A report issued by the Voting Rights Initiative at Michigan Law documents the reduced impact of a key provision of the Voting Rights Act (VRA). The report, To Participate and Elect: Section 2 of the Voting Rights Act at 40, examines how the nature and substance of decisions addressing Section 2 of the VRA have changed over the last four decades.
Published online with the accompanying database, the report highlights several notable trends involving Section 2 decisions, including a substantial decline in the number of cases decided and diminished success for the plaintiffs who bring them.
“The results are disheartening, albeit unsurprising, as they show the declining reach and effectiveness of a pivotal civil rights statute at a moment when we acutely need it,” said Ellen D. Katz, the Ralph W. Aigler Professor of Law, who coordinated the project with a group of 41 Michigan Law students. To Participate and Elect supplements a related project that Katz also supervised, which documented Section 2 decisions through 2005. A draft of that earlier report and accompanying database were included in the evidentiary record assembled by Congress when it reauthorized the VRA in 2006. Subsequent judicial rulings addressing the constitutionality of that reauthorization repeatedly relied on the 2006 report.
Section 2 of the Voting Rights Act prohibits voting practices or procedures that result in a denial or abridgment of the right to vote on the basis of race, color, or membership in designated language minority groups. Among its findings, To Participate and Elect documents a steep decline in the number of Section 2 decisions involving vote dilution, which generally include challenges to at-large elections and redistricting plans. Plaintiffs bringing such claims found notable success in the first decade after Congress amended Section 2 in 1982 but have seen a steady decline in success ever since. Plaintiffs bringing Section 2 non-dilution claims—typically involving challenges to election procedures like voter ID and early voting restrictions—have seen less success overall and, as with dilution claims, a steady decline in success over time.
The new report also examines how Section 2 litigation changed since the Supreme Court’s 2013 decision in Shelby County v Holder. That decision rendered inoperative Section 5 of the VRA, a provision that required jurisdictions with notably low levels of voter registration and turnout to get federal approval, known as “preclearance,” before implementing any changes to their electoral procedures. Since Shelby County, more Section 2 cases have been decided in jurisdictions previously subject to Section 5 than in places that were not subject to the preclearance requirement. And yet, plaintiffs bringing these Section 2 cases succeeded less often than they did previously.
Katz said these trends show that “Section 2 is not providing an adequate substitute for the protection accorded by the Section 5 preclearance regime. Section 2 was simply not designed to provide the quick and calibrated relief that Section 5 offered for nearly a half-century and has itself been pared back in a series of decisions limiting its reach.”
Brian Remlinger, ’21, who began working on the project in 2018, noted a trend from suits concerning local election practices to those challenging practices enacted statewide. He said that this change, coupled with the finding that plaintiffs are much less likely to succeed in cases brought against state defendants, shows that “Section 2 started as an effective tool of reform in local cases, but an increasingly unfavorable judicial environment and shift from local to state control of election practices has rendered Section 2 less effective in warding off modern restrictions on voting rights.”
The dataset underlying the report, which catalogs more than 400 Section 2 claims over the last 40 years, is being made available for researchers and litigants.