Harvard Law School’s Election Law Clinic filed this amicus brief yesterday in Merrill v. Milligan on behalf of Jowei Chen, Chris Elmendorf, Chris Warshaw, and me. Here are some excerpts from the brief’s introduction:

There’s a narrative that frames Section 2 of the Voting Right Act as an exceptionally—overly—potent provision. On this view, most Section 2 plaintiffs claiming racial vote dilution win their cases. Winning is easy since, supposedly, a plaintiff group merely has to “establish[] that it is mathematically possible for it to control another seat . . . and that it is a distinct political group.” Holder v. Hall, 512 U.S. 874, 939 (1994) (Thomas, J., concurring in the judgment). This perspective on Section 2 also sees the measure as “a right to a form of proportional representation” for minority communities. Thornburg v. Gingles, 478 U.S. 30, 85 (1986) (O’Connor, J., concurring in the judgment). Allegedly, racial disproportionality is Section 2’s test for liability, and racial proportionality is the necessary result of the provision’s operation.

This narrative is flatly wrong. In fact, under current law, Section 2 is a highly constrained measure under which plaintiffs typically lose and rarely achieve proportional representation. This brief’s first goal is thus to inform the Court about the realities of Section 2 litigation, which are so different from some of the myths. The brief’s other aim is to explain what would happen if the Court endorsed Appellants’ proposal to render race-blind Gingles’s first prong. In violation of Congress’s clear instructions, minority voters would have “less opportunity . . . to elect representatives of their choice”—exactly what Section 2 forbids. 52 U.S.C. § 10301(b). Because of this diminished representation by their preferred candidates, “a significant lack of [governmental] responsiveness” to minority voters’ substantive interests would follow as well. S. Rep. No. 97-417, at 29 (1982). . . .

Plainly, a provision that leads to just two new minority opportunity districts being created over two redistricting cycles is unlikely to dramatically impact minority representation. And indeed, minority representation remains disproportionally low almost across the board. At the congressional level, for example, the fraction of Black opportunity districts is currently below the Black share of the eligible voter population in every state but three. Likewise, only one state (California) has attained a proportional share of Hispanic congressional opportunity districts. See Warshaw et al., supra, at 20-22 figs.6 & 7. . . .

The existing Gingles framework, then, tightly limits Section 2’s reach. Appellants nevertheless argue for an additional shackle: a rule that Gingles’s first prong can be satisfied only by a race-blind map, like one spit out at random by a computer without considering race. Contradicting Section 2’s text and purpose, this proposal would significantly reduce minority representation in America, undoing decades of progress. Consider Alabama’s state house plan. It currently contains twenty-seven Black opportunity districts. Race-blind computer simulations, though, typically produce twenty-one to twenty-four Black opportunity districts. See Chen & Stephanopoulos, supra, at 906-07. Under Appellants’ proposal, Alabama could thus eliminate three to six Black opportunity districts without running afoul of Section 2.