Section 2 of the Voting Rights Act (VRA) ensures communities of color have an equal opportunity to participate in the electoral process and to elect candidates of their choice. This landmark piece of civil rights legislation continues to play a key role in ensuring that discriminatory electoral systems do not deprive growing racial minorities fair electoral opportunities at all levels of government, including in the design of districts used for elections.
In 2018, two voters in Virginia Beach, Virginia sued the city under the VRA to challenge its at-large system for electing city councilmembers where every candidate runs citywide rather than in specific districts. The plaintiffs argued that this scheme violated Section 2 because white Virginia Beach voters formed a majority bloc that consistently opposed candidates preferred by Black, Latino, and Asian communities. As a result of this racially polarized bloc voting, communities of color have rarely succeeded in securing representation on the Virginia Beach City Council despite constituting more than 40 percent of the city’s population (as of the 2020 Census) and voting as a cohesive minority coalition. In fact, since 1970 only six candidates of color have won elections for City Council.
On March 31, 2021, a U.S. district court in Virginia agreed with plaintiffs and ordered the at-large election system to be replaced by districts that give minority communities a fair opportunity to elect their preferred candidates. The city appealed this outcome to the Fourth Circuit Court of Appeals, arguing, among other things, that Section 2 cannot be invoked by a minority coalition.
On February 14, 2022, the Brennan Center and the Southern Coalition for Social Justice, in partnership with pro bono counsel Paul Hastings LLP filed an amicus brief in support of plaintiffs-appellees. The issue of whether the minority coalition districts are covered by the Voting Rights Act is a question of first impression for the Fourth Circuit.
The brief raised three points to support the application of Section 2 to minority coalitions.
First, the text of Section 2 offers protections to anyone denied equal voting rights on account of race, color, or language minority status. Nothing in the statute limits its reach to one minority group. Instead, properly understood, the VRA is available to any nonwhite voters that are suffering similar discriminatory harms and thus suffer the same injury. This reading is also aligned with the purpose of the VRA: to remedy the impact of past and ongoing discrimination, which often affects multiple nonwhite communities.
Second, Congress demonstrated its intent to protect multiracial coalitions by repeatedly expanding the reach of the VRA every time it revisited the statute. Congress, likewise, did not change the language when federal appellate courts began allowing multiracial coalitions to bring suit. Plus, at the time Section 2 went into effect, the U.S. Department of Justice regularly enforced VRA’s Section 5 protections on behalf of multiracial coalitions. This closely related provision uses near-identical language to define its reach, further supporting the conclusion that Congress intended Section 2 to cover minority coalitions.
Finally, the fact-intensive nature of the Section 2 inquiry makes it more than capable of resolving claims raised by minority coalitions. Establishing liability under the VRA has long required plaintiffs to demonstrate that minority voters are sufficiently numerous, politically cohesive, and that they face persistent opposition from their white counterparts plus establish a history of discrimination that creates persistent racial disparities in political and social outcomes. These factors apply equally well in lawsuits where multiple minority groups claim discrimination.
On February 17, 2022, plaintiffs-appellees submitted a letter to the Fourth Circuit stating that both parties contend that the matter is now moot because the City of Virginia Beach received preclearance of a remedial plan under the Virginia Voting Rights Act. The City’s plan eliminated the at-large scheme and established opportunity-to-elect districts.
Plaintiffs-appellees have asked the Fourth Circuit to consider supplemental briefing outlining the consequences of mootness due to the VVRA. For now, these legal protections have eliminated one crucial barrier for communities in Virginia Beach to elect the candidates of their choice.
