This new paper by Ellen Katz and a team of coauthors examines VRA Section 2 decisions from 1982 to 2021. The paper updates an important earlier study by Katz et al. covering the period from 1982 to 2005. The amicus brief that Harvard Law School’s Election Law Clinic recently filed in Merrill v. Milligan on behalf of Jowei Chen, Chris Elmendorf, Nick Stephanopoulos, and Chris Warshaw drew heavily from the latest Katz et al. study, using it to argue that the volume and success rate of Section 2 suits are already quite low.

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.