[EL] My reaction to Brnovich

[Pildes, Rick]

The strength of the state interest is always a significant factor under Sec. 2, including in Brnovich.  You've offered a law with a bizarre justification.  I'd be confident such a law would violate Sec. 2, and also Anderson-Burdick, even if the disparate burdens are small in some aggregate sense.  Even under lower scrutiny under A-B, this law is not a "reasonable, non-discriminatory" one.


Best,
Rick

Richard H. Pildes
Sudler Family Professor of Constitutional Law
NYU School of Law
40 Washington Square So.
NYC, NY 10014
347-886-6789

-----Original Message-----
From: Law-election <law-election-bounces at department-lists.uci.edu> On Behalf Of Steven John Mulroy (smulroy)
Sent: Friday, July 2, 2021 8:59 AM
To: John Tanner <john.k.tanner at gmail.com>
Cc: law-election at department-lists.uci.edu
Subject: Re: [EL] My reaction to Brnovich

Yes I was thinking of the paternalistic rationale. Not sure Re constitutional result, but is it defensible under the new post Brnovich Section 2 ? Overall burden on the vote is slight, there are alternative avenues for voting available, no clear evidence of intent....

Sent from my iPhone. Please excuse typos. 

> On Jul 2, 2021, at 7:32 AM, John Tanner <john.k.tanner at gmail.com> wrote:
> 
> CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and trust the content is safe.
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> 
> Since sickle cell is not contagious, the law would seem to be a racial classification lacking a rational basis.   If the concern is that victims of the disease might not be able to enter the polls or hurt themselves by going to the polls, you might think of the 1982  (I think) law allowing elderly people to vote absentee if their polling place was not accessible.
> 
> 
> Sent from my iPhone
> 
>> On Jul 2, 2021, at 2:52 AM, Steven John Mulroy (smulroy) <smulroy at memphis.edu> wrote:
>> 
>> 
>>> 
>>> 
>> Only 0.03 % of Americans have sickle cell anemia. But Blacks are 10 X more likely to have it. If a voter "medical risk" law barred those w/ sickle cell anemia from voting in person, but still had slightly more generous mail balloting and early voting  rules than were common in 1982, would it be OK under Section 2 of the VRA  under Brnovich?
>> 
>> Assume there's no good evidence of racially discriminatory intent, but there is a clear intent to advantage Republicans at the expense of Democrats.
>> 
>> Also: is it relevant that the law actually would be likely to be outcome determinative in close elections?
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