I’ve already discussed a number of problems with the SG’s proposal in Callais (that plaintiffs’ demonstrative maps be required to achieve jurisdictions’ political objectives). Upon further reflection, I have two further concerns. One is that the proposal is inconsistent with the basic purpose of the first Gingles precondition. The other is that the proposal might end almost all vote dilution litigation (not “merely” suits where racial and partisan polarization coincide).

1. In Gingles and subsequent cases, the Supreme Court has been clear about the point of the first Gingles precondition. It’s to ensure that a lawful (and otherwise reasonable) remedial district could be drawn in which minority voters would be able to elect their preferred candidates. As the Court put it in Gingles, this requirement confirms that “minority voters possess the potential to elect representatives in the absence of the challenged structure or practice.” Or per Growe v. Emison, the first Gingles precondition “establish[es] that the minority has the potential to elect a representative of its own choice in some single-member district.”

Under this conception of the requirement, a demonstrative district must generally satisfy state and federal legal criteria. After all, any remedy for vote dilution must, at least, be lawful. The Court has also said that a demonstrative district must reasonably comply with traditional criteria (even ones not prescribed by state law). This rule lowers the risk of racial gerrymandering (which is usually absent when a district abides by traditional criteria). The rule also guarantees that any remedial district is not just lawful but “reasonable” in appearance as well.

The SG’s proposal, however, conflicts with the function of the first Gingles precondition. This is because the achievement of a jurisdiction’s political objectives is unnecessary for a district to be a lawful, reasonable remedy. Consider a demonstrative district that satisfies state and federal laws, complies with traditional criteria, but (against a jurisdiction’s wishes) changes the party that would likely win the seat. This district is a perfectly valid remedy for vote dilution. If adopted, it would improve the representation of the plaintiffs’ racial or ethnic group without violating any law or norm. Yet, under the SG’s proposal, the district would flunk the first Gingles precondition. Because it would change the partisan balance of the jurisdiction’s map, the district would be disallowed.

The SG’s proposal leads to this anomalous outcome—one at odds with the first Gingles precondition’s remedial orientation—because the proposal doesn’t have a remedial basis. Rather, as I’ve discussed previously, its very different aim is to ferret out intentional racial discrimination more effectively. For that purpose, incorporating a jurisdiction’s political objectives makes sense. If an additional majority-minority district could be drawn while complying with all applicable laws, norms, and political preferences, then it’s a reasonable inference that if the district wasn’t drawn, the failure to create it was racially motivated.

While this logic is sound enough, though, it has nothing to do with the remedial rationale for the first Gingles precondition. To the contrary, this is the logic of Alexander’s alternative-map requirement in the racial gerrymandering context. In that domain, the crucial question is one of intent: Did race or something else (like politics) predominate in the design of a district? To answer that question, the SG’s proposal is sensible—indeed, it recapitulates Alexander’s holding last year. With respect to racial vote dilution claims, however, the proposal is entirely inapt. It would transform an inquiry focused on available remedies into one probing for a primary racial motive.

2. In my earlier commentary on the SG’s proposal, I worried that it would doom most Section 2 claims in red states where minority voters tend to be Democrats and white voters tend to be Republicans. In these areas—including much of the South—the state would simply assert a political objective of maintaining its district plan’s current partisan balance. It would then be impossible for a plaintiff to satisfy the first Gingles precondition. No demonstrative map could both include an additional majority-minority district (as required by Bartlett) and preserve the plan’s partisan breakdown. Any new majority-minority district would be a Democratic district and would thereby change the plan’s partisan makeup.

I now think the SG’s proposal would have even more sweeping implications, effectively barring Section 2 claims everywhere, not just in the South. This is because the political objectives a state might invoke are hardly limited to maintaining a plan’s partisan balance. They could also include, inter alia, protecting all current incumbents, protecting certain incumbents but not others, increasing competition, decreasing it, preserving the cores of existing districts, and (in a challenge to at-large elections) keeping this electoral system over any alternative. I can’t imagine a Section 2 case in which some political goal wouldn’t be compromised by the construction of a new majority-minority district. To avoid liability under the SG’s proposal, then, all a state would have to do is announce the right goal. If it did so, a plaintiff would again be unable to both achieve this goal and draw an additional majority-minority district.

To illustrate, in the Callais oral argument, Hashim Mooppan referred to Harlem as a place where Section 2 claims would remain viable under the SG’s proposal. There, “[y]ou’ve got white Democrats, Black Democrats, and Hispanic Democrats who all live around the same area and who probably have at least sometimes different candidates of choice.” “If the State of New York was to draw a map in a way that … favors one of those racial groups, that’s the sort of situation where Section 2 could come in and say … there’s a reason to be worried.”

But this analysis implicitly assumes that maintaining a plan’s partisan balance is a state’s only possible political objective. It’s true enough that, in a heavily Democratic area like Harlem, this objective wouldn’t be undermined by a plaintiff’s demonstrative map, which would necessarily preserve the region’s all-Democratic delegation. But it wouldn’t take much creativity for New York to think of a different political goal that would be threatened by a new majority-minority district in Harlem. Maybe the new district would oust an incumbent whom New York would like to keep in office. Or maybe the new district would be too different from its predecessor, whose core New York would like to keep intact. Or maybe the new district would be too competitive (or too safe), while New York would prefer less (or more) competition. The point is that the list of plausible political aims is endless—meaning that so are the ways for states to skirt liability under the SG’s proposal.