After Brnovich v. DNC: Will SCOTUS eventually declare Section 2 unconstitutional?

[I’m not Stu]

Kavanaugh will write the opinion most likely, which fulfils Robert's desire which will be relatively narrow. Alito will definitely write a much more extreme concurrence joined by Thomas and maybe others like Gorsuch and Barett.

No. Kavanaugh rarely gets blockbusters because of seniority. It will be Alito in a 6-3 or 5-1-3 decision.

[Donerail]

Shockingly, the Supreme Court decided not to strike down the VRA. They also don't say anything about vote dilution claims, or redistricting more broadly, writing that "this case has nothing to do with redistricting, what are you talking about." Brnovich v. DNC, slip op. at 8 (July 1, 2021).

[brucejoel99]

Second, we think it prudent to make clear at the beginning that we decline in these cases to announce a test to govern all VRA §2 claims involving rules, like those at issue here, that specify the time, place, or manner for casting ballots. Each of the parties advocated a different test, as did many amici and the courts below. In a brief filed in December in support of petitioners, the Department of Justice proposed one such test but later disavowed the analysis in that brief.⁸ The Department informed us, however, that it did not disagree with its prior conclusion that the two provisions of Arizona law at issue in these cases do not violate §2 of the Voting Rights Act.⁹ All told, no fewer than 10 tests have been proposed. But as this is our first foray into the area, we think it sufficient for present purposes to identify certain guideposts that lead us to our decision in these cases.

ERM: "Is this a dead VRA?"

[I’m not Stu]

The VRA still lives, but I was right about a partisan decision.

[Kahane's Grave Is A Gender-Neutral Bathroom]

I don't understand much legalese, so I take this to mean ERM's dooming about 7-0 R Alabama won't come to fruition?

[I’m not Stu]

I don't understand much legalese, so I take this to mean ERM's dooming about 7-0 R Alabama won't come to fruition?

At least not yet. SCOTUS can still take up another case to kill Section 2.

[brucejoel99]

I don't understand much legalese, so I take this to mean ERM's dooming about 7-0 R Alabama won't come to fruition?

Correct, yes. Section 2 still survived & the Court did literally nothing that'd harm its applicability to this redistricting cycle.

[I’m not Stu]

I don't understand much legalese, so I take this to mean ERM's dooming about 7-0 R Alabama won't come to fruition?

Correct, yes. Section 2 still survived & the Court did literally nothing that'd harm its applicability to this redistricting cycle.

That is true for now, but a VRA redistricting case could be taken up next term.

[brucejoel99]

I don't understand much legalese, so I take this to mean ERM's dooming about 7-0 R Alabama won't come to fruition?

Correct, yes. Section 2 still survived & the Court did literally nothing that'd harm its applicability to this redistricting cycle.

That is true for now, but a VRA redistricting case could be taken up next term.

And how, exactly, will a 2020-cycle redistricting case realistically reach the Court before OT2023?

Stop trying to make it seem as if you know what you're talking about, cLaIrVoYaNt. You're never going to.

[politicallefty]

I think it's quite likely Alito has the Arizona cases (though possibly a slim chance of Kavanaugh and virtually nil of it being one of the liberals). It's probably going to be 6-3 for the state on an ideological split. I would expect Kagan to write a scathing dissent.

I would be stunned if Roberts didn't have AFP/Thomas More v. Bonta. That one will probably be an ideological split against the state, but it's possible the issues could possibly result in some concur/dissents from the liberals. Either way, I expect the state to lose. It's just a matter of how broad or narrow the decision will be.

Called it (although it wasn't that much of a reach). Kagan's dissent was longer than the majority opinion and I'm sure she would've read it from the bench if they were doing this in person. The attacks on the VRA have been a hallmark of the Roberts Court since the beginning (more specifically, when Alito replaced O'Connor). However, Congress has made it easy for the Court to do what it is doing. Congress needs to use its full authority under Article I, Section 4, Clause 1 (that only covers Representatives and Senators, but the power is unquestionable and a place to start as states would otherwise have to start separating elections). That's also where the power to set federal redistricting standards and prohibit gerrymandering should come from.

The other case is quite concerning when it comes to campaign finance disclosure laws. I'm not sure the DISCLOSE Act would survive this Court. I find it interesting that conservatives are suddenly discovering a right to privacy in the Constitution.

[brucejoel99]

I think it's quite likely Alito has the Arizona cases (though possibly a slim chance of Kavanaugh and virtually nil of it being one of the liberals). It's probably going to be 6-3 for the state on an ideological split. I would expect Kagan to write a scathing dissent.

I would be stunned if Roberts didn't have AFP/Thomas More v. Bonta. That one will probably be an ideological split against the state, but it's possible the issues could possibly result in some concur/dissents from the liberals. Either way, I expect the state to lose. It's just a matter of how broad or narrow the decision will be.

Called it (although it wasn't that much of a reach). Kagan's dissent was longer than the majority opinion and I'm sure she would've read it from the bench if they were doing this in person. The attacks on the VRA have been a hallmark of the Roberts Court since the beginning (more specifically, when Alito replaced O'Connor).

Yeah, given that she literally went so far as to mention Dred Scott in the dissent, there's honestly just no doubt in my mind that this would've constituted her 4th-ever reading of a dissent from the bench had they been able to conclude in-person.

However, Congress has made it easy for the Court to do what it is doing. Congress needs to use its full authority under Article I, Section 4, Clause 1 (that only covers Representatives and Senators, but the power is unquestionable and a place to start as states would otherwise have to start separating elections). That's also where the power to set federal redistricting standards and prohibit gerrymandering should come from.

Indeed, given that Chief Justice Roberts explicitly said the following about H.R. 1 (which - with the exception of the addition of severability clauses in every section - remains the same bill in the 117th that it was in the 116th) in Rucho:

[T]he Framers gave Congress the power to do something about partisan gerrymandering in the Elections Clause. The first bill introduced in the 116th Congress would require States to create 15-member independent commissions to draw congressional districts and would establish certain redistricting criteria, including protection for communities of interest, and ban partisan gerrymandering. H. R. 1, 116th Cong., 1st Sess., §§2401, 2411 (2019).

Granted, he later followed that up by stating that the majority was obviously "express[ing] no view on" such a pending proposal as H.R. 1, & were rather "simply not[ing] that the avenue for reform established by the Framers, and used by Congress in the past, remains open," but doing so obviously served as a pretty big tell as to how a majority of the Court sees this: that Congress can indeed legislatively dictate such redistricting provisions on the basis of the Elections Clause.

The other case is quite concerning when it comes to campaign finance disclosure laws. I'm not sure the DISCLOSE Act would survive this Court. I find it interesting that conservatives are suddenly discovering a right to privacy in the Constitution.

Originalism is only as expansive as you want &, thus, make it to be!

[politicallefty]

Indeed, given that Chief Justice Roberts explicitly said the following about H.R. 1 (which - with the exception of the addition of severability clauses in every section - remains the same bill in the 117th that it was in the 116th) in Rucho:

[T]he Framers gave Congress the power to do something about partisan gerrymandering in the Elections Clause. The first bill introduced in the 116th Congress would require States to create 15-member independent commissions to draw congressional districts and would establish certain redistricting criteria, including protection for communities of interest, and ban partisan gerrymandering. H. R. 1, 116th Cong., 1st Sess., §§2401, 2411 (2019).

Granted, he later followed that up by stating that the majority was obviously "express[ing] no view on" such a pending proposal as H.R. 1, & were rather "simply not[ing] that the avenue for reform established by the Framers, and used by Congress in the past, remains open," but doing so obviously served as a pretty big tell as to how a majority of the Court sees this: that Congress can indeed legislatively dictate such redistricting provisions on the basis of the Elections Clause.

Indeed. That decision was one of the worst in recent memory. The dissent was Justice Kagan at her best. While it does leave a statutory remedy for Congressional redistricting, there is no realistic federal remedy for state legislative gerrymandering. There are those like the late Robert Bork that believed Congress has the Guarantee Clause at its disposal. It's beyond even thermonuclear. It was a power last used during the Reconstruction Era to disestablish state governments.

[I’m not Stu]

If Roberts votes to uphold a potential future federal ban on gerrymandering, how many votes on SCOTUS would there be to uphold the ban?

[Vosem]

If Roberts votes to uphold a potential future federal ban on gerrymandering, how many votes on SCOTUS would there be to uphold the ban?

This depends what "ban on gerrymandering" might mean: nobody can agree on what gerrymandering is. However, the 1967 law mandating that states use single-district elections (rather than electing all members of the House at-large) has never been particularly controversial. So long as the requirements are clearly defined, I think this sort of thing might be upheld 0-9.

The problem is that no gerrymandering ban with clear requirements will pass, since there is no method that would help every party in every state.

[brucejoel99]

If Roberts votes to uphold a potential future federal ban on gerrymandering, how many votes on SCOTUS would there be to uphold the ban?

Stop basing the premises of your questions on melodramatic fear-mongering instead of legal analysis.

[I’m not Stu]

Will SCOTUS eventually declare Section 2 unconstitutional?

[Kahane's Grave Is A Gender-Neutral Bathroom]

Will SCOTUS eventually declare Section 2 unconstitutional?

As of right now, no.

[politicallefty]

If Roberts votes to uphold a potential future federal ban on gerrymandering, how many votes on SCOTUS would there be to uphold the ban?

This depends what "ban on gerrymandering" might mean: nobody can agree on what gerrymandering is. However, the 1967 law mandating that states use single-district elections (rather than electing all members of the House at-large) has never been particularly controversial. So long as the requirements are clearly defined, I think this sort of thing might be upheld 0-9.

The problem is that no gerrymandering ban with clear requirements will pass, since there is no method that would help every party in every state.

There isn't going to be a perfect solution, but that doesn't mean we shouldn't try. HR1 ("For the People Act") both mandates independent commissions and sets out basic federal standards for Congressional redistricting. Those two provisions are actually separate from one another. When it comes to redistricting reform, something is invariably better than nothing. That's definitely partly why HR1 has so many severability clauses. If the independent commissions were struck down for some reason (although I think that would be extreme judicial overreach), the redistricting standards would still stand. Just as we currently have single-member district requirements, we once had compactness requirements as well. (I thought we had contiguity requirements as well, but I can't find that in current federal law.) As I said before, Congress has near plenary power over Congressional elections ("except as to the Places of chusing Senators").

As I was reading up more on this subject, I'm almost surprised I missed 2017's Cooper v. Harris. The Court voted to strike down two districts in North Carolina under the Fourteenth Amendment and the VRA. Most surprising is that Justice Thomas voted with the liberals and he was fully on board with Justice Kagan's majority opinion.

[I’m not Stu]

Section 2 will eventually be struck down 6-3 or 5-4. The five part test established by Brnovich v. DNC is only temporary.

[SteveRogers]

Section 2 will eventually be struck down 6-3 or 5-4. The five part test established by Brnovich v. DNC is only temporary.

On what grounds?

[I’m not Stu]

Section 2 will eventually be struck down 6-3 or 5-4. The five part test established by Brnovich v. DNC is only temporary.

On what grounds?

That Section 2 will be struck down.

[SteveRogers]

Section 2 will eventually be struck down 6-3 or 5-4. The five part test established by Brnovich v. DNC is only temporary.

On what grounds?

That Section 2 will be struck down.

But, like, what would the legal reasoning be?

[I’m not Stu]

Section 2 will eventually be struck down 6-3 or 5-4. The five part test established by Brnovich v. DNC is only temporary.

On what grounds?

That Section 2 will be struck down.

But, like, what would the legal reasoning be?

That Section 2 violates the 15th Amendment by going too far.

[brucejoel99]

Oh, ERM, never change.