Statement as to jurisdiction — Wes Allen, Alabama Secretary of State, et al., Appellants v. Evan Milligan, et al.

Supreme Court briefJan 28, 2022

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No. 21-1086

(No. 21A375)

In the Supreme Court of the United States

──────────────────────────

JOHN H. MERRILL,

IN HIS OFFICIAL CAPACITY AS THE

ALABAMA SECRETARY OF STATE, et al.,

Applicants,

EVAN MILLIGAN, et al.,

Respondents.

──────────────────────────

EMERGENCY APPLICATION FOR

ADMINISTRATIVE STAY AND STAY OR

INJUNCTIVE RELIEF PENDING APPEAL

TO THE SUPREME COURT OF THE

UNITED STATES

──────────────────────────

Dorman Walker

BALCH & BINGHAM LLP

105 Tallapoosa St., Ste. 200

P.O. Box 78 (36101)

Montgomery, AL 36104

(334) 269-3138

DWalker@Balch.com

Jeffrey M. Harris

Taylor A.R. Meehan

CONSOVOY MCCARTHY PLLC

1600 Wilson Blvd., Ste. 700

Arlington, VA 22209

(703) 243-9423

Jeff@ConsovoyMcCarthy.com

Steve Marshall

Attorney General

Edmund G. LaCour Jr.

Counsel of Record

A. Barrett Bowdre

Thomas A. Wilson

James W. Davis

Misty S. Fairbanks Messick

Brenton M. Smith

A. Reid Harris

Benjamin M. Seiss

OFFICE OF THE ATTORNEY GENERAL

STATE OF ALABAMA

501 Washington Avenue

Montgomery, AL 36130-0152

(334) 242-7300

Edmund.LaCour@AlabamaAG.gov

Counsel for Applicants

PARTIES TO THE PROCEEDING AND

RELATED PROCEEDINGS

Applicants are John H. Merrill, in his official capacity as Alabama Secretary of State, State Senator

Jim McClendon, and State Representative Chris Pringle. Applicants were the defendants before the threejudge district court of the U.S. District Court for the

Northern District of Alabama.

Respondents are Evan Milligan, Shalela Dowdy,

Letetia Jackson, Khadidah Stone, Greater Birmingham Ministries, and the Alabama State Conference of

the NAACP. Respondents were plaintiffs before the

three-judge district court. Adia Winfrey was also a

plaintiff before the three-judge court, but she voluntarily dismissed her case.

The proceedings below were:

1. Evan Milligan, et al. v. John Merrill, et

al., No. 2:21-cv-1530 (N.D. Ala.) – preliminary injunction entered January 24,

2022; stay denied January 27, 2022.

Related cases include:

1. Marcus Caster, et al. v. John Merrill, et

al., No. 2:21-cv-1536 (N.D. Ala.) – preliminary injunction entered January 24,

2022; stay denied January 27, 2022.

2. Bobby Singleton, et al. v. John Merrill, et

al., No. 2:21-cv-1291 (N.D. Ala.) – preliminary injunction requested as to

Equal Protection Clause claim, which

the district court declined to decide after

granting the Milligan and Caster motions for preliminary injunction on January 24, 2022; preliminary injunction

entered January 24, 2022; stay denied

January 27, 2022.

iii

RULE 29.6 STATEMENT

Pursuant to Supreme Court Rule 29.6, Applicants

each represent that they do not have any parent entities and do not issue stock.

Respectfully submitted,

Edmund G. LaCour Jr.

Counsel of Record

OFFICE OF THE ATTORNEY GENERAL

STATE OF ALABAMA

501 Washington Avenue

P.O. Box 300152

Montgomery, Alabama 36130-0152

(334) 242-7300

Edmund.LaCour@AlabamaAG.gov

Counsel for Applicant John H.

Merrill

Dated: January 28, 2022

TABLE OF CONTENTS

PARTIES TO THE PROCEEDING AND

RELATED PROCEEDINGS ................................. i

RULE 29.6 STATEMENT ......................................... iii

TABLE OF AUTHORITIES.......................................vi

OPINIONS BELOW ....................................................4

JURISDICTION ..........................................................4

BACKGROUND AND PROCEDURAL HISTORY ....5

A. Alabama’s 2021 Congressional Map ..............5

B. Plaintiffs’ Lawsuits.........................................9

C. The District Court Enjoins Alabama’s

Congressional Districts. ............................... 12

D. The State’s Appeal ........................................ 17

ARGUMENT ............................................................. 17

This Court Is Likely To Note Probable

Jurisdiction And Reverse The ThreeJudge Court. ................................................. 19

A. The court below badly misinterpreted

Gingles’s first precondition beyond

constitutional limits. .............................. 20

B. The injunction also cannot be

reconciled with the statutory text. ........ 31

C. Constitutional avoidance compels a

stay pending appeal. .............................. 32

II. Irreparable Harm Will Result Absent

This Court’s Intervention. ............................ 40

III. The Balance Of Harms And Public

Interest Warrant A Stay .............................. 42

CONCLUSION .......................................................... 44

TABLE OF AUTHORITIES

Cases

Abbott v. Perez,

138 S. Ct. 2305 (2018) ................................. passim

Abrams v. Johnson,

521 U.S. 74 (1997) ......................................... 24, 37

Barr v. Lee,

140 S. Ct. 2590 (2020) ......................................... 28

Bartlett v. Strickland,

556 U.S. 1 (2009) ......................................... passim

Benisek v. Lamone,

138 S. Ct. 1942 (2018) ......................................... 43

Bethune-Hill v. Va. State Bd. of Elections,

137 S.Ct. 788 (2017) ............................................ 28

Brnovich v. Democratic Nat’l Comm.,

141 S. Ct. 2321 (2021) ............................. 30, 32, 39

Bush v. Vera,

517 U.S. 952 (1996) ............................................. 24

Caster v. Merrill,

No. 2:21-cv-1536 .......................................... passim

Cooper v. Harris,

137 S. Ct. 1455 (2017) ................................. passim

Davis v. Chiles,

139 F.3d 1414 (11th Cir. 1998) ........................... 29

Favors v. Cuomo,

881 F. Supp. 2d 356 (E.D.N.Y. 2012) ................. 42

vii

Georgia v. Ashcroft,

539 U.S. 461 (2003) ............................................. 20

Gill v. Whitford,

137 S. Ct. 2289 (2017) ......................................... 17

Gonzalez v. City of Aurora,

535 F.3d 594 (7th Cir. 2008) ................... 22, 25, 30

Graves v. City of Montgomery,

807 F. Supp. 2d 1096 (M.D. Ala. 2011) .............. 41

Growe v. Emison,

507 U.S. 25 (1993) .................................................5

Holder v. Hall,

512 U.S. 874 (1994) ........................... 20, 27, 32, 34

Hollingsworth v. Perry,

558 U.S. 183 (2010) ............................................. 18

Hunt v. Cromartie,

526 U.S. 541 (1999) ...............................................2

Husted v. Ohio State Conference of NAACP,

573 U.S. 988 (2014) ............................................. 43

Johnson v. DeGrandy,

512 U.S. 997 (1994) ....................................... 24, 33

Karcher v. Daggett,

455 U.S. 1303 (1982) ........................................... 17

League of United Latin Amer. Citizens v. Perry

(“LULAC”),

548 U.S. 399 (2006) ..................................... passim

Mac Govern v. Connolly,

637 F. Supp. 111 (D. Mass. 1986) ....................... 17

viii

McCulloch v. Maryland,

4 Wheat. 316 (1819) ............................................ 39

Miller v. Johnson,

512 U.S. 1283 (1994) ......................... 17, 24, 33, 37

Milligan v. Merrill,

No. 2:21-cv-1530 .......................................... passim

Perry v. Perez,

565 U.S. 388 (2012) ..................................... passim

Rostker v. Goldberg,

448 U.S. 1306 (1980) ........................................... 18

Rucho v. Common Cause,

139 S. Ct. 24841 (2019) ................................. 30, 39

Shaw v. Hunt, (“Shaw II”)

517 U.S. 899 (1996)).................... 24, 26, 33, 35, 38

Shaw v. Reno (“Shaw I”),

509 U.S. 630 (1993) ............................. 3, 37, 38, 39

Singleton v. Merrill,

No. 2:21-cv-1291 ............................................ 6, 7, 9

Thompson v. DeWine,

959 F.3d 804 (6th Cir. 2020) ............................... 43

Thornburg v. Gingles,

478 U.S. 30 (1986) ....................................... passim

U.S. Alkali Export Ass’n v. United States,

325 U.S. 196 (1945) ............................................. 18

United States v. Georgia,

546 U.S. 151 (2006) ............................................. 39

Wesch v. Hunt,

785 F. Supp. 1491 (S.D. Ala. 1992) ................ 6, 35

Whitcomb v. Chavis,

396 U.S. 1055 (1970) ........................................... 18

Winter v. NRDC,

555 U.S. 7 (2008) ................................................. 17

Wise v. Lipscomb,

437 U.S. 535 (1978) ...............................................2

Statutes

28 U.S.C. §1651 ....................................................... 4, 5

28 U.S.C. §1651(a) ..................................................... 18

28 U.S.C. §1253 ........................................... 4, 5, 17, 28

28 U.S.C. §2284 ....................................................... 5, 9

52 U.S.C. §10301 ............................................... passim

52 U.S.C. §10301(a) ................................................... 20

52 U.S.C. §10301(b) ........................................... passim

52 U.S.C. §20302(a)(8) .............................................. 41

Ala. Code §17-6-22..................................................... 43

Ala. Code §17-9-3(a) .................................................. 43

Constitutional Provisions

U.S. Const. amend. XV, §§1-2 ................................... 38

Other Authorities

Duchin & Spencer, Models, Race, and the Law,

130 Yale L. J. Forum 744 (2021) ........................ 11

TO THE HONORABLE CLARENCE THOMAS, ASSOCIATE

JUSTICE OF THE SUPREME COURT OF THE UNITED

STATES AND CIRCUIT JUSTICE FOR THE ELEVENTH CIRCUIT:

After receiving the 2020 Census data, the State of

Alabama enacted a new congressional district plan.

Guided by race-neutral redistricting principles, the

State’s congressional plan mirrors district lines of

past plans, making slight adjustments to accommodate population changes. App.227-32. Days ago, a

three-judge district court enjoined Alabama from using the new congressional plan in forthcoming elections. App.5. Why? Because Alabama didn’t “prioritize[] race” over traditional race-neutral redistricting

principles. App.214. According to the three-judge

court, Alabama should have first sorted its voters on

the basis of race, starting with a “non-negotiable” racial target of adding another majority-black district.

App.214.

The three-judge court has barred Alabama from

using its lawfully enacted congressional redistricting

plan on the theory that Alabama violated Section 2 of

the Voting Rights Act. 52 U.S.C. §10301. The State’s

plan contains one majority-black district, as it has for

decades; the court below concluded that the VRA requires two. The preliminary injunction of a State’s

electoral districts at this eleventh hour is by itself extraordinary. But all the more extraordinary is the legal error that pervades the injunction here. The courtordered redraw marks a radical change from decades

of Alabama’s congressional plans. It will result in a

map that can be drawn only by placing race first above

race-neutral districting criteria, sorting and splitting

voters across the State on the basis of race alone.

Well-established in the court below, no race-neutral map drawer would draw that map. In a sample of

more than two million race-neutral maps generated

by Plaintiffs’ own experts, not even one contained two

majority-black districts. There is no better evidence

that the first precondition for a vote dilution claim has

not been met here. See Thornburg v. Gingles, 478 U.S.

30, 50-51 (1986). A second majority-black district that

can be drawn only by initially subverting race-neutral

redistricting criteria to a “non-negotiable” racial target is not a “reasonably configured” district. Cooper v.

Harris, 137 S. Ct. 1455, 1470 (2017). Accordingly, no

invocation of the VRA can justify, much less require,

the race-based redraw of Alabama’s race-neutral map.

The injunction leaves the State with no choice at

all. The State can replace its lawfully enacted congressional district plan with a racial gerrymander and suffer the consequences of follow-on litigation. See Wise

v. Lipscomb, 437 U.S. 535, 540 (1978) (op. of White, J.)

(noting a “new legislative plan,” in response to redistricting litigation would “be the governing law,”

thereby mooting a suit, “unless it, too, is challenged

and found to violate the Constitution”); see, e.g., Hunt

v. Cromartie, 526 U.S. 541, 544-45 (1999). Or the

State can cede its redistricting power to the district

court, which will hire a third party to redraw districts

that segregate Alabamians in Mobile and elsewhere

by race. App.223. Either way, without a stay, the

State’s forthcoming congressional elections will be run

on district lines that never could have been drawn by

the Legislature but for sorting Alabamians on the

basis of race alone. The United States Constitution

cannot tolerate such a perversion of the VRA.

The court’s order is contrary to the promise of the

Equal Protection Clause. The injunction is premised

on the noxious idea that redistricting begins and ends

with racial considerations. The race-based sorting of a

State’s voters that the injunction will require “reinforces the perception that members of the same racial

group—regardless of their age, education, economic

status, or the community in which they live—think

alike, share the same political interests, and will prefer the same candidates at the polls.” Shaw v. Reno

(“Shaw I”), 509 U.S. 630, 647 (1993). And it sends an

“equally pernicious” message to elected representatives in those districts: “their primary obligation is to

represent only the members of that [racial] group, rather than their constituency as a whole.” Id. at 648. If

this is what the VRA requires of single-member districts, then the VRA is unconstitutional as applied

here.

An immediate stay pending appeal is warranted.

Alabama respectfully requests an administrative stay

while the Court considers its stay application, a ruling

on its application for a stay pending appeal as soon as

practicable, as well as expedited consideration of its

ultimate appeal. See, e.g., Abbott v. Perez, 138 S. Ct.

2305, 2319, 2322 (2018); Perry v. Perez, 565 U.S. 388,

392 (2012).1 The State’s pre-election deadlines are

1 To further expedite the proceedings, after granting a stay

or an injunction, the Court should convert this application into a

jurisdictional statement, note probable jurisdiction, and vacate

here, absentee voting for the congressional primaries

is set to begin in little more than two months, with inperson primaries to follow on May 24, and any eleventh-hour change to a State’s existing districts would

require reassignment of hundreds of thousands of voters to new districts. But this particular eleventh-hour

change is constitutionally intolerable: beyond the

massive disruption in Alabama’s forthcoming elections, Alabamians will suffer the constitutional harm

of being assigned to racially segregated districts, irreconcilable with the Fourteenth Amendment, the Fifteenth Amendment, and the VRA as initially conceived.

OPINIONS BELOW

Applicants seek a stay or injunction pending appeal of the three-judge district court’s preliminary injunction, entered on January 24, 2022. The district

court’s opinion and order are reproduced at App.1238. The three-judge court’s denial of a stay pending

appeal is reproduced at App.249-84.

JURISDICTION

This Court has jurisdiction over this application

for a stay pending appeal under 28 U.S.C. §1253 and

§1651. This Court has exclusive jurisdiction to hear

the State’s appeal of the three-judge court’s preliminary injunction of Alabama’s congressional districts.

28 U.S.C. §1253 (Court has jurisdiction over injunctions issued as part of “civil action, suit or proceeding

the district court’s injunction. See, e.g., Abbott, 138 S. Ct. 2305;

Perry, 565 U.S. 1090.

required by any Act of Congress to be heard and determined by a district court of three judges”); see Abbott, 138 S. Ct. at 2319-21; see, e.g., Perry, 565 U.S.

388; Growe v. Emison, 507 U.S. 25 (1993).2 The preliminary injunction is the product of Plaintiffs’ constitutional and VRA challenges to Alabama’s congressional districts. A three-judge court was empaneled to

hear that challenge, 28 U.S.C. §2284, and has now

barred Alabama from using its congressional districts

in forthcoming elections. App.5. The injunction is indisputably issued as part of Plaintiffs’ “civil action” requiring “a district court of three judges.” 28 U.S.C.

§1253. And a stay of that preliminary injunction

would be in aid of this Court’s jurisdiction over the

State’s direct appeal. See, e.g., Perry, 565 U.S. at 392;

see also Milligan v.

Merrill, No. 2:21-cv1530, ECF 76-2 at 52

(comparing 2011 and

2021 Plans) & ECF 89-2 at 28; Caster v. Merrill, No.

2:21-cv-1536, ECF 80-19 at 25-26. The resulting map

is reproduced above. See App.35.

In short, the 2021 Legislature followed “common

practice” by “start[ing] with the plan used in the prior

map and … chang[ing] the boundaries of the prior districts only as needed to comply with the one-person,

one-vote mandate and to achieve other desired ends.”

Cooper, 137 S. Ct. at 1492 (Alito, J., concurring in

part). Doing so “honor[ed] settled expectations and,

[because] the prior plan survived legal challenge, minimize[d] the risk that the new plan w[ould] be overturned.” Id.

B. Plaintiffs’ Lawsuits

Three groups of Plaintiffs filed three lawsuits challenging Alabama’s 2021 congressional redistricting

plan. Each sought a preliminary injunction barring

Alabama from using its enacted congressional districts in the forthcoming elections. The Singleton suit

raised Equal Protection Clause claims. Singleton v.

Merrill, No. 2:21-cv-1291 (N.D. Ala.), ECF 15. The

Milligan suit—the subject of this stay motion and direct appeal—raised Equal Protection and VRA claims.

Milligan v. Merrill, No. 2:21-cv-1530 (N.D. Ala.), ECF

1. The Caster suit raised only a VRA claim. Caster v.

Milligan, No. 2:21-cv-1536 (N.D. Ala.), ECF 101. A

three-judge court was convened for the Singleton and

Milligan suits. See 28 U.S.C. §2284(a). The Caster suit

remained pending before a single judge (who is a

member of the three-judge court), but was combined

with the other two cases for purposes of the preliminary injunction briefing, evidence, hearing, and resulting injunction. App.17-18.4

4 The State is simultaneously seeking a stay pending appeal

in Caster. This case and Caster involve the same facts, the same

legal claims, and the same congressional redistricting plan. The

same three judges presided over the 7-day hearing and considered evidence from all Plaintiffs for any of the three cases.

App.17-18. The one judge assigned to Caster then issued the

same preliminary injunction order and opinion that was issued

in Milligan.

The State has moved for a stay pending appeal in the Eleventh Circuit in Caster. No. 22-10272. But given that this case and

the Caster litigation are inextricably intertwined, involving the

same congressional map and the same VRA theory, the State intends to file in this Court an application for a stay pending appeal

With respect to the VRA claims, the Milligan and

Caster Plaintiffs presented materially the same theory—that Section 2 required Alabama’s congressional

districts to go from one majority-black district (existing District 7) to two (existing District 7 and a completely redrawn District 2). Plaintiffs proposed various demonstration plans, but each added the second

majority-black district in the same way: stretching

both Districts 1 and 2 across the width of the State,

segregating white Alabamians in District 1 and black

Alabamians in District 2. Where historically those of

all races in the Mobile area were grouped together in

a single district, unified by the unique industry and

culture of Alabama’s third-largest city, Mobile’s black

residents would instead be joined with black Alabamians in locations more than 250 miles away. See

App.62, 174 (describing the “split” in “Mobile County

in every illustrative plan”). The resulting black voting-age population of the Plaintiffs’ proposed redrawn

District 2 would barely exceed 50%. See App.92-93;

Milligan v. Merrill, No. 2:21-cv-1530, ECF 88-3 at 10;

Caster v. Merrill, No. 2:21-cv-1536, ECF 75 at 23-34,

ECF 75-5 at 161.

Throughout the proceedings below, one undisputed fact stood out. Millions of illustrative maps generated by Plaintiffs’ own experts—using algorithms

programmed not to consider race—never resulted in a

plan with two majority-black districts. One expert

generated 10,000 maps without any consideration of

race; not a single map included two majority-black

and petition for certiorari before judgment in Caster so that the

matters can be decided together.

districts.5 See App.225; App.295-96 (Tr. 268:23-269:6);

Milligan v. Merrill, No. 2:21-cv-1530, ECF 88-1 at 10

(Imai expert report).6 Another Plaintiffs’ expert testified that she created two million congressional plans

for Alabama, also with a computer algorithm programmed not to “tak[e] race into account in any way.”7

What did she find? Not one of the millions of maps in

her race-neutral algorithm contained two majorityblack districts. App.364 (Tr. 682:11-12) (finding “some

[maps] with one majority-black district, but never

found a second … majority-black district in 2 million

attempts”).

Knowing they could not draw a second majorityblack district using race-neutral traditional districting principles, Plaintiffs’ experts “prioritized” race

first in the creation of their demonstration plans, such

that other redistricting criteria had to “yield.”

App.214. The Milligan Plaintiffs’ expert, for example,

programmed “two majority-black districts” and “population balance” as her “nonnegotiable principles” in

her creation of demonstration plans; only “after that”

did she follow things like “contiguity” and

5 The expert confirmed that his algorithm did not account for

the Legislature’s policy of retaining the cores of existing districts.

App.293-94 (Tr.230:3-14). Meaning, even if a map drawer were

to draw Alabama’s congressional districts on a blank slate, without considering race or Alabama’s existing district lines, the map

drawer would not draw two majority-black districts given Alabama’s demography.

6 “Tr.” refers to the hearing transcript. Full transcripts are

available in Milligan v. Merrill, No. 2:21-cv-1530, ECF 105. Cited

excerpts are included in the appendix.

7 App.364 (Tr. 682); see also Duchin & Spencer, Models, Race,

and the Law, 130 Yale L. J. Forum 744 (2021).

“compactness.” App.329 (Tr. 577:16-20). That is, in

every plan she proposed, she necessarily had to first

subordinate race-neutral districting principles to the

“nonnegotiable principle[]” of hitting her racial targets of two majority-black districts. App.262.

C. The District Court Enjoins Alabama’s

Congressional Districts.

Days ago, the district court granted a preliminary

injunction that bars Alabama from conducting any

congressional elections using the 2021 Plan. App.5.

The Court also delayed Alabama’s candidate qualification deadline by two weeks (moving it to February

11, 2022), and ordered Secretary of State Merrill to

advise the political parties about the delayed deadline. App.5-7. Finally, the Court granted the Legislature fourteen days to enact a remedial plan containing

two majority-black districts “or something quite close

to it”; failing that, the court would enlist a third party

to draw such a remedial plan at Defendants’ expense.

App.6, 222-23, 434-64.

The Court held that Plaintiffs sufficiently demonstrated that two majority-black districts could be

drawn, albeit by “prioritiz[ing] race,” and so they must

be drawn. App.214-15 (describing Plaintiffs’ “compliance” with two-majority-black district “criterion” first,

followed by traditional criteria after). The court reasoned it was sufficient that the two majority-black districts proposed by Plaintiffs were “reasonably compact,” based on “the testimony of eminently qualified

experts in redistricting, and the relative compactness

of the districts in the remedial plans compared to that

of the districts in the [State’s existing] Plan.” App.166.

The analysis included “‘eyeballing’” the Plaintiffs’ proposed plans. App.169. The court acknowledged that

400,000 black individuals reside in Alabama’s largest

cities (Birmingham, Huntsville, Montgomery, and

Mobile), and that the remaining 300,000 black individuals were spread across the State’s Black Belt—

covering 18 counties and stretching across the entire

state. App.170. But rather than map the number of

individuals living in these locations, the court relied

on a “visual assessment” of the proportion of black voters in each of these locations, created by one of Plaintiffs’ experts:

App.170-71. But mapping the proportion of black voters instead of the actual number of black voters creates the illusion that the black population across the

Black Belt numerically exceeds the black population

in Alabama’s cities. In fact, the actual number of voters in the geographically smaller shaded regions of

Huntsville, Birmingham, Montgomery, and Mobile

well exceed the actual number of voters dispersed

across the Black Belt. App.170. And it is that number

of voters that is relevant, not necessarily the proportion, because an equally apportioned number of voters

must be placed into each district. By mistakenly focusing on the proportion of black voting-age population rather than the actual number of black individuals, the court concluded that “[j]ust by looking at the

population map, we can see why [Plaintiffs’ experts]

expected that they could easily draw two reasonably

configured majority-Black districts.” App.171.

The court went on to conclude that Gingles’s second and third preconditions were met, as well as the

totality of the circumstances. App.183-206; see Cooper,

137 S. Ct. at 1470 (requiring “politically cohesive” minority group and a “white majority [that] must vote

sufficiently as a bloc to usually defeat the minority’s

preferred candidate”). With respect to proportionality,

the court acknowledged that the VRA disclaims that

the number of majority-black districts must match the

proportion of black voters. See 52 U.S.C. § 10301(b).

But the court nevertheless concluded that the share of

majority-black districts (14% of the congressional delegation, compared to Alabama’s 27% of black voters)

“weighs decidedly in favor of the plaintiffs.” App.205.

The court rejected the State’s arguments that the

Plaintiffs’ (and now the court’s) conception of the VRA

would raise serious constitutional questions because

it prioritized race to dramatically overhaul the State’s

longstanding district geography on account of race.

The court described Plaintiffs’ experts as “prioritiz[ing] race only for the purpose of determining and

to the extent necessary to determine whether it was

possible … to state a Section Two claim. As soon as

they determined the answer to that question”—meaning, after they hit a “‘non-negotiable’” racial target of

drawing two black-majority districts—“they assigned

greater weight to other traditional redistricting criteria.” App.214. The court forgave Plaintiffs’ experts for

making race a “‘non-negotiable’” redistricting constraint because they did not try to “maximize” the

number of majority-black districts or the BVAP of any

one district. Id. They just had other race-neutral considerations “yield” “as necessary” to hit their racebased target of two majority-black districts. App.21415.

Finally, the court declined to rule on the Singleton

and Milligan Plaintiffs’ Equal Protection Clause

claims. App.224-26. Invoking the canon of constitutional avoidance, the court stated that “in light of our

decision to issue a preliminary injunction on statutory

grounds, and because Alabama’s upcoming congressional elections will not occur on the basis of the map

that is allegedly unconstitutional, we decline to decide

the constitutional claims asserted by the Singleton

and Milligan plaintiffs at this time.” App.226.

Yesterday, the district court denied the State’s motion for a stay of the preliminary injunction pending

appeal. App.249-84. The court repeated that Plaintiffs’ experts considered race just enough (but not too

much), and that race-neutral redistricting criteria will

have “to yield” to race sometimes (but not always).

App.266, 269. With respect to Gingles I, the court emphasized various “fact-finding[s]” regarding “numerosity,” “geographical compactness,” “reasonable compactness that considers more than mere geography,”

and credibility. App.253-56. But not once did the court

address the question of law that looms large in these

redistricting cases: whether a plaintiff necessarily

fails Gingles I when a majority-minority district

would have never been drawn but for prioritizing race.

Instead, the court quibbled with whether Plaintiffs

agreed that two majority-black districts could not be

neutrally drawn in Alabama. App.255-56. That was

strange, given that the genesis of this undisputed fact

was Plaintiffs’ own evidence and testimony. In Plaintiffs’ own words, based on more than two million raceneutral maps created by Plaintiffs’ own experts, “it is

hard to draw two majority-black districts by accident”

in Alabama. App.367 (Tr. 685:23-25); see also App.364

(Tr. 682:11-12) (Plaintiffs’ expert “found some [maps]

with one majority-black district, but never found a second … majority-black district in 2 million attempts”

(emphasis added)). And the court earlier agreed that

other redistricting criteria must “yield” to race to draw

to black-majority districts. App.214. In short, the

court’s refusal to stay its injunction repeats the same

errors that led to the preliminary injunction in the

first place.

D. The State’s Appeal

The State immediately filed notices of appeal. The

State now submits this application for a stay pending

appeal, which this Court could also construe as a jurisdictional statement, note probable jurisdiction, and

expedite the appeal. 28 U.S.C. §1253; see Perry, 565

U.S. 1090. In Caster, the State moved for a stay pending appeal from the Eleventh Circuit, and the Eleventh Circuit is holding the motion in abeyance pending this Court’s resolution of the stay application in

Milligan. See Order, No. 22-10272 (11th Cir. Jan. 28,

2022).

ARGUMENT

The three-judge court’s preliminary injunction is

an “extraordinary remedy.” Winter v. NRDC, 555 U.S.

7, 24 (2008); see Mac Govern v. Connolly, 637 F. Supp.

111, 116 (D. Mass. 1986) (“When the massive disruption to the political process of the [State] is weighed

against the harm to plaintiffs of suffering through one

more election based on an allegedly invalid districting

scheme, equity requires that [this Court] deny relief.”). As one of Plaintiff’s counsel put it in the court

below, the three-judge court’s injunction and forthcoming overhaul of Alabama’s congressional districts

will be “the benchmark for redrawing congressional

districts probably for several more decades.” App.421

(Tr. 1903:5-12).

In such circumstances, a stay pending appeal is

warranted. See, e.g., Abbott , 138 S. Ct. at 2319; Gill

v. Whitford, 137 S. Ct. 2289 (2017); Perry, 565 U.S.

1090; Miller v. Johnson, 512 U.S. 1283 (1994);

Karcher v. Daggett, 455 U.S. 1303 (1982) (Brennan, J.,

in chambers); Whitcomb v. Chavis, 396 U.S. 1055

(1970). A stay is appropriate when there is (1) “a ‘reasonable probability’ that four Justices will consider

the issue sufficiently meritorious to grant certiorari or

to note probable jurisdiction;” (2) “a fair prospect that

a majority of the Court will conclude that the decision

below was erroneous;” and (3) “a demonstration that

irreparable harm is likely to result from the denial of

a stay.” Rostker v. Goldberg, 448 U.S. 1306, 1308

(1980) (Brennan, J., in chambers); see Hollingsworth

v. Perry, 558 U.S. 183, 190 (2010) (per curiam).

This Court may also grant injunctive or mandamus relief as necessary to preserve its appellate jurisdiction under the All Writs Act. 28 U.S.C. §1651(a);

see, e.g., U.S. Alkali Export Ass’n v. United States, 325

U.S. 196, 201-02 (1945). Because this case falls within

the Court’s mandatory appellate jurisdiction, 28

U.S.C. §1253, injunctive or mandamus relief pending

appeal would be “in aid of [this Court’s] jurisdiction,”

and “cannot be obtained in any other form or from any

other court.” Sup. Ct. R. 20.1.

This case features the exceptional circumstances

making an immediate stay appropriate. Absent an order from this Court stopping the district court from

imposing a racial gerrymander on Alabama for the

forthcoming elections, the State and its millions of citizens will suffer irreparable injury and the Court will

effectively lose its appellate jurisdiction. If this Court

does not intervene, districts will be redrawn, splitting

and segregating Alabamians, for the upcoming primaries. Once the machinery of those elections begins and

the first absentee ballots are cast in March, with hundreds of thousands of voters having been sorted into

new race-based districts, the harm is done and cannot

be unwound.

This Court Is Likely To Note Probable

Jurisdiction And Reverse The Three-Judge

Court.

There is a more than reasonable probability that

this Court will note probable jurisdiction and reverse

the three-judge court given the serious constitutional

concerns raised by its order. The court’s interpretation

of the VRA cannot possibly be constitutional, as the

court ordered the Legislature to draw race-based districts that never could have been drawn without “prioritiz[ing] race.” App.214.8 The court’s misconception

of the Gingles preconditions and what suffices for the

“totality of circumstances,” 52 U.S.C. §10301(b), is

contrary

this

Court’s

precedent.

8 At least four separate times, the court’s opinion states that

Plaintiffs’ experts prioritized race in some way: “She was candid

that she prioritized race only to the extent necessary to answer

the essential question asked of her as a Gingles I expert … and

clearly explained, with concrete examples, that she did not prioritize it to any greater extent.” App.157 (emphasis added). “He

was candid that he prioritized race only to the extent necessary

to answer the essential question asked of him as a Gingles I expert … and clearly explained that he did not prioritize it to any

greater extent.” App.159 (emphasis added). “They explained that

they prioritized race only as necessary to answer the essential

question asked of them as Gingles I experts.” App.214 (emphasis

added). And most damning: Plaintiffs’ experts testified “that they

prioritized race only for the purpose of determining and to the

extent necessary to determine whether it was possible … to state

a Section Two claim. As soon as they determined the answer to

that question”—by prioritizing race—only then did they “assign[]

greater weight to other traditional redistricting criteria.”

App.214 (emphasis added).

fundamentally, constitutional avoidance commands

that the district court’s further distortion of Section

2’s “effects test” be reversed, lest the VRA be unconstitutional as applied to single-member districts.

A. The court below badly misinterpreted

Gingles’s first precondition beyond

constitutional limits.

Section 2 of the VRA states that “[n]o voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any

State … in a manner which results in a denial or

abridgement of the right of any citizen of the United

States to vote on account of race or color ….” 52 U.S.C.

§10301(a). To prove a violation, one must show that

“political processes leading to nomination or election

in the State or political subdivision are not equally

open to participation,” meaning individuals “have less

opportunity” than others “to participate in the political process and to elect representatives of their

choice.” Id. §10301(b). “The purpose of the Voting

Rights Act is to prevent discrimination in the exercise

of the electoral franchise and to foster our transformation to a society that is no longer fixated on race.”

Georgia v. Ashcroft, 539 U.S. 461, 490 (2003).

This Court has since applied the VRA to the drawing of single-member districts. See Cooper, 137 S. Ct.

at 1464 (noting that the “Court has long assumed that

one compelling interest” to excuse race-based districting “is complying with operative provisions of the Voting Rights Act”); see also Holder v. Hall, 512 U.S. 874,

893 (1994) (Thomas, J., concurring in judgment)

(“[W]e have converted the Act into a device for

regulating, rationing, and apportioning political

power among racial and ethnic groups.”). To establish

a Section 2 violation in such circumstances, three preconditions must be met: (1) “a ‘minority group’ must

be ‘sufficiently large and geographically compact to

constitute a majority’ in some reasonably configured

legislative district,” (2) “the minority group must be

‘politically cohesive,’” and (3) “a district’s white majority must ‘vote[] sufficiently as a bloc’ to usually ‘defeat

the minority’s preferred candidate.’” Cooper, 137 S.

Ct. at 1470 (quoting Gingles, 478 U.S. at 50-51). This

dispute largely centers on the first of these preconditions.

1. The district court’s injunction is premised on a

fundamental legal error about how a Section 2 plaintiff can establish that “a ‘minority group’ is ‘sufficiently large and geographically compact to constitute

a majority’ in some reasonably configured legislative

district.” Id. The three-judge court believed that

Plaintiffs satisfied Gingles I even in the face of Plaintiffs’ own evidence showing that an Alabama map

drawer would not draw two majority-minority districts using only race-neutral criteria. Supra, pp. 1012, 15-16.9 The map drawer would have to “prioritize[]” race and draw race-based districts “on

9 See, e.g., App.297 (Tr. 268:23-269:6) (“noting that “[n]one”

of the “30,000 simulated plans included two” majority-black districts “because [he] didn’t tell the algorithm to create a second”);

App.367 (Tr. 685:23-25) (Plaintiffs’ expert’s testimony that “it is

hard to draw two majority-black districts by accident” in Alabama); App.364 (Tr. 682:11-12) (discussing Plaintiffs’ expert’s

two million computer-generated race-neutral maps, where she

“never found a second … majority-black district in 2 million attempts” (emphasis added)).

purpose.” App.214; App.367 (Tr. 685:24-25). There is

no better indication that Plaintiffs’ Section 2 claim

fails at the first step as a matter of law. See Cooper,

137 S. Ct. at 1470 (requiring the possibility of “reasonably configured” majority-minority districts); see, e.g.,

Gonzalez v. City of Aurora, 535 F.3d 594, 598 (7th Cir.

2008) (Easterbrook, C.J.) (“So what benchmarks [for

Section 2 dilution] are possible? One would be the outcome of a race-neutral process in which all districts

are compact.”). A minority population is definitionally

not sufficiently numerous and compact for purposes of

Gingles’s first precondition if a race-neutral map

drawer, considering only race-neutral traditional redistricting criteria, would never draw two majorityminority districts.

Worse still, the court below believed that the VRA

not only allowed but required this prioritization of

race. App.214 (discussing how experts “prioritized

race only for the purpose of determining and to the

extent necessary to determine whether it was possible

… to state a Section 2 claim”); see also App.270 (rejecting argument that Section 2 plaintiff must use “only

race-neutral districting principles” to meet Gingles I).

The court reasoned that because Gingles’s first precondition requires Plaintiffs to propose plans with districts exceeding 50 percent BVAP, a Section 2 plaintiff

must necessarily prioritize race first and consider

other race-neutral factors second. App.214 (describing

Plaintiffs’ experts’ testimony “that they prioritized

race only for the purpose of determining and to the

extent necessary to determine whether it was possible

… to state a Section Two claim” and “as soon as they

determined the answer to that question”—by

prioritizing race—“they assigned greater weight to

other traditional redistricting criteria”).10 By the district court’s lights, Section 2 plaintiffs must therefore

assume they are entitled to the relief they seek and

then reverse engineer that remedial district, no matter how racially segregated. That reasoning is exactly

backwards. It would render Gingles first precondition

no precondition at all.

This Court’s precedents—and the Constitution—

make clear that a Section 2 plaintiff alleging vote dilution must first prioritize traditional redistricting

criteria. Only then may the plaintiff assess whether

the employment of traditional redistricting criteria

has resulted in “reasonably configured” majority-minority districts that the State failed to create. See

Cooper, 137 S. Ct. at 1470; see, e.g., LULAC v. Perry,

548 U.S. at 399, 433-34 (2006) (discussing use of traditional redistricting criteria in satisfying Gingles I,

lest courts “fail[] to account for the differences

10 The district court’s 50-percent rationale is also oversimpli-

fied. In Bartlett v. Strickland, 556 U.S. 1 (2009), the plurality

opinion held that race-based redistricting could not be justified

under the VRA if a legislature’s aim was only to draw “crossover”

districts, where the minority population did not exceed a majority, versus a majority-minority district. Id. at 13-15. By implication, one cannot state a claim for vote dilution under the VRA if

voters would not otherwise make up 50% or more of the black

voting-age population in a “reasonably configured” district. Id. at

18; Cooper, 137 S. Ct. at 1470. But this Court has never suggested that one can “prioritize[]” race in drawing a proposed district to hit that 50% target. App.214. That would not only be circular; it would be inconsistent with the constitutional restraints

on legislatures nationwide. As the Court explained in Cooper, it

is unconstitutional for a legislature to set that same race-based

target. 137 S.Ct. at 1469.

between people of the same race”); Abrams v. Johnson, 521 U.S. 74, 91-92 (1997); Miller, 515 U.S. at 919

(warning that traditional principles cannot be “subordinated to racial objectives”); Bush v. Vera, 517 U.S.

952, 977 (1996) (plurality op.) (Section 2 inquiry

should account for “traditional districting principles

such as maintaining communities of interest and traditional boundaries”).

Injecting race as one of those traditional redistricting principles at step one is circular and senseless. It assumes from the start what Plaintiffs are ultimately trying to prove. A plaintiff cannot “prioritize[] race” at step one, and then, work backwards,

draw illustrative districts with that “non-negotiable”

constraint (by “eyeballing” no less). App.169, 214.

That approach unavoidably prioritizes race-based

considerations above race-neutral redistricting criteria, thereby raising serious constitutional questions.

Miller, 515 U.S. at 916; Shaw v. Hunt, 517 U.S. 899,

907 (1996) (“Shaw II”) (racial gerrymander where

“[r]ace was the criterion that … could not be compromised”).11

11 The court’s error is little different than claims that major-

ity-minority districts must be maximized in a redistricting plan,

claims that this Court rejected in Johnson v. DeGrandy, 512 U.S.

997, 1016 (1994), and Miller, 515 U.S. at 923. In both cases, this

Court rejected the notion that a VRA violation can be proved by

the failure to maximize districts. Id. So too here—starting from

the premise that two districts must be drawn, prioritizing that

two-district racial target above race-neutral criteria raises the

same constitutional problems. It transforms the VRA from a statute meant to stamp out race discrimination to a statute that requires it.

The decision below fundamentally errs in this regard. The court accepted Plaintiffs’ invitation to start

the Gingles analysis by “prioritiz[ing]” race. App.214.

That is, the court started the Gingles analysis by presuming the answer to the ultimate question. The court

doubled down when it denied the State’s stay motion,

specifically rejecting that a plaintiff must “set about

drawing illustrative remedial plans using only raceneutral districting principles and hope to happen

upon a plan that includes an additional majority-minority district.” App.270; but see Gonzalez, 535 F.3d at

600 (Easterbrook, C.J.) (asking whether Latino population was “concentrated in a way that neutrally

drawn compact districts would produce three” VRA

districts (emphasis added)).

That error would be bad in any case. But it is especially serious here where the prioritization of race

at the start made all the difference. No race-neutral

map drawing would result in two black-majority districts. In Plaintiffs’ expert’s own words, “it is hard to

draw two majority-black districts by accident” in Alabama. App.367 (Tr. 685:23-25). For this reason, Plaintiffs had to start by making two black-majority districts “non-negotiable,” no matter what race-neutral

criteria had to “yield” to draw them. App.214. Everything else was secondary. See App.214-15; App.60

(programming “two majority-black districts” as

“nonnegotiable,” and only “after that” following principles like “contiguity” and “compactness”).12 Simply

12 Specifically, the court endorsed the Milligan Plaintiffs’ ex-

pert’s approach that “took the creation of two majority-Black districts, which she was asked to try to draw, as a ‘non-negotiable

put, Plaintiffs first prioritized a racial target (drawing

two majority-minority districts) and then backfilled

their case with various arguments about how those illustrative plans were sufficiently consistent with

race-neutral traditional redistricting criteria, even

though such plans would not have resulted but for the

prioritization of race first and other criteria second.

Plaintiffs’ reverse order of operations rendered their

maps unconstitutional, as “[r]ace was the criterion

that … could not be compromised.” Shaw II, 517 U.S.

at 907.

The three-judge court’s view of the VRA makes

VRA compliance irreconcilable with the U.S. Constitution. A map that starts with a “non-negotiable” racial target of two majority-black districts and that can

be drawn only when race is “prioritized,” App.159,

goes far beyond Section 2’s mandate of an “equally

open” political process, 52 U.S.C. §10301(b). Just as

“[n]othing in §2 grants special protection to a minority

principle’ sought in her illustrative plan, along with equal population among districts.” App.60. Plaintiffs’ expert euphemistically labeled that non-negotiable, race-based target the “minority

opportunity to elect” criterion. Id. Other evidence shows how race

abounded in Plaintiffs’ creation of two majority-black districts.

None of the more than two million race-neutral maps contained

two majority-black districts. App.316-17 (Tr. 565:11-14); App.364

(Tr. 682:3-14; 682:12-14); see also App.344 (Tr. 647:12-20) (“no

question” that “one reason that there are nine splits in counties

in this plan as opposed to six splits in counties is … because of

the weight [she] gave to the criteria of ensuring two majorityblack congressional districts”); App.352 (Tr. 664:17-24) (subordinating geographic compactness to racial preferences by placing

“the Black Belt counties in majority-black districts” despite necessarily rendering lower geographic-compactness scores);

App.337 (Tr. 600:10-16); App.359-60 (Tr. 671:22-672:14).

group’s right to form political coalitions,” Bartlett, 556

U.S. at 15, nothing in Section 2 grants Plaintiffs a

right to a predetermined number of majority-minority

districts that can exist only when race subordinates

“traditional districting principles,” LULAC, 548 U.S.

at 433; see also Holder, 512 U.S. at 907 (Thomas, J.,

concurring) (“few devices could be better designed to

exacerbate racial tensions than the consciously segregated districting system currently being constructed

in the name of the Voting Rights Act”).

2. The district court wrongly believed that Gingles

I always requires a map drawer to subvert, to some

extent, traditional redistricting criteria to race. According to the court, “a remedial plan” would be rendered “unconstitutional … for attempting to satisfy

Gingles I” if the State is correct. App.215. That is not

so. Under the correct approach, there should be no “remedial plan” at all unless the Gingles preconditions

are all met. Plaintiffs and the district court bypassed

all of this by assuming the ultimate conclusion that

Alabama needed to draw two majority-black districts.

The flaw in this approach is the fact that no map

drawer could produce such maps without subordinating traditional districting principles to race. Supra,

pp. 10-12, 15-16. It cannot be done unless race is “prioritized” and other race-neutral redistricting principles “yield” to that race-based target. App.214. There

is no better indication that Gingles I is not met. The

district court never reconciled that stunning fact with

Gingles’s first precondition. The court instead deferred to Plaintiffs’ “eminently qualified” experts’ conclusion that the districts were good enough. App.166.

But no court can defer to an expert, however

“eminently qualified” in some regard, when it comes

to the legal requirements (and limitations) of the legal

standards of Section 2. See Abbott, 138 S. Ct. at 2326;

Barr v. Lee, 140 S. Ct. 2590, 2591 (2020) (vacating preliminary injunction after finding plaintiffs failed to establish they were likely to succeed on the merits). Especially so here, where that expert’s “understanding”

was that “race consciousness is expressly permitted,”

App.367 (Tr. 685:19-20), and that she didn’t even

“know of a way to talk about the traditional [districting] principles that is truly race blind,” App.364 (Tr.

682:20-22). In her words: “[T]hat it is hard to draw two

majority-black districts by accident shows the importance of doing so on purpose.” App.367 (Tr. 685:2325) (emphasis added).

To be clear, the flaw in this approach is not Plaintiffs’ subjective intent to present maps with two districts that exceed 50% BVAP, as they must to state a

claim. The flaw is the objective fact that no map

drawer could hit that racial target of two majorityblack districts without prioritizing race first and other

race-neutral criteria second. Put differently, the problem is not that Plaintiffs were “attempting to satisfy

Gingles I,” App.215; the problem is that their attempt

failed because no map drawer could have produced

maps in a race-neutral way. Bethune-Hill v. Va. State

Bd. of Elections, 137 S.Ct. 788, 799 (2017). If Plaintiffs

could show that some subset of millions of race-neutral maps would produce two majority-black districts,

this might be a different case. But the problem for

Plaintiffs—and what necessarily ends this case—is

that it is impossible in Alabama to draw any map with

two majority-minority districts “consistent with

traditional, race-neutral principles.” Id.; see also, e.g.,

Davis v. Chiles, 139 F.3d 1414, 1425 (11th Cir. 1998).

As the three-judge court said, Plaintiffs had to “prioritize[]” race, and have race-neutral criteria “yield” to

that race-conscious one. App.214.13

The court’s error is best encapsulated by its statement that Plaintiffs’ experts “prioritized race only to

the extent necessary.” App.157, 159. That makes no

sense. The court’s formulation presumes the answer

to the question at the heart of Gingles’s first precondition. If it were permissible to “prioritize[]” race to meet

Gingles I (it is not), then Gingles I is a meaningless

test that can always be satisfied and will always make

race the overriding criterion in drawing district lines.

It is hardly surprising, especially with modern redistricting technology, that one can “prioritize[]” race and

redraw a district where the black voting-age population just exceeds 50%. App.214. Instead, the relevant

question for Gingles I—the question the three-judge

court never asked but that Plaintiffs’ experts have already answered—is what results when one does not

prioritize race as a “non-negotiable” constraint. Id.

The three-judge court’s rule is also unadministrable, for all the same reasons this Court decided the

plaintiffs’ twist on the VRA was unadministrable in

Bartlett. If Section 2 requires legislatures to “prioritize[] race” over traditional race-neutral districting

13 For one example, the Milligan expert conceded that she

looked at race when splitting voting districts (or “VTDs”), “but

really, only to make sure that I was creating two districts over

50 percent.” App.324 (Tr. 573:3-5). This is like an archer saying

she did not consider the bullseye except to ensure she was aiming

at it.

principles somewhat (for Gingles I) but not too much

(for the Constitution), then there can be no “sound judicial and legislative administration” of the statute.

Bartlett, 556 U.S. at 17. Every redistricting cycle, legislatures will be forced to ask whether they have allowed their traditional race-neutral principles “to

yield” enough—but not too much—to racial considerations. App.214; see also, e.g., App.261 (explaining

away two million race-neutral simulations as showing

“that some awareness of race likely is required to draw

two majority-Black districts” but not so much that

“race must predominate”) (emphasis added). This

“test” would practically guarantee redistricting litigation every cycle in numerous jurisdictions, “transfer[ring] much of the authority to regulate [districting] from the States to the federal courts.” Brnovich v.

Democratic Nat’l Comm., 141 S. Ct. 2321, 2341 (2021).

“A requirement to draw election districts” based

on answers to questions like how much race is too

much— “ought not to be inferred from the text or purpose of § 2.” Bartlett, 556 U.S. at 17. For if federal

courts are not equipped to answer the question, “At

what point does permissible partisanship become unconstitutional?” Rucho v. Common Cause, 139 S. Ct.

2484, 2501 (2019), neither are they equipped to determine “How much race is too much?” when it comes to

prioritizing race over traditional race-neutral principles. The only “workable standard[]” for “sound judicial and legislative administration,” Bartlett, 556 U.S.

at 17, is one in which Section 2’s compactness inquiry

focuses on possible “outcome[s] of a race-neutral process in which all districts are compact,” Gonzalez, 535

F.3d at 598 (emphasis added).

Finally, it makes no sense that the court sanctioned Plaintiffs’ use of race because it wasn’t as bad

as it could have been. According to the court, Plaintiffs’ map drawers could have subordinated those traditional principles to race even more, but they didn’t.

See, e.g., App.61 (noting that Plaintiffs’ expert “took

… county integrity to take precedence over the level

of BVAP once that level was past 50 percent”) (emphasis added); App.95 (noting that Plaintiffs’ expert “testified that if he had wanted to assign race a greater

role, he could have”). If that were acceptable, then the

maps drawn in Cooper—ultimately declared unconstitutional by this Court—should have been acceptable

too. North Carolina subordinated traditional districting principles to race only “sometimes,” when it interfered with “‘the more important thing’ … to create a

majority-minority district.” 137 S. Ct. at 1469. Sound

familiar? It was unconstitutional in Cooper, and it was

unconstitutional here. A federal court cannot order an

overhaul of Alabama’s congressional map based on

the same fundamental error.

B. The injunction also cannot be reconciled

with the statutory text.

Even if the prioritization of race were permissible

under this Court’s Gingles framework (Constitution

aside), the statutory text forecloses Plaintiffs’ Section

2 claim in another way. The statute asks whether the

political processes … in the State” are “equally open to

participation by [black Alabamians] in that [they]

have less opportunity than other members of the electorate to participate in the political process and to

elect representatives of their choice.” 52 U.S.C.

§10301(b) (emphasis added). That text “commands”

the “consideration of ‘the totality of circumstances’

that have a bearing on whether the State makes voting ‘equally open’ to all and gives everyone an equal

‘opportunity’ to vote.” Brnovich, 141 S. Ct. at 2341; accord Holder, 512 U.S. at 901 (Thomas, J., concurring)

(noting “[s]ome conceptions of representative government may primarily emphasize the formal value of the

vote as a mechanism for participation in the electoral

process, whether it results in control of a seat or not,”

such that “a vote duly cast and counted would be

deemed just as ‘effective’ as any other”).

Applied here, the court jumped straight to the

amorphous, so-called Senate factors, failing to start

with the text. App.187. As a result, the court failed to

realize Plaintiffs’ claims failed the statute’s “equally

open” requirement in a more basic way. If Plaintiffs

cannot produce a map with two majority-minority districts without “prioritiz[ing] race,” App.214, then it is

impossible to say that the State has denied minority

voters equal opportunity to participate in the political

process.

C. Constitutional avoidance compels a stay

pending appeal.

The district court’s interpretation of the VRA

raises serious constitutional questions. If the district

court is correct, then Section 2’s “effects test,” as prescribed by Gingles and progeny, cannot possibly be

constitutional as applied to single-member districts.

Likewise, if an “equally open” political process under

the VRA requires racial preferences in drawing singlemember districts, then the VRA cannot possibly be

constitutional as applied to single-member districts.

See DeGrandy, 512 U.S. at 1017 (stating “one is not

entitled to suspect (much less infer) dilution from

mere failure to guarantee a political feast”). To the extent there is any doubt about whether Section 2 would

permit Plaintiffs’ race-prioritization here, the Court

should “resolve that doubt by avoiding serious concerns under the Equal Protection Clause.” Bartlett,

556 U.S. at 21.

1. Any “assignment of voters on the basis of race”

is subject to constitutional law’s “strictest scrutiny.”

Miller, 515 U.S. at 915. Redistricting is not an exception to that constitutional proscription. Section 2 permits race-conscious districting only in the limited context of choosing among maps that honor a State’s “traditional districting principles.” LULAC, 548 U.S. at

433. For example, it should be beyond dispute that the

Legislature never could have constitutionally passed

the maps that the district court has ordered here since

those maps started from a racial target of two majority-black districts—a target that made it “necessary”

for Plaintiffs’ map drawers to split areas as large as

Mobile County and as small as voting districts in a

way unexplainable on grounds other than race. See,

e.g., Shaw II, 517 U.S. at 907 (racial gerrymander

where “[r]ace was the criterion that … could not be

compromised”); Miller, 515 U.S. at 916 (racial gerrymander where map “subordinated traditional raceneutral districting principles, including but not limited to compactness, contiguity, and respect for political subdivisions or communities defined by actual

shared interests, to racial considerations”).

Here, too, a court cannot order something that a

legislature constitutionally could not do. Just as a

legislature cannot make race a “‘more important

thing’” than race-neutral considerations “to create a

majority-minority district,” Cooper, 137 S. Ct. at 1469,

a court cannot order that race be “prioritized” before

the Gingles preconditions have even been met,

App.157, 159, 214. The VRA does not authorize racebased changes at all times, in all places, and in all districts. And the VRA certainly does not authorize racebased changes where, as here, such changes would

never have resulted if only race-neutral criteria were

considered. See supra, pp. 10-12, 15-16.

2. The district court’s application of Gingles I and

its totality-of-circumstances analysis takes Section 2

beyond its promise of “equal[] … opportunity.” 52

U.S.C. §10301(b). It is yet another real-world example

of the federal courts’ transformation of the VRA, a

statute “originally perceived as a remedial provision

directed specifically at eradicating discriminatory

practices that restricted blacks’ ability to register and

vote in the segregated South.” Holder, 512 U.S. at 893

(Thomas, J., concurring). Now? The act has become “a

grant of authority to the federal judiciary to develop

theories on basic principles of representative government” and impose “destructive assumptions” on legislative redistricting in particular. Id. at 893-94.

Applying those destructive assumptions to singlemember districts, the district court “ha[s] acted on the

implicit assumption that members of racial and ethnic

groups must all think alike on important matters of

public policy”—wherever they live—“and must have

their own ‘minority preferred’ representatives holding

seats in elected bodies if they are to be considered represented at all.” Id. at 903. The court’s injunction, like

others that have come before it, will “unnecessarily infuse race into virtually every redistricting, raising serious constitutional questions.” Bartlett, 556 U.S. at

20. Plaintiffs programmed “two majority-black districts” as “nonnegotiable” and only “after that” considered traditional districting principles. App.60. Nevertheless, the court approved this decision to consider

race-neutral criteria only “after the race-based decision [of reaching a targeted number of majority-minority districts] had been made,” Shaw II, 517 U.S. at

907. If that is what the VRA requires, the VRA is unconstitutional.

The court’s error is illustrated by the racial gerrymander that will necessarily follow. The only inference to be drawn from Plaintiffs’ proposed districts—

every one of which divides southern Alabama, beginning in Mobile County, by black and white—is that

race predominates:14

14 The district court suggested that the Legislature could sub-

mit a remedial plan that keeps together Alabama’s two Gulf

Counties—Mobile and Baldwin. App.180. But prioritizing that

non-racial principle would require an even more grotesque racial

gerrymander elsewhere in the State. Thus, none of Plaintiffs’

proposed plans tried to maintain communities of interest on the

Gulf Coast. And so it is, with some irony, that thirty years after

the three-judge court in Wesch rejected a plan that split Mobile

in favor of one that “better preserve[d] the communities of interests in” “Districts 1 and 2,” 785 F. Supp. at 1497, the court below

has declined to “maintain[]” those “communities of interest,” LULAC, 548 U.S. 433.

See Milligan v. Merrill, No. 2:21-cv-1530, ECF 76-4 at

69, 71, 73, 75.15

Districts 1 and 2 in Plaintiffs’ plans were “obviously drawn for the purpose of separating voters by

race,” Shaw I, 509 U.S. at 645, and subordinate the

State’s traditional communities of interest to Plaintiffs’ own “predominant, overriding desire to create

[two] majority-black districts,” Abrams, 521 U.S. at 81

(internal quotation marks omitted); see also Miller,

515 U.S. at 917 (“Although by comparison with other

districts the geometric shape of the [district at issue]

may not seem bizarre on its face, when its shape is

considered in conjunction with its racial and population densities, the story of racial gerrymandering … becomes much clearer.”); see also App.375 (Tr.

856:12-23) (“[Y]ou can see easily that [the District 2]

line almost precisely exactly follows the contours of

the very highest black population VTDs—can literally

go from one to the next …. It is literally like the dividing line of black and much-less-black population.”);

App.376 (Tr. 857:9-14) (“Similarly, in District 7, you

can see that it … very carefully captures large portions of black populations.”). Indeed, the Singleton

Plaintiffs’ expert described one of Plaintiffs’ illustrative plans as “an effort to pull and concentrate black

voters in the Second [District] and then in the Seventh

[District].” App.288 (Tr.112:6-7). “It’s an outcomebased plan,” she continued, “[t]here’s no question.”

App.288 (Tr.112:8-9). Those “[r]acial classifications”

15 The district court somehow did “not see” in these maps any

“tentacles, appendages, bizarre shapes, or any other obvious irregularities that would make it difficult to find that any District

2 could be considered reasonably compact.” App.171.

that animate Plaintiffs’ proposed remedies “are antithetical to the Fourteenth Amendment, whose central

purpose was to eliminate racial discrimination emanating from official sources in the States.” Shaw II,

517 U.S. at 907.

In short, a second majority-minority district

would likely have to stretch roughly 250 miles from

Mobile to the Georgia border. App.62; Milligan v. Merrill, No. 2:21-cv-1530, ECF 48 at 23, 25, 29; cf. LULAC, 548 U.S. at 432 (faulting plan for stringing together several “disparate communities of interest”).

Such race-based redistricting “reinforces the perception that members of the same racial group—regardless of their age, education, economic status, or the

community in which they live—think alike, share the

same political interests, and will prefer the same candidates at the polls.” Shaw I, 509 U.S. at 647. And it

sends an “equally pernicious” message to elected representatives in those districts that “their primary obligation is to represent only the members of that

group, rather than their constituency as a whole.” Id.

at 648.

3. Congress derived its authority to enact Section

2 of the VRA pursuant to the Fifteenth Amendment,

guaranteeing “[t]he right of citizens of the United

States to vote shall not be denied or abridged by …

any State on account of race, color, or previous condition of servitude.” Chisom, 501 U.S. at 383; U.S.

Const. amend. XV, §§1-2. Congress may enforce the

substantive provisions of the Fifteenth Amendment,

as well as the Fourteenth Amendment, “by creating

private remedies against the States for actual violations of those provisions.” United States v. Georgia,

546 U.S. 151, 158 (2006) (emphasis added). But here,

the district court’s interpretation of the VRA goes well

beyond remedying any “actual violations” of the Fourteenth or Fifteenth Amendments. The court effectively deprived Alabama of its ability to keep its raceneutral redistricting plan, directly contrary to this

Court’s most recent statement that “§2 does not deprive the States of their authority to establish nondiscriminatory voting rules.” Brnovich, 141 S. Ct. at

2343.

Where the Alabama Legislature cannot draw two

majority-black districts, given the State’s demography, without “prioritiz[ing] race” as a “non-negotiable”

redistricting constraint, it is unfathomable that the

VRA could compel the State to depart from existing

law and draw two majority-black districts anyway.

Any such expansion of the VRA that endorses Plaintiffs’ race-conscious meddling with the State’s raceneutral plan ignores that any “exercise of [Congress’s]

Fifteenth Amendment authority even when otherwise

proper still must ‘consist with the letter and spirit of

the Constitution.’” Id. (quoting McCulloch v. Maryland, 4 Wheat. 316, 421 (1819)). Requiring States’ redistricting processes to bear an “uncomfortable resemblance to political apartheid,” Shaw I, 509 U.S. at 647,

consists with neither.

In the dissenting opinion in Rucho, members of

this Court lamented the possibility that “today’s mapmakers can generate thousands of possibilities at the

touch of a key—and then choose the one giving their

party maximum advantage (usually while still

meeting traditional districting requirements).” 139 S.

Ct. at 2513 (Kagan, J., dissenting). What Plaintiffs

have done here would make the dissenters’ nefarious

mapmaker blush. Plaintiffs generated millions of random race-neutral maps. None resulted in two majority-minority districts. There can be no question, then,

that the maps Plaintiffs ultimately proffered are an

extreme racial gerrymander solely designed to hit a

predetermined racial target. Cf. id. at 2518 (deeming

congressional map an extreme political gerrymander

after an “expert produced 3,000 maps, adhering … to

the districting criteria that the North Carolina redistricting committee had used, other than partisan advantage,” and every “one of the 3,000 maps would

have produced at least one more Democratic House

Member than the State’s actual map”). They are “an

out-out-outlier” with the most severe constitutional

consequence—ordering unprecedented changes to Alabama’s existing districts on the basis of race alone.

Id.

II. Irreparable Harm Will Result Absent This

Court’s Intervention.

Without a stay, the State will forever lose its ability to appeal the preliminary injunction before the

forthcoming elections are conducted under a court-ordered racially gerrymandered map that upends the

legislatively enacted map. The injunction leaves Alabama with no real choice. The State can replace its

congressional plan (by February 7) and suffer the consequences of follow-on litigation for the newly gerrymandered districts. See Wise, 437 U.S. at 540 (op. of

White, J.); App.5. Or the State can cede its sovereign

redistricting power to the district court, which will

hire a third party to redraw districts (at the State’s

expense) that segregate Alabamians in Mobile and

elsewhere by race. App.5, 223. Either way, without a

stay and appellate review, the State’s forthcoming

elections are guaranteed to be run on district lines

that never would or could have been drawn but for

sorting Alabamians on the basis of race alone.

Adding to the harm, the court has required all of

this mere days before the first in a series of forthcoming election deadlines. The candidate qualifying deadline was supposed to be today, but has been extended

until February 11 by the court’s order. App.6. Other

pre-election deadlines are also looming. Any redrawing of district lines requires the State to update voterregistration records to reflect the redraw, well in advance of when absentee voting begins on March 30,

2022. Federal law, moreover, requires the State to

provide ballots to certain voters no later than April 9,

2022. Id. at 4-5; 52 U.S.C. §20302(a)(8). Simply put,

“the election machinery wheels [are] in full rotation,”

Graves v. City of Montgomery, 807 F. Supp. 2d 1096,

1112 (M.D. Ala. 2011), and the district court has ordered the State to scrap existing law and replace it

with something unconstitutional.

Without this Court’s intervention, Alabama’s only

choices are effectively no choices at all: a state-drawn

racially gerrymandered map or a court-drawn racially

gerrymandered map. See Lipscomb, 437 U.S. at 540;

see, e.g., Abbott, 138 S. Ct. at 2317. Moreover, this

overhaul of Alabama’s congressional map at this late

hour would require the last-minute reassignment of

hundreds of thousands of voters to new districts and

could force candidates and groups seeking ballot

access to obtain thousands of new signatures. The

State’s “inability to enforce its duly enacted plans

clearly inflicts irreparable harm on the State.” Abbott,

138 S. Ct. at 2324 n.17.

III. The Balance Of Harms And Public Interest

Warrant A Stay

A stay is also warranted because the district

court’s order at this late hour is inflicting grave harm

on the public interest, which outweighs Plaintiffs’ purported interest in voting in districts that “prioritize[]

race.” App.214. Enjoining the State from using its congressional districts throws the current election into

chaos.

That disruption harms not only the State, it also

harms voters and candidates across the State. As even

the district court recognized, “there can be no doubt

that there is a limited window” for redrawing the districts. App.223. Courts and experts alike have recognized that a court drawing a map “should have as its

goal the imposition of a plan no later than one month

before candidates may begin qualifying for the primary ballot,’ which ‘means that the court should begin

drawing its plan about three months before the beginning of ballot qualification in order to build in time for

possible hearings and adjustments to the plan.’” Favors v. Cuomo, 881 F. Supp. 2d 356, 364 (E.D.N.Y.

2012). After all, “[i]t is best for candidates and voters

to know significantly in advance of the petition period

who may run where.” Id. at 371; see also App.409-10

(Tr. 1693:16-1694:70).

But here, the district court proposes beginning

this complicated process just days before (and possibly

even days after) ballot qualification has ended. Voters

and candidates everywhere are bound to be confused.

In particular, non-major-party candidates and political organizations seeking ballot access may have to

scramble to obtain thousands of new signatures if

they find that they have been obtaining signatures

from the wrong district. Ala. Code §§17-6-22, 17-93(a).

That is why federal courts ordinarily don’t change

election rules at the eleventh hour. Such orders “can

themselves result in voter confusion and consequent

incentive to remain away from the polls.” Purcell v.

Gonzalez, 549 U.S. 1, 4-5 (2006). By ordering radically

new districts days before the candidate qualifying

deadline and less than two months before absentee

voting is to begin, the district court’s decision squarely

implicates Purcell. See, e.g., Husted v. Ohio State Conference of NAACP, 573 U.S. 988 (2014) (staying a

lower-court order that changed election laws 61 days

before election day); Thompson v. DeWine, 959 F.3d

804, 813 (6th Cir. 2020) (election day was “months

away but important, interim deadlines … [we]re imminent”).

By comparison, Plaintiffs assert irreparable harm

from having to vote under a plan that did not sufficiently “prioritize[] race” over non-racial districting

principles. App.214. This factor does not weigh heavily in their favor, particularly where Alabama’s districts have retained the same geography for decades,

and the Milligan Plaintiffs presumably could have

lodged nearly identical arguments against Alabama’s

2011 Map. But they didn’t. See Benisek v. Lamone, 138

S. Ct. 1942, 1944 (2018) (collecting cases for

proposition that “a party requesting a preliminary injunction must generally show reasonable diligence”).

And in all events, it is impossible to make out a case

for irreparable harm when that irreparable harm can

be solved only by harming hundreds of thousands of

others with a racial gerrymander as a “remedy.”

Finally, the court’s stay of “the January 28, 2022

qualification deadline for 14 days, through February

11, 2022,” App.6, does little to help. Even if the Legislature or court could settle on a new map in the next

week, congressional candidates would have only about

a week to assess any new map (which could also be

subject to challenge as a racial gerrymander) and decide whether to enter a congressional race in which

absentee voting will begin the following month.

App.141. Most fundamentally, there are hundreds of

thousands of Alabamians who are not a party to this

litigation but who nevertheless will be thrown into

new districts based on their race. The public interest

undoubtedly weighs in favor of a stay.

CONCLUSION

For the foregoing reasons, Applicants respectfully

ask the Court to enter an administrative stay and

then a stay or an injunction pending appeal. The

Court should also construe this stay application as a

jurisdictional statement, note probable jurisdiction,

and expedite the appeal.

Respectfully submitted,

Dorman Walker

Steve Marshall

BALCH & BINGHAM LLP Attorney General

105 Tallapoosa Street Edmund G. LaCour Jr.

Ste. 200

Solicitor General

P.O. Box 78 (36101)

Counsel of Record

Montgomery, AL

A. Barrett Bowdre

36104

Thomas A. Wilson

(334) 269-3138

Deputy Solicitors General

DWalker@Balch.com

James W. Davis

Deputy Attorney General

Counsel for Sen.

Misty S. Fairbanks

McClendon

Messick

and Rep. Pringle

Brenton M. Smith

A. Reid Harris

Jeffrey M. Harris

Benjamin M. Seiss

Taylor A.R. Meehan

Assistant Attorneys

CONSOVOY MCCARTHY

General

PLLC

1600 Wilson Blvd.

OFFICE OF THE ATTORNEY

Ste. 700

GENERAL

Arlington, VA 22209

STATE OF ALABAMA

(703) 243-9423

501 Washington Avenue

Jeff@ConsovoyMcCar- P.O. Box 300152

thy.com

Montgomery, AL 361300152

Counsel for Secretary

(334) 242-7300

Merrill

Edmund.LaCour@AlabamaAG.gov

Counsel for Secretary

Merrill

JANUARY 28, 2022

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.