Amicus Curiae Brief — Don Higginson, Petitioner v. Xavier Becerra, Attorney General of California, et al.

Supreme Court briefMay 5, 2020

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No. 19-1199

In The

Supreme Court of the United States

____________________

DON HIGGINSON,

Petitioner,

XAVIER BECERRA, in his official capacity as the

Attorney General of California; CITY OF POWAY,

Respondents.

On Petition for Writ of Certiorari to

the United States Court of Appeals

for the Ninth Circuit

BRIEF AMICUS CURIAE OF PACIFIC

LEGAL FOUNDATION, CATO INSTITUTE,

CENTER FOR EQUAL OPPORTUNITY,

PROJECT 21, REASON FOUNDATION, AND

INDIVIDUAL RIGHTS FOUNDATION IN

SUPPORT OF PETITIONER

ILYA SHAPIRO

Cato Institute

1000 Mass. Ave. N.W.

Washington, DC 20001

Telephone: (202) 842-0200

ishapiro@cato.org

CHRISTOPHER M. KIESER

Counsel of Record

JOSHUA P. THOMPSON

Pacific Legal Foundation

930 G Street

Sacramento, California 95814

Telephone: (916) 419-7111

ckieser@pacificlegal.org

Counsel for Amici Curiae

QUESTION PRESENTED

Whether the California Voting Rights Act violates

the Equal Protection Clause of the Fourteenth

Amendment.

TABLE OF CONTENTS

QUESTION PRESENTED .......................................... i

TABLE OF AUTHORITIES ...................................... iii

IDENTITY AND INTEREST

OF AMICI CURIAE .................................................... 1

INTRODUCTION AND

SUMMARY OF ARGUMENT .................................... 3

Vote-Dilution Claims Raise Serious Equal

Protection Concerns ......................................... 6

The Equal Protection Clause

Sharply Restricts the Government’s

Consideration of Race ................................. 7

The Prohibition of Vote Dilution

Transforms Individual Rights

into Group Quotas .................................... 11

The Gingles Safeguards Limit the

Pervasiveness of Race-Based Districting,

But Do Not Eliminate It ........................... 17

II. The CVRA Repudiates a Key Gingles

Safeguard and Challenges the Outer

Limits of Vote Dilution Doctrine ................... 19

CONCLUSION.......................................................... 22

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Adarand Constructors, Inc. v. Pena,

515 U.S. 200 (1995) ......................................... 8, 9

Ala. Legislative Black Caucus v. Alabama,

575 U.S. 254 (2015) ..............................1, 2, 14-15

Bartlett v. Strickland,

556 U.S. 1 (2009) ........................ 1, 2, 4, 14, 17-18

Bush v. Vera, 517 U.S. 952 (1996) ............................ 1

Fisher v. Univ. of Tex. at Austin,

136 S. Ct. 2198 (2016) ......................................... 3

Fisher v. Univ. of Tex. at Austin,

570 U.S. 297 (2013) ......................................... 3, 9

Gratz v. Bollinger, 539 U.S. 244 (2003) ............. 3, 10

Grutter v. Bollinger,

539 U.S. 306 (2003) ................................. 9, 10, 19

Holder v. Hall,

512 U.S. 874 (1994) ...................................... 4, 15

Johnson v. De Grandy,

512 U.S. 997 (1994) ......................................15-16

League of United Latin Am. Citizens

(LULAC) v. Perry,

548 U.S. 399 (2006) ........................ 2, 4, 13-15, 22

Metro Broadcasting, Inc. v. FCC,

497 U.S. 547 (1990) ....................................... 5, 10

Miller v. Johnson, 515 U.S. 900 (1995) .................... 8

Parents Involved in Cmty. Schs. v. Seattle

Sch. Dist. No. 1, 551 U.S. 701 (2007) ........ 8, 9, 10

Parham v. Hughes, 441 U.S. 347 (1979) .................. 8

Plessy v. Ferguson, 163 U.S. 537 (1896)................... 5

Regents of Univ. of Cal. v. Bakke,

438 U.S. 265 (1978) ........................................... 10

Ricci v. DeStefano, 557 U.S. 557 (2009) ................... 3

Richmond v. J.A. Croson Co.,

488 U.S. 469 (1989) ....................................... 8, 10

Rucho v. Common Cause,

139 S. Ct. 2484 (2019) ....................................... 12

Schuette v. Coalition to Defend Affirmative

Action, 572 U.S. 291 (2014) ................................. 3

Shaw v. Hunt, 517 U.S. 899 (1996) .................... 1, 16

Shaw v. Reno, 509 U.S. 630 (1993) ........................ 18

Shelby Cty. v. Holder, 570 U.S. 529 (2013) .......... 1, 2

Thornburg v. Gingles,

478 U.S. 30 (1986) ............................... 4, 7, 15, 16

Vieth v. Jubelirer, 541 U.S. 267 (2004) .................. 12

Vill. of Arlington Heights v. Metropolitan

Housing Dev. Corp., 429 U.S. 252 (1977) ......... 19

Watson v. Fort Worth Bank & Trust,

487 U.S. 977 (1988) ........................................... 10

Statutes

52 U.S.C. § 10301 ...................................................... 6

52 U.S.C. § 10301(a) ................................................. 7

Cal. Elec. Code § 10010(e)(1) .................................. 20

Cal. Elec. Code § 14027 .......................................... 20

Cal. Elec. Code § 14028(a) ...................................... 20

Cal. Elec. Code § 14029 .......................................... 21

Voting Rights Act Section 2(a) ................................. 7

Other Authorities

Amy, Douglas J., How Proportional

Representation Would Finally Solve Our

Redistricting and Gerrymandering

Problems, available at

https://www.fairvote.org/how_proportion

al_representation_would_finally

(last visited May 4, 2020) .................................. 11

Gerstmann, Evan & Shortell, Christopher,

The Many Faces of Strict Scrutiny: How

the Supreme Court Changes the Rules in

Race Cases, 72 U. Pitt. L. Rev. 1 (2010) ........... 19

Lowenstein, Daniel Hays, You Don’t Have to

Be Liberal to Hate Racial

Gerrymandering Cases,

50 Stan. L. Rev. 779 (1998) ............................... 11

O’Connor-Ratcliffe, Michelle E., Colorblind

Redistricting: Racial Proxies as a

Solution to the Court’s Voting Rights Act

Quandry, 29 Hastings Const. L.Q. 61

(2001) ................................................................. 16

IDENTITY AND INTEREST OF AMICI CURIAE

Pacific Legal Foundation (PLF), Cato Institute,

Center for Equal Opportunity (CEO), Project 21,

Reason

Foundation,

and

Individual

Rights

Foundation (IRF) respectfully submit this brief in

support of Petitioner Don Higginson. 1

PLF is a nonprofit, tax-exempt corporation

organized under the laws of California for the purpose

of litigating matters affecting the public interest. In

support of its Equality Under the Law practice group,

PLF supports a color-blind interpretation of the

United States Constitution and opposes race-based

government decisionmaking. PLF has participated as

amicus curiae in this Court’s major voting rights and

racial gerrymandering cases. See, e.g., Ala. Legislative

Black Caucus v. Alabama, 575 U.S. 254 (2015); Shelby

Cty. v. Holder, 570 U.S. 529 (2013); Bartlett v.

Strickland, 556 U.S. 1 (2009); Bush v. Vera, 517 U.S.

952 (1996); Shaw v. Hunt, 517 U.S. 899 (1996). PLF

submits this brief because it believes its public policy

perspective and litigation experience in the area of

voting rights will provide an additional viewpoint

with respect to the issue presented.

The Cato Institute is a nonpartisan public-policy

research foundation established in 1977 and

dedicated to advancing the principles of individual

1 Pursuant to Rule 37.2(a), all parties have consented to the filing

of this brief.

Pursuant to Rule 37.6, Amici Curiae affirm that no counsel

for any party authored this brief in whole or in part, and no

counsel or party made a monetary contribution intended to fund

the preparation or submission of this brief. No person other than

Amici Curiae, their members, or their counsel made a monetary

contribution to its preparation or submission.

liberty, free markets, and limited government. Cato’s

Robert A. Levy Center for Constitutional Studies was

established in 1989 to help restore the principles of

limited constitutional government that are the

foundation of liberty. Toward those ends, Cato

publishes books and studies, conducts conferences,

and produces the annual Cato Supreme Court Review.

CEO is a nonprofit research and educational

organization devoted to issues of race and ethnicity,

such as civil rights, bilingual education, immigration,

and assimilation. CEO supports color-blind public

policies and seeks to block the expansion of racial

preferences in areas such as employment, education,

and voting. CEO has participated as amicus curiae in

past voting rights cases. See, e.g., Ala. Legislative

Black Caucus, 575 U.S. 254; Shelby Cty., 570 U.S. 529;

Bartlett, 556 U.S. 1; and League of United Latin Am.

Citizens (LULAC) v. Perry, 548 U.S. 399 (2006).

Project 21, the National Leadership Network of

Black Conservatives, is an initiative of the National

Center for Public Policy Research to promote the

views of African-Americans whose entrepreneurial

spirit, dedication to family, and commitment to

individual responsibility have not traditionally been

echoed by the nation’s civil rights establishment.

Project 21 has participated as amicus curiae in past

significant voting rights cases. See, e.g., Ala.

Legislative Black Caucus, 575 U.S. 254; Shelby Cty.,

570 U.S. 529; Bartlett, 556 U.S. 1.

Reason Foundation (Reason) is a national,

nonpartisan, and nonprofit public-policy think tank,

founded in 1978. Reason’s mission is to advance a free

society by applying and promoting libertarian

principles and policies—including free markets,

individual liberty, and the rule of law. Reason

supports dynamic market-based public policies that

allow and encourage individuals and voluntary

institutions to flourish. Reason advances its mission

by publishing Reason magazine, as well as

commentary on its websites, and by issuing policy

research reports. To further Reason’s commitment to

“Free Minds and Free Markets” and equality before

the law, Reason selectively participates as amicus

curiae in cases raising significant constitutional

issues and has filed amicus curiae briefs in numerous

cases involving racial classifications, including

Schuette v. Coalition to Defend Affirmative Action, 572

U.S. 291 (2014); Fisher v. Univ. of Tex. at Austin, 570

U.S. 297 (2013) (Fisher I); Fisher v. Univ. of Tex. at

Austin, 136 S. Ct. 2198 (2016) (Fisher II); Ricci v.

DeStefano, 557 U.S. 557 (2009); and Gratz v.

Bollinger, 539 U.S. 244 (2003).

The IRF was founded in 1993 and is the legal arm

of the David Horowitz Freedom Center. The IRF is

dedicated to supporting free speech, associational

rights, and equality of rights. To further these goals,

the IRF has filed amicus curiae briefs in cases

involving fundamental equal protection issues,

including Schuette, 572 U.S. at 291; Fisher I, 570 U.S.

at 297; Fisher II, 136 S. Ct. at 2198; and Ricci, 557

U.S. at 557.

INTRODUCTION AND

SUMMARY OF ARGUMENT

Since this Court first interpreted Section 2 of the

Voting Rights Act to encompass claims of vote

dilution, multiple Members of the Court have raised

concerns that such an interpretation demanded the

imposition of racial proportionality in districting. See

Holder v. Hall, 512 U.S. 874, 944 (1994) (Thomas, J.,

concurring in the judgment); League of United Latin

Am. Citizens v. Perry, 548 U.S. 399, 512 (2006) (Scalia,

J., concurring in the judgment in part and dissenting

in part). While the Court’s Voting Rights Act

jurisprudence continues to mandate the rough

balancing of political power by race, the Court has

curtailed government racial classifications in all other

aspects of society—from contracting, to education, to

criminal justice. The Court can no longer ignore the

reality that interpreting Section 2 so as to prohibit

vote dilution requires government actors to consider

race when drawing electoral districts. This case,

concerning the constitutionality of the California

Voting Rights Act, illuminates this problem. The

Court must intervene, at the very least to enforce

meaningful limits on vote dilution doctrine so it does

not become a de facto racial quota.

The Court’s seminal vote-dilution case, Thornburg

v. Gingles, 478 U.S. 30, 50-51 (1986), requires

plaintiffs to prove three “preconditions” in order to

proceed to the “totality of the circumstances” inquiry

set out by Section 2(b) of the federal Voting Rights Act:

(1) that members of the racial minority are sufficiently

large and compact to form a majority of voters in a

single electoral district; (2) that said minority group is

“politically cohesive”; and, (3) that members of the

racial majority usually are able to out-vote the

minority and prevent the minority group from electing

its preferred candidates. These preconditions are

meant to ensure that federal law does not entitle

“minority groups to the maximum possible voting

strength.” Bartlett v. Strickland, 556 U.S. 1, 16 (2009)

(plurality opinion).

Nevertheless, vote dilution claims require federal

courts to determine whether racial groups have

sufficient political power. That very exercise is

troubling: the right to vote, like the rights guaranteed

by the Equal Protection Clause, is an individual right.

Vote dilution claims, however, treat people simply as

members of their racial group and further “the

demeaning notion that members of the defined racial

groups ascribe to certain ‘minority views’ that must be

different from those of other citizens.” Metro

Broadcasting, Inc. v. FCC, 497 U.S. 547, 636 (1990)

(Kennedy, J., dissenting). Unfortunately, such an

understanding slows our society’s progress towards

the ultimate goal of rendering race irrelevant to public

life, all the while deterring the Court from reaching

the promise of the color-blind Constitution. See Plessy

v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J.,

dissenting). To avoid conflict with these basic

principles, courts ought to limit the enforcement of

voting rights to redress violations of the individual

right to vote. Individuals, not racial groups, cast

ballots. No “racial group”—however perniciously and

stereotypically one defines the “group”—is entitled to

any particular amount of representation.

With all the problems that vote dilution doctrine

has brought, this Court’s intervention is necessary

here, if not to repudiate the theory altogether, at least

to enforce its outer limits. At issue here is the

California Voting Rights Act (CVRA), enacted in 2002

in response to what state legislators saw as this

Court’s restrictive interpretation of Section 2 in

dilution cases. Rather than strengthening the

safeguards to protect against race-based action, the

CVRA eliminates the Gingles requirement that a

plaintiff prove that the relevant minority group is

sufficiently large and compact. And because the CVRA

includes a strong fee-shifting provision, it effectively

requires California cities to abandon at-large or multimember district systems in favor of single-member

districts based merely upon the existence of raciallypolarized voting. Put another way, the CVRA requires

municipalities to alter their entire system of choosing

representatives to ensure that racial groups may elect

a “group” representative. Without even the minimum

Gingles safeguards, the CVRA extends the worst

aspects of this Court’s Section 2 precedent by

mandating race-based voting districts and enshrining

in law the idea that individuals of the same race think

alike.

This Court should grant the petition for certiorari

to reconsider the propriety of the theory of vote

dilution—or at least to limit its proliferation outside

the confines of Section 2—and repudiate California’s

racial gerrymandering mandate.

Vote-Dilution Claims Raise Serious Equal

Protection Concerns

This case concerns the CVRA. But to understand

the problems inherent in the CVRA, it is necessary to

explore the starting point for that legislation: Section

2 of the federal Voting Rights Act, 52 U.S.C. § 10301.

After all, the CVRA did not invent vote dilution

claims, nor did it create the inherent conflict between

the prohibition of vote dilution for racial groups and

the individual’s right to equal protection of the laws.

This case demands the Court’s attention not only

because of the CVRA’s rejection of a basic Gingles

safeguard, but also because it highlights the issues

with vote-dilution more generally. If left unchecked,

the prohibition on vote dilution enforced in the name

of voting rights threatens to become a nationwide

racial quota for the drawing of electoral districts.

Section 2(a) of the Voting Rights Act prohibits the

imposition of any “voting qualification or prerequisite

to voting or standard, practice, or procedure” that

“results in a denial or abridgement of the right of any

citizen of the United States to vote on account of race

or color.” 52 U.S.C. § 10301(a). Subsection (b) explains

that a violation of Section 2 occurs when “the political

processes leading to nomination or election . . . are not

equally open to participation by members of a class of

citizens protected” by the statute, such that “its

members have less opportunity than other members

of the electorate to participate in the political process

and to elect representatives of their choice.” Bolstered

by a Senate committee report, this Court has

interpreted Section 2 to encompass claims of vote

dilution through the practice of districting or the use

of at-large voting systems on the theory that “where

minority and majority voters consistently prefer

different candidates, the majority, by virtue of its

numerical superiority, will regularly defeat the

choices of minority voters.” Gingles, 478 U.S. at 48.

Such arrangements may be invalidated even without

a showing of discriminatory intent. See id. at 43-44.

The Equal Protection Clause Sharply

Restricts the Government’s

Consideration of Race

Comparing the current vote-dilution paradigm to

government consideration of race in areas such as

education or contracting illuminates the problem.

Generally, where a racial classification is designed to

distribute benefits and burdens based on race, this

Court’s precedents require it to satisfy strict scrutiny.

That is, the classification must be narrowly tailored to

further a compelling state interest. Adarand

Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995);

Parents Involved in Cmty. Schs. v. Seattle Sch. Dist.

No. 1, 551 U.S. 701, 720 (2007).

Racial classifications “are inherently suspect.”

Parham v. Hughes, 441 U.S. 347, 351 (1979). We

consider them equally suspect “regardless of ‘the race

of those burdened or benefited by a particular

classification.’” Miller v. Johnson, 515 U.S. 900, 904

(1995) (quoting Richmond v. J.A. Croson Co., 488 U.S.

469, 494 (1989) (plurality opinion)). This standard is

necessary because relaxing judicial scrutiny for racial

classifications thought “benign” would “effectively

assure[] that race will always be relevant in American

life, and that the ‘ultimate goal’ of ‘eliminat[ing]

entirely from governmental decisionmaking such

irrelevant factors as a human being’s race,’ will never

be achieved.” Croson, 488 U.S. at 495 (quoting Wygant

v. Jackson Bd. of Educ., 476 U.S. 267, 320 (1986)

(Stevens, J., dissenting)). Strict scrutiny serves the

important purpose of limiting, to the extent possible,

government use of race until the day racial

classifications may be abolished entirely.

With that ultimate goal in mind, this Court has

sharply limited the power of government to consider

race in doling out benefits and burdens. In

government contracting, jurisdictions may use racial

classifications only “when they possess evidence that

their own spending practices are exacerbating a

pattern of prior discrimination” and they are able to

“identify that discrimination, public or private, with

some specificity.” Croson, 488 U.S. at 504 (majority

opinion). In education, public school districts may only

use race to remedy their own past intentional

discrimination. Parents Involved, 551 U.S. at 721 (“the

harm being remedied by mandatory desegregation

plans is the harm that is traceable to segregation”). So

too with public universities, although they may also

consider race as one of many factors in admissions in

order to obtain the benefits of a diverse student body.

Grutter v. Bollinger, 539 U.S. 306, 328, 334 (2003);

Fisher v. Univ. of Tex. at Austin, 570 U.S. 297, 313

(2013). But even in those limited circumstances, the

Court has recognized the importance of limiting the

use of race both in time and scope. See Grutter, 539

U.S. at 334 (rejecting quotas, set-asides, and other

mechanisms designed to perform racial balancing); id.

at 343 (“We expect that 25 years from now, the use of

racial preferences will no longer be necessary to

further the interest approved today.”); Parents

Involved, 551 U.S. at 723-25 (declining to apply

Grutter to K-12 schools and emphasizing that race can

never be the determinative factor for school

assignments); Fisher, 570 U.S. at 313 (rejecting

deference to a university’s good faith assertion that

racial preferences were necessary, and emphasizing

that race-conscious plans must be “sufficiently

flexible,” “limited in time,” and enacted only after a

serious consideration of race-neutral alternatives).

Two related principles emerge from this precedent.

First, the right to be free from racial discrimination

belongs to the individual, not to a racial “group.” See

Adarand, 515 U.S. at 227. And second, racial

balancing for its own sake is “patently

unconstitutional.” Fisher, 570 U.S. at 311. In

accordance with these ideas, the Court has resisted

government efforts to impose racial quotas, holding

them flatly prohibited by the Equal Protection Clause.

See, e.g., Croson, 488 U.S. at 507 (“[T]he 30% quota

cannot be said to be narrowly tailored to any goal,

except perhaps outright racial balancing.”); Gratz v.

Bollinger, 539 U.S. 244, 270 (2003) (admissions policy

granting racial groups one-fifth of the total points

required for admission is not narrowly tailored to any

interest in obtaining a diverse student body); see also

id. at 293 (Souter, J., dissenting) (noting that “Justice

Powell’s opinion in Regents of Univ. of Cal. v. Bakke,

438 U.S. 265 (1978), rules out a racial quota or setaside”). Similarly, it has declined to assume that

racial discrimination is the cause of racial disparities

which may result from private choice or simply the

laws of chance. Croson, 488 U.S. at 507 (deriding as

“completely unrealistic” the “assumption that

minorities will choose a particular trade in lockstep

proportion to their representation in the local

population”); Watson v. Fort Worth Bank & Trust, 487

U.S. 977, 992 (1988) (plurality opinion) (“It is

completely unrealistic to assume that unlawful

discrimination is the sole cause of people failing to

gravitate to jobs and employers in accord with the

laws of chance.”). At bottom, we do not in this country

assume that a person’s race dictates his views or

decisions. See Metro Broadcasting, 497 U.S. at 636.

That is why “[a]n interest ‘linked to nothing other

than proportional representation of various races’”

simply cannot stand. Parents Involved, 551 U.S. at

731 (plurality opinion) (quoting Metro Broadcasting,

497 U.S. at 614 (O’Connor, J., dissenting)).

Members of the Court continue to debate the

extent to which the Court has followed these

principles in particular cases. See generally Grutter,

539 U.S. at 349-78 (Thomas, J., concurring in part and

dissenting in part); id. at 387-95 (Kennedy, J.,

dissenting). But enunciation of the principles has been

consistent across racial discrimination cases except

those involving the drawing of electoral districts. In

such cases, instead of limiting the use of race to

narrow circumstances deemed “compelling,” this

Court has interpreted Section 2 of the Voting Rights

Act to require states and political subdivisions to

engage in race-conscious districting. See Daniel Hays

Lowenstein, You Don’t Have to Be Liberal to Hate

Racial Gerrymandering Cases, 50 Stan. L. Rev. 779,

825 (1998) (“So long as section 2 and section 5 are in

effect and applicable to districting, race is a privileged

criterion. The legislature and everyone who

participates in the process must start with race.”). As

described below, this line of precedent is in significant

tension with the Equal Protection Clause’s mandate

that the government treat everyone equally without

respect to race.

The Prohibition of Vote Dilution

Transforms Individual Rights into

Group Quotas

The supposed evil of vote dilution is conceptually

easy to understand—many people have an intuitive

sense that representation of a particular group should

be proportional to the group’s size in the electorate.

See, e.g., Douglas J. Amy, How Proportional

Representation Would Finally Solve Our Redistricting

and Gerrymandering Problems, available at

https://www.fairvote.org/how_proportional_represent

ation_would_finally (last visited May 4, 2020). And

one can easily see how the use of at-large elections or

multi-member districts would lessen the power of the

political minority in a jurisdiction. If a hypothetical

city is comprised of 60% Democrats and 40%

Republicans, an at-large system would usually elect

all Democrats to the city council. On the other hand,

single-member districting might give Republicans

some seats, depending on how voters were distributed

across the city. In this situation, if the Democrats on

the city council voted to institute at-large voting to

increase their partisan advantage, city Republicans

could argue that their votes had been diluted—after

all, despite comprising 40% of the city’s voters, they

might be completely shut out of representation. See

Vieth v. Jubelirer, 541 U.S. 267, 354 (2004) (Kennedy,

J., concurring in the judgment) (“The harm from

partisan gerrymandering is . . . a species of vote

dilution . . . .”). Yet these voters have no federal

remedy for such an action, as this Court held last

Term that partisan gerrymandering claims are nonjusticiable. Rucho v. Common Cause, 139 S. Ct. 2484

(2019). As a result, partisans have no protectable right

to proportional or even roughly proportional

representation, and individuals have no right to cast

a vote in a particular type of district.

The situation changes, however, once race enters

the picture. Although federal courts lack the power to

redress even intentional political gerrymandering,

they have enormous power to redress unintentional

“dilution” of racial groups’ voting power. For example,

take the same hypothetical city, but instead of

classifying the voters by political affiliation, consider

their race. All of a sudden, even in the absence of any

evidence of racial discrimination, courts become more

than willing to enforce near proportional

representation. Take the case of single-member

districts of the U.S. House of Representatives—where

such districting is required by law. In states where

race and party are heavily correlated, the same

political exercise described in the previous paragraph

becomes actionable, even if race was not a factor in the

line drawing. And it need not be remotely as extreme

as eliminating representation for a particular racial

group. Indeed, any scheme that does not result in

proportional representation by race is suspect under

Section 2 of the Voting Rights Act. 2

Courts have labored to describe the proper racial

composition of single-member districts under Section

2. One prominent example is League of United Latin

American Citizens (LULAC), where the plaintiffs

argued that a change in the composition of Texas’ 23rd

Congressional District diluted the votes of Latino

voters. 548 U.S. at 423-24 (majority opinion). The

Latino share of the citizen voting-age population

indeed fell from 57.5% to 46% under the challenged

map. Id. at 427. In an attempt to avoid a Section 2

violation, Texas noted that it had still drawn six socalled “Latino opportunity districts” by replacing the

23rd District with the 25th. Id. at 429. But this Court

rejected Texas’ argument that it could replace a

Latino opportunity district with another one, holding

that this is permitted only where “the racial group in

each area had a § 2 right and both could not be

accommodated.” Id. The Court then found a Section 2

violation substantially based on a finding that Latinos

To be sure, intentionally drawing district lines in order to

discriminate against voters of a particular race—or instituting

an at-large voting scheme for the same purpose—is suspect

under either Section 2 or the Equal Protection Clause. But see

infra I.C (discussing how the Court accommodates a certain

amount of racial gerrymandering to accommodate vote-dilution

claims). The term “vote dilution,” as used here and in the case

law, refers only to those cases where discriminatory intent is

absent.

in Texas were “two districts shy of proportional

representation.” Id. at 439.

Under this theory of Section 2, the individual right

to vote is effectively transformed into a group right to

“roughly proportional” representation. To be sure, the

LULAC Court described the purported right to a nondiluted vote as an individual right. See id. at 437. In

practice, however, any right against vote dilution

must be afforded to groups. Indeed, the very term

“vote dilution” makes no sense unless the right to an

undiluted vote is held by a group, rather than an

individual. And the term “Latino opportunity district”

is nonsensical unless it is a description of the

collective action of a racial group seeking to elect a

candidate of the group’s choice. It is unintelligible as

a way to describe the individual right of any particular

Latino voter. Despite some statements to the

contrary, this Court has all but conceded that point.

LULAC, 548 U.S. at 429 (describing Section 2 rights

as being held by a “racial group”); Bartlett, 556 U.S. at

24-25 (“Section 2 concerns minority groups’

opportunity ‘to elect representatives of their choice[.]’”

(quoting 52 U.S.C. § 10301(b))).

Transforming Section 2 into a group-based right to

some form of “fair” representation inevitably renders

all vote-dilution—and racial gerrymandering—cases

little more than fights “over the ‘best’ racial quota.”

Ala. Legislative Black Caucus v. Alabama, 575 U.S.

254, 294 (2015) (Thomas, J., dissenting). The facts of

most such cases make this quite plain. In LULAC, the

Court subordinated traditional districting criteria to

racial considerations, invalidating Texas’ attempt to

protect a congressional incumbent’s seat because of

the race of the voters who voted for and against him.

LULAC, 548 U.S. at 427-28. And even in cases where

vote-dilution claims fail, the Court has emphasized

the importance of proportionality, rejecting a claim

because “minority voters form effective voting

majorities in a number of districts roughly

proportional to the minority voters’ respective shares

in the voting-age population.” Johnson v. De Grandy,

512 U.S. 997, 1000 (1994). While the Court has

repeatedly emphasized that racial proportionality is

not dispositive, measures of proportionality have

nevertheless played an outsized role in determining

vote-dilution liability. A collective right of racial vote

strength measured against the population as a whole

looks much more like racial balancing than the

protection of any particular individual’s right to vote.

The problem is stark. “In pursuing ‘undiluted’ or

maximized minority voting power, ‘[this Court has]

devised a remedial mechanism that encourages

federal courts to segregate voters into racially

designated districts to ensure minority electoral

success.’” Ala. Legislative Black Caucus, 575 U.S. at

297 (quoting Holder v. Hall, 512 U.S. 874, 892 (1994)

(Thomas, J., concurring in the judgment)). This

outcome was inevitable once the Court began parsing

the racial composition of electoral districts without

even an allegation of discriminatory intent. After all,

a court cannot determine whether the strength of a

racial group’s vote has been unlawfully diluted unless

it has “an idea in mind of how hard it ‘should’ be for

minority voters to elect their preferred candidates

under an acceptable system.” Gingles, 478 U.S. at 88

(O’Connor, J., concurring in the judgment); see also

Holder, 512 U.S. at 880 (plurality opinion) (“a court

must find a reasonable alternative practice as a

benchmark against which to measure the existing

voting practice”). Racial proportionality is simply the

most practical benchmark. That is why courts,

including this Court, continue to lean on it to assess

vote dilution. See Gingles, 478 U.S. at 88 (comparing

simple proportionality with more complex benchmark

possibilities, including one that would require courts

to draw “fair” districts themselves). This Court’s

entire vote-dilution jurisprudence has been infected

with racial balancing from the start.

Incredibly,

vote-dilution

theory

remains

unaffected by the doctrinal developments limiting the

use of race in other areas. Binding precedent requires

that voters be treated not as individuals, but as

members of various collectives defined by race.

Jurisdictions themselves are required to sort voters

according to race to avoid Section 2 liability. Failure

to do so—and account for at least “rough

proportionality” among racial groups, Johnson, 512

U.S. at 1023, leaves the jurisdiction open to claims

that it diluted the voting strength of a minority group.

See Shaw v. Hunt, 517 U.S. 899, 914 (1996)

(discussing North Carolina’s concern “that failure to

enact a plan with a second majority-black district

would have left the State vulnerable to a lawsuit

under” Section 2). This is exactly what the Court has

repeatedly rejected in racial preference cases in

education and contracting. As even some

commentators generally supportive of racial

preferences have noted, were Section 2’s application

to vote-dilution considered today on a blank slate,

there is little chance it would pass constitutional

muster. See Michelle E. O’Connor-Ratcliffe,

Colorblind Redistricting: Racial Proxies as a Solution

to the Court’s Voting Rights Act Quandry, 29 Hastings

Const. L.Q. 61, 71-72 (2001) (describing the

constitutionality of Section 2 as applied to districting

as “questionable at best”). 3 Continuing to apply this

constitutionally suspect precedent just postpones the

day the Court will have to reckon with the conflict

between vote-dilution theory and equal protection.

The Gingles Safeguards Limit the

Pervasiveness of Race-Based

Districting, But Do Not Eliminate It

Gingles requires vote-dilution plaintiffs to prove

the existence of three “preconditions” before

proceeding with a claim. A minority group must first

be (1) sufficiently large and compact to form a majority

in a single-member district and (2) politically

cohesive. Bartlett, 556 U.S. at 11 (citing Gingles, 478

U.S. at 50-51 (majority opinion)). The third

requirement is that the majority usually votes as a

bloc to defeat minority-preferred candidates. Id. These

threshold requirements are necessary to limit the

scope of race-based districting. As Justice Kennedy

once explained, eliminating the requirement that a

minority group prove that it is sufficiently large and

compact to form a majority in a district would

“unnecessarily infuse race into virtually every

redistricting,

raising

serious

constitutional

3 The Court has never declared that compliance with Section 2 in

and of itself constitutes a compelling interest. Indeed, doing so

would be a classic example of circular reasoning—an assertion

that the challenged statute survives strict scrutiny because

complying with the challenged statute constitutes a compelling

interest. This illustrates the problem with the Court’s racial

gerrymandering cases. See infra I.C. Applying genuine strict

scrutiny would limit the consideration of race in districting to the

remedial interest identified in modern equal protection cases.

questions.” Id. at 21 (quoting LULAC, 548 U.S. at 446

(opinion of Kennedy, J.)).

Yet those serious questions remain even with the

Gingles preconditions intact. Gingles and its progeny

have interpreted Section 2 so that it often requires

racial gerrymandering, which, “even for remedial

purposes, may balkanize us into competing racial

factions” and “threatens to carry us further from the

goal of a political system in which race no longer

matters—a goal that the Fourteenth and Fifteenth

Amendments embody.” Shaw v. Reno, 509 U.S. 630,

657 (1993). No remedial purpose is required to

activate

Section

2’s

race-based

districting

requirement—nothing in the statute or this Court’s

precedent requires proof that a jurisdiction has

previously used racial gerrymanders. So although the

preconditions limit the scope of Section 2’s effect on

districting, the cause of action for vote dilution

necessitates the consideration of race far beyond what

is “compelling.”

What is more, to facilitate vote-dilution claims and

avoid the obviously impending direct conflict with the

Equal Protection Clause, the Court has had to relax

its standards for judging intentional racial

gerrymandering. After all, what is a state to do if

Section 2 requires race-based districting and the

Equal Protection Clause forbids it? So the Court

crafted a special standard for racial gerrymandering,

holding that strict scrutiny applies only where the

scheme is “so irrational on its face that it can be

understood only as an effort to segregate voters into

separate voting districts because of their race.” Id. at

658. This is plainly inconsistent with modern equal

protection precedent, which requires strict scrutiny

even when race is one consideration among many. See

Grutter, 539 U.S. at 326 (applying strict scrutiny to

admissions policy where race was one of many

factors); Vill. of Arlington Heights v. Metropolitan

Housing Dev. Corp., 429 U.S. 252, 265-66 (1977)

(“racial discrimination is not just another competing

consideration”). Indeed, there is no question that the

Court “is much quicker to apply strict scrutiny to

affirmative action cases than it is to racial

redistricting cases.” Evan Gerstmann & Christopher

Shortell, The Many Faces of Strict Scrutiny: How the

Supreme Court Changes the Rules in Race Cases, 72

U. Pitt. L. Rev. 1, 18 (2010).

So while the Gingles preconditions have blunted

the impact of applying Section 2 to districting, they

have not lessened the conflict between this

interpretation and the generally accepted principles of

equal protection. Not only does Section 2 now require

race-based districting when it applies, it also

exacerbates the problem nationwide by permitting

jurisdictions to use race as a factor in redistricting for

less than “compelling” reasons. Certiorari is

warranted here to give the Court an opportunity to

reconsider its vote-dilution precedent and bring its

interpretation of Section 2 into conformity with

modern equal protection law.

II.

The CVRA Repudiates a Key Gingles

Safeguard and Challenges the Outer

Limits of Vote Dilution Doctrine

Against

this

background,

the

California

Legislature concluded that this Court had not gone far

enough in requiring race-based redistricting. Despite

warnings in this Court’s precedent that Section 2

could not constitutionally prohibit vote dilution

without the Gingles safeguards, the CVRA

emphatically discards the size and compactness

precondition, declaring that plaintiffs must only show

“that racially polarized voting occurs in elections for

members of the governing body of the political

subdivision or in elections incorporating other

electoral choices by the voters of the political

subdivision.” Cal. Elec. Code § 14028(a). The law

specifically targets those municipalities which use atlarge elections to elect their legislative body, stating

that “[a]n at-large method of election may not be

imposed or applied in a manner that impairs the

ability of a protected class to elect candidates of its

choice or its ability to influence the outcome of an

election . . . as a result of the dilution,” Cal. Elec. Code

§ 14027. Under the more recently enacted safe-harbor

provision, municipalities can avoid liability (and the

effect of the fee-shifting provision) simply by

switching to elections by district in response to a

demand letter alleging the existence of racially

polarized voting. Cal. Elec. Code § 10010(e)(1). That is

exactly what happened here.

This case demonstrates vote dilution taken to its

logical extreme. Take a variation on an example from

above: a hypothetical city that is 80% white and 20%

black and whose citizens vote entirely according to

their race. Were the city to maintain at-large

elections, it would be subject to a Section 2 claim if the

black voters lived close enough to each other to make

up a majority in one hypothetical single-member

district. Thus, if the city were entirely segregated,

black voters could assert a Section 2 claim. But if

voters were randomly distributed throughout the city

without respect to race, black voters could not make

out a Section 2 claim. They could, however, assert a

CVRA claim. Without the Gingles compactness

safeguard, the existence of racially polarized voting—

and resulting lack of racial proportionality—is

enough.

California’s decision to jettison the most important

Gingles safeguard has significant consequences. State

law now requires any municipality that experiences

racially-polarized voting to abandon at-large

elections. Courts have broad discretion to “implement

appropriate remedies,” including requiring by-district

elections. Id. § 14029. And because of the fee-shifting

and safe-harbor provisions, plaintiffs in effect do not

even have to show racially-polarized voting to

radically change the electoral system. The threat

suffices. Critically, no matter the remedy, it must be

race-based; after all, it is impossible to remedy a

violation consisting of the lack of “ability of a protected

class to elect candidates of its choice or its ability to

influence the outcome of an election” without

considering race. In many cases, “bug-splat” racial

gerrymandering might be required to remedy a CVRA

violation. Indeed, the very act of requiring

municipalities to alter their system of elections based

only on the existence of racially-polarized voting is

itself race-based.

Since the CVRA requires race-based action, it

must satisfy strict scrutiny. In this regard, it suffers a

worse defect than Section 2. Even assuming that

preventing vote dilution might constitute a compelling

interest—something that not only has this Court

never held, but would also be contrary to the general

rule that governments can only remedy their own

intentional discrimination—the CVRA’s near blanket

invalidation of at-large voting schemes sweeps far

beyond Section 2’s mandate. Such mandatory

discriminatory action forces the government to

stereotype and stigmatize individuals according to

their race, and it puts the day further off when race

becomes irrelevant. Certiorari is needed so this Court

can enforce meaningful limits on the ability of states

and localities to require race-based voting districts.

“It is a sordid business, this divvying us up by

race.” LULAC, 548 U.S. at 511 (Roberts, C.J.,

concurring in part, concurring in the judgment in

part, and dissenting in part). By enacting the CVRA,

California has supercharged that business. As the

nation’s

most

populous

state,

California’s

experimentation with the outer bounds of racial

discrimination in voting is extremely consequential.

Therefore, even if the Court is unwilling to reconsider

its vote-dilution precedent, it should grant certiorari

here to halt the expansive and discriminatory

extensions of that precedent.

CONCLUSION

For these reasons, and those stated by the

Petitioner, Amici respectfully request that this Court

grant the petition for certiorari.

DATED: May 5, 2020.

Respectfully submitted,