Amicus Curiae Brief — Wes Allen, Alabama Secretary of State, et al., Appellants v. Evan Milligan, et al.
Supreme Court briefJul 18, 2022
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Nos. 21-1086, 21-1087
IN THE
Supreme Court of the United States
d
JOHN H. MERRILL , ALABAMA SECRETARY OF STATE , et al.,
—v.—
EVAN MILLIGAN , et al.,
Appellants,
Appellees.
JOHN H. MERRILL , ALABAMA SECRETARY OF STATE , et al.,
—v.—
MARCUS CASTER , et al.,
Petitioners,
Respondents.
ON APPEAL FROM AND ON WRIT OF CERTIORARI TO THE UNITED STATES
DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA
BRIEF OF AMICI CURIAE PROFESSORS JOWEI CHEN,
CHRISTOPHER S. ELMENDORF, NICHOLAS O.
STEPHANOPOULOS, AND CHRISTOPHER S. WARSHAW
IN SUPPORT OF APPELLEES/RESPONDENTS
RUTH GREENWOOD
Counsel of Record
THERESA J. LEE
HARVARD LAW SCHOOL
ELECTION LAW CLINIC
6 Everett Street, Suite 4105
Cambridge, Massachusetts 02138
(617) 496-0222
rgreenwood@law.harvard.edu
Counsel for Amici Curiae
i
TABLE OF CONTENTS
PAGE
TABLE OF AUTHORITIES .................................... ii
INTEREST OF AMICI CURIAE ............................. 1
SUMMARY OF THE ARGUMENT......................... 2
ARGUMENT ............................................................ 6
I. UNDER CURRENT LAW, SECTION
2’S REACH IS ALREADY LIMITED ............ 6
II. SEVERAL DOCTRINAL RULES EXPLAIN
SECTION 2’S LIMITED REACH................ 12
A. Geographic Compactness ....................... 14
B. White Bloc Voting .................................. 18
III. APPELLANTS’ PROPOSAL WOULD
UNDERMINE MINORITY
REPRESENTATION IN VIOLATION
OF THE STATUTE ..................................... 21
A. Representation by Candidates
of Choice ................................................. 22
B. Substantive Representation .................. 28
CONCLUSION ....................................................... 31
ii
TABLE OF AUTHORITIES
PAGE(S)
Cases
Abbott v. Perez,
138 S. Ct. 2305 (2018)....................................... 15
Abrams v. Johnson,
521 U.S. 74 (1997)............................................. 13
Baca v. Berry,
806 F.3d 1262 (10th Cir. 2015)......................... 19
Backus v. South Carolina,
857 F. Supp. 2d 553 (D.S.C. 2012) ................... 15
Baldus v. Members of Wis. Gov’t
Accountability Bd.,
849 F. Supp. 2d 840 (E.D. Wis. 2012) ............ 3, 8
Bartlett v. Strickland,
556 U.S. 1 (2009)....................................12, 19, 28
Bush v. Vera,
517 U.S. 952 (1996)........................................... 13
Comm. for a Fair and Balanced Map v.
Ill. State Bd. of Elections,
835 F. Supp. 2d 563 (N.D. Ill. 2011) ...........15, 19
Cooper v. Harris,
137 S. Ct. 1455 (2017)..................................13, 18
Fletcher v. Lamone,
831 F. Supp. 2d 887 (D. Md. 2011) ..............15, 19
iii
PAGE(S)
Georgia v. Ashcroft,
539 U.S. 461 (2003)........................................... 20
Holder v. Hall,
512 U.S. 874 (1994)............................................. 2
Johnson v. De Grandy,
512 U.S. 997 (1994)..................................6, 11, 14
League of United Latin Am. Citizens
(LULAC) v. Perry,
548 U.S. 399 (2006)................................12, 13, 14
McConchie v. Scholz,
___ F. Supp. 3d ___, 2021 WL 6197318
(N.D. Ill. 2021) .................................................. 19
Merrill v. Milligan,
142 S. Ct. 879 (2022)....................................... 6, 7
NAACP v. Snyder,
879 F. Supp. 2d 662 (E.D. Mich. 2012) ............ 15
Perez v. Texas,
No. 11-CA-360-OLG-JES-XR, 2012 WL
13124275 (W.D. Tex. Mar. 19, 2012).............. 3, 8
Radogno v. Ill. State Bd. of Elections,
836 F. Supp. 2d 759 (E.D. Ill. 2011) ................. 19
Rios-Andino v. Orange Cty.,
51 F. Supp. 3d 1215 (M.D. Fla. 2014) .............. 15
iv
PAGE(S)
Rodriguez v. Harris Cty.,
964 F. Supp. 2d 686 (S.D. Tex. 2013) ............... 16
Rogers v. Lodge,
458 U.S. 613 (1982)........................................... 28
Singleton v. Merrill,
No. 2:21-cv-1530-AMM, 2022 WL 272636
(N.D. Ala. Jan. 27, 2022) .................................... 6
Thornburg v. Gingles,
478 U.S. 30 (1986)...................................... passim
Statutes
52 U.S.C. § 10301(b)......................................2, 22, 28
Rules
Supreme Court Rule 37.6 ........................................ 1
Legislative Materials
S. Rep. No. 97-417 (1982)................................ passim
Other Authorities
About the Project, Michigan Law Voting
Rights Initiative (Dec. 31, 2021),
https://voting.law.umich.edu/about/................... 7
Brian Amos & Michael P. McDonald, Racially
Polarized Voting and Roll Call Behavior in
the U.S. House (Apr. 16, 2015) .......................... 20
v
PAGE(S)
Stephen Ansolabehere et al., Race, Region,
and Vote Choice in the 2008 Election:
Implications for the Future of the Voting
Rights Act, 123 Harv. L. Rev. 1385 (2010) ........ 20
Jason Barabas & Jennifer Jerit, Redistricting
Principles and Racial Representation,
4 St. Pol. & Pol’y Q. 415 (2004) ......................... 17
Brian Beach et al., Minority Representation
in Local Government (Nat’l Bureau of
Econ. Rsch., Working Paper No. 25192,
2019) .................................................................. 31
Jason P. Casellas, The Institutional and
Demographic Determinants of Latino
Representation, 34 Legis. Stud. Q. 399
(2009) ................................................................. 10
Jowei Chen & Nicholas O. Stephanopoulos,
The Race-Blind Future of Voting Rights,
130 Yale L.J. 862 (2021) ................1, 5, 23, 24, 25
Leah Christiani et al., Better for Everyone:
Black Descriptive Representation and
Police Traffic Stops, 10 Pol., Groups,
& Identities (forthcoming 2022) ....................... 31
Carmen Cirincione et al., Assessing South
Carolina’s 1990s Congressional
Districting, 19 Pol. Geography 189 (2000) ....... 27
vi
PAGE(S)
Christopher J. Clark, Gaining Voice: The
Causes and Consequences of Black
Representation in the American States
(2019) ........................................................5, 11, 30
Joe Cortright, America’s Least (and Most)
Segregated Metro Areas: 2020,
City Commentary (Oct. 20, 2021),
https://cityobservatory.org/most_
segregated2020/ ............................................... 17
Adam B. Cox & Thomas J. Miles, Judging the
Voting Rights Act, 108 Colum. L. Rev. 1
(2008) ................................................................... 8
Adam B. Cox & Thomas J. Miles, Judicial
Ideology and the Transformation of
Voting Rights Jurisprudence,
75 U. Chi. L. Rev. 1493 (2008) ......................... 22
Moon Duchin & Douglas M. Spencer, Models,
Race, and the Law, 130 Yale L.J. F. 744
(2021) ................................................................. 26
Christopher S. Elmendorf et al., Racially
Polarized Voting, 83 U. Chi. L. Rev. 587
(2016) ................................................................. 19
Reynolds Farley, The Waning of American
Apartheid?, 10 Contexts 36 (2011) ................... 17
William H. Frey, Diversity Explosion: How
New Racial Demographics Are Remaking
America (2015) .............................................. 4, 17
vii
PAGE(S)
Edward Glaeser & Jacob Vigdor, The End of
the Segregated Century: Racial
Separation in America’s Neighborhoods,
1890-2010 (Manhattan Inst. Civic Rpt.
No. 66, Jan. 2012) ............................................. 17
D. James Greiner, Re-Solidifying Racial Bloc
Voting: Empirics and Legal Doctrine in
the Melting Pot, 86 Ind. L.J. 447 (2011)........... 21
John D. Griffin & Brian Newman, Minority
Report: Evaluating Political Equality in
America (2008) .................................................. 29
Bernard Grofman et al., Minority
Representation and the Quest for Voting
Equality (1992) .................................................... 21
William D. Hicks et al., Revisiting MajorityMinority Districts and Black
Representation, 72 Pol. Rsch. Q.
408 (2018) .....................................................20, 27
John Iceland, Where We Live Now:
Immigration and Race in the United
States (2009)...................................................... 17
Pamela S. Karlan, Our Separatism? Voting
Rights as an American Nationalities
Policy, 1995 U. Chi. Legal F. 83 ....................... 16
viii
PAGE(S)
Ellen Katz et al., Documenting
Discrimination in Voting: Judicial
Findings Under Section 2 of the Voting
Rights Act Since 1982, 39 U. Mich. J.L.
Reform 643 (2006) ............................................... 8
Tyson King-Meadows & Thomas F. Schaller,
Devolution and Black State Legislators:
Challenges and Choices in the Twentyfirst Century (2006) ......................................11, 17
Shiro Kuriwaki et al., The Geography of
Racially Polarized Voting: Calibrating
Surveys at the District Level (Mar. 2022) .... 4, 20
Daniel B. Magleby & Daniel B. Mosesson,
A New Approach for Developing Neutral
Redistricting Plans, 26 Pol. Analysis 147
(2018) ................................................................. 27
Michael D. Minta, Diversity and Minority
Interest Group Advocacy in Congress,
73 Pol. Rsch. Q. 208 (2020) ............................... 30
Michael D. Minta & Valeria SinclairChapman, Diversity in Political
Institutions and Congressional
Responsiveness to Minority Interests,
66 Pol. Rsch. Q. 127 (2013) ............................... 30
Chris T. Owens, Black Substantive
Representation in State Legislatures from
1971–1994, 86 Soc. Sci. Q. 779 (2005) .............. 30
ix
PAGE(S)
Robert R. Preuhs, The Conditional Effects of
Minority Descriptive Representation:
Black Legislators and Policy Influence in
the American States, 68 J. Pol. 585 (2006) ...... 30
Federico Ricca & Francesco Trebbi, Minority
Underrepresentation in U.S. Cities (Nat’l
Bureau of Econ. Rsch., Working Paper
No. 29738, 2022) ............................................... 11
Zachary Schultzman, Algorithmic
Redistricting and Black Representation in
U.S. Elections (MIT Case Stud. in Soc.
and Ethical Resps. of Computing, 2022).......... 27
Section 2 Cases Database, Michigan Law
Voting Rights Initiative (Dec. 31, 2021),
https://voting.law.umich.edu/database/ ............. 3
Nicholas O. Stephanopoulos, Civil Rights in
a Desegregating America, 83 U. Chi. L.
Rev. 1329 (2016) ............................................... 16
Nicholas O. Stephanopoulos, Race, Place,
and Power, 68 Stan. L. Rev. 1323
(2016) .......................................................... passim
Michiko Ueda, The Impact of Minority
Representation on Policy Outcomes:
Evidence from the U.S. States (Cal. Inst.
of Tech., Working Paper No. 1284,
Mar. 2008) ......................................................... 30
x
PAGE(S)
Christopher S. Warshaw et al., Local
Representation in the United States:
A New Comprehensive Dataset of
Elections (Apr. 7, 2022)..................................... 11
Christopher S. Warshaw et al., Districts for a
New Decade – Partisan Outcomes and
Racial Representation in the 2021-22
Redistricting Cycle, 52 Publius:
J. Federalism (forthcoming 2022) ...............1, 4, 9
1
INTEREST OF AMICI CURIAE 1
Amici curiae are law professors and political
scientists who research and write about the Voting
Rights Act and minority representation.
Amicus curiae Jowei Chen is Associate
Professor of Political Science at the University of
Michigan. His works on the Voting Rights Act include
The Race-Blind Future of Voting Rights, 130 Yale L.J.
862 (2021) (with Nicholas O. Stephanopoulos).
Amicus curiae Christopher S. Elmendorf is
Martin Luther King Jr. Professor of Law at the UC
Davis School of Law. His works on the Voting Rights
Act include Making Sense of Section 2: Of Biased
Votes, Unconstitutional Elections, and Common Law
Statutes, 160 U. Pa. L. Rev. 377 (2012).
Amicus curiae Nicholas O. Stephanopoulos is
Kirkland & Ellis Professor of Law at Harvard Law
School. His works on the Voting Rights Act include
Race, Place, and Power, 68 Stan. L. Rev. 1323 (2016).
Amicus curiae Christopher S. Warshaw is
Associate Professor of Political Science at the George
Washington University. His works on minority
representation include Districts for a New Decade –
Partisan Outcomes and Racial Representation in the
2021-22 Redistricting Cycle, 52 Publius: J.
1 In accordance with Supreme Court Rule 37.6, amici curiae
state that neither Appellants, nor Appellees, nor their counsel,
had any role in authoring, nor made any monetary contribution
to fund the preparation or submission of, this brief.
2
Federalism (forthcoming 2022) (with Eric McGhee
and Michal Migurski).
SUMMARY OF THE ARGUMENT
There’s a narrative that frames Section 2 of the
Voting Right Act as an exceptionally—overly—potent
provision. On this view, most Section 2 plaintiffs
claiming racial vote dilution win their cases. Winning
is easy since, supposedly, a plaintiff group merely has
to “establish[] that it is mathematically possible for it
to control another seat . . . and that it is a distinct
political group.” Holder v. Hall, 512 U.S. 874, 939
(1994) (Thomas, J., concurring in the judgment). This
perspective on Section 2 also sees the measure as “a
right to a form of proportional representation” for
minority communities. Thornburg v. Gingles, 478
U.S. 30, 85 (1986) (O’Connor, J., concurring in the
judgment). Allegedly, racial disproportionality is
Section 2’s test for liability, and racial proportionality
is the necessary result of the provision’s operation.
This narrative is flatly wrong. In fact, under
current law, Section 2 is a highly constrained
measure under which plaintiffs typically lose and
rarely achieve proportional representation. This
brief’s first goal is thus to inform the Court about the
realities of Section 2 litigation, which are so different
from some of the myths. The brief’s other aim is to
explain what would happen if the Court endorsed
Appellants’ proposal to render race-blind Gingles’s
first prong. In violation of Congress’s clear
instructions, minority voters would have “less
opportunity . . . to elect representatives of their
choice”—exactly what Section 2 forbids. 52 U.S.C.
3
§ 10301(b). Because of this diminished representation
by their preferred candidates, “a significant lack of
[governmental] responsiveness” to minority voters’
substantive interests would follow as well. S. Rep. No.
97-417, at 29 (1982).
Starting with plaintiffs’ recent record under
Section 2, it’s strikingly unsuccessful. Over the last
two redistricting cycles, only about thirty suits
asserting that district plans dilute minority electoral
influence have resulted in court decisions on the
merits. In these cases, plaintiffs have lost almost
three times out of four. See Section 2 Cases Database,
Michigan Law Voting Rights Initiative (Dec. 31,
2021), https://voting.law.umich.edu/database/. At the
congressional and state legislative levels, plaintiffs’
only clear victories since 2010 have been a pair of
court-ordered state house minority opportunity
districts, one in Texas and another in Wisconsin. See
Baldus v. Members of Wis. Gov’t Accountability Bd.,
849 F. Supp. 2d 840, 854-58 (E.D. Wis. 2012); Perez v.
Texas, No. 11-CA-360-OLG-JES-XR, 2012 WL
13124275, at *4-5 (W.D. Tex. Mar. 19, 2012).
Plainly, a provision that leads to just two new
minority opportunity districts being created over two
redistricting cycles is unlikely to dramatically impact
minority representation. And indeed, minority
representation remains disproportionally low almost
across the board. At the congressional level, for
example, the fraction of Black opportunity districts is
currently below the Black share of the eligible voter
population in every state but three. Likewise, only one
state (California) has attained a proportional share of
4
Hispanic congressional opportunity districts. See
Warshaw et al., supra, at 20-22 figs.6 & 7.
Above all, two elements of Section 2 doctrine
account for plaintiffs’ poor litigation record and
inability to achieve proportional representation. The
first is the requirement of Gingles’s first prong that a
minority population be “sufficiently . . . geographically
compact.” 478 U.S. at 50. One of the most important
demographic developments of the last half-century is
gradually declining residential segregation in certain
parts of the country. See, e.g., William H. Frey,
Diversity Explosion: How New Racial Demographics
Are Remaking America 173 (2015). Thanks to this
desegregative trend, Section 2 plaintiffs are often
unable to establish sufficient compactness. That is,
certain minority populations are now too residentially
dispersed for liability to attach.
The second key obstacle for Section 2 plaintiffs
is the white bloc voting requirement of Gingles’s third
prong. See 478 U.S. at 51. In certain jurisdictions (like
Alabama), white voters do oppose minority-preferred
candidates at very high rates. But this pattern doesn’t
hold in large swathes of the country. In many areas,
especially in and near cities, substantial proportions
of white voters are willing to cast ballots for minority
candidates of choice. See, e.g., Shiro Kuriwaki et al.,
The Geography of Racially Polarized Voting:
Calibrating Surveys at the District Level 18-24 (Mar.
2022). The prevalence of such “crossover” voting
frequently dooms Section 2 claims. It means that
minority voters don’t face an unyielding wall of white
opposition.
5
The existing Gingles framework, then, tightly
limits Section 2’s reach. Appellants nevertheless argue
for an additional shackle: a rule that Gingles’s first
prong can be satisfied only by a race-blind map, like one
spit out at random by a computer without considering
race. Contradicting Section 2’s text and purpose, this
proposal would significantly reduce minority
representation in America, undoing decades of
progress. Consider Alabama’s state house plan. It
currently contains twenty-seven Black opportunity
districts. Race-blind computer simulations, though,
typically produce twenty-one to twenty-four Black
opportunity districts. See Chen & Stephanopoulos,
supra, at 906-07. Under Appellants’ proposal, Alabama
could thus eliminate three to six Black opportunity
districts without running afoul of Section 2.
Nor would the effects of such cuts be confined
to the election of fewer minority-preferred candidates.
Minority representation in America’s legislatures is
closely linked to how sensitive these bodies are to
minority voters’ substantive interests. Legislatures
with smaller minority presences are less active in
areas of particular concern to minority voters, such as
education, housing, and welfare. See, e.g.,
Christopher J. Clark, Gaining Voice: The Causes and
Consequences of Black Representation in the
American States 85 (2019). Consequently, the world
that Appellants’ proposal would make possible
wouldn’t just be one of less diverse legislatures that
more poorly reflect their constituents. It would be a
world, too, of less “responsiveness on the part of
elected officials to the particularized needs of the
members of the minority group.” S. Rep. No. 97-417,
at 29.
6
ARGUMENT
I.
UNDER CURRENT LAW, SECTION
2’S REACH IS ALREADY LIMITED.
This Court once observed that “some § 2
plaintiffs may have easy cases.” Johnson v. De
Grandy, 512 U.S. 997, 1012 (1994). Given certain
facts, it’s obvious that all three Gingles preconditions
are satisfied and that the totality of circumstances
supports liability. This dispute happens to be one of
these “straightforward” cases. Singleton v. Merrill,
No. 2:21-cv-1530-AMM, 2022 WL 272636, at *1 (N.D.
Ala. Jan. 27, 2022). Not even Appellants argue that
they should prevail under the existing legal
framework. That’s why their sole contention is that
current Section 2 doctrine should be revised. As Chief
Justice Roberts pointed out, with no rebuttal, “the
District Court properly applied existing law in an
extensive opinion with no apparent errors for our
correction.” Merrill v. Milligan, 142 S. Ct. 879, 882
(2022) (Roberts, C.J., dissenting from grant of
applications for stays).
However,
it’s
critical
that
the
straightforwardness of this case not mislead the
Court about the properties of most Section 2
litigation. Overall, the volume of racial vote dilution
suits has been very low in recent years. When these
challenges have been launched, they have been highly
likely to fail. The general rule is thus that
jurisdictions are free to redistrict under only a light
constraint from Section 2. This case is the “out-outout-outlier” (to borrow a phrase from Appellants) that
7
proves the rule. Br. for Appellants at 1, 80, Merrill v.
Milligan, No. 21-1086 (U.S. Apr. 25, 2022). 2
The Voting Rights Initiative at the University
of Michigan Law School recently compiled a database
of all dispositive Section 2 decisions from 1982 to 2021
in suits no longer being litigated. See About the
Project, Michigan Law Voting Rights Initiative (Dec.
31, 2021), https://voting.law.umich.edu/about/. This
database makes clear just how rare racial vote
dilution claims now are. Over the last two
redistricting cycles (the 2010s and the 2020s), only
thirty-one Section 2 challenges to district plans
resulted in rulings on the merits. These thirty-one
cases were limited to just seventeen states. They
involved state legislative districts in only nine states,
and congressional districts in just four. The
overwhelming majority of contemporary district plans
therefore lead to no Section 2 litigation at all.
Moreover, when modern district maps are
disputed under Section 2, they’re very likely to
survive judicial scrutiny. Of the thirty-one racial vote
dilution suits over the last two redistricting cycles,
only eight (or about one-fourth) yielded favorable
rulings for the plaintiffs. Even this figure is inflated
because it includes preliminary victories that
ultimately failed to cause district lines to be changed.
In the 2010s and the 2020s, the only state legislative
or congressional districts that were redrawn because
of successful Section 2 challenges were a handful of
Of course, Section 2’s impact isn’t limited to successful
litigation. Jurisdictions also frequently draw district lines to
comply with (and avoid being sued under) the provision.
2
8
state house districts near Milwaukee and Houston. A
few enacted districts in each metropolitan area were
adjusted to create a new Hispanic opportunity
district. See Baldus v. Members of Wis. Gov’t
Accountability Bd., 849 F. Supp. 2d 840, 860, 862-63
(E.D. Wis. 2012); Perez, 2012 WL 13124275, at *4-5.
To be sure, the Voting Rights Initiative
database undercounts Section 2 cases. It doesn’t
include suits that are still ongoing or that were settled
without generating decisions on the merits. See About
the Project, supra. It’s also true that racial vote dilution
claims were somewhat more common, and more
successful, in earlier eras. In the 1990s, for instance,
forty-three Section 2 challenges to district plans led to
dispositive rulings, twenty-two of them in favor of
plaintiffs. See also Adam B. Cox & Thomas J. Miles,
Judging the Voting Rights Act, 108 Colum. L. Rev. 1,
13-14 (2008) (discussing this period); Ellen Katz et al.,
Documenting Discrimination in Voting: Judicial
Findings Under Section 2 of the Voting Rights Act
Since 1982, 39 U. Mich. J.L. Reform 643, 656 (2006)
(same). But these caveats in no way change the bottom
line about today’s racial vote dilution litigation: It’s
both infrequent and highly prone to failure.
Litigation with these characteristics shouldn’t
be expected to sharply increase minority
representation—let alone to lead to proportional
representation for minority communities. And indeed,
in almost all cases, it doesn’t. A team of scholars
recently tallied the shares of congressional and state
legislative districts in which Black or Hispanic
residents comprise more than forty percent of the
citizen voting age population. (Districts with minority
9
populations this large are likely, if not certain, to be
minority opportunity districts.) These authors also
plotted these shares against the fractions of states’
citizen voting age populations that are Black or
Hispanic. The diagonal lines in the below charts thus
denote proportional representation for minority
communities. Points below the lines reflect
subproportional representation, and points above
them superproportional representation. See Warshaw
et al., supra, at 20-22 figs.6 & 7. 3
3 The authors only included states where Black or Hispanic
residents make up at least ten percent of the population. Few or
no minority opportunity districts can be drawn in less diverse
states.
10
It’s evident that minority voters are
disproportionally underrepresented (and white voters
are disproportionally overrepresented) almost
everywhere. In the newly enacted congressional
plans, the share of likely Black opportunity districts
is lower than the Black fraction of the citizen voting
age population in Alabama, Arkansas, Florida,
Georgia, Louisiana, Maryland, Mississippi, New
Jersey, New York, North Carolina, Pennsylvania,
South Carolina, Tennessee, Texas, Virginia. Black
voters are only (slightly) overrepresented in Illinois,
Michigan, and Missouri. Similarly, the share of likely
Hispanic congressional opportunity districts is below
the Hispanic fraction of the citizen voting age
population in Arizona, Colorado, Connecticut,
Florida, Illinois, Nevada, New Jersey, New York, and
Texas. Only in California are Hispanic voters
overrepresented (again slightly).
The story is much the same at the state
legislative level. In the newly enacted plans, Black
voters are disproportionally underrepresented in ten
states. The share of likely Black opportunity districts
only reaches the Black fraction of the citizen voting
age population in five states. Likewise, Hispanic
voters are disproportionally underrepresented in
eight states. Only in three states does the share of
likely Hispanic opportunity districts match the
Hispanic fraction of the citizen voting age population.
This study’s findings are by no means
exceptional. In fact, a sizable literature agrees that
minority voters have been, and continue to be,
disproportionally underrepresented in Congress and
state legislatures. See, e.g., Jason P. Casellas, The
11
Institutional and Demographic Determinants of
Latino Representation, 34 Legis. Stud. Q. 399, 400-01
& figs.1 & 2 (2009); Clark, supra, at 38-39; Tyson
King-Meadows & Thomas F. Schaller, Devolution and
Black State Legislators: Challenges and Choices in the
Twenty-first Century 75 (2006). The underrepresentation of minority voters extends to local
legislative bodies as well. In city councils and school
boards over the last several decades, the shares of
Black, Hispanic, and Asian American officeholders
have all lagged municipalities’ fractions of Black,
Hispanic, and Asian American residents. See Federico
Ricca & Francesco Trebbi, Minority Underrepresentation in U.S. Cities 32-33 (Nat’l Bureau of
Econ. Rsch., Working Paper No. 29738, 2022);
Christopher S. Warshaw et al., Local Representation
in the United States: A New Comprehensive Dataset of
Elections 6 (Apr. 7, 2022).
*
*
*
*
If Section 2 were as potent as its detractors
allege, then litigants would invoke it—successfully—
all the time. But they don’t. Few district plans are
ever disputed on racial vote dilution grounds, and an
even smaller number are redrawn for this reason.
Analogously, if Section 2 “plac[ed] undue emphasis
upon proportionality,” De Grandy, 512 U.S. at 1028
(Kennedy, J., concurring in part and concurring in the
judgment), then minority communities would often be
proportionally represented. But they’re not. In the
vast majority of district maps, the share of minority
opportunity districts trails the minority fraction of
eligible voters. The narrative of Section 2 as a
destabilizing threat to electoral systems across the
12
country is therefore built on sand. In reality, Section
2 poses no danger to all but the most racially
discriminatory district configurations.
II.
SEVERAL DOCTRINAL RULES
EXPLAIN SECTION 2’S LIMITED
REACH.
Why is Section 2’s reach so limited? The
essential answer is that this Court has already
imposed a series of doctrinal constraints on the
provision’s operation. Because these constraints are
frequently (and increasingly) difficult to satisfy, they
have caused most plaintiffs to lose their cases. They
have also convinced many other potential litigants
not to bother bringing racial vote dilution claims. In
order of how they’re typically analyzed, the rigorous
criteria for Section 2 liability include the following:
•
Minority group size: A minority group must
be large enough to constitute a majority of
the citizen voting age population of an
additional district (beyond any existing
minority opportunity districts in a plan).
See Bartlett v. Strickland, 556 U.S. 1, 26
(2009) (plurality opinion); Gingles, 478 U.S.
at 50. If a minority group is only large
enough to anchor a new “crossover” district
(in which a minority-preferred candidate’s
election depends on the support of some
white voters), or a new “influence” district
(in which a minority candidate of choice
can’t even be elected), the plaintiffs lose. See
Strickland, 556 U.S. at 14-15 (plurality
opinion); League of United Latin Am.
13
•
•
•
•
Citizens (LULAC) v. Perry, 548 U.S. 399,
445 (2006) (plurality opinion).
Minority group compactness: A minority
group must be reasonably compact—a term
that has at least three connotations. First,
reasonable compactness means that a group
isn’t too geographically dispersed. See Bush
v. Vera, 517 U.S. 952, 979 (1996) (plurality
opinion); Gingles, 478 U.S. at 50. Second,
reasonable compactness entails compliance
with traditional districting principles like
respect for political subdivisions and
communities of interest. See LULAC, 548
U.S. at 433; Abrams v. Johnson, 521 U.S.
74, 92 (1997). And third, a reasonably
compact group is one whose members don’t
have overly divergent socioeconomic and
cultural needs and interests. See LULAC,
548 U.S. at 434-35.
Minority political cohesion: Minority voters
must be politically cohesive in that they
generally vote for the same candidates. See
id. at 427; Gingles, 478 U.S. at 51.
White bloc voting: White voters must
generally vote together, too, and against
minority-preferred candidates. Because of
white bloc voting, minority candidates of
choice must generally lose (except in
minority opportunity districts designed so
they can win). See Cooper v. Harris, 137 S.
Ct. 1455, 1470 (2017); Gingles, 478 U.S. at
51.
Senate factors: Seven numbered factors and
two additional factors, all identified in the
14
•
Senate report that accompanied the 1982
amendments to Section 2, must be
considered. These factors include a
jurisdiction’s history of public and private
discrimination, other dilutive electoral
practices used by a jurisdiction, the extent
to which minority members have previously
won office, a jurisdiction’s responsiveness to
minority voters’ needs and interests, and
the tenuousness of a jurisdiction’s
justification for a challenged policy. See
Gingles, 478 U.S. at 36-37; S. Rep. No. 97417, at 28-29.
Proportionality: Finally, the relationship
between the share of reasonably compact
minority opportunity districts in a plan, and
the minority fraction of the eligible voter
population, must be considered as well. The
plaintiffs’ case is weakened if minority
voters are already roughly proportionally
represented. See LULAC, 548 U.S. at 43648; De Grandy, 512 U.S. at 1017-22.
A. Geographic Compactness
These curbs on Section 2 are anything but
paper tigers. Rather, they directly explain why the
bulk of racial vote dilution suits end in defeat. Two
hurdles are particularly important because they’re
particularly hard for plaintiffs to clear. The first is the
compactness requirement of Gingles’s first prong. As
noted earlier, only eight of thirty-one Section 2
challenges to district plans have led to favorable
decisions for plaintiffs over the last two redistricting
cycles. Thirteen times in these cases, courts ruled
15
against plaintiffs because they were unable to satisfy
Gingles’s first prong.
These losses mostly had similar facts.
Typically, a minority population was arithmetically
large enough to support an additional minority
opportunity district. But because of the geographic
dispersion of the population, it was either impossible
to draw another majority-minority district or any
such district would have failed Gingles’s compactness
requirement. This Court confronted a case of this kind
in Abbott v. Perez, 138 S. Ct. 2305 (2018). Texas’s
congressional plan included seven Latino opportunity
districts. Because “the geography and demographics
of south and west Texas [did] not permit the creation
of any more . . . Latino opportunity districts,” the plan
survived a Section 2 attack. Id. at 2331.
Numerous lower courts reached the same
conclusion in this scenario, upholding district maps
where, due to minority populations’ geographic
diffusion, plaintiffs couldn’t design an additional
majority-minority district. See, e.g., Rios-Andino v.
Orange Cty., 51 F. Supp. 3d 1215, 1225 (M.D. Fla.
2014); NAACP v. Snyder, 879 F. Supp. 2d 662, 671
(E.D. Mich. 2012); Backus v. South Carolina, 857 F.
Supp. 2d 553, 567 (D.S.C. 2012); Comm. for a Fair and
Balanced Map v. Ill. State Bd. of Elections, 835 F.
Supp. 2d 563, 581 (N.D. Ill. 2011). Several more lower
courts conceded that another majority-minority
district could be drawn but nevertheless ruled against
plaintiffs
because
of
minority
populations’
noncompactness. Some of these populations had
overly divergent needs and interests, see, e.g.,
Fletcher v. Lamone, 831 F. Supp. 2d 887, 899 (D. Md.
16
2011) (discussing Black communities in Baltimore
City and the suburbs of Washington, D.C.), while
others could comprise a district majority only by
flouting traditional districting criteria, see, e.g.,
Rodriguez v. Harris Cty., 964 F. Supp. 2d 686, 753-54
(S.D. Tex. 2013) (discussing Latino communities in
and around Houston).
A major demographic trend helps account for
these adverse outcomes for plaintiffs. Gingles’s
geographic compactness criterion essentially requires
a minority population to be residentially segregated.
A
“geographically
insular”
or
“sufficiently
concentrated” population meets this criterion. 478
U.S. at 49, 50 n.17. In contrast, minority voters
“spread evenly throughout a multimember district” or
“substantially integrated throughout the jurisdiction”
don’t. Id. at 50 n.17; see also, e.g., Pamela S. Karlan,
Our Separatism? Voting Rights as an American
Nationalities Policy, 1995 U. Chi. Legal F. 83, 87
(“The first [Gingles] element focuses on geographic
segregation.”); Nicholas O. Stephanopoulos, Civil
Rights in a Desegregating America, 83 U. Chi. L. Rev.
1329, 1379 (2016) (“To require a group to be
geographically compact before liability may be
imposed, in essence, is to require it to be residentially
segregated.”).
Over the last half-century, residential
segregation has declined substantially in certain
parts of the country. Sociologists often measure
segregation using the index of dissimilarity, which
represents the share of a group’s members who would
have to move from one neighborhood to another to
achieve perfect uniformity across a metropolitan area.
17
From a high around 80 percent in 1970, the Blackwhite dissimilarity score of the average metropolitan
area fell to about 50 percent by 2020. This is a
considerable improvement, albeit one that stops well
short of complete integration. See, e.g., Joe Cortright,
America’s Least (and Most) Segregated Metro Areas:
2020,
City
Commentary
(Oct.
20,
2021),
https://cityobservatory.org/most_segregated2020/;
Frey, supra, at 173; Edward Glaeser & Jacob Vigdor,
The End of the Segregated Century: Racial Separation
in America’s Neighborhoods, 1890-2010, at 4
(Manhattan Inst. Civic Rpt. No. 66, Jan. 2012). For
their part, Hispanic-white and Asian-white
segregation have been lower than Black-white
segregation for decades. See, e.g., Reynolds Farley,
The Waning of American Apartheid?, 10 Contexts 36,
39 (2011). Hispanic and Asian American residents are
even more integrated if they were born in the United
States or have lived in the country for longer. See, e.g.,
John Iceland, Where We Live Now: Immigration and
Race in the United States 58 (2009).
(Somewhat) lower segregation, of course, is a
cause for (some) celebration. But it plainly makes it
more difficult for plaintiffs to satisfy Gingles’s
geographic compactness requirement. Beyond the
court decisions cited above, several studies find that
states with less segregated minority populations
manage to create fewer minority opportunity districts.
See, e.g., Jason Barabas & Jennifer Jerit, Redistricting
Principles and Racial Representation, 4 St. Pol. & Pol’y
Q. 415, 423 (2004); King-Meadows & Schaller, supra,
at 82; Stephanopoulos, Race, Place, and Power, supra,
at 1378. The last of these works further shows that
declining Black segregation from 1992 to 2012 reduced
18
Black representation in state houses. But for this
desegregative trend, Black representation would have
been roughly one percentage point higher by the end of
this period. See Stephanopoulos, Race, Place, and
Power, supra, at 1376, 1380.
B. White Bloc Voting
The other doctrinal hurdle that plaintiffs have
frequently been unable to surmount is the white bloc
voting requirement of Gingles’s third prong. In fourteen
of the thirty-one Section 2 challenges to district plans
that have generated merits decisions over the last two
redistricting cycles, courts held that this requirement
wasn’t satisfied. The problem (for plaintiffs) was that
white voters in these cases were willing to support
minority-preferred candidates at fairly high rates. This
meant that one of the predicates for racial vote
dilution—overwhelming white opposition to minority
candidates of choice—was absent.
This Court grappled with this sort of case in
Harris. North Carolina argued that it had to create a
Black opportunity district in the eastern part of the state
to comply with Section 2. See 137 S. Ct. at 1469.
However, “electoral history provided no evidence that a
§ 2 plaintiff could demonstrate . . . white bloc-voting.” Id.
at 1470. Over the preceding decade, an earlier district
with a Black voting age population well below fifty
percent had reliably elected Black-preferred candidates
by huge margins. See id. “Those victories (indeed,
landslides) occurred because . . . a meaningful number
of white voters joined a politically cohesive black
community to elect that group’s favored candidate.” Id.
White voters thus didn’t vote en masse against Black
19
candidates of choice, meaning that Section 2 couldn’t be
violated and North Carolina couldn’t use Section 2 as a
justification for its racial gerrymander.
This Court’s decision in Harris is the tip of a
larger iceberg. Over and over, during the last two
redistricting cycles, lower courts have also found
insufficient white bloc voting to satisfy Gingles’s third
prong. Many of these cases arose in the Midwest,
Northeast, and West, and involved Hispanic plaintiffs.
See, e.g., Baca v. Berry, 806 F.3d 1262, 1274-75 (10th
Cir. 2015); McConchie v. Scholz, ___ F. Supp. 3d ___,
2021 WL 6197318, at *8-9 (N.D. Ill. 2021); Radogno v.
Ill. State Bd. of Elections, 836 F. Supp. 2d 759, 772-73
(E.D. Ill. 2011); Comm. for a Fair and Balanced Map,
835 F. Supp. 2d at 588; Fletcher, 831 F. Supp. 2d at
899-900; see also Christopher S. Elmendorf et al.,
Racially Polarized Voting, 83 U. Chi. L. Rev. 587, 60727 (2016) (discussing lower court analyses of racially
polarized voting).
Just as declining residential segregation is
partly responsible for plaintiffs’ defeats under
Gingles’s first prong, another important development
helps explain these third-prong losses. In many parts
of the country, white voters are reasonably willing to
cast ballots for minority-preferred candidates. A
plurality of this Court drew attention to this fact in
Strickland, noting that “[s]ome commentators suggest
that racially polarized voting is waning.” 556 U.S. at
24 (plurality opinion). More recent studies confirm
that, while voting remains highly racially polarized in
certain jurisdictions (like Alabama), white bloc voting
is less prevalent elsewhere. Particularly in and near
urban areas, white voters back minority candidates of
20
choice at rates of forty percent and up. See, e.g., Brian
Amos & Michael P. McDonald, Racially Polarized
Voting and Roll Call Behavior in the U.S. House 8
(Apr. 16, 2015); Stephen Ansolabehere et al., Race,
Region, and Vote Choice in the 2008 Election:
Implications for the Future of the Voting Rights Act,
123 Harv. L. Rev. 1385, 1416 (2010); William D. Hicks
et al., Revisiting Majority-Minority Districts and Black
Representation, 72 Pol. Rsch. Q. 408, 417 (2018);
Kuriwaki et al., supra, at 18-24.
Like less extreme residential segregation, more
convergent voting by voters of different races is good
news. It represents progress toward “a society where
integration and color-blindness are not just qualities to
be proud of, but are simple facts of life.” Georgia v.
Ashcroft, 539 U.S. 461, 490-91 (2003). But this
otherwise positive phenomenon is a mixed bag for
racial vote dilution plaintiffs. On the one hand, it
clearly makes it harder for them to establish white bloc
voting, and thus to win Section 2 suits. On the other, if
substantial fractions of white voters are willing to pull
the lever for minority-preferred candidates, then these
politicians might not need Section 2 litigation to be
elected in the first place. A study shows that these
dueling points essentially cancel each other out. Black
representation in state houses is about the same
whether Black-white polarization in voting is high or
low. See Stephanopoulos, Race, Place, and Power,
supra, at 1374-75, 1379.
*
*
*
*
Ever since this Court set forth the Gingles
framework, commentators have recognized its “self-
21
liquidating” nature. Bernard Grofman et al., Minority
Representation and the Quest for Voting Equality 131
(1992). If “residential segregation becomes a thing of
the past, minority groups will be unable to launch
successful voting rights suits.” Id. Similarly, if “racially
polarized voting [ceases], then vote dilution litigation
will wither away on its own.” D. James Greiner, ReSolidifying Racial Bloc Voting: Empirics and Legal
Doctrine in the Melting Pot, 86 Ind. L.J. 447, 497
(2011). Of course, neither residential segregation nor
racially polarized voting has yet been consigned to the
dustbin of American history. But there are certain
parts of the country where voters of different races live
closer together, and vote more similarly, than they did
in earlier eras. These desegregative and depolarizing
trends, gradual and tentative though they are, provide
crucial context for racial vote dilution plaintiffs’ dismal
record in court over the last two cycles. Section 2 has
not self-liquidated everywhere, but it has done so,
more or less, in some of the places where plaintiffs
have recently filed suit. And if these trends continue in
the years to come, successful Section 2 litigation will
become even rarer.
III.
APPELLANTS’ PROPOSAL
WOULD UNDERMINE MINORITY
REPRESENTATION IN
VIOLATION OF THE STATUTE.
The upshot is that Section 2’s reach is already
highly limited by the existing doctrinal framework.
Appellants would nevertheless add another hoop
through which racial vote dilution plaintiffs would
have to jump. In Appellants’ view, the demonstration
maps that plaintiffs submit to satisfy Gingles’s first
22
prong should be designed without taking race into
account. That is, plaintiffs should have to prove that
race-blind redistricting would result in the creation of
more reasonably compact minority opportunity
districts than already exist. See Br. for Appellants,
supra, at 29-30, 42-50, 64-68. Contradicting Section
2’s text and purpose, Appellants’ proposal would
sharply reduce minority representation in America—
likely more so than any development since the end of
Reconstruction. Both the election of minoritypreferred
candidates
and
governmental
responsiveness to minority interests would suffer.
A. Representation by Candidates of
Choice
There can be no doubt that Section 2
emphasizes the election of candidates preferred by
minority voters. The provision explicitly states that
it’s violated when minority voters have “less
opportunity”
than
other
voters
“to
elect
representatives of their choice.” 52 U.S.C. § 10301(b).
The Senate report that accompanied Section 2’s
revision in 1982 identified “the extent to which
members of the minority group have been elected to
public office” as a relevant factor. S. Rep. No. 97-417,
at 29. And this Court held in Gingles that “[t]he
essence of a § 2 claim” is that an electoral practice
“cause[s] an inequality in the opportunities enjoyed
by [minority] and white voters to elect their preferred
representatives.” 478 U.S. at 47 (emphasis added); see
also, e.g., Adam B. Cox & Thomas J. Miles, Judicial
Ideology and the Transformation of Voting Rights
Jurisprudence, 75 U. Chi. L. Rev. 1493, 1500 (2008)
23
(“The Gingles framework focuse[s] . . . on the electoral
success of minority-preferred candidates . . . .”).
To assess the fit of Appellants’ proposal with
Section 2’s terms and goals, it’s therefore critical to
determine how it would affect the election of minority
candidates of choice. This analysis requires the
generation of the kinds of demonstration maps
envisioned by Appellants—maps that don’t
incorporate race but that do match or beat
jurisdictions’ enacted plans with respect to nonracial
criteria. Once these race-blind maps have been
produced, by either a human or a computer algorithm,
race must be brought back into the picture to
calculate the numbers of minority opportunity
districts in both the demonstration maps and
jurisdictions’ enacted plans. The crucial issue is then
how these numbers compare: how many minoritypreferred candidates would be elected under
nonracial redistricting versus under the status quo.
A recent study addresses this issue at the state
house level using computer simulations. 4 In Alabama,
as noted at the outset, the enacted plan has twentyseven Black opportunity districts (out of 105). In
contrast, most simulated maps have between twentyone and twenty-four. See Chen & Stephanopoulos,
supra, at 906-07. Under Appellants’ proposal,
Alabama could thus dismantle three to six Black
This study and the rest of the relevant literature use
essentially the same nonracial criteria for all states and don’t
attempt to incorporate state-specific requirements like respect
for communities of interest. The results of this work should
therefore be seen as suggestive, not definitive.
4
24
opportunity districts without transgressing Section 2.
If plaintiffs challenged the elimination of these
districts, they would be unable to show (as Appellants
would require) that race-blind redistricting would
typically yield a larger number of reasonably compact
Black opportunity districts.
The situation is similar in many other states.
In the below charts, the histograms indicate the
proportions of Black and Hispanic state house
opportunity districts, respectively, in sets of one
thousand simulated maps. The red stars denote the
shares of Black or Hispanic opportunity districts in
states’ enacted plans. And the blue circles correspond
to proportional representation: the fraction of
minority opportunity districts that would match a
minority group’s share of the citizen voting age
population. See id. at 915-16 figs.11 & 12.
Many states resemble Alabama in that
simulated state house maps for them have fewer
minority opportunity districts than their enacted
plans. In Georgia, for example, the median simulated
map has forty-five Black opportunity districts (out of
180), compared to fifty-two in the enacted plan. In
Texas, the median simulated map has twenty-three
Hispanic opportunity districts (out of 150), versus
twenty-eight in the enacted plan. In California, the
median simulated map has barely half as many
Hispanic opportunity districts as the enacted plan:
eight as opposed to fifteen (out of eighty). Across all
states, the clear pattern is that simulated minority
representation under nonracial redistricting (the
histograms)
is
less
than
actual
minority
representation (the red stars), which in turn is less
25
than proportional representation (the blue circles). In
other words, minority communities’ already
subproportional representation would further decline
under Appellants’ proposal. See id.
26
Another recent study confirms this finding and
extends it to the state senate and congressional levels.
This analysis uses two thresholds for Black
opportunity district status: a Black voting age
population above forty percent or fifty percent. Under
either cutoff, for most states, the median race-blind
simulated map has fewer likely Black opportunity
districts than the enacted plan, which has fewer likely
Black opportunity districts than are necessary to
achieve proportional representation. See Moon
Duchin & Douglas M. Spencer, Models, Race, and the
27
Law, 130 Yale L.J. F. 744, 765-66 (2021); see also
Carmen Cirincione et al., Assessing South Carolina’s
1990s Congressional Districting, 19 Pol. Geography
189, 201 (2000) (finding fewer congressional majorityminority districts in nonracial simulated maps than
in South Carolina’s enacted plan); Daniel B. Magleby
& Daniel B. Mosesson, A New Approach for
Developing Neutral Redistricting Plans, 26 Pol.
Analysis 147, 162-63 (2018) (same for Mississippi’s,
Texas’s, and Virginia’s congressional plans); Zachary
Schultzman, Algorithmic Redistricting and Black
Representation in U.S. Elections 16, 20 (MIT Case
Stud. in Soc. and Ethical Resps. of Computing, 2022)
(same for Alabama’s and Michigan’s state senate
plans).
The empirical literature is thus unanimous
about the impact of Appellants’ proposal: It would
enable most states to substantially reduce their
numbers of minority opportunity districts without
violating Section 2. If they occurred, these cuts would
be the first of this magnitude since the end of
Reconstruction. Take Alabama’s state house from the
1970s (the first redistricting cycle after the Voting
Rights Act’s enactment in 1965) to the present. Over
this half-century, the volume of Black legislators in
this chamber has gradually risen, from just two in the
early 1970s to twenty-seven today. Never in these
fifty years has Black representation in Alabama’s
state house fallen by more than a seat. Cf. Hicks et
al., supra, at 411. Yet Appellants’ proposal would
make possible the elimination of three to six Black
opportunity districts. The destruction of these
districts would undo decades of progress, returning
the chamber to an earlier, much less diverse era. And
28
to reiterate, it would do so in violation of Congress’s
words and aims. By amending Section 2 in 1982,
Congress sought to improve minority voters’
opportunities “to elect representatives of their
choice,” 52 U.S. § 10301(b), and to enhance “the extent
to which members of the minority group [are] elected
to public office,” S. Rep. No. 97-417, at 29. 5
B. Substantive Representation
The election of minority-preferred candidates
isn’t the only kind of minority representation that
Section 2 tries to achieve. The provision also aspires
for governments to be responsive to minority voters’
substantive interests—to enact policies that reflect
minority voters’ substantive preferences. This goal is
evident in Section 2’s reference to minority voters’
“opportunity . . . to participate in the political
process.” 52 U.S.C. § 10301(b). More explicitly, one of
the factors in the key 1982 Senate report is “whether
there is a significant lack of responsiveness on the
part of elected officials to the particularized needs of
the members of the minority group.” S. Rep. No. 97417, at 29; see also, e.g., Rogers v. Lodge, 458 U.S. 613,
5 Of course, the elimination of existing minority opportunity
districts wouldn’t be the end of the story. If Appellants’ proposal
were adopted, states that deliberately destroyed these districts
would find themselves plausibly accused of intentional racial
discrimination. See, e.g., Strickland, 556 U.S. at 24 (plurality
opinion) (“[I]f there were a showing that a State intentionally
drew district lines in order to destroy otherwise effective
[minority opportunity] districts, that would raise serious
questions under both the Fourteenth and Fifteenth
Amendments.”).
29
625 n.9 (1982) (“unresponsiveness is an important
element” of racial vote dilution litigation).
Appellants’ proposal would damage minority
voters’ substantive representation in addition to their
representation by their candidates of choice. A large
empirical literature establishes that federal, state,
and local governments alike are less responsive to
minority voters’ interests when those governments
include fewer minority-preferred officeholders. 6 As
explained above, Appellants’ proposal would lead to
fewer minority legislators of choice holding office.
This reduction would cause legislatures to do a worse
job serving the needs of minority voters.
At the federal level, one study analyzes how
Black representation in Congress is related to the
likelihood that Black respondents’ preferences for
federal spending by issue area will be heeded. The
smaller the cohort of Black members of Congress, the
less likely that federal spending in domains like
education, health care, and urban aid will move in the
directions favored by Black respondents. See John D.
Griffin & Brian Newman, Minority Report:
Evaluating Political Equality in America 153-54
(2008). Another study examines the link between the
minority presence in Congress and the volume of
congressional hearings on civil rights issues. Again,
This literature generally controls for the partisan
composition of the electorate and of the legislature. The reported
results are therefore plausibly understood as the impact of
representation by minority-preferred candidates—not by
candidates of a given party—on minority voters’ substantive
representation.
6
30
fewer hearings are held on these matters when
minority legislators are a rarer sight in Congress’s
halls. See Michael D. Minta & Valeria SinclairChapman, Diversity in Political Institutions and
Congressional Responsiveness to Minority Interests,
66 Pol. Rsch. Q. 127, 131-32 (2013); see also, e.g.,
Michael D. Minta, Diversity and Minority Interest
Group Advocacy in Congress, 73 Pol. Rsch. Q. 208, 213
(2020) (finding that bills favored by civil rights groups
are less likely to receive markups in congressional
committees when these committees have fewer Black
members).
At the state legislative level, several scholars
have exploited the large number of states, all with
their own trends in minority representation and
policy outcomes. These studies conclude that state
legislatures with fewer minority members enact
policies that are more adverse to minority citizens.
Less diverse state legislatures spend less money on
education generally, see Clark, supra, at 85, on aid to
school districts with high minority enrollments
specifically, see Michiko Ueda, The Impact of Minority
Representation on Policy Outcomes: Evidence from the
U.S. States 24-25 (Cal. Inst. of Tech., Working Paper
No. 1284, Mar. 2008), on health care, see Chris T.
Owens, Black Substantive Representation in State
Legislatures from 1971–1994, 86 Soc. Sci. Q. 779, 787
(2005), and on unemployment benefits, see id. at 78687; Robert R. Preuhs, The Conditional Effects of
Minority
Descriptive
Representation:
Black
Legislators and Policy Influence in the American
States, 68 J. Pol. 585, 591 (2006). All these spending
decisions contravene the preferences of most minority
citizens.
31
Lastly, at the local level, studies go beyond
spending decisions to municipalities’ nonfiscal policy
choices. City councils with more white members
exacerbate gaps in housing prices between minority
and white neighborhoods. This effect occurs because
these bodies prioritize municipal services in white
neighborhoods. See Brian Beach et al., Minority
Representation in Local Government 22-24 (Nat’l
Bureau of Econ. Rsch., Working Paper No. 25192,
2019). Less diverse city councils also adopt more
aggressive, and more racially biased, policing
strategies. Traffic stops are more likely to result in
searches in these jurisdictions, especially for Black
motorists. See Leah Christiani et al., Better for
Everyone: Black Descriptive Representation and
Police Traffic Stops, 10 Pol., Groups, & Identities
(forthcoming 2022) (manuscript at 1).
It’s important to remember, then, that
minority representation isn’t limited to the election of
minority-preferred candidates. It extends to
governmental responsiveness to minority interests,
too. And in this respect as well, Appellants’ proposal
would be deeply harmful and contrary to Section 2’s
text and purpose. By leading to the election of fewer
minority-preferred candidates, it would also cause
federal, state, and local legislatures more frequently
to ignore the needs of minority voters.
CONCLUSION
This Court should reject Appellants’ proposal
to render race-blind Gingles’s first prong. Section 2’s
reach is already sufficiently limited, especially by the
existing framework’s requirements of geographic
32
compactness and white bloc voting. Moreover, if the
Court endorsed Appellants’ proposal, the Court would
be responsible for undermining both the election of
minority-preferred candidates and governmental
responsiveness to minority interests, in violation of
Congress’s clear instructions.
July 18, 2022
Respectfully submitted,
/s/ Ruth Greenwood
Ruth Greenwood
Counsel of Record
Theresa J. Lee
ELECTION LAW CLINIC
HARVARD LAW SCHOOL
6 Everett Street, Suite 4105
Cambridge, MA 02138
(617) 496-0222
rgreenwood@law.harvard.edu
Counsel for Amici Curiae
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.