Document Type
Book Chapter
Publication Date
2024
Abstract
This chapter traces the evolution of Section 2 of the Voting Rights Act since 1982. It shows how Section 2 displaced scores of electoral structures that inhibited minority political participation; how, in so doing, it fostered the proliferation of majority-minority electoral districts nationwide; how judicial distaste for these districts fueled sweeping decisions that dramatically narrowed Section 2’s reach; and how the Court’s recent decision in Allen v. Milligan has, for now, curbed that retrenchment. The chapter also describes recently articulated limits the Supreme Court has placed on Section 2 vote denial—as distinct from dilution—claims; and the way in which Section 2 doctrine in this arena now aligns with constitutional doctrine governing the right to vote under the Anderson-Burdick framework. The chapter argues that the systematic erosion of Section 2 stems from judicial apprehension that the provision, if read broadly, would, first, devolve into a mandate for proportional representation and, second, wholly supplant local control over elections. It closes by showing that these fears are largely unfounded, as the actual record of Section 2 litigation makes clear that the feared scenarios never came close to being realized. A divided Court acknowledged as much in Allen v. Milligan. That acknowledgment informed both its recognition of a particularly strong Section 2 claim and its rebuff of a broad constitutional challenge. Whether Milligan will support recognition of Section 2 claims that are less unequivocal or a more tempered constitutional challenge remains to be seen.
Publication Information & Recommended Citation
Katz, Ellen D. "Erasing Section 2." In Oxford Handbook of American Election Law, edited by Eugene D. Mazo. Oxford: Oxford University Press, 2024. DOI: https://doi.org/10.1093/oxfordhb/9780197547922.001.0001
Comments
This material was originally published in The Oxford Handbook of American Election Law edited by Eugene D. Mazo and has been reproduced by permission of Oxford University Press https://doi.org/10.1093/oxfordhb/9780197547922.001.0001. For permission to reuse this material, please visit http://global.oup.com/academic/rights