Congress Must Act to Broaden the Scope of Vote Dilution Under § 2 VRA Claims

Paul Riley, CLS ’22

2020 marks 55 years since the passage of the Voting Rights Act of 1965 (the “VRA”) and the year that John Lewis, a civil rights icon, was laid to rest.[1] Many will never forget the footage of John Lewis and other non-violent protestors being brutalized by police as they marched for their right to vote on March 7, 1965. Often referred to as “Bloody Sunday,” the scenes from the Edmund Pettus Bridge in Selma, Alabama rocked the collective conscience of the nation and President Lyndon B. Johnson. Enacted into law on August 6, 1965, the VRA prohibits any measures that would prevent racial minorities from participating in the electoral process.[2] More specifically, Section 2 of the VRA (“§ 2”) prohibits, “any standards, practices, or procedures” that abridge racial or language minorities’ voting rights.[3] However, the Supreme Court’s continual narrowing down of the scope of § 2 claims has limited minority groups’ ability to seek adequate relief under the VRA.


The Supreme Court’s desire to narrow the scope of § 2 claims is perhaps most apparent in its City of Mobile, Alabama v. Bolden decision. In Mobile, the Court held that § 2 violations “required proof that the contested electoral practice or mechanism was adopted or maintained with the intent to discriminate against minority voters.”[4] Given that intent is extremely difficult to prove, Congress repudiated Mobile in its 1982 VRA Amendments ­– which rejected the Court’s “intent” test and now only required plaintiffs to show that an electoral practice had a discriminatory result.[5] With this new guidance, the Supreme Court, in Thornburg v. Gingles, established three preconditions for plaintiffs hoping to mount a § 2 claim. The minority group must be able to demonstrate that: (1) “it is sufficiently large and geographically compact to constitute a majority in a single-member district,” (2) “it is politically cohesive,” and (3) “the white majority votes sufficiently as a bloc to enable it…usually to defeat the minority’s preferred candidate.”[6]


Put simply, the Supreme Court notes that, “[u]nder § 2…the injury is vote dilution.”[7] Further, the Supreme Court has outlined two main types of vote dilution: (1) “the dispersal of blacks into districts in which they constitute an ineffective minority of voters,” and (2) “the concentration of blacks into districts where they constitute an excessive majority.”[8] Despite these two definitions of “vote dilution,” the Supreme Court has precluded plaintiffs from making “influence-dilution” or “vote-packing” claims under this latter definition. In League of United Latin American Citizens v. Perry, the Supreme Court held that § 2 does not require the creation of “influence districts” – districts “in which a minority group can influence the outcome of an election even if its preferred candidate cannot be elected.”[9] Similarly, the Supreme Court, in Bartlett v. Strickland, held that § 2 does not require the creation of “crossover districts” – districts where the minority group’s influence is potentially large enough to elect their desired candidate with the support of white voters who cross over to add their support.[10] Without these “influence” and “crossover” districts, there is essentially no remedy available for vote-packing claims under § 2.


The Supreme Court has demonstrated an unwillingness to create cognizable vote-packing claims because it fears that doing so will obliterate its Gingles preconditions ­– which have been the baseline and bedrock of its § 2 jurisprudence.[11] However, the evolution of the Supreme Court’s § 2 jurisprudence (with respect to vote-packing) has been anything but clear.[12] Congress should resolve this tension by specifically creating a vote-packing claim under § 2. In doing so, Congress could compel the courts to establish a judicial framework to protect this other form of vote dilution, put state legislatures on notice as they craft future redistricting plans, and, perhaps most importantly, provide minorities – excessively packed into these districts – with some form of relief under the VRA.

[1] N.J. Admin. Code § EX. ORD. No. 167 (2020) (“An Order Directing the U.S. and New Jersey Flags to Fly at Half-Staff in Honor of U.S. Representative John Lewis”).

[2] 52 U.S.C.A. § 10101.

[3] 52 U.S.C.A. § 10301 (“(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 10303(f)(2) of this title, as provided in subsection (b). (b) A violation of subsection (a) is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.”).

[4] Thornburg v. Gingles, 478 U.S. 30, 44 (1986) (referencing City of Mobile, Ala. v. Bolden, 446 U.S. 55 (1980)).

[5] S. REP. NO. 97-417, at 36 (1982), as reprinted in 1982 U.S.C.C.A.N. 177, 214.

[6] Gingles, 478 U.S. at 50–51.

[7] League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 402 (2006).

[8] Gingles, 478 U.S. at 46 n.11.; Voinovich v. Quilter, 507 U.S. 146, 153–54 (1993).

[9] Bartlett v. Strickland, 556 U.S. 1, 13 (2009) (referencing League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 445 (2006)).

[10] Id.

[11] Id. at 16.

[12] Voinovich, 507 U.S. at 154 (“We have not yet decided whether influence-dilution claims such as appellees’ are viable under § 2.”); Growe v. Emison, 507 U.S. 25, 41 n.5 (1993); Gingles, 478 U.S. at 46 n.11–12 (1986).