Ellen D. Katz, Matthew G. Rice, & Jamaya M. Williams
This update – our second since posting the online database in early 2022 – summarizes additions we made to the findings we posted three years ago. It also discusses recent pending cases and their implications.
First, the 2022 report has been updated to include decisions issued on or before December 31, 2024. The text and accompanying figures have been revised accordingly. The revised report is also restructured in part, and some new figures have been added.
Second, the report now includes the analysis offered in our 2023 update on Shelby County v. Holder, which examines Section 2 cases during the decade before and the decade after the decision.
Third, the report’s final section now reflects on three recent developments: non-dilution cases after Brnovich v. Democratic Nat’l Cmte; private enforcement of Section 2; and the constitutionality of Section 2’s application to dilution claims.
This section updates the analysis of Brnovich v. Democratic Nat’l Cmte. The 2023 update addressed the five nondilution cases that had been decided at that time since Brnovich, examining how these cases applied the “guideposts” set forth in that decision. The updated findings now document nine Section 2 non-dilution cases that conducted the Brnovich inquiry. This number remains small, such that an assessment of the decision’s impact continues to be premature.
Next, we discuss the recent controversy surrounding private enforcement of Section 2. Last year, we reported that, as of January 1, 2024, private plaintiffs have been party to 96.4% of Section 2 claims that produced published opinions since 1982, and the sole litigants in 86.7% of these decisions. Our updated findings show that, on or before December 31, 2024, private plaintiffs have been party to 97% (452) of Section 2 claims that produced opinions published to Westlaw and Lexis since 1982. 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.
The difference between the updated numbers and those reported last year reflects changes, including the addition of rulings that post-date the prior report and the identification of joint private-public participation in cases that were initially listed as involving DOJ alone.
Finally, we turn to the pending constitutional challenge to Section 2’s application to dilution claims. As discussed in our 2023 update, 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. At the time, we observed that:
For now, Milligan has halted the steady retrenchment of Section 2 and preserved its deployment in circumstances in which it has long been applied. We noted that, in response to the dissents in Milligan, “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.”
Back in 2023, we further suggested that:
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.
Since these observations two years ago, recent developments suggest that Milligan may prove to be an exception in a different sense. In June 2025, the Justices held over for reargument a constitutional challenge to the redistricting plan Louisiana drew following Milligan v. Allen in response to an adjudicated Section 2 violation. In August, the Supreme Court asked for briefing responsive to “[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 Milligan 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.
The updated findings show that 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.