Feb 19, 2025 Story by: Editor
A Bloomberg Law analysis reveals that following the Supreme Court’s ruling in Brnovich v. Democratic National Committee, voting discrimination cases have not only become more challenging to bring but have declined significantly. Experts note that Section 2 of the Voting Rights Act, which prohibits racial discrimination in voting, has been nearly 60% less likely to be cited since the 2021 decision.
The ruling altered how courts assess whether a law restricts voting rights based on race. According to voting rights advocates and legal scholars, Brnovich has weakened a key legal tool for challenging discriminatory voting laws and will have long-term consequences.
Legal experts, including former election officials and law professors, suggest that attorneys are now either seeking alternative legal strategies or refraining from filing such cases altogether.
“We are much more hesitant to bring Section 2 vote denial cases. Period,” said Pooja Chaudhuri, an attorney at the Lawyers’ Committee for Civil Rights Under Law, an organization actively involved in voting rights litigation.
Decline in Section 2 Cases
Bloomberg Law examined 579 federal voting rights complaints from the four-and-a-half years before Brnovich and the three years and four months after, covering two presidential elections and the COVID-19 pandemic. The analysis, which excludes redistricting cases, highlights a shift in how lawyers approach voting discrimination claims.
Election law expert Justin Levitt, a professor at Loyola Law School in Los Angeles, affirmed that Brnovich made it “much harder to bring Voting Rights Act cases.” He said the decline in Section 2 cases reflects this shift.
Following the decision, attorneys increasingly cited the National Voter Registration Act, the Help America Vote Act, and the Civil Rights Act of 1964 in voting rights complaints. However, experts caution that Brnovich alone is not solely responsible for this trend.
Even so, Chaudhuri and others believe the analysis confirms their concerns about the ruling’s impact. Reflecting on a 2013 case where the Lawyers’ Committee successfully challenged Texas’ voter ID law under Section 2, she said, “I don’t think that we’d succeed under the new Brnovich standard.”
Brnovich and the Redefinition of Voting Rights
The majority of non-redistricting cases citing Section 2 before and after Brnovich involved claims of racial discrimination. However, while voting rights advocates view the ruling as a severe setback, others argue it properly limits Section 2’s scope.
Hans von Spakovsky, a former Federal Election Commission member and Heritage Foundation official, welcomed the ruling, stating, “It means fewer meritless claims, like the ones brought in Brnovich.”
James Blumstein, a constitutional law professor at Vanderbilt Law School, argued that the decision refocused Section 2 on ensuring equal access to voting rather than equal outcomes. He also pointed out that the Bloomberg analysis is based on complaints, not adjudicated cases, writing, “What an advocate wishes to be illegal or unconstitutional does not always line up with what can be proven or, if proven, to be a violation of the law.”
Some legal experts say the decrease in Section 2 cases signals a shift away from progressive legal strategies. Jason Torchinsky, a campaign finance and election law attorney, stated, “Brnovich really was a bit of a sea change.”
New Legal Challenges and the “Losing Battle”
The Supreme Court’s ruling established five new “guideposts” courts must consider in voting rights cases, including the extent of racial disparity a policy creates. Courts must also assess a law against voting standards in place when the Voting Rights Act was last amended in 1982.
Washington and Lee School of Law professor Maureen Edobor explained that these requirements make proving voting discrimination claims exceedingly difficult. “That stuff’s really, really hard to prove,” she said. “When you read Brnovich and you think about how to apply those factors, you’re fighting a losing battle.”
Beyond Section 2, Bloomberg’s analysis found that complaints related to immigrant voting issues more than doubled after Brnovich, but experts attribute this to a general increase in laws targeting immigrant voters. Likewise, citations of the Civil Rights Act of 1964 increased 6.5 times post-Brnovich, which some experts attribute to a broader legal trend rather than the decision itself.
While Section 2 is being cited less frequently in voting discrimination cases, opinions on the significance of this shift vary. “A lack of cases doesn’t show that a problem no longer exists,” said Sylvia Albert, senior policy counsel at Common Cause, a group advocating for expanded voting access.
The Erosion of the Voting Rights Act
The Voting Rights Act of 1965 played a crucial role in combating voting discrimination for decades. President Lyndon B. Johnson, in a 1965 speech urging Congress to pass the legislation, declared, “No law that we now have on the books… can ensure the right to vote when local officials are determined to deny it.”
For years, courts struck down discriminatory voting policies under Section 2, even in cases where laws were not overtly racist but had disproportionate effects on minority voters. However, in 1980, the Supreme Court ruled that Section 2 challenges could only be brought against intentionally discriminatory laws.
This decision prompted Congress to restore Section 2’s broader scope, leading President Ronald Reagan to sign a bipartisan bill reaffirming the ability to challenge election rules with discriminatory outcomes.
Over the years, numerous Section 2 cases have successfully overturned restrictive laws. For example, in North Carolina alone, 55 successful cases were brought between the law’s revision and 2013. The Supreme Court’s Shelby County v. Holder decision that year further weakened the Voting Rights Act, striking down preclearance requirements for certain jurisdictions with histories of discrimination.
States quickly took advantage of this ruling. According to Deuel Ross of the NAACP Legal Defense and Educational Fund, Texas shut down 800 polling places after Shelby. Voting rights attorneys relied on Section 2 to fight back, winning cases that struck down restrictive voter ID laws, eliminated barriers to early voting, and secured election assistance for minority communities.
The Impact of Brnovich
Then came the Brnovich ruling in 2021. The case challenged Arizona laws discarding votes cast in the wrong precinct and limiting who could collect and submit ballots for voters. Data showed these rules disproportionately impacted American Indian, Hispanic, and Black voters at twice the rate of White voters. However, since the affected minority votes amounted to less than 1% of ballots, the Supreme Court ruled that this disparity was insufficient to prove discrimination.
Supporters of the decision, like von Spakovsky, argue that modern voting laws are far more accessible than in the past. “In 1982, there were no drop boxes, no online registration, and every state restricted absentee ballots to particular categories,” he said. “That makes it harder to challenge rules governing elections today.”
However, Supreme Court Justice Elena Kagan, in her dissent, warned that Brnovich undermines Section 2’s core purpose. “Laws that make voting harder for members of one race than of another, given their differing life circumstances, should be challengeable,” she wrote. She criticized the court for “cutting Section 2 down to its own preferred size,” arguing that the new legal standards “sap the Act’s strength.”
In contrast, Justice Samuel Alito, writing for the conservative majority, dismissed Kagan’s concerns, stating that she advocated for a “freewheeling” standard that would unjustly weaken state control over elections.
A Deepening Divide
With Brnovich limiting Section 2, experts anticipate continued legal battles over voting rights. The debate over the ruling underscores a broader divide between those who see it as necessary legal reform and those who view it as a major setback for civil rights.
Ultimately, the Supreme Court’s decision has reshaped how voting discrimination claims are litigated—leaving some to argue that it safeguards fair elections, while others contend it erodes protections that have existed for decades. Source: Bloomberg Law
