

    • Chip Daniels in reply to Marchmaine says:

      When the Republican Party goes to court and swears under oath that they are working diligently to prevent Democrats from being able to vote, I don’t think our problem is a refusal to address legitimate concerns.Report

      • Marchmaine in reply to Chip Daniels says:

        One of the things I’ve learned in Sales over the years is that you win on the story you build not on the reasons not to buy the other guy. Because if the other guy is any good, he’s building a story for why you should buy him and not how bad the other guys are.Report

        • Chip Daniels in reply to Marchmaine says:

          Before we talk about savvy salesmanship and winning the news cycle with the bestest hot take, can we agree on the simple truth that the Republican party has become an existential threat to American democracy?

          Or is that politically incorrect WrongThink nowadays?Report

          • Marchmaine in reply to Chip Daniels says:

            Heh, literally no. And I’d posit that all of your ‘arguments’ on these topics are trying to position existential death to the other team *before* you will take the tiniest incremental victory. You’re going to lose with that strategy.Report

            • Chip Daniels in reply to Marchmaine says:

              “You’re going to lose elections to a party which cannot win support of a majority of citizens” is a confession you perhaps didn’t intend to make.Report

              • Marchmaine in reply to Chip Daniels says:

                I confessed no such thing… I think the Left is on a purity death spiral that will cause it’s majority to collapse.

                My position is that you are over-playing your hand by eschewing 81% popular proposals in favor of existential death for the other side.Report

              • Chip Daniels in reply to Marchmaine says:

                Walk us through your logic, here, that by rejecting things like voter ID, a large group of Democrats will defect to Republicans? Is this actually the assertion?Report

              • Marchmaine in reply to Chip Daniels says:

                Imagine there are three types of voters…Report

              • Chip Daniels in reply to Marchmaine says:

                And one of them holds Voter ID as a decisive issue??Report

              • Dark Matter in reply to Chip Daniels says:

                What do the Dems have against Voter ID? Did they run out of dead voters in Chicago?Report

              • Chip Daniels in reply to Dark Matter says:

                Because Voter ID is invariably part and parcel with making it hard to get an ID.

                Because the Republicans openly brag about their efforts to suppress Democrats ability to vote using tools like Voter ID.

                Get every single voter an ID first, then we will support it.Report

              • Dark Matter in reply to Chip Daniels says:

                Get every single voter an ID first

                I can’t deposit money into a bank without an id, so said person can’t be using banks. They also can’t be driving or using planes or trains. Medicare… has medicare cards.

                So they’re not accessing financial services, government services and benefits.

                Very very likely they should be, and voting is the least of their issues.Report

              • Chip Daniels in reply to Dark Matter says:

                Yes, exactly correct.
                You’ve discovered a surprisingly large swath of citizens who lack access to banks and other modern services.

                And the fact that the GOP is eager to both hinder their ability to get an ID and also to not let them vote is why we oppose Voter ID.Report

              • Jaybird in reply to Chip Daniels says:

                And one of them holds Voter ID as a decisive issue??

                Seems so.Report

              • CJColucci in reply to Chip Daniels says:

                As I said above, I think voter ID is a bulls**t solution to a non-problem, though, as a matter of practical politics, I am willing to include some kind of voter ID in a package deal.
                But the voter ID I support would be automatically issued, free of charge, and not subject to ID gerrymandering. When current voter ID advocates are willing to advocate or accept that, we’ll talk.Report

              • Chip Daniels in reply to CJColucci says:

                For me, the Republicans have lost any premise of good faith.
                They have gone so far to the extreme in anti-democratic behavior, that talking about their attempts to modernize voting is like talking about the CCPs efforts to modernize Hong Kong.

                The elephant in the room needs to be addressed first.Report

              • CJColucci in reply to Chip Daniels says:

                I wouldn’t bet against that, but no harm making the offer and letting them reject it, as I expect they would.Report

              • Dark Matter in reply to Chip Daniels says:

                One of the reasons Trump slid in was there was nothing to say about him which hasn’t been previously said, a lot, about everyone else.

                My expectation is whoever runs from Team Red next time will (again) be accused of trying to set up death camps, just like Trump was.

                If a very few Dem Senators weren’t against getting rid of the filibuster, we’d see both that, Court Packing, and “creating” new States as serious things right now.

                Big picture we have something like a third of the population, on both sides, have serious anti-democratic issues.Report

              • Chip Daniels in reply to Dark Matter says:

                According to this logic, voters in 2024 will just as easily choose Bob Avakian, head of the Revolutionary Communist Party, as anyone else because “there was nothing to say about him which hasn’t been previously said, a lot, about everyone else.”

                Something tells me this is…not so.Report

              • Dark Matter in reply to Chip Daniels says:

                You’ve discovered a surprisingly large swath of citizens who lack access to banks and other modern services.

                10 years ago, some interest group claimed it was 3 million people. That’s less than 1% of the population but STILL seems too huge… unless it’s mapping to people like my previously dying grandmother. We have 6.2 million people with alzheimer’s, you’d have to be late stage to not be able to vote or use id but grandma didn’t have alzheimers so there are other ways to get there.

                It seems very weird we have millions of people who could be trivially helped (and their cash flow to local communities vast increased by giving them the ability to get federal benefits) and Team Blue is standing around doing nothing but using them to argue against voter id.

                It also seems weird that I can’t find much about them.

                I’m all in favor of the gov giving out IDs so people can access banks and whatever. But I don’t see evidence that it’s a real issue rather than just a theoretical talking point.Report

        • Philip H in reply to Marchmaine says:

          Which just reinforces my long running dichotomy that Republicans tell a good story that FEEL right but doesn’t address any issues.Report

          • Oscar Gordon in reply to Philip H says:

            How does most of politics work again?

            I mean, I’m a libertarian with technocratic tendencies, so I hear ya!

            Tell me again how an assault weapons ban will solve our gun violence problem, that seems to be a nice story…Report

  9. Chip Daniels says:

    Here’s National Review, openly stating that they are not only a minority, but a shrinking one, and further, that they see no hope in persuading their fellow citizens and winning their support.

    https://www.nationalreview.com/magazine/2021/07/12/political-discrimination-as-civil-rights-struggle/Report

  10. Motoconomist says:

    I agree with your conclusion that these undefined guideposts are going to be tested. But yes, on its face and in this case, I get what the SC did hereReport