I filed this amicus brief today in Callais in conjunction with lawyers from Mehri & Skalet. The brief makes three main arguments: (1) Section 2 is unlike the policies on which the Court has previously imposed temporal limits (Section 4’s coverage formula and affirmative action); (2) thanks to the Gingles framework, Section 2 is inherently self-limiting — and, in fact, has already become inoperative in many parts of the country; (3) if the Court wants to further restrict Section 2’s reach, it has several options other than the arbitrary imposition of term limits. Here are some excerpts from the brief’s introduction:

Appellees’ claim fails, first, because §2 differs in critical respects from the policies the Court has subjected to temporal limits. On its face, §4 of the VRA applied the “extraordinary measure[]” of preclearance, Shelby Cnty., 570 U.S. at 534, to certain jurisdictions based on electoral data from 1964, 1968, and 1972, 52 U.S.C. §10303(b). The text of §2 looks nothing like this. Written in the present tense, it doesn’t refer to evidence from an earlier era in American history. Nor does §2 resemble affirmative action. That policy triggers strict scrutiny because it racially classifies individuals—distributes burdens or benefits to them on the basis of their race. In contrast, §2 regulates governments at various levels, not people. And it imposes liability based on a complex set of factors, none of which is reducible to anyone’s race as such.

If §2 is unlike both §4 and affirmative action, what sort of statute is it? As this Court has long recognized, see, e.g., Chisom v. Roemer, 501 U.S. 380, 394 (1991), it’s a law that targets discriminatory results. Such laws are found throughout both the Statutes at Large and state codes. Among their ranks, they include Title VII of the Civil Rights Act (“Title VII”), the Fair Housing Act (“FHA”), and many more. Crucially, the Court has never hinted—let alone held—that statutes aimed at alleviating discriminatory results must be temporally restricted. A time limit would be inappropriate for these laws since they neither rely on outdated data nor classify individuals based on their race.

Additionally, thanks to the framework the Court established for vote-dilution claims in Thornburg v. Gingles, 478 U.S. 30 (1986), §2 already includes built-in sunset clauses that curb its reach. The first Gingles precondition involves “the dispersion of the minority population.” Bush v. Vera, 517 U.S. 952, 979 (1996) (plurality opinion). So when minority voters are sufficiently dispersed (that is, residentially integrated), they’re unable to satisfy this requirement and their vote-dilution claims fail. Likewise, the presence of racially-polarized voting is the crux of the second and third Gingles preconditions. See Gingles,478 U.S. at 52-74. So when voting isn’t highly racially-polarized, these criteria can’t be met either and vote-dilution claims again go nowhere.

Not only are the phenomena highlighted by the Gingles framework capable of change, they have been changing—dramatically so, and consistently in ways that confine the operation of §2. The 2020 Census revealed that, for the fifth consecutive decade, residential segregation fell throughout the country. See, e.g., William Frey, A 2020 Census Portrait of America’s Largest Metro Areas: Population Growth, Diversity, Segregation, and Youth 17-18 (2022). In many areas, it’s therefore more difficult than in the past to draw reasonably-configured majority-minority districts, as required by the first Gingles precondition. Similarly, the 2020 and 2024 elections saw large declines in racially-polarized voting, especially in diverse states like Florida and Texas. See, e.g., Stephanopoulos, New Electorate, supra, at 55-57. Based on these elections’ results, Black vote-dilution plaintiffs would be unable to prove sufficient racial polarization in most places, and Hispanic litigants would be unable to do so almost everywhere.

Given these trends, it’s unsurprising that “§ 2 litigation in recent years has rarely been successful,” Allen v. Milligan, 599 U.S. 1, 29 (2023), and that “proportional representation of minority voters is absent from nearly every corner of this country,” id. at 29 n.4. These observations remain as accurate today as in 2023. Minority voters are still disproportionally underrepresented in most states and at all electoral levels. See, e.g., Christopher Warshaw et al., Districts for a New Decade—Partisan Outcomes and Racial Representation in the 2021–22 Redistricting Cycle, 52 Publius: J. Federalism 428, 445-46 (2022). And while the success rate of vote-dilution claims has ticked up after the Court confirmed their viability in Milligan, they continue to affect very few districts. This decade, §2 litigation has led to the creation of only two more congressional minority-opportunity districts (out of 435) and just ten more state-legislative minority-opportunity districts (out of more than 7,000). SeeSection 2 Cases Database, Univ. Mich. L. Sch. Voting Rights Initiative (Jan. 1, 2025), https://voting.law.umich.edu/ database/.

My article on ongoing shifts in voter behavior and what they mean for election law is now out in the Journal of Legal Analysis. Here’s the abstract:

The American electorate is transforming—undergoing its most sweeping changes in half a century. These shifts include the disappearance of income as a partisan cleavage, the emergence of education as a new partisan axis, a decline in racially polarized voting, and a more neutral political geography. This Article is the first to explore the implications of the new electorate for election policy and law. As to policy, the parties’ longstanding positions on numerous electoral issues have become obsolete. As to law, an array of electoral claims and defenses now operate differently than in the past.

Brendan Schneiderman in Slate on the potential of cumulative voting to curb gerrymandering:

It doesn’t have to be like this. There is a way to avoid line drawing altogether, and to do it constitutionally. Yes, the Constitution requires that the number of House seats be apportioned among the states according to their respective populations, but it says nothing of congressional districts—and nothing about line drawing. . . .

Fortunately, there’s a readily available solution to address this: Congress could also enact what’s known as cumulative voting. Under a cumulative voting scheme, rather than having Texans merely fill in ovals next to their 38 favorite candidates (i.e., giving each candidate one vote apiece), voters would have 38 votes to assign however they see fit. If there is only one candidate a voter supports, that voter could give the candidate all 38 votes, improving the odds that they get elected, but leaving the remaining seats up to other voters. Or imagine that a non-major party, like the Libertarian Party, endorsed a slate of 10 candidates; then, pro–Libertarian Party voters could allocate three or four votes apiece across those 10. This reform would protect party minorities, like Democrats in Texas, because it would allow Democratic voters to distribute their votes across a smaller but mightier group of candidates. . . .

And although it may sound grandiose, Congress can enact just such a multimember-district, cumulative voting model: The Constitution grants that the body “may at any time” enact voting regulations, something it has done occasionally, most prominently with the Voting Rights Act of 1965. Indeed, multimember districts have already been introduced in Congress by Virginia Democrat Donald Beyer via a bill that, while not eliminating line drawing altogether, would mitigate its worst effects. And cumulative voting already exists at the county level. Together, they provide a comprehensive, pro-democracy reform for electing members of the House—without drawing a single line.

Bradley Smith and I talked about Callais and the future of Section 2 in the National Constitution Center’s “We the People” podcast with Jeffrey Rosen.

In this episode, Bradley Smith of Capital University Law School and Nicholas Stephanopoulos of Harvard Law School join to discuss the history and future of racial gerrymandering, including how the Court’s upcoming decision in Louisiana v. Callais could affect the Voting Rights Act. 

Sam Levine for the Guardian:

“Gerrymandering is bad enough once a decade,” said Richard Pildes, a law professor at New York University. “But if we open the door to continual efforts throughout the decade to squeeze out every additional seat based on changing calculations to the parties, it’s very bad for voters who have enough trouble developing connections with their representatives and it’s very bad for democracy more generally because it promotes cynicism about the process.” . . .

“It presumably increases the potency for gerrymandering because you can do the gerrymandering based on very recent data and the map doesn’t have to endure for as long,” said Nicholas Stephanopoulos, an election law professor at Harvard. “The worst case isn’t just a one-off mid-decade re-redistricting it’s a continuous re-redistricting. Before every election, you check out which of your side’s incumbents had a closer call than you wanted last time and you make their district three or five or seven points more Democratic or Republican.” . . .

Stephanopoulos said the current congressional map was essentially balanced between Democrats and Republicans in the aggregate. “I’d rather have fair maps in every state aggregate into a fair US House. If we can’t get that because the Congress won’t require fair maps and neither will the supreme court, then the worst case, I think, is one side gerrymanders and the other side doesn’t, and we get a highly distorted US House.

“That then means that the majority of Americans aren’t represented by a majority of legislators, and Congress passes laws that don’t reflect what the majority of Americans want and so offsetting gerrymanders at least prevents that worst-case outcome.”

Ron Brownstein in Bloomberg (paywalled).

“The current House is unusual in the modern era in being very close to perfectly neutral according to various measures of partisan bias,” Nicholas Stephanopoulos, a professor at Harvard Law School and expert in redistricting, told me. Under the current lines, Stephanopoulos and his colleagues have argued, the party that wins the most votes in House elections nationwide is also very likely to win the majority — a big improvement from 2012 when severe gerrymandering allowed Republicans to amass a 33-seat House majority even as Democrats won the national popular vote. . . .

If Texas succeeds in launching a new redistricting war, it could disrupt the best (if inadvertent) feature of the current maps: their rough partisan balance. In an all-out mobilization, Republicans probably can squeeze out about half a dozen more House seats than Democrats before 2026. That would not shift the maps back all the way to their lopsided pro-GOP tilt after 2010, says Sam Wang, president of the Electoral Innovation Lab at Princeton University. But, he says, it would erase the roughly neutral playing field, and likely force Democrats to win the total House popular vote by 2 to 3 percentage points to claim the majority. . . .

The best solution would be legislation establishing comprehensive, national rules for redistricting. In 2021, the Democratic-controlled House passed the sweeping election reform bill known as HR 1 that would have required states to use independent commissions to draw Congressional district lines and applied national standards to that process. Those included avoiding partisan bias, ensuring geographic continuity in the districts, and barring mid-decade redistricting. . . .

There might be other ways to address the gerrymandering problem. Though the US Supreme Court ruled in the 2019 Rucho case that federal courts can’t overturn partisan gerrymanders, state legal action may still offer some opportunities to curb excesses: Stephanopoulos and his colleagues at the Harvard Election Law Clinic recently helped craft a novel lawsuit in Wisconsin that argues the extreme lack of competition in the state’s Congressional map “makes a mockery of” the state constitution’s promise of equal protection and the right to vote. In the long run, some election reformers believe that returning to the early 19th-century model of electing multiple members from a single district offers the best chance to ensure both greater fairness and competition.

As we all know, the Callais reargument potentially poses the momentous question of Section 2’s constitutionality. But it’s worth noting how many steps the Court would have to take to reach that question. Each of these steps represents an offramp for the Court that would allow it to resolve this case without having to address Section 2’s validity.

1. Race or Politics: First off, if the Court concludes that politics better explains District 6’s formation than race, then strict scrutiny wouldn’t apply and the district would almost certainly be constitutional. There’s a good argument that politics — in particular, protecting Republican incumbents Mike Johnson, Steve Scalise, and Julia Letlow, and sacrificing the seat of Garret Graves — is why District 6’s shape is relatively unusual. If one of the other Republican incumbents’ seats had been sacrificed, District 6 could have been substantially more “reasonably configured.”
2. Narrow Tailoring: If the Court determines that District 6 was designed for a racially predominant reason, the Court could still avoid grappling with Section 2’s constitutionality by holding that the district is an insufficiently tailored remedy for any Section 2 violation. Again, District 6 arguably isn’t “reasonably configured,” and the Court has previously said that only a reasonably-compact minority-opportunity district can remedy a Section 2 violation. Per Bush v. Vera, “if a reasonably compact district can be created, nothing in § 2 requires the race-based creation of a district that is far from compact.”
3. Compelling Interest: Lastly, even if the Court rules that race did predominate in the creation of District 6, and that District 6 is narrowly tailored to remedy a Section 2 violation, the Court could still refrain from reaching Section 2’s constitutionality by holding that compliance with Section 2 isn’t a compelling state interest. The Court has long assumed that Section 2 compliance is a compelling interest. But the Court has never actually held as much. And if Section 2 compliance isn’t a compelling interest, then it can’t save a district drawn for a racially predominant reason — and the Court would have no occasion to comment on Section 2’s validity. Note that this resolution of Callais wouldn’t bar future Section 2 vote dilution claims since it wouldn’t change any aspect of the Gingles framework. Nor would it mean that any vote dilution remedy is necessarily an unlawful racial gerrymander. As Chief Justice Roberts made clear in Milligan, the critical line as far as racial gerrymandering is concerned is “between [race] consciousness and [racial] predominance.” Both plaintiffs’ demonstrative maps at Gingles‘s first step and jurisdictions’ ultimate remedies can — and should — exhibit race-consciousness but not racial predominance, in which they don’t trigger strict scrutiny.

Of course, if the Court is intent on addressing Section 2’s constitutionality, it can find a way to do so. The point here is just that the Court has several options at its disposal that wouldn’t raise the stakes in Callais to the maximum possible size. (Disclosure: Other attorneys in HLS’s Election Law Clinic represent the Robinson intervenors in Callais, but I haven’t been involved in that representation.)

New York Times.

Developments in recent weeks signaled that some members of the court think there is more work to be done in removing legal guardrails governing elections. There are now signs that court is considering striking down or severely constraining the remaining pillar of the Voting Rights Act, a towering achievement of the civil rights movement that has protected the rights of minority voters since it was enacted 60 years ago last week.

Taken together, the court’s actions in election cases in recent years have shown great tolerance for partisan gamesmanship and great skepticism about federal laws on campaign spending and minority rights. The court’s rulings have been of a piece with its conservative wing’s jurisprudential commitments: giving states leeway in many realms, insisting on an expansive interpretation of the First Amendment and casting a skeptical eye on government racial classifications. . . .

Richard L. Hasen, a law professor at the University of California, Los Angeles, said the Roberts court may be moving in the opposite direction.

“At least some of the conservative justices on the court seem ready to turn the clock back to the early 1960s,” he said, “when courts imposed very little constraints on the most blatant power grabs, and before Congress exercised its constitutional powers to protect voting rights.” . . .

Holding Section 2 unconstitutional could be a boon for Republicans, said Nicholas Stephanopoulos, a law professor at Harvard, as it would allow states to eliminate minority-opportunity districts altogether.

That would make it easy, he said, to draw completely Republican maps in Alabama, Louisiana, Mississippi, South Carolina and elsewhere.Even if the court stops short of holding Section 2 unconstitutional, it could do great damage to it in another case the court may consider in the term that starts in October. A theory recently adopted by the U.S. Court of Appeals for the Eighth Circuit says that only the government, not voters and other private parties, can sue to enforce the provision.

Bolts Magazine:

Seattle is poised to continue its experiment in public campaign financing. Voters on Tuesday appear to have renewed the city’s democracy vouchers program, which provides each adult Seattle resident with four $25 vouchers they can donate to local candidates of their choice. 

The ballot measure, which leads by 17 percentage points in the count as of Friday evening, will generate $4.5 million in property taxes a year to fund the program for the next decade. Had it failed, the tax levy that voters approved in 2015 would have expired, winding down the democracy vouchers.

Supporters celebrated the measure’s success, which comes eight years after Seattle first implemented the program. Since then, studies have found that the vouchers have strengthened the influence of everyday residents on local politics and allowed a wider array of candidates to launch campaigns, decreasing their reliance on big-money donors.

“Seattle showed the country what’s possible when we commit to making local elections more inclusive and accountable,” said Cinthia Illan-Vazquez, executive director of the Washington Bus, an organization that promotes civic engagement among youth. “At a time when federal courts and extremist politicians are attacking voting rights and blocking campaign finance reforms, Seattle voters just sent a powerful message: We will protect our democracy and keep building toward a system that truly represents all of us.” . . .

Proponents of the program also highlight how it has increased the number and diversity of people donating to local elections, drawing in Seattleites who otherwise may be disengaged from city politics. According to a University of Washington study, over the first two cycles of the program, Seattle saw a 350 percent increase in the number of unique donors. 

Another, more recent study, conducted by researchers at Stony Brook University and Georgetown University, found that the donors using democracy vouchers were more likely to be young and lower-income. 

These changes are making local elections more competitive and creating a tougher road for incumbents to win reelection, according to the University of Washington study. Alex Gallo Brown, campaign manager of Katie Wilson, the progressive mayoral candidate who is currently leading Mayor Bruce Harell in Tuesday’s primary, thinks that democracy vouchers were critical to Wilson’s success. 

Ansley Skipper and Drew Penrose write about the obvious solution to gerrymandering: proportional representation.

Most modern democracies don’t have legislative districts represented by only one legislator — which is why most don’t struggle with gerrymandering like we do. Instead, a majority of democracies today use proportional multimember districts (we’ll get back to what this means in a bit), which makes gerrymandering “prohibitively difficult” in practice, in the words of that same study. Our decision to use single-member districts makes gerrymandering possible in the first place. . . .

But here’s one of the biggest problems: Even if we got rid of gerrymandering, biased outcomes — the thing we really care about when we talk about gerrymandering — will persist as long as we have single-member districts. . . .

But there is a solution. A system that would end boundary-drawing brawls and make our democracy more effective, inclusive, and representative. It’s called proportional representation. How it works is intuitive: Share of votes equals share of seats. . . .

Under proportional representation, we can have it all. The same map can be competitive and fair, representative and compact. Racial minorities can be represented even when they don’t live in the same area. District lines can much more easily follow existing political and real-world geography.

Plus, because it creates more competition and a more representative system, proportional representation opens the door for more politically viable parties, more coalition-building, and more cross-ideological allegiances. A more representative government with more incentives for compromise and moderation could also mean a more responsive, effective government. . . .

And proportional systems are much harder, if not impossible, to gerrymander — because voters’ representation is based on how they vote, not where they live. It’s easy to make the opposition a minority in any given district. It’s impossible to draw them out entirely.

I did this Q&A with Harvard Law Today about mid-decade re-redistricting, the reargument in Callais, and other redistricting issues. Here are some excerpts:

Redrawing districts for partisan purposes at the beginning of a decade is, unfortunately, absolutely common. What has been much more uncommon in modern times is partisan mid-decade partisan redistricting; that is, redrawing the lines for partisan purposes when you’re otherwise under no obligation to redraw the lines. There was a famous case in Texas about 20 years ago where their court-drawn plan for the 2000 election was revised after Republicans then took control of the Texas State Government in 2002. They revised and released an aggressive, redrawn partisan gerrymander. In 2006, the Supreme Court allowed that map to stand. There are a couple other minor examples of mid-decade redistricting, but in recent memory Texas has been by far the most frequent and most impactful. I should also note, however, that this kind of mid-decade redrawing was a lot more common in previous eras of American history. In the Gilded Age, states would redraw their maps all the time for partisan reasons. Lines were never stable and, as a result, representation shifted constantly. Regrettably, it seems we’re now heading back toward the redistricting world of 1880 or 1890 where both sides gerrymander without any constraints. . . .

In a book I recently wrote, I argue that the point of election law should be to give us a government that gives us government policy reflective of what people want. Under that perspective, aggressive gerrymandering is one of the most distorting, misaligning forces that exists in modern American politics. If you agree with my position — that the point of election law is to be aligning — the issues that have arisen recently are terribly concerning because misalignment is the essence of gerrymandering. This is a practice that drives an inherent wedge between what people want from the government and what the government actually does for them. While this is difficult to reconcile from an alignment standpoint, the Supreme Court has essentially said that alignment is not part of our Constitution, and these types of gerrymanders don’t outright disenfranchise anybody. The Supreme Court’s vision of election law apparently views gerrymanders as a longstanding characteristic of American democracy, but by no means a bug in the system. Existing precedent, which states are bound to uphold, essentially instructs that as long as the plain text of the U.S. Constitution has not been explicitly violated, keep doing what you’ve always historically been doing. The current state of affairs does not seem problematic to the current Roberts court. . . .

[In Callais,] [t]he issue as now presented is exactly the issue that Kavanaugh said he wanted to consider in the future, in his Milligan concurrence. This is deeply, deeply threatening to Section 2. The logic of the argument that the concurrence floated is just that Section 2 is now unconstitutional because it’s obsolete, vote dilution claims under federal law should no longer exist, and race-conscious redistricting should no longer be allowed. So, Callais has morphed from kind of a garden variety racial gerrymandering case into now possibly a huge blockbuster, landmark case with an outcome that could put Section 2 of the Voting Rights Act in serious jeopardy. Just as Shelby County v. Holder invalidated Section 5 of the Voting Rights Act a decade ago.

The most immediate consequence of that ruling would be dozens, maybe hundreds, of districts everyone assumes are required by Section 2 could be eliminated. Take a state like Louisiana, the state at issue in Callais, that had one Black majority district since the 1990s. There was an effort in litigation over the last couple of years to get a second Black majority district in Louisiana, but all of those efforts were under Section 2. Without Section 2, nothing is stopping Louisiana from replacing those two Black majority districts with an all-white, all-Republican congressional delegation. The same thing would be true in South Carolina, Alabama, Mississippi, and Tennessee and many other jurisdictions. If there is no legal requirement to guard against vote dilution, many states will seize the opportunity to engage in widespread vote dilution for partisan purposes. I think we’ll see substantial redistricting to get rid of these majority-minority districts that currently exist but would no longer be protected if Section 2 is found unconstitutional.

Michigan Public Radio:

The Michigan Court of Appeals has tossed out a Republican lawsuit challenging Democratic Secretary of State Jocelyn Benson’s official guidance for many overseas voters.

The lawsuit filed by the Republican National Committee, the Michigan Republican Party and a township clerk claimed the guidance would clear the way for former spouses and dependents who have no tangible connection to Michigan to vote in state elections. But the appeals court panel’s decision did not turn on the substance of the guidance, but the fact that the lawsuit was filed less than a month before the November 2024 election and after absentee ballots to overseas voters were in the mail.

“This case challenges the breadth of one of the rights foundational to our democracy—the right to vote. But it does so narrowly. First, this case concerns itself with only a select group of voters: individuals who vote in Michigan elections who do not presently live in Michigan,” read the unsigned opinion. “Second, this case is temporally limited, too, focusing exclusively on obtaining relief in advance of the 2024 election, which has since come and gone and been certified.”

Politico:

The New York City Campaign Finance Board denied Mayor Eric Adams millions of dollars in matching funds for the tenth time Wednesday — and suggested in a strongly worded statement that Adams will not be getting a penny anytime soon.

The regulatory body denied Adams the public funding he’s seeking for his general election bid on two grounds: His campaign has not submitted required paperwork, and the board has reason to believe the campaign violated the law.

“The board finds the campaign has provided incomplete and misleading information to the CFB and has impeded the CFB staff’s ability to complete its investigation,” Board Chair Frederick Schaffer said during Wednesday morning’s board meeting. “With respect to the second ground, the board’s conclusion is based upon its review of all of the available evidence, including, but not limited to, its own independent investigation.”The board’s decision escalates a long-simmering standoff with the incumbent and hobbles Adams’ ability to compete at a time when he is already at a severe disadvantage. The mayor dropped out of the Democratic primary after the controversial dismissal of a federal bribery case against him. He is now running in the crowded general election as an independent.

Washington Post:

Texas Republicans plan to ramp up the pressure Friday on Democratic state lawmakers who fled to suburban Chicago and other Democratic areas this week to prevent the GOP from giving themselves five more safe congressional districts.

Republican state legislators and Attorney General Ken Paxton (R) have set a Friday deadline for Democrats to return, and Paxton has said he’ll go to court to try to remove them from office if they do not. Democrats said they are committed to staying out of state. Gov. Greg Abbott (R) has already sued the Democratic leader of the state House, who is required to respond Friday to the lawsuit before the Republican-dominated state Supreme Court. 

The brawl over congressional lines in Texas has set off a nationwide political clash, with red and blue states preparing to engage in an unprecedented round of map drawing for political gain. Republicans hold a narrow 219-212 majority in the U.S. House and a handful of redrawn seats could help decide the balance of power in Congress for the second half of President Donald Trump’s second term.

Trump is at the center of the fight. He urged Texas to act, insisting he’s “entitled” to five more seats there while calling for other GOP-led states to shift more districts from Democrats to Republicans. On Thursday, he said he would conduct a census that excluded people in the United States illegally. Doing so would reshuffle how many congressional districts each state gets and would likely draw litigation.