At first glance, the SG’s brief in Callais seems less radical than those of the appellees and of Louisiana. The latter argue that Section 2 is flatly unconstitutional, while the SG’s brief merely recommends modifying the Gingles framework in certain respects. The Gingles framework certainly isn’t sacrosanct, and my amicus brief, for example, also suggests a series of refinements to it. The SG’s brief, however, is a wolf in sheep’s clothing. If adopted, its recommendations would effectively terminate most modern Section 2 racial vote dilution litigation. Its recommendations would also collapse the distinction between racial vote dilution and racial gerrymandering claims.
The main problem with the SG’s brief is its proposal that the first Gingles precondition incorporate jurisdictions’ political goals: in particular, their aims to benefit the line-drawing party and to protect incumbents. Under this proposal, a plaintiff wouldn’t only have to prove that an additional, reasonably-configured, majority-minority district could be drawn. The plaintiff would also have to show that such a district could be drawn without disturbing the map’s existing bias in favor of the line-drawing party and insulation of incumbents. As the SG concedes, this requirement has no basis in the Court’s case law. “[T]his Court has found the first Gingles precondition satisfied without considering partisan effects, even where the plaintiffs’ illustrative map likely would cost the majority party a seat.”
Beyond its novelty, the SG’s proposal is flawed because it focuses on discriminatory intent, not discriminatory results. The rationale for requiring a plaintiff to match a plan’s existing partisan performance is to eliminate partisanship as a possible governmental purpose. If partisanship isn’t the objective of a challenged plan, the logic goes, it’s more likely that the plan is intended to discriminate on racial grounds. But as everyone familiar with Section 2’s history understands, the whole point of the 1982 amendments to Section 2 was to remove discriminatory intent as an element of liability. As Justice Kavanaugh put it in his concurrence in Milligan, “all members of this Court today agree” that “the text of §2 establishes an effects test, not an intent test.” The SG’s proposal therefore defies the Court’s consensus and tries to transform Section 2 into the very thing—an intent test—that Congress didn’t want when it revised the provision.
By turning Section 2 into an intent test, the SG’s proposal would also conflate racial vote dilution with racial gerrymandering. Unlike racial vote dilution, racial gerrymandering is all about intent. A district is a presumptively unconstitutional racial gerrymander if it was created with a racially predominant motive. For this reason, as the SG acknowledges, racial gerrymandering doctrine already includes an effective requirement (technically a strong admonition) that a plaintiff submit an alternative map that matches the challenged plan’s partisan performance. In the racial gerrymandering context, this condition makes (some) sense because it helps to establish race, not politics, as a district’s primary goal. But in the racial vote dilution context, this condition makes no sense at all because discriminatory intent—the mental state arguably revealed by an alternative map—is legally irrelevant.
A final feature of the SG’s proposal is that it would doom most Section 2 claims in areas where most minority voters are Democrats and most white voters are Republicans. In these areas—which notably include much of the South—an additional minority-opportunity district can usually be drawn only at the cost of an existing Republican district. This swap of an old Republican district for a new minority-opportunity district, however, is exactly what the SG’s proposal would prevent.
By the same token, the SG’s proposal would greenlight the demolition of many existing minority-opportunity districts, especially in the South. Suppose the SG’s position were adopted and Louisiana (the home of Callais) decided to get rid of both of its congressional minority-opportunity districts in order to craft an all-Republican map. Any Section 2 plaintiff would then have to prove that a reasonably-configured, majority-minority district could be drawn while preserving the plan’s all-Republican delegation. In all likelihood, this showing couldn’t be made because, under conditions of severely racially polarized voting, any majority-minority district would almost certainly elect a Democrat, not a Republican. Accordingly, the SG’s position would render Section 2 a dead letter in the southern jurisdictions where the provision has historically had its greatest impact. In other words, the SG’s position would set the stage for the greatest reduction in minority representation since the dark days of Redemption in the late nineteenth century.