A report of a research project on voting rights litigation under Section 2 of the Voting Rights Act (Section 2), is now available. This project, “The Voting Rights Initiative, Documenting Discrimination, Judicial Findings under Section 2 of the Voting Rights Act since 1982”, also provides what looks like a useful database of the lawsuit materials associated with Section 2 of the the VRA.
Based upon the information available, this looks like an interesting project with an interesting methodology. Here’s the description of their methodology from their website:
The Voting Rights Initiative is a faculty-student research collaborative established in January, 2005 at the University of Michigan Law School. Working under the direction of Professor Ellen Katz, a group of more than 100 Michigan law students set out to document the nature and scope of litigation brought under Section 2 of the Voting Rights Act since 1982.
Researchers began by searching the federal court databases on Westlaw and LexisNexis to identify electronically published decisions addressing a Section 2 claim. To develop this list, researchers searched these databases for every federal court decision that cited 42 U.S.C. § 1973 since June 29, 1982, when Section 2 was amended. The resulting list was then narrowed by identifying cases in which plaintiffs had filed an actual claim under Section 2, and removing all decisions that merely reference Section 2 without involving a claim brought under that provision.
Researchers then located on these databases all related decisions and organized them by lawsuit with a single “litigation” title for quick reference. Within each lawsuit, researchers determined which opinion provided the “final word” for the purposes of this project, since many lawsuits included multiple appeals and remands. The final word case in each lawsuit is usually the last case in the lawsuit that assessed liability on the merits and determined whether Section 2 was violated. If there was no such case to analyze, researchers coded as the final word the last published case in the lawsuit making some other determination for or against the plaintiff, including whether to issue a preliminary injunction, whether to order a settlement, what remedy to order, and whether to grant fees. In these latter cases, the contours of the underlying Section 2 claim group and the court’s analysis of it were often difficult to discern as the reported decision was addressing a distinct question. Still, these cases, especially preliminary injunction cases, sometimes included reference to some Senate Factors or other substantive Section 2 criteria, and where possible researchers documented these findings. Even where nothing more than the fact of decision could be discerned from these decisions, researchers included the lawsuit in the overall list of lawsuits to attempt to give as broad a picture as possible of Section 2 litigation.
Researchers reviewed each case within a litigation string and followed a standard checklist (see Data Key located at www.votingreport.org) to catalogue the information discussed and determine the outcome in each lawsuit analyzed. Researchers recorded which of the nine Senate Factors, if any, the reviewing court found to exist, and whether the court ultimately found a violation of Section 2. Researchers also tracked how courts have treated the so-called “Gingles” threshold test (set forth by the Supreme Court in its 1986 opinion Thornburg v. Gingles), the law or practice challenged in each lawsuit, the implicated governing body, the state of origin, the minority groups bringing the claim, the involvement of expert witnesses, and other basic case data such as the judges and lawyers involved with the case.
Each case was read and catalogued by multiple researchers working independently – then by research directors and then checked for consistency by editors. The case reports are available here.
Since the completion of the case reports, searches have been designed and the database used to document and analyze the particular findings in this report. All of case reports and searches to access this data are available here. This site includes lists of cases, organized by lawsuit and by state, that: identify a violation of Section 2; identify such violations in covered jurisdictions; find each of the Senate Factors; challenge specific types of electoral practices; challenge certain governing bodies; and involve particular minority groups.
It would be interesting to apply such a methodology to other dimensions of election law and litigation, including issues like vote recounts.