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    Alpha Phi Alpha Fraternity, Inc., et al. v. Secretary of State of Georgia (Amicus Brief)

     

    The Eleventh Circuit is set to hear a case that asks it to rewrite Section 2 of the Voting Rights Act by requiring plaintiffs to show that race alone accounts for polarization in the electorate—an impossible-to-satisfy requirement that would reorient the law from its proper focus on discriminatory results to the subjective intent of voters. Georgia Secretary of State Brad Raffensperger filed this appeal after Black voters and organizations successfully challenged the state’s new congressional and legislative maps. The Brennan Center and co-counsel Paul, Weiss, Rifkind, Wharton & Garrison LLP filed an amicus brief supporting plaintiffs-appellees.

    Published: April 18, 2024

    Congress amended Section 2 of the Voting Rights Act in 1982 to ensure that minority voters could challenge district maps, voting rules, and other election policies that produce systemic discriminatory results. Consistent with the text of Section 2, courts have not required minority plaintiffs to prove that lawmakers or voters acted with discriminatory intent. Instead, Section 2 plaintiffs must prove that the challenged policy—when considered in light of past discrimination and current disparities—does not provide minority voters with equal opportunity to participate in the political process and elect candidates of their choice. Now, a case out of Georgia asks the Eleventh Circuit to rewrite this analysis by imposing an unprecedented new evidentiary requirement on minority plaintiffs. Specifically, Georgia’s Secretary of State argues that Section 2 plaintiffs must demonstrate that the electorate largely votes along racial lines and that those voters intended to do so, or that voting along racial lines happens purely due to racial reasons.

    Black Georgians and Georgians of color have made Georgia one of the fastest growing states in recent years. Over the last decade, Georgia’s Black population grew by 16 percent, while the white population decreased during the same period. Black Georgians comprise a third of Georgia residents and people of color account for half of the overall population. But Georgia’s maps failed to account for this growth, and instead systematically minimized the political power of Black Georgians. The State drew only a small handful of new Black-majority districts, and mostly in areas that already elected candidates preferred by Black voters. Shortly after Georgia adopted its legislative and congressional maps in December 2021, plaintiffs filed three federal lawsuits challenging the redistricting plan under Section 2 of the Voting Rights Act.

    In October 2023, after a trial, the district court issued a 516-page opinion that carefully considered the facts of the case and ruled in plaintiffs’ favor. The Secretary of State appealed, making several radical arguments to reverse the district court’s order, each of which would require this Court to depart from the text of the Voting Rights Act and overturn decades of precedent. On April 15, 2024, the Brennan Center, in partnership with co-counsel Paul, Weiss, Rifkind, Wharton & Garrison LLP, filed an amicus brief in support of plaintiffs-appellants to focus on one specific argument made by the Secretary: that Section 2 includes a so-called “racial causation” requirement.

    Since the Supreme Court’s 1986 decision in Thornburg v. Gingles, plaintiffs bringing a Section 2 vote claim must, as a threshold matter, satisfy three preconditions: (1) that the minority group is sufficiently large and geographically compact to constitute a majority in a reasonably configured district; (2) that the minority group is politically cohesive; and (3) that the majority votes sufficiently as a bloc to enable it to defeat the minority’s preferred candidate. Together, these preconditions serve a gatekeeping function—once plaintiffs satisfy the Gingles threshold inquiry, courts weigh the “totality of the circumstances” affecting minority opportunity.

    Under the Secretary’s theory, the district court erred because as part of the third precondition—commonly referred to as “racially polarized voting”—the court did not require plaintiffs to show that race alone, as opposed to political reasons or other factors, caused the majority to vote as a bloc to enable it to defeat the minority’s preferred candidate. In other words, the Secretary would place an unprecedented, additional evidentiary burden on plaintiffs by requiring them to: (1) prove why racial voting patterns exist; and (2) disprove any partisan political explanation, all before the court even made it past the threshold inquiry to reach the totality of the circumstances analysis.

    The Brennan Center’s brief demonstrates that the Secretary’s argument conflicts with the text and structure of Section 2, the legislative history behind the 1982 amendments to Section 2, and decades of binding Supreme Court precedent. Indeed, nothing in the text of Section 2, nor any of the Supreme Court cases that Congress relied on when amending Section 2, requires plaintiffs to prove that racially polarized voting is itself caused by race. And for good reason—Congress intended the 1982 amendments to make clear that Section 2 turns on the presence of discriminatory effects, not discriminatory intent. The Secretary’s argument is simply a thinly veiled attempt to revive the intent requirement that Congress rejected by repackaging it as a “causation” requirement. At bottom, the Secretary wants Black voters to prove the impossible: that white voters intend to discriminate against Black voters solely on the basis of race and for no other reason whatsoever.

    The case will be fully briefed as of May 29, 2024 and the Eleventh Circuit will hear oral argument later this year.

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