Category Archives: Voting Rights Act

Breaking: Three-Judge District Court Finds Alabama’s Congressional Redistricting Plan Intentionally Discriminated Against Black Voters **Updated**

The court’s 571-page opinion is here. This decision is on remand from the Supreme Court’s 5-4 ruling in Allen v. Milligan.

This is the latest decision in the long-running Section 2 litigation against Alabama’s congressional redistricting plans. Back in 2021, Alabama passed a congressional redistricting plan that created one majority-Black district out of seven districts, even though the State’s voting-age population is 27% Black. Civil rights groups successfully obtained a preliminary injunction, but the Supreme Court stayed that injunction in a shadow docket ruling. Then, in 2023, the Supreme Court shocked the voting rights community by affirming the preliminary injunction and ordering Alabama to create two Black-opportunity districts.

Alabama’s response was defiance. Alabama adopted a 2023 plan in which the second purportedly Black-opportunity district was only 39.9% Black. Once again, the district court enjoined the plan. This time, the Supreme Court allowed the injunction to go into effect without any noted dissents.

This, then, brings us to the present decision. In its massive and meticulous decision, the three-judge district court held that Alabama violated Section 2 of the VRA and that its 2023 plan was enacted with discriminatory intent. On the statutory claim, the district court relied heavily on decades of Section 2 precedent. Put simply, the Supreme Court’s affirmance in Milligan laid the groundwork for this part of the decision.

By contrast, the district court’s constitutional, intentional discrimination holding is far more newsworthy and potentially sets up another visit to the Supreme Court. Here, the district court—which includes two Trump appointed judges—was obviously frustrated by Alabama’s recalcitrance. The district court opined that “[i]t would be remarkable—indeed, unprecedented—for us to hold that a state legislature that purposefully ignored a federal court order acted in good faith.” Thus, Alabama’s 2023 plan dug itself deeper into a hole. That is because the district court will now entertain the Milligan plaintiffs’ motion to bail-in Alabama into the VRA’s preclearance regime under Section 3(c). If granted, Alabama would have to seek federal pre-approval for any congressional redistricting plan through the 2030 redistricting cycle.

As I previously argued on this blog in favor of bailing-in Alabama: “what is to stop Alabama from redrawing its congressional map for the 2026, 2028 or 2030 elections? Unfortunately, not much. Alabama’s Constitution prohibits mid-decade redistricting of state legislative districts, but it’s silent about congressional maps. There’s nothing in the U.S. Constitution barring mid-decade redistricting.”

For its part, the district court acknowledged that Alabama remained free to engage in mid-decade redistricting. And more importantly for future proceedings, the district court telegraphed that it is very open to a bail-in remedy in this case. The key paragraph reads:

“We emphasize that we remain deeply disturbed that the State purposefully enacted a map that the State readily admits does not provide the required remedy for the vote dilution that we clearly found. We also emphasize our concern that the State’s assertion in response to any injunction we may issue, it is free to repeat its checkmate move. We are troubled by the State’s view that even if we enter judgment for the Plaintiffs after a full trial, the State remains free to make the same checkmate move again—and again, and again, and again.”

Thus, the district court recognizes that Alabama is engaging in gamesmanship—the very behavior that preclearance was designed to eradicate. The Jim Crow-era game of whack-a-mole is alive and well in the heart of Dixie.

This is an ideal case for a bail-in to go to the Supreme Court. Recall that the Supreme Court’s decision in Shelby County invalidated only the VRA’s coverage formula, not preclearance as a solution. And it said nothing about Section 3(c)’s bail-in mechanism for imposing preclearance. To be sure, we know from Shelby County that Justice Thomas would invalidate preclearance, and his conservative colleagues might share that view. But Alabama’s defiance of the first Milligan decision received no public support from any of the four conservative Justices who previously dissented. And at a time when the Trump Administration’s potential defiance of judicial rulings looms over the Supreme Court, Alabama’s behavior in this litigation may well prove counter-productive.

One final point. Section 3(c) allows a State to seek preclearance from either the local district court or the Attorney General. Given the recent gutting of DOJ’s Voting Section, one must be skeptical that the Trump DOJ would enforce Section 3(c)’s retrogression protections in good faith. Nevertheless, preclearance is the appropriate remedy in this case. And it is the best fact pattern since Shelby County for getting the Supreme Court’s imprimatur on Section 3(c)’s constitutionality, which matters not only for this specific provision but also for future congressional efforts to revise the VRA.

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“Justice Department will switch its focus on voting and prioritize Trump’s elections order, memo says”

Missed this Nick Riccardi AP story from the other day:

The Justice Department unit that ensures compliance with voting rights laws will switch its focus to investigating voter fraud and ensuring elections are not marred by “suspicion,” according to an internal memo obtained by The Associated Press.

The new mission statement for the voting section makes a passing reference to the historic Voting Rights Act, but no mention of typical enforcement of the provision through protecting people’s right to cast ballots or ensuring that lines for legislative maps do not divide voters by race. Instead, it redefines the unit’s mission around conspiracy theories pushed by Republican President Donald Trump to explain away his loss to Democrat Joe Biden in the 2020 presidential election….

“The mission of the Voting Rights Section of the DOJ Civil Rights Division is to ensure free, fair, and honest elections unmarred by fraud, errors, or suspicion,” the mission statement declares.

It adds that the unit will “vigorously enforce” Trump’s executive order seeking to reshape how elections are run. Parts of that order have been put on hold by a judge….

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“Trump’s justice department appointees remove managers of voting unit”

Sam Levine for The Guardian:

Donald Trump’s appointees at the Department of Justice have removed all of the senior civil servants working as managers in the department’s voting section and directed attorneys to dismiss all active cases, according to people familiar with the matter, part of a broader attack on the department’s civil rights division.

The moves come less than a month after Trump ally Harmeet Dhillon was confirmed to lead the civil rights division, created in 1958 and referred to as the “crown jewel” of the justice department. In an unusual move, Dhillon sent out new “mission statements” to the department’s sections that made it clear the civil rights division was shifting its focus from protecting the civil rights of marginalized people to supporting Trump’s priorities.

Tamar Hagler, the chief of the voting section, which is responsible for enforcing federal laws designed to prevent voter discrimination, and five top career managers were all reassigned last week to the complaint adjudication office, a little-known part of the department that handles employee complaints, according to people familiar with the matter. A career line attorney in the section has also been reassigned to the complaint adjudication office.

The voting section had seven managers in January overseeing around 30 attorneys. Of the two other managers, one retired and another was detailed to work on an antisemitism task force.

Political appointees have also instructed career employees to dismiss all of their active cases without meeting with them and offering a rationale – a significant break with the department’s practices and norms.

The justice department did not return a request for comment.

Taken together, the changes have raised significant alarm about what the future of voting rights enforcement will look like for the federal government at a moment when states continue to pass restrictive voting measures….

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MALDEF Files Section 2 Suit Challenging Stanislaus County, California, redistricting plans

The complaint is here. The press release is here:

MALDEF (Mexican American Legal Defense and Educational Fund) filed a challenge to the county’s 2021 Board of Supervisors and Board of Education redistricting plans on behalf of four voters who live in the county. The lawsuit was filed in U.S. District Court for the Eastern District of California. In the complaint, attorneys argue that the adopted maps were drawn in such a way as to deny Latino voters an opportunity to elect the candidates of their choice. Attorneys say the maps violate Section 2 of the Voting Rights Act of 1965.

The lawsuit asserts that the County’s Board of Supervisors failed to draw a second Latino-majority voting district despite an increase in the percentage of Latinos in the county’s voter population. Supervisors adopted maps that lowered the Latino Citizen Voting Age Population (LCVAP) by 1 percent in the county’s only majority Latino district. The complaint alleges that despite the dramatic growth of the Latino population, the supervisors broke a large, geographically compact, Latino community into three districts rather than create a second Latino district.

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Pennsylvania: “DOJ drops lawsuit against City of Hazleton”

Another Section 2 case dropped by the Trump Administration. The Standard Speaker reports:

The U.S. Justice Department dropped a lawsuit Monday to stop the City of Hazleton from electing council members at-large, a change that the lawsuit said would give Hispanic candidates and voters more opportunities to participate in the political process.

“The DOJ’s baseless assumption that the non-Hispanic white voters vote as a block to defeat Hispanic candidates could not be supported. The Hazleton community simply cannot be stereotyped by people who have never visited the area. The City believes that the five at-large City Council seats elected on rotating election cycles should continue to be duly elected by the people,” Hazleton Mayor Jeff Cusat said Tuesday in a news release.

While 43.3% of Hazleton’s citizens old enough to vote are Hispanic, no Hispanic candidate has been elected to council, even though Hispanic candidates ran in seven elections between 2014 and 2023, according to the lawsuit filed Jan. 14.

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“A Reprieve for Democracy: Reading Allen v. Milligan on the Sixtieth Anniversary of the Voting Rights Act”

Deuel Ross has written this fascinating article for the Harvard Civil Rights-Civil Liberties Law Review. Here is the abstract:

Voting is an act of faith. Faith that your vote will matter. Faith that your vote will make a difference. Faith in our democracy. In the years surrounding the 1965 passage of the Voting Rights Act (VRA), Black Americans had little reason to have such faith. Our streets and campuses were filled with protests in support of racial justice and opposition to faraway wars. An unpopular president had declined to seek reelection. He was replaced on the ticket by his vice president who went on to face both a “law and order” candidate and a populist promising to make America “stand up” again. All while Black people lagged far behind whites in voter registration, voter turnout, and elected representation in government. In response to the “cries of pain and the hymns and protests” of Black people, Congress enacted the VRA to offer the country a “cause for hope and for faith in our democracy.” As enacted, the VRA contained a “complex scheme of stringent remedies” that included Section 2, which barred racial discrimination in voting nationwide, and Section 5, which required states or other places with a history of discrimination to seek “preclearance” from the federal government before changing any laws or rules related to voting. 

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Trump’s Voting Executive Order and Section 2 of the VRA

Hi everyone. Travis Crum here. Long-time guest blogger. Newly minted contributor. Looking forward to participating in the conversation more. Thanks to Rick for having me.

Last week, President Trump issued an Executive Order that risks disenfranchising countless citizens who lack readily available proof of citizenship. Like his other Executive Orders, the Voting EO raises separation-of-powers questions, and there’s been a lot of commentary over potential legal challenges.

Here, I want to flag an option that is not on the table: Section 2 of the Voting Rights Act. The reason is straightforward: Section 2 does not apply to the federal government. Without Section 2, there are potential Fourteenth and Fifteenth Amendment claims for intentional discrimination, but that is a fact and resource intensive standard for plaintiffs to satisfy and courts are notoriously reluctant to label official actions as racist. By contrast, if a State were to enact a proof of citizenship law as onerous as the Voting EO, Section 2’s discriminatory results standard—even as interpreted in Brnovich—would provide a potential avenue to challenge it. The specter of Section 2 litigation might even motivate States to sheer off the roughest edges of such a law.

Back in 2020 and amid concerns about the first Trump Administration’s attacks on mail-in voting, I proposed amending Section 2 to apply to the federal government. Unfortunately, that proposal has not been included in the various voting bills that have circulated in Congress and died in the Senate. As the second Trump administration is quickly demonstrating, more checks are needed on presidential authority over voting rights. My hope is that future versions of the VRAA and the For the People Act incorporate this needed reform.

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The Yale Journal Has Just Published My New Feature Article: “The Stagnation, Retrogression, and Potential Pro-Voter Transformation of U.S. Election Law”

I am delighted that the Yale Law Journal has published my new Feature, The Stagnation, Retrogression, and Potential Pro-Voter Transformation of U.S. Election Law, 134 Yale L.J. 1673 (2025). I consider this among the most important work I’ve written. For those who may have read an earlier draft, this draft is substantially rewritten, especially Part III, which develops the pro-voter approach more deeply building on the work of Robert Dahl and international human rights law.

Here is the abstract:

This Feature describes the stagnation and retrogression of election-law doctrine, politics, and theory, explains why these trends have emerged, and explores how to transform election law in a pro-voter direction.

It begins by detailing election law’s stagnation. After a short period of strengthening voting rights, courts (and especially the Supreme Court), acting along ideological—and now partisan—lines, have pulled back on voter protections in most areas of election law. Courts have deprived other actors, including Congress, election administrators, and state courts, of the ability to protect voters’ rights more fully. Politically, pro-voter election reform has stalled in a polarized and gridlocked Congress, and the voting wars in the states mean that ease of access to the ballot depends in part on where in the United States one lives. Election-law scholarship also has stagnated, failing to generate meaningful theoretical advances about the field’s key purposes.

The Feature then considers the more recent retrogression of election-law doctrine, politics, and theory to a focus on the very basics of democracy: the requirement of fair vote counts, peaceful transitions of power, and voter access to reliable information. In the aftermath of the 2020 election, liberal and conservative judges rejected illegitimate attempts to overturn Joe Biden’s presidential-election victory. Yet courts’ ability to thwart attempted election subversion remains a question mark in light of the Supreme Court’s recent decisions in Trump v. Anderson and Trump v. United States. Congress came together at the end of 2022 to pass the Electoral Count Reform Act to deter future attempts to manipulate Electoral College rules in order to subvert election results, but future bipartisan action to prevent retrogression seems less likely. Further, because of the collapse of local journalism and the rise of cheap speech, voters are less able to obtain reliable information to make voting decisions consistent with their interests and preferences. Meanwhile, parties have become potential paths for subversion. Party-centered election-law theory, and the First Amendment marketplace-of-ideas thesis, have yet to incorporate these emerging challenges.

Finally, the Feature considers the potential to transform election-law doctrine, politics, and theory to favor voters. Election law alone is not up to the task of saving American democracy. But it can help counter stagnation and thwart retrogression, beginning by assuring continued free and fair elections and peaceful transitions of power. More broadly, a pro-voter approach to election law grounded in political equality engages legal doctrine, political action, and election-law scholarship to further five principles: all eligible voters should have the ability to register and vote easily in fair, periodic elections; each voter’s vote should carry equal weight; free speech, a free press, and free expression should assure voters reliable access to accurate information to enhance their capacity for reasoned voting; the winners of fair elections should be recognized and able to take office peacefully; and political power should be fairly distributed across groups in society, with particular protection for those groups who have faced historical discrimination in voting and representation.

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“Justice Department instructed to dismiss legal challenge to Georgia election law”

AP:

U.S. Attorney General Pam Bondi on Monday instructed the Justice Department to dismiss a lawsuit challenging a sweeping election overhaul that Georgia Republican lawmakers passed in the wake of President Donald Trump’s 2020 election loss in the state.

The lawsuit, filed in June 2021 under former President Joe Biden, alleged that the Georgia law was intended to deny Black voters equal access to the ballot. Bondi said the Biden administration was pushing “false claims of suppression.”

“Georgians deserve secure elections, not fabricated claims of false voter suppression meant to divide us,” she said.

The law was part of a trend of Republican-backed measures that tightened rules around voting, passed in the months after Trump lost his reelection bid to Biden. Known as SB 202, the law added a voter ID requirement for mail ballots, shortened the time period for requesting a mailed ballot and resulted in fewer ballot drop boxes available in populous metro Atlanta counties….

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“Analyzing the Benefits of Artificial Intelligence to Racially Inclusive Democracy”

Spencer Overton has posted this draft (which I can’t wait to read) on SSRN (forthcoming, Utah Law Review). Here is the abstract:

Over the past two decades—as the United States has grown more ethnically diverse—the U.S. Supreme Court has dismantled key voting rights protections, and state legislatures have erected a record number of voting restrictions. Largely oblivious to this growing gap in legal protections, several artificial intelligence (“AI”) optimists have claimed that AI can help usher in a more inclusive, participatory, and unbiased democracy. Such an outcome, however, is far from guaranteed. This Article is the first to comprehensively examine the extent to which AI—and the legal frameworks that regulate it—can advance racially inclusive democracy. It responds to the AI optimism literature by offering a clear-eyed assessment of relevant political, racial, and economic barriers to AI making democracy more racially inclusive. This analysis reveals that some of the AI optimists’ technological and legal proposals could, in fact, exacerbate racial disparities in political power and harm voters of color. The Article acknowledges, however, that certain AI tools, if applied appropriately, could help reduce turnout gaps and increase government responsiveness to communities of color. Although good AI law is no substitute for an updated Voting Rights Act and a Supreme Court committed to protecting voting rights, embedding values of racial inclusion into AI law at this formative stage could shape the trajectory of our democracy. For example, laws ensuring broad access to public AI infrastructure (particularly in historically marginalized communities) and robust AI accountability laws can foster conditions in which AI is more likely to be used to benefit racially inclusive democracy.

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Travis Crum: Callais Oral Argument Recap

The following is a post from Travis Crum:

Here’s a recap of today’s oral argument in Louisiana v. Callais.

At the outset, a short summary of what Callais is about. Callais is an old-school, 1990s-style Shaw challenge. The Callais plaintiffs—a group of non-Black voters—are challenging majority-Black Congressional District 6 (CD 6) as an unconstitutional racial gerrymander. So why did Louisiana draw CD 6? For that answer, we turn to prior Section 2 litigation known as Robinson v. Ardoin. After the 2020 redistricting cycle, the Robinson plaintiffs challenged Louisiana’s congressional redistricting plan, seeking a second majority-Black district. Louisiana lost in both the district court and the Fifth Circuit. Rather than prolong the litigation to final judgment and potentially have a court-drawn map imposed, Louisiana drew a new congressional map. Instead of using the remedial district requested by the Robinson plaintiffs, Louisiana drew CD 6 as an elongated majority-Black district that stretched across the State. Louisiana’s stated reason for doing so: to protect high-value Republican incumbents, like Speaker of the House Mike Johnson.

Under Shaw, if race predominates over traditional redistricting principles, the challenged district needs to survive strict scrutiny. Once strict scrutiny is triggered, a common defense is for the State to say that it had a “strong basis in evidence” for believing that it would have been liable absent it’s use of race. Here, the Robinson litigation is Louisiana’s justification for why it would have been liable under Section 2.

The argument focused on a core tension in the case. To the extent that Louisiana’s motives for drawing an elongated CD 6 were partisan, that helps the State at the predominance stage. But if the Court gets to strict scrutiny, then the partisan motives cut against Louisiana, as CD 6 appears to no longer be remedial. Several Justices—Thomas, Kagan, Kavanaugh, Barrett, and Jackson—asked questions targeted at this tension. Granted, the bulk of the questioning focused on the back-end, strict scrutiny part of the analysis: whether the Robinson litigation was a “good reason” for thinking Louisiana was going to be liable and whether CD 6 is an appropriate remedial district.

A few key takeaways. First, no one disputes that race and the Robinson litigation were a but-for cause in the re-drawing of Louisiana’s congressional districts. But that is not the relevant inquiry. Shaw, as construed in Miller, requires that race predominate in the drawing of CD 6. And if the Court wants a narrow decision, then it will decide the case on predominance grounds.

Second, the battlelines during oral argument reverted back to the old Shaw line-up: conservative Justices skeptical of the use of race whereas liberal Justices siding with the State. Indeed, Justice Alito—and to a lesser extent Justice Gorsuch—wanted to re-litigate both Robinson and Milligan.

Third, Justice Thomas asked questions solely about Section 2 and as if his recent Alexander concurrence had never been issued—a topic that sparked some back-and-forth between Rick Pildes and me on the blog over the past few days (see here, here, and here). But unless Thomas is going to tear up that concurring opinion, he will deem the Callais plaintiffs’ challenge a non-justiciable political question, thus providing a vote for Louisiana.

Fourth, there was a lot of discussion about the propriety of a State following federal court orders in separate litigation. The elephant in the room was obvious: the specter of the Trump Administration defying a court order and the ongoing dispute in Judge Boasberg’s courtroom over the deportation of Venezuelan migrants to an El Salvadoran prison. In some ways, that ostensibly separate case might motivate some of the institutionalist Justices to say something on the “strong basis in evidence” standard and the importance of following presumptively valid federal court orders.

Furthermore, to the extent the conservative Justices are concerned about imposing “competing hazards of liability” on mapmakers, they should not ratchet up the requirements for the “strong basis in evidence” standard. Put differently, looking under the hood at the Robinson litigation will only encourage more Shaw challenges and force States back into court to defend their remedial redistricting plans.

Fifth, Justice Kavanaugh raised his temporal/durational questions that we saw in his SFFA and Milligan concurrences. In my view, the LDF lawyer adeptly explained why Section 2, as interpreted in Gingles, responds to current conditions. But it is also worth pointing out that Section 2 does not classify on the basis of race in the same way that affirmative action plans do. Section 2 requires only the consideration of race in the decision-making process. I wouldn’t be surprised if Kavanaugh writes a separate opinion on his temporal point even if Louisiana ultimately prevails.

So what should we expect from the Court in June? And how do we count to five? There could be some strange bedfellows and multiple opinions. As noted, Thomas’s Alexander concurrence makes him a vote for Louisiana. The three liberal Justices were clearly in Louisiana’s camp. Alito and Gorsuch will side with the Callais plaintiffs. That makes the Chief, Kavanaugh, and Barrett the swing votes. The Chief seemed skeptical of the Robinson’s plaintiff’s compactness argument about the remedial district. Setting aside his temporal questions, Kavanaugh seemed open to a partisan defense, either at the predominance stage or at the remedial part of the inquiry. Barrett appeared to be leaning toward Louisiana on its partisan gerrymandering defense. Thus, I predict that Louisiana will be able to cobble together five votes one way or another.

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Travis Crum: The Consequences of Overturning Shaw and the Continuing Relevance of Section 2

The following is a guest post from Travis Crum:

Over the weekend, Rick Pildes published a response to my post—which built on a recent essay—calling on the Supreme Court to overturn Shaw’s racial gerrymandering cause of action in Louisiana v. Callais. I appreciate Pildes’s engagement on this important question. After all, he’s been a consistent—and rare—academic defender of Shaw. Furthermore, Pildes won over a lot of Shaw skeptics in the 2010s in the ALBC litigation.

The thrust of Pildes’s post is consequentialist reasoning. He raises the specter of mapmakers creating super-packed 80% BVAP districts absent the external restraint imposed by Shaw. According to Pildes, Gingles’s first prong, as interpreted in Bartlett v. Strickland, means that those Black voters have no Section 2 claim to an additional district. A couple of responses.

Pildes’s hypothetical assumes that there are no additional, neighboring pockets of Black voters. Put differently, the hypo supposes that District A is 80% BVAP and that neighboring Districts B and C are almost entirely non-Black. That may well be true in some places, but it is certainly not the case in many parts of the country.

Indeed, Section 2 has been used to unpack super-majority districts of this magnitude. In Black Political Task Force v. Galvin, 300 F. Supp. 2d 291 (D. Mass. 2004), a three-judge district invalidated a 78% BVAP district on Section 2 grounds—and did so assuming what would become Bartlett’s 50%+1 rule. And in Bone Shirt v. Hazeltine, 336 F. Supp. 2d 976 (D. S.D. 2004), a district court found a Section 2 violation after Native American voters had been packed into a 90% super-majority district. Put simply, Section 2 can be used to unpack minority voters.

Pildes also points to ALBC as a prime example of where Shaw has proven helpful to minority voters. In that case, most of the challenged state-legislative districts were 60-70% BVAP. Setting aside whether the lower court in ALBC correctly rejected the Section 2 claim—which, as Pildes alludes to, was the primary claim below—the key question today is whether, after Milligan and Alexander, plaintiffs would more likely win under Section 2 or Shaw. The Milligan Court endorsed Section 2, and that litigation showcased how new redistricting algorithms can identify compact majority-minority districts more easily. By contrast, the Alexander Court drew a big red circle around the partisan gerrymandering defense that most election law scholars/practitioners had been expecting after Rucho. Although Shaw helped minority plaintiffs during the 2010 redistricting cycle, I predict that will be a high watermark.

In constructing his hypothetical, Pildes claims that a mapmaker might draw the 80% BVAP district because it wants “to minimize Democratic voting [power] in surrounding districts or to weaken black political influence.” These two explanations actually undercut Shaw’s utility.

Pildes’s first mapmaker motive illustrates how racial gerrymandering claims are oftentimes partisan gerrymandering cases in disguise. The problem here is Rucho. The solution is not Shaw, especially after Alexander provides a strong “party, not race” defense. In my view, Callais reinforces that the original, 1990s version of Shaw lays around like a loaded weapon for litigants to pick up and challenge Section 2’s constitutionality.

Pildes’s other mapmaker motive raises the specter of discriminatory intent. To be sure, the Court has not found an intentional racial vote dilution violation since Rogers v. Lodge in 1982, and it has never done so in a single-member redistricting case. As now-Judge Dale Ho once pointed out, the 2010s wave of Shaw cases look a lot like discriminatory intent claims by another name. The harm, then, is not race consciousness subordinating traditional redistricting principles, but the bare desire to harm Black voters’ political prospects.

In any event, Section 2 also prohibits discriminatory results, and the whole point of that inquiry is to determine when minority voters lack an equal opportunity to elect their candidates of choice. If, under Pildes’s hypo, minority voters lack the numerosity to form additional single-member districts or are not residentially segregated, then Section 2 does not apply. And that limit should be viewed as a virtue—not a vice—in defending Section 2’s constitutionality, a point the Milligan Court emphasized.

Setting aside consequentialist reasoning, my ELB post and my Columbia Law Review essay argue that Shaw is inconsistent with originalist principles. Originalism is not my preferred method of constitutional interpretation, but it predominates on the Court today. Given this reality, I have chosen to engage with originalists on their own terms by investigating the original understanding of the Fifteenth Amendment. That inquiry demonstrated that Shaw and Miller—decisions written by swing Justices O’Connor and Kennedy—do not pass the originalism test. Pildes might well be right that a majority of the Court will not follow Thomas’s lead, but I suspect that no one in the 1990s thought that Thomas would ever reject Shaw. Time will tell how Shaw fares in our new originalist age.

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“Voting Rights Act Enforcement Increases Turnout”

New Brennan Center report:

Inequities are a persistent feature of U.S. elections. As our colleagues have documented, the gap in voter participation between white and Black Americans has increased since the Supreme Court, through its 2013 Shelby County v. Holder decision, removed key protections in the Voting Rights Act. One of the law’s remaining safeguards, Section 2, prohibits any electoral practice that dilutes the voting strength of a racial or ethnic group. By analyzing successful Section 2 challenges that resulted in new majority-Black districts in the 2024 election, we find that appropriate enforcement of the Voting Rights Act to address cases of race discrimination increases participation among Black registered voters and reduces the racial turnout gap.

In Alabama, Georgia, and Louisiana, courts ordered new maps to be drawn after finding that the previous district plans violated Section 2 by diluting the voting power of Black voters. These maps created a new majority-Black district in each state for the 2024 election. Notably, the remedial district plan drawn in Alabama is the first to feature two majority-Black districts in the state’s history.

The creation of majority-Black districts is crucial to giving Black Americans the equal opportunity to elect a candidate of their preference. Black voters nationally, and in these three states, have turnout rates that trail those of white voters due to a plethora of reasons, including voter ID and other restrictive laws, inaccessible polling places, high rates of incarceration, and political disaffection stemming from historical legacies of oppression and disenfranchisement.

While research from the 1990s on minority-opportunity districts did not find consistent turnout effects, more recent analysis from 2016 takes advantage of larger datasets (like state voter registration rolls) to show that Black turnout increases as the Black share of the district population increases.

Using voter registration data in Alabama, Georgia, and Louisiana for the 2024 election, we find that being drawn into a majority-Black district increased Black participation by up to six percentage points and reduced the white–Black turnout gap by two to four points. …

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