Thursday, July 1, 2021

UPDATED: The Roberts Strategy Lives, Right?

Arizona wins. This is a case I may want to read in detail--Alito writing for the Court, not sure about other opinions yet, since I've been writing on other matters. I thought this decision might come out later in the day. 

For now I'll leave this with Jonathan Turley, who views this as a "big win for the states"--and, I suppose for the federalism embodied in our constitutional order. However, as I've maintained re the putative Roberts strategy, what this does is put the ball back in the States' court. The States need to act--the SCOTUS, rightly, isn't going to do the work that the Constitution delegates to the States.

As you read, bear in mind that Turley is probably tweeting as he reads. We'll be updating as more analysis comes out. Also, as context, the District Court--to whose opinion reference is made, upheld the AZ law, but the 9th Circuit--now reversed by the SCOTUS--overturned that court.

At this early point, it does seem to me that the Roberts strategy lives. Notice, too, embedded in commentary on the AZ case, the CA case, opinion by Roberts--CA can't force disclosure of political donors. Another big victory against the Left:

Jonathan Turley


We just got Brnovich. 6-3 opinion with Alito writing. The opinion is a big win for the states on election laws and undermines the new lawsuit from the Biden Administration against Georgia. 

However, the Court punts on a clear or binding rule for future cases: "we think it prudent to make clear at the beginning that we decline in these cases to announce a test to govern all VRA §2 claims involving rules...that specify the time, place, or manner for casting ballots"

Yet, this [is] clearly a more narrow ruling than the one relied upon the Biden Administration of Section 2 of the Voting Rights Act ....

...Indeed, in her dissent, Justice Kagan declares that the "cramped reading" "undermines Section 2 and the right it provides."

Final decision is in: Americans for Prosperity Foundation v. Bonta. Another 6-3 ideological split with Roberts writing for the majority in saying California cannot force disclosure of political donors.

Brnovich has a great deal that should worry the Biden Administration and, again, the timing of its filing may have been due to the expected countervailing opinion. It would have been even more difficult to file after such a narrowing interpretation...

Most notably, the Court rejects assumptions of racial motives even given controversial speeches: "We are more than satisfied that the District Court’s interpretation of the evidence is permissible... "

..."The spark for the debate over mail-in voting may well have been provided by one Senator’s enflamed partisanship, but partisan motives are not the same as racial motives..."

...And while the District Court recognized that the “racially-tinged” video helped spur the debate about ballot collection, it found no evidence that the legislature as a whole was imbued with racial motives."

All in all, it looks good. But it's still up to the States in our revived federal election system. Lots of work to be done by the States before Election 2022--let alone Election 2024.

UPDATE 1: Margot Cleveland provides a very nice explanation of what went on within the opinion--what issues were being addressed and the history behind it:

SCOTUS Ruling Brings Clarity To Voting Rights Act, Upholds Ban On Ballot Harvesting

SCOTUS overturned a Ninth Circuit ruling that Arizona law violated Section 2 of the Voting Rights Act, adding much-needed clarity to Section 2 claims.

I've edited these excerpts to focus on the essentials, but you can follow the link for Cleveland's excellent detailed analyis. IMO, the rejection of the "disparate impact model" is particularly noteworthy:


When originally passed in 1965, Section 2 of the Voting Rights Act prohibited a “standard, practice, or procedure” that “imposed or applied. . . to deny or abridge the right of any citizen of the United States to vote on account of race or color.” ...


... as Justice Alito explained, there have been a proliferation of Section 2 challenges in the lower courts to “generally applicable time, place, or manner voting rules.” But today’s decision in Brnovich represents the first time the Supreme Court has spoken on the question.

In Brnovich, the Court began by stressing that the majority believed “it prudent to make clear at the beginning” that it was declining to announce a test to govern all Voting Rights Section 2 claims, involving time, place, and manner provisions for voting. Instead, the court identified “certain guidepost” governing the analysis.

The majority then focused on Section 2(b)’s statutory language, stressing that the process must be “equally open” and “open” means “without restrictions as to who may participate.” ...


In addition to laying out what constituted appropriate consideration, the Court noted that many factors considered in voting-dilution cases were inapplicable to time, place, and manner challenges. And the majority expressly rejected “the disparate-impact model employed in Title VII and Fair Housing Act cases,” which consider if the rule is necessary and the only way to achieve the desired goal.

After detailing the above “guideposts,” the majority applied the consideration to the two challenged provisions. ...

“Having to identify one’s own polling place and then travel there to vote does not exceed the ‘usual burdens of voting’” the Court explained. ...

Likewise, the Court upheld Arizona’s prohibition on ballot harvesting. ...

Arizona argued that “prohibiting unlimited third-party ballot harvesting is a commonsense means of protecting the secret ballot, and preventing undue influence, voter fraud, ballot tampering, and voter intimidation,” noting that the bipartisan Carter-Baker Commission recommended similar protections in its report on election reforms.


Also of note, the Court rejected the []view there must be evidence of fraud for a state to pass legislation to prevent fraud: ...

Finally, the Court held that the Ninth Circuit erred in holding that HB 2023 “was enacted with a discriminatory purpose.” Here, the majority stressed that partisan motives are not the same as racial motives. ...

While joining the majority opinion, Justice Gorsuch filed a concurring opinion, joined by Justice Thomas. In his concurrence, Justice Gorsuch “flagged” an issue not decided by the Court, namely whether the Voting Rights Act allows private organizations (such as the Democratic National Committee in this case,” to sue under Section 2. However, because the issue was not raised, Justice Gorsuch stressed, the Court did not address that open issue.

Justice Kagan filed a dissent, which Justices Breyer and Sotomayor joined. That dissent focused almost entirely on the history necessitating the Voting Rights Act and ignored the question before the court: what Section 2 means.

... while the Supreme Court’s decision in Brnovich v. Democratic National Committee addressed only Arizona’s legislation, the opinion represents a victory for state legislatures seeking to ensure voting integrity and establishes that no, these laws are not Jim Crow 2.0.

UPDATE 2: Paul Mirengoff:

Amy Howe at Scotusblog observes that the decision “will make it more difficult to contest election regulations under the Voting Rights Act.” That’s probably an understatement. The motion to dismiss Kristen Clarke’s suit challenging Georgia’s election law will all but write itself now.


  1. The court ruling validates election integrity efforts by state GOP, and will hopefully encourage more of the same.

  2. Not a Home Run but combined with the Ca ruling a strong double stretched into a triple.

    1. good analogy...kinda like Phil Rizzuto's infamous "play-by-play" on Meatloaf's "Paradise by the Dashboard Light". We're safe on third, now can we execute the suicide squeeze? Stay tuned...

  3. Agree with you on all fronts. It's a victory, which our side hasn't been getting many of these past 5 years. Now, it seems to me, the Big Deal is the AZ audit. Everything, in terms of the election steal, hangs on it.

    1. And it will hopefully have a strong message effect on developments in GA--which look promising.

  4. Where Turley writes "a more narrow ruling than the one relied upon the Biden Administration of Section 2", does he mean
    "a more narrow ruling, than the one relied upon BY the Biden Administration, ABOUT Section 2"?

    Also, just what does he mean by
    "*It* would have been even more difficult to file after such a narrowing interpretation..."?
    Does this "it" refer to the CA case filing?
    Does the "narrowing interpretation" refer to this AZ ruling?

    A win is a win, but I was hoping that Roberts could emulate other recent (9-0) results.
    A 6-3 vote doesn't send the powerful message sent by a 9-0 vote.
    And, I recall you being hopeful for a broader ruling.

    1. Always the dark cloud inside the silver lining.

      1. He means the SCOTUS interprets Section 2 of the Voting Rights Act more narrowly than the Baiden regime does.

      2. He's referring to the Georgia lawsuit brought by the regime's "DoJ". He's saying it would have been more difficult to file that lawsuit after this decision. As it is, it could end up being tossed, depending ...

      3. I haven't had time to read it yet. It sounds like a broad ruling in deferring broadly to the constitutional authority of States--that's why Turley pointed to the language about "assumptions of racial motives." The Court is saying it's not going to assume anything except legitimate motives on the part of the states. Anyone suing will have to prove improper motives. Sounds broad to me. We'll see.

    2. The 9-0 rulings were good theater, but upon analysis it appears that they were achieved on the basis of narrow rulings that have little value for addressing the social issues underlying those cases.

      The Dems know they need to control the count. This could never be a 9-0 decision.

    3. Perhaps Roberts held this to the end, to follow the theatric 9-0 rulings. I certainly never expected this one to be other than 6-3 or maybe 5-4. I couldn't see AZ losing except as a catastrophic implosion. As it is, 6-3 with all GOP appointees joining is a good look.

    4. Yeah, had Roberts failed to get all GOP appointees to join, that would've been brutal.
      I'd had some hope, that he could, say, get Breyer to abstain.

    5. Is it Roberts who decides what is released when? If so, then yes, most certainly he did the order for a reason--convince enough people that the court does its court thing and functions well even if a couple issues have disagreements. It would be even nicer to think (hope?) that the libs willingly went along with the plan because they also don't like the idea of court packing.

  5. This is a huge win. It gets rid of a lot of potential lawfare methods used to challenge efforts against Voter Fraud by the Left. Disparate Impact is one of them, I wish it would be banned in other areas. It allows as a legitimate reason for legislation, to reduce voter fraud.

    Negative is it continues the SCOTUS of ignoring Voter Fraud as a huge issue, and allowing states to do what they do that actually increase the chance of voter fraud. Same thing as gerrymandering, which is supposedly constitutional. The ruling seems a bit wishy washy on a standard, and it took 5 years to get to SCOTUS. But, what came out was probably the best that could be expected from SCOTUS. Disappointed in the dissent, but shows the huge bullet dodged by Trump becoming President. Imagine what the Scotus decision would have been if Hillary had won, and appointed three justices.

    1. Yes, very big. It's not actually wishy washy, given that the Act talks about "totality of the circs". So what they did was set out "guideposts" for what could be considered to be legit "circs" under Section 2 of the Act. That eliminates a lot of challenges. It also basically says that the Court is not in the business of guessing motives or assuming motives using bogus Leftist contructs like disparate impact--prove it or get outa here.

  6. I'm struggling with the proper wording on this because section 2 gets really complicated. If someone smarter than myself can expand please do.

    I didn't think we would get the court flatly saying "voting belong to the states". I was however hoping with all of the argument being made during the case we would get a better "test" at the end of this mess. Eliminate the current carve out two part test being applied to voting rights cases would have brought voting into line with other issues involving discrimination and stopped many of these frivolous cases from happening.

    If the court would have spent the last century and a half ruing this narrowly our country would be in a much better state today. However gaining any traction on flatly knocking down and restoring power balances requires a sledgehammer... This was again a rubber mallet.

  7. Interesting piece at American Thinker today to effect that Trump may have won California.

    It is a statistical analysis of reported vote totals in California that seem to contain unbelievably high vote by mail totals for Zhou. This is obviously not conclusive without a true audit but it raises another point.

    I have a growing suspicion that election theft is far more pervasive and audacious than we suspect. California is a possible example. Once the gangsters establish a boradly accepted narrative that, for instance, California is deeeeeep Blue, they are more or less free to cheat at will, confident that no one is going to question the manipulated vote totals. They are also free to corrupt any opposition politicians by telling them to play ball and get rich or face certain political defeat. Ask yourself why it always seems that the GOP is so inexplicably inept in these supposed Blue states. Why do they perpetually offer up the lamest candidates and repeatedly resist grass roots efforts at change? The GOP in these places is compromised and playing for the other team.

    This further suggests that the solution is far more difficult than we think. Many of us put hopes in local politics to throw out the establishment GOP. This is hard enough. But even managing that, in the stares where the Blue Narrative has taken hold, our patriot candidates will have a near impossible job of overcoming the vote fraud because, absent a miraculous Noah flood of turnout, the Democrats will simply manufacture needed votes and suppress GOP votes, and they will get away with it because we all believe that the jurisdiction is too Blue to vote Republican. (Note too that this would apply to any 3d party trying to overcome Republican stigma--- which itself may be another manufactured fable).

    In the meantime Democrats work their well oiled machine that magically turns formerly solid Red jurisdictions into Purple and invariably into Blue. And we all happily accept this narrative that all these hundreds of thousands fleeing Blue hell holes become mindless blue voters in their new Red state homes. Perception is everything and the gangsters have convinced us that Blue is an irreversible tide.

    The truth is it doesn't matter how people in a district actually vote, it matters how they are *perceived* to vote. So a district with high minority population is perceived to vote Democrat which allows the vote totals to be manipulated to fit that assumption.

    I suspect that it may require some kind of national crisis-- financial or currency meltdown?-- to clean out this Augean stable.

    Happy thoughts for a holiday weekend.


    1. Yes, I did read that earlier. It's interesting and suggestive, but not conclusive. For example, the very high Dem totals for VBM may indicate more organized collection. GOPers have started that in CA, but that effort is in its infancy.

      That said, there are other seemingly safe Deep Blue states in which questionable events took place in 2020. I'm not talking about MN, for example, which has been trending Swing, but IL.

    2. Ca voting could be cleaned up with a ballot initiative.

      The lack of any push for this tells you a huge amount about the state gop.

    3. My guess is the Ca vote was padded so Biden “won” the popular vote nationwide.

      Agree with Anonymous on many points:

      - the amount of voter fraud is huge in the US.

      - Gop is blue states is compromised. The eGOP has a script for making sure more conservative candidates lose. Fake candidates that dilute the vote in primaries is one way, so the eGOP backed one wins the primary. It’s amazing how many crash dummy gop candidates win the primary, and lose in the general. Ga senate…. And I would not be surprised if voter fraud happens to help the right gop candidate win the primary. The one more likely to lose in the general. It’s telling how many gop are fighting 2020 election audits. And how many aided and abetted the fraud. And the lack of much support in the capital narrative by anyone in the gop. Much less on the charges against the Trump cfo. So telling.

    4. @anon, welcome to the club. For many of us here who are IT professionals your growing suspicion is already a foregone conclusion. On the face of it, our "election system" is eminently hackable and has been, most probably since it went electronic. It seems almost certain the IC is involved in the manipulations and that technically speaking, given the appalling lack of security and data loss prevention programs in place in the Counties we have been made privy to, it would be nothing short of child's play to maninpulate and control the national election. You can certainly maintain your doubts about how widespread this all is, but if you have any experience with networked computer systems at all, and if you were alive and watching the 2020 election as it happened, I don't see how you could have any doubt that if there is compromise in one county there isn't compromise in pretty damn near every other. Or perhaps, perhaps, only those counties throughout the country they minimally need to control things. That you and I and other citizens are waking up to the possibility only now in 2020 is way more a function of really poor assumptions about the IT Security and professional competence of those responsible for administering our election systems, than it is about how well the fraudsters have hidden their crimes. you are right that the solution will not come "at the state level" until the fraudsters at the National level are held to account. Fat chance of that apparently as the only people "man" enough to go there are Sidney Powell and Mike Lindell. Shame on all the rest of us.
      Mark A (weary oh so weary of pretending not to know)

    5. "The GOP in these places is compromised and playing for the other team."

      That pretty much sums up the GOP at state level in EVERY state. We (conservatives) are at fault here because we attempt to insert the concept of "teams" or "these places" or misnomers like "RINO" and "GOPe" to compartmentalize the systemics behind the fact that we really have no team or party in this.

      The GOP, RNC, Republican party has never been conservative or on the side of the constitution. They're better stated as neocons that speak of the constitution from a standpoint of being progressive, big government, globalist.

      We may have a few conservatives among the group but they are the exception and not the norm. More often than not it's nearly impossible to tell the pretenders from the authentic.

      California by example is easy to pick on in election matters but when you start getting into the current issues with GA, PA, MI, WI and FL the conversation of "party" (if you're being honest with yourself) gets to be really uncomfortable and impossible to defend.

      I get cussed for saying it but I don't take it personal, we've needed (deserve) a new party for a VERY long time now. What I'm saying isn't challenging a individuals politics, it's challenging what is closer to a religion for many.

      The bright side, because of the trump effect, the neocons are becoming so obvious that required epiphany (punch in the face) of individual discovery is becoming to painful to ignore or defend and that's a good thing!