Publication Date
12-2024
Document Type
Article
First Page
1495
Abstract
This Article provides a comprehensive analysis of Brnovich v. Democratic National Convention, which purports to create a new standard for Section 2 claims under the Voting Rights Act, by situating the critique in the ratifyingera history and original intentions of the VRA’s constitutional counterpart, the Fifteenth Amendment. Brnovich is necessarily examined through a historical and political framework, identifying throughlines from the Reconstruction Era original intentions for the Fifteenth Amendment, distilled from Congressional debates, the VRA’s initially expansive Supreme Court interpretation in South Carolina v. Katzenbach, and Congress’ Section 2 amendments in 1982, rebuking the Court’s attempts to erode the legal force of the VRA in Mobile v. Bolden.
In Brnovich, the Court effectively nullifies the VRA’s Section 2 by erecting ultra vires legal standards and “guideposts” to evaluate voting qualifications, prerequisites, standards, practices, and procedures which were intended to, and do have a disparate impact and discriminatory effect on VRA protected classes. The Court’s newly created “guideposts” are not based on the rich legislative history of the Fifteenth Amendment or Voting Rights Act and its five subsequent bipartisan reauthorizations through 2006 or properly applied cannons of statutory interpretation. Instead, these “guideposts” are judicially fabricated to end the so-called “racial entitlement” the Act purportedly creates, bearing little resemblance to the Fifteenth Amendment’s original racial equity purpose and the Court’s prior legal precedents.
As a result, the Article advocates for a constitutional amendment to cement the right to vote as a fundamental right subject to strict scrutiny analysis in Constitutional jurisprudence to indemnify democracy against further erosion of the right by the Court. The multi-part amendment would guarantee the right to vote as fundamental (without regard to status as a state or federal correctional facility), constitutionalize same-day voter registration, expand the definition of protected classes, and mandate nonpartisan non-legislating independent redistricting commissions to ensure the promise of “one person, one vote,” to undo the combined effects of Shelby County v. Holder, Rucho v. Common Cause, and Brnovich.
Repository Citation
Maureen
Edobor,
Brnovich: Extratextual Textualism,
26
U. Pa. J. Const. L.
1495
(2024).
Available at:
https://scholarship.law.upenn.edu/jcl/vol26/iss6/3