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 L OUISIANA ,

Appellant,

v.

P HILLIP CALLAIS , ET AL .,

Appellees.

_________

P RESS R OBINSON , ET AL .,

Appellants,

v.

P HILLIP CALLAIS , ET AL .,

Appellees.

_________

On Appeal From The United States District Court

For The Western District of Louisiana

_________

BRIEF AMICUS CURIAE OF

PACIFIC LEGAL FOUNDATION

IN SUPPORT OF APPELLEES

_________

CHRISTOPHER M. K IESER

Counsel of Record

J OSHUA P. T HOMPSON

Pacific Legal Foundation

555 Capitol Mall,

Suite 1290

Sacramento, CA 95814

(916) 419-7111

ckieser@pacificlegal.org

Counsel for Amicus Curiae Pacific Legal Foundation

QUESTION PRESENTED

Whether the State’s intentional creation of a second majority-minority Congressional district violates

the Fourteenth or Fifteenth Amendments to the U.S.

Constitution.

ii

TABLE OF CONTENTS

Interest of Amicus Curiae .......................................... 1

Introduction and Summary of Argument .................. 1

Argument .................................................................... 3

I. Avoidance of section 2 vote dilution claims

cannot justify racial discrimination.................. 3

A. Section 2 is unconstitutional as applied

to vote dilution ............................................ 4

B. The Equal Protection Clause must

have equal force against racial

gerrymandering .......................................... 8

II. Section II’s core applications remain

constitutional ................................................... 10

Conclusion ................................................................. 15

iii

TABLE OF AUTHORITIES

Page(s)

Cases:

Adarand Constructors, Inc. v. Pena,

515 U.S. 200 (1995) ............................................... 8

Ala. Legislative Black Caucus v.

Alabama, 575 U.S. 254 (2015) .............................. 1

Bartlett v. Strickland,

556 U.S. 1 (2009) ................................................... 1

Bernal v. Fainter,

467 U.S. 216 (1984) ............................................... 3

Bethune-Hill v. Va. State Bd. of

Elections, 580 U.S. 178 (2017) .............................. 3

Brnovich v. Democratic Nat’l Cmte.,

594 U.S. 647 (2021) ............................. 1, 12, 13, 14

Brooks v. Gant,

No. CIV-12-5003-KES, 2012 WL

4482984 (D.S.D. Sep. 27, 2012) ........................... 13

Bush v. Vera,

517 U.S. 952 (1996) ........................................... 1, 4

Chisholm v. Roemer,

501 U.S. 380 (1991) ............................................... 1

City of Rome v. United States,

446 U.S. 156 (1980) ............................................... 1

Democratic Nat’l Comm. v. Hobbs,

948 F.3d 989 (9th Cir. 2020) ......................... 11, 12

Fisher v. Univ. of Tex. at Austin,

579 U.S. 365 (2016) ............................................. 14

iv

Frank v. Walker,

768 F.3d 744 (7th Cir. 2014) ......................... 11, 12

Holder v. Hall,

512 U.S. 874 (1994) ............................................... 7

Houston Lawyers’ Ass’n v. Attorney Gen.

of Tex., 501 U.S. 419 (1991)................................... 1

Hunt v. Cromartie,

526 U.S. 541 (1999) ............................................... 9

Johnson v. De Grandy,

512 U.S. 997 (1994) ............................................... 7

League of United Latin Am. Citizens v.

Perry,

548 U.S. 399 (2006) ........................................... 6, 7

League of Women Voters of N.C. v.

North Carolina,

769 F.3d 224 (4th Cir. 2014) ............................... 11

Miller v. Johnson,

515 U.S. 900 (1995) ........................................... 3, 9

Nw. Austin Mun. Util. Dist. No. 1 v.

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

Ohio State Conf. of NAACP v. Husted,

768 F.3d 524 (6th Cir. 2014), vacated

as moot by 2014 WL 10384647

(6th Cir. Oct. 1, 2014) .......................................... 11

Palmore v. Sidoti,

466 U.S. 429 (1984) ............................................... 8

Plessy v. Ferguson,

163 U.S. 537 (1896) ............................................... 2

Prejean v. Foster,

227 F.3d 504 (5th Cir. 2000) ................................. 4

v

Ricci v. DeStefano,

557 U.S. 557 (2009) ............................................... 9

Salas v. Sw. Tex. Jr. Coll. Dist.,

964 F.2d 1542 (5th Cir. 1992) ............................. 11

Schuette v. Coal. to Defend Affirmative

Action, 572 U.S. 291 (2014) ................................... 5

Shaw v. Hunt,

517 U.S. 889 (1996) ............................................... 1

Shaw v. Reno,

509 U.S. 630 (1993) ........................................... 5, 6

Shelby Cnty. v. Holder,

570 U.S. 529 (2013) ........................................... 1, 2

Students for Fair Admissions, Inc. v.

President & Fellows of Harvard

Coll., 600 U.S. 181 (2023) .......................... 2, 3, 5, 8

Tex. Dep’t of Housing & Cmty. Affairs v.

Inclusive Cmtys. Project, Inc.,

576 U.S. 519 (2015) ............................................. 13

Thornburg v. Gingles,

478 U.S. 30 (1986) ................................................. 7

Veasey v. Abbott,

830 F.3d 216 (5th Cir. 2016) ............................... 11

Vill. of Arlington Heights v. Metro.

Housing Dev. Corp.,

429 U.S. 252 (1977) ..................................... 8, 9, 10

Walen v. Burgum,

700 F. Supp. 3d 759 (D.N.D. 2023) ....................... 4

Wards Cove Packing Co. v. Atonio,

490 U.S. 642 (1989) ............................................. 13

vi

Wis. Legislature v. Wis. Elections

Comm’n, 595 U.S. 398 (2022) ................................ 7

Statutes

52 U.S.C. § 10301(a) ........................................... 11, 12

52 U.S.C. § 10301(b) ....................................... 2, 4, 5, 6

Other Authorities

Brennan Center for Justice, Brnovich v.

Democratic National Committee

(July 1, 2021),

https://tinyurl.com/mvksr9w ............................... 12

Charles, Guy-Uriel E. & FuentesRohwer, Luis E., The Court’s VotingRights Decision Was Worse Than

People Think, The Atlantic (July 8,

2021), https://tinyurl.com/86ydyhc5 ................... 12

Gerstmann, Evan & Shortell,

Christopher, The Many Faces of

Strict Scrutiny: How the Supreme

Court Changes the Rules in Race

Cases, 72 U. Pitt. L.R. 1 (2010) ........................... 10

Madrid, Mike, While Democrats Debate

‘Latinix,” Latinos Head to the G.O.P.,

N.Y. Times (Mar. 22, 2022),

https://www.nytimes.com/2022/03/22/

opinion/politics/latinos-democraticparty.html .............................................................. 5

Primus, Richard A., Equal Protection

and Disparate Impact: Round Three,

117 Harv. L. Rev. 493 (2003) .............................. 13

INTEREST OF AMICUS CURIAE 1

Pacific Legal Foundation (PLF) submits this brief

amicus curiae in support of Appellees.

PLF is a nonprofit, tax-exempt corporation organized under the laws of California for the purpose of

engaging in litigation in matters affecting the public

interest. In support of its Equality and Opportunity

practice, PLF advocates for a color-blind interpretation of the United States Constitution and opposes

race-based decisionmaking by governments. PLF has

participated as amicus curiae in most of this Court’s

major redistricting and Voting Rights Act cases. See,

e.g., Brnovich v. Democratic Nat’l Comm., 594 U.S.

647 (2021); Ala. Legislative Black Caucus v. Alabama,

575 U.S. 254 (2015); Shelby Cnty. v. Holder, 570 U.S.

529 (2013); Nw. Austin Mun. Util. Dist. No. 1 v.

Holder, 557 U.S. 193 (2009); Bartlett v. Strickland,

556 U.S. 1 (2009); Bush v. Vera, 517 U.S. 952 (1996);

Shaw v. Hunt, 517 U.S. 889 (1996); Chisholm v. Roemer, 501 U.S. 380 (1991); Houston Lawyers’ Ass’n v.

Attorney Gen. of Tex., 501 U.S. 419 (1991); City of

Rome v. United States, 446 U.S. 156 (1980).

INTRODUCTION AND

SUMMARY OF ARGUMENT

The Voting Rights Act of 1965 was one of the last

century’s most consequential and successful pieces of

legislation. To deal with intransigent jurisdictions determined to prevent black Americans from exercising

the franchise, the VRA “employed extraordinary

measures to address an extraordinary problem.”

No party’s counsel authored any part of this brief. No person

or entity, other than Amicus Curiae and its counsel, paid for the

brief ’s preparation or submission.

1

2

Shelby Cnty. v. Holder, 570 U.S. 529, 534 (2013). It

worked. See id. at 535 (noting that by 2012, black citizens of five of the six states most targeted by Section

5 of the VRA were registered to vote at a higher rate

than white citizens). Indeed, things have improved so

drastically that the VRA itself is now one of the main

causes of racial discrimination in voting.

These cases are a stark example. Louisiana created a second majority-minority Congressional district to comply with Section 2 of the Voting Rights

Act—even if it did so grudgingly. But the Fourteenth

and Fifteenth Amendments prohibit racial discrimination. So how can the State legally sort voters by

race? The problem is that this Court has long read

Section 2(b) to create a cause of action for “vote dilution,” on a theory that racial groups have a right to

elect “representatives of their choice.” 52 U.S.C.

§ 10301(b). This justifies state legislation explicitly

based on race, done in the name of anti-discrimination. Yet the Constitution protects individuals, not

groups. Each individual has a right not to be classified based on his or her race, but no group has a right

to own any particular Congressional seat. Even to

speak this way is to engage in the un-American assumption that a group of people vote as a bloc because

of their skin color.

“Our constitution is color-blind, and neither knows

nor tolerates classes among citizens.” Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting).

This Court has been steadily moving the Nation towards Justice Harlan’s correct interpretation of the

Constitution. See, e.g., Students for Fair Admissions,

Inc. v. President & Fellows of Harvard Coll., 600 U.S.

181 (2023) (SFFA). Race-based redistricting stands as

a major exception. These cases present the Court with

3

the opportunity to excise race-based redistricting once

and for all by simply treating it like any other form of

racial discrimination that the Constitution condemns.

To do this, the Court should clarify that while Section

2 still protects individuals from voting discrimination

based on their race, it cannot constitutionally be read

to protect group rights. Therefore, a State should not

be entitled to rely on Section 2 to justify race-based

redistricting.

ARGUMENT

I.

Avoidance of Section 2 Vote Dilution Claims

Cannot Justify Racial Discrimination

The central command of the Equal Protection

Clause is “that the Government must treat citizens as

individuals, not as simply components of a racial, religious, sexual or national class.” Miller v. Johnson,

515 U.S. 900, 911 (1995) (cleaned up). Because

“[e]liminating racial discrimination means eliminating all of it,” this Court subjects every racial classification to the strictest judicial scrutiny. SFFA, 600

U.S. at 206. There are no exceptions. And because

racial classifications are (rightly) so disfavored, strict

scrutiny almost always spells doom for the government. It is “‘strict’ in theory, but usually ‘fatal’ in

fact.” Bernal v. Fainter, 467 U.S. 216, 219 n.6 (1984).

There is one glaring exception remaining to this

principle. For decades, courts have accepted or assumed correct the argument that governments have a

compelling interest to consider race in the drawing of

electoral districts to comply with the Voting Rights

Act. See Bethune-Hill v. Va. State Bd. of Elections, 580

U.S. 178, 193 (2017) (continuing this Court’s trend of

4

“assum[ing], without deciding, that the State’s interest in complying with the Voting Rights Act was compelling,” then upholding the challenged districts);

Prejean v. Foster, 227 F.3d 504, 515 (5th Cir. 2000)

(interpreting Bush v. Vera, 517 U.S. 952, 977 (1996),

to mean that a “state has a compelling interest in complying with the results test of Section 2 of the Voting

Rights Act, which may lead it to create a majority-minority district only when it has a ‘strong basis in evidence’ for concluding . . . that, otherwise, it would be

vulnerable to a vote dilution claim” (quoting Bush, 517

U.S. at 994 (O’Connor, J., concurring))); Walen v. Burgum, 700 F. Supp. 3d 759, 775 (D.N.D. 2023) (threejudge court) (rejecting racial gerrymandering claims

because “even assuming race was the predominate

motivating factor, . . . the State’s decision to draw subdistricts . . . is narrowly tailored to the compelling interest of compliance with the VRA”). The underlying

assumption is that Section 2 requires some consideration of race to prevent “vote dilution.” If this is true,

then these applications of the statute cannot coexist

with the Equal Protection Clause. It follows that a

State cannot avoid liability for racial gerrymandering

by pointing to fear of a vote-dilution claim.

A. Section 2 Is Unconstitutional as Applied

to Vote Dilution

Simply put, Section 2 of the Voting Rights Act is

unconstitutional as applied to vote dilution. To begin

with, Section 2(b)—which provides the basis for votedilution claims—assumes that “members of a class of

citizens protected” by the VRA can, collectively, have

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

It further assumes that the number of “members of a

protected class” who “have been elected to office in the

5

State or political subdivision” is relevant to whether

that class of voters, collectively, has been able to elect

“representatives of their choice.” Ibid. In short, Section 2(b) assumes that “members of the same racial

group . . . think alike, share the same political interests, and will prefer the same candidates at the polls.”

Shaw v. Reno, 509 U.S. 630, 647 (1993). This Court

has rightly rejected such characterizations as “impermissible racial stereotypes.” Ibid.

Indeed, to faithfully apply Section 2(b) to a claim of

vote dilution, a court would have to start with the indefensible position that “all individuals of the same

race think alike.” Schuette v. Coal. to Defend Affirmative Action, 572 U.S. 291, 308 (2014) (plurality opinion) (rejecting this proposition as not “serious”); accord SFFA, 600 U.S. at 220-21. From there, it would

have to “probe how some races define their own interest in political matters.” Schuette, 572 U.S. at 308.

Even if this were a legitimate exercise for a federal

court to undertake, expert political consultants the

parties pay to appeal to racial blocs of voters fail at

this every election cycle.2 Federal judges are experts

in the law, but they are not competent to determine

the collective interest of black voters in Louisiana.

Nobody can do this, because each individual voter is

an individual, not simply a member of his or her racial

group.

See, e.g., Mike Madrid, While Democrats Debate ‘Latinix,”

Latinos Head to the G.O.P., N.Y. Times (Mar. 22, 2022),

https://tinyurl.com/4fwkcd9m (“Both parties have committed a

mind-boggling form of political malpractice for years: They have

consistently failed to understand what motivates Hispanic

voters, a critical and growing part of the electorate.”).

2

6

This Court’s prior efforts to police vote dilution

have done little but “balkanize us into competing racial factions,” driving us “further from the goal of a political system in which race no longer matters—a goal

that the Fourteenth and Fifteenth Amendments embody, and to which the Nation continues to aspire.”

Shaw, 509 U.S. at 657. How can we hope to reach such

a goal while governed by a statute that instructs

courts to determine the existence of “Latino opportunity districts” and punish states for failing to create

such districts. See League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 436-42 (2006) (LULAC).

In a world where individuals, rather than cohesive racial factions, participate in the political system, it

makes no sense to speak of a “Latino opportunity district.” This presumes that Latino voters all agree that

they should act as a bloc to elect “representatives of

their choice.” 52 U.S.C. § 10301(b). What actually

happens—and what should happen—is that each Latino voter goes to the polls and votes for the candidate

of his or her choice, not the choice of the group.3

Though case law provides some safeguards against

the abuse of vote-dilution claims, these merely pay lip

service to the statutory command that Section 2 does

not establish “a right to have members of a protected

class elected in numbers equal to their proportion in

the population.” Ibid. The most important safeguards

are the “preconditions” that a plaintiff must satisfy before reaching Section 2’s “totality of the circumstances” inquiry. Namely, that “a bloc voting majority

Indeed, the district this Court invalidated in LULAC

contains many heavily Latino counties whose votes have shifted

towards the Republican Party in recent years. Group preferences

can change over time, which is just one reason why groups cannot

have a “candidate of their choice.”

3

7

must usually be able to defeat candidates supported

by a politically cohesive, geographically insular minority group.” Thornburg v. Gingles, 478 U.S. 30, 49

(1986); see also Johnson v. De Grandy, 512 U.S. 997,

1011 (1994) (describing the three preconditions as:

“compactness/numerousness, minority cohesion or

bloc voting, and majority bloc voting”). But if these

conditions are satisfied, Section 2 very well might effectively grant a right to proportional representation

by race. It is no accident that officials often interpret

the VRA as requiring them to draw majority-minority

districts. See, e.g., Wis. Legislature v. Wis. Elections

Comm’n, 595 U.S. 398, 400 (2022) (“The Governor argued that the addition of a seventh majority-black district was necessary for compliance with the VRA.”).

Perhaps more importantly, though, even where

plaintiffs can demonstrate the Gingles preconditions,

it does not change the basic fact that voters are individuals. Though they may be of the same race and

tend to vote for the same candidates, these are not the

only facts about them. A group of individuals might

vote for the same political candidates for any number

of reasons, but Section 2 simply assumes that minority voters are doing so because of their race. The resulting system is “little different from a working assumption that racial groups can be conceived of

largely as political interest groups.” Holder v. Hall,

512 U.S. 874, 905 (1994) (Thomas, J., concurring in

the judgment).

“It is a sordid business, this divvying us up by

race.” LULAC, 548 U.S. at 511 (Roberts, C.J., concurring in part, concurring in the judgment in part, and

dissenting part). Section 2 vote-dilution claims have

drafted the federal judiciary into this effort for decades. But it need not continue indefinitely. Just as

8

this Court declared long-established racial discrimination in university admissions unlawful in SFFA, it

can strike a similar blow against race-based districting here. In both cases, treating people as if they

solely exist as members of their racial group is “contrary . . . to the ‘core purpose’ of the Equal Protection

Clause.” SFFA, 600 U.S. at 221 (quoting Palmore v.

Sidoti, 466 U.S. 429, 432 (1984)).

B. The Equal Protection Clause Must

Have

Equal

Force

Against

Racial

Gerrymandering

Holding Section 2 unconstitutional as applied to

vote dilution clears the path for federal courts to apply

general equal protection principles to racial gerrymandering claims. That is, that strict scrutiny applies

so long as it is shown “that a discriminatory purpose

has been a motivating factor in the decision.” Vill. of

Arlington Heights v. Metro. Housing Dev. Corp., 429

U.S. 252, 265-66 (1977). A discriminatory purpose

need not manifest in a desire to harm members of a

particular group. After all, this Court has long recognized that because the Constitution protects “persons,

not groups,” even seemingly “benign” racial discrimination must satisfy strict scrutiny. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995). Nor,

in normal circumstances, would a challenger have to

show that sorting voters by race was a “dominant” or

“primary” purpose of the map. Arlington Heights, 429

U.S. at 265.

But, perhaps in service of the idea that some consideration of race is unavoidable in redistricting, this

Court’s racial gerrymandering precedents have demanded a more stringent showing. These cases hold

9

that “strict scrutiny applies if race was the ‘predominant factor’ motivating the legislature’s districting decision.” Hunt v. Cromartie, 526 U.S. 541, 547 (1999).

These cases cite Arlington Heights for its inquiry into

facially race-neutral discrimination, but Arlington

Heights squarely rejected the “predominant factor” inquiry. Instead, the Arlington Heights Court understood that “[r]arely can it be said that a legislature . . .

made a decision motivated solely by a single concern,

or even that a particular purpose was the ‘dominant’

or ‘primary one.’” Arlington Heights, 429 U.S. at 265.

By ignoring this fact in gerrymandering cases, the

Court permits racial considerations to seep into districting decisions.

Like disparate-impact liability generally, the very

existence of Section 2 vote-dilution claims forces the

government to consider race to avoid liability. Cf.

Ricci v. DeStefano, 557 U.S. 557, 594 (2009) (Scalia,

J., concurring) (observing that disparate-impact liability in employment discrimination “place[s] a racial

thumb on the scales, often requiring employers to

evaluate the racial outcomes of their policies, and to

make decisions based on (because of) those racial outcomes”). That consideration of race would normally

trigger strict scrutiny under Arlington Heights. See

Miller, 515 U.S. at 913 (“outside the districting context, statutes are subject to strict scrutiny . . . when,

though race-neutral on their face, they are motivated

by a racial purpose or object”); see also Ricci, 557 U.S.

at 579 (majority opinion) (throwing out the results of

a promotion exam because of the racial makeup of

those who passed “would violate the disparate-treatment prohibition of Title VII”). But with the shadow

of Section 2 always looming, consideration of race in

redistricting has become so “inevitable” that courts no

10

longer view it with the appropriate level of skepticism.

See Evan Gerstmann & Christopher Shortell, The

Many Faces of Strict Scrutiny: How the Supreme

Court Changes the Rules in Race Cases, 72 U. Pitt. L.

Rev. 1, 18 (2010) (“[I]n the districting cases, the Court

repeatedly held that since some use of race is inevitable,” strict scrutiny “will only apply . . . when race is

the predominant factor in district line drawing. By

contrast, in remedial affirmative action cases, the

Court has held that it will apply strict scrutiny to all

cases where any racial classification is used by the

government.”).

This perversion of the Equal Protection Clause

should not stand. Section 2 has carved out a space for

race-based redistricting, but there is no exception in

the Fourteenth Amendment for districting legislation.

Section 2 encourages racial gerrymandering for the

sake of compliance with a vague system of proportional representation. Once this Court holds that Section 2’s application to gerrymandering is unconstitutional, it need no longer tolerate the use of race in districting. Drawing district lines is a complex exercise

involving many political considerations, but “racial

discrimination is not just another competing consideration.” Arlington Heights, 429 U.S. at 265.

II. Section II’s Core

Constitutional

Applications

Remain

In reaching these conclusions, the Court need not

weaken Section 2’s core protections against racial discrimination in voting. The same language of Section

2(b) that requires racial stereotyping when applied to

vote-dilution claims does not demand the same to determine whether a “voting qualification or prerequisite to voting or standard, practice, or procedure . . .

11

results in a denial or abridgement of the right of any

citizen of the United States to vote on account of race

or color.” 52 U.S.C. § 10301(a). When applied in that

context, Section 2 is an “equal-treatment requirement,” not an “equal-outcome command.” Frank v.

Walker, 768 F.3d 744, 754 (7th Cir. 2014). It is therefore consistent with the individual right to be free

from racial discrimination, which is the central tenet

of the Equal Protection Clause.

Last decade, a series of lower-court cases threatened to upend this understanding and transform Section 2’s “results test” into a prohibition of any voting

procedure that might disparately affect members of

some minority group. Those cases invalidated universal time, place, and manner voting rules like photo

identification requirements, limitations on the counting of votes cast in the wrong precinct, and the number of days permitted for early voting. See Ohio State

Conf. of NAACP v. Husted, 768 F.3d 524 (6th Cir.

2014), vacated as moot by 2014 WL 10384647 (6th Cir.

Oct. 1, 2014) (early voting); Veasey v. Abbott, 830 F.3d

216 (5th Cir. 2016) (en banc) (photo identification);

League of Women Voters of N.C. v. North Carolina, 769

F.3d 224 (4th Cir. 2014) (early voting, same-day registration, out-of-precinct voting); Democratic Nat’l

Comm. v. Hobbs, 948 F.3d 989 (9th Cir. 2020) (out-ofprecinct voting, ballot collection). These cases embraced an interpretation of Section 2 that privileged

group-based rights. Remarkably, this reading also

hinged almost entirely on how well members of the

protected group turned out to vote under the challenged system. But see Salas v. Sw. Tex. Jr. Coll.

Dist., 964 F.2d 1542, 1556 (5th Cir. 1992) (“a protected

class is not entitled to § 2 relief merely because it

turns out in a lower percentage” than other groups).

12

It was the epitome of an “equal-outcome command.”

Frank, 768 F.3d at 754.

In reversing the Ninth Circuit’s Hobbs decision,

this Court rejected this framework. Instead, the Court

emphasized that Section 2’s requirement that the political process be “equally open to participation” means

equality of opportunity, not equality of outcome. Brnovich v. Democratic Nat’l Comm., 594 U.S. 647, 667-68,

674 (2021). So it rejected the sole focus on disparate

impact in favor of an exhaustive look at the circumstances designed to show whether a state’s voting apparatus is indeed equally open to everyone. See id. at

668-72. Relevant factors include the magnitude of the

burden on the right to vote, how much the practice deviates from the norm when Section 2 was enacted, an

assessment of the state’s entire voting apparatus, and

the nature of the state interest involved. See ibid.

Disparate impact might be relevant, “[b]ut the mere

fact there is some disparity in impact does not necessarily mean that a system is not equally open or that

it does not give everyone an equal opportunity to

vote.” Id. at 671. This all-inclusive inquiry allows

courts to avoid group-based claims and focus instead

on whether the state has actually burdened the voting

rights of “any citizen . . . on account of race or color.”

52 U.S.C. § 10301(a).

Many commentators accused the Brnovich Court of

rewriting Section 2 and neutering its effectiveness.4

See Brennan Center for Justice, Brnovich v. Democratic

National Committee (July 1, 2021), https://tinyurl.com/mvksr9w

3 (asserting that “the U.S. Supreme Court made it more difficult

to challenge discriminatory voting laws in court by rewriting the

law that applies to lawsuits under Section 2 of the Voting Rights

Act of 1965”); Guy-Uriel E. Charles & Luis E. Fuentes-Rohwer,

4

13

But by clarifying that racial discrimination in voting

is not synonymous with disparate impact, the Court

actually shielded Section 2 from constitutional attack.

“Disparate impact doctrine’s operation requires people to be classified into racial groups, and liability

hinges on a comparison of the statuses of these

groups.” Richard A. Primus, Equal Protection and

Disparate Impact: Round Three, 117 Harv. L. Rev.

493, 564 (2003). An interpretation of Section 2 based

almost entirely on disparate impact, especially without any semblance of a causation requirement, “might

cause race to be used and considered in a pervasive

way and ‘would almost inexorably lead’” to the use of

strict racial quotas. Tex. Dep’t of Housing & Cmty. Affairs v. Inclusive Cmtys. Project, Inc., 576 U.S. 519,

542 (2015) (quoting Wards Cove Packing Co. v. Atonio,

490 U.S. 642, 653 (1989)). In short, it would have encouraged race-based decisionmaking almost every bit

as much as does the current vote-dilution precedent.

Instead, the Court avoided that outcome and focused Section 2’s core prohibition on discrimination

against individuals because of their race. And in this

role it still “provides vital protection against discriminatory voting rules.” Brnovich, 594 U.S. at 678. This

includes cases decided under the “results test,” where

no discriminatory intent is present. See id. at 667, 683

(acknowledging that proof of discriminatory intent is

not necessary to prevail on a Section 2 claim). Thankfully, this type of discrimination is rare today. But it

still exists, and courts still find Section 2 violations

under this theory. See Brooks v. Gant, No. CIV-12The Court’s Voting-Rights Decision Was Worse Than People

Think, The Atlantic (July 8, 2021), https://tinyurl.com/86ydyhc5

(arguing that Brnovich will “sideline” Section 2 “permanently”).

14

5003-KES, 2012 WL 4482984, at *1, 6–7 (D.S.D. Sep.

27, 2012) (Section 2 results violation where a county

with a large Native American population allotted

fewer days of early voting than majority-white counties elsewhere in the state, denying an equal opportunity to cast a ballot).

Put simply, holding Section 2’s vote-dilution applications unconstitutional will not stop the Voting

Rights Act from performing its basic duty. Instead,

much like Brnovich, it would focus the statute on the

type of discrimination that the Equal Protection

Clause forbids—discrimination against an individual

because of his or her race. At the same time, such a

decision would reduce the pressure on jurisdictions to

consider race when drawing electoral districts. It

would be an important step towards achieving “the

constitutional promise of equal treatment and dignity.” Fisher v. Univ. of Tex. at Austin, 579 U.S. 365,

388 (2016).

15

CONCLUSION

Amicus respectfully asks the Court to affirm the

judgment below.

Respectfully submitted,

CHRISTOPHER M. K IESER

Counsel of Record

J OSHUA P. T HOMPSON

Pacific Legal Foundation

555 Capitol Mall,

Suite 1290

Sacramento, CA 95814

(916) 419-7111

ckieser@pacificlegal.org

Counsel for Amicus Curiae Pacific Legal Foundation

S EPTEMBER 2025