Maureen A. Edobor* | 26.6 | Citation: Maureen A. Edobor, Brnovich:  Extratextual Textualism, 26 U. Pa. J. Const. L. 1495 (2024).

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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 ratifying-era 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.

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*Maureen A. Edobor is Assistant Professor of Law at Washington and Lee School of Law and DeLaney Center.