Discriminatory Intent Claims Under Section 2 of the Voting Rights Act

Abstract

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