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.