I’ve previously noted a number of problems with the SG’s proposal in Callais, under which demonstrative maps would have to achieve the enacted plan’s political goals in order to satisfy the first Gingles precondition. The proposal has no basis in the Supreme Court’s Section 2 jurisprudence—indeed, it would have led to the opposite outcome in cases like Milligan and LULAC. The proposal wrongly focuses on discriminatory intent rather than discriminatory effect. The proposal effectively eliminates the distinction between racial vote dilution and racial gerrymandering claims. And the proposal would allow most minority-opportunity districts in the South to be dismantled without violating Section 2.

To this (already damning) list of objections, I want to add one more, this one rooted in Section 2’s extraordinarily influential legislative history. During the Senate Subcommittee on the Constitution’s 1982 hearings on amending Section 2, arguments much like the SG’s were repeatedly aired—and repeatedly rejected. Witnesses who supported Section 2’s revision made clear that, in their view, political goals like partisan advantage or incumbent protection were not valid justifications for diluting the electoral influence of minority voters. The figures who thought those goals could excuse racial vote dilution were the opponents of the 1982 amendments, the losers of this political battle. The SG’s proposal thus amounts to gifting these critics a victory they were unable to win on the congressional floor.

Consider this exchange between former Assistant Attorney General for Civil Rights Drew Days (a proponent of the 1982 amendments) and Stephen Markman (the chief counsel of the Subcommittee on the Constitution, then chaired by Sen. Orrin Hatch, the most vocal opponent of Section 2’s revision). Markman asked Days if there was “a distinction between redistricting proposals that attempted to limit minority strength because of racial prejudice and those efforts designed to limit the strength or the impact of a particular neighborhood that might have been minority-dominated because of political or partisan identification.” Days responded: “If the intent or the effect of a practice [is] to dilute or diminish minority voting strength,” it doesn’t matter “what party they were members of. That [is] not a consideration.”

Continuing the colloquy, Markman asked about “a genuinely colorblind architect of a districting plan [who] took a look at a neighborhood and he identified it as a predominantly Democratic or a predominantly Republican neighborhood, and created district lines designed to maximize or minimize the impact of that neighborhood purely on that basis.” Days again answered: “[W]hether blacks [are] Republicans or Democrats or Socialists or whatever they may happen to be—noneuclidian Druids—I do not think that is important. What is important is, are they blacks, are they Hispanics, are they Chinese, and are they having their political power affected?”

Summing up the exchange, Markman stated: “You are … saying that this neighborhood would be immune to a gerrymander because they happen to be black?” “Yes, that is right,” replied Days. “It is one of the few immunities we have.”

In a similar vein, take Markman’s questioning of Julius Chambers (then the head of LDF and a backer of the 1982 amendments). Markman again asked if there was “a distinction between those districting plans designed to limit the influence of a predominantly minority neighborhood because of its political identification as opposed to that redistricting plan designed to limit their influence because of their race or color.” Like Days, Chambers responded that there was no difference between these plans as far as the Voting Rights Act was concerned. Unlike a partisan group, “a black group is clearly discernible. It is not difficult to [determine] that group’s representation, that is, does this particular legislation or this particular practice affect an identifiable group? Blacks are identifiable.”

Sen. Hatch himself voiced a version of Markman’s question to NYU law professor Norman Dorsen (another supporter of Section 2’s revision). “Assume … a State senate has no black members but four districts have very substantial black minorities.” Then, “[t]he legislature decides to maintain current lines for these four districts for a variety of political reasons—that is, to protect incumbents—but there is no racial motivation at all.” If “a section 2 action” were brought, would a court have to “find[] that the reapportionment plan is illegal and order[] a redistricting plan to create two districts with black majorities”? Yes, Dorsen answered, this “result would have to follow,” especially given the “history of racism” that was also part of Sen. Hatch’s hypothetical.

Beyond these exchanges, several witnesses in the 1982 hearings explained in their prepared statements that, under the amended Section 2, racial vote dilution should be cognizable even if mapmakers’ objective was political. Mississippi state senator Henry Kirksey described his state’s 1981 congressional “‘Least Change plan,” which “depriv[ed] blacks of a majority in any of the five districts.” The plan was adopted over other options that included a Black opportunity district because “adoption of one of the alternative plans would [have] jeopardize[d] the reelection chances of Mississippi’s all-white congressional delegation.” According to an advocate of the Least Change plan, “[t]o trade these [chances] for the symbolism of electing a black would throw away real political considerations.” Notwithstanding this political rationale for the Least Change plan, Kirksey argued that Section 2, as revised, should invalidate the map. “[T]hese facts should be sufficient to prove that the rights of blacks voters are violated by the 1981 plan.”

Likewise, Chambers discussed a series of North Carolina state legislative plans in the 1960s, 1970s, and 1980s. All these plans relied on “large multi-member districts,” which “predictably led to the subversion of concentration[s] of minority citizens into the larger white population.” “The overriding motivation” for the plans, though, was not racial animus but rather “to protect the white incumbents.” Still, Chambers maintained, the amended Section 2 should reach the plans. “Amending Section 2 … will revive the private lawsuit as an effective tool for … opening up the political process [in North Carolina and nationwide] to black voters.”

As a last example, Hoover Institution professor John Bunzel (a foe of the 1982 amendments) asked in his remarks: “[I]f blacks are mostly Democrats in, say, a predominantly Republican county, is their vote to be considered diluted when a black candidate loses, even when it is agreed by everyone that race had nothing to do with it?” Bunzel opposed Section 2’s revision partly because he believed the answer was yes.

The upshot of all this material is relatively clear. Many of the key participants in the 1982 hearings contemplated a notion much like the SG’s proposal in Callais: that district maps not be deemed dilutive if they diminish minority electoral influence for political instead of racial reasons. But, without exception, these figures thought this notion didn’t apply to the proposed amendments to Section 2. Sen. Hatch, Markman, and Bunzel certainly wished the notion did apply. But they recognized it didn’t by, for instance, critically quoting Days’s and Chambers’s testimony in the Subcommittee on the Constitution’s report recommending the rejection of most of the amendments.

That Subcommittee report was later supplanted by the famous report of the entire Senate Judiciary Committee—the report that gave us the “Senate factors” that have guided Section 2’s interpretation ever since. But if the SG’s proposal in Callais is accepted, it will be as if the Subcommittee report, not the subsequent Committee report, ultimately prevailed. After all, it was the Subcommittee that thought about Section 2 then as the SG does now, and the full Committee—and the full Senate—that rebuffed that position.