The Center for Election Confidence (“CEC”) today filed an amicus brief in Louisiana v. Callais (No. 24-109), urging the Supreme Court to protect equal voting rights in redistricting cases brought under Section 2 of the Voting Rights Act.

A core CEC principle is that “all eligible citizens [must be able to] vote freely within an election system of reasonable procedures that promote election integrity, prevent vote dilution and disenfranchisement, and instill public confidence in election systems and outcomes”. To further that goal, CEC argues three main points in its brief.

First, that the Voting Rights Act and the Constitution require districts to be compact and contiguous and to contain communities of interest. Those criteria are not separable, and considerations of race or reserved representation cannot subsume the traditional redistricting principles. Yet, the congressional districts drawn today bear no resemblance to the districts at issue in Thornburgh v. Gingles (1986), the seminal case.
Second, that the court provide clear instructions governing the compactness of remedial districts if Gingles is to survive, eradicating the combination of disparate pockets of minority voters in the name of achieving compactness by “maintaining communities of interest”. Dispersed groups of people do not share a “community of interest” simply because they have similar racial or ethnic backgrounds.
Third, that the “anything goes” approach to remedial district-drawing imposes significant election administration costs and undermines election integrity.

First,

While the VRA is intended to remedy unconstitutional and immoral efforts to limit the voting rights of minority communities, it is not a broad tool for reserving a set number of legislative seats for partisan or racial purposes, nor does Section 2 require race to predominate above all other considerations. As Justice Thomas noted in Holder v. Hall (1994),

The basic premises underlying our system of safe minority districts and those behind the racial register are the same: that members of the racial group must think alike and that their interests are so distinct that the group must be provided a separate body of representatives in the legislature to voice its unique point of view. Such a “system, by whatever name it is called, is a divisive force in a community, emphasizing differences between candidates and voters that are irrelevant.”

The Supreme Court rejected this sort of state-sponsored stereotyping in LULAC v. Perry (2005):

Consideration of “nonracial communities of interest reflects the principle that a State may not ‘assum[e] from a group of voters’ race that ‘they think alike, share the same political interests, and will prefer the same candidates at the polls.’’”

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Once the devious assumption that all members of a minority group think in lockstep is cast aside, “there is no basis to believe that a district that combines two far-flung segments of a racial group with disparate interests provides the opportunity that § 2 requires or that the first Gingles condition contemplates.” 

Yet, the current system of drawing district lines in the Section 2 context focuses first maximizing the number of reserved seats rather than on the equality of voting rights and opportunity among all racial, ethnic, and partisan groups.

Indeed, the remedial districts proposed by modern § 2 litigants often make such a mockery of traditional criteria that geographical integrity might just as well be abandoned altogether, comprising districts of people based on their race without regard to where they live. Districts that connect blocks of minority voters by traversing swamps, as in Miller [v. Johnson] (1994), or travelling narrow freeways as in Shaw II (1996), are contiguous in name only; they had might as well be separate ink blots on a map that share the same district number. 

Rather than focusing on the resolution of race-based injuries to equal voting rights, however, the litigation industrial complex that has grown up around Section 2 of the Voting Rights Act seems more focused on creating specific electoral outcomes.

The modern § 2 litigation movement has evolved into a political industry unto itself, similar to the DEI movement in college admissions, before the Court outlawed race-preferences in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U.S. 181 (2023). Race is being used in a cynical effort to draw district lines, based largely on stereotypes—people sharing the same skin color hundreds of miles apart are really one “community in interest,” they claim—and in circumstances far removed from the conditions that gave rise to the § 2 vote dilution theory in Gingles 40 years ago.

But, for the Section 2 litigation-industrial complex, the problems with America’s progress over the past several decades don’t stop there, as CEC notes in its brief: “Desegregation unsettles the Section 2 doctrine”, Professor [Nicholas] Stephanopoulos recounts, because where “minority populations are residentially integrated” and “a jurisdiction nevertheless encloses a dispersed minority group within a single district, then the district probably violates the constitutional ban on racial gerrymandering.”

And while our racial progress should be celebrated, the § 2 litigation industry laments that integration is a “problem” for their partisan cause. Undeterred by America’s racial progress and evolution, this permanent movement churns out § 2 cases all across the Nation as if we are all living in 1980s Mecklenburg County. 

Professor Stephanopoulos notes further that “residential integration is not one of § 2’s goals. But minority representation is one of them, and . . . it is imperiled by desegregation.”

The § 2 litigation movement does not celebrate this progress, however, since integration interferes with its partisan uses of § 2. Professor [Nicholas] Stephanopoulos, for example, calls integration a “problem” for the cause:
“The problems posed by integration are clearest with respect to Gingles’s first prong. Minority voters who are residentially integrated are the very opposite of a geographically compact group. In the Court’s terminology, they are diffuse rather than ‘insular,’ dilute rather than “concentrated.'”

Second,

Current VRA jurisprudence has become so far removed from its core that, “if you grant the premise [that a Section 2 violation may have occurred] then … at the remedial phase, anything goes”, to paraphrase a question posed by Justice Alito during the first oral argument in this case.

The Court should confirm once and for all that combining geographically disparate groups of minority voters is not permissible under the guise of “maintaining communities of interest” as a purported basis for achieving “compactness” or appropriate “configuration.” Such combinations rest on pernicious assumptions about minority groups that the Court has rejected in other contexts. Drawing district lines on blatantly racial assumptions should not get a special exemption from the Fourteenth Amendment. Instead, the Court should affirm that “compactness” must incorporate the historical meaning of a “district” as a recognizable geographic unit of representation. 

And such “pearl”-“string”-ing does not pass the smell test of “compactness”.

The Court should affirm that amalgamating geographically disparate groups of minority voters is not permissible under the guise of “maintaining communities of interest” as a purported basis for achieving “compactness” or appropriate district “configuration.” Indeed, disparate groupings of minority voters are not “communities” in the ordinary sense of the word: they are not “a group of people living a particular place.” 

Just as the court emphasized in Gingles, the main question in a Section 2 case is not whether a set of lines can be drawn to encompass a racial community, regardless of geography. Rather, “it is essential for ‘the minority group [itself] to demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single-member district.'”

In short, when analyzing whether a § 2 remedial district is compact, courts must first apply “traditional districting principles” in a race-neutral manner. Otherwise, history has shown that these factors will be deputized into the service of race-based gerrymandering.  

Third,

CEC notes that certainty is needed with respect to the meaning of the Voting Rights Act, not only for all of the important constitutional concerns, but also because of the practical effect that the constant-shifting of district lines has on election officials and voters, many of whom find it difficult to keep up.

The unseemly practice of constantly shifting district lines to segregate voters by race imposes a significant practical cost on election administrators and voters. Real votes are being lost due to confusion by administrators and voters. In our closely divided partisan era, this is a heavy price that compromises public confidence in the integrity and reliability of the electoral process. It is an intolerable result in pursuit of the unconstitutional ends here. 

Finally,

The Court should clarify the geographical limits on Section 2 remedial districts and affirm the district court. Constitutional fairness and equality and voters’ confidence demand it.

The Center for Election Confidence thanks Bradley A. Benbrook and Stephen M. Duvernay of Benbrook Law Group for their representation in this matter.