Amicus Curiae Brief — Wes Allen, Alabama Secretary of State, et al., Appellants v. Evan Milligan, et al.

Nos. 21-1086 & 21-1087

IN THE

Supreme Court of the United States

___________________________________

JOHN H. MERRILL, et al.,

Appellants,

v.

EVAN MILLIGAN, et al.,

Appellees.

______________________________

JOHN H. MERRILL, et al.,

Petitioners,

v.

MARCUS CASTER, et al.,

Respondents.

On Appeal from and Writ of Certiorari

to the United States District Court

for the Northern District of Alabama

BRIEF OF ALABAMA CENTER FOR LAW AND

LIBERTY AS AMICUS CURIAE IN SUPPORT OF

APPELLANTS AND PETITIONERS

JOHN J. PARK, JR.

P.O. Box 3073

Gainesville, GA 30503

(678) 608-1920

jackparklaw@gmail.com

MATTHEW J. CLARK*

*Counsel of Record

ALABAMA CENTER FOR

LAW AND LIBERTY

2213 Morris Ave., Fl. 1

Birmingham, AL 35203

(256) 510-1828

matt@

alabamalawandliberty.org

Counsel for Amicus Curiae

i

QUESTION PRESENTED

Alabama’s congressional districts have looked

largely the same for decades. Since 1992, one of

Alabama’s seven districts has been a majority-black

district. In 2021, Alabama enacted a congressional

redistricting plan that retained the cores of those

districts, including the State’s one majority-black

congressional district. A federal district court

subsequently ordered Alabama to upend its

longstanding districts and create a second majorityblack district, holding that § 2 of the Voting Rights

Act required the redraw. Because Plaintiffs showed

that it was possible to draw such a district—albeit by

ignoring preexisting district lines, dividing the Gulf

Coast region between two districts on the basis of

race, and otherwise putting racial considerations

before race-neutral redistricting criteria—the court

held that the additional district must be drawn. The

question presented is:

Whether the State of Alabama’s 2021 redistricting

plan for its seven seats in the United States House of

Representatives violated § 2 of the Voting Rights Act,

52 U.S.C. § 10301.

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ........................................... i

TABLE OF CONTENTS............................................. ii

TABLE OF AUTHORITIES ....................................... iv

IDENTITY AND INTEREST OF AMICUS

CURIAE ....................................................................... 1

SUMMARY OF THE ARGUMENT ........................... 1

ARGUMENT ............................................................... 4

I.

II.

Section 2 of the Voting Rights Act Does

Not Apply to Voter Dilution Claims ................... 4

A.

Section 2 Applies Only to Practices

That Affect Minorities’ Access to

the Ballot Box .............................................. 4

B.

Applying Section 2 to Voter

Dilution Claims Violates the

Constitution, Requires the Court to

Make

Political

Choices,

and

Deepens Racial Divides ............................... 7

Gingles Should Be Overruled ............................ 10

iii

A.

The Issues with Gingles ............................ 11

B.

Gingles Was Wrongly Decided .................. 12

C.

The Court’s Duty Is to Choose the

Law Over Stare Decisis ............................. 15

D.

The

Janus

Factors

Favor

Overruling Gingles .................................... 16

III. Alabama Has Changed ...................................... 21

CONCLUSION ......................................................... 24

iv

TABLE OF AUTHORITIES

Cases

Page

Abbott v. Perez, 138 S. Ct. 2305 (2018) ..................... 20

Allen v. State Bd. of Elections, 393 U.S. 544

(1969) ...................................................................... 9

Baker v. Carr, 369 U.S. 186 (1962) ............................. 8

Bartlett v. Strickland, 556 U.S. 1 (2009) ............ 12, 17

Chisom v. Roemer, 501 U.S. 380 (1991) ...................... 7

Connecticut Nat’l Bank v. Germain, 503 U.S.

249 (1992) ............................................................... 6

Cooper v. Harris, 137 S.Ct. 1455 (2017) ................... 20

Gamble v. United States, 139 S.Ct. 1960

(2019) .................................................................... 15

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

Cir. 2008) .............................................................. 18

Growe v. Emison, 507 U.S. 25 (1993)........................ 18

Holder v. Hall, 512 U.S. 874 (1994) .................. passim

Janus v. AFSCME, Council 31, 138 S.Ct.

2448 (2018) ..................................................3, 16-20

v

Johnson v. DeGrandy, 512 U.S. 997 (1994) .............. 18

League of United Latin Am. Citizens v. Perry,

548 U.S. 399 (2006) .............................................. 17

Merrill v. Milligan, 142 S.Ct. 879 (2022)...... 10, 18, 21

Nw. Austin Mun. Util. Dist. No. One v.

Holder, 557 U.S. 193 (2009) ........................... 19, 22

Parents Involved in Cmty. Schs. v. Seattle

Sch. Dist. No. 1, 551 U.S. 701 (2007) .................... 8

Plessy v. Ferguson, 163 U.S. 537 (1896) ............... 8, 23

Ramos v. Louisiana, 140 S.Ct. 1390 (2020) .............. 14

Rucho v. Common Cause, 139 S.Ct. 2484

(2019) .................................................................... 19

Shaw v. Reno, 509 U.S. 630 (1993) ........................... 10

Shelby Cnty. v. Holder, 570 U.S. 529 (2013) ............ 22

Thornburg v. Gingles, 478 U.S. 30 (1986) ........ passim

United Sav. Ass’n of Tex. v. Timbers of

Inwood Forest Assoc’s, Ltd., 484 U.S. 365

(1988) ...................................................................... 6

Voinovich v. Quilter, 507 U.S. 146 (1993)................. 18

vi

Constitutions and Statutes

52 U.S.C. § 10301 .................................................... 4-5

52 U.S.C. § 10303 ........................................................ 4

U.S. Const. amend. XIII ............................................ 21

U.S. Const. amend. XIV .............................8, 15, 20-22

U.S. Const. amend. XV ...............................8, 15, 20-22

U.S. Const., art. VI, cl. 2 ........................................... 15

Other Authority

Antonin Scalia, A Matter of Interpretation

(new ed. 2018)....................................................... 14

Antonin Scalia & Bryan A. Garner, Reading

Law: The Interpretation of Legal Texts

(2012) ...................................................................... 6

Bryan Garner et al., The Law of Judicial

Precedent (2016) ................................................... 16

Christopher S. Elmendorf, Making Sense of

Section

2:

Of

Biased

Votes,

Unconstitutional Elections, and Common

Law Statutes, 160 U. Pa. L. Rev. 377

(2012) .................................................................... 21

vii

Diarmuid F. O’Scannlain, “We’re All

Textualists Now”: The Legacy of Justice

Scalia, 91 St. John’s L. Rev. 303 (2017) .............. 14

Harvard Law School, The Antonin Scalia

Lecture Series: A Dialogue with Justice

Elena Kagan on the Reading of Statutes,

YouTube

(Nov.

25,

2015)

https://www.youtube.com/watch?v=dpEts

zFT0Tg .................................................................. 14

Jowei Chen & Nicholas O. Stephanopoulos,

The Race-Blind Future of Voting Rights,

130 Yale L.J. 862, 871 (2021)............................... 18

Practice,

Merriam-Webster,

https://www.merriamwebster.com/dictionary/practice

(last

visited Apr. 28, 2022) ............................................. 6

Press Release, Secretary Merrill Responds to

Inaccurate Montgomery Advertiser OpEd

(Apr.

28,

2020),

https://www.sos.alabama.gov/newsroom/s

ecretary-merrill-responds-inaccuratemontgomery-advertiser-op-ed-0 .......................... 23

Procedure,

Merriam-Webster,

https://www.merriamwebster.com/dictionary/procedure

(last

visited Apr. 28, 2022) ............................................. 6

Standard,

Merriam-Webster,

https://www.merriam-

viii

webster.com/dictionary/standard

(last

visited Apr. 28, 2022) ............................................. 6

The Declaration of Independence (U.S. 1776)........... 22

1

IDENTITY AND INTEREST OF

AMICUS CURIAE 1

Amicus Curiae Alabama Center for Law and

Liberty (“ACLL”) is a conservative nonprofit publicinterest firm located in Birmingham, AL, dedicated to

the defense of limited government, free markets, and

strong families. ACLL has an interest in this case

because adherence to the constitutional framework

governing voting rights is essential to limited

government. ACLL believes that the Constitution

and the Voting Rights Act prohibit discrimination on

the basis of race and that the lower court’s decision

turned that principle on its head.

SUMMARY OF THE ARGUMENT

Appellants

and

Petitioners

(hereinafter

“Appellants”) argue persuasively that under this

Court’s precedents, the district court badly

misinterpreted Section 2 of the Voting Rights Act.

They also persuasively argue that the district court’s

reading of the Act is unconstitutional. However, if the

Court finds that the district court properly

interpreted its precedents but is nevertheless

troubled by the result, then it should take another

look at the governing precedent to determine whether

1 Pursuant to Rule

37.3, all parties have consented to the

filing of this brief. Pursuant to Rule 37.6, no party or party’s

counsel authored this brief in whole or in part, or contributed

money that was intended to fund its preparation or submission;

and no person other than the amicus curiae, its members, or its

counsel, contributed money that was intended to fund the

preparation or submission of this brief.

2

it was correctly decided. The purpose of this brief is

to explore that issue.

Section 2 of the Voting Rights Act prohibits the

States from imposing a “voter qualification,”

“prerequisite to voting,” or a “standard, practice, or

procedure” in a way that abridges a minority’s right

to vote. As Appellants note, the plain text of the

statute does not apply to single-member district

plans. Rather, especially understood in its context, it

applies only to state actions that impede minorities’

access to the ballot box. Construing the Voting Rights

Act to reach voter-dilution claims stretches the

statute beyond what it says. This not only violates

the law, but it also had the very unfortunate sideeffects of requiring Alabama to create congressional

districts based on racial gerrymandering. Not only

does this presume that all minorities think alike, but

it also deepens racial divides even further. The whole

point of the Reconstruction Amendments was to end

discrimination on the basis of race; therefore the

Voting Rights Act cannot reasonably be construed to

defeat that end.

So what accounts for the district court’s shocking

decision below? As Justice Thomas has observed

astutely for years, the problem in misinterpreting the

Voting Rights Act comes back to this Court’s

precedents. Specifically, in Thornburg v. Gingles, 478

U.S. 30 (1986), this Court construed Section 2 of the

Voting Rights Act to apply to voter-dilution claims.

Not only did this decision stretch the statute beyond

what it says, but it also produced two very

unfortunate side effects. First, it requires the Court

3

to evaluate these claims not upon judicially

manageable standards but upon political theory,

which courts are ill-equipped to do. Second, it

requires the creation of racially gerrymandered

districts—something

the

Framers

of

the

Reconstruction Amendments would have found

shocking indeed.

Not only is Gingles plainly irreconcilable with the

text of the Voting Rights Act and the Constitution

(which ACLL believes should end the inquiry), but it

should also be overruled in light of the factors

articulated in Janus v. AFSCME, Council 31, 138

S.Ct. 2448 (2018). The Justices were deeply fractured

in Gingles and have remained so through today,

creating significant doubt as to that precedent’s

reasoning and workability. Moreover, the Court’s

recent decision that political gerrymandering is not

justiciable

substantially

erodes

Gingles’s

underpinnings, since Gingles requires the courts to

make the same kinds of nonjusticiable decisions that

political gerrymandering cases require. Finally,

reliance interests also favor overruling Gingles,

because the irreconcilable tension between the Equal

Protection Clause and Gingles does not create a

coherent system on which the States can rely.

At the application stage, Chief Justice Roberts

noted that Gingles was the problem and that the

Court should consider overruling it at the merits

stage. ACLL agrees with Chief Justice Roberts. If, as

the Chief Justice and the district court found, there is

no way around Gingles, then it should be overruled.

4

ARGUMENT

I.

Section 2 of the Voting Rights Act Does

Not Apply to Voter Dilution Claims.

A.

Section 2 Applies Only to Practices

That Affect Minorities’ Access to the

Ballot Box

Section 2 of the Voting Rights Act, 52 U.S.C. §

10301, provides:

(a) No

voting

qualification

or

prerequisite to voting or standard,

practice, or procedure shall be imposed

or applied by any State or political

subdivision 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, or in

contravention of the guarantees set

forth in section 4(f)(2) [52 U.S.C. §

10303(f)(2)], as provided in subsection

(b).

(b) A violation of subsection (a) is

established if, based on the totality of

circumstances, it is shown that the

political processes leading to nomination

or election in the State or political

subdivision are not equally open to

participation by members of a class of

citizens protected by subsection (a) in

that its members have less opportunity

5

than other members of the electorate to

participate in the political process and to

elect representatives of their choice. The

extent to which members of a protected

class have been elected to office in the

State or political subdivision is one

circumstance

which

may

be

considered: Provided, That nothing in

this section establishes a right to have

members of a protected class elected in

numbers equal to their proportion in the

population.

As Justices Thomas and Scalia have observed,

“the size of a governing body,” such as a

congressional district, “is not a ‘standard, practice or

procedure’ within the terms of the Act.” Holder v.

Hall, 512 U.S. 874, 892 (1994) (Thomas, J., joined by

Scalia, J., concurring in judgment). Properly

understood, “those terms reach only state enactments

that limit citizens’ access to the ballot.” Id. at 893.

The plain language of the statute applies only to

“‘voting qualifications,’” “‘prerequisites to voting,’” or

“‘standards, practices, or procedures.’” Id. at 915

(quoting 52 U.S.C. § 10301(a)). “Voting qualifications”

and “prerequisites to voting” apply only to “conditions

or tests applied to regulate citizens’ access to the

ballot,” such as “any form of testing or requirement

imposed as a condition on registration or on the

process of voting on election day.” Id.

Divorced from its context, the phrase “standard,

practice, or procedure” may seem more susceptible to

interpretation than the prior terms. Id. However,

6

three observations must be made here. First, it is still

difficult to construe the plain meaning of these words

to cover how a state legislature would create

congressional districts. See id. (citing Connecticut

Nat’l Bank v. Germain, 503 U.S. 249, 253-54 (1992)

(providing that statutory analysis should begin with

the statutory language itself)); see also Antonin

Scalia & Bryan A. Garner, Reading Law: The

Interpretation of Legal Texts 56 (2012) (“The words of

a governing text are of paramount concern, and what

they convey, in their context, is what the text

means.”). “Standard,” when used in law, essentially

means, “a level of quality, achievement, etc., that is

considered acceptable or desirable.” 2 “Practice”

means “the usual way of doing something.” 3

“Procedure” essentially means “a series of steps

followed in a regular definite order” or “a traditional

or established way of doing something.” 4 It is difficult

to take the ordinary meaning of these words and

apply them to drawing congressional maps. While

Justice Thomas is correct that these terms are not as

precise as the others in Section 2(a), neither do they

plainly apply to drawing congressional districts.

Second, if the plain words appear to apply, then

their context must be considered. See Holder, 512

U.S. at 893 (Thomas, J., concurring in judgment)

(citing United Sav. Ass’n of Tex. v. Timbers of Inwood

Standard, Merriam-Webster, https://www.merriamwebster.com/dictionary/standard (last visited Apr. 28, 2022).

3

Practice,

Merriam-Webster,

https://www.merriamwebster.com/dictionary/practice (last visited Apr. 28, 2022).

4

Procedure, Merriam-Webster, https://www.merriamwebster.com/dictionary/procedure (last visited Apr. 28, 2022).

2

7

Forest Assoc’s, Ltd., 484 U.S. 365, 371 (1988)); see

also Scalia & Garner, supra, at 56 (noting that terms

must be given their ordinary meaning in context).

Because the surrounding words focus on “conditions

or tests applied to regulate citizens’ access to the

ballot box,” the context dictates that the words in

question “must be understood as referring to any

standard, practice, or procedure with respect to

voting.” Id. at 915 (emphasis in original). Thus,

Section 2(a) refers “only to practices that affect

minority citizens’ access to the ballot.” Id.

Third, one may object that because Section 2(b)

imposes the test for how to determine whether a

violation of Section 2(a) has occurred, all that matters

is Section 2(b). But again, context matters. “While

Section 2(a) defines and explicitly limits the type of

voting practice that may be challenged under the Act,

§ 2(b) provides only ‘the test for determining the

legality of such practice.’” Id. at 924 (quoting Chisom

v. Roemer, 501 U.S. 380, 391 (1991)). Therefore,

“there is no reason to think that § 2(b) could serve to

expand the scope of the prohibition in § 2(a)[.]” Id.

B.

Applying Section 2 to Voter Dilution

Claims Violates the Constitution,

Requires the Court to Make

Political Choices, and Deepens

Racial Divides.

As this case demonstrates, the consequences of

misinterpreting Section 2 have been disastrous. By

reading Section 2 to require Alabama to draw two

majority-minority congressional districts, the lower

8

court required Alabama to discriminate on the basis

of race—which is exactly what the Fourteenth

Amendment, Fifteenth Amendment, and Voting

Rights Act were designed to prevent. As Justice

Harlan put it years ago, “[o]ur Constitution is colorblind.” Plessy v. Ferguson, 163 U.S. 537, 559 (1896)

(Harlan, J., dissenting). Instead of upholding the

color-blind standard that Justice Harlan championed,

the lower court held that the Voting Rights Act

requires some level of race-based discrimination. “The

way to stop discrimination on the basis of race is to

stop discrimination on the basis of race.” Parents

Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1,

551 U.S. 701, 748 (2007). 5

Additionally, as Justice Thomas has observed,

applying Section 2 to voter-dilution claims in the

creation of congressional districts requires the

judiciary to engage in political theory rather than

adjudication. Holder, 512 U.S. at 895-903 (Thomas,

J., concurring in judgment). “[T]alk of ‘debasement’ or

‘dilution’ is circular talk. One cannot speak of

‘debasement’ or ‘dilution’ of the value of a vote unless

there is first a defined standard or reference to what

a vote should be worth.” Baker v. Carr, 369 U.S. 186,

300

(1962)

(Frankfurter,

J.,

dissenting).

Consequently, “[i]n order to decide whether an

5 Granted, if Alabama drew the congressional districts with

the intent to discriminate on the basis of race, then there is no

doubt that such a disgusting act would violate the Equal

Protection Clause. But if there was no intentional

discrimination (which is redundant, since discrimination

involves intent), then ordering Alabama to discriminate on the

basis of race violates the law rather than upholding it.

9

electoral system has made it harder for minority

voters to elect candidates they prefer, a court must

have an idea in mind of hard it ‘should’ be for

minority voters to elect their preferred candidates

under an acceptable system.” Gingles, 478 U.S. at 88

(O’Conner, J., concurring in judgment). So which is

better: multimember districts, or single-member

districts? “Under one system, Negroes have some

influence in the election of all officers; under the

other, minority groups have more influence in the

selection of fewer officers. Allen v. State Bd. of

Elections, 393 U.S. 544, 586 (1969) (Harlan, J.,

concurring in part and dissenting in part). The Court

has picked single-member districts, but “there is no

principle inherent in our constitutional system, or

even in the history of the Nation’s electoral practices,

that makes single-member districts the ‘proper’

mechanism

for

electing

representatives

to

governmental bodies or for giving ‘undiluted’ effect to

the votes of a numerical minority.’” Holder, 512 U.S.

at 897 (Thomas, J., concurring in judgment).

Finally, the “worst aspect” of interpreting Section

2 to apply to voter-dilution claims is “the implicit

assumption that members of racial and ethnic groups

must all think alike on important matters of public

policy 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.

Not only is it insulting to people to presume that they

all think alike because of their skin color, but it also

requires the federal courts to divide “the country into

electoral districts along racial lines – an enterprise of

segregating the races into political homelands that

10

amounts, in truth, to nothing short of a system of

‘political apartheid.’” Id. at 905 (quoting Shaw v.

Reno, 509 U.S. 630, 647 (1993)). “The assumptions

upon which our vote dilution decisions have been

based should be repugnant to any nation that strives

for the ideal of a color-blind Constitution.” Id. at 90506. Moreover, the Court’s “drive to segregate political

districts by race can only serve to deepen racial

divisions by destroying any need for voters or

candidates to build bridges between racial groups or

to form voting coalitions.” Id. at 907.

II.

Gingles Should Be Overruled.

In light of what Section 2 actually says and

means, Justice Thomas was correct to argue that a

“systematic reexamination of our interpretation of

the Act is required.” Holder, 512 U.S. at 914

(Thomas, J., concurring in judgment). While it may

be better to wait for another day for the

reexamination of the entire system, the Court may

have to wrestle with one precedent in particular:

Thornburg v. Gingles, 478 U.S. 30 (1986). Appellants

make a compelling argument that a proper

interpretation of Gingles and its progeny requires

reversal of the district court’s decision. However, as

Chief Justice Roberts noted at the application stage,

it may be difficult to get around Gingles, raising the

question of whether it should be overruled now that

the case has reached the merits stage. Merrill v.

Milligan, 142 S.Ct. 879, 882-83 (2022) (Roberts, C.J.,

dissenting). If the Court likewise finds that Gingles is

the problem, then it should consider overruling

11

Gingles. ACLL will address this issue thoroughly in

case the Court finds it necessary to examine it.

A.

The Issues with Gingles

In Gingles, the Court devised a framework that

has guided the redistricting process. It first set up a

three-part test for identifying when a majorityminority district should be drawn. That test

considers whether a minority group can show that :

(1) it is “sufficiently large and geographically compact

to constitute a majority in a single-member district”;

(2) it votes in a “politically cohesive” way; and (3) “the

white majority votes sufficiently as a bloc to enable it

… usually to defeat the minority’s preferred

candidate.” 478 U.S. at 49-52. After that test has

been satisfied, the court must then evaluate the

totality of the circumstances In that evaluation, the

Notwithstanding its widespread use since 1986,

the Gingles test is not without its difficulties. First,

as the Court’s racial gerrymandering jurisprudence

shows, not every majority that can be cobbled

together complies with the Constitution. Second, the

line between “packing” and “cracking” cannot be

predicted in advance. That line is identified only

when a reviewing court decides that a State did or

did not dilute the votes of minority voters, whether it

tried to do so or not. Finally, the three-judge court

below abused its powers when it told the State to

draw a map “that includes either two majority-Black

district, or two districts in which Black votes

otherwise have an opportunity to elect a

12

representative of their choice, or a combination of two

such districts.” Milligan Stay Appendix at 5. 6

B.

Gingles Was Wrongly Decided.

As Justice Thomas’s concurrence in Holder

illustrates, voter-dilution claims cannot be justified

under the text of Section 2. Nevertheless, in Gingles,

the Court construed Section 2 to cover voter dilution

claims. The Court held that in order to prove a voterdilution claim, three preconditions must be met.

“First, the minority group must be able to

demonstrate that it is sufficiently large and

geographically compact to constitute a majority in a

single-member district.” Gingles, 478 U.S. at 50.

“Second, the minority group must be able to show

that it is politically cohesive.” Id. at 51. “Third, the

minority must be able to demonstrate that the white

majority votes sufficiently as a bloc to enable it – in

the absence of special circumstances, such as the

minority candidate running unopposed … – usually

to defeat the minority’s preferred candidate.” Id. at

51 (citation omitted).

The decision was authored by Justice Brennan

and joined by Justices Marshall, Blackmun, Stevens,

and mostly by Justice White. In forming the Gingles

elements, the Court drew very heavily on the

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

the Court held that the Voting Rights Act does not require a

State to draw a district in which minority voters do not

constitute a majority. The three-judge court’s suggestion that

the State do something that it cannot be required to do is to cut

by half.

13

legislative history of Section 2’s most recent

amendment to understand its meaning. See Gingles,

478 U.S. at 43-51. What it did not do, however, was

engage in the disciplined textual analysis that

Justice Thomas did in his Holder concurrence.

Justice O’Connor, joined by Chief Justice Burger

and Justices Powell and Rehnquist – the

conservative-leaning bloc of the Court at the time –

concurred in the judgment only. Gingles, 478 U.S. at

83 (O’Conner, J., concurring in judgment). Their

main criticism of the main opinion is that the test

implicitly created “a right to a form of proportional

representation,” which is exactly what the text of the

statute rejected. Id. at 85. Drawing on the legislative

history of the Act, Justice O’Conner reasoned that, in

light of the previous precedents of which Congress

appeared to be taking note, she would hold that “a

court should consider all relevant factors bearing on

whether the minority group had less opportunity

than the other members of the electorate to

participate in the political process and elect

representatives of their choice.” Id. at 99 (internal

quotation marks omitted). While Justice O’Conner’s

test was more conservative than Justice Brennan’s,

Justice O’Conner and her colleagues likewise failed to

note that the plain language of Section 2(a) dictates

the scope and meaning of the test prescribed in

Section 2(b).

As demonstrated thoroughly in Part I, supra, the

statute’s text and context cannot be reconciled with

Gingles’s holding. If Congress limited Section 2 to

cases where minorities were trying to gain access to

14

the ballot box, then it cannot be extended to cover

voter-dilution claims in how a state exercises its

constitutional duty to create congressional districts. 7

Unfortunately, both Justice Brennan and Justice

O’Conner’s opinions missed this threshold issue.

Gingles’s chief flaw appears to be an undue reliance

on legislative history and not enough reliance on the

statute’s text. The textualists’ war against abusing

legislative history in this way is well-documented.

See, e.g., Antonin Scalia, A Matter of Interpretation

16-37 (new ed. 2018); Scalia & Garner, supra, at 36990. And over time, the textualists prevailed. As

Justice Kagan famously said, “We’re all textualists

now.” Harvard Law School, The Antonin Scalia

Lecture Series: A Dialogue with Justice Elena Kagan

on the Reading of Statutes, YouTube (Nov. 25, 2015)

https://www.youtube.com/watch?v=dpEtszFT0Tg; see

also Diarmuid F. O’Scannlain, “We’re All Textualists

Now”: The Legacy of Justice Scalia, 91 St. John’s L.

Rev. 303 (2017). Under today’s textualist dominance

of statutory interpretation, it is far more likely that

the Court today would adopt Justice Thomas’s

reading of Section 2 from Holder than it is that it

would affirm Justice Brennan or O’Conner’s tests

from Gingles.

Finally, some Justices ask not only whether a

decision is “wrong” but “egregiously wrong” to

warrant reconsideration. See, e.g., Ramos v.

Louisiana, 140 S.Ct. 1390, 1414 (2020) (Kavanaugh,

Again, this is a different matter than where the state

intentionally discriminates against minorities in how it draws a

congressional map, which the Equal Protection Clause certainly

prohibits.

7

15

J., concurring in part). As Justice Thomas’s

concurrence in Holder demonstrates, Gingles’s

misinterpretation of Section 2 requires race-based

segregation, which was the chief evil that the

Fourteenth Amendment, Fifteenth Amendment, and

Voting Rights Act were created to remedy. Between

that and requiring the Court to engage in political

calculus instead of adjudication, Gingles has been “a

disastrous misadventure in judicial policy-making.”

Holder, 512 U.S. at 893 (Thomas, J., concurring in

judgment). Thus, between segregation and judicial

policymaking, Gingles was egregiously wrong and

should be revisited.

C.

The Court’s Duty Is to Choose the

Law Over Stare Decisis.

Before getting into the factors the Court has

recently employed in reevaluating precedent, ACLL

believes that “[w]hen faced with a demonstrably

erroneous precedent,” the rule is simple: the Court

“should not follow it.” Gamble v. United States, 139

S.Ct. 1960, 1984 (2019) (Thomas, J., concurring). The

Constitution itself and the laws of the United States

made in pursuance thereof are “the supreme law of

the land.” U.S. Const., art. VI, cl. 2. Consequently, if

the Court is faced with a precedent that clearly

conflicts with what the Constitution or a statute says,

ACLL submits that it is the Court’s duty to decline to

follow the precedent and instead follow the

Constitution or statute. See generally Gamble, 139

S.Ct. at 1981-89 (Thomas, J., concurring). ACLL will

proceed to discuss the factors that the Court

traditionally considers in revisiting precedent, but it

16

would be remiss if it did not make this threshold

point for the Court’s consideration.

D.

The

Janus

Factors

Overruling Gingles.

Favor

If the Court does not believe that demonstrable

error alone is enough to warrant overturning

precedent, then it should look to the factors it

articulated recently in Janus v. AFSCME, Council

31, 138 S.Ct. 2448 (2018). Those factors are: (1) the

quality of the precedent’s reasoning, (2) the

workability of the precedent in question, (3) whether

legal or factual developments have eroded the

decision’s underpinnings and left it as an outlier, and

(4) reliance interests. Id. at 2479-84.

1.

The

Quality

Reasoning

of

Gingles’s

As

Justices

Thomas

and

Scalia

aptly

demonstrated, Gingles disregarded the cardinal rule

of statutory interpretation: “The words of a governing

text are of paramount concern, and what they convey,

in their context, is what the text means.” Scalia &

Garner, supra, at 56. Furthermore, the Justices split

5-4 about the holding and reasoning of the case.

When the Court is that closely split, it “may leave the

decision more vulnerable to challenge and more likely

to be overruled.” Bryan Garner et al., The Law of

Judicial Precedent 190 (2016). That is not to say that

decisions are always less authoritative if the Court is

closely split. See id. at 187. However, because Gingles

achieved only a narrow victory while discarding the

17

cardinal rule of statutory interpretation, the first

Janus factor weighs in favor of overruling it.

2.

Gingles’s Workability

As to the workability of the precedent, Gingles has

been “a disastrous misadventure in judicial policymaking.” Holder, 512 U.S. at 893 (Thomas, J.,

concurring in judgment). As argued above, it requires

the judiciary to engage in race-based discrimination

based on political theories rather than manageable

judicial standards that hurt rather than help racial

divides. See Part I, supra. Furthermore, subsequent

decisions illustrate that Gingles has been difficult to

apply in practice. For instance, in Holder, the Court

was split five ways on how to apply Gingles. See

Holder, 512 U.S. at 876-82, 885 (opinion of Kennedy,

J., joined by Rehnquist, C.J., and O’Conner, J.); id. at

882-84 (opinion of Kennedy, J., joined by Rehnquist,

C.J.); id. at 885-91 (O’Conner, J., concurring in part

and concurring in judgment); id. at 891-946 (Thomas,

J., joined by Scalia, J., concurring in judgment); id. at

946-55 (Blackmun, J., dissenting). A fractured Court

attempted to apply Gingles again in League of United

Latin Am. Citizens v. Perry, 548 U.S. 399 (2006) in a

vote line that was hardly easy to follow. LULAC, 548

U.S. at 408. As of 2009, the Court appeared to fall

into three camps as to how to apply Gingles. Bartlett

v. Strickland, 556 U.S. 1, 6 (2009) (opinion of

Kennedy, J., joined by Roberts, C.J., and Alito, J.); id.

at 26 (Thomas, J., joined by Scalia, J.); id. at 26

(Souter, J., joined by Stevens, Ginsburg, and Breyer,

JJ.). Thus, as the Chief Justice noted in his

application-stage dissent, Gingles makes the voter-

18

dilution doctrine as “‘an area of the law notorious for

its many unsolved puzzles[.]’” Merrill, 142 S.Ct. at

883 (Roberts, C.J., dissenting) (quoting Jowei Chen &

Nicholas O. Stephanopoulos, The Race-Blind Future

of Voting Rights, 130 Yale L.J. 862, 871 (2021)).

That is not to say that every case in which Gingles

arose was subject to such a fractured decision. See,

e.g., Growe v. Emison, 507 U.S. 25 (1993); Voinovich

v. Quilter, 507 U.S. 146 (1993). However, when the

Court decides the harder cases applying Gingles, the

reasoning tends to be more fractured. With three or

four different approaches in the harder cases, the

voter-dilution doctrine wobbles along like a shopping

cart with wheels that do not cooperate with each

other.

Furthermore, as the Chief Justice observed in his

dissent at the application stage, perhaps the biggest

problem with Gingles’s workability is that it defeats

the purpose for which the Voting Rights Act was

enacted. Merrill, 142 U.S. at 883 (Roberts, C.J.,

dissenting) (quoting Johnson v. DeGrandy, 512 U.S.

997, 1028 (1994) (Kennedy, J., concurring in part and

concurring in judgment)). Whatever factors go into

workability, if a precedent defeats the primary

purpose of the law that it is supposed to interpret,

then the precedent does not work. 8 Consequently, the

8 In fairness to the Gingles Court, as the Chief Justice noted,

the language of Section 2(b) has been described as “‘famously

elliptical[.]’” Merrill, 142 S.Ct. at 883 (Roberts, C.J., dissenting)

(quoting Gonzalez v. City of Aurora, 535 F.3d 594, 597 (7th Cir.

2008) (Easterbrook, J., for the court)). However, Justice Thomas

correctly explained in Holder that Section 2(b) is constrained by

19

workability

revisited.

factor

3.

suggests

that

it

should

be

Whether Gingles’s Underpinnings

Have Been Eroded and Left It as

an Outlier

Third, a decision is an outlier if further

developments in the law have eroded the decision’s

underpinnings. Janus, 138 S.Ct. at 2482. Two types

of erosion are worth noting here. First, this Court

recently held that political gerrymandering is a

nonjusticiable political question because the judiciary

lacks manageable standards to assess those cases.

Rucho v. Common Cause, 139 S.Ct. 2484 (2019).

Thus, it is time for the Court to look again at Justice

Thomas’s criticism that voter-dilution claims

necessarily require the Court to engage in political

theory. The Court held in Rucho that it was not

proper for a Court to do that. If that is true, then

Gingles must fall as well. Second, as this Court has

noted, the South has changed. Nw. Austin Mun. Util.

Dist. No. One v. Holder, 557 U.S. 193, 202 (2009). The

South has largely turned from its former ways that

necessitated the Voting Rights Act in the first place.

Thus, major factual and legal changes have eroded

Gingles’s underpinnings.

Furthermore, Gingles stands as an outlier because

it requires racial discrimination among a body of law

whose whole purpose is to prohibit it. As the district

Section 2(a), so Section 2(b) cannot expand the scope of Section

2(a). Holder, 512 U.S. at 915 (Thomas, J., concurring in

judgment).

20

court itself noted, “while ‘the Equal Protection Clause

restricts the consideration of race in the districting

process, compliance with the Voting Rights Act of

1965 … pulls in the opposite direction. It often insists

that districts be created precisely because of race.’”

Stay App. 33 (quoting Abbott v. Perez, 138 S. Ct.

2305, 2314 (2018)). When a statute that was designed

to end racial discrimination is interpreted to require

racial discrimination, then something is very wrong.

Gingles and its progeny stand as an outlier to the

demands of the Fourteenth and Fifteenth

Amendments, as well as the Voting Rights Act itself.

4.

Special Justification and Reliance

Interests

It has been said that when the first three Janus

factors are met, so is the “special justification” needed

to overrule a precedent. Janus, 138 S.Ct. at 2486.

They also tend to outweigh any contrary reliance

interests. Id.

As to reliance concerns, because of the dueling

nature of the Equal Protection Clause and this

Court’s interpretation of the Voting Rights Act, it is

difficult for the states to know how to rely on this

Court’s precedents. Indeed, one of the State’s central

claims in this application is that construing the

Voting Rights Act to require such racial

gerrymandering is unconstitutional. As this Court

observed recently, attempting to follow Gingles and

its progeny automatically triggers strict scrutiny, but

it is presumed that the State has a compelling

interest in following the Voting Rights Act. Cooper v.

21

Harris, 137 S.Ct. 1455, 1464 (2017). So, in every case,

the State has to walk the narrowly-tailored line. It is

a fine line to walk between violating the Equal

Protection Clause and the Voting Rights Act.

Furthermore, as the Chief Justice noted in his

application-stage dissent, Gingles and its progeny

have failed to produce any “‘authoritative resolution

of the basic questions one would need to answer to

make sense of the results test.’” Merrill, 142 S.Ct. at

883 (Roberts, C.J., dissenting) (quoting Christopher

S. Elmendorf, Making Sense of Section 2: Of Biased

Votes, Unconstitutional Elections, and Common Law

Statutes, 160 U. Pa. L. Rev. 377, 389 (2012)). The

virtue of having settled precedent (when such

precedent is not clearly irreconcilable with the

Constitution or a statute) is that it provides a final

answer on a matter over which reasonable minds

could differ. But as to this issue, there is no final

answer. If there is no final answer, then there can be

no reasonable reliance. Thus, reliance interests also

tip in favor of revisiting Gingles.

III.

Alabama Has Changed.

The 1982 Senate Factors drive the analysis of vote

dilution claims in the wrong direction. They

inexorably lead to a focus on the past and on social

and historical conditions that are unrelated to voter

registration and turnout.

Without a doubt, the Thirteenth, Fourteenth, and

Fifteenth Amendments represent the best of our

Constitution. America was founded on the beliefs

22

that “all men are created equal” and that they are

“endowed by their Creator with certain unalienable

Rights ….” The Declaration of Independence para. 2

(U.S. 1776). Unfortunately, while the Founding

generation was making progress towards applying

these ideals, it did not apply these ideals towards

everyone regardless of race. But after the Civil War,

these three amendments supplied what was lacking

at the Founding.

Yet many places in the United States, especially

in the South, continued to fail to honor the

Constitution’s

requirements.

Consequently,

corrective action from Congress, including the Voting

Rights Act, was necessary. Throughout this brief,

ACLL does not intend in any way to downplay the

importance of the Voting Rights Act or the role it

played in producing necessary change.

However, as this Court has recognized, “[t]hings

have changed in the South.” Nw. Austin, 557 U.S. at

202. While nobody disputes that any intentional act

to discriminate against people on the basis of color or

race would violate the Fourteenth Amendment,

Fifteenth Amendment, and the Voting Rights Act,

this Court has declared part of the Voting Rights Act

unconstitutional because the conditions that justified

its passage are no longer present. Shelby Cnty. v.

Holder, 570 U.S. 529 (2013); see also id. at 557

(Thomas, J., concurring). Thus, while ACLL is

absolutely in favor of invalidating congressional

districts that were designed from an intent to

discriminate on the basis of race, it believes that it is

23

no longer necessary to view every racially neutral

policy through the lens of racial discrimination.

In this case, the record reflects that the map was

initially drawn without regard to race. In fact, the

map was so racially neutral that one Milligan

Plaintiffs’ expert, Dr. Imai did not generate two

majority-black districts in 30,000 simulations,

Supplemental Joint Appendix 58-59, 72, and Joint

Appendix 571-72, and another Milligan Plaintiffs

expert, Dr. Duchin, could not draw a second majorityblack district after two million simulations. Joint

Appendix 710. Dr. Duchin was able to identify such a

district only after intentionally putting race first in

her search criteria, explaining “that is hard to draw

two majority-black districts by accident shows the

importance of doing so on purpose.” Joint Appendix

714. Just as “[o]ur Constitution is color-blind,” Plessy,

163 U.S. at 559 (Harlan, J., dissenting), so is

Alabama’s map for congressional districts. Because

there is no discrimination on the basis of race,

Alabama’s congressional map should not have been

invalidated.

Moreover, Alabama’s voter registration and

turnout now cannot be compared with those in 1965.

Since 1994, the number of African-American

registered voters increased from 479,415 to 883,976

as of March 31, 2020, an increase of 84%. 9 In

See Press Release, Secretary Merrill Responds to

Inaccurate Montgomery Advertiser Op-Ed (Apr. 28, 2020),

https://www.sos.alabama.gov/newsroom/secretary-merrillresponds-inaccurate-montgomery-advertiser-op-ed-0

9

24

addition, 96% of all eligible African-Americans in

Alabama are registered to vote. 10

CONCLUSION

The Constitution and the Voting Rights Act

require one simple thing: stop discriminating on the

basis of race. That’s exactly the opposite of what the

district court did here. For the reasons stated by

Appellants and those advanced in this brief, this

Court should reverse the judgment of the district

court.

Respectfully submitted,

JOHN J. PARK, JR.

P.O. Box 3073

Gainesville, GA 30503

(678) 608-1920

jackparklaw@gmail.com

MATTHEW J. CLARK*

*Counsel of Record

ALABAMA CENTER FOR

LAW AND LIBERTY

2213 Morris Ave., Fl. 1

Birmingham, AL 35203

(256) 510-1828

matt@

alabamalawandliberty.org

Counsel for Amicus Curiae

10 Id.