Brief for Professor Travis Crum as Amicus Curiae in Support of Appellees/Respondents, Allen v. Milligan

<p>Alabama makes two peculiar and unprecedented arguments about Section 2 of the Voting Rights Act&nbsp;and Congress’s enforcement authority under the Reconstruction Amendments. Alabama’s central claim is that the only “workable, text-based benchmark” for Section 2 is “race neutrality.” Appellants’ Br. 69-70. According to Alabama, “constitutional guardrails” prohibit the consideration of race in the redistricting process. Appellants’ Br. 37. Drawing on the <i>Shaw</i> line of cases, <i>see</i> <i>Shaw </i>v. <i>Reno</i>, 509 U.S. 630 (1993)&nbsp;and <i>Miller </i>v. <i>Johnson</i>, 515 U.S. 900 (1995), Alabama operationalizes this standard by requiring race-neutral maps for purposes of <i>Gingles</i>’s first prong, <i>see Thornburg </i>v. <i>Gingles</i>, 478 U.S. 30, 50 (1986). That is, when determining whether “a minority group . . . is sufficiently large and geographically compact to constitute a majority in a single-member district,” <i>id.</i>, the proposed map should be drawn without regard to race.</p> <p>Alternatively, Alabama contends that Section 2&nbsp;is unconstitutional as applied to single-member redistricting schemes. Appellants’ Br. 71-72. Here, Alabama claims that Section 2 of the VRA&nbsp;exceeds Congress’s enforcement authority under Section Two of the Fifteenth Amendment.</p> <p>Alabama’s arguments are misguided for, at least, two reasons. First, the primary source of constitutional authority for the VRA&nbsp;is the Fifteenth Amendment, as that Amendment—rather than the Fourteenth Amendment—was expressly designed to prohibit racial discrimination in voting. Moreover, racially polarized voting was a recognized phenomenon and openly discussed during Reconstruction. The Reconstruction Framers were explicit in their belief that the Fifteenth Amendment&nbsp;was necessary to help Black men vote as a bloc to protect their interests. Alabama’s “constitutional guardrails” would have come as a surprise to the Reconstruction Framers.</p> <p>Second, the best reading of text, history, structure, and precedent is that Congress’s authority to enforce the rights guaranteed by the Fifteenth Amendment&nbsp;is broad and governed by the rationality standard from <i>South Carolina </i>v.<i> Katzenbach</i>, 383 U.S. 301 (1966). Contrary to Alabama’s apparent position, <i>see </i>Appellants’ Br. 72-74, the proper standard is not some amalgum of the rationality standard announced in <i>Katzenbach</i>, the congruence and proportionality test articulated in <i>City of Boerne</i> v. <i>Flores</i>, 521 U.S. 507 (1997), and the equal sovereignty principle from <i>Shelby County</i> v. <i>Holder</i>, 570 U.S. 529 (2013). Looking to the proper standard, Congress has the authority under the Fifteenth Amendment&nbsp;to require States to consider race in drawing single-member districts to the limited extent required by Section 2 of the VRA.</p>