Travis Crum: “Avoiding Avoidance in Brnovich”

The following is a guest post from Travis Crum:

In today’s decision in Brnovich v. DNC, the Supreme Court established a new, more stringent discriminatory-effects test for vote-denial claims brought under Section 2 of the Voting Rights Act. Many commentators will focus on how the Court made it far harder to bring such claims, which have proliferated after Shelby County v. Holder gutted the preclearance regime. Today is definitely a loss for voting rights plaintiffs. But I want to focus on what is absent from Brnovich: namely, any discussion of constitutional avoidance or even a constitutional holding about the Fifteenth Amendment.

In articulating a new totality-of-the-circumstances test for vote-denial claims, Justice Alito’s majority opinion reads as a purely statutory decision. Indeed, Justice Kagan criticizes the Court for treating the VRA like “any old piece of legislation—say, the Lanham Act or ERISA.” Whether you agree with the Court’s test or not—and to be clear, I do not— Brnovich’s statutory reasoning stands out for several reasons.

First, the Court has routinely invoked constitutional avoidance when discussing the VRA. Perhaps most famously, the Court’s decision in Northwest Austin invoked constitutional avoidance to creatively re-write the VRA’s bailout mechanism. Of course, Northwest Austin’s homage to the equal sovereignty principle would rear its head four years later in Shelby County. But one can find seeds of discontent about the VRA’s constitutionality in opinions stretching back decades.

Second, the Court has questioned the constitutionality of disparate-impact provisions in other anti-discrimination statutes. In Inclusive Communities, the Court, in holding that disparate-impact claims were cognizable under the Fair Housing Act, cautioned that “[c]ourts should avoid interpreting disparate-impact liability to be so expansive as to inject racial considerations into every housing decision.” The Court’s earlier decision in Ricci raised similar concerns about Title VII. Indeed, in his concurring opinion in that case, Justice Scalia predicted a clash between the Equal Protection Clause and disparate-impact provisions. In Brnovich, we heard nothing about these concerns from the Court or—perhaps most shocking—from any of the conservative Justices in a separate concurrence.

Third, the briefs in the case (including an amicus brief authored and filed by me in support of respondents) discussed the relevant constitutional standard of review for Congress’s Fifteenth Amendment enforcement authority. The parties and amici debated whether Katzenbach’s rationality standard, Boerne’s congruence and proportionality test, or Shelby County’s equal sovereignty principle was the governing precedent. Not a peep from the Court on that open and significant constitutional question.

And although the Court’s discussion of Section 2 is generating the most interest, the Court addressed the substantive scope of the Fifteenth Amendment for the first time since 2000. On this front, the Court relied on the clear-error standard of review, chiding the en banc Ninth Circuit for invoking a cat’s paw theory of liability in overturning the district court’s factual findings. A majority of the Court did not reach out and decide constitutional questions that have been repeatedly ducked: whether the Fifteenth Amendment requires a showing of discriminatory intent and whether it is limited to vote-denial claims. And rightly so, as those issues were not in dispute in the case.

The upshot of Brnovich’s statutory holding is that it can be overturned by Congress. Just as the 1982 version of Section 2 was a clear response to City of Mobile v. Bolden, Congress—if it can get its act together—can easily respond to Brnovich. The Court put no constitutional barriers in its way. And in the meantime, lower courts should avoid reading Brnovich as speaking to any underlying constitutional concerns about the VRA or disparate-impact provisions more generally.

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