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

Nos. 21-1086, 21-1087

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------JOHN H. MERRILL, Alabama Secretary of State, et al.,

Appellants,

v.

EVAN MILLIGAN, et al.,

Appellees.

---------------------------------♦--------------------------------JOHN H. MERRILL, Alabama Secretary of State, 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 SENATOR JOHN BRAUN,

LEADER OF THE WASHINGTON SENATE

REPUBLICAN CAUCUS, ET AL., AS AMICI CURIAE

IN SUPPORT OF APPELLANTS

---------------------------------♦--------------------------------CHARLES R. SPIES

Counsel of Record

ANJALI D. WEBSTER

DICKINSON WRIGHT, PLLC

1825 Eye Street N.W.

Suite 900

Washington, D.C. 20006

202-466-5964

Cspies@dickinsonwright.com

Awebster@dickinsonwright.com

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE .........................

1

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

2

ARGUMENT ........................................................

4

1.

2.

3.

Redistricting is the duty and responsibility of the States .........................................

4

This Court’s precedent supports that a

Gingles analysis must take into account

traditional districting principles ...............

8

Without guidance from this Court, the decision below significantly exacerbates the

already existing uncertainty regarding

the parameters of a vote dilution claim .... 14

a. The district court’s decision is contrary to this Court’s precedent, and

greatly exacerbates the disagreement

and uncertainty already present in

vote dilution claims ............................. 15

b. The decision below underscores that

a clear, administrable standard is

needed .................................................. 19

CONCLUSION..................................................... 25

ii

TABLE OF AUTHORITIES

Page

CASES

Abbott v. Perez,

138 S. Ct. 2305 (2018) ....................................... 4, 8, 9

Abrams v. Johnson,

521 U.S. 74 (1997) ...................................................12

Bartlett v. Strickland,

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

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

137 S. Ct. 788 (2017) ...............................................10

Bush v. Vera,

517 U.S. 952 (1996) ..................................... 12, 21, 23

Cooper v. Harris,

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

Gonzalez v. City of Aurora, Illinois,

535 F.3d 594 (7th Cir. 2008) .............................. 20, 23

Holder v. Hall,

512 U.S. 874 (1994) .................................................24

Johnson v. De Grandy,

512 U.S. 997 (1994) ......................... 10, 11, 14, 18, 23

Johnson v. Wis. Elections Comm’n,

___ N.W.2d ___, 2022 WL 1125401

(Wis. April 15, 2022) .......................................... 20, 22

League of United Latin American Citizens v.

Perry,

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

Merrill v. Milligan,

142 S. Ct. 879 (2022) ...............................................19

iii

TABLE OF AUTHORITIES—Continued

Page

Miller v. Johnson,

515 U.S. 900 (1995) ......................................... passim

Sensley v. Albritton,

385 F.3d 591 (5th Cir. 2004) ....................................20

Shaw v. Hunt,

517 U.S............................................................... 10, 18

Shaw v. Reno,

509 U.S. 630 (1993) ...................................................3

Wis. Legislature v. Wis. Elections Comm’n,

142 S. Ct. 1245 (2022) ........................... 10, 11, 17, 18

STATUTES

Ga. Code Ann. § 21-1-2 ............................................. 6, 7

RCW 44.05.040 .............................................................6

RCW 44.05.080 .............................................................6

RCW 44.05.090 .............................................................6

RCW 44.05.100 .............................................................6

Va. Code Ann. § 30-391 .................................................7

Va. Code Ann. § 30-399 .................................................7

OTHER AUTHORITIES

How to Draw Redistricting Plans That Will

Stand Up in Court, National Conference of

State Legislatures (Jan. 11, 2021) ..........................21

iv

TABLE OF AUTHORITIES—Continued

Page

Making Sense of Section 2: Of Biased Votes,

Unconstitutional Elections, and Common Law

Statutes, 160 U. Pa. L. Rev. 377 (2012) ...................19

Readying Virginia for Redistricting After A

Decade of Election Law Upheaval, 55 U. Rich.

L. Rev. 227 (2020) ................................................ 9, 20

The Race-Blind Future of Voting Rights, 130

Yale L.J. 862 (2021) .................................................19

1

INTEREST OF AMICI CURIAE1

Amici curiae are the following state legislators:

Senator John Braun, Leader of the Washington Senate

Republican Caucus; Representative Houston Gaines,

in his official capacity as Chairman of the Georgia

House Committee on Legislative and Congressional

Reapportionment; Senator John F. Kennedy, in his official capacity as Chairman of the Georgia Senate

Committee on Reapportionment and Redistricting;

Representative Timothy K. Moore, in his official capacity as Speaker of the North Carolina House of Representatives; Senator Philip E. Berger, in his official

capacity as President Pro Tempore of the North Carolina Senate; Representative Dade Phelan, Speaker of

the Texas House of Representatives; Senator Ryan

McDougle, Virginia Redistricting Commission; and

Representative J.T. Wilcox, Washington House Republican Leader.

Amici are elected leaders in five States who all

have been involved in their States’ respective redistricting processes. They submit this brief in support of

the Appellants because the district court’s ruling, if allowed to stand, will significantly undermine the ability

of all States, including the States of amici legislators,

to draw lines for electoral districts, which “is one of the

most significant acts a State can perform to ensure

1

No counsel for any party authored this brief in whole or in

part and no entity or person, other than amici curiae, its members, or its counsel, made any monetary contribution intended to

fund the preparation or submission of this brief. All of the parties

have provided written consent to the filing of this brief.

2

citizen participation in republican self-governance.”

League of United Latin American Citizens v. Perry, 548

U.S. 399, 416 (2006) (“LULAC”). Absent guidance from

this Court in the form of a clear, administrable standard for map drawers, widespread confusion will unnecessarily ensue as to the extent to which traditional

districting criteria can or must be considered when analyzing the preconditions in Thornburg v. Gingles, an

area of law already riddled with disagreement and uncertainty. Amici respectfully urge that this Court grant

the relief requested by Appellants.

---------------------------------♦---------------------------------

SUMMARY OF THE ARGUMENT

Redistricting is a vital function of the State, and is

a complicated process which involves balancing of a

complex interplay of forces. The most difficult issue a

mapmaker must manage is the consideration of race—

a mapmaker redrawing legislative districts must paradoxically consider race, if at all, as little as possible

while also considering race as much as necessary to

guarantee minority voters are fully able to exercise

their right to vote.

This delicate balancing act in determining the

nature and contours of a vote dilution claim is already fraught with uncertainty, and here, the district

court’s decision has served only to entrench and exacerbate that uncertainty. Specifically, in contravention

of this Court’s precedent that a vote-dilution claim inquiry “should take into account traditional districting

3

principles such as maintaining communities of interest and traditional boundaries,” LULAC, 548 U.S. at

433, the district court endorsed the plaintiffs’ approach

of establishing race as a “non-negotiable” target at the

outset, only subsequently accounting for traditional

districting principles. And in so doing, the district court

faulted Alabama for not considering race enough when

this Court has consistently instructed that States

must not let race predominate.

Thus, the district court’s decision will force map

drawers to speculate whether, when, and to what extent they must “yield” traditional race-neutral districting principles to race, without violating the Fourteenth

Amendment. This will inevitably lead to costly lawsuits throughout the country in every redistricting

cycle, maximizing rather than minimizing judicial

oversight and involvement into a process that is the

function of the States. To avoid these untenable outcomes, there must be a clear, administrable standard

which minimizes (if not eliminates) any unnecessary infusing of race into the redistricting process,

“ ‘carry[ing] us further from the goal of a political system in which race no longer matters.’ ” Bartlett v.

Strickland, 556 U.S. 1, 21 (2009) (quoting Shaw v.

Reno, 509 U.S. 630, 657 (1993)).

---------------------------------♦---------------------------------

4

ARGUMENT

1.

Redistricting is the duty and responsibility

of the States.

“Redistricting ‘is primarily the duty and responsibility of the State,’ and ‘[f ]ederal-court review of districting legislation represents a serious intrusion on

the most vital of local functions.’ ” Abbott v. Perez, 138

S. Ct. 2305, 2324 (2018) (quoting Miller v. Johnson, 515

U.S. 900, 915 (1995)). Moreover, because “[e]lectoral

districting is a most difficult subject for legislatures,

. . . the States must have discretion to exercise the political judgment necessary to balance competing interests.” Miller, 515 U.S. at 915. “[T]he obligation placed

upon the Federal Judiciary is unwelcome because

drawing lines for [electoral] districts is one of the most

significant acts a State can perform to ensure citizen

participation in republican self-governance.” LULAC,

548 U.S. at 416.

The act of redistricting generally requires that,

every ten years, jurisdictions throughout the country

reallocate political power amongst their constituents

based on the results of the most recent census. This is

accomplished by redrawing district lines, which will

then serve to define the groups of individuals represented by various legislative representatives at the

state and federal levels. The process requires that districts be made up of roughly equal population size,

which, in theory preserves equality of representation

in an environment of ever-changing demographics and

population fluctuation.

5

Some state legislatures have reserved to themselves the authority to draw district lines, whereas

others have delegated that authority to one or more

commissions, often consisting of individuals from various backgrounds and qualifications. States consider

common criteria during this process, which can be

generally divided into two separate categories: traditional principles and emerging criteria. NCSL, Into the

Thicket: A Redistricting Starter Kit for Legislative

Staff.2 Traditional principles consist of the following:

compactness of districts; the preservation of communities of interest; the preservation of geographic boundaries of counties and other political subdivisions;

preservation of cores of prior districts; and the avoidance of pairing incumbents in electoral races. Id. Some

States rank those various criteria by priority; however,

this is often not statutorily required. Id. Each individual state establishes its own system of redistricting

and delegates authority for that process accordingly.

Redistricting Systems: A 50-State Overview.3

The criteria considered in the process of redistricting, and whether a map or plan is subject to public input or additional procedural hurdles, varies on a stateby-state basis to a significant degree—with many

States taking steps in recent years to delegate power

through new redistricting systems. In other words,

2

Updated November 24, 2021, at https://www.ncsl.org/

research/redistricting/into-the-thicket-a-redistricting-starter-kitfor-legislative-staff.aspx.

3

Updated March 29, 2021, at https://www.ncsl.org/research/

redistricting/redistricting-systems-a-50-state-overview.aspx.

6

many States are already grappling with significantly

different processes and procedures, often necessitating the input and participation of those without a

legislative or legal background—including, in the increasingly prevalent case of citizen-led redistricting

commissions, members of the public at large.

For instance, in Washington, the authority for

drawing state legislative and congressional lines has

been delegated to the Washington State Redistricting

Commission, which is responsible for providing a proposed map to the state legislature by November 15 of

the year following the census. RCW 44.05.040. The

state legislature then has a period of thirty days to

amend the map upon a requisite two-thirds vote. RCW

44.05.100. The Redistricting Commission must hold

open meetings pursuant to Washington’s Open Meetings Act, and must preserve and disclose its meetings

and public records. RCW 44.05.080. The Redistricting

Commission must publish a report with the final

plan—including the population deviations for each

district, an explanation of the criteria used to draw the

districts, and justifications for any deviations from

perfect compliance with criteria or population equality. Id. Criteria used by the Redistricting Commission

includes: compactness, contiguity, preservation of political subdivisions, communities of interest, competitiveness, and a prohibition on favoring an incumbent

or party. RCW 44.05.090.

In Georgia, on the other hand, the legislature has

reserved the authority to draw district lines. Ga. Code

Ann. § 21-1-2. Georgia’s district lines are drawn by

7

statute, which means they are subject to governor’s

veto. Id. Georgia’s legislature looks to compactness, contiguity, preservation of political subdivisions, preservation of communities of interest, and a preference to

avoid pairing incumbents when drawing district

lines.

For the first time beginning with the 2020 redistricting cycle, Virginia will utilize a hybrid system

similar to Washington. The Virginia legislature has

delegated redistricting responsibilities to the Virginia

Redistricting Commission, which bears responsibility

for drawing the initial set of maps. Va. Code Ann. § 30391. The maps are then presented to the legislature for

approval or rejection. Id. Virginia considers the following criteria when drawing district lines: compactness,

contiguity, preservation of communities of interest (excluding political affiliation) and a prohibition against

unduly disfavoring a political party. Va. Code Ann.

§ 30-399.

Despite a longstanding recognition that redistricting is a matter generally left to States, legislators’

choices must be guided by limitations imposed by federal law: at issue here, the Equal Protection Clause of

the Fourteenth Amendment, the Voting Rights Act,

and jurisprudence interpreting those laws. A significant number of federal parameters for congressional

redistricting have resulted from judicial decisions.

CRS Report R45951, Apportionment and Redistricting

8

Process for the U.S. House of Representatives at p. 8.4

Moreover, “it is not uncommon for States to face legal

challenges regarding elements of their redistricting

plans.” Id. For instance, an analysis of the 2010 redistricting cycle indicated redistricting lawsuits were

filed in 38 States.5 No doubt, the National Conference

of State Legislatures had that litigiousness in mind

when it issued the following message to those preparing redistricting maps and plans: “expect challenges.”

NCSL, Into the Thicket: A Redistricting Starter Kit for

Legislative Staff.6

2.

This Court’s precedent supports that a

Gingles analysis must take into account

traditional districting principles.

Ensuring that the districting process complies

with federal requirements is a complex endeavor.

“Electoral districting is a most difficult subject for legislatures,” Miller, 515 U.S. at 915; Abbott, 138 S. Ct. at

2314 (“Redistricting is never easy”), and applying

equal protection principles to electoral districting is a

“most delicate task.” Miller, 515 U.S. at 905. A “complex interplay of forces . . . enter[s] a legislature’s

4

Updated on November 21, 2021, at: https://crsreports.

congress.gov/product/pdf/R/R45951.

5

“Redistricting Lawsuits Relating to the 2010 Census,”

Ballotpedia, updated September 2015, at https://ballotpedia.org/

Redistricting_lawsuits_relating_to_the_2010_Census.

6

Updated on November 24, 2021, at https://www.ncsl.org/

research/redistricting/into-the-thicket-a-redistricting-starter-kitfor-legislative-staff.aspx.

9

redistricting calculus,” id. at 915-16, and race is the

most difficult issue a mapmaker must manage when

redistricting. “At the same time that the Equal Protection Clause restricts the consideration of race in the

districting process, compliance with Voting Rights Act

. . . pulls in the opposite direction: it often insists that

districts be created precisely because of race.” Abbott,

138 S. Ct. at 2314. “Since the Equal Protection Clause

restricts consideration of race and the VRA demands

consideration of race, a legislature attempting to produce a lawful districting plan is vulnerable to competing hazards of liability” when navigating this “legal

obstacle course.” Id. (quotations omitted); see also

Henry L. Chambers, Jr., Readying Virginia for Redistricting After A Decade of Election Law Upheaval, 55

U. Rich. L. Rev. 227, 237 (2020) (commenting that these

restrictions “combine to demand mapmakers to consider race as little as possible while considering race

as much as necessary to guarantee minority voters are

able to exercise their right to vote fully”).

“When a voter sues state officials for drawing . . .

race-based lines, [this Court’s precedent] calls for a

two-step analysis. First, the plaintiff must prove that

‘race was the predominant factor motivating the legislature’s decision to place a significant number of voters

within or without a particular district.’ ” Cooper v.

Harris, 137 S. Ct. 1455, 1463 (2017) (quoting Miller,

515 U.S. at 916). “That entails demonstrating that

the legislature subordinated other factors—compactness, respect for political subdivisions, partisan advantage, what have you—to racial considerations.” Id.

10

(quotations omitted). “Second, if racial considerations

predominated over others, the design of the district

must withstand strict scrutiny.” Id. (citing BethuneHill v. Virginia State Bd. of Elections, 137 S. Ct. 788,

800 (2017)).

To that end, if the state has before it a “strong

basis in evidence” for believing that the VRA “require[s]” the state to move voters based on race, and

the evidence is district specific, a racially-motivated

map may satisfy strict scrutiny. Id. at 1464 (emphases

added); Wis. Legislature v. Wis. Elections Comm’n, 142

S. Ct. 1245, 1249 (2022) (per curiam); id. at 1250-51

(explaining that the VRA requires the use of race in

redistricting only when a “race-neutral alternative . . .

would deny [a protected class of ] voters equal political

opportunity”). However, the state must possess this

evidence before it creates maps based on racial classifications. A State may not “adopt a racial gerrymander

that the State does not, at the time of imposition,

‘judg[e] necessary under a proper interpretation of the

VRA.’ ” Wis. Legislature, 142 S. Ct. at 1250 (quoting

Cooper, 137 S. Ct. at 1472); id. at 1249-50 (a race-based

remedy cannot precede proof of a VRA violation (citing

Shaw v. Hunt, 517 U.S. at 910)). Indeed, this Court has

rejected uncritical majority-minority district maximization. Johnson v. De Grandy, 512 U.S. 997, 1017

(1994); see generally Miller, 515 U.S. at 925 (the VRA

does not “require States to create majority-minority

districts wherever possible”).

With respect to determining whether the VRA

would require the use of race in redistricting, three

11

preconditions, first articulated in Thornburg v. Gingles, are necessary (although not sufficient, Wis. Legislature, 142 S. Ct. at 1248-49) to establish that “the

minority [group] has the potential to elect a representative of its own choice in a possible district, but

that racially polarized voting prevents it from doing so

in the district as actually drawn because it is submerge[ed] in a larger white voting population.” Cooper,

137 S. Ct. at 1470. At issue in this case is the first requirement, that a “ ‘minority group’ must be ‘sufficiently large and geographically compact to constitute

a majority’ in some reasonably configured legislative district.” Id. (emphasis added). To satisfy this

precondition, a plaintiff must make a preliminary

showing that it is possible to create “more than the existing number of reasonably compact districts with a

sufficiently large majority population to elect candidates of its choice.” De Grandy, 512 U.S. at 1008. Thus,

a Section 2 plaintiff must demonstrate that the relevant minority population is sufficiently “geographically compact” to constitute a voting majority in a

second single-member district. Cooper, 137 S. Ct. at

1470. In this context, “compactness” refers not to the

shape of the district, but whether the minority community is sufficiently concentrated to constitute a majority of the voting age population in a single-member

district. LULAC, 548 U.S. at 433.

How a Section 2 plaintiff can demonstrate this

precondition—and when and to what extent traditional districting principles must be accounted for in

that analysis—is at the center of this case. This Court

12

has held that “[w]hile no precise rule has emerged governing § 2 compactness, the inquiry should take into

account traditional districting principles such as maintaining communities of interest and traditional boundaries,” LULAC, 548 U.S. at 433, and Section 2 “does not

require a State to create, on predominantly racial lines,

a district that is not reasonably compact.” Abrams v.

Johnson, 521 U.S. 74, 91-92 (1997) (upholding a district court’s remedial plan which did not create a second majority-black district as that “would require

subordinating Georgia’s traditional districting policies

and allowing race to predominate,” and also stating

that “the [Section] 2 compactness inquiry should take

into account traditional districting principles such as

maintaining communities of interest and traditional

boundaries”); Bush v. Vera, 517 U.S. 952, 977, 979

(1996) (plurality op.) (explaining that a Section 2 inquiry should account for “traditional districting principles such as maintaining communities of interest and

traditional boundaries,” and also that “[i]f, because of

the dispersion of the minority population, a reasonably

compact majority-minority district cannot be created,

§ 2 does not require a majority-minority district. . . .”).

Further, this Court has struck down certain majorityminority districts and deemed others improper as remedies for Section 2 violations. In LULAC, for example,

even though this Court held that a majority-Hispanic

district was required, it determined that a newlydrawn majority-Latino district, which included a 300mile gap between two majority Latino communities,

failed to satisfy the VRA. LULAC, 548 U.S. at 432-34.

13

This Court held that “the enormous geographical distance separating [two minority populations], coupled

with the disparate needs and interests of these populations—not either factor alone,” rendered that district

noncompact for Section 2 purposes. Id. at 435 (also

stating that “[t]he mathematical possibility of a racial

bloc does not make a district compact”).

This Court has also struck down majority-minority

districts that were not required by the VRA. In Miller,

this Court held that a challenged congressional plan

which created a third, additional majority-black district was not required by the VRA and therefore violated the Equal Protection Clause. 515 U.S. at 921, 928.

In so holding, this Court explained that the State’s policy of adhering to “other districting principles” instead

of creating as many majority-minority districts as possible did not support an inference that the State’s plan

“so discriminate[d] on the basis of race or color as to

violate the Constitution,” and thus did not “provide

any basis under [Section 5] for the Justice Department’s objection.” Id. at 924.

Indeed, the “recognition of nonracial communities

of interest reflects the principle that a State may not

‘assum[e] from a group of voters’ race that they think

alike, share the same political interests, and will prefer

the same candidates at the polls.’ ” LULAC, 548 U.S. at

433 (citing Miller 515 U.S. at 920). “In the absence of

[that] prohibited assumption, there is no basis to believe a district that combines two far-flung segments of

a racial group with disparate interests provides the opportunity that § 2 requires or that the first Gingles

14

condition contemplates.” Id. (also stating that “[t]he

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. We do a disservice to these important

goals by failing to account for the differences between

people of the same race.”). “Legitimate yet differing

communities of interest should not be disregarded in

the interest of race.” Id. at 434; see also Bartlett, 556

U.S. at 22-23 (rejecting an approach which “would rest

on judicial predictions, as a matter of law, that race and

party would hold together as an effective majority over

time—at least for the decennial apportionment cycles

and likely beyond. And thus would the relationship between race and party further distort and frustrate the

search for neutral factors and principled rationales for

districting”). And as Justice Kennedy articulated in his

concurrence in De Grandy, “there is good reason for

state and federal officials with responsibilities related

to redistricting, as well as reviewing courts, to recognize that explicit race-based districting embarks us on

a most dangerous course. . . .” De Grandy, 512 U.S. at

1031 (Kennedy, J., concurring in part and concurring

in the judgment).

3.

Without guidance from this Court, the decision below significantly exacerbates the

already existing uncertainty regarding the

parameters of a vote dilution claim.

Absent guidance from this Court, the decision below will lead to a host of significant legal and logistical

15

problems undermining States’ abilities to perform the

“most vital of local functions” of redistricting. Miller,

515 U.S. at 915. Indeed, contrary to this Court’s precedent, the district court’s decision would improperly infuse race into every redistricting decision. And it will

force map drawers, already balancing a complex interplay of forces, to speculate whether, when, and to what

extent to “yield” traditional race-neutral districting

principles to race, without violating the Fourteenth

Amendment. This will inevitably lead to additional

costly and disruptive lawsuits throughout the country

in every redistricting cycle, maximizing rather than

minimizing judicial involvement in a process that is

the function of the States. To avoid these untenable

outcomes, there must be a clear, administrable standard.

a. The district court’s decision is contrary

to this Court’s precedent, and greatly

exacerbates the disagreement and uncertainty already present in vote dilution claims.

In a manner irreconcilably inconsistent with the

above precedents from this Court, the district court

interpreted Section 2 in a way that will require legislatures to first “prioritize[ ] race” and—only “after

that”—apply race-neutral traditional districting principles. MSA60-61, MSA214-215.

As aptly discussed at length in Appellants’ brief,

no race-neutral map drawer would draw a map with

16

two majority-black districts as advocated by Plaintiffs

below—in the more than two-million race neutral

maps generated by Plaintiffs’ own experts, none contained two majority-black districts. In Plaintiffs’ own

words, “it is hard to draw two majority-black districts

by accident” in Alabama. JA714; see also JA710. Yet,

the district court endorsed a map-drawing process in

which Plaintiffs considered traditional districting criteria only “after” two districts hit a target of 50-percent

BVAP. See JA634-35; MSA60. In so doing, the district

court held that Alabama should have first sorted its

voters on the basis of race, starting with a “non-negotiable” racial target of adding a second majority-black

district. MSA214; see also JA678.

The district court’s decision, which is premised on

an erroneous legal assumption that the VRA requires

the creation of districts that could not otherwise be

neutrally drawn, obscures the circumstances under

which a map drawer is supposed to have a “strong

basis in evidence” for believing that the VRA would

“require” it to move voters based upon race. In condemning the State for not letting race predominate in

its redistricting, the district court acted in contravention of this Court’s precedents requiring the State to

not let race predominate when drawing legislative districts.

As described supra, map drawers may not dispense with traditional redistricting principles when

drawing districts. And even if a Section 2 plaintiff is

not required to prioritize traditional districting principles in the exact same order as a state, it cannot simply

17

disregard them at the outset. If a Section 2 plaintiff ’s

proposed district could not be neutrally drawn using

only traditional districting principles, then it is inconceivable that a plaintiff could establish “[a] minority

group . . . sufficiently large and compact to constitute

a majority in a reasonably configured district.”

Cooper, 137 S. Ct. at 1470 (emphasis added); Wis. Legislature, 142 S. Ct. at 1248; cf. generally Bartlett, 556

U.S. at 15 (“Section 2 does not impose on those who

draw election districts a duty to give minority voters

the most potential, or the best potential, to elect a candidate by attracting crossover voters.”). And if a Section 2 plaintiff were permitted to prioritize race as a

“non-negotiable” target to establish the first Gingles

precondition, that precondition would be meaningless

and circular, as it would almost certainly be established in any case. Cf. generally Cooper, 137 S. Ct. at

1472 (rejecting the State’s view, pursuant to which “the

third Gingles condition is no condition at all, because

even in the absence of white bloc-voting, a § 2 claim

could succeed in a district . . . with an under-50%

BVAP.”); Bartlett, 556 U.S. at 15, 20 (explaining that

“[a]llowing crossover-district claims would require us

to revise and reformulate the Gingles threshold inquiry that has been the baseline of our § 2 jurisprudence,” and also rejecting the petitioners’ argument for

a “less restrictive interpretation of the first Gingles requirement”).

Further, to the extent that there is a material difference between the “uncritical majority-minority

maximization” that this Court has “expressly rejected,”

18

Wisconsin Leg., 142 S. Ct. at 1250, and the district

court’s endorsement of the Plaintiffs’ approach of starting with a racial target of two majority-black districts

that would not have resulted from a race-neutral districting process, it is a difference that could be lost on

many of those responsible for drawing district lines.

See generally De Grandy, 512 U.S. at 1017 (holding

that “[f ]ailure to maximize cannot be the measure of

Section 2,” and that “reading § 2 to define dilution as

any failure to maximize tends to obscure the very object of the statute and run counter to its textually

stated purpose”).

Thus, the district court puts map drawers to an

impossible task of drawing districts that prioritize race

enough to satisfy Section 2, but not so much that they

violate the Equal Protection Clause. In reality, this approach ensures that their efforts in drawing district

lines will be challenged either because they did not

“prioritize race . . . to the extent necessary” (or seemingly required by the Voting Rights Act under the district court’s interpretation) or because they have

violated equal protection by prioritizing race beyond

the extent necessary (in violation of the Equal Protection Clause). In fact, a state legislature never could

have constitutionally passed the maps that the district

court endorsed, since those maps started from a “nonnegotiable” racial target of two majority-black districts, and only after that considered traditional redistricting principles. See, e.g., MSA60; Shaw, 517 U.S. at

907 (redistricting map was racially motivated, even

though race-neutral criteria were considered in the

19

selection of districts, because “[r]ace was the criterion

that, in the State’s view, could not be compromised,”

and the race-neutral criteria “came into play only after

the race-based decision had been made”); Miller, 515

U.S. at 921 (“[C]ompliance with federal antidiscrimination laws cannot justify race-based districting where

the challenged district was not reasonably necessary

under a constitutional reading and application of those

laws.”); Cooper, 137 S. Ct. at 1469.

b. The decision below underscores that a

clear, administrable standard is needed.

Even prior to the district court’s decision, “Gingles

and its progeny have engendered considerable disagreement and uncertainty regarding the nature and

contours of a vote dilution claim.” Merrill v. Milligan,

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

Jowei Chen, Nicholas O. Stephanopoulos, The RaceBlind Future of Voting Rights, 130 Yale L.J. 862, 872

(2021) (characterizing this as “an area of law notorious

for its many unsolved puzzles”); 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) (“Thirty years later,

there is a substantial body of law interpreting section

2 but no authority resolution of the basic questions one

would need to answer to make sense of the results

test.”).

The district court’s decision obfuscates an already

complicated process for States. Following the district

20

court’s decision, map drawers are in the untenable position in which they will be forced to guess what set of

standards courts in their jurisdictions will adopt to

determine whether and when to “prioritize[ ] race.”

Compare, e.g., MSA214-15 with Gonzalez v. City of Aurora, Illinois, 535 F.3d 594, 600 (7th Cir. 2008) (concluding that there was no vote dilution claim, and

opining that “[w]hat we can see from the record suggests that Latinos are not concentrated enough to support three ‘Latino effective’ districts without serious

gerrymandering. . . . In other words, the Latino population is not concentrated in a way that neutrally

drawn compact districts would produce three ‘Latino

effective’ wards.”); Sensley v. Albritton, 385 F.3d 591,

598 (5th Cir. 2004) (upholding a district court’s decision where plaintiffs failed to satisfy each Gingles precondition because, inter alia, “in order to connect these

two towns together, the Plaintiffs were required to ignore traditional districting principles such as maintaining communities of interest and traditional

boundaries”); cf. Johnson v. Wis. Elections Comm’n, ___

N.W.2d ___, 2022 WL 1125401 at *11 (Wis. April 15,

2022) (rejecting a redistricting proposal that “subordinated traditional race-neutral districting to racial considerations” without first demonstrating that the

Gingles preconditions were satisfied and that the VRA

required a race-based remedy).

State legislatures, and all map drawers acting in

good faith, cry out for an administrable standard. Indeed, Section 2 “applies nationwide to every jurisdiction that must draw lines for election districts required

21

by state or local law.” Bartlett, 556 U.S. at 18. Legislatures look to federal decisions to determine the correct

application of federal law to the district process. Cf.

generally Bush, 517 U.S. at 985 (“Legislators and district courts nationwide have modified their practices—

or, rather, reembraced the traditional districting practices that were almost universally followed before the

1990 census—in response to Shaw I.”); Peter S. Wattson, How to Draw Redistricting Plans That Will Stand

Up in Court, Published by the National Conference of

State Legislatures on January 11, 2021.7 And as one

commentator has observed, “[d]octrinal changes—even

small changes—in race predominance or VRA doctrine

may have an outsized effect on a mapmaker’s ability to

redistrict using race to provide equal voting rights to

minority voters.” Henry L. Chambers, Jr., Readying

Virginia for Redistricting After A Decade of Election

Law Upheaval, 55 U. Rich. L. Rev. 227, 257 (2020).

Of course, this Court has already recognized the

benefits of having such standards in VRA cases. In

Bartlett, while determining what size minority group

is sufficient to satisfy the first Gingles precondition,

this Court upheld a 50-percent threshold requirement

in part based on “the need for workable standards and

sound judicial and legislative administration.” 556 U.S.

1, 17. This Court explained that such a rule “draws

clear lines for courts and legislatures alike,” and avoids

placing courts “in the untenable position of predicting

many political variables and tying them to race-based

7

Accessed April 15, 2022 at https://www.ncsl.org/documents/

legismgt/How_To_Draw_Maps.pdf.

22

assumptions.” Id. at 17. This Court also explained

that such an objective, uniform rule would provide

“straightforward guidance to courts and to those officials charged with drawing district lines to comply

with § 2.” Id. at 18; see also LULAC, 548 U.S. at 485

(Opinion of Souter, J.) (recognizing need for a “clearedged rule”).

Similarly, here, States need a “workable standard[ ]” so that they are not forced to ask, every redistricting cycle, whether they need to consider race and,

if so, have considered race as little as possible but as

much as necessary, including whether they have appropriately “yield[ed]” traditional districting principles to racial considerations. MSA214. An

administrable standard is particularly necessary

where, as in the present case, the State adopted a districting plan that employed the same basic districting

framework that the State has maintained for several

decades, making slight adjustments to accommodate

population changes. SJA205-11; JA 270-71; JA274-75;

SJA88; MSA34. Thus, the Alabama Legislature followed the “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); see also Johnson,

___ N.W.2d at ___, 2022 WL 1125401 at *12 n.8 (“A

race-neutral map can comply with the VRA. Specifically, a map does not violate the VRA when the Gingles

preconditions have not been satisfied. . . . Indeed, a

23

race-neutral map is the preferred outcome, and an outcome explicitly contemplated by the Supreme Court.”

(citations omitted)); Bush, 517 U.S. at 964 (“Strict scrutiny would not be appropriate if race-neutral, traditional districting considerations predominated over

racial ones.”).

The district court’s decision, with its unwarranted

break from this Court’s precedents, does not provide an

administrable standard. Rather, a Section 2 compactness inquiry should focus on possible “outcome[s] of a

race-neutral process in which all districts are compact.” Gonzalez, 535 F.3d at 598-600 (also explaining

that if randomly generated computer maps “look something like the actual map” in their racial characteristics, then “we could confidently conclude that [the

actual] map did not dilute the effectiveness of the [minority] vote,” but that if the actual map has fewer minority-controlled districts than most of the simulated

maps, then “a court might sensibly conclude that [the

jurisdiction] had diluted the [minority] vote.”). The

race-blind baseline articulated in Gonzalez would also

allay concerns that the proportionality baseline is irreconcilable with Section 2’s disavowal of proportional

representation. See, e.g., De Grandy, 512 U.S. at 1028

(Kennedy, J., concurring in part and concurring in the

judgment) (warning that “placing undue emphasis

upon proportionality risks defeating the goals underlying the Voting Rights Act”).

Without clear guidance—or worse, with the decision below being allowed to stand—inevitable costly

and highly disruptive litigation, which nearly always

24

occurs on an expedited schedule as a result of the timing of the decennial census and the time-sensitive nature of the election calendar, will result in every

redistricting cycle. Cf. Holder v. Hall, 512 U.S. 874, 905

(1994) (Thomas, J., concurring) (“In response to judicial

decisions . . . the States themselves, in an attempt to

avoid costly and disruptive Voting Rights Act litigation, have begun to gerrymander electoral districts according to race. That practice now promises to embroil

the courts in a lengthy process of attempting to undo,

or at least to minimize, the damage wrought by the

system we created.”). The concerns of “untenable [predictions]” at issue in Bartlett will manifest themselves

here, as map drawers will be forced to speculate

whether, when, and to what extent to “yield” traditional race-neutral districting principles to race, without violating the Fourteenth Amendment. To avoid

these unworkable and disruptive outcomes and work

toward, rather than against, the goal of a political system in which race no longer matters, there must be a

clear, administrable standard which minimizes (if not

eliminates) any unnecessary infusing of race into the

redistricting process.

---------------------------------♦---------------------------------

25

CONCLUSION

Based on the foregoing, Amici respectfully request

that this Court grants the relief advocated for by the

Appellants and reverse the decision below.

Respectfully submitted,

CHARLES R. SPIES

Counsel of Record

ANJALI D. WEBSTER

DICKINSON WRIGHT, PLLC

1825 Eye Street N.W.

Suite 900

Washington, D.C. 20006

202-466-5964

Cspies@dickinsonwright.com

Awebster@dickinsonwright.com