I participated in this debate with Jim Blumstein at Vanderbilt Law School. Some excerpts from the story are below:
Last month, Vanderbilt Law School held the third debate in the Respectfully Dissent series, titled “Louisiana v. Callais and the Future of the Voting Rights Act.” The debate featured Nicholas Stephanopoulos, Kirkland & Ellis Professor of Law at Harvard Law School, facing off against James Blumstein, University Distinguished Professor of Constitutional Law and Health Law & Policy at Vanderbilt Law. Moderated by Kevin Stack, Lee S. and Charles A. Speir Chair in Law, the debate explored the competing interpretations of Section 2 of the Voting Rights Act, the unusual procedural posture of the Supreme Court’s pending decision in Louisiana v. Callais, and the constitutional boundaries of race-conscious districting. . . .
Professor Stephanopoulos argued that “Callais should not be an important decision,” explaining that the case originally arrived at the Court as a straightforward racial-gerrymandering challenge, a type of Equal Protection claim the Court periodically hears. . . . Stephanopoulos added, “There’s a real oddity in the Court maybe doing something monumental about Section 2 in what’s not a Section 2 case and where Section 2 is just the background factor that led to the creation of the district that’s now being challenged on other non-statutory grounds.” . . .
Professor Blumstein argued that Section 2 creates a unitary claim focused on openness of the political process. Therefore, vote dilution cannot be a free-standing results claim. Plaintiffs must show that the political process is not “equally open” and that this lack of openness causes minorities to be unable to elect their preferred candidates. Blumstein grounded this interpretation in the statutory text—particularly Section 2(b)—and in Chisom, which he believes clarifies that Section 2 is process-oriented rather than representational. He warned that the Gingles framework is “extra-textual” and risks drifting toward unconstitutional race-based entitlements. . . .
Professor Stephanopoulos firmly rejected the idea that Section 2 requires an imposed time limit. He argued that Section 2 is race-conscious but not race-classifying. He also emphasized that the existing Gingles framework already functions as a built-in time limit. As residential segregation and racial polarization weaken, plaintiffs will naturally fail the Gingles preconditions, he noted, and inapplicable Section 2 claims will fail. These internal guardrails distinguish Section 2 from affirmative action or preclearance, making an added time limit unnecessary.
“Section 2 isn’t like the policies that have gotten time limits in the past,” he said. “That’s because what Section 2 is, fundamentally, just a disparate impact anti-discrimination statute, and the courts have never said that disparate impact laws are temporary or time-limited.”
He added, “Part of the genius of Section 2 is that it promotes minority representation without relying on racial classifications. It relies on race-related concepts like residential segregation and racially polarized voting, but those simply aren’t the same thing as race-based, racially classifying action.”
