This article is an overview of Section 2 of the Voting Rights Act and the legal test to determine how a plaintiff can prove a minority vote dilution claim under the act against a redistricting map.
The Voting Rights Act of 1965 (VRA) was enacted in direct response to the unapologetic disenfranchisement of minority voters, particularly in the South. Government-supported attempts to keep minorities from the polls were pursued both out in the open as well as surreptitiously. These practices included poll taxes, literacy tests, restrictive and arbitrary registration practices, white primaries, the threat of violence, actual violence, and ballot box stuffing. This, all despite the ratifying of the 15th Amendment, which prohibits the federal government and each state from denying a citizen the right to vote based on that citizen’s “race, color, or previous condition of servitude,”.
Two Critical Sections of the VRA
The Voting Rights Act was enacted under the authority of the 15th Amendment and it was meant to aggressively thwart election practices meant to keep minority voters from the ballot box. The Act has two major provisions that covered a large swath of activity in the states; Section 5 and Section 2. Section 5 applied to specific jurisdictions but is currently inoperable, it won’t be discussed here, but you can read the main minority voting basics article for a general description of Sec 5.
Section 2 of the Act gave individuals a private right of action to sue jurisdictions for any election procedures that operate to disenfranchise minority voters and dilute minority voting power. It was later it was amended to include language minorities as well. Prior to 1982, some courts hearing these cases interpreted the statutory language to require “intentional” disenfranchisement, and much of the legal controversy in a lawsuit centered around proof of whether a particular election practice was “intentionally” implemented to discriminate based on a voter’s race. This proved to be a difficult hurdle for plaintiffs but the Supreme Court upheld this approach in Mobile v. Bolden, 446 U.S. 55 (1980).
Congress was disappointed in the Mobile decision and amended Section 2 to make clear that any voting practice that has the effect of denying a racial or language minority an equal opportunity to participate in the political process was prohibited under Section 2. The Senate Committee on the Judiciary issued a report to accompany the 1982 legislation that suggested several factors for courts to consider when determining if, within the totality of the circumstances, the electoral device or practice being challenged results in a violation of Section 2. These “senate report” factors (as they are commonly called) are not exhaustive, but include the:
- history of official voting-related discrimination in the state or political subdivision;
- extent to which voting in the elections of the state or political subdivision is racially polarized;
- extent to which the state of political subdivision has used voting practices or procedures that tend to enhance the opportunity for discrimination against the minority group, such as unusually large election districts, majority-vote requirements, and prohibitions against bullet voting;
- exclusion of members of the minority group from candidate slating processes;
- extent to which minority group members bear the effects of discrimination in areas such as education, employment, and health, which hinder their ability to participate effectively in the political process;
- use of overt or subtle racial appeals in political campaigns; and
- extent to which members of the minority group have been elected to public office in the jurisdiction.
The Hallmark Legal Test for Proving Section 2 Violations
The first real test of the 1982 amendments came in the form of a challenge to North Carolina’s 1982 state legislative redistricting map in Thornburg v. Gingles. The legal test shaped by the Supreme Court in Gingles is arguably the most cited legal test in voting rights / redistricting law. The Gingles plaintiffs alleged minority vote dilution in seven districts; 2 senate districts and 5 multimember house districts.
Notably, the court adopted the senate report factors as objective factors to use when assessing the impact of an election practice on minority electoral opportunities. It also established a preliminary analysis to determine if a plaintiff has established a legitimate claim of minority vote dilution under Section 2. This preliminary analysis is called the “Gingles preconditions,” and has three distinct prongs that must be present before moving on to consider the “totality of circumstances,” or senate report factors:
- The racial or language minority group is “sufficiently large and geographically compact to constitute a majority in a single-member district”;
- The minority group is “politically cohesive” (meaning its members tend to vote similarly); and
- The “majority votes sufficiently as a bloc to enable it … usually to defeat the minority’s preferred candidate.”
The Gingles test is still good law nearly 40 years later. Of course, how the court has applied the test in varying situations has made for a significant amount of precedent, but despite this, there are always new questions. In later articles, we explore how the Gingles test has been applied in varying situations.
