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Voting Rights

Ken Bennett

This article was produced by Voting Booth, a project of the Independent Media Institute.

Ken Bennett, the Arizona State Senate's liaison to its review of 2020's presidential election ballots, threatened to resign from that post live on conservative talk radio on Monday, saying that Cyber Ninjas, the Senate's pro-Trump contractors, have concealed their results from him for months and could even be manipulating audit data.

"I cannot be part of a process that I am kept out of critical aspects," Bennett told James T. Harris, host of The Conservative Circus on Phoenix's KFYI. "The reason that I am that close to stepping down as liaison is that I cannot be part of a process that I am kept out of critical aspects along the way that make the audit legitimate."

Bennett, a conservative Republican and former Arizona secretary of state, has been an accountant outside of politics. While he cited problems with Maricopa County's handling of ballots, Bennett said that the Cyber Ninjas might be covering up mistakes made in the review's earlier stages by falsifying data.

"We have to be very careful that the third count [of the total number of ballots] is, of course, independent from the Cyber Ninjas' second [hand] count [of presidential votes]," he said. "We have to make sure that we are not force-balancing to their numbers or giving them something too early to allow them to force-balance back to our numbers."

"When I asked Mr. [Randy] Pollen, [former Arizona Republican Party chair] what are the procedures for us to do this third count, so that we can make sure that we are independent from the second count, and he refused to tell me, I became very concerned that there would be this forced balancing going on," Bennett said.

The tension between Bennett's role as the Senate's liaison and the pro-Trump contractors has been simmering for months. While the Senate's review has been widely criticized as a pro-Trump propaganda exercise to perpetuate the "big lie" that Joe Biden was not legitimately elected, many Republicans who voted for Trump have been awaiting Bennett's assessment as a trusted messenger.

"Former Secretary Bennett, a man I know, a man that I consider to be very knowledgeable and a man of integrity, is being punished and excluded from the process because he sought to bring transparency to the process," said David Becker, executive director of the non-profit, non-partisan Center for Election Innovation and Research. "He sought to share data, in details from the process, with the public, who are ostensibly paying for this audit."

"I'm truly alarmed by this," said KFYI host James Harris, in the segment that followed Bennett's interview. "In the [show's] first segment, you actually had Ken Bennett step down because, in good conscience, he can't continue with this if he's been shut out and he's thinking that these numbers are being used improperly. And we know that that might be the case because we had President Trump spouting wrong numbers on the state last Saturday."

"I personally believe that we need to have Ken Bennett in this position [as Senate liaison]," he continued. "I know for a fact he's well-respected all around the state. I even heard from some people who respect him greatly say, 'Hey, what's going on with Ken Bennett… He sounds a little bit off.' Well, he is a little bit off, because he's seeing things that are shady."

"All of a sudden, this is getting convoluted," Harris said. "And instead of us having full disclosure, [and] transparency, it sounds like we are getting a grift!"

The spark behind Bennett's threat to resign—unless, he said, the Senate gives him full control of investigating several remaining aspects of the 2020 vote count—was a series of events that culminated last week that involved Bennett working with an outside group of retired election auditors. The team includes a longtime Arizona Republican Party election observer; the retired CEO of Clear Ballot, a federally certified auditing firm; and the retired chief technology officer of Clear Ballot.

That team has been analyzing the public data from Maricopa County's presidential election and had been releasing findings to the Arizona media and challenging the contractors to prove them wrong. They showed, for example, that tens of thousands of Maricopa County voters voted for most of the Republican candidates on the ballot—but not Trump. The team also has been sharing its data with Bennett.

Bennett has told Voting Booth that the data from the independent auditors was the driving factor that led the Senate to recount the total numbers of Maricopa County ballots because the Ninjas' hand count did not match the election's official results. Bennett's team of auditors had accounted for virtually all the election's ballots and presidential votes and produced the hard evidence of public records to back up their findings. (They also found and corrected many data entry errors ahead of the Ninjas.)

As Bennett explained on the radio, the Cyber Ninjas were not telling Bennett what their progress or results were. In many instances going back months, they promised but never provided reports of their work. In recent weeks, Bennett said that he quietly has been comparing the outsider auditors' totals to the Cyber Ninjas' figures and seeing that the building blocks of the official presidential election results were accurate.

This reporter was on a Zoom with Bennett and the outside auditors on Wednesday, July 21, where Bennett said the conspiracy theories promoted by the Ninjas were a diversion because the pro-Trump contractors are realizing that Biden fairly won.

"The fact that they're posing questions, or asking questions, or throwing out things about all these other things tells me they know the counts are pretty close," he said. "They don't have any proof that there's any massive change in the numbers."

After the Arizona Republic reported on July 23 that Bennett had been taking to the auditors, he was locked out of the ballot count at a Phoenix warehouse. Trump held a Saturday rally in the city the next day. Two days later, on Monday morning, July 26, Bennett told KFYI's Harris that he could not continue as Senate liaison.

Bennett said there are serious election administration issues that the review has discovered that need to be explained and addressed before future elections. Thousands of ballots from members of the military and citizens overseas had not been properly labeled when duplicated (after they came in by e-mail), he said. Some volume of mailed-in ballots that were counted did not have signatures on their outside envelopes and should have been disqualified, he said.

Bennett said that he wanted to investigate these problems and conduct another audit that compared the digital images taken of every ballot by scanners with the county's official spreadsheet of each ballot's votes. The interview concluded with Harris asking Bennett what needed to happen for him to stay on.

"The answer is there are key aspects of the audit that are not even part of the scope of work assigned to Cyber Ninjas," Bennett said. "Some of those other things need to be done independently of Cyber Ninjas, and maybe I can be a coordinator of those other aspects, not done within Cyber Ninjas' realm."

Steven Rosenfeld is the editor and chief correspondent of Voting Booth, a project of the Independent Media Institute. He has reported for National Public Radio, Marketplace, and Christian Science Monitor Radio, as well as a wide range of progressive publications including Salon, AlterNet, The American Prospect, and many others.

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Justice Samuel Alito

Photo by Embassy of Italy in the US is licensed under CC BY-ND 2.0

In recent decades, voting rights progress has consisted of expanding access to a ballot and the ways to cast it—such as online registration, voting from home with mailed-out ballots and other options to vote before Election Day. Those innovations have been widely embraced, especially during the 2020 election in response to health concerns during a pandemic. In the general election, 56 million people voted in a different manner than they had in 2016.

But the Supreme Court's latest major decision on the Voting Rights Act of 1965 has imposed new standards that election law scholars say are hostile to the more expansive and convenient voting options that have surfaced in recent years. Even more troubling, the court's conservative majority has done so in a way that is reminiscent of the arguments put forth by last century's opponents of equal voting opportunities for racial minorities.

In Brnovich v. Democratic National Committee, the court eviscerated the strongest remaining section of the Voting Rights Act of 1965 (VRA), Section 2, which held that election laws and voting rules that had a racially discriminatory impact could be blocked. (In 2013, the court, in Shelby v. Holder, neutered the VRA's sections that allowed federal authorities to block regressive new election laws or voting rules in jurisdictions with histories of discrimination.) Perhaps most alarmingly in Brnovich, Justice Samuel Alito's majority opinion resurrected a legal strategy embraced by the opponents of last century's major civil rights reforms.

Brnovich held that some discriminatory impacts of an election law do not alone invalidate that law. That standard, put forth in "guideposts" laid out by Alito, means that suits challenging laws and rules that make voting harder must go beyond showing a discriminatory result. Those challenging a law must prove that its authors intended to discriminate—making it much harder to sue and win. Shifting the burden of proof from the result or effect of a law to its authors' intent was a tactic of 1970s anti-civil rights litigants.

But Brnovich went even further by also reviving the states' rights strategy cited by mid-20th-century segregationists. It held that state legislatures could cite an interest in policing voter fraud—which, factually, barely exists—as a pretext to pass stricter new election laws. And the ruling said that it didn't matter if a new law advantaged the party that authored the law.

"Effectively, most of the VRA is now dead," David Schultz, a Hamline University scholar specializing in elections and democracy, wrote in an email.

"The proof issue is critical," he continued. "[First, t]he court gives the benefit of the doubt to states that their laws are valid. Second, the court dismisses mere inconveniences as proof of creating less opportunity. It also dismisses small disparities as minor. And it also imposes a difficult burden on statistical evidence. Finally, even if someone can surmount all this, the court seems to dismiss some burdens by saying in the totality of the circumstances the overall voting system may be fine. In effect, despite the fact that voting is a fundamental constitutional right which is supposed to force the state to prove why its restrictions are valid, it shifts the burden to challengers with a near-impossible argument to make."

Other legal scholars have also written that Brnovich's dark implications are sinking in.

"[E]ach time I read Justice Samuel Alito's majority opinion in Brnovich v. Democratic National Committee, the angrier I become," Rick Hasen, a University of California, Irvine election law scholar, wrote on July 8 for Slate. "I'm angry not only about what the court did but also about how much of the public does not realize what a hit American democracy has taken."

Segregationist Revival

In strict terms, Hasen noted that the Brnovich ruling rolls back "the clock on voting rights to 1982," a date cited by Alito's majority opinion. That date is legally and politically significant. In fact, Brnovich cannot be seen as apolitical. As Schultz noted, "What makes this so bad is that the decision does not look neutral, and it makes the court look even more like a political institution where justices are simply partisan politicians with robes."

The early 1980s were the heyday of Ronald Reagan's presidency. At that time, both Alito and Chief Justice John Roberts held senior positions in the Justice Department, where the Reagan administration not only resisted enforcing federal voting rights law but also sought to weaken the same section of the VRA that is the focus of 2021's Brnovich decision. Today, few may recall that candidate Reagan gave a reactionary states' rights speech in August 1980 at the Neshoba County Fair in Mississippi—near where three civil rights workers were murdered in 1964. The murders were one of many events that propelled passage of the Voting Rights Act of 1965.

Southern states' rights advocates and their conservative descendants have long resisted broad voting rights—today, during Reagan's day, in the 1960s, and in the earlier Jim Crow era. Congress passed other civil rights laws by the late 1960s, such as in housing and employment. After the VRA's passage, its advocates' early focus was registering voters for 1968's presidential election and dealing with the legacy of exclusion.

Richard Nixon, who won that election, ran on a states' rights "Southern strategy" that conveyed his support for segregationist values. Once in office, Nixon appointed judges vetted by South Carolina's Republican Senator Strom Thurmond, a white supremacist, in exchange for his endorsement over segregationist Alabama Governor George Wallace, said Chris Sautter, an election lawyer and American University adjunct professor.

By the mid-1970s, Nixon had resigned. But the impact of his judicial appointments was being seen. In civil rights litigation outside the voting sphere, civil rights opponents and conservative judges chipped away at new civil rights laws by changing the burden of proof required by those suing to enforce those laws. The cudgel concerned altering the burden of proof from showing a law's discriminatory effect to proving discriminatory intent. In short, the prosecutorial burdens that Alito revived in Brnovich didn't come out of thin air but were used by segregationists in his formative years as a young Reagan administration lawyer.

By 1980, the reactionary push to alter the burden of proof in new civil rights laws reached the voting sphere. In City of Mobile v. Bolden, the Supreme Court held that Section 2 challenges required proving discriminatory intent—a ruling that contradicted the law's text. At that time, race-based electioneering was returning to GOP circles. In New Jersey's 1981 elections, the Republican National Committee used Jim Crow-like thuggish tactics to try to intimidate Black and Hispanic voters. The Democratic National Committee sued and won a now expired court order that restrained the RNC. (Election lawyers point to the RNC's tactics as foreshadowing the modern Republican Party's voter suppression playbook.)

Some of that backlash also was due to Jimmy Carter's presidency (1977-1981), Sautter said, which enforced another part of the VRA: its preclearance provisions. These sections required states and counties with histories of discriminatory elections to get federal approval before implementing any new election law or rule. (In 2013, the court, in Shelby v. Holder, a majority opinion written by Roberts, gutted the VRA's preclearance provisions.)

In 1982, the 97th Congress reacted to the Supreme Court's Mobile ruling by restoring Section 2's original burden of proof—those who sued only needed to show that a new law's effect was discriminatory. The VRA's 1982 amendments said that courts should consider the "totality of the circumstances" to protect voting rights. The Reagan administration opposed reviving the law's original standard, an effort led by Roberts, as Hasen noted in his recent Slate piece.

"Congress disagreed with the Supreme Court's [1980] interpretation of Section 2, and in 1982 Congress passed a revised Section 2. This revision came despite fierce opposition from the Reagan administration and the president's point person on the issue, John Roberts, who now happens to be the chief justice of the Supreme Court," Hasen writes. At that time, Alito worked in the solicitor general's office, arguing for the Reagan administration in federal court.

In Brnovich, Alito laid out five "guideposts" for courts to judge Section 2 claims, including the harder burden of proof.

"In truth, these are less guideposts and more roadblocks looking to stop plaintiffs at every turn when they assert their Section 2 claims," Hasen writes. "One of the guideposts specifically tells courts to compare the voting restrictions being challenged in a Section 2 case to the burdens of voting as they existed in 1982."

Back to 1982?

What does it mean when a big slice of voting rights law is rolled back to 1982? The first take by scholars like Hasen is that recent voting options—such as allowing early voting on Sundays to accommodate "souls to the polls" drives led by clergy—have little basis for federal protection.

"[I]magine a state passes a law barring early voting on the Sunday before Election Day, because white Republican legislators know that reliably Democratic Black voters often run 'souls to the polls' events to take church-going voters straight to vote after services," he writes. "While a challenge to such a rollback under Section 2 had a good chance of going forward before, how could it survive the 1982 benchmark now, when Sunday voting, and early voting as a whole, was rare?"

Consider the Texas legislature's current machinations to ban the expanded voting options that Harris County—home to Houston—implemented in 2020 to make voting more accessible in the pandemic, such as 24-hour voting centers and mailing out absentee ballot applications. These GOP-led reforms are unfolding despite the statewide victories in fall 2020 elections by Texas Republicans.

"States are [now] mostly free to do what they want with voting and there appears to be little federal remedies or help to protect voting rights," said Schultz. "More than a decade ago, I said we were in the middle of a Second Great Disenfranchisement in America (the first was after the Civil War Reconstruction ended). This decision [Brnovich] is confirmation that the Second Great Disenfranchisement is in full swing, and we can expect more restrictions on voting rights in the years to come."

Brnovich's reach may be even bigger. The way that Americans vote today is completely different from 1982. What is called convenience voting—such as decades of mailing out ballots to every voter in some states, and the options to vote from home or in person before Election Day—did not exist in 1982. Neither did the voting technology and related election rules in wide use today.

"The expansion of voting rights since the 1980s has repeatedly been met with conservative resistance, first in the form of Republican Party initiated so-called ballot security programs and eventually with extreme voter suppression laws," said Sautter. "But the strategy to eviscerate voting rights with an ultra-conservative controlled judiciary goes back to Nixon and the presidential election of 1968. Until the makeup of the Supreme Court changes, progressives will have a difficult time winning these battles."

In the meantime, the best progressives might hope for is passage of the John Lewis Voting Rights Act, which restores and fortifies the VRA, which Sautter said would "seriously undermine the rationale of Alito's opinion." That scenario hinges on all Senate Democrats voting to create a voting-right exception to the filibuster rule.

On July 13, President Biden gave a passionate speech where he decried the Brnovich ruling and called Republican efforts to subvert voting rights and election results "21st-century Jim Crow." Biden called on Congress to pass sweeping federal voting rights legislation, including the John Lewis Voting Rights Act, but he did not mention the Senate filibuster.

"Just weeks ago, the Supreme Court yet again weakened the Voting Rights Act and upheld what Justice Kagan called, quote, 'a significant race-based disparity in voting opportunities,'" Biden said. "The court's decision, as harmful as it is, does not limit the Congress' ability to repair the damage done. That's the important point. It puts the burden back on Congress to restore the Voting Rights Act to its intended strength."

This article was produced by Voting Booth, a project of the Independent Media Institute.

Steven Rosenfeld is the editor and chief correspondent of Voting Booth, a project of the Independent Media Institute. He has reported for National Public Radio, Marketplace, and Christian Science Monitor Radio, as well as a wide range of progressive publications including Salon, AlterNet, The American Prospect, and many others.