I have a lot of admiration for Justice Kagan, so I’m disappointed to see that her dissent from Justice Alito’s majority opinion in Brnovich v. Democratic National Committee seems to be playing to the grandstands on the Left. A few examples:
1. There is a lot of rousing rhetoric in Kagan’s opening and conclusion—all with respect to two common measures that even the Biden administration couldn’t bring itself to argue were unlawful.
2. Kagan contends that Alito “fears that the statute Congress wrote is too ‘radical.’” But what Alito in fact argues is that Kagan’s “rewrit[ing]” of section 2 is a “radical project.” It’s cheap of her to fool her readers into thinking that Alito applied the term “radical” to the Voting Rights Act.
3. Kagan writes: “Yet efforts to suppress the minority vote continue. No one would know this from reading the majority opinion.” But Alito explicitly states:
Section 2 of the Voting Rights Act provides vital protection against discriminatory voting rules, and no one suggests that discrimination in voting has been extirpated or that the threat has been eliminated.
Moving beyond what Alito labels Kagan’s extended effort at misdirection, I’ll briefly summarize the heart of her argument (joined in full by Justices Breyer and Sotomayor).
Kagan argues that Section 2’s text requires courts to eradicate voting practices that make it harder for members of some races than of others to cast a vote, unless such a practice is necessary to support a strong state interest. (Pp. 12-20.) She contends that the considerations that Alito draws from the text are instead “mostly made-up factors, at odds with Section 2 itself.” (Pp. 20-29.)
Kagan argues that Arizona’s out-of-precinct policy “results in Hispanic and African American voters’ ballots being thrown out at a statistically higher rate than those of whites” and that “Arizona is the national outlier in dealing with out-of-precinct votes, with the next-worst offender nowhere in sight.” (Pp. 29-35.) Similarly, “Arizona’s law mostly banning third-party ballot collection also results in a significant race-based disparity in voting opportunities” for rural Native American voters. (Pp. 35-40.)