[EL] My reaction to Brnovich

Fri Jul 2 07:42:04 PDT 2021

I'd like to hope that the sickle cell hypothetical would violate Section 2, but I'm not totally confident it would after Brnovich.   I get Rick's point about the tenuousness of the governmental rationale. (Ditto Brad's re: ADA & etc.)  That should be the answer, but, would it be?

There probably are good constitutional grounds for challenge too.  But the purpose of my hypo was just to explore this Brnovich notion that if the absolute burden on the vote/total number of people affected was low, and the rest of the overall voting regime was open (or at least open by 1982 standards), then even a severe disproportionate effect on minorities can be shrugged off, absent persuasive proof of intent.  In a close election, even a 0.03% vote suppressive effect can be political gold, if it's 10-1 white/black, Dem/GOP, etc.

As for the Lyme Disease wrinkle.  I think UJO v Carey said you could use Section 2 to protect white voters, but your challenge there would be the Senate factors re:  {a history of voting related discrimination in the jurisdiction} as well as {socioeconomic disparities affecting voting access}.  Quaere whether that's still weighty after  Brnovich.

But if we're allowed to raise constitutional claims, wouldn't the Lyme Disease situation violate the First Amendment, if the evidence clearly showed targeting GOP voters for suppression?

Steven J. Mulroy
Bredesen Professor of Law
University of Memphis
1 N. Front St. Memphis, TN 38103
901-678-4494
Author of  Rethinking US Election Law https://www.e-elgar.com/shop/usd/rethinking-us-election-law-9781839106699.html
Check out my scholarship at https://www.ssrn.com/index.cfm/en/
________________________________
From: Smith, Bradley <BSmith at law.capital.edu>
Sent: Friday, July 2, 2021 9:09 AM
To: Steven John Mulroy (smulroy) <smulroy at memphis.edu>; John Tanner <john.k.tanner at gmail.com>
Cc: law-election at department-lists.uci.edu <law-election at department-lists.uci.edu>
Subject: Re: [EL] My reaction to Brnovich

I'd agree with Rick and John here. Let me add a wrinkle: Suppose a Democratic legislature singled out Lyme Disease, something that is 11 times more prevalent in whites than in blacks, and particularly in rural whites. Let's presume discovery found that this was motivated by a desire to lower Republican turnout. Presumably this would not violate Section 2. But would this get past Anderson/Burdick?

If it would, and if the sickle cell example did violate Section 2 (as Steve seems to think it should), can we really have an electoral system in which Democratic efforts to lower Republican turnout are legally permissible, but essentially identical Republican efforts to lower Democratic turnout are not?

Final note: on these particular hypotheticals, which I consider extremely unlikely, only slightly ahead of learning that Kang and Kodos are the candidates, I believe the ADA and perhaps other laws would also kick in. So this exercise may not be worth the candle.

Bradley A. Smith
Josiah H. Blackmore II/Shirley M. Nault Professor of Law
Capital University Law School
303 East Broad Street
Columbus, OH 43215
Phone: (614) 236-6317
Mobile:  (540) 287-8954

________________________________
From: Law-election <law-election-bounces at department-lists.uci.edu> on behalf of Steven John Mulroy (smulroy) <smulroy at memphis.edu>
Sent: Friday, July 2, 2021 8:58 AM
To: John Tanner <john.k.tanner at gmail.com>
Cc: law-election at department-lists.uci.edu <law-election at department-lists.uci.edu>
Subject: Re: [EL] My reaction to Brnovich

        ** [ This email originated outside of Capital University ] **

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.
>
>
> 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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