Why Bartlett Is Not the End of Aggregated Minority Group Claims Under the Voting Rights Act

by Scotty Schenck

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Abstract

The 2020 election showed the importance of faith in the democratic system and the ability for citizens to cast a ballot for federal, state, and local races. After the election, state legislatures will be redrawing federal, state, and local electoral districts. Those new districts will affect the voting rights of nearly every American. This Note examines Section 2 of the Voting Rights Act of 1965, which has traditionally afforded minority group members the opportunity to challenge discriminatory electoral policies that thwart the ability “to participate in the political process and to elect representatives of their choice.” This is an important avenue that minority group members can seek to remediate biased districting processes.

Claims brought by one minority group at a time—such as a Black community suing to be a majority in a newly drawn electoral district after being discriminated against in the district drawing process—have been commonplace for several decades. But given the diversifying country, these standard challenges are becoming insufficient. A newer and more controversial theory pursued by litigants under Section 2 is the “aggregated claim”—which is a joint claim brought by two or more minority groups saying essentially, “We’ve been discriminated against collectively.” This Note asks the question of whether aggregated claims are permitted under Section 2 and argues that they are. In particular, this Note examines the impact of a 2009 Supreme Court case, Bartlett v. Strickland, on the viability of aggregated claims, and makes a novel argument based on statutory interpretation that such claims should be permitted.

Why Bartlett Is Not the End of Aggregated Minority Group Claims Under the Voting Rights Act

by Scotty Schenck

Click here for a PDF file of this article

Abstract

The 2020 election showed the importance of faith in the democratic system and the ability for citizens to cast a ballot for federal, state, and local races. After the election, state legislatures will be redrawing federal, state, and local electoral districts. Those new districts will affect the voting rights of nearly every American. This Note examines Section 2 of the Voting Rights Act of 1965, which has traditionally afforded minority group members the opportunity to challenge discriminatory electoral policies that thwart the ability “to participate in the political process and to elect representatives of their choice.” This is an important avenue that minority group members can seek to remediate biased districting processes.

Claims brought by one minority group at a time—such as a Black community suing to be a majority in a newly drawn electoral district after being discriminated against in the district drawing process—have been commonplace for several decades. But given the diversifying country, these standard challenges are becoming insufficient. A newer and more controversial theory pursued by litigants under Section 2 is the “aggregated claim”—which is a joint claim brought by two or more minority groups saying essentially, “We’ve been discriminated against collectively.” This Note asks the question of whether aggregated claims are permitted under Section 2 and argues that they are. In particular, this Note examines the impact of a 2009 Supreme Court case, Bartlett v. Strickland, on the viability of aggregated claims, and makes a novel argument based on statutory interpretation that such claims should be permitted.