Amicus Curiae Brief — Wes Allen, Alabama Secretary of State, et al., Appellants v. Evan Milligan, et al.

Supreme Court briefMay 2, 2022

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Nos. 21-1086, 21-1087

In the Supreme Court of the United States

__________

JOHN H. MERRILL, ET AL.,

Appellants,

EVAN MILLIGAN, ET AL.,

Appellees.

__________________________

JOHN H. MERRILL, ET AL.,

Petitioners,

MARCUS CASTER, ET AL.,

Respondents.

__________________________

ON APPEAL FROM AND WRIT OF CERTIORARI TO THE

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF ALABAMA

___________________________

BRIEF FOR AMERICA FIRST LEGAL AS

AMICUS CURIAE IN SUPPORT OF

APPELLANTS/PETITIONERS

__________

GENE P. HAMILTON

CHRISTOPHER E. MILLS

REED D. RUBINSTEIN

Counsel of Record

NICHOLAS BARRY

Spero Law LLC

America First Legal

557 East Bay Street

Foundation

#22251

300 Independence

Charleston, SC 29413

Avenue SE

(843) 606-0640

Washington, DC 20003 cmills@spero.law

(202) 964-3721

Counsel for Amicus Curiae

QUESTION PRESENTED

Whether the State of Alabama’s 2021 redistricting

plan for its seven seats in the United States House of

Representatives violated Section 2 of the Voting

Rights Act, 52 U.S.C. § 10301.

TABLE OF CONTENTS

Page

Question Presented....................................................... i

Table of Authorities .................................................... iii

Interest of Amicus Curiae ........................................... 1

Summary of the Argument .......................................... 2

Argument ..................................................................... 5

Section 2 is unconstitutional to the extent it

reaches beyond intentional discrimination. .....5

A. The new Section 2 exceeds Congress’s

authority. ..................................................... 5

B. The new Section 2 is an improper

delegation. .................................................. 13

II. The new Section 2 is unconstitutional as

applied below. ..................................................19

III. Complying with the new Section 2 is not a

compelling interest..........................................23

Conclusion .................................................................. 30

iii

TABLE OF AUTHORITIES

CASES

Page(s)

Abbott v. Perez, 138 S. Ct. 2305 (2018) ................. 5, 29

Allen v. Cooper, 140 S. Ct. 994 (2020) ................... 8, 10

Arkansas State Conf. NAACP v. Arkansas Bd. of

Apportionment, 2022 WL 496908 (E.D. Ark. Feb.

17, 2022).................................................................. 5

Bartlett v. Strickland, 556 U.S. 1 (2009) .................. 11

Bd. of Trustees of Univ. of Alabama v. Garrett, 531

U.S. 356 (2001) ....................................................... 8

Bethune-Hill v. Virginia State Bd. of Elections, 137 S.

Ct. 788 (2017) ................................................. 27, 30

Bolling v. Sharpe, 347 U.S. 497 (1954) ..................... 28

Brnovich v. Democratic Nat’l Comm., 141 S. Ct. 2321

(2021) ............................................................ 8, 9, 11

Bush v. Vera, 517 U.S. 952 (1996)........... 21, 23, 29, 30

Carr v. Corning, 182 F.2d 14 (CADC 1950) .............. 28

City of Boerne v. Flores, 521 U.S. 507

(1997) .......................................................... 8, 10, 11

City of Mobile v. Bolden, 446 U.S. 55 (1980) .............. 6

City of Richmond v. J.A. Croson Co., 488 U.S. 469

(1989) .............................................................. 21, 27

Easley v. Cromartie, 532 U.S. 234 (2001) ................. 21

Florida Prepaid Postsecondary Educ. Expense Bd. v.

Coll. Sav. Bank, 527 U.S. 627 (1999)................... 11

Gonzalez v. Aurora, 535 F.3d 594 (CA7 2008) .......... 17

Grutter v. Bollinger, 539 U.S. 306 (2003) ................. 21

Gundy v. United States, 139 S. Ct. 2116

(2019) .............................................................. 13, 18

Heller v. District of Columbia, 670 F.3d 1244 (CADC

2011)...................................................................... 24

Hirabayashi v. United States, 320 U.S. 81 (1943) .... 19

Holder v. Hall, 512 U.S. 874

(1994) ........................................ 5, 12, 15, 16, 18, 30

Johnson v. California, 543 U.S. 499 (2005) .............. 27

Johnson v. De Grandy, 512 U.S. 997 (1994) .... 4, 6, 15,

17, 22

Korematsu v. United States, 323 U.S. 214 (1944) ... 21,

League of United Latin Am. Citizens v. Perry, 548

U.S. 399 (2006) ............................................... 22, 29

Merrill v. Milligan, 142 S. Ct. 879 (2022) ................. 16

Miller v. Johnson, 515 U.S. 900 (1995) ... 19, 21, 22, 26

Mississippi Republican Exec. Comm. v. Brooks, 469

U.S. 1002 (1984) ................................................... 16

Oregon v. Mitchell, 400 U.S. 112 (1970) ................... 27

Palmore v. Sidoti, 466 U.S. 429 (1984) ..................... 24

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

No. 1, 551 U.S. 701 (2007) ............ 12, 23, 26, 28, 30

Plessy v. Ferguson, 163 U.S. 537 (1896) ............. 19, 21

Ramirez v. Collier, 142 S. Ct. 1264 (2022) .......... 24, 25

Reno v. Bossier Par. Sch. Bd., 520 U.S. 471 (1997) .... 7

Ricci v. DeStefano, 557 U.S. 557 (2009) .................... 12

Rucho v. Common Cause, 139 S. Ct. 2484 (2019) ..... 18

Shaw v. Hunt, 517 U.S. 899 (1996) ..................... 26, 29

Shaw v. Reno, 509 U.S. 630 (1993) ........................... 22

Shelby County v. Holder, 570 U.S. 529 (2013)........ 7, 9

Simon & Schuster, Inc. v. Members of New York State

Crime Victims Bd., 502 U.S. 105 (1991) .............. 26

South Carolina v. Katzenbach, 383 U.S. 301

(1966) ...................................................................... 9

Tennessee v. Lane, 541 U.S. 509 (2004) ...................... 8

Thornburg v. Gingles, 478 U.S. 30 (1986) 6, 10, 16, 17

United States v. Georgia, 546 U.S. 151 (2006) ........... 5

United States v. Virginia, 518 U.S. 515 (1996)......... 24

Village of Arlington Heights v. Metro. Hous. Dev.

Corp., 429 U.S. 252 (1977) ................................... 21

Voinovich v. Quilter, 507 U.S. 146 (1993) ................... 7

Washington v. Davis, 426 U.S. 229 (1976) .................. 7

Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292

(2016) .............................................................. 24, 25

Wisconsin Legislature v. Wisconsin Elections Comm’n,

142 S. Ct. 1245 (2022) .................................... 16, 20

Wright v. Rockefeller, 376 U.S. 52 (1964) ................. 22

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. X................................................... 7

U.S. Const. amend. XIV, § 5 ........................................ 5

U.S. Const. amend. XV, § 1 ......................................... 6

U.S. Const. amend. XV, § 2 ......................................... 5

U.S. Const. art. I, § 1 ................................................. 13

U.S. Const. art. I, § 8 ................................................... 7

U.S. Const. art. V ....................................................... 27

U.S. Const. art. VI, cl. 2 ......................................... 4, 26

STATUTES

52 U.S.C. § 10301 ................................................ i, 2, 14

Voting Rights Act Amendments of 1982, Pub. L. No.

97-205, 96 Stat. 131 ................................................ 7

Voting Rights Act of 1965, Pub. L. No. 89-110, § 2, 79

Stat. 437 .................................................................. 6

vii

OTHER AUTHORITIES

A. Thernstrom, Voting Rights and Wrongs

(2009) .................................................................... 18

B. Kavanaugh, Book Review, Fixing Statutory

Interpretation, 129 Harv. L. Rev. 2118 (2016) .... 25

B. Kavanaugh, Keynote Address: Two Challenges for

the Judge As Umpire: Statutory Ambiguity and

Constitutional Exceptions, 92 Notre Dame L. Rev.

1907 (2017) ........................................................... 25

Brief for Appellees, Brown v. Bd. of Educ. of Topeka,

Nos. 1, 2, 4, 10, 1952 WL 87553 (Dec. 8, 1952) ... 28

Brief for the United States as Amicus Curiae, Brown,

1952 WL 82045 (Dec. 2, 1952) ............................. 28

C. Elmendorf & D. Spencer, Administering Section 2

of the Voting Rights Act After Shelby County, 115

Colum. L. Rev. 2143 (2015) ............................ 12, 17

C. Elmendorf, Making Sense of Section 2: Of Biased

Votes, Unconstitutional Elections, and Common

Law Statutes, 160 U. Pa. L. Rev. 377

(2012) ............................................ 11, 12, 15, 17, 19

D. Laycock, Conceptual Gulfs in City of Boerne v.

Flores, 39 Wm. & Mary L. Rev. 743 (1998) ......... 10

H. Gerken, Understanding the Right to an Undiluted

Vote, 114 Harv. L. Rev. 1663 (2001) .................... 15

J. Chen & N. Stephanopoulos, The Race-Blind Future

of Voting Rights, 130 Yale L. J. 862 (2021) ......... 17

viii

R. Clegg, The Future of the Voting Rights Act after

Bartlett and NAMUDNO, 2008 Cato Sup. Ct. Rev.

35 (2009) ............................................................... 12

R. Hasen, The Supreme Court and Election Law:

Judging Equality from Baker v. Carr to Bush v.

Gore (2003)............................................................ 11

S. Rep. No. 97-417, 97th Cong., 2d Sess., 171

(1982) .............................................. 9, 10, 12, 14, 15

T. Boyd & S. Markman, The 1982 Amendments to the

Voting Rights Act: A Legislative History, 40

Wash. & Lee L. Rev. 1347 (1983)..................... 9, 13

INTEREST OF AMICUS CURIAE

America First Legal Foundation is a nonprofit

organization dedicated to promoting the rule of law in

the United States by preventing executive overreach,

ensuring due process and equal protection for every

American citizen, and encouraging understanding of

the law and individual rights guaranteed under the

Constitution and laws of the United States.

America First Legal has a substantial interest in

this case. Equality under the law is one of our Nation’s

founding principles, reflected in the Declaration of

Independence and later in the Fourteenth

Amendment. The decision below threatens that

principle by rejecting legislative maps because those

maps did not sufficiently segregate citizens based on

race. America First Legal has an interest in ensuring

that neither the judiciary nor Congress requires

discrimination based on race.1

1 All parties have consented to the filing of this brief. No counsel

for a 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

amicus curiae, its members, or its counsel made a monetary

contribution to its preparation or submission.

SUMMARY OF THE ARGUMENT

The district court ordered Alabama to engage in

intentional racial segregation. The court justified its

order on a statute that is valid only if it enforces the

Constitution’s prohibitions on race discrimination in

voting. Requiring racial segregation repudiates—

rather than enforces—the Constitution’s guarantee of

equal treatment under the law. Something has gone

wrong.

1. Though all identify the perplexing statute at

issue as Section 2 of the Voting Rights Act of 1965, it

is not. That original Section 2 prohibited intentional

denials of the right to vote on account of race, just like

the Fifteenth Amendment. The claims here are under

a much different Section 2, enacted in 1982 as a

congressional attempt to override this Court’s holding

that Section 2, like the Fifteenth Amendment,

requires a showing of purposeful discrimination. The

new Section 2 prohibits any “standard, practice, or

procedure” that “results” in a discriminatory denial of

the right to vote. 52 U.S.C. § 10301.

VRA plaintiffs have long said that the point of this

new “results” test was to change the law’s substance,

eliminating any requirement of discriminatory intent.

But without a constitutional amendment, Congress

cannot change the Fifteenth Amendment’s meaning,

and it lacks other authority to enact Section 2. Nor is

the new Section 2 congruent or proportional to any

proven record of Fifteenth Amendment violations. The

only systematic evidence examined in the 1982

legislative record showed no discrimination. Even as

Congress failed to provide evidence to justify the new

results test, it wrote a statute that sweeps broadly,

encompassing every possible voting district in the

country. Worst, Section 2’s remedy forces jurisdictions

that treated citizens equally to instead discriminate

based on race. The new Section 2 has caused everheightening official racial segregation, and it requires

statutory resegregation in perpetuity. When racial

discrimination in redistricting now occurs, it is almost

entirely due to Section 2, not despite Section 2. The

new Section 2 is unconstitutional.

Section 2 is also unconstitutional because, at least

as applied to vote dilution claims, it provides no

comprehensible principles to the judiciary or the

states. Congress has lawmaking authority, not this

Court. But Section 2 sets forth no intelligible way to

adjudicate vote dilution claims. Section 2’s only

possible principle is proportional representation based

on race, but the statute disclaims that principle and

requiring it would violate Equal Protection. The best

proof of Section 2’s standardless nature is this Court’s

jurisprudence trying to interpret it. That

jurisprudence is incomprehensible, beset by

contradictions,

and

incapable

principled

application. Section 2 is an unconstitutional

delegation of legislative authority.

2. At a minimum, a court cannot order a map that

would violate the Constitution as a remedy for a

statute that supposedly enforces the Constitution.

Alabama here relied on traditional, neutral districting

principles to draw its maps. The plaintiffs themselves

simulated that effort millions of times, never

producing a map with more than one majorityminority district. Only by putting race first could the

plaintiffs, and then the district court, believe that

Section 2 required two such districts. The map ordered

by the court below would never exist but for racial

discrimination. Ordering a state “to engage in race-

based redistricting and create a minimum number of

districts in which minorities constitute a voting

majority” “entrench[es] the very practices and

stereotypes the Equal Protection Clause is set

against.” Johnson v. De Grandy, 512 U.S. 997, 1029

(1994) (Kennedy, J., concurring in part and in

judgment). The remedy below is unconstitutional.

3. The district court justified its remedy under this

Court’s strict scrutiny test. Neither text nor history

supports watering down constitutional rights,

especially not in the policy-oriented way required by

strict scrutiny’s balancing test. And that test’s

application to Section 2 cases has been particularly

obscene. The Court has assumed that compliance with

the Voting Rights Act—apparently including 1982’s

Section 2—is a compelling government interest that

justifies violating the Constitution. But the

Constitution is supreme over statutes. See U.S. Const.

art. VI, cl. 2. Labeling statutory compliance a

compelling interest would let Congress dilute the

Constitution. And this circular assumption forestalls

meaningful review because compliance will always be

narrowly tailored to compliance. Statutory compliance

as justification for a constitutional violation would be

laughed out of court in any other context. Did this

Court think that the Topeka Board of Education had a

compelling interest in complying with Kansas law by

segregating schools?

The Court’s assumed interest reflects a more

sinister assumption: that voters of a particular race

ascribe to similar views and should be segregated into

racial enclaves. That is Section 2’s world and its only

operating principle. Our Nation’s core principle, by

contrast, is equal treatment under the law. Section 2

is unconstitutional.

ARGUMENT

I. Section 2 is unconstitutional to the extent it

reaches beyond intentional discrimination.

A. The new Section 2 exceeds Congress’s

authority.

Congress’s authority to enact Section 2 comes from

the Fourteenth and Fifteenth Amendments, which

permit Congress to “enforce” those amendments’

substantive provisions “by appropriate legislation.”

U.S. Const. amend. XIV, § 5; id. amend. XV, § 2.

Congress may enforce them “by creating private

remedies against the States for actual violations.”

United States v. Georgia, 546 U.S. 151, 158 (2006)

(emphasis omitted).

Two initial hurdles to cases like this are that

Section 2 does not apply to vote dilution claims, and

that Congress did not provide a private remedy. Abbott

v. Perez, 138 S. Ct. 2305, 2335 (2018) (Thomas, J.,

concurring, joined by Gorsuch, J.); Holder v. Hall, 512

U.S. 874, 922–923 (1994) (Thomas, J., concurring in

judgment); Arkansas State Conf. NAACP v. Arkansas

Bd. of Apportionment, 2022 WL 496908, at *9–17 (E.D.

Ark. Feb. 17, 2022).

Setting aside those problems for now, the new

Section 2 (at least as understood by VRA plaintiffs)

sweeps far beyond the constitutional prohibition on

intentional discrimination. As originally enacted in

the Voting Rights Act of 1965, Section 2 mirrored the

Fifteenth Amendment:

No voting qualification or prerequisite to

voting, or standard, practice, or procedure shall

be imposed or applied by any State or political

subdivision to deny or abridge the right of any

citizen of the United States to vote on account

of race or color.

Voting Rights Act of 1965, Pub. L. No. 89-110, § 2, 79

Stat. 437; see U.S. Const. amend. XV, § 1.

Under

this

Court’s

precedents,

“racially

discriminatory motivation is a necessary ingredient of

a Fifteenth Amendment violation.” City of Mobile v.

Bolden, 446 U.S. 55, 62 (1980) (plurality opinion). A

few years after Section 2’s enactment, the Court made

clear that because “the language of § 2 no more than

elaborates upon that of the Fifteenth Amendment,”

Section 2 claims equally required a showing of

intentional discrimination. Id. at 60.

In 1982, Congress directly challenged this Court’s

holding by rewriting the statute “to reach cases in

which discriminatory intent is not identified.”

De Grandy, 512 U.S. at 1009 n.8. Instead, “a violation

could be proved by showing discriminatory effect

alone.” Thornburg v. Gingles, 478 U.S. 30, 35 (1986).

The new Section 2 focused on whether the challenged

practice “results in a denial or abridgement” of the

right to vote and added a new subsection:

(b) A violation of subsection (a) is established if,

based on the totality of circumstances, it is

shown that the political processes leading to

nomination or election in the State or political

subdivision are not equally open to

participation by members of a class of citizens

protected by subsection (a) in 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. The extent to which members of a

protected class have been elected to office in the

State or political subdivision is

circumstance which may be considered.

one

Voting Rights Act Amendments of 1982, Pub. L. No.

97-205, 96 Stat. 131, 134 (emphasis added).

This rewriting moved the substantive scope of

Section 2 beyond its constitutional underpinnings.

Under the Fourteenth and Fifteenth Amendments, a

discriminatory effect might be relevant to a showing of

discriminatory intent, but it is not enough to prove

“invidious racial discrimination forbidden by the

Constitution.” Washington v. Davis, 426 U.S. 229, 242

(1976). Because “the Constitution requires a showing

of intent that [the new] § 2 does not, a violation of § 2

is no longer a fortiori a violation of the Constitution.”

Reno v. Bossier Par. Sch. Bd., 520 U.S. 471, 482 (1997).

Thus, the Fifteenth Amendment cannot provide a

basis for Section 2 to the extent that the statute

reaches beyond intentional discrimination. Absent

other authority for the new Section 2, it is

unconstitutional. See U.S. Const. art. I, § 8; id.

amend. X; see generally Shelby County v. Holder, 570

U.S. 529, 542–45 (2013) (“[T]he [VRA] constitutes

extraordinary legislation otherwise unfamiliar to our

federal system.” (cleaned up)).2

This Court has held that “[l]egislation which deters

or remedies constitutional violations can fall within

the sweep of Congress’ enforcement power even if in

the process it prohibits conduct which is not itself

2 It is also unclear whether Section 2 could constitutionally extend

to vote dilutions claims at all, given that “[t]his Court has not

decided whether the Fifteenth Amendment applies to votedilution claims.” Voinovich v. Quilter, 507 U.S. 146, 159 (1993).

The Court has never “held any legislative apportionment

inconsistent with the Fifteenth Amendment.” Ibid.

unconstitutional.” City of Boerne v. Flores, 521 U.S.

507, 518 (1997). Even under that dubious rule, see

Tennessee v. Lane, 541 U.S. 509, 555–65 (2004) (Scalia,

J., dissenting), “it is the responsibility of this Court,

not Congress, to define the substance of constitutional

guarantees.” Bd. of Trustees of Univ. of Alabama v.

Garrett, 531 U.S. 356, 365 (2001). As this Court has

explained:

Congress does not enforce a constitutional right

by changing what the right is. It has been given

the power “to enforce,” not the power to

determine what constitutes a constitutional

violation. Were it not so, what Congress would

be enforcing would no longer be, in any

meaningful sense, the provisions of the

[Constitution].

City of Boerne, 521 U.S. at 519 (cleaned up).

The new Section 2 purports to change the

substance of the underlying right; that was its stated

purpose. See Brnovich v. Democratic Nat’l Comm., 141

S. Ct. 2321, 2357–58 (2021) (Kagan, J., dissenting).

And it is neither congruent nor proportional to the

Fourteenth and Fifteenth Amendments. When

enforcement legislation extends to constitutional

conduct, the Court has required “a congruence and

proportionality between the injury to be prevented or

remedied and the means adopted to that end.” Allen v.

Cooper, 140 S. Ct. 994, 1004 (2020). “On the one hand,

courts are to consider the constitutional problem

Congress faced—both the nature and the extent of

state conduct violating the [Constitution]. That

assessment usually . . . focuses on the legislative

record.” Ibid. “On the other hand, courts are to

examine the scope of the response Congress chose to

address that injury.” Ibid.

The new Section 2 flunks this means-ends test.

Even before the 1982 amendment, the Voting Rights

Act “authorize[d] federal intrusion into sensitive areas

of state and local policymaking and represent[ed] an

extraordinary departure from the traditional course of

relations between the States and the Federal

Government.” Shelby County, 570 U.S. at 545. At first,

the Act “could be justified by ‘exceptional conditions.’”

Ibid. (quoting South Carolina v. Katzenbach, 383 U.S.

301, 334 (1966)). But the law’s “current

burdens . . . must be justified by current needs.” Id. at

542.

Start with Congress’s failure to identify any

constitutional problem. Even by 1982, as the Senate

Subcommittee on the Constitution explained, “there

[wa]s absolutely no record to suggest that the proposed

change in Section 2 involves a similar remedial

exercise” as the original VRA. S. Rep. No. 97-417, 97th

Cong., 2d Sess., 171 (1982) (“Senate Report”). There

was “no such evidence offered during either the House

or Senate hearings,” and “the subject of voting

discrimination outside the [jurisdictions ‘covered’ by

other VRA provisions] [was] virtually ignored during

hearings in each chamber.” Ibid.; see T. Boyd & S.

Markman, The 1982 Amendments to the Voting

Rights Act: A Legislative History, 40 Wash. & Lee L.

Rev. 1347, 1394 n.231 (1983) (“Virtually no substantial

evidence was introduced during the hearings related

to voting rights problems outside [covered]

jurisdictions.”). In covered jurisdictions, Congress

“identified only three isolated episodes involving the

outright denial of the right to vote,” Brnovich, 141 S.

Ct. at 2333, even though that is the focus of the

Fifteenth Amendment. Cf. Allen, 140 S. Ct. at 1006

(“only a dozen possible examples” insufficient).

The Senate Committee Report—which Gingles

unblushingly called “the authoritative source for

legislative intent” on Section 2, 478 U.S. at 43 n.7—

showed little “concern with whether” the few vote

dilution examples it discussed “raise[d] a

constitutional issue” by evidencing “intentional”

discrimination. Allen, 140 S. Ct. at 1006. The only

systematic evidence considered by the Committee was

a Justice Department study of more than 200 cities

that found none was engaged in unlawful vote dilution,

even under the new Section 2 results test. Senate

Report, supra, at 35. Lacking any systematic evidence

justifying its amendment, the Committee pointed to a

few cases that rejected Section 2 claims because the

plaintiffs had not proven a discriminatory intent. Id.

at 37–39. But a statute that changes the Constitution’s

substance will lead to different substantive outcomes;

that is always the problem when Congress tries to

amend the Constitution via statute. See City of Boerne,

521 U.S. at 529, 532; D. Laycock, Conceptual Gulfs in

City of Boerne v. Flores, 39 Wm. & Mary L. Rev. 743,

749–52 (1998) (comparing the new Section 2 to the

application of RFRA invalidated in City of Boerne).

All that’s left in the record are such conclusory

assertions as “there are still some communities in our

Nation where racial politics do dominate the electoral

process.” Senate Report, supra, at 33. That does not

come close to a showing of extraordinary conditions.

And making that assertion today would beggar belief,

except that Section 2 itself requires legislatures and

courts to obsess over race. As one commentator has

explained, the Senate Report does not “contain[]

enough evidence of nationwide systemic problems with

intentional state discrimination to justify the dramatic

remedy of section 2”—and “more recent evidence of

intentional racial discrimination in voting” only

“appears to be diminishing.” R. Hasen, The Supreme

Court and Election Law: Judging Equality from Baker

v. Carr to Bush v. Gore 132 (2003) (emphases omitted).

Yet Congress has not reconsidered Section 2 since

1982.

Next consider Section 2’s means. This Court has

looked to limitations like “termination dates,

geographic restrictions, [and] egregious predicates” “to

ensure Congress’ means are proportionate to ends

legitimate.” City of Boerne, 521 U.S. at 533. Section 2’s

“indiscriminate scope offends th[ese] principle[s].”

Florida Prepaid Postsecondary Educ. Expense Bd. v.

Coll. Sav. Bank, 527 U.S. 627, 647 (1999). “The

language of Section 2 is as broad as broad can be.”

Brnovich, 141 S. Ct. at 2372 (Kagan, J., dissenting). It

has no limits in time, space, or scope. It applies to

water districts and county councils, state legislatures

and school boards. See Bartlett v. Strickland, 556 U.S.

1, 18 (2009) (plurality opinion). It has no expiration

date. And even Section 2’s defenders have conceded

that a “disparate impact test for representational

impairment—measured against a baseline of

proportionality—[is] a very clumsy device for

capturing instances of intentional discrimination.” C.

Elmendorf, Making Sense of Section 2: Of Biased

Votes, Unconstitutional Elections, and Common Law

Statutes, 160 U. Pa. L. Rev. 377, 428 (2012) (“Making

Sense of Section 2”). Even if a defendant proves that it

did not adopt or maintain a map for discriminatory

reasons, it can be liable under the new Section 2.

More, Section 2’s “remedial mechanism” only

“encourages federal courts [and states] to segregate

voters into racially designated districts.” Holder, 512

U.S. at 892 (Thomas, J., concurring in judgment). To

the extent that Section 2 focuses on proportional

representation, its mandate for segregation will never

end, requiring an “indefinite use of racial

classifications, employed first to obtain the

appropriate mixture” “and then to ensure that the

[map] continues to reflect that mixture.” Parents

Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551

U.S. 701, 731 (2007) (plurality opinion). Section 2’s

“principal use” now “is to coerce state and local

jurisdictions into drawing districts with an eye on

race.” R. Clegg, The Future of the Voting Rights Act

after Bartlett and NAMUDNO, 2008 Cato Sup. Ct.

Rev. 35, 40 (2009); see Ricci v. DeStefano, 557 U.S.

557, 594 (2009) (Scalia, J., concurring) (“[D]isparateimpact provisions place a racial thumb on the scales.”).

Finally, the substantive “uncertainty at the heart

of [S]ection 2”—detailed next—reinforces that the new

Section 2’s results test is not a “congruent and

proportional response to constitutional violations.”

C. Elmendorf & D. Spencer, Administering Section 2

of the Voting Rights Act After Shelby County, 115

Colum. L. Rev. 2143, 2158 (2015) (“Administering

Section 2”). A statute incapable of principled

application cannot be a reasonable response to

supposed intentional discrimination.

In short, “[i]n the total absence” of actual evidence

of constitutional problems, “it is impossible” to

“contend that the permanent, nationwide change” in

the new Section 2 “is a ‘remedial’ effort.” Senate Report

supra, at 171. Section 2 is now a statute “with no

discernable core value whose functional connection to

the VRA’s animating purpose is incidental at best.”

Making Sense of Section 2, supra, at 399.

Section 2 cases today are partisan fistfights that

use the statute’s amorphous requirements for political

advantage and to replace forbidden partisan

gerrymandering claims. Section 2 cases lead to the

invalidation of duly enacted district maps with no

discriminatory intent. They perpetuate rather than

remedy discrimination, for they force states and courts

to draw maps that would never exist absent purposeful

discrimination based on race. They reflect “a major

departure in the Nation’s understanding of ‘equality,’

transforming the focus of analysis” “from the

individual citizen to the collective racial or ethnic

group.” Boyd & Markman, supra, at 1428. And they

consume an enormous amount of state and judicial

resources because (as discussed next) the statute and

the standards set by this Court are incomprehensible.

Enough is enough. Beyond intentional discrimination,

Section 2 is unconstitutional.

B. The new Section

delegation.

improper

Section 2 exceeds Congress’s authority for an

independent reason. Article I of the Constitution

provides that “[a]ll legislative Powers herein granted

shall be vested in a Congress of the United States.” § 1.

“Accompanying that assignment of power to Congress

is a bar on its further delegation.” Gundy v. United

States, 139 S. Ct. 2116, 2123 (2019) (plurality opinion).

When Congress seeks to delegate some of its authority,

at minimum it must “lay[] down by legislative act an

intelligible principle to which the person or body

authorized to [exercise the delegated authority] is

directed to conform.” Ibid. And under the better

“traditional tests,” Congress must “ma[k]e all the

relevant policy decisions,” leaving to the other

branches only “the responsibility to find facts and fill

up details.” Id. at 2139 (Gorsuch, J., dissenting).

Section 2, at least as applied to vote dilution claims,

fails all these tests and is thus an unconstitutional

delegation to the judiciary. As the Senate

Subcommittee on the Constitution explained in 1982,

the new Section 2 “affords virtually no guidance

whatsoever to communities in evaluating the legality

and

constitutionality

their

governmental

arrangements,” and “it affords no guidance to courts in

deciding suits.” Senate Report, supra, at 137.

Professor James Blumstein testified to “the problem”

after aggregating various unknown “factors”: “what do

you have? Where are you? . . . You balance and you

balance but ultimately how do you balance? What is

the core value?” Ibid. According to Professor

Blumstein, “there is no ‘core value’” except possibly

“the value of equal electoral results for defined

minority groups.” Ibid.

But

the

statute

disclaims

proportional

representation, albeit in a way that Professor Irving

Younger testified was “simply incoherent.” Id. at 145;

see 52 U.S.C. § 10301(b) (“[N]othing in this section

establishes a right to have members of a protected

class elected in numbers equal to their proportion in

the population.”). This provision disclaims a “right”

focusing on the race of elected officials, even as the

statute affirmatively suggests consideration of the

“extent to which members of a protected class have

been elected to office.” Ibid. The disclaimer does not

speak to what the rest of the statute covers—voting

“practices or procedures”—much less permissible

remedies. In any event, the Committee (the supposed

authority on legislative intent) disclaimed any idea of

proportional representation. Senate Report, supra, at

16 (stating that the disclaimer “codifies” the rule “that

there is no right to proportional representation”); see

Holder, 512 U.S. at 933 (Thomas, J., concurring in

judgment) (“§ 2 was passed only after a compromise

was reached through the addition of the provision in

§ 2(b) disclaiming any right to proportional

representation.”). And this Court has read the

disclaimer to “confirm[] what is otherwise clear from

the text of the statute, namely, that the ultimate right

of § 2 is equality of opportunity, not a guarantee of

electoral success for minority-preferred candidates of

whatever race.” De Grandy, 512 U.S. at 1014 n.11.

All this led Senator Hatch to conclude that Section

2 sets forward “a standard that literally no one can

articulate.” Senate Report, supra, at 136. The statute

“has absolutely no coherent or understandable

meaning beyond the simple notion of proportional

representation,” ibid.—but that is the very meaning

that Congress rejected. And “[t]he legislative history”

is “bereft of pertinent guidance” on the question of

proportionality. Making Sense of Section 2, supra, at

449–50. One NAACP representative testified that

Section 2’s test was much like what was “said about

pornography: ‘I may not be able to define it but I know

it when I see it.’” Senate Report, supra, at 136.

Whatever might be said of that test elsewhere, in a

statute it violates Article I, because it leaves all the

crucial policy questions to the judiciary. “[T]he

statutory

command . . . provides

guidance

concerning which one of the possible standards setting

undiluted voting strength should be chosen over the

others.” Holder, 512 U.S. at 925–26 (Thomas, J.,

concurring

judgment);

accord H. Gerken,

Understanding the Right to an Undiluted Vote, 114

Harv. L. Rev. 1663, 1675 (2001) (“[T]here is no clear

baseline for determining how many additional

majority-minority districts a state can fairly be

expected to create under § 2.”).

To confirm the lack of any intelligible principle, this

Court need look only to its precedents. The Court has

“construed § 2 to prohibit the distribution of minority

voters into districts in a way that dilutes their voting

power.” Wisconsin Legislature v. Wisconsin Elections

Comm’n, 142 S. Ct. 1245, 1248 (2022). “The governing

standard for vote dilution claims under section 2” “is

set forth” in Gingles—not the statute. Merrill v.

Milligan, 142 S. Ct. 879, 882 (2022) (Roberts, C.J.,

dissenting). There is no need to belabor the Gingles

preconditions of compactness, cohesiveness, and blocvoting or the ultimate totality-of-the-circumstances

inquiry. “[I]n their various incarnations and by

whatever names they are known,” they “are nothing

but puffery used to fill out an impressive verbal

formulation and to create the impression that the

outcome in a vote dilution case rests upon a reasoned

evaluation of a variety of relevant circumstances.”

Holder, 512 U.S. at 939 (Thomas, J., concurring in

judgment). Especially when applied to single-member

districts, “phrases such as ‘vote dilution’ and factors

relied upon to determine discriminatory effect are all

but useless as analytical tools.” Mississippi

Republican Exec. Comm. v. Brooks, 469 U.S. 1002,

1012 (1984) (Rehnquist, J., dissenting).

Unsurprisingly, as the Chief Justice recently

explained, “Gingles and its progeny have engendered

considerable disagreement and uncertainty regarding

the nature and contours of a vote dilution claim.”

Merrill, 142 S. Ct. at 882–83 (dissenting opinion). His

citations prove the point:



Gingles, 478 U.S. at 97 (O’Connor, J.,

concurring in judgment) (characterizing the

Court’s approach at the outset as “inconsistent

with . . . § 2’s disclaimer of a right to

proportional representation”);



De Grandy, 512 U.S. at 1028 (Kennedy, J.,

concurring in part and concurring in judgment)

(warning that “placing undue emphasis upon

proportionality risks defeating the goals

underlying the Voting Rights Act”);



Gonzalez v. Aurora, 535 F.3d 594, 597 (CA7

2008) (Easterbrook, J.) (referring to Section 2’s

“famously elliptical” language);



J. Chen & N. Stephanopoulos, The Race-Blind

Future of Voting Rights, 130 Yale L. J. 862, 871

(2021) (describing Section 2 vote dilution

doctrine as “an area of law notorious for its

many unsolved puzzles”); and,



Making Sense of Section 2, supra, at 389 (noting

the lack of any “authoritative resolution of the

basic questions one would need to answer to

make sense of the results test”). See also id. at

381 (“[N]either Congress nor the Supreme

Court has been able or willing to explain what

vote dilution is, except to say that its presence

may be detected through a mysterious judicial

inquiry into the ‘totality of circumstances’”).

“Thirty years later, there is a substantial body of

law interpreting Section 2 but no authoritative

resolution of the basic questions one would need to

answer to make sense of the results test.” Id. at 389;

see id. at 389–94, 407–09 (collecting circuit splits and

intractable questions); Administering Section 2,

supra, at 2164–66 (collecting more splits). This Court’s

effort to make sense of Section 2 has been nothing but

“a disastrous misadventure in judicial policymaking.”

Holder, 512 U.S. at 893 (Thomas, J., concurring in

judgment); see generally A. Thernstrom, Voting Rights

and Wrongs 89–109 (2009).3

Other separation of powers doctrines reinforce the

nondelegation problem with applying the new Section

2 to vote dilution claims. “A statute that does not

contain sufficiently definite and precise standards to

enable Congress, the courts, and the public to

ascertain whether Congress’s guidance has been

followed at once presents a delegation problem and

provides impermissibly vague guidance.” Gundy, 139

S. Ct. at 2142 (Gorsuch, J., dissenting) (cleaned up).

States cannot follow Section 2 or predict its application

because it provides no standard. This Court’s

jurisprudence incomprehensibly requires states to

engage in some—but not too much—racial

discrimination. Section 2 is as void for vagueness as

for being an unconstitutional delegation.

Last, interpreting Section 2 in the vote dilution

context requires “highly political judgments” that

“courts are inherently ill-equipped to make.” Holder,

512 U.S. at 893 (Thomas, J., concurring in judgment).

Specifically, “establish[ing] a benchmark concept of an

‘undiluted’ vote” is “a hopeless project of weighing

questions of political theory.” Id. at 892. The statute

does not provide “[a]ny standard” that is “grounded in

a limited and precise rationale and [is] clear” or

“manageable.” Rucho v. Common Cause, 139 S. Ct.

2484, 2498 (2019) (cleaned up). “Any judicial decision

3 Of course, because Section 2 does not cover vote dilution claims

in the first place, it is hardly surprising that it is incapable of

principled application to these claims. See Holder, 512 U.S. at

914–45 (Thomas, J., concurring in judgment).

on what is [proportional] in this context would be an

unmoored determination of the sort characteristic of a

political question beyond the competence of the federal

courts.” Id. at 2500 (cleaned up).

Even Section 2’s boosters call it “a delegation of

authority to the courts to develop a common law of

racially fair elections.” Making Sense of Section 2,

supra, at 383; see also Gerken, supra, at 1671 (“Vote

dilution doctrine has largely been developed by the

courts over time.”). But our lawmaking is given to

Congress. Congress has not made law here. If anyone

has made anything resembling law, it is this Court.

And that delegation violates the Constitution.

II. The new Section 2 is unconstitutional as

applied below.

Even if Section 2’s results test were otherwise

constitutional, the district court’s application of it

violates the Equal Protection Clause. “Distinctions

between citizens solely because of their ancestry are

by their very nature odious to a free people whose

institutions are founded upon the doctrine of equality.”

Hirabayashi v. United States, 320 U.S. 81, 100 (1943).

“For that reason,” official “classification or

discrimination based on race” is “a denial of equal

protection.” Ibid. “At the heart of the Constitution’s

guarantee of equal protection lies the simple command

that the Government must treat citizens as

individuals, not as simply components of a racial,

religious, sexual or national class.” Miller v. Johnson,

515 U.S. 900, 911 (1995) (cleaned up); see Plessy v.

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

dissenting) (“The law” “takes no account of” a citizen’s

“color when his civil rights as guaranteed by the

supreme law of the land are involved.”).

Accordingly, “[u]nder the Equal Protection Clause,

districting maps that sort voters on the basis of race

are

their

very

nature

odious”—and

unconstitutional. Wisconsin Legislature, 142 S. Ct. at

1248 (cleaned up). Yet such odiously discriminatory

maps are what the court below ordered. The plaintiffs’

experts used computer simulations to draw millions of

neutral maps “without taking race into account,” and

none produced two majority-minority districts. MSA

364. So their experts instead discriminated based on

race “on purpose,” MSA 367, forcing simulations that

drew two majority-minority districts as a

“nonnegotiable principle,” MSA 344; see MSA 322 (“I

needed to make sure that the districts I was creating

would be over 50 percent black.”). The district court

accepted this analysis. It agreed that consideration “of

race likely is required to draw two majority-Black

districts.” MSA 261. The district court emphasized

that “[b]eyond ensuring crossing that 50 percent line,

there was no further consideration of race.” MSA 263.

Construing Section 2 to require threshold

discrimination based on race is unconstitutional. As

shown above, the new Section 2 is facially incongruent

to the constitutional prohibition on intentional

discrimination. But nothing could be more

incongruent than interpreting it to require racial

discrimination. If, besides all the disproportionate

aspects of the statute addressed above, an application

of Section 2 requires race to overlay traditional

redistricting principles, it is unconstitutional.

Invoking some of this Court’s more confused

precedents, the district court said that the plaintiffs’

proposed remedies did not have “a level of racial

manipulation that exceeds what § 2 could justify.”

MSA. 216 (quoting Bush v. Vera, 517 U.S. 952, 980–81

(1996)). An “acceptable” level of racial manipulation is

difficult to countenance. This Court has rejected it in

almost all other contexts, holding that an “invidious

discriminatory purpose” may not be even “a

motivating factor.” Village of Arlington Heights v.

Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977).4

Only here does the Court excuse racial discrimination

if it is merely “a motivation” rather than “the

predominant factor.” Easley v. Cromartie, 532 U.S.

234, 241 (2001) (cleaned up); id. at 257 (permitting

“racial considerations” that are not “dominant and

controlling”). But see Miller, 515 U.S. at 914

(“districting cases” are not “excepted from standard

equal protection precepts”).

Defenses of this watered-down protection are

nonsensical. According to one opinion, for instance,

“Racial gerrymandering of the sort being addressed in

these cases is ‘discrimination’ only in the sense that

the lines are drawn based on race, not in the sense that

harm is imposed on specific persons on account of their

race.” Vera, 517 U.S. at 1008 (Stevens, J., dissenting);

cf. Plessy, 163 U.S. at 552 (Harlan, J., dissenting)

(“separate but equal”). But “[w]hen the State assigns

voters on the basis of race, it engages in the offensive

and demeaning assumption that voters of a particular

race, because of their race, think alike, share the same

political interests, and will prefer the same candidates

at the polls.” Miller, 515 U.S. at 911–12 (cleaned up).

Such classifications necessarily “promote notions of

racial inferiority and lead to a politics of racial

hostility.” City of Richmond v. J.A. Croson Co., 488

U.S. 469, 493 (1989) (plurality opinion).

4 But see generally Grutter v. Bollinger, 539 U.S. 306 (2003);

Korematsu v. United States, 323 U.S. 214 (1944).

That is true even if racial segregation is just one

motivation. Racial classifications “reinforce the belief,

held by too many for too much of our history, that

individuals should be judged by the color of their skin.”

Shaw v. Reno, 509 U.S. 630, 657 (1993). “Racial

classifications with respect to voting carry particular

dangers.” Ibid. The “use of a mathematical formula to

assure a minimum number of majority-minority

districts tends to sustain the existence of ghettos by

promoting the notion that political clout is to be gained

or maintained by marshaling particular racial, ethnic,

or religious groups in enclaves.” De Grandy, 512 U.S.

at 1030 (Kennedy, J., concurring in part and in

judgment) (cleaned up). “Racial gerrymandering, even

for remedial purposes, may balkanize us into

competing racial factions; it 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, and to which the

Nation continues to aspire.” Miller, 515 U.S. at 912.

When racial lines are drawn, “the multiracial

. . . communities that our Constitution seeks to weld

together as one become separatist; antagonisms that

relate to race . . . rather than to political issues are

generated; communities seek not the best

representative but the best racial . . . partisan.” Reno,

509 U.S. at 648 (quoting Wright v. Rockefeller, 376

U.S. 52, 67 (1964) (Douglas, J., dissenting)). “[T]hat

system”—which Section 2 encourages—“is at war with

the democratic ideal.” Id. at 648–49.

In all events, when the government “intentionally

creates a majority-minority district, race is necessarily

its predominant motivation.” League of United Latin

Am. Citizens v. Perry, 548 U.S. 399, 517 (2006) (Scalia,

J., concurring in judgment in part and dissenting in

part, joined by Roberts, C.J., and Thomas & Alito, JJ.).

That millions of neutral maps here never produced two

majority-minority

district

proves

that

race

predominated. The map demanded by the district

court “would not have existed but for the express use

of racial classifications,” so it “must be viewed as a

racial gerrymander.” Vera, 517 U.S. at 1001 (Thomas,

J., concurring in judgment). That map would have

been invalidated as unconstitutional if enacted by

Alabama in the first place. And contra the court below,

it makes no difference that the plaintiffs “prioritized

race only for the purpose of determining and to the

extent necessary to” state a claim and that this racial

discrimination was followed by the application of

“traditional redistricting criteria.” MSA 214. “This

working backward to achieve a particular type of

racial balance” “is a fatal flaw.” Parents Involved, 551

U.S. at 729 (plurality opinion).

“The way to stop discrimination on the basis of race

is to stop discriminating on the basis of race.” Id. at

748. This Court “would no doubt apply” the Equal

Protection Clause in full “if a [government] decreed

that certain districts had to be at least 50 percent

white.” Vera, 517 U.S. at 996 (Kennedy, J.,

concurring). Its “analysis should be no different if the

[government] so favors minority races.” Ibid. Only

racial segregation explains the map ordered by the

district court. Its order violates Equal Protection.

III. Complying with the new Section 2 is not a

compelling interest.

Invoking strict scrutiny to excuse the district

court’s racial gerrymander, the plaintiffs have said

that “racial targets are not per se unconstitutional

when supported by a functional analysis and narrowly

tailored to further the compelling government interest

in complying with the VRA.” Milligan Opp. to

Emergency App. for Stay 29 n.5. The district court held

that racially discriminatory maps here would pass

strict scrutiny based on “the case law assuming that

compliance with the Voting Rights Act is a sufficient

reason.” MSA 216. That assumption is wrong, even on

the dubious view that strict scrutiny ever provides a

valid exception to Equal Protection. A bare interest in

complying with the new Section 2 cannot justify a

constitutional violation.

The “balancing test” of strict scrutiny arose in the

1950s and 1960s in the First Amendment context.

Ramirez v. Collier, 142 S. Ct. 1264, 1286–87 & n.1

(2022) (Kavanaugh, J., concurring); see Heller v.

District of Columbia, 670 F.3d 1244, 1280–81 (CADC

2011) (Kavanaugh, J., dissenting). Though the test

finds no footing in the Constitution’s text or history, it

has infected other areas of the law and was eventually

applied to racial classifications under the Equal

Protection Clause. See Palmore v. Sidoti, 466 U.S. 429,

432–33 (1984).

“The illegitimacy of using ‘made-up tests’ to

‘displace longstanding national traditions as the

primary determinant of what the Constitution means’

has long been apparent.” Whole Woman’s Health v.

Hellerstedt, 136 S. Ct. 2292, 2327 (2016) (Thomas, J.,

dissenting) (quoting United States v. Virginia, 518

U.S. 515, 570 (1996) (Scalia, J., dissenting)). “The

Constitution does not prescribe tiers of scrutiny.” Ibid.

And no historical evidence supports the proposition

that a constitutional violation is excused if the

government comes up with a good enough reason.

More, strict scrutiny is incapable of principled

judicial application. “[W]hat does ‘compelling’ mean,

and how does the Court determine when the State’s

interest rises to that level?” Ramirez, 142 S. Ct. at

1287 (Kavanaugh, J., concurring). “Good questions, for

which there are no great answers.” Ibid. Strict

scrutiny “requires judges to engage recurrently in only

minimally structured appraisals of the significance of

competing values or interests in many cases.” Id. at

1287 n.1. The appraisal is “difficult” and “necessarily

imprecise.” Id. at 1288. And unsurprisingly, it often

ends up aligning with “the Court’s own intuitive policy

assessment.” Ibid.; see also Hellerstedt, 136 S. Ct. at

2327–28 (Thomas, J., dissenting) (noting “how easily

the Court tinkers with levels of scrutiny to achieve its

desired” “policy preferences”). Thus, not only is strict

scrutiny untethered from the Constitution’s text and

history, it is a “vague and amorphous test[]” that is

“antithetical to impartial judging.” B. Kavanaugh,

Keynote Address: Two Challenges for the Judge As

Umpire: Statutory Ambiguity and Constitutional

Exceptions, 92 Notre Dame L. Rev. 1907, 1919 (2017).

And the legal gymnastics required by “[t]his kind of

decisionmaking threatens to undermine the stability

of the law and the neutrality (actual and perceived of

the judiciary.” B. Kavanaugh, Book Review, Fixing

Statutory Interpretation, 129 Harv. L. Rev. 2118, 2143

(2016).

This case proves the point and offers a chance to

correct a recurring mangling of strict scrutiny.

Following this Court’s lead, the district court assumed

a “compelling” government interest in engaging in the

precise type of intentional discrimination that the

Constitution bars. MSA 216. Lest there be any

confusion, this assumed interest is not a proxy for

righting past wrongs. This Court has assumed that

“compliance with the Act, standing alone, can provide

a compelling interest independent of any interest in

remedying past discrimination.” Miller, 515 U.S. at

921.5

That assumption is wrong. First, it makes little

sense to characterize compliance with a statute as

justifying a violation of the Constitution. See U.S.

Const. art. VI, cl. 2 (Supremacy Clause). The Court’s

assumption “take[s] the effect of the statute and

posit[s] that effect as the [government’s] interest.”

Simon & Schuster, Inc. v. Members of New York State

Crime Victims Bd., 502 U.S. 105, 120 (1991). “If

accepted, this sort of circular defense [would] sidestep

judicial review of almost any statute, because it makes

all statutes look narrowly tailored.” Ibid.

Second, “[r]acial balancing is not transformed from

‘patently unconstitutional’ to a compelling state

interest simply by relabeling it” compliance with the

VRA. Parents Involved, 551 U.S. at 732 (plurality

opinion). “History should teach” that courts cannot

“distinguish good from harmful governmental uses of

racial criteria.” Id. at 742. Any such distinction

“reflects only acceptance of the current generation’s

conclusion that a politically acceptable burden,

imposed on particular citizens on the basis of race, is

reasonable.” Ibid.

That conclusion, in turn, hinges on “the very

stereotypical assumptions the Equal Protection

Clause forbids.” Miller, 515 U.S. at 914. Here, it is

“based on the demeaning notion that members of the

5 To forestall another potential response, “alleviat[ing] the effects

of societal discrimination is not a compelling interest.” Shaw v.

Hunt, 517 U.S. 899, 909–10 (1996).

defined racial groups ascribe to certain ‘minority

views’ that must be different from those of other

citizens.” Ibid. This is “the precise use of race as a

proxy the Constitution prohibits.” Ibid.

Third, saying that compliance with the VRA is a

compelling interest improperly defers constitutional

decision-making to the political branches. It allows

Congress to narrow the Constitution’s protections

without bothering to amend it. See U.S. Const. art. V.

“The history of racial classifications in this country

suggests that blind judicial deference to legislative or

executive pronouncements of necessity has no place in

equal protection analysis.” J.A. Croson, 488 U.S. at

501 (citing Korematsu, 323 U.S. at 235–240 (Murphy,

J., dissenting)). “[S]uch deference is fundamentally at

odds with our equal protection jurisprudence.”

Johnson v. California, 543 U.S. 499, 506 n.1 (2005).

Congress does not have “the power to determine what

are and what are not ‘compelling state interests’ for

equal protection purposes.” Oregon v. Mitchell, 400

U.S. 112, 295 (1970) (Stewart, J., concurring in part

and dissenting in part).

In no other “context” would this Court “assume[]

away part of the [government’s] burden to justify its

intentional use of race.” Bethune-Hill v. Virginia State

Bd. of Elections, 137 S. Ct. 788, 804 (2017) (Thomas,

J., concurring in judgment in part and dissenting in

part). The Court would not have “assumed” that

Topeka’s Board of Education had a compelling interest

in complying with Kansas law or local policy by

segregating its schools, even though that is how the

Board justified segregation:

[T]he Kansas legislature has simply recognized

that there are situations where Negroes live in

sufficient numbers to create special school

problems and has sought to provide a law

sufficiently elastic to enable Boards of

Education in such communities to handle such

problems as they may, in the exercise of their

discretion and best judgment, deem most

advantageous to their local school system under

their local conditions.

Brief for Appellees 16, Brown v. Bd. of Educ. of Topeka,

Nos. 1, 2, 4, 10, 1952 WL 87553 (Dec. 8, 1952); id. at

31–32 (“This was the method provided by the

legislature of the State of Kansas”). “It is not up to the

school boards—the very government entities whose

race-based practices we must strictly scrutinize—to

determine what interests qualify as compelling under

the Fourteenth Amendment.” Parents Involved, 551

U.S. at 765 (Thomas, J., concurring).

Nor would anyone “assume” that the District of

Columbia had a compelling interest in “compliance”

with Congress’s “various enactments” requiring that

“schools for white and colored children . . . be

separate.” Carr v. Corning, 182 F.2d 14, 18 (CADC

1950).6 This Court held that the District of Columbia

could not show even a “proper governmental objective”

sufficient for rational basis review, so compliance with

Congress’s laws would be far from a compelling

interest. Bolling v. Sharpe, 347 U.S. 497, 500 (1954).

6 “The Negro who decides to settle in the District . . . must send

his children to the inferior public schools set aside for Negroes

and entrust his family’s health to medical agencies which give

inferior service. In addition, he must endure the countless daily

humiliations that the system of segregation imposes upon the

one-third of Washington that is Negro.” Brief for the United

States as Amicus Curiae 5, Brown, 1952 WL 82045 (Dec. 2, 1952).

Fourth, calling the assumed interest “compliance

with the VRA” misses the distinction between the new

Section 2 and the original Voting Rights Act. For

instance, it might have once made sense to assume an

interest in complying with VRA Section 5, when it was

“a proper exercise of Congress’s authority” and

“remed[ied] identified past discrimination” in

“jurisdictions with a history of official discrimination.”

LULAC, 548 U.S. at 518–19 (Scalia, J., concurring in

judgment in part and dissenting in part). As shown

above, that does not describe the new Section 2. Yet

the Court has assumed compliance with the new

Section 2 is a compelling interest even with no

identifiable (much less intentional) discrimination.

The only race discrimination here is offered by the

plaintiffs and the district court.

Fifth and last, the Court has compounded the error

of its compelling interest assumption by suggesting

that “consideration of race in making a districting

decision is narrowly tailored . . . if the [government]

has good reasons for believing that its decision is

necessary in order to comply with the VRA.” Abbott,

138 S. Ct. at 2315 (cleaned up).7 In other words, not

only is compliance with the VRA presumed to be a

compelling

government

interest,

but

racial

segregation is “narrowly tailored” even if not required

to comply with the VRA. This is lawlessness stacked

on lawlessness. This “approach to narrow tailoring—

7 Other decisions have suggested the necessary “strong basis” is

a prerequisite for the compelling interest part of strict scrutiny.

E.g., Hunt, 517 U.S. at 908 n.4. But see Vera, 517 U.S. at 977

(plurality opinion) (part of narrow tailoring). Either way, it makes

no sense. And the Court’s inability to articulate whether it is part

of the compelling interest prong or the narrow tailoring prong

highlights the silliness of the whole enterprise.

deferring to a [government’s] belief that it has good

reasons to use race—is ‘strict’ in name only.” BethuneHill, 137 S. Ct. at 805 (Thomas, J., concurring in

judgment in part and dissenting in part); see, e.g.,

Vera, 517 U.S. at 978 (plurality opinion) (“[D]eference

is due to [states’] reasonable fears of, and to their

reasonable efforts to avoid, § 2 liability.”).

Leaving

this

Court’s

“equal

protection

jurisprudence” to “the mercy of elected government

officials”—both state legislatures and Congress—

“would be to abdicate [the Court’s] constitutional

responsibilities.” Parents Involved, 551 U.S. at 766

(Thomas, J., concurring). Compliance with an

unconstitutional statute is not a compelling

government interest. Racial segregation not mandated

by the statute is not narrowly tailored to compliance

with the statute. This Court cannot “defer to

legislative majorities where the Constitution forbids

it.” Id. at 766 n.14. Racial segregation violates Equal

Protection. So does Section 2 here.

CONCLUSION

For the last 40 years, Section 2 has “involved the

federal courts, and indeed the Nation, in the

enterprise of systematically dividing the country into

electoral districts along racial lines—an enterprise of

segregating the races into political homelands that

amounts, in truth, to nothing short of a system of

political apartheid.” Holder, 512 U.S. at 905 (Thomas,

J., concurring in judgment). This Court should do more

than reverse. It should end our Nation’s decades-long

unconstitutional experiment with court-mandated

racial segregation in redistricting.

Respectfully submitted,