This Harvard Law Review recently published this case comment on the Fifth Circuit’s en banc decision in Petteway v. Galveston County, which held that Section 2 of the VRA doesn’t authorize claims by coalitions of minority voters.

The Fifth Circuit’s erroneously narrow reading of Section 2 contravenes the statute’s broad language and expansive remedial intent. This error will diminish the protection that the Act was intended to provide in the context of our heterogeneous and diversifying electorate. . . .

 The Supreme Court has considered and rejected the structure of the majority’s argument — that is, if coalition claims were permissible, Congress would have expressly written them into the law — as an illegitimate interpretative strategy for analyzing the VRA.⁸⁰ By demanding express authorization of coalition districts, the Fifth Circuit disregarded the capacious legislative purpose undergirding the VRA⁸¹ and ignored the “super-strong presumption” of statutory stare decisis,⁸² which would have compelled an alternative result. . . .

The Fifth Circuit’s rejection of coalition claims risks undermining cross-racial solidarity and rewarding residential segregation. The United States is becoming more diverse and less residentially segregated for certain minority groups — two positive developments.⁸⁸ But the Fifth Circuit’s ruling risks making residential heterogeneity an impediment to Section 2 relief.⁸⁹ As a community diversifies, it becomes less likely that households of any single race will be sufficiently concentrated to meet the Gingles compactness threshold that plaintiffs must satisfy to bring a Section 2 claim,⁹⁰ despite high levels of racially polarized voting in many jurisdictions.⁹¹ Minorities seeking representation will be disincentivized from building ties with residents of different racial communities.⁹² Such a development could perversely incentivize a zero-sum approach to addressing racial voting discrimination and discourage cross-racial coalition-building.⁹³