Justice Kennedy to the Rescue?

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Section 2 of the Voting Rights Act is a doctrinal mess. Through a totality of circumstances inquiry, Section 2 has evolved from its modest beginnings as a codification of the Fifteenth Amendment into a “mysterious judicial inquiry" that places the Supreme Court in the enviable position of policing the contours of the politics of race . . . Professor Elmendorf's article is a welcome response to this state of affairs. He offers an understanding of Section 2 “as a delegation of authority to the courts to develop a common law of racially fair elections, guided by certain substantive and evidentiary norms, as well as norms about legal change.” This is a thoughtful and intriguing proposal…That said, I part company with Professor Elmendorf, if modestly so, in one crucial respect. His proposal requires much greater faith in the conservative Justices on the Court than the existing evidence allows me to endorse.

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