Voting rights hit the Supreme Court.

Plus, a question about migrant facilities.
Isaac Saul Mar 2, 2021
I’m Isaac Saul, and you’re reading Tangle: an independent, ad-free, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum — then “my take.” You can can reach me anytime by replying to this email. If someone forwarded you this email, they’re asking you to sign up. You can do that by clicking here.

Today’s read: 11 minutes.

The Supreme Court’s voting rights battle. Plus, a question about migrant facilities.

Photo: Lauren Shiplett / Flickr

Quick hits.

  1. The Biden administration joined the European Union in leveling sanctions against Russia for detaining and poisoning Russian opposition leader Alexei Navalny. (The Wall Street Journal, subscription)
  2. FBI Director Christopher Wray is testifying before Congress today about the January 6th Capitol riots. (Reuters)
  3. Democratic leaders are debating whether to trim the $400 weekly federal unemployment benefits, which would last until August in the coronavirus relief bill, to $300 and extend them into the fall. (Politico)
  4. Even without a confirmed secretary, Joe Biden’s Interior Department is already moving to advance his climate agenda, especially in restricting gas and oil exploration. (The New York Times, subscription)
  5. The pharmaceutical giant Merck is going to partner with Johnson & Johnson to help ramp up production of its single-shot coronavirus vaccine. (The Washington Post)

What D.C. is talking about.

Voting rights. Today, the Supreme Court will begin hearing arguments in Brnovich v. Democratic National Committee, a case in Arizona that could shape the future of voting rights for decades.

The case challenges two Arizona laws: one that calls for a ballot to be thrown out if it was cast at the wrong precinct, and another that bans the collection and delivery of ballots by third parties (also known as “ballot harvesting,” which is permitted in 24 states and the District of Columbia). The plaintiffs, supported by Democrats, are arguing that these rules discriminate and infringe upon the rights of minorities, especially Native Americans, Black and Latino voters, by making it more difficult for them to vote. The state, supported by Republicans, argues that they are neutral laws that codify reasonable ways to secure elections.

While the case is specific to Arizona, it could have monumental national implications. Up until 2013, the Voting Rights Act required states with a history of discrimination to get permission from the courts or Justice Department before changing its voting rules. This was called a “preclearance test,” dictated by Section 5 of the Voting Rights Act. But the Supreme Court suspended that requirement in 2013 after it ruled that Congress had not properly updated the criteria to determine whether a state was discriminating or not. Without the preclearance requirement, states like Arizona began implementing laws that would have otherwise needed to clear the Justice Department and the courts first.

Now standing in the way of these two Arizona laws is Section 2 of the Voting Rights Act, which says a state cannot pass a law “which results in a denial or abridgment” of the right to vote based on race. In the past, Section 2 has been applied to cases of gerrymandering, or “vote dilution.” This time, the plaintiffs are attempting to apply it to “vote denial.”

Given that the court is expected to interpret Section 2 in this case, its ruling could set up dozens of similar, sweeping rulings across the country, and impact how other states legislate their elections.

“The specific issues in the case are narrow, but to resolve them, the court has to address for the first time a question of major consequence: how the Voting Rights Act should be applied to regulations of the electoral process,” New York University law professor Richard Pildes told The Wall Street Journal. “The way that question is resolved will affect a myriad of election-law issues for years to come.”

This has become increasingly important since the 2020 election. Now, Republican-controlled state legislatures across the U.S. are proposing new voting laws they say will secure elections. Opponents of the laws say they are designed to be restrictive and limit the number of minorities, who predominantly vote with Democrats, casting ballots.

However, these two cases preceded the 2020 election. In 2017, a federal judge ruled in favor of the state, saying the rules were minimally burdensome and did not impact the majority of voters. But the Ninth U.S. Circuit Court of Appeals overturned that decision, siding with the plaintiffs and the Democratic National Committee, which had joined the lawsuit.

There are other voting rights stories right now, too, including the Democrats’ push to pass H.R.1., a federal bill that would substantially update election laws. But today we’re focused on what’s happening at the Supreme Court now.


What the left is saying.

The left is vehemently opposed to these laws, saying they represent an existential threat to minority voters’ ability to participate in the democratic process.

In Slate, David Gans said “state legislatures run by Republicans are engaged in a concerted effort to roll back voting rights, particularly for communities of color,” with “new hurdles to prevent voters of color from fully participating in our democracy.”

“After Shelby County, the Voting Rights Act has been hanging on by a thread,” Gans wrote. “The key to its continuing promise is Section 2’s nationwide ban on electoral practices that result in a denial of equal political opportunity to voters of color. Section 2’s results test is critically important because its plain language targets discriminatory results, not merely purposeful discrimination by state policymakers. It forbids state laws that result in voters of color having ‘less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.’

“Now, in Brnovich, the results test is in the crosshairs. If the court slashes what is left of the Voting Rights Act, states will have the green light to enact new voter suppression measures that make it harder for voters in communities of color to register to vote, cast ballots, and have them be properly counted. As in the aftermath of Shelby County, state voter suppression measures will once again proliferate. One of the most powerful weapons to combat white supremacy and safeguard a participatory democracy will be reduced to a historical relic.”

In The New York Times, Charles Blow warned that voter suppression is “always draped in noble language” and “those who seek to impede others from voting, in some cases to strip them of the right, often say that they are doing so to ensure the sanctity, integrity or purity of the vote.

“However, when the truth is laid bare, the defilement against which they rail is the voting power of the racial minority, the young — in their eyes, naïve and liberally indoctrinated — and the dyed-in-the-wool Democrats,” Blow said, citing 253 proposed bills that would restrict voting access in 43 states. “They can use all manner of euphemism to make it sound honorable, but it is not. This is an electoral fleecing in plain sight, one targeting people of color. We are watching another of history’s racist robberies. It’s grand larceny and, as usual, what is being stolen is power.”


What the right is saying.

The right is hoping the Supreme Court narrows the places that Section 2 can be used, and makes it clear that any discrimination must be proven to be “substantial” for a court to throw out an election security provision.

The Wall Street Journal editorial board said the Supreme Court has a chance to “restore the Voting Rights Act to its original purpose,” noting that Section 2 initially required proving intent, not just outcome, before the law was expanded in the 1980s.

“Congress passed the Voting Rights Act of 1965 to stop states from disenfranchising blacks with underhanded methods like poll taxes and literacy tests,” the board wrote. “But Democrats now argue that any state regulation that makes it a little harder for anyone to vote violates the law—even if it applies equally to minorities and whites. Importantly, the Voting Rights Act (VRA) puts the burden on plaintiffs to show that minorities, based on the ‘totality of circumstances,’ have ‘less opportunity’ than others ‘to participate in the political process and to elect representatives of their choice.’

“Even the Biden Justice Department told the High Court last month that it doesn’t ‘disagree’ with Arizona’s argument that its law is legal under Section 2’s ‘results test.’ The Court is highly likely to agree, and the shrewd liberal Justice Elena Kagan will no doubt tell Chief Justice John Roberts he can get a 9-0 ruling by holding that the Ninth Circuit committed a clear error in overturning the lower court findings of fact,” the board said. “But that would be a lost opportunity…

“Arizona’s election laws are clearly not a violation of Section 2 as a matter of law, and the Court needs to protect state procedures that protect ballot integrity from electioneering lawsuits. But it would be even better if the Court goes further and clearly defines what the language of Section 2 means.”

In SCOTUSblog, Megan A. Larrondo and Robert A. Berry, deputy attorney generals for the state of Idaho, which joined Arizona, said “The court should clarify that, on a Section 2 challenge, the plaintiff must show that (1) the entire voting and registration system provides voters in some protected groups with unequal voting opportunities and (2) the challenged law, not some other factor, causes the unequal opportunity.

“States are the entities entrusted with running elections,” they wrote. “States must be given the space to enact and enforce neutral laws of general applicability to run those elections. The Supreme Court should reject an evidentiary standard that puts a wide swath of state laws at risk and improperly inserts the federal judiciary in the role of micromanager of state electoral systems.”


My take.

Putting aside what the Supreme Court might do, or whether it should rule in a specific way, the central issue here is more straightforward for me: that Arizona’s legislature is implementing these laws in the first place.

At the Supreme Court, Democrats will probably have to prove that the laws Arizona is trying to enact are having a statistical, disproportionately negative impact on minority voters in the context of the election system as a whole. They’ll simultaneously need to win the argument over how Section 2 should apply to those laws. I don’t think their chances are good, and voting rights activists are wise to brace for impact.

But just as Democrats will need to show their work, Republicans should too. That’s why the 2013 ruling, which pared back the Voting Rights Act, has been so destructive.

I’ll be the first to admit that ballot harvesting makes me uncomfortable. The idea of collecting and delivering a group of ballots seems to give at least another opportunity in the chain of custody to commit fraud — and I’m not at all sure how I feel about it as a general idea. About half of the states do not allow ballot harvesting, and Arizona isn’t unique for banning it.

At the same time, if the claim is that ballot harvesting leads to fraud, where’s the evidence? Before the law was passed, USA Today reported that there “has been no evidence or cases linked to fraud related to the collection of ballots.” In a 2016 ruling, Arizona judge William Fletcher said the same: “there is no evidence of any fraud in the long history of third-party ballot collection in Arizona.” I could find just one case of ballot harvesting that Arizona Attorney General Mark Brnovich, who is taking this case to the Supreme Court, prosecuted in 2020. Two women from Yuma were charged with collecting four ballots in the August primary election. They’re now facing two years in jail and a $150,000 fine. This is the monumental threat to election integrity we’re worried about?

Voting in the wrong precinct is a much more open and shut case to me. It should be allowed. Or, at the very least, voters should have a chance to “cure” their ballots if it’s not.

Casting a ballot in the wrong precinct is almost never a sign of fraud, it’s a sign of confusion. And it’s easy to see why: many voters live further away from the precincts they’re supposed to be voting in. Sometimes voters move a few blocks in an urban area and return to the same place they voted last time, only to find out they’re in the wrong place (this has, literally, happened to me). I don’t buy for a moment that throwing those votes out makes our elections more secure.

In Arizona, these challenges are unique. Democrats have rightly argued that minority voters cast a disproportionate number of out-of-precinct ballots. This is because, in Arizona, they are more likely to be low-income and thus more likely to have unstable housing, which means their address changes more often. Similarly, Native Americans and Latinos living in remote places in Arizona had previously leaned on community programs to collect and deliver their ballots (i.e. ballot harvesting).

Given that these voters disproportionately cast ballots for Democrats, and absent any evidence that ballot harvesting or voting in the wrong precinct has opened the door to fraud in Arizona, it’s tough to conclude that this is anything but a cynical attempt by Republicans to preserve power in the state legislature.

If the goal is to shore up election integrity, why not actually shore it up? Build out the infrastructure to track voters who cast ballots out-of-precinct and create non-partisan, government-supported initiatives to ensure voters in remote areas can get their ballots in on time. A legislature honestly invested in election integrity and democratic participation would be pursuing goals like that, not going to the Supreme Court in a fight to throw ballots out and limit the ways voters can deliver their ballots to polling places.

Amidst all this is the reality that Arizona Republicans are trying to thread an uncomfortable needle. They’re simultaneously framing this as a state’s rights argument but also bucking their own secretary of state, Katie Hobbs, who is a Democrat. Of course, Hobbs doesn’t (and shouldn’t) get to overrule the Republican-controlled state legislature, but her dissent on this issue is notable.

She is, by law, the state’s highest-ranking election official. She has testified in court that ballot collection laws, as well as throwing out ballots cast in the wrong precinct, were “certainly meant to disenfranchise voters” and were “unnecessary because voter fraud already is a felony.” She won her election in 2018 running on a campaign to remove “barriers that can make it harder for minorities, seniors and low-income people to vote.” Then she inherited her predecessor’s legal fight that’s currently in front of the Supreme Court.

I have loudly and proudly maintained that the 2020 election was one of the most secure in U.S. history. There were instances of fraud, as there are in any election, but they were few and very far between. The vast majority of ballots were cast by mail, which requires paper ballots and several checks on a voter’s registration, signature, address and identification and are the easiest ballots to verify. In Arizona, this was not a big change from years past — 80% of voters in 2016 cast ballots by mail.

I’m a proponent of securing elections. Adding more checks to the system, insisting on paper ballots that create a reliable trail and creating a central database to track voters across states and precincts would make our elections more secure. I’m also interested in ways to make it easier for more people to vote without sacrificing that integrity. I don’t see how these laws do that. And while protecting them may be a winning case in front of the Supreme Court, the fact the Arizona legislature passed them in the first place is a losing cause for Arizonans and the American public.


Keeping Tangle.

It’s a trying time for the media. There are a lot of people in this space who don’t believe the subscription model can work for journalism long-term, and I’m trying to prove them wrong. Keeping the Tangle newsletter ad-free comes at a substantial cost to me, and means I rely on readers who can afford it to subscribe. Prices are low: $50 a year or $5/month for the standard subscriptions. If you’re not yet a subscriber, please consider becoming one by clicking here.

Your questions, answered.

Q: I identify as a Democrat, but immigration has always been touchy for me. I’m not super well versed on our immigration policies, so maybe it’s just a lack of education, but can you explain to me why these [migrant] facilities are bad? I know this may seem silly, but in my mind, if a child ends up at the border alone, we (U.S. immigration) can’t just send them away, or send them into the U.S. to fend for themselves.

— Hannah, Seattle, Washington

Tangle: Generally speaking, the argument they are bad hinges on three things: 1) asylum law 2) the conditions of the facilities and 3) family separation.

In general terms, American asylum law dictates that anyone arriving at our border can seek asylum here if they qualify as a refugee. Part of that qualification involves reasonable fear about returning home. Since 2004, the vast majority of people who arrive at the border go through expedited removal processes. In that process, they are screened to determine if they have a credible or reasonable fear about returning home, and are then detained until appearing in court, or they’re assigned a court date and released into the U.S., where they often will find friends or family (this is often referred to as “catch and release”).

Opponents of migrant detention facilities generally point to the high rates of return for court appearances as proof that detention is not necessary.

At the same time, Democrats contend that conditions for children at these migrant facilities amount to prison: cold temperatures, lack of clothing, lack of food, lack of education or physical activity, and mistreatment from immigration law enforcement officers have all been documented. Access to the facilities for inspection has at times been limited or outright denied. There is a history of medical abuse and neglect.

Finally, the issue of separation: migrant facilities for children sometimes exclude adults, meaning parents can be separated from their children when they are detained at the border. This was obviously a prominent issue under Trump, but has occurred in other administrations, too.

The case for migrant facilities is basically all of these things inverted: That thousands of migrants are “released” into the U.S. and never show up for court; that facilities are necessary but need better funding to accommodate the migrants; that if we don’t want to house migrants then we can simply deport them or keep them on the Mexican side of the border; and that family separation acts as a deterrent against immigrants attempting to cross the border in the first place.

Personally, I’m not opposed to migrant facilities in principle. I think housing asylum seekers, especially children, is an inherently good thing when they arrive at the border. But I certainly think the facilities need better funding — or perhaps better allocations of funding — to ensure the children are kept in an environment that at least approaches something that’s appropriate for kids. Many facilities, right now, are not meeting that standard.


A story that matters.

New data show that one year into the pandemic, which forced states to revise their revenue forecasts, many of the worst outcomes have not come to fruition. That’s in part due to a $600-a-week federal unemployment supplement, according to a new analysis. But it will hamper the case in the Senate to spend big on filling budget gaps at the state level. “By some measures, the states ended up collecting nearly as much revenue in 2020 as they did in 2019,” The New York Times reports. “A J.P. Morgan survey called 2020 “virtually flat” with 2019, based on the 47 states that report their tax revenues every month, or all except Alaska, Oregon and Wyoming.” Total state revenues were down just 1.8% from April to December this year compared to 2019.


Numbers.

  • -42.5%. The change in state tax revenue in Alaska from April to December of 2020, the worst of any state in America.
  • +10.4%.The change in state tax revenue in Idaho from April to December of 2020, the best of any state in America.
  • -1.8%. The total change in state tax revenue for all states from April to December of 2020.
  • 64%. The percentage of respondents who said they thought cancel culture posed a threat to freedom in the U.S., according to a Harvard CAPS-Harris poll.
  • 48,092.The estimated number of new coronavirus cases in the U.S. on Monday.
  • 1,241. The estimated number of coronavirus deaths in the U.S. on Monday.

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Have a nice day.

A New Jersey plumber drove 22 hours to Texas to help people who were overwhelmed by the winter storm. Andrew Mitchell, along with his wife, 2-year-old son and apprentice, packed $2,000 of equipment into his car and took off for Texas to help out. “A lot of the people we’ve helped were telling us they either can’t get a plumber on the phone or—if they do get one on the phone—the wait to be serviced is three to four weeks out, so they can’t have water during that entire time,” his wife Kisha told the BBC. Mitchell first stopped at his sister-in-law’s home, then worked out from there, servicing 6 to 10 houses a day for more than a week. (BBC News)

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Isaac Saul

I'm a politics reporter who grew up in Buck County, PA — one of the most politically divisive counties in America. I'm trying to fix the way we consume political news.

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