The Supreme Court officially begins its new term on Monday, but the unofficial start to the term came on Friday morning, when the justices issued an initial set of orders from their “long” conference – the first conference since mid-July, when they began their summer recess. The justices granted seven new cases, for a total of four hours of additional argument time.
Perhaps the most significant grant of the day came in two cases that will be argued together: Arizona Republican Party v. Democratic National Committee and Brnovich v. Democratic National Committee. The justices will weigh in on a four-year legal battle over an Arizona policy that requires voters who vote in person to use their assigned precincts (or their provisional ballots will not be counted) and a state law that bars “ballot harvesting” – the collection and return of mail-in ballots by someone other than a voter’s caregiver, family member, mail carrier or an election official. The Democratic National Committee challenged both the law and the policy in federal court. The DNC argued that they violated Section 2 of the Voting Rights Act, which bars racial discrimination in voting. The full U.S. Court of Appeals for the 9th Circuit agreed with the DNC. It ruled that because racial minorities disproportionately use ballot harvesting and vote outside of their precincts, Section 2 forbids the state from eliminating those practices.
Both the Arizona Republican Party and Mark Brnovich, the state’s Republican attorney general, asked the Supreme Court to review the 9th Circuit’s decision. Brnovich stressed that the bans on both out-of-precinct voting and ballot harvesting are “commonplace” practices “used by Arizona and dozens of other States” to prevent election fraud, while the Republican Party added that such policies are “race-neutral and offer all voters an equal opportunity to vote.” The 9th Circuit’s “sweeping view” of Section 2, the party added, “threatens virtually all ordinary election rules.”
The DNC urged the justices to stay out of the dispute, emphasizing that Arizona’s ban on counting out-of-precinct votes “disenfranchises minority voters twice as often as non-Hispanic whites.” The DNC characterized the 9th Circuit’s ruling as limited, telling the justices that the court of appeals did not hold that the state violates Section 2 whenever a voting policy or practice affects minority voters. Katie Hobbs, Arizona’s Democratic secretary of state, added that the 9th Circuit simply applied the “well-established” test for determining whether a policy violates Section 2. The Republicans’ real quibble, Hobbs suggested, is with the text of Section 2 itself. And in any event, Hobbs continued, this case is a poor one in which to consider the questions that the challengers raise: The Arizona Republican Party, she argued, lacks a legal right to appeal because it is not required to do anything as a result of the lower court’s ruling, and under Arizona law, Brnovich cannot appeal on Hobbs’ behalf when she does not want to.
Friday’s announcement that the justices will take up the case means that the state’s ban on out-of-precinct voting and ballot harvesting will remain in effect through the Nov. 3 election. That’s because the 9th Circuit put its ruling on hold while the Republican Party and Brnovich went to the Supreme Court.
Edward Foley, an election-law expert at Ohio State University’s Moritz College of Law, called the decision to grant review highly significant, not only for election law generally but also for emergency election-law appeals that could come to the Supreme Court in the weeks leading up to next month’s election. The case gives the justices an opportunity to clarify two areas of uncertainty in voting law: how to weigh the burdens that a state imposes on voting against the benefits of a practice for the state (a doctrine known as Anderson-Burdick balancing) and whether Section 2 applies to the denial of votes, rather than redistricting cases. The grant of review also suggests, Foley said, that if emergency appeals involving Anderson-Burdick balancing or Section 2 come to the Supreme Court, they are likely to be resolved in favor of the state, because the justices clearly regard the questions as worthy of their attention – a major factor in determining whether to grant a stay.
Another pair of consolidated cases, National Association of Broadcasters v. Prometheus Radio Project and Federal Communications Commission v. Prometheus Radio Project, challenges a ruling by the U.S. Court of Appeals for the 3rd Circuit that blocked changes by the FCC to media ownership rules – for example, the commission’s repeal of restrictions on common ownership of newspapers and broadcast stations in the same market. The broadcasters association told the justices that although the FCC had “modified or eliminated a number of decades-old ownership rules that substantial competitive changes in the media marketplace had rendered unnecessary,” the 3rd Circuit vacated those changes because it believed that the FCC did not sufficiently consider the changes’ effect on minority and female ownership.
The Prometheus Radio Project, a nonprofit that advocates on behalf of community radio stations, urged the justices to stay out of the dispute. It argued that the court of appeals “correctly applied settled principles of administrative law to a particular administrative record” and concluded that the FCC had simply failed to explain show the changes would affect “its own long-standing policy goal.” However, the justices on Friday granted review, setting the case for one hour of oral argument.
The justices granted review in three other cases. In Barr v. Dai and Barr v. Alcaraz-Enriquez, which were consolidated for one hour of oral argument, the justices will consider whether a court of appeals can presume that an immigrant’s testimony is credible and true if an immigration judge or the Board of Immigration Appeals did not specifically find that he was not credible. And in BP P.L.C. v. Mayor and Council of the City of Baltimore, the justices will consider a procedural question arising out of the city’s climate-change lawsuit against oil and gas companies – specifically, whether federal law allows a court of appeals to review any issue included in a district court’s order sending a case to state court when the move to state court is based on two statutes, or whether the court of appeals can only review the ground for removal itself.
Although the Friday order list did not say so explicitly, it marked a melancholy milestone: With the death of Justice Ruth Bader Ginsburg on Sept. 18, only eight justices participated in the conference that yielded these orders (Justice Samuel Alito is recused from the BP case). The cases granted Friday are likely to be argued sometime early next year, at which point the White House and Senate Republicans hope the court will have returned to its full complement of nine justices.
This post is also published on SCOTUSblog.