[EL] My gloss on Brnovich v. DNC

[Schultz, David]

Hi all:  I had a chance to think about Brnovich v. DNC and here is how I
think about it, if anyone is interested.


1.  What does the Brnovich v. DNC ruling mean for voting rights in America?

Brnovich v. DNC is a setback for voting rights in America, especially in
terms of the potency and usefulness of the Voting Rights Act as a tool to
address discrimination in America.  This decision has to be viewed in
conjunction with at least two other events.

One, in 2013 the Supreme Court in Shelby County v. Holder declared the
section four pre-clearance coverage formula of the VRA unconstitutional,
rendering it more difficult to bring Section five cases and apply the
pre-clearance provision.  That decision made it easier for states to enact
discriminatory voting practices.

The second event is the partisan divide over voting rights in America and
the efforts in many states, especially by Republicans, to weaken voting
rights.  Combine these events together with the Brnovich decision which now
makes it harder to win section 2 VRA voter dilution cases.  Effectively,
most of the VRA is now dead.  Congress cannot get a new voting rights act
passed and the Supreme Court (under Roberts and now with a 6-3 majority
unsympathetic to voting rights).  States are mostly free to do what they
want with voting and there appears to be little federal remedies or help to
protect voting rights.  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 is confirmation that the
Second Great Disenfranchisement is in full swing and we can expect m ore
restrictions on voting rights in the years to come,


2.  What does the ruling do to Section 2?
It makes it much harder for individuals to prove a section two violation.
Essentially what the Court said in this case is that the VRA section 2 is
violated only when an election process or system, under the totality of
circumstances, adopts rules that create less of an equal opportunity for
some to vote than others.  The proof issue is critical. The court gives the
benefit of doubt to states that their laws are valid.  Two, 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
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.

The Court is simply dismissive of the impact or burdens placed on
individuals when they seek to vote, going out of its way to defer to states
in the regulation of elections and voting.

3.  Did the court rule in favor of Brnovich and the Arizona GOP's argument?

Sort of yes, but it went even further.  It did more than rule on the
dispute in this case about who can handle ballots and where people can
vote.  It essentially rewrote section2 of the VRA and how it is applied.

4.  Is this what you expected would happen?
Yes.  It also showed that the 6-3 conservative majority is in charge and it
is one that is not going to support voting rights.  Even if Congress were
to enact new laws, this is a Court that may find ways to strike them down.

5.  Are you surprised by how any of the justices voted?
No, they voted exactly how one would have thought in terms of ideology and
in terms of partisanship.  By that, the Republican-appointed Justices voted
one way, the Democratic-appointed Justices the other way.  The Court is
partisanly divided on voting rights in the same way that the two parties
are in Congress. 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.

6.  Anything else others  need to know about the decision?
Look at the Gorsuch concurrence.  He and Thomas would seem to want to go
further and argue that the VRA does not allow for a private cause of
action.  They seem to be suggesting that individuals should not be able to
sue states for voting violations.  If they get their way then only the
federal government could sue.

Overall, this decision reflects the political divide over voting rights in
America, with Republicans and Democrats taking different positions.  It is
a decision that severely limits the single most effective tool ever (the
VRA) in protecting voting rights and we can expect going into the 2022 and
2024 elections the adoption of many new restrictions, and neither Congress
not the Supreme Court can do much about it, and President Biden too will be
limited in what his Justice Department can do.

-- 
David Schultz, Distinguished University Professor
Hamline University
Department of Political Science,
Department of Legal Studies,
Department of Environmental Studies
1536 Hewitt Ave
MS B 1805
St. Paul, Minnesota 55104
651.523.2858 (voice)
http://davidschultz.efoliomn.com/
http://works.bepress.com/david_schultz/
http://schultzstake.blogspot.com/
Twitter:  @ProfDSchultz
My latest book:  Presidential Swing States:  Why Only Ten Matter
https://rowman.com/ISBN/9780739195246/Presidential-Swing-States-Why-Only-Ten-Matter
FacultyRow SuperProfessor, 2012, 2013, 2014
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