Brnovich v. Democratic National Committee: Whitewashing the Voting Rights Act

Davin Rosborough Senior Staff Attorney, ACLU Voting Rights Project

Davin Rosborough[*]

When the U.S. Supreme Court granted certiorari in Brnovich v. Democratic National Committee, voting-rights advocates anticipated the worst. In other times, clarity into the proper standard for vote-denial claims under Section 2 of the Voting Rights Act (VRA) might have been more welcome. The Roberts Court, however, built upon a trend of hostility to racial-discrimination challenges and added its own deep reluctance to allow federal courts to overturn state election laws. The question was not whether the Court would reverse the plaintiffs’ victory in striking down Arizona’s ballot-collection criminalization and out-of-precinct voting prohibitions, but how it would do so. That concern was only magnified by the petitioners’ arguments, which sought restrictive standards that would, among other things, limit Section 2 vote-denial challenges only to laws concerning voter qualifications rather than time, place, and manner restrictions, and allow challenges only to laws that call for differential treatment based on race.

The die was finally cast on July 1, when the decision arrived. Justice Samuel Alito wrote for a 6–3 majority, reversing the U.S Court of Appeals for the Ninth Circuit and ruling for the petitioners.[1] At first glance, the decision didn’t match the worst-case scenario. It purported not to “announce a test” governing all Section 2 vote-denial claims but merely offered five “guideposts,”[2] and it did not adopt the bright-line prohibitions against certain types of claims urged by the petitioners and some of their amici. Yet a closer look at these guideposts, particularly taken together, and how the Court applied them, reveals a much gloomier picture.

The VRA as construed by the Brnovich majority bears little resemblance to the one passed by Congress in 1965 and amended in 1982. The decision certainly repudiates “the core aims” of Section 2,[3] to provide “‘the broadest possible scope’ in combating racial discrimination.”[4] But beyond its wholesale abandonment of the VRA’s broad remedial purpose and flexible text, it is worth examining how the Court’s new guideposts and their application will severely limit Section 2’s reach as a tool to combat racial discrimination in voting. These factors quietly import increasingly stringent constitutional standards that fail to account for racial disparities, use 1982 as a benchmark when minority voter registration and turnout rates were still comparatively low, and deprioritize local circumstances and historical linkages in favor of an abstract analysis of theoretical opportunities. They also put a heavy thumb on the scale in favor of an evidence-free voter fraud justification, the primary rationale used to suppress participation by voters of color. Understanding why the Court wrote the decision in the way it did requires an analysis of the new way in which this Court sought to pull a functional analysis of racial disparities out of an explicitly race-conscious statute without naming its project. In doing so, it’s helpful to examine how the Court’s simultaneous aversion to race-conscious remedies and interference with state election laws arise out of the same place—through the gaze of white transparency[5] that refuses to confront pervasive, discriminatory structures built and rebuilt by the states to maintain white supremacy.

Before analyzing the decision and what the future holds, a discussion of the development of Section 2 of the VRA and vote-denial claims will help set the stage.

I. A Brief History of Section 2 and Vote-Denial Claims

Congress passed the Voting Rights Act of 1965 “to banish the blight of racial discrimination in voting,” which had “infected the electoral process in parts of our country for nearly a century.”[6] It did so following years of heroic organizing by Black civil rights activists and allies in the face of brutal violence, and only after the failure of other laws to make a noticeable dent against “facially neutral” voting laws—provisions that did not explicitly discriminate in their text—used to prevent Black citizens and other people of color in much of the South from participating in the political process in anything but trivial numbers.[7] Section 2 was aimed at voting discrimination nationwide and “broadly prohibits the use of voting rules to abridge exercise of the franchise on racial grounds.”[8]

Advocates developed two distinct types of claims under Section 2: vote-denial and vote-dilution claims. Vote-dilution claims involve issues like districting and at-large election systems and focus on communities of color being able to cast “a ‘meaningful’ vote for someone who could get elected,”[9] thus they “necessarily turn on election results.”[10] Vote-denial claims challenge election practices that harm the ability of voters of color to participate in the political process on an equal basis by denying or abridging the opportunity “to register, vote, and have one’s vote counted.”[11] Vote-denial claims are “outcome-independent.”[12]

The first several years of VRA enforcement focused on attacking voter registration barriers and other formal barriers to Black voters’ participation,[13] but vote-dilution claims dominated the next several decades as states and localities used more subtle techniques to keep Black- and Latino-preferred candidates out of office.[14] Plaintiffs brought Section 2 claims—primarily vote-dilution claims—based not only on discriminatory intent, but also on discriminatory results, after the Supreme Court appeared to recognize that theory in 1973.[15] That changed in 1980 when the Supreme Court decided City of Mobile v. Bolden, holding proof of a “racially discriminatory motivation” was necessary for a Section 2 claim.[16]

Civil rights groups immediately began advocating to revert Section 2 to the previous standard and successfully convinced Congress to amend it in 1982 to create a discriminatory-results test. The revised text tracked the original in providing that “[n]o voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision,” but the amendment replaced “to deny or abridge the right of any citizen of the United States to vote on account of race or color”[17] with “in a manner which results in a denial or abridgement on account of race or color.”[18] It also included another subsection providing guidance on this “results test.”[19] The legislative history of the 1982 amendments almost solely concerned vote-dilution claims. But the Senate Report also made explicit that “Section 2 remains the major statutory prohibition of all voting rights discrimination” and “also prohibits practices, which, while episodic and not involv[ing] permanent structural barriers, result in the denial of equal access to any phase of the electoral process for minority group members.”[20]

In 1986, in Thornburg v. Gingles,[21] the Supreme Court announced a standard for the results test in the vote-dilution context, and refined that test over the next two decades.[22] Vote-denial claims became much more common following the wave of voter suppression laws after the election of President Barack Obama in 2008,[23] and the Supreme Court’s holding in Shelby County v. Holder, which killed preclearance of voting changes in covered jurisdictions by declaring the preclearance formula unconstitutional.[24] This new wave of vote-denial litigation produced decisions from circuit courts that coalesced around a single standard. The U.S. Court of Appeals for the Fourth, Fifth, Sixth, and Ninth Circuits all agreed on the appropriateness of a two-part test that examined whether: (1) the challenged practice “impose[s] a discriminatory burden on members of a protected class”; and (2) the burden is “in part [ ] caused by or linked to social and historical conditions that have or currently produce discrimination against members of the protected class.”[25] Under the second part of the test, these circuits endorsed the use of nine nonexclusive factors set forth in the Senate Report to the 1982 Amendments (the “Senate Factors”) to guide this inquiry.[26] Both the Seventh and Eleventh Circuits expressed skepticism of the second step, with the former expressing the view that Section 2 contains “an equal-treatment requirement,”[27] and the latter reading in an explicit causation requirement and rejecting the relevance of the Senate Factors.[28]

II. The Brnovich Litigation and the Supreme Court’s Decision

A. Lower Court Proceedings

Several Democratic party groups brought this case to challenge two Arizona election laws, one old and one new: “(1) Arizona’s policy to not count provisional ballots cast in the wrong precinct”; and (2) a new law that made “it a felony for anyone other than the voter to possess that voter’s early mail ballot” except for family members, household members, or caregivers.[29] The plaintiffs claimed that both laws violated Section 2 of the VRA and the First and Fourteenth Amendments as an unconstitutional burden on the right to vote, and that the ballot-collection law also violated the Fifteenth Amendment as motivated by intentional racial discrimination.[30] After a ten-day bench trial, the district court found for the defendants on all claims.[31]

The Ninth Circuit initially affirmed the district court in a 2‒1 decision, but it accepted the case en banc and reversed the district court’s Section 2 and intentional-discrimination holdings.[32] As to the out-of-precinct policy, it found that the district court clearly erred by requiring that the challenged law directly cause the racial disparity, finding the causal connection between the disparity and the result sufficient, and after evaluating the Senate Factors, the Ninth Circuit held the plaintiffs had proven a Section 2 violation.[33] Concerning the ballot-collection policy, the Ninth Circuit held the district clearly erred by discounting direct evidence of racial disparities and comparing the number of ballots collected for voters of color to total ballots rather than to white voters,[34] and found after analyzing the Senate Factors that the totality of the circumstances supported finding a Section 2 violation.[35]

B. The Supreme Court Majority’s Opinion

Justice Alito wrote for the majority, joined by Chief Justice John Roberts, and Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. If any questions remained about which way the decision was headed, the statement that the case “concerns two features of Arizona voting law, which generally makes it quite easy for residents to vote,”[36] left little doubt. Before diving into the dispute at issue or the details of the standard to apply, the Court addressed two preliminary issues.

First, it disposed of the argument that Arizona Attorney General Mark Brnovich lacked standing to appeal after the Arizona secretary of state turned against the challenged laws.[37] Second, it explained that the Court declined to announce a test governing time, place, or manner rules under Section 2, noting that “no fewer than 10 tests have been proposed.”[38] Instead, the Court believed all that was necessary at the present was to “identify certain guideposts” that led to its decision.[39]

The Court then turned to the text of Section 2. Before its analysis, and without a hint of irony, the majority subtly knocked the Court’s interpretation of Section 2 in Gingles by noting how the Gingles Court was quick to jump from reciting the statutory text to the legislative history.[40] The opinion’s first project—and only direct attempt at textual analysis—looked at subsection (b) of the statute, which was added as part of the 1982 amendments to provide the burden of proof to establish a violation. The main portion of that provision provides that a violation occurs when, “based on the totality of circumstances . . . the political processes . . . are not equally open to participation by members of a class of citizens protected by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.”[41] In Brnovich, the Court focused on the term “equally open,” defining it as “without restrictions as to who may participate.”[42] It noted that the term “equal opportunity” contributes to defining “equally open” and may “stretch that concept to some degree,” but inexplicably discounted the term’s import by declaring that “equal openness remains the touchstone.”[43]

Having largely discarded equal opportunity, the Court moved on to discuss the five guideposts in assessing whether a time, place, or manner restriction violates the Section 2 results test—the basis for a vote-denial claim. Before discussing each one, it mentioned that Section 2 calls for a “totality of the circumstances” analysis, so while these factors are not exclusive, they are “important.”[44]

First, the Court explained that “the size of the burden imposed by a challenged voting rule is highly relevant,” and used the “usual burdens of voting” as its barometer.[45] In doing so it quoted and relied on Crawford v. Marion County Election Board, a constitutional case involving Indiana’s voter ID law, but did not explain what those usual burdens entailed or how the concept may not apply equally across racial groups.

Second, the Court noted that whether a “voting rule departs from what was standard practice when § 2 was amended in 1982 is a relevant consideration.”[46] Without attempting to justify this based on a rule of statutory interpretation, the Court merely referred to the utility of benchmarks, and decided that the status quo at the time of the amendments made sense. Revealing its underlying purpose, the Court described how “nearly all voters” had to “cast their ballots in person on election day.”[47] It doubted that Congress intended “to uproot facially neutral time, place, and manner regulations that have a long pedigree or are in widespread use in the United States,” despite the fact the amendments occurred less than two decades after the use of such rules like literacy tests and poll taxes to almost entirely disenfranchise Black voters throughout much of the South.[48]

Third, the Court described the importance of the size of the racial disparity.[49] This was unsurprising and the most reasonable factor to consider, but the Court went on to explain away some amount of disparity because “minority and non-minority groups” may “differ with respect to employment, wealth, and education,” resulting “in some predictable disparities in rates of voting and noncompliance with voting rules.”[50]

Fourth, the Court instructed that “courts must consider the opportunities provided by a State’s entire system of voting when assessing the burden” of a challenged law.[51] It relied on the reference in Section 2(b) referring to political processes being equally open, neglecting to consider that this section described the standard for Section 2(a), which protects against not just “denial” but also “abridgment” and evaluates whether a “standard, practice, or procedure” results in denial or abridgement of the franchise on account of race.[52] Therefore, the Court explained that in states with multiple options for how to vote, even if there exists a disparate racial burden in one area, a court must consider the “other available means.”[53]

Fifth, as expected, the Court held that evaluating courts must consider the strength of the state interest in the voting rule, noting that “strong state interests are less likely to violate § 2.”[54] From there, though, the Court took particular care to single out states’ “strong and entirely legitimate state interest” in preventing voter fraud, as well as making sure that “every vote is cast freely, without intimidation or undue influence.”[55]

The Court also discussed the lack of relevance of most of the Senate Factors employed in vote-dilution cases for evaluating vote-denial claims, with the exception of past discrimination and whether “effects of that discrimination persist,” yet remarkably, it then held that the relevance of these discrimination-related factors “is much less direct” than the Court’s five guideposts.[56] It also rejected disparate impact, burden-shifting models from the employment and housing discrimination contexts.[57]

Before applying the guideposts to the facts, the majority turned to Justice Elena Kagan’s dissent, castigating it for undertaking a “radical project,” accusing it of putting forward a standard that would undermine states’ authority to establish neutral, nondiscriminatory voting laws, and focusing “almost entirely” on disparate impact.[58] It charged that the dissent’s position meant that “[e]ven if a State could point to a history of serious voting fraud within its own borders,” a rule designed to prevent fraud could still be struck down “unless the State could demonstrate an inability to combat voting fraud in any other way.”[59] The majority closed by paying lip service to Section 2 providing “vital protection against discriminatory voting rules” and insisting that “no one suggests that discrimination in voting has been extirpated or that the threat has been eliminated.”[60]

As to the longstanding out-of-precinct policy, which invalidated the entire ballots of voters who voted at an incorrect precinct, the Court described the need to identify and find one’s correct polling place as a “usual burden of voting” and noted the different sources of information available to do so.[61] It then evaluated the policy as part of Arizona’s entire election system, brushing away evidence of frequent polling place changes and confusing placement by stating that even if it made finding assigned polling places “marginally harder” than other states, Arizona provided “other easy ways to vote.”[62] Next, the Court found only a small racial disparity in burdens of rejected ballots of “a little over 1% of Hispanic voters, 1% of African-American voters, and 1% of Native American voters” compared to “around 0.5%” for “non-minority voters.”[63] Finally, it faulted the Ninth Circuit for failing to “give appropriate weight” to state interests.[64] In sum, the Court found that the policy’s “modest burdens . . . the small size of its disparate impact, and the state’s justifications,” meant it does not violate Section 2.[65]

The Court next considered whether the criminalization of ballot delivery for other voters violated Section 2. It explained that early voters can mail ballots, use drop boxes, return them to an election office, or turn them in on election day—all trips that the Court found to be “usual burdens of voting.”[66] The Court also faulted the plaintiffs for failing to provide statistical evidence on disparate impact, instead using fact witnesses who testified about the disproportionate use of third-party ballot collection among “minorities in Arizona—especially Native Americans.”[67] But the Court held that even if the plaintiffs had provided statistical evidence of a disparate impact, limiting the people handling early ballots “to those less likely to have ulterior motives deters potential fraud and improves voter confidence” and so it was justified.[68] Due to the “modest evidence of racially disparate burdens” and “in light of the State’s justifications,” the Court found no Section 2 violation.[69]

Finally, the Court rejected the Ninth Circuit’s finding that the ballot-delivery criminalization was motivated by intentional discrimination. In doing so, it focused on the Ninth Circuit’s evaluation of “unfounded and often far-fetched allegations of ballot collection fraud” by State Senator Don Shooter and a “racially-tinged” video.[70] The Court dismissed the relevance of these factors in motivating passage of the bill because it believed that a “sincere” and “serious legislative debate on the wisdom of early mail-in voting” followed, evidentially purging the stain of the racism that began it.[71] In doing so, it rejected the “cat’s paw theory” of liability borrowed from employment discrimination as having “no application to legislative bodies.”[72]

C. Justice Kagan’s Dissent

Following a disturbing one-paragraph concurrence by Justice Gorsuch joined by Justice Thomas, in which they questioned whether a private right of action exists under Section 2,[73] Justice Kagan launched into a thorough and impassioned dissent. Joined by Justices Sonia Sotomayor and Stephen Breyer, she seized upon the VRA’s “far-reaching goal” to end voting discrimination, noted the VRA’s broad text, and recognized the purpose of the 1982 amendments to undo a previous instance “when this Court construed the statute too narrowly.”[74] The dissent acknowledged the historical legacy that made a strong VRA necessary: the promise of the Fifteenth Amendment during Reconstruction and its failure for the next hundred years.[75] It then placed that historical legacy in context, describing how the VRA’s “success lay in its capacity to meet ever-new forms of discrimination,”[76] a project especially vital after states and localities implemented “new restrictive voting laws” following the Shelby County decision and again in recent months.[77] With this background, the dissent chastised the majority for dealing with a fear of the statute itself by writing its own rules and giving “a cramped reading to broad language.”[78] Justice Alito responded to that charge by reproaching the dissent for trying “to bring about a wholesale transfer of the authority to set voting rules from the States to the federal courts.”[79]

The dissent then provided its own reading of Section 2’s basic standard: Courts must “strike down voting rules that contribute to a racial disparity in the opportunity to vote, taking all the relevant circumstances into account.”[80] It focused first on the import of the totality-of-circumstances inquiry which accounts for the law itself and its historical and local “background conditions,” while also accounting for strong state interests in a voting rule.[81] The dissent turned next to Section 2’s inquiry as focused on the law’s effects rather than its purpose, recognizing that discriminatory laws “can arise from facially neutral (not just targeted) rules,” especially when “operating against the backdrop of historical, social, and economic conditions.”[82] When a law places a disproportionate burden on voters of color, the dissent proposed that “strong state interests may save” such a rule but “only if that rule is needed to achieve them.”[83]

Following the articulation of what it believed to be the proper standard, the dissent turned to the specific guideposts identified in the majority opinion. It criticized first the majority’s standardless use of the concepts of a “mere inconvenience” or “usual burden,” noting that disparities arising from “social and historical conditions” mean that one person’s mere inconvenience could be another’s significant burden.[84] The dissent also found fault with the majority requiring an evaluation of all other options of voting as at odds with the statutory text, because making even one voting method less available means it creates an abridgement to the right to vote on equal terms.[85] As to considering common voting practices in 1982, the dissent explained that Section 2 sought to disrupt the status quo in 1982, not to preserve it, making that factor contrary to the Act’s text and purpose.[86] The dissent also panned how the majority proposed to weigh state interests in a voting law. It explained that while preventing fraud and voter intimidation are valid interests, asking only where the law “reasonably pursues” those interests gives the state too much of an escape valve given how easily states may assert those interests “groundlessly or pretextually” and the long history of using fraud as a justification for suppression and disenfranchisement.[87] Finally, the dissent criticized the majority for “declaring some racially discriminatory burdens inconsequential, and by refusing to subject asserted state interests to serious” scrutiny, thereby enabling discrimination.[88]

Turning to the laws at issue, the dissent focused on the majority’s disregard of strong disparate-impact evidence. The dissent noted that “Arizona threw away ballots in that year at 11 times the rate of the second-place discarder,” and that “Hispanics, African Americans, and Native Americans were about twice as likely . . . to have their ballots discarded than whites.”[89] It also faulted the majority for failing to conduct a “searching practical evaluation” into the sources of these disparities—namely, that Arizona changed forty percent of its polling places before the 2008 and 2012 elections, that Arizona did so in “African American and Hispanic neighborhoods 30% more often than in white ones,” that “Hispanic and Native American voters had to travel further than white voters” to polling places, and that “minority voters were disproportionately likely to be assigned to polling places other than the ones closest to where they lived.”[90]

On the criminalization of ballot collection, the dissent focused on facts specific to Arizona concerning Native American communities’ lack of access to mail service—just “18% of Native voters in rural counties” receive home mail delivery “compared to 86% of white voters” in those counties, and many Native Americans in rural Arizona “must travel 45 minutes to 2 hours just to get to a mailbox.”[91] It then explained that no fraud involving ballot collection has ever been found in Arizona, and that other statutes help prevent ballot-collection fraud such as felony offenses for a ballot collector who fails to deliver a ballot or who tampers with a ballot.[92] It criticized the majority for looking at how the ban interferes “with the voting opportunities of minority groups generally” rather than addressing the Ninth Circuit’s “separate finding that the ban poses a unique burden for Native Americans.”[93] The dissent closed by reemphasizing that Section 2’s language “is as broad as broad can be,” but that the majority had cut “Section 2 down to its own preferred size” by using “extra-textual exceptions and considerations to sap the Act’s strength.”[94] It skewered the majority by quoting Shelby County and suggesting that some may “think that vote suppression is a relic of history—and so the need for a potent Section 2 has come and gone,” but that it is Congress, rather than the Court, that “gets to make that call.”[95]

III. Whitewashing Section 2: Brnovich’s Abandonment of Equal Opportunity and Silent Subversion of Race-Conscious Anti-Discrimination Laws.

Confronting constitutional challenges to the newly passed VRA in 1966, the Supreme Court highlighted two points that stood out from the debates about the law’s passage. First, Congress recognized it was confronting “an insidious and pervasive evil which had been perpetuated in certain parts of our country through unremitting and ingenious defiance of the Constitution.”[96] Second, due to the steadfastness and stealth with which state legislatures devised workarounds to previous attempts to confront racial discrimination in voting, the VRA’s remedies would need to be “sterner and more elaborate measures in order to satisfy the clear commands of the Fifteenth Amendment.”[97] When Congress amended Section 2 of the VRA in 1982 in response to the Supreme Court’s decision in City of Mobile reading the section as only prohibiting intentional discrimination, it crafted a standard it believed would confer upon “litigants a flexible tool and a broad mandate to challenge inequalities in the political process.”[98] This left little doubt among members of the Court that the 1982 amendments created the discriminatory-results standard to provide “the broadest possible scope in combating racial discrimination.”[99] Even Justice Antonin Scalia recognized that Congress had provided in Section 2 a “powerful, albeit sometimes blunt, weapon with which to attack even the most subtle forms of discrimination.”[100] Brnovich turns these principles on their head without justifying how it did so.

A. Five Ways in Which the Five Guideposts Undermine Racial Justice Litigation

The five guideposts are not all equally destructive to fighting racial discrimination in voting. Also, taking the Court at its word, it declined to “announce a test,” meaning that the existing two-part test continues to govern in the circuits which had adopted it, as supplemented by the guideposts. Yet the guideposts do present a danger, which lies in how the Court conceptualizes them—prioritizing state interests and dismissing many types of racial disparities—and how they interact. Taken individually, even some of the worst, atextual factors leave openings. For example, examining whether certain voting practices existed in 1982 may harm the effectiveness of claims against discriminatory rollbacks to early voting, but it could benefit a challenge to a strict in-person voting photo-ID law. But then the Court’s heavy weighting of a state’s voter-fraud rationale and the potential availability of voting by mail may nonetheless tip the scales, at least for some courts, even with strong statistical evidence of a significant racial disparity. This section discusses some of the specific ways in which the Court’s guideposts may severely limit Section 2’s utility in challenging discriminatory voting laws.

The first striking aspect of the Court’s guideposts and treatment of other previously relied-upon factors is how it subordinates the impact of historical racial discrimination while elevating the concept of the “usual burdens of voting” from the constitutional context where “[p]roof of racially discriminatory intent or purpose is required . . . .”[101] Both the concept of and specific terminology around the “usual burdens of voting” arise from the Supreme Court’s decision in Crawford v. Marion County Election Board,[102] where it rejected a constitutional challenge to Indiana’s voter-ID law. The Court found that the “inconvenience of making a trip to the [DMV], gathering the required documents, and posing for a photograph” does not “represent a significant increase over the usual burdens of voting” except for a “limited number of persons.”[103]

Despite this carve out that “usual burdens of voting” might be different for some people, in practice this concept has meant that since Crawford few federal appellate decisions not stayed by the Supreme Court have found that a voting law constitutes an unconstitutional burden. The Seventh Circuit’s decision rejecting a Section 2 vote-denial claim challenging Wisconsin’s strict voter-ID law offers a preview of how this concept may be applied after Brnovich. There, the court acknowledged racial disparities in possession of IDs or documents required to get IDs, and the proportion of individuals born out of state that may face steeper burdens in obtaining necessary documents.[104] Nonetheless, it held that there was no Section 2 violation because Wisconsin “extends to every citizen an equal opportunity to get a photo ID” and had not made it “needlessly hard to get photo ID, it has not denied anything to any voter.”[105] Then-Professor and now Assistant Director-Counsel of the NAACP Legal Defense & Educational Fund Janai Nelson foresaw this danger back in 2013, explaining that “[e]qual protection jurisprudence’s notorious ambivalence toward proof of bias (explicit or implicit) sufficient to sustain a constitutional violation” was already “infect[ing] analyses of the VRA.”[106]

Worse still, Brnovich appears not only to import this concept from equal protection jurisprudence, but as Justice Kagan explained, does so in a way that minimizes the likelihood of racial differences in what constitutes a “usual burden of voting.”[107] The Court’s later discussion of two factors previously given important weight in vote-denial claims—past discrimination and whether and how the “effects of that discrimination persist”—confirms this, when it explains that these factors have “much less direct” relevance compared to the five guideposts.[108]

Second, the Court’s benchmark of common practices in 1982 and privileging of longstanding, facially neutral voting laws will undermine the project of Section 2 to dismantle discriminatory voting systems. It strains credulity to believe that in amending Section 2 to create a stronger, more direct discriminatory-results standard, Congress intended to freeze the status quo. As the former head of the Department of Justice Civil Rights Division, Drew Days, wrote in 1981, the gains made by voters of color since 1965 “have not taken on such a permanence as to render them immune to attempts by opponents of equality to diminish their political influence”—he plainly saw that these gains earned “through courageous and tenacious effort, could be swept away overnight” if the VRA’s protections were removed.[109] Likewise, former Florida Governor Reubin Askew noted in 1981 that although the VRA had successfully stripped away “virtually all the overt means of discrimination by which the right to vote was so cynically withheld for so long,” discrimination “simply assumed other, subtler forms.”[110] Indeed, as of 1981, the difference in voter registration between Black and white citizens still exceeded sixteen percent in Georgia, North Carolina, and South Carolina, and was almost twenty percent in Louisiana.[111] The lookback to 1982 wipes away the role of new voting practices like expanded registration opportunities and broader early in-person and mail voting may have played in improving participation rates among communities of color.

The Court’s privileging of “facially neutral time, place, and manner regulations that have a long pedigree” represents a galling misunderstanding of the history of the VRA and the importance of Section 2’s flexible test.[112] Many of the laws responsible for disenfranchising Black voters across the South after Reconstruction—literacy tests, grandfather clauses, and poll taxes—fell into this very category, yet they (and the violence through which they were enforced) proved largely responsible for minimizing Black Southerners’ ability to participate in the political process. Had the Court’s current interpretation prevailed in 1966, Section 2 would have been stopped dead in its tracks.

The third way in which the Brnovich guideposts harm Section 2 vote-denial challenges is by requiring courts to assess the discriminatory burden of a challenged practice in the context of a state’s entire electoral system. In the most obvious sense, by reading out abridgement and the reference to specific challenged practices in Section 2(a), this requirement allows courts to disregard specific harmful practices based on the availability of other voting opportunities. The Court makes this even more burdensome by framing the inquiry theoretically rather than through a searching, practical examination of how the other practices actually function.[113]

Plaintiffs may be able to show how the other options of voting are harder for a specific racial group in a state due to the interaction of historical discrimination, but then the second problem of this requirement comes into play. Even if the strongest claim under Section 2 rests on attacking a specific practice with discriminatory results, the electoral-system consideration will require plaintiffs to examine and potentially challenge the whole election system, making litigation more time-consuming and expensive. For the groups and individuals who nonetheless decide to mount these challenges, they may face the higher barrier of convincing a court to find that a state’s electoral system as a whole creates discriminatory results. True, a court need not make this specific finding to rule in favor of a plaintiff, but it may interpret this decision as requiring it to look at each aspect of the voting system and decide that the non-challenged aspects also do not provide equal opportunity based on race. This may prove a heavy lift with Chief Justice Roberts’s recent words ringing in the ears of even those judges more open to such claims that courts should be wary of “federal intrusion on state lawmaking processes.”[114]

Fourth, while the Court’s guidance to adequately weigh a state’s interest in its voting laws makes practical sense and already existed as part of the evaluation courts performed, the way it frames those interests and heavily weighs them may sabotage vote-denial claims. The Court’s singling out of voter-fraud prevention as a “strong and entirely legitimate state interest” merits concern given the ubiquitous use of this justification for many state voting practices.[115] More alarming, however, is the Court’s application of this justification in analyzing the criminalization of ballot delivery in Arizona. Despite the undisputed fact that no incidences of ballot-collection abuse or fraud have been documented in Arizona,[116] the Court appeared to rely on the state’s voter-fraud justification alone as being sufficient to save the law.[117] Besides making all such laws de facto permissible under Section 2 in spite of the Court’s previous command to conduct an “intensely local appraisal,”[118] some courts could interpret this application to eliminate any need to actually examine the evidentiary basis of a voter-fraud rationale. Consider the notoriously conservative Fifth Circuit’s striking down of Texas’s restrictive voter-ID law under Section 2’s results test just a few years ago.[119] There, the en banc court upheld the district court’s findings of a “stark, racial disparity between those who possess or have access” to the necessary types of ID “and those who do not,” and that the Senate Factors “worked in concert with Texas’s legacy of state-sponsored discrimination to bring about this disproportionate result.”[120] Following Brnovich, would this decision have come down differently based largely on Texas’s voter-fraud rationale? Perhaps not, but it certainly makes an alternative outcome more likely.

Additionally, Justice Kagan correctly explained in her dissent that “election officials have asserted anti-fraud interests in using voter suppression laws” throughout our history, including for laws like poll taxes.[121] This tactic does not belong merely to the pre-VRA period. For example, a federal court detailed how in the 1980s and 1990s, Alabama had used the specter of voter fraud in rural Black communities to pass restrictive absentee ballot reforms in the wake of growing Black political success using absentee balloting as a get-out-the-vote technique. It found that the legislature passed legislation that “had a ‘laser focus on Black political activists’ who had used Alabama’s absentee ballot process to increase Black voter turnout.”[122] This voter-fraud justification hampered a manner of voting that helped rural Black citizens who “regularly worked long hours outside their counties and often lacked access to vehicles,” and “struggled to reach ‘far-flung polling places’ on Election Day”—these communities “saw sharp declines in the number of absentee ballots cast” in the face of these new laws.[123]

As Professor Lorraine Minnite explained, voter-fraud allegations are still commonly used to “shrewdly veil a political strategy for winning elections by tamping down turnout among socially subordinate groups.”[124] White politicians are currently using this strategy in Texas, where the attorney general has targeted recently two Black voters who allegedly attempted to vote while still on probation from a felony conviction and did not realize they were ineligible: Crystal Mason received a five-year sentence and Hervis Rogers’s arrest was touted by Texas Attorney General Ken Paxton on social media.[125] A similar tactic was used in Alabama in the 1980s.[126] The Court’s easy acceptance of a voter-fraud rationale ignores an ugly history and an ugly present.

A fifth way the Brnovich guideposts may undermine future vote-denial cases is by stepping away from the “intensely local” appraisal called for by Congress and downplaying important linkages between a voting rule’s disparate impact and sociohistorical discrimination.[127] As explained previously, the Court appeared to treat the vote-denial test as a more categorical approach to voting systems rather than considering the particular operation of the voting rule “in the State or political subdivision.”[128] It also brushed away the importance of how racial disparities in “employment, wealth, and education” create “some predictable disparities” in voting, ignoring that many of these disparities result from state-sponsored or endorsed discrimination.[129] The Supreme Court recognized in 1966, for example, how literacy tests succeeded in keeping many Black Southerners from voting because of the deep legacy of educational discrimination.[130] But some courts may read Brnovich to minimize the proper consideration of such discrimination.

Scenarios that should have or have created Section 2 liability based on the unique history and local circumstances in a state may now be brushed aside by some courts. Then-Professor and now Principal Deputy Assistant Attorney General for DOJ’s Civil Rights Division Pam Karlan discussed how, “in a jurisdiction where [B]lack voters disproportionately vote on Sundays—particularly when that decision can be explained as stemming from factors connected to socioeconomic disparities—a decision to cut back on Sunday voting will, as a practical matter, disproportionately burden or abridge [B]lack citizens’ right to vote.”[131] Even in this case, Native Americans living in rural communities in Arizona face wide disparities in accessing mail service and must travel long distances to access polling places—the very sort of localized facts that should strongly support Section 2 liability—but the Court largely ignored them.

Taken together, and as applied by the Brnovich Court, the five guideposts spell significant danger for future vote-denial litigation, particularly for courts already skeptical of challenges to state voting rules.

B. Brnovich as an Unspoken Subversion of Race-Conscious Decision Making

It’s easy to explain Brnovich as the confluence of two dominant trends in the Supreme Court’s decision-making: an aversion to race consciousness and an increasing deference to state election laws. On the first trend, as Professor Guy-Uriel Charles aptly noted, “[f]or the Court, race consciousness is a temporary way station on the road to the Nirvana that is colorblindness.”[132] Considering racial classifications, Justice Anthony Kennedy declared that they “are permitted only ‘as a last resort,’”[133] and Justice Sandra Day O’Connor asserted that they threaten “to carry us further from the goal of a political system in which race no longer matters—a goal that the Fourteenth and Fifteenth Amendments embody.”[134] More recently, Chief Justice Roberts famously declared that the “way to stop discrimination on the basis of race is to stop discriminating on the basis of race” in striking down school desegregation plans.[135] And in the VRA context, in a partial concurrence and dissent joined by Justice Alito, he proclaimed that it “is a sordid business, this divvying us up by race.”[136] Even when Justice Kennedy was the swing vote back in 2011, Professor Luis Fuentes-Rohwer observed that “five Justices on the Court have strong reservations about the use of race in general and the modern uses of section 2 of the Act in particular.”[137]

Unlike earlier decisions such as Shaw v. Reno, however, the Brnovich Court did not proclaim the virtues of escaping from race-conscious decision-making. Instead, the Court used its five guideposts to dismantle Section 2 from within, without ever acknowledging it was “de-racing” the statute. Of course, unlike Shaw and other constitutional cases, the VRA demands consideration of a law’s racial impacts. The Court could have taken another approach like it did in Shelby County and declared the results test unconstitutional. Thankfully, it did not, but one wonders why, given the direct hostility to race-conscious statutes expressed by most of the justices in the majority. The best guess lies with the one saving grace of this dark moment in our nation’s voting rights jurisprudence—the growing public knowledge and awareness of voter suppression and attacks on communities of color, much of it sparked by a new generation of Black, Latinx, Native American, and Asian American activists. With this growing awareness, Americans are recognizing that recent laws introduced by state legislatures target many widely popular provisions such as expanded early and mail voting.[138] Perhaps then, it was to reduce public ire and attempt to maintain the Court’s legitimacy that the majority hid the project behind neutral-sounding phrases.

On the second trend, as early as 2009, Professor Ellen Katz noted that the Roberts Court sought “to avoid active federal engagement with the state-created rules regulating democratic participation.”[139] That trend only accelerated, with the Court using new doctrines like the Purcell principle—which it expanded from considering the impact of court-made changes close to an election on voter confusion to a de facto prohibition of such changes in the last months preceding one—to avoid striking down state election laws.[140]

It appears true that Brnovich was a “repudiation of the core aims” of the VRA, in which the Court showed more interest in “protecting the electoral rules of the states from undue intrusion by voters of color” than in fighting racial discrimination in voting.[141] But can one distinguish the Court’s primary motivation: dismantling laws that explicitly consider race or preserving the right of states to create election laws with little interference? Looking only slightly below the surface reveals that these aims are closely interconnected.

Deferring to state legislatures may reference federalism, but the practical impact in the voting context has always been allowing states to discriminate with near-impunity. The Supreme Court abandoned Black voters many times before, with only a few decades of exception. Sometimes, these decisions carried decades-long lasting effects, such as the Court’s abdication to white supremacy in 1903 by declaring that “relief from a great political wrong, if done . . . by the people of a state and the state itself, must be given by them or by the legislative and political department of the government of the United States.”[142] As Professor Richard Pildes described, “once the Supreme Court effectively blessed the disfranchising constitutions, those constitutions then created an electorate in their own image.”[143]

Though the Court may justify its retreat from the “political thicket” as a desire to keep the Court out of partisan disputes, the intertwining of race and party means voters of color bear the burden of that reticence. Professor Franita Tolson rightfully declared, “[P]artisanship that harms a racial group cannot be valid simply because the legislature’s reasons are more partisan than racial.”[144] Yet that is precisely the point at which we have arrived. Justice Alito explained his position a few years back in a racial gerrymandering case when he noted the difficulty of “distinguishing between racial and political motivations,” and seemed to accept that when “a plan that packs Democratic voters” looks “very much like a plan[] that packs African–American voters,” it is better to refrain from intervening.[145]

Whatever the label, Brnovich represents a new capstone in the Court’s withdrawal from the project of remediating racial discrimination in voting, but one it won’t admit.

*            *            *

Jamelle Bouie recently wrote that “[o]ne of the lessons of the South after Reconstruction is that democratic life can flourish and then erode, expand and then contract.”[146] This moment certainly feels like the beginning, or perhaps middle, of a contraction. And as always, voters of color, by design, will feel the brunt of that retrenchment.

In light of intransigence from the Court, how do we proceed? No single, clear answer exists, but several together may push back against this trend and allow the fight against racial discrimination to regain some momentum. For one, Congress should amend both Sections 2 and 5 of the Voting Rights Act. For Section 2, Congress should make clear that it seeks “equal opportunity” rather than “equal openness.”[147] It should also direct courts to analyze current conditions and how past discrimination has created them rather than looking to 1982; explain that one discriminatory aspect of a voting process cannot be cured merely by referring to another method of voting; and explain that a state’s asserted interests must be justified by actual supporting evidence from the state. It should also consider adding an alternative authority in the Act supported by the Constitution’s Elections Clause[148] so that even if the Court strikes down Section 2 as beyond the bounds of the Fourteenth or Fifteenth Amendment, it should continue to apply to time, place, and manner laws governing congressional elections. This does run the risk, however, of states creating dual election systems, which may make participating in state rather than federal elections especially difficult. As to Section 5, whether by amending the formula struck down in Shelby County to reflect current conditions or using the Elections Clause to require nationwide preclearance when the laws affect congressional elections, reinstating some form of preclearance is vital. Section 2 can only reach so many laws at once, especially if it depends on civil rights organizations to enforce it.

All of this is easier said than done. Any of this legislation currently requires sixty votes to overcome the filibuster, and fifty votes do not yet exist in favor of eliminating the filibuster.[149] Any chance, then, will depend on grassroots efforts and continuing to make people aware of the persistence of racial discrimination in voting and the need to act. Yet we also cannot keep “asking Black and brown activists to out-organize racist laws.”[150] We need political courage and leadership from our elected officials.

Justice Kagan was right that if “a single statute represents the best of America, it is the Voting Rights Act.”[151] If we want to keep it, we have work to do.

* Senior Staff Attorney, ACLU Voting Rights Project. The views expressed are the author’s own and should not be attributed to his employer. The author wishes to thank his colleagues at the ACLU Voting Rights Project for their engagement on the important issues raised in this case, Matthew Pennock for his keen editing eye, Dana Cuomo and Adriel Cepeda-Derieux for their comments, and the editors of the ACS Supreme Court Review for their helpful edits.

[1] Brnovich v. Democratic Nat’l Comm., 141 S. Ct. 2321 (2021).

[2] Id. at 2336.

[3] Guy-Uriel E. Charles and Luis E. Fuentes-Rohwer, The Court’s Voting-Rights Decision Was Worse Than People Think, Atlantic (July 8, 2021).

[4] Chisom v. Roemer, 501 U.S. 380, 403 (1991) (quoting Allen v. State Bd. of Elections, 393 U.S. 544, 567 (1969)).

[5] See Barbara J. Flagg, “Was Blind, but Now I See”: White Race Consciousness and the Requirement of Discriminatory Intent, 91 Mich. L. Rev. 953, 957 (1993) (noting a white “transparency phenomenon” in which white individuals fail to recognize “norms, behaviors, experiences, or perspectives that are white-specific” and which “operates to require black assimilation even when pluralism is the articulated goal; it affords substantial advantages to whites over blacks even when decisionmakers intend to effect substantive racial justice.”).

[6] South Carolina v. Katzenbach, 383 U.S. 301, 308 (1966).

[7] See Chandler Davidson, The Recent Evolution of Voting Rights Law Affecting Racial and Language Minorities, in Quiet Revolution in the South: The Impact of the Voting Rights Act 1965-1990 30 (Chandler Davidson & Bernard Grofman eds., 1994); Daniel P. Tokaji, The New Vote Denial: Where Election Reform Meets the Voting Rights Act, 57 S.C. L. Rev. 689, 702 (2006).

[8] Katzenbach, 383 U.S. at 316.

[9] Lani Guinier, The Triumph of Tokenism: The Voting Rights Act and the Theory of Black Electoral Success, 89 Mich. L. Rev. 1077, 1094 (1991).

[10] Pamela S. Karlan, Turnout, Tenuousness, and Getting Results in Section 2 Vote Denial Claims, 77 Ohio St. L.J. 763, 769 (2016).

[11] Daniel P. Tokaji, Applying Section 2 to the New Vote Denial, 50 Harv. C.R.-C.L. L. Rev. 439, 442 (2015).

[12] Karlan, supra note 10, at 69–70.

[13] See Davidson, supra note 7, at 32; Tokaji, supra note 11, at 702.

[14] Dale E. Ho, Building an Umbrella in A Rainstorm: The New Vote Denial Litigation Since Shelby County, 127 Yale L.J. Forum 799, 801 (2018).

[15] White v. Regester, 412 U.S. 755, 766 (1973).

[16] City of Mobile v. Bolden, 446 U.S. 55, 60–62 (1980).

[17] See South Carolina v. Katzenbach, 383 U.S. 301, 338 (1966).

[18] 52 U.S.C. § 10301(a).

[19] 52 U.S.C. § 10301(b).

[20] S. Rep. No. 97–417, at 30 (1982), reprinted in U.S.C.C.A.N. 177, 207.

[21] Thornburg v. Gingles, 478 U.S. 30 (1986).

[22] See, e.g., Bartlett v. Strickland, 556 U.S. 1 (2009); League of United Latin Am. Citizens v. Perry, 548 U.S. 399 (2006); Abrams v. Johnson, 521 U.S. 74 (1997); Johnson v. De Grandy, 512 U.S. 997 (1994); Holder v. Hall, 512 U.S. 874 (1994); Voinovich v. Quilter, 507 U.S. 146 (1993); Chisom v. Roemer, 501 U.S. 380 (1991).

[23] Ho, supra note 14, at 823.

[24] Shelby County v. Holder, 570 U.S. 529 (2013).

[25] Veasey v. Abbott, 830 F.3d 216, 244 (5th Cir. 2016) (en banc); see also Ohio Democratic Party v. Husted, 834 F.3d 620, 637 (6th Cir. 2016); Feldman v. Ariz. Sec’y of State’s Office, 843 F.3d 366, 400 (9th Cir. 2016) (en banc), stay granted, 137 S. Ct. 446 (2016) (mem.); League of Women Voters of N.C. v. North Carolina, 769 F.3d 224, 240 (4th Cir. 2014).

[26] Veasey, 830 F.3d at 245–46; Ohio Democratic Party, 834 F.3d at 639; Feldman, 843 F.3d 404–05; League of Women Voters of N.C., 769 F.3d at 240.

[27] Frank v. Walker, 768 F.3d 744, 754 (7th Cir. 2014).

[28] Greater Birmingham Ministries v. Sec’y of State of Alabama, 992 F.3d 1299, 1330 (11th Cir. 2021).

[29] Democratic Nat’l Comm. v. Reagan, 329 F. Supp. 3d 824, 831–32, 839 (D. Ariz. 2018), aff’d, 904 F.3d 686 (9th Cir. 2018), rev’d and remanded sub nom. Democratic Nat’l Comm. v. Hobbs, 948 F.3d 989 (9th Cir. 2020) (en banc), rev’d and remanded sub nom. Brnovich v. Democratic Nat’l Comm., 141 S. Ct. 2321 (2021).

[30] Reagan, 329 F. Supp. 3d at 831.

[31] Id.

[32] Democratic Nat’l Comm. v. Hobbs, 948 F.3d 989 (9th Cir. 2020), rev’d and remanded sub nom. Brnovich, 141 S. Ct. 2321.

[33] Hobbs, 948 F.3d at 1016.

[34] Id. at 1033.

[35] Id. at 1037.

[36] Brnovich, 141 S. Ct. at 2333.

[37] Id. at 2336.

[38] Id.

[39] Id.

[40] Id. at 2337 (citing Thornburg v. Gingles, 478 U.S. 30, 36–37, 43 n.7 (1986)) (“In Gingles, our seminal § 2 vote-dilution case, the Court quoted the text of amended § 2 and then jumped right to the Senate Judiciary Committee Report, which focused on the issue of vote dilution.”).

[41] 52 U.S.C. § 10301(b).

[42] Brnovich, 141 S. Ct. at 2337 (citing Random House Dictionary of the English Language 1008 (J. Stein ed. 1966)).

[43] Id. at 2338.

[44] Id.

[45] Id. (quoting Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 198 (2008)).

[46] Id.

[47] Id. at 2339.

[48] Id.

[49] Id.

[50] Id.

[51] Id.

[52] 52 U.S.C. § 10301(a).

[53] Brnovich, 141 S. Ct. at 2339.

[54] Id. at 2339–40.

[55] Id. at 2340.

[56] Id.

[57] Id. at 2341.

[58] Id. at 2341–43.

[59] Id. at 2343.

[60] Id.

[61] Id. at 2344 (quoting Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 198 (2008)).

[62] Id.

[63] Id. at 2344–45.

[64] Id. at 2345.

[65] Id. at 2346.

[66] Id. (quoting Crawford, 553 U.S. at 198).

[67] Id.

[68] Id. at 2347.

[69] Id. at 2348.

[70] Id. at 2349 (quoting Democratic Nat’l Comm. v. Reagan, 329 F. Supp. 3d 824, 880 (D. Ariz. 2018).

[71] Id.

[72] Id. at 2350. “A plaintiff in a “cat's paw” case typically seeks to hold the plaintiff’s employer liable for ‘the animus of a supervisor who was not charged with making the ultimate [adverse] employment decision.’” Id. (quoting Staub v. Proctor Hospital, 562 U.S. 411, 415 (2011)).

[73] Id. (Gorsuch, J., concurring).

[74] Id. at 2351 (Kagan, J., dissenting)

[75] Id. at 2353.

[76] Id. at 2354.

[77] Id. at 2355–56.

[78] Id. at 2351.

[79] Id. at 2343 (majority opinion).

[80] Id. at 2357 (Kagan, J., dissenting).

[81] Id. at 2359.

[82] Id. at 2360.

[83] Id.

[84] Id. at 2363.

[85] Id.

[86] Id. at 2363–64.

[87] Id. at 2365–66.

[88] Id. at 2366.

[89] Id. at 2367–68.

[90] Id. at 2368–69 (quoting Johnson v. De Grandy, 512 U.S. 997, 1018 (1994)).

[91] Id. at 2371 n. 15 (citing Democratic Nat’l Comm. v. Hobbs, 948 F.3d 989, 1006 (9th Cir. 2020)).

[92] Id. at 2372.

[93] Id. at 2371.

[94] Id. at 2372–73.

[95] Id. at 2373 (quoting Shelby County v. Holder, 570 U.S. 529, 547 (2013)) (contending that “things have changed dramatically” since the enactment of the Voting Rights Act).

[96] South Carolina v. Katzenbach, 383 U.S. 301, 309 (1966).

[97] Id.

[98] Guinier, supra note 9, at 1095.

[99] Chisom v. Roemer, 501 U.S. 380, 403 (1991) (quoting Allen v. State Bd. of Elections, 393 U.S. 544, 567 (1969)).

[100] Id. at 406 (Scalia, J., dissenting).

[101] Brnovich v. Democratic Nat’l Comm., 141 S. Ct. 2321, 2338 (2021); Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264–65 (1977).

[102] Crawford v. Marion Cty. Election Bd., 553 U.S. 181 (2008).

[103] Id. at 198–99.

[104] Frank v. Walker, 768 F.3d 744, 752–53 (7th Cir. 2014).

[105] Id.

[106] Janai S. Nelson, The Causal Context of Disparate Vote Denial, 54 B.C. L. Rev. 579, 584 (2013).

[107] Brnovich v. Democratic Nat’l Comm., 141 S. Ct. 2321, 2361–63 (2021) (Kagan, J. dissenting).

[108] Id. at 2340.

[109] Drew Days, How the Voting Rights Act is the Most Effective Act on the Books, 4 S. Changes 16, 25 (1981).

[110] Reubin O’D. Askew, Why the South Needs the Voting Rights Act, 4 S. Changes 10, 11 (1981).

[111] Raymond Brown, Barriers to Voter Registration Remain Southwide, 4 S. Changes 34, 34–35 (1981).

[112] Brnovich, 141 S. Ct. at 2339.

[113] See id. at 2346.

[114] Democratic Nat’l Comm. v. Wisconsin State Legislature, 141 S. Ct. 28, 28 (2020) (Roberts, C.J., concurring in denial of application to vacate stay).

[115] Brnovich, 141 S. Ct. at 2341.

[116] Id. at 2370 (Kagan, J., dissenting).

[117] Id. at 2347 (majority opinion).

[118] Thornburg v. Gingles, 478 U.S. 30, 79 (1986).

[119] Veasey v. Abbott, 830 F.3d 216 (5th Cir. 2016) (en banc).

[120] Id. at 264–65.

[121] Brnovich, 141 S. Ct. at 2365 (Kagan, J., dissenting) (citing J. Morgan Kousser, The Shaping of Southern Politics 111 n. 9 (1974)).

[122] People First of Ala.  v. Merrill, 491 F. Supp. 3d 1076, 1106–07 (N.D. Ala.), stayed in part by People First of Ala. v. Sec’y of State of Alabama, No. 20-13695-B, 2020 WL 6074333, at *1 (11th Cir.), stayed in full sub nom. Merrill v. People First of Ala., 141 S. Ct. 25 (2020).

[123] Id. at 1107.

[124] Lorraine C. Minnite, The Myth of Voter Fraud 89 (2010).

[125] Alexa Ura, Texas Court of Criminal Appeals Will Review Crystal Mason’s Controversial Illegal Voting Conviction, Tex. Trib. (March 31, 2021); Attorney General Ken Paxton (@KenPaxtonTX) Twitter (July 9, 2021, 7:32 PM).

[126] See Carol Anderson, One Person, No Vote: How Voter Suppression is Destroying Our Democracy 30–35 (2018).

[127] Thornburg v. Gingles, 478 U.S. 30, 79 (1986).

[128] 52 U.S.C. § 10301(b).

[129] Brnovich, 141 S. Ct. at 2339.

[130] See South Carolina v. Katzenbach, 383 U.S. 301, 310–11 n. 9–10.

[131] Karlan, supra note 10, at 773–74.

[132] Guy-Uriel E. Charles, Racial Identity, Electoral Structures, and the First Amendment Right of Association, 91 Cal. L. Rev. 1209, 1272 (2003).

[133] Bartlett v. Strickland, 556 U.S. 1, 21 (2009) (quoting Richmond v. J.A. Croson Co., 488 U.S. 469, 518, 519 (1989) (Kennedy, J., concurring in part and concurring in the judgment)).

[134] Shaw v. Reno, 509 U.S. 630, 657 (1993).

[135] Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 748 (2007).

[136] League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 511 (2006) (Roberts, C.J., concurring in part, concurring in the judgment in part, and dissenting in part).

[137] Luis Fuentes-Rohwer, The Future of Section 2 of the Voting Rights Act in the Hands of a Conservative Court, 5 Duke J. Const. L. & Pub. Pol’y 125, 152 (2010); see also Travis Crum, Reconstructing Racially Polarized Voting, 70 Duke L.J. 261, 264 (2020) (“The Court thus views Section 2’s race-conscious predicate for liability with suspicion.”).

[138] See, e.g., Matthew Brown, Most Americans Back Both Early Voting and ID Requirements, Monmouth University Poll Finds, USA Today, (June 21, 2021); Christina A. Cassidy & Hannah Fingerhut, AP-NORC Poll: Majority in US Back Easier Voter Registration, AP (Apr. 2, 2021).

[139] Ellen Katz, Withdrawal: The Roberts Court and the Retreat from Election Law, 93 Minn. L. Rev. 1615, 1616 (2009).

[140] Compare Purcell v. Gonzalez, 549 U.S. 1, 4–5 (2006) (per curiam), with Republican Nat’l Comm. v. Democratic Nat’l Comm., 140 S. Ct. 1205, 1207 (2020) (per curiam).

[141] Guy-Uriel E. Charles and Luis E. Fuentes-Rohwer, The Court’s Voting-Rights Decision Was Worse Than People Think, Atlantic (July 8, 2021).

[142] Giles v. Harris, 189 U.S. 475, 488 (1903).

[143] Richard H. Pildes, Democracy, Anti-Democracy, and the Canon, 17 Const. Comment. 295, 313 (2000).

[144] Franita Tolson, Election Law “Federalism” and the Limits of the Antidiscrimination Framework, 59 Wm. & Mary L. Rev. 2211, 2233 (2018).

[145] Cooper v. Harris, 137 S. Ct. 1455, 1488 (2017) (Alito, J., concurring in the judgment in part and dissenting in part).

[146] Jamelle Bouie, Opinion, If It’s Not Jim Crow, What Is It? N.Y. Times (Apr. 6, 2021).

[147] Cf. Brnovich v. Democratic Nat’l Comm, 141 S. Ct. 2321, 2338 (2021) (stating that “equal openness remains the touchstone” of a Section 2 analysis).

[148] U.S. Const. art. I, § 4, cl. 1 (“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations . . . .”).

[149] Brian Slodoysko et al., GOP Filibuster Blocks Democrats’ Big Voting Rights Bill, AP (June 22, 2021).

[150] Markus Batchelor (@MarkusforDC), Twitter (July 22, 2021, 1:28 AM).

[151] Brnovich, 141 S. Ct. at 2350 (Kagan, J., dissenting).

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