If we learned nothing else from the 2020 election and its aftermath, we now know what happens to law students who graduated at the bottom quartile of their classes.  They represent Republican officials.  Not that we needed more proof, but last Tuesday the sample size increased by one during Supreme Court arguments related to new voting restrictions enacted in Arizona.

Briefly, the Court was conducting oral arguments on two appealed cases related to newly enacted state laws, one by the Arizona attorney general and the other by the Arizona Republican Party.  In Brnovich v. Democratic National Committee, the lower court had ruled Arizona violated Section 2 of the Voting Rights Act of 1965 when it disqualified the votes of individuals who had mistakenly cast their ballots in the wrong precinct.

The second case Arizona Republic Party v. Democratic National Committee was triggered by a new law which prohibits anyone other than a family member or caregiver from collecting and delivering a voter’s absentee ballot.  NOTE:  No-excuse absentee/mail-in balloting has been legal in the Grand Canyon State since 1991, and the issue of “ballot harvesting” had never been raised until the 2020 election.

In an illuminating moment during oral arguments, Justice Amy Coney Barrett and attorney Michael A. Carvin, representing Arizona, have the following exchange over the state’s motivation in Brnovich v. Democratic National Committee.

Justice Barrett:  What’s the interest of the Arizona RNC here in keeping, say, the out-of-precinct voter disqualification rules on the books?

Mr. Carvin:  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 2 hurts us.  It’s the difference between winning an election 50 to 49 and losing 51 to 50.

Voting rights activists were quick to jump on the obvious.  Carvin had just said out loud what they rightfully assumed all along.  This was not about election security, but the value of voter suppression to GOP candidates.  By doing so, Carvin affirmed the lessons of both 2018 and 2020.  When Democrats vote, Democrats win.  But here is the other issue.  Not only was Carvin’s argument a rare moment of truth, it also represented gross ignorance, something that no one on the court or any legal analyst pointed out.

In no way is what Carvin described a “zero sum game.”  Consider the formal definition of the term.

A mathematical representation of a situation in which each participant’s gain or loss of utility is exactly balanced by the losses or gains of the utility of the other participants. If the total gains of the participants are added up and the total losses are subtracted, they will sum to zero.

For the argument to apply to the situation under debate, every vote cast out-of-precinct would not be disqualified.  It would have to go to the other candidate.  What’s more, his example of how the percentages would change is even more inane.  The numbers would not change, much less total 101 percent (Do these people ever hear what comes out of their mouths?).   The percentages would merely flip.  Instead of losing 50-49, in a truly zero sum game, the alternative outcome would still be 50-49, but in the opposite direction.

Let me explain this to Mr. Carvin with an analogy he might understand.  A zero sum game in politics works the same way it does in a poker tournament.  Imagine each of five participants pays a $10,000 entry fee.  At any given point in the tournament, there is always $50,000 on the table.  If Player #1 wins the first pot, his holdings increase by the aggregate losses among the remaining four players.  At the end of the tournament, the winner has $50,000 and the losers walk away empty-handed.

Under Carvin’s analogy, Player #2 could win even though his total was now less than half the total entry fees, if and only if, he finds a way reduce that amount.  Suppose, for example, Player #2 declares any dollar bill with the signature of former Treasury Secretary Jacob Lew (2013-2017) does not count.  By this measure, the total pot is reduced to $43,000.   Player #2 then declares he won a majority of the stakes while holding only $21,501.

In a real political zero sum game, the vote total is not reduced.  Instead voting preferences shift among candidates.  Of course that would require the GOP adopt policies and programs which appeal to current Democrats and independents who do not share the GOP’s predilection for trickle-down economics, global isolation or defending insurrectionists including the leader of their own party.

What lesson should we take from this day in court?  Never, ever play Liar’s Poker with Mr. Carvin.  Anyone who can make the above argument in front of the Supreme Court with a straight face probably is not likely to show his hand during a game of chance.

For what it’s worth.
Dr. ESP