The most doctrinally significant portion of the Court’s opinion in Brnovich is part III.C.1, where the Court announces a series of factors that will be particularly salient in Section 2 vote denial cases from this point forward. These factors are (1) the magnitude of the voting burden imposed by a practice, (2) the degree to which a practice was widespread in 1982, (3) the size of the racial disparity caused by a practice, (4) the ease of voting under a state’s whole electoral system, and (5) the strength of the state interests underlying a practice. I just wrote a column criticizing these factors on the ground that they’re almost entirely divorced from the statutory text. But here I want to explore what they might mean for future litigation.
One implication is that relatively few challenges to early and mail-in voting regulations will succeed. As the Court’s opinion points out, early and mail-in voting barely existed in 1982. Any voting burdens imposed by states’ early and mail-in voting rules will also likely be perceived as light. After all, in the Court’s view, it would be permissible (and not unduly burdensome) for a jurisdiction not to offer early or mail-in voting at all. (The same point holds for other post-1982 developments like automatic and same-day voter registration, all-mail elections, drop boxes, curbside voting, etc.)
Second, challenges to relatively novel restrictions will be more likely to prevail. By definition, such restrictions weren’t prevalent in 1982. Because of their newness, their impositions may also seem to courts to exceed the usual burdens of voting. Notably, these novel restrictions may include photo ID requirements for voting. Photo ID laws were unheard of in 1982, and even today, they’re used in only a few states. The recent efforts at election subversion may also fall into this novel category (assuming they can be linked to racial disparities) since they’re unprecedented in modern times.
Third, we’re unlikely to see serious future suits that don’t try to quantify the magnitude of a practice’s disparate racial impact. As the Court noted, the Brnovich plaintiffs didn’t have statistical evidence about the size of the racial disparity caused by the third-party ballot-collection ban. Now that it’s clear that the size of the disparity matters, sophisticated litigants will always find experts to testify about that issue.
And fourth, since states’ whole electoral systems are now relevant, challenges should be stronger in states with lower turnout and/or higher costs of voting. Diverse low-turnout states (in 2020) include Alabama, Arkansas, Louisiana, Mississippi, New Mexico, New York, South Carolina, and Texas. Diverse states where the cost of voting is especially high include Alabama, Arkansas, Florida, Georgia, Mississippi, South Carolina, and Texas. In these places, plaintiffs should be able to argue convincingly that states’ other voting opportunities are highly constricted.