by Guy-Uriel Charles & Luis E. Fuentes-Rohwer
July 8, 2021
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If the Court were writing on a blank slate, it would presumably be free to make whatever judgment it thinks appropriate, such as whether state rules are much more likely than not to be legitimate or whether certain burdens on voting are too much for voters of color to bear. But the Court is not writing on a blank slate. The core aim of the VRA is to protect voters of color from undue intrusion upon their voting rights by the states. Crucially, America’s racially stratified society did not happen by chance; it is the product of a long history of intentional discrimination, including voting discrimination. This history of discrimination and the reality of current discrimination should mean that the scales must tip in favor of voters of color and voting equality. Moreover, institutional deference for a co-equal branch should lead to deference to Congress’s judgment, as well as the democratic process, that voters of color deserve extra protection in attempting to exercise their right to vote.
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Brnovich is so troubling and potentially destructive because it is not operating within the confines of the VRA project. The decision is a repudiation of the core aims of that project. Rather than engage productively in the collective enterprise of figuring out how to protect voters of color against the states, the Court majority is more interested in protecting the electoral rules of the states from undue intrusion by voters of color. The majority’s opinion sends a clear message that voter fraud, not racial discrimination, is a threat to the American system of representation.