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

Nos. 21-1086, 21-1087

In the Supreme Court of the United States

_______________

JOHN H. MERRILL, et al.,

Appellants,

v.

EVAN MILLIGAN, et al.,

Appellees.

________________

JOHN H. MERRILL, et al.,

Petitioners,

v.

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 OF THE PROJECT ON FAIR

REPRESENTATION AS AMICUS CURIAE IN

SUPPORT OF APPELLANTS/PETITIONERS

_______________

JONATHAN BERRY

Counsel of Record

R. TRENT MCCOTTER

MICHAEL BUSCHBACHER

JARED M. KELSON

BOYDEN GRAY & ASSOCIATES

801 17th St. NW, #350

Washington, DC 20006

(202) 955-0620

berry@boydengrayssociates.com

May 2, 2022

Counsel for Amicus Curiae

TABLE OF CONTENTS

TABLE OF CONTENTS ............................................. i

TABLE OF AUTHORITIES....................................... ii

INTEREST OF AMICUS CURIAE ........................... 1

INTRODUCTION ....................................................... 2

SUMMARY OF ARGUMENT .................................... 6

ARGUMENT .............................................................. 8

I.

II.

Section 2 Does Not Authorize Vote Dilution

Claims. ................................................................ 9

A.

Redistricting Decisions Are Not Covered by

Section 2’s Text. ........................................... 9

B.

Any Other Interpretation Would Create a

Statute that Exceeds Congress’s Authority

Under the Fifteenth Amendment. ............ 10

Gingles’ Framework for Vote Dilution Claims is

Unworkable. ...................................................... 13

III. Requiring Race-Conscious Redistricting Violates

the Fourteenth Amendment. ............................ 15

CONCLUSION ......................................................... 17

ii

TABLE OF AUTHORITIES

Cases

Adarand Constructors, Inc. v. Peña,

515 U.S. 200 (1995) ............................................... 5

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

Brnovich v. Democratic Nat’l Comm.,

141 S. Ct. 2321 (2021) ................................ 8, 9, 14

Brown v. Board of Educ., 347 U.S. 483 (1954) ......... 16

City of Boerne v. Flores,

521 U.S. 507 (1997) .................................. 7, 11, 12

City of Mobile v. Bolden, 446 U.S. 55 (1980) ............ 10

Emp. Div., Dep’t of Hum. Res. of Or. v. Smith,

494 U.S. 872 (1990) ............................................ 11

Evenwel v. Abbott, 136 S. Ct. 1120 (2016) .................. 1

Fisher v. Univ. of Tex. at Austin,

570 U.S. 297 (2013) .............................................. 1

Fisher v. Univ. of Tex. at Austin,

136 S. Ct. 2198 (2016) .......................................... 1

Gayle v. Browder, 352 U.S. 903 (1956) ..................... 16

Grutter v. Bollinger, 539 U.S. 306 (2003) ............. 8, 16

Holder v. Hall, 512 U.S. 874 (1994) ............. 4, 6, 9, 16

Holmes v. Atlanta, 350 U.S. 879 (1955).................... 16

Johnson v. De Grandy, 512 U.S. 997 (1994)............. 14

League of United Latin Am. Citizens v. Perry,

548 U.S. 399 (2006) ............................................. 14

Mayor of Balt. v. Dawson, 350 U.S. 877 (1955)........ 16

Merrill v. Milligan, 595 U.S. ___ (2022) ..................... 4

iii

Miller v. Johnson, 515 U.S. 900 (1995) ............... 3, 15

New Orleans City Park Improvement Ass’n v.

Detiege, 358 U.S. 54 (1958) ................................. 16

Nw. Austin Mun. Util. Dist. No. One v. Holder,

557 U.S. 193 (2009) ............................................... 1

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

Dist. No. 1, 551 U.S. 701 (2007) ........................... 5

Payne v. Tennessee, 501 U.S. 808, 827 (1991) ............ 9

Plessy v. Ferguson, 163 U.S. 537 (1896) ................. 2, 5

Regents of Univ. of Cal. v. Bakke,

438 U.S. 265 (1978) ............................................... 6

Reno v. Bossier Par. Sch. Bd.,

520 U.S. 471 (1997) ........................................ 7, 11

Ricci v. DeStefano, 557 U.S. 557 (2009) ................... 13

Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) .. 16

Rogers v. Lodge, 458 U.S. 613 (1982) ...................... 13

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

Shaw v. Reno, 509 U.S. 630 (1993) .......... 2, 3, 4, 5, 15

Hirabayashi v. United States, 320 U.S. 81 (1943) .... 2

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

South Carolina v. Katzenbach,

383 U.S. 301 (1966) ............................................ 12

Thornburg v. Gingles, 478 U.S. 30 (1986) ........ passim

Vill. of Arlington Heights v. Metro. Hous. Dev. Corp.,

429 U.S. 252 (1977) ............................................ 10

Whitcomb v. Chavis, 403 U.S. 124 (1971) ................ 10

iv

U.S. Constitution

U.S. Const. amend. XIV ............................................ 11

U.S. Const. amend XV........................................... 7, 11

Statutes

42 U.S.C. § 2000bb .................................................... 11

52 U.S.C. § 10301 .................................................... 8, 9

Other Authority

C.S. Lewis, The Great Divorce (2000 ed.) ................... 5

S. Rep. 97-417 (1982)............................................. 7, 12

1

INTEREST OF AMICUS CURIAE 1

The Project on Fair Representation is a public-interest organization committed to the principle that racial and ethnic classifications are unconstitutional,

unfair, and harmful. It works to advance race-neutral

rules in education, government action, and voting.

The Project pursues these goals through education

and advocacy and has been involved in several cases

before the Court involving these important issues. 2

The Project has a direct interest in this case because it opposes racial gerrymandering of all kinds.

Eliminating racial sorting in redistricting is not only

what our Constitution requires, but it is also a needed

remedy for our Nation’s increasingly polarized and racialized politics. Single member districts drawn on

race-neutral principles that connect compact, contiguous neighborhoods (for example, by using elementaryschool attendance zones as the building blocks) may

not have the racial percentages sought by political

parties, but they help us move past racial stereotyping

and incentivize candidates for office and elected representatives to find more middle ground, based on

what their constituents want.

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

party’s counsel authored this brief in whole or in part, and no

person or entity other than amicus or its counsel made a monetary contribution intended to fund its preparation or submission.

2 E.g., Fisher v. Univ. of Tex. at Austin, 136 S. Ct. 2198 (2016);

Evenwel v. Abbott, 136 S. Ct. 1120 (2016); Shelby Cty. v. Holder,

570 U.S. 529 (2013); Fisher v. Univ. of Tex. at Austin, 570 U.S.

297 (2013); Nw. Austin Mun. Util. Dist. No. One v. Holder, 557

U.S. 193 (2009).

2

INTRODUCTION

“In respect of civil rights, common to all citizens, the

constitution of the United States does not, I think,

permit any public authority to know the race of those

entitled to be protected in the enjoyment of such

rights.”

Plessy v. Ferguson, 163 U.S. 537, 554 (1896) (Harlan,

J., dissenting)

Justice Harlan was right. The constitutional sea

change wrought by the Thirteenth, Fourteenth, and

Fifteenth Amendments requires governmental colorblindness. It is not a mandate for a judicially created

society of perfect equality (as if that were within

courts’ power). Nor is it permission for courts to ensure a “fair” allocation of political power among racial

groups. Rather, the colorblind constitution is like the

charred stake that Odysseus drove into the eye of Cyclops to escape that monster’s man-eating tyranny.

The prohibitions in the Reconstruction Amendments

require a complete and fundamental destruction of

the government’s ability to use—and even to perceive—racial categories, categories created to justify

and perpetuate the oppressive caste systems of slavery and Jim Crow.

Sadly, despite its recognition that racial categories “are by their very nature odious to a free people

whose institutions are founded upon the doctrine of

equality,” Shaw v. Reno, 509 U.S. 630, 642, 643 (1993)

(“Shaw”) (quoting Hirabayashi v. United States, 320

U.S. 81, 100 (1943)), this Court has not always insisted on colorblindness. The various exceptions and

3

confusions regarding this principle—however “narrow” or well intentioned they may be—have in practice blessed a continuation of racial discrimination

that the Fourteenth and Fifteenth Amendments forbid. As everyone who lived through the summer of

2020 knows, our society is now more racialized and divided than perhaps any time since the Civil Rights

era.

This polarization is particularly acute in disputes

about redistricting. More and more, fights over gerrymandering have been based on “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 v. Johnson, 515 U.S. 900, 912

(1995) (quoting Shaw, 509 U.S. at 647).

The decision below is but one example. Everyone

recognizes that Section 2 of the Voting Rights Act as

originally understood was passed to make good on the

promise of the Fifteenth Amendment to end racial discrimination in the rules governing voting. Yet, as this

case illustrates, in the hands of the courts it has come

to require just the opposite—not merely race-consciousness to achieve the “right” kind of open racial

politics, whatever that may mean, but a prioritization

of race above every other criteria to achieve the proportional representation of different racial groups. As

plaintiffs’ experts’ statistical modelling shows, it’s not

possible to use race-neutral criteria to create the kind

of voting map for Alabama that the district court held

that Section 2 requires.

4

As Petitioners have ably argued, this interpretation of the current version of Section 2 is impermissible under this Court’s precedents. Yet the blame cannot be laid solely on the judges who wrote the decision

below. As the Chief Justice noted in response to the

petition for a writ of certiorari, much of the fault lies

with this Court, and in particular its decision in

Thornburg v. Gingles, 478 U.S. 30 (1986): “[I]t is fair

to say that Gingles and its progeny have engendered

considerable disagreement and uncertainty regarding

the nature and contours of a vote dilution claim.” Merrill v. Milligan, 595 U.S. ___, ___ (2022) (Roberts, C.J.,

dissenting from grants of applications for stays). The

Chief Justice correctly noted that these problems cry

out for this Court’s attention and correction.

Rather than claiming to find a mandate in the

mare’s nest of this Court’s Section 2 jurisprudence,

this Court should return to the only interpretive

framework that the Constitution permits—race neutrality. Previous attempts to apply or clarify Gingles’

standard for vote dilution claims have led courts into

interpretive blind alleys that do violence to the text of

the statute and the Constitution. The entire “remedial

mechanism” this Court has embraced “encourages

federal courts to segregate voters into racially designated districts to ensure minority electoral success,” a

“collaboration in what may aptly be termed the racial

‘balkanization’ of the Nation.” Holder v. Hall, 512 U.S.

874, 892 (1994) (Thomas, J., joined by Scalia, J., concurring in the judgment) (quoting Shaw, 509 U.S. at

658).

Not all “who choose wrong roads perish; but their

rescue consists in being put back on the right road. A

sum can be put right: but only by going back til you

5

find the error and working it afresh from that point,

never by simply going on.” C.S. Lewis, The Great Divorce viii (2000 ed.). The road of race-conscious districting is wrong. The very attempt to use racial distinctions “for good” is self-defeating. That is why Justice Harlan believed not only that the government

may not use racial categories, but that it cannot even

be trusted “to know the race of those entitled to be protected in the enjoyment of [their] rights.” Plessy, 163

U.S. at 554 (Harlan, J., dissenting) (emphasis

added). 3

As this Court has explained, racial “classifications promote ‘notions of racial inferiority and lead to

a politics of racial hostility,’ ‘reinforce the belief, held

by too many for too much of our history, that individuals should be judged by the color of their skin,’ and

‘endorse race-based reasoning and the conception of a

Nation divided into racial blocs, thus contributing to

an escalation of racial hostility and conflict.’” Parents

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

U.S. 701, 746 (2007) (plurality opinion) (citations

omitted).

There is only one path out: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Id. at 748. As Justice Thomas

has noted, “Government cannot make us equal; it can

only recognize, respect, and protect us as equal before

the law.” Adarand Constructors, Inc. v. Peña, 515 U.S.

3 This Court’s assertion in Shaw, 509 U.S. at 646, that “the leg-

islature always is aware of race when it draws district lines” is

incorrect. In this case, for instance, the mapdrawer was not able

to see any racial demographic information throughout the drawing process. See JA274-75; SJA88; MSA34.

6

200, 240 (1995) (Thomas, J., concurring in part and

concurring in the judgment) (cleaned up).

The alternative to colorblindness is Justice

Blackmun’s Animal Farm-esque koan that “[i]n order

to get beyond racism, we must first take account of

race. . . . And in order to treat some persons equally,

we must treat them differently.” Regents of Univ. of

California v. Bakke, 438 U.S. 265, 407 (1978)

(Blackmun, J., dissenting).

There is no compromise possible between these

two alternatives, and this Court’s attempts to have it

both ways in the Section 2 context have failed. Pretending otherwise has required what Justice Thomas,

joined by Justice Scalia, rightly described as judicial

“equivocation” and “dissembling,” “an empty incantation—a mere conjurer’s trick that serves to hide

the drive for proportionality that animates our decisions.” Holder, 512 U.S. at 942, 943–44 (Thomas, J.,

joined by Scalia, J., concurring in the judgment). This

“practice should not continue. Not for another Term,

not until the next case, not for another day.” Id. at

944.

This Court should finally and fully reject raceconscious districting in voting rights cases. Section 2

and the Constitution demand nothing less.

SUMMARY OF ARGUMENT

For decades, this Court has with few exceptions

condemned racial gerrymandering for what it is, an

“odious” and destructive practice incompatible with

the clear text of the Constitution. Alongside this, however, this Court has also rendered a series of “vote di-

7

lution” cases anchored in Gingles that have taken Section 2 of the Voting Rights Act to allow—or as the district court read them, to require—just the opposite.

This Court should overrule Gingles and its progeny for

at least three reasons.

First, Section 2’s text does not authorize vote dilution claims. Rather, it applies to measures that govern voting access: rules about any “voting qualification or prerequisite to voting, or standard, practice, or

procedure.” A return to the plain meaning of this text

is justified for all the reasons that Justice Thomas set

forth in his concurrence in Holder v. Hall, and—additionally—because Gingles’ broader construction, creating a statutory prohibition on state action that “results in” vote dilution, exceeds Congress’s “power to

enforce” the Fifteenth Amendment “by appropriate

legislation.” U.S. Const. amend XV, § 2.

Relying heavily on legislative history, Gingles

and its progeny construed the 1982 Amendments to

the Voting Rights Act as a legislative overruling of

Bolden’s “intent test” for vote dilution, going so far as

to accept the claim that the amendments to Section 2

were “the best example of Congress’ power to enact

implementing legislation that goes beyond the direct

prohibitions of the Constitution itself.” Reno v. Bossier

Par. Sch. Bd., 520 U.S. 471, 482 (1997) (quoting S.

Rep. 97-417, 38 (1982)). But under City of Boerne v.

Flores, Congress’s authority “to enforce” a constitutional guarantee “by appropriate legislation” does not

allow it to expand or rewrite that guarantee. 521 U.S.

507, 519–20 (1997). Rather, enforcing legislation must

be “congruen[t]” and “proportional[]” to the constitu-

8

tional provision it seeks to support. Id. at 520. Applying the “results” test adopted by Gingles to vote dilution is incompatible with this requirement.

Second, extending Section 2 to apply to vote dilution claims puts courts in an impossible position. Section 2 expressly states that it may not be read to require “a right to have members of a protected class

elected in numbers equal to their proportion in the

population.” 52 U.S.C. § 10301(b). But determining

whether a vote has been “diluted” requires just this

inquiry. Rather than say the quiet part out loud,

courts have instead “distort[ed] [their] decisions to obscure the fact that the political choice at the heart of

[this Court’s] cases rests on precisely the principle the

Act condemns,” Holder, 512 U.S. at 936 (Thomas, J.,

joined by Scalia, J., concurring in the judgment), an

untenable and discrediting state of affairs that this

Court has tolerated for far too long.

Third, Gingles’ de facto requirement of proportional representation violates the Constitution for all

the reasons set forth in the introduction. The effort to

ensure that the body of elected officials “looks like” the

body politic is “racial balancing, which is patently unconstitutional” under the Fourteenth Amendment.

Grutter v. Bollinger, 539 U.S. 306, 330 (2003).

ARGUMENT

Something must be done about Gingles. This was

plain from the moment that case was decided. As this

Court recently noted, while Gingles has become “our

seminal § 2 vote-dilution case,” it is remarkably shy

about what the text of that statute requires. Brnovich

v. Democratic Nat’l Comm., 141 S. Ct. 2321, 2337

(2021). Gingles “quoted the text of amended § 2 and

9

then jumped right to the Senate Judiciary Committee

Report, which focused on the issue of vote dilution.”

Id. And while many “subsequent vote-dilution cases

have largely followed the path that Gingles charted,”

“[t]oday, our statutory interpretation cases almost always start with a careful consideration of the text.” Id.

Of course, Gingles was not decided today, but

more than thirty years ago. Especially in matters of

statutory interpretation, the principle of stare decisis

puts a heavy thumb on the scale in favor of the status

quo. But it is not so heavy that it cannot be outweighed “when governing decisions are unworkable or

are badly reasoned.” Payne v. Tennessee, 501 U.S. 808,

827 (1991). Gingles is both, and its reimagined version

of Section 2 is unconstitutional to boot. This Court

should say so and return to that statute’s textual requirements.

I.

Section 2 Does Not Authorize Vote Dilution

Claims.

A. Redistricting Decisions Are Not Covered

by Section 2’s Text.

The existence of a “Section 2 vote dilution claim”

is not something any objective reader can find in the

text of that provision. In both its original and

amended forms, Section 2 applies only to state actions

establishing a “voting qualification or prerequisite to

voting, or standard, practice, or procedure.” 52 U.S.C.

§ 10301(a).

As Justice Thomas explained at length more than

two decades ago, these terms plainly refer to government action that “regulates citizens’ access to the ballot—that is, any procedure that might erect a barrier

10

to prevent the potential voter from casting his vote.”

Holder, 512 U.S. at 917 (Thomas, J., joined by Scalia,

J., concurring in the judgment). Redistricting decisions, however, affect no one’s right to cast a vote, but

only the geographic, demographic, and political context in which that vote is counted.

Tellingly, Gingles said virtually nothing about

this issue, but instead relied on the legislative history

as “the authoritative source for legislative intent” justifying Section 2’s application to vote dilution

claims. 478 U.S. at 43 n.7. Justice Thomas’s opinion

in Holder explaining why this was unsupportable has

never been refuted. The text of Section 2 simply cannot be squared with Gingles’ holding that that provision authorizes vote dilution claims.

B. Any Other Interpretation Would Create a

Statute that Exceeds Congress’s Authority

Under the Fifteenth Amendment.

Considerations of constitutional avoidance further underscore the need to return to the textual limits of Section 2, as application of Gingles’ “results test”

to vote dilution claims would exceed Congress’s

“power to enforce” the Fifteenth Amendment “by appropriate legislation.” U.S. Const. amend XV, § 2.

This Court has held that “action by a State that

is racially neutral on its face violates the Fifteenth

Amendment only if motivated by a discriminatory

purpose.” City of Mobile v. Bolden, 446 U.S. 55, 62

(1980) (plurality); see id. at 65 (“That Amendment prohibits only purposefully discriminatory denial or

abridgment by government of the freedom to vote ‘on

account of race, color, or previous condition of servitude.’”). A Fourteenth Amendment violation likewise

11

requires intentional discrimination. Vill. of Arlington

Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265

(1977) (“Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause.”); Whitcomb v. Chavis, 403 U.S. 124,

149 (1971); see also Reno v. Bossier Par. Sch. Bd., 520

U.S. 471, 481 (1997) (“[A] plaintiff bringing a constitutional vote dilution challenge, whether under the

Fourteenth or Fifteenth Amendment, has been required to establish that the State or political subdivision acted with a discriminatory purpose.”).

Congress has “power to enforce” these amendments “by appropriate legislation.” U.S. Const.

amend. XIV, § 5; id. amend XV, § 2. But as this Court

explained in City of Boerne, “[t]here must be a congruence and proportionality between the [constitutional]

injury to be prevented or remedied and the means

adopted to that end.” 521 U.S. at 520. This emphasis

on “congruence and proportionality” appropriately

limits Congress to adopting “measures that remedy or

prevent unconstitutional actions,” and it prohibits

Congress form adopting “measures that make a substantive change in the governing law.” Id. at 519.

The facts of City of Boerne run parallel to this

case. Congress passed the Religious Freedom Restoration Act of 1993 (“RFRA”), 107 Stat. 1488, 42 U.S.C. §

2000bb et seq., to prohibit governmental entities from

“substantially burden[ing]” the exercise of religion unless it “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means

of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb–1. RFRA was a direct response to this Court’s decision in Employment Division, Dep’t of Human Resources of Oregon v.

12

Smith, 494 U.S. 872 (1990), which held that neutral

laws of general applicability do not violate the religious liberties granted in the First Amendment. 494

U.S. at 878.

City of Boerne explained that Congress’s power to

enforce the Fourteenth Amendment (which incorporates the First Amendment) is “‘remedial’” and “inconsistent with the suggestion that Congress has the

power to decree the substance of the Fourteenth

Amendment’s restrictions on the States.” 521 U.S. at

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

301, 326 (1966)). In other words, legislation enforcing

constitutional provisions must be “congruen[t] and

proportional[]” to the right needing protection. Id. at

520. Crucially, Congress cannot redefine constitutional rights through implementing legislation, which

is what it tried to do with RFRA.

This case is no different. In Bolden, this Court

held that a violation of the Fifteenth Amendment requires intent to discriminate, and interpreted Section

2 of the Voting Rights Act accordingly. Gingles relied

heavily on its belief that Congress responded with the

1982 Amendments to remove the intent requirement

from Section 2, despite invoking on the Fifteenth

Amendment to justify the legislation. Just like City of

Boerne, Congress responded (at least in Gingles’ view)

to a decision of this Court by attempting to expand

constitutional rights and protections through legislation. The Senate Report that Gingles cited as “authoritative” even acknowledged that the 1982 Amendments were an attempt “to enact implementing legislation that goes beyond the direct prohibitions of the

Constitution itself.” S.Rep. No. 97-417, at 39.

13

Gingles’ version of Section 2 is thus not “congruen[t] and proportional[]” to the right needing protection, and is unconstitutional as much as it makes

unlawful statutes that do not reflect discriminatory

intent. 4

II. Gingles’ Framework for

Claims is Unworkable.

Vote

Dilution

Any theory of vote dilution necessarily relies on a

measure of minority voting strength, which includes a

comparison between the proportion of the population

comprising the minority group versus the electorate

at large. Gingles decimates any remaining distinction

between ensuring that elections are “equally open to

participation by members” of each race and the associated disclaimer that Section 2 does not create “a

right to have members of a protected class elected in

numbers equal to their proportion in the population.”

52 U.S.C. § 10301.

As Justice O’Connor noted in her separate opinion concurring in the judgment, the majority

“creat[ed] . . . a right to a form of proportional representation” for “all geographically and politically cohe4 Of course, sometimes a disparate impact is the result of dis-

criminatory intent. As Justice Scalia once explained, if properly

considered, disparate impacts can “smoke out, as it were, disparate treatment.” Ricci v. DeStefano, 557 U.S. 557, 595 (2009)

(Scalia, J., concurring). And there is a compelling argument to be

made that the “Zimmer factors” eventually incorporated into

Gingles’ “effects test” should be better understood as relevant,

but not dispositive, indicia to the extent discriminatory intent

can be inferred, an approach this Court endorsed in Rogers v.

Lodge, 458 U.S. 613, 621 (1982).

14

sive minority groups that are large enough to constitute majorities if concentrated within one or more single-member districts.” Gingles, 478 U.S. at 85 (O’Connor, J., joined by Burger, C.J., and Powell and

Rehnquist, JJ., concurring in the judgment). Gingles

“makes actionable every deviation from usual, rough

proportionality in representation for any cohesive minority group as to which this degree of proportionality

is feasible,” resulting in a de facto requirement of proportional representation. Id. at 97. Doing so “disregarded the balance struck by Congress in amending

§ 2,” and was “inconsistent with § 2’s disclaimer of a

right to proportional representation.” Id. at 85, 96.

And that opened the door to serious abuses: “a

steady stream of § 2 vote-dilution cases,” which this

Court at times has described as having “proliferated

in the lower courts,” thereby elevating race to a predominant consideration in voting law. Brnovich, 141

S. Ct. at 2333. So rather than stamping out the “sordid

business” of “divvying us up by race,” League of United

Latin Am. Citizens v. Perry, 548 U.S. 399, 511 (2006)

(Roberts, C.J., joined by Alito, J., concurring in part,

concurring in the judgment in part, and dissenting in

part), Gingles moved racial considerations to the fore.

The decision below is just such an example. Indeed, it manifests the de facto requirement that Gingles imposed and mandates racial discrimination in

the redistricting process. As plaintiffs’ own modeling

shows, there is no race-neutral way to create a congressional map for Alabama that would result in two

majority-black districts. Not one of the over two million race-neutral maps created by one of plaintiffs’ ex-

15

perts contained two such districts. That result required racial discrimination, and, indeed, the use of

race as the predominant factor.

In this way, Gingles’ “undue emphasis on proportionality” has reached the point where it has “defeat[ed] the goals underlying the Voting Rights

Act.” Johnson v. De Grandy, 512 U.S. 997, 1028 (1994)

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

judgment). It unconstitutionally “subordinate[s] traditional race-neutral . . . principles . . . to racial considerations.” Miller, 515 U.S. at 916. And it perpetuates “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.’” Id. at 912 (quoting Shaw, 509 U.S. at 647).

III. Requiring Race-Conscious Redistricting

Violates the Fourteenth Amendment.

“It takes a shortsighted and unauthorized view of

the Voting Rights Act to invoke that statute, which

has played a decisive role in redressing some of our

worst forms of discrimination, to demand the very racial stereotyping the Fourteenth Amendment forbids.”

Id. at 927–28. The same could be said about the Fifteenth Amendment. Yet that is exactly what Gingles

has wrought, embroiling states and the courts “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., joined by Scalia, J., concurring in the judgment)

(quoting Shaw, 509 U.S. at 647). Perversely, it does so

16

in construing a statute passed pursuant to a constitutional provision that expressly prohibits discriminating against voters on the basis of race.

This must cease. If a State “may not, absent extraordinary justification, segregate citizens on the basis of race in its public parks, buses, golf courses,

beaches, and schools,” Miller, 515 U.S. at 911 (citing New Orleans City Park Improvement Ass’n v.

Detiege, 358 U.S. 54 (1958) (per curiam) (public

parks); Gayle v. Browder, 352 U.S. 903 (1956) (per curiam) (buses); Holmes v. Atlanta, 350 U.S. 879

(1955) (per curiam) (golf courses); Mayor of Balt. v.

Dawson, 350 U.S. 877 (1955) (per curiam) (beaches,

bathhouses, and swimming pools); Brown v. Board of

Educ., 347 U.S. 483 (1954) (schools)), then why should

it be able to work such segregation in matters of voting, which are of even greater importance? It

shouldn’t; and this Court has said it can’t. See, e.g.,

Shaw v. Hunt, 517 U.S. 899, 908 (1996). A de facto requirement of proportional representation is nothing

less than “racial balancing, which is patently unconstitutional.” Grutter, 539 U.S. at 330.

“Our constitution is color-blind, and neither

knows nor tolerates classes among citizens.” Plessy,

163 U.S. at 559 (Harlan, J., dissenting). It is this

“‘moral imperative of racial neutrality [that] is the

driving force of the Equal Protection Clause,’ and racial classifications are [thus] permitted only ‘as a last

resort.’” Bartlett v. Strickland, 556 U.S. 1, 21 (2009)

(quoting Richmond v. J.A. Croson Co., 488 U.S. 469,

518, 519 (1989) (Kennedy, J., concurring in part and

concurring in judgment)).

17

Gingles’ reinterpretation of Section 2 is incompatible with this requirement, and it should therefore be

overruled.

CONCLUSION

The judgment of the district court should be reversed and this Court should overrule Gingles.

May 2, 2022

Respectfully submitted,

JONATHAN BERRY

Counsel of Record

R. TRENT MCCOTTER

MICHAEL BUSCHBACHER

JARED M. KELSON

BOYDEN GRAY & ASSOCIATES

801 17th St. NW, #350

Washington, DC 20006

(202) 955-0620

berry@boydengrayassociates.com

Counsel for Amicus Curiae