Tuesday, March 2, 2021

Briefly Noted: Arizona Election Law Case In SCOTUS

I'm not about to try to summarize Shipwreckedcrew's full article about the AZ election law case that will be argued at the SCOTUS today--Brnovich v. DNC. Very briefly, because election law is very technical and this case depends on constitutional interpretation of state and federal law, at issue are AZ election laws that are race neutral on their face but which the DNC claims have a disproportionate impact on minorities. The case goes all the way back to 2016 and came up through the District Court, a three judge panel of the 9th Circuit, and then an en banc rehearing in the 9th Circuit. SWC engages in some speculation, as you can see from the title:

Is Brnovich v. DNC -- Set for Argument Today -- the Reason the Supreme Court Refused to Take up Election Cases?

SWC doesn't exactly spell this out, but here's my read on what he's at least hinting at. SWC is arguing--and this part is explicit--that CJ Roberts has a long term strategy for getting the federal courts out of the election law business and returning these matters to where they belong: state legislatures. SWC goes back through a bit of the history of the Roberts court on election law. The bottom line appears to be that, as long as the laws in question are not discriminatory on their face it's time for the federal courts to more or less butt out.

In fairness to SWC, his argument is detailed and he explicitly states that he's talking about "voting rights cases." The result SWC sees from the earlier case law--and, I presume, hopes to see continuing--is this:

No longer burdened with the “preclearance” requirement, states could pass voting-related legislation on subjects like voter ID, purging voter rolls, redistricting, ballot harvesting, etc.

Where the Arizona case comes in is that DNC lawyers--does the name Marc Elias mean anything to you?--despite the earlier SCOTUS case law of the Roberts court, are still attempting to conduct a lawfare campaign against state tightening of their election security through other sections of the Voting Rights Act than were interpreted in the earlier cases. That's what happened in the en banc rehearing in the 9th Circuit, in which the Dem judge overruled the District Court and their own three judge appellate panel. Obviously, SWC hopes to see the SCOTUS reverse the 9th Circuit, and believes that Roberts' long term strategy will have its effect.

I'll say this. SWC may be right that Roberts persuaded Justices Amy and Brett to go along with him in refusing to take the 2020 election cases, on the promise that they'd be addressing these matters in fairly short order through the AZ case. The benefit of the ruling that SWC is hoping for--as I read him--is that it would strongly encourage states to get their election law houses in order. That would be good, and it would be a proper federalist solution. It would also keep the SCOTUS from being involved in controversies over specific elections--which is also an understandable institutional goal for the SCOTUS.

However, there's a fly in the ointment of this thinking. My view is that, while a long term judicial strategy for handling election rights cases is good, the 2020 cases largely--exclusively?--turned on issues of federal constitutional law rather than state statutory law in conflict with the federal constitution. If I'm not being entirely clear, let me put it this way. The federal constitution states that state legislatures will decide the manner in which elections are to be held. In the 2020 election the real issue was not so much with the irregular methods employed in the states, in violation of state laws. The real issue was that those irregular--illegal--methods were empowered by the executive and judicial branches of those state governments. That means there was a clear violation of the federal constitution. That's a very different matter than voting rights cases based on federal statutory law, so I believe the TX case should have been taken, no matter the Lib generated "controversy." Some controversial cases demand a hearing.

We'll have to wait and see if we get the clarification and strengthening of state powers that SWC is hoping for. Oral arguments are today, but the decision won't be announced for a while. On the plus side, the ruling will come in time for states to take action before 2022. On the less plus side, I'm not so sanguine that the shenanigans we saw in 2020 will not occur again--SCOTUS rulings be damned. In that case, Roberts will have to bite the bullet and get involved in the election process, or let any semblance of electoral integrity go down the drain. Admittedly, it's not a pretty picture to see courts constantly having to step into individual election cases, but that seems to be where we are with the Prog approach to overruling the electorate through illegal means. Not a pleasant prospect.


  1. CJ Roberts cannot be so stupid as to think that the federal courts will ever be disentangled from election controversies, can he? When have the Dems ever not pursued lawfare endlessly--even when it should have been futile? Federal courts are still defying SCOTUS regarding religious freedom in the era of Covid. And why wouldn't Dems do this? IT WORKS. It's how they have undermined immigration restrictions. They just never stop.

    I agree especially that some balls are clearly in SCOTUS's court. If CA passes a law to allow every resident--citizen or no--above age 5 to vote, does no other state in the union have any standing to contest that? Not according to five of the current justices. Wait for H.R.1 to pass. The left seems determined to ensure that the only redress remaining for the right is violence.

    1. "If CA passes a law to allow every resident--citizen or no--above age 5 to vote, does no other state in the union have any standing to contest that?"

      That's not a standing issue. It has to do with the FACT that the Federal Constitution specifies that State legislatures specify the manner of voting. The Founding Fathers apparently harbored some naive assumptions about basic good faith and commitment to basic principles of responsible government on the part of the various states of the union and their citizens.

      "Wait for HR1 to pass."

      If it has to get past a filibuster--which, subject to correction, I believe it would--hell might freeze over first.

    2. I do not see the right resorting to violence. I see worse. If it hasn't happened already I see the right losing all respect for government, getting on with their lives, ignoring Washington as much as possible and abstaining at least publicly from activities the government insists on regulating.

    3. That truly would be WORSE. Washington isn't the only government that tries to control our lives. After all, who controls the government run primary and secondary schools and much of the university system? These government schools aren't only under the thumb of DOE. Local governments run by liberals are also in charge. Anyone who thinks they can ignore politics and get on with life is dreaming--the Left won't allow that. They WILL find you.

    4. "The Founding Fathers apparently harbored some naive assumptions about basic good faith and commitment to basic principles of responsible government on the part of the various states of the union and their citizens."

      My perspective is a little right of that, not a rebuttal to you Mark, just different lens.

      I think the founders in a broader vision, expected us, "we the people" to do a much better job of holding both federal and state governments to their respective place of serving the people, we've failed at that. That is after all the point to the 1st thru 9th amendments and our bill of rights.

      Granted, if you were to unwind about a half dozen very poorly decided SCOTUS cases, neither would have the power they currently do today. All things are easy in retrospect, but our people historically should have paid more attention.

      IMHO we have completely and totally pawned our part off on blaming, accepting, whining and wishcasting it be someone else's job. That's on us (historically) and it does us good to recognize our part, if not, it never changes.

    5. They CAN'T find you, at least not effectively. The key to effective government is voluntary compliance. When the masses are determined to circumvent government restrictions enforcement becomes impossible, especially when those charged with this enforcement, the American military and the police, may themselves have a grtudge against Leftist authority. Actively opposing the regime invites conftontation. By maintaining an appearance of compliance, by keeping under the radar, we all become like the 'Proles' in '1984' who are prety much left alone. The Regime controls the Regime, who now own the government, but the government does not own the loyalty of its citizens. The Generals are free to lead the charge, only to discover the Army they are leading has dissolved. The 'defeated' Trumpsters will regroup, not to take power in Washington, but to form a society of these Proles, self-reliant people capable of maintaining a productive meaningful lifestyle divorced from the society around them. The official government will have to deal with an economy in shambles, a foreign policy debacle and the dissatisfied mobs, Antifa and BLM, of their own creation. Things might turn violent if the Regime recruits squads ready to gun down masses of civilians, but they will then be facing a heavily armed populace. I do not see police in big cities aggressively pursuing gun confiscation from otherwise law-abiding citizens when they feel themselves the target of local politicians.

    6. Sorry, I think you're dreaming. Finding you is easier than ever, and coercion can take many subtle forms.

    7. To find you they have to look for you first, and they have neither the personnel nor the intelligence nor the incentive to search out millions of basically innocuous individuals whose only real crime is that they do not actively participate in your programs nor provide you with the means of advancing them. I would add they are not subtle, and we see through their forms. They may take over some locales, but not the country. They might even ruin some decent neighborhoods, but people would regroup and, as has happened in the past, form other communities. Schools and Colleges risk becoming less consequential, as we have been forced to live without them during Covid, and the mass media has made themselves irrelevent. Hollywood, sports and theater seem determined to destroy thermselves by putting politics above box office.
      The ruling class will have won. They will however not be controlling the productive power nor the intellectual resources nor the popular support which would make them the rulers of a rich and powerful nation. The mass of individuals would be investing their efforts in the interest of their family and immediate community. FDR tried to exercise control over everything. I personally knew individuals who did very well for themselves and even made fortunes during the Great Depression, while those who depended on the government starved.

    8. I can't believe you're saying these things.

  2. Let any semblance of electoral integrity go down the drain? At this point most Americans would probably agree that the Courts are not interested in election integrity, and the probability is that everyone, including the Supreme Court, is in on the steal. Whatever philosophical or legal reasons may be advanced, this perception is unlikely to change. I assume nobody is following the Arizona case, and if they are they assume the Supreme Court will do whatever is politically expedient.

  3. I had a similar thought about what the SC may be doing--it would make sense that they want to avoid like the plague any case that would result in a ruling that puts the 2020 election results in question. The AZ case might be a vehicle to shoehorn several of Trump's concerns into a ruling, though you rightly call out the limits of that strategy. I don't see how they could rule on the question of actors outside the legislature usurping the state legislature's role in national elections.

  4. I hope SWC is right, but who knows.

    Shame the decision seems will have more to do with the direction of the political winds, then the constitution.

    I’m agree on Thomas dissent in the Election case. Scotus credibility took a huge hit with me.