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

Nos. 24-109, 24-110

In the

Supreme Court of the United States

LOUISIANA,

Appellant,

v.

PHILLIP CALLAIS, et al.,

Appellees.

PRESS ROBINSON, et al.,

Appellants,

v.

PHILLIP CALLAIS, et al.,

Appellees.

On A ppeals From The United States District Court

For The Western District Of Louisiana

BRIEF OF PROFESSOR JAMES F.

BLUMSTEIN AS AMICUS CURIAE

IN SUPPORT OF APPELLEES

James F. Blumstein, Esq.

Counsel of Record

131 21st Avenue South

Nashville, TN 37203

(615) 343-2555

james.blumstein@vanderbilt.edu

Counsel for Amicus Curiae

131555

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

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

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

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

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . 2

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

I.

Introduction and Overview . . . . . . . . . . . . . . . . . . 5

II. Vote Dilution and Race Discrimination . . . . . . . . 9

III. VRA Section 2 As Amended . . . . . . . . . . . . . . . . 14

IV. Chisom v. Roemer . . . . . . . . . . . . . . . . . . . . . . . . 19

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

APPENDIX — THE CASE OF THE MISSING

CASE, WILLIAM & MARY LAW REVIEW

ONLINE, VOLUME 66, NO. 2, 2024 . . . . . . . . . . . . 1a

ii

TABLE OF CITED AUTHORITIES

Page

Cases

Allen v. Milligan,

599 U.S. 1 (2023) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 6

Baker v. Carr,

369 U.S. 186 (1962) . . . . . . . . . . . . . . . . . . . . . . . . . 9-11

Brnovich v. Democratic Nat’l Comm.,

594 U.S. 647 (2021) . . . . . . . . . . . . . . . 4, 7, 8, 17, 19, 23

Chisom v. Roemer,

501 U.S. 380 (1991) . . . . . . . . . . . . . 2-6, 8, 9, 12, 19-25

City of Boerne v. Flores,

521 U.S. 507 (1997) . . . . . . . . . . . . . . . . . . . . . . . 4, 8, 13

Dunn v. Blumstein,

405 U.S. 330 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Holder v. Hall,

512 U.S. 874 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Hous. Laws.’ Ass’n v. Att’y Gen of Tex.,

501 U.S. 419 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Johnson v. DeGrandy,

512 U.S. 997 (1994) . . . . . . . . . . . . . . . . . . 3, 7, 8, 19, 23

iii

Cited Authorities

Page

League of United Latin Am. Citizens (LULAC)

v. Perry,

548 U.S. 399 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Louisiana v. Callais,

No. 24-109 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

LULAC v. Clements,

914 F.2d 620 (5th Cir. 1990) . . . . . . . . . . . . . . . . . . . . 21

Mobile v. Bolden,

446 U.S. 55 (1980) . . . . . . . . . . . . . . . . . . . . . . 11, 13, 14

NFIB v. Sebelius,

567 U.S. 519 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 9

Reno v. Bossier Par. Sch. Bd.,

529 U.S. 471 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Reynolds v. Sims,

377 U.S. 533 (1964) . . . . . . . . . . . . . . . . . . . . . . . . 10, 11

Robinson v. Callais,

No. 24-110 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Rogers v. Lodge,

458 U.S. 613 (1982) . . . . . . . . . . . . . . . . . . . . . . . . 11, 13

Rucho v. Common Cause,

588 U.S. 684 (2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

iv

Cited Authorities

Page

Shaw v. Reno,

509 U.S. 630 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Thornburg v. Gingles,

478 U.S. 30 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

United States v. Morrison,

529 U.S. 598 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Washington v. Davis,

426 U.S. 229 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Washington v. Seattle School Dist. No. 1,

458 U.S. 457 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Whitcomb v. Chavis,

403 U.S. 124 (1971) . . . . . . . . . . . . . . . . . . . . . . . . 11, 13

White v. Regester,

412 U.S. 755 (1973) . . . . . . . . . . . . . . . . . . . . . . . . 13, 23

Statutes, Regulations and Rules

52 U.S.C. § 10301(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

52 U.S.C. § 10301(b) . . . . . . . . . . . . . . . . . . . . . . 3, 7, 17, 19

128 Cong. Rec. 14316 (1982)

(Statement of Sen. Robert Dole) . . . . . . . . . . . 17, 18

v

Cited Authorities

Page

128 Cong. Rec. 14133 (1982)

(Statement of Sen Robert Dole) . . . . . . . . . . . . . . . 18

H.R. Rep. No. 227, 97th Cong., 2d Sess. (1982) . . . . 14, 15

Report of the Committee on the Judiciary,

S. Rep. No. 417, 97th Cong. 2d Sess. (1982) . . . . . . . 16

S. Comm. on the Judiciary, 97th Cong. 1332 (1982) . . . 1, 16

Sup. Ct. R. 37.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Other Authorities

James F. Blumstein, Defining and Proving Race

Discrimination: Perspectives on the Purpose vs.

Results Approach from the Voting Rights Act,

69 Va. L. Rev. 633 (1983) . . . . . . . . . . . . . . 2, 8, 16-17, 23

James F. Blumstein, Minority Voting Rights and

Voting, Wall St. J., May 27, 1982 . . . . . . . . . . . . . . . . 15

James F. Blumstein, Racial Gerrymandering

and Vote Dilution: Shaw v. Reno in Doctrinal

Context, 26 Rutgers L. J. 517 (1995) . . . . 2, 7-9, 18, 22

James F. Blumstein, The Case of the Missing Case:

How Neglecting Chisom v. Roemer Leaves

§ 2 of the Voting Rights Act Analytically At

Sea, 66 Willia m & M ary L. R ev. O nline

35 (2024) . . . . . . . . . . . . . . . . 2, 5-8, 10, 12, 17-20, 23, 24

1

INTEREST OF AMICUS1

James F. Blumstein serves as University Distinguished

Professor at Vanderbilt University and Vanderbilt Law

School. That is the highest title that Vanderbilt confers.

Professor Blumstein teaches constitutional law and has

worked in the voting rights area for over fifty years.

He brought and litigated as class representative Dunn

v. Blumstein, 405 U.S. 330 (1972), which invalidated

Tennessee’s one-year statewide durational residency

and three-month county-based durational residency as

prerequisites for voter registration. Census data showed

that about 3.3% of persons moved from state to state each

year, and approximately another 3.2% of persons moved

from one county to another each year. That case likely

enfranchised more voters than any other. With respect

to the amending of Section 2 of the Voting Rights Act,

Professor Blumstein was approached by representatives

of Sen. Kennedy (Armand Derfner) and Sen. Hatch

(Stephen Markman) to testify. He wound up supporting

Sen. Hatch’s position in opposition to the House-passed

version of Section 2. I Voting Rights Act Hearings on S. 53,

S. 1761, S. 1975, S. 1992, and H.R. 3112 Before Subcomm.

on the Constitution of the S. Comm. on the Judiciary, 97th

Cong. 1332 (1982) (statement of Prof. James F. Blumstein,

1. Pursuant to Supreme Court Rule 37.6, amicus curiae

states that no counsel for any party authored this Brief in whole

or in part and that no entity or person, aside from amicus curiae,

made any monetary contribution toward the preparation or

submission of this Brief. Reimbursement for printing expenses will

be sought from funds made available by Vanderbilt Law School to

support faculty work related to faculty research and public interest

activity. Such financial support does not signify a position by the

University on the merits of the positions advanced in this Brief.

2

Vanderbilt L. Sch.). His testimony and that of others

helped bring about revision in the Senate of the Housepassed “results” test and the so-called Dole Compromise.

He provided extensive analysis of VRA amended Section 2

in the Virginia Law Review shortly after the amendment

was enacted. James F. Blumstein, Defining and Proving

Race Discrimination: Perspectives on the Purpose vs.

Results Approach from the Voting Rights Act, 69 Va. L.

Rev. 633 (1983). He has explained and defended Shaw v.

Reno and its analysis of racial gerrymandering. James F.

Blumstein, Racial Gerrymandering and Vote Dilution:

Shaw v. Reno in Doctrinal Context, 26 Rutgers L. J.

517 (1995). And he has sought to explain the role of the

long-disregarded Chisom v. Roemer in analysis of VRA

amended Section 2. James F. Blumstein, The Case of

the Missing Case: How Neglecting Chisom v. Roemer

Leaves § 2 of the Voting Rights Act Analytically At Sea,

66 William & Mary L. Rev. Online 35 (2024). A copy of

that article is included as an Appendix to this Amicus

Brief. Professor Blumstein believes that his experience

and perspectives would be of assistance to this Court in

its deliberations in this matter. He offers this Brief in his

individual professional capacity, not on behalf of any of

his institutional affiliations.

SUMMARY OF ARGUMENT

The critical question under Section 2 of the Voting

Rights Act (VRA) is whether a claim of substantive vote

dilution is freestanding, or whether it is contingent or

linked to other process-based values as set out in amended

§ 2(b). Section 2(b) of the VRA links opportunity to

participate in the political process and ability to elect

representatives of choice; inability to elect is actionable but

3

only upon a finding of unequal opportunity to participate

in the political process. These claims are not freestanding

but are inextricably linked and form a unitary claim under

§ 2(b).

That interpretation of Section 2 was established in

Chisom v. Roemer, 501 U.S. 380, 396-98 (1991), but has

been neglected in subsequent claims of vote dilution under

Section 2—most recently, in Allen v. Milligan, 599 U.S.

1 (2023) (and in this litigation). Under Chisom, a claim of

vote dilution does not rest on a freestanding, substantive

principle of race-based entitlements, which would be

constitutionally problematic (and was disavowed by civil

rights advocates during the debates in 1982 surrounding

amending Section 2); under Chisom, such a vote dilution

claim depends on a process-focused core value. Only

if plaintiffs can carry the burden of establishing a

lack of evenhanded opportunity to participate in the

political process—that members of a racial minority

“have less opportunity to participate in the political

process” (52 U.S.C. § 10301(b))—may a court consider

the question of vote dilution—whether, under the totality

of circumstances, the race-based deficiencies in the

opportunity to participate in the political process brought

about an inability to elect representatives of choice.

There is a causal relationship between the “equality

of opportunity” aspect of amended Section 2 and the

“electoral success” aspect. “[T]he ultimate right of § 2

is equality of opportunity, not a guarantee of electoral

success for minority-preferred candidates of whatever

race.” Johnson v. DeGrandy, 512 U.S. 997, 1014, n. 11

(1994). As this Court has held, a prerequisite (a “key

requirement”) for finding a violation of § 2 is that “the

4

political processes leading to nomination and election

. . . must be ‘equally open’ to minority and non-minority

groups alike.” Brnovich v. Democratic National Comm.,

594 U.S. 647, 667 (2021). The “touchstone” of VRA Section

2 is “equal openness.” Id. at 668. See id. at 691, Kagan, J.,

dissenting (Justice Kagan echoed the importance, even the

centrality, of the “right to an equal opportunity to vote”).

The concepts of “open[ness]” and “opportunity connote

the absence of obstacles and burdens that block or seriously

hinder voting.” Id. at 669. The term “open” means, as this

Court has held, that the political process must be “without

restrictions as to who may participate.” Id. at 669 (internal

cite omitted). Openness and opportunity are processoriented norms. Under amended Section 2, substantive

outcomes do not determine whether the political processes

are “equally open,” irrespective of race.

Neglecting the impact of Chisom has put the “results”

analysis of amended Section 2 analytically at sea and

runs the risk of developing a substantive, race-based

benchmark. Such a benchmark risks running afoul of

the constitutional race-discrimination cases and of the

enforcement-clause cases as they would be substantive and

not remedial as required by City of Boerne v. Flores, 521

U.S. 507 (1997). The doctrine of constitutional avoidance,

NFIB v. Sebelius, 567 U.S. 519, 574 (2012) “(W]e have a

duty to construe a statute to save it”), counsels against an

interpretation that could jeopardize the constitutionality

of amended Section 2, especially when that risky

interpretation runs afoul of the already-existing analysis

of Chisom.

In sum, under Chisom, the “missing case,” VRA

Section 2 applies to vote dilution considerations, but

5

not in a freestanding manner—only (i) when there is

race discrimination that creates a lack of evenhanded

opportunity for members of a racial minority group

to participate in the political process and (ii) that lack

of equal access results in a form of cognizable vote

dilution. The burden of establishing these elements rests

with challengers. This Court should use this case as a

vehicle to (i) reaffirm the analysis in Chisom, (ii) vacate

previous orders in this case that have found a violation

of VRA Section 2, (iii) void legislation enacted under the

compulsion of court mandate so as to comply with an

erroneous interpretation of VRA section 2 not in sync with

Chisom, and (iv) remand for factfinding in accord with

the analysis of Chisom. Unless and until a proper finding

of a violation of Section 2 occurs, the original challenged

districting legislation should remain in effect.

ARGUMENT

I.

Introduction and Overview

In the pending Louisiana Voting Rights Act (VRA)

cases (Section 2), Louisiana v. Callais, No. 24-109, and

Robinson v. Callais, No. 24-110, the critical question under

the Voting Rights Act (VRA) in my judgment is “whether

a claim of substantive vote dilution is freestanding, or

whether it is contingent or linked to other process-based

values as set out in amended § 2(b).” 2 My conclusion is

that “[s]ection 2(b) [of the VRA) links opportunity to

2. James F. Blumstein, The Case of the Missing Case: How

Neglecting Chisom v. Roemer Leaves § 2 of the Voting Rights Act

Analytically At Sea, 66 William & M ary L. Rev. Online 35, 38

(2024) (emphasis in original) [hereinafter cited as “Missing Case”).

That article is attached as an Appendix to this Amicus Brief.

6

participate in the political process and ability to elect

representatives of choice; inability to elect is actionable but

only upon a finding of unequal opportunity to participate

in the political process. These claims are not freestanding

but are ‘inextricably linked’ and form a ‘unitary’ claim

under § 2(b).” 3

That interpretation of Section 2 was established in

Chisom v. Roemer4 but has been neglected in subsequent

claims of vote dilution under Section 2—most recently,

in Allen v. Milligan. 5 The same is true in the pending

Louisiana litigation.

Under Chisom, a claim of vote dilution does not rest

on a freestanding, substantive principle of race-based

entitlements, which would be constitutionally problematic

(and was disavowed by civil rights advocates during the

debates in 1982 surrounding amending Section 2);6 such a

vote dilution claim under Chisom “depends on a processfocused core value.” 7 Only if plaintiffs can carry the

burden of establishing a lack of evenhanded opportunity

to participate in the political process—that members of

3. Id. at note 25. See Chisom v. Roemer, 501 U.S. 380, 397-98

(1991).

4. 501 U.S. at 396-98. See Missing Case at 43 (“Chisom rejects

a freestanding, independent claim to vote dilution under revised

VRA § 2.”)

5. 599 U.S. 1 (2023). See Missing Case at 35—36, 45 (“The

Allen decision unexplainably does not consider the effect of

Chisom” on analysis of vote dilution claims under Section 2).

6. Missing Case at 41 & note 45.

7. Id. at 46.

7

a racial minority “have less opportunity to participate

in the political process” 8 —may a court consider the

question of vote dilution—“whether, under the totality

of circumstances, the race-based deficiencies in the

opportunity to participate in the political process brought

about an inability to elect representatives of choice.” 9

There is a causal relationship between the “equality

of opportunity” aspect of amended Section 2 and the

“electoral success” aspect.10 “[T]he ultimate right of § 2

is equality of opportunity, not a guarantee of electoral

success for minority-preferred candidates of whatever

race.”11 As this Court has held, a prerequisite (a “key

requirement”) for finding a violation of § 2 is that “the

political processes leading to nomination and election

. . . must be ‘equally open’ to minority and non-minority

groups alike.”12 The “touchstone” of VRA Section 2 is

“equal openness.”13

The concepts of “open[ness]” and “opportunity

connote the absence of obstacles and burdens that block

8. 52 U.S.C. § 10301(b)

9. Missing Case at 46.

10. James F. Blumstein, Racial Gerrymandering and Vote

Dilution: Shaw v. Reno in Doctrinal Context, 26 Rutgers L. J.

517, 572 (1995) [hereinafter Blumstein Rutgers].

11. Johnson v. DeGrandy, 512 U.S. 997, 1014, n. 11 (1994).

12. Brnovich v. Democratic National Comm., 594 U.S. 647,

667 (2021).

13. Id. at 668. See id. at 691, Kagan, J., dissenting (Justice

Kagan echoed the importance, even the centrality, of the “right

to an equal opportunity to vote”).

8

or seriously hinder voting.”14 The term “open” means,

as this Court has held, that the political process must

be “without restrictions as to who may participate.”15

Openness and opportunity are process-oriented norms.

Under amended Section 2, “[s]ubstantive outcomes do not

determine ‘whether the political processes are equally

open,’ irrespective of race.”16

Neglecting the impact of Chisom puts the “results”

analysis of amended Section 2 analytically at sea17 and

runs the risk of “developing a substantive, race-based

benchmark.”18 Such a benchmark risks running afoul of

the constitutional race-discrimination cases and of the

enforcement-clause cases as they would be substantive and

not remedial as required by City of Boerne v. Flores.19 The

14. 594 U.S. at 669.

15. Id. at 667 (internal cite omitted).

16. Blumstein Rutgers at 573 (citing DeGrandy,512 U.S. at

1018).

17. Id. at 41(“In the absence of some benchmark as a core

value, a results test [such as that in amended Section 2 of the VRA]

is analytically at sea”). A “results” test “draws no bottom line. It

requires the consideration of a laundry list of factors, but it never

orients the inquiry. It demands a balance but it provides no scale.”

James F. Blumstein, Defining and Proving Race Discrimination:

Perspectives on the Purpose vs. Results Approach from the

Voting Rights Act, 69 Va . L. Rev. 633, 644-45 (1983) [hereinafter

Blumstein Virginia].

18. Missing Case at 44.

19. 521 U.S. 507 (1997); Civil Rights Cases, 109 U.S. 3 (1883);

United States v. Morrison, 529 U.S. 598 (2000).

9

doctrine of constitutional avoidance20 counsels against an

interpretation that could jeopardize the constitutionality

of amended Section 2, especially when that risky

interpretation runs afoul of the already-existing analysis

of Chisom.

II. Vote Dilution and Race Discrimination

This Court has recognized that the concepts of race

discrimination, even in the context of voting, and vote

dilution are analytically distinct 21

In Baker v. Carr, 22 this Court held that legislative

apportionment matters were justiciable under Equal

Protection. While the Court stated that standards under

equal protection existed, it did not articulate a standard.

That led the dissenters (per Justices Frankfurter and

Harlan) to complain that the claim of vote dilution required

a normative benchmark, and such was not readily available

or up to courts to establish. As Justice Frankfurter

noted, the concept of vote “dilution” or “debasement”

was “circular talk.” 23 Dilution only makes sense if there

is a normative standard that sets the benchmark. “[O]ne

cannot sensibly think about whether something is ‘diluted’

20. NFIB v. Sebelius, 567 U.S. 519, 574 (2012) (“[W]e have a

duty to construe a statute to save it.”).

21. Shaw v. Reno, 509 U.S. 630, 643 (1993). See Blumstein

Rutgers at 527-33.

22. 369 U.S. 186 (1962).

23. Id. at 300, Frankfurter, J., dissenting (“One cannot speak

of ‘debasement’ or ‘dilution’ until there is first defined a standard

of reference as to what a vote should be worth”).

10

unless one has a benchmark of what an undiluted outcome

would be. In every-day terms, it would be impossible to

know what it means to serve ‘watered down’ beer without

having an understanding (a benchmark) of what nonwatered-down beer would be.” 24

In the wake of Baker v. Carr, this Court quickly moved

in Reynolds v. Sims25 to adopt a normative constitutional

standard for legislative apportionment—population

equality or one-person, one-vote. Equal population

per district is a quantitative standard, and violation

can be established by focusing on outcomes or results;

deviation from equal population establishes a violation

once equal population is established as the quantitative

requirement—the normative benchmark.

Reynolds suggested in dictum that, in addition to a

quantitative requirement of equal population, there was

a constitutional qualitative standard of “fair and effective

representation.” 26 Qualitative vote dilution was conceived

24. The Missing Case at 39. Cf. Reno v. Bossier Par. Sch. Bd.,

529 U.S. 471, 480 (1997)(“Because the very concept of vote dilution

implies—and, indeed, necessitates—the existence of an ‘undiluted’

practice against which the fact of dilution may be measured, a

§ 2 plaintiff must also postulate a reasonable alternative voting

practice to serve as the benchmark ‘undiluted’ voting practice”);

Holder v. Hall, 512 U.S. 874, 880-81 (1994)(plurality opinion)

(recognizing the need for “a benchmark against which to measure

the existing voting practice” and that “where there is no objective

and workable standard for choosing a reasonable benchmark by

which to evaluate a challenged voting practice, it follows that the

voting practice cannot be challenged as dilutive”).

25. 377 U.S. 533 (1964).

26. Id. at 565.

11

of as “the other half of Reynolds v. Sims.” 27 This Court

declined to accept an argument that “[t]he mere fact that

one interest group . . . has found itself outvoted and without

legislative seats of its own provides [a] basis for invoking

constitutional remedies where . . . there is no indication

that this segment of the population is being denied access

to the political system.” 28 In the political vote dilution

context, this Court ultimately concluded that claims of

qualitative vote dilution were nonjusticiable. 29 Outside

the area of quantitative vote dilution, the dissenting

contentions of Justices Frankfurter and Harlan in Baker

v. Carr prevailed so as to keep the issues of qualitative

vote dilution in the political sphere, beyond the courts’

authority or competence.

As a constitutional matter, claims of racial vote

dilution have been treated within the framework of race

discrimination. For example, in Mobile v. Bolden, 30 this

Court applied principles from the race-discrimination

cases (such as Washington v. Davis31) to constitutional

claims of racial vote dilution.32 As difficult as it is to discern

qualitative standards of vote dilution in the political

27. Whitcomb v. Chavis, 403 U.S. 124, 176 (1971) (Douglas,

J., dissenting).

28. Id. at 154-55 (1971).

29. Rucho v. Common Cause, 588 U.S. 684 708-09 (2019).

30. 446 U.S. 55 (1980) (plurality).

31. 426 U.S. 229 (1976).

32. Mobile, 446 U.S. at 97-101. See also Rogers v. Lodge, 458

U.S. 613 (1982) (applying race discrimination principles to claim

of vote dilution).

12

context, developing such standards in the context of racial

vote dilution is even more fraught. Implicitly or explicitly,

a race-based normative benchmark is required, and since

that rests on racial criteria it runs into constitutional

headwinds in two ways.

(i) As a raced-based standard, it is subject to strict

scrutiny; and such a standard as a substantive

constitutional norm is especially problematic in a

non-remedial context. A statute such as Section 2

of the VRA would likely be unconstitutional so as

to invalidate it if it were interpreted to confer or

create a freestanding substantive claim of racial

entitlements as a normative benchmark. Such an

interpretation is unwarranted under Chisom v.

Roemer 33; section 2 need not be invalidated but

interpreted and applied consistent with Chisom.34

(ii) Under the enforcement authority of the Fourteenth

A mendment (section 5) and the Fifteenth

Amendment (section 2), Congress is only allowed

to enact remedial legislation or legislation

designed to deter unconstitutional conduct. It

is not permitted to enact substantive rules not

linked to violations or potential violations of court-

33. See Missing Case at 42-46.

34. See id. at 45, n. 71(“Under Chisom, § 2 applies to vote

dilution considerations, but not in a freestanding manner—only (i)

when there is race discrimination that creates a lack of evenhanded

opportunity for members of a racial minority group to participate

in the political process and (ii) that lack of equal access results in

a form of cognizable vote dilution”).

13

determined norms. 35 This Court has consistently

declined to develop constitutionally-based racial

benchmark norms, 36 focusing on barriers to the

political process. 37 “Fair process, not fair and

effective qualitative representation” has been the

“core value underlying the constitutional claim.”38

In short, this Court has channeled constitutional racial

vote dilution claims into analysis under the doctrine of race

discrimination. 39 A freestanding principle of racial vote

dilution under VRA Section 2 would extend beyond any

principle of race discrimination as established in Mobile

and other cases. Accordingly, such an interpretation

of Section 2 cannot be seen as remedial or linked to a

potential violation of equal protection, but as establishing a

substantive claim. That exceeds Congress’ authority under

its Fourteenth or Fifteenth Amendment enforcement

powers.

35. City of Boerne v. Flores, 521 U.S. 507 (1997).

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

37. Id. at 154-55; White v. Regester, 412 U.S. 755 (1973)

38. Blumstein Virginia at 671. See Rogers v. Lodge, 458 U.S.

613, 616 (1982) (applying race discrimination principles in context

of purported racial vote dilution).

39. The constitutional focus “turned away from developing

a race-based theory of representation to assuring that ‘racial

. . . groups [are] not . . . denied the franchise or precluded from

entering into the political process in a reliable and meaningful

manner.’ Washington v. Seattle School Dist. No. 1, [458 U.S. 457,

466]1982).” Blumstein Virginia at 672, n.179.

14

III. VRA Section 2 As Amended

Mobile v. Bolden made clear that this Court would

invalidate only acts of racial discrimination; it would

not develop (and has not developed) any substantive or

qualitative constitutional notion of fair and effective

representation—in either the political or racial context.

“After Bolden, the construction of the Voting Rights Act

was in accord with the substantive and remedial standards

applied in constitutional race discrimination cases.”40

Mobile v. Bolden “[t]ouch[ed] off a furor in voting

circles.”41 Other provisions of the VRA were set to expire

in 1982, and that provided an occasion to review Section

2 in light of Bolden.

The House went first and proposed to substitute

a “results” or effects test to replace the “purpose” or

“intent” test applied in Bolden. The House Report

contended that an effects test should be used in Section 2

because “[d]iscriminatory purpose is frequently masked

and concealed.”42 A search for discriminatory purpose may

be “futile” and may allow too much actual discrimination

to go undetected. 43 The “results” test was advocated

as a pragmatic preemptive strike against purposeful

discrimination.

40. Id. at 689.

41. Id. at 674.

42. H.R. Rep. No. 227, 97th Cong., 2d Sess. at 29 (1982)

[hereinafter House Report].

43. Blumstein Virginia at 689.

15

But the House version was much more far-reaching. It

did not “merely attempt to ease the difficulties of proving

‘intent.’”44 The House Report stated that discriminatory

purpose would be “irrelevant” (not just hard to prove)

to the question of whether election practices resulted

in “discrimination.”45 “A careful reading of the Report

reveal[ed] that it was concerned with affirmative principles

of representational equity.”46

The House version had unacceptable and far-reaching

implications, which led me to state the following in an

opinion piece in the Wall Street Journal: “It was not a stiff

dose of medicine designed to restore a sick law to health

but more like a sex-change operation intended to alter

fundamentally the nature of the law itself.”47 The House’s

version was a “radically new interpretation of section 2”

and “could not reasonably be justified as necessary to

enforce the principle of racial nondiscrimination,” the

constitutional standard.48

Having been approached by Armand Derfner of Sen.

Kennedy’s staff (favoring the House version) and Stephen

Markman (later Justice Markman of the Michigan

Supreme Court and then chief counsel to Sen. Hatch’s

subcommittee on the constitution who opposed the House

44. Blumstein Virginia at 691.

45. House Report at 29.

46. Blumstein Virginia at 691.

47. Blumstein, Minority Voting Rights and Voting, Wall St.

J., May 27, 1982, at 28, col. 3.

48. Blumstein Virginia at 691-92.

16

version), I agreed to testify in the Senate hearings against

the House version.49

The result of my testimony and that of others, and

the hard work of Mr. Markman and Sen. Hatch, was that

the Subcommittee on the Constitution declined to accept

the House’s version of a “results” test. 50 Sen. Hatch

expressed concern that the House version of the “results”

test would change the analytical focus from “equal access

to registration and the ballot” to “equal outcome in the

electoral process.”51 The Hatch Subcommittee Report

stated that the House’s version of a “results test has

absolutely no coherence or understandable meaning.” It

either establishes a baseline of proportional representation,

which advocates repudiated, or it “devolves into . . . an

amorphous ad hoc review process” such that nobody was

able to articulate a “clear standard.”52

49. I Voting Rights Act Hearings on S. 53, S. 1761, S. 1975,

S. 1992, and H.R. 3112 Before the Subcomm. on the Constitution

of the S. Comm. on the Judiciary, 97th Cong. 1332, 1336 (1982)

(statement of Prof. James F. Blumstein, Vanderbilt L. Sch.) (noting

that the problem with the House’s proposed substantive results or

effects test “is that it does not make any theoretical sense unless

you assume affirmative entitlements based upon race”).

50. Blumstein Virginia at 692-93.

51. Report of the Committee on the Judiciary, S. Rep. No. 417,

97th Cong. 2d Sess. at 94 (1982) (emphasis in original) (additional

views of Sen. Hatch), reprinted in 1982 U.S. Code Cong & Ad.

News 177 (hereinafter Senate Report)

52. Staff of Subcomm on the Constitution of the Senate

Comm. on the Judiciary, 97th Cong., 2d Sess., Report on S. 1992,

at 30 [Comm Print 1982] (hereinafter Subcommittee Report)

17

Supporters of the House version did not have the votes

to pass the House version.53 Senator Dole took on the role

of forging a compromise, 54 embraced as Section 2(b) of

the VRA—the Dole Compromise.55 The “deal” that sealed

the Dole Compromise was that it focused analysis under

amended Section 2 on racial nondiscrimination regarding

individual voters and access to and participation in the

political process, not electoral outcomes. 56 In essence, the

Dole Compromise rejected a “freestanding vote dilution

claim.”57

Senator Dole “addressed the issue directly, not

mincing words:”58 “By the expression of entitlement to

‘elect representatives of their choice,’ the amendment

provides . . . that members of minority groups have

a right to register, vote, and to have their vote fairly

counted. There is no guarantee of success: Just an equal

opportunity to participate.”59 In a public mark-up session,

Senator Dole reassured “results” skeptics (I was one,

53. Brnovich, 594 U.S. at 667; Blumstein Virginia at 694 and

note 305.

54. Missing Case at 39 and note 36.

55. 52 U.S.C. § 10301(b).

56. The Dole Compromise “was developed and adopted to

respond to criticisms and concerns” that the House version of

a results test “does not make any theoretical sense unless you

assume affirmative entitlements based on race.” Missing Case at

39-40, n.38 (internal cites omitted).

57. Id. at 39.

58. Id.

59. 128 Cong. Rec. 14316 (1982) (Statement of Sen. Robert

Dole)

18

having presented testimony to that effect) that revised

Section 2 retained the Voting Rights Act’s focus on

discrimination against the rights of individuals to vote.60

In the Senate debate, Senator Dole was “asked if

revised Section 2 dealt with equal access to the voting

process or with election results.” 61 His response was

definitive: “The focus in section 2 is on equal access, as

it should be. . . . It is not a right to elect someone of their

race but it is equal access and having their vote counted.”62

As represented by Senator Dole, “the essence of the Dole

compromise was to draw a basic distinction between

the issue of access to the political process and election

results.”63 In other words, amended Section 2 “is processbased, not outcome-oriented, at least as a freestanding

matter.” 64 Amended Section 2 “retained the focus on

nondiscrimination against individuals, ‘on access to the

process not on group entitlements to representation based

on race.’”65 As summed up by Senator Dole, the issue under

amended Section 2 is “whether or not minorities have

‘equal access’ to the political process” and “‘[e]qual access’

does not imply any right among minority groups to be

elected in particular proportions.’”66 The lack of a right to

60. Missing Case at 39-40 & note 39.

61. Blumstein Rutgers at 568.

62. 128 Cong. Rec. 14133 (1982) (Statement of Sen. Robert

Dole)

63. Id. at 14317 (Statement of Sen. Robert Dole).

64. Missing Case at 40.

65. Id. (internal cites omitted).

66. 128 Cong. Rec. 14316 (1982) (Statement of Sen. Robert

Dole)

19

proportional representation was expressly included in the

statutory language of the Dole Compromise: “[N]othing

in this section establishes a right to have members of a

protected class elected in numbers equal to their proportion

in the population.”67

IV. Chisom v. Roemer

Under amended VRA Section 2(a), no voting practice

or procedure shall be imposed or applied “in a manner

which results in a denial or abridgement of the right to

vote of any citizen of the United Sates.”68 Under Section

2(b), the Dole Compromise, a violation of Section 2(a) “is

established if, based on the totality of circumstances, it is

shown that the political processes leading to nomination

or election . . . are not equally open to participation by

members [of a protected class] in that its members have

less opportunity than other members of the electorate

to participate in the political process and 69 to elect

representatives of their choice.” 70

67. 52 U.S.C. § 10301(b). Subsequently, this Court rejected

the benchmark that the political influence of black voters should

be maximized (the “Max Black” principle). Johnson v. DeGrandy,

512 US. 997, 1016-17 (1994).

68. 52 U.S.C. § 10301(a).

69. In her dissent in Brnovich v. Democratic Nat’l Comm.,

594 U.S. 647, 704 (2021), “Justice Kagan erroneously uses the term

‘or’ instead of ‘and,’ which is the statutory term, in relating the two

pivotal provisions.” Missing Case at 38, n. 30. See Chisom v. Roemer,

501 U.S. 380, 397 (1991) (“It would distort the plain meaning of the

sentence to substitute the word ‘or’ for the word ‘and.’”).

70. 52 U.S.C. § 10301(b).

20

In Thornburg v. Gingles,71 this Court’s first case

to interpret amended Section 2 of the VRA, this Court

held that Section 2 recognizes a claim of vote dilution.

A violation of Section 2 occurs where, under the totality

of circumstances, an “electoral structure operates to

minimize or cancel out [minority voters’] ability to elect

their preferred candidates.” 72 The vote dilution claim

relies on the “elect representatives of their choice”

provision of Section 2(b).73

Gingles treated the “totality of circumstances”

analysis as a factual matter, subject to review under

the typical “clearly erroneous” deference to trial court

factfinding.74 There is very little substantive analysis of

the underlying “totality of circumstances” or vote dilution

doctrine in Gingles. And “Gingles does not address

or answer the critical question—whether a claim of

substantive vote dilution is freestanding, or whether it is

contingent on or linked to other process-based values as

set out in amended § 2(b).” 75

The key question, then, is the relationship between the

two core provisions in Section 2 and the twin requirements

71. 478 U.S. 30 (1986).

72. Id. at 48.

73. See Chisom v. Roemer, 501 U.S. 380, 407-08 (1991) (Scalia,

J., dissenting).

74. 478 U.S. at 79; see also League of United Latin Am.

Citizens (LULAC) v. Perry, 548 U.S. 399, 427 (2006) (“The District

Court’s determination whether the § 2 requirements are satisfied

must be upheld unless clearly erroneous.”).

75. Missing Case at 38 (emphasis in original).

21

for establishing a violation of Section 2: (1) that members

of a racial minority “have less opportunity than other

members of the electorate to participate in the political

process” and (2) that members of a racial minority have

less ability “to elect representatives of their choice.” Is

each provision and requirement separate and distinct? Or

are they linked and therefore interdependent?

Chisom addressed and resolved that issue, rejecting

the freestanding vote dilution approach.

Chisom concerned the question whether Section

2 of the VRA applied to judicial elections. The lower

court construed Section 2 as providing “two distinct

types of protection for minority voters—it protects

their opportunity ‘to participate in the political process’

and their opportunity to ‘elect representatives of their

choice.’” 76 Since judges are not “representatives,” VRA

Section 2 did not apply to a freestanding vote dilution

claim.77

This Court rejected the position of the lower court.

It held that Section 2 embraces a “unitary claim,” 78 not

“two separate and distinct rights.” 79 The “opportunity to

participate and the opportunity to elect” are “inextricably

linked”;80 they cannot “be bifurcated into two kinds of

76. Chisom, 501 U.S. at 396 (quoting LULAC v. Clements,

914 F.2d 620, 625 (5th Cir. 1990)).

77. Id.

78. Id. at 398.

79. Id. at 397.

80. Id.

22

claims.”81 The “inability to elect” component, upon which

vote dilution claims rest, “is not sufficient to establish

a violation [of Section 2] unless, under the totality of

circumstances, it can also be said that the members of the

protected class have less opportunity to participate in the

political process.”82 Equal access to and equal participation

in the political process are critical components to any claim

under amended Section 2, which “does not separate vote

dilution challenges from other challenges brought under

the amended § 2.”83

Chisom, thus, rejects a freestanding, independent

claim of vote dilution under amended VRA Section 2.

Under Chisom, “Section 2 is violated only if there is

racial inequality in terms of opportunity to participate in

the political process and that foreclosure of opportunity

results in (proximately causes) an inability to elect

representatives of one’s choice.”84

Chisom also explains that “[a]ny abridgment of the

opportunity of members of a protected class to participate

in the political process inevitably impairs their ability to

influence the outcome of an election.”85 So, where there is

an abridgment of the opportunity to participate, where

81. Hous. Laws.’ Ass’n v. Att’y Gen of Tex., 501 U.S. 419, 425

(1991).

82. Chisom, 501 U.S. at 397. See also Whitcomb v. Chavis, 403

U.S. 124, 153-55 (1971)(focusing on the opportunity to participate

in the political process, not on substantive outcomes).

83. Hous. Laws.’ Ass’n, 501 U.S. at 427.

84. Blumstein Rutgers at 575.

85. Chisom, 501 U.S. at 397.

23

members of a minority group are fenced out the political

process (as in White v. Regester), there could be an adverse

effect on the ability of minority voters to elect their

choice of candidates in an election. 86 But for purposes of

VRA Section 2, impairment to the ability to participate

in the democratic process is a prerequisite to making a

successful claim. “This point was . . . reinforced by the

Court in the Brnovich case, by both the majority opinion

and Justice Kagan’s dissent.”87

Presaging the approach adopted in Chisom, this is

how analysis under VRA Section 2 works:”[A] plaintiff

must demonstrate a causal relationship between specific

‘objective’ factors that evidence a faulty political process,

not merely an inability to influence or win an election

or an inability to elect [minority] officials.” 88 “If there

is a nondiscriminatory and ‘open’ process, then racial

minorities can be expected to participate on an equal

footing in the rough-and-tumble political process. Having

an equal opportunity, which does not guarantee success,

is all that is required by the Constitution and the VRA.”89

In the absence of a race-based lack of opportunity to

participate in the political process, “minority voters are

not immune from the obligation to pull, haul, and trade

to find common political ground.” 90

86. White v. Regester, 412 U.S. 756, 768-69 (1973)(explaining

that members of a minority group were effectively denied access

to the political process and effectively excluded from political life).

87. Missing Case at 44 & note 64.

88. Blumstein Virginia at 704.

89. Missing Case at 44.

90. Johnson v. DeGrandy, 512 U.S. at 1020.

24

Under the analysis of VRA Section 2 in Chisom,

the problem of identifying a core value and the risk of

developing a substantive, race-based entitlement or

normative benchmark are largely obviated. The vote

dilution inquiry remains, but not as a freestanding,

substantive principle, which would endanger the

constitutionality of amended Section 2. Vote dilution that

results from racially discriminatory lack of access to the

political process is actionable, as VRA Section 2 targets

race discrimination. In sum, a successful claimant “must

establish that members of a racial minority ‘have less

opportunity than other members of the electorate to

participate in the political process.’ That was the ‘deal’

contained in the Dole Compromise” 91 and does not

risk running afoul of the Constitution. Not only does it

accord with precedent under Chisom, it is a “saving”

interpretation that retains the validity of amended

Section 2.

CONCLUSION

This Court should vacate all preceding final orders

in this litigation, especially all orders that find a violation

of VRA Section 2 and mandate a legislative remedy for a

violation of VRA Section 2. In addition, this Court should

void all legislation coercively enacted under judicial

mandate so as to comply with judicially-determined (but

erroneous) requirements of VRA Section 2. That would

return matters to the status quo ante, before this litigation

began, and would allow Louisiana to retain its initial

districting legislation or, voluntarily, to enact revised

legislation in the exercise of its legislative prerogatives,

91. Missing Case at 46.

25

uninfluenced by an erroneous judicial interpretation of

VRA Section 2. That remedy would return a clean slate

to Louisiana as (and if) the matter proceeds further under

proper analysis consistent with Chisom. While vacating

previous orders finding a violation of VRA Section 2 and

voiding legislation enacted under judicial mandate to

comply with an erroneous interpretation of VRA Section

2, this Court should remand for factfinding under VRA

Section 2, consistent with Chisom, on (i) whether there

has been race discrimination in access to the political

process by minority voters and (ii) whether that lack of

equal access, if established by plaintiffs, brought about

an inability of minority voters to elect representatives

of their choice under the totality of circumstances. The

constitutional issues, therefore, should be held in abeyance.

Respectfully submitted,

James F. Blumstein

Counsel of Record

131 21st Avenue South

Nashville, TN 37203

(615) 343-2555

james.blumstein@vanderbilt.edu

Counsel for Amicus Curiae

APPENDIX

i

TABLE OF APPENDICES

Page

APPENDIX — THE CASE OF THE MISSING

CASE, WILLIAM & MARY LAW REVIEW

ONLINE, VOLUME 66, NO. 2, 2024 . . . . . . . . . . . . 1a

1a

Appendix

APPENDIX — THE

CASE OF THE MISSING

CASE, WILLIAM & MARY LAW REVIEW

ONLINE, VOLUME 66, NO. 2, 2024

WILLIAM & MARY LAW REVIEW ONLINE

Volume 66

No. 2, 2024

THE CASE OF THE MISSING CASE:

HOW NEGLECTING CHISOM V. ROEMER

LEAVES § 2 OF THE VOTING RIGHTS

ACT ANALYTICALLY AT SEA

James F. Blumstein*

In its June 2023 decision involving § 2 of the Voting

Rights Act (VRA), Allen v. Milligan,1 the Supreme Court

upheld a district court’s preliminary injunction that

invalidated Alabama’s congressional districting plan. The

Supreme Court held that the district court “faithfully

applied our precedents and correctly determined that,

under existing law, [the Alabama congressional districting

plan] violated § 2.” 2 The Court ordered an additional

majority-minority district, based on a theory of vote

dilution. 3

* University Distinguished Professor of Constitutional Law

and Health Law and Policy, Vanderbilt Law School/Vanderbilt

Medical School. The excellent research support of Will Winter,

Vanderbilt Law School Class of 2023, and Kathleen Porter,

Vanderbilt Law School Class of 2024, is gratefully acknowledged.

1. 143 S. Ct. 1487, 1498 (2023).

2. Id. at 1506.

3. See id. at 1502-03, 1506.

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Appendix

In his opinion for the Court, Chief Justice Roberts

asserted that the litigation was “not about the law as it

exists,” but “about Alabama’s attempt to remake our § 2

jurisprudence anew.”4 And, relying on “statutory stare

decisis,”5 the Court “decline[d] to recast . . . § 2 case law.”6

The Court labeled its decision “a faithful application of

our precedents” and discounted concerns that its decision

“impermissibly elevate[d] race in the allocation of political

power.” 7

The case to which the Court in Allen pledged

allegiance was Thornburg v. Gingles, 8 the first Supreme

Court case to interpret the 1982 amendment to § 2 of

the VRA. 9 Amended § 2(a) bars the imposition of any

“standard, practice, or procedure” that “results in a denial

or abridgement of the right . . . to vote.”10 Although the

4. Id. at 1506.

5. Id. at 1515.

6. Id. at 1507.

7. Id. at 1517. For an explanation that Allen did not require the

remaking of Voting Rights Act § 2 jurisprudence, see infra note 71.

8. 478 U.S. 30 (1986).

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

2333 (2021) (“This Court first construed the amended § 2 in

Thornburg v. Gingles, [a] vote-dilution case” (citation omitted)).

For an extensive discussion of amended § 2 of the VRA, see

James. F. Blumstein, Defining and Proving Race Discrimination:

Perspectives on the Purpose vs. Results Approach from the Voting

Rights Act, 69 Va . L. Rev. 633 (1983).

10. 52 U.S.C. § 10301(a). The way 52 U.S.C. § 10301 spells

“abridgement” differs from the Supreme Court’s spelling,

3a

Appendix

term “vote dilution” does not appear in § 2, the Court in

Gingles held that § 2 applied to substantive claims of vote

dilution.11

Amended § 2(b) explains a “denial or abridgment has

occurred . . . when, ‘based on the totality of circumstances,’

a State’s electoral system is ‘not equally open’ to members

of a racial group.”12 And, under § 2(b), a system is not

equally open if members of one race “have less opportunity

than other members of the electorate to participate in

the political process and to elect representatives of their

choice.”13 Plaintiffs14 must demonstrate that electoral

“devices result in unequal access to the electoral process.”15

Gingles relied on the “elect representatives of their choice”

provision of § 2(b) to hold that § 2 is violated under a vote

“abridgment”, in Brnovich and Chisom v. Roemer. See infra text

accompanying notes 12 and 62. Merriam-Webster dictionary treats

them as alternative spellings. Abridgment, Merriam-Webster,

https://w w w.merriam-webster.com /dictionary/abridgment

[https://perma.cc/M6ZC-9EYN].

11. 478 U.S. at 74-79.

12. Brnovich, 141 S. Ct. at 2358 (Kagan, J., dissenting)

(quoting 52 U.S.C. § 10301(b)).

13. 52 U.S.C. § 10301(b).

14. See Ark. State Conf. NAACP v. Ark. Bd. of Apportionment,

86 F.4th 1204, 1216 (8th Cir. 2023) (holding that there is no private

remedy to enforce § 2 of the Voting Rights Act).

15. Gingles, 478 U.S. at 46.

4a

Appendix

dilution theory16 where an “electoral structure operates

to minimize or cancel out [minority voters’] ability to elect

their preferred candidates.”17

Under Gingles, there are three prerequisites or

thresholds that a plaintiff must establish in order to

make out a claim (in other words, there must be a

large, geographically compact, politically cohesive

minority community faced with racially polarized voting

challenges). 18 Once the threshold prerequisites are

established, the analysis turns to the actual application

of amended § 2 to determine, under the totality of

circumstances, “whether the political process is equally

open to minority voters.”19

The Court in Gingles treated this “totality of

circumstances” analysis as a factual matter20 and affirmed

16. See Chisom v. Roemer, 501 U.S. 380, 407-08 (1991) (Scalia,

J., dissenting).

17. Gingles, 478 U.S. at 48.

18. Cooper v. Harris, 581 U.S. 285, 301-02 (2017).

19. Wis. Legislature v. Wis. Elections Comm’n, 142 S. Ct.

1245, 1248 (2022) (per curiam) (quoting Gingles, 478 U.S. at 79).

20. Gingles, 478 U.S. at 79. VRA § 2(b) was derived from White

v. Regester. 412 U.S. 755 (1973). In this case minority communities,

Black and Hispanic, were foreclosed from participation in the

political process and were thereby deprived of an opportunity to

elect their representatives of choice. Id. at 765-70; see Thomas M.

Boyd & Stephen J. Markman, The 1982 Amendments to the Voting

Rights Act: A Legislative History, 40 Wash. & Lee L. Rev. 1347,

5a

Appendix

the trial court under typical “clearly-erroneous” deference

to trial court factfinding. 21 There is very little substantive

analysis of the underlying “totality of circumstances”

doctrine in Gingles. 22 And much of the case law postGingles, including in the recent Alabama case (Allen),

has focused on the Gingles threshold preconditions23 and

whether or how they apply in certain circumstances—for

example, whether they apply to single-member districts,

not just multi-member districts. 24

But Gingles does not address or answer the critical

question—whether a claim of substantive vote dilution is

freestanding, or whether it is contingent on or linked to

1418 (1973) (noting § 2(b) “carried forth the White v. Regester

test”); see also Chisom, 504 U.S. at 397 (holding amended § 2(b)

is “patterned after the language used ... in White v. Regester and

Whitcomb v. Chavis” (citations omitted)); Allen v. Milligan, 143 S.

Ct. 1487, 1500 (2023) (observing § 2(b) “borrowed language from

... White v. Regester”).

21. Gingles, 478 U.S. at 79; see also League of United Latin

Am. Citizens (LULAC) v. Perry, 548 U.S. 399, 427 (2006) (“The

District Court’s determination whether the § 2 requirements are

satisfied must be upheld unless clearly erroneous.”).

22. Cf. Allen, 143. S. Ct. at 1532 (Thomas, J., dissenting)

(“[The Court has] never succeeded in translating the Gingles

framework into an objective and workable method of identifying

the undiluted benchmark.”).

23. Id. at 1504-06.

24. See Growe v. Emison, 507 U.S. 25, 26 (1993) (holding

that the Gingles prerequisites apply to vote dilution challenges

to single-member districts); see also Abbott v. Perez, 138 S. Ct.

2305, 2330-34 (2018) (focusing on the Gingles pre-conditions).

6a

Appendix

other process-based values as set out in amended § 2(b). 25

As explained in § 2(b), the critical focus of § 2 is that a

prerequisite (a “key requirement”) for finding a violation

of VRA § 2 is that “the political processes leading to

nomination and election ... must be ‘equally open’ to

minority and non-minority groups alike.” 26 As the Court

held in Brnovich v. Democratic National Committee,

the term “open” means that the political process must be

“without restrictions as to who may participate.” 27 Justice

Kagan’s dissent in Brnovich echoed the importance—even

25. In Allen v. Milligan, for example, plaintiffs’ claims were

expressed in what appears to be a freestanding form: “Black voters

have less opportunity than other Alabamians to elect candidates

of their choice to Congress.” Singleton v. Merrill, 582 F. Supp. 3d

924, 936 (N.D. Ala. 2022). That formulation does not address the

pivotal question and even camouflages it by suggesting that § 2

looks to substantive outcomes instead of lack of equal access to the

political process that can cause adverse substantive outcomes such

as vote dilution. The plaintiffs’ formulation derives from Abbott.

138 S. Ct. at 2315. The formulation in Abbott derives from LULAC,

which stated the issue under the totality of circumstances analysis

as “whether members of a racial group have less opportunity

than do other members of the electorate.” LULAC, 548 U.S.

at 425-26. Section 2(b) links opportunity to participate in the

political process and ability to elect representatives of choice;

inability to elect is actionable but only upon a finding of unequal

opportunity to participate in the political process. These claims

are not freestanding but are “inextricably linked” and form a

“unitary” claim under § 2(b). See Chisom v. Roemer, 501 U.S.

380, 397-98 (1991).

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

2337 (2021).

27. Id. (internal citations omitted).

7a

Appendix

the centrality—of “the right to an equal opportunity to

vote.” 28

This raises the question of the relationship between

the two critical provisions in § 2(b) and the twin

requirements for establishing a violation of § 2: (1) that

members of a racial minority “have less opportunity

than other members of the electorate to participate in

the political process;” 29 and30 (2) that members of a racial

minority have less ability “to elect representatives of their

choice.”31 Is each provision and requirement separate and

distinct? Or are they linked and therefore interdependent?

If the ability “to elect representatives of ... choice”

provision, which undergirds the vote dilution claim, 32 is

freestanding, then some core value (otherwise undefined)

must inform the meaning of the vote dilution concept. 33

28. Id. at 2351 (Kagan, J., dissenting).

29. 52 U.S.C. § 10301(b).

30. In her Brnovich dissent, Justice Kagan erroneously

uses the term “or” instead of “and,” which is the statutory term,

in relating the two pivotal provisions. See Brnovich, 141 S. Ct.

at 2358; see also Chisom v. Roemer, 501 U.S. 380, 397 (1991) (“It

would distort the plain meaning of the sentence to substitute the

word ‘or’ for the word ‘and.’”).

31. 52 U.S.C. § 10301(b).

32. See supra note 16 and accompanying text.

33. S taff of S. Subcomm . on Const. to S. Comm . on the

Judiciary, 97th Cong., Rep. on S. 1992 30 (Comm. Print 1982)

(highlighting the problem with a results test, as was present in

the House version of amended § 2, by explaining, “[t]here is no

‘core value’ under the results test except for the value of equal

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After all, one cannot sensibly think about whether

something is “diluted” unless one has a benchmark of

what an undiluted outcome would be. 34 In every-day

terms, it would be impossible to know what it means to

serve “watered down” (or diluted) beer without having an

understanding (a benchmark) of what non-watered-down

beer would be. 35

The legislative history of § 2’s amendment illustrates

the concerns about a freestanding vote dilution claim.

Disagreement over legislating a benchmark became so

pointed that it ultimately earned its own title—the Dole

Compromise. 36 Senator Robert Dole, the namesake of the

saga, addressed the issue directly, not mincing words: “By

electoral results for defined minority groups, or proportional

representation. There is no other ultimate or threshold criterion

by which a factfinder can evaluate the evidence before it”).

34. See, e.g., Holder v. Hall, 512 U.S. 874, 880-81 (1994)

(plurality opinion) (recognizing the need for “a benchmark

against which to measure the existing voting practice” and that

“where there is no objective and workable standard for choosing

a reasonable benchmark by which to evaluate a challenged voting

practice, it follows that the voting practice cannot be challenged

as dilutive under § 2”).

35. See Reno v. Bossier Par. Sch. Bd., 520 U.S, 471, 480 (1997)

(“Because the very concept of vote dilution implies—and, indeed,

necessitates—the existence of an ‘undiluted’ practice against

which the fact of dilution may be measured, a § 2 plaintiff must

also postulate a reasonable alternative voting practice to serve as

the benchmark ‘undiluted’ voting practice.”).

36. James F. Blumstein, Racial Gerrymandering and Vote

Dilution: Shaw v. Reno in Doctrinal Context, 26 Rutgers L.J.

518, 566 (1995).

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the expression of an entitlement to ‘elect representatives

of their choice,’ the amendment provides ... that members

of minority groups have a right to register, vote, and to

have their vote fairly counted. There is no guarantee of

success: Just an equal opportunity to participate.” 37 In a

public mark-up session, Senator Dole reassured “results”

skeptics 38 “that revised Section 2 retained the Voting

37. 128 Cong. Rec. 14316 (1982) (statement of Sen. Robert

Dole).

38. 1 Voting Rights Act: Hearings on S. 53, S. 1761, S. 1975,

S. 1992, and H.R. 3112 Before the Subcomm. on the Constitution

of the S. Comm. on the Judiciary, 97th Cong. 1332, 1336 (1982)

[hereinafter Blumstein Testimony] (statement of Prof. James

F. Blumstein, Vanderbilt L. Sch.) (noting that the problem with

the House’s proposed substantive results or effects test “is

that it does not make any theoretical sense unless you assume

affirmative entitlements based upon race”); see Boyd & Markman,

supra note 20, at 1399 n.255 (“In the view of most critics of the

proposed ‘results’ test, no alternative standard—except for

proportional representation—made sense in the context of § 2.

In their view, no alternative standard exists short of comparing

actual representation of minorities to the representation that

they would be ideally ‘entitled’ under a structure of proportional

representation.” (citation omitted)). The Dole Compromise (§ 2(b))

was developed and adopted to respond to these criticisms and

concerns. See id. at 1414-20. I had expressed this set of concerns

in testimony that I presented to the Subcommittee: “A substantive

effects standard must imply either no theory at all or an underlying

theory of some affirmative, race-based entitlements.” The

opposition to the “purpose” or “intent” standard derived not from

a commitment to race-based entitlements but “really comes on the

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Rights Act’s focus on discrimination against the rights of

individuals to vote.” 39

Senator Dole maintained this clear position when

the amendment reached the Senate floor. He was “asked

if revised Section 2 dealt with equal access to the voting

process or with election results.”40 Senator Dole’s response

was definitive: “The focus in section 2 is on equal access, as

it should be. It is not a right to elect someone of their race

but it is equal access and having their vote counted.”41 As

Senator Dole stated, “the essence of the Dole compromise

was to draw a basic distinction between the issue of access

to the political process and election results.”42

In other words, amended § 2 is process-based, not

outcome-oriented, at least as a freestanding matter. After

revision, § 2 still retained the focus on nondiscrimination

against individuals, “on access to the process not on group

entitlements to representation based on race.”43 The issue

basis of pragmatism, that is, the problem of proof.” Blumstein

Testimony, supra, at 1332-33.

39. Blumstein, supra note 36, at 568; see LULAC v. Perry,

548 U.S. 399, 437 (2006) (“[T]he right to an undiluted vote does

not belong to the ‘minority as a group,’ but rather to ‘its individual

members.’” (quoting Shaw v. Hunt, 517 U.S. 899, 917 (1996))).

40. Blumstein, supra note 36, at 568.

41. 128 Cong. Rec. 14133 (1982) (statement of Sen. Robert

Dole).

42. Id. at 14317 (statement of Sen. Robert Dole).

43. Blumstein, supra note 36, at 568.

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under revised § 2 is “whether or not minorities have ‘equal

access’ to the political process,” and “‘[e]qual access’ does

not imply any right among minority groups to be elected

in particular proportions: It does not imply a right to

proportional representation of any kind.”44

The text of § 2(b) reflects disconcertment with using

outcomes as a freestanding basis for VRA liability

under § 2. As part of the Dole Compromise, § 2(b) itself

specifically stated that a natural bench-mark, racial

proportionality, would be disavowed: “[N]othing in this

section establishes a right to have members of a protected

class elected in numbers equal to their proportion in the

population.”45 Not only Congress, but the Supreme Court

itself has also shown squeamishness in the face of racial

proportionality tests, having rejected maximization of the

political influence of Black voters (so-called Max Black)

as a benchmark in Johnson v. De Grandy.46

44. 128 Cong. Rec. 14316 (1982) (statement of Sen. Robert

Dole).

45. 52 U.S.C. § 10301(b). In my testimony, I was skeptical

that a statutory disclaimer, such as a proposed anti-proportional

representation provision could “get the job done when a willful

court has its mind set to do something else.” Blumstein Testimony,

supra note 38, at 1338.

46. 512 U.S. 997, 1016-17 (1994). De Grandy reinforces the

point that the Dole Compromise “confirms what is otherwise

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

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

success for minority-preferred candidates of whatever race.” Id.

at 1014, n.11. De Grandy also rejected a proposed “safe harbor”

against a claim of racial vote dilution for states that achieved

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Though “purpose” or “intent” could have provided

such a core value,47 revised § 2 relied on a “results” test. In

the absence of some benchmark as a core value, a results

test is analytically at sea. It “draws no bottom line. It

requires the consideration of a laundry list of factors, but

it never orients the inquiry. It demands a balance, but it

provides no scale.”48 A freestanding vote dilution claim,

racial proportionality. In rejecting that proposal, the Court noted

that such a safe harbor “would be in derogation of the statutory

text and its considered purpose,” which focus on “whether the

political processes are ‘equally open.’” Id. at 1018 (quoting S. Rep.

No. 97-417, at 30 (1982). Amended § 2 focused on the openness

of the political process; racially proportional electoral outcomes

did not and could not insulate a state from a substantive vote

dilution claim in the face of putative process-based claims, which

relied on challenges to such “reprehensible practices as ballot box

stuffing, outright violence, discretionary registration, property

requirements, the poll tax, ... the white primary,” and other forms

of race discrimination. Id.; see also Students for Fair Admissions,

Inc. v. President & Fellows of Harv. Coll., 600 U.S. 181, 213, 223

(2023) (illustrating the Supreme Court’s growing concern with

using racial proportionality as a benchmark for equality, at least

in the higher education context).

47. See Blumstein Testimony, supra note 38, at 1333 (noting

the distinction between “discrimination” and “disadvantage” and

the centrality of “intent” in drawing that distinction).

48. Blumstein, supra note 9, at 644-45 (footnote omitted).

There is a distinction between a “substantive” effects test and

an “evidentiary” effects test. A substantive effects test suggests

“an affirmative duty to consider race explicitly in effectuating

an aliquot matching of a particular benefit to racial criteria.” Id.

at 650. In the voting context, a substantive effects test “would

reflect adoption of an affirmative, race-based entitlement to

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with no statutory standards, would almost certainly

leave judges in the position of developing a substantive

benchmark that smacked of racial proportionality or

some form of race-based representational entitlement.49

On the other hand, a process-based analysis, focusing on

equal access to the political process, provides an objective

benchmark. 50

representation; otherwise notions such as ... vote dilution are not

understandable.” Id. at 654. An “evidentiary effects analysis ...

offers an attractive alternative that accommodates legitimate

concerns about problems of proof with the basic commitment

to the principle of nondiscrimination.” Id. at 658. There is an

analogy to the doctrine of res ipsa loquitur. “Under res ipsa the

underlying theory of liability—negligence—remains the same; a

plaintiff, however, can create an inference of negligence without

directly showing that the defendant committed the negligent act.”

Id. at 659.

49. Cf. LULAC v. Perry, 548 U.S. 399, 437 (2006) (holding that

“[t]he role of proportionality” is not to establish an affirmative,

race-based claim to proportional representation but to “provide[]

some evidence of whether ‘the political processes leading to

nomination or election ... are not equally open to participation’”

(quoting 42 U.S.C. § 1973(b))). That is, the focus of analysis under

amended § 2 remains on nondiscriminatory access to the political

or “electoral” process and the vote dilution that can result from

that lack of access. Id. at 439-40.

50. See Blumstein, supra note 9, at 702-03 (“The question

is whether courts can resist the impetus towards a [substantive]

result-based analysis—whether some analytically sensible way can

be found to avoid the Scylla of a pure race-based results approach

and the Charybdis of intrusive and standardless judicial oversight

of state and local political practices and institutions.”).

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As it turns out, the Supreme Court has already

confronted these issues. But the Court in Allen ignored

or disregarded the critical case, Chisom v. Roemer, that

rejected a freestanding vote dilution approach, contra to

the most far-reaching implications of Gingles.51 What was

called for in Allen was a clarification of the relationship

between Chisom and Gingles, not an exclusive focus on

Gingles. 52

Chisom concerned the question of whether VRA § 2

applied to judicial elections. The lower court construed § 2

as providing “two distinct types of protection for minority

voters—it protects their opportunity ‘to participate

in the political process’ and their opportunity ‘to elect

representatives of their choice.’”53 Since judges were not

“representatives,” VRA § 2 did not apply to a freestanding

vote dilution claim. 54

The Supreme Court rejected the position of the

lower court. It concluded that § 2 embraces a “unitary

51. 501 U.S. 380, 396-98 (1991).

52. Cf. Allen v. Milligan, 143 S. Ct. 1487, 1504 (2023) (noting

“the District Court concluded that plaintiffs’ § 2 claim was likely

to succeed under Gingles” but did not analyze or even consider

the impact of Chisom on the Gingles framework).

53. Chisom, 501 U.S. at 396 (quoting LULAC v. Clements,

914 F.2d 620, 625 (5th Cir. 1990)).

54. Id.

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claim,”55 not “two separate and distinct rights.”56 The

“opportunity to participate and the opportunity to elect”

are “inextricably linked”;57 they cannot “be bifurcated into

two kinds of claims.”58 The “inability to elect” component,

upon which vote dilution claims rest, “is not sufficient to

establish a violation [of § 2] unless, under the totality of

circumstances, it can also be said that the members of the

protected class have less opportunity to participate in the

political process.”59 Equal access to and equal participation

in the political process are critical components to any

claim under amended § 2, which “does not separate vote

dilution challenges from other challenges brought under

the amended § 2.”60

Chisom rejects a freestanding, independent claim

to vote dilution under revised VRA § 2. Under Chisom,

“Section 2 is violated only if there is racial inequality in

terms of opportunity to participate in the political process

and that foreclosure of opportunity results in (proximately

causes) an inability to elect representatives of one’s

55. Id. at 398.

56. Id. at 397.

57. Id.

58. Hous. Laws.’ Ass’n v. Att’y Gen. of Tex., 501 U.S. 419,

425 (1991).

59. Chisom, 501 U.S. at 397; see also Whitcomb v. Chavis, 403

U.S. 124, 153-55 (1971) (focusing on the opportunity to participate

in the political process, not on substantive outcomes).

60. Hous. Laws.’ Ass’n, 501 U.S. at 427.

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choice.”61 Chisom also explains that, “[a]ny abridgment

of the opportunity of members of a protected class to

participate in the political process inevitably impairs their

ability to influence the outcome of an election.”62 So, where

there is an abridgement of the opportunity to participate,

where members of a minority group are fenced out of the

political process, there could be an adverse effect on the

ability of minority voters to elect their choice of candidates

in an election.63 But for purposes of § 2, impairment to

the ability to participate in the democratic process is a

prerequisite to making a successful claim. This point was

recently reinforced by the Court in the Brnovich case, by

both the majority opinion and Justice Kagan’s dissent.64

Interpreting § 2 in a manner consistent with Chisom

reduces the impetus for developing a substantive, racebased benchmark. Instead, the benchmark is process61. Blumstein, supra note 36, at 575.

62. Chisom, 501 U.S. at 397.

63. See, e.g., White v. Regester, 412 U.S. 755, 768-69 (1973)

(explaining that members of a minority group were effectively

denied access to the political process and effectively excluded

from political life).

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

2337-38 (2021) (emphasizing § 2 “is violated only” when the “key

requirement” of an “open” political process is breached); id. at

2357-58 (Kagan, J., dissenting) (holding that courts under § 2 “are

to strike down voting rules that contribute to a racial disparity in

the opportunity to vote” and that “a violation is established when,

‘based on the totality of circumstances,’ a State’s electoral system

is ‘not equally open’ to members of a racial group”).

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oriented or access-oriented, rather than outcomesfocused, explainable by any number of possible causes.

Presaging the approach adopted in Chisom, this is how

the analysis works:65 “[A] plaintiff must demonstrate a

causal relationship between specific ‘objective’ factors that

evidence a faulty political process and the disadvantageous

outcome.”66 That is, “to make out a prima facie case, a

plaintiff should have to demonstrate foreclosure of the

opportunity to participate in the political process, not

merely an inability to influence or win an election or an

inability to elect [minority] officials.”67

If there is a nondiscriminatory and “open” process,

then racial minorities can be expected to participate on

an equal footing in the rough-and-tumble political process.

Having an equal opportunity, which does not guarantee

success, is all that is required by the Constitution68 and

the VRA.69 As the Supreme Court has stated,70 in the

65. The approach adopted in Chisom was essentially

proposed in the immediate aftermath of the enactment of Dole

Compromise. See Blumstein, supra note 9, at 704.

66. Id.

67. Id.

68. See Whitcomb v. Chavis, 403 U.S. 124, 153-55 (1971)

(finding where there is equal opportunity to participate in the

political process, there is no unconstitutional vote dilution).

69. See Johnson v. De Grandy, 512 U.S. 997, 1016-17 (1994)

(failing to maximize Black voters’ political inf luence is not

actionable as a violation of VRA § 2).

70. The Supreme Court has recognized that, as a constitutional

matter, claims of qualitative vote dilution are nonjusticiable

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absence of a race-based lack of opportunity to participate

in the political process, “minority voters are not immune

from the obligation to pull, haul, and trade to find common

political ground.” 71

because of a lack of standards. Rucho v. Common Cause, 588

U.S. 684, 708-09 (2019). The concerns that undergird Rucho

correspond to the concerns about core values or benchmarks

that surround claims under VRA § 2(b). The approach adopted

in Chisom responds to these concerns by riveting attention on

nondiscriminatory access to the political process and limiting vote

dilution claims to circumstances where a plaintiff can demonstrate

a lack of evenhanded access to the political process as in Regester

and Whitcomb. Chisom v. Roemer, 501 U.S. 380, 397 (1991). An

inability to elect representatives of choice is actionable, but only

when linked to or traceable to an access-based deficiency. See id.

That reduces the impetus toward developing a theory of racebased representational entitlements, something that advocates

of amended § 2, such as Senator Dole, disavowed. 128 Cong. Rec.

14316 (1982) (statement of Sen. Robert Dole).

71. De Grandy, 512 U.S. at 1020. Eight years after Gingles,

Justice Thomas (joined by Justice Scalia) sought to limit the

scope of coverage of § 2. He would have interpreted the terms in

§ 2(a)—“standard, practice, or procedure”—so as to exclude from

coverage “challenges to allegedly dilutive election methods that we

have considered within the scope of the Act in the past.” Holder

v. Hall, 512 U.S. 874, 892 (1994). (Thomas, J., concurring). Justice

Thomas called for “a systematic reassessment of our interpretation

of § 2” because of the “gloss” that case law had placed on the

statutory text, which was “at odds with the terms of the statute

and has proved utterly unworkable in practice.” Id. As Justice

O’Connor pointed out, “stare decisis concerns weigh heavily here,”

and she declined to accept Justice Thomas’s “suggestion that we

overhaul our established reading of § 2.” Id. at 885-86 (O’Connor,

J., concurring in part and concurring in judgment); see also id.

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The Allen decision unexplainably does not consider the

effect of Chisom in channeling Gingles’ analysis. Under

Chisom, the problem of identifying a core value and the

risk of developing a substantive, race-based entitlement—

widely disavowed in the debates surrounding amended

at 963-66 (Stevens, J., dissenting) (joined by Justices Blackmun,

Souter, and Ginsburg and agreeing with Justice O’Connor on the

statutory stare decisis point). Justice Thomas’s position would

have resulted in a categorical exclusion of vote dilution cases from

coverage under § 2 as not a “standard, practice, or procedure”

covered under § 2(a). Id. at 892 (Thomas, J., concurring). In this

approach, Justice Thomas’s categorical exclusion of coverage of

vote dilution cases under § 2 extended beyond the restraints on

Gingles applied in Chisom. Under Chisom, § 2 applies to vote

dilution considerations, but not in a freestanding manner—only

(i) when there is race discrimination that creates a lack of

evenhanded opportunity for members of a racial minority group

to participate in the political process and (ii) that lack of equal

access results in a form of cognizable vote dilution. See supra

note 70. In Allen, the Court declined to engage in the type of

“systematic reassessment” that Justice Thomas had called for

in his Holder concurrence. See Allen v. Milligan, 143 S. Ct. 1487,

1506 (2023); Holder, 512 U.S. at 892 (Thomas, J., concurring). But

in Allen, there was no need to engage in that type of broad-based

reassessment—only to clarify the interrelationship of Gingles

and Chisom, an issue that the Court in Allen did not recognize

or address. Therefore, that issue is still open for consideration by

lower courts in pending cases. What is called for is a clarification

of the doctrine under amended VRA § 2, the relationship between

Gingles and Chisom, not an undoing or redoing of existing

doctrine. Ignoring or disregarding a clarifying precedent such

as Chisom is not honoring stare decisis. Cf. Groff v. DeJoy, 143

S. Ct. 2279 (2023) (clarifying a statutory term that had long been

mis-interpreted by lower courts based on imprecise language in

a Supreme Court decision).

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§ 2—are largely obviated. The vote dilution inquiry

remains, but not as a freestanding, substantive principle.

Vote dilution that results from racially discriminatory

lack of access to the political process is actionable, since

VRA § 2 targets race discrimination.72 A violation of

§ 2(b) depends upon a process— focused core value—a

successful claimant must establish that members of a

racial minority “have less opportunity than other members

of the electorate to participate in the political process.” 73

That was the “deal” contained in the Dole Compromise.

In § 2 cases, courts should rely on analysis under

Chisom, requiring the parties to address whether there

has been a lack of evenhanded opportunity to participate

in the political process—a process-based question. Only

if plaintiffs can carry this burden should a court examine

the question of vote dilution: whether, under the totality

of circumstances, the race-based deficiencies in the

opportunity to participate in the political process brought

about an inability to elect representatives of choice.

72. Rogers v. Lodge, 458 U.S. 613, 622, 624 (1982) (holding

unconstitutional an at-large system that was “being maintained

for the invidious purpose of diluting the voting strength of the

black population”).

73. 52 U.S.C. § 10301(b).