Republican Former Governors to U.S. Supreme Court: Protect Minority Voters’ Right to Fair Representation Under the Voting Rights Act

Published: 7.19.22

Washington, D.C. — A group of Republican former governors, represented by the States United Democracy Center, Cooley LLP, and Jonathan L. Williams, P.A., filed a friend-of-the-court brief in Merrill v. Milligan and Merrill v. Caster (consolidated) urging the U.S. Supreme Court to uphold key portions of the federal Voting Rights Act (VRA) that protect minority voters from having their voting power diluted. The VRA forbids states and political subdivisions from drawing voting districts in ways that frustrate minority voters’ ability to elect candidates of their choice—a practice commonly known as minority vote dilution. The brief was signed by former California Governor Arnold Schwarzenegger, former Massachusetts Governor William F. Weld, and former New Jersey Governor Christine Todd Whitman.

The brief highlights the importance of ensuring that minority voters, like all Americans, can elect candidates who will represent their interests and urges the U.S. Supreme Court to uphold the precedent set in Thornburg v. Gingles in 1986. In Gingles, the court held that minority vote dilution violates Section 2 of the VRA if plaintiffs can prove that:

1. 1. 1. A “minority group” is “sufficiently large and geographically compact to constitute a majority in some reasonably configured legislative district”

1. 1. 1. The minority group is “politically cohesive,” in that its members vote similarly; and

1. 1. The majority group “vote[s] sufficiently as a bloc” to usually “defeat the minority’s preferred candidate.”

In addition, plaintiffs must show, based on the totality of the circumstances, that the political process is not equally open to minority voters.

In the brief, the former governors highlight that the Gingles framework appropriately maintains state and local autonomy over districting and requires the drawing of majority-minority districts only in limited circumstances.

“For decades, the Supreme Court has recognized that suppressing minority votes poses a grave threat to our representative government. The Court must now keep the integrity of the Voting Rights Act intact,” said former New Jersey Governor Christine Todd Whitman, Co-Chair of the States United Democracy Center. “Our government functions of, by, and for the people, and that means every vote should carry equal weight in the ballot box.”

At issue in the cases is whether Alabama’s 2021 district map for the U.S. House of Representatives violates Section 2 of the VRA. The three-judge Alabama federal court concluded, in a 225-page opinion, that the Alabama Legislature “packed” Black voters into one of seven congressional districts, diluting their voting power, and ordered the state to redraw the maps to include two majority-Black districts. Alabama appealed to the U.S. Supreme Court, which agreed to hear the case. Oral argument before the Court is set for October 4, 2022.

“Politicians should not be allowed to pick their voters. As Governor of California, I saw firsthand how gerrymandering made our legislature less responsive to the people. The Supreme Court must uphold Section 2 of the Voting Rights Act to make redistricting fair,” said Arnold Schwarzenegger, 38th Governor of California and Redistricting Reform Advocate. “The right to vote to every American is fundamental, and I stand opposed to using gerrymandering to dilute voters’ power. This Court’s legacy should not be to destroy the Voting Rights Act.”

“Diluting the voting power of minority voters threatens to undermine the voices of people in their own communities—the redistricting process ultimately plays a role in shaping an area’s schools, hospitals, transit, and more,” said former Massachusetts Governor William F. Weld. “The effects of unfair maps are wide-ranging; gerrymandering is a threat to our democracy as a whole. The Court must uphold the protections that the Voting Rights Act guarantees for a fair political process for all.”

A key excerpt from the brief is included below.

“The Voting Rights Act (‘VRA’) rests on the fundamental principles that fair representation is essential to democracy and that racially discriminatory districting practices threaten both the theoretical underpinnings and practical functioning of democratic government. Racial vote dilution and the suppression of minority voices and power—longstanding, unfortunate features of the political system in Alabama as well as other states across the country—pose a grave threat to fair representation. Section 2 of the VRA guards against racial discrimination in voting, whether intentional or not, and is applied in the redistricting context through the framework this Court set forth in Thornburg v. Gingles, 478 U.S. 30 (1986). As Republican former Governors of diverse states, amici recognize the important role that Gingles plays in protecting minority voters’ right to fair representation.

“At the same time, amici’s experience as state government officials means that they understand that any federal regulation—the VRA included—may impose some burdens. But by constraining state and local authority only when necessary to protect minority representation from dilution, the Gingles test is already carefully drawn to respect and protect state and local autonomy. Critically, Gingles does not demand that majority-minority districts be created wherever they can be drawn, nor does it dictate precisely how such districts must be drawn. To the contrary, it is only when its four separate requirements are satisfied that Gingles requires states and local governments to take such action to protect minority voters’ right to adequate representation. For years, this Court and the lower courts have thoughtfully applied Gingles across a range of scenarios to determine whether a remedy is warranted. There is thus no need or basis to alter the current operation of Gingles. This Court should reject Appellants-Petitioners’ call to do so and affirm the judgment below.”

As states redraw their maps according to the 2020 census, the States United Democracy Center is taking legal action in opposition to gerrymandering and in support of fair maps in courts across the country. Read more about States United’s redistricting work here.

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About the States United Democracy Center

The States United Democracy Center is a nonpartisan organization advancing free, fair, and secure elections. We focus on connecting state officials, law enforcement leaders, and pro-democracy partners across America with the tools and expertise they need to safeguard our democracy. For more information, visit statesuniteddemocracy.org.