Mark Brnovich

So, yes, we're talking about the Kalei decision, but that decision comes on the heels of a series of decisions starting in 2013 when the court gutted the preclearance regime of the Voting Rights Act, which was a provision that said that states and localities with a history of race discrimination in voting had to clear changes to their voting policies with DOJ or a federal court.

Then later in 2021, we saw Brnovich, which made it harder for voters to get a remedy in court when their rights to vote have been burdened on the basis of race.

This has

been building over time.

And the...

What, what happened in, in 2013, there were still these strong litigation tools that were available, and the Supreme Court in 2021, in a case called Brnovich, and then just earlier this year in a case called Louisiana v. Cala, they really stripped out the remaining provisions that could have been used.

Mm.

So we're in a world right now where there's really not much federal law on the books that makes it illegal-

There were, there were vote denial cases, so these are cases against the kinds of laws and policies that make it harder to cast a ballot.

And then, like we started talking about at the very beginning, racial vote dilution, the kinds of policies like racial gerrymandering that took the votes that were cast, but kind of made them meaningless through the use of drawing districts.

In 2021, in a case called Brnovich v. DNC, versus DNC, the Supreme Court basically got rid of the ability of Section 2 to strike down laws and policies that made it harder for voters of color to cast a ballot.

And in fact, since 2021, there has not been one single policy that has been finally struck down in federal court for being racially discriminatory.

Yeah.

Uh, there's Keith Brnovich that happened, uh, they, a couple years ago, which involved, uh, partially one of the issues in Brnovich was, uh, the propriety of voter harvesting-

Mm-hmm

... ballot harvesting, and, uh, Arizona had severely limited it, in other words, didn't allow, there's a law on the books in Arizona that doesn't allow non-family members to go out and collect ballots.

And once I figured out, like, oh, I need to talk the case files from the attorney general's offices at the state library and archives.

And, you know, I had to get the attorney general's personal permission, Mark Brnovich's personal sign-off to go into the files.

They want to make sure anyone going into them is, you know, a serious scholar or researcher.

And once I got there, I realized there was about 150 banker's boxes worth of materials, you know, Police reports, attorney general's memos, court trial transcripts, God knows what else.

So what they did, frankly, was engage in a bit of subterfuge.

They have this language from the act, which has been studiously ignored until Brnovich in Calais and said, look at the Senate report.

The Senate report listed like nine factors, all of which reflected racial inequalities.

And they said, if you can, under the totality of circumstances, take those off, then you'll win.

Justice Brennan then invented his own test, not even found in the legislative history, called the Jingles preconditions, which essentially said if you could create even a marginally compact black district, And blacks, I'm using blacks as a shorthand for all minorities.

And if blacks are losing, then you have to create that district.

And this went largely unimpeded until we saw Calais And they returned for the first time since after the Brnovich decision, they said, well, let's look at the actual statutory language.

And what the statutory language says is blacks are entitled to a system that is equally open to them where they don't have less opportunity than other groups.