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Ellen D. Katz, Jordan Schuler, & Matthew G. Rice
This update – our first since posting the online database in early 2022 – summarizes new Section 2 litigation from January 1, 2022 – July 1, 2023. It also identifies trends in Section 2 litigation over the decade since Shelby County v. Holder and the two years since Brnovich v. DNC, and notes the prospect for further developments following Allen v. Milligan.
Between January 1, 2022 and July 1, 2023, eighteen Section 2 cases resulted in a published decision or opinion available on the major legal databases. The database we released in early 2022 now includes 455 cases decided between June 29, 1982 and July 1, 2023.
A full decade has now elapsed since the Supreme Court’s decision in Shelby County v. Holder. That period allows for a distinct, and, in our view, more precise portrait of the way in which Section 2 litigation has changed since that decision than did the findings we reported in early 2022. Our previous findings compared trends in post-Shelby County Section 2 cases (roughly an 8.5 year period) to all Section 2 cases decided in the roughly 31 years that preceded the decision. The passage of a full decade since Shelby County now invites a comparison of 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:
The overall decline in the number of Section 2 cases decided since Shelby County may reflect a diminished reliance by jurisdictions nationwide on electoral practices proscribed by the statute. In our view, it is more likely that the decline stems from a belief among potential plaintiffs that Section 2 challenges that were worth pursuing in the years leading up to Shelby County no longer were in the decade that followed.
Insofar as this sentiment was uniform nationwide, the steady number of cases decided in covered jurisdictions in the decades before and after Shelby County suggests that Section 2 litigation has, in a limited way, been used to fill the regulatory gap Shelby County produced in these regions. As noted in our initial findings, the increased proportion of Section 2 cases decided in once-covered jurisdictions in the years since Shelby County may stem from the fact that a portion of the electoral changes once blocked by Section 5 were also vulnerable to Section 2 challenge. After Shelby County, some plaintiffs in covered jurisdictions turned to Section 2 to challenge practices that would have likely been blocked or altered under Section 5.
They have had modest success, securing favorable outcomes proportionally more often than they did during the prior decade. Still, their rate of success lags what plaintiffs achieved between 1982 and 2013. It also falls well short of the protection Section 5 once provided in these regions. In the decade since Shelby County, plaintiffs in once-covered jurisdictions have secured favorable outcomes in only six more cases than they did in the prior decade. By comparison, in Texas alone, eleven Section 5 objections were interposed in the decade prior to Shelby County. Again, the small number of cases in which plaintiffs have found success in recent years could signal a decline in discriminatory practices, but more likely shows that Section 2 litigation constrains far less conduct than Section 5 once did.
Redistricting plans adopted in response to new census data give rise to a cluster of Section 2 dilution challenges in the early years of each decade. A comparison of Section 2 claims decided between January 1, 2021 and July 1, 2023 with those decided January 1, 2011 through July 1, 2013 shows a comparable number of cases decided (24 in the earlier period, 25 in the more recent); and comparable proportion of dilution cases (71% (17/24) in the earlier period, and 76% (19/25) in the latter). There are, however, some notable differences:
On July 1, 2021, the Supreme Court rejected a Section 2 challenge to Arizona laws that barred out-of-precinct voting and restricted absentee ballot collection. In so holding, Brnovich v. DNC identified several “important circumstances” or “guideposts” for lower courts to consider when evaluating Section 2 vote denial claims. At the time, these factors appeared likely to immunize a host of electoral practices from challenge under Section 2 going forward. The number of vote denial cases decided in the two years since Brnovich remains small, but, to date, the decision has not categorically stymied Section 2 claims in this arena.
Plaintiffs were successful in three out of the five non-dilution cases decided since Brnovich. Two of the three successes did not address the Brnovich guideposts, primarily because they found plaintiffs had sufficiently alleged a claim of discriminatory purpose under Section 2. Both decisions, notably, were also resolved at the pleading stage, a juncture at which at least one court has found the guideposts to be inapplicable.
Three Section 2 decisions explicitly analyzed the Brnovich guideposts. Florida State Conference of the NAACP v. Lee denied a motion to dismiss a Section 2 challenge to restrictions on ballot drop boxes, voter solicitation, and third-party ballot return. The court noted that plaintiffs need not present evidentiary support for the Brnovich guideposts at the motion to dismiss stage, and that it “should . . go without saying that Brnovich did not set out a rigid pleading standard that section 2 plaintiffs must meet.” The court went on to observe that the allegations suggested that the first Brnovich guidepost (i.e., the size of the burden the challenged practice imposed) and the third (i.e., the size of the disparity in the challenged rule’s effect on members of different racial or ethnic groups) weighed in the plaintiffs’ favor. The court noted that other Brnovich guideposts “cut against Plaintiffs.” Alluding to guideposts two (“the degree to which a voting rule departs” from standard practice in 1982) and four (“the opportunities provided by a State's entire system of voting”), the court noted that “it appears that Florida makes it easier to vote now than it did in 1982,” and, invoking guidepost 5 (“the strength of the state interest served by the challenged rule”), recognized further that “preventing voter fraud is ‘a valid and important state interest.’”
Fair Fight Action, Inc. v. Raffensperger found that four of the five Brnovich guideposts weighed in the defendant’s favor. After a bench trial addressing a Section 2 challenge to various voter registration verification practices, the court characterized the burdens imposed by the challenged practices (guidepost 1) as “slight” and “limited;” that one practice did not substantially deviate from 1982 practice (guidepost 2) and that another, while a substantial departure, was “narrower and more exacting” than either the earlier practice or what was allowed by a subsequent federal law; that the racially disparate impacts were “small” and even “de minimis” (guidepost 3); and that the State’s interest in preventing fraud was a strong interest (guidepost 5). Fair Fight found that guidepost 4 weighed in plaintiffs’ favor, noting that while the State provided multiple ways to vote, the exact match practices were unavoidable under the registration system. The court ruled this determination was not, alone, sufficient to establish a Section 2 violation.
Johnson v. Waller County, a Section 2 challenge to limitations on early voting hours and locations, found all five guideposts weighed against the plaintiffs. After a bench trial, the court concluded that the challenged practices imposed, at most, “a mere inconvenience” (guidepost 1); that the limits imposed comported with common practice in 1982 (guidepost 2); that they did not impose “any racially disparate impact upon Black voters in Waller County (or any segment among them)” (guidepost 3); that, notwithstanding the challenged limits, voters retained ample opportunities to “vote early and in person during the hours established for any polling place” (guidepost 4); and that a host of legitimate state interests–including the “devotion of limited voting machines and equipment among an array of population centers…, the number and availability of trained poll workers; the accessibility and ease of access of potential polling places; and election-related security concerns” – supported the measures (guidepost 5).
Notably, courts assessing the Bronvich guideposts have not explained how much weight they accorded to any given factor. Ruling on a motion to dismiss, Florida State Conference held for the plaintiffs after finding their allegations sufficient to show that guideposts one and three weighed in their favor. After a bench trial, Fair Fight ruled for the defendants while recognizing that guidepost 4 favored the plaintiffs. Johnson likewise sided with the defendants, finding all five factors weighed against the plaintiffs. Florida State Conference rejected the idea “that Plaintiffs must allege facts satisfying each Brnovich factor” to prevail, and that “failure on some factors is not dispositive.” Likewise, Georgia observed that, while “the language in Brnovich could portend future requirements to state or prove a § 2 time, place or manner claim, it should not be interpreted as currently setting forth pleading requirements that the United States must fulfill in this case.”
In June, 2023, in Allen v. Milligan, the Supreme Court affirmed a lower court ruling that held that plaintiffs were likely to succeed on their claim that HB1, Alabama’s newly-adopted congressional redistricting plan, violated Section 2. More specifically, the Court agreed that Alabama likely violated Section 2 by failing to include a second majority-Black congressional district in the plan when, as the lower court found, the Gingles factors and totality of circumstances review indicated that an additional district was required. The decision was surprising given that the Court appeared poised to do just the opposite. Not only had it narrowed Section 2 in a series of previous cases, but it had also stayed the district court’s ruling in early 2022, thus allowing Alabama to use HB1 for the 2022 elections. That stay suggested that a majority of the Justices believed the lower court had erred and that they were inclined to overrule the lower court’s judgment on fuller review.
Instead, Allen v. Milligan refused to displace the lower court’s ruling. Chief Justice Roberts’s majority opinion, joined by Justices Kagan, Sotomayor, Kavanaugh and Jackson, found “no reason to disturb the District Court’s careful factual findings,” and no “basis to upset” its legal conclusions that “faithfully applied our precedent and corrected determined that under existing law HB1 violated § 2.” On the primary statutory point in dispute, the Court found ample evidence to support the district court’s finding that that Black voters were sufficient in number and lived in a sufficiently compact region to comprise the majority in two single-member districts. The Chief Justice’s opinion noted that the plaintiffs’ illustrative maps showing that a second compact Black majority district could be drawn “‘perform[ed] generally better’” on specified criteria – such as compactness and respect for existing political subdivisions – than did the State’s map.
Expressly declining “Alabama’s attempt to remake our § 2 jurisprudence anew,” the Chief Justice wrote that Section 2 would continue to be understood, as Gingles and other surviving precedent dictated, to prohibit redistricting plans like Alabama’s HB1. Easing that conclusion, no doubt, was the fact that Alabama’s proposed interpretation – that maps drawn without consideration of race, as it claimed its challenged maps were, could not violate Section 2 – would have required the Court to repudiate considerable precedent and to ignore the fact that Congress rejected precisely this view when it amended Section 2 in 1982. Instead, Milligan affirmed Section 2’s continued viability, at least in a narrow set of traditional circumstances.
The Court also quickly dispensed with Alabama’s constitutional challenge to Section 2, as construed. The opinion noted that “we held over 40 years ago ‘that, even if § 1 of the [Fifteenth] Amendment prohibits only purposeful discrimination, the prior decisions of this Court foreclose any argument that Congress may not, pursuant to § 2 [of the Fifteenth Amendment] outlaw voting practices that are discriminatory in effect.’” The opinion also deemed unproblematic the authorization of “race-based redistricting as a remedy for state districting maps that violate § 2,” noting that federal courts have “under certain circumstances,” authorized this remedy in Section 2 dilution cases.
Justice Kavanaugh provided the critical fifth vote in Milligan. He was the only Justice among those voting to affirm who also supported issuance of the stay the previous year. And while Justice Kavanaugh said the stay was warranted due to the proximity of the case to the upcoming elections, he also noted at the time that “the underlying merits appear to be close and, at a minimum, not clear cut in favor of the plaintiffs.” In Milligan, he nevertheless joined the Court in affirming the district court’s “careful factual findings,” its “faithful[] appli[cation of] our precedent,” and its “correct determin[ation] that” HB1 violated Section 2.
Justice Kavanaugh declined to join a small section of Chief Justice Roberts’s opinion which stated that being aware of racial considerations in redistricting differs from being motivated by them. This section posited that only the latter is prohibited in the redistricting process, and that race does not predominate simply because plaintiffs present illustrative maps created – “as our cases require” – to show that an additional majority-minority district could be drawn. Far from running afoul of statutory or constitutional constraints, consideration of race in this manner – and presumably subsequently by the State in response to the submitted maps and judicial rulings about them – simply shows the Section 2 regime to be operating as Congress intended and precedent allows. The Chief Justice stated bluntly: “That is the whole point of the enterprise.”
In his short concurrence, Justice Kavanaugh did not explicitly take issue with these points. Instead, he wrote that he was not willing to overrule Gingles – that was for Congress to do, if it was so inclined – nor would he support striking down the statute based on the constitutional arguments he understood Alabama to be pressing. Justice Kavanaugh then noted a distinct argument the State might have pursued. More specifically, he observed that the “temporal argument” deployed in Shelby County v. Holder posited that the Section 5 preclearance regime’s coverage formula, while constitutional when enacted, no longer was, given changed circumstances over time. Justice Kavanaugh suggested that Section 2 might be similarly understood. After all, he wrote, the authorization of “race-based redistricting” under the “statute cannot extend indefinitely into the future.” He nevertheless declined to consider the argument “at this time” because Alabama had failed to press it. But the invitation was, of course, clear: bring this claim, and the Milligan dissenters might just have a majority in the next case.
Indeed, it might prove to be a majority that the Chief Justice would also join. The majority opinion’s brief analysis of Alabama’s constitutional claims dismissed the broad notion that Congress lacks power to proscribe constitutional conduct when enforcing the Fifteenth Amendment. As Justice Thomas noted in dissent, however, the precedent the majority cited to support this proposition did not address Section 2, and predated both the Court’s articulation of the congruence and proportionality standard in City of Boerne v. Flores, and its invalidation of the Section 5 regime in Shelby County v. Holder. The Chief Justice, of course, knew all this, and dispensed with the constitutional challenge with broad statements that leave ample room for the distinct evaluation of less sweeping claims – perhaps, indeed, those targeting “temporal” concerns– going forward.
For now, Milligan has halted the steady retrenchment of Section 2 and preserved its deployment in circumstances in which it has long been applied. Responding to the dissents, Chief Justice Roberts’ opinion stated that “[f]orcing proportional representation is unlawful and inconsistent with this Court’s approach to implementing § 2,” and observed, as our database and analysis shows, that “§ 2 litigation in recent years has rarely been successful for just that reason.”
Milligan itself proved to be the exception, perhaps because the violation was so blatant that failure to recognize it would have gutted the statute entirely. Perhaps, too, the Court thought that HB1 too closely resembled the types of practices Section 2 originally displaced. The steady retrenchment of Section 2 along with Shelby County’s elimination of the constraints of Section 5 had fueled a resurgence of practices of the “low-hanging” variety. Milligan pushed back to stop their proliferation.
More nuanced cases, particularly those in which racial bloc voting is less pronounced, will likely still meet resistance in federal court. Milligan is thus unlikely to restore robust implementation of Section 2 along the lines Congress envisioned when it amended the statute in 1982. So too, the more targeted constitutional challenge Justice Kavanaugh described will no doubt soon emerge. For now, though, Milligan preserved the core of Section 2 and allowed for its continued application at least in the most traditional circumstances in which it has applied.
Congress amended the VRA in 1982 to restart the dilution claims halted by City of Mobile v. Bolden and did so with the expectation that Section 2 would operate concurrently with the Section 5 preclearance regime. Section 5’s effective demise had made Section 2 more important as a tool to address racial discrimination in the electoral process. Congress crafted the provision using broad language that targets “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 device to address new circumstances and developing problems as well as resurgent practices. Section 2 can and should be used in just that way. Milligan allows for the prospect that Section 2 might yet do that. Whether it will remains to be seen.
*This update recodes Veasey v. Abbott as a success given that the appellate court upheld the district court’s judgment on the plaintiffs’ effects claim. This change is not reflected on the 2022 findings page but is included in the full, downloadable dataset.
Preferred Citation: Ellen D. Katz, Brian Remlinger, Andrew Dziedzic, Brooke Simone & Jordan Schuler, To Participate and Elect: Section 2 of the Voting Rights Act at 40, Univ. Mich. L. Sch. Voting Rights Initiative (2022), https://voting.law.umich.edu.
Contact: law-votingrightsinitiative@umich.edu