71 Am. U. L. Rev. F. 14 (2021).

Abstract

The Voting Rights Act of 1965 was a sweeping piece of legislation that helped to secure the ideals of the Civil War amendments by enfranchising Black voters across the United States. The statute was unique in its creation of both proactive and retroactive requirements to prevent and strike down racially discriminatory legislation. After the Supreme Court invalidated several important sections of the Voting Rights Act in 2012, America was left with section 2, which allows plaintiffs to challenge voting regulations based on intent or result.

In the case of Brnovich v. Democratic National Committee, decided in 2021, the Supreme Court further weakened the Voting Rights Act by misinterpreting section 2. Brnovich fails to lay out a clear test for courts to rely on going forward but introduces several factors in addition to those already used in section 2 claims. The Court then uses the totality of the circumstances analysis to uphold two Arizona voting policies that disenfranchise minority voters.

This Comment argues that the Court incorrectly interprets the text of section 2, leading to flawed factors that fail to protect minority voters as required by the Voting Rights Act. Using the Court’s own factors in the totality of the circumstances analysis, this Comment concludes that both Arizona voting restrictions violate section 2 under the results test. Additionally, this Comment argues that one of the restrictions was enacted with discriminatory intent in violation of the intent test of section 2 and the Fifteenth Amendment. This Comment concludes with an appeal to Congress to update and strengthen voting protections in the United States.

* Senior Staff Member, American University Law Review, Volume 71; J.D. Candidate, May 2022, American University Washington College of Law; B.A. International Political Science, 2018, Emory University. I would like to sincerely thank everyone who helped me through the process of writing this Comment: to Scout Henninger, my editor, who gave thoughtful suggestions and met me where I was at every step; to Professor Wermiel, my faculty advisory; to the hardworking staff of the American University Law Review, especially Maddie Fuller, the final editor on my piece; and to Alec, my friends, and my family for their encouragement, love, and support.