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 A time limit would be inappropriate for these laws since they neither rely on outdated data nor classify individuals based on their race.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/.