Amicus Brief on the Fifteenth Amendment in Louisiana v. Callais

election law and constitutional law, redistricting, Supreme Court, Voting Rights Act

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.

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Ugh: “Trump’s DOJ seeks voting equipment in Missouri ahead of 2026 election”

authoritarian threats in US, chicanery, election subversion risk, voting technology

WaPo:

A top official in President Donald Trump’s Justice Department recently sought access to voting equipment used by two Republican clerks in Missouri during the 2020 election, an unusual request from federal officials amid continued efforts by the president to malign the integrity of the nation’s voting systems.

Trump overwhelmingly won each of his three elections in Missouri, yet many of his supporters there and elsewhere continue to champion the president’s false claim that voting equipment was rigged against him in 2020 and that ballots should be tallied by hand. The Trump administration, working with an intermediary, previously sought access to voting equipment in Colorado, but the effort in Missouri appears to originate directly from the Justice Department.

The two Missouri clerks rejected the request from Andrew “Mac” Warner, a top official in the Justice Department’s civil rights division and a former West Virginia secretary of state who has embraced false claims about the 2020 election. One of the clerks cited state statutes that restrict who can access voting equipment, and the other told Warner he no longer has the Dominion Voting Systems equipment he was looking for.

“They wanted to test a machine that was used during the 2020 election,” Jasper County Clerk Charlie Davis said in an interview last week with The Washington Post. “I just told him we upgraded our machines. Our vendor has all of the old machines so we don’t have access.”.

Days later, Davis got a call from his friend Jay Ashcroft, who oversaw the 2020 and 2024 elections as Missouri’s secretary of state. Ashcroft did not describe his interest in the machines, or whether he was working with federal authorities, Davis recalled. Ashcroft, the son of former U.S. attorney general John Ashcroft, urged Davis to cooperate with the Justice Department and wondered if he would change his mindif he was given a replacement machine, according to Davis. Davis told him he no longer had the equipment….

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“Richard Bernstein: The Trump Administration’s Arguments About the National Guard Threaten the 2026 Elections”

authoritarian threats in US, election subversion risk

Must-read:

Yesterday, federal District Judge Charles Breyer ruled that the Trump Administration’s federalization of the National Guard in Los Angeles to assist in immigration law enforcement violated the Posse Comitatus Act, which is 18 U.S.C. section 1385. The Posse Comitatus Act bars use of the military for law enforcement, “except in cases and under circumstances expressly authorized by the Constitution or Act of Congress.” The Trump Administration argued that the National Guard authorization statute on which it relied—10 U.S.C. section 12406(3)—is an express exception. Judge Breyer’s ruling to the contrary, at pages 26-32 of his decision, was his core holding. Although the Los Angeles deployment was not about elections, if an appellate court adopts certain arguments made by the Trump Administration in that case, such a decision could set our country on a path to military interference in the 2026 elections.

It would be criminal for any Administration to use the military to interfere with voting or vote counting in any election. In particular, 18 U.S.C. sections 592 and 593 (“Sections 592 and 593”) criminalize both having troops at the polls and military interference with voting, conducting elections, or election officers. These statutes apply to use of both the regular military and members of National Guard units “called into Federal service.” 10 U.S.C section 12405; see also 10 U.S.C. section 10106. Although Sections 592 and 593 apply only to officers and members of the military, 18 U.S.C. section 2 also makes it criminal for others—for example, a member of the Cabinet or a White House official—to aid, abet, counsel, command, induce, procure, or willfully cause violations of Sections 592 and 593. And 18 U.S.C. Section 371 makes it criminal for both military and non-military officials to conspire to violate Sections 592 and 593.

But, in the Los Angeles case, in addition to the Trump Administration’s expansive interpretation of 10 U.S.C. section 12046(3), the Administration has raised three arguments that, if adopted by the Ninth Circuit or the Supreme Court, would disable federal court enforcement of Sections 592 and 593 and thus encourage using the military to interfere in the 2026 elections. The first such Trump Administration argument is that the President has an inherent power to use the military to protect federal property, federal personnel, and federal functions and that this inherent protective power is not subject to federal statutory limitations. One can almost hear the Trump Administration arguing in 2026 that it is using the military to protect the federal function of federal elections. But Judge Breyer’s decision at 33-42 exhaustively surveyed the precedents and correctly decided that any inherent protective power to use the military domestically is subject to federal statutory restrictions. Under this ruling, no inherent protective power would override the statutory prohibitions in Sections 592 and 593 against employing the military to interfere with elections….

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“Utah’s congressional maps must be redrawn right away, judge rule”

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AP:

A judge has ruled that Utah lawmakers must proceed with redrawing the state’s congressional district map right away, pointing to Texas and California in rejecting their argument that the job can’t be done in time for the 2026 midterm elections.

The ruling keeps Utah firmly among states where partisan redistricting battles stand to tilt the outcome of the next congressional election.

Utah lawmakers were wrong to disregard an independent commission’s map in drawing one that has been used for the 2022 and 2024 elections, Salt Lake County District Judge Dianna Gibson ruled Aug. 25.

The map did away with a district in the Salt Lake City area that has swung between Republicans and Democrats in favor of a map where four districts, each with a piece of the urban corridor, have been won by Republicans with wide margins….

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Quote of the Day

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I was reading Nick Stephanopoulos’ amicus brief in the LA v. Callais case and was struck by this statement in his summary of argument:

“Based on these [the 2020 and 20240] elections’ results, Black vote-dilution plaintiffs would be unable to prove sufficient racial polarization in most places, and Hispanic litigants would be unable to do so almost everywhere.”

Because a violation of Section 2 of the Voting Rights Act in the redistricting context requires proof that voting is racially polarized (among other factors), that would mean, if Nick is right, that less is at stake as a practical matter in the Supreme Court’s Callais case than many commentators assume. As Nick concludes, in the deep South, polarized voting and residential segregation is still strong, which means this is where Sec. 2 is likely to continue to have its most significant effects.

In theory, intentional discrimination claims could still be brought, but if voting is not racially polarized, there would be less of a partisan motivation to engage in intentional discrimination in designing districts.

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