The Voting Rights Act of 1965 (VRA) is one of the most significant legislative accomplishments of the Civil Rights Movement. While the 15th Amendment provided Black Americans with the right to vote in 1870, states established countless discriminatory voting policies and practices in the following decades, including poll taxes, literacy tests, and other bureaucratic restrictions. To address this, Congress adopted the VRA, which provides national, permanent protections for minority voting rights.

Section 2 of the act prohibits any state or local government from enacting laws relating to voting or representation in government that result in discrimination against racial or language minorities. Since Section 5 of the VRA was rendered unenforceable by Shelby County v. Holder in 2013, Section 2 has taken center stage as the main tool to prohibit discrimination in voting.1 Section 2’s protections include the drawing of electoral districts, so any new apportionment of Wisconsin’s state legislative and congressional districts must comply with this section.

Section 2 Protections and Vote Dilution

Section 2 of the VRA, 52 U.S.C. § 10301(a), prohibits any “standard, practice, or procedure” that “results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color…” In 1975, Congress expanded the scope of Section 2 to protect language minorities. § 10303(f)(2).

Generally, a violation of Section 2 is established if it is shown that “the political processes leading to [a] nomination or election [in the jurisdiction] are not equally open to participation by [minority voters] 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.” § 10301(b).

Note the “results in” language means that proving intent to discriminate is not necessary to succeed on a Section 2 claim—discriminatory impact is enough. Vote dilution is accomplished by “cracking” and/or “packing” voters of a protected group: either disbursing voters across districts so their votes are diluted by a white voting bloc (cracking) or excessively concentrating voters into one district when they could otherwise elect representatives of their choice in multiple districts (packing).

Proving a Section 2 Claim – The Gingles Prongs

The seminal case applying Section 2 is Thornburg v. Gingles, decided by the U.S. Supreme Court in 1986. This case set out what must be established to prove a legal violation of Section 2. First, certain preconditions must be met. The Gingles preconditions are:

1. The minority group must be “sufficiently large and geographically compact to constitute a majority in a single-member district” (it must be possible to draw a district where the minority group in question makes up 50% +1 of the district, measured by either members of the voting age population (“VAP”) or citizen voting age population (“CVAP”), depending on the minority group);

2. The minority group must be “politically cohesive” (tend to support the same candidates); and,

3. The majority (white or English-speaking voters) must vote “sufficiently as a bloc to enable it…usually to defeat the minority’s preferred candidate.”

Preconditions 2 and 3 are sometimes referred to collectively as “racially polarized voting.”

Along with the three Gingles preconditions, a court will look at the “totality of the circumstances” to assess whether members of the racial or language group have less opportunity than other members of the electorate to participate in the political process and elect candidates of their choice. Examining the totality of the circumstances is an “intensely local” and “fact-intensive” process. This analysis may include a list of non-exhaustive factors outlined by the U.S. Senate in 1982 when amending the VRA. These factors include, but are not limited to:

– The history of official voting-related discrimination in the state or political subdivision;
– The extent to which voting is racially polarized;
– The extent to which the state or political subdivision has used voting practices/procedures that tend to enhance the opportunity for discrimination against the minority group;
– Exclusion of members of a minority group from the candidate slating process;
– The extent to which the minority group bears effects of discrimination in areas like education, employment, and health, which hinder their ability to participate in the political process;
– The use of overt or subtle racial appeals in political campaigns; and,
– The extent to which members of the minority group have been elected to public office in the jurisdiction.

As mentioned above, to succeed on a Section 2 claim, a plaintiff must show that a district can be drawn with 50%+1 of the relevant minority group(s), as measured by the percentage of group members of voting age (VAP) or citizens of voting age (CVAP). However, when a state or court draws the plan, a district need not remain “majority-minority” to comply with Section 2, as long as voters of the minority group have an equal opportunity to elect their candidate of choice (also called a “functional analysis”). In other words, courts will require a district drawn in such a way that provides the minority community with an opportunity to elect a candidate of its choice. A court will look to the likely electoral performance of a district, including expert analysis using past election results. There is no specific “one size fits all” percentage of minority VAP, or CVAP, that is required in all cases.

Wisconsin Example: Baldus Case

In 2012, a federal court found that Wisconsin Assembly Districts 8 and 9 as drawn by the Legislature and approved by the Governor after the 2010 Census violated Section 2. Despite a sizeable, compact Latinx community in Milwaukee, neither district had a majority of Latinx CVAP. Latinx citizens were instead cracked across two districts. The court heard evidence and agreed that it was possible to draw a majority-Latinx district, and that the enacted map’s boundary between the two districts artificially divided the heart of the Latinx community. The Court also found that racially polarized voting existed, and that plaintiffs had shown the totality of the circumstances demonstrated that Latinx voters did not have an equal opportunity to participate in the political process. Therefore, the Court held that the cracked Districts 8 and 9 diluted the community’s voting power in violation of Section 2. To remedy the violation, the Court adopted a majority-Latinx (CVAP) version of District 8.

It is relevant that while challenged Assembly District 8 had a 60.52% Latinx VAP, the court found that the appropriate measurement was the citizen voting age population (CVAP) when evaluating districts where not all adult members of the relevant group are eligible to vote. In contrast, when evaluating Black majority-minority districts, courts will use the Black voting age population (BVAP) to measure the ability of a community within the district to elect its candidate of choice.

1 Section 5 of the VRA requires certain “covered” jurisdictions with a history of extreme discrimination to seek advance approval (“preclearance”) from a court or the Department of Justice before changing voting laws or adopting new voting districts. After the Shelby County decision, no state or subdivision is a covered jurisdiction.