Amicus Curiae Brief — Louisiana, Appellant v. Phillip Callais, et al.

Nos. 24-109, 24-110

IN THE

Supreme Court of the United States

STATE OF LOUISIANA,

Appellant,

v.

PHILLIP CALLAIS, et al.,

Appellees.

PRESS ROBINSON, et al.,

Appellants,

v.

PHILLIP CALLAIS, et al.,

Appellees.

ON APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF LOUISIANA

BRIEF FOR PROFESSOR W. KERREL MURRAY AS

AMICUS CURIAE SUPPORTING NEITHER PARTY

KARIN DRYHURST

KYLE EDWARDS HAUGH

Counsel of Record

JOSHUA A. GELTZER

WILMER CUTLER PICKERING

NATALIE KIRCHHOFF

WILMER CUTLER PICKERING HALE AND DORR LLP

50 California Street, Suite 3600

HALE AND DORR LLP

2100 Pennsylvania Ave. NW San Francisco, CA 94111

(628) 235-1000

Washington, DC 20037

kyle.haugh@wilmerhale.com

TABLE OF CONTENTS

Page

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

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

INTRODUCTION AND SUMMARY OF

ARGUMENT ................................................................ 1

ARGUMENT ....................................................................... 5

I.

SECTION 2 PERMISSIBLY CONSIDERS RACE

TO REMEDIATE THE EFFECTS OF PAST OR

PRESENT INTENTIONAL DISCRIMINATION ............... 5

II. RACE-BASED STATE ACTION UNDER

SECTION 2 HAS A LOGICAL ENDPOINT .................... 10

III. SECTION TWO DOES NOT USE RACE AS A

“NEGATIVE” OR A “STEREOTYPE” .......................... 18

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

ii

TABLE OF AUTHORITIES

CASES

Page(s)

Abbott v. Perez, 585 U.S. 579 (2018)................................ 12

Allen v. Milligan, 599 U.S. 1

(2023) ...................................... 3, 5-7, 9-12, 15-16, 19-21

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

Fischer v. United States, 603 U.S. 480 (2024) ................. 8

Grutter v. Bollinger, 539 U.S. 306 (2003) ........... 10, 13, 16

Johnson v. De Grandy, 512 U.S. 997 (1994)................... 16

League of United Latin American Citizens v.

Perry, 548 U.S. 399 (2006) ......................................... 13

Parents Involved in Community Schools v.

Seattle, 551 U.S. 701 (2007) ......................................... 5

Rice v. Cayetano, 528 U.S. 495 (2000) .............................. 5

Schuette v. BAMN, 572 U.S. 291 (2014) ......................... 21

Shaw v. Hunt, 517 U.S. 899 (1996) .............................. 9, 20

Shelby County v. Holder, 570 U.S. 529 (2013)......... 10, 17

Students for Fair Admissions, Inc. v.

President & Fellows of Harvard College,

600 U.S. 181 (2023) ............................ 1-5, 10, 16, 18-21

Thornburg v. Gingles, 478 U.S. 30

(1986)..........................................3, 7, 8-9, 11, 13, 15-16, 19, 21

Whitcomb v. Chavis, 403 U.S. 124 (1971) ......................... 7

White v. Regester, 412 U.S. 755 (1973).......................... 6, 7

STATUTES

52 U.S.C. §10301 .............................................................. 6, 7

iii

TABLE OF AUTHORITIES—Continued

Page

OTHER AUTHORITIES

Bray, Samuel L., The Mischief Rule,

109 Geo. L.J. 967 (2021) .......................................... 8

Crum, Travis, Reconstructing Racially

Polarized Voting, 70 Duke L.J. 261

(2020) ....................................................................... 11

Grofman, Bernard & Lisa Handley,

Identifying and Remedying Racial

Gerrymandering, 8 J.L. & Pol. 345

(1992) ......................................................................... 3

Hartig, Hannah, et al., Behind Trump’s 2024

Victory, a More Racially and

Ethnically Diverse Voter Coalition,

Pew Research Center (June 26, 2025),

https://www.pewresearch.org/wpcontent/uploads/sites/20/2025/06/PP2025.6.26_validated-voters_report.pdf ............... 14

Issacharoff, Samuel, Polarized Voting and the

Political Process: The Transformation

of Voting Rights Jurisprudence,

90 Mich. L. Rev. 1833 (1992) .......................... 19, 20

Karlan, Pamela, The Rights to Vote: Some

Pessimism About Formalism,

71 Tex. L. Rev. 1705 (1993) .................................. 19

Karlan, Pamela & Daryl J. Levinson, Why

Voting Is Different, 84 Cal. L. Rev. 1201

(1996) .................................................................. 4, 15, 20

iv

TABLE OF AUTHORITIES—Continued

Page

Krysan, Maria & Kyle Crowder, Cycle of

Segregation: Social Processes and

Residential Stratification (2017) ........................ 12

Murray, W. Kerrel, Discriminatory Effect(s),

78 Fla. L. Rev. __ (forthcoming 2026),

https://papers.ssrn.com/sol3/papers.cfm

?abstract_id=5167346 .............................................. 9

Once Again a Clash Over Voting Rights,

N.Y. Times (Sept. 27, 1981), in

ProQuest Historical Newspapers,

https://www.proquest.com/resultso

l/97F224F2F0A34905PQ/1 ..................................... 8

Panel Advances Extension of 1965

Voting Rights Act, Boston Globe

(Mar. 25, 1982), in ProQuest Historical

Newspapers, https://www.pro

quest.com/resultsol/C5D1FE8AD99347

B2PQ/1 ...................................................................... 8

Senate Liberals Want a More Stringent

Voting Rights Measure, Reno Evening

Gazette (Mar. 25, 1982) ........................................... 8

Senate Panel Approves Vote Law Fought

by Blacks, Chicago Tribune

(Mar. 25, 1982), in ProQuest Historical

Newspapers, https://www.pro

quest.com/resultsol/B6A1517A93AC4A

17PQ/1 ....................................................................... 8

v

TABLE OF AUTHORITIES—Continued

Page

Senate Panel Extends ’65 Voting Rights Act,

The Hartford Courant (Mar. 25, 1982),

in ProQuest Historical Newspapers,

https://www.proquest.com/resultsol/1C

DB4CBBE8944A2BPQ/1........................................ 8

Shanahan, Mike, Voting Rights Bill Blocked

in Senate Committee, The Hartford

Courant (Apr. 30, 1982), in ProQuest

Historical Newspapers,

https://www.proquest.com/resultsol/8C

6FD71C368349FBPQ/1 ........................................... 8

Stephanopoulos, Nicholas O., Civil Rights

in a Desegregating America,

83 U. Chi. L. Rev. 1329 (2016).............................. 11

Stephanopoulos, Nicholas, Election Law for the

New Electorate, 17 J. Legal Analysis 42

(2025) ............................................................................ 13

2 Southern Senators Block Action on Voting

Rights Bill, Newsday (Apr. 30, 1982),

in ProQuest Historical Newspapers,

https://www.proquest.com/resultsol/BD

B8CB829D364D98PQ/1 .......................................... 8

vi

TABLE OF AUTHORITIES—Continued

Page

Veto of Energy Controls Survives Senate

Attack, Spokane Chronicle (Mar. 25,

1982), in Newspapers.com,

https://www.newspapers.com/search/re

sults/?keyword=%22Veto+of+Energy+

Controls+Survives+Senate+Attack%22

&publication-ids=12635 .......................................... 8

What Happened In 2024, Catalist (May 2025),

https://catalist.us/whathappened2024 ................ 14

INTEREST OF AMICUS CURIAE1

Amicus curiae is an Associate Professor of Law and

the Milton Handler Fellow at Columbia Law School. He

researches, writes, and teaches about constitutional law

and election law. His forthcoming article False Conflict:

Colorblindness and Section Two of the Voting Rights

Act explains that Section 2 of the Voting Right Act’s

consideration of race is compatible with constitutional

limits on race-based state action reflected in cases like

Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, 600 U.S. 181 (2023). As a

scholar of Section 2, amicus curiae has a strong interest

in the statute’s proper interpretation as consistent with

the Constitution. He writes separately to explain the

compatibility between Section 2 and several core canons

of colorblind constitutionalism. He submits this brief in

his individual capacity and references his university affiliation for identification purposes only.

INTRODUCTION AND SUMMARY OF ARGUMENT

The Court ordered supplemental briefing addressing the question of whether Louisiana’s intentional creation of a second majority-minority congressional district violates the Fourteenth or Fifteenth Amendments,

as raised on pages 36-38 of Appellees’ brief. That portion

of Appellees’ brief presents Section 2 of the Voting

Rights Act as fundamentally incompatible with this

Court’s understanding of the limits that the Constitution

imposes on race-based state action. In advancing their

1

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

and no entity or person, other than amicus curiae and his counsel,

made a monetary contribution intended to fund the preparation or

submission of this brief.

2

attack, Appellees’ touchstone is Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, 600 U.S. 181 (2023) (“SFFA”). In SFFA, Appellees

perceive at least three key tenets of a “color-blind Constitution.” Appellees Br. 41. First, resort to race-based

action can be justified only by a “compelling interest”

and only in “the most extraordinary case.” Appellees Br.

37. Second, there must be “time limits on race-based

state action.” Id. And third, “race may never be used as

a ‘negative’ and … may not operate as a stereotype.”

Appellees Br. 38. Louisiana’s supplemental brief sings

the same tune: “Race-based redistricting is … unconstitutional for precisely the same reasons the race-based

admissions programs in SFFA were unconstitutional.”

Louisiana Suppl. Br. 18; see also Louisiana Suppl. Br. 15

(“[T]his is an a fortiori case post-SFFA.”).

Section 2 presents no conflict with any of these principles of colorblindness. First, Section 2 fits comfortably

within one of the enduring justifications embraced by

this Court for governmental consideration of race. As

SFFA recognized, “remediating specific, identified instances of past discrimination that violated the Constitution or a statute” constitutes a “compelling interest”

that “permit[s] resort to race-based state government

action.” 600 U.S. at 207. Compliance with Section 2 satisfies this rationale because it requires states to consider

race in redistricting only when necessary to remediate

the present-day effects of past or present intentional discrimination. That much is clear from the history of the

1982 amendments to the Voting Rights Act. This

Court’s subsequent cases reflect and acknowledge that

the statute keys on the discriminatory effects that may

arise when historical discrimination has so corrupted the

political process that genuinely neutral electoral devices

nevertheless hinder minority voters’ ability to cast or

3

aggregate their votes on equal terms with others. The

bottom line is that, at its core, Section 2 is concerned

with remediating past (or present) intentional discrimination.

Second, Section 2’s design means that there is a “logical endpoint” to the circumstances in which it requires

race-based state action. SFFA, 600 U.S. at 212. Because

Section 2 targets the present-day effects of past or present discrimination, the statute should trigger remedial

steps less frequently as those present-day effects dissipate. That is the genius of the framework that this Court

crafted to implement Section 2 in Thornburg v. Gingles,

478 U.S. 30 (1986): as the conditions that signal the presence of intentional discrimination’s effects diminish, due

in part to remedial measures like those contained in Section 2 itself, it becomes harder and harder for plaintiffs

to satisfy the three Gingles factors and the totality-ofthe-circumstances test. As scholars have put it, Gingles

reflects that Section 2 is “self-liquidating.” See, e.g.,

Grofman & Handley, Identifying and Remedying Racial

Gerrymandering, 8 J.L. & Pol. 345, 402 (1992). Moreover, Gingles has that function precisely because it looks

to the kinds of current conditions—residential segregation and racially polarized voting—that serve as reasonable indicia of the lasting effects of intentional discrimination that the statute targets. Section 2 thus has a logical endpoint baked into it, ensuring that race-based redistricting will not “extend indefinitely into the future.”

Allen v. Milligan, 599 U.S. 1, 45 (2023) (Kavanaugh, J.,

concurring).

Third, Section 2 does not use race as a “negative” or

a “stereotype.” SFFA, 600 U.S. at 218-219. In SFFA,

the Court reasoned that “[c]ollege admissions are zerosum”: because there are a limited number of spots available for new students at any particular school, any

4

advantage given to a minority-group applicant because

of his race necessarily disadvantages a majority-group

applicant because of her race. Id. The same is not true

of voting rights. A minority-group voter casting a ballot

stops no majority-group voter from doing so. And when

an additional majority-minority district is properly

drawn to remedy a Section 2 vote-dilution claim, the enforcement of a minority resident’s right to have his vote

aggregated on equal terms with others’ votes does not

eliminate any majority-group resident’s right to the

same. True, the majority-group resident might have

preferred district lines that better positioned her to

combine her vote with likeminded voters. But Section 2

dashes no legally cognizable expectations when—to cure

racially discriminatory vote dilution—it moves a majority-race voter from one aggregative regime that does

not dilute her vote to a differently configured nondilutive regime. See Karlan & Levinson, Why Voting is Different, 84 Cal. L. Rev. 1201, 1231-1232 (1996). Nor does

Section 2 use race as a stereotype. The three Gingles

preconditions and the totality-of-the-circumstances test

do not rest on “assumption[s]” about how individuals

think or behave. SFFA, 600 U.S. at 220. They look to

hard evidence—linked to intentional discrimination’s effects—of how individuals within a specific geographic region vote and live today, as well as how local history may

have influenced those voting and residential patterns.2

2

The arguments in this brief are drawn from amicus curiae’s

forthcoming article, False Conflict: Colorblindness and Section

Two of the Voting Rights Act.

5

ARGUMENT

I.

SECTION 2 PERMISSIBLY CONSIDERS RACE TO REMEDIATE THE EFFECTS OF PAST OR PRESENT INTENTIONAL

DISCRIMINATION

As Appellees (Br. 37) and Louisiana (Br. 9) note, the

Court in SFFA underscored the principle that “[d]istinctions between citizens solely because of their ancestry

are by their very nature odious to a free people whose

institutions are founded upon the doctrine of equality.”

600 U.S. at 208 (quoting Rice v. Cayetano, 528 U.S. 495,

517 (2000)). That principle, the Court said, “cannot be

overridden except in the most extraordinary cases.” Id.

Still, the Court acknowledged the existence of certain

“compelling interests” that “permit resort to race-based

government action.” Id. at 207. As relevant here, the

Court confirmed that state actors may take race-based

action in “remediating specific, identified instances of

past discrimination that violated the Constitution or a

statute.” Id. That much commands widespread agreement. See, e.g., Parents Involved in Community Schools

v. Seattle, 551 U.S. 701, 772 n.19 (2007) (Thomas, J., concurring) (“[T]he colorblind Constitution does not bar the

government from taking measures to remedy past statesponsored discrimination—indeed, it requires that such

measures be taken in certain circumstances.”); Louisiana Suppl. Br. 37-38.

Section 2 satisfies this demanding exception to the

Constitution’s general bar on race-based state action,

because Section 2’s design targets the present-day effects of past or present intentional discrimination.

To see how, start with the history of the 1982 amendments that produced the modern-day Section 2, which

this Court recounted in detail in Milligan. See 599 U.S.

at 11-14. To briefly summarize: In 1980, a plurality of the

6

Court in City of Mobile v. Bolden concluded that the

prior version of Section 2 prohibited only electoral devices that contemporary actors enacted or retained with

discriminatory purpose. See 446 U.S. 55, 61-62 (1980).

Congress repudiated that interpretation by amending

Section 2 in 1982 to impose a discriminatory “effects

test.” Milligan, 599 U.S. at 12-13, 25. While the preceding version of the statute had barred states from using

electoral devices that “deny or abridge” the right to vote

based on race, the 1982 amendments barred states from

using electoral devices “in a manner which results in a

denial or abridgment” of that right based on race. 52

U.S.C. §10301(a) (emphasis added).

Critics believed that this text “would inevitably require a focus on proportionality—wherever a minority

group won fewer seats in the legislature than its share

of the population, the charge could be made that the

State law had a discriminatory effect.” Milligan, 599

U.S. at 12. In response—to “allow courts to consider effects but avoid proportionality,” id. at 13—Congress affirmatively defined Section 2’s prohibition by writing

into its text language “borrowed” from White v.

Regester, 412 U.S. 755 (1973), a pre-Bolden voting-rights

case that had repudiated a right to proportionality, Milligan, 599 U.S. at 13. Section 2 accordingly activates

when “the political processes leading to nomination or

election in the State or political subdivision are not

equally open to participation by members of a class of

citizens protected by [Section 2] in that its members

have less opportunity than other members of the electorate to participate in the political process and to elect

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

Regester, 412 U.S. at 766. To make this design unmistakable, Congress added a “robust” textual “disclaimer

7

against proportionality.” Milligan, 599 U.S. at 13; see 52

U.S.C. §10301(b).

Congress’s reference to Regester provides additional confirmation of Section 2’s focus on the effects of

past or present intentional discrimination. Regester neither demanded that a challenged map’s makers had a

discriminatory purpose nor required racial proportionality in elections. On the one hand, the Court embraced

Whitcomb v. Chavis, 403 U.S. 124 (1971)—a then-recent

case that had contemplated the possibility that unconstitutional racial vote dilution was occurring even absent

evidence that districts “were conceived or operated as

purposeful devices to further racial or economic discrimination.” Id. at 149 (emphasis added); see Regester, 412

U.S. at 765. On the other hand, the Court confirmed that

“it is not enough that a racial group allegedly discriminated against has not had legislative seats in proportion

to its voting potential.” Regester, 412 U.S. at 765-766.

Instead, Regester asked whether the political processes were not “equally open” to participation by a minority group in that “its members had less opportunity

than did other residents in the district to participate in

the political processes and to elect legislators of their

choice”—the language Congress seized on in the 1982

amendments. 412 U.S. at 766 (citing Whitcomb, 403 U.S.

at 149-150). To ascertain whether that was the case, the

Court started its analysis by first citing “the history of

official racial discrimination in Texas” and then looking

to indicia of the “residual impact” of that past discrimination, including facts reflecting both residential segregation and racially polarized voting, id. at 766 n.10, 766768—features that would later animate the Court’s

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

see infra Part II. By referencing Regester’s standard,

Congress sought to reinstate this pre-Bolden regime.

8

That was how contemporaries understood the “mischief” that the 1982 amendments targeted. See Bray,

The Mischief Rule, 109 Geo. L.J. 967, 968, 973, 1003

(2021) (explaining how the textualist “mischief rule”

treats “the generating problem … as part of the context

for reading the statute”); Fischer v. United States, 603

U.S. 480, 491-492 (2024) (interpreting statute “in light of

the history of the provision,” including the “loophole” in

prior law that preceding events exposed). What Bolden

had broken—and what the 1982 amendments aimed to

fix—was Section 2’s ability to attack the “effects or results of discrimination.” E.g., Panel Advances Extension of 1965 Voting Rights Act, Boston Globe (Mar. 25,

1982), at p.9.3 The New York Times put it best: the status quo before Bolden that the amendment reinstated

was one where liability would lie if “the impact of past or

present racial discrimination” “preclud[ed] blacks from

participating in the political process” to the same degree

as other citizens. Once Again a Clash Over Voting

Rights, N.Y. Times (Sept. 27, 1981), at p.A100.

The Court’s later cases interpreting Section 2 appreciate that point. As the Court recognized in Gingles,

Section 2 is designed to “eradicate inequalities in political opportunities that exist due to the vestigial effects of

past purposeful discrimination.” 478 U.S. at 69. And as

3

See also, e.g., Senate Panel Approves Vote Law Fought by

Blacks, Chicago Tribune (Mar. 25, 1982), at p.2; Senate Panel Extends ’65 Voting Rights Act, The Hartford Courant (Mar. 25, 1982),

at p.A9; Shanahan, Voting Rights Bill Blocked in Senate Committee, The Hartford Courant (Apr. 30, 1982), at p.A4; 2 Southern Senators Block Action on Voting Rights Bill, Newsday (Apr. 30, 1982),

at p.11; Senate Liberals Want a More Stringent Voting Rights

Measure, Reno Evening Gazette (Mar. 25, 1982), at p.15A; Veto of

Energy Controls Survives Senate Attack, Spokane Chronicle (Mar.

25, 1982), at p.26.

9

the Court put it recently in Milligan, 599 U.S. at 25, a

Section 2 violation occurs “when minority voters face—

unlike their majority peers—bloc voting along racial

lines, arising against the backdrop of substantial racial

discrimination within the State, that renders a minority

vote unequal to a vote by a nonminority voter.” Section

2 thus recognizes that neutral electoral devices adopted

or maintained by pure-hearted officials may nevertheless “interact[] with social and historical conditions to

cause an inequality in the opportunities enjoyed by black

and white voters to elect their preferred representatives.” Gingles, 478 U.S. at 47.

For these reasons, Section 2 is distinct from a statute that justifies its resort to race by reference to “generalized assertion[s] of past discrimination” or to the

general importance of “alleviat[ing] the effects of societal discrimination.” Shaw v. Hunt, 517 U.S. 899, 909-910

(1996); contra Louisiana Suppl. Br. 39. Section 2 looks

specifically for inequalities in voting rights traceable to

past or present intentional discrimination within a particular geographic region. As discussed further in Part

II, infra, the Gingles framework ensures a tight connection between local contemporary or historic instances of

intentional discrimination and present-day conditions

like residential segregation and intensely racially polarized voting that dilute minority votes.

Section 2 thus targets the present-day effects of past

or present intentional discrimination. Of course, A experiences discriminatory effects when X intentionally

treats A worse than B due to A’s race—and Section 2

bars that, to be sure. But the concept of discriminatory

effects is broader. See Murray, Discriminatory Effect(s), 78 Fla. L. Rev. __ (forthcoming 2026). It also includes X’s unintended treatment of A worse than B in

virtue of Y’s earlier, intentionally discriminatory

10

actions. That disparate treatment is also a “discriminatory effect,” even though X lacked the discriminatory

purpose that Y previously possessed. And Section 2’s

discriminatory-effects design also keys on that sort of

disparate treatment of voters.

Section 2’s remedial consideration of race thus presents no conflict, and indeed aligns neatly, with this

Court’s continuing recognition that “remediating specific, identified instances of past discrimination” constitutes a “compelling interest.” SFFA, 600 U.S. at 207.

II. RACE-BASED STATE ACTION UNDER SECTION 2 HAS A

LOGICAL ENDPOINT

Appellees (Br. 37) and Louisiana (Br. 24-33) also appeal to SFFA’s principle that race-based state action

“must be a ‘temporary matter’” and “must have a ‘logical

endpoint.’” 600 U.S. at 212 (quoting Grutter v. Bollinger,

539 U.S. 306, 342 (2003)); accord id. at 313-314 (Kavanaugh, J., concurring).

That rule reflects that

“[e]nshrining a permanent justification for racial preferences would offend” a “fundamental equal protection

principle.” Grutter, 538 U.S. at 342. As relevant here,

this principle suggests that “the authority to conduct

race-based redistricting cannot extend indefinitely into

the future.” Milligan, 599 U.S. at 45 (Kavanaugh, J.,

concurring); see id. (declining to address that “temporal

argument” under the party-presentation rule).

Fortunately, race-based state action under Section 2

does have a logical endpoint: because Section 2 targets

the present-day effects of past or present intentional discrimination, the statute triggers remedial measures less

frequently as those present-day effects dissipate. To be

sure, Section 2 is “permanent,” Shelby County v. Holder,

570 U.S. 529, 557 (2013), in that it contains no sunset date

and will always prohibit present-day intentional

11

discrimination based on race in voting. But the need for

states to consider race in intentionally crafting majorityminority districts to avoid dilution on account of the present-day effects of past intentional discrimination is not

permanent. Those effects can and do dissipate, and Section 2 should require race-based remedies less frequently as they do. That is how the Court’s Gingles

framework works, both in theory and in practice.

Start with the first Gingles precondition. To satisfy

Gingles 1, a plaintiff must be a member of a minority

group “sufficiently large and geographically compact to

constitute a majority in a single-member district.” Gingles, 478 U.S. at 50. The district, moreover, must be

“reasonably configured,” in that it “comports with traditional districting criteria, such as being contiguous and

reasonably compact.” Milligan, 599 U.S. at 18. One

thing this means is that as housing segregation declines,

it becomes harder and eventually impossible to satisfy

Gingles 1. “That is because as residential segregation

decreases … satisfying traditional districting criteria

such as the compactness requirement ‘becomes more difficult.’” Milligan, 599 U.S. at 28-29 (quoting Crum, Reconstructing Racially Polarized Voting, 70 Duke L.J.

261, 279 & n. 105 (2020)).

In practice, residential segregation has declined

“‘sharply’ … since the 1970s.” Milligan, 599 U.S. at 2829 (quoting Crum, 70 Duke L.J. at 279 & n. 105). Leading

measures of housing segregation show that it reached its

height in 1970, after half a century of government-sanctioned segregation policies. See Stephanopoulos, Civil

Rights in a Desegregating America, 83 U. Chi. L. Rev.

1329, 1339-1340 (2016). But by 2010 it had fallen to approximately where it stood in 1910. Id. at 1343-1344.

12

Based on this trend, it has become harder and

harder to satisfy Gingles 1 over time. “Indeed, … § 2 litigation in recent years has rarely been successful for just

that reason.” Milligan, 599 U.S. at 29. In recent years,

“‘[n]umerous lower courts’ have upheld districting maps

‘where, due to minority populations’ geographic diffusion, plaintiffs couldn’t design an additional majority-minority district’ or satisfy the compactness requirement.”

Id. (quoting Chen Amicus Br. 7). And “[t]he same has

been true of recent litigation in this Court,” id., such as

Abbott v. Perez, 585 U.S. 579, 615 (2018), where the

Court held that a Texas district did not violate Section 2

because “the geography and demographics of south and

west Texas do not permit the creation of any more than

the seven Latino opportunity districts that exist under

the current plan.”

Gingles 1 thus imposes a real and substantial limit

on the instances in which Section 2 requires states to intentionally draw an additional majority-minority district

based on race. See Milligan, 599 U.S. at 44 n.2 (Kavanaugh, J., concurring) (highlighting the importance of

Gingles 1 as a limiting factor). What is more, that limit

is logically connected to Section 2’s focus on the presentday effects of past intentional discrimination. Gingles 1

links to the existence of residential segregation, which

can reflect the vestiges of past intentional discrimination

like government-sponsored housing segregation. True,

racialized living patterns are not inevitably the result of

discrimination. But housing is sticky: historical discrimination not only affects the material ability to choose a

desired neighborhood and home but also infects attitudes shaping living choices. Krysan & Crowder, Cycle

of Segregation: Social Processes and Residential Stratification 10-14, 244-245, 252-256 (2017). Particular instances of racially siloed housing thus quite plausibly

13

have a causal connection to historical housing-segregation policies, and Gingles’s first precondition tracks that

reasonable inference. By the same token, housing integration provides reason to think that the effects of past

intentional discrimination that forcibly separated racial

groups are diminishing. Gingles 1 correspondingly quiets in the presence of such residential integration. Accordingly, Gingles 1 bakes into Section 2 a “logical endpoint” for race-based redistricting. Grutter, 539 U.S. at

342.

The second and third Gingles preconditions likewise

impose a logical endpoint on race-based redistricting under Section 2. Gingles 2 requires the plaintiff’s minority

group to be “politically cohesive.” 478 U.S. at 51. And

Gingles 3 requires that a majority group vote “sufficiently as a bloc” to “usually … defeat the minority’s preferred candidate,” absent “special circumstances.” Id.

Together, the two are often shorthanded as “racially polarized voting.” Id. at 52. Courts may never presume

the presence of these features; “plaintiffs must prove”

cohesive electoral behavior with hard, jurisdiction-specific facts. Id. at 46; see League of United Latin American Citizens v. Perry, 548 U.S. 399, 500-501 (2006) (Roberts, C.J., concurring in part and dissenting in part) (explaining that “[n]o one” in that Section 2 case had “made

any ‘assumptions’ about how voters … will vote based on

their ethnic background” because “[t]here was a trial”

and “[a]t trials, assumptions and assertions give way to

facts”). When the facts show a decline in racially polarized voting, Gingles 2 and 3 make it harder and harder

to trigger Section 2’s remedies.

And indeed, the “primary racial development in recent elections has been a decline in racially polarized voting.” Stephanopoulos, Election Law for the New Electorate, 17 J. Legal Analysis 41, 55 (2025). The 2024

14

presidential election continued a national trend that has

covered the last three presidential elections and their dividing midterms: nonwhite voters moving toward the

Republican Party. See id. at 55-56. The most dramatic

shift has been among Hispanic voters. After losing Hispanic voters by 38 points in 2016, President Donald

Trump lost them by only 25 points in 2020, and then by

only 3 points in 2024. Hartig et al., Behind Trump’s 2024

Victory, a More Racially and Ethnically Diverse Voter

Coalition 22-23, Pew Rsch. Ctr. (June 26, 2025). Over

the same period, Asian American and Pacific Islander

voters have also trended toward decohesion. What Happened In 2024, Catalist (May 2025). And while the trend

is less dramatic for Black voters, decohesion has reached

them as well. Hartig, Behind Trump’s 2024 Victory 23,

supra. After losing Black voters by about 85 points in

2016 and 2020, President Trump lost them by only 68

points in 2024. Id. To be sure, national trends penetrate

different subnational regions at different rates. But the

national trend here underscores that racial polarization’s

causes can dissipate in practice, not just in theory. And

when they do, it becomes harder for plaintiffs to satisfy

Gingles 2 and 3—and appropriately so.

That is appropriate because, like housing segregation, the kind of racially polarized voting that Gingles 2

and 3 track is logically connected to Section 2’s interest

in the present-day effects of past or present intentional

discrimination. One cannot presume it to be happenstance when most Black individuals within a jurisdiction

cohere politically qua Black voters. Nothing about being

a member of an identifiable group requires political cohesion with other group members—consider, for example, the national trends for Hispanic voters discussed

above. When a racial minority that has been subjected

to past racial discrimination remains tightly cohesive in

15

voting, the stronger inference is that there is some connection between the cohesion and past discrimination

that has materially defined that community’s experience. See Karlan & Levinson, 84 Cal. L. Rev. at 1229.

Likewise, cohesion among voters best explained by

them being White voters offers some reason to suspect

the persistence of distinctively racialized political processes rooted in intentional discrimination. And of

course Gingles 3 demands not just sufficient majority cohesion for bloc voting but also majority bloc voting that

consistently opposes and denies a cohesive minority

group’s preferred outcomes.

When these features exist together, they reflect an

electorally agonistic relationship between cohesive, differently raced groups that plausibly reflects the effects

of past intentional discrimination. On the flip side, as

such racially polarized voting declines, that provides

some reason to think that the effects of past discrimination are dissipating. Like Gingles 1, then, Gingles 2 and

3 embed a logical endpoint for race-based state action required by Section 2.

Even plaintiffs that can establish all three Gingles

preconditions must still satisfy a totality-of-the-circumstances standard. See Milligan, 599 U.S. at 18. The

Court’s cases channel this inquiry with the factors set

out in the Senate Report on Section 2, which explicitly

look to (among other things) “the extent of any history

of official discrimination in the state or political subdivision that touched the right of the members of the minority group to register, to vote, or otherwise to participate

in the democratic process.” Gingles, 478 U.S. at 36-37;

see Milligan, 599 U.S. at 18 (highlighting this Senate Report factor in particular). Like the rest of the Gingles

framework, assessing the totality of the circumstances

requires “an intensely local appraisal” of the electoral

16

device at issue and a “peculiarly” fact-dependent analysis of “past and present reality.” Gingles, 478 U.S. at 79.

And in this local appraisal, states may offer evidence

that the Gingles-based inferences are rebutted. See

Johnson v. De Grandy, 512 U.S. 997, 1011-1012 & n.10

(1994). The totality-of-the-circumstances test thus

rounds out Section 2’s focus on the present-day effects of

past or present intentional discrimination by testing

whether the present-day factual conditions required by

the Gingles preconditions may be traceable to intentional discrimination. In light of this design, it should

surprise no one that Section 2’s on-the-ground results

bear no resemblance to a proportionality regime, which

would require consistent and indefinite resort to racebased remedies. See Milligan, 599 U.S. at 27-28 (citing

statistics).

Section 2’s logical endpoint distinguishes the statute

from other race-based state action that the Court has

held unconstitutional. In SFFA, the Court concluded

that the universities’ admissions programs violated the

Constitution in part because they “lack[ed] a ‘logical end

point.’” SFFA, 600 U.S. at 221 (quoting Grutter, 539

U.S. at 342). In Grutter, the Court had set an “expectation” that “‘25 years from now, the use of racial preferences will no longer be necessary.’” Id. at 224 (quoting

Grutter, 539 U.S. at 343). Yet, “[t]wenty years later,” in

SFFA, there was “no end … in sight.” Id. at 213. The

Court could locate no coherent durational limitation in

the universities’ justification for relying on race as a factor in admissions. See id. at 221-225. Indeed, the Court

characterized the universities as appealing to diversity

as an intrinsic and evergreen societal interest. Id. at

221-224. Not so for Section 2, which is laser focused on

the present-day effects of intentional discrimination and

17

authorizes race-based state action only insofar as necessary to remediate those particularized harms.

Section 2’s self-liquidating nature also distinguishes

it from Shelby County v. Holder, 570 U.S. 529 (2013).

There, Congress had for over four decades repeatedly

reauthorized the stringent Section 5 preclearance requirements without updating the Section 4 coverage formula that determined which states were subject to those

requirements—“as if nothing had changed” since 1965.

Id. at 549. But in the years that had passed, “dramatic[]”

progress toward equal voting rights had occurred. Id. at

547. The Court concluded that Congress failed “to shape

a coverage formula grounded in current conditions” and

“instead reenacted a formula based on 40-year-old facts

having no logical relation to the present day.” Id. at 554.

Here, by contrast, the Gingles factors ensure that Section 2’s remedies are determined by “current conditions,” id., including the current state of residential segregation and racially polarized voting in a particular geographic area.

As noted, Section 2 contains no specific expiration

date. But the fact that the statute’s limiting principle

lies in its measure of discriminatory effects rather than

any particular date is a feature, not a bug, of Congress’s

design. It is not surprising that Congress in 1982 could

not precisely foresee when the effects of past or present

intentional discrimination might cease to infect political

life. So Congress reasonably enacted a statute that keys

on those effects themselves, a design that this Court elegantly implemented in the Gingles framework. Congress’s decision to use that empirically grounded approach, rather than a particular sunset date, is entitled

to deference.

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III. SECTION TWO DOES NOT USE RACE AS A “NEGATIVE”

OR A “STEREOTYPE”

In SFFA, this Court concluded that the universities’

admissions systems violated the “twin commands of the

Equal Protection Clause that race may never be used as

a ‘negative,’ and that it may not operate as a stereotype.”

600 U.S. at 218. Appellees (Br. 38) and Louisiana (Br.

18-24) contend that the same is true of Section 2. They

are wrong; Section 2 contravenes neither commandment.

First, Section 2 does not use race as a “negative” to

remedy inequality because it does not involve “discriminat[ing] against” any “racial group[].” SFFA, 600 U.S.

at 212. To see why, consider the context in SFFA where

the Court found that race was used impermissibly as a

“negative”: college admissions. As the Court stated, college admissions, by design, stack applicants with different characteristics and credentials against one another.

Id. at 218-219. When a college or a university gives a

preference to a certain factor when making admissions

decisions, applicants possessing that preferred factor

benefit. Id. But by the same token, applicants who do

not have the preferred factor are disadvantaged in the

admissions process, as “[a] benefit provided to some applicants but not to others necessarily advantages the former group at the expense of the latter.” Id. Thus, if

“members of some racial groups would be admitted in

greater numbers than they otherwise would have been”

due to a racial preference, then race operates as a “negative factor”—like how a preference for applicants with

high grades and test scores is a “negative” for applicants

lacking them. Id. at 219. Put otherwise, “[c]ollege admissions are zero-sum.” Id. at 218.

19

That “zero-sum” paradigm, however, does not fit

Section 2. True enough, elections are zero-sum games:

one candidate wins and other candidates lose. But Section 2 is not about “pick[ing] winners and losers” of elections. SFFA, 600 U.S. at 229; contra Louisiana Suppl.

Br. 2, 14-16. The statute instead aims to ensure equal

opportunity to exercise voting rights, which pose no

zero-sum problem.

Consider the right to participate (i.e., the “right to

cast a ballot that is counted”), which is one facet of the

right to vote. Karlan, The Rights to Vote: Some Pessimism About Formation, 71 Tex. L. Rev. 1705, 1709-1710

(1993). My right to cast a ballot and have it counted loses

no value when my fellow voters exercise their own right,

and my vote stops no one else from voting. See Issacharoff, Polarized Voting and the Political Process: The

Transformation of Voting Rights Jurisprudence, 90

Mich. L. Rev. 1833, 1879 (1992). Accordingly, protecting

one voter’s participation right discriminates against no

one else’s.

The same goes for the aggregation right (i.e., the

right to have one’s ballot combined with the ballots of

like-minded individuals on equal terms with all cast ballots), another aspect of the right to vote. Karlan, 71 Tex.

L. Rev. at 1712-1713. The aggregation right underpins

Section 2 vote-dilution claims, which recognize that intentional race discrimination’s effects still prevent some

individuals from aggregating their ballots on equal

terms with others. A Section 2 claim lies “where an ‘electoral structure operates to minimize or cancel out’ minority voters’ ‘ability to elect their preferred candidates.’” Milligan, 599 U.S. at 17-18 (quoting Gingles,

478 U.S. at 48). As discussed above, Section 2 is designed to root out that evil.

20

To remediate such dilution, Section 2 may require

altering the aggregative status quo; a remedy, for example, may call for an additional majority-minority district

to be drawn. No doubt, such alterations might affect the

aggregative desires of already-undiluted voters. Everyone likes their preferred candidate to win, and different

devices for aggregating votes—one congressional map

versus another—might better position a voter to see her

preferred candidate succeed. If the Black Louisianans

here have a valid Section 2 claim that justifies drawing a

second majority-minority district, some non-Black Louisianans might like the new aggregative regime less than

the old one. But their aggregation rights do not encompass those dashed desires. They, like Black Louisianans,

are entitled to a nondilutive aggregative regime. So long

as the remedial map respects that right, no law makes

their preference for a particular nondilutive regime an

entitlement. See Karlan & Levinson, 84 Cal. L. Rev. at

1231; Issacharoff, 90 Mich. L. Rev. at 1879-1880. Put

simply, such non-Black Louisianans will have been

moved from one regime in which they received what the

law entitled them to receive to another that grants them

the same.

Appellees’ and Louisiana’s error may be in mistaking Section 2 as protecting groups’ entitlements to preferred electoral outcomes, such that it cannot help but

“discriminate against” one group or another. SFFA, 600

U.S. at 212; see Appellees Br. 38; Louisiana Suppl. Br.

22. That is wrong. Section 2 protects individuals’ rights

to cast and aggregate their votes on par with others. See

Milligan, 599 U.S. at 25; Shaw, 517 U.S. at 917. As relevant here, Section 2 requires only that past or present

intentional discrimination’s effects not bar any Louisianans from aggregating their votes on par with other Louisianans.

It requires only, in short, that every

21

Louisianan be able to coalition-build sans intentional discrimination’s distortive effects. That aim “advantages”

no individuals, let alone groups, “at the expense of” others. SFFA, 600 U.S. at 218-219.

Second, Section 2 does not use race as a “stereotype.” In SFFA, the Court underscored that it has repeatedly “rejected the assumption that ‘members of the

same racial group—regardless of their age, education,

economic status, or the community in which they live—

think alike.” 600 U.S. at 220 (quoting Schuette v. BAMN,

572 U.S. 291, 308 (2014) (plurality op.)). Louisiana (Br.

3) argues that this is how Section 2 works, claiming that

“race-based redistricting rests on” the “invidious stereotype” that “all minorities, by virtue of their membership in their racial class, think alike and share the same

interests and voting preferences.”

Nothing could be further from the truth. As discussed in Part II, supra, the Gingles preconditions require a plaintiff to come forward with evidence that a

particular localized population does in fact vote and reside on highly racially polarized lines. That showing

turns on empirical data reflective of the effects of discrimination that Section 2 targets, not on “assumption[s]” about how individuals think or behave. SFFA,

600 U.S. at 220-221. And that showing makes no claim

about how minority or non-minority individuals vote or

live writ large. The Gingles inquiry instead involves an

analysis that is “peculiarly dependent upon the facts of

each case” and requires “‘an intensely local appraisal’ of

the local electoral mechanism at issue” within a specific

contiguous and compact geographic area. Milligan, 599

U.S. at 19 (quoting Gingles, 478 U.S. at 79).

22

CONCLUSION

For the reasons above, Appellees and Louisiana present a false conflict between Section 2 and the colorblind

principles reflected in SFFA. The Court should reaffirm

the constitutionality of Section 2.

Respectfully submitted.

KARIN DRYHURST

KYLE EDWARDS HAUGH

Counsel of Record

JOSHUA A. GELTZER

WILMER CUTLER PICKERING

NATALIE KIRCHHOFF

WILMER CUTLER PICKERING HALE AND DORR LLP

50 California Street, Suite 3600

HALE AND DORR LLP

2100 Pennsylvania Ave. NW San Francisco, CA 94111

(628) 235-1000

Washington, DC 20037

kyle.haugh@wilmerhale.com

SEPTEMBER 2025