Jurisprudence

Why the Supreme Court Should Treat Voting More Like Campaign Finance

A man walks into a polling center with the shadow of a cactus visible on the wall of the building.
A voter arrives at the Eloy City Hall polling location on Nov. 3 in Eloy, Arizona. Courtney Pedroza/Getty Images

On a recent episode of Amicus, Dahlia Lithwick spoke with Jessica Ring Amunson, who argued the voting rights case Brnovich v. DNC at the Supreme Court earlier this month. The case revolves around the “results test” in Section 2 of the Voting Rights Act, a measure added by Congress in 1982 that’s meant to measure whether an election law results in disproportionate disenfranchisement of minority voters compared with nonminority voters—regardless of the law’s intent. Section 2 has been crucial in challenging voter suppression efforts in the wake of 2013’s Shelby County v. Holder. A portion of Lithwick’s conversation with Amunson, which has been edited and condensed for clarity, has been transcribed below.

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Dahlia Lithwick: I want to start by asking you to explain the two provisions that were challenged in this case, because I think at first blush, they sound like they could be reasonably benign efforts to protect “ballot integrity.”

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Jessica Ring Amunson: The first is the out-of-precinct policy. And that requires that any voter who votes in the wrong precinct, that their ballot will be discarded, even though they may have been eligible to vote for, in fact, all of the races on the ballot. If it’s, for example, just president and governor, they of course would have been eligible to vote for those races. One of the things that we pointed out to the court is that Arizona no longer really uses a precinct-based voting system—that in the 2020 election, 75 percent of voters actually were in counties that were not using a precinct-based system. So the attorney general’s justification that this policy was needed in order to protect the integrity of a precinct-based system is somewhat suspect.

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The second policy is a statute that the Arizona Legislature passed to ban anyone other than a family member, a caregiver, or a household member, or a postal worker, of course, from possessing voters’ voted ballots. Arizona already has laws that prevent fraudulent ballot collection. This law actually criminalizes nonfraudulent ballot collections. So even helping a neighbor to deliver their ballot is punishable by up to two years in jail and $150,000 fine. And this law is particularly difficult in Arizona, which has a number of reservations where Native American voters do not have home mail service. And in fact, many families share post office boxes that are quite far away from where they live. So this has a real impact for Native American voters and Latino voters in particular in Arizona.

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There’s been a whole line of cases in which the court has blessed schemes that make it harder to vote, and it’s always under this blanket of voter fraud, voter integrity, “the people are worried.” And we are now quite literally coming off an election where a very significant proportion of the population, regardless of what the facts on the ground are, believes that there is immense fraudulent, hoaxing, lying, stolen ballots. And it doesn’t matter what the facts are.

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In that sense, I guess you have this uphill battle because you’re fighting this fantastical, nontruthful belief that people increasingly have, which is that the ballots are all completely fraudulent and this is rampant. And I wonder if there’s this weirdness in this posture you have to take, which is: Actually there is not immense ballot fraud. What there is, is immense vote suppression. And I don’t want to fight that first thing because the second thing is true.

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It’s certainly extremely disheartening that there are legislators across the country who are undermining voters’ confidence in democracy while simultaneously saying that we need new restrictions on the right to vote in order to increase voters’ confidence in democracy. And we tried to point out in this case that there is literally no record of fraud with respect to ballot collection. And in fact that the restriction at issue doesn’t target fraudulent ballot collection. So one of the things that I tried to point out at oral argument and that I hope the court will think about is that in its campaign finance jurisprudence, the court does not accept a legislature just saying, “Well, we think that there’s corruption and so we are going to place limits on expenditures and contributions because we want to be sure there’s no appearance of corruption.” Instead, the court actually requires the legislature to have recorded evidence that the danger that they are attempting to prevent against actually exists. And so I said that the court ought to give at least the same level of scrutiny to restrictions on the ability to participate in the political process, through spending money, as they do on the ability to participate by voting. So hopefully the court will look to its campaign finance jurisprudence at least, to say that you need to have some record that this is real. And you need to actually look behind the legislature when they claim to be needing particular restrictions to protect the ballot, to see if that’s really true.

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I want to ask you about a moment in the argument. It wasn’t you talking. It was a colloquy between Amy Coney Barrett and Michael Carvin, who was representing the Arizona Republican Party, where she essentially said to him, why is the Arizona Republican Party, even in this case? Why do you care about keeping these laws on the books? And he had this quote that I think blew up Twitter for at least a day. He said, “Because it puts us at a competitive disadvantage relative to Democrats. Politics is a zero-sum game and every extra vote they get through unlawful interpretations of Section 2 hurts us.”

And folks characterized this as saying the quiet part out loud. There he is just saying it: The reason the party is invested in this is because this is how politics is played now. And this is a zero-sum game, and we have to suppress the vote. I’ve heard some pushback to that, but that’s overreading what Carvin was saying.

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I wonder if there’s some utility in just calling it what it is, in naming this thing, which is: One party is going to continue to make it harder to vote, particularly for minorities, particularly for communities of color and the poor and the young. And one party is going to wildly try to encourage a bigger franchise. That’s what H.R. 1 is all about. That’s what the John Lewis Act is all about. I wonder if there’s some utility for you as an advocate in just having it spoken out loud, that this is the name of the game. We’re not going to pretend this is about fraud. We’re not going to pretend this is about integrity or public confidence in democracy. We’re just going to say, “We have to suppress the vote.” Is that useful for you going forward? Or is that just totally depressing and cynical?

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What I tried to say in my closing and what I firmly believe is that candidates and parties should be trying to appeal to voters on the basis of their ideas. The petitioners in their brief repeatedly referred to Section 2 as a one-way ratchet. And why is that a bad thing? We live in a democracy, right? We should want everyone to be able to access the vote, to have their vote counted. They characterized enforcement of Section 2 for purposes of their standing argument as an “injury to their electoral prospects.” And I can’t say it better than what they said themselves. That’s why they told the court they were here because they view enforcement of Section 2 as an injury to their electoral prospects.

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And it’s so interesting. An Arizona state Republican recently just flat out said, “Everybody shouldn’t be voting. Quantity is important, but we have to look at the quality of the votes as well.” And that’s another step toward exactly what you’re describing, right? This is straight-up Jim Crow. We’re not even going to pretend the one person, one vote is a principle that we adhere to. We’re not going to even pretend that a broad franchise is good for democracy. We’re just going to start making arguments about the “quality of the voter.” Did you ever in your life think we’d be back in a world where we are now saying there are two classes of voters?

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It’s very unfortunate, but that is certainly not a world that I want to live in and is certainly a world that I’m going to try to fight to prevent from happening. I mean, that’s the world of literacy tests, right? And that’s not the world we want, I don’t think, in the United States of America.

To hear their entire discussion, as well as Dahlia’s conversation with Jamal Greene about his new book How Rights Went Wrong: Why Our Obsession With Rights Is Tearing America Apartlisten below, or subscribe to the show on Apple Podcasts, Overcast, Spotify, StitcherGoogle Play, or wherever you get your podcasts.

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