League of Latin American Citizens v. Perry Brief Amicus Curiae in Support of Appellants

    Nos. 05-204, -254, -276 & -439

In THE
Supreme Cnttrt of tire f in i te  S tates

League of Latin American Citizens, et al, 

Travis County, Texas, et a l,

Eddie Jackson, et al.,

GI Forum of Texas, et al.,
Appellants,

v.

Rick Perry, et a l,
Appellees.

On Appeal from the United States District Court 
for the Eastern District of Texas

BRIEF OF THE NAACP LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC. AS 

AMICUS CURIAE IN SUPPORT OF APPELLANTS

Theodore M. Shaw 
Director-Counsel
Jacqueline A. Berrien 

*Norman J. Chachkin 
Debo P. Adegbile 
Chinh Q. Le 
Jenigh J. Garrett 
NAACP Legal Defense 

and Educational Fund, Inc. 
99 Hudson Street, 16th Floor 
New York, NY 10013 
(212) 965-2200 

*Counsel o f Record 
Attorneys for  Amicus Curiae



1

TABLE OF CONTENTS
Page

Table of A uthorities................................................................. ii

Interest of Amicus Curiae ....................................................... 1

Introduction and Summary of Argument .............................. 1

ARGUMENT —

I Districts In Which Voters Of A Particular 
Minority Group Do Not Constitute 50% Of 
The Relevant Population, But Who Are Able 
To Elect Candidates Of Their Choice In 
Combination With Other Minority Voters, Or 
With Reliable Crossover Votes From The 
Population Majority, Meet The First Gingles 
Precondition For A Viable Section 2 Claim ...........6

A. Recognizing “Crossover” or “Coalition”
Districts under Section 2 Is Consistent with 
the Statutory Language, Structure and 
Intent, and also with This Court’s Voting
Rights Act Jurisprudence......................... .............. 8

B. Section 2 Claims Involving “Coalition” or 
“Crossover” Districts Are Governed by 
Manageable Standards Already Familiar to 
Federal Courts from Past Section 2 Litigation . . 14

II Whatever Limitations, If Any, The Court
Places Upon Political Gerrymanders, It Is 
Essential That They, Like Other 
Redistrictings, Remain Subject To 
Meaningful Scrutiny Under Section 2 ................... 17



TABLE OF CONTENTS (continued)
Page

A. The Doctrine that Racial Cleavages in Political
Party Affiliation Negate the Significance Under 
Section 2 of Racial Voting Patterns 
Misconstrues this Court’s Section 2 
Jurisprudence......................................................... 18

B. The Fifth Circuit’s Partisanship Exception to
the Second and Third Gingles Preconditions 
Ignores the Extent to which Race Has Become 
Implicated in Partisan Alignment .......................... 23

C. Whether or Not It Holds that There Are 
Constitutional Limits to Partisan 
Gerrymandering in the Redistricting Process, 
the Court Should Explicitly Disapprove the 
Fifth Circuit’s Unique Partisanship Exception
to Section 2 ............................................................. 26

C onclusion.............................................................................. 27

TABLE OF AUTHORITIES

Cases:

Beer v. United States, 423 U.S. 130 (1976)........................ 16

Brewer v. Ham, 876 F.2d 448 (5th Cir. 1989) ...................  11

Bush v. Vera, 517 U.S. 952 (1996) .........................................1



Ill

Cases (continued):

Campos v. City o f  Baytown, Texas, 840 F.2d 1240
(5th Cir. 1988), cert, denied, 492 U.S. 905 (1990) . . .  11

Chisom v. Roemer, 501 U.S. 380 (1 9 9 1 )..............................1

City o f  Mobile v. Bolden, 446 U.S. 55 (1 9 8 0 )..................... 1

Concerned Citizens v. Hardee County Bd., 906
F.2d 524 (11th Cir. 1990) ............................................. 11

Ga. v. Ashcroft, 539 U.S. 461 (2003)......................... passim

Goosbyv. Town Bd. o f  Hempstead, 180 F.3d 476
(2d Cir. 1 9 9 9 )................................................................  23

Growe v. Emison, 507 U.S. 25 (1993)..................................7

Holder v. Hall, 512 U.S. 874 (1 9 9 4 )..................................  15

Houston Lawyers’ Ass 'n v. Attorney General o f
Texas, 501 U.S 419 (1991)........................................... 1

Jackson v. Perry, 160 L. Ed. 2d 252 (2004) .....................  7n

TABLE OF AUTHORITIES (continued)
Page



IV

Cases (continued):

Johnson v. Cal., 162 L. Ed. 2d 129 (2005) .....................  22n

Johnson v. DeGrandy, 512 U.S. 997 (1994) ........... 7, 12, 13

Ketchum v. Byrne, 740 F.2d 1398 (7th Cir. 1984) ...........lOn

League o f  United Latin American Citizens v.
Clements, 999 F.2d 831 (5th Cir. 1993),
cert, denied, 510 U.S. 1071 (1994)...................  1, 20, 26

League o f  United Latin American Citizens v.
Midland Ind. Sch. Dist., 812 F.2d 1494 (5th 
Cir.), vacated and a ff’d  on other grounds,
829 F.2d 546 (5th Cir. 1987 )........................................  11

Metis v. Murphy, 363 F.3d 8 (1st Cir. 2004)..........................7

NAACP v. Button, 371 U.S. 415 (1963)................................ 1

Perez v. Pasadena Ind. Sch. Dist., 165 F.3d 368
(5th Cir. 1999), cert, denied, 528 U.S. 1114 (2000) . . .  7

TABLE OF AUTHORITIES (continued)
Page

Reno v. Bossier Parish Sch. Bd., 520 U.S. 471 (1997) . . .  15



V

TABLE OF AUTHORITIES (continued)
Page

Cases (continued):

Session v. Perry, 298 F. Supp. 2d 451 (E.D.
Tex. 2004).................................................  6-7, 16, 17, 22

Shaw v. Hunt, 517 U.S. 899 (1 9 9 6 )...................................... 1

Thornburg v. Gingles, 478 U.S. 30 (1986) ................. passim

United States v. Hays, 515 U.S. 737 (1995) ...................... 1

Uno v. City o f Holyoke, 72 F.3d 973 (1st Cir. 1995) ........  23

United States v. Charleston County, 365 F.3d 341
(4th Cir. 2004) ................................................................ 23

Valdespino v. Alamo Heights Ind. Sch. Dist., 168 
F.3d 848 (5th Cir. 1999), cert, denied, 528 
U.S. 1114(2000)............................................................... 7

Vieth v. Jubilirer, 541 U.S. 267 (2 0 0 4 ).................  5, 21, 26n

Voinovich v. Quilter, 507 U.S. 145 (1993) ...................  7, 13

White v. Regester, 412 U.S. 755 (1973) 14



VI

Constitution and Statutes'.

U.S. Const., Art . I, Sec. 4 ...............................................26n

Voting Rights Act of 1965, Section 2,
42 U.S.C. § 1973(b) ...............................................passim

Other Authorities'.

Mike Allen, RNC Chief to Say It Was ‘Wrong ’ to 
Exploit Racial Conflict fo r Votes, WASHINGTON 
Post, July 14,2005 ...............................................  24-25

Mary Frances Berry & John W. Blassingame, Long 
Memory; the Black Experience in America 
(1982) ............................................................................  25

Thomas B. Edsall & Mary D. Edsall, Chain

Reaction; The Impact of Race Rights, and 
Taxes on American Politics (1991)......................... 24

Richard L. Engstrom, The Reincarnation o f  the Intent 
Standard: Federal Judges and At-Large Election 
Cases, 28 How. L.J. 495 (1985).................................  21

TABLE OF AUTHORITIES (continued)
Page



TABLE OF AUTHORITIES (continued)
Page

Other Authorities (continued):

Paul Frymer, Uneasy Alliances; Race and Party

Competition in America (1999) .............................. 25

Bernard Grofinan & Lisa Handley, Issues in Voting
Rights, 65 Miss. L J. 205 (1995).....................  20, 21, 23

Bernard Grofman, Lisa Handley, & David Lublin,
Drawing Effective Minority Districts: A
Conceptual Framework and Some Empirical
Evidence, 79 N.C.L. Rev . 1383 (2001).......................  12

Samuel Issacharoff, Polarized Voting and the
Political Process: The Transformation o f  Voting 
Rights Jurisprudence, 90 Mich. L. Rev . 1833 
(1 9 9 2 )......................................................................  11-12

Pamela S. Karlan, Loss and Redemption: Voting Rights 
at the Turn o f  a Century, 50 Vand. L. Rev. 291 
(1997) ............................................................................  11

Pamela S. Karlan & Daryl J. Levinson, Why Voting
Is Different, 84 Cal. L. Rev . 1201 (1996) . . .  20, 21, 24



V ll l

Page
TABLE OF AUTHORITIES (continued)

Other Authorities (continued):

Voting Rights Act: Hearings on S. 53, S. 1761,
S. 1975, S. 1992 and H.R. 3112 Before the 
SUBCOMM. ON THE CONSTITUTION OF THE
Senate Comm, on the Judiciary, 97th Cong.,
2d Sess. (1 9 8 2 )................................................................2



1

Interest of Amicus Curiae1

The NAACP Legal Defense and Educational Fund, Inc. 
(“LDF”) is a nonprofit corporation chartered by the Appellate 
Division of the New York Supreme Court as a legal aid society. 
The Legal Defense Fund’s first Director-Counsel was 
Thurgood Marshall. Since its founding in 1939, LDF has been 
committed to enforcing legal protections against racial 
discrimination and to securing the constitutional and civil rights 
o f African Americans. See NAACP v. Button, 371 U.S. 415, 
422 (1963) (describing LDF as a “‘firm’ . . . which has a 
corporate reputation for expertness in presenting and arguing 
the difficult questions of law that frequently arise in civil rights 
litigation”).

LDF has an extensive history of participation in efforts to 
eradicate barriers to the full political participation of African 
Americans in and to eliminate racial discrimination from the 
political process. LDF has represented parties or participated 
as amicus curiae in numerous voting rights cases before this 
Court and the United States Courts of Appeals. See, e.g. , Ga. 
v. Ashcroft, 539 U.S. 461 (2003); Bush v. Vera, 517 U.S. 952 
(1996); Shaw v. Hunt, 517 U.S. 899 (1996); United States v. 
Hays, 515 U.S. 737 (1995); League o f United Latin American 
Citizens v. Clements, 999 F.2d 831 (5th Cir. 1993) (en banc), 
cert, denied, 510 U.S. 1071 (1994); Chisom v. Roemer, 501 
U.S. 380 (1991); Houston Lawyers ’Ass ’n v. Attorney General 
o f  Texas, 501 U.S. 419 (1991); and Thornburg v. Gingles, 478 
U.S. 30 (1986). In addition, LDF actively supported the 
legislative reversal of the decision in City o f  Mobile v. Bolden, 
446 U.S. 55 (1980), which was achieved through the 1982

'Letters of consent to the filing of this brief have been lodged 
with the Clerk of this Court. No counsel for any party authored 
this brief in whole or in part, and no person or entity, other than 
amici, made any monetary contribution to its preparation.



2

amendments to Section 2 of the Voting Rights Act of 1965. 
See Voting Rights Act: Hearings on S. 53, S. 1761, S. 1975, 
S. 1992 AND H.R. 3112 Before THE SUBCOMM. ON THE 
Constitution of the Senate Comm, on the Judiciary, 97th 
Cong., 2d Sess. 1251-68 (1982) (statement of Julius L. 
Chambers, President of the NAACP Legal Defense and 
Educational Fund, Inc.).

Because of its longstanding commitment to the elimination 
of racial discrimination in the political process and the 
protection of the voting rights of African Americans, LDF has 
an interest in these appeals, which present important issues 
concerning the interpretation and application of Section 2 of the 
Voting Rights Act of 1965, 42 U.S.C. § 1973.

Introduction and Summary of Argument

The four post-2000 Census Texas congressional 
redistricting cases consolidated before this Court arise from a 
set of facts that is at once common and extraordinary. The 
underlying facts are common because they detail a redistricting 
story in which a partisan maj ority used its control of the process 
to extract maximum political advantage. This is unremarkable. 
Experience teaches that both the Democratic and Republican 
parties aggressively pursue their partisan motives in 
redistricting where they can control the process.

The story is extraordinary, however, because the naked 
partisan objectives of the redistricting process at issue were laid 
bare by the unusual timing of the line redrawing, and by the 
means that the proponents employed to achieve their partisan 
ends. A court-drawn and -approved congressional districting 
plan fashioned after the 2000 Census, and described as tilting 
in favor of the Republican party that controls Texas, was 
deemed not to tilt far enough in an era when computer



3

innovations have enhanced the possibilities for highly effective 
gerrymandering. Minority party Democratic legislators fled the 
state they were elected to serve in an effort to avoid a vote on 
and passage of the plan that was ultimately passed. Proponents 
of the “re-redistricting” plan enlisted a federal agency to aid in 
obtaining the return of the departed state legislators, and 
longstanding procedural rules of the legislature were nearly 
abrogated to facilitate passage of the partisan plan.

This set of underlying facts —  manifesting familiar 
redistricting opportunism as well as extraordinary proceedings 
and techniques —  presents this Court for the second time in 
as many years with the central question whether partisan 
distortions of the redistricting process can rise to the level of 
Constitutional injury.

The political aspects of the case have received considerable 
attention, and any rule(s) that the Court may choose to fashion 
in service of constitutional guarantees could provide important 
guidance in establishing the outer bounds to which elected 
officials may reach in their efforts to place their own, and their 
parties’, interests above those contemplated by the public and 
Constitutional purposes of redistricting.

Because the cases consolidated before this Court arose in 
Texas, a state that reflects many of the prevailing 
demographic patterns and population trends in the United 
States, there is another — perhaps less discussed but no less 
important— set of questions that run through the jurisdictional 
statements. These are questions about minority voting rights 
and the degree to which contemporary partisan redistricting 
battles are at tension with well-established legal principles that 
protect minority citizens’ access to the political process and 
their right to elect candidates of their choice. Not only do 
partisan manipulations raise questions about the limits of



4

legislative power exercised in defense of its own interests, but 
they also threaten to trample principles of minority political 
fairness elevated by the entire nation in the commands of the 
14th and 15th Amendments, and embraced in bipartisan 
Congressional votes of support for the Voting Rights Act on 
five occasions. Through these votes, political partisans have 
themselves recognized that our Constitution and history 
demand that some rules enjoy a place of primacy in the political 
process.

Indeed this case raises the specter of an even greater, if  less 
obvious, danger for minority voting rights: If this Court refrains 
from announcing any limitation on partisan gerrymanders 
regardless of their severity, and also permits partisan 
explanations to trump racially disparate voting behavior so as 
to insulate legislative enactments from judicial scrutiny, the 
Voting Rights Act, and the minority political fairness principles 
for which it stands, would become largely meaningless.

Accordingly, LDF submits this brief as amicus curiae to 
address two important issues of interpretation of the Voting 
Rights Act of 1965, as amended, and construed in the seminal 
Section 2 case of Thornburg v. Gingles, 478 U.S. 30 (1986). 
These issues, involving (a) the minority numerosity 
requirement (Gingles’ first precondition), and (b) the legal 
significance of partisan alignments along racial lines in 
negating the significance of racially polarized voting (Gingles’ 
third precondition), were the second of the Questions Presented 
in the jurisdictional statements in Nos. 05-296 and 05-204, 
respectively.

First, LDF urges this Court to recognize that it is consistent 
with the language, purposes and evolution of its own doctrine 
under the Voting Rights Act for minority voters to assert legally 
cognizable interests in opportunities to elect candidates of their



5

choice even in districts where those minorities are not 
sufficiently concentrated to comprise a numerical majority. 
However, in order for this principle to be both consistent with 
the statutory purposes of Section 2, and to serve the screening 
function for which the Gingles prerequisites were intended, it 
must be properly limited to recognize only reliable coalition 
districts that provide a discernible opportunity for the coalition 
to elect and not improvidently extended in the Section 2 
context to encompass necessarily amorphous influence 
districts. If this Court agrees with our suggestion and modifies 
the first Gingles prerequisite, the judgment below should be 
vacated with instructions to reconsider the affected claims and 
issues in light of the new standard.

Second, if this Court reaches the issue of the interplay 
between partisan and racially polarized voting patterns under 
the Gingles preconditions, it should find that considerations of 
partisan polarization may not rebut, and thereby place beyond 
judicial reach, a prima facie showing under the Gingles 
preconditions but may be considered only under the totality of 
the circumstances.

These legal questions are of considerable moment. More 
than forty years after passage of the transformative Voting 
Rights Act, the Court is presented in these appeals with an 
opportunity to revisit its seminal Section 2 decision, as well 
as to reconcile partisan redistricting issues, recently considered 
in Vieth v. Jubelirer, 541 U.S. 267 (2004), that are bound up in, 
but not fully coextensive with, the minority political fairness 
principles to which Congress has consistently committed our 
nation. That these issues are now intertwined is no reason to 
abandon Constitutional and Congressional mandates. Indeed, 
the political and minority voter protection issues have always 
been intertwined.



6

ARGUMENT

I.

Districts In Which Voters Of A Particular 
Minority Group Do Not Constitute 50% Of 
The Relevant Population, But Who Are Able 
To Elect Candidates Of Their Choice In 
Combination With Other Minority Voters,
Or With Reliable Crossover Votes From The 
Population Majority, Meet The First Gingles 
Precondition For A Viable Section 2 Claim

Jackson Appellants (plaintiffs below) urge the Court to 
extend the protections of Section 2 of the Voting Rights Act to 
districts in which a substantially large group of minority voters 
—  while short of comprising a mathematical majority of the 
population —  is nonetheless capable of nominating and 
electing its candidate of choice. Before the District Court, 
other plaintiffs requested recognition of a § 2 claim not only for 
so-called “coalition” or “crossover districts,” but also for 
“influence districts,” where minority voters, while unable to 
elect their candidates of choice, exercise varying levels of 
influence in the electoral process.2 Session v. Perry, 298 F.

2There has been some confusion among commentators 
litigants, and courts — including the District Court below, see, 
e.g., Session, 298 F. Supp. 2d at 482-83 (identifying various 
proffered examples of influence and coalition districts) — over 
what constitutes an “influence,” “coalition,” or “crossover” 
district. For purposes of this brief, we consider an “influence 
district” one “where minority voters may not be able to elect a 
candidate of choice but can play a substantial, if not decisive, role 
in the electoral process.” Ga. v. Ashcroft, 539 U.S. 461, 482 
(2003). A “coalitional” or “crossover district” is one in which (as 
the Court has described it), minority voters in a district — despite



7

Supp. 2d 451, 482-83 (E.D. Tex. 2004).3

The District Court, following the Fifth Circuit’s strict “fifty 
percent rule,” rejected these arguments. Id. at 482-83 & 
nn. 111,112 (citing Perez v. Pasadena Independent Sch. Dist., 
165 F.3d 368 (5th Cir. 1999), cert, denied, 528 U.S. 1114 
(2000); Valdespino v. Alamo Heights Ind. Sch. Dist:, 168 F.3d 
848 (5th Cir. 1999), cert, denied, 528 U.S. 1114 (2000)). In so 
doing, it declined the opportunity to decide whether any set of 
circumstances might exist in which a group of minority voters 
less than an absolute majority of the relevant population could 
ever satisfy the first Gingles precondition. Id. at 476.

This Court has yet to rule on the question. See, e.g., 
Johnson v. DeGrandy, 478 U.S. at 1008-09; Voinovich v. 
Quilter, 507 U.S. 146,154 (1993); Growe v. Emison, 507 U.S. 
25, 41 (1993); Gingles, 478 U.S. at 47 n,12; see also Metts v. 
Murphy, 363 F.3d 8, 11 (1st Cir. 2004) (en banc) (“[Sjeveral 
Supreme Court opinions after Gingles have offered the 
prospect, or at least clearly reserved the possibility, that 
Gingles’ first precondition — that a racial minority must be

their not constituting a majority of the population — can form a 
coalition with another minority group sufficient to elect their 
candidate of choice, Johnson v. DeGrandy, 512 U.S. 997, 1020 
(1994), or can demonstrate an ability to elect their candidate of 
choice “when joined by predictably supportive nonminority 
voters.” Ga. v. Ashcroft, 539 U.S. at 492 (Souter, J., dissenting) 
(emphasis added).

3This was the lower court’s opinion supporting the judgment 
that was vacated and remanded in Jackson v. Perry, 160 L. Ed. 2d 
252 (2004); the issues addressed by amicus in this brief were 
discussed by the court only in that opinion, and not in its June 9, 
2005 remand opinion (reprinted at J.S. App. la-50a in No. 05- 
204).



8

able to constitute a ‘majority’ in a single-member district — 
could extend to a group that was a numerical minority but had 
predictable cross-over support from other groups.”) (citing 
cases).

LDF writes separately as an amicus to urge the Court to 
interpret the first Gingles requirement, consistent with the text 
and purpose of the Voting Rights Act, to include those districts 
in which a minority group can demonstrate an “ability to elect” 
—  even if it does not comprise a mathematical majority of the 
population. Such a limited extension of the first Gingles 
precondition would demonstrate a recognition of the political 
realities of the American electoral process and is fully 
consistent with the evolution of the Court’s Section 2 
jurisprudence. The Court should not, however, extend 
coverage of Section 2 to include claims in which a minority 
group alleges that it can exercise some amorphous degree of 
“influence” over elections or governance, as doing so would 
establish a new standard that is both unworkable and 
ungrounded in either the statute or the relevant case law.

A. Recognizing “Crossover” or “Coalition” Districts 
under Section 2 Is Consistent with the Statutory 
Language, Structure and Intent, and also with 
This Court’s Voting Rights Act Jurisprudence.

Because the language of Section 2 explicitly protects the 
ability of minority voters to “elect representatives o f  their 
choice,” 42 U.S.C. § 1973(b) (emphasis added), the focus of 
the Section 2 inquiry at the precondition stage should be 
whether the specific conditions in a jurisdiction permit the fact­
finder to conclude that a minority group in a given district does 
in fact have a reliable opportunity to elect its candidates of 
choice. See Gingles, 478 U.S. at 43-46 (describing legislative 
history and purpose of the Act). The pertinent difference



9

between “coalition” or “crossover districts,” on the one hand, 
and “influence districts,” on the other, is that the former 
districts involve instances in which there is a cognizable 
“ability to elect” claim.

The Court should not interpret the Gingles preconditions 
so strictly as to frustrate this clear statutory purpose. The 
Gingles test was fashioned in order to make sure that a 
cognizable Section 2 claim (and remedy) exists, especially 
given that the statute expressly disavows any guarantee of 
proportional representation. Gingles, 478 U.S. at 50 & n. 17 
(purpose of first precondition designed so that Secti on 2 would 
“only protect racial minority votes from diminution 
proximately caused by the districting plan; it would not assure 
racial minorities proportional representation.'’'’) (emphasis in 
original) (internal citations omitted). Thus, Gingles viewed the 
first precondition as a means to ensure that courts would 
consider Section 2 claims in jurisdictions where “minority 
voters possess the potential to elect representatives in the 
absence of the challenged structure or practice,” 478 U.S. at 50 
(emphasis in original), and the precondition should be 
understood to serve a functional —  not inflexible — purpose. 
Growe, 507 U.S. at 40 (“[T]he ‘geographically compact 
majority’ and ‘minority political cohesion’ showings are 
needed to establish that the minority has the potential to elect 
a representative of its own choice in some single-member 
district.”)

Nor is there a practical reason to limit the protections of 
Section 2 to majority-minority communities. There is nothing 
talismanic about a district with a (single or combined) minority 
population greater than fifty percent. Both the Gingles 
preconditions and Section 2 itself were designed to provide 
practical measures for realizing the ability of minority voters to



10

elect candidates of choice.4 The degree of racial polarization 
will drive what level of minority population is necessary and 
the analysis can vary even within a single state, or jurisdiction.

The Gingles Court itself recognized that some white 
crossover voting may exist and should be considered in the 
fact-intensive analysis of whether a Section 2 claim could be 
established. 478 U.S. at 56 ( “And, in general, a white bloc 
vote that normally will defeat the combined strength of 
minority support plus white ‘crossover' votes rises to the level 
of legally significant white bloc voting. . . . The amount of 
white bloc voting that can generally ‘minimize or cancel’
. . .  black voters’ ability to elect representatives of their choice, 
however, will vary from district to district according to a 
number of factors.”) (emphasis added) (internal citations 
omitted).

Similarly, several lower courts — including the Fifth 
Circuit —  have expressly recognized that minority coalitions 
among groups that each may not meet the first Gingles 
prerequisite can be considered together to satisfy its 
requirement, at least if  they can establish that voters of both

4Indeed, in the early years of Section 2 enforcement, courts 
routinely required supermajorities to guarantee the minority 
voters’ ability to elect. See, e.g., Ketchum v. Byrne, 740 F.2d 
1398, 1413-17 (7th Cir. 1984) (collecting cases). Just as it is 
possible that minority voters who constitute a bare majority of the 
population a district may fail to demonstrate that they have the 
ability to elect candidates of their choice, it is also theoretically 
possible that minority voters who are less than a majority of a 
district can make such a showing. See Gingles, 478 U.S. at 56 
n.24 and accompanying text. Courts should be free to continue to 
take into account the changing landscape of American politics 
and the development of minority coalitions or the phenomenon of 
limited white crossover voting where it exists.



11

groups vote together cohesively. See, e.g., Campos v. City o f  
Baytown, Texas, 840 F.2d 1240, 1244-46 (5th Cir. 1988) 
(affirming trial court finding of cohesion and applying 
principle), cert, denied, 492 U.S. 905 (1989); League o f  United 
Latin American Citizens v. Midland Ind. Sch. Dist., 812 F.2d 
1494, 1500-02 (5th Cir.) (same), vacated and a ff’d  on other 
grounds, 829 F.2d 546 (5th Cir. 1987); see also Concerned 
Citizens v. Hardee County Bd., 906 F.2d 524, 526-27 (11th Cir. 
1990) (recognizing principle but affirming trial court’s 
determination that cohesion between groups not proved); 
Brewer v. Ham, 876 F.2d 448, 453 (5th Cir. 1989) (same).

This Court has not decided the question. Flowever, in Ga. 
v. Ashcroft, all of the Justices recognized the relevance of 
coalition and crossover districts in assessing whether 
retrogression under Section 5 occurred in districts where 
minority voters were provided an opportunity to elect their 
candidates of choice under the benchmark plan. See 539 U.S. 
at 480 (“[A] State may choose to create a greater number of 
districts in which it is likely — although perhaps not quite as 
likely as under the benchmark plan — that minority voters will 
be able to elect candidates of their choice.”); id. at 492 (Souter, 
J., dissenting) (“The prudential objective of § 5 is hardly 
betrayed if a State can show that a new districting plan shifts 
from supermajority districts, in which minorities can elect their 
candidates of choice by their own voting power, to coalition 
districts, in which minorities are in fact shown to have a similar 
opportunity when j oined by predictably supportive nonminority 
voters.”) (emphasis added).

Although pervasive racially polarized voting patterns 
continue to dominate the political landscape, see, e.g., Pamela 
S. Karlan, Loss and Redemption: Voting Rights at the Turn o f  
a Century, 50 Vand. L. Rev . 291 (1997); Samuel Issacharoff, 
Polarized Voting and the Political Process: The



12

Transformation o f Voting Rights Jurisprudence, 90 Mich. L. 
Rev . 1833 (1992), there are (and have long been) some 
communities in which minority-preferred candidates enjoy 
limited, reliable white crossover support or in which minority 
voters have formed sufficiently large and dependably cohesive 
coalitions with other racial or ethnic minorities to elect a 
candidate of their choice. See, e.g., Bernard Grofinan, Lisa 
Handley, & David Lublin, Drawing Effective Minority 
Districts: A Conceptual Framework and Some Empirical 
Evidence, 79 N.C.L. Rev . 1383,1394-1423 (2001) (empirical 
analyses of election results in certain communities where black 
voters were able to elect candidates of choice despite not 
comprising a majority of the districts’ respective populations).

In its rulings since Gingles, the Court has recognized the 
phenomenon that there are some communities in which 
coalitions are formed among minority groups or small, reliable 
levels of crossover voting from white voters that provide 
certain minorities, who themselves may not comprise a 
majority of the voting population, with a reasonable 
opportunity to elect their candidates of choice. See, e.g., Ga. v. 
Ashcroft, 539 U.S. at 480; DeGrandy, 512 U.S. at 1023.5

5It bears emphasis that whether a court will find reliable, 
predictable majority crossover voting of sufficient size to allow 
the election of minority voters’ candidates of choice will depend 
on the nature and extent of the proof offered by Section 2 
claimants. The inquiry is similar in nature to that described by 
Justice Brennan in Gingles with respect to determining whether 
white bloc voting would “generally ‘minimize or cancel,’ . . . 
black voters’ ability to elect representatives of their choice,” and 
“will vary from district to district according to a number of 
factors.” See Gingles, 478 U.S. at 56, text at n.24 (setting out 
non-exclusive list of potentially relevant factors).



13

To be sure, it will continue to be true that for most Section 
2 claims, having a majority of minority voters will be necessary 
to demonstrate an “ability to elect.” But, the existence of 
crossover and coalition districts where the opportunity to elect 
candidates of choice is available to minority voters should be 
embraced and protected by the Court’s Section 2 jurisprudence, 
not held in check based on an unnecessarily restrictive 
interpretation of its judicially-crafted test. DeGrandy, 512 U.S. 
at 1020 (describing the Voting Rights Act as “a statute meant 
to hasten the waning of racism in American politics”). 
Requiring minority voters to show that they are an absolute 
majority ignores the practical reality that, in some jurisdictions, 
they are capable of electing preferred candidates without such 
numbers. It also places an artificial limitation on the 
effectiveness of Section 2 by failing to allow it to account for 
shifts in the political landscape. See Voinovich, 507 U.S. at 158 
(“ [T]he Gingles factors cannot be applied mechanically without 
regard to the nature of the claim.”).

Indeed, in DeGrandy, this Court expressly rejected the 
State’s safe harbor argument on the grounds that relying too 
heavily on majority-minority districts as the only way in which 
minorities may enjoy equal electoral opportunity would 
“obscure the fact that there are communities in which minority 
citizens are able to form coalitions with voters from other racial 
and ethnic groups, having no need to be a majority within a 
single district in order to elect candidates of their choice.” 512 
U.S. at 1020.



14

B. Section 2 Claims Involving “Coalition” or 
“Crossover” Districts Are Governed by 
Manageable Standards Already Familiar to 
Federal Courts from Past Section 2 Litigation.

Relaxing the first Gingles precondition of the Section 2 
inquiry to permit a more exacting focus on minority voters’ 
“ability to elect” in a coalition or crossover district only brings 
it closer in line with the text of the statute, which codified the 
“totality of the circumstances” analysis from White v. Regester, 
412 U.S. 755 (1973), and the intent of Congress, which was to 
take account of the contemporary, practical realities of the 
political process. See Gingles, 478 U.S. at 45 (noting that the 
Senate Committee recognized that “the question whether the 
political processes are ‘equally open’ depends on a searching 
practical evaluation of the ‘past and present reality,’ . . .  and on 
a ‘functional’ view of the political process.”) (some internal 
quotations and citations omitted). See also Ga. v. Ashcroft, 539 
U.S. at 480 (“The ability of minority voters to elect a candidate 
of their choice is important but often complex in practice to 
determine.”).

This more practical application of the first Gingles 
precondition recognizing districts that may not have a 
numerical majority of minority voters would not open the door 
to claims that Congress never intended to protect in Section 2, 
since proof of the other two Gingles preconditions would 
remain necessary. See Ga. v. Ashcroft, 539 U.S. at 485 (“And 
it is of course true that evidence of racial polarization is one of 
many factors relevant in assessing whether a minority group is 
able to elect a candidate of choice or to exert a significant 
influence in a particular district.”). The other two Gingles 
prongs, along with other “totality of the circumstances” 
considerations, will assist courts in determining if a given



15

district provides minority voters with an “ability to elect” as 
opposed to merely the “ability to influence.”6

Indeed, the determination of an “ability to elect” in 
coalition or crossover districts is one that even the dissenting 
Justices in Ga. v. Ashcroft acknowledge is concrete and 
demonstrable, 539 U.S. at 492 (Souter, J., dissenting), not an 
abstract hope too elusive to for courts to establish limiting 
principles, as is the case with the recognition of influence 
districts. Id. at 496-97 (but noting difficulties of quantifying 
“influence”).

While it is true that the Court’s recent decision in Ga. v. 
Ashcroft held that influence districts could be considered in a 
§ 5 retrogression analysis, the recognition of influence districts 
in that context should not extend to Section 2. Ga. v. Ashcroft, 
539 U.S. at 478 (“We have, however, ‘consistently understood’ 
§ 2 to “combat different evils and, accordingly, to impose very 
different duties upon the States.”) (quoting Reno v. Bossier 
Parish Sch. Bd., 520 U.S. 471, 477 (1997)). See also Holder 
v. Hall, 512 U.S. 874, 883 (1994) (plurality opinion) (Sections 
2 and 5 are “different in structure, purpose, and application”). 
Indeed, as the Court in Ga. v. Ashcroft noted, “[i]n contrast to 
§ 5’s retrogression standard, the ‘essence’ of a § 2 vote dilution 
claim is that ‘a certain electoral law, practice, or structure . . .

6For example, a minority group could require so many 
crossover votes that it does not truly possess the capacity to 
choose its own candidate, but only to influence electoral contests 
between two or more white-preferred candidates. Similarly, a 
minority group that is too small and that thus requires too high a 
level of white crossover support will be unlikely to satisfy the 
third Gingles precondition: that white regularly vote as a bloc 
against the minority preferred candidate. A careful analysis of 
election data, therefore, will shed light on which role minority 
voters actually play in the political process.



16

cause[s] an inequality in the opportunities enjoyed by black [or 
other minority voters] and white voters to elect their preferred 
representatives.’” Id. (quoting Gingles, 478 U.S. at 47) 
(emphasis added).

Just as the text of Section 2 provides the basis for a more 
flexible interpretation of the first Gingles precondition, 
therefore, it also provides a built-in limiting principle: the 
requirement that minorities in an existing or proposed district 
demonstrate an ability to elect “representatives of their choice. ” 
42 U.S.C. § 1973(b). Whereas the parameters of a Section 5 
retrogression determination find their origins in this Court’s 
jurisprudence, see Beer v. United States, 423 U.S. 130, 141 
(1976), the statutory language about the minority group’s 
“ability to elect” is the touchstone of any Section 2 analysis.

The court below erred in ending its Section 2 analysis 
when it found that African-American voters in District 24 were 
unable to meet the majority-minority requirement of the first 
Gingles precondition. Sessions, 298 F. Supp. 2d at 483 (“A 
minority group lacking a majority cannot elect its candidate of 
choice, and denying the group a separate district cannot be a 
denial of any opportunity protected by the [Voting Rights] 
Act.”). Its singular focus on the numerical aspect of the 
Gingles test was unwarranted and turned its attention away 
from the relevant “ability to elect” question.

This Court should clarify its ruling in Gingles, remand the 
case to the District Court to determine, under the totality of the 
circumstances, whether District 24 provides minority voters an 
opportunity to elect their candidate of choice. Among other 
circumstances, the lower court should seek to determine the 
degree of racial polarized voting with special focus given to 
whether the district provides the minority voters with the 
opportunity to elect candidates of choice.



17

II.

Whatever Limitations, If Any, The Court 
Places Upon Political Gerrymanders, It Is 
E ssential That They, Like Other 
Redistrictings, Remain Subject To 
Meaningful Scrutiny Under Section 2

In the last two decades, developments in computer 
technology and software programming have made possible 
increasingly sophisticated and precise shaping of districts for 
political, among other, ends, and this Court’s attention has been 
correspondingly drawn to the question whether the Constitution 
places any limits upon partisan gerrymandering. These appeals 
grow out of cases filed to challenge one such redistricting.

Some plaintiffs in those cases alleged that the 2003 
districting plan at issue, even if it were drawn for partisan ends, 
also infringed upon minority voting rights protections afforded 
by Section 2 of the Voting Rights Act. The court below 
rejected those claims on the ground, inter alia, that their 
proponents could not satisfy the first Gingles precondition. See 
supra § I. However, the court also indicated in its decision that 
even were this not its view, it would have rejected the claims 
by applying a doctrine developed by the Fifth Circuit more than 
a dozen years ago, which holds that neither the second nor the 
third Gingles preconditions (cohesion and racially polarized 
voting) can be established where party affiliation is also 
characterized by substantial racial differences. Session, 298 F. 
Supp. 2d at 478 n.88.

Such an approach would effectively eliminate the 
application of Section 2 to redistricting plans in areas where 
political party loyalties have split along racial or ethnic lines, 
which has become common in our nation at this point in its



18

history. That result is insupportable as a matter of the statutory 
text or Congressional purposes underlying enactment and 
amendment of Section 2 of the Voting Rights Act. It would be 
especially unfortunate if this Court were to sanction it, directly 
or implicitly. Rather, the Court should make clear in its 
decision on these appeals that the Fifth Circuit’s approach is 
inconsistent with the Act.

A. The Doctrine that Racial Cleavages in Political 
Party Affiliation Negate the Significance Under 
Section 2 of Racial Voting Patterns Misconstrues 
this Court’s Section 2 Jurisprudence.

For twenty years, racially polarized voting patterns have 
been at the core of this Court’s Voting Rights Act 
jurisprudence. See, e.g., Gingles, 478 U.S. 30. The analysis of 
racially polarized voting is a very apt analytical tool because it 
aids in identifying the circumstances in which private behavior 
combines with structural electoral arrangements to impede 
equal opportunities for minorities to elect candidates of choice 
and participate in the political process. See id. at 51. Under 
Section 2, two of the three Gingles preconditions involve 
variants of bloc voting. The standard is in many respects self­
regulating. If a substantial degree of polarization is present, 
assuming other threshold conditions are met, the analysis 
proceeds, whereas a failure to show legally significant 
polarization ends the inquiry.

Since this Court decided Gingles, the preconditions have 
played an essential gate-keeping function for courts by allowing 
them to approach Section 2 claims with a discernible standard. 
As the designation suggests, meeting the preconditions does not 
suffice for purposes of the ultimate liability determination 
under Section 2 — that determination is made only under the 
totality of the circumstances, including consideration of the



19

“Senate factors.” Id. at 36-37. Accordingly, in the area of 
minority voting rights protection, Congress has identified a 
problem, provided a remedy, and this Court has supplied, and 
at times refined, a judicially manageable standard.

Racially polarized voting patterns are the touchstone of 
Section 2 claims. In Gingles, the Court addressed the question 
whether the Section 2 dilution inquiry concerns itself 
exclusively with the existence of polarized voting patterns or 
also with the reasons that such patterns occurred. Writing for 
the Court, Justice Brennan explained that:

It is the difference between the choices made between 
blacks and whites -  not the reasons for that difference -  
that results in blacks having less opportunity than whites 
to elect preferred representatives. Consequently, we 
conclude that under the “results test” of Section 2, only the 
correlation between the race of the voter and selection of 
certain candidates, not the causes of the correlation 
matters.

Id. at 64 (emphasis in original).

All Justices accepted the principle announced by this 
portion of Justice Brennan’s plurality opinion, at least insofar 
as it applied to the preconditions to bringing a Section 2 claim. 
See Gingles, 478 U.S. at 100 (O’Connor, J., joined by Burger,
C.J., Powell and Rehnquist, JJ., concurring in the judgment):

Insofar as statistical evidence of divergent racial voting 
patterns is admitted solely to establish that the minority 
group is politically cohesive and to assess its prospects for 
electoral success, I agree that defendants cannot rebut this 
showing by offering evidence that the divergent racial 
voting patterns may be explained in part by causes other



20

than race, such as the underlying divergence in the 
interests of minority and white voters. I do not agree, 
however, that such evidence can never affect the overall 
vote dilution inquiry.

(Justice White did not join this part of Justice Brennan’s 
opinion only insofar as it would not have permitted 
consideration of the race of the candidate, as well as the race of 
the voter, in the “totality of the circumstances” analysis. 
Gingles, 478 U.S. at 83.)

Notwithstanding this functional agreement that the Gingles 
preconditions do not end the dilution analysis but rather operate 
to narrow the number of cases that require further Section 2 
consideration under the totality of the circumstances, the Fifth 
Circuit has adopted an inconsistent rule which permits the very 
type of “rebuttal evidence” disfavored by the Court. See 
League o f  Latin American Citizens v. Clements, 999F.2d831, 
850, 858-59 (5th Cir. 1993) (en banc) (LULAC), cert, denied, 
510 U.S. 1071 (1994). Although the LULAC court insisted on 
an evaluation of the role of partisan causation as an explanation 
for polarized voting patterns with all of the attendant problems 
of that approach, see, e.g., Bernard Grofman & Lisa Handley, 
Issues in Voting Rights, 65 Miss. L.J. 205, 222-34 (1995); 
Pamela S. Karlan & Daryl J. Levinson, Why Voting is Different, 
84 Cal. L. Rev. 1201, 1223-27 (1996), it did not clearly 
explain how its newly announced rule of Section 2 analysis 
would operate. LULAC, 999 F.2d at 860 (“. . . we need not 
resolve the debate today. Whether or not the burden of the 
plaintiffs to prove bloc voting includes the burden to explain 
[that is, to negate the role of] partisan influence, the result is the 
same.”)

The LULAC rule has both doctrinal and evidentiary 
shortcomings. As a legal matter, it introduces partisan



21

intent/causation into the proof requirements of a statute that 
was expressly amended by Congress to establish a results test 
in order to make proof of intent unnecessary. See Gingles, 478 
U.S. at 35-37 (summarizing history). As an evidentiary and 
empirical matter the problem is two-fold:

First, there is sufficient correlation between partisanship 
and racial bloc voting patterns in so many parts of the country 
that the two are at best complicated, or in some cases 
impossible to disentangle. See,e.g., Grofman& Handley, 65 
Miss. L.J. at 229 (“. . . separating out racial from partisan 
concerns will not be easy, and forcing plaintiffs to try to do so 
in order to succeed in proving a Section 2 violation in situations 
involving partisan elections will make it much harder for 
plaintiffs to prevail in such challenges, even in situations where 
minority exclusion [is] total”); Karlan & Levinson, 84 Cal. L. 
Rev . at 1223-24 (noting shortcomings of statistical models that 
attempt to disaggregate race and partisanship); Richard L. 
Engstrom, The Reincarnation o f the Intent Standard: Federal 
Judges and At-Large Election Cases, 28 How. L.J. 495, 506 
(1985) (criticizing attempts by courts to “cleanse” racially 
divided voting patterns of their racial content through 
multivariate analysis); c f  Vieth v. Jubelirer, 541 U.S. at 287 
(Scalia, J.) (“But a person’s politics is rarely as readily 
discernible — and never as permanently discernible as a 
person’s race. Political affiliation is not an immutable 
characteristic, but may shift from one election to the next; and 
even within a given election, not all voters follow the party 
line.”).

Second, the introduction of partisan causation in the initial 
precondition stage of the Gingles analysis transforms a 
judicially manageable standard for political fairness to minority 
voters into a judicially created barrier to the congressionally 
authorized method of relief.



22

In a footnote, the court below appears to extend the Fifth 
Circuit’s polarized voting causation rule. Session, 298 F. Supp. 
2d at478n.88. Contrary to Gingles and its progeny, the court 
announces that its newly devised test requires that at the 
Gingles preconditions stage, plaintiffs bear the burden of 
disproving what amounts to a presumption of partisan 
causation. Id.1 Placing this affirmative burden on plaintiffs at 
the threshold stage transforms partisanship from one factor 
among others to be taken into account in the “totality of the 
circumstances” analysis into an outcome-determinative issue, 
despite the facts that: (a) it is not mentioned in the statute; and, 
(b) all members of the Court in Gingles accepted the 
proposition that the issue was relevant only at the final 
“totality” stage of the case, except for three Justices who would 
have excluded its consideration even at that stage.

The Fifth Circuit’s particularly muscular version of 
partisan polarization presumption is also anomalous among 
lower federal courts. Although several Circuits recognize that 
it is proper to consider explanations for voting patterns under 7

7C / Johnson v. Cal., 162 L. Ed. 2d 129, 139 (2005) (“[A] 
defendant satisfies the requirements of Batson's first step by 
producing evidence sufficient to permit the trial judge to draw an 
inference that discrimination has occurred. Respondent, however, 
. . . contends [that] a Batson claim must prove the ultimate facts 
by a preponderance of the evidence in the prima facie case . . . .  
Respondent’s argument is misguided.. . .  ‘It is not until the third 
step that the persuasiveness of the justification becomes relevant 
— the step in which the trial court determines whether the 
opponent of the strike has carried his burden of proving 
purposeful discrimination.’ Burkett [v. Elem, 514 U.S. 765] at 
768.”) Since Section 2 was amended in 1982 to eliminate any 
requirement of proving intent, placing the burden on plaintiffs to 
disprove a presumed nondiscriminatory explanation for racially 
polarized voting patterns is even more insupportable.



23

the totality of the circumstances, consistent with Justice 
O’Connor’s opinion in Gingles, the Fifth Circuit appears to 
stand alone in its requirement that partisan causation be 
presinned to explain racially polarized in voting patterns. See 
e.g., United States v. Charleston County, 365 F.3d 341,348-49 
(4th Cir. 2004); Goosby v. Town Bd. o f  Hempstead, 180 F.3d 
476, 493 (2d Cir. 1999); Uno v. City o f  Holyoke, 72 F.3d 973, 
983 (1st Cir. 1995).

B. The Fifth Circuit’s Partisanship Exception to the 
Second and Third Gingles Preconditions Ignores 
the Extent to which Race Has Become Implicated 
in Partisan Alignment.

Apart from the doctrinal and evidentiary problems with the 
Session variant of the partisan polarization presumption in the 
Section 2 analysis, the rule ignores the extent to which today’s 
political parties have been shaped by express or implicit racial 
considerations and appeals. Faced with an entrenched and 
well-documented history of discrimination in voting with 
discernible present day effects, Congress has determined on 
several occasions that the best way to enhance minority 
political inclusion is to take account of and try to ameliorate 
racial cleavages rather than seeking to explain them away.

The contemporary party alignments happened over time, 
but they cannot be said to be sufficiently different in nature 
from the trend that began prior to the passage of the Voting 
Rights Act to justify a prophylactic rule that places them 
beyond the reach of courts. See Grofman & Handley, 65 Miss. 
L.J. at 229 (explaining that Blacks have been overwhelmingly 
Democratic in their party affiliation since 1964, and whites 
have become increasingly Republican).8 The contemporary

8In Gingles, 478 U.S. at 40, this Court acknowledged the 
record evidence of the use of race to divide the electorate for



24

partisan trends emerged in a context that scholars and political 
operatives both recognize. See Karlan & Levinson, 84 Cal. L. 
Rev . at 1223 (citing Thomas B. Edsall & Mary D. Edsall, 
Chain Reaction; The Impact of Race Rights, and Taxes 
on American Politics, at 151 (1991) (arguing that racial 
attitudes after the 1960s “became a central characteristic of 
both ideology and party identification, integral to voters’ 
choices between Democrats and Republicans”).

Indeed, even political partisans, at times, express a 
willingness to acknowledge the role that race has played in the 
prevailing political alignment. As the Washington Post 
recently reported, in a prepared speech delivered to the NAACP 
during its national conference in July of 2005, Republican 
National Committee Chairman, Ken Mehlman, apologized for 
“the southern strategy,” which the paper described as 
“Republican efforts to use race as a wedge issue on matters 
such as desegregation and busing — to appeal to white 
southern voters.” Mike Allen, RNC Chief to Say It Was 
‘Wrong ’ to Exploit Racial Conflict fo r Votes, Washington 
Post, July 14 2005, at A4. “By the ’70s and into the 80s and

nearly a century, continuing beyond the date of the last Voting 
Rights Act renewal:

[T]he [district] court found that white candidates in North 
Carolina have encouraged voting along color lines by 
appealing to racial prejudice. It noted that the record is 
replete with specific examples of racial appeals, ranging in 
style from overt and blatant to subtle and furtive, and in date 
from the 1890’s to the 1984 campaign for a seat in the 
United States Senate. The court determined that the use of 
racial appeals in political campaigns in North Carolina 
persists to the present day and that its current effect is to 
lessen to some degree the opportunity of black citizens to 
participate effectively in the political processes and to elect 
candidates of their choice.



25

90s, the Democratic Party solidified its gains in the African 
American community, and we Republicans did not effectively 
reach out . . .  . Some Republicans gave up on winning the 
African American vote, looking the other way or trying to 
benefit politically from racial polarization. I am here today as 
the Republican Chairman to tell you we were wrong.” Id.

Nor is the history of the Democratic Party without 
substantial racial strife. See Mary Frances Berry & John W. 
Blassingame, Long Memory; the Black Experience in 
America 385 (1982) (detailing the exclusion of the integrated 
Mississippi Freedom Democratic Party from the party’s 
national convention in 1964); Paul Frymer, Uneasy 
Alliances; Race and Party Competition in America 3-7 
(1999) (detailing the neglect of African-American interests by 
the modem Democratic party). Indeed, Frymer observes more 
broadly that “[a]t most moments in American history, the desire 
of political parties to seek national office has meant
marginalization for African Americans---- We are . . .  one of
few democratic nations where party leaders have an incentive 
to appeal almost exclusively to the majority group.” Id. at 6.

In light of this history, whether desirable or not, it seems 
particularly incongruous for a court to begin its analysis of a 
congressionally mandated minority voting protection and 
political fairness measure with the presumption that racial 
patterns of partisan affiliation negate the significance of 
persistent racial polarization at the ballot box. A rule whose 
expansion has the potential to allow political parties to “benefit 
politically from racial polarization” rather than ameliorating it 
is unwarranted.



26

C. Whether or Not It Holds that There Are 
Constitutional Limits to Partisan Gerrymandering 
in the Redistricting Process, the Court Should 
Explicitly Disapprove the Fifth Circuit’s Unique 
Partisanship Exception to Section 2.

For the reasons we have described above, politics in the 
United States is now substantially intertwined with race and 
ethnicity, and correspondingly, partisan gerrymandering may 
dramatically impact minority voting strength, as the highly 
partisan redistricting plan at issue in these appeals 
demonstrates. With support from Members of both major 
political parties, Congress has exercised its constitutional 
authority to place minority voting rights above partisan political 
interests through the passage and renewal of the Voting Rights 
Act.9

If this court allows the continued application of a rule that 
racial or ethnic polarization in partisan alignment negates the 
existence of the Gingles preconditions of cohesive minority 
voting and racially polarized voting, it will place minority 
voters beyond the reach of Section 2 protections. This result is 
contrary to the language and purposes of the Voting Rights Act 
and this Court should expressly disapprove it in these appeals, 
whether or not it fashions limitations on partisan gerrymanders.

The need for the Court explicitly to address the LULAC 
rule is especially critical if  the result of its renewed 
deliberations on partisan gerrymandering places no substantial 
limitations upon that device, as party organizations can be

9Cf. Vieth, 541 U.S. at 275 (discussing Congress’ authority 
over Congressional districting pursuant to Art. I, Sec. 4 of the 
Constitution and noting the failure to exercise that authority in 
recent history to limit partisan gerrymandering).



27

expected to maximize political advantage in this fashion to the 
greatest extent allowable by the law.

CONCLUSION

For the foregoing reasons, amicus curiae respectfully 
suggests that the judgment below should be vacated and the 
case remanded for reconsideration in light of the clarified 
Gingles standards urged in this brief.

Respectfully submitted,

Theodore M. Shaw 
Director-Counsel 
Jacqueline A. Berrien 

*Norman J. Chachkin 
Debo P. Adegbile 
Chinh Q. Le 
Jenigh J. Garrett 
NAACP Legal Defense 

and Educational Fund, Inc . 
99 Hudson Street, 16th Floor 
New York, NY 10013 
(212) 965-2200

*Counsel o f  Record 

Attorneys for  Amicus Curiae

Dated: January 10, 2006