Biden Justice Department Won’t Wade Deeper Into High Court Fight of Arizona Election Laws

The new administration has declined “to make a further substantive submission” to the U.S. Supreme Court in cases over Arizona election laws the Ninth Circuit found discriminatory toward racial minorities.

(Courthouse News photo / Brad Poole)

WASHINGTON (CN) — The Department of Justice on Tuesday changed the federal government’s position in a case to be argued before the U.S. Supreme Court, focusing on the constitutionality of two Arizona election laws.

The court agreed this past October to hear the consolidated cases, set to be argued in March. Chief at issue are Arizona laws that prohibit voters from having non-family volunteers deliver their ballots and another law mandating the destruction of ballots cast in the wrong precinct — both found to be unduly discriminatory to minorities by the Ninth Circuit.

U.S. Deputy Solicitor General Edwin Kneedler noted in a letter to the court Tuesday that the Trump administration had filed a brief in support of Arizona’s laws and its Attorney General Mark Brnovich. However, following a change in administration, the Justice Department had decided to take another look at their position.

“The department has now concluded that, although it does not disagree with the conclusion in that brief that neither Arizona measure violates Section 2’s results test, the department does not adhere to the framework for application of Section 2 in vote-denial cases set forth in the brief,” Kneedler wrote. “In light of the approaching oral argument, however, the United States does not seek to make a further substantive submission in these cases.”

In a reply brief to the court, Brnovich argues factual record supports favoring open and accessible voting systems and maintaining Arizona’s voter laws. He also counters by writing a district court found 99% of minorities and 99.5% of non-minorities voted in their correct precincts during the 2016 election — arguing the law was not overtly discriminatory.

U.S. District Judge Douglas L. Rayes found that while the limitations on ballot collection may have “harbored partisan motives,” the laws were never enacted for that effect.

“As previously noted, ballot collection was used as a GOTV strategy in mostly low-efficacy minority communities, though the court cannot say how often voters used ballot collection, nor can it measure the degree or significance of any disparities in its usage,” Rayes wrote.

A number of amici who filed arguments in support of the Democratic National Committee — which challenges the law’s constitutionality — disagree with Rayes’ assessment.

The Navajo Nation, the largest native American tribe in the country, filed a brief supporting the Democrats and arguing that often Navajo Chapter boundaries misalign with their state borders — further confusing voting procedures for those Americans.

Additionally, Navajo Nation members don’t have the same access to housing, employment or health care services, further limiting their ability to participate in the political process. Housing particularly provides a logistical challenge to many Native Americans who live in unmarked homes or residences lacking traditional addresses.

“When Navajos register to vote, they must draw a map indicating where they reside,” the tribe said in its brief. “The map drawing area on Arizona’s voter registration form is very small and rarely allows sufficient space for individual to provide an accurate location of their residence. … This can result in an individual being placed at the wrong precinct.”

The Arizona Republican party, however, argues the Voting Rights Act is not a racial-proportionality mandate and says Democrats and their allies essentially argue “because minorities are more likely to vote in the wrong precinct, Arizona cannot enforce its in-precinct voting rule.”

“Section 2 does not mandate proportionality or require states to tailor their rules to equalize voter convenience in light of socioeconomic disparities,” the Arizona GOP’s brief states. “The statute requires only that states off all citizens an equal ‘opportunity’ to participate by not ‘den[ying] or abridge[ing]’ the right to vote on account of race.”

Seven U.S. senators also oppose the Ninth Circuit’s interpretation that the law is discriminatory, including Ted Cruz and John Cornyn of Texas, Marsha Blackburn of Tennessee, and James Lankford of Oklahoma. In their brief, they say the Ninth Circuit’s interpretation “threatens many legitimate time, place and manner voting laws across the country.”

Mike Carvin, a Jones Day attorney representing the Arizona Republican Party, declined to comment Tuesday. Marc Elias, a Perkins Cole attorney representing the Democratic National Committee, did not respond to a request for comment by press time Tuesday.

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