[EL] Brnovich (tenor of the opinions)

[Christopher S. Elmendorf]

I’m curious whether anyone else was taken aback by the tenor of the opinions in Brnovich.

Both Alito and Kagan could have acknowledged in their opinions that s. 2 is basically a delegation to the courts to come up with some reasonable way of policing laws that make it substantially difficult for minorities (relative to whites) to vote and achieve representation, particularly under circumstances that may indicate foul play. And then acknowledged that the “test” propounded in their colleague’s opinion, while not what they favor, is in fact a more-or-less reasonable way of cashing out that core idea.

But there’s no sense of a shared venture in the opinions, nor a recognition of the inevitability and appropriateness of judicial lawmaking in this case. There’s just, “I’m doing law and my colleague’s doing very bad not-law.” (Illustrations in this thread<https://twitter.com/CSElmendorf/status/1410679476950683651>, which I wrote in response to Guy’s.)

The party leaders are behaving as if they’re locked in a death struggle, and their judges are falling in line. Which, I fear, makes the death struggle all the more real.

--Chris

------
Christopher S. Elmendorf
Martin Luther King, Jr. Professor of Law
UC Davis School of Law




From: Law-election <law-election-bounces at department-lists.uci.edu> on behalf of Rick Hasen <rhasen at law.uci.edu>
Date: Thursday, July 1, 2021 at 7:38 AM
To: Election Law Listserv <law-election at uci.edu>
Subject: [EL] Brnovich
Breaking and Analysis: Supreme Court on 6-3 Vote Rejects Voting Rights Act Section 2 Case in Brnovich Case— A Significant Weakening of Section 2<https://electionlawblog.org/?p=123065>
July 1, 2021, 7:07 am<https://electionlawblog.org/?p=123065>RICK HASEN<https://electionlawblog.org/?author=3>

The Supreme Court, in a 6-3 decision, has severely weakened Section 2 of the Voting rights Act as a tool to fight against laws that make it harder to register and vote. Rather than focus on disparate impact—whether a law leads to minority voters registering or voting in lower numbers—the court applies a much broader totality of the circumstances test with a huge thumb on the scale favoring the state and its restrictive law. If a law imposes just a “usual burden of voting,” and the burden on minorities is not too much, and the state can assert (but does not need to prove) a significant interest in preventing voter fraud or another interest, then the law can stand.

When you couple this opinion with the 2008 ruling in the Crawford case, upholding Indiana’s voter ID law against a Fourteenth Amendment equal protection challenge, the 2013 ruling in Shelby County killing off the preclearance provision of the Voting Rights Act for states with a history of discrimination, and today’s reading of Section 2, the conservative Supreme Court has taken away all the major available tools for going after voting restrictions. This at a time when some Republican states are passing new restrictive voting law.

The Court today also makes it harder to prove intentional racial discrimination in passing a voting rule, making it that much harder for DOJ to win in its suit against the new Georgia voting law.

I’ll more more analysis later. This is not a death blow for Section 2 claims, but it will make it much, much harder for such challenges to succeed.

Opinion. <https://www.supremecourt.gov/opinions/20pdf/19-1257_g204.pdf> ‘[This post has been updated.]




--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org<http://electionlawblog.org/>



-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20210701/9945788c/attachment.html>