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 on Writ of Certiorari to the United States

District Court for the Northern District of Alabama

__________________

BRIEF ON BEHALF OF UCLA SOCIAL SCIENTISTS

AS AMICI CURIAE IN SUPPORT OF APPELLEES

__________________

CHAD W. DUNN

Counsel of Record

BERNADETTE REYES

SONNI WAKNIN

UCLA VOTING RIGHTS PROJECT

3250 Public Affairs Building

Los Angeles, CA 90095

310-400-6019

chad@uclavrp.org

bernadette@uclavrp.org

sonni@uclavrp.org

Counsel for Amici Curiae

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

TABLE OF CONTENTS

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

INTEREST OF AMICI . . . . . . . . . . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . 4

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

I.

Race Plays a Significant Role in Elections . . . 7

II.

The Section 2(b) Protections Remain Vitally

Necessary to Protect Voters in Local

Governments . . . . . . . . . . . . . . . . . . . . . . . . . 14

III.

Non-Discriminatory Voting Systems and

District Maps in Local Elections Have

Important Benefits That Congress

Appropriately Protected . . . . . . . . . . . . . . . . 16

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

ii

TABLE OF AUTHORITIES

CASES

Bethune-Hill v. Virginia State Bd. Of Elections,

137 S. Ct. 788 (2017). . . . . . . . . . . . . . . . . . . . . . . 5

Cisneros v. Pasadena Indep. Sch. Dist.,

No. 4:12-CV-2579, 2014 U.S. Dist. LEXIS 58278

(S.D. Tex. 2014). . . . . . . . . . . . . . . . . . . . . . . . . . 15

City of Mobile v. Bolden,

446 U.S. 55 (1980). . . . . . . . . . . . . . . . . . . . . . . . . 5

Clerveaux v. E. Ramapo Cent. Sch. Dist.,

984 F.3d 213 (2d Cir. 2021) . . . . . . . . . . . . . . . . 15

Gonzalez v. Harris Cnty.,

601 Fed. App’x 255 (5th Cir. 2015). . . . . . . . . . . 15

Harding v. Cnty. of Dallas,

336 F. Supp. 3d (N.D. Tex. 2018) . . . . . . . . . . . . . 3

Luna v. Cnty. of Kern,

291 F. Supp. 3d (E.D. Cal. 2018) . . . . . . . . . . . . 14

Missouri State Conf. of the NAACP v. FergusonFlorissant Sch. Dist.,

201 F. Supp. 3d (E.D. Mo. 2016), aff’d

894 F.3d 924, 941 (8th Cir. 2018). . . . . . . . . . . . 16

NAACP v. E. Ramapo Cent. Sch. Dist.,

462 F. Supp. 3d (2020) . . . . . . . . . . . . . . . . . . 3, 15

Patino v. City of Pasadena,

230 F. Supp. 3d (S.D. Tex. 2017) . . . . . . 14, 15, 17

iii

Pope v. Cnty. of Albany,

94 F. Supp. 3d (N.D.N.Y. 2015) . . . . . . . . . . . . . 15

Rodriguez v. Harris Cnty.,

964 F. Supp. 2d 686 (S.D. Tex. 2013) . . . . . . . . . 15

Shaw v. Reno,

509 U.S. 630 (1993). . . . . . . . . . . . . . . . . . . . . . . . 5

Shelby Cnty. v. Holder,

570 U.S. 529 (2013). . . . . . . . . . . . . . . . 4, 5, 14, 19

Thornburg v. Gingles,

478 U.S. 30 (1986). . . . . . . . . . . . . . . 4, 5, 7, 15, 19

United States v. City of Eastpointe,

378 F. Supp. 3d (E.D. Mich. 2019) . . . . . . . . . . . 16

White v. Regester,

412 U.S. 755 (1973). . . . . . . . . . . . . . . . . . . . . . . . 6

Wright v. Sumter Cnty. Bd. of Elections &

Registration, 301 F. Supp. 3d (M.D. Ga. 2018),

aff’d, 979 F.3d 1282 (11th Cir. 2020) . . . . . . . . . 14

CONSTITUTION AND STATUTES

U.S. Const. amend. XV . . . . . . . . . . . . . . . . . . . . 4, 19

52 U.S.C. § 10301(b). . . . . . . . . . . . . . . . . . . . 7, 15, 19

OTHER AUTHORITIES

Carolyn Abbot & Asya Magazinnik, At-Large

Elections and Minority Representation in Local

Government, 64 Am. J. Pol. Sci. 717 (2020) . . 6, 14

Alberto Alesina, et al., Public Goods and Ethnic

Divisions, 114 Q.J. Econ. 1243 (1999) . . . . . . . . 16

iv

EDWARD G. CARMINES & JAMES A. STIMSON, ISSUE

EVOLUTION: RACE AND THE TRANSFORMATION OF

AMERICAN POLITICS (1989) . . . . . . . . . . . . . . . . . 11

Cases Raising Claims Under Section 2 of the Voting

Rights Act, U.S DEP’T OF JUST. (May 25, 2022),

https://www.justice.gov/crt/cases-raising-claimsunder-section-2-voting-rights-act-0 . . . . . . . . . . 14

Loren Collingwood, et al., eiCompare: Comparing

Ecological Inference Estimates across EI and EI:

RxC, 8 The R. J. 92 (2016) . . . . . . . . . . . . . . . . . . 8

Commercial Voter Files and the Study of U.S.

Politics, PEW RSCH. CTR. (Feb. 15, 2018),

https://www.pewresearch.org/methods/2018/02

/15/demographic-data [https://perma.cc/R5USSZ52] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Kevin Deluca & John A. Curiel, Validating the

Applicability of BISG to Congressional

Redistricting (unpublished manuscript),

https://electionlab.mit.edu/sites/default/files/20

21-07/deluca-curiel_validating_bisg.pdf

[https://perma.cc/W6J9-8RYN]. . . . . . . . . . . . . . . 9

Peter K. Eisinger, Black Employment in Municipal

Jobs: The Impact of Black Political Power, 76

Am. Pol. Sci. Rev. 380 (1982) . . . . . . . . . . . . . . . 16

Catalina Feder & Michael G. Miller, Voter Purges

After Shelby: Part of Special Symposium on

Election Sciences, 48(6) Am. Pol. Rsch. 687

(2020). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

v

Sydnee Fielkow, Shelby County and Local

Governments: A Case Study of Local Texas

Governments Diluting Minority Votes, 14 Nw.

J.L. & Soc. Pol’y 348 (2018) . . . . . . . . . . . . . . . . 19

Matthew C. Fellowes & Gretchen Rowe, Politics

and the New American Welfare States, 48 Am. J.

Pol. Sci. 362 (2004) . . . . . . . . . . . . . . . . . . . . . . . 17

Bernard L. Fraga, Redistricting and the Causal

Impact of Race on Voter Turnout, 78 J. of Pol. 19

(2016). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Bernard Grofman, Multivariate Methods and the

Analysis of Racially Polarized Voting: Pitfalls in

the Use of Social Science by the Courts, 72 SOC.

SCI. Q. 826 (1991) . . . . . . . . . . . . . . . . . . . . . . . 8, 9

Michael D. Herron & Daniel A. Smith, Race, Shelby

County, and the Voter Information Verification

Act in North Carolina, 43 Fla. St. U. L. Rev. 465

(2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Ben Highton, Prejudice Rivals Partisanship and

Ideology When Explaining the 2008 Presidential

Vote Across the States, 44 PS: POL. SCI. & POLS.

530 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

GARY KING, A SOLUTION TO THE ECOLOGICAL

I NFERENCE P ROBLEM : R ECONSTRUCTING

INDIVIDUAL BEHAVIOR FROM AGGREGATE DATA

(1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Jonathan Knuckey, Racial Resentment and the

Changing Partisanship of Southern Whites, 11

PARTY POLS. 5 (2005) . . . . . . . . . . . . . . . . . . . . . 11

vi

Ilyana Kuziemko & Ebonya Washington, Why Did

the Democrats Lose the South? Bringing New

Data to an Old Debate, 108 Am. Econ. Rev. 2830

(2018). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Kenneth J. Meier & Robert E. England, Black

Representation and Educational Policy: Are They

Related?, 78 Am. Pol. Sci. Rev. 392 (1984). . 18, 19

Stephen Menendian, Samir Gambhir & Arthur

Gailes, Twenty-First Century Racial Residential

Segregation in the United States, UNIV.

BERKELEY: ROOTS OF STRUCTURAL RACISM

PROJECT (June 21, 2021), https://belonging.berk

eley.edu/roots-structural-racism . . . . . . . . . . . . . 6

Dana Ables Morales, Racial Attitudes and Partisan

Identification in the United States, 1980-1992, 5

Party Pols. 191 (1999). . . . . . . . . . . . . . . . . . . . . 10

David Nevin, & Michael E. Solimine, Representing

People and Places: Castaway Voters and the

Racial Disparity in Redistricting, 21 Election

L.J. Rules, Pols. & Pol’y 171 (2022) . . . . . . . . . . . 5

Mara Cecilia Ostfeld, The New White Flight?: The

Effects of Political Appeals to Latinos on White

Democrats, 41 Pol. Behav. 561 (2019) . . . . . . . . 13

Spencer Piston, How Explicit Racial Prejudice Hurt

Obama in the 2008 Election, 32 POL. BEHAV. 431

(2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

vii

Robert R. Preuhs, Descriptive Representation as a

Mechanism to Mitigate Policy Backlash: Latino

Incorporation and Welfare Policy in the

American States, 60 Pol. Rsch. Q. 277 (2007) . . 18

KEITH REEVES, VOTING HOPES OR FEARS? WHITE

VOTERS, BLACK CANDIDATES & RACIAL POLITICS

IN AMERICA (1997). . . . . . . . . . . . . . . . . . . . . 10, 11

Rene R. Rocha & Rodolfo Espino, Racial Threat,

Residential Segregation, and the Policy Attitudes

of Anglos, 62 Pol. Res. Q. 415 (2009) . . . . . . . . . . 6

Richard Skinner & Philip Klinkner, Black, White,

Brown and Cajun: The Racial Dynamics of the

2003 Louisiana Gubernatorial Election, 2 The

Forum 1 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . 10

MICHAEL TESLER & DAVID SEARS, OBAMA’S RACE:

THE 2008 ELECTION AND THE DREAM OF A POSTRACIAL AMERICA (2010). . . . . . . . . . . . . . . . . 10, 11

Michiko Ueda, The Impact of Minority

Representation on Policy Outcomes: Evidence

from the U.S. States (Cal. Inst. Of Tech., Social

Science Working Paper No. 1284, 2008) . . . 17, 18

U.S. ELECTION ASSISTANCE COMM’N, AVAILABILITY

OF STATE VOTER FILE AND CONFIDENTIAL

INFORMATION (2020), https://www.eac.gov/sites/

default/files/voters/Available_Voter_File_Infor

mation.pdf [https://perma.cc/TY5U-WSWE] . . . . 9

viii

Nicholas A. Valentino & David O. Sears, Old Times

There are not Forgotten: Race and Partisan

Realignment in the Contemporary South, 24 Am.

J. Pol. Sci. 672 (2005) . . . . . . . . . . . . . . . . . . . . . 10

Sean J. Westwood & Erik Peterson, The

Inseparability of Race and Partisanship in the

United States, Pol. Behav. 1 (2020) . . . . . . . . . . 13

1

INTEREST OF AMICI1

Matt A. Barreto is a Professor of Political Science

and Chicana/o and Central American Studies at UCLA.

He is the faculty director of the UCLA Voting Rights

Project and has published numerous social science

articles on the topic of racially polarized voting, vote

dilution and voting rights, and voting behavior of racial

and ethnic minorities. He has authored expert reports

and testified as an expert witness in dozens of

California Voting Rights Acts and Federal Voting

Rights Act lawsuits.

Gary M. Segura is the Dean of the Luskin School of

Public Affairs at UCLA. His work focuses on issues of

political representation and social cleavages, the

domestic politics of wartime public opinion, and the

politics of America’s growing Latino minority. His work

has been published in the American Political Science

Review, American Journal of Political Science, Journal

of Politics, Political Research Quarterly, and the

Annual Review of Political Science. He has provided

expert testimony on discrimination in voting rights

cases and civil rights cases.

Darnell Hunt is a Professor of Sociology and African

American Studies, and the Dean of Social Sciences at

UCLA. His work focuses on African American Studies,

race and ethnic relations, mass media, and cultural

studies. Since 2014, he has been the lead author of the

1

No counsel for any party authored this brief in whole or in part,

and no person or entity other than amici made a monetary

contribution to its preparation or submission. Each party provided

blanket consent to the filling of amicus curiae briefs pursuant to

U.S. Supreme Court Rules 37.2(a) and 37.3(a).

2

Hollywood Diversity Report, an analysis of diversity in

the film and television industry. He is the author and

editor of multiple books on race and the media. He has

published articles in several journals including

Amerasia Journal, Working USA: The Journal of Labor

and Society, Journal of Sport and Social Issues, and

The Sociological Quarterly.

Efrén Pérez, is a Professor of Political Science and

Psychology at UCLA, and director of the UCLA Race,

Ethnicity, Politics and Society (REPS) Lab. His

scholarship area is political psychology, with a focus on

racial and ethnic politics, language and political

thinking, implicit political cognition, and the

measurement of political concepts. He is the author of

numerous articles in leading political science journals

and has been published in the American Journal of

Political Science, The Journal of Politics, Political

Analysis, Political Behavior, Politics, Groups and

Identities, and Political Psychology. He has also

published a book, Unspoken Politics: Implicit Attitudes

and Political Thinking.

Lorrie Frasure is a Professor of Political Science and

African American Studies at UCLA. She held the Ralph

J. Bunche Chair for African American Studies at

UCLA. Dr. Frasure’s research focuses on racial/ethnic

political behavior, African American politics, and state

and local politics. She has published numerous

political science papers and a book, Racial and Ethnic

Politics in American Suburbs.

Natalie Masuoka is an Associate Professor of

Political Science and Asian American Studies and

currently the Chair of the Asian American Studies

3

Department. Dr. Masuoka’s research includes studying

racial and ethnic politics, immigration, and political

behavior and public opinion. She has written multiple

books on racial politics in the United States. Dr.

Masuoka has written numerous social science papers

on race and politics and has been cited over onethousand times.

Chris Zepeda-Millán is an Associate Professor of

Political Science, Public Policy and Chicana/o and

Central American Studies at UCLA. His research has

been published in top political science and

interdisciplinary academic journals, such as

the American Journal of Political Science (AJPS),

Political Research Quarterly (PRQ), Politics, Groups

and Identities (PGI), Critical Sociology, the Chicana/o

Latina/o Law Review, Social Science Quarterly (SSQ),

and the Journal of Ethnic and Migration Studies

(JEMS).

The UCLA Social Scientists, as amici, are wellpositioned to opine on the issues before the Court

because of amici’s work as social scientists studying

race and voting. Amici have collectively performed

hundreds of racially polarized voting analyses using

current court-approved methods. These analyses have

been provided as testimony in federal court and

accepted as reliable by state and federal courts. See,

e.g., NAACP v. E. Ramapo Cent. Sch. Dist., 462

F. Supp. 3d 368 (2020), and Harding v. Cnty. of Dallas,

336 F. Supp. 3d 677 (N.D. Tex. 2018).

U.S. Supreme Court Rule 37.1 states that an

amicus brief that calls the Court’s attention to

“relevant matter not already brought to its attention by

4

the parties may be of considerable help to the Court…”

The UCLA Voting Rights Project submits this brief for

this purpose.

SUMMARY OF ARGUMENT

The Voting Rights Act does important work

protecting voting rights of all citizens in local political

subdivisions throughout the country. Should the Court

accept the invitation to undermine Section 2(b), it will

have calamitous effects on the right to vote of racial

minorities in school districts, counties, cities and other

local governmental units. This brief is offered to

provide the Court with the latest social science

pertaining to racial effects in elections and highlight

that any adjustment to the Section 2 effects test, if

deemed by the Court necessary at all, should be

carefully tailored to ensure Section 2 continues to

provide a remedy to citizens suffering in local level

electoral systems that prevent them a meaningful

opportunity to elect candidates of choice.

The VRA was enacted by Congress in 1965 to

remedy historical and ongoing discrimination and to

prohibit voting practices that abridge the right of any

U.S. citizen to vote on account of race or color. See

Shelby County v. Holder, 570 U.S. 529, 536-37 (2013).

The explicit language of Section 2 of the Fifteenth

Amendment grants Congress the authority to enact the

VRA. The VRA’s purpose is to eliminate the negative

effects of voter based racial discrimination on the

electoral opportunities of minorities. See Thornburg v.

Gingles, 478 U.S. 30, 65 (1986).

5

After this Court held that the original language of

Section 2 only covered intentional race discrimination,

City of Mobile v. Bolden, Congress amended the statute

to explicitly prohibit voting practices that have racially

discriminatory effects, regardless of intent. 446 U.S. 55,

62 (1980) (plurality opinion). This Court gave context

to the revised Section 2 language in Gingles. This

standard has been effective at remedying egregious

local electoral systems that are racially discriminatory.

The need for Section 2(b) remains. Race and racial

animus still play a role in both voting and redistricting.

Shelby County, 570 U.S. at 536 (2013) (“At the same

time, voting discrimination still exists; no one doubts

that.”).

Race still guides many voters in their electoral

choices. Racially polarized voting remains prominent

in areas of the country. As a result, district map

drawing cannot avoid racial impacts. Choosing to

ignore race in political map drawing is itself an

intentional choice with known and predictable

discriminatory results.2

Indeed, this Court recently noted that map drawers

are “always” aware of racial demographics. BethuneHill v. Virginia State Bd. Of Elections, 137 S. Ct. 788,

797 (2017) (quoting Shaw v. Reno, (Shaw I), 509 U.S.

630, 646 (1993)). Map drawers are similarly aware of

the existence of racially polarized voting in their

2

See David Nevin, & Michael E. Solimine, Representing People and

Places: Castaway Voters and the Racial Disparity in

Redistricting, 21 Election L.J. Rules, Pols. & Pol’y 171, 181 (2022);

Bernard L. Fraga, Redistricting and the Causal Impact of Race on

Voter Turnout, 78 J. of Pol. 19, 30 (2016).

6

community—knowledge that is key to knowing where

one’s supporters live. Rendering meaningless

Congress’s plain language addition to Section 2 would

not result in redistricting becoming race-neutral; it

would provide a cover for racially discriminatory

electoral systems to persist.

Without Section 2(b) protections, at-large and

multimember election schemes—known for diluting

minority votes—will continue and proliferate in local

elections. These electoral systems have long been

recognized by the Court to have discriminatory effects.

See, e.g., White v. Regester, 412 U.S. 755, 765 (1973).

These practices remain common in important, local

elections like school board, city council, and other local

governments, and those local elections have large

impacts on the everyday lives of citizens.3

At the same time, the nation’s citizens continue to

reside in racially segregated communities.4 In fact,

literature suggests that racial housing segregation is

3

Carolyn Abbot & Asya Magazinnik, At-Large Elections and

Minority Representation in Local Government, 64 Am. J. Pol. Sci.

717, 718, 727 (2020) (“Governing bodies elected at-large—city

councils, school boards, and municipal boards—make decisions

about how education is funded, where roads are built, and how

water and sanitation services are delivered; they determine

housing, economic development, transportation, and urban

planning policies that shape their constituents’ daily lives.”); Rene

R. Rocha & Rodolfo Espino, Racial Threat, Residential Segregation,

and the Policy Attitudes of Anglos, 62 Pol. Res. Q. 415, 423 (2009).

4

Stephen Menendian, Samir Gambhir & Arthur Gailes, TwentyFirst Century Racial Residential Segregation in the United States,

UNIV. BERKELEY: ROOTS OF STRUCTURAL RACISM PROJECT (June 21,

2021), https://belonging.berkeley.edu/roots-structural-racism.

7

getting worse, not better.5 As long as significant

housing segregation remains, and racially polarized

voting exists, political map makers will construct maps

that have discriminatory effects.

In this brief, amici provide the Court important

context for the decision it will issue. Recent social

science measuring the effect of racial attitudes in

voting is offered. Some recent Section 2(b) cases

concerning local jurisdictions are provided. Finally, the

scientific literature surveyed demonstrates the

importance of nondiscriminatory election systems in

the operation of local political subdivisions.

ARGUMENT

I.

Race Plays a Significant Role in Elections.

Race-neutral redistricting by state legislatures and

other local jurisdictions does not exist. While

technological advances may allow for computer

production of race-blind redistricting maps, the people

choosing and implementing the final maps are not.

Racially polarized voting (“RPV”) evidence is the

keystone of the Gingles analysis. It allows a court to

objectively analyze voting patterns for the racially

discriminatory effect. When RPV is severe, a court is

required by the VRA to determine, “based on the

totality of circumstances, [whether] 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….” 52

U.S.C. § 10301(b). RPV evidence proves the existence

5

Id.

8

of racially motivated voting, as well as the link between

the seemingly race-neutral partisanship and racial

animus.

Courts should not ignore racially polarized voting

evidence. Ignoring racially polarized voting and racial

effects evidence does not lead to a race neutral

panacea. Turning a blind eye makes nothing disappear.

Polarized voting analysis uses ecological inference,

a statistical methodology that allows social scientists to

examine aggregate units and sort out patterns within

the data.6 Ecological inference is a well established

scientific tool. It is used in the fields of economics,

statistics, epidemiology, sociology, and political

science.7 For political science purposes, when social

scientists lack perfect information on how individuals

behave, they can attempt to infer that behavior by

examining patterns in larger aggregate units.8

Ecological inference is used by the scientist to

determine the racial makeup of voters. Racial voting

patterns are information political map drawers and

policy makers intuitively know from their experience as

members of the community. Because race is not

6

Loren Collingwood, et al., eiCompare: Comparing Ecological

Inference Estimates across EI and EI: RxC, 8 The R. J. 92, 94

(2016).

7

GARY KING, A SOLUTION TO THE ECOLOGICAL INFERENCE

PROBLEM: RECONSTRUCTING INDIVIDUAL BEHAVIOR FROM

AGGREGATE DATA 5 (1997).

8

See Bernard Grofman, Multivariate Methods and the Analysis of

Racially Polarized Voting: Pitfalls in the Use of Social Science by

the Courts, 72 SOC. SCI. Q. 826, 827 (1991).

9

recorded in most voter records,9 the scientific

community turned to ecological inference and other

tools to scientifically measure racial voting patterns.

Using ecological inference, political scientists take

precinct-by-precinct election results and correlate how

precinct votes were cast and the racial or ethnic

demographics of the voters within a given precinct.10

Racially polarized voting, however, does not occur in

a vacuum. Social science research has documented

extensively that the underlying catalysts triggering

bloc voting are racial attitudes and stereotypes. Studies

9

Kevin Deluca & John A. Curiel, Validating the Applicability of

BISG to Congressional Redistricting 1, 3 (unpublished

manuscript), https://electionlab.mit.edu/sites/default/files/202107/deluca-curiel_validating_bisg.pdf [https://perma.cc/W6J9-8RYN]

(“Many states do not collect individual race data in their voter

files – including states like Texas, Pennsylvania, and Wisconsin,

which are often subjects of contentious gerrymandering

litigation.”) (last visited Oct. 14, 2021); U.S. ELECTION ASSISTANCE

COMM’N, AVAILABILITY OF STATE VOTER FILE AND CONFIDENTIAL

INFORMATION (2020), https://www.eac.gov/sites/default/files/voters

/Available_Voter_File_Information.pdf [https://perma.cc/TY5UWSWE] (listing the information that each voter file contains,

including states that provide racial demographic information);

Commercial Voter Files and the Study of U.S. Politics, PEW RSCH.

CTR. (Feb. 15, 2018), https://www.pewresearch.org/methods/2018/

02/15/demographic-data [https://perma.cc/R5US-SZ52] (“In 16

states or portions of states, largely in the South, the Voting Rights

Act of 1965 mandated that states list voters’ race on the state voter

rolls. However, in states where this information is not available,

vendors attempt to use information from other sources such as

identifying common surnames or if someone lives in an area that

is densely populated by a particular race.”).

10

See Bernard Grofman, Multivariate Methods and the Analysis of

Racially Polarized Voting: Pitfalls in the Use of Social Science by

the Courts, 72 SOC. SCI. Q. 826, 827 (1991).

10

have shown that partisan ideology alone cannot explain

away this link.11

Indeed, an abundance of published research in

leading academic publications finds racial animus is a

leading indicator of vote preference and party

affiliation among whites.12 Scholarly research has

produced several significant findings showing that

prejudice and discriminatory attitudes towards

minorities persists today and that it is one of the

strongest predictors of party attachment among

whites.13

For example, in a large-scale study of racial

attitudes and voting, Keith Reeves finds that “a

significant number of whites harbor feelings of

antipathy toward black Americans as a categorical

group— feelings and sentiments that are openly and

routinely expressed…. And where such prejudices are

11

See Dana Ables Morales, Racial Attitudes and Partisan

Identification in the United States, 1980-1992, 5 Party Pols. 191,

197 (1999); Nicholas A. Valentino & David O. Sears, Old Times

There are not Forgotten: Race and Partisan Realignment in the

Contemporary South, 24 Am. J. Pol. Sci. 672, 682 (2005); KEITH

REEVES, VOTING HOPES OR FEARS? WHITE VOTERS, BLACK

CANDIDATES & RACIAL POLITICS IN AMERICA 74 (1997); MICHAEL

TESLER & DAVID SEARS, OBAMA’S RACE: THE 2008 ELECTION AND

THE DREAM OF A POST-RACIAL AMERICA 61 (2010).

12

See, e.g. Morales, supra note 11, at 196-97; Valentino & Sears,

supra note 11, at 685.

13

Richard Skinner & Philip Klinkner, Black, White, Brown and

Cajun: The Racial Dynamics of the 2003 Louisiana Gubernatorial

Election, 2 The Forum 1, 7-8 (2004).

11

excited…. they constitute the critical linchpin in black

office-seekers’ success in garnering white votes.”14

Writing more than 10 years later about the 2008

presidential election, Michael Tesler and David Sears

find the same pattern. Even after controlling for the

independent effects of partisanship and ideology, they

find “[t]he most racially resentful were more than 70

percentage points more likely to support McCain in

March 2008 than were the least racially resentful.”15

Tesler and Sears conclude that the Obama era

unfortunately reshaped partisan affiliation in

contemporary America almost entirely through the lens

of racial attitudes.16

In what comes close to a consensus in published,

empirical political science studies, scholarly work

supports the finding that discriminatory attitudes and

racial prejudice play a central role in driving racial

party identification, and this is especially strong in

states previously covered by Section 5 of the VRA.17

In his analysis of the white vote for Obama in

Southern states, Ben Highton noted that “at the state

level, the influence of prejudice on voting was

comparable to the influence of partisanship and

14

Reeves, supra note 11, at 74.

15

Tesler & Sears, supra note 11, at 61.

16

Id. at 60-61.

17

See generally Jonathan Knuckey, Racial Resentment and the

Changing Partisanship of Southern Whites, 11 PARTY POLS. 5, 11

(2005); EDWARD G. CARMINES & JAMES A. STIMSON, ISSUE

EVOLUTION: RACE AND THE TRANSFORMATION OF AMERICAN

POLITICS 132 (1989).

12

ideology. Racial attitudes explain support for Obama

and shifts in Democratic voting between 2004 and

2008.”18 This finding is corroborated by Spencer

Piston’s individual-level analysis of voter attitudes and

support for Barack Obama in Southern states, drawing

a direct link between racial attitudes and voting,

independent of partisanship.19 Piston asserted that

“[n]egative stereotypes about blacks significantly

eroded white support for Barack Obama,” concluding

that “white voters punished Obama for his race rather

than his party affiliation.”20

Another important piece of scholarship on this point

is the detailed and comprehensive study presented by

Kuziemko and Washington. Their paper disentangles

antipathy toward Black people from other factors that

motivate white Americans to support the Republican

party, such as conservative principles, support for

reduced government intervention, and other policy

preferences.21

The findings in political science are not limited to

racial views towards Blacks, but increasingly today

white partisanship is influenced by views towards

18

Ben Highton, Prejudice Rivals Partisanship and Ideology When

Explaining the 2008 Presidential Vote Across the States, 44 PS:

POL. SCI. & POLS. 530, 530 (2011).

19

Spencer Piston, How Explicit Racial Prejudice Hurt Obama in

the 2008 Election, 32 POL. BEHAV. 431, 431 (2010).

20

21

Id.

See generally Ilyana Kuziemko & Ebonya Washington, Why Did

the Democrats Lose the South? Bringing New Data to an Old

Debate, 108 Am. Econ. Rev. 2830, 2861 (2018).

13

Latinos and immigrants. Recent research demonstrates

that when Democratic political elites make campaign

appeals to Latinos, it results in partisan defections

from the Democratic party toward the Republican

party on part of white Americans.22

In their 2020 published paper “The Inseparability of

Race and Partisanship in the United States,” Sean

Westwood and Erik Peterson demonstrate that

although partisanship and race are highly correlated

with one another, white Americans’ viewpoints toward

racial minority groups directly affects their attachment

to either the Democratic or Republican Party, and vice

versa.23 In other words, a negative evaluation of Blacks

or Latinos translates into a negative evaluation of

Democrats in general, and positive evaluation of whites

translates into positive evaluations of Republicans in

general, and vice versa. They conclude that racial

discrimination is intimately linked to partisan

discrimination, and their research finds these two

concepts to be “inseparable.”24

Given what the science has revealed about racial

voting patterns, redistricting based on supposed raceneutral partisan lines is anything but. Eliminating

effects-based protection for racial discrimination in

voting while allowing map drawers to safe harbor their

22

Mara Cecilia Ostfeld, The New White Flight?: The Effects of

Political Appeals to Latinos on White Democrats, 41 Pol. Behav.

561, 576 (2019).

23

Sean J. Westwood & Erik Peterson, The Inseparability of Race

and Partisanship in the United States, Pol. Behav. 1, 12 (2020).

24

Id. at 20.

14

intentions by claiming partisanship, guarantees

racially discriminatory maps without legal remedy.

II.

The Section 2(b) Protections Remain

Vitally Necessary to Protect Voters in Local

Governments.

Appellants acknowledge the obstacle at-large and

multimember election schemes places on successful

minority voting and representation, but incorrectly

imply that most such schemes have been “dismantled.”

Br. Appellants 37. This is plainly untrue at the local

level.

Many local jurisdictions still utilize at-large election

systems.25 Numerous Section 2 lawsuits in the past

decade sought to remedy at-large voting systems.26

Hybrid election districts and single member districts

maps (some of them newly imposed after this Court’s

Shelby County decision) that had discriminatory effects

were also challenged under the Section 2 effects test.

See, e.g., Wright v. Sumter Cnty. Bd. of Elections &

Registration, 301 F. Supp. 3d 1297, 1326 (M.D. Ga.

2018), aff’d, 979 F.3d 1282 (11th Cir. 2020), Luna v.

Cnty. of Kern, 291 F. Supp. 3d 1088, 1142, 1144 (E.D.

Cal. 2018), Patino v. City of Pasadena, 230 F. Supp. 3d

25

Carolyn Abbot & Asya Magazinnik, At-Large Elections and

Minority Representation in Local Government, 64 Am. J. Pol. Sci.

717, 717 (2020).

26

See e.g., Cases Raising Claims Under Section 2 of the Voting

Rights Act, U.S D EP ’ T OF J UST . (May 25, 2022),

https://www.justice.gov/crt/cases-raising-claims-under-section-2voting-rights-act-0.

15

667, 718 (S.D. Tex. 2017), Pope v. Cnty. of Albany, 94 F.

Supp. 3d 302, 351 (N.D.N.Y. 2015).

In all cases, the exacting Gingles standard places a

high burden on plaintiffs. Indeed, often the plaintiffs

have shown racially discriminatory harm, but fail to

meet the rest of the Gingles framework and therefore

are denied relief. See, e.g., Rodriguez v. Harris Cnty.,

964 F. Supp. 2d 686, 804 (S.D. Tex. 2013), aff’d sub

nom. Gonzalez v. Harris Cnty., 601 Fed. App’x 255 (5th

Cir. 2015) (while Plaintiff’s failed to meet the first

Gingles prong, the “Court is troubled by evidence of the

range and prevalence of voter suppression tactics

employed against members of the Latino community.”),

Cisneros v. Pasadena Indep. Sch. Dist., No. 4:12-CV2579, 2014 U.S. Dist. LEXIS 58278, at *63-65 (S.D.

Tex. 2014).

Gingles requires proof of not only a discriminatory

electoral map or system but also a detailed, intricate,

and scientific look at the segregation, polarization, and

discriminatory practices of the community. Section 2

correctly provides a legal remedy when the totality of

the circumstances demonstrates that voter racial

attitudes are working within an electoral system that

results in some voters, based on their race, “hav[ing]

less opportunity than other members of the electorate

to participate in the political process and to elect

representatives of their choice.” 52 U.S.C. § 10301(b).

Recent rulings in local jurisdiction cases

demonstrate the egregious conditions that Section 2(b)

continues to remedy. See E. Ramapo Cent. Sch. Dist.,

462 F. Supp. 3d at 417 aff’d sub nom. Clerveaux v. E.

Ramapo Cent. Sch. Dist., 984 F.3d 213 (2d Cir. 2021),

16

and United States v. City of Eastpointe, 378 F. Supp. 3d

589, 614 (E.D. Mich. 2019), and Missouri State Conf. of

the NAACP v. Ferguson-Florissant Sch. Dist., 201 F.

Supp. 3d 1006 (E.D. Mo. 2016), aff’d 894 F.3d 924, 941

(8th Cir. 2018).

III.

Non-Discriminatory Voting Systems and

District Maps in Local Elections Have

Important Benefits That Congress

Appropriately Protected.

Racial representation, or the lack of it, is a key

determinant in the adoption and execution of

government policy.27 Examples of the link between

racial bias and policy outcomes occur in city

government spending patterns. “[S]pending on

productive public goods – education, roads, sewers and

trash pickup – in U.S. cities . . . [are] inversely related

to the city’s . . . ethnic fragmentation.”28 Jurisdictions

with a majority of white voters, “choose lower public

goods when a significant fraction of tax revenues

collected on one ethnic group are used to provide public

goods shared with other ethnic groups.”29 Among those

public goods, spending on core goods like education and

roads has been found to be lower in more ethnically

diverse jurisdictions.30

27

Peter K. Eisinger, Black Employment in Municipal Jobs: The

Impact of Black Political Power, 76 Am. Pol. Sci. Rev. 380, 381

(1982).

28

Alberto Alesina, et al., Public Goods and Ethnic Divisions, 114

Q.J. Econ. 1243, 1243 (1999).

29

Id. at 1244.

30

Id. at 1274.

17

A 2004 study by Matthew Fellowes and Gretchen

Rowe on the passage of the Personal Responsibility and

Work Opportunities Reconciliation Act (“PRWORA”)

and subsequent distribution of the Temporary Aid to

Needy Families (“TANF”) and Aid for Families with

Dependent Children (“AFDC”) programs found that as

states become more diverse, welfare policies become

stricter because of underlying racist attitudes among

government officials.31 Indeed, across several factors

tested, “only race has a significant effect on the

majority of welfare [policies] analyzed.”32 The trend

shows that as minorities increase in proportion of

program recipients, the strictness of program entry

requirements increases. It is likewise true that when

a minority community grows large enough to threaten

the political majority, many local officials move to

change the electoral system. See e.g., Patino v. City of

Pasadena, 230 F. Supp. 3d at 718.

The inclusion and integration of members of

underrepresented communities serves as a remedy to

the racially inequitable implementation of public

policies. Studies have found that “the political

representation of African Americans is associated with

a more equitable allocation of state aid to school

districts.”33 “In states where African Americans gained

greater representation, high minority enrollment

31

Matthew C. Fellowes & Gretchen Rowe, Politics and the New

American Welfare States, 48 Am. J. Pol. Sci. 362, 370 (2004).

32

33

Id. at 362.

Michiko Ueda, The Impact of Minority Representation on Policy

Outcomes: Evidence from the U.S. States, 1 (Cal. Inst. Of Tech.,

Social Science Working Paper No. 1284, 2008).

18

districts saw a greater increase in aid compared to high

minority enrollment districts in states where African

Americans remained underrepresented in the state

legislature.”34 Similarly in local education policy, racial

representation on school boards was associated with

equitable representation in teaching staff, Black

student college acceptance rates, and more Black

students admitted in gifted and enriched classes.35

According to social science literature, increased

government responsiveness is a proven effect of racial

representation on all levels of politics and for multiple

racial groups.36 Studies on descriptive representation

show that “increases in Latino representation and

legislative incorporation offset the negative effects of

Latino population size on social welfare policy.”37

Minority representation counteracts the policy

inequities instituted in racially homogeneous

environments. There exists a clear relationship

between minority representation in government

positions and increases in municipal employment

opportunities for Black and Latino people. According to

Dye and Renick, “[f]or Blacks and Hispanics,

employment in top city jobs appears to be a function of

34

Id. at 5–6.

35

Kenneth J. Meier & Robert E. England, Black Representation

and Educational Policy: Are They Related?, 78 Am. Pol. Sci. Rev.

392, 397 (1984).

36

Robert R. Preuhs, Descriptive Representation as a Mechanism to

Mitigate Policy Backlash: Latino Incorporation and Welfare Policy

in the American States, 60 Pol. Rsch. Q. 277, 279 (2007).

37

Id. at 277.

19

political power as it is reflected in city council

representation.”38 Throughout multiple streams of

research, the key determinant of equitable policy

outcomes (increased government responsiveness and

healthy constituent-public service relationships), is

meaningful racial representation.

Turning a blind eye to the discriminatory effects of

voting systems and district maps is an intentional

choice to permit “political processes” that “are not

equally open to participation by members” of racial

groups who do not form a political majority. 52 U.S.C.

§ 10301(b). If this Court were to render Congress’

Section 2 effects language meaningless, racially

discriminatory policy changes will be swift in local

communities throughout the country. In the aftermath

of the Shelby County, various states and numerous

local governments made drastic and discriminatory

changes to their voting procedures.39

The Framers of the Fifteenth Amendment delegated

to Congress the power to enforce the guarantee of that

article. Congress spoke through the VRA and this

Court filled in details in with Gingles. In the more

than three decades since, Congress has not adjusted

38

39

Meier & England, supra note 35, at 394.

Catalina Feder & Michael G. Miller, Voter Purges After Shelby:

Part of Special Symposium on Election Sciences, 48(6) Am. Pol.

Rsch. 687, 691 (2020); Michael D. Herron & Daniel A. Smith, Race,

Shelby County, and the Voter Information Verification Act in North

Carolina, 43 Fla. St. U. L. Rev. 465 (2015); Sydnee Fielkow, Shelby

County and Local Governments: A Case Study of Local Texas

Governments Diluting Minority Votes, 14 Nw. J.L. & Soc. Pol’y 348

(2018).

20

this policy. The current conditions described in the

above-referenced scientific literature demonstrate the

continued wisdom of that decision.

CONCLUSION

For the foregoing reasons, Amici respectfully

requests this Court affirm the district court.

Respectfully submitted,

CHAD W. DUNN

Counsel of Record

BERNADETTE REYES

SONNI WAKNIN

UCLA VOTING RIGHTS PROJECT

3250 Public Affairs Building

Los Angeles, CA 90095

310-400-6019

chad@uclavrp.org

bernadette@uclavrp.org

sonni@uclavrp.org

Counsel for Amici Curiae