Republicans’ New Argument to Dismantle Section 2 Feels Eerily Familiar
Does racism still exist? Georgia Republicans say they need Congress to answer that before the Voting Rights Act (VRA) can be used to challenge redistricting maps that reduce the power of Black voters.
In a years-long case that went before the 11th U.S. Circuit Court of Appeals last month, Georgia Secretary of State Brad Raffensperger (R) put forth the idea that because the VRA’s Section 2 hasn’t been updated by Congress since 1982 it doesn’t reflect the improved racial conditions of today.
If Congress wants courts to continue ordering states like Georgia to redraw maps to create majority-minority districts, then “Congress must explain that decision with detailed, current evidence justifying such a heavy intrusion on state authority,” Raffensperger writes in a legal brief.
In this day and age, he argues, Section 2 is no longer relevant.
This temporal claim is bound to raise alarm bells for anyone who pays close attention to voting rights laws.
In the 2013 landmark Shelby County v. Holder decision, the Supreme Court effectively dismantled Section 5 of the VRA using the same argument. Section 5 required jurisdictions with a history of discrimination to run any changes to voting rules by the U.S. Department of Justice before implementing them, in a process called “preclearance.”
Republicans, starting in Georgia, are now using the temporal argument in their multi-front effort to strike down Section 2. The difference is, Section 2 is based on current conditions and has a built-in end point.
The temporal claim
In her 2021 dissenting opinion in Brnovich v. Democratic National Committee, Justice Elena Kagan called Section 2 a “back-up.” The real power of the VRA came from Section 5, but in its absence, Section 2 has become the most powerful tool to fight racial discrimination in voting.
Section 2 prohibits the denial or abridgement of voting rights on the basis of race, color or membership in a language minority group. It is most often used in redistricting cases to fight maps that dilute the voting strength of minority groups. This happens when communities of color are packed into a single district even though multiple districts could be drawn or cracked among many districts where the white majority vote differently. In those instances, a judge can order a new map with more majority-minority districts. Section 2 can also be used to challenge any election law, procedure or process that discriminates based on race.
Since its enactment in 1965, Section 2 has never had an expiration date and requires no regular authorization from Congress to remain valid.
Despite this, Republicans across the country recently began arguing that Section 2 is outdated — and therefore unconstitutional. In addition to Raffensperger, 13 Republican states made the temporal claim in a joint amicus brief in a Louisiana congressional redistricting case that will go before the Supreme Court next month.
The general argument goes like this: Section 2 was necessary to dismantle Jim Crow laws in 1965, and even when Congress updated it in 1982 and provided ample evidence of racialized voting rules. But now, racial conditions have come far enough that having judges order the creation of new race-based districts is actually a form of unconstitutional racial gerrymander. In Georgia, Raffensperger points to the election of two Democratic senators and President Joe Biden in 2020 as evidence that Black-preferred candidates are succeeding.
The argument would be persuasive if not for two things.
First, progress does not preclude backsliding. After the Supreme Court struck down Section 5, the counties that were previously covered by preclearance requirements saw 40% more voter purges than other counties. The blatantly racist Jim Crow laws of the past may have disappeared, but new restrictions rebranded as “election integrity” laws have taken their place — and they almost always disadvantage voters of color more than their white counterparts. These include voter ID laws, proof of citizenship requirements, restrictions on absentee and early voting, felony disenfranchisement statutes, and more.
Second, Section 2 doesn’t require proof of bigotry. Instead, if a law or map ends up hurting one group of voters more than others, then voters can still bring a Section 2 violation even if they can’t prove that lawmakers meant to be discriminatory. The provision is built to address structural racism, not individual hatred. As society becomes more equitable and conditions that require a Section 2 fix no longer exist, the use of Section 2 will naturally phase out.
SCOTUS’s take
The temporal claim found success in 2013’s Shelby County v. Holder. The case asked whether the formula used to determine if a jurisdiction was subject to Section 5 preclearance was unconstitutional. The so-called “coverage formula,” laid out in the VRA’s Section 4, was based on whether a state or locality had restrictive voting tests and low voter registration or turnout in the 1960s and early 70s.
In a 5-4 decision, the Supreme Court ruled that the coverage formula in Section 4 — despite having been reauthorized in 2006 — was unconstitutional. As a result, Section 5 could no longer be used.
“[A] statute’s ‘current burdens’ must be justified by ‘current needs,’” Chief Justice John Roberts wrote in the majority opinion. “The coverage formula met that test in 1965, but no longer does so.”
Roberts suggested, however, that Congress could authorize a new coverage formula based on current conditions to reimplement Section 5.
Justice Ruth Bader Ginsberg pushed back on the majority’s decision, arguing that Congress acted on an extensive record of contemporary evidence gathered in 2006 that showed the need for Section 5 preclearance. Critically, she pointed to a provision in the VRA that allows states and localities to “bail out” of preclearance requirements if they show that they have complied with the VRA for 10 years. “Congress designed the VRA to be a dynamic statute, capable of adjusting to changing conditions,” she wrote.
The temporal claim emerged again in the 2023 Allen v. Milligan case, when Justice Brett Kavanaugh raised the possibility of an expiration date for Section 2 even as he concurred in a decision upholding it.
Justice Clarence Thomas objected more explicitly to the indefinite nature of Section 2’s race-based redistricting remedies in his dissent. He went so far as to suggest that forcing states like Alabama to add more majority-minority districts would only perpetuate racial divisions in politics:
“We ensure that the race-based redistricting we impose on Alabama now will bear divisive consequences long into the future…. [B]y making it clear that there are political dividends to be gained in the discovery of new ways to sort voters along racial lines, we prolong immeasurably the day when the ‘sordid business’ of ‘divvying us up by race’ is no more.”
What makes Section 2 unique
Unlike Section 5, however, Section 2 is only ever based on contemporary conditions.
In 1980, the Supreme Court ruled that plaintiffs alleging a Section 2 violation must prove that the violation was intentionally motivated by racial bias. This was a difficult hurdle to overcome. As a result, Congress moved quickly to amend Section 2 in 1982 so that violations were based on discriminatory effect — not discriminatory intent.
This change had a monumental impact on the application and usefulness of Section 2. In 1986, the Supreme Court established the Gingles test to determine whether a vote dilution claim exists in redistricting cases. The test requires a community of color to prove that it is large and compact enough to make up a district; it votes cohesively; and the white majority votes cohesively to defeat minority-preferred candidates. If a plaintiff manages to pass the Gingles test, courts then look at the totality of circumstances like the use of racial appeals in politics and the history of racial discrimination in a particular place to determine whether Section 2 had been violated.
The effects test, therefore, means Section 2 will phase out naturally when it is no longer needed.
“It exists until the conditions that give rise to Section 2 no longer exist,” Michael Li, Senior Counsel of the Democracy Program at the Brennan Center for Justice, told Democracy Docket.
“If, for example, Black voters in a southern state can form cross-racial alliances with white voters in a way that they don’t necessarily need a Black-majority district anymore, then you don’t have to draw that district, and you can’t be compelled to draw that district.”
In many parts of the country, that is precisely the case. Communities of color might be geographically dispersed or vote differently among themselves, or make political alliances with some white voters on the basis of other characteristics like union membership. In those instances, Section 2 claims would fail.
But in the Deep South racialized politics still reigns. When there’s not a lot of willingness among white voters to vote for candidates preferred by communities of color, or vice versa, the way that districts are drawn could easily shut out communities of color to retain a political advantage. And Section 2 becomes necessary.
‘We need to enhance the voting rights toolbox’
When it comes to Section 2, the temporal argument may be relatively new, but Republicans’ attempts to dismantle it are not. So what happens if one of those attempts is successful?
“It cuts off one of the few remaining voting rights tools that exist for communities of color to overcome discriminatory line drawing,” Li said.
Section 2 redistricting battles are ongoing in Georgia, Louisiana and Alabama. These battles will determine whether Black voters have the opportunity to elect candidates of their choice to Congress and state legislatures. Federal courts ordered the creation of new 2024 congressional maps with two majority-Black districts in both Louisiana and Alabama after they found the states’ original maps violated Section 2. Those maps are back in court, with Black political power hanging in the balance.
But Section 2 goes beyond redistricting and has been described as the single most important tool for protecting voting rights in the country. It’s being used more and more to challenge voter ID laws, absentee voting restrictions, and other limitations on ballot casting methods used more often by voters of color. In Georgia, advocates are using Section 2 to challenge the state’s 2020 voter suppression law, S.B. 202, which places numerous restrictions on mail-in voting, shortens early voting, and bans the distribution of food and drinks to voters waiting in line.
Without Section 2, the power of federal law to protect against racially discriminatory voting rules becomes greatly limited. Residents of seven states can rely on state voting rights acts, but no southern state — where the need might be greatest — has enacted one. As for federal protections, voters would have to fall back on narrower, less utilized civil rights laws.
“We really do need to enhance the voting rights toolbox,” Li said. “That would have to come from Congress.”
What the last 12 years since Shelby County tells us, if anything, is that the acquisition of civil rights is never linear. It’s a struggle that each generation faces anew. Stripping away a crucial tool like Section 2 under the mistaken impression that the country has reached some sort of post-racial milestone would only set back that struggle to fully realize our democratic ideals.
Besides, Li notes, Section 2 is already difficult enough as it is. “It’s not as though people of color, just based on their population, are winning districts,” he said. Voting rights advocates have been very careful about bringing cases with clear-cut violations and plenty of evidence. “There are very few successful Section 2 cases at all levels of government.”