Voting Rights Claims Plunge in Wake of Supreme Court Decision

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.

Using Section 2, the Lawyers’ Committee was part of the team that successfully litigated a 2013 case challenging Texas’ law that required voters to show a photo ID to vote. A judge ruled the law violated Section 2 and the US Constitution because it discriminated against Black and Hispanic voters and functioned as a poll tax.

But if the case were brought now, Chadhuri said, “I don’t think that we’d succeed under the new Brnovich standard.”

Where voting rights advocates see Brnovich as a significant blow to combating discrimination in voting, others argue the ruling refocuses and reins in Section 2. The case centered on a liberal challenge to Arizona’s rules discarding votes cast mistakenly at the wrong precincts and limits on who could take a voter’s ballot to the polls for them.

“It means fewer meritless claims, like the ones brought in Brnovich,” said Hans von Spakovsky, formerly a member of the Federal Election Commission and Department of Justice attorney who is now manager of the Heritage Foundation’s Election Law Reform Initiative.

James Blumstein, a constitutional law scholar and Vanderbilt Law School professor, said Brnovich tried to refocus Section 2 on what it was initially intended for: equal access to voting as opposed to equal outcomes.

He pointed out that the analysis is based on complaints and not adjudicated cases. “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,” he wrote in an email.

Some lawyers and legal scholars praise the shift they see in the Bloomberg Law analysis. In the 60 years since the Voting Rights Act was enacted all states have made it easier to vote, and they see the post-Brnovich drop in cases as an example of fewer progressive groups stretching federal law to boost Democrats’ election chances.

While Section 2 claims will still be filed, the Supreme Court’s decision cut off a way to drill down into voting statistics and use small demographic disparities found there to argue racism, said veteran litigator Jason Torchinsky, a partner at Holtzman Vogel and specialist in campaign finance and election law.

“Brnovich really was a bit of a sea change,” he said.

Losing Battle

The Brnovich decision outlined five “guideposts” courts must now consider when deciding whether a law hurts someone’s right to vote based on their race, including how big of a racial disparity a policy caused. Courts must also judge a voting practice against what was considered standard practice when the Voting Rights Act was last amended in 1982.

They also must consider the state’s voting system as a whole, and the state’s interest in a voting practice — like trying to prevent hypothetical voter fraud, Washington and Lee School of Law professor Maureen Edobor said.

“That stuff’s really, really hard to prove,” Edobor said of these new standards. “When you read Brnovich and you think about how to apply those factors you’re fighting a losing battle.”

While experts were more confident the drop-off in Section 2 cases could be attributed to Brnovich, other findings in the analysis are harder for experts to decipher.

Cases related to immigrants more than doubled after Brnovich but Danielle Lang, senior director of voting rights at the Campaign Legal Center, said there are more laws targeting immigrants in the voting context, and in general. So there are also more complaints along those lines, Lang said.

The Civil Rights Act of 1964 was 6.5 times more likely to be mentioned in complaints after the decision, but Lang said there is growing interest in the law outside of Brnovich, particularly to argue cases where someone’s vote wasn’t counted because of mistakes on ballots or registration forms.

Lang, Levitt, and von Spakovsky identified citations of the Help America Vote Act nearly doubling in frequency after Brnovich as probably having less to do with the decision and more to do with a growing number of conservative claims. That law, and the National Voter Registration Act, are increasingly used to challenge voter rolls.

And the decrease in cases related to disabilities could reflect that people had more methods available to cast a vote after the 2020 election, Levitt said.

The analysis clearly shows Section 2 is being used less in voting discrimination cases. But depending on who you ask, that’s either a blow to one of the most important civil rights laws or the whole point of the Brnovich decision.

“A lack of cases doesn’t show that a problem no longer exists,” said Sylvia Albert, senior policy counsel at Common Cause, a group supporting expanded voting access.

Crucial Protections

Following its passage, the 1965 Voting Rights Act chugged along for decades.

“No law that we now have on the books, and I have helped to put three of them there, can ensure the right to vote when local officials are determined to deny it,” President Lyndon Johnson told Congress in a March 1965 speech urging it to pass legislation addressing discrimination in voting.

When Johnson signed the act into law five months later, it started a decades-long battle over the law’s power and reach.

For years federal courts struck down state and local government voting practices under Section 2. But judges wrestled with how to apply its expansive anti-discrimination mandate in instances where local policies weren’t overtly racist but still had the effect of diminishing racial minority groups’ voting power.

In 1980 the Supreme Court weighed in, limiting Section 2 challenges to only voting rules intentionally created to discriminate.

That spurred Congressional backlash. Recognizing that prejudice could be easily concealed by simply not discussing race while altering policy, President Ronald Reagan signed a bipartisan renewal of the law reviving groups’ power to attack election rules that have discriminatory results.

Hundreds of cases citing the law were filed in subsequent decades, according to research conducted by the University of Michigan Law School’s Voting Rights Initiative. For example, North Carolina plaintiffs alone brought 55 successful cases under Section 2 from the time Congress updated the law to 2013.

That year the Supreme Court handed down another ruling that made Section 2 protections even more important for minority voting rights advocates.

The high court’s Shelby County v. Holder ruling struck down part of the act that froze voting rules in states and counties with a history of racially discriminatory practices unless lawmakers received clearance from a federal court or the Justice Department to change their rules.

States, especially across the South, leaped at the opportunity to change their voting systems, said Deuel Ross, deputy director of litigation at the NAACP Legal Defense and Educational Fund.

Texas, for instance, shut down 800 polling places, said Albert.

Attorneys fought the effort using Section 2, notching victories against states. These litigators leveraged data to show local rules covering the time, place, and manner of voting had heavier impacts on minority groups compared to their White neighbors.

They won all over the map. Under a barrage of Section 2 cases: a Texas ID mandate fell; Navajo voters in Utah forced a settlement requiring state voting-interpretation assistance; North Carolina’s law eliminating a host of rules like same-day registration and pre-registration for 16- and 17-year-olds was axed; and Ohio struck a deal with the NAACP to add an additional Sunday of early in-person voting to accommodate Black voters coming to the polls from church.

Sapping Strength

Then came Brnovich in 2021, which challenged Arizona’s rules on discarding votes and taking ballots to the polls for other voters.

Data showed that Arizona’s policies, which were fairly common across the country, negatively affected American Indian, Hispanic, and Black voters at twice the rate of White voters. But that 2-to-1 ratio applied only to a very small number of minority votes — less than 1%.

A majority of Supreme Court justices said the reliance on a relatively small overall impact for minority voters wasn’t enough to win a case.

Supporters of the ruling, like von Spakovsky, say the justices properly recognized that states have made it far easier to vote since the 1980s.

“In 1982 there were no drop boxes, no online registration, and every state restricted casting of absentee ballots to particular categories,” like those with disabilities or those stuck overseas, said von Spakovsky. “That makes it harder to challenge rules governing elections today because in 1982 the rules were much stricter than they are today.”

In her dissent of the Brnovich decision, Supreme Court Justice Elena Kagan said Section 2 was broad by design – so “laws that make voting harder for members of one race than of another, given their differing life circumstances” could be challenged regardless of whether that was their intended goal.

In its decision, the majority of the court “cuts Section 2 down to its own preferred size,” she wrote. The new considerations, she said, “sap the Act’s strength.”

Justice Samuel Alito fired back. Writing for the conservative majority, he said Kagan wanted a “freewheeling” standard — a “radical project” that would diminish states’ power to regulate their elections.

Hammer and Screwdriver

Experts with decades of practice, both conservative and progressive, agree attorneys are increasingly looking to laws other than Section 2 of the Voting Rights Act to file voting discrimination cases.

Laws like the Help America Vote Act and the National Voter Registration Act increased by 90% and 138% respectively after Brnovich but they can’t replace sweeping impacts of wins under the Voting Rights Act.

A typical win for plaintiffs under the Voting Rights Act might wipe out entire sections of a state law that discriminate against voters of color. A typical Voter Registration Act win might only temporarily delay a purge of registered voters until after an election, said David Becker, a former DOJ civil rights litigator and founder of the Center for Election Innovation & Research.

Even the Civil Rights Act, which drastically increased after Brnovich, isn’t a stand-in for Section 2.

“They’re not for the same purpose,” Levitt, of Loyola Law School, said. “It’s like a hammer and a screwdriver. But if somebody takes the head off your hammer, you start looking around for what other tools you have in your tool belt that might help you build stuff.”

Pamela Karlan, a former deputy assistant attorney general in the Justice Department’s Civil Rights Division and Stanford Law professor, noted the 14th and 15th Amendments, which guarantee equal protections for all Americans, could still be used to argue voting discrimination.

Brnovich “changed the rules on what to do in cases where the court says ‘well we don’t think this practice was intentionally discriminatory but it’s had that result,’” Karlan said.

But citations of the 14th Amendment dipped about 15% since Brnovich, Bloomberg Law’s analysis shows. The 15th Amendment saw a 36% relative increase.

Since Brnovich, lawyers have been hesitant to file cases, afraid of wasting resources only to get a bad Voting Rights Act ruling in federal court. Even in federal courts, election lawyers are more likely to take a loss instead of appealing their cases and giving the Supreme Court a chance to further dilute Section 2, Albert said.

Instead, election lawyers are taking cases to state judges, resulting in skyrocketing ad-spending and protracted litigation in state court races. It’s also increased partisanship on the benches and led to more threats to judges and election workers, Becker said.

In purple states, which matter most for control of the White House and Congress, election law decisions are often flipped depending on the political makeup of who controls the courts.

Some states have robust voting rights built into their constitutions. Some have passed laws seeking to empower election litigators. Still, state courts are a poor substitute for a robust federal system, Albert said.

“State laws and state constitutions are just not created to protect most vulnerable populations from these political influences,” Albert said. “The federal government has had to step in, and when federal law doesn’t allow that to happen, we’re really failing those populations.”

Seamus Hughes and Derek Willis contributed to this story
Art Direction by David Evans
Photo Illustration by Jonathan Hurtarte