Amicus Brief

Amicus Brief: Higginson v. Becerra

The right to vote, like the rights guaranteed by the Equal Protection Clause, is an individual right. Vote dilution claims, however, treat people simply as members of their racial group.

Since this Court first interpreted Section 2 of the Voting Rights Act to encompass claims of vote dilution, multiple Members of the Court have raised concerns that such an interpretation demanded the imposition of racial proportionality in districting. See Holder v. Hall, 512 U.S. 874, 944 (1994) (Thomas, J., concurring in the judgment); League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 512 (2006) (Scalia, J., concurring in the judgment in part and dissenting in part). While the Court’s Voting Rights Act jurisprudence continues to mandate the rough balancing of political power by race, the Court has curtailed government racial classifications in all other aspects of society—from contracting, to education, to criminal justice. The Court can no longer ignore the reality that interpreting Section 2 so as to prohibit vote dilution requires government actors to consider race when drawing electoral districts. This case, concerning the constitutionality of the California Voting Rights Act, illuminates this problem. The Court must intervene, at the very least to enforce meaningful limits on vote dilution doctrine so it does not become a de facto racial quota.

The Court’s seminal vote-dilution case, Thornburg v. Gingles, 478 U.S. 30, 50-51 (1986), requires plaintiffs to prove three “preconditions” in order to proceed to the “totality of the circumstances” inquiry set out by Section 2(b) of the federal Voting Rights Act: (1) that members of the racial minority are sufficiently large and compact to form a majority of voters in a single electoral district; (2) that said minority group is “politically cohesive”; and, (3) that members of the racial majority usually are able to out-vote the minority and prevent the minority group from electing its preferred candidates. These preconditions are meant to ensure that federal law does not entitle “minority groups to the maximum possible voting strength.” Bartlett v. Strickland, 556 U.S. 1, 16 (2009) (plurality opinion).

Nevertheless, vote dilution claims require federal courts to determine whether racial groups have sufficient political power. That very exercise is troubling: the right to vote, like the rights guaranteed by the Equal Protection Clause, is an individual right. Vote dilution claims, however, treat people simply as members of their racial group and further “the demeaning notion that members of the defined racial groups ascribe to certain ‘minority views’ that must be different from those of other citizens.” Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 636 (1990) (Kennedy, J., dissenting). Unfortunately, such an understanding slows our society’s progress towards the ultimate goal of rendering race irrelevant to public life, all the while deterring the Court from reaching the promise of the color-blind Constitution. See Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting). To avoid conflict with these basic principles, courts ought to limit the enforcement of voting rights to redress violations of the individual right to vote. Individuals, not racial groups, cast ballots. No “racial group”—however perniciously and stereotypically one defines the “group”—is entitled to any particular amount of representation.

With all the problems that vote dilution doctrine has brought, this Court’s intervention is necessary here, if not to repudiate the theory altogether, at least to enforce its outer limits. At issue here is the California Voting Rights Act (CVRA), enacted in 2002 in response to what state legislators saw as this Court’s restrictive interpretation of Section 2 in dilution cases. Rather than strengthening the safeguards to protect against race-based action, the CVRA eliminates the Gingles requirement that a plaintiff prove that the relevant minority group is sufficiently large and compact. And because the CVRA includes a strong fee-shifting provision, it effectively requires California cities to abandon at-large or multi- member district systems in favor of single-member districts based merely upon the existence of racially- polarized voting. Put another way, the CVRA requires municipalities to alter their entire system of choosing representatives to ensure that racial groups may elect a “group” representative. Without even the minimum Gingles safeguards, the CVRA extends the worst aspects of this Court’s Section 2 precedent by mandating race-based voting districts and enshrining in law the idea that individuals of the same race think alike.

This Court should grant the petition for certiorari to reconsider the propriety of the theory of vote dilution—or at least to limit its proliferation outside the confines of Section 2—and repudiate California’s racial gerrymandering mandate.

Full Amicus Brief: Higginson v. Becerra