Section 2 of the Voting Rights Act prohibits states and their political subdivisions from imposing or applying a voting structure or practice “in a manner which results in a denial or abridgement of the right ... to vote on account of race or color.”
42 U.S.C. § 1973(a). In addition, section 2 provides a cause of action for protected minority groups that can establish, based on the totality of the circumstances, “that [their] members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.”
Id. § 1973(b). Numerically small minority groups have latched onto this broadly-worded “participation” provision as support for the theory that section 2 provides a dilution of minority “influence” cause of action for any protected group that can demonstrate that its members have “less opportunity” than the electorate at large “to participate in the political process.” However, the Supreme Court made clear in
Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986), that “[u]nless minority voters possess
the potential to elect representatives in the absence of the challenged structure or practice, they cannot claim to have been injured by that structure or practice.”
Id. at 51 n. 17, 106 S.Ct. at 2767 n. 17 (emphasis added). This precondition to recovery precludes minority groups from pursuing vote dilution claims unless they can meet some threshold level of numerical substantiality.
See Gingles v. Edmisten, 590 F.Supp. 345, 381 (E.D.N.C.1984) (three-judge panel) (“We are doubtful that either the Supreme Court in developing the dilution concept in constitutional voting rights litigation, or the Congress in embodying it in amended Section 2 of the Voting Rights Act intended an application open-ended as to voter group size. There must obviously be some size (as well as dispersion) limits on those aggregations of voters to whom the concept can be applied.”),
aff'd in part, rev'd in part sub nom., Gingles, 478 U.S. at 50 n. 17, 106 S.Ct. at 2766 n. 17 (holding that a “minority group [that] is so small in relation to the surrounding white population that it could not constitute a majority in a single-member district, ... cannot maintain that [it] would have been able to elect representatives of [its] choice in the absence of the multimember electoral structure”);
see also McGhee v. Granville County, 860 F.2d 110, 119 (4th Cir.1988) (commenting that
Gingles precludes small and unconcentrated minority groups from bringing vote dilution claims).