Making Sense of Section 2: Of Biased Votes, Unconstitutional Elections, and Common Law Statutes

Abstract

This article develops a fresh account of the meaning and constitutional function of Section 2, the Voting Rights Act’s core provision of nationwide application, which has long been portrayed as conceptually opaque, counterproductive in effect, and quite possibly unconstitutional. Section 2 on my account delegates authority to the courts to develop a common law of racially fair elections, anchored by certain substantive and evidentiary norms, as well as norms about legal change. The central substantive norm is that injuries within the meaning of Section 2 only arise when electoral inequalities owe to race-biased decision-making by majority-group actors, whether public or private. But as an evidentiary matter, plaintiffs need only show a “significant likelihood” of race-biased decision-making, rather than proving it more likely than not. So cast (and with a few more details worked out), Section 2 emerges as a constitutionally permissible response to, inter alia, the largely unrecognized problem of election outcomes that are unconstitutional because of the racial basis for the electorate’s verdict – a problem that generally cannot be remedied through constitutional litigation. My account of Section 2 has numerous practical implications. Most importantly, it suggests that electoral arrangements that induce or sustain race-biased voting are vulnerable under Section 2, irrespective of their potentially “dilutive” effect on minority representation. My account also resolves a number of prominent circuit splits over the application of Section 2. And it clears the ground for overruling the many Section 2 precedents that rest on the constitutional avoidance canon.

Keywords: Voting Rights Act, Vote Dilution, Racially Polarized Voting, Depolarization, Fourteenth Amendment, Fifteenth Amendment, Cleburne, Boerne, Political Question, Equal Protection, Motive, Intent, State Action, Common Law Statute, Stare Decisis