The Evolution of Section 2: Numbers and Trends

For four decades, Section 2 of the Voting Rights Act has barred electoral practices that result in a “denial or abridgment” of the right to vote based on race or membership in protected language minority groups. Since 1982, 439 Section 2 cases have resulted in published decisions or opinions available on the major legal databases. Notable findings from our study of these decisions include:

More cases addressed vote dilution (e.g., challenges to at-large elections, districting plans, and similar practices) than non-dilution (e.g., challenges to election procedures like voter ID and early voting).
The proportion of non-dilution cases to dilution cases increased over time.
Plaintiffs were much more likely to succeed in Section 2’s first decade than in more recent decades.
Dilution cases succeeded more often than non-dilution cases.
More cases addressed local electoral practices than state practices.
The proportion of cases challenging state practices has increased over time, while plaintiff success in these types of cases has declined.
Since Shelby County v. Holder, more Section 2 cases have been decided in jurisdictions previously subject to Section 5 of the Voting Rights Act than in places never subject to it. Plaintiffs bringing these cases succeeded less often than they did previously.

These trends are discussed in more detail below. For details on how the dataset was compiled, please see the About page.

Vote Dilution and Beyond

Seventy-two percent of Section 2 cases—316 out of the 439 coded cases—addressed some form of vote dilution, most of which involved a challenge to an at-large electoral structure or a redistricting plan. The remaining 123 Section 2 cases involved non-dilution claims, often described as “vote denial” or “time, place, and manner” disputes. Non-dilution claims 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), or 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 in more recent years.

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 had motivated the challenged practice. The 1982 amendments eliminated this intent requirement, advancing Congress’s belief that electoral practices may cause cognizable injuries regardless of the intent underlying their enactment.

The 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.

Plaintiff Success

Since 1982, plaintiffs achieved successful outcomes in 41% of the cases identified. Successful outcomes include the issuance of a preliminary injunction, a finding for a plaintiff on the merits, a decision issuing attorneys’ fees in a manner that indicated a plaintiff had been successful on the merits or through settlement, or if the plaintiff achieved some other positive outcome. (More details on how the study defines plaintiff success may be found on the About page.) Plaintiff success has diminished over time: plaintiffs were most successful during Section 2’s first decade, with plaintiffs succeeding in 66% of the cases. Success rates were 31% in the second decade and 33% in both the third and fourth decades.

Plaintiffs achieved successful outcomes in 49% of the dilution cases overall. Much of this success was frontloaded, with plaintiffs succeeding in 74% of the dilution cases brought during the first decade following the 1982 amendments; plaintiffs, by contrast, succeeded at a reduced but fairly steady rate in dilution cases brought in subsequent decades: 35% in 1992-2001, 39% in 2002-2011, and 43% from 2012-2021.

Plaintiffs achieved successful outcomes in 23% of the non-dilution cases overall. Plaintiff success in non-dilution cases has decreased over time, with plaintiffs succeeding in 38% of the non-dilution cases brought during the first decade following the 1982 amendments and then 12%, 22%, and 20% in each decade thereafter.

Plaintiff and Defendant Identity

Black plaintiffs participated in 71% of Section 2 cases—the most of any plaintiff group. Latino plaintiffs participated in 28% of cases, American Indian plaintiffs in 6% of cases, white plaintiffs in 3% 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 56%, Latino plaintiffs succeeded in 31%, coalition claims were successful in 28%, Asian American plaintiffs succeeded in 20%, and white plaintiffs succeeded in 9%.

Section 2 defendants are more often local governments or officials (e.g., counties, cities, and school districts) than state governments or officials. Sixty-four percent of cases involved local defendants, while the remaining 36% were brought against state defendants. In recent decades, the number of cases brought against state governments increased, while the number of cases brought against local governments decreased.

Plaintiffs have achieved successful outcomes in 50% of the Section 2 cases brought against local defendants, and in 27% of the cases against state defendants. Plaintiff success in both types of cases has declined over time. Plaintiffs succeeded against local defendants in 53% of the cases during Section 2’s first decades, and 44% in the latter two. They succeeded against state defendants in 33% of the cases in the first period, and 22% in the latter.

The Gingles Preconditions and the Senate Factors

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 was considerably higher in cases in which courts found one or more of the Senate factors. Notably, plaintiffs found success in 100% of decisions 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 additional “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 the preconditions were relevant to Section 2 claims addressing “dilution through submergence” in at-large electoral schemes, federal courts have invoked the factors in a variety of Section 2 cases. Since Gingles was decided, 126 cases found the first precondition to be satisfied, 127 cases found the second precondition to be satisfied, and 96 cases found the third precondition to be satisfied.

Before and After Shelby County v. Holder

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% (185/365) of Section Two cases came from covered jurisdictions. After 2013, 63% (43/68) 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.

But while Section 2 cases have increased in once-covered jurisdictions since Shelby County, plaintiffs have succeeded in such cases less often than they did previously. From 1982-2013, plaintiffs in both regions succeeded at roughly comparable rates. Plaintiffs found success in 44% (81/185) of the cases decided in covered jurisdictions, and 41% (74/180) of cases decided in non-covered jurisdictions. Since Shelby County, plaintiff success rates have decreased for all jurisdictions, with a somewhat larger decrease in once-covered jurisdictions. After 2013, plaintiffs achieved successful outcomes in 37% (16/43) of cases decided in once-covered jurisdictions, and 36% (9/25) in cases decided in jurisdictions that were not subject to Section 5.

This decline in plaintiff success is susceptible to competing interpretations. Some may view it as confirming the contention, voiced by opponents of Section 5 as well as the Shelby County majority, that diminished racial discrimination in voting rendered the Section 5 preclearance regime obsolete. On this view, Section 5 was no longer blocking meaningful discrimination at the time it was reauthorized in 2006, and thus the suspension of the Section 5 regime should have had no discernible impact on actionable discrimination under Section 2. Simply put, no increase in successful Section 2 cases should have been expected, regardless of whether or not plaintiffs attempted to bring them.

A competing view, however, sees the lack of success among post-Shelby County Section 2 claims as confirming what supporters of Section 5 long claimed: Section 2 is not an adequate substitute for the protection afforded by Section 5. Both the complexity of the Section 2 inquiry and the heavy evidentiary burden it employs keep the statute from providing the quick and calibrated relief Section 5 offered for nearly a half-century. Moreover, by the time Shelby County was decided, Section 2 itself had already been pared back in a series of decisions that limited the reach of the statute and the remedies it could offer. On this view, diminished plaintiff success in the aftermath of Shelby County is best understood as evidence of a regulatory failure to address ongoing racial discrimination in voting. Support for this argument is found, most notably, in the deluge of restrictive voting practices enacted in the years since Shelby County. Section 5’s broad reach suggests that statute would have blocked implementation of many of the practices enacted after Shelby County. By contrast, Section 2 challenges to these practices have been largely unsuccessful.

Dilution cases represent a smaller proportion of Section 2 cases in the years since Shelby County than they did during the years preceding the decision. More specifically, dilution cases comprise 76% of Section 2 cases prior to 2013 and 51% of the cases decided after 2013. Part of the reason for the diminished proportion of dilution cases is that Section 2 cases challenging redistricting plans adopted after the 2020 Census have yet to produce final word decisions. (For more information about how the absence of final word opinions affects the dataset, see the About page.)

The absence of those cases alone, however, does not explain the observed decline in dilution cases. Neither, for that matter, does Shelby County. Section 2 dilution cases have been steadily declining over time such that a diminished proportion of such cases in the post-Shelby County era was likely even absent that decision. Figure 18 suggests as much. It shows the relationship of dilution to non-dilution cases in date ranges corresponding to the period of time that has elapsed since Shelby County. More specifically, it shows that dilution cases steadily decrease in each corresponding period, from 87 between 1983-1991 to 35 in the post-Shelby County era. At the same time, non-dilution cases rose modestly, from 24 in the first period to 33 in the most recent period. These numbers suggest the rise in non-dilution cases in the post-Shelby County era is less attributable to the timing of that decision than to the steady decline in dilution cases over time.

The Future of Section 2

We expect that both the number of Section 2 cases decided and the fraction of those in which plaintiffs succeed will continue to decline in coming years.

Dilution cases have been in steady decline for decades and plaintiffs have seen diminished success over time. We do not yet know what the Section 2 dilution cases presently making their way through the courts will show. None yielded a final word decision in time for inclusion in this report. Still, the Supreme Court’s recent stay and note of probable jurisdiction in Merrill v. Milligan suggest that Section 2 dilution cases are likely to be reduced yet further, and perhaps drastically so.

Plaintiff success in non-dilution cases is also likely to decline. Plaintiffs have long had difficulty achieving successful outcomes in these cases. Overall, 28 of the 123 such cases, or 23%, counted as plaintiff successes. The Supreme Court’s 2021 decision in Brnovich v. DNC promises to diminish further plaintiff success. Brnovich “identif[ied] certain guideposts” to direct Section 2 analysis in non-dilution cases that call into question roughly half of the 28 successful non-dilution cases to date. Among them are cases that involved challenges to electoral practices that were in widespread use in 1982, a factor Brnovich suggested weighed against finding a Section 2 violation. Similarly vulnerable are cases that confined their inquiry to the burdens the challenged practice imposed rather than, as Brnovich suggested, assessing those burdens in conjunction with other ways to participate in the electoral process.

Together, Brnovich and Merrill suggest that Section 2 is likely to occupy a declining role in future disputes involving racial and language-based discrimination in the electoral process. It seems worth remembering, however, that Congress crafted Section 2 to be a decidedly open-ended statute. In 1982, Congress amended the statute with the clear intent to restart the dilution claims halted by City of Mobile v. Bolden. Congress expected that Section 2 would operate concurrently with the Section 5 regime, which means Section 5’s effective demise had made Section 2 more important today than ever. In amending Section 2, Congress used broad language to target “any standard, practice or procedure” that denies or abridges the right to vote based on race or language minority status. By its terms, then, Section 2 should be a powerful tool to reach new circumstances and developing problems as well as resurgent practices. While Section 2 can and, in our view, should be used in just that way, it looks like the courts are taking the statute in the opposite direction.