I had the chance to testify at today’s House hearing on Brnovich and its implications along with Sean Morales-Doyle, Robert Popper, and Ezra Rosenberg. My written testimony can be found here, and a few excerpts are below (focusing on how Congress should respond to the Court’s decision).
This brings me to my third point: Congress need not and should not accept the shackles the Court has placed on Section 2. To restore Section 2 to its proper role, Congress should consider adopting the disparate impact framework that is already used in areas such as employment and housing—and that Justice Kagan endorsed in her powerful dissent. Under this approach, the plaintiff would first have to prove that an electoral practice causes a statistically significant racial disparity. The defendant would then have the chance to demonstrate, through particularized evidence, that the practice is necessary to achieve an important state interest. Finally, the plaintiff could try to show that this interest could be achieved by a different, less discriminatory policy.
This framework is deeply familiar to litigants and courts, having been in place for almost half a century. This framework also avoids the constitutional issues that might be raised by a pure disparate impact standard—one that invalidates laws solely because of their racial disparities. Most importantly, unlike the extratextual factors of the Brnovich Court, this framework is effective. It would impose liability whenever electoral regulations give rise to statistically meaningful and unnecessary racial disparities. It would thus further Congress’ objective, expressed in Section 2 but thwarted by the Brnovich Court, of American elections no longer plagued by racial inequities.
But Congress should not just revise Section 2 in response to Brnovich. It should also protect the right to vote on a nonracial basis in two further ways. One of these is affirmatively specifying which electoral practices states must and must not use, at least in federal elections. This is the strategy of H.R. 1, the For the People Act, as the bill currently stands. The other way that Congress should safeguard the franchise is by creating a new cause of action, available to all citizens of all backgrounds, against unjustifiably burdensome electoral policies. This claim would be an ideal complement to Section 2, targeting needless burdens rather than racial disparities in the electoral process. In combination, the two theories would make voting both more racially equitable and more universally accessible.