I have written about the dangers of the Court killing off or significantly weakening Section 2 of the Voting Rights Act, via the surprise reargument in the Louisiana v. Callais case. If the Court rules Section 2 unconstitutional because it requires race-conscious redistricting, or seriously weakens it so that it has no power to force the drawing of districts in which minority voters have an opportunity to elect their candidates of choice, that will affect congressional, state, and local districts around the country where lines are drawn in compliance with Section 2.

But it also might affect the constitutionality of state Voting Rights Acts. Nine states have these acts, and they are all Democratic leaning states. They differ in their particulars but many are looser than Section 2 in that they would require a move from at-large election of local bodies when there is racially polarized voting (whites and minority voters generally prefer different candidates), even if the minority group is not large and compact enough to be able to draw a minority opportunity district.

A number of local jurisdictions under state VRAs have bristled under these requirements, from Newburgh, New York to liberal Santa Monica, California. There have been constitutional challenges to these state VRAs as being too race conscious, but so far these have not met with success.

But they may be successful depending on what the court does in Callais. The town of Newburgh, NY filed this amicus brief in the Callais case making just this argument:

This Court has repeatedly held that governments cannot make decisions that impact citizens’ rights and interests based upon race except in exceedingly narrow circumstances, such as remedying specific past discrimination. As relevant here, this Court has strongly suggested that Section 2 of the VRA stands at the outer boundaries of what the Equal Protection Clause, U.S. Const. amend. XIV, § 1, tolerates, assuming (but not holding) that Section 2’s race-based redistricting mandate satisfies strict scrutiny, see, e.g., Cooper, 581 U.S. at 292; Bartlett v. Strickland, 556 U.S. 1, 21–22 (2009) (plurality opinion); Wis. Legislature v. Wis. Elections Comm’n, 595 U.S. 398, 401–02 (2022) (per curiam); Allen v. Milligan, 599 U.S. 1, 30 (2023). This Court now appears to be considering whether Section 2, as cabined by Thornburg v. Gingles, 478 U.S. 30 (1986), can survive the Equal Protection Clause, including in light of this Court’s landmark decision in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, 600 U.S. 181 (2023) (“SFFA”).

While the Town agrees with Appellees that this Court should hold that Section 2 cannot survive SFFA as applied to redistricting, the Town submits this amicus brief to bring to this Court’s attention a serious problem that the Court’s decision will affect. Recently, certain States have engaged in what can only be described as “massive resistance,” Harrison v. NAACP, 360 U.S. 167, 175 (1959), to this Court’s Equal Protetion Clause jurisprudence. Reacting to this Court tightening the boundaries of what Gingles permits, including on constitutional-avoidance grounds, certain States have engaged in increasingly aggressive efforts to force their municipalities to racially discriminate. These States have done this by adopting ever-more-aggressive, race-based state VRAs that systematically eliminate the safeguards that this Court built into Section 2 in Gingles.

The New York VRA, over which the Town is currently litigating, brings these attacks on the Equal Protection Clause together in one grotesquely unconstitutional package, as it: (1) eliminates Gingles’ first and second preconditions; (2) mandates so-called “influence”-district claims, allowing a member of a minority group to assert a claim even where that group could only influence the outcome of an election; (3) authorizes so-called “coalition”-district claims, allowing a member of a minority group to assert a claim based upon a combination of multiple
racial groups; (4) eliminates the mandatory nature of Gingles’ second step by permitting plaintiffs to prove vote-dilution by showing that the common phenomenon of racial polarization exists, without also requiring satisfaction of a totality-of-the-circumstances inquiry; and (6) prevents courts from considering evidence that race-neutral factors like partisanship explain voting patterns, and much more.

An increasing number of States are following New York’s lead down this unconstitutional path. The various arguments that courts across the country have accepted in defense of state VRAs, including New York’s VRA, violate this Court’s case law. Those arguments are now before this Court in the briefs filed by certain amici supporting the Robinson Appellants, in defense of Section 2 of the VRA. The Town thus respectfully asks that when this Court resolves this case, that it make clear that all of the arguments are wrong. That would not only properly reject various arguments that these amici have raised in defense of Section 2, but help put an end to state-level VRA defiance of this Court’s Equal Protection Clause jurisprudence.