The text of Section 2 of the Voting Rights Act, amended in 1982, contains this language:

(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.

The avowed reasons for updating the language was to address Supreme Court decisions that found intent, not effect, to be the touchstone for violations of Section 2 and of the Fifteenth Amendment.

The language in subpart (a) uses the phrase “results in.” It does not include phrases like “intends” or related language.

Section 2, however, has long been assumed to protect intentional discrimination, too. Department of Justice guidance published September 1, 2021, includes two pages of guidance on “discriminatory intent” under Section 2 of the Voting Rights Act.

The Supreme Court’s decision in Brnovich v. Democratic National Committee, however, is a bit cagier. In its holding that Arizona did not engage in “intentional” discrimination, the majority opinion never specifies if it is addressing a claim under the Fifteenth Amendment or under Section 2 of the Voting Rights Act. Elsewhere, Justice Alito highlights the change in language in 1982: “Section 2(a), as noted, omits the phrase ‘to deny or abridge the right . . . to vote on account of race or color,’ which the Bolden plurality had interpreted to require proof of discriminatory intent. In place of that language, §2(a) substitutes the phrase ‘in a manner which results in a denial or abridgement of the right . . . to vote on account of race or color.’ (Emphasis added.)”

This language has resulted in a new set of arguments about what Section 2 covers and what it does not.

First, the United States sued Georgia over Senate Bill 202 (in a case now consolidated with several other cases), but the United States’ claim focused on intentional discrimination under Section 2. The opening argument from Georgia in its motion to dismiss was, “Congress eliminated the intent test from Section 2 in 1982.” Georgia argued:

The Supreme Court re-emphasized this point in Brnovich, where it explained that Congress’s goal was to “establish a new vote-dilution test” in the 1982 amendment. Brnovich. Even the Brnovich dissent-which vigorously disagreed with the majority opinion-agreed that there is no intent-only test in Section 2, explaining that “[t]his Court, as the majority notes, had construed the original Section 2 to apply to facially neutral voting practices ‘only if [they were] motivated by a discriminatory purpose.’ … Congress enacted the current Section 2 to reverse that outcome-to make clear that ‘results’ alone could lead to liability.” (Kagan, J., dissenting). A few pages later, Justice Kagan emphasized again: “The [Section 2] inquiry is focused on effects: It asks not about why state officials enacted a rule, but about whether that rule results in racial discrimination.”

The United States responded, “Section 2, as amended in 1982, encompasses both a ‘purpose’ claim and a ‘results’ claim.” The federal district court accepted the United States’ argument.

Earlier this week, the Eleventh Circuit issued a decision out of Florida on an election case. (Note, too, that both Georgia and Florida are in the Eleventh Circuit.) Here’s what the majority had to say about Section 2 of the Voting Rights Act:

finding of discriminatory impact is necessary and sufficient to establish a section 2 violation. Section 2’s “results test requires an inquiry into the totality of the circumstances.” Greater Birmingham, 992 F.3d at 1329 (quoting Chisom v. Roemer, 501 U.S. 380, 394 (1991)). A violation exists if “members of a protected class ‘have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.’” Chisom, 501 U.S. at 388 (quoting language now codified at 52 U.S.C. § 10301(b)). A finding of discriminatory intent alone will not suffice.

Our precedents respecting the proper standard are admittedly inconsistent. . . .

The Supreme Court has stated that under section 2 as amended, “[t]he ‘right’ question . . . is whether ‘as a result of the challenged practice or structure plaintiffs do not have an equal opportunity to participate in the political processes and to elect candidates of their choice.’” Gingles, 478 U.S. at 44 (citations omitted); see also Voinovich v. Quilter, 507 U.S. 146, 157 (1993) (“We hold only that, under [section] 2 of the Voting Rights Act . . . plaintiffs can prevail on a dilution claim only if they show that . . . the State’s apportionment scheme has the effect of diminishing or abridging the voting strength of the protected class.” (emphasis added)). So, a finding of discriminatory impact is necessary to establish a violation of section 2 of the Voting Rights Act. Our decisions in Askew and Osburn are not—and never were—good law to the extent that they purported to hold otherwise.

This is, as far as I know, the first square holding like this from a court of appeals that Section 2 of the Voting Rights Act does not cover intentional discrimination.

Now, after all this, let me add a point. Everyone agrees that the Fifteenth Amendment does cover intentional discrimination on the basis of race, color, or previous condition of servitude. So plaintiffs perhaps simply must comply with a pleading element: plead intentional discrimination under the Fifteenth Amendment, and plead discriminatory effect under Section 2 of the Voting Rights Act.

There may well be other wrinkles that the litigators deep into litigating Voting Rights Act claims could identify. For instance, some of the sanctions in the Voting Rights Act only expressly apply to statutory claims, not constitutional claims (at least on their face). Another, as the Untied States notes in its Georgia memorandum:

The State’s argument to the contrary is illogical: Since its passage in 1965, the VRA has expressly authorized the Attorney General to bring civil suits to enforce the Act, including Section 2. 52 U.S.C. § 10308(d). It cannot be that, as the State asserts, Congress’ efforts to strengthen the protections of the VRA in 1982 somehow stripped the Attorney General of his existing ability to prosecute intentional discrimination under the VRA.

Now, I don’t know what role the Department of Justice has to bring standalone Fifteenth Amendment claims (although we may soon find out). On the heels of other litigation questioning whether private litigants have the authority to initiate claims under Section 2 of the Voting Rights Act, however, we may be witnessing a slow compartmentalization of Voting Rights Act litigation by claim and by litigant.