Judge Bumatay (alongside Judges Bennett, Nelson & VanDyke) dissent from the denial of rehearing en banc in this case. It's a 30-page missive that argues that states should have more leeway than Ninth Circuit precedent currently allows to restrict voting on initiative, referenda and recall petitions.
Let's leave to one side the atmospherics of conservative jurists arguing in favor of more restrictions on voting -- an issue of some political salience in the contemporary era. Judge Bumatay is making a doctrinal point, and he's (of course) entitled to do so, using whatever arguments he'd like. Those arguments stand or fall on their own merits.
But as a practical and persuasive matter, if you're arguing in favor of the legitimacy of state-sponsored limitations on voting, I might suggest that you not -- as Judge Bumatay does pervasively throughout the entire 30-age opinion -- focus on similar efforts to constrain voting during Reconstruction.
Because, yes, states -- particularly in the South -- did indeed make pervasive efforts to limit ballot access during Reconstruction, so there's indeed a lot of historical precedent on that front.
But I'm not at all certain that precedent cuts the way Judge Bumatay wants it to.
Because most of us, I suspect, don't view those voter suppression efforts during Reconstruction as a good thing that we should diligently attempt to replicate.
