Behind a paywall. A snippet:
“At a time when more than a dozen conservative states have enacted new voting limitations and no evidence of substantial fraud has emerged from the 2020 presidential contest, election law experts say the lower standard could have an enormous impact on a wave of lawsuits that may be filed under the 1965 Voting Rights Act in coming years.”
A reader of the blog sent along a link to this article: How to Win a “Long Game”: The Voting Rights Act, the Republican Party, and the Politics of Counter‐Enforcement. Here’s the abstract:
ADRIENNE JONES and ANDREW POLSKY examine how the Republican Party engaged in counter-enforcement of the Voting Rights Act of 1965, notably during the Reagan and Bush 43 administrations, in an effort to maximize the voting strength of pro-Republican voting constituencies. They argue that sustained counter-enforcement efforts lead to sharp policy oscillations when parties alternate in power and that if a party pursues the long game of persistent counter-enforcement, it may find itself with the opportunity to achieve lasting results.
(When I first moved to Ohio in the early 1990s, a topic of political conversation was how the Republican Party had forged an alliance with the civil rights community to redistrict the state in a way that benefited their mutual interests, but at the expense of the Democratic Party. While the politics of redistricting remain complicated, there have been significant shifts in the decades since then.)
Now that I have finished a draft of a new Article, Political Conduct and the First Amendment, I am eager to join the conversation on the ELB. I couldn’t be more thankful to Rick for including me as part of the team. I am a devout reader of the blog and look forward to broadening the ongoing discussion in the election law community about how to improve both democratic governance and faith in democratic institutions.
In the meanwhile, like many of us, I have been wrestling with how to make sense of the Roberts Court’s indifference to voters and democracy. Political Conduct and the First Amendment is my take on the bigger picture:
Preview: The First Amendment’s primary constitutional role is to defend our nation’s commitment to the collective project of self-governance. Its provisions protect both speech and political conduct toward the end of securing vital channels for influencing public policymaking, demanding responsiveness, and ensuring accountability. Over time, however, the Supreme Court and scholars alike have gravitated to the speech clause, driven by the misconception that democracy is a product of political discussion, rather than political participation. The Court has thus reduced a multifaceted amendment protecting the political process writ large into a singular protection for free expression. The Article explains not only why this is a mistake, but how it negatively impacts our democracy. It proceeds to offer a more nuanced account of the First Amendment’s relationship to self-governance—one that vindicates a construction of the amendment that actually protects democracy in all its facets. The three main pillars of this new account are: protection for political conduct; recognition of a strong anti-entrenchment norm; and a better appreciation of the significance of drawing a distinction between the domain of governance and the domain of politics in First Amendment jurisprudence.
Over at RealClearPolitics, I have this piece looking at the potential effect of Brnovich v. Democratic National Committee on intentional discrimination claims, including the lawsuit recently filed by the Justice Department against portions of Georgia’s SB 202. Much of the commentary after Brnovich has focused on the disparate impact components of the opinion, but I wanted to tease out some of the implications from the intentional discrimination side. Additionally, I try to puzzle out Justice Elena Kagan’s footnote in her dissenting opinion in which she concludes she “need not pass” on the intentional discrimination holding of the Ninth Circuit’s opinion.
… on the implications of the Supreme Court’s new Americans for Prosperity Foundation for IRS rules on donor disclosure applicable to 501(c)(3) groups. Her Tax Notes letter to the editor is also available on SSRN.
Calling it an “embarrassment” in this Q&A, Nick expresses views on the majority opinion in Brnovich that are much harsher than mine. Given the inherent ambiguity of section 2 as revised by Congress, and the genuine difficulty of applying it to the myriad situations in which plausible claims can arise, the Court was confronted with providing some sort of gloss on the statutory text, whether the five factors that Justice Alito invoked (in a jurisprudential approach reminiscent of Justice Breyer, as when interpreting the Necessary and Proper Clause in Comstock, for example) or Nick’s own “disparate impact” analogy to Title VII. (To complain that the Brnovich majority is not being “textualist” in its statutory interpretation, and then to criticize the Court for adopting a different non-textualist gloss on the statute, strikes me as a little like wanting to have one’s cake and eat it too. I also frankly don’t know what it would have meant to be a “textualist” in Brnovich when the statute’s text was inherently incapable of resolving the case, and when the statute’s own “totality of circumstances” inquiry is a textualist invitation to go beyond the text itself in developing a judicially crafted set of doctrines to implement the text as cases arise.)
But the more interesting question going forward, it seems to me, is what if anything Congress is capable of doing in updating the VRA. As Nick correctly says: “Federal legislative action is a clean, powerful fix. Brnovich was just a decision involving a federal statute. In theory, if Congress doesn’t like a court ruling about a federal statute, all Congress has to do is change the statute.” Easier said than done, of course, given the filibuster, as Nick also rightly observes. I’ve argued that Congress should consider a new national preclearance requirement, but limited to just congressional elections, as a way to redress both Brnovich and Shelby County (and tackle partisan gerrymandering) without running into potential constitutional difficulties under the “congruence and proportionality” doctrine of Boerne and related cases. That type of statute, too, would require overcoming the filibuster obstacle one way or another.
WSJ reports on the recent explosion of election-related litigation but also the challenges lawsuits have in light of new rulings like Brnovich.
In TPM, an excerpt from Orville Vernon Burton and Armand Derfner’s new book Justice Deferred: Race and the Supreme Court. Here’s the last paragraph of the excerpt:
In 1989, in a dissenting opinion, Justice Blackmun made an observation that has seemed more prophetic with each passing day: “One wonders whether the majority still believes that race discrimination — or, more accurately, race discrimination against nonwhites — is a problem in our society, or even remembers that it ever was.”
Can’t wait to read the book!
This all happened at Wednesday’s Senate Judiciary Committee subcommittee hearing on voting rights after Brnovich and Shelby County.
You can watch Senator Padilla ask me the initial question in the video at the 2:56:42 mark.
Senator Lee’s rant, where he demands an apology for my analysis (and suggests the statement was made with reckless disregard for the truth and that Justice Alito is one of the finest Justices to ever serve on the Court) begins at the 3:03:19 mark.
My response (not from Senator Lee, but from Senator Blumenthal, the chair of the committee who asked me to respond) begins at the 3:25:46 mark.
Linda Greenhouse on Brnovich:
Justice Samuel Alito’s opinion for the six-justice majority insisted that the law should pay little mind to the occasional “inconvenience” of casting a ballot. Justice Elena Kagan’s dissenting opinion, joined by two other justices, accused the majority of taking the “grand and obvious” right to an “equal opportunity to vote” and reducing it to nothing more than “equality-lite.”
The competing visions in the Brnovich v. Democratic National Committee decision reflected profoundly different understandings of what law needs to do to keep the basic mechanics of democracy functioning. In that, it offered an almost perfect mirror of the partisan divide over the seemingly simple concept of the right to vote.
Jeff Greenfield in Politico:
The decision [in Brnovich] was a gift-wrapped present to future Republican candidates, and a direct slap at one of the top priorities of not just Democrats, but good-government advocates across the country. The Democratic response? President Joe Biden urged the Senate to pass the For the People act, a voting rights bill that doesn’t even have full support from his own party. Massachusetts Senator Ed Markey, echoing the thoughts of many, promptly tweeted out some items from the progressive wish list: “We must abolish the filibuster and pass the For the People Act and John Lewis Voting Rights Act,” he said, “and we must expand the Supreme Court.”
In Washington, in the year 2021, neither of these things is going to happen. The “For the People Act” can only be passed by killing off the filibuster, a notion that is itself at least two votes short of reality. Even full passage of the law wouldn’t solve many of the key challenges those GOP laws present for democracy. And expanding the Court by four members—to let President Biden create a 7-6 liberal majority—has nowhere near majority support in the Senate and is in any case a genuinely bad idea.
Ron Brownstein in the Atlantic:
[T]here is a gnawing anxiety among voting-rights advocates that even if Democrats find a way to roll back the Senate filibuster and pass new federal legislation safeguarding access to the ballot, the Republican-appointed majority on the Supreme Court might still strike it down.
Last week’s Supreme Court ruling, in which the six Republican-appointed justices outvoted the three appointed by Democrats to uphold two Arizona laws that critics called racially discriminatory, has elevated that concern to a new height. It is forcing congressional Democrats and their allies to confront the question of whether it’s possible to “court-proof” their efforts to protect voting rights.
Rolling Stone: “Combined, the AFPF and Brnovich decisions continue the Roberts court’s decade-plus track record of undermining the hard-fought voting laws enacted during the Civil Rights Movement and the anti-corruption reforms passed in the aftermath of the Watergate scandal. And with a six-vote conservative majority on the Supreme Court in place for years — if not decades — to come, that trend shows no sign of ending soon. “
A We the People podcast from NCC, featuring Rick H, Ilya Shapiro, and Jeffrey Rosen.