To Participate and Elect: Section 2 of the Voting Rights Act at 40

Abstract

This paper provides an overview of cases decided under Section 2 of the Voting Rights Act between September 1, 1982 and December 31, 2021. It updates our 2006 study documenting Section 2 litigation through 2005. Of note is the substantial decline in the number of Section 2 cases decided and diminished success for the plaintiffs who bring them. While recent litigation (including Brnovich and Merrill v. Milligan) suggests that Section 2 is likely to occupy, at best, a diminished role in future electoral disputes, this paper shows that Section 2’s reach had already declined significantly prior to recent disputes. It documents a steep drop in the number of Section 2 decisions involving vote dilution. So too, while plaintiffs bringing dilution claims found notable success in the first decade after Congress amended Section 2 in 1982, they have seen a steady decline in success ever since. Meanwhile, plaintiffs bringing Section 2 non-dilution claims—i.e., alternatively labelled “vote denial” or “time, place and manner” restrictions—have seen less success overall, and, as with dilution claims, a steady decline in success over time.

The Report and underlying dataset can be found at www.voting.law.umich.edu

Keywords: Voting Rights Act, Voting Rights Act Section 2 litigation, voting discrimination, dilution, non-dilution