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Holloway v. City of Virginia Beach (Amicus Brief)

The Brennan Center and the Southern Coalition for Social Justice, in partnership with pro bono counsel Paul Hastings LLP, have filed an amicus brief urging the Fourth Circuit to recognize vote dilution claims from coalitions of multiple nonwhite communities under Section 2 of the Voting Rights Act.

Published: February 17, 2022
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Section 2 of the Voting Rights Act (VRA) ensures communit­ies of color have an equal oppor­tun­ity to parti­cip­ate in the elect­oral process and to elect candid­ates of their choice. This land­mark piece of civil rights legis­la­tion contin­ues to play a key role in ensur­ing that discrim­in­at­ory elect­oral systems do not deprive grow­ing racial minor­it­ies fair elect­oral oppor­tun­it­ies at all levels of govern­ment, includ­ing in the design of districts used for elec­tions.

In 2018, two voters in Virginia Beach, Virginia sued the city under the VRA to chal­lenge its at-large system for elect­ing city coun­cil­mem­bers where every candid­ate runs city­wide rather than in specific districts. The plaintiffs argued that this scheme viol­ated Section 2 because white Virginia Beach voters formed a major­ity bloc that consist­ently opposed candid­ates preferred by Black, Latino, and Asian communit­ies. As a result of this racially polar­ized bloc voting, communit­ies of color have rarely succeeded in secur­ing repres­ent­a­tion on the Virginia Beach City Coun­cil despite consti­tut­ing more than 40 percent of the city’s popu­la­tion (as of the 2020 Census) and voting as a cohes­ive minor­ity coali­tion. In fact, since 1970 only six candid­ates of color have won elec­tions for City Coun­cil.

On March 31, 2021, a U.S. district court in Virginia agreed with plaintiffs and ordered the at-large elec­tion system to be replaced by districts that give minor­ity communit­ies a fair oppor­tun­ity to elect their preferred candid­ates. The city appealed this outcome to the Fourth Circuit Court of Appeals, arguing, among other things, that Section 2 cannot be invoked by a minor­ity coali­tion.

On Febru­ary 14, 2022, the Bren­nan Center and the South­ern Coali­tion for Social Justice, in part­ner­ship with pro bono coun­sel Paul Hast­ings LLP filed an amicus brief in support of plaintiffs-appellees. The issue of whether the minor­ity coali­tion districts are covered by the Voting Rights Act is a ques­tion of first impres­sion for the Fourth Circuit.

The brief raised three points to support the applic­a­tion of Section 2 to minor­ity coali­tions.

First, the text of Section 2 offers protec­tions to anyone denied equal voting rights on account of race, color, or language minor­ity status. Noth­ing in the stat­ute limits its reach to one minor­ity group. Instead, prop­erly under­stood, the VRA is avail­able to any nonwhite voters that are suffer­ing similar discrim­in­at­ory harms and thus suffer the same injury. This read­ing is also aligned with the purpose of the VRA: to remedy the impact of past and ongo­ing discrim­in­a­tion, which often affects multiple nonwhite communit­ies.

Second, Congress demon­strated its intent to protect multiracial coali­tions by repeatedly expand­ing the reach of the VRA every time it revis­ited the stat­ute. Congress, like­wise, did not change the language when federal appel­late courts began allow­ing multiracial coali­tions to bring suit. Plus, at the time Section 2 went into effect, the U.S. Depart­ment of Justice regu­larly enforced VRA’s Section 5 protec­tions on behalf of multiracial coali­tions. This closely related provi­sion uses near-identical language to define its reach, further support­ing the conclu­sion that Congress inten­ded Section 2 to cover minor­ity coali­tions.

Finally, the fact-intens­ive nature of the Section 2 inquiry makes it more than capable of resolv­ing claims raised by minor­ity coali­tions. Estab­lish­ing liab­il­ity under the VRA has long required plaintiffs to demon­strate that minor­ity voters are suffi­ciently numer­ous, polit­ic­ally cohes­ive, and that they face persist­ent oppos­i­tion from their white coun­ter­parts plus estab­lish a history of discrim­in­a­tion that creates persist­ent racial dispar­it­ies in polit­ical and social outcomes. These factors apply equally well in lawsuits where multiple minor­ity groups claim discrim­in­a­tion.

On Febru­ary 17, 2022, plaintiffs-appellees submit­ted a letter to the Fourth Circuit stat­ing that both parties contend that the matter is now moot because the City of Virginia Beach received preclear­ance of a remedial plan under the Virginia Voting Rights Act. The City’s plan elim­in­ated the at-large scheme and estab­lished oppor­tun­ity-to-elect districts.

Plaintiffs-appellees have asked the Fourth Circuit to consider supple­mental brief­ing outlining the consequences of moot­ness due to the VVRA. For now, these legal protec­tions have elim­in­ated one crucial barrier for communit­ies in Virginia Beach to elect the candid­ates of their choice.