President-elect Joe Biden’s top lawyer at the Supreme Court may have no choice but to change the government’s position in an election dispute out of Arizona, the sort of pivot that is awkward for lawyers and irritates the justices.
The case, Brnovich v. Democratic National Committee, takes aim at voting restrictions passed by the state to limit out-of-precinct voting and restrict who can collect and return mail-in ballots. Republicans say the law is designed to prevent voter fraud while Democrats say it disenfranchises minority voters, who disproportionately vote outside their precincts and rely on others to handle their mail-in ballots.
That case is one in which the incoming Biden administration may do an about face, said Paul Bender, who was the second in command in the solicitor general’s office during the Clinton administration.
The new solicitor general will try to do as much as possible to avoid that, Bender said. “But sometimes, you just can’t.”
If pushed to change positions it could hurt the incoming solicitor general’s reputation as an apolitical actor, making arguments based on the law rather than political considerations….
Opening briefs are due Nov. 30, meaning that a Trump administration brief in support of the laws would be filed in early December—just weeks before Biden takes office.
While not unheard of, that timing may convince the Acting Solicitor General Jeffrey Wall to stay his hand. The Justice Department didn’t respond to a request for comment.
If Wall does file a friend-of-the-court brief, however, “it would be a big problem for the Biden administration,” Bender said.