by Mitch Kokai
Senior Political Analyst, John Locke Foundation
The Supreme Court’s decision upholding two Arizona voting provisions has brought a sharp rebuke from the White House. Joe Biden issued a statement that begins, “I am deeply disappointed in today’s decision by the United States Supreme Court that undercuts the Voting Rights Act, and upholds what Justice Kagan called ‘a significant race-based disparity in voting opportunities.’”
The Department of Justice issued a separate statement on the decision. It promises that “the Department of Justice will never stop working to protect the democracy to which all Americans are entitled,” and urges Congress to “enact additional legislation to provide more effective protection for every American’s right to vote.”
I would call Biden and his DOJ sore losers, except that the administration didn’t lose this case. In a letter to the Supreme Court, the Biden Justice Department told the Justices it did not disagree with its prior conclusion, set forth in a brief by the Trump DOJ, that the two provisions of Arizona law at issue do not violate Section 2 of the Voting Rights Act.
Strictly speaking, there is no inconsistency between the DOJ’s agreement that the Arizona provisions are lawful and Biden’s disappointment with the Court’s decision. The majority opinion didn’t just uphold Arizona law, it also discussed the circumstances under which Section 2 challenges to “time, place, manner” restrictions on voting will be upheld. Clearly, Team Biden is not on board with that discussion.
But Biden didn’t just express disappointment with the majority’s reasoning. He agreed with Justice Kagan’s complaint in dissent that the Court’s decision upheld “a significant race-based disparity in voting opportunities.”
If that’s what Team Biden believes, why did it tell the Court when the case was pending that the two provisions under challenge don’t violate the law?