It may be incorrect to say that the judges did not create a test in Brnovich. Alito then came up with a series of “benchmarks” to help lower courts resolve future cases along these lines. They are largely detached from the text and purpose of section 2 itself. Concretely, what they represent are traps that lower courts can use to send voting rights suits in case law dungeons. If these beacons came from Section 2 itself, then Congress would be responsible for them. As Kagan noted, however, they appear to be cut from entire fabric by Alito to meet his own needs.
“Majority opinion mainly lives in a lawless area,” she wrote. “He congratulates himself in advance on having given the text of section 2“ special attention ”. And then he leaves that tongue almost entirely behind. (Every now and then, when his legislation threatens to jump off the page, he thinks of sprinkling in a few random statutory words.) Likewise, the majority hardly mentions the precedents of this Court interpreting the text of Article 2. On these two points, you can see why. As we have just described, the language of section 2 is broad. Reading it fairly is therefore reading it in the broad sense. And to read it broadly is to do a lot of things that the majority are determined to avoid. “
Take, for example, Alito’s “benchmark” from 1982, the year Congress mostly recently amended Section 2. It set it as a kind of benchmark against which to assess future claims. “Because every voting rule imposes some burden, it is helpful to have benchmarks against which the burdens imposed by a contested rule can be compared,” Alito explained. “The burdens associated with the rules widely used in adopting Article 2 are therefore useful in assessing whether the burdens imposed by a contested rule are sufficient to prevent the vote from also being ‘open’ or providing an ‘opportunity »Equal to vote in the sense within the meaning of article 2.