Episode Overview

Amicus With Dahlia Lithwick
Episode: “An Injury To Their Electoral Prospects”
Date: March 13, 2021
Host: Dahlia Lithwick

This episode of Amicus explores two pressing topics: the future of voting rights in the United States—examined through the lens of the Supreme Court case Brnovich v. DNC—and a provocative rethinking of "rights" in American law, inspired by Professor Jamal Greene's book How Rights Went Wrong: Why Our Obsession with Rights Is Tearing America Apart. The show features in-depth interviews with Jessica Ring Amundsen, who argued the Arizona voting rights case, and Professor Greene, who critiques America's zero-sum approach to rights.

1. The Supreme Court’s “Brnovich v. DNC” Voting Rights Case

Main Focus

Deep-dive into Brnovich v. DNC (two Arizona voting provisions), what it means for Section 2 of the Voting Rights Act, and the future of voting rights litigation, especially for minority voters.

Key Segment: [04:40–38:59]

Background and Stakes

• Host Dahlia Lithwick contextualizes the case amidst a national wave of new voting restrictions:

  “As of February 19, 2021, state lawmakers have... introduced 253 new bills with provisions that restrict voting access in 43 states. This is the most significant wave of voting restrictions that we have seen, quite literally, since the Jim Crow era.” (03:10)

The Arizona Laws at Issue

Jessica Ring Amundsen, guest and counsel for Arizona's Secretary of State Katie Hobbs:

• Out-of-Precinct Policy: Ballots cast in the wrong precinct are wholly discarded—even for contests the voter was eligible to vote in.

  “Arizona no longer really uses a precinct-based voting system... 75% of voters... were in counties that were not using a precinct-based system." (05:14)

• Ballot Collection Ban: Criminalizes the collection/delivery of completed ballots by anyone who is not a family member, household member, or postal worker (up to two years in jail).

  "This law actually criminalizes non-fraudulent ballot collection. So even helping a neighbor to deliver their ballot is punishable..." (06:51)

Disproportionate Impact

• Out-of-precinct policy disenfranchises minority voters (two-to-one ratio vs. white voters).
• Ballot collection ban especially impacts Native American and Latino voters in rural Arizona with limited access to mail.

The Role of Section 2 of the Voting Rights Act

• Host recaps history: Section 5 (preclearance) was rendered inert in Shelby County v. Holder (2013), shifting the burden to Section 2—now minority voters' “only tool” to challenge discrimination.

  "Post-Shelby County, you started to see more vote denial claims—the kind of restrictions we’re talking about here..." (15:24)

• Jessica:

  “Section 2 is much more cumbersome... the burden is on the plaintiff to come forward and show... they are being denied or abridged the right to vote on account of race.” (11:15)

The Legal Arguments and Competing Tests

• Courts use a two-step inquiry:

  1. Is there a disparity in opportunity for minorities?
  2. Considering the “totality of the circumstances” (Jingles factors: history, lingering effects of discrimination, etc.)

• Arguments by Arizona Republican Party & Attorney General:

  • GOP: Ostensibly neutral "time, place, manner" restrictions shouldn't be reviewed under Section 2.

    "Anything that is an ostensibly neutral time, place and manner regulation... is just kind of per se fine." (21:26)

  • AG: Plaintiffs must show a "substantial disparity"—focusing on the number affected more than the degree of disparity.

• Jessica describes confusion:

  “It’s become this sprawling octopus of confusion. It's not actually that confusing until you've got 70 different standards floating around.” (24:00)

  • Memorable Kagan quote:

    “Ms. Amundsen. The longer this argument goes on, the less clear I am as to how the party's standards differ.” (24:32)

• Notable Exchange, Michael Carvin (RNC counsel):

  • When asked by Justice Barrett why the Arizona GOP cared about keeping these laws:

    “Because it puts us at a competitive disadvantage relative to Democrats. Politics is a zero sum game and every extra vote they get through unlawful interpretations of section two hurts us. It's the difference between winning an election 50 to 49 and losing.” (34:32)

  • Lithwick: “Folks characterized this as saying the quiet part out loud.” (34:48)

Fraud, Voter Integrity, and Suppression

• Ripple effect: Claims about fraud drive new restrictive laws—even with no evidence of fraud.

  “There is literally no record of fraud with respect to ballot collection and in fact that the restriction at issue doesn't target fraudulent ballot collection.” (31:56)

  • Lithwick observes:

    “You're fighting this fantastical, non-truthful belief that... ballots are all completely fraudulent... What there is is immense vote suppression.” (31:24)

Memorable Quotes

• Jessica Ring Amundsen (on the party's motives):

  “That's why they told the court they were here—because they view enforcement of Section 2 as an injury to their electoral prospects.” (36:06)

• Lithwick recounts recent rhetoric:

  “An Arizona State Republican just flat out said... 'everybody shouldn’t be voting... we have to look at the quality of the votes as well.' That's another step towards exactly what you're describing. Right. This is straight up Jim Crow.” (37:07)

The Stakes for Democracy

• “Did you ever in your life think we’d be back in a world where we are saying there are two classes of voters, the voters that we like and the voters that we don't like?” (37:07)
• Jessica:

  “That is certainly not a world I want to live in and is certainly a world that I'm going to try to fight to prevent from happening... that's the world of literacy tests.” (38:08)

2. Rethinking Rights with Professor Jamal Greene

Main Focus

Exploring Jamal Greene's thesis that America’s obsession with absolute, winner-take-all rights is tearing the country apart, fostering division and failing to foster genuine pluralism.

Key Segment: [40:16–71:11]

Greene’s Thesis: “How Rights Went Wrong”

• Lithwick sums up:

  “We have become so, I love this word, right-sist—so obsessed with the zero sum, winner-take-all win rights that we're actually inching toward something really terrible that is the opposite of justice.” (41:09)

• Greene clarifies:

  “Rights are part of the human condition and they're going to conflict and they're going to cause pain and we've got to figure out a way out of them.” (43:27)

The American Approach: Rigid, Absolute, and Scarce Rights

• U.S. culture: affords very few, very strong (absolute) rights; most disputes are framed as binary (someone wins, someone loses).

  "There's not a lot of... lesser rights. And then these strong rights are kind of put in crystal cases for break the glass moments." (46:28)

• Greene’s concept: Spread the “rights pie” more broadly as weaker, more negotiable rights—but more of them.

  “The basic idea... if you say that rights are really, really strong or absolute, you just can't have that many of them, right? Because they're going to come into conflict with each other.” (46:28)

• Rights arise fundamentally from pluralism: “because you disagree with other people, because you have different values and different commitments from other people.” (46:28)

Who Decides Which Rights to Honor?

• The “strong rights” have been historically defined by privileged judges.

  “Many of the problems invested with the solemnity of constitutional rights are the worries of the first world man… Rights more essential to the poor, such as the right to food or shelter or health care, those are left out altogether.” (48:01)

• Greene critiques the unearned myth of American exceptionalism:

  "This way of thinking about rights is very American and is not very common in other parts of the world." (51:03) “America’s rights culture comes out of the Civil Rights Movement... and then everyone in the society wants to claim rights... Why isn't it equally strong?" (52:11)

The Framers’ Intent and the Loss of Self-Government

• Contrary to popular belief, the founding generation saw rights as grounded in self-government—locally mediated by legislators, juries, and churches, not by judges.

  "They wanted to govern themselves... that was entirely consistent with rights, because that's what you institute government in order to [do]..." (56:31) "The next line [after 'life, liberty and pursuit of happiness'] isn't 'therefore we have a federal judiciary.' The next line is 'and therefore you have government.' That's why governments are instituted..." (56:31)

Comparative Examples: Abortion Law in the US vs. Germany

• US (Roe): Supreme Court sets up a winner-take-all regime—women’s rights trump fetal rights; polarity and backlash ensue.
• Germany: Constitutional Court acknowledges both women's autonomy and fetal value, facilitating broad political compromise.

  "...even starting from a premise that from a US perspective would look extremely conservative, you get to a place where people are actually having political conversations. ... [where] people who have very different values [compromise]." (60:12)

The Masterpiece Cakeshop Example

• Greene advocates that judges should be mediators, not “deciders of existential questions.”

  "In a case like Masterpiece Cakeshop, I want to know what are the alternatives available? ...Try to gauge exactly what his claim is so that we can see if we can figure out a way of resolving this dispute that respects what we presume to be his religious interests and also the equality interests of the couple." (66:25)

• Judges should ground decisions in facts and seek workable compromise—however imperfect—rather than relying on dictionaries and interpretive gymnastics.

Can America Change?

• Lithwick: “Are you sufficiently utopian to think that Americans... could ever work their way back to this, even if we could get the judges on side...?” (69:17)
• Greene:

  “Well, I think it'll be hard. I'm trying sort of one podcast at a time, to get through to people. I will say that most people I talk to about this agree with me once we get into it... your aspirations can only go so far. But I think that I'm saying something totally reasonable...” (69:48)

Memorable Quotes & Moments with Timestamps

• Jessica Ring Amundsen: “Secretary Hobbs... knew full well that the purpose of [the ballot collection ban] was to disenfranchise minority voters.” (08:16)
• Elena Kagan (via Lithwick):

  “Ms. Amundsen. The longer this argument goes on, the less clear I am as to how the party's standards differ.” (24:32)

• Michael Carvin (RNC counsel):

  “Because it puts us at a competitive disadvantage relative to Democrats. Politics is a zero sum game...” (34:32)

• Jamal Greene:

  “Rights don't arise because someone has wronged you. Rights arise because you disagree with other people, because you have different values and different commitments from other people.” (46:28) “The next line isn't 'and therefore we have a federal judiciary.' The next line is 'and therefore you have government.' That's why governments are instituted in order to pursue those objectives.” (56:31)

• Lithwick (on the danger of strong, winner-take-all rights):

  “If there are winners, there are losers.” (59:12)

Segment Timestamps

• [00:06 - 38:59]: Jessica Ring Amundsen on Brnovich v. DNC, Section 2, and Voting Rights
• [40:16 - 71:11]: Jamal Greene on How Rights Went Wrong and a Better Approach to Constitutional Rights

Conclusion

This episode presents urgent questions about American democracy and justice. The voting rights discussion underscores the peril minority voters face from a Supreme Court seeking “neutral” standards in a context rife with discrimination, while Jessica Amundsen exposes the raw political stakes behind such laws. Jamal Greene’s segment challenges listeners to envision a less confrontational, more pluralistic approach to rights—reminding us that the pursuit of justice in a diverse society is not a zero-sum game, and must begin with humility, facts, and the courage to mediate rather than dominate.

For further information:

• Brnovich v. DNC (US Supreme Court, 2021)
• How Rights Went Wrong by Jamal Greene

Listen to the full episode for greater depth and powerful context on these pivotal legal debates.