Another ELB contributor has entered the Callais fray. Today, I filed an amicus brief in support of the Robinson appellants in this fall’s blockbuster voting rights case, Louisiana v. Callais. You can find my amicus brief here. Thanks to Rakesh Kilaru, Dan Epps, Allison Walter, and the paralegal team at Wilkinson Stekloff LLP for help with the brief.

Drawing on my scholarship about the Fifteenth Amendment, the amicus brief makes three arguments. First, as originally understood, the Equal Protection Clause did not apply to voting rights. Rather, it was the Fifteenth Amendment that enfranchised Black men nationwide and granted Congress robust enforcement authority. Thus, the Fifteenth—not the Fourteenth—Amendment is the constitutional touchstone for the fight against racial discrimination in voting.

Second, when viewed through the lens of the Fifteenth Amendment, Shaw should be overturned. I suspect that this claim will spark some controversy in the field and among voting rights lawyers. Although Shaw was briefly used to advance minority voting rights in the 2010s, it is not worth the candle. Callais demonstrates that Shaw’s colorblind approach to redistricting threatens Section 2’s constitutionality. Moreover, Shaw is indefensible as written from an originalist perspective, something that Justice Thomas recognized last year in his Alexander concurrence and that the other originalist Justices have not yet grappled with. For starters, the Shaw Court reached for the wrong constitutional provision. It applied equal protection principles to what should be a Fifteenth Amendment case. More fundamentally, the Reconstruction Framers’ views on racially polarized voting would have been labelled by the Shaw Court as impermissible racial stereotypes.Stated bluntly, the Shaw Court’s approach reflects modern, normative views on racial politics, not the views of the Reconstruction generation. The other stare decisis factors also militate in favor of overruling: Shaw and its predominant factor standard are unworkable, inconsistent with precedent, and have been undermined by recent factual and legal developments.

Third, Section 2 is a constitutional exercise of Congress’s Fifteenth Amendment enforcement authority. Because that power is governed by Katzenbach’s deferential standard, the Court need not answer the antecedent question of whether racial vote dilution is prohibited by Section One of the Fifteenth Amendment. Rather, the question is whether Congress could have reasonably concluded that racial vote dilution is a denial or abridgment of the right to vote free of racial discrimination. It assuredly is.

One last aside. We should probably start calling this case Robinson v. Callais after Louisiana flipped sides and attacked Section 2’s constitutionality. It’s not terribly surprising that Louisiana did so, but the Louisiana v. Callais captioning gives a false impression of what the case is now about.