[EL] Question on proposed state laws

[Foley, Edward]

Hello all,

In 2017, I wrote this law review article on how Due Process should be construed a containing an anti-retrogression principle that would require states to justify the revocation of previously granted voting opportunities: Due Process, Fair Play, and Excessive Partisanship: A New Principle for Judicial Review of Election Laws<https://lawreview.uchicago.edu/publication/due-process-fair-play-and-excessive-partisanship-new-principle-judicial-review-election>, 84 U. Chi. L. Rev. 655 (2017).

I described a “balancing test, weighing the degree to which the change in voting rules upsets reasonably settled expectations concerning the operation of the voting process against the strength of the government’s nonpartisan reasons for making the change.”  Id.at 741.  I applied the principle to two rollbacks existing at the time, one from Ohio and the other from North Carolina.  I contrasted the Due Process analysis to conventional Anderson-Burdick balancing.

I wonder whether, in light of all the proposed rollbacks in voting rules under consideration right now all around the country, it’s worth taking another look at this idea.

(Note: this Due Process anti-retrogression principle would share similarities with, but be distinct from, the one in section 5 of the VRA, currently inoperative because of no updated coverage formula invalidated in Shelby County; the Due Process version would not require showing of racially differential retrogression, but would apply to cutbacks in voting opportunities even if racially nondiscriminatory; what would matter would be the degree of the cutback compared to the government’s justification for cutting back.)

Are there developments in jurisprudence in the last four years that would make this idea more, or less, worthwhile compared to when it was first offered?

Thanks, Ned

[signature_1204328033]

Edward B. Foley
Ebersold Chair in Constitutional Law
Director, Election Law at Ohio State<https://u.osu.edu/electionlaw/>
Contributing Columnist, The Washington Post<https://www.washingtonpost.com/people/edward-b-foley/?itid=sf_opinions>

From: Law-election <law-election-bounces at department-lists.uci.edu> on behalf of Rick Hasen <rhasen at law.uci.edu>
Date: Tuesday, March 2, 2021 at 12:29 PM
To: "law-election at uci.edu" <law-election at uci.edu>
Subject: [EL] Thoughts on Brnovich

Thoughts on Brnovich Oral Argument: Few Surprises, and Voting Rights Plaintiffs Are Likely to Lose (But Exactly How Remains Unclear)<https://urldefense.com/v3/__https:/electionlawblog.org/?p=121033__;!!KGKeukY!jgIvkyKYpREbf6KMyfyVpjGMKTX_kEocvfIPKOOHARU9M49qVUu1B762HjWh8jYRTA$>
Posted on March 2, 2021 9:16 am<https://urldefense.com/v3/__https:/electionlawblog.org/?p=121033__;!!KGKeukY!jgIvkyKYpREbf6KMyfyVpjGMKTX_kEocvfIPKOOHARU9M49qVUu1B762HjWh8jYRTA$> by Rick Hasen<https://urldefense.com/v3/__https:/electionlawblog.org/?author=3__;!!KGKeukY!jgIvkyKYpREbf6KMyfyVpjGMKTX_kEocvfIPKOOHARU9M49qVUu1B762HjXul5S43Q$>

I just finished listening to the two-hour argument in the Brnovich voting rights case. For background on what’s at stake and where I think things are, see this SCOTUSBlog post<https://urldefense.com/v3/__https:/www.scotusblog.com/2021/02/a-partisan-battle-in-an-overreach-of-a-case/__;!!KGKeukY!jgIvkyKYpREbf6KMyfyVpjGMKTX_kEocvfIPKOOHARU9M49qVUu1B762HjWlT28cVw$>.

Oral argument went as I expected. There was little support for the position of the Republican Party, as offered by attorney Mike Carvin—that test would essentially render Section 2 of the Voting Rights Act to not apply to most vote denial cases. There was considerably more support for the test put forward by the state attorney general, Brnovich, as well as the DOJ standard put forward in the Trump DOJ brief. It seemed that all six conservatives were comfortable with some test that would require both that plaintiffs show a substantial burden in voting, and one that would give the state the ability to rebut even a statistical disparity in a voting procedure that falls more heavily on minority voters so long as the state can come forward with a nonpretextual anti-fraud interest.

The Court conservatives could well coalesce around a test that requires both the plaintiffs show a substantial racially discriminatory impact AND that requires the state to produce little evidence of an antifraud (or sound election administration) reason to enact a law. The big question is exactly what that standard looks like. Both Justice Kagan and Justice Alito are masters at giving hypotheticals to push the boundaries of the parties’ positions, and it was clear that each side had trouble with some of the hypotheticals. (Indeed, I’d recommend this oral argument as a good one to listen to for law students wanting to hear how good these Justices are at asking their questions.)

The Court’s 3 liberal Justices were as expected much more sympathetic to the plaintiffs’ positions. Justice Breyer was somewhat obsessed with Nick Stephanolpoulos’s brief that called for use of disparate impact tests from other areas of the law to try to deal with Section 2 cases. It’s not clear if there are any takers on that. It is also not clear that the liberals would uphold the 9th Circuit test—they may instead fight on the right standard to apply in other cases. And that in fact is the whole ball game: is Section 2 going to be a test that plaintiffs can actually use in going after very strict voting rules with a racially disparate impact on minority voters, or will it be a test that will be nearly impossible to meet?

We will likely find out in June.
[Share]<https://urldefense.com/v3/__https:/www.addtoany.com/share*url=https*3A*2F*2Felectionlawblog.org*2F*3Fp*3D121033&title=Thoughts*20on*20Brnovich*20Oral*20Argument*3A*20Few*20Surprises*2C*20and*20Voting*20Rights*20Plaintiffs*20Are*20Likely*20to*20Lose*20(But*20Exactly*20How*20Remains*20Unclear)__;IyUlJSUlJSUlJSUlJSUlJSUlJSUlJSUlJSUlJQ!!KGKeukY!jgIvkyKYpREbf6KMyfyVpjGMKTX_kEocvfIPKOOHARU9M49qVUu1B762HjWB6Qg2Sg$>
Posted in Supreme Court<https://urldefense.com/v3/__https:/electionlawblog.org/?cat=29__;!!KGKeukY!jgIvkyKYpREbf6KMyfyVpjGMKTX_kEocvfIPKOOHARU9M49qVUu1B762HjWlQqJMSQ$>, Voting Rights Act<https://urldefense.com/v3/__https:/electionlawblog.org/?cat=15__;!!KGKeukY!jgIvkyKYpREbf6KMyfyVpjGMKTX_kEocvfIPKOOHARU9M49qVUu1B762HjXwHfnGHA$>





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/<https://urldefense.com/v3/__http:/www.law.uci.edu/faculty/full-time/hasen/__;!!KGKeukY!jgIvkyKYpREbf6KMyfyVpjGMKTX_kEocvfIPKOOHARU9M49qVUu1B762HjXaK_zYng$>
http://electionlawblog.org<https://urldefense.com/v3/__http:/electionlawblog.org/__;!!KGKeukY!jgIvkyKYpREbf6KMyfyVpjGMKTX_kEocvfIPKOOHARU9M49qVUu1B762HjXhJwlZsw$>

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20210304/76d004cf/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image001.png
Type: image/png
Size: 3611 bytes
Desc: image001.png
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20210304/76d004cf/attachment.png>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image002.png
Type: image/png
Size: 2022 bytes
Desc: image002.png
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20210304/76d004cf/attachment-0001.png>