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.