Brnovich v. DNC: Election Litigation Migrates from Federal Courts to the Political Process

21 Pages Posted: 24 Sep 2021 Last revised: 28 Oct 2021

Date Written: September 21, 2021

Abstract

We are in a time of public skepticism over elections. The losing side doubts the fairness of the outcome, attributing the loss to suppression, fraud, foreign influence, or late-breaking changes to laws— some “true reason” outside the legitimate political process why a preferred candidate failed. The winning side is a sour contest or a sore loser away from doubting the legitimacy of the election.

It’s hard to tell whether the sharp rise in litigation over elections is the cause or the effect. Major political parties are spending more money than ever on lawyers and litigation in federal elections, from $7.5 million in 2012 to more than $66 million in 2020. Seemingly minor changes to schedules, deadlines, or how forms are mailed immediately prompts the filing of a legal complaint. Every corner of election administration is up for a lawsuit as major political parties vie for the smallest competitive advantage—actual or perceived.

While Brnovich v. Democratic National Committee was a case about the Voting Rights Act, the hallmark voting legislation of the civil-rights era, it began as one of these efforts by a political party to litigate relatively minor issues of state election administration. A district court rejected the lawsuit. But on appeal, the case took on outsized importance as an appellate court found that Arizona enacted a statute with racially discriminatory intent, opening the door to judicial oversight of newly enacted election rules. That caught the attention of the Supreme Court, which in turn weighed in for the first time on an entire class of claims under the Voting Rights Act.

The decision in Brnovich likely limits opportunities for plaintiffs litigating certain classes of election-law cases, at least compared to the baseline of what some federal courts had permitted in the last few years. But it’s also the latest in a 20-year string of Supreme Court cases emphasizing that the political process, not the federal courts, remains the principal place to address most election-law issues. Litigation continues to rise even as plaintiffs are increasingly likely to find themselves on the losing side of the case. And it remains unclear whether public confidence, through litigation or otherwise, will rise anytime soon.

Keywords: elections, campaign finance, election law, presidential elections, ballot access, voter identification, voter registration, election administration, litigation, judicial review, voting rights act, arizona, supreme court, ballot collection

JEL Classification: K00, K1, K10, K19, K3, K30, K39, K4, K40, K41

Suggested Citation

Muller, Derek T., Brnovich v. DNC: Election Litigation Migrates from Federal Courts to the Political Process (September 21, 2021). 2020-2021 Cato Sup. Ct. Rev. 217, U Iowa Legal Studies Research Paper No. 2021-40, Available at SSRN: https://ssrn.com/abstract=3928146

Derek T. Muller (Contact Author)

Notre Dame Law School ( email )

P.O. Box 780
Notre Dame, IN 46556-0780
United States

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