Thoughts on Brnovich Oral Argument: Few Surprises, and Voting Rights Plaintiffs Are Likely to Lose (But Exactly How Remains Unclear)

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.

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.

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