Congress anticipated that most Section 2 cases would involve dilution claims when it amended the Voting Rights Act in 1982. Congress crafted the amended statute to restart challenges to dilutive electoral structures of the sort that had been halted by the Supreme Court’s 1980 decision in City of Mobile v. Bolden. There, the Court held that a finding of liability under Section 2, as enacted in 1965, required a showing that discriminatory intent motivated the challenged practice. The 1982 amendments eliminated this intent requirement, advancing Congress’s belief that electoral practices may cause cognizable injuries even absent proof discriminatory intent propelled their enactment.
The 1982 amendments targeted at-large structures, like the one in City of Mobile, that predictably and reliably ensured that Black voters could not elect representatives of choice. Congress’s focus on dilution, moreover, is evident in the text of the amendments—which was taken, in part, from language used by the Supreme Court to define constitutional racial vote dilution in cases predating City of Mobile—as well as in much of the legislative history to the 1982 amendments. Indeed, the Senate Judiciary Committee Report accompanying the 1982 amendments listed factors to guide the Section 2 inquiry that were themselves derived from earlier constitutional vote dilution cases.
Not all Section 2 cases are dilution cases. Since 1982, 125 Section 2 cases involved non-dilution claims, variably described as “vote denial” or “time, place, and manner” disputes. Non-dilution claims have addressed election procedures (e.g., early voting rules, voter registration requirements, election scheduling), appointment/state control (e.g., challenges to decisions replacing or shifting power from elected positions with appointed ones), ballot design, felon disenfranchisement statutes, and related measures. Though they are a minority of Section 2 cases overall, non-dilution cases represent a growing proportion of Section 2 cases. Between 1982 and 2002, non-dilution cases comprised 21% (54/263) of Section 2 cases. In the years since, they represent 35% (72/203).
Black plaintiffs participated in 71% of Section 2 cases—the most of any plaintiff group. Latino plaintiffs participated in 27% of cases, American Indian plaintiffs in 6% of cases, white plaintiffs in 2% of cases, and Asian American plaintiffs in 1% cases. (These percentages exceed 100% because multiple plaintiff groups brought separate claims in some cases). Six percent of cases were brought by coalitions of racial groups alleging they jointly constituted a single cohesive voting bloc.
Success varied by plaintiff group. Black plaintiffs succeeded in 43% of the cases in which they participated, American Indian plaintiffs succeeded in 59%, Latino plaintiffs succeeded in 33%, coalition claims were successful in 37%, Asian American plaintiffs succeeded in 20%, and white plaintiffs succeeded in 9%.
The Senate Judiciary Committee report accompanying the VRA’s 1982 reauthorization identified several factors to guide the assessment of whether a challenged practice or procedure violates Section 2 as amended. The Senate Report stated the Committee’s expectation that the listed factors “will often be the most relevant ones,” but that “in some cases other factors will be indicative of the alleged dilution.” Federal courts construing Section 2 claims have repeatedly, albeit not universally, invoked the Senate factors.
Plaintiff success has been considerably higher in cases in which courts found one or more of the Senate factors. Notably, plaintiffs found success in all cases in which a court expressly found Senate factor 9 (tenuousness). Plaintiffs lost every case in which a court determined that Senate factor 2 (racially polarized voting) was absent.
In Thornburg v. Gingles, the Supreme Court identified three “preconditions” relevant to Section 2 claims: namely, that the racial or language minority group is “sufficiently large and geographically compact to constitute a majority in a single member district;” that the minority group is “politically cohesive;” and that the “majority votes sufficiently as a bloc to enable it … usually to defeat the minority’s preferred candidate.” While Gingles itself stated these factors were relevant to Section 2 claims addressing “dilution through submergence” in at-large electoral schemes, federal courts have invoked the Gingles factors in a variety of Section 2 cases. Since Gingles was decided, 139 cases found the first factor to be satisfied, 141 cases found the second factor to be satisfied, and 108 cases found the third precondition to be satisfied.
Plaintiffs have been more likely to succeed in dilution cases when the Gingles factors are met. Of the 100 of cases in which all three factors are found, for instance, plaintiffs found success in 87% of them. Not every case that found the Gingles factors translated into a successful plaintiff outcome, with sixteen cases finding that other factors weighed against liability. Conversely, some plaintiffs have found success in dilution cases without meeting the Gingles factors. Some of these successes predated Gingles itself, while others involved rulings that preceded the type of factual findings needed to find the Gingles factors. Still others involved findings of intentional discrimination.
The nine Senate Factors are:
The first seven factors were explicitly enumerated in the Senate Report accompanying the VRA’s 1982 reauthorization. The eighth and ninth factors were included in the report as examples of factors beyond the first seven that courts might examine to determine if a practice violated Section 2. In practice, however, courts have applied the eight and ninth factors in the same manner as the first seven factors, and courts have rarely looked beyond the nine factors. Following the practice of courts hearing Section 2 cases, the dataset treats the nine factors as coequal.
From 1982 through 2013, Section 2 operated in tandem with Section 5 of the Voting Rights Act. First enacted in 1965, this regime required jurisdictions with notably low levels of voter registration and turnout to seek federal approval, known as “preclearance,” before implementing any changes to their electoral procedures. The Supreme Court’s 2013 decision in Shelby County v. Holder rendered Section 5 inoperative by scrapping the criteria Congress used to designate “covered” jurisdictions subject to the preclearance requirement.
Since Shelby County was decided in 2013, Section 2 cases decided in once-covered jurisdictions represent a greater proportion of the total Section 2 cases than they did previously. Prior to 2013, 51% (186/366) of Section 2 cases came from covered jurisdictions. After 2013, 57% (57/100) of the cases originate in these regions. This increase in Section 2 cases was to be expected, given that a portion of the electoral changes once blocked by Section 5 appeared vulnerable to Section 2 challenges as well. This rise was also fueled by the fact that a number of once-covered jurisdictions responded to Shelby County by adopting electoral changes that the preclearance regime either had previously blocked or would have blocked had it remained in place.
Another way to examine Shelby County’s impact is to compare Section 2 decisions during the decade before and the decade following the ruling, which involves two periods of comparable length that, notably, both include early challenges to new redistricting plans. More concretely, a comparison of cases decided during the decade preceding the decision (July 1, 2003 – June 30, 2013) with those handed down in the decade that followed (July 1, 2013 – June 30, 2023) shows the following:
Section 2’s reach has been steadily declining for decades. In part, this trend reflects changed circumstances. Embedded within the multi-factored Section 2 inquiry are factors that, over time, predictably limit liability as conditions evolve. Section 2’s more limited contemporary reach, however, also stems from a series of judicial decisions that, over several decades, have narrowed the circumstances that give rise to liability. More recent decisions now threaten to impose far more sweeping and categorical limits on Section 2’s application.
On July 1, 2021, Brnovich v. DNC identified several “important circumstances” or “guideposts” for lower courts to consider when evaluating Section 2 non-dilution claims. Brnovich specified consideration of the “size of the burden” imposed by a challenged voting rule; the “degree to which a voting rule departs” from electoral practices in effect in 1982; the “size of any disparities” the rule imposes on “members of different racial or ethnic groups;” “the opportunities provided in “a State’s entire system of voting;” and the “strength of the state interests” underlying the challenged practice. The Court’s discussion of these factors suggested that, together, they were all but certain to stymie Section 2 non-dilution challenges going forward. The number of Section 2 non-dilution cases decided since Brnovich remains small, making an assessment of the decision’s impact premature. On the one hand, plaintiffs have been successful in three of the nine non-dilution cases decided since the ruling, which represents a plaintiff success rate higher than previously observed in non-dilution cases. Still, one of these decisions did not apply the Brnovich guideposts, primarily because it held that plaintiffs had sufficiently alleged a claim of discriminatory purpose under Section 2. All three of these decisions, moreover, involved rulings at the pleading stage, a juncture at which at least one court has found the guideposts to be inapplicable. Meanwhile, the six post-Brnovich non-dilution cases that found for the defendants read one or more of the guideposts to counsel against liability. Finally, non-dilution cases comprise a smaller proportion of the total Section 2 cases decided since Brnovich than they did in the two decades preceding the decision, which may reflect the view that non-dilution claims that appeared viable prior to Brnovich no longer seem worth pursuing.
Private individuals have played an active role in enforcing the Voting Rights Act since its enactment. This longstanding practice is supported by the statute’s text, structure, history, and caselaw construing it. While private individuals and groups have litigated Section 2 claims for decades, the federal district court for the Eastern District of Arkansas held in February 2022 that Section 2 provided no private right of action. The Court of Appeals for the Eighth Circuit affirmed that decision in November 2023. To date, no other circuit court has so held—indeed, every circuit court that has addressed the issue has affirmed that Section 2 provides private individuals with a right of action. In May 2025, the Eighth Circuit again held that private enforcement of Section 2 is improper, thereby barring private enforcement of Section 2 in the seven states that fall within this circuit. In July 2025, the Supreme Court stayed that ruling, suggesting further review is now probable.
Prohibiting private enforcement would eliminate virtually all Section 2 litigation going forward. Private plaintiffs have been party to 97% (453) of Section 2 claims that produced published opinions between 1982 and 2024. Of these claims, 85% (396) were the product of private enforcement alone. By contrast, only 3% (13) Section 2 claims since 1982 were brought by the Attorney General without private involvement. Of these 13 cases, all but one were decided before 2011.
Fifty-seven Section 2 cases involved both private parties and the Attorney General. In most (44/57) of these cases, public involvement was limited, including only amicus participation or intervention for the limited purpose of defending Section 2’s constitutionality. For instance, these 57 cases include ones in which the AG participated as amicus (28/57), to defend the constitutionality of Section 2 (7/57), and as an intervenor to clarify the statute’s legal standard (3/57)—actions that would not have occurred absent the private complaint in the first instance.
On June 8, 2023, a divided Supreme Court in Allen v. Milligan affirmed a district court ruling that plaintiffs were likely to succeed on their claim that Alabama’s congressional redistricting plan violated Section 2, under longstanding precedent governing Section 2 dilution claims. In June 2025, the Justices held over for reargument a constitutional challenge to the redistricting plan Louisiana drew following Allen in response to an adjudicated Section 2 violation. In August, the Supreme Court asked for briefing on the question “[w]hether the State’s intentional creation of a second majority-minority congressional district violates the Fourteenth or Fifteenth Amendments to the U. S. Constitution.” As crafted, this question portends a retreat from Allen and a willingness to hold unconstitutional Section 2’s application to dilution claims. Justice Thomas has been urging the Court to adopt this holding since 1994. Should the Court now so hold, it would eliminate Section 2’s operation in the primary context in which it has been applied and override Congress’s explicit purpose in crafting the 1982 amendments. As noted, dilution cases account for 73% of the Section 2 cases decided since 1982, and the type of cases in which plaintiffs have more often found success. Dilution claims comprise 86% of the Section 2 cases in which plaintiffs have secured favorable outcomes since 1982. Contrary to recent allegations, it is simply not true that Section 2 dilution claims have “proliferated” in recent years. In fact, the number of Section 2 dilution cases has declined significantly and consistently (Fig. 2), and plaintiffs bringing these claims have succeeded less frequently than they did in Section 2’s first decade (Fig. 7). There were 200 Section 2 dilution cases decided through 2001, with an additional 141 decided thereafter; plaintiffs succeeded in 108 cases decided through 2002 and in 63 cases since then. As noted, the decline in dilution cases stems in part from decades of federal appellate and Supreme Court decisions that have read the statute narrowly, thus limiting the circumstances in which Section 2 dilution liability might arise. The decline also reflects the evolution in rules addressing racial gerrymandering which has limited the ability of jurisdictions to craft districts prophylactically to avoid liability under Section 2 in circumstances that do not warrant them. This means districts drawn either in anticipation of Section 2’s requirements or in response to litigation reading Section 2 to mandate them are overwhelmingly districts that include a politically cohesive minority population living in a geographically compact region and otherwise to comport with traditional districting principles. Put differently, plaintiff success when pressing Section 2 dilution claim is limited to a confined set of circumstances that largely track those targeted by 1982 amendments, read most narrowly. Nearly twenty years ago, the Chief Justice refuted the notion that the lower court’s ruling in a Section 2 dilution reflected unthinking assumptions about racial bloc voting. He wrote: “No one has made any ‘assumptions’ about how voters in District 25 will vote based on their ethnic background. Not the District Court; not this dissent. There was a trial. At trials, assumptions and assertions give way to facts.” Our examination of actual Section 2 dilution cases similarly shows that single-judge district courts have not reflexively or unthinkingly approved racial gerrymanders when adjudicating Section 2 dilution cases. Quite the contrary. The record, instead, shows a far more careful—even painstaking—process in which these courts have adjudicated Section 2 dilution claims, identified violations of the statute in some, and rejected the majority of claims pursued.
In 1982, Congress amended Section 2 of the Voting Rights Act to provide that “[n]o voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in manner which results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color [or on account of statutorily designated language minority status].” These amendments tied liability to a showing that, “based on the totality of circumstances . . . the political processes leading to nomination or election in the State or political subdivision are not equally open to participation” by members of protected racial and language minority groups. To prevail, plaintiffs must demonstrate that members of these classes “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.”
The 1982 amendments mandated a decidedly open-ended inquiry that left room for broad application. With national reach and no set termination date, the statute’s express terms target any state or locally enacted “voting qualification or prerequisite to voting, or standard, practice, or procedure.”