Judge Kozinski, along with six other (mostly quite conservative) dissenters, seems to have it right here. By relying on statistical impact alone, the Ninth Circuit has reached a result contrary to other circuits that have looked at the issue. Kozinski finds the result contrary to Congress's intent in amending section 2 in 1982 and also argues---persusasively---that the holding could call into question the constitutionality of section 2. If section 2 indeed reaches this far, it might go further than Congress's powers allow under City of Boerne v. Flores. (I address the constitutional question with section 2 in my book at 120-33 and the parallel issue under section 5 of the Voting Rights Act in this working paper.)

Finally, Judge Kozinski considers the broad implications of the ruling. It could, for example, lead courts to strike down internet voting given disparities by race in internet access. (On this point, I was gratified to see that Judge Kozinski cited and discussed articles by Alvarez & Nadler, Moglen & Karlan, and Pershing in this Loyola of Los Angeles Law Review symposium on Internet Voting that I organized a few years ago.)

-- 
Rick Hasen
Professor of Law and William M. Rains Fellow
Loyola Law School
919 South Albany Street
Los Angeles, CA  90015-1211
(213)736-1466
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlawblog.org