Brief for Professor Travis Crum as Amicus Curiae in Support of the Robinson Appellants, Louisiana v. Callais

In Shaw v. Reno, 509 U.S. 630 (1993), this Court recognized racial gerrymandering claims under the Equal Protection Clause. <a></a><i>Id.</i> at 652. This Court’s re-argument order—which asks whether the “intentional creation of a second majority-minority congressional district violates the Fourteenth or Fifteenth Amendments,” 8/1/25 Docket Entry—calls for a thorough reassessment of <i>Shaw</i>’s textual and historical support.<br><br>By grounding <i>Shaw</i> in the Equal Protection Clause, this Court applied Fourteenth Amendment principles to what should be a Fifteenth Amendment issue. In <i>amicus</i>’s view, “the Fifteenth Amendment has independent meaning and force,” <a></a><i>Rice v. Cayetano</i>, 528 U.S. 495, 522 (2000), and yet this Court has rendered the Fifteenth Amendment superfluous.<br><br>As originally understood, the Equal Protection Clause did not apply to political rights. Indeed, following the Fourteenth Amendment’s ratification, half the States continued to disenfranchise Black men. The Fifteenth Amendment enfranchised Black men nationwide. Contrary to the <i>Shaw </i>Court’s concerns about “racial stereotypes,” <a></a>509 U.S. at 647, the Reconstruction Framers recognized that Black men and White men had divergent political interests, and they adopted the Fifteenth Amendment to ensure that Black men could vote as a bloc to protect their civil rights. Once the right to vote free of racial discrimination is properly grounded in the Fifteenth Amendment’s original public understanding, it becomes clear that <i>Shaw</i> rests on constitutional quicksand.<br><br>Shaw should be overruled. <i>Shaw</i>’s approach to race-based redistricting sharply diverges from the worldview of the Reconstruction Framers. Indeed, <a></a><i>Shaw</i> has all the hallmarks of a precedent ripe for overturning: the racial gerrymandering claim has no textual or historical support; the predominant factor standard is unworkable; it diverges from equal protection doctrine; it is in tension with statutory and constitutional precedent as well as Congress’s considered judgment on the subject; and it has been undermined by legal and factual developments since the 1990s. <i>See <a></a></i><i>Ramos v. Louisiana</i>, 590 U.S. 83, 121 (2020) (Kavanaugh, J., concurring in part) (listing factors for overturning precedent).<br><br>Even if this Court retains <i>Shaw</i>, reversal is still appropriate because Section&nbsp;2 is a rational exercise of Congress’s Fifteenth Amendment enforcement authority. Congress could have reasonably believed that the packing and cracking of minority voters is a denial or abridgment of the right to vote free of racial discrimination. And as applied to redistricting, Section&nbsp;2 has a de facto sunset clause, assuming one is even necessary.