The district court hearing the challenge to SB 202, Georgia’s recent package of voting restrictions, denied in its entirety the defendants’ motion to dismiss. Of note, the court treated Brnovich as simply identifying a few more factors that courts may consider in Section 2 vote denial cases — not as creating a definitive new test.

Additionally, contrary to State and Intervenor Defendants’ contentions that Brnovich v. Democratic National Committee, 141 S. Ct. 2321 (2021), established certain requirements that Plaintiffs failed to meet here, the Supreme Court in that case expressly “decline[d] . . . to announce a test to govern all VRA § 2 claims” involving time, place or manner voting restrictions, id. at 2336. The Supreme Court explained that Brnovich was its “first foray” into deciding this type of claim and therefore found it “sufficient for present purposes to identify certain guideposts” that led to its decision rather than to mandate a test that must be satisfied in all circumstances. Id. (emphasis added). Thus, while the language in Brnovich could portend future requirements to state or prove a § 2 time, place or manner claim, it should not be interpreted as currently setting forth pleading requirements that Plaintiffs must fulfill in this case. . . .

The Supreme Court identified other relevant factors, but, as discussed above, it was careful to define those factors as mere guideposts. See id. at 2336. These guideposts include the size and degree of the burden on voting, the size of the disparities between the protected class and other groups, the opportunities provided by a state’s voting system, etc. See id. at 2336, 2338-39. Because this list is neither exhaustive nor prescriptive, Brnovich does not require Plaintiffs to plead any specific set of factors.