All posts by Rick Hasen

“Top US Election Security Watchdog Forced to Stop Election Security Work”

Eric Geller for Wired:

The Cybersecurity and Infrastructure Security Agency has frozen all of its election security work and is reviewing everything it has done to help state and local officials secure their elections for the past eight years, WIRED has learned. The move represents the first major example of the country’s cyberdefense agency accommodating President Donald Trump’s false claims of election fraud and online censorship.

In a memo sent Friday to all CISA employees and obtained by WIRED, CISA’s acting director, Bridget Bean, said she was ordering “a review and assessment” of every position at the agency related to election security and countering mis- and disinformation, “as well as every election security and [mis-, dis-, and malinformation] product, activity, service, and program that has been carried out” since the federal government designated election systems as critical infrastructure in 2017.

“CISA will pause all elections security activities until the completion of this review,” Bean added. The agency is also cutting off funding for these activities at the Elections Infrastructure Information Sharing & Analysis Center, a group funded by the Department of Homeland Security (DHS) that has served as a coordinating body for the elections community.

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“Government Workers Cannot Be Fired for Their Political Views”

John Langford and Erica Newland in The Atlantic:

Political-patronage systems promote corruption at the expense of effective governance, and Americans grew dissatisfied with the cronyism and moblike rule that flowed from the spoils system. Following decades of effort to enact civil-service reform, momentum surged when a disgruntled office-seeker assassinated President James Garfield in 1881. In response, Congress passed the Pendleton Act in 1883 to “regulate and improve the civil service of the United States,” establishing a merit-based system for federal hiring.

Under the current federal civil-service regime, fewer than 4,000 federal employees—including constitutional officers, such as the attorney general and secretary of state, and top agency officials—serve at the president’s pleasure, fireable for political disagreements or pretty much any other reason. The overwhelming majority of the more than 2 million workers who daily serve the American people in the federal civil service are wisely protected from political firings.

That protection flows from something even deeper than the Pendleton Act and other federal statutes. In 1947, the Supreme Court was faced with a First Amendment challenge to the Hatch Act, which limits the extent to which most federal officials can engage in overt political activity while in office. The Court upheld the act but made clear that the First Amendment would prohibit Congress from directly restricting the ability to hold federal offices to members of one party, such as by enacting “a regulation providing that no Republican … shall be appointed to federal office.” Notwithstanding the Court’s guidance, the worst practices of political patronage continued to crop up in state and local governments, forcing the Supreme Court to elaborate the point and put a stop to spoils practices in a series of cases.

The most relevant case to our present-day situation began in 1980, when Republican Illinois Governor Jim Thompson issued an executive order freezing all hiring across state agencies absent express permission from his office. Requests for exceptions became routine, and an agency was set up inside the governor’s office to vet them. Five job-seekers sued, claiming that in practice, the order and exceptions were being used to create a political-patronage system favoring Republicans.

When the case reached the Supreme Court, the Court held that systems of political patronage like the one established by Thompson violate the First Amendment. Quoting one of its first patronage decisions, the Court reaffirmed that “conditioning public employment on the provision of support for the favored political party ‘unquestionably inhibits protected belief and association.’” Doing so “pressures employees to pledge political allegiance to a party with which they prefer not to associate, to work for the election of political candidates they do not support, and to contribute money to be used to further policies with which they do not agree.” It is “tantamount to coerced belief,” something the First Amendment plainly forbids. Nor did it matter that Thompson had not issued a direct order specifying that only Republicans would be hired, because “what the First Amendment precludes the government from commanding directly, it also precludes the government from accomplishing indirectly.”

There is an exception to the First Amendment bar on political hirings and firings. Those officials in legitimate policy making positions can be dismissed for political reasons without offending the Constitution. That’s because in America’s representative democracy, it is important that lawful policy reflects the political will of the voters, as voiced by the executive. But the executive cannot simply label large numbers of officials “policy makers” and render them all fireable at will. Instead, courts must look through labels to the substance of an official’s role and determine whether political alignment is necessary in that role. In any given dispute, the government has the burden of demonstrating that a particular position is in fact a policy-making one before the job-holder may be fired based on raw political allegiance.

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“Musk-linked group offered $5m for proof of voter fraud – and came up with nothing”

Brendan Fischer and Emma Steiner in The Guardian:

In May 2024, a flashy ad went viral on social media warning that “across the country, there are real cases of fraud and abuses of the [election] system that have eroded our trust”. The ad pledged that “whistleblowers” who shared evidence of election fraud “will be rewarded with payment from our $5m fund”.

This reward was courtesy of a just-announced group, the Fair Election Fund, which has deep connections to Elon Musk’s political network, according to materials obtained by Documented.

The Fair Election Fund pledged that “the bulk of the group’s budget will be devoted to paying whistleblowers” for sharing their stories, and that it would launch “aggressive paid and earned media campaigns” that would “highlight these cases”.

It was followed by another ad that ran in swing states during the Olympics and told viewers “you could be eligible for compensation” for sharing evidence of election fraud.

Despite the group’s high-profile, deep-pocketed backers and lucrative bounty offers, it never revealed any evidence of voter or election fraud. Instead, the group took a series of unrelated detours into tangential areas like third-party ballot access, and its effort to uncover fraud reaffirmed what numerous studies, court rulings and bipartisan investigations have concluded: voter fraud is extremely rare.

The lack of evidence has not stopped Republicans in Congress and state legislatures from continuing to push restrictive voting laws aimed at addressing this phantom threat. Meanwhile, Musk is claiming that “fraud” justifies his efforts to slash government operations, but similarly has not revealed much evidence.

The Fair Election Fund has now gone radio silent. Sitemap data shows that the website has not been updated since October, and the X/Twitter account for the group has not posted since November. The group’s spokesperson, former representative Doug Collins, became Trump’s veterans affairs secretary, and is now also leading the office of government ethics….

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“A Supreme Court Race May Shuffle the Rules of Wisconsin’s Democracy, Again”

Bolts:

But voting rights advocates are closely watching the election as well. A host of issues related to voter access—the use of drop boxes, accommodations for disabled voters, and voter ID rules, to name a few—may also ride on this court’s composition. 

“The latest makeup of the court has been a major pro for access to democracy,” said Sam Liebert, a former Wisconsin election clerk who now directs the state chapter of the pro-voter access group All Voting is Local. “It’s so important that we have a supreme court that recognizes that the right to vote is a right.”

Conservatives have also drummed up attention to the April contest’s importance for elections policy. “Very important to vote Republican for the Wisconsin Supreme Court to prevent voting fraud!” Elon Musk posted on X in January, echoing the right’s unfounded claims that Wisconsin elections are fraught with fraud. 

“Elon Musk highlighted a critical issue in this race: election integrity,” Schimel told a conservative radio host. 

Schimel built a record of controversial actions in the name of “election integrity” when he served as attorney general. In 2016, he dispatched state Department of Justice employees to monitor polling sites, mostly in heavily Democratic areas—a move Democrats and voting rights advocates criticized as an intimidation tactic against communities likely to oppose Trump. 

Crawford, meanwhile, says she supports making it easy to vote. “The bottom line is that we need to make sure that eligible voters are able to exercise their right to vote without having to jump through a lot of unnecessary hoops,” she told Bolts.

She added that she is generally wary of policies that purport to make elections more secure but that mainly just hamper voters: “I think it is really important, obviously, that we have fair elections in Wisconsin, and that includes elections that are safe and secure, but also elections where everyone who is eligible to vote can exercise that right and get their ballots cast,” she said. “There needs to be a balance there and the law needs to be used to protect both aspects of elections.”

There’s currently no case pending in front of Wisconsin’s supreme court concerning the voter ID requirement, though Schimel’s campaign has played it up as a live issue. Some prominent supporters have also tied the race to false claims that drop boxes for mail ballots are a vehicle for voter fraud, arguing that Wisconsin’s ability to limit voting by drop box depends on a Schimel victory.

That may be true: In the run-up to the 2024 presidential election, the Wisconsin Supreme Court issued a 4-3 decision that let Wisconsinites deposit their mail ballots at drop boxes. That ruling reversed a 2022 ruling that had banned drop boxes in that year’s midterms. Protasiewicz’s victory and the court’s flip in 2023 made the difference between those two cases, and observers think a conservative majority could revisit the issue ahead of 2026 if the court flips again this year.

The highest-profile voting issue this court handles may be redistricting, which dominated the 2023 race Protasiewicz won, and which led the GOP to threaten to impeach her. The court struck down the previous legislative maps as being non-contiguous, and kicked the matter to lawmakers who, fearing potential court-ordered maps friendly to Democrats, ended up adopting fairer statehouse maps in 2024 that paved the way for Democratic gains amid much more competitive Wisconsin elections last fall. Democrats now see an actual chance at winning legislative control in 2026. …

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“How the Trumps Turned an Election Victory Into a Cash Bonanza”

WSJ:

When Amazon.com founder Jeff Bezos dined with Donald Trump and his wife Melania at Mar-a-Lago in December, there was a lot at stake for both men: Bezos, a titan of industry whose company is crucial to the U.S. economy, was rebuilding his relationship with a resurgent and powerful soon-to-be president.

A lot was at stake for Melania, too: She was looking for a buyer for a documentary about her transition back to first lady. Her agent had pitched the film, which she would executive produce, to a number of studios, including the one owned by Amazon. 

As the meeting approached, Melania consulted with director Brett Ratner on how to sell her idea to the world’s third-richest man. Melania regaled Bezos and his fiancée, Lauren Sánchez, with the project’s details at dinner.

Just over two weeks later, Amazon, a company that prides itself on frugality and sharp negotiating, agreed to pay $40 million to license the film—the most Amazon had ever spent on a documentary and nearly three times the next-closest offer. 

Netflix and Apple declined even to bid. Paramount made a lowball $4 million distribution-rights offer. Disney, the most interested studio besides Amazon, offered $14 million. 

“We licensed the upcoming Melania Trump documentary film and series for one reason and one reason only—because we think customers are going to love it,” said an Amazon spokesman. 

The first lady’s cut is more than 70% of the $40 million, according to people familiar with the matter. And they’re still looking for more: Melania’s agent has been trying to sell “sponsorships” for the film—starting at $10 million—to prominent CEOs and billionaires who were at the inauguration, according to people familiar with the matter. Buyers would get thanked at the end of the credits and be invited to the premiere. These overtures were made independently of the deal with Amazon, which was unaware of the outreach, according to a person familiar with the matter.

The Amazon deal is just one of the ways the new first family has benefited from its return to the White House. Companies have directed about $80 million to members of the Trump family and the Trump presidential library so far, as defendants settle lawsuits the president previously filed against them and corporations enter into new business ventures, including the documentary. This figure doesn’t include potential gains from crypto pursuits.

Much of the legal settlement money will go to a fund for the president’s library, a not-for-profit whose mission is to “preserve and steward” Trump’s legacy. But Trump’s share of a $10 million settlement Elon Musk’s X agreed to this week is expected to go to him directly, according to people familiar with the matter.

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“Order to Drop Adams Case Prompts Resignations in New York and Washington”

NYT:

Manhattan’s U.S. attorney on Thursday resigned rather than obey an order from a top Justice Department official to drop the corruption case against New York City’s mayor, Eric Adams.

Then, when Justice Department officials sought to transfer the case to the public integrity section in Washington, which oversees corruption cases, the two men who led that unit also resigned, according to five people with knowledge of the matter.

The resignations represent the most high-profile public resistance so far to President Trump’s tightening control over the Justice Department. They were a stunning repudiation of the administration’s attempt to force the dismissal of the charges against Mr. Adams.

The departures of the U.S. attorney, Danielle R. Sassoon, and the officials who oversaw the Justice Department’s Public Integrity Section, Kevin O. Driscoll and John Keller, came in rapid succession on Thursday. Days earlier, the acting No. 2 official at the Justice Department, Emil Bove III, had ordered Manhattan prosecutors to drop the case against Mr. Adams.

The agency’s justification for dropping the case was explicitly political; Mr. Bove had argued that the investigation would prevent Mr. Adams from fully cooperating with Mr. Trump’s immigration crackdown. Mr. Bove made a point of saying that Washington officials had not evaluated the strength of the evidence or the legal theory behind the case.

Ms. Sassoon, in a remarkable letter addressed to Attorney General Pam Bondi, said that Mr. Bove’s order to dismiss the case was “inconsistent with my ability and duty to prosecute federal crimes without fear or favor and to advance good-faith arguments before the courts.”

“I have always considered it my obligation to pursue justice impartially, without favor to the wealthy or those who occupy important public office, or harsher treatment for the less powerful,” she said. “I therefore deem it necessary to the faithful discharge of my duties to raise the concerns expressed in this letter with you and to request an opportunity to meet to discuss them further.”

Ms. Sassoon, 38, made a startling accusation in her letter. She wrote that the mayor’s lawyers had “repeatedly urged what she said amounted to a quid pro quo, indicating that Adams would be in a position to assist with the Department’s enforcement priorities only if the indictment were dismissed.”

She said that Mr. Bove had scolded a member of her team for taking notes during the meeting and ordered that the notes be collected at the meeting’s end….

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“Elections, Courts, and Democratic Crisis: Constitutional Structure and the 2020 Election Cases”

Manoj Mate has posted this draft on SSRN (forthcoming, University of Chicago Legal Forum). Here is the abstract:

This essay analyzes how the U.S. constitutional order responds to democratic crisis, by examining how the Supreme Court adjudicated cases related to and arising from the response to the effort to overturn the results of the 2020 election and the January 6th Capitol attack. It analyzes the Court’s approaches to constitutional structure in key cases and how these approaches impact constitutional capacity to address democratic crises. The essay analyzes key weaknesses in the U.S. constitutional framework and how the effort to overturn the 2020 election sought to exploit those vulnerabilities. It then examines how the Supreme Court adjudicated cases related to the effort to overturn the 2020 election, including Moore v. Harper, Trump v. Anderson, and Trump v. United States. I analyze how each of these cases reflected distinct models of constitutional structure and modalities or approaches to constitutional interpretation. I argue that application of constitutional structure-based approaches in these cases pose key challenges for the constitutional order’s ability to respond to democratic crises, and trace how the Court utilized structure-based approaches in ways that weakened our capacity to respond to democratic disaster.

I critiques these approaches and suggest considering insights from comparative constitutional law, including the concept of a “basic structure doctrine” to provide support for court enforcement of the disqualification provision in Section Three of the Fourteenth Amendment. This approach would go beyond analysis of constitutional structure and the allocation of power, to consider the threats posed by certain actions to core elements and features of U.S. constitutional governance and to reconceptualize how the 2020 election cases could be analyzes with reference to the basic features of the U.S. Constitution. This approach would go beyond analysis of constitutional structure and the allocation of power, to consider the threats posed by certain actions to core elements and features of U.S. constitutional governance.

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Top Recent Downloads in Election Law on SSRN

Here:

RankPaperDownloads
1.Misconstruing the Electoral Count Act: A Response to Evan A. Davis and David M. Schulte
Seth Barrett Tillman
National University of Ireland, Maynooth (NUI Maynooth) – Faculty of Law
Date Posted: 13 Jan 2025
Last Revised: 04 Feb 2025
875
2.The “Determinative Popular Vote”: Measuring the Margin in U.S. Presidential Elections
Mark Haidar and Aidan Calvelli
Harvard University – Harvard Law School and Princeton University, Department of Politics, Students
Date Posted: 19 Dec 2024
Last Revised: 29 Jan 2025
325
3.Coups and Punishment in the Constitutional Order
Anthony Michael Kreis
Georgia State University – College of Law
Date Posted: 29 Jan 2025
Last Revised: 29 Jan 2025
179
4.Originalism, Election Law, and Democratic Self-Government
Joshua SellersU
niversity of Texas at Austin – School of Law
Date Posted: 04 Feb 2025
Last Revised: 04 Feb 2025
145
5.The Good Lawyers of January 6
W. Bradley Wendel
Cornell University – School of Law
Date Posted: 13 Dec 2024
Last Revised: 13 Dec 2024
135
6.“The Real Preference of Voters”: Madison’s Idea of a Top-Three Election and The Present Necessity of Reform
Edward B. Foley
Ohio State University (OSU) – Michael E. Moritz College of Law
Date Posted: 15 Jan 2025
Last Revised: 15 Jan 2025
101
7.The Good, the Bad, and the Ugly: Redistricting Commissions in the 2021 Cycle
Samuel Wang and Zachariah Sippy
Princeton University – Princeton Neuroscience Institute and Independent
Date Posted: 10 Jan 2025
Last Revised: 10 Jan 2025
100
8.Campaign Finance and Political Polarization
Richard H. Pildes
New York University School of Law
Date Posted: 13 Dec 2024
Last Revised: 10 Jan 2025
99
9.People v. The Court: The Next Revolution in Constitutional Law
David L. Sloss
Santa Clara University – School of Law
Date Posted: 17 Dec 2024
Last Revised: 22 Jan 2025
91
10.A Democratic Rule of Law
Jedediah S. Britton-Purdy
Duke University School of Law
Date Posted: 17 Dec 2024
Last Revised: 18 Dec 2024
72
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“Meta’s Oversight Board should just quit, critics say”

WaPo:

A coalition of advocacy groups from around the world is calling on Meta’s quasi-independent Oversight Board to resign en masse to protest the social media giant’s recent pullback on content moderation.

In an open letter shared with the Tech Brief ahead of its publication Thursday, the Global Coalition for Tech Justice says Meta “has abandoned any pretense of oversight” after the five-year-old board was reportedly blindsided by some of CEO Mark Zuckerberg’s January policy changes.

The coalition, which says it represents more than 250 organizations and experts from 55 countries, criticizes the board for not publicly pushing back on changes that it says will foster lies, degrade discourse and fuel attacks on women and LGBTQ+ people.

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“Trump takes aim at agencies that police wrongdoing, protect federal workers”

WaPo:

President Donald Trump is taking aim at federal offices that investigate government malfeasance and protect workers from retribution, summarily firing and replacing five top ethics officials this week in an apparent attempt to consolidate his power over the sprawling federal bureaucracy.

Among those fired in the past week: the head of the Office of Government Ethics, which polices high-ranking officials suspected of violating conflict-of-interest rules; the leader of the Office of Special Counsel, which investigates whistleblower reports from government workers — and protects those workers from retribution; the inspector general of the U.S. Agency for International Development, who just Monday released a report detailing the cost to taxpayers of Trump’s effort to dismantle the agency; the chairwoman of the Merit Systems Protection Board, which hears appeals to firings and other disciplinary actions against federal employees; and the chairwoman of the Federal Labor Relations Authority, which protects federal employee unions from actions taken against them.

The firings were met with widespread condemnation from former officials and good-government advocates, who called them an ominous indication of how Trump intends to flout the normal guardrails — and, in some cases, federal law — that constrain public officials. Trump has pledged to root out government waste, fraud and abuse, but advocates noted that he is systematically eliminating many of the internal mechanisms already tasked with doing that work….

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“The public lost access to Census Bureau data for days after a Trump order”

Hansi Lo Wang for NPR:

An apparent attempt by the U.S. Census Bureau to follow an executive order by President Trump targeting gender identity led to the public losing access for days to certain key statistics.

Close to two weeks after users first noticed many parts of the bureau’s website — like those of other agencies — had gone dark, the federal government’s largest statistical agency has yet to make any public statement about the disappearing data and research, at least some of which now appears to be restored.

The lack of an official explanation from the bureau — known for producing closely monitored indicators about the U.S. population and economy — is raising concerns among data users about threats to public trust in the agency and its independence from political interference, as Elon Musk’s team within the Trump administration known as the Department of Government Efficiency seek data access at multiple agencies, including the Bureau of Labor Statistics….

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Levitsky and Way: “The Path to American Authoritarianism: What Comes After Democratic Breakdown”

Steven Letvitsky and Lucian Way in Foreign Affairs:

U.S. democracy will likely break down during the second Trump administration, in the sense that it will cease to meet standard criteria for liberal democracy: full adult suffrage, free and fair elections, and broad protection of civil liberties.

The breakdown of democracy in the United States will not give rise to a classic dictatorship in which elections are a sham and the opposition is locked up, exiled, or killed. Even in a worst-case scenario, Trump will not be able to rewrite the Constitution or overturn the constitutional order. He will be constrained by independent judges, federalism, the country’s professionalized military, and high barriers to constitutional reform. There will be elections in 2028, and Republicans could lose them.

But authoritarianism does not require the destruction of the constitutional order. What lies ahead is not fascist or single-party dictatorship but competitive authoritarianism—a system in which parties compete in elections but the incumbent’s abuse of power tilts the playing field against the opposition. Most autocracies that have emerged since the end of the Cold War fall into this category, including Alberto Fujimori’s Peru, Hugo Chávez’s Venezuela, and contemporary El Salvador, Hungary, India, Tunisia, and Turkey. Under competitive authoritarianism, the formal architecture of democracy, including multiparty elections, remains intact. Opposition forces are legal and aboveground, and they contest seriously for power. Elections are often fiercely contested battles in which incumbents have to sweat it out. And once in a while, incumbents lose, as they did in Malaysia in 2018 and in Poland in 2023. But the system is not democratic, because incumbents rig the game by deploying the machinery of government to attack opponents and co-opt critics. Competition is real but unfair.

Competitive authoritarianism will transform political life in the United States. As Trump’s early flurry of dubiously constitutional executive orders made clear, the cost of public opposition will rise considerably: Democratic Party donors may be targeted by the IRS; businesses that fund civil rights groups may face heightened tax and legal scrutiny or find their ventures stymied by regulators. Critical media outlets will likely confront costly defamation suits or other legal actions as well as retaliatory policies against their parent companies. Americans will still be able to oppose the government, but opposition will be harder and riskier, leading many elites and citizens to decide that the fight is not worth it. A failure to resist, however, could pave the way for authoritarian entrenchment—with grave and enduring consequences for global democracy….

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“US Homeland Security says election security personnel placed on leave”

Reuters:

The Department of Homeland Security, as part of an evaluation of its election security mission, said on Tuesday that personnel focused on misinformation, disinformation and foreign influence operations aimed at U.S. elections have been placed on administrative leave.

DHS Secretary Kristi Noem is “undertaking an evaluation of how it has executed its election security mission with a particular focus on any work related to mis, dis and malinformation,” agency spokesperson Rhonda Lawson said in a statement in response to a Reuters query….

MORE from NPR.

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Must-Read Bloomberg Law Deep Dive: “Voting Rights Claims Plunge in Wake of Supreme Court Decision”

I’ve been waiting to see the results of this study, and it’s consistent with my own research and what I’ve written for my upcoming Yale Law Journal Feature about how Brnovich killed Section 2 vote denial cases:

After the Supreme Court weakened a key piece of the Voting Rights Act, voting discrimination cases are not just harder to bring to court but dramatically so, according to a Bloomberg Law analysis and experts who examined the findings.

Section 2 of the act, which prohibits racial discrimination in voting practices, was nearly 60% less likely to be cited following the court’s ruling in Brnovich v. Democratic National Committee . The decision changed how courts consider whether a law or practice limits someone’s right to vote based on race.

That finding aligns with voting rights groups and some attorneys’ concerns: Brnovich debilitated the most direct avenue to challenge voting discrimination and will have a lasting impact on voting rights.

Law professors, former US election officials, and veteran litigators said the drop-off shows attorneys are searching for other ways to bring such cases, or aren’t bringing them at all.

“We are much more hesitant to bring Section 2 vote denial cases. Period,” said Pooja Chaudhuri, an attorney who represents voters challenging restrictive voting laws at the Lawyers’ Committee for Civil Rights Under Law, one of the nation’s most active voting rights litigation groups.

Bloomberg Law looked at 579 federal voting rights complaints in the four-and-a-half years before the July 2021 Brnovich decision and in the three years and four months after, a period that encompasses the Covid-19 pandemic and two presidential elections. The analysis accounts for the difference in the number of cases filed during those time periods. Redistricting cases, which challenged the boundaries of voting districts, aren’t included because Brnovich didn’t interfere with how Section 2 is used in those cases.

The analysis sheds light on shifting strategies by lawyers bringing allegations of voting discrimination to federal courts.

“Brnovich unquestionably made it much harder to bring Voting Rights Act cases,” said Justin Levitt, an election law expert and professor at Loyola Law School in Los Angeles. He agreed the drop-off in Section 2 cases reflects that.

The National Voter Registration Act and Help America Vote Act, voting rights bills designed to address specific problems and without the broad focus of Section 2, were both cited more frequently following Brnovich. The Civil Rights Act of 1964 was also cited more often following the decision.

Experts agree Brnovich alone isn’t responsible for the difference in the types of cases filed. The number of cases that make up those differences can be small.

Still, Chaudhuri and others say the analysis aligns with their assumptions about Brnovich.

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