Abstract

Excerpted From: Nicholas Eubank and Emily Rong Zhang, Section 2 Of The Voting Rights Act And Native Representation, 18 Journal of Legal Analysis 88 (2026) (77 Footnotes) (Full Document)

Oral arguments during the Supreme Courts rehearing of Louisiana v Callais this term confirmed fears among leading commentators that the Court will strike down (or at least significantly cut back on the protections offered by) Section 2 of the Voting Rights Act (?VRA?), the most significant portion of the Act that remains in effect after the Supreme Court struck down the coverage formula (Section 4 of the Act)--and, by extension, the preclearance regime (Section 5) in Shelby County v Holder. There is little doubt that such a decision would be transformative for political representation and districting practices. Whether we are faced with crafting a replacement for Section 2 that is worthy of its legacy, or are considering its continued relevance, understanding the significance of Section 2 requires a more fulsome account of how it has shaped representation through its legal constraints on districting practices in the past and present.

Section 2 has, no doubt, played an important role in enhancing the representation of racial minorities by putting legal limits on practices that have the effect of diluting minority votes: it targets any electoral ?standard, practice, or procedure,? which includes districting in a biased manner or the failure to district at all (i.e. electing representatives at-large), that prevents minority voters from electing their candidates of choice. The core of any Section 2 violation is the presence of racially polarized voting, which describes two nested phenomena: first, that the minority group votes cohesively for its candidate of choice; and second, that the majority group cohesively prefers and votes for a different candidate, such that the minority groups preferred candidate is usually defeated. An important, though not exclusive, remedy under Section 2 is to draw or redraw district boundaries so there are sufficient minority voters in the district for them to elect their candidates of choice. These are referred to, often, in short-hand as either majority-minority districts or minority-opportunity-to-elect districts. This way, the racially polarized voting (which was needed to prove liability under Section 2) no longer interferes with the minority groups ability to elect: even if there is racially polarized voting, the larger number of minority voters in the districts, as compared to majority voters, results in the election of the minoritys candidate of choice.

Using new data and analyses, we shed light on Section 2s effects on an understudied racial minority: Native persons. We investigate the extent to which the representation of Native persons in state legislatures remains influenced by districting practices (and are hence by Section 2). We further investigate existing districts for Native vote dilution in order to understand what Section 2 does--and does not--prevent. If legal reforms, at the federal or state levels, are needed to fill the gap left by Section 2, identifying precisely what and where those gaps are is vital.

This paper sits at the intersection of two literatures. The first, made more urgent by Louisiana v Callais, is one that has long critiqued Section 2s myopic focus on the creation of majority-minority districts. Though Section 2 has been susceptible to many critiques, an important, enduring, and generative strand originating from Lani Guinier highlights the choice that the Act makes to enhance minority voters ability to elect candidates (through compelling the creation of majority-minority districts), which is not the same as, and could produce trade-offs for, minority voters ability to influence politics (Guinier 1989, 1991b, 1992, see also Abrams 1992; Issacharoff 2015). The gravamen of the critique is that the focus on creating majority-minority districts may lead to an overall diminishment of minority political influence if it results in voters being so concentrated in a small number of districts that the benefits of increased descriptive representation do not outweigh the cost of lost political influence over legislators in other districts.

Through a series of decisions that the Court made, elevating formalism over functionalism, the critique became more and more true of how the Act operated (Karlan 1993; Pildes 2001). One of the most important such decisions involved the rejection of a more functional view of Section 2 that would have allowed plaintiffs to bring suits to create coalition districts, i.e. districts in which voters of different racial minorities would constitute a majority. The critique also became more and more true in light of two empirical regularities that have emerged in the last couple of decades (Pildes 2001). Social science evidence emerged, over time, showing that many districts did not necessarily require a majority of minority voters in order to elect minority candidates-of-choice. Nevertheless, ?safe? districts (from the perspective of compliance with the VRA), i.e. districts that have a majority of voters from a single racial minority, became fixtures of districting schemes (Pildes 2001). By investigating where and which districts elect Native representatives in state legislatures, including by taking a close look at majority-Native districts, we are able to evaluate the strength of the tokenism/formalism critique empirically as it applies to an understudied racial minority. Importantly, we evaluate the validity of an alternative explanation for safe majority-Native districts: racial geography. Earlier work does not explicitly discuss the possibility that safe districts may be justified on the ground that they are merely products of where racial minorities live (relative to the majority population), likely because consideration of racial and political geography in redistricting did not fully emerge in the literature until the 2010s. See infra Section 3..

The second literature that we contribute to in this paper is a quite vast one on Section 2s effects on representation of racial minorities, primarily through the creation of mandated majority-minority districts. While this literature furnishes voluminous evidence on how Section 2 enhanced the political representation of racial minorities, that literature is based primarily on the experience of Black and to a lesser extent on Latino voters. Though it is possible, if even likely, that these dynamics in the literature are equally applicable to Native voters, any extension is assumed rather than proven. We thus contribute missing and current analyses on the relationship between districting and the representation of Native persons to this literature.

That literature can be divided into two subsets, each relating to a voting structure that Section 2 reforms. The first subset, one that we do not directly engage with, concerns the conversion of at-large voting schemes to districted elections (with newly created majority-minority districts) that Section 2 mandates. Because when there is highly racially polarized voting, at-large voting schemes can prevent minority voters from electing any candidates of choice, Section 2 intervenes in these instances to require that at least some elected offices be elected from districts, and that those districts be drawn in a way that allows minority voters to elect their candidates of choice. At-large voting schemes were and remain quite common, especially in local governments. And the literature resoundingly makes clear, based largely on the experiences of Black (and to a lesser extent Latino) voters, that Section 2 mandated or encouraged conversion from at-large to districting schemes have helped significantly increase the number of minority representatives elected (sometimes referred to as descriptive representation) (See, e.g. Davidson and Korbel 1981; Engstrom and McDonald 1981; Karnig and Welch 1982; Meier and England 1984; Bullock and MacManus 1993; Trounstine and Valdini 2008; Marschall et al. 2010).

The second subset, the one that we directly engage with, concerns Section 2s intervention in how districts in existing districted schemes, like those for Congress, state legislatures or local districted races, are drawn. Within districted schemes, when the majority voters outnumber minority voters and there is racially polarized voting, minority voters are also unable to elect their candidates-of-choice. Section 2 thus requires that districts be drawn to allow minority voters to elect their candidates-of choice. Here, too, majority-minority districts are also typically what are mandated under Section 2. This literature has similarly found that majority-minority districts have produced tremendous gains in descriptive representation. This conclusion continues to be reinforced in the literature even as new data and techniques have emerged to assess districting practices more systematically and rigorously. For instance, Chen and Stephanopoulos (2021) deploy a randomized redistricting algorithm and find that failing to district in the race-conscious manner as required by Section 2 would result in a diminution of minority ability-to-elect their preferred candidates in the current era (see also Katz et al. 2005).

The ability-to-elect of Black and sometimes Latino voters to elect representatives is usually the main outcome of study in the studies that reach these conclusions. Representation of Native individuals is not usually included in systematic studies of representation across states and contexts. Why not? Perhaps because Native persons constitute, as a purely numerical matter, an ultra-minority. For redistricting to influence representation in the presence of racially polarized voting, a minority group has to be able to at least come close to constituting a majority in the districts in question. And while this is true in some state legislative districts, especially in the Mountain West and in state houses, it is not true for any congressional district in the country. Given the academic literatures (and political discourses) focus on congressional redistricting, Native representation can often be excluded from analyses by design: congressional districts are simply too large for Native populations in any part of the country to come close to a majority. Yet even when studies have considered state legislative redistricting, Native representation is not always included alongside similar analyses for Black and Latino representation, perhaps because the number of state legislative representatives elected from majority Native districts is small by comparison with other racial groups. Perhaps for this same reason, Asian-American representatives have not typically been included in these analyses either and have required their own separate treatment (see Lublin and Wright 2024).

Though one could assume that the many conclusions drawn from the literature on minority representation based on representation of Black and Latino individuals are also true of Native representation as well, doing so would require inferential leaps or untested assumptions. Even in the existing literature, evidence suggests that Section 2 had heterogeneous effects among different racial minorities. For instance, Stephanopoulos (2016) found that Section 2 had different effects on Black as compared to Latino descriptive representation. (Indeed, it also found differences between Black descriptive representation in the South and otherwise.) Whether redistricting has and continues to aid Native representation is its own empirical question that deserves its own empirical investigation. While vote dilution of Native voters comes under the protection of the VRA, it is possible that representational gains for other racial minorities are not replicated for Native voters in many circumstances. Section 5 of the VRA, the provision that prevented retrogression, only applied to jurisdictions covered by the formula in Section 4 of the Act. Among states with significant Native population, only some were covered jurisdictions. Moreover, while Section 2 of the VRA provides another independent legal provision for preventing Native vote dilution, it is enforced only through affirmative litigation. Given the high costs of Section 2 litigation, Elmendorf and Spencer (2015), we do not know whether affected Native voters were always able to bring meritorious cases challenging vote dilution under the Act, let alone prevail on them.

Though systematic evidence on Native representation is sparse, there is plenty in the literature to suggest that at least some of the dynamics described in the literature on the representation of racial minorities as a whole apply or are similar for Native persons. Though the Native voting rights literature is a relatively small one, it can be described as deep (as opposed to wide): there are important works by scholars and lawyers that document, abundantly and exhaustively, the various obstacles that Native persons have faced in seeking political empowerment and representation.

As an initial matter, the literature makes clear that combating vote dilution is only one among many challenges that Native voters face. For instance, Schroedel (2020) describes a variety of historic and current vote suppression and abridgement issues in Indian Country (e.g. language barriers, voter identification laws, long travel times to vote) alongside vote dilution issues. Historic and ongoing problems that Native voters face in exercising their right to vote (succinctly described as vote denial, Tokaji 2006), are of course deeply intertwined with vote dilution; both are strategies to reduce the political power of Native persons.

Among the plethora of obstacles that the literature documents, vote dilution through districting practices stands out as an important and historic obstacle to Native political empowerment--and to representation of Native persons and interests. Several important books have been written on the topic of Native voting rights, and the struggle to be represented, whether produced by at-large voting schemes or through biased district lines, is always included and addressed in each of them. Because these books tend to address lawsuits brought pursuant to Section 2 of the VRA, and because Section 2 claims necessitate an ??intensely local appraisal,?10 they tend to discuss vote dilution--and the transformative effect that these suits have had on enhancing Native representation--within the particular contexts that gave rise to those suits.

To be sure, the purpose of these books has not been to provide a systematic study of all districts at a certain level of government that affect Native persons, but rather to analyze the conditions that give rise to legal challenges and to consider the effects that successful suits have had on representation. But they nevertheless allow us to draw some context-limited but important conclusions: at-large schemes have played an important role in thwarting the election of Native representatives (preferred by cohesive Native voters) in at least a non-trivial number of instances, and that the successful election of many Native representatives can be attributed to the introduction of single-member districts. In brief, redistricting has mattered for producing or enhancing Native representation. McCool et al. (2007)s canonical book on Native voting rights and the VRA canvassed all voting rights litigation brought by or on behalf of Native voters; among them, suits challenging vote dilution through districting practices are legion. Indeed, they found that suits challenging at-large electoral schemes constitute ?the largest category of voting rights cases in Indian Country.?12 McDonald (2010)s book is a collection of specific Section 2 Native vote dilution cases, spanning states including Montana, South Dakota, Colorado, Nebraska, and Wyoming and governments including school districts, city commissions, county commissions, and state legislatures. Through these cases, we see that conversion from at-large schemes or redrawn district lines produced many improvements to Native representation.

Yet, these important contributions still leave many questions unanswered. Even if it can be assumed that Native representation, like the representation of other minorities, has been enhanced by race-conscious districting, exactly where and how much representation has been enhanced or stymied by recent redistricting efforts remains uninvestigated. Perhaps more importantly, these contributions derive from facts and cases from a much earlier era of Section 2 enforcement, when the provision first applied to Native persons. We know little, systematically or not, about the current relationship between Native representation and districting. And yet how much Section 2 and its legal constraints on districting practices currently are or are not relevant for Native representation is a question that is all the more important to pose and answer given the jeopardy that Section 2 itself is in.

The goal of this paper is thus to undertake a dedicated, systematic, and localized analysis of redistrictings current impacts on Native representation at the highest level of districting where it matters (state legislative districts). It assesses districts drawn in the most recent redistricting cycle (based on the 2020 decennial census) as well as the one immediately preceding it (based on the 2010 decennial census) for the simple reason that little is known about these districts during this time period. This paper investigates only state legislative districts and not sub-state levels of representation (e.g. city councils or county commissions) because of the relative ease of data collection: boundaries of state legislative districts are collected by the census bureau and are readily available to researchers, whereas local government district boundaries must be collected individually.

Conclusions drawn about the relationship between districting and Native representation from this paper are limited to the particular context--state legislative districts--that this paper investigates. There is strong reason to believe that Native representation at the substate and local levels is intimately tied to districting practices and it is possible that districting impacts local representation in different and more powerful ways. Researchers have demonstrated that districting reforms led to enhanced local representation for other minority groups. See, e.g. Shah et al. (2013) (demonstrating the strong effect that the VRA has had on Black representation in city councils throughout 1979-2001); (Marschall et al. 2010) (finding similar effects for Black representation on school boards as well). And there are strong reasons to believe that local Native representation has especially benefited from reforming redistricting practices. McCool et al. (2007) document the election of many first Native officials in a variety of local governments [e.g. county commission of San Juan County (New Mexico), San Juan County (Utah), Big Horn County, Roosevelt County, Rosebud County, and Blaine County (Montana); school districts in Navajo County (Arizona), New Mexico]. Future work on Native representation at the substate levels is therefore both sorely needed and likely to reveal large effects from redistricting.

This paper proceeds in three parts. In the first part, to determine how much districting still matters for Native representation, we ask where Native state legislators (and congresspersons) are elected from. We learn that Native representation today does not rely solely on majority-Native districts. (The implication here is that there is not sufficient levels of racially polarized voting to defeat the election of these Native representatives.) But several states, especially those in the Mountain West, still primarily elect Native representatives through majority-Native districts. The second part investigates the majority-Native state legislative districts that elect Native representatives. We learn that though not universally the case, many of these Native ability-to-elect districts comprise significant Native population (often over 70% of the districts population). Combining lessons from the first two parts of the paper, we find that Native representation seems to have a paradoxical reliance on Native district composition: Native representatives are elected at far higher rates in majority-Native districts, but because majority-Native districts are relatively rare, proportionally more Native representatives are elected from non-majority Native districts. In the remainder of the paper, we zero in on majority-Native districts because of concerns that there may be vote dilutive effects from districts with high concentrations of Native voters (conventionally described as ?packing,? where a minority group is too concentrated within certain districts). The third part of the paper tests for the presence of vote dilution more formally by applying a measure called ?dislocation,? adapted from the context of partisanship to the race context. Vitally, this measure takes into account the racial geography (where Native and non-Native populations live) of the relevant districts. We find evidence that at least some majority-Native districts are descriptively, if not legally, packed. We also find evidence that there are Native populations in non-Native-majority districts that are descriptively cracked. These observations lead us to conclude that, though Section 2 has continued relevance for Native representation, it leaves some Native vote dilution effects unresolved.

[ . . . ]

In this paper, we have shown three things about the relationship between Native representation and Section 2. First, Section 2 is not (and was never) the exclusive driver of Native representation. Many Native representatives are and have been elected from states and districts in which Section 2 is or was not, in fact, operational. Second, Section 2 remains an important driver of Native representation in the study states (primarily Mountain West states with significant Native population and a history of Section 2 litigation), although even in these states, proportionally more Native representatives are elected from non-Native-majority districts. Third, in the study states, Section 2 does not address certain vote dilution threats to Native representation. More specifically, that threat is presented primarily in the form of packing in majority-Native districts (who owe their existence to Section 2).

Regardless of whether Section 2 remains, our findings have important implications. If Section 2 needs to be replaced, at the federal or state levels, its replacement should be attune to not only what Section 2 accomplished but also what it did not. And if it survives, the vote dilution consequences observed under the Act should at least be known and investigated.

A key finding from this paper is how much vote dilution can occur for a minority population that is not addressed by Section 2. Because of the extreme numerical minority status of Native persons in the study states, Section 2 is unlikely to support the creation of additional Native-influence, not to mention Native-opportunity-to-elect, districts for a while to come. Indeed, even in the presence of significant population growth, Section 2s protections would not apply simply because the total size of the Native population is relatively small within the state. Without a legal mandate for the creation of influence districts, Native persons may see many of their votes wasted, either through concentration in already bloated Native-majority districts or dispersed in small numbers across several districts.

Though the legal requirements of Section 2 apply uniformly across racial minorities, because racial minorities are not all similarly situated, a requirement like the first Gingles precondition may affect different racial minorities differently. Put more simply, the vote dilution that we find is the result not of disparate treatment under Section 2, but of disparate impact. The Guinier critique that Section 2 privileges ability-to-elect at the expense of influence hits especially hard in this context.

If Section 2 is struck down or significantly narrowed, it will be state VRAs that will have to address vote dilution locally. It is the case that most existing state VRAs already abandon Gingless first prong (Greenwood and Stephanopoulos 2023), likely because it is already considered an onerous requirement: Greenwood and Stephanopoulos (2023) describe it as ?often the highest hurdle for plaintiffs under Section 2?. Our paper provides an additional reason based on distributive justice for the ?renunciation? (Greenwood and Stephanopoulos 2023) of the first Gingles condition: it imposes disparate burdens on racial minorities. Indeed, the hurdle is highest for racial minorities with the smallest populations. To the extent that racial minorities that are an extreme numerical minority are especially in need of remedial statutes like state VRAs to enjoy full and equal political opportunities, or that political influence may be especially meaningful for these groups, our findings provide an independent reason for reconsidering the first Gingles precondition.

Another key consideration in designing Section 2s replacement, if desired, is sensitivity to the underlying racial geography of the relevant state. As our results show, the percentage of Native VAP in a district does not automatically signal vote dilution. Though we generally observed packing in districts with high Native VAP, the relationship between the two was not linear: surprisingly, districts with very high Native VAP percentages were less packed than districts with less. Institutional design choices, like the first condition of Gingles, can produce disparate outcomes depending on the underlying racial geography.

A loss of Section 2 should prompt voting rights scholars to address existing critiques and think creatively and in a nuanced fashion about the right institutional solutions to address vote dilution where it exists. There has been nothing short of revolutionary change in the study of redistricting in the last decade thanks to methodological innovations in detecting and measuring partisan gerrymanders. Among these changes is an understanding of the highly contextual role that political geography plays in the fairness of districting outcomes. That understanding should inform future reform efforts of districting processes and outcomes, not just those relating to partisan gerrymandering. Our findings make clear that efforts to revive or re-produce Section 2 should be guided by nuanced and contextual analysis of effects on all relevant racial minorities. Many have persuasively argued that any replacement for Section 2 (and the VRA more generally) should adopt a different approach (see, e.g. Pildes 2000; Charles and Fuentes-Rohwer 2014, 2017, 2018). This paper does not take a position on which of these approaches is the most feasible or desirable. But it does warn that there are strong reasons to anticipate that even neutral, generally applicable rules and standards may have multifarious effects depending on the racial minority group and depending on the level of districting. These effects should be investigated and understood before or when potentially long-lasting legal and design choices are made.

Nicholas Eubank is affiliated with Duke University.

Emily Rong Zhang is affiliated with UC Berkeley School of Law.