Courthouse Steps Oral Argument Teleforum: Brnovich v. Democratic National Committee

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In Brnovich v. Democratic National Committee and the consolidated case of Arizona Republican Party v. Democratic National Committee, the Supreme Court will address issues raised under Section 2 of the Voting Rights Act and the Fifteenth Amendment. Under Section 2, which restates and expands the protections of the Fifteenth Amendment, "no voting qualification or prerequisite to voting or standard, practice or procedure” may be imposed in a manner that is intentionally discriminatory or has a disparate impact on a racial or language minority.  

In this case, the DNC challenged two of Arizona’s voting procedures: discarding out-of-precinct provisional votes where the ballot itself was filled out properly and disallowing third parties to collect and deliver completed vote-by-mail ballots. The DNC argued the provisional ballot rule has a disparate impact on African American, Native American, and Hispanic citizens and the ban on third party delivery was enacted with discriminatory intent. On appeal, the Arizona Republican Party challenges the Ninth Circuit’s finding of discriminatory intent and argues that race neutral and generally applicable voting laws which offer all citizens an equal opportunity to vote do not violate Section 2. Although Arizona won at the District Court level and a three judge panel of the Ninth Circuit affirmed, the Ninth Circuit reheard en banc and reversed, finding the District Court clearly erred. 

 

Featuring: 

 

Professor Derek Muller, Professor of Law at the University of Iowa College of Law 

 

This call is open to the public - please dial 888-752-3232 to join.

Event Transcript

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Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at fedsoc.org.

 

Evelyn Hildebrand:  Welcome to The Federalist Society's Teleforum conference call. This afternoon, March 2nd, we discuss the Supreme Court's oral argument in Brnovich v. Democratic National Committee. My name is Evelyn Hildebrand, and I am Associate Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the expert on today's call.

 

      Today we are fortunate to have with us Professor Derek Muller. Professor Muller is a Professor of Law at the University of Iowa College of Law where his research and writing focuses on election law, particularly federalism and the role of states in the administration of elections.

 

      After our speaker gives his opening remarks, we will turn to you, the audience, for questions. So be thinking of those as we go along and have them in mind for when we get to that portion of the call.

 

      With that, thank you for being with us today. And Professor Muller, the floor is yours.

 

Prof. Derek Muller:  Well, thank you so much for having me today. The Supreme Court heard its argument in Brnovich v. DNC and this is a case that's been bubbling up in the lower courts and didn't really have an effect on this presidential election, but understandably, all election laws have been drawing significant renewed attention. And every four years, it seems like we see more and more litigation over them.

 

      So Arizona had a couple of statutes on its books that were challenged by the Democratic National Committee. One was a long-standing statute prohibiting out-of-precinct ballots from being counted. If you cast your ballot in the wrong precinct, they would, although they cast a provisional ballot, they take a look at it and determine whether or not you were actually erroneously excluded from that precinct.

 

      But if you're in the wrong precinct, they don't count the ballot. And the DNC said well, this is -- this violates Section 2 of the Voting Rights Act. It disproportionately and adversely affects minority voters who are more likely to cast their ballots outside of the precinct. You should, at the very least, count things like state-wide offices on that ballot, even if they're in the wrong precinct, if they're otherwise eligible voters.

 

      Additionally, there was a new statute passed a few years ago in Arizona to ban ballot harvesting, or third-party collection of ballots. That is that the opportunity for other individuals, apart from you or your immediate family, county workers, or postal workers from collecting your ballot. And concerns about voter intimidation, ballot fraud, all those kinds of things. So this was enacted in Arizona and there was a challenge to that statute, too, saying we can identify some of the racially tinged statements of a member of the legislature. We have a video showing some racially tinged commentary about the defense of this ballot harvesting ban.

 

      Additionally, we know that Native American voters and Hispanics voters are more likely to rely on third parties to carry their ballots on their behalf, the mail is much more difficult to obtain in portions of tribal reservations in Arizona. So this also provides a discriminatory burden.     

     

      When the State of Arizona was defending both these statutes, again under Section 2 of the Voting Rights Act, one of the great challenges over the last decade, I would say, is that the courts -- the lower courts have been struggling to think about how to apply this provision of the Voting Rights Act when it comes to vote denial claims.

 

      That is, for a long time, Section 2 of the Voting Rights Act, starting with amendments enacted in the 1980s, has been used principally as a basis to ensure that minority voters have the opportunity to elect the preferred candidate of their choice. What that usually translates into is in redistricting ensuring there are districts in which there are a sufficient number of minority voters who are able to elect the candidate of their choice, and vote dilution claims, if you will.

 

      If there is a district with -- a couple of districts that have black voters spread out among them where their preferences are overwhelmed by white voters choices, oftentimes a court will look and determine whether or not to draw a district to provide those black voters with a district to elect a preferred candidate of their choice.

 

      But unfortunately Section 2 of the Voting Rights Act is not the clearest in language. It provides that if under the totality of the circumstances the political processes leading up to the election in the state are not equally open to the participation by members of a class of citizens, protected by subsection A—that is about providing the right to vote regardless of race or color—and as members have less opportunity than other members of the electorate to participate in the political process and to elect the representatives of their choice.

 

      So Arizona depends on these statutes to say these are, if you will, equal opportunity statutes. They treat all voters the same. Everyone has the opportunity and it's actually an error to look at each one of these provisions separately. You should be looking at the total suite of voting opportunities available to voters.

 

      You should be looking at the fact that it's not just whether or not you can have a third-party collector ballot or voting out of precinct. You should look at all of the many other voting opportunities:  in-person voting, early voting, absentee voting, all the variety and suite of opportunities available to you. And because of that, these opportunities are available to everyone. And we shouldn't really focus on the fact that it might inconvenience some subgroup of voters, particularly when it comes to out-of-precinct voting, it was less than one percent, if not less than 1500th of a percent of voters who had difficulty with the out-of-precinct voting policy.

 

      So in contrast, the Democratic National Committee was focused principally looking at the results. And that is, if you can show some statistical disparity between populations of voters, and we are unable to sort of -- we can establish that those disparities exist and interact with some historic socioeconomic conditions along with the history of, perhaps, racial discrimination in the state, and other factors, then we can say that these kinds of procedures are improper. That they result in certain protected classes of individuals from being able to equally participate in the political process.

 

      And I would say that, as the argument went on today, there was a lot of discussion about should the focus really be on the opportunity and what that means? Should the focus really be on the results and what that means? And how do we assess it?

 

      At the district court level, the district court, after a 10-day trial concluded that despite the fact that there were some of these instances of racial overtones from at least one legislator, and perhaps elsewhere in the record, that there was no finding of intentional discrimination and finding that neither of these policies violated Section 2 of the Voting Rights Act.

 

      When it's appealed to the Eighth Circuit, the panel of the Eighth Circuit agreed. But then it went before an en banc panel of the Ninth Circuit, which reversed and found intentional discrimination on the part of the Arizona legislature, in addition to finding that both of these policies improperly abridged the right of minority voters to participate in political process.

 

      The opinion sort of sweeps back to the Treaty of Guadalupe Hidalgo and traces forward for over 150 years of Arizonan history to explain why this policy was discriminatory and disproportionately affected minority voters.

 

      So for the Supreme Court, there is a sense in which there's this finding of intentional racial discrimination on the part of the Arizona legislature that got some attention from members of the Court. And in particular, how are we supposed to assess, if we have on the record, one member of the legislature, how do we assess his statements? How do we attribute them to the remainder of the legislature? And Chief Justice Roberts, in particular, was concerned about this kind of assessment.

 

      The Ninth Circuit had something of, if you will, a cat's paw theory, where, in the old story where the monkey instructs the cat to get the chestnuts out of the fire, it's the cat that actually burns his hand, but the monkey is really the one responsible. The argument being, if there's one legislator that is essentially providing these racially tinged statements, those can be attributed to the entirety of the legislature. Chief Justice Roberts was pretty strongly against -- inclined against that kind of imputation of intent to the entirety of the legislature.

 

      But there was a number of sort of back and forth among some of the justices about evaluating the Arlington Heights factors. About evaluating whether or not it’s a factor and how significant it is among the remainder of the decision-making process that occurred. So there was that intentional discrimination claim.

 

      But then, again, the heart of the matter was really looking at sort of how to examine a Section 2 claim under the Voting Rights Act and how to make this assessment, given that the language is not the most clear. And I think it was Justice Kavanaugh who, late in the argument, was really emphasizing that it didn't feel like the parties, at least in argument, were really sticking to a pure equal opportunity side of things versus a pure results side of thing.

 

      There was some suggestion about some sort of intermediate position and figuring out what that looks like. That is, if you can show some sort of result of a substantial or significant—and you know adjectives and adverbs like this were thrown about at that argument today—some sort of substantial discriminatory impact on racial minorities, then the question is, what do you do with that? If it looks like there's something in the effects, in the outcome.

     

      The statute doesn't speak in terms of intent. It just talks about equal opportunity. Does the state need to come forward with some evidence, then, to explain why it has done so? And if so, what are some of those, again in the words of the statute, “the totality of the circumstances” that would allow a state to defend the practice of policy? Is it concerns about fraud? Is it just sound election administration?

 

      A couple of notions that Justice Kavanaugh gravitated toward were saying, if this is a policy recommended by a bipartisan commission -- for instance, Jimmy Carter and James Baker had a bipartisan commission 15 years ago advocating for ending ballot harvesting in the United States, allowing immediate family members, and household members, and postal workers to carry your ballot, but not allowing third parties who could otherwise intimidate you. So that, in his view, would be a good circumstance that would justify Arizona's policy. Or if there are common-place practices in other states, like out-of-precinct voting prohibitions.

 

      And the Democratic National Committee pushed back to say, look Arizona doesn't -- not ever county uses a precinct-based system. Some have vote centers. And the Carter-Baker Commission was not something the Arizona legislature relied upon, so we shouldn't be using those kinds of factors. But I think there's no question that there were concerns among the justices as they were offering hypotheticals about how are we supposed to assess a poll closing at 7 p.m. and the effect that it has on voters. Real worries about thinking about how some of these rules would essentially invite litigation almost anywhere in the country to the extent that they could be shown to have any kind of disparate impact on some set of voters.

 

      There were a number of hypotheticals that were raised at various points throughout the argument that, I think, really tested the parties in some respects. One is Justice Kagan offered some hypotheticals about, suppose there's a country club that puts all of its polling -- or that all of the polling places are put in country clubs in the states. And we know that black voters have to drive 10 times as far to places that are traditionally hostile toward black voters. And for the Republican Party, there was a suggestion, yeah it was in fact -- that might actually be less of an opportunity, even though it's a facially neutral rule.

 

      Justice Barrett later in the argument said, well, then it seems like you're putting work on opportunity here, then right. Because it does seem like we're talking about outcomes in these cases. It seems like if you're saying there's some notable difference, and we're supposed to take demographic differences into account, it does seem like opportunity is doing a little bit more work here than you let on by just saying there's equality in treatment at the front end.

 

      On the other side, when challenging the Democratic position, Justice Alito offered some hypotheticals to try to figure out what this would look like, applying it to some rules. When it came to something like, suppose that there's a challenge to a voting policy where there's two weeks of early voting and someone wants it to become 60 days of early voting. And we have some evidence of disparate fact on minority voters. Or suppose ballots are supposed to be received within three days after the election, but someone is able to challenge to say they should really come in one week after the election.

 

      The responses were, again, not very persuasive, in saying statistical disparities alone are not enough. We have to look at socioeconomic factors. I don't think that gave much comfort to Justice Alito. If that's what the evidence shows, then it would suggest that there's -- essentially plaintiffs would always be able to find a population that could be adversely affected by an existing law. And then bring in a challenge to potentially sweep in every kind of election law.

 

      So late in the argument, Justice Kagan suggested it was not clear how much daylight there was between the two parties. But undoubtedly, there was some question about, first, what is that position in between equal opportunity at the front end, facially neutral laws that appear equally open to everyone, versus the backend of a peer result test. Any statute that has any disparate impact on some subpopulation on the basis of race or color.

 

      And given that, there was, I think, some effort on the Court to figure out what kind of evidence would the state have to put forward that would therefore justify its position? Or how often should it have to be dragged into court to demonstrate that?

 

      A couple of last points, and then I look forward to your questions, because again, I think there was a lot of uncertainty going forward, and a lot of freewheeling opportunity for the Court to think about how these things work.

 

      One is, Justice Barrett and others had mentioned about this concerned thinking about, what's an inconvenience in voting versus a burden in voting. And this came out also early in the argument from Michael Carvin and others to suggest that we need to think about the ordinary burdens of voting, as you might say in the case like Crawford v. Marion County, the voter identification case. Where that is, there are just certain things you have to affirmatively do. You have to go register. Or you have to go request a ballot. Or you have to fill out the ballot. You have to do things.

 

      There is a notion that there's some ordinariness to these election laws and figuring out where that threshold resides. And I think it was Justice Breyer who laid in the arguments and really emphasized that he was concerned about some kind of test where we're worried about chance disparities between racial populations. And so he really wanted to emphasize language like significant difference in minority populations and their ability to participate in the political process.

 

      So I think, overall, I think the parties were struggling figuring out how to identify the outer bounds of some of the arguments that the Court's raising.  On the one hand, Democratic National Committee, as respondents here, they didn't want to suggest that every election law was going to be subject to litigation and potentially ripe for review if you're able to demonstrate some socioeconomic disparities. At the same time, I'm not sure that they appeased the fears of many on the Court about that finding.

 

      On the flip side, I think the petitioners, State of Arizona, wanted to recognize that there are kinds of rules that can significantly adversely affect certain minority populations in voting without conceding that everything should be called into question and figuring out, at what point have we said there's a lack of opportunity at the outset?

 

      So I think this is a challenge, thinking about that sort of middle line and how to put a cognizable test from the Supreme Court to the lower courts that is going to be administrable, that's going to adhere even loosely to the opportunity language within the Voting Rights Act, while at the same time not calling into question the vast majority of election laws in the United States. Especially those, like the out-of-precinct policy in Arizona, that have been around for quite some time.

 

      So that's Brnovich. I think it's anyone's guess about how the Supreme Court comes out here. But I sort of hold off to see -- oral argument is one thing. And putting pen to paper is another. But with that, I look forward to any questions you might have.

 

Evelyn Hildebrand:  Great, thank you so much. We'll now go to audience questions. And with that, we'll turn to our first caller in the queue.

 

Dan Warnock (sp):  Thank you. Sir, this is Dan Warnock from the American Civil Rights Project and I know that you mentioned that the Court, I think you said specifically the Chief was very -- seemed concerned by a -- by the potential use of legislative history and specifically, these racial comments by a particular member and imputing them to the rest of the membership of the legislature. I can't help noticing that a good deal of the party's arguments seem to have centered on the presence of socioeconomic disparities and history, none of which is actually in the Voting Rights Act. All of which comes from the Voting Rights Act legislative history and specifically from the Committee Report. And I guess I wonder, was there any skepticism expressed over reliance on that to distinguish what minority populations will be protected and what minority populations will not?

 

Prof. Derek Muller:  Great, there's a lot there. I think there's a couple components to think about. One is on the legislative intent side. So it's tricky because there's sort of legislative intent as a motivator for -- or an impetus for enacting legislation. And legislative intent as a means of interpreting a statute. And so there's no question that these are both questions of legislative intent. But as the former, that was one of the things that really drove the Ninth Circuit's finding. And frankly, I'm not sure there's much appetite on the Supreme Court to say that Arizona was intentionally racially discriminatory in this decision.

 

      And I think it was Chief Justice Roberts who was very skeptical about imputing the actions of one legislature to the rest of the legislature. Justice Thomas was also concerned about this theory that the Ninth Circuit adopted. So that's on sort of one side.

 

      On the other side, as you point out, one of the famous things that has come out of Section 2 of the Voting Rights Act and the interpretation of the Supreme Court in Thornburg v. Gingles, the case that essentially established some of the vote dilution tests for determining whether or not the draw majority minority district is a series of factors that comes from a Senate report, deep, deep legislative intent here, that courts are supposed to consider to determine whether or not the circumstances suggest that there's racial polarization in the electorate. Or how we go about assessing whether or not that a particular minority group has been burdened, in terms of the opportunity to participate in the political process.

 

      And some of those factors were raised at argument today, including the fact that we're supposed to look at some of the statements of the legislature. But there wasn't a whole lot of pushback from the members of the Court about this. I think part of it stems from the fact that you do have this language in the Voting Rights Act that talks about, based on the totality of the circumstances. And given that the totality of the circumstances is just there, as a number of circumstances can, Justice Kavanaugh was suggesting a couple of circumstances that he thought in his view would be useful consideration.

 

      The fact that there are these subfactors to consider, the including socioeconomic disparities, has not, I think, been overly controversial from courts. Just if they're deciding to make up totality of the circumstances anyway, why not look at some of the things that the Senate might have done, as much as anything a court might determine is a relevant circumstance.

 

      And I think occasionally saw in the Court today some pushback about how we're supposed to think about those circumstances. Again, I think Justice Kavanaugh was emphasizing more the concern about what other states have done. Or whether or not there's some widespread practice or justification for it.

 

      On the flip side, Michael Carvin was pressing back on the use of socioeconomic status to suggest, you know, I think there's a concern here that socioeconomic status becomes ubiquitous and it sort of binds all state decision making going forward, because socioeconomic status is always going to be something that states can look to to identify racial disparities.

 

      Some members of the Court, I think, had expressed some skepticism when the DNC had suggested use of socioeconomic status as this additional factor beyond just disparity. But I think there's just a question about how much independent work socioeconomic status is doing. And so if there's not a whole lot of independent work it's doing, if it's largely overlapping with race, I think it's going to make some members of the Court uncomfortable of using it.

 

      But that said, there wasn't significant interest from the Court in revisiting some of these Senate factors, or there wasn't a whole lot of emphasis to discuss what socioeconomic status looked like, at least from the eyes of the justices.

 

Evelyn Hildebrand:   Great, thank you. And we'll now move to our next caller.

 

Carlos:  Thank you. So from the academic side—Carlos from the University of Chicago—can you talk a little bit more about what were the Court's perspective from kind of the statistical matters and the technical side of determining, I think what you referred to as, the factual basis? And the academic literature being what it is? And did they give us some clear direction there on methods? Thank you.

 

Prof. Derek Muller:   Yeah, so they didn't offer a whole lot. I'll give you a couple of ways that the Court thought about it.

 

      So one was, Justice Thomas at one point in the argument, pressed about the percentage of voters who were affected by the out-of-precinct policy, for instance. And the state sort of conceded, well, it's less than one percent, but just because it's a small number doesn't mean it's something that's somehow exempted from protection. And attorney for Brnovich mentioned, I think there were 4,000 ballots that were affected by the out-of-precinct policy in the last election, which when you consider the size of Arizona, is a very small figure.

 

      And then at other points in time, there were suggestions that it was black voters or minority voters to be affected at a rate of 2:1 that were affected by the outside precinct policies. So at least you could say there's some disparity. But when it's a few thousand, how are we supposed to assess that in the overall scheme of things.

 

      Additionally, Justice Kagan pressed repeatedly on a series of arguments where she talked about black voters that would be affected at 10 times the rate of white voters, that would disproportionately affect them at 10X factor, essentially.

 

      The Court had sort of moved around on some of these idea about, like are we supposed to be looking for some sort of threshold? Like what is the size -- is it the raw numbers that we're concerned about too? Again Justice Thomas suggested that there might need to be some minimum threshold of a number of voters that would be adversely affected. Do we care about the quantity and the difference between the two groups? Again, the existing record is maybe 2:1, or other places in the record that didn't come out at oral argument that might have been 4:1, but very small, low overall percentages.

 

      Justice Kagan was looking at, again, 10-times factors. And Justice Breyer was using words like significant to try to figure out if there's some sort of standard that moves beyond. But there wasn't a whole lot of this -- I mean, there were no regression fallacies coming from the Supreme Court at oral argument. There were no -- I think the language out of the Court's partisan gerrymandering cases has made it clear that they're much less interested in providing that kind of guidance to the courts below. So there wasn't a whole lot, except some of those things that I've mentioned.

 

Carlos:  Thank you.

 

Evelyn Hildebrand:   Great, thank you. And while we're waiting for additional questions, I'd like to ask you, Professor Muller, if you know of cases that are in the wings that might be affected one way or another by the Supreme Court's decision when it comes down?

 

Prof. Derek Muller:   So I have to kind of go back and figure out where some of these things are. I think there's no question that some of the voter identification cases—I'm trying to figure out which ones are in preliminary injunction mode and which ones are at the en banc mode—are some of the ones that I would be thinking about.

 

      But this is sort of the principle Section 2 case, at least, that's come up in recent years. Some of the older ones, like Texas's voter identification law, and Veasey and Lee—the Fourth Circuit case involving voter identification case—there are some of these that have happened in the past. And I don't -- I'm just trying to think offhand about which one of those are sort of still in the queue.

 

      The 2020 election yielded far more questions about what we might describe as some of the non-racial concerns about voting practices, particularly in light of COVID. And lower courts were very inclined to use what we refer to as the Anderson Balancing Test from a line of cases preceding, but also after the Supreme Court's decision in 1983, where it sort of examines the character and magnitude of the burden on the right to vote with the state's justification.

 

      So there have been a lot of cases that have come out of the lower courts in the last year dealing with these questions, and many of them on a preliminary basis. But the Section 2 cases have not attracted nearly as much attention, at least from my recollection, in the last year. And so we're sort of waiting, I think, to see how this case comes out for the decision about how plaintiffs are going to proceed in future cases. And again, maybe some of those other ones, voter I.D. cases, are sort of churning around in the lower courts. And we'll see how they'll come out.

 

Evelyn Hildebrand:  Great. Were there any surprises that you can think of that you expected the justices to focus on and they didn't, or the other way around in oral argument today?

 

Prof. Derek Muller:   Yeah, I mean I was a little surprised there wasn't more attention paid to the intentional discrimination finding, which I thought might have been a clean opportunity for the Court to send this back. But instead, I think this really is the Court really grappling with how to provide some guidance to lower courts on a Section 2 claim in general, when it comes to vote denial questions. Someone who claims that they are unable to vote because of a voting regulation and how we think about that when it comes to race.

 

      So it's undoubtedly a significant case. It's going to be as significant, I think, as Thornburg v. Gingles was in 1986, so it established a test for how to do vote dilution claims under Section 2 of the Voting Rights Act.

 

      There wasn't a whole lot of discussion about the constitutionality or authority of Congress to enact this provision. Instead, it seemed much more like the justices were trying to grope around to find the appropriate kind of test that could be administered.

     

      So I do think we're going to see -- before argument, I wasn't necessarily sure how the Court was going to go. If it was going to find a way to punk this case. But I'm increasingly convinced that I think the Court is going to try to come up with some kind of standard that it believes will be administrable for lower courts that will not call into question every kind of election rule in figuring out how to write that and provide guidance going forward.

 

Evelyn Hildebrand:  And then this is not to exactly put you on the spot, but if you had gaze into your crystal ball, what would your speculation be?

 

Prof. Derek Muller:  Well, that's a foolish effort now. There's no question. I mean I do think the Court is not going to stick with solely some sort of equal opportunity if you will. I think they're willing to look at disparate impact, disparate effect in some respect.

 

      But I don't think it's going to be some kind of test that Justice Breyer, in particular, was suggesting, maybe we can graft on a civil rights kind of framework onto what the courts are doing here. Instead, I think it's trying to figure out what kind, like what quantum discriminatory impact is going to be sufficient to give rise to a claim here. And then saying, well, what's the states justification? I think probably providing a relative low barrier, at least to the extent that it's a practice that has long been on the books, or widely adopted by other states, or recognized as acceptable.

 

      My sense is the Court is not going to compel the state to make a state-specific justification. It will be able to draw upon more generic evidence, which is consistent with how the Court did the voter I.D. case in Crawford v. Marion County and other kinds of election cases to speak. It's a more general justification.

 

      So that would be my rough guess about how it comes out. And I think that means Arizona doesn’t get everything it wants, but it's probably going to put Arizona in a much better position when the case is sent back to the Ninth Circuit in a way that would likely win, would be my guess.

 

Evelyn Hildebrand:  That's a good guess. All right, we'll move to the next caller.

 

Caller 3:  Thank you very much again for your insights. I have a quick follow up. So here's a question. Anything on cost-benefit analysis, causality, data driven policymaking, any kind of quantitative type approaches, broadly speaking were mentioned? You mentioned significant. So is it fair to imply statistical significance? At this point, it may be reading tea leaves because maybe that's all they said. But did you see any overall trend on concrete mentions of methodology, or there were a lot more worried about the gross quantitative measures? Thank you.

 

Prof. Derek Muller:  Yeah, no I think they definitely did not talk about any of the data driven kinds of questions that you've eluded to. I think some of the questions talked about were conceded statistical disparity. Or talked about, how do we handle statistical disparity?

 

      And I think Justice Alito was pushing to say, let's assume we can find statistical disparity, he would suggest things like that. And again, I think the respondents emphasized, well, statistical disparity is not enough. We're also looking at some of the past reality and how it interacts with a socioeconomic status of others. Again, I think the petitioners would push back to say, well, there's always going to be that socioeconomic evidence that you can put forward, therefore any statistical disparity is always going to be enough to win on this claim.

 

      But speaking generally, they sort of spoke at a level to concede that there were going to be statistical differences. And again, I think you're right to say when Justice Breyer emphasizes he wants to find some quantum that gets beyond de minimus, was another word used at times, to suggest that there are these things that might be random or attributable to chance, find something that's a little bit farther.

 

      So there is some suggestion. But again, I think the Court is very reluctant to put some kind of standard deviation model into thinking about how we're supposed to think about disparities here. I think the Court doesn't want to read into the statute these kinds of strict rules that might not otherwise exist. And so it did tend to speak more generally in terms of statistical differences rather than any particular measure.

 

Caller 3:  So fair to say quantification is useful, but not determinate.

 

Prof. Derek Muller:  Yes, I would say that's fair.

 

Caller 3:  Thank you.

 

Evelyn Hildebrand:  Great, thank you. And at this point, I would just hand the floor back over to you to make any closing remarks that you would like to make.

 

Prof. Derek Muller:  Well, thank you. Well like I said, I think my assumption is Arizona wins and it'll be sent back with a win. I think the question is more about how it's going to look. And I think the Court is genuinely trying to figure out how to flesh out what is ambiguous language best from the Voting Rights Act and figuring out how to provide some sort of application to lower courts moving forward. So it's going to be a wait and see. I would not expect this one until late June. And yeah, we shall see what the Court does with this case.

 

Evelyn Hildebrand:  Wonderful. On behalf of The Federalist Society, I want to thank our expert for the benefit of his valuable time and expertise today. And I want to thank our audience for calling in and participating. We welcome listener feedback by email at info@fed-soc.org. As always, keep an eye on our website and your emails for announcements about upcoming teleforum calls and virtual events. Thank you all for joining us today. We are adjourned.

 

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