Article by Amandeep S. Grewal*
2 Fordham L. Voting Rts. & Democracy F. 1

This Article addresses a new controversy over whether Section 2 of the Voting Rights Act prohibits laws that exhibit “only” discriminatory intent, in the absence of discriminatory results.  Lower courts have long embraced an intent approach for Section 2.  And the Department of Justice has rested its entire ongoing case against Georgia’s controversial voting bill on an intent approach.

However, this Article shows that the Supreme Court’s decision in Brnovich v. DNC effectively rejects the intent approach to Section 2. In April 2023, the Eleventh Circuit reversed its prior cases and now rejects an intent theory.  This puts in peril numerous voting rights challenges in the southeastern United States.  This Article urges Congress to add an intent test to Section 2, offers draft language for Congress to codify, and explains the anomalies and inequities that may arise if the legislature fails to act.

Introduction

Voter discrimination takes many forms and requires numerous legal tools to address.  The states ratified the Fifteenth Amendment to address discriminatory laws that denied voting rights to Black men.²See Travis Crum, The Lawfulness of the Fifteenth Amendment, 97 Notre Dame L. Rev. 1543, 1545 (2022).  The Fourteenth Amendment, though probably not established with voting rights firmly in mind,³See Travis Crum, The Superfluous Fifteenth Amendment?, 114 Nw. U. L. Rev. 1549, 1551 (2020) (“Despite its broad language, the Fourteenth Amendment was originally understood by the Reconstruction generation to not encompass the right to vote.”). also protects against discriminatory voting laws.  The Voting Rights Act (the “VRA”),⁴Voting Rights Act of 1965, Pub. L. No. 89-110, 79 Stat. 437 (codified as amended at 52 U.S.C. §§ 10301–10314, 10501–10508, 10701–10702). through its Section 5 preclearance regime,⁵Section 5 provides that those jurisdictions described in Section 4 must “obtain federal permission before enacting any law related to voting.” Shelby Cnty. v. Holder, 570 U.S. 529, 534 (2013).  The number of covered jurisdictions has varied over time but has generally been substantial. See Section 4 of the Voting Rights Act:  The Formula for Coverage Under Section 4 of the Voting Rights Act, U.S. Dep’t of Just. (Apr. 5, 2023), https://www.justice.gov/crt/section-4-voting-rights-act#formula [https://perma.cc/5644-4AWH] (last visited Oct. 1, 2023) (describing jurisdictions covered by Section 4).  has quashed many discriminatory laws before they could ever go into effect.  These authorities hold a storied place in voting rights law.

Section 2 of the VRA, once consigned to a modest role,⁶See Thomas M. Boyd & Stephen J. Markman, The 1982 Amendments to the Voting Rights Act:  A Legislative History, 40 Wash. & Lee L. Rev. 1347, 1352–53 (1983) (describing the original version of Section 2 as “a little-used provision that tracked the language of the Fifteenth Amendment”). has become another essential tool to protect voting rights.  Section 2(a) imposes a results-based test on state voting laws.⁷Section 2, codified at 52 U.S.C. § 10301, provides in full:

Denial or abridgement of right to vote on account of race or color through voting qualifications or prerequisites; establishment of violation

(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.  A voting law will violate the “Results Test” and must be set aside when it fails the equal openness standard prescribed in Section 2(b).⁸See 52 U.S.C. 10301(b).  Generally speaking, that standard looks to whether a state’s election systems allow minority groups to elect their preferred candidates.⁹See id. 

Courts have long wrestled with whether Section 2 violations may arise in situations beyond those prescribed in the statute’s text.¹⁰See infra Part II.  Several times, courts have held that a state law enacted with discriminatory intent violates Section 2.¹¹See infra Part II.A.  Under this “Intent Test,” the Section 2(b) equal openness standard does not provide the exclusive path to show a Section 2 violation.

Whether Section 2 properly includes an Intent Test has become exceptionally important.  Section 2 cases have “proliferated in the lower courts” in recent years.¹²See Brnovich v. Democratic Nat’l Comm., 141 S. Ct. 2321, 2333 (2021).  The statute has been called upon to support claims that other authorities might not.  The Supreme Court has not applied the Fourteenth and Fifteenth Amendments as rigorously as some would like.¹³See, e.g., Press Release, ACLU of Indiana, ACLU Disappointed with Supreme Court’s Voter ID Decision (Apr. 28, 2008), https://www.aclu.org/press-releases/aclu-disappointed-supreme-courts-voter-id-decision [https://perma.cc/KD58-E7TB] (explaining concerns about Crawford v. Marion Cnty. Election Bd., 553 U.S. 181 (2008)).  And, in Shelby County, the Court struck down the coverage formula for the Section 5 preclearance regime.¹⁴Shelby Cnty. v. Holder, 570 U.S. 529, 556–57 (2013).  When operative, the preclearance regime requires that specified jurisdictions obtain federal permission to change their voting laws. Id. at 529.  Jurisdictions that once faced federal review for new voting laws no longer do.¹⁵Congress can reactivate Section 5 by enacting an updated coverage formula but has lacked the political will to do so.  See Paige E. Richardson, Preclearance and Politics:  The Future of the Voting Rights Act, 89 U. Cin. L. Rev. 1089, 1102 (2020) (“Since the Shelby County decision, Congress has been unable to pass any VRA amendments.  What was once a bipartisan issue has now become partisan, with votes following the Democratic-Republican party line.”).  Plaintiffs have relied on Section 2 to help pick up the slack.¹⁶See Ellen D. Katz, Section 2 After Section 5:  Voting Rights and the Race to the Bottom, 59 Wm. & Mary L. Rev. 1961, 1963 (2018) (“In the years since Shelby County, plaintiffs have relied on section 2 of the VRA to challenge those retrogressive electoral practices that section 5 would have blocked.”).  For an empirical study of Section 2 claims, see Ellen D. Katz et al., To Participate and Elect:  Section 2 of the Voting Rights Act at 40,  Univ. Mich. L. Sch. Voting Rts. Initiative (2022), https://voting.law.umich.edu [https://perma.cc/6GFK-G5KR].  For further academic discussion, see Christopher S. Elmendorf & Douglas M. Spencer, Administering Section 2 of the Voting Rights Act After Shelby County, 115 Colum. L. Rev. 2143, 2147–48 (2015) (arguing that “courts could create rebuttable presumptions under section 2 that would give the statute special bite in many jurisdictions formerly covered by section 5.”).  Challenges to controversial voting bills in Georgia and Florida have relied entirely or significantly on the Intent Test.¹⁷See Complaint at 42–44, United States v. Georgia, No. 1:21-CV-2575-JPB (N.D. Ga. June 25, 2021), ECF No. 1; see also League of Women Voters of Fla., Inc. v. Lee, 595 F. Supp. 3d 1042, 1076 (N.D. Fla. 2022) (summarizing plaintiffs’ reliance on the Intent Test under Section 2, as well as plaintiffs’ other claims), aff’d in part, vacated in part, rev’d in part sub nom. League of Women Voters of Fla., Inc. v. Fla. Sec’y of State, 66 F.4th 905 (11th Cir. 2023).

This Article explores whether Section 2 properly includes an Intent Test and concludes that the statute does not.  Part I explains the statute’s amendment history and its standards.  Part II discusses the circuit split over whether the statute includes the Intent Test.  Part III argues that the relevant Supreme Court precedents reject the Intent Test.  Part IV shows that the absence of the Intent Test creates anomalies under the VRA. Part IV thus encourages Congress to codify the Intent Test and offers principles to follow.

I. Development of Section 2 of the VRA

Congress enacted the VRA to help fulfill the promises made by the Fifteenth Amendment.¹⁸The Preamble to the VRA describes the act as an effort to “enforce the fifteenth amendment to the Constitution of the United States.” See Pub. L. No. 89-110, 79 Stat. 437, 437.  Congress later relied on the Fourteenth Amendment to expand the VRA. See, e.g., Pub. L. No. 89-110, § 4(e)(1) (invoking the Fourteenth Amendment to address language restrictions in voting practices); see also Pub. L. No. 94-73 (adding several references to the Fourteenth Amendment across the act).   Though that Amendment nominally prohibits voter discrimination “on account of race, color, or previous condition of servitude,” states repeatedly adopted measures that abridged minority voting rights.¹⁹See Brnovich v. Democratic Nat’l Comm., 141 S. Ct. 2321, 2330 (2021) (“Despite the ratification of the Fifteenth Amendment, the right of African-Americans to vote was heavily suppressed for nearly a century.”); see also Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 197–98 (2009) (“States were creative in ‘contriving new rules’ to continue violating the Fifteenth Amendment ‘in the face of adverse federal court decrees.’” (citation omitted)) .  The VRA established a comprehensive scheme that would prevent racially²⁰Though concerns about discrimination against racial minorities drove Congress to enact Section 2, the statute’s language broadly refers to discrimination “on account of race or color.” See Pub. L. No. 89-110, 79 Stat. 437, 437.  Thus, the statute can protect racial majorities. See United States v. Brown, 494 F. Supp. 2d 440, 444–46 (S.D. Miss. 2007) (discussing relevant authorities), aff’d 561 F.3d 420 (5th Cir. 2009).  For ease of exposition, this Article will refer only to discrimination against racial minorities. discriminatory laws and provide relief for aggrieved voters.²¹See South Carolina v. Katzenbach, 383 U.S. 301, 315 (1966) (“The Voting Rights Act of 1965 reflects Congress’ firm intention to rid the country of racial discrimination in voting.”).

Section 2 is one part of that comprehensive scheme.  As originally enacted, it provided:

In 1975,²³See Voting Rights Act Amendments of 1975, Pub. L. No. 94-73, §§ 203, 206, 207, 301, 89 Stat. 400, 401–03 (1975). Congress extended these protections to specified “language minorities.”²⁴See 52 U.S.C. § 10310(c)(3) (“The term ‘language minorities’ . . .  means persons who are American Indian, Asian American, Alaskan Natives or of Spanish heritage.”).  Through Section 4(f)(2), a state cannot “deny or abridge the right of any citizen of the United States to vote because he is a member of a language minority group.”²⁵See Pub. L. No. 94-73, § 203, 89 Stat. at 401 (originally codified at 42 U.S.C.A. § 1973b(f)(2), and now codified at 52 U.S.C. § 10303(f)(2)).  However, Congress did not further explain what it meant to “deny or abridge” a voting right, whether for racial or language minorities.²⁶Congress also amended Section 2 such that it cross-references the Section 4(f)(2) protections. See Pub. L. No. 94-73, § 206, 89 Stat. at 403.

In City of Mobile v. Bolden,²⁷446 U.S. 55 (1980). the Court plurality addressed how a Section 2 violation would arise.  That case involved a “vote dilution” challenge to a local law.  Vote dilution occurs when a state counts all votes but adopts measures that render some votes practically meaningless.²⁸See Daniel P. Tokaji, Applying Section 2 to the New Vote Denial, 50 Harv. C.R.-C.L. L. Rev. 439, 442 (2015) (“Vote dilution . . . refers to practices that diminish a group’s political influence. . . . The most common examples of practices that may dilute minority votes are at-large elections, multimember districts, and gerrymandered districts.”).  Vote dilution thus differs from “vote denial,” where a state imposes barriers to voting in the first instance.²⁹See id. (“[V]ote denial concerns impediments to voting and the counting of votes.”) (punctuation omitted).

The Bolden plaintiffs alleged that Mobile’s city commissioner system diluted their votes.³⁰See Bolden, 446 U.S. at 58.  Under the system, three city commissioners governed Mobile.³¹Id. at 59.  Each commissioner was elected at large, i.e., by voters across the city.  The plaintiffs believed that Mobile should replace the city commissioner system with a representative system.³²See Bolden v. City of Mobile, 423 F. Supp. 384, 385 (S.D. Ala. 1976) (“The prayed-for relief consists of, (1) a declaration that the present at-large election system is unconstitutional, (2) an injunction preventing the present commissioners from holding, supervising, or certifying any future city commission elections, (3) the formation of a government whose legislative members are elected from single member districts, and (4) costs and attorney fees.”), aff’d 571 F.2d 238 (5th Cir. 1978), rev’d 446 U.S. 55 (1980).  Under that system, Mobile would draw separate districts.  Then, each district would elect a single member to represent it in government.  This single-member system would “provide blacks a realistic opportunity to elect blacks to the city governing body.”³³Id. at 403.  A Black candidate who could not earn at-large support might be elected to a smaller district with a proportionately larger Black population.³⁴See generally Lani Guinier, The Representation of Minority Interests:  The Question of Single-Member Districts, 14 Cardozo L. Rev. 1135 (1993); see also Laughlin McDonald, Holder v. Hall:  Blinking at Minority Voting Rights, 3 U.D.C. L. Rev. 61, 95 (1995) (arguing that increases in the number of Black elected officials within Georgia can be “traced directly to the gradual demise of at-large elections and the increased use of [single-member] districts containing effective Black-voting majorities.” (citing Quiet Revolution in the South:  The Impact of the Voting Rights Act 1965–1990 89–90 (Chandler Davidson & Bernard Grofman eds., 1994))).

The plaintiffs in Bolden claimed that the law required a switch from Mobile’s at-large system.³⁵See Bolden v. City of Mobile, 446 U.S. 55, 58 (1980).  They argued that the current system violated Section 2, as well as the Fourteenth and Fifteenth Amendments.³⁶Id.  In rejecting the plaintiffs’ claims, the Court plurality concluded that Section 2 merely codified the protections provided by the Fifteenth Amendment.³⁷Id. at 60–61 (plurality opinion); see also Chisom v. Roemer, 501 U.S. 380, 392 (1991) (“At the time of the passage of the Voting Rights Act of 1965, § 2, unlike other provisions of the Act, did not provoke significant debate in Congress because it was viewed largely as a restatement of the Fifteenth Amendment.”).  That is, just as successful Fifteenth Amendment challenges required intentional discrimination, so too did Section 2 challenges.³⁸See Bolden, 446 U.S. at 62 (plurality opinion) (“Our decisions . . . have made clear that action by a State that is racially neutral on its face violates the Fifteenth Amendment only if motivated by a discriminatory purpose.”).  Because the plaintiffs could not show discrimination, their Section 2 and Fifteenth Amendment claims failed.  The Court also rejected their Fourteenth Amendment claims.  That Amendment’s Equal Protection Clause concerned itself with discriminatory intent, rather than discriminatory effects.³⁹See id. at 66 (reciting “the basic principle that only if there is purposeful discrimination can there be a violation of the Equal Protection Clause of the Fourteenth Amendment.” (citing Washington v. Davis, 426 U.S. 229 (1976))); see also id. (finding that at-large systems “could violate the Fourteenth Amendment if their purpose were invidiously to minimize or cancel out the voting potential of racial or ethnic minorities”).

The Court plurality also rejected the plaintiff’s vote dilution theory.⁴⁰See Allen v. Milligan, 599 U.S. 1, 40 (2023) (“‘Congress drew § 2(b)’s current operative language’ from the 1973 decision White v. Regester . . .  a case that was also about districting.” (citation omitted)).   To the plurality, the Fifteenth Amendment reached vote denial only.⁴¹See Bolden, 446 U.S. at 65.  That is, the amendment “prohibits only purposefully discriminatory denial or abridgment by government of the freedom to vote.”⁴²Id.  In Mobile, Black persons could “‘register and vote without hindrance.’”⁴³Id. (cleaned up).  This made their vote dilution theory unviable:  “The Fifteenth Amendment does not entail the right to have [Black] candidates elected.”⁴⁴Id.

 Bolden prompted “an avalanche of criticism,”⁴⁵Allen, 599 U.S. at 1 (“Almost immediately after it was decided, [Bolden] ‘produced an avalanche of criticism, both in the media and within the civil rights community.’” (quoting Thomas M. Boyd & Stephen J. Markman, The 1982 Amendments to the Voting Rights Act:  A Legislative History, 40 Wash. & Lee L. Rev. 1347, 1355 (1983))). including in Congress.  The Senate Judiciary Committee Report (the “Senate Report”) claimed that Bolden improperly added an intent requirement to Section 2.⁴⁶See S. Rep. No. 97-417, at 36 (1982) (criticizing intent inquiry as “unnecessarily divisive because it involves charges of racism on the part of individual officials or entire communities” and asserting that it “asks the wrong question”).  That is, it “was possible in 1965 to regard Section 2 both as a restatement of the Fifteenth Amendment, and also as reaching discrimination whether or not intent could be established.”⁴⁷Id. at 19 (emphasis added).  Viewed this way, Section 2 violations would arise whenever there was discriminatory intent or a discriminatory result.  Bolden, the Senate Report concluded, had contradicted precedents that blessed these two separate frameworks.⁴⁸See id. at 22 (“[I]t is clear that, prior to Bolden, plaintiffs in dilution cases could prevail by showing either discriminatory results or intent.”); see also id. at 26 (“A fair reading of Bolden reveals that the plurality opinion was a marked departure from earlier Supreme Court and lower court vote dilution cases.”).

The Senate Report also criticized Bolden’s dismissal of the vote dilution theory. The report concluded that the Court had previously allowed vote dilution claims.⁴⁹See id. at 26.  Thus, Bolden reflected a “marked departure from prior law.”⁵⁰Id. at 19.

To address Bolden,⁵¹See Allen v. Milligan, 599 U.S. 1, 40 (2023) (“Congress adopted the amended § 2 in response to the 1980 decision [Bolden].”). Congress in 1982 amended Section 2 and split it into two parts.⁵²See Voting Rights Act Amendments of 1982, Pub. L. No. 97-205, § 3, 96 Stat. 131, 134.   Section 2(a) established the Results Test, prohibiting any law that “results in a denial or abridgment” of a voting right, “as provided in subsection (b).”⁵³Id. at 134. Section 2(b) established an equal openness standard for the Results Test, under which a jurisdiction violates the Test “if, based on the totality of circumstances,” the political processes in that jurisdiction “are not equally open to participation” for protected groups.⁵⁴Id.

To flesh out the equal openness standard, Congress looked to the Supreme Court’s decision in White v. Regester.⁵⁵412 U.S. 755, 766 (1973); see also Allen v. Milligan, 599 U.S. 1, 40 (2023) (“‘Congress drew § 2(b)’s current operative language’ from the 1973 decision White v. Regester . . .  a case that was also about districting.” (citation omitted)).   In White, the plaintiffs argued that election systems in two Texas counties improperly diluted minority votes.⁵⁶See 412 U.S. at 758–59.  Regarding elections for the Texas House, the plaintiffs argued that the “multimember districts for Bexar County and Dallas County operated to dilute the voting strength of racial and ethnic minorities.” Id. at 759.  The Court held that for the plaintiffs to prevail, they could not merely show that minorities failed to secure proportional representation.⁵⁷See id. at 765–66 (“To sustain [their] claims, it is not enough that the racial group allegedly discriminated against has not had legislative seats in proportion to its voting potential.”).  Rather, the plaintiffs needed to “produce evidence . . . that the political processes leading to nomination and election were not equally open to participation by the group in question—that its members had less opportunity than did other residents in the district to participate in the political processes and to elect legislators of their choice.”⁵⁸Id. at 766.  This somewhat inscrutable language provided the template for Section 2(b).⁵⁹See supra note 55.

The proposed shift from an Intent Test to a Results Test met fierce opposition in the Senate.⁶⁰See Miss. Republican Exec. Comm. v. Brooks, 469 U.S. 1002, 1010 (1984) (Rehnquist, J., dissenting) (quoting H.R. Rep. No. 97–227, at 29).  Some believed that the Results Test would improperly mandate proportional representation for minorities or lead to “essentially standardless” judgments.⁶¹Id. (citing Hearings on S. 53, S. 1761, S. 1975, S. 1992, and H.R. 3112 Before the Subcomm. on the Const. of the S. Comm. on the Judiciary, 97th Cong., 1309–13, 1334–38 (1982)); see also President Ronald Reagan, Statement About Extension of the Voting Rights Act (Nov. 6, 1981), (https://www.reaganlibrary.gov/archives/speech/statement-about-extension-voting-rights-act [https://perma.cc/9EKS-8TAC] (expressing support for the extension of the VRA but arguing that Section 2 should not switch from an intent-based standard to an effects-based standard).    To placate these concerns, Congress qualified Section 2:  “[N]othing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.”⁶²52 U.S.C. § 10301(b).

Section 2’s pieces do not fit together perfectly.  Section 2(a), through its “denial or abridgement” language, speaks most easily to vote denial measures.⁶³The Fifteenth Amendment refers to votes being “denied or abridged” on account of race. U.S. Const. amend. XV, § 1.  Even outside of Bolden, the Court has strongly implied that vote denial or abridgement does not include vote dilution. See Reno v. Bossier Par. Sch. Bd., 528 U.S. 320, 334 n.3 (2000) (“[W]e have never held that vote dilution violates the Fifteenth Amendment … [W]e have never even ‘suggested’ as much.”) (citation omitted).  Thus, Section 2(a), if viewed in isolation, probably would concern itself only with vote denial. Cf. Shaw v. Reno, 509 U.S. 630, 645 (1993) (concluding that the vote dilution scheme in Gomillion v. Lightfoot, 364 U.S. 339 (1960), though resolved by the majority under the Fifteenth Amendment, was properly resolved under the Fourteenth Amendment, per Justice Whittaker’s concurring opinion).  But Section 2(b) provides a standard drawn from the vote dilution context.⁶⁴See Brnovich v. Democratic Nat’l Comm., 141 S. Ct. 2321, 2333 (2021) (noting that the Senate Report “listed many examples of what the Committee took to be unconstitutional vote dilution, but the survey identified only three isolated episodes involving the outright denial of the right to vote.”); Michael J. Pitts, Rethinking Section 2 Vote Denial, 46 Fla. St. U. L. Rev. 1, 3 (2018) (“[T]he results standard—while applicable to vote denial claims—arose primarily out of a need for a new standard in vote dilution litigation.”).  In Thornburg v. Gingles, 478 U.S. 30 (1986), the Court laid out several preconditions and factors for vote dilution claims under Section 2.  This might help explain why the statute has generated interpretive difficulties⁶⁵Cf. Miss. Republican Exec. Comm., 469 U.S. at 1010 (Rehnquist, J., dissenting) (“[T]he language used in the amended statute is, to say the least, rather unclear.”); see also Luis Fuentes-Rohwer, Justice Kennedy to the Rescue?, 160 U. Pa. L. Rev. PENNumbra 209 (2012) (“Section 2 of the Voting Rights Act is a doctrinal mess.  Through a totality of circumstances inquiry, Section 2 has evolved from its modest beginnings as a codification of the Fifteenth Amendment into a ‘mysterious judicial inquiry.’” (quoting Christopher S. Elmendorf, Making Sense of Section 2:  Of Biased Votes, Unconstitutional Elections, and Common Law Statutes, 160 U. Pa. L. Rev. 377, 381 (2012))).—Section 2 applies to both vote denial and vote dilution,⁶⁶Until recently, plaintiffs did not often rely on Section 2 for vote denial claims. See League of Women Voters of N.C. v. North Carolina, 769 F.3d 224, 239–40 (4th Cir. 2014) (discussing how Section 2 had historically applied in the vote dilution context); see also Tokaji, supra note 28 at 448 (discussing expanded role of Section 2 in litigation). but Congress did not neatly tailor the statute to either concept.

Whether for vote dilution or vote denial, discriminatory intent does not control the analysis.  Section 2(a) tells courts to concentrate on results, as provided in Section 2(b).⁶⁷See 52 U.S.C. § 10301(a) (prohibiting a law “which results in a denial or abridgement . . .  as provided in subsection (b)”).  And Section 2(b) tells courts to evaluate results under the equal openness standard.⁶⁸See id. § 10301(b) (violations arise when “political processes . . .  are not equally open to participation by members of a class of citizens protected by subsection (a)”).  Without discriminatory results, no violation may arise.

Though Section 2’s literal language concerns itself with results, whether that narrow focus comports with legislative objectives presents a difficult question.  The Senate Report states that the 1982 amendments would reject the Intent Test “as the exclusive standard for establishing a violation of Section 2.”⁶⁹S. Rep. No. 97-417, at 36 (1982) (emphasis added).   In other words, the Senate Report contemplates that Section 2, after amendment, would permit plaintiffs to proceed under either the Results Test or the Intent Test.  As the next part shows, the apparent conflict between Section 2’s text and its legislative history has generated a circuit split within the lower courts.

II. Survival of the Intent Test in the Lower Courts

The lower courts have adopted different approaches to the Intent Test.  Some courts have found that the Intent Test survives the 1982 amendments.  Meanwhile, the Eleventh Circuit has rejected it. 

A. Acceptance of Intent Test

McMillan v. Escambia County illustrates how a court used the Senate Report to embrace the Intent Test.⁷⁰See 748 F.2d 1037, 1042–43 (5th Cir. 1984); see also United States v. Brown, 561 F.3d 420, 432 (5th Cir. 2009) (“To violate [Section 2] . . . these practices must be undertaken with an intent to discriminate or must produce discriminatory results.”).  McMillan involved a challenge to a Florida county’s at-large election system for county commissioners.  Under the at-large system, county commissioners would run for seats associated with the district in which they resided.⁷¹See McMillan, 748 F.2d at 1040.  However, the entire county, rather than specific districts, would vote for the commissioners.⁷²See id.  The Black plaintiffs argued that this at-large system diluted their votes.⁷³Id.; see also id. at 1043 (describing racially polarized voting practices whenever a Black candidate ran for countywide office).

McMillan followed a convoluted procedural path, which helps illustrate the relationship between Section 2 and other authorities.  After the district court ruled that the at-large system violated Section 2, as well as the Fourteenth and Fifteenth Amendments, the Fifth Circuit affirmed the Fourteenth Amendment holding without reaching the other two.⁷⁴McMillan v. Escambia Cnty., 688 F.2d 960 (5th Cir. 1982).  The Supreme Court noted probable jurisdiction⁷⁵Escambia Cnty. v. McMillan, 460 U.S. 1080, 1080 (1983). but returned the case to the Fifth Circuit.⁷⁶Escambia Cnty. v. McMillan, 466 U.S. 48, 49–50 (1984).  The Court concluded that the Fourteenth Amendment issue could be avoided through a holding on Section 2.⁷⁷Id. at 51. The Court thus directed the Fifth Circuit to determine whether the at-large system violated that statute.⁷⁸Id. at 52.

The Fifth Circuit held that Section 2 included both a Results Test and an Intent Test, and that the at-large system violated both.⁷⁹McMillan v. Escambia Cnty., 748 F.2d 1037, 1046–47 (5th Cir. 1984).  The Results Test provided a “less stringent standard” than did prior law, and numerous factors established its violation.⁸⁰Id. at 1046.  Additionally, having previously held that the county maintained the at-large system with discriminatory intent, the court easily found that the county violated the Intent Test.⁸¹See id. at 1047.

To justify the Intent Test, the court relied on the Senate Report. That report showed that “Congress intended that fulfilling either the more restrictive intent test or the results test would be sufficient to show a violation of section 2.”⁸²Id. at 1046 (emphasis omitted) (relying on S. Rep. No. 97-417, at 27 (1982)).   The court did not attempt to reconcile the Senate Report with Section 2’s language.⁸³The Fifth Circuit has continued to embrace the Intent Test. See, e.g., Fusilier v. Landry, 963 F.3d 447, 463 (5th Cir. 2020) (“The district court’s finding of discriminatory intent formed an independent basis for liability. . . . An election practice violates Section 2 and the Fourteenth and Fifteenth Amendments if it is undertaken and maintained for a discriminatory purpose.” (citing McMillan v. Escambia Cnty., 748 F.2d 1037, 1046 (5th Cir. 1984))).

In Baird v. Consolidated City of Indianapolis, the Seventh Circuit suggested that the Intent Test enjoys a statutory basis.⁸⁴976 F.2d 357, 359 (7th Cir. 1992).  Judge Easterbrook wrote that when Congress amended Section 2, it agreed “with Bolden to the extent it held that intentional discrimination violates”⁸⁵Id. the statute.  Thus, he wrote, “proof of intentional discrimination under § 2(a) remain[ed] an option”⁸⁶Id. at 360. for plaintiffs who could not satisfy the Results Test under Section 2(b).

Baird suggests that Section 2’s components established two separate tests, with subsection (a) establishing the Intent Test.  If plaintiffs cannot satisfy that test, they must “pin their hopes on the outcome approach of § 2(b).”⁸⁷Id. at 359.  In treating Section 2(a) as a standalone provision, Baird did not address its textual link to Section 2(b). The court did not tackle the part of Section 2(a) that says violations arise “as provided in subsection (b).”⁸⁸For the full statutory text, see supra note 7.

B. Rejection of the Intent Test

Johnson v. DeSoto County illustrates how a court may reject the Intent Test.⁸⁹Johnson v. DeSoto Cnty. Bd. Comm’rs, 72 F.3d 1556 (11th Cir. 1996).  In DeSoto County, the plaintiffs argued that the county’s at-large school board election system violated Section 2.⁹⁰The plaintiffs in DeSoto County were Black voters who believed that their votes had been diluted through the at-large voting system. See id. at 1558.   The district court embraced the Intent Test, agreeing with the plaintiffs’ claims.  The court found that “intent alone is sufficient to establish a claim under § 2”⁹¹Id. at 1559 (citing Johnson v. DeSoto Cnty. Bd. Comm’rs, 868 F.Supp. 1376 (M.D. Fla.  1994)). and, alternatively, that even if intent alone were insufficient, any results “‘need only be minimal.’”⁹²Id. (quoting Johnson v. DeSoto Cnty. Bd. Comm’rs, 868 F.Supp. 1376, 1380 (M.D. Fla. 1994)).  The plaintiffs did not need to meet Section 2(b)’s Results Test.

On appeal, the Eleventh Circuit reversed the district court and rejected the Intent Test.  The circuit court concluded that Section 2 “expressly requires a showing of discriminatory results,” with “no exception for situations in which there is discriminatory intent but no discriminatory results.”⁹³Id. at 1563.   The court acknowledged that the Senate Report suggested otherwise.⁹⁴Id.  But the Supreme Court had never held that judges could “override the plain language of § 2.”⁹⁵Id.   The Eleventh Circuit believed that the Supreme Court, in Voinovich v. Quilter,⁹⁶507 U.S. 146, 155 (1993) (citing Thornburg v. Gingles, 478 U.S. 30 (1986)). had already rejected the Intent Test.⁹⁷Johnson, 72 F.3d at 1562 (concluding that Voinovich v. Quilter, 507 U.S. 146, 155 (1993), “forecloses the district court’s holding, and the plaintiffs’ position, that discriminatory intent alone can violate § 2 even without discriminatory results.”).  For further discussion of Voinovich, see infra text accompanying notes 152–165.  The court was bound “by Supreme Court holdings, not by statements in legislative committee reports.”⁹⁸Johnson, 72 F.3d at 1564.

The Eleventh Circuit concluded that discriminatory intent may play a role if connected to the Results Test.⁹⁹Id. at 1565.  Section 2(b) calls for courts to examine the “totality of the circumstances” around a voting law.  Discriminatory intent could provide “circumstantial evidence of discriminatory results.”¹⁰⁰Id.   But discriminatory results were required.¹⁰¹Id. at 1563.

The Eleventh Circuit’s struggles with Section 2 continued after DeSoto County.  In Askew v. Rome, the court held that Section 2 violations may arise when election laws “either have a discriminatory purpose or effect.”¹⁰²127 F.3d 1355, 1373 (11th Cir. 1997).  The court thereby embraced the same Intent Test that Desoto County rejected and continued to contradict itself in subsequent cases.¹⁰³See Brooks v. Miller, 158 F.3d 1230, 1237 (11th Cir. 1998) (“[D]iscriminatory intent alone, in the absence of a showing of discriminatory effect, is insufficient to establish a violation of § 2.” (citing Johnson, 72 F.3d 1556 (11th Cir.1996))); Osburn v. Cox, 369 F.3d 1283, 1289 (11th Cir. 2004) (allowing for both Intent Test and Results Test under Section 2).  Most recently, in League of Women Voters v. Florida,¹⁰⁴66 F.4th 905, 921 (11th Cir. 2023). the Eleventh Circuit determined that stare decisiscompelled the court to reject the Intent Test.¹⁰⁵Id. at 943.   The court would follow DeSoto County, the oldest precedent within the circuit.¹⁰⁶Id.

In an ongoing case, United States v. Georgia,the Department of Justice has argued that the Intent Test continues to apply in the Eleventh Circuit.¹⁰⁷See United States’ Opposition to State Defendants’ and Intervenor Defendants’ Motions for Judgment on the Pleadings at 10-11, United States v. Georgia, No. 1:21-CV-2575-JPB (N.D. Ga. June 8, 2023).  The DOJ believes that the Eleventh Circuit has merely required some results under the Intent Test.¹⁰⁸See id. at 13–14.   That is, plaintiffs can bring Section 2 intentional discrimination claims when they allege some “discriminatory impact or adverse effect.”¹⁰⁹Id. at 14.  That showing, the DOJ maintains, differs “from the ‘discriminatory results needed to establish a section 2 violation in the absence of intentional discrimination.’”¹¹⁰Id. (quoting Dillard v. Baldwin Cnty. Bd. of Educ., 686 F. Supp. 1459, 1468 n.10 (M.D. Ala. 1988)).  The Department of Justice also relies partially on Garza v. County of Los Angeles, 918 F.2d 763 (9th Cir. 1990), cert. denied, 498 U.S. 1028 (1991). See id. at 13–14.  In Garza, the court stated that the statutory results test “did not affect the remedies under Section 2 for intentional discrimination.” 918 F.2d at 770 (citing S. Rep. No. 97-417, at 27 (1982)).  Thus, the court appeared to embrace the Intent Test. See also id. at 771 (“Although the showing of injury in cases involving discriminatory intent need not be as rigorous as in effects cases, some showing of injury must be made to assure that the district court can impose a meaningful remedy.”).  However, the court then stated that for Section 2 intentional discrimination claims, the discriminatory intent “must result” in a violation of the equal openness standard under Section 2(b). Id. at 771.  That language suggests that minimal results do not suffice.  Instead, a violation of the Section 2(b) equal openness standard must have occurred. See id. at 771 (applying the equal openness standard and finding that the Los Angeles measure at issue violated it).  Cf. Afr. Am. Voting Rts. Legal Def. Fund, Inc. v. Villa, 54 F.3d 1345, 1357 n.18 (8th Cir. 1995) (“[Garza] relied upon the text of the Voting Rights Act to find that a discriminatory effect was required in an intent case.”).  Whether Garza requires minimal effects in Section 2 intent cases, or instead requires a violation of the equal openness standard, remains frustratingly unclear.

The DOJ’s position deviates from relevant precedents.  In DeSoto County, the Eleventh Circuit rejected the district court’s theory that a plaintiff could succeed by showing “minimal” results.¹¹¹Johnson v. DeSoto Cnty. Bd. Comm’rs, 72 F.3d 1556, 1564 (11th Cir. 1996) (quoting Johnson v. DeSoto Cnty. Bd. Comm’rs, 868 F.Supp. 1376, 1380 (M.D. Fla. 1994)).   Instead, the Eleventh Circuit said that it was “bound by the plain language of § 2.”¹¹²Id. at 1563.  In League of Women Voters, the Eleventh Circuit acknowledged that though a Florida voting law may have had some “disparate impact,” that impact was “not enough to meet section 2’s high standard.”¹¹³League of Women Voters of Fla., Inc. v. Fla. Sec’y of State, 66 F.4th 905, 943 (11th Cir. 2023).  Therefore, the Eleventh Circuit has already rejected the minimal-results theory which the DOJ now embraces.¹¹⁴See id. at 943–44 (defining Section 2’s “high standard” by reference to the equal openness standard in Section 2(b) and concluding that the plaintiff’s challenge to a Florida registration-delivery provision “does not come close to meeting that standard.”).

III. The Intent Test in the Supreme Court

This part explains how the Supreme Court has established that Section 2 only includes a Results Test.  While no Court opinion embraces the Intent Test, the Court has not rejected it in absolute and express terms.¹¹⁵Individual Justices have been less circumspect. See, e.g., Allen v. Milligan, 599 U.S. 1, 44 (2023) (Kavanaugh, J., concurring) (“[A]s this Court has long recognized—and as all Members of this Court today agree—the text of § 2 establishes an effects test, not an intent test.”); see also Chisom v. Roemer, 501 U.S. 380, 406 (1991) (Scalia, J., dissenting) (“As currently written, [Section 2] proscribes intentional discrimination only if it has a discriminatory effect, but proscribes practices with discriminatory effect whether or not intentional.”).  This reticence might contribute to lower courts’ struggles with the Intent Test.  Although Congress should add an Intent Test to the VRA, this part argues that the Court’s rejection of that test comports with its proper judicial role.

A. The Court’s Rejection of the Intent Test

Brnovich v. Democratic National Committee (DNC)illustrates how the Results Test provides the exclusive path for a Section 2 violation.¹¹⁶141 S. Ct. 2321 (2021).  Brnovich involved vote-denial challenges to two Arizona voting laws:¹¹⁷See id. at 2333–34.  For a general discussion about Brnovich’s potential consequences for election law, see Derek T. Muller, Brnovich v. DNC:  Election Litigation Migrates from Federal Courts to the Political Process, 2021 Cato Sup. Ct. Rev. 217 (2021).  the first nullified votes made in the wrong precinct (the “precinct rule”)¹¹⁸See Brnovich, 141 S. Ct. at 2334. and the second limited who could collect a voter’s mail-in ballot (the “collection rule”).¹¹⁹See id.  The district court upheld these laws and the Ninth Circuit panel affirmed.¹²⁰See Democratic Nat’l Comm. v. Reagan, 329 F. Supp. 3d 824, 883 (D. Ariz. 2018), aff’d, 904 F.3d 686 (9th Cir. 2018) (subsequent history omitted).  But the en banc Ninth Circuit struck them down.¹²¹See Democratic Nat’l Comm. v. Hobbs, 948 F.3d 989, 998 (9th Cir. 2020), rev’d and remanded sub nom. Brnovich v. Democratic Nat’l Comm., 141 S. Ct. 2321 (2021).  The precinct rule, the court found, violated Section 2’s Results Test.¹²²Id. at 999.  The collection rule violated Section 2’s Results Test, its Intent Test, and the Fifteenth Amendment.¹²³Id.

The Supreme Court reversed the Ninth Circuit.  In doing so, the Court determined that Section 2 warranted a “fresh look.”¹²⁴Brnovich, 141 S. Ct. at 2337.  Cases under that statute had typically involved alleged vote dilution rather than, as in Brnovich, alleged vote denial.¹²⁵See id. at 2333.  Additionally, the Court had shifted its interpretive methods since Section 2’s enactment.  An earlier case merely quoted the statute’s language and then “jumped” to the legislative history.¹²⁶Id. at 2337 (citing Thornburg v. Gingles, 478 U.S. 30 (1986)).  But now, the Court’s “statutory interpretation cases almost always start with a careful consideration of the text.”¹²⁷Brnovich, 141 S. Ct. at 2337.

The Court observed Section 2(a)’s prohibition on any law that “results in a denial or abridgement of the right . . . to vote on account of race or color,”¹²⁸52 U.S.C. § 10301(a); see also id.  concluding that it need not determine what that language would mean if it “stood alone.”¹²⁹Brnovich, 141 S. Ct. at 2337.   Section 2(b) explained how a Section 2 violation arose:  through a violation of the equal openness standard.¹³⁰See id.  The Court then listed several, non-exclusive factors relevant to whether a state violated the equal openness standard.¹³¹See id. at 2338–40.  Applying those factors, the Court found that neither the precinct law¹³²See id. at 2346 (“In light of the modest burdens allegedly imposed by Arizona’s out-of-precinct policy, the small size of its disparate impact, and the State’s justifications, we conclude the rule does not violate §2 of the VRA.”). nor the collection law violated Section 2.¹³³See id. at 2348 (“As with the out-of-precinct policy, the modest evidence of racially disparate burdens caused by HB 2023, in light of the State’s justifications, leads us to the conclusion that the law does not violate §2 of the VRA.”).

Brnovich implicitly rejected the Seventh Circuit’s approach to Section 2.¹³⁴See generally Baird v. Consol. City of Indianapolis, 976 F.2d 357 (7th Cir. 1992); see also supra text accompanying notes 84–88.  Brnovich concluded that Section 2(a) does not stand “alone.”¹³⁵Brnovich, 141 S. Ct. at 2337.  Instead, the Results Test under Section 2(a) turns on Section 2(b)’s equal openness standard.¹³⁶See 52 U.S.C. § 10301(a) (prohibiting a law “which results in a denial or abridgement . . . as provided in subsection (b)”).  The Seventh Circuit embraced an Intent Test because it believed that Section 2(a) stood alone.¹³⁷See Baird, 976 F.2d at 360 (explaining the plaintiffs “have not stated a claim under § 2(b), although proof of intentional discrimination under § 2(a) remains an option.”).

Brnovich also rebuffed the Ninth Circuit’s application of the Intent Test.  Unlike the Ninth Circuit,¹³⁸See Democratic Nat’l Comm. v. Hobbs, 948 F.3d 989, 999 (9th Cir. 2020) (“We hold, further, that . . . [the collection rule] was enacted with discriminatory intent, in violation of the ‘intent test’ of Section 2 of the VRA.”). the Court did not use Section 2 to analyze the intent of the Arizona collection law.  Instead, the Court, in Part V of its opinion, separately rejected the claim that the collection law was “enacted with a discriminatory purpose.”¹³⁹See Brnovich, 141 S. Ct. at 2348.

Unfortunately, Part V of Brnovich does not explain why the Court examined the collection law’s intent.  In United States v. Georgia, the district court concluded that Part V of Brnovich endorses the Intent Test for Section 2.¹⁴⁰See United States v. Georgia, 574 F. Supp. 3d 1245, 1253 (N.D. Ga. 2021), reconsideration denied sub nom., Georgia Senate Bill 202, No. 1:21-CV-02575-JPB, 2022 WL 1516049 (N.D. Ga. Apr. 21, 2022).  The court reasoned that if Section 2 carried no Intent Test, then Brnovich would not have performed discriminatory purpose analysis for the collection law.¹⁴¹See id. (“Presumably, the Supreme Court would have rejected the plaintiffs’ discriminatory purpose claim if, as State Defendants contend, such a claim were invalid as a matter of law.”); see also United States’ Opposition to State Defendants’ and Intervenor Defendants’ Motions For Judgment On The Pleadings,1:21-CV-2575-JPB, 12 (N.D. Ga. June 8, 2023) (explaining that in Brnovich,“the Court considered a Section 2 discriminatory purpose claim separately from the discriminatory results claim in the same case.”); U.S. Dep’t of Just., Guidance under Section 2 of the Voting Rights Act, 52 U.S.C. § 10301, for Redistricting and Methods of Electing Government Bodies, at 9 (Sept. 1, 2021) (“Section 2 of the Voting Rights Act also prohibits use of a redistricting plan or method of election adopted or maintained for a discriminatory purpose, which is the same prohibition imposed by the Fourteenth and Fifteenth Amendments.”), https://www.justice.gov/media/1164546/dl?inline [https://perma.cc/7AZV-AQ4Z].

However, Brnovich’s purpose analysis, read in context, does not endorse an Intent Test.  That analysis comes only after the Court held that the precinct law and the ballot law each complied with Section 2.¹⁴²See supra notes 130–33 and accompanying text.   This indicates that the intent analysis was relevant to a different legal issue, which, as the Ninth Circuit revealed, was whether the Arizona collection law violated the Fifteenth Amendment.¹⁴³See Democratic Nat’l Comm. v. Hobbs, 948 F.3d 989, 999 (9th Cir. 2020). The district court believed that Section 2 included an Intent Tent and so, like the Ninth Circuit, its discriminatory purpose holding related both to Section 2 and the Fifteenth Amendment. See Democratic Nat’l Comm. v. Reagan, 329 F.Supp.3d 824, 878–82 (D. Ariz.).  Though Section 2 carries no Intent Test, the Fifteenth Amendment unequivocally does.¹⁴⁴See, e.g., Chisom v. Roemer, 501 U.S. 380, 403–04 (1991) (explaining that Mobile v. Bolden, 446 U.S. 55, 100 (1980), put on plaintiffs the “burden of proving discriminatory intent” in Fifteenth Amendment cases).  And the Ninth Circuit had held that the collection law’s purpose led to a Fifteenth Amendment violation.¹⁴⁵See Hobbs, 948 F.3d at 999 (holding that the collection rule was enacted with discriminatory purpose, in violation of the Fifteenth Amendment).  Though the Ninth Circuit applied intent analysis to Section 2, see id., the Court in Brnovich completed its Section 2 analysis without mentioning intent. See supra notes 130–33 and accompanying text.  Thus, Part V of Brnovich should be traced to the Ninth Circuit’s holding on the Fifteenth Amendment rather than its holding on Section 2. See also Travis Crum, Deregulated Redistricting, 107 Cornell L. Rev. 359, 443 (2022) (explaining that the Court’s discriminatory-purpose analysis was offered in evaluation of a Fifteenth Amendment claim and tracing the Court’s analysis to the district court’s determinations).   Given this context, it makes sense that the Court would examine the collection law’s purpose.

 Of course, the Court in Brnovich should have expressly stated that the Fifteenth Amendment made the collection law’s purpose relevant.  Reading a judicial opinion should not be like reading tea leaves.¹⁴⁶In Allen v. Milligan, 599 U.S. 1 (2023), the Court continued its delicate approach towards Section 2.  In describing the 1982 legislative compromise leading to the revised statute, the Court said that “Section 2 would include the effects test.” Id. at 13.  The Court did not say that Section 2 would include only a Results Test.  Presumably, the Court was aware of the controversy over the Intent Test in the lower courts and did not wish to expressly opine on it.  However, the cases discussed in this part show that the Court has accepted the Results Test as the exclusive path to prove a Section 2 violation.  But here, at least, the tea leaves yield an answer:  the Fifteenth Amendment carries an Intent Test and Section 2 does not.

Justice Kagan, in her Brnovich dissent, similarly found that Section 2 focuses on results.¹⁴⁷See 141 S. Ct. at 2350 (Kagan, J., dissenting).  Congress, Justice Kagan wrote, did not “hinge liability on state officials’ motives.”¹⁴⁸Id. at 2357.  Rather, “Congress made it ride on their actions’ consequences.”¹⁴⁹Id.  Section 2 “tells courts that they are to focus on the law’s effects.”¹⁵⁰Id.  Justice Kagan further stated that because she “would affirm the Court of Appeals’ holding that the effects of these policies violate Section 2,” she “need not pass on that court’s alternative holding that the laws were enacted with discriminatory intent.” Id. at 2366 n.10.  Like the majority, she does not identify which legal authority makes intent relevant.  But her opinion, like the majority’s, is difficult to reconcile with an Intent Test under Section 2.  If Justice Kagan believed that Section 2 includes an Intent Test, it would be odd for her to explain a discriminatory intent holding as an “alternative” to a Section 2 violation.  Justice Kagan believed that the Arizona laws violated the Results Test.¹⁵¹See id. at 2366 (Kagan, J., dissenting) (“Both [Arizona] policies violate Section 2, on a straightforward application of its text.”).

Another Supreme Court case confirms that Section 2 concerns itself with results.  In Voinovich v. Quilter, the plaintiffs made a vote dilution challenge to an Ohio apportionment plan.¹⁵²507 U.S. 146, 147 (1993).  They claimed that the state had intentionally packed Black voters in a small number of districts.¹⁵³See id. at 149.  The plaintiffs believed that this weakened Black voter strength in the other districts.¹⁵⁴See id. at 149–50.  They claimed that the Ohio apportionment plan thus violated both Section 2 and the Fifteenth Amendment,¹⁵⁵The plaintiffs also argued that the Ohio apportionment plan created districts of unequal size, in violation of the Fourteenth Amendment. See Voinovich, 507 U.S. at 149, 160.  The Court remanded for further proceedings on that issue. See id. at 162.  and the district court agreed.¹⁵⁶See Quilter v. Voinovich, 794 F. Supp. 695, 695 (N.D. Ohio 1992), rev’d, Voinovich v. Quilter, 507 U.S. 146 (1993).

The Supreme Court unanimously reversed.  For Section 2, the district court had failed to “determine the consequences of Ohio’s apportionment plan before ruling on its validity.”¹⁵⁷Voinovich, 507 U.S. at 155.  Section 2 “focuses exclusively on consequences” and could apply “[o]nly if the apportionment scheme ha[d] the effect of denying a protected class the equal opportunity to elect its candidate of choice.”¹⁵⁸Id.  When “effect has not been demonstrated, § 2 simply does not speak to the matter.”¹⁵⁹Id.  The district court’s conclusion, unmoored from the Results Test, could not stand.¹⁶⁰Rather than focus on the Results Test, the district court in Voinovich had flatly concluded that Section 2 “prohibits the creation of majority-minority districts unless such districts are necessary to remedy a statutory violation.” Id. (citing Quilter v. Voinovich, 794 F. Supp. 695, 701 (N.D. Ohio 1992)). 

The Court then turned to the plaintiffs’ Fifteenth Amendment claim.  Here, the Court considered whether intentional discrimination motivated the Ohio apportionment plan¹⁶¹See id. at 158–60. and concluded that it had not.¹⁶²See id. at 160.  The district court had clearly erred.¹⁶³See id. at 159 (“Even if we assume that the Fifteenth Amendment speaks to [vote dilution claims], the District Court’s decision still must be reversed:  Its finding of intentional discrimination was clearly erroneous.”).

Voinovich shows that any Intent Test must be tied to an authority outside Section 2.  If Section 2 carried an Intent Test, why would the Court say that the statute “focuses exclusively on consequences”?¹⁶⁴Id. at 155.  The Court did not simply forget about intent issues, after all. The Court made intent inquiries—under the Fifteenth Amendment.¹⁶⁵See id. at 158–160.

The only arguable Supreme Court support for an Intent Test comes in Chisom v. Roemer.¹⁶⁶501 U.S. 380 (1991).  In Chisom, the Court examined whether Section 2 applied to judicial elections.¹⁶⁷Id. at 384.   In holding affirmatively,¹⁶⁸See id. at 404. the Court endorsed the Results Test.  Under Section 2, the Court advised, “proof of intent is no longer required to prove a § 2 violation.”¹⁶⁹Id. at 394.  Instead, Congress “incorporated the results test.”¹⁷⁰Id.

But the Court muddied the waters through a footnote.  In explaining that the Results Test “requires an inquiry into ‘totality of the circumstances,”¹⁷¹Id.  the Court cited and block-quoted a passage from the Senate Report.¹⁷²See id. at 394 n.21.  That passage included the line, relied on in McMillan, that the Intent Test and the Results Test provided alternative paths under Section 2.¹⁷³Id. (quoting S. Rep. No. 97-417, at 27 (1982)).

A single line in a block-quoted footnote does not provide the best source of authority.  But the district court in United States v. Georgia relied on that single line to embrace an Intent Test.¹⁷⁴The district court treated that line as a statement from the Supreme Court itself. See United States v. Georgia, 574 F. Supp. 3d 1245, 1251 (N.D. Ga. 2021) (summarizing Chisom v. Roemer, 501 U.S. 380, 394 n.21 (1991), in a parenthetical without noting that the Court was quoting the Senate Report), reconsideration denied sub nom., In re Georgia Senate Bill 202, 2022 WL 1516049 (N.D. Ga. Apr. 21, 2022). The district court’s approach ignored the entire context of the opinion and the Court’s Section 2 jurisprudence generally.

Recently, in Allen v. Milligan, the Court addressed a Section 2 challenge to an Alabama redistricting plan.¹⁷⁵599 U.S. 1 (2023).  The Court upheld the plaintiffs’ challenge and “reiterated that §2 turns on the presence of discriminatory effects, not discriminatory intent.”¹⁷⁶Id. at 25.  Though the Court detailed Section 2’s history and operation,¹⁷⁷See id. at 10–14. it made no reference to an Intent Test.

In Allen and elsewhere, the Court has not recited the magic words, “Section 2 does not include an Intent Test.”  This might help explain why some lower courts have clung to that test.  Additionally, as Brnovich suggested, lower courts may not have accounted for shifts in the Supreme Court’s interpretive approach.¹⁷⁸See Brnovich v. Democratic Nat’l Comm., 141 S. Ct. 2321, 2337 (2021) (reversing the Ninth Circuit after giving Section 2 a “fresh look” under current text-focused interpretive methods).  In a prior era, the Court occasionally strayed away from statutory text.¹⁷⁹See id. (explaining that in Thornburg v. Gingles, 478 U.S. 30 (1986), the Court “jumped” to rely on legislative history rather than rely on statutory text).  If the Court had done so for Section 2, the Court might have said the Intent Test survived the 1982 amendments.

But the Court now adopts a largely textual approach.¹⁸⁰See generally Diarmuid F. O’Scannlain, “We Are All Textualists Now”: The Legacy of Justice Antonin Scalia, 91 St. John’s L. Rev. 303 (2017).  And Section 2’s plain text focuses on results.¹⁸¹See 52 U.S.C. § 10301(a) (prohibiting a law “which results in a denial or abridgement . . . as provided in subsection (b).”).  In every major Section 2 case, the Court has emphasized the Results Test.¹⁸²See supra Part III.A.  If the Intent Test survived the statutory amendments to Section 2, the Court probably would have said so at least once.

B. Observance of the Judicial Role

This section argues that the Court observed its proper role in Brnovich and related cases.  The absence of an Intent Test creates anomalies for Congress, not the courts, to fix.  Claims that the Court should rewrite Section 2 do not hold water.  Nor do some other potential objections.   

One objection may relate to the “incompetent racist” problem.  If Section 2 carries no Intent Test, then government officials or bodies might get away with racially discriminatory actions, as long as they do so incompetently.  That is, racially discriminatory actions that do not violate the equal openness standard will face protection from Section 2 challenges.  This suggests that the Court embraced an “absurd” interpretation.¹⁸³See John F. Manning, The Absurdity Doctrine, 116 Harv. L. Rev. 2387, 2394 (2003) (“[I]f a particular application of a clear statute produces an absurd result, the Court understands itself to be a more faithful agent if it adjusts the statute to reflect what Congress would have intended had it confronted the putative absurdity.”).

However, the incompetent-racist concern reflects a narrow view of the law.  Brnovich’s approach hardly grants immunity for discriminatory acts.  The Fourteenth and Fifteenth Amendments, for example, allow plaintiffs to pursue intentional discrimination claims like the ones contemplated by the statutory Intent Test.¹⁸⁴For a discussion of the standards that apply to Fourteenth and Fifteenth Amendment voting rights claims, see City of Mobile v. Bolden, 446 U.S. 55, 62, 66 (1980) (plurality opinion).

Of course, an Intent Test under Section 2 may catch some discriminatory behavior that other laws do not.  For that reason, Congress should add the Intent Test to the Section 2 regime and address incompetent racists.¹⁸⁵Cf. Reno v. Bossier Par. Sch. Bd., 528 U.S. 320, 332 (2000) (arguing that an intent test has “value and effect . . . even when it does not cover additional conduct.” (emphasis added)).  But the existing gap in Section 2 does not render Brnovich’s interpretation absurd.  As Chief Justice Marshall explained, the absurdity doctrine overrides statutory text only when the “injustice of applying the provision to the case, would be so monstrous, that all mankind would, without hesitation, unite in rejecting the application.”¹⁸⁶Sturges v. Crowinshield, 17 U.S. 122, 203 (1819).   Reading Section 2 to include only a Results Test fails this perhaps overly dramatic standard.

Another objection to Brnovich may relate to legislative expectations.  Section 2’s language shows that the Results Test provides the exclusive path to establish a Section 2 violation.  But the Senate Report shows that some legislators wanted to expand the statute through the Results Test.¹⁸⁷See supra note 69 and accompanying text.  Arguably, the Court should have credited this legislative history rather than have given the statute a “fresh look”¹⁸⁸Brnovich v. Democratic Nat’l Comm., 141 S. Ct. 2321, 2337 (2021). with textualism principles.  When Congress amended Section 2, courts sometimes gave legislative history significant interpretive weight.¹⁸⁹See Nicholas R. Parrillo, Leviathan and Interpretive Revolution: The Administrative State, the Judiciary, and the Rise of Legislative History, 1890-1950, 123 Yale L.J. 266, 269 (2013) (“In the 1980s, legislative history was uncontroversial and very common.  It appeared in more than half the U.S. Supreme Court’s opinions on federal statutes.”).  The textualism revolution had not yet occurred,¹⁹⁰For a discussion on the rise of textualism in the 1980s, see William Eskridge, The New Textualism, 37 UCLA L. Rev. 621 (1990).  and statutes usually take on the meaning they had when they were enacted.¹⁹¹Like all interpretive canons, the contemporaneous meaning canon faces limits.  Sometimes, the context of a statute changes through further legislative enactments and this changed legislative context can affect the statute’s meaning. See, e.g., United States v. Fausto, 484 U.S. 439, 453 (1988) (explaining that the “classic judicial task of reconciling many laws enacted over time, and getting them to ‘make sense’ in combination, necessarily assumes that the implications of a statute may be altered by the implications of a later statute.”).  Thus, the argument might go, the Court should have interpreted Section 2 with reference to its legislative history.

This argument folds into broader theoretical questions about whether courts should read statutes using current interpretive canons or past ones.¹⁹²See Bradford C. Mank, Legal Context:  Reading Statutes in Light of Prevailing Legal Precedent, 34 Ariz. St. L.J. 815, 837 (2002) (arguing that issues over how to use “prevailing judicial doctrines at the time a statute was enacted” present a “more controversial question”).  The Court has rejected reliance on contemporary legal context when that context is not reflected in statutory language. See, e.g., Alexander v. Sandoval, 532 U.S. 275, 288 (2001) (“We have never accorded dispositive weight to context shorn of text.”).  Luckily, those questions can be safely avoided here.  In 1982, there was no commonly accepted judicial view that the words in a legislative report could contradict statutory language.¹⁹³For a detailed empirical study on the varied uses of legislative history over time, see generally David S. Law & David Zaring, Law Versus Ideology:  The Supreme Court and the Use of Legislative History, 51 Wm. & Mary L. Rev. 1653 (2010).  Sometimes courts emphasized legislative history, and sometimes they emphasized text.¹⁹⁴See id. at 1665–88 for a summary of empirical studies on the use or non-use of legislative history.  If legislators in 1982 assumed that courts would always treat whatever appeared in their committee reports as law, these legislators were mistaken.

To hold that the Senate Report overrides Section 2’s language would reflect an aggressive interpretive approach.  The court in McMillan did so without any meaningful explanation.¹⁹⁵See supra notes 79–83 and accompanying text. Today, a cautious judge would probably rely on legislative history only to resolve ambiguities.¹⁹⁶See, e.g., True Oil Co. v. Comm’r, 170 F.3d 1294, 1301 (10th Cir. 1999) (“‘Legislative history should be used to resolve ambiguity, not create it.’” (quoting Miller v. Comm’r, 836 F.2d 1274, 1283 (10th Cir.1988))).  But, at least as it relates to the Intent Test, Section 2’s text exhibits no ambiguity to resolve. Congress set forth a prohibition in Section 2(a) and keyed violations to results, “as provided in subsection (b).”¹⁹⁷52 U.S.C. § 10301(a).  Section 2(b) adopts an equal openness standard, not an Intent Test.¹⁹⁸See id. § 10301(b).  Perhaps this textual clarity explains why even the Brnovich dissent focused on the Results Test.¹⁹⁹See supra notes 147–151 and accompanying text.

Presumably, Brnovich allows for intent inquiries in the manner that the Eleventh Circuit suggested in DeSoto County.²⁰⁰See supra notes 93–98 and accompanying text.  That is, proof that lawmakers intended to violate the equal openness standard can help a court determine whether their laws in fact did so.²⁰¹In Reno v. Bossier Parish School Board, dealing with Section 5 of the VRA, the Court implied that lawmakers who act with a specific purpose will usually accomplish that purpose. See 528 U.S. 320, 332 (2000) (“[W]henever Congress enacts a statute that bars conduct having ‘the purpose or effect of x,’ the purpose prong has application entirely separate from that of the effect prong only with regard to unlikely conduct that has ‘the purpose of x’ but fails to have ‘the effect of x.’”).  But legislative intentions would be only one factor within the “totality of circumstances” described in Section 2(b).  Discriminatory intent, unless accompanied by a violation of the equal openness standard, cannot support a Section 2 claim.

IV. Recommendations for Congress

Responsibility for Section 2 ultimately lies with the legislature.  Congress amended the statute after a tortuous negotiation process.²⁰²See supra notes 52–62 and accompanying text.  The legislative compromise produced awkward statutory language that probably did not serve a single, concrete goal.  Congress should thus fix the mess that it created.  This part first argues that Congress should codify an Intent Test.  Then, it offers principles to follow in that codification

A. Reasons for Codification

To address the inconsistent case law, Congress should codify the Intent Test.  Ordinarily, whether to adopt an intent test reflects a delicate question.  Intent-based inquiries often yield intractable issues related to mixed motives, evidentiary limitations, and so on.²⁰³Legislators recognized these issues when they amended Section 2. See S. Rep. No. 97-417, at 214 (1982) (criticizing intent inquiry as “unnecessarily divisive because it involves charges of racism on the part of individual officials or entire communities,” and asserting that it “asks the wrong question”); see also Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977) (“Determining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.”); see also John Hart Ely, Legislative and Administrative Motivation in Constitutional Law, 79 Yale L.J. 1205, 1207 (1970) (“The Supreme Court’s traditional confusion about the relevance of legislative and administrative motivation in determining the constitutionality of governmental actions has, over the past few terms, achieved disaster proportions.”).

In the Section 2 context, however, these issues carry less significance.  When a jurisdiction allegedly denies or dilutes voting rights, intent-based inquiries already arise.  The Fifteenth Amendment applies to vote denials that occur with discriminatory intent.²⁰⁴See supra notes 144–45 and accompanying text.  The Fourteenth Amendment applies to vote dilution that occurs with discriminatory intent.²⁰⁵See, e.g., Shaw v. Reno, 509 U.S. 630, 641 (1993) (finding that electoral schemes “violate the Fourteenth Amendment when they are adopted with a discriminatory purpose and have the effect of diluting minority voting strength”).

The availability of intent claims under the Constitution hardly establishes that a codified Intent Test would be superfluous.  Instead, as discussed below, that codification would help integrate the overall VRA scheme.  It would also help resolve statutory tension over how the VRA addresses language minorities.

1. Integration of the VRA Scheme

When the Attorney General or an aggrieved person sues “under any statute to enforce the voting guarantees of the fourteenth or fifteenth amendment,”²⁰⁶52 U.S.C. § 10302(a) (emphasis added).  52 U.S.C. § 10302(b) and § 10302(c) contain identical phrasing. the VRA’s machinery comes into play.  Under Section 3(a), a court may authorize federal election observers to monitor the state.²⁰⁷Id. § 10302(a).  Under Section 3(b), any voting tests or devices will be suspended.²⁰⁸See id. § 10302(b).  And under Section 3(c), the court retains jurisdiction over the state to ensure compliance with the law.²⁰⁹See id. § 10302(c); see generally Travis Crum, The Voting Rights Act’s Secret Weapon:  Pocket Trigger Litigation and Dynamic Preclearance, 119 Yale L.J. 1992 (2010).  These safeguards do not apply to intent-based actions under constitutional amendments.²¹⁰In United States v. Georgia, No. 1:21-CV-2575-JPB (N.D. Ga. June 25, 2021), the government alleged a Section 2 violation under the Intent Test. See Complaint in United States v. Georgia, supra note 17.  The complaint requests that the court appoint observers under Section 3(a) and apply the Section 3(c) bail-in provisions. See id. at 45.  Those actions do not proceed under “any statute.”²¹¹See supra note 206 and accompanying text.

This seems strange.  The VRA implements the Fourteenth and Fifteenth Amendments.  Yet if a lawsuit proceeds only under those amendments, the VRA’s safeguards become unavailable.  A codified Intent Test would cure this anomaly.

One might believe that the concern expressed here relies on overly literal statutory interpretation.  However, a new controversy shows that judges may closely follow the VRA’s language.  In Arkansas NAACP v. Arkansas,²¹²586 F. Supp. 3d 893, 899 (E.D. Ark. 2022). the district court addressed whether private parties may pursue Section 2 claims.²¹³Two Justices have recently expressed interest in whether Section 2 permits private parties to sue. See Brnovich v. Democratic Nat’l Comm., 141 S. Ct. 2321, 2350 (2021) (Gorsuch, J., concurring) (“Our cases have assumed—without deciding—that the Voting Rights Act of 1965 furnishes an implied cause of action under § 2.”); see also Allen v. Milligan, 599 U.S. 1, 90 n.22 (2023) (Thomas, J., dissenting) (“The Court does not address whether § 2 contains a private right of action, an issue that was argued below but was not raised in this Court.”). Cf. City of Mobile v. Bolden, 446 U.S. 55, 60 (1980) (plurality opinion) (“[a]ssuming, for present purposes, that there exists a private right of action to enforce” Section 2).  The VRA, through Section 3 and elsewhere, assumes that private parties will bring actions under a “statute to enforce the voting guarantees of the fourteenth or fifteenth amendment.”²¹⁴52 U.S.C. § 10302(a). § 10302(b) and § 10302(c) contain identical phrasing.   Arkansas NAACP held that actions under Section 2 are not so described.²¹⁵Arkansas NAACP, 586 F. Supp. 3d at 921.  Section 2, through the Results Test, establishes relief “different from, and broader than, the far narrower guarantees in the Fourteenth and Fifteenth Amendments.”²¹⁶Id. at 910; see also Reno v. Bossier Par. Sch. Bd., 520 U.S. 471, 482 (1997) (“Because now the Constitution requires a showing of intent that § 2 does not, a violation of § 2 is no longer a fortiori a violation of the Constitution.”); see also Nicholas O. Stephanopoulos, Disparate Impact, Unified Law, 128 Yale L.J. 1566, 1593 (2019) (noting that Section 2 “prohibits a broad swath of conduct that is constitutionally innocuous:  government activity that lacks a discriminatory purpose but produces a disparate impact.”).  Therefore, the court concluded that private parties cannot pursue Section 2 claims.²¹⁷Arkansas NAACP, 586 F. Supp. 3d at 921.  They have no cause of action.²¹⁸Id. at 921–22.

Arkansas NAACP, read in conjunction with Brnovich, establishes consequences probably unintended by legislators.  Private parties who invoke the Section 2 Results Test have no cause of action.  Their claims go beyond the “guarantees” of the Fourteenth and Fifteenth Amendments.  If private parties invoke the Intent Test, their claims would fit comfortably within those guarantees.  But Section 2 does not include an Intent Test.

Congress should fix this.²¹⁹Of course, the judiciary itself might resolve whether private parties may enforce Section 2. See, e.g., Turtle Mountain Band of Chippewa Indians v. Jaeger, No. 3:22-CV-22, 2022 WL 2528256, at *6 (D.N.D. July 7, 2022) (“Because this Court finds that Section 2 may be enforced through [42 U.S.C. § 1983], the Court need not decide whether Section 2 of the VRA, standing alone, contains an implied private right of action.”).  But any such resolution seems destined to take time.  Congress should immediately address the issue.   Reasonable persons can debate some VRA reforms, such as those related to the Section 5 preclearance regime.²²⁰For a short summary of some VRA proposals, see L. Paige. Whitaker, Cong. Rsch. Serv., Voting Rights Act:  Section 3(c) “Bail-In” Provision 4–5 (2022).  But remedying the awkward interaction of Section 2, Arkansas NAACP, and Brnovich should transcend political differences.²²¹When Section 2 merely “restated the prohibitions already contained in the Fifteenth Amendment,” the statute caused little controversy. See City of Mobile v. Bolden, 446 U.S. 55, 61 (1980) (plurality opinion).  Today, restoring an Intent Test to the statute would align the VRA with the Constitution.   When Congress originally enacted Section 2, it caused little controversy because it merely “restated the prohibitions already contained in the Fifteenth Amendment.”²²²Id.  A newly codified Intent Test would make a similar restatement.

2. Protections for Language Minorities

A codified Intent Test would help ensure that language minorities receive the protections that Congress provided them.  When it revised the VRA in 1975, Congress found that where “officials conduct elections only in English, language minority citizens are excluded from participating in the electoral process.”²²³See Voting Rights Act Amendments of 1975, Pub. L. No. 94-73, § 203, 89 Stat. 400, 401 (1975) (originally codified at 42 U.S.C. § 1973b(f)(1), and now codified at 52 U.S.C. § 10303(f)(1)).  Congress, finding that language minorities faced “physical, economic, and political intimidation,”²²⁴Id.  wanted to end many English-only elections.²²⁵Id. at § 301, 89 Stat. 402–03 (1975). The ban on English-only elections applies under specified circumstances.

As part of its 1975 revisions, Congress added Section 4(f)(2) to the VRA.²²⁶See id. at § 203, 89 Stat. 401.   Section 4(f)(2) mirrored Section 2, as it then existed, except that it referred to language minorities rather than racial minorities.²²⁷See id. (“No voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote because he is a member of a language minority group.”).  The 1975 amendments also revised Section 2 such that it cross-referenced the protections described in Section 4(f)(2).²²⁸See id. at § 206, 89 Stat. 402 (1975) (amending Section 2 such that it protects against laws that are “in contravention of the guarantees set forth in section 4(f)(2)”).

Under the pre-1982 version of Section 2, language minorities could bring language discrimination claims under the Intent Test.²²⁹See City of Mobile v. Bolden, 446 U.S. 55, 61 (1980) (plurality opinion) (interpreting pre-amendment version of Section 2 to reach intentional discrimination claims).  Today, whether they may do so remains unclear.  Section 2 now provides only a Results Test. Section 4(f)(2)’s language suggests that it includes an Intent Test.²³⁰See 52 U.S.C. § 10303(f)(2) (prohibiting laws that “deny or abridge” the rights of language minorities).  The language “deny or abridge,” in the Fifteenth Amendment and in the pre-1982 version of Section 2, has been understood to reach intentional discrimination. See Bolden, 446 U.S. at 61–62 (1980).  But it is not obvious that language minorities can sue under Section 4(f)(2),²³¹In the past, the Court has adopted a flexible approach towards private actions under the VRA. See Allen v. State Bd. of Elections, 393 U.S. 544, 557 (1969) (finding that the VRA supported private actions related to Section 5 because “[w]e have previously held that a federal statute passed to protect a class of citizens, although not specifically authorizing members of the protected class to institute suit, nevertheless implied a private right of action”).  Today, the Court adopts a more cautious approach towards implied private actions. See, e.g., Alexander v. Sandoval, 532 U.S. 275, 286–88 (2001) (emphasizing the role of statutory text). rather than only under Section 2.²³²See 52 U.S.C. § 10308(d). The VRA plainly allows the attorney general to seek enforcement of Section 4(f)(2), but it does not have a clear corresponding provision for private persons.  Additionally, it appears that the DOJ treats Section 2 as the principal basis upon which to bring language discrimination claims. See, e.g., United States v. Uvalde Consol. Indep. Sch. Dist., 625 F.2d 547, 554 n.11 (5th Cir. 1980) (noting that the DOJ “might have premised” its lawsuit on Section 4(f)(2), but did so instead under Section 2).  If they can do so, then another anomaly arises.  Language minorities would be able to invoke an Intent Test under the VRA, while racial minorities could not.²³³“Language minorities” is defined such that it includes several groups of racial minorities. See 52 U.S.C. 10310(c)(3).  Those racial minorities would be able to bring language discrimination claims under an Intent Test, but other minorities would not.   This seems odd.  Racial minorities, after all, were the original and principal beneficiaries of the VRA regime.²³⁴See supra note 20 and accompanying text.

Congress should resolve the statutory tension.  It makes little sense for Section 4(f)(2) to announce broad protections and for Section 2 to limit them.  Congress should codify an Intent Test that would protect language and racial minorities.  Congress’s awkward 1982 amendments created doubts where there should have been none.

If the VRA does not protect language minorities from intentional discrimination, those minorities will be left in a difficult position.  The VRA provides them with their principal if not sole protection against voter discrimination.²³⁵For discussion of the limited protections that language minorities receive outside of the voting context, see Kiyoko Kamio Knapp, Language Minorities:  Forgotten Victims of Discrimination?, 11 Geo. Immigr. L.J. 747 (1997).  Racial discrimination claims, by contrast, may usually proceed under the Fourteenth and Fifteenth Amendments.²³⁶See Reno v. Bossier Par. Sch. Bd., 528 U.S. 320, 332 (2000).  The Court applies heightened constitutional scrutiny for race-based laws, not for language-based laws.²³⁷See Donna F. Coltharp, Comment, Speaking the Language of Exclusion:  How Equal Protection and Fundamental Rights Analyses Permit Language Discrimination, 28 St. Mary’s L.J. 149, 168 (1996) (explaining that “language minorities making equal protection claims are generally stopped well before having to prove intent, because although language minorities share many of the traits of suspect classes, language discrimination nearly always receives minimal scrutiny” (citing Hernandez v. New York, 500 U.S. 352, 371–72 (1991))).

Congress should fix this.  In the abstract, legislators might differ on the proper legal protections for language minorities.  But a codified Intent Test within the VRA should not trigger political divisions.  That test would simply restore or reaffirm the protections provided to language minorities in 1975.

B. Proposed Codification:  Section 2A Intent Test

If legislators add an intent test to the VRA, they must choose language to codify.  The intent test under the Section 5 preclearance regime provides a good model.  Though that test itself raises tough interpretive questions,²³⁸See Michael J. Pitts, Redistricting and Discriminatory Purpose, 59 Am. U. L. Rev. 1575, 1581–82 (2010) (“Congress legislatively overruled the Court through an amendment to Section 5 that re-established the federal government’s power under the discriminatory purpose standard.  Even so, what the congressional amendment means for future enforcement of the discriminatory purpose standard remains very much up for grabs.”). ambiguities will arise for any intent test.  An approach modeled on Section 5 will bring some rough consistency within the VRA regime.²³⁹The principles of the Section 5 preclearance regime do not necessarily translate identically to issues under Section 2. See Reno, 528 U.S. at 334 (explaining how Section 2 and Section 5 require comparisons to different baselines).

Congress enacted the current Section 5 intent test in response to Reno v. Bossier Parish School Board.²⁴⁰528 U.S. 320, 341 (2000); see S. Rep. No. 109-295, at 16 (2006).  Under Section 5, as it existed in Bossier, a covered state’s voting law would be prohibited if it had the “purpose” or “effect of denying or abridging the right to vote on account of race or color.”²⁴¹Voting Rights Acts Amendments of 1982, 42 U.S.C. § 1973(c), 96 Stat. 131, 132.  The Court held that a Section 5 prohibited purpose, like a prohibited effect, related only to situations where a state law would make minorities worse off.²⁴²See Bossier, 528 U.S. at 341 (“[W]e hold that §5 does not prohibit preclearance of a redistricting plan enacted with a discriminatory but non-retrogressive purpose.”).  So, if a legislature merely intended to entrench racial inequities, rather than affirmatively make them worse, Section 5 would not apply. 

Legislators believed that this was an unconscionable result.²⁴³See S. Rep. No. 109-295, at 16 (2006) (“The Supreme Court’s decision in [Bossier] has created a strange loophole in the law:  it is possible that the Justice Department or federal court could be required to approve an unconstitutional voting practice ‘taken with the purpose of racial discrimination’. . . . The federal government should not be giving its seal of approval to practices that violate the Constitution.” (quoting Testimony of Nina Perales, Renewing the Temporary Provisions of the Voting Rights Act:  Legislative Options After LULAC v. Perry, Before the Subcomm. on the Const., C.R., and Prop. Rts. of the S. Judiciary Comm., 109th Cong. 2 (2006) (statement of Nina Perales))).  Congress thus amended Section 5 to broaden that statute’s intent test.²⁴⁴Voting Rights Act Reauthorization and Amendments Act of 2006, Pub. L. No. 109-246, § 5, 120 Stat. 577, 580–81 (2006), codified at 52 U.S.C. §§ 10304(c)–(d).  Section 5 preclearance now applies to a law with “any discriminatory purpose.”²⁴⁵52 U.S.C. § 10304(c) (emphasis added); see also Shelby Cnty. v. Holder, 570 U.S. 529, 539 (“Section 5 now forbids voting changes with ‘any discriminatory purpose’ as well as voting changes that diminish the ability of citizens, on account of race, color, or language minority status, ‘to elect their preferred candidates of choice.’” (citation omitted)).  The statute no longer applies only to laws intended to make minorities worse off.

Congress should use the Section 5 intent test as a model for a new Section 2A.  The new Section 2A should prohibit any state law that has the “purpose of denying or abridging the right to vote within the meaning of the Fourteenth or Fifteenth Amendments, or which has the purpose of contravening the guarantees of Section 4(f)(2).”  As under Section 5, “purpose” should be defined broadly, to “include any discriminatory purpose.”²⁴⁶52 U.S.C. § 10304(c).  Also, as under Section 5, Section 2A should prohibit attempted vote dilution as well as attempted vote denial.²⁴⁷The Court has recognized that the Section 5 preclearance regime applies in the vote dilution context. See Allen v. State Bd. of Elections, 393 U.S. 544 (1969).  The Section 5 preclearance regime also contains a special interpretive rule for vote dilution. See Section 5(b), codified at 52 U.S.C. 10304(b); see also S. Rep. No. 109-295, at 18–21 (2006) (explaining how legislators wanted to enact Section 5(b) to overturn the totality-of-circumstances approach adopted in Georgia v. Ashcroft, 539 U.S. 461 (2003)).  For Section 2A, generic language that covers state laws with the “purpose of vote dilution in violation of the Fourteenth Amendment” would provide the simplest fix and avoid any debates over the wisdom of Section 5(b).

It might seem redundant to add Section 2A when Section 5 already provides an intent test.  But the Section 5 preclearance regime remains dormant unless and until Congress updates that statute’s coverage formula.²⁴⁸See Shelby Cnty., 570 U.S. at 557 (finding that existing VRA coverage formula is unconstitutional).  And even if Congress makes that update, Section 5 will apply only to some jurisdictions.  Section 2A would apply nationwide and would not duplicate the Section 5 regime.

The violation standard under Section 2A would differ from the violation standard under Section 2.  A state law violates the Results Test under Section 2 only when it flouts the equal openness standard.  But Section 2A would nix a state law that carries any discriminatory purpose, rather than only the purpose of violating the equal openness standard. 

This divergence is necessary.  The Section 2A intent test harmonizes the VRA with the intentional discrimination principles of the Fourteenth and Fifteenth Amendments.  The test does not follow the Results Test of Section 2.  If Section 2A were limited to intentional violations of the equal openness standard, the problems described in Part IV.A of this Article would not be resolved.  That is, some acts of intentional discrimination covered by the Fourteenth and Fifteenth Amendments would remain outside the VRA.

Section 2A differs from a recent legislative proposal to amend the VRA.  The John R. Lewis Voting Rights Advancement Act of 2021 (the “Lewis Act”) would substantially revise Section 2.²⁴⁹See John R. Lewis Voting Rights Advancement Act of 2021, S.4, 117th Cong. (2021); see also John R. Lewis Voting Rights Advancement Act of 2021, H.R.4, 117th Cong. (2021).   The statute, after revision by the Lewis Act, would establish separate frameworks for vote dilution and vote denial claims.  For vote dilution claims, the act would generally follow Court precedent.²⁵⁰See S.4 § 101(b) (adding a new Section 2(b) to the VRA that would expressly incorporate the legal standards from Thornburg v. Gingles, 478 U.S. 30 (1986)).   For vote denial claims, the act would depart from precedent.²⁵¹See id. § 101(c) (adding a new Section 2(c) to the VRA that would establish vote denial standards different from those in Brnovich v. Democratic Nat’l Comm.,141 S. Ct. 2321 (2021)).

The Lewis Act also proposes a complicated intent test for both vote dilution and vote denial claims.²⁵²See id. at § 101(d) (adding a new Section 2(d) to the VRA that would address intended vote dilution or intended vote denial).  The intent test would apply whenever laws are discriminatory “at least in part.”²⁵³See id. (adding a new Section 2(d)(1)).  The Lewis Act also specifies that to violate its intent test, discrimination “need only be one purpose.”²⁵⁴See id. (adding a new Section 2(d)(2)).  A law with a discriminatory purpose will violate the intent test even if an “additional purpose … is to benefit a particular political party or group.”²⁵⁵See id. (adding a new Section 2(d)(2)).  The act provides a detailed interpretive rule related to the political and historical context of a challenged law.²⁵⁶See id. (adding a new Section 2(d)(3) that would provide:  “Recent context, including actions by official decisionmakers in prior years or in other contexts preceding the decision responsible for the challenged qualification, prerequisite, standard, practice, or procedure, and including actions by predecessor government actors or individual members of a decision making body, may be relevant to making a determination” about a violation of the Intent Test).

The Lewis Act may very well deserve passage.  However, the act would create new complexities for Section 2.  The act also addresses significant voting matters beyond Section 2.²⁵⁷See generally L. Paige Whitaker, Cong. Rsch. Serv., IF12015, The John R. Lewis Voting Rights Advancement Act of 2021, S. 4 (117th Congress):  Legal Overview (2022).  These factors establish significant political and practical obstacles.²⁵⁸For some thoughtful criticisms of the Lewis Act, see Matthew Weil & Christopher Thomas, How the Senate Should Fix the House Voting Rights Bill, Roll Call (Aug. 27, 2021), https://rollcall.com/2021/08/27/how-the-senate-should-fix-the-house-voting-rights-bill/.  For coverage of related political battles, see, for example, Carl Hulse, After A Day of Debate, the Voting Rights Bill Is Blocked in the Senate, N.Y. Times (updated Jan. 27, 2022), https://www.nytimes.com/2022/01/19/us/politics/senate-voting-rights-filibuster.html [https://perma.cc/RA8V-JV4M] (discussing challenges to passage of two voting bills, including the Lewis Act).

Unlike the Lewis Act, Section 2A would offer a quick, relatively simple fix for anomalies within the VRA.  The proposed statute should appeal to any reasonable legislator, of any political persuasion.  Congress should immediately add Section 2A and address other voting rights issues over time.

Conclusion

Section 2, in some ways, reflects a remarkable achievement.  Legislators reacted swiftly to Bolden and reached a compromise.  This compromise was hardly a foregone conclusion.  Fierce debates surrounded the VRA reauthorization process.²⁵⁹See generally Howell Raines, Voting Rights Act Signed by Reagan, N.Y. Times (June 30, 1982), https://www.nytimes.com/1982/06/30/us/voting-rights-act-signed-by-reagan.html [https://perma.cc/T3A8-K6PM].

Alas, a “compromise that seeks to have things both ways, as this one did, produces nightmares in implementation.”²⁶⁰Baird v. Consol. City of Indianapolis, 976 F.2d 357, 359 (7th Cir. 1992) (referring to the statutory compromise shown by the results-focused test and the proviso on proportional representation).  The latest nightmare relates to whether Section 2 includes the Intent Test.  The lower courts have struggled with that issue for decades.

Congress should end the struggles.  Though Section 2’s language does not support the Intent Test, sound policies do.  A relatively short new provision would further those policies.  With luck, that small reform will motivate Congress to further consider how to address the new voting rights landscape.

* Orville L. and Ermina D. Dykstra Professor in Income Tax Law, University of Iowa.  I would like to thank Travis Crum, Derek Muller, and Michael Pitts for their helpful critiques and suggestions.

References:

• 1
  Barnett v. Daley, 32 F.3d 1196, 1201 (7th Cir. 1994).
• 2
  See Travis Crum, The Lawfulness of the Fifteenth Amendment, 97 Notre Dame L. Rev. 1543, 1545 (2022).
• 3
  See Travis Crum, The Superfluous Fifteenth Amendment?, 114 Nw. U. L. Rev. 1549, 1551 (2020) (“Despite its broad language, the Fourteenth Amendment was originally understood by the Reconstruction generation to not encompass the right to vote.”).
• 4
  Voting Rights Act of 1965, Pub. L. No. 89-110, 79 Stat. 437 (codified as amended at 52 U.S.C. §§ 10301–10314, 10501–10508, 10701–10702).
• 5
  Section 5 provides that those jurisdictions described in Section 4 must “obtain federal permission before enacting any law related to voting.” Shelby Cnty. v. Holder, 570 U.S. 529, 534 (2013).  The number of covered jurisdictions has varied over time but has generally been substantial. See Section 4 of the Voting Rights Act:  The Formula for Coverage Under Section 4 of the Voting Rights Act, U.S. Dep’t of Just. (Apr. 5, 2023), https://www.justice.gov/crt/section-4-voting-rights-act#formula [https://perma.cc/5644-4AWH] (last visited Oct. 1, 2023) (describing jurisdictions covered by Section 4).
• 6
  See Thomas M. Boyd & Stephen J. Markman, The 1982 Amendments to the Voting Rights Act:  A Legislative History, 40 Wash. & Lee L. Rev. 1347, 1352–53 (1983) (describing the original version of Section 2 as “a little-used provision that tracked the language of the Fifteenth Amendment”).
• 7
  Section 2, codified at 52 U.S.C. § 10301, provides in full:
  
  Denial or abridgement of right to vote on account of race or color through voting qualifications or prerequisites; establishment of violation
  
  (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.
• 8
  See 52 U.S.C. 10301(b).
• 9
  See id.
• 10
  See infra Part II.
• 11
  See infra Part II.A.
• 12
  See Brnovich v. Democratic Nat’l Comm., 141 S. Ct. 2321, 2333 (2021).
• 13
  See, e.g., Press Release, ACLU of Indiana, ACLU Disappointed with Supreme Court’s Voter ID Decision (Apr. 28, 2008), https://www.aclu.org/press-releases/aclu-disappointed-supreme-courts-voter-id-decision [https://perma.cc/KD58-E7TB] (explaining concerns about Crawford v. Marion Cnty. Election Bd., 553 U.S. 181 (2008)).
• 14
  Shelby Cnty. v. Holder, 570 U.S. 529, 556–57 (2013).  When operative, the preclearance regime requires that specified jurisdictions obtain federal permission to change their voting laws. Id. at 529.
• 15
  Congress can reactivate Section 5 by enacting an updated coverage formula but has lacked the political will to do so.  See Paige E. Richardson, Preclearance and Politics:  The Future of the Voting Rights Act, 89 U. Cin. L. Rev. 1089, 1102 (2020) (“Since the Shelby County decision, Congress has been unable to pass any VRA amendments.  What was once a bipartisan issue has now become partisan, with votes following the Democratic-Republican party line.”).
• 16
  See Ellen D. Katz, Section 2 After Section 5:  Voting Rights and the Race to the Bottom, 59 Wm. & Mary L. Rev. 1961, 1963 (2018) (“In the years since Shelby County, plaintiffs have relied on section 2 of the VRA to challenge those retrogressive electoral practices that section 5 would have blocked.”).  For an empirical study of Section 2 claims, see Ellen D. Katz et al., To Participate and Elect:  Section 2 of the Voting Rights Act at 40,  Univ. Mich. L. Sch. Voting Rts. Initiative (2022), https://voting.law.umich.edu [https://perma.cc/6GFK-G5KR].  For further academic discussion, see Christopher S. Elmendorf & Douglas M. Spencer, Administering Section 2 of the Voting Rights Act After Shelby County, 115 Colum. L. Rev. 2143, 2147–48 (2015) (arguing that “courts could create rebuttable presumptions under section 2 that would give the statute special bite in many jurisdictions formerly covered by section 5.”).
• 17
  See Complaint at 42–44, United States v. Georgia, No. 1:21-CV-2575-JPB (N.D. Ga. June 25, 2021), ECF No. 1; see also League of Women Voters of Fla., Inc. v. Lee, 595 F. Supp. 3d 1042, 1076 (N.D. Fla. 2022) (summarizing plaintiffs’ reliance on the Intent Test under Section 2, as well as plaintiffs’ other claims), aff’d in part, vacated in part, rev’d in part sub nom. League of Women Voters of Fla., Inc. v. Fla. Sec’y of State, 66 F.4th 905 (11th Cir. 2023).
• 18
  The Preamble to the VRA describes the act as an effort to “enforce the fifteenth amendment to the Constitution of the United States.” See Pub. L. No. 89-110, 79 Stat. 437, 437.  Congress later relied on the Fourteenth Amendment to expand the VRA. See, e.g., Pub. L. No. 89-110, § 4(e)(1) (invoking the Fourteenth Amendment to address language restrictions in voting practices); see also Pub. L. No. 94-73 (adding several references to the Fourteenth Amendment across the act). 
• 19
  See Brnovich v. Democratic Nat’l Comm., 141 S. Ct. 2321, 2330 (2021) (“Despite the ratification of the Fifteenth Amendment, the right of African-Americans to vote was heavily suppressed for nearly a century.”); see also Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 197–98 (2009) (“States were creative in ‘contriving new rules’ to continue violating the Fifteenth Amendment ‘in the face of adverse federal court decrees.’” (citation omitted)) .
• 20
  Though concerns about discrimination against racial minorities drove Congress to enact Section 2, the statute’s language broadly refers to discrimination “on account of race or color.” See Pub. L. No. 89-110, 79 Stat. 437, 437.  Thus, the statute can protect racial majorities. See United States v. Brown, 494 F. Supp. 2d 440, 444–46 (S.D. Miss. 2007) (discussing relevant authorities), aff’d 561 F.3d 420 (5th Cir. 2009).  For ease of exposition, this Article will refer only to discrimination against racial minorities.
• 21
  See South Carolina v. Katzenbach, 383 U.S. 301, 315 (1966) (“The Voting Rights Act of 1965 reflects Congress’ firm intention to rid the country of racial discrimination in voting.”).
• 22
  79 Stat. 437, 437.  The current version of Section 2 is codified at 52 U.S.C. 10301(a).
• 23
  See Voting Rights Act Amendments of 1975, Pub. L. No. 94-73, §§ 203, 206, 207, 301, 89 Stat. 400, 401–03 (1975).
• 24
  See 52 U.S.C. § 10310(c)(3) (“The term ‘language minorities’ . . .  means persons who are American Indian, Asian American, Alaskan Natives or of Spanish heritage.”).
• 25
  See Pub. L. No. 94-73, § 203, 89 Stat. at 401 (originally codified at 42 U.S.C.A. § 1973b(f)(2), and now codified at 52 U.S.C. § 10303(f)(2)).
• 26
  Congress also amended Section 2 such that it cross-references the Section 4(f)(2) protections. See Pub. L. No. 94-73, § 206, 89 Stat. at 403.
• 27
  446 U.S. 55 (1980).
• 28
  See Daniel P. Tokaji, Applying Section 2 to the New Vote Denial, 50 Harv. C.R.-C.L. L. Rev. 439, 442 (2015) (“Vote dilution . . . refers to practices that diminish a group’s political influence. . . . The most common examples of practices that may dilute minority votes are at-large elections, multimember districts, and gerrymandered districts.”).
• 29
  See id. (“[V]ote denial concerns impediments to voting and the counting of votes.”) (punctuation omitted).
• 30
  See Bolden, 446 U.S. at 58.
• 31
  Id. at 59.
• 32
  See Bolden v. City of Mobile, 423 F. Supp. 384, 385 (S.D. Ala. 1976) (“The prayed-for relief consists of, (1) a declaration that the present at-large election system is unconstitutional, (2) an injunction preventing the present commissioners from holding, supervising, or certifying any future city commission elections, (3) the formation of a government whose legislative members are elected from single member districts, and (4) costs and attorney fees.”), aff’d 571 F.2d 238 (5th Cir. 1978), rev’d 446 U.S. 55 (1980).
• 33
  Id. at 403.
• 34
  See generally Lani Guinier, The Representation of Minority Interests:  The Question of Single-Member Districts, 14 Cardozo L. Rev. 1135 (1993); see also Laughlin McDonald, Holder v. Hall:  Blinking at Minority Voting Rights, 3 U.D.C. L. Rev. 61, 95 (1995) (arguing that increases in the number of Black elected officials within Georgia can be “traced directly to the gradual demise of at-large elections and the increased use of [single-member] districts containing effective Black-voting majorities.” (citing Quiet Revolution in the South:  The Impact of the Voting Rights Act 1965–1990 89–90 (Chandler Davidson & Bernard Grofman eds., 1994))).
• 35
  See Bolden v. City of Mobile, 446 U.S. 55, 58 (1980).
• 36
  Id.
• 37
  Id. at 60–61 (plurality opinion); see also Chisom v. Roemer, 501 U.S. 380, 392 (1991) (“At the time of the passage of the Voting Rights Act of 1965, § 2, unlike other provisions of the Act, did not provoke significant debate in Congress because it was viewed largely as a restatement of the Fifteenth Amendment.”).
• 38
  See Bolden, 446 U.S. at 62 (plurality opinion) (“Our decisions . . . have made clear that action by a State that is racially neutral on its face violates the Fifteenth Amendment only if motivated by a discriminatory purpose.”).
• 39
  See id. at 66 (reciting “the basic principle that only if there is purposeful discrimination can there be a violation of the Equal Protection Clause of the Fourteenth Amendment.” (citing Washington v. Davis, 426 U.S. 229 (1976))); see also id. (finding that at-large systems “could violate the Fourteenth Amendment if their purpose were invidiously to minimize or cancel out the voting potential of racial or ethnic minorities”).
• 40
  See Allen v. Milligan, 599 U.S. 1, 40 (2023) (“‘Congress drew § 2(b)’s current operative language’ from the 1973 decision White v. Regester . . .  a case that was also about districting.” (citation omitted)). 
• 41
  See Bolden, 446 U.S. at 65.
• 42
  Id.
• 43
  Id. (cleaned up).
• 44
  Id.
• 45
  Allen, 599 U.S. at 1 (“Almost immediately after it was decided, [Bolden] ‘produced an avalanche of criticism, both in the media and within the civil rights community.’” (quoting Thomas M. Boyd & Stephen J. Markman, The 1982 Amendments to the Voting Rights Act:  A Legislative History, 40 Wash. & Lee L. Rev. 1347, 1355 (1983))).
• 46
  See S. Rep. No. 97-417, at 36 (1982) (criticizing intent inquiry as “unnecessarily divisive because it involves charges of racism on the part of individual officials or entire communities” and asserting that it “asks the wrong question”).
• 47
  Id. at 19 (emphasis added).
• 48
  See id. at 22 (“[I]t is clear that, prior to Bolden, plaintiffs in dilution cases could prevail by showing either discriminatory results or intent.”); see also id. at 26 (“A fair reading of Bolden reveals that the plurality opinion was a marked departure from earlier Supreme Court and lower court vote dilution cases.”).
• 49
  See id. at 26.
• 50
  Id. at 19.
• 51
  See Allen v. Milligan, 599 U.S. 1, 40 (2023) (“Congress adopted the amended § 2 in response to the 1980 decision [Bolden].”).
• 52
  See Voting Rights Act Amendments of 1982, Pub. L. No. 97-205, § 3, 96 Stat. 131, 134.
• 53
  Id. at 134.
• 54
  Id.
• 55
  412 U.S. 755, 766 (1973); see also Allen v. Milligan, 599 U.S. 1, 40 (2023) (“‘Congress drew § 2(b)’s current operative language’ from the 1973 decision White v. Regester . . .  a case that was also about districting.” (citation omitted)). 
• 56
  See 412 U.S. at 758–59.  Regarding elections for the Texas House, the plaintiffs argued that the “multimember districts for Bexar County and Dallas County operated to dilute the voting strength of racial and ethnic minorities.” Id. at 759.
• 57
  See id. at 765–66 (“To sustain [their] claims, it is not enough that the racial group allegedly discriminated against has not had legislative seats in proportion to its voting potential.”).
• 58
  Id. at 766.
• 59
  See supra note 55.
• 60
  See Miss. Republican Exec. Comm. v. Brooks, 469 U.S. 1002, 1010 (1984) (Rehnquist, J., dissenting) (quoting H.R. Rep. No. 97–227, at 29).
• 61
  Id. (citing Hearings on S. 53, S. 1761, S. 1975, S. 1992, and H.R. 3112 Before the Subcomm. on the Const. of the S. Comm. on the Judiciary, 97th Cong., 1309–13, 1334–38 (1982)); see also President Ronald Reagan, Statement About Extension of the Voting Rights Act (Nov. 6, 1981), (https://www.reaganlibrary.gov/archives/speech/statement-about-extension-voting-rights-act [https://perma.cc/9EKS-8TAC] (expressing support for the extension of the VRA but arguing that Section 2 should not switch from an intent-based standard to an effects-based standard).  
• 62
  52 U.S.C. § 10301(b).
• 63
  The Fifteenth Amendment refers to votes being “denied or abridged” on account of race. U.S. Const. amend. XV, § 1.  Even outside of Bolden, the Court has strongly implied that vote denial or abridgement does not include vote dilution. See Reno v. Bossier Par. Sch. Bd., 528 U.S. 320, 334 n.3 (2000) (“[W]e have never held that vote dilution violates the Fifteenth Amendment … [W]e have never even ‘suggested’ as much.”) (citation omitted).  Thus, Section 2(a), if viewed in isolation, probably would concern itself only with vote denial. Cf. Shaw v. Reno, 509 U.S. 630, 645 (1993) (concluding that the vote dilution scheme in Gomillion v. Lightfoot, 364 U.S. 339 (1960), though resolved by the majority under the Fifteenth Amendment, was properly resolved under the Fourteenth Amendment, per Justice Whittaker’s concurring opinion).
• 64
  See Brnovich v. Democratic Nat’l Comm., 141 S. Ct. 2321, 2333 (2021) (noting that the Senate Report “listed many examples of what the Committee took to be unconstitutional vote dilution, but the survey identified only three isolated episodes involving the outright denial of the right to vote.”); Michael J. Pitts, Rethinking Section 2 Vote Denial, 46 Fla. St. U. L. Rev. 1, 3 (2018) (“[T]he results standard—while applicable to vote denial claims—arose primarily out of a need for a new standard in vote dilution litigation.”).  In Thornburg v. Gingles, 478 U.S. 30 (1986), the Court laid out several preconditions and factors for vote dilution claims under Section 2.
• 65
  Cf. Miss. Republican Exec. Comm., 469 U.S. at 1010 (Rehnquist, J., dissenting) (“[T]he language used in the amended statute is, to say the least, rather unclear.”); see also Luis Fuentes-Rohwer, Justice Kennedy to the Rescue?, 160 U. Pa. L. Rev. PENNumbra 209 (2012) (“Section 2 of the Voting Rights Act is a doctrinal mess.  Through a totality of circumstances inquiry, Section 2 has evolved from its modest beginnings as a codification of the Fifteenth Amendment into a ‘mysterious judicial inquiry.’” (quoting Christopher S. Elmendorf, Making Sense of Section 2:  Of Biased Votes, Unconstitutional Elections, and Common Law Statutes, 160 U. Pa. L. Rev. 377, 381 (2012))).
• 66
  Until recently, plaintiffs did not often rely on Section 2 for vote denial claims. See League of Women Voters of N.C. v. North Carolina, 769 F.3d 224, 239–40 (4th Cir. 2014) (discussing how Section 2 had historically applied in the vote dilution context); see also Tokaji, supra note 28 at 448 (discussing expanded role of Section 2 in litigation).
• 67
  See 52 U.S.C. § 10301(a) (prohibiting a law “which results in a denial or abridgement . . .  as provided in subsection (b)”).
• 68
  See id. § 10301(b) (violations arise when “political processes . . .  are not equally open to participation by members of a class of citizens protected by subsection (a)”).
• 69
  S. Rep. No. 97-417, at 36 (1982) (emphasis added).
• 70
  See 748 F.2d 1037, 1042–43 (5th Cir. 1984); see also United States v. Brown, 561 F.3d 420, 432 (5th Cir. 2009) (“To violate [Section 2] . . . these practices must be undertaken with an intent to discriminate or must produce discriminatory results.”).
• 71
  See McMillan, 748 F.2d at 1040.
• 72
  See id.
• 73
  Id.; see also id. at 1043 (describing racially polarized voting practices whenever a Black candidate ran for countywide office).
• 74
  McMillan v. Escambia Cnty., 688 F.2d 960 (5th Cir. 1982).
• 75
  Escambia Cnty. v. McMillan, 460 U.S. 1080, 1080 (1983).
• 76
  Escambia Cnty. v. McMillan, 466 U.S. 48, 49–50 (1984).
• 77
  Id. at 51.
• 78
  Id. at 52.
• 79
  McMillan v. Escambia Cnty., 748 F.2d 1037, 1046–47 (5th Cir. 1984).
• 80
  Id. at 1046.
• 81
  See id. at 1047.
• 82
  Id. at 1046 (emphasis omitted) (relying on S. Rep. No. 97-417, at 27 (1982)).
• 83
  The Fifth Circuit has continued to embrace the Intent Test. See, e.g., Fusilier v. Landry, 963 F.3d 447, 463 (5th Cir. 2020) (“The district court’s finding of discriminatory intent formed an independent basis for liability. . . . An election practice violates Section 2 and the Fourteenth and Fifteenth Amendments if it is undertaken and maintained for a discriminatory purpose.” (citing McMillan v. Escambia Cnty., 748 F.2d 1037, 1046 (5th Cir. 1984))).
• 84
  976 F.2d 357, 359 (7th Cir. 1992).
• 85
  Id.
• 86
  Id. at 360.
• 87
  Id. at 359.
• 88
  For the full statutory text, see supra note 7.
• 89
  Johnson v. DeSoto Cnty. Bd. Comm’rs, 72 F.3d 1556 (11th Cir. 1996).
• 90
  The plaintiffs in DeSoto County were Black voters who believed that their votes had been diluted through the at-large voting system. See id. at 1558.
• 91
  Id. at 1559 (citing Johnson v. DeSoto Cnty. Bd. Comm’rs, 868 F.Supp. 1376 (M.D. Fla.  1994)).
• 92
  Id. (quoting Johnson v. DeSoto Cnty. Bd. Comm’rs, 868 F.Supp. 1376, 1380 (M.D. Fla. 1994)).
• 93
  Id. at 1563.
• 94
  Id.
• 95
  Id.
• 96
  507 U.S. 146, 155 (1993) (citing Thornburg v. Gingles, 478 U.S. 30 (1986)).
• 97
  Johnson, 72 F.3d at 1562 (concluding that Voinovich v. Quilter, 507 U.S. 146, 155 (1993), “forecloses the district court’s holding, and the plaintiffs’ position, that discriminatory intent alone can violate § 2 even without discriminatory results.”).  For further discussion of Voinovich, see infra text accompanying notes 152–165.
• 98
  Johnson, 72 F.3d at 1564.
• 99
  Id. at 1565.
• 100
  Id.
• 101
  Id. at 1563.
• 102
  127 F.3d 1355, 1373 (11th Cir. 1997).
• 103
  See Brooks v. Miller, 158 F.3d 1230, 1237 (11th Cir. 1998) (“[D]iscriminatory intent alone, in the absence of a showing of discriminatory effect, is insufficient to establish a violation of § 2.” (citing Johnson, 72 F.3d 1556 (11th Cir.1996))); Osburn v. Cox, 369 F.3d 1283, 1289 (11th Cir. 2004) (allowing for both Intent Test and Results Test under Section 2).
• 104
  66 F.4th 905, 921 (11th Cir. 2023).
• 105
  Id. at 943.
• 106
  Id.
• 107
  See United States’ Opposition to State Defendants’ and Intervenor Defendants’ Motions for Judgment on the Pleadings at 10-11, United States v. Georgia, No. 1:21-CV-2575-JPB (N.D. Ga. June 8, 2023).
• 108
  See id. at 13–14.
• 109
  Id. at 14.
• 110
  Id. (quoting Dillard v. Baldwin Cnty. Bd. of Educ., 686 F. Supp. 1459, 1468 n.10 (M.D. Ala. 1988)).  The Department of Justice also relies partially on Garza v. County of Los Angeles, 918 F.2d 763 (9th Cir. 1990), cert. denied, 498 U.S. 1028 (1991). See id. at 13–14.  In Garza, the court stated that the statutory results test “did not affect the remedies under Section 2 for intentional discrimination.” 918 F.2d at 770 (citing S. Rep. No. 97-417, at 27 (1982)).  Thus, the court appeared to embrace the Intent Test. See also id. at 771 (“Although the showing of injury in cases involving discriminatory intent need not be as rigorous as in effects cases, some showing of injury must be made to assure that the district court can impose a meaningful remedy.”).  However, the court then stated that for Section 2 intentional discrimination claims, the discriminatory intent “must result” in a violation of the equal openness standard under Section 2(b). Id. at 771.  That language suggests that minimal results do not suffice.  Instead, a violation of the Section 2(b) equal openness standard must have occurred. See id. at 771 (applying the equal openness standard and finding that the Los Angeles measure at issue violated it).  Cf. Afr. Am. Voting Rts. Legal Def. Fund, Inc. v. Villa, 54 F.3d 1345, 1357 n.18 (8th Cir. 1995) (“[Garza] relied upon the text of the Voting Rights Act to find that a discriminatory effect was required in an intent case.”).  Whether Garza requires minimal effects in Section 2 intent cases, or instead requires a violation of the equal openness standard, remains frustratingly unclear.
• 111
  Johnson v. DeSoto Cnty. Bd. Comm’rs, 72 F.3d 1556, 1564 (11th Cir. 1996) (quoting Johnson v. DeSoto Cnty. Bd. Comm’rs, 868 F.Supp. 1376, 1380 (M.D. Fla. 1994)).
• 112
  Id. at 1563.
• 113
  League of Women Voters of Fla., Inc. v. Fla. Sec’y of State, 66 F.4th 905, 943 (11th Cir. 2023).
• 114
  See id. at 943–44 (defining Section 2’s “high standard” by reference to the equal openness standard in Section 2(b) and concluding that the plaintiff’s challenge to a Florida registration-delivery provision “does not come close to meeting that standard.”).
• 115
  Individual Justices have been less circumspect. See, e.g., Allen v. Milligan, 599 U.S. 1, 44 (2023) (Kavanaugh, J., concurring) (“[A]s this Court has long recognized—and as all Members of this Court today agree—the text of § 2 establishes an effects test, not an intent test.”); see also Chisom v. Roemer, 501 U.S. 380, 406 (1991) (Scalia, J., dissenting) (“As currently written, [Section 2] proscribes intentional discrimination only if it has a discriminatory effect, but proscribes practices with discriminatory effect whether or not intentional.”).
• 116
  141 S. Ct. 2321 (2021).
• 117
  See id. at 2333–34.  For a general discussion about Brnovich’s potential consequences for election law, see Derek T. Muller, Brnovich v. DNC:  Election Litigation Migrates from Federal Courts to the Political Process, 2021 Cato Sup. Ct. Rev. 217 (2021).
• 118
  See Brnovich, 141 S. Ct. at 2334.
• 119
  See id.
• 120
  See Democratic Nat’l Comm. v. Reagan, 329 F. Supp. 3d 824, 883 (D. Ariz. 2018), aff’d, 904 F.3d 686 (9th Cir. 2018) (subsequent history omitted).
• 121
  See Democratic Nat’l Comm. v. Hobbs, 948 F.3d 989, 998 (9th Cir. 2020), rev’d and remanded sub nom. Brnovich v. Democratic Nat’l Comm., 141 S. Ct. 2321 (2021).
• 122
  Id. at 999.
• 123
  Id.
• 124
  Brnovich, 141 S. Ct. at 2337.
• 125
  See id. at 2333.
• 126
  Id. at 2337 (citing Thornburg v. Gingles, 478 U.S. 30 (1986)).
• 127
  Brnovich, 141 S. Ct. at 2337.
• 128
  52 U.S.C. § 10301(a); see also id.
• 129
  Brnovich, 141 S. Ct. at 2337.
• 130
  See id.
• 131
  See id. at 2338–40.
• 132
  See id. at 2346 (“In light of the modest burdens allegedly imposed by Arizona’s out-of-precinct policy, the small size of its disparate impact, and the State’s justifications, we conclude the rule does not violate §2 of the VRA.”).
• 133
  See id. at 2348 (“As with the out-of-precinct policy, the modest evidence of racially disparate burdens caused by HB 2023, in light of the State’s justifications, leads us to the conclusion that the law does not violate §2 of the VRA.”).
• 134
  See generally Baird v. Consol. City of Indianapolis, 976 F.2d 357 (7th Cir. 1992); see also supra text accompanying notes 84–88.
• 135
  Brnovich, 141 S. Ct. at 2337.
• 136
  See 52 U.S.C. § 10301(a) (prohibiting a law “which results in a denial or abridgement . . . as provided in subsection (b)”).
• 137
  See Baird, 976 F.2d at 360 (explaining the plaintiffs “have not stated a claim under § 2(b), although proof of intentional discrimination under § 2(a) remains an option.”).
• 138
  See Democratic Nat’l Comm. v. Hobbs, 948 F.3d 989, 999 (9th Cir. 2020) (“We hold, further, that . . . [the collection rule] was enacted with discriminatory intent, in violation of the ‘intent test’ of Section 2 of the VRA.”).
• 139
  See Brnovich, 141 S. Ct. at 2348.
• 140
  See United States v. Georgia, 574 F. Supp. 3d 1245, 1253 (N.D. Ga. 2021), reconsideration denied sub nom., Georgia Senate Bill 202, No. 1:21-CV-02575-JPB, 2022 WL 1516049 (N.D. Ga. Apr. 21, 2022).
• 141
  See id. (“Presumably, the Supreme Court would have rejected the plaintiffs’ discriminatory purpose claim if, as State Defendants contend, such a claim were invalid as a matter of law.”); see also United States’ Opposition to State Defendants’ and Intervenor Defendants’ Motions For Judgment On The Pleadings,1:21-CV-2575-JPB, 12 (N.D. Ga. June 8, 2023) (explaining that in Brnovich,“the Court considered a Section 2 discriminatory purpose claim separately from the discriminatory results claim in the same case.”); U.S. Dep’t of Just., Guidance under Section 2 of the Voting Rights Act, 52 U.S.C. § 10301, for Redistricting and Methods of Electing Government Bodies, at 9 (Sept. 1, 2021) (“Section 2 of the Voting Rights Act also prohibits use of a redistricting plan or method of election adopted or maintained for a discriminatory purpose, which is the same prohibition imposed by the Fourteenth and Fifteenth Amendments.”), https://www.justice.gov/media/1164546/dl?inline [https://perma.cc/7AZV-AQ4Z].
• 142
  See supra notes 130–33 and accompanying text.
• 143
  See Democratic Nat’l Comm. v. Hobbs, 948 F.3d 989, 999 (9th Cir. 2020). The district court believed that Section 2 included an Intent Tent and so, like the Ninth Circuit, its discriminatory purpose holding related both to Section 2 and the Fifteenth Amendment. See Democratic Nat’l Comm. v. Reagan, 329 F.Supp.3d 824, 878–82 (D. Ariz.).
• 144
  See, e.g., Chisom v. Roemer, 501 U.S. 380, 403–04 (1991) (explaining that Mobile v. Bolden, 446 U.S. 55, 100 (1980), put on plaintiffs the “burden of proving discriminatory intent” in Fifteenth Amendment cases).
• 145
  See Hobbs, 948 F.3d at 999 (holding that the collection rule was enacted with discriminatory purpose, in violation of the Fifteenth Amendment).  Though the Ninth Circuit applied intent analysis to Section 2, see id., the Court in Brnovich completed its Section 2 analysis without mentioning intent. See supra notes 130–33 and accompanying text.  Thus, Part V of Brnovich should be traced to the Ninth Circuit’s holding on the Fifteenth Amendment rather than its holding on Section 2. See also Travis Crum, Deregulated Redistricting, 107 Cornell L. Rev. 359, 443 (2022) (explaining that the Court’s discriminatory-purpose analysis was offered in evaluation of a Fifteenth Amendment claim and tracing the Court’s analysis to the district court’s determinations).
• 146
  In Allen v. Milligan, 599 U.S. 1 (2023), the Court continued its delicate approach towards Section 2.  In describing the 1982 legislative compromise leading to the revised statute, the Court said that “Section 2 would include the effects test.” Id. at 13.  The Court did not say that Section 2 would include only a Results Test.  Presumably, the Court was aware of the controversy over the Intent Test in the lower courts and did not wish to expressly opine on it.  However, the cases discussed in this part show that the Court has accepted the Results Test as the exclusive path to prove a Section 2 violation.
• 147
  See 141 S. Ct. at 2350 (Kagan, J., dissenting).
• 148
  Id. at 2357.
• 149
  Id.
• 150
  Id.  Justice Kagan further stated that because she “would affirm the Court of Appeals’ holding that the effects of these policies violate Section 2,” she “need not pass on that court’s alternative holding that the laws were enacted with discriminatory intent.” Id. at 2366 n.10.  Like the majority, she does not identify which legal authority makes intent relevant.  But her opinion, like the majority’s, is difficult to reconcile with an Intent Test under Section 2.  If Justice Kagan believed that Section 2 includes an Intent Test, it would be odd for her to explain a discriminatory intent holding as an “alternative” to a Section 2 violation.
• 151
  See id. at 2366 (Kagan, J., dissenting) (“Both [Arizona] policies violate Section 2, on a straightforward application of its text.”).
• 152
  507 U.S. 146, 147 (1993).
• 153
  See id. at 149.
• 154
  See id. at 149–50.
• 155
  The plaintiffs also argued that the Ohio apportionment plan created districts of unequal size, in violation of the Fourteenth Amendment. See Voinovich, 507 U.S. at 149, 160.  The Court remanded for further proceedings on that issue. See id. at 162.
• 156
  See Quilter v. Voinovich, 794 F. Supp. 695, 695 (N.D. Ohio 1992), rev’d, Voinovich v. Quilter, 507 U.S. 146 (1993).
• 157
  Voinovich, 507 U.S. at 155.
• 158
  Id.
• 159
  Id.
• 160
  Rather than focus on the Results Test, the district court in Voinovich had flatly concluded that Section 2 “prohibits the creation of majority-minority districts unless such districts are necessary to remedy a statutory violation.” Id. (citing Quilter v. Voinovich, 794 F. Supp. 695, 701 (N.D. Ohio 1992)).
• 161
  See id. at 158–60.
• 162
  See id. at 160.
• 163
  See id. at 159 (“Even if we assume that the Fifteenth Amendment speaks to [vote dilution claims], the District Court’s decision still must be reversed:  Its finding of intentional discrimination was clearly erroneous.”).
• 164
  Id. at 155.
• 165
  See id. at 158–160.
• 166
  501 U.S. 380 (1991).
• 167
  Id. at 384.
• 168
  See id. at 404.
• 169
  Id. at 394.
• 170
  Id.
• 171
  Id.
• 172
  See id. at 394 n.21.
• 173
  Id. (quoting S. Rep. No. 97-417, at 27 (1982)).
• 174
  The district court treated that line as a statement from the Supreme Court itself. See United States v. Georgia, 574 F. Supp. 3d 1245, 1251 (N.D. Ga. 2021) (summarizing Chisom v. Roemer, 501 U.S. 380, 394 n.21 (1991), in a parenthetical without noting that the Court was quoting the Senate Report), reconsideration denied sub nom., In re Georgia Senate Bill 202, 2022 WL 1516049 (N.D. Ga. Apr. 21, 2022).
• 175
  599 U.S. 1 (2023).
• 176
  Id. at 25.
• 177
  See id. at 10–14.
• 178
  See Brnovich v. Democratic Nat’l Comm., 141 S. Ct. 2321, 2337 (2021) (reversing the Ninth Circuit after giving Section 2 a “fresh look” under current text-focused interpretive methods).
• 179
  See id. (explaining that in Thornburg v. Gingles, 478 U.S. 30 (1986), the Court “jumped” to rely on legislative history rather than rely on statutory text).
• 180
  See generally Diarmuid F. O’Scannlain, “We Are All Textualists Now”: The Legacy of Justice Antonin Scalia, 91 St. John’s L. Rev. 303 (2017).
• 181
  See 52 U.S.C. § 10301(a) (prohibiting a law “which results in a denial or abridgement . . . as provided in subsection (b).”).
• 182
  See supra Part III.A.
• 183
  See John F. Manning, The Absurdity Doctrine, 116 Harv. L. Rev. 2387, 2394 (2003) (“[I]f a particular application of a clear statute produces an absurd result, the Court understands itself to be a more faithful agent if it adjusts the statute to reflect what Congress would have intended had it confronted the putative absurdity.”).
• 184
  For a discussion of the standards that apply to Fourteenth and Fifteenth Amendment voting rights claims, see City of Mobile v. Bolden, 446 U.S. 55, 62, 66 (1980) (plurality opinion).
• 185
  Cf. Reno v. Bossier Par. Sch. Bd., 528 U.S. 320, 332 (2000) (arguing that an intent test has “value and effect . . . even when it does not cover additional conduct.” (emphasis added)).
• 186
  Sturges v. Crowinshield, 17 U.S. 122, 203 (1819).
• 187
  See supra note 69 and accompanying text.
• 188
  Brnovich v. Democratic Nat’l Comm., 141 S. Ct. 2321, 2337 (2021).
• 189
  See Nicholas R. Parrillo, Leviathan and Interpretive Revolution: The Administrative State, the Judiciary, and the Rise of Legislative History, 1890-1950, 123 Yale L.J. 266, 269 (2013) (“In the 1980s, legislative history was uncontroversial and very common.  It appeared in more than half the U.S. Supreme Court’s opinions on federal statutes.”).
• 190
  For a discussion on the rise of textualism in the 1980s, see William Eskridge, The New Textualism, 37 UCLA L. Rev. 621 (1990).
• 191
  Like all interpretive canons, the contemporaneous meaning canon faces limits.  Sometimes, the context of a statute changes through further legislative enactments and this changed legislative context can affect the statute’s meaning. See, e.g., United States v. Fausto, 484 U.S. 439, 453 (1988) (explaining that the “classic judicial task of reconciling many laws enacted over time, and getting them to ‘make sense’ in combination, necessarily assumes that the implications of a statute may be altered by the implications of a later statute.”).
• 192
  See Bradford C. Mank, Legal Context:  Reading Statutes in Light of Prevailing Legal Precedent, 34 Ariz. St. L.J. 815, 837 (2002) (arguing that issues over how to use “prevailing judicial doctrines at the time a statute was enacted” present a “more controversial question”).  The Court has rejected reliance on contemporary legal context when that context is not reflected in statutory language. See, e.g., Alexander v. Sandoval, 532 U.S. 275, 288 (2001) (“We have never accorded dispositive weight to context shorn of text.”).
• 193
  For a detailed empirical study on the varied uses of legislative history over time, see generally David S. Law & David Zaring, Law Versus Ideology:  The Supreme Court and the Use of Legislative History, 51 Wm. & Mary L. Rev. 1653 (2010).
• 194
  See id. at 1665–88 for a summary of empirical studies on the use or non-use of legislative history.
• 195
  See supra notes 79–83 and accompanying text.
• 196
  See, e.g., True Oil Co. v. Comm’r, 170 F.3d 1294, 1301 (10th Cir. 1999) (“‘Legislative history should be used to resolve ambiguity, not create it.’” (quoting Miller v. Comm’r, 836 F.2d 1274, 1283 (10th Cir.1988))).
• 197
  52 U.S.C. § 10301(a).
• 198
  See id. § 10301(b).
• 199
  See supra notes 147–151 and accompanying text.
• 200
  See supra notes 93–98 and accompanying text.
• 201
  In Reno v. Bossier Parish School Board, dealing with Section 5 of the VRA, the Court implied that lawmakers who act with a specific purpose will usually accomplish that purpose. See 528 U.S. 320, 332 (2000) (“[W]henever Congress enacts a statute that bars conduct having ‘the purpose or effect of x,’ the purpose prong has application entirely separate from that of the effect prong only with regard to unlikely conduct that has ‘the purpose of x’ but fails to have ‘the effect of x.’”).
• 202
  See supra notes 52–62 and accompanying text.
• 203
  Legislators recognized these issues when they amended Section 2. See S. Rep. No. 97-417, at 214 (1982) (criticizing intent inquiry as “unnecessarily divisive because it involves charges of racism on the part of individual officials or entire communities,” and asserting that it “asks the wrong question”); see also Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977) (“Determining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.”); see also John Hart Ely, Legislative and Administrative Motivation in Constitutional Law, 79 Yale L.J. 1205, 1207 (1970) (“The Supreme Court’s traditional confusion about the relevance of legislative and administrative motivation in determining the constitutionality of governmental actions has, over the past few terms, achieved disaster proportions.”).
• 204
  See supra notes 144–45 and accompanying text.
• 205
  See, e.g., Shaw v. Reno, 509 U.S. 630, 641 (1993) (finding that electoral schemes “violate the Fourteenth Amendment when they are adopted with a discriminatory purpose and have the effect of diluting minority voting strength”).
• 206
  52 U.S.C. § 10302(a) (emphasis added).  52 U.S.C. § 10302(b) and § 10302(c) contain identical phrasing.
• 207
  Id. § 10302(a).
• 208
  See id. § 10302(b).
• 209
  See id. § 10302(c); see generally Travis Crum, The Voting Rights Act’s Secret Weapon:  Pocket Trigger Litigation and Dynamic Preclearance, 119 Yale L.J. 1992 (2010).
• 210
  In United States v. Georgia, No. 1:21-CV-2575-JPB (N.D. Ga. June 25, 2021), the government alleged a Section 2 violation under the Intent Test. See Complaint in United States v. Georgia, supra note 17.  The complaint requests that the court appoint observers under Section 3(a) and apply the Section 3(c) bail-in provisions. See id. at 45.
• 211
  See supra note 206 and accompanying text.
• 212
  586 F. Supp. 3d 893, 899 (E.D. Ark. 2022).
• 213
  Two Justices have recently expressed interest in whether Section 2 permits private parties to sue. See Brnovich v. Democratic Nat’l Comm., 141 S. Ct. 2321, 2350 (2021) (Gorsuch, J., concurring) (“Our cases have assumed—without deciding—that the Voting Rights Act of 1965 furnishes an implied cause of action under § 2.”); see also Allen v. Milligan, 599 U.S. 1, 90 n.22 (2023) (Thomas, J., dissenting) (“The Court does not address whether § 2 contains a private right of action, an issue that was argued below but was not raised in this Court.”). Cf. City of Mobile v. Bolden, 446 U.S. 55, 60 (1980) (plurality opinion) (“[a]ssuming, for present purposes, that there exists a private right of action to enforce” Section 2).
• 214
  52 U.S.C. § 10302(a). § 10302(b) and § 10302(c) contain identical phrasing.
• 215
  Arkansas NAACP, 586 F. Supp. 3d at 921.
• 216
  Id. at 910; see also Reno v. Bossier Par. Sch. Bd., 520 U.S. 471, 482 (1997) (“Because now the Constitution requires a showing of intent that § 2 does not, a violation of § 2 is no longer a fortiori a violation of the Constitution.”); see also Nicholas O. Stephanopoulos, Disparate Impact, Unified Law, 128 Yale L.J. 1566, 1593 (2019) (noting that Section 2 “prohibits a broad swath of conduct that is constitutionally innocuous:  government activity that lacks a discriminatory purpose but produces a disparate impact.”).
• 217
  Arkansas NAACP, 586 F. Supp. 3d at 921.
• 218
  Id. at 921–22.
• 219
  Of course, the judiciary itself might resolve whether private parties may enforce Section 2. See, e.g., Turtle Mountain Band of Chippewa Indians v. Jaeger, No. 3:22-CV-22, 2022 WL 2528256, at *6 (D.N.D. July 7, 2022) (“Because this Court finds that Section 2 may be enforced through [42 U.S.C. § 1983], the Court need not decide whether Section 2 of the VRA, standing alone, contains an implied private right of action.”).  But any such resolution seems destined to take time.  Congress should immediately address the issue.
• 220
  For a short summary of some VRA proposals, see L. Paige. Whitaker, Cong. Rsch. Serv., Voting Rights Act:  Section 3(c) “Bail-In” Provision 4–5 (2022).
• 221
  When Section 2 merely “restated the prohibitions already contained in the Fifteenth Amendment,” the statute caused little controversy. See City of Mobile v. Bolden, 446 U.S. 55, 61 (1980) (plurality opinion).  Today, restoring an Intent Test to the statute would align the VRA with the Constitution.
• 222
  Id.
• 223
  See Voting Rights Act Amendments of 1975, Pub. L. No. 94-73, § 203, 89 Stat. 400, 401 (1975) (originally codified at 42 U.S.C. § 1973b(f)(1), and now codified at 52 U.S.C. § 10303(f)(1)).
• 224
  Id.
• 225
  Id. at § 301, 89 Stat. 402–03 (1975). The ban on English-only elections applies under specified circumstances.
• 226
  See id. at § 203, 89 Stat. 401.
• 227
  See id. (“No voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote because he is a member of a language minority group.”).
• 228
  See id. at § 206, 89 Stat. 402 (1975) (amending Section 2 such that it protects against laws that are “in contravention of the guarantees set forth in section 4(f)(2)”).
• 229
  See City of Mobile v. Bolden, 446 U.S. 55, 61 (1980) (plurality opinion) (interpreting pre-amendment version of Section 2 to reach intentional discrimination claims).
• 230
  See 52 U.S.C. § 10303(f)(2) (prohibiting laws that “deny or abridge” the rights of language minorities).  The language “deny or abridge,” in the Fifteenth Amendment and in the pre-1982 version of Section 2, has been understood to reach intentional discrimination. See Bolden, 446 U.S. at 61–62 (1980).
• 231
  In the past, the Court has adopted a flexible approach towards private actions under the VRA. See Allen v. State Bd. of Elections, 393 U.S. 544, 557 (1969) (finding that the VRA supported private actions related to Section 5 because “[w]e have previously held that a federal statute passed to protect a class of citizens, although not specifically authorizing members of the protected class to institute suit, nevertheless implied a private right of action”).  Today, the Court adopts a more cautious approach towards implied private actions. See, e.g., Alexander v. Sandoval, 532 U.S. 275, 286–88 (2001) (emphasizing the role of statutory text).
• 232
  See 52 U.S.C. § 10308(d). The VRA plainly allows the attorney general to seek enforcement of Section 4(f)(2), but it does not have a clear corresponding provision for private persons.  Additionally, it appears that the DOJ treats Section 2 as the principal basis upon which to bring language discrimination claims. See, e.g., United States v. Uvalde Consol. Indep. Sch. Dist., 625 F.2d 547, 554 n.11 (5th Cir. 1980) (noting that the DOJ “might have premised” its lawsuit on Section 4(f)(2), but did so instead under Section 2).
• 233
  “Language minorities” is defined such that it includes several groups of racial minorities. See 52 U.S.C. 10310(c)(3).  Those racial minorities would be able to bring language discrimination claims under an Intent Test, but other minorities would not.
• 234
  See supra note 20 and accompanying text.
• 235
  For discussion of the limited protections that language minorities receive outside of the voting context, see Kiyoko Kamio Knapp, Language Minorities:  Forgotten Victims of Discrimination?, 11 Geo. Immigr. L.J. 747 (1997).
• 236
  See Reno v. Bossier Par. Sch. Bd., 528 U.S. 320, 332 (2000).
• 237
  See Donna F. Coltharp, Comment, Speaking the Language of Exclusion:  How Equal Protection and Fundamental Rights Analyses Permit Language Discrimination, 28 St. Mary’s L.J. 149, 168 (1996) (explaining that “language minorities making equal protection claims are generally stopped well before having to prove intent, because although language minorities share many of the traits of suspect classes, language discrimination nearly always receives minimal scrutiny” (citing Hernandez v. New York, 500 U.S. 352, 371–72 (1991))).
• 238
  See Michael J. Pitts, Redistricting and Discriminatory Purpose, 59 Am. U. L. Rev. 1575, 1581–82 (2010) (“Congress legislatively overruled the Court through an amendment to Section 5 that re-established the federal government’s power under the discriminatory purpose standard.  Even so, what the congressional amendment means for future enforcement of the discriminatory purpose standard remains very much up for grabs.”).
• 239
  The principles of the Section 5 preclearance regime do not necessarily translate identically to issues under Section 2. See Reno, 528 U.S. at 334 (explaining how Section 2 and Section 5 require comparisons to different baselines).
• 240
  528 U.S. 320, 341 (2000); see S. Rep. No. 109-295, at 16 (2006).
• 241
  Voting Rights Acts Amendments of 1982, 42 U.S.C. § 1973(c), 96 Stat. 131, 132.
• 242
  See Bossier, 528 U.S. at 341 (“[W]e hold that §5 does not prohibit preclearance of a redistricting plan enacted with a discriminatory but non-retrogressive purpose.”).
• 243
  See S. Rep. No. 109-295, at 16 (2006) (“The Supreme Court’s decision in [Bossier] has created a strange loophole in the law:  it is possible that the Justice Department or federal court could be required to approve an unconstitutional voting practice ‘taken with the purpose of racial discrimination’. . . . The federal government should not be giving its seal of approval to practices that violate the Constitution.” (quoting Testimony of Nina Perales, Renewing the Temporary Provisions of the Voting Rights Act:  Legislative Options After LULAC v. Perry, Before the Subcomm. on the Const., C.R., and Prop. Rts. of the S. Judiciary Comm., 109th Cong. 2 (2006) (statement of Nina Perales))).
• 244
  Voting Rights Act Reauthorization and Amendments Act of 2006, Pub. L. No. 109-246, § 5, 120 Stat. 577, 580–81 (2006), codified at 52 U.S.C. §§ 10304(c)–(d).
• 245
  52 U.S.C. § 10304(c) (emphasis added); see also Shelby Cnty. v. Holder, 570 U.S. 529, 539 (“Section 5 now forbids voting changes with ‘any discriminatory purpose’ as well as voting changes that diminish the ability of citizens, on account of race, color, or language minority status, ‘to elect their preferred candidates of choice.’” (citation omitted)).
• 246
  52 U.S.C. § 10304(c).
• 247
  The Court has recognized that the Section 5 preclearance regime applies in the vote dilution context. See Allen v. State Bd. of Elections, 393 U.S. 544 (1969).  The Section 5 preclearance regime also contains a special interpretive rule for vote dilution. See Section 5(b), codified at 52 U.S.C. 10304(b); see also S. Rep. No. 109-295, at 18–21 (2006) (explaining how legislators wanted to enact Section 5(b) to overturn the totality-of-circumstances approach adopted in Georgia v. Ashcroft, 539 U.S. 461 (2003)).  For Section 2A, generic language that covers state laws with the “purpose of vote dilution in violation of the Fourteenth Amendment” would provide the simplest fix and avoid any debates over the wisdom of Section 5(b).
• 248
  See Shelby Cnty., 570 U.S. at 557 (finding that existing VRA coverage formula is unconstitutional).
• 249
  See John R. Lewis Voting Rights Advancement Act of 2021, S.4, 117th Cong. (2021); see also John R. Lewis Voting Rights Advancement Act of 2021, H.R.4, 117th Cong. (2021).
• 250
  See S.4 § 101(b) (adding a new Section 2(b) to the VRA that would expressly incorporate the legal standards from Thornburg v. Gingles, 478 U.S. 30 (1986)).
• 251
  See id. § 101(c) (adding a new Section 2(c) to the VRA that would establish vote denial standards different from those in Brnovich v. Democratic Nat’l Comm.,141 S. Ct. 2321 (2021)).
• 252
  See id. at § 101(d) (adding a new Section 2(d) to the VRA that would address intended vote dilution or intended vote denial).
• 253
  See id. (adding a new Section 2(d)(1)).
• 254
  See id. (adding a new Section 2(d)(2)).
• 255
  See id. (adding a new Section 2(d)(2)).
• 256
  See id. (adding a new Section 2(d)(3) that would provide:  “Recent context, including actions by official decisionmakers in prior years or in other contexts preceding the decision responsible for the challenged qualification, prerequisite, standard, practice, or procedure, and including actions by predecessor government actors or individual members of a decision making body, may be relevant to making a determination” about a violation of the Intent Test).
• 257
  See generally L. Paige Whitaker, Cong. Rsch. Serv., IF12015, The John R. Lewis Voting Rights Advancement Act of 2021, S. 4 (117th Congress):  Legal Overview (2022).
• 258
  For some thoughtful criticisms of the Lewis Act, see Matthew Weil & Christopher Thomas, How the Senate Should Fix the House Voting Rights Bill, Roll Call (Aug. 27, 2021), https://rollcall.com/2021/08/27/how-the-senate-should-fix-the-house-voting-rights-bill/.  For coverage of related political battles, see, for example, Carl Hulse, After A Day of Debate, the Voting Rights Bill Is Blocked in the Senate, N.Y. Times (updated Jan. 27, 2022), https://www.nytimes.com/2022/01/19/us/politics/senate-voting-rights-filibuster.html [https://perma.cc/RA8V-JV4M] (discussing challenges to passage of two voting bills, including the Lewis Act).
• 259
  See generally Howell Raines, Voting Rights Act Signed by Reagan, N.Y. Times (June 30, 1982), https://www.nytimes.com/1982/06/30/us/voting-rights-act-signed-by-reagan.html [https://perma.cc/T3A8-K6PM].
• 260
  Baird v. Consol. City of Indianapolis, 976 F.2d 357, 359 (7th Cir. 1992) (referring to the statutory compromise shown by the results-focused test and the proviso on proportional representation).