THE RIDDLE OF RACE-BASED REDISTRICTING

The Supreme Court has adopted divergent interpretations of the Equal Protection Clause as applied to race and redistricting. Vote dilution doctrine requires mapmakers to consider race to ensure that racial minorities are not packed or cracked. Congress, moreover, has embraced vote dilution doctrine in Section 2 of the Voting Rights Act. By contrast, racial gerrymandering doctrine triggers strict scrutiny if mapmakers subordinate traditional redistricting principles to race, thereby threatening Section 2’s constitutionality.

To resolve this doctrinal riddle, this Essay examines whether, as originally understood, the Fourteenth or Fifteenth Amendment governed the use of race during redistricting. The Equal Protection Clause did not apply to political rights. Indeed, the Fifteenth Amendment enfranchised Black men nationwide. The Reconstruction Framers debated whether the Fifteenth Amendment also protected the right to hold office, but they barely discussed redistricting.

This Essay then turns to postratification evidence. The Enforcement Acts did not regulate the use of race during redistricting. During the 1870 and 1880 redistricting cycles, Republican Southern states empowered Black voters whereas Democratic Southern states packed and cracked them.

This Essay argues that, from an originalist perspective, the competing doctrines of vote dilution and racial gerrymandering are improperly grounded in the Equal Protection Clause. This Essay further claims that, under the Fifteenth Amendment, there is some historical evidence in favor of vote dilution doctrine but virtually no historical support for racial gerrymandering doctrine. The upshot is that Section 2 is valid legislation under Congress’s Fifteenth Amendment enforcement authority to protect the rights to vote and hold office.

The full text of this Essay can be found by clicking the PDF link to the left.

*Associate Professor of Law, Washington University in St. Louis. For helpful comments and conversations, I thank Danielle D’Onfro, Dan Epps, David Gans, Heather Gerken, Sam Issacharoff, Michael Kang, Elizabeth Katz, Morgan Kousser, Ron Levin, Greg Magarian, Bertrall Ross, Josh Sellers, Arin Smith, Larry Solum, Franita Tolson, and Alex Tsesis, as well as participants at the Second Founding Conference at Tulane Law School, the Election Law Conference at Washington University in St. Louis, and faculty workshops at Northwestern Pritzker School of Law and Washington University in St. Louis. For outstanding librarian support, I thank Peter Hook. For excellent research assistance, I thank Dominique Alvarado-Holden, Jacqueline Beaulieu, Macy Cecil, and Andrew Englund. Finally, I thank the editors of the Columbia Law Review for their hard work on this Essay.

Introduction

In drawing redistricting plans, mapmakers are confronted with a Goldilocks problem when considering race. Mapmakers cannot consider race too much or too little. They must get it just right.

On the one hand, mapmakers must consider race to ensure that minorities’ right to vote is not diluted by packing or cracking them into districts. 1 See, e.g., Johnson v. De Grandy, 512 U.S. 997, 1007 (1994) (“[M]anipulation of district lines can dilute the voting strength of . . . minority group[s] . . . , whether by fragmenting the[m] . . . among several districts where a bloc-voting majority can routinely outvote them, or by packing them into one or a small number of districts to minimize their influence in the districts next door.” (citing Voinovich v. Quilter, 507 U.S. 146, 153–54 (1993))). This doctrine—known as racial vote dilution—was first articulated as an equal protection violation by the Supreme Court in its 1973 decision in White v. Regester 2 412 U.S. 755, 765–69 (1973). and subsequently endorsed and expanded by Congress in the 1982 amendments to Section 2 of the Voting Rights Act (VRA). 3 See Chisom v. Roemer, 501 U.S. 380, 393–96 (1991) (discussing the Voting Rights Act Amendments of 1982, Pub. L. No. 97-205, § 3, 96 Stat. 131, 134 (codified as amended at 52 U.S.C. § 10301 (2018))). To avoid confusion, this Essay refers to statutory provisions by Arabic numerals and to constitutional provisions by spelling them out. For example, this Essay refers to Section 2 of the VRA and Section Two of the Fifteenth Amendment. Most importantly, Congress adopted a discriminatory results standard for Section 2, which mandates the creation of majority-minority districts under certain circumstances. 4 See Bartlett v. Strickland, 556 U.S. 1, 10–13 (2009) (plurality opinion) (commenting that Section 2 may require the creation of majority-minority districts when a “minority group composes a numerical, working majority of the voting-age population” and there is racial bloc voting).

On the other hand, mapmakers cannot rely too heavily on race. In its 1993 decision in Shaw v. Reno, the Court recognized an “analytically distinct” cause of action for racial gerrymandering under the Equal Protection Clause. 5 509 U.S. 630, 652 (1993). Under Shaw, “if racial considerations predominated over [traditional redistricting principles], the design of the district must withstand strict scrutiny.” 6 Cooper v. Harris, 137 S. Ct. 1455, 1464 (2017). By subjecting districts to the strong medicine of strict scrutiny, Shaw limits the use of race in the redistricting process.

Thus, “a legislature attempting to produce a lawful districting plan is vulnerable to ‘competing hazards of liability’” because the Equal Protection Clause simultaneously “restricts consideration of race and . . . demands consideration of race.” 7 Abbott v. Perez, 138 S. Ct. 2305, 2315 (2018) (quoting Bush v. Vera, 517 U.S. 952, 977 (1996) (plurality opinion)). These two doctrines—racial vote dilution and racial gerrymandering—reflect conflicting interpretations of the Equal Protection Clause. Racial vote dilution doctrine harks back to an age when the Court was more comfortable with race-conscious decisionmaking, whereas Shaw embodies the current Court’s colorblind interpretation of the Constitution. For decades, these doctrines have lived in an uneasy détente, and the Court has expressly declined to answer whether compliance with Section 2 is a compelling governmental interest. 8 See id. (“[W]e have assumed that compliance with the VRA may justify the consideration of race in a way that would not otherwise be allowed. In technical terms, we have assumed that complying with the VRA is a compelling state interest . . . .”).

The Fifteenth Amendment is curiously missing from the Court’s decisions recognizing vote dilution and racial gerrymandering claims. 9 Cf. Eric Foner, The Second Founding: How the Civil War and Reconstruction Remade the Constitution 170 (2019) [hereinafter Foner, Second Founding] (observing that “the Fifteenth [Amendment] plays only a minor role in modern constitutional law”). The Court has repeatedly refused to answer whether the Fifteenth Amendment prohibits vote dilution. 10 The Court has reaffirmed this point even after a plurality concluded that the Fifteenth Amendment does not encompass vote dilution claims. See Voinovich v. Quilter, 507 U.S. 146, 159 (1993) (“This Court has not decided whether the Fifteenth Amendment applies to vote-dilution claims . . . .”); City of Mobile v. Bolden, 446 U.S. 55, 65 (1980) (plurality opinion) (concluding that the Fifteenth Amendment “prohibits only purposefully discriminatry denial or abridgment by government of the freedom to vote”), superseded by statute, Voting Rights Act Amendments of 1982, Pub. L. No. 97-205, § 2, 96 Stat. 131, 134 (codified as amended at 52 U.S.C. § 10301 (2018)). Meanwhile, the Shaw Court briefly referenced the Fifteenth Amendment in a rhetorical flourish, 11 See Shaw v. Reno, 509 U.S. 630, 657 (1993) (“Racial gerrymandering . . . threatens to carry us further from the goal of a political system in which race no longer matters—a goal that the Fourteenth and Fifteenth Amendments embody, and to which the Nation continues to aspire.”). but it ultimately grounded the racial gerrymandering claim in the Equal Protection Clause. 12 See id. at 642 (concluding that “appellants have stated a claim upon which relief can be granted under the Equal Protection Clause”). This doctrinal ambiguity is counterintuitive given that the Fifteenth Amendment—not the Equal Protection Clause—was responsible for enfranchising Black men nationwide in 1870. 13 See Travis Crum, The Unabridged Fifteenth Amendment, 133 Yale L.J. 1039, 1055–56 (2024) [hereinafter Crum, Unabridged Fifteenth Amendment]. Put differently, the Fifteenth Amendment is the Constitution’s original prohibition of racial discrimination in voting.

In two recent cases from the 2020 redistricting cycle, the Court grappled with the riddle of race-based redistricting. In its 2023 decision in Allen v. Milligan, 14 143 S. Ct. 1487 (2023). In the interest of full disclosure, I filed an amicus brief in support of the plaintiffs in this case at the Supreme Court. See Brief for Professor Travis Crum as Amicus Curiae Supporting Respondents, Milligan, 143 S. Ct. 1487 (Nos. 21-1086 & 21-1087), 2022 WL 2873374. the Court confronted the tension between Section 2, Shaw, and the Reconstruction Amendments. In Milligan, civil rights groups brought a Section 2 challenge against Alabama’s congressional redistricting plan, which had only one majority-Black district out of seven districts even though Alabama’s population is twenty-seven percent Black. 15 See Milligan, 143 S. Ct. at 1502, 1553. In defending its redistricting plan, Alabama marshaled several arguments based on Shaw, seeking to minimize the use of race in the redistricting process and raising constitutional avoidance concerns about Section 2’s application to single-member redistricting plans. 16 See Brief for Appellants at 31, 76, Milligan, 143 S. Ct. 1487 (Nos. 21-1086 & 21-1087), 2022 WL 1276146.

In a shocking decision siding with the plaintiffs, the Court rebuffed “Alabama’s attempt to remake . . . § 2 jurisprudence anew” 17 Milligan, 143 S. Ct. at 1506. and “reject[ed] Alabama’s argument that § 2 as applied to redistricting is unconstitutional under the Fifteenth Amendment.” 18 Id. at 1516. The Court’s characterization of Section 2 as Fifteenth Amendment enforcement legislation is particularly intriguing because the underlying doctrinal basis for vote dilution doctrine remains the Equal Protection Clause. On this point, the Milligan Court’s reasoning contains an unexplained assumption. The Court skipped over whether the Fifteenth Amendment applies to redistricting, jumping instead to the question of whether Congress could enact a discriminatory results standard under its Fifteenth Amendment enforcement authority. Milligan nevertheless demonstrates the potential in viewing the Fifteenth Amendment as an independent constitutional provision—one that can justify more aggressive congressional action to protect the right to vote free of racial discrimination. 19 See infra sections I.C, IV.B.1.

But Section 2 is not out of the woods yet. In Milligan, Justice Clarence Thomas, joined by Justices Neil Gorsuch and Amy Coney Barrett, reiterated his long-standing belief that the VRA is unconstitutional as applied to vote dilution claims. 20 See Milligan, 143 S. Ct. at 1538–39 (Thomas, J., dissenting). Justice Samuel Alito did not join this portion of Thomas’s dissent. In his own dissenting opinion, Alito focused on why the plaintiffs failed to satisfy the first Gingles prong. See id. at 1548–49 (Alito, J., dissenting); see also Thornburg v. Gingles, 478 U.S. 30, 50 (1986); infra section I.A.2 (explaining the Gingles factors). Even though Justice Brett Kavanaugh sided with the plaintiffs, he declined to join a key part of Chief Justice John Roberts’s opinion concerning the relationship between Shaw’s racial predominance standard and Section 2, thereby reducing it to a mere plurality. 21 See Milligan, 143 S. Ct. at 1510–11 (plurality opinion) (discussing the relationship between racial predominance and Section 2). And in a concurring opinion, Kavanaugh signaled his openness to an argument raised in Thomas’s dissent: that Section 2 is invalid on the grounds that Congress’s authority to require “race-based redistricting cannot extend indefinitely into the future.” 22 Id. at 1519 (Kavanaugh, J., concurring); see also id. (declining to reach this “temporal argument” because Alabama did not raise it); id. at 1543–44 (Thomas, J., dissenting) (criticizing Section 2 for lacking a termination date). The Court recently invoked a temporal argument to invalidate race-based affirmative action in college admissions programs, 23 See Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 143 S. Ct. 2141, 2172 (2023) (citing Grutter v. Bollinger, 539 U.S. 306, 343 (2003)) (invoking Grutter’s twenty-five-year time limit as grounds for invalidating Harvard’s and UNC’s affirmative action programs); id. at 2222–23 (Kavanaugh, J., concurring) (arguing that affirmative action programs must have an end point). foreshadowing that a similar claim could be used in a future Shaw case. 24 Indeed, this temporal argument is a close cousin of the Shelby County Court’s criticism that the VRA’s coverage formula was based on outdated information. See Shelby County v. Holder, 570 U.S. 529, 556 (2013) (“There is no valid reason to insulate the coverage formula from review merely because it was previously enacted 40 years ago. If Congress had started from scratch in 2006, it plainly could not have enacted the present coverage formula.”); Allison Orr Larsen, Do Laws Have a Constitutional Shelf Life?, 94 Tex. L. Rev. 59, 109–13 (2015) (critiquing Shelby County’s stale facts argument). Predictably, states are already raising this temporal argument in the lower courts. 25 See Alpha Phi Alpha Fraternity, Inc. v. Raffensperger, No. 1:21-CV-5337-SCJ, 2023 WL 5674599, at *20 (N.D. Ga. July 17, 2023) (rejecting Georgia’s temporal argument about Section 2’s constitutionality). Thus, Shaw remains a looming threat to Section 2’s constitutionality.

In 2024, the Court decided Alexander v. South Carolina Conference of the NAACP, 26 144 S. Ct. 1221 (2024). a Shaw claim brought by civil rights groups against a majority-white district. In an opinion by Justice Samuel Alito, the Court accepted South Carolina’s “party not race” defense, 27 See id. at 1240. effectively greenlighting a strategy for mapmakers to raise partisan gerrymandering as a defense to Shaw claims. 28 See id. at 1270 (Kagan, J., dissenting) (“The suspicion, and indeed derision, of suits brought to stop racial gerrymanders are self-evident; the intent to insulate States from those suits no less so.”). Thomas’s concurrence, however, makes Alexander far more remarkable. Despite being one of Shaw’s most vocal supporters for decades, Thomas renounced Shaw, declaring that racial gerrymandering claims were nonjusticiable political questions. 29 See id. at 1253 (Thomas, J., concurring in part). Intriguingly, one of Thomas’s analytical moves was to reject the Equal Protection Clause’s application to race and redistricting. 30 See id. at 1260–61 (arguing that the Equal Protection Clause’s text and the existence of the Fifteenth Amendment make the Equal Protection Clause “an unlikely source for claims about political districting”). Thomas did not attempt to reconcile his new position with the VRA’s constitutionality, 31 See id. at 1252 (“This case is unique because it presents solely constitutional questions. The plaintiffs do not rely on the [VRA] for any of their claims. Nor do the South Carolina officials invoke the [VRA] as part of their defense.”). but this Essay shares his impulse to return to first principles. 32 Alexander was decided after this Essay had been accepted for publication and had been workshopped four times. However, this Essay had not yet been posted on a publicly available site, like SSRN. Put simply, the Court’s leading originalist is no longer willing to defend Shaw.

Given originalism’s ascendancy on the Court, 33 See Adam Liptak, Justice Jackson Joins the Supreme Court, and the Debate Over Originalism, N.Y. Times (Oct. 10, 2022), https://www.nytimes.com/2022/10/10/us/politics/jackson-alito-kagan-supreme-court-originalism.html (on file with the Columbia Law Review) (noting that Justices Elena Kagan and Ketanji Brown Jackson endorsed originalism during their confirmation hearings).
To be clear, this Essay recognizes that no Justice follows a consistently originalist methodology and that the very definition of originalism is hotly contested. See infra section II.A. Moreover, originalist arguments are oftentimes selectively, strategically, or even cynically deployed. See, e.g., Jack M. Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation 70–73 (2024) (arguing that lawyers and judges are “cafeteria originalists” who pick and choose among originalist arguments). This Essay nevertheless takes originalist arguments seriously on their own terms, rather than critique the project itself. this Essay investigates the original understanding of the role of race in the redistricting process. Here, the obvious touchstones are the Fourteenth and Fifteenth Amendments. After all, the Fourteenth Amendment is the contemporary jurisprudential font for voting rights. And the Fifteenth Amendment’s guarantee that “[t]he right of citizens . . . to vote shall not be denied or abridged . . . on account of race” 34 U.S. Const. amend. XV, § 1 (emphasis added). clearly bans racially discriminatory voting qualifications but also suggests a broader application.

This Essay advances a multipronged argument concerning vote dilution, racial gerrymandering, and Section 2’s constitutionality. At the outset, neither vote dilution nor racial gerrymandering claims are properly grounded in the original understanding of the Equal Protection Clause. Section One of the Fourteenth Amendment was understood to exclude political rights. 35 See infra section II.C. Section Two was a targeted provision that was intended to punish Southern states in the House and the Electoral College if they failed to enfranchise Black men. 36 See infra section II.C. Indeed, the Reconstruction Framers’ decision to adopt the Fifteenth Amendment—instead of enfranchising Black men nationwide via statute—liquidated any uncertainty surrounding the Fourteenth Amendment’s application to voting rights. 37 See Travis Crum, The Superfluous Fifteenth Amendment?, 114 Nw. U. L. Rev. 1549, 1617–22 (2020) [hereinafter Crum, Superfluous Fifteenth Amendment] (“Congress opted against the statutory option because neither the original Constitution nor the recently ratified Fourteenth Amendment provided sufficient authority. . . . The Fifteenth Amendment was thus a significant expansion of congressional authority to regulate voting rights in the states.” (emphasis omitted)); infra section II.D.1. Thus, from an originalist perspective, the Court has committed a grave category error: grounding two constitutional claims in the wrong amendment. This misstep is particularly damning for Shaw’s originalist defenders, as it suggests that racial gerrymandering claims are based on normative preferences for colorblindness rather than a faithful interpretation of the Equal Protection Clause.

Turning to the Fifteenth Amendment, the subject of redistricting did not feature prominently in its drafting or ratification. Instead, the Reconstruction Framers debated two key questions. First, whether to forbid additional voting qualifications, such as those based on property or education. 38 See infra section II.D.3. Second, whether the right to hold office should be explicitly protected and, once it was deleted from the text, whether it was nevertheless implicitly covered. 39 See infra sections II.D.2–.4. This history suggests that the Reconstruction Framers did not intend to regulate redistricting, but that does not fully answer the original public meaning of the Fifteenth Amendment’s text.

In answering that question, this Essay looks at postratification practice as evidence of original understanding. 40 See infra section III.A (discussing the relevance of postratification evidence). This Essay recounts how Congress declined to regulate race-based redistricting in the Reconstruction era Enforcement Acts and failed to enforce Section Two of the Fourteenth Amendment’s apportionment penalty. 41 See infra sections III.B.1–.2. It also discusses how Congress imposed a one-person, one-vote standard for the 1870 redistricting cycle. 42 See infra section III.B.3. It then excavates congressional redistricting plans from Reconstruction and Redemption to determine how race was used by mapmakers. 43 For the underlying data, this Essay relies on Stanley B. Parsons, William W. Beach & Michael J. Dubin, United States Congressional Districts and Data, 1843–1883 (1986) [hereinafter Parsons et al., 1843–1883], and Stanley B. Parsons, Michael J. Dubin & Karen Toombs Parsons, United States Congressional Districts, 1883–1913 (1990) [hereinafter Parsons et al., 1883–1913]. Although the data are largely derived from these books, I uncovered a systematic error in the 1870-era redistricting tables that downplayed the percentage of Black inhabitants in each district. For Southern states, the 1870 Census contained two tables delineating the number of Black inhabitants across several decades. One was labeled “free colored” while the other was labeled “slave.” After emancipation, the “slave” table zeroes out in 1870. See Francis A. Walker, A Compendium of the Ninth Census (June 1, 1870): Compiled Pursuant to a Concurrent Resolution of Congress, and Under the Direction of the Secretary of the Interior 14–16 (1872) [hereinafter 1870 Census]. It appears that Parsons, Beach, and Dubin continued using the “slave” table rather than the accurate “free colored” table for some counties. Compare id. at 25 (showing that Etowah County, Alabama, had 1,708 Black inhabitants in 1870), with Parsons et al., 1843–1883, supra, at 146 (showing Etowah County, Alabama, as having a total population of 10,109 inhabitants and 0.0% for the Black percentage of the population). This Essay corrects that error using census data and notes when doing so by citing to the 1870 Census. These practices are particularly probative of original understanding because the 1870 redistricting cycle was the first one conducted after the ratification of the Reconstruction Amendments and the widespread enfranchisement of Black men. At the time, voting was intensely racially polarized in the Southern states: Black voters overwhelmingly backed Republicans while white voters mostly supported Democrats. 44 See infra section II.B. Indeed, this political alignment was openly discussed and motivated the Reconstruction Framers—who were all Republicans—to pass the Fifteenth Amendment. 45 See infra section II.D. Mapmakers, therefore, could rely on race as a proxy for partisanship when drawing districts. 46 See J. Morgan Kousser, Colorblind Injustice: Minority Voting Rights and the Undoing of the Second Reconstruction 29 (1999) (“Since voting was well known at the time to be extremely racially polarized—a conclusion borne out by extensive statistical analyses—a partisan gerrymander amounted to a racial gerrymander.” (citation omitted)). Unsurprisingly, both Republican and Democratic state legislatures did so. 47 See infra section III.C.

In light of this evidence, there is little historical support for Shaw’s racial gerrymandering cause of action under the Fifteenth Amendment. Even assuming the Fifteenth Amendment applies to redistricting, the Reconstruction Framers were comfortable with race-conscious decisionmaking, as evidenced by their frequent references to racial bloc voting. Moreover, there is postratification evidence that Republican legislatures in the South took race into account when drawing congressional districts. 48 See infra section III.C.

By contrast, Democrats packed and cracked Black voters when they seized power at the end of Reconstruction, thus providing a historical antecedent to contemporary vote dilution. On this point, the historical record on whether these actions were viewed as constitutional violations lacks clarity, as vote dilution was just one of many tools—including discriminatory voting qualifications and outright violence—employed by racist Southerners to neutralize the political power of Black men and effectively nullify the Fifteenth Amendment. 49 See infra section IV.B; see also Foner, Second Founding, supra note 9, at 144 (discussing the role of violence in the overthrow of Reconstruction).

Finally, given potential disagreement over the original understanding of the Fourteenth and Fifteenth Amendments’ application to race-based redistricting, Section 2 of the VRA is best defended as an exercise of Congress’s Fifteenth Amendment enforcement authority to remedy racial discrimination in voting and protect the effective right of racial minorities to hold office. 50 See infra Part IV. Viewing Section 2 as Fifteenth Amendment enforcement legislation—as the Court did in Milligan—is critical because Congress has more leeway to pass enforcement legislation under that Amendment than the Fourteenth. Conversely, with little historical support for Shaw, the primary threat to Section 2’s constitutionality evaporates.

In addition, under the Elections Clause, Congress has near plenary authority to regulate federal elections, which would include the power to set requirements for congressional redistricting. 51 See U.S. Const. art. I, § 4 (“Congress may at any time by Law make or alter [federal election] Regulations . . . .”). Absent any race-based, external restraint from the Reconstruction Amendments, Congress would be free to impose Section 2 on the states for purposes of congressional redistricting. 52 Under the Elections Clause, Congress can preempt state laws that regulate federal elections. See id. (“The Times, Places and Manner of holding Elections for . . . Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations . . . .”); Arizona v. Inter Tribal Council of Ariz., Inc., 570 U.S. 1, 13–15 (2013) (holding that there is no presumption against preemption under the Elections Clause).

In articulating these claims, this Essay makes several contributions. The literature on the Fourteenth Amendment could fill a small library. The Fifteenth Amendment, however, has been largely ignored by legal scholars. 53 Indeed, legal scholarship that primarily focuses on the Fifteenth Amendment’s adoption can be summarized in a long footnote. See Earl M. Maltz, Civil Rights, the Constitution, and Congress, 1863–1869, at 142–56 (1990) [hereinafter Maltz, Civil Rights] (claiming that the Fifteenth Amendment prohibits only facially discriminatory laws); 2 The Reconstruction Amendments: The Essential Documents 435–597 (Kurt T. Lash ed., 2021) [hereinafter The Essential Documents] (compiling primary sources); Vikram David Amar & Alan Brownstein, The Hybrid Nature of Political Rights, 50 Stan. L. Rev. 915, 928–56 (1998) (arguing that the Reconstruction Framers had a race-conscious approach to adopting the Fifteenth Amendment); Vikram David Amar, Jury Service as Political Participation Akin to Voting, 80 Cornell L. Rev. 203, 222–41 (1995) [hereinafter Amar, Jury Service] (discussing the Fifteenth Amendment’s drafting and its relevance to the right to serve on a jury); Alfred Avins, Literacy Tests and the Fifteenth Amendment: The Original Understanding, 12 S. Tex. L.J. 24, 64–66 (1970) (arguing that Congress could not ban literacy tests under its Fifteenth Amendment enforcement authority); Alfred Avins, The Right to Hold Public Office and the Fourteenth and Fifteenth Amendments: The Original Understanding, 15 U. Kan. L. Rev. 287, 304 (1967) (arguing that the Fifteenth Amendment does not protect the right to hold office); Henry L. Chambers, Jr., Colorblindness, Race Neutrality, and Voting Rights, 51 Emory L.J. 1397, 1425 (2002) (“[T]he Fifteenth Amendment should not be viewed as merely adding the right to vote to the list of other rights to be protected under the Constitution and . . . the Fourteenth Amendment.”); Gabriel J. Chin, Reconstruction, Felon Disenfranchisement, and the Right to Vote: Did the Fifteenth Amendment Repeal Section 2 of the Fourteenth Amendment?, 92 Geo. L.J. 259, 263–64 (2004) (arguing that the Fifteenth Amendment effectively repealed Section Two of the Fourteenth Amendment); Travis Crum, The Lawfulness of the Fifteenth Amendment, 97 Notre Dame L. Rev. 1543, 1573–91 (2022) [hereinafter Crum, Lawfulness of the Fifteenth Amendment] (discussing the irregularities in the Fifteenth Amendment’s adoption); Travis Crum, Reconstructing Racially Polarized Voting, 70 Duke L.J. 261, ‌
314–20 (2020) [hereinafter Crum, Racially Polarized Voting] (criticizing the Court’s treatment of racially polarized voting as inconsistent with the Fifteenth Amendment’s historical context); Crum, Superfluous Fifteenth Amendment, supra note 37, at 1602–17 (discussing the Fortieth Congress’s decision to pass a constitutional amendment rather than a nationwide suffrage statute); Crum, Unabridged Fifteenth Amendment, supra note 13, at 1050 (arguing that the Fifteenth Amendment bans the use of racial proxies and protects the right to hold office); David P. Currie, The Reconstruction Congress, 75 U. Chi. L. Rev. 383, 452–56 (2008) (summarizing the history of the Fifteenth Amendment’s adoption); Earl Maltz, The Coming of the Fifteenth Amendment: The Republican Party and the Right to Vote in the Early Reconstruction Era, 82 La. L. Rev. 395, 418–43 (2022) [hereinafter Maltz, Coming of the Fifteenth] (surveying the congressional debate over the Fifteenth Amendment); Richard M. Re & Christopher M. Re, Voting and Vice: Criminal Disenfranchisement and the Reconstruction Amendments, 121 Yale L.J. 1584, 1630–41 (2012) (discussing the Fifteenth Amendment’s adoption and felon disenfranchisement laws). This Essay is the first to examine the Fifteenth Amendment’s application to redistricting through an originalist lens. My past work that canvassed the Fifteenth Amendment’s adoption explicitly declined to resolve open doctrinal questions such as the Fifteenth Amendment’s application to redistricting. 54 See Crum, Unabridged Fifteenth Amendment, supra note 13, at 1123. This Essay answers that question and is the first piece in a trilogy that examines the Fifteenth Amendment’s application to redistricting, private action, and facially neutral voting qualifications. In a similar vein, this Essay is the first to thoroughly analyze the originalist underpinnings of both vote dilution and racial gerrymandering doctrine. 55 Two other papers have made similar—but more limited—claims. First, Vikram Amar and Alan Brownstein questioned Shaw’s doctrinal underpinnings on Fifteenth Amendment grounds. See Amar & Brownstein, supra note 53, at 919 (describing the contradiction between the reasons for the Fifteenth Amendment and the reasoning in Shaw). But their article gave “only brief consideration” to vote dilution doctrine over the course of two pages. Id. at 976–77. Second, in a prior article, I critiqued the Court’s treatment of racial bloc voting as a constitutional taboo. See Crum, Racially Polarized Voting, supra note 53, at 310–11. That article gestured toward a holistic reassessment of voting rights jurisprudence based on the Fifteenth Amendment, but it “d[id] not purport to exhaustively address whether the Fifteenth Amendment prohibits vote dilution.” Id. at 326. And although other scholars—particularly historians—have looked to redistricting during Reconstruction and Redemption to demonstrate how Jim Crow was established, 56 See, e.g., Joseph H. Cartwright, The Triumph of Jim Crow: Tennessee Race Relations in the 1880s, at 223 (1976) (discussing vote dilution of Tennessee congressional districts); Eric Foner, Reconstruction: America’s Unfinished Revolution: 1863–1877, at 590 (1988) [hereinafter Foner, Reconstruction] (discussing the packing of Mississippi’s Black voters in a “‘shoestring’ Congressional district running the length of the Mississippi River”); Kousser, supra note 46, at 26–31 (discussing vote dilution in congressional districts in Mississippi, North Carolina, and South Carolina); Howard N. Rabinowitz, Race Relations in the Urban South, 1865–1890, at 270 (1978) (“Gerrymandering in its various forms was the most effective tactic used by sympathetic legislatures both to redeem the cities and to keep them in the hands of white Democrats.”); Lawrence D. Rice, The Negro in Texas, 1874–1900, at 25 (1971) (discussing vote dilution in Texas’s judicial districts); Sarah Woolfolk Wiggins, The Scalawag in Alabama Politics, 1865–1881, at 104 (1977) [hereinafter Wiggins, Alabama Politics] (discussing the Democratic gerrymander of Alabama’s congressional districts); see also Carol M. Swain, Black Faces, Black Interests: The Representation of African Americans in Congress 20–29 (1993) (surveying the election of Black politicians to Congress during Reconstruction). this Essay is the first to use those redistricting plans to shine light on the original understanding of the Fourteenth and Fifteenth Amendments. Finally, this Essay makes a novel argument that Section 2 can be reconceptualized as protecting the right of minority politicians to hold office, as opposed to focusing on the right of minority voters to elect their candidates of choice.

The Essay proceeds as follows. Part I canvasses the Court’s doctrine on vote dilution and racial gerrymandering, highlighting the tension in how the Court has interpreted the Equal Protection Clause while ignoring the Fifteenth Amendment. Part II examines the original understanding of the Fourteenth and Fifteenth Amendments as applied to voting rights and redistricting. Part III excavates postratification evidence of how Congress and states approached the use of race in redistricting during Reconstruction and Redemption. Part IV reconciles vote dilution and racial gerrymandering doctrine with the original understanding of the Fourteenth and Fifteenth Amendments. Part IV concludes by arguing that Section 2 can be defended as an exercise of Congress’s Fifteenth Amendment enforcement authority.