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

Supreme Court briefMay 2, 2022

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Nos. 21-1086, 21-1087

In the Supreme Court of the United States

__________

JOHN H. MERRILL, ET AL.,

Appellants,

EVAN MILLIGAN, ET AL.,

Appellees.

__________________________

JOHN H. MERRILL, ET AL.,

Petitioners,

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 FOR UNITED STATES

REPRESENTATIVES FROM ALABAMA

AS AMICI CURIAE IN SUPPORT OF

APPELLANTS/PETITIONERS

__________

CHRISTOPHER E. MILLS

Counsel of Record

Spero Law LLC

557 East Bay Street #22251

Charleston, SC 29413

(843) 606-0640

cmills@spero.law

Counsel for Amici Curiae

QUESTION PRESENTED

Whether the State of Alabama’s 2021 redistricting

plan for its seven seats in the United States House of

Representatives violated Section 2 of the Voting

Rights Act, 52 U.S.C. § 10301.

TABLE OF CONTENTS

Page

Question Presented...................................................... i

Table of Authorities ................................................... iii

Interest of Amici Curiae ..............................................1

Summary of the Argument ..........................................2

Argument .....................................................................4

The district court’s assumption of proportional

representation was error. .................................4

II. The district court’s dismissal of core retention

was error............................................................8

III. The district court’s order contradicts

Section 2, this Court’s precedents, and the

Constitution.....................................................16

A. Section 2 does not require proportional

representation. ...........................................17

B. Precedent does not require proportional

representation. ...........................................21

C. The Fourteenth Amendment prohibits maps

drawn based on race. .................................24

Conclusion ..................................................................27

iii

TABLE OF AUTHORITIES

CASES

Page(s)

Abrams v. Johnson, 521 U.S. 74

(1997) .................................................. 15, 19, 22, 23

Alabama Legislative Black Caucus v. Alabama, 575

U.S. 254 (2015) .....................................................26

Barnhard v. Ingallis, 275 So. 3d 1112 (Ala. 2018) ...12

Bartlett v. Strickland, 556 U.S. 1 (2009) ...... 15, 24, 27

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

137 S. Ct. 788 (2017) ............................................25

Brnovich v. Democratic Nat’l Comm., 141 S. Ct.

2321 (2021) ..................................................... 13, 18

City of Boerne v. Flores, 521 U.S. 507 (1997)............14

City of Mobile v. Bolden, 446 U.S. 55 (1980) ............14

Colleton Cnty. Council v. McConnell, 201

F. Supp. 2d 618 (D.S.C. 2002) ..............................10

Cooper v. Harris, 137 S. Ct. 1455 (2017) ........ 9, 16, 25

Gaffney v. Cummings, 412 U.S. 735 (1973) ..............10

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

(CA7 2008) ...................................................... 15, 19

Gregory v. Ashcroft, 539 U.S. 461 (2003) ............ 17, 20

Holder v. Hall, 512 U.S. 874 (1994) .............. 16, 21, 24

Johnson v. De Grandy, 512 U.S. 997

(1994) .................................................... 4, 17, 18, 24

Johnson v. Miller, 922 F. Supp. 1556

(S.D. Ga. 1995)......................................................15

Karcher v. Daggett, 462 U.S. 725 (1983) ...................10

LULAC v. Perry, 548 U.S. 399 (2006) ....... 2, 15, 19, 20

Miller v. Johnson, 515 U.S. 900

(1995) .......................... 13, 14, 15, 19, 20, 21, 23, 26

Parents Involved in Cmty. Schs. v. Seattle Sch.

Dist. No. 1, 551 U.S. 701 (2007) ..................... 24, 26

Plessy v. Ferguson, 163 U.S. 537 (1896) .................2, 8

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

(2019) ................................................................ 5, 18

Shaw v. Hunt, 517 U.S. 899 (1996) ................. 9, 24, 25

Shaw v. Reno, 509 U.S. 630 (1993) ............... 15, 24, 27

South Carolina v. Katzenbach, 383 U.S. 301

(1966) ....................................................................14

Thornburg v. Gingles, 478 U.S. 30

(1986) ........................................ 4, 16, 17, 18, 19, 24

Washington v. Davis, 426 U.S. 229 (1976) ................14

Wesch v. Folsom, 6 F.3d 1465 (CA11 1993) ................9

Wesch v. Hunt, 785 F. Supp. 1491 (S.D. Ala. 1992)....9

White v. Weiser, 412 U.S. 783 (1973) ..........................9

Wisconsin Legislature v. Wisconsin Elections Comm’n,

142 S. Ct. 1245 (2022) .............................. 17, 19, 24

STATUTES

52 U.S.C. § 10301 ................................................i, 4, 14

OTHER AUTHORITIES

B. Cain, J. Ferejohn, & M. Fiorina, The Personal

Vote: Constituency Service and Electoral

Independence (1987) ..............................................7

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

Votes, Unconstitutional Elections, and Common

Law Statutes, 160 U. Pa. L. Rev. 377 (2012) ......23

D. Hayes & S. McKee, The Intersection of

Redistricting, Race, and Participation, 56 Am. J.

Pol. Sci. 115 (2012) .................................................8

D. Hayes & S. McKee, The Participatory Effects of

Redistricting, 53 Am. J. Pol. Sci. 1006 (2009) .......8

Florida 11th Congressional District Demographics,

BiggestUSCities.com (Mar. 1, 2022),

https://www.biggestuscities.com/demographics/fl/

11th-congressional-district ....................................2

G. Giroux, Rich, Poor, Young, Old: Congressional

Districts at a Glance, Bloomberg Government

(Sep. 15, 2017, 4:37 PM),

https://about.bgov.com/news/rich-poor-young-oldcongressional-districts-glance/ ...............................3

Harvard University, Political Geography: The

Mathematics of Redistricting, A Lecture by Moon

Duchin, YouTube (Nov. 26, 2018),

https://youtu.be/pi_i3ZMvtTo .................................4

J. Chen & N. Stephanopoulos, The Race-Blind Future

of Voting, 130 Yale L.J. 862 (2021) ......................17

J. Fromer, An Exercise in Line-Drawing: Deriving

and Measuring Fairness in Redistricting, 93 Geo.

L.J. 1547 (2005) ..................................................7, 8

J. Sharp, Redistricting Alabama: How South

Alabama could be split up due to Baldwin

County’s growth, AL.com (Sep. 20, 2021),

https://perma.cc/8PME-JA5W ................................9

J. Winburn & M. Wagner, Carving Voters Out:

Redistricting’s Influence on Political Information,

Turnout, and Voting Behavior, 63 Pol. Rsch. Q.

373 (2010) ...............................................................8

M. Duchin & D. Spencer, Models, Race, and the Law,

130 Yale L.J.F. 744 (2021) .....................................4

M. Duchin et al., Locating the Representational

Baseline: Republicans in Massachusetts, 18

Election L.J. 388 (2019) .....................................2, 3

N. Persily, In Defense of Foxes Guarding Henhouses:

The Case for Judicial Acquiescence to IncumbentProtecting Gerrymanders, 116 Harv. L. Rev. 649

(2002) ......................................................................7

Quick Facts, U.S. Census Bureau,

https://perma.cc/2WDD-UE5L (last visited Jan.

31, 2022)..................................................................2

vii

Quick Facts: Florida, U.S. Census Bureau, https://

www.census.gov/quickfacts/FL (last visited Mar.

25, 2022)..................................................................2

The Federalist No. 10 (Madison) .................................6

INTEREST OF AMICI CURIAE

Amici are five of the seven United States House of

Representatives members from Alabama, including

Representatives Jerry Carl Jr. (First District), Barry

Moore (Second District), Mike Rogers (Third District),

Robert Aderholt (Fourth District), and Gary Palmer

(Sixth District). All are running for reelection in 2022

and thus have a significant interest in ensuring that

the boundaries of the congressional districts in

Alabama are drawn properly.

This case presents an important issue of

interpreting and applying Section 2 of the Voting

Right Act in a way that complies with the Equal

Protection Clause. Amici have a strong interest in the

administration of a nondiscriminatory election system

that allows all Alabama citizens to participate equally

and that promotes democratic representation and

stability. Amici are concerned that the remedy

pursued by the respondents and ordered by the district

court will not only disrupt Alabama’s system of

representation but also jeopardize the State’s

districting process.1

1 All

parties have consented to the filing of this brief. In

accordance with Rule 37.6, no counsel for a party authored this

brief in whole or in part, and no counsel or party made a monetary

contribution intended to fund the preparation or submission of

this brief. The NRCC made a monetary contribution intended to

fund the preparation and submission of this brief.

SUMMARY OF THE ARGUMENT

1. The population of the United States is about 13%

black, but no State is majority black. Republican

voters compose about 35% of the Massachusetts

electorate, but it is considered mathematically

impossible to draw even one of its nine House districts

as majority Republican. Over 20% of Floridians are at

least 65 years old, yet those citizens do not form a

majority in any of the State’s 27 House districts. And

none of these examples is surprising, because “[t]here

is no caste here.” Plessy v. Ferguson, 163 U.S. 537, 559

(1896) (Harlan, J., dissenting). Americans of all

backgrounds live among other Americans. This

geographic dispersion means that proportionality

between population and district dominance is not the

norm in the districting process. To achieve unnatural

proportionality, the process cannot be neutral.

Something else must be given priority.

In the district court’s view, Alabama’s process

required a new overlay: racial segregation. The State’s

process had, for years, produced one majority-minority

district. The plaintiffs’ own expert had run two million

neutral maps, not one of which led to two majorityminority districts. MSA 364. Most led to zero such

districts. But the district court fixated on the fact that

“Black Alabamians comprise approximately 27% of the

State’s population, and Alabama has seven

congressional seats.” MSA 5. So, the district court

emphasized, “Black Alabamians” could “constitute a

voting-age majority in a second congressional district.”

MSA 5. The plaintiffs’ experts therefore “prioritized

race” (MSA 157, 214) to determine whether the

traditional, neutral factors could be manipulated to

“divvy[] [Alabamians] up by race.” LULAC v. Perry,

548 U.S. 399, 511 (2006) (Roberts, C.J., concurring in

part, concurring in judgment in part, and dissenting in

part).

2. To accept this racial manipulation, the district

court had to disregard neutral districting criteria,

particularly core retention. For decades, Alabama has

followed the traditional principle that the core of

legislative districts should be retained. Core retention

promotes democratic representation by ensuring that

constituents can develop meaningful relationships

with those who speak for them, including amici. These

lasting relationships foster government by the consent

of the people. Core retention leads to representatives

who are better equipped to understand, promote, and

respond to the unique needs, cultures, and histories of

their districts. And core retention is a neutral

principle.

Yet the district court embraced the plaintiffs’

“significant level of core disruption” because “the

entire reason for the remedial map is to draw a second

majority-minority district.” MSA 182. While

Alabama’s enacted map kept 94% of the State’s

population in their existing districts, the proposed

remedial maps moved nearly half the population to

new districts. None of those maps retained as much

population as the Alabama legislature’s least retentive

district did. As the district court recognized, that is

because the plaintiffs’ maps are all premised on racial

segregation, unlike Alabama’s map that prioritized

neutral and important principles like core retention.

3. The district court’s subordination of neutral

principles to race defies the Voting Rights Act, this

Court’s precedents, and the Fourteenth Amendment.

Section 2 does not “create a right to proportional

representation.” Thornburg v. Gingles, 478 U.S. 30, 84

(1986) (O’Connor, J., concurring in judgment). It

protects equal access to “the political process” and

expressly not “a right to have members of a protected

class elected in numbers equal to their proportion in

the population.” 52 U.S.C. § 10301(b). Section 2 should

not be read to require states to adopt “proportional”

maps that would never exist under neutral criteria, for

such maps would themselves violate the statute and

the Constitution. This Court has repeatedly upheld

maps

that

did

not

provide

proportional

representation—and struck down proportional maps

that hinged on race. Ordering a State “to engage in

race-based redistricting and create a minimum

number of districts in which minorities constitute a

voting majority” “tend[s] to entrench the very practices

and stereotypes the Equal Protection Clause is set

against.” Johnson v. De Grandy, 512 U.S. 997, 1029

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

judgment).

ARGUMENT

I. The

district

court’s

assumption

proportional representation was error.

The district court’s analysis assumes that because

27% of Alabama’s population is black, two of its seven

congressional districts (28%) should be majority black.

MSA 4–5, 205–06. The court thus adopted the views of

the plaintiffs’ experts, who worked backwards from

that assumption and made that racial division a

“nonnegotiable principle” before drawing remedial

maps. MSA 60, 262. This assumption of proportional

representation turns out to be far less defensible than

it appears. That is because, as the plaintiffs’ own

expert elsewhere explained, “the representational

baseline for single-member districts is strongly

dictated by the specific political geography of each time

and place.” M. Duchin et al., Locating the

Representational

Baseline:

Republicans

Massachusetts, 18 Election L.J. 388, 392 (2019).

As noted, many examples prove the point. The

plaintiffs’ expert has discussed Massachusetts, where

Republican voters are 35% of the population but,

because of their uniform distribution throughout the

state, “1/3 of the vote prov[es] insufficient to secure

any representation.” Id. at 389 (emphasis omitted); see

also Milligan D. Ct. Dkt. 105-2, Tr. 612:5–7 (testifying

that “it’s not only unlikely, it is on the nose

mathematically impossible to draw a congressional

district in Massachusetts that would have Republican

majority”); cf. Rucho v. Common Cause, 139 S. Ct.

2484, 2499 (2019) (noting that in 1840, the Whigs in

Alabama “garnered 43 percent of the statewide vote,

yet did not receive a single seat” in the House of

Representatives).

Likewise, even though the population of the United

States is about 13% black, no U.S. Senate district (i.e.,

a State) is majority black.2 Twenty-one percent of

Floridians are at least 65 years old, but they do not

have a majority in any of the State’s 27 U.S. House

districts—even in District 11, the U.S. congressional

district with the highest percentage of citizens 65 and

older.3 At the extreme, take a hypothetical ten-district

2 See Quick Facts, U.S. Census Bureau, https://perma.cc/2WDDUE5L (last visited Jan. 31, 2022).

3 See Quick Facts: Florida, U.S. Census Bureau, https://

www.census.gov/quickfacts/FL (last visited Mar. 25, 2022)

(providing data for Floridian population); Florida 11th

Congressional District Demographics, BiggestUSCities.com

(Mar. 1, 2022), https://www.biggestuscities.com/demographics/fl/

11th-congressional-district (providing data for Eleventh District);

state with 100 voters per district, in which a group

constituting only 50% of the population (500 voters)

could form a majority in nine districts if their

geographic dispersion was such that those districts

each contained 51 group members. The point is that

political geography matters.

What is true nationally is true in Alabama. Fiftythree of Alabama’s 67 counties are majority white,

including five counties among the 18 in the Black Belt,

which “is named for the region’s fertile black soil” and

“has a substantial Black population.” MSA 38–39.

Black Alabamians live in majority-white places like

Mobile (Mobile County, 35.3% black) and Dothan

(Houston County, 26.5% black).4 Thus, as a matter of

political geography, Alabama’s longstanding single

majority-minority district comes as no surprise. It is a

consequence not of nefarious motives, but of

intermingling of residents regardless of race.

As the plaintiffs’ expert has argued elsewhere,

“Any meaningful claim of gerrymandering must be

demonstrated against the backdrop of valid

alternative districting plans, under the constraints of

law, physical geography, and political geography that

are actually present in a jurisdiction.” Duchin et al.,

supra, at 399. But here, the plaintiffs took a different

route. Overcoming fundamental facts about Alabama’s

political geography required the plaintiffs to do just

what the law forbids: draw maps based on race.

G. Giroux, Rich, Poor, Young, Old: Congressional Districts at a

Glance, Bloomberg Government (Sep. 15, 2017, 4:37 PM),

https://about.bgov.com/news/rich-poor-young-old-congressionaldistricts-glance/ (same).

See Alabama: 2020 Census, U.S. Census Bureau,

https://www.census.gov/library/stories/state-by-state/alabamapopulation-change-between-census-decade.html (Oct. 8, 2021).

The plaintiffs’ expert had drawn two million

neutral maps “without taking race into account in any

way.” MSA 364. None of them produced two majorityminority districts. Ibid. The median number of

majority-minority districts in the maps was zero.

M. Duchin & D. Spencer, Models, Race, and the Law,

130 Yale L.J.F. 744, 764 (2021).

As the expert explained, proportional outcomes do

not “come for free,” and “representation doesn’t kick in

until you’re fairly segregated.”5 So she and the

plaintiffs’ other experts set about to segregate

Alabama. Concluding “that it is hard to draw two

majority-black districts by accident,” the plaintiffs’

expert decided that it was “importan[t]” to “do[] so on

purpose.” MSA 367. Only after she operationalized the

new model—with the “nonnegotiable principle” being

segregation based on race—could she produce maps

with two majority-minority districts. MSA 60, 262; see

MSA 322 (“I needed to make sure that the districts I

was creating would be over 50 percent black.”);

MSA 297 (“None” of the “30,000 simulated plans

included two” majority-black districts “because [the

plaintiffs’ other expert] didn’t tell the algorithm to

create a second.”).

The district court agreed that “some awareness of

race likely is required to draw two majority-Black

districts.” MSA 261. And one reason that the court

found that the plaintiffs presented reasonably compact

maps is because the maps “provide a number of

majority-Black districts that is roughly proportional.”

MSA 183, 259. The district court excused the plaintiffs’

5 Harvard University, Political Geography: The Mathematics of

Redistricting, A Lecture by Moon Duchin, YouTube, at 17:58,

44:52 (Nov. 26, 2018), https://youtu.be/pi_i3ZMvtTo.

race-based drawing because “[b]eyond ensuring

crossing that 50 percent line, there was no further

consideration of race.” MSA 262–63; see also MSA 61,

265–66 (similar). In other words, once segregated by

race, citizens were treated equally. Cf. Plessy, 163 U.S.

at 552 (Harlan, J., dissenting) (“separate but equal”).

As discussed in Part III below, that violates the law.

Proportional representation based on race is not the

norm in districting.

II. The district court’s

retention was error.

dismissal

core

As it elevated race and unnatural proportional

representation, the district court devalued neutral,

traditional districting principles. And it especially and

expressly devalued one: core retention. Core retention

means that maps are drawn so that, in the main,

districts do not change from election to election. Most

citizens, living in the district “cores,” stay in the same

district. This principle is a longstanding one, and it is

race neutral. It is important to democratic

representation, for it more closely connects citizens

with their representatives (like amici). Yet the district

court tossed it aside: “a significant level of core

disruption” “is to be expected when the entire reason

for the remedial map is to draw a second majorityminority district that was not there before.” MSA 182.

That puts the cart before the horse: neutral districting

principles must be considered before finding a VRA

violation. And it ignores the compelling reasons for

states to retain district cores.

Alabama has followed the essential districting

principle of core retention for decades. The bipartisan

guidelines in this cycle directed that “[t]he Legislature

shall try to preserve the cores of existing districts.”

MSA 231. The congressional map produced by the

legislature closely mirrors the last three congressional

maps, from 1992, 2002, and 2011. As part of

redistricting litigation in the 1990s, a three-judge

court ordered a congressional plan containing a

majority-black District 7. See Wesch v. Hunt, 785 F.

Supp. 1491 (S.D. Ala. 1992); Wesch v. Folsom, 6 F.3d

1465 (CA11 1993). The court picked what became the

1992 plan in part because it “maintain[ed] the cores of

existing Districts 1 and 2.” Hunt, 785 F. Supp. at

1496–97.

The 2002 congressional map—enacted by a

majority-Democratic legislature and precleared by the

Department of Justice—retained the core of the 1992

plan. Likewise, the 2011 congressional map—

precleared by the Department of Justice under

President Obama—maintained the cores of the prior

maps. And the 2021 congressional map continued

adherence to the core retention principle. Randy

Hinaman, the legislature’s map-drawer, used the

“cores of the existing districts” as the “starting point in

drafting the 2021 congressional map.” JA 270.

There are good reasons for core retention. The

foundation of our democratic republic is that

representatives speak for the citizens they represent.

In this way, we hear “the public voice pronounced by

the representatives of the people.” The Federalist No.

10 (Madison). So states have a legitimate interest in

“promot[ing] ‘constituency-representative relations’”

by “maintaining existing relationships between

incumbent congressmen and their constituents.” White

v. Weiser, 412 U.S. 783, 791–92 (1973). This “common

practice” “honors settled expectations.” Cooper v.

Harris, 137 S. Ct. 1455, 1492 (2017) (Alito, J.,

concurring in judgment in part and dissenting in part);

accord Karcher v. Daggett, 462 U.S. 725, 740 (1983)

(“preserving the cores of prior districts” is a “legitimate

objective[]”).

Maintaining the core of each district permits

representatives like amici to build stronger

relationships with their constituents. The “location

and shape of districts” dictate “the political complexion

of the area.” Gaffney v. Cummings, 412 U.S. 735, 753

(1973). Representatives “have the responsibility to

learn the needs of their constituents and represent

their constituents.” J. Fromer, An Exercise in LineDrawing: Deriving and Measuring Fairness in

Redistricting, 93 Geo. L.J. 1547, 1581 (2005). “Longterm representatives have a chance to learn about and

understand the unique problems of their districts and

to pursue legislation that remedies those problems.”

N. Persily, In Defense of Foxes Guarding Henhouses:

The Case for Judicial Acquiescence to IncumbentProtecting Gerrymanders, 116 Harv. L. Rev. 649, 671

(2002). Citizens come to trust their representatives,

who help them navigate government bureaucracies

and deal with local issues. See generally B. Cain, J.

Ferejohn, & M. Fiorina, The Personal Vote:

Constituency Service and Electoral Independence

(1987).

Moreover, “the cores in existing districts are the

clearest expression of the legislature’s intent to group

persons on a ‘community of interest’ basis.” Colleton

Cnty. Council v. McConnell, 201 F. Supp. 2d 618, 649

(D.S.C. 2002). And “because the cores are drawn with

other traditional districting principles in mind, they

will necessarily incorporate the state’s other

recognized interests in maintaining political

boundaries, such as county and municipal lines.” Ibid.

Disregarding core retention can lower public

familiarity with candidates and representatives,

leading to abstention and voter disengagement. See

generally D. Hayes & S. McKee, The Participatory

Effects of Redistricting, 53 Am. J. Pol. Sci. 1006 (2009)

(analyzing data sets demonstrating voter abstention

following boundary realignment); J. Winburn & M.

Wagner, Carving Voters Out: Redistricting’s Influence

on Political Information, Turnout, and Voting

Behavior, 63 Pol. Rsch. Q. 373 (2010) (similar, with

more data sets). These voter depression “effects are

strongest among African Americans,” who suffer a

significant drop off in voter participation when drawn

into a new district. D. Hayes & S. McKee, The

Intersection of Redistricting, Race, and Participation,

56 Am. J. Pol. Sci. 115, 115 (2012). After voters are

redrawn into a new district, their ability to recall

candidate names is much lower; those in rural

communities are especially affected. See Winburn &

Wagner, supra, at 382.

In sum, representatives can be expected to better

represent their citizens’ views when they are equipped

to understand their communities, and not left to worry

about their represented community changing with

each new electoral cycle. And with stronger

relationships, they can provide better service to

constituents. State legislatures best understand the

importance of these relationships, which should not be

upended every time new maps are drawn. That risks

depressing the representative relationships that foster

democratic accountability and service. And it would

“lead[] to ineffective governance.” Fromer, supra, at

1581.

For an example, take Gulf Coast counties Mobile

and Baldwin, which the State has long placed in the

same congressional district (District 1) because of the

unique circumstances facing coastal communities with

a substantial industrial base. One amicus here,

Congressman Carl, represents those communities. As

State Representative Adline Clarke, a black Democrat

from Mobile recently explained, “I consider Mobile and

Baldwin counties one political subdivision and would

prefer that these two Gulf Counties remain in the

same congressional district because government,

business and industry in the two counties work well

together—with our congressman—for the common

good of the two counties.”6 This makes sense given that

the people in District 1 share a history and culture,

with heavy French and Spanish influence, the

origination of Mardi Gras, and other shared

experiences as the only two coastal counties in the

State. See Barnhard v. Ingallis, 275 So. 3d 1112, 1117

n.1 (Ala. 2018). Keeping those communities in the

same district promotes democratic accountability.

Despite the importance of this longstanding

districting principle of core retention, the plaintiffs

here ignored it. Their experts admitted that they did

not even attempt to incorporate core retention into

their algorithms. See MSA 359 (“That was not a

consideration.”). They found it “mathematically

impossible” to achieve their primary objection—racebased quotas—without “a significant level of core

displacement.” MSA 337.

Unsurprisingly, the maps presented by plaintiffs’

experts eviscerated the district cores. The legislature’s

map retained 94% of the State’s population in the

6 J. Sharp, Redistricting Alabama: How South Alabama could be

split up due to Baldwin County’s growth, AL.com (Sep. 20, 2021),

https://perma.cc/8PME-JA5W.

same districts; the plaintiffs’ maps were mostly in the

50–60% range. Milligan D. Ct. Dkt. 82-4, at 11–15. The

disparities for retention of black voters were similar.

Ibid. None of the plaintiffs’ initial ten proposed maps

retained as much of the previous district as the

legislature’s least retentive district did. Id. at 33–43.

For its part, the district court acknowledged that

the plaintiffs’ maps were far inferior to the State’s in

terms of core retention. MSA 182; cf. Brnovich v.

Democratic Nat’l Comm., 141 S. Ct. 2321, 2346 (2021)

(noting that “the Court of Appeals’ preferred

alternative would have obvious disadvantages”). Yet

the court reasoned that “a significant level of core

disruption” “is to be expected when the entire reason

for the remedial map is to draw a second majorityminority district.” MSA 182. But there is no warrant

for a remedial map if the State’s existing map complies

with neutral districting principles. Section 2 “does not

deprive the States of their authority to” rely on

traditional, “non-discriminatory” districting principles

like core retention. Brnovich, 141 S. Ct. at 2343.

“[S]trong state interests” like core retention can “save”

even an “otherwise discriminatory” map. Id. at 2360

(Kagan, J., dissenting). And in all events, a remedial

map cannot “subordinate[] traditional districting

principles to race.” Miller v. Johnson, 515 U.S. 900,

919 (1995).

The district court believed that core retention could

never be assigned “great weight” because that “would

turn the law upside-down, immunizing states from

liability under Section Two so long as they have a

longstanding, well-established map, even in the face of

a significant demographic shift.” MSA 182. Put aside

that no significant demographic shift has occurred in

Alabama: the share of the state’s population that is

black has increased by less than two percentage points

in 30 years. MSA 282. Two other problems exist with

the district court’s reasoning.

First, prioritizing traditional principles over racial

segregation keeps the law right-side up. Section 2 is

premised on Congress’s authority under the

Fourteenth and Fifteenth Amendment, which operate

only against intentional discrimination. See

Washington v. Davis, 426 U.S. 229, 242 (1976); City of

Mobile v. Bolden, 446 U.S. 55, 60–62 (1980) (plurality

opinion). Holding unlawful a duly enacted map that

adheres to neutral principles like core retention is a

dubious extension of Section 2 beyond its

constitutional moorings. And as discussed more below,

the district court’s “command that [Alabama] engage

presumptively

unconstitutional

race-based

districting brings” Section 2 into extreme “tension

with the Fourteenth Amendment.” Miller, 515 U.S. at

927 (emphasis added). “Congress’ exercise of its

Fifteenth Amendment authority even when otherwise

proper still must ‘consist with the letter and spirit of

the constitution.’” Id. at 926–27 (quoting South

Carolina v. Katzenbach, 383 U.S. 301, 326 (1966)); cf.

City of Boerne v. Flores, 521 U.S. 507, 532–33 (1997)

(observing that the VRA’s Section 5 restrictions were

“placed only on jurisdictions with a history of

intentional racial discrimination in voting” to prevent

“the mischief and wrong which the Fourteenth

Amendment was designed to protect against” (cleaned

up)).

The district court’s hypothesized example is

distinct from cases in which this Court “has found a

problem under § 2,” all of which “involve transparent

gerrymandering that boosts one group’s chances at the

expense of another’s.” Gonzalez v. City of Aurora, 535

F.3d 594, 598 (CA7 2008) (Easterbrook, J.) (citing

Shaw v. Reno, 509 U.S. 630 (1993); Miller, 515 U.S.

900; LULAC, 548 U.S. 399). Alabama’s adherence to

longstanding, neutral districting principles that all

agree would never lead to another majority-minority

district is much different. Imposing liability for

Alabama’s approach “would unnecessarily infuse race

into virtually every redistricting, raising serious

constitutional questions.” Bartlett v. Strickland, 556

U.S. 1, 21 (2009) (plurality opinion).

For that reason, this Court has refused to find

liability under Section 2 in similar cases. In Abrams v.

Johnson, for example, the Court emphasized

“Georgia’s traditional redistricting principles” that

included preserving “district cores, four traditional

‘corner districts’ in the corners of the State, [and]

political subdivisions such as counties and cities.” 521

U.S. 74, 84 (1997). The Court agreed with the district

court’s decision not to order the “creat[ion of] a second

majority-black district” because “doing so would

require it to ‘subordinate Georgia’s traditional

districting policies and consider race predominately, to

the exclusion of both constitutional norms and

common sense.’” Ibid. (quoting Johnson v. Miller, 922

F. Supp. 1556, 1566 (S.D. Ga. 1995)).

Second, recognizing the importance of core

retention does not “immunize” maps. Sometimes, it

could help Section 2 plaintiffs. In LULAC, for example,

a system like Alabama’s of promoting core

preservation would have favored the plaintiffs’

preferred outcome. There, “Webb County, which [was]

94% Latino, had previously resided entirely within

District 23; under the new plan, nearly 100,000 people

were shifted into neighboring District 28.” 548 U.S. at

424. And District 23 saw its “Latino share of the citizen

voting-age population” drop from 57% to 46%. Ibid.

Disruption of the district core could provide evidence

of an unlawful race-based gerrymander, for it shows

that the legislature disregarded traditional districting

principles. Here, by contrast, the plaintiffs proposed

disrupting the district cores to discriminate based on

race instead.

Core

retention

improves

the

democratic

relationship between citizen and representative. It is

an important, neutral principle that state legislatures

validly prioritize. The district court disregarded this

traditional principle, replacing it with racial

discrimination based on a concept of “proportional

representation” with no basis in Section 2’s text or the

Constitution. Not only does this holding disserve

democratic

accountability,

threatens

the

constitutionality of Section 2 as applied here.

III. The district court’s order contradicts

Section 2, this Court’s precedents, and the

Constitution.

This Court has construed Section 2 to extend to

“dispersal of a group’s members into districts in which

they constitute an ineffective minority of voters.”

Cooper, 137 S. Ct. at 1464 (cleaned up); but see Holder

v. Hall, 512 U.S. 874, 922–23 (1994) (Thomas, J.,

concurring in judgment). Under this Court’s decision

in Gingles, three threshold requirements for Section 2

liability “must be shown: (1) The minority group must

be sufficiently large and compact to constitute a

majority in a reasonably configured district, (2) the

minority group must be politically cohesive, and (3) a

majority group must vote sufficiently as a bloc to

enable it to usually defeat the minority group’s

preferred

candidate.” Wisconsin

Legislature

Wisconsin Elections Comm’n, 142 S. Ct. 1245, 1248

(2022). “If the preconditions are established, a court

considers the totality of circumstances to determine

whether the political process is equally open to

minority voters.” Ibid. (cleaned up).

The district court’s application of Gingles defies the

text of Section 2 and this Court’s precedents. And it

furthers the very race-based decision-making that the

Constitution prohibits.

A. Section 2 does not require proportional

representation.

“[T]he Voting Rights Act, as properly interpreted,

should encourage the transition to a society where race

no longer matters: a society where integration and

color-blindness are not just qualities to be proud of, but

are simple facts of life.” Gregory v. Ashcroft, 539 U.S.

461, 490–91 (2003). The VRA seeks “a society that is

no longer fixated on race.” Id. at 490. But the district

court’s conclusion depends on a fixation with race. Not

once in two million map simulations did the plaintiffs’

expert happen on a scheme with two majority-minority

districts. Only when race became the “nonnegotiable

principle” could such a map be made. MSA 60, 262.

Using those maps would violate Section 2, and the

VRA should not be interpreted in such a self-defeating

way.

Section 2 does not guarantee equality through

proportional representation. “[T]he ultimate right of

§ 2 is equality of opportunity.” De Grandy, 512 U.S. at

1014 n.11. Section 2 is violated only if “the political

processes leading to nomination or election . . . are not

equally open to participation by members of a class of

citizens.” 52 U.S.C. § 10301(b). Section 2 is not violated

when neutral traditional districting principles, like

core retention, guide districting decisions.

Here, Alabama’s adopted maps preserve core

retention, follow other traditional districting criteria,

and avoid racial discrimination. Two million efforts at

similarly neutral maps show that Alabama elections

are equally open based on neutral criteria. So the

plaintiffs can prevail on their Section 2 claim only if

the statute guarantees proportional representation,

rather than protection against state action that

abridges the right to compete on an equal footing in

the electoral process. But Section 2’s text “makes

clear” that it is “not a guarantee of electoral success for

minority-preferred candidates of whatever race.” De

Grandy, 512 U.S. at 1014 n.11; see also Brnovich, 141

S. Ct. at 2342 n.14 (noting the statutory disclaimer as

“a signal that § 2 imposes something other than a pure

disparate-impact regime”); Rucho, 139 S. Ct. at 2502

(“[A] racial gerrymandering claim does not ask for a

fair share of political power and influence . . . . It asks

instead for the elimination of a racial classification.”)

To be sure, this Court in De Grandy examined

proportionality as potentially relevant in the “totality

of the circumstances” analysis after the three Gingles

preconditions have been met. But the Court also

cautioned that “the degree of probative value assigned

to disproportionality, in a case where it is shown, will

vary not only with the degree of disproportionality but

with other factors as well.” 512 U.S. at 1021 n.17.

“[L]ocal conditions” matter. Ibid. (cleaned up). Here,

application of neutral factors to Alabama’s political

geography yielded, two million times over, no more

proportional representation. And the race-based maps

proposed by the plaintiffs destroyed the district cores,

undermining democratic representation. The district

court “improperly reduced Gingles’ totality-ofcircumstances analysis to a single factor”:

“proportionality.” Wisconsin Legislature, 142 S. Ct. at

1250.

Just as bad, the district court focused on race not

only in the totality of the circumstances analysis but

also before considering the Gingles threshold

conditions. The

Gingles conditions presume

“traditional districting principles such as maintaining

communities of interest and traditional boundaries.”

Abrams, 521 U.S. at 92 (cleaned up). Starting with

segregation distorts the Gingles analysis by favoring a

race-based plan over either the existing plan or other

neutral ones. Considering race before core retention

and other traditional principles makes the “prohibited

assumption” “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 (cleaned up); see also Miller, 515 U.S. at

919 (warning that “traditional districting principles”

cannot be “subordinated to racial objectives”).

If neutral maps cannot (or rarely) produce a

sufficiently numerous, compact minority group, the

Gingles conditions cannot be satisfied. This proper

approach to applying Gingles—which the district court

rejected—is the only one consistent with both the text

of Section 2 and this Court’s precedents. As Judge

Easterbrook has explained, “neither [Section] 2

nor Gingles nor any later decision of the Supreme

Court speaks of maximizing the influence of any racial

or ethnic group.” Gonzalez, 535 F.3d at 598. “Section 2

requires an electoral process ‘equally open’ to all, not a

process that favors one group over another.” Ibid. This

makes sense, because a court “cannot maximize [one

group’s] influence without minimizing some other

group’s influence. A map drawn to advantage [one

racial group’s] candidates at the expense of [another

racial group’s] candidates violates [Section] 2 as surely

as a map drawn to maximize the influence of those

groups at the expense of [the original ethnic group].”

Ibid. The key, then, is to ask whether a racial group’s

population is “concentrated in a way that neutrally

drawn compact districts would produce” more

majority-minority districts. Id. at 600 (emphasis

added); see generally J. Chen & N. Stephanopoulos,

The Race-Blind Future of Voting, 130 Yale L.J. 862

(2021). Here, the plaintiffs’ own analysis showed that

neutral maps would never produce more majorityminority districts.

For similar reasons, the district court’s analysis

would trap states in an endless cycle of Section 2

violations. Again, the central question under Section 2

is “whether members of a racial group have less

opportunity than do other members of the electorate.”

LULAC, 548 U.S. at 425–26. If a map can exist only by

racial discrimination, necessarily it discriminates

against members of a group. The very relief given to

one set of plaintiffs—racially based districts that

would never exist under neutral principles—would

itself create a new Section 2 violation as to another

plaintiff class, whose voting strength would be

diminished by the remedial plan. Had a legislative

mapmaker started off making racial segregation a

“nonnegotiable principle,” there is little doubt what

fate the resulting map would meet on a Section 2

challenge. E.g., Miller, 515 U.S. at 919 (“This

statement from a state official is powerful evidence

that the legislature subordinated traditional

districting principles to race”); Ashcroft, 539 U.S. at

491 (Kennedy, J., concurring) (“Race cannot be the

predominant factor in redistricting”). So telling

Alabama to adopt such a map is telling it to violate the

very law the new map would supposedly remedy (and

the Constitution too). Section 2 should not be read to

lead to so absurd a result. Not only does its text forbid

this result, “few devices could be better designed to

exacerbate racial tensions than the consciously

segregated districting system” required by the district

court’s approach. Holder, 512 U.S. at 907 (Thomas, J.,

concurring in judgment).

B. Precedent does not require proportional

representation.

This Court’s precedents confirm that there are no

race-based districting criteria that states may employ

to achieve proportional representation. The Court has

explained that to establish a racial gerrymandering

claim, “a plaintiff must prove that the legislature

subordinated traditional race-neutral districting

principles”

core

retention

“to

racial

considerations.” Miller, 515 U.S. at 916 (cleaned up).

“Where these or other race-neutral considerations are

the basis for redistricting legislation, and are not

subordinated to race, a State can defeat a claim that a

district has been gerrymandered on racial lines.” Ibid.

(cleaned up). Nowhere has the Court suggested that

there are legitimate or traditional race-based

principles to which states may point as a defense.

In Miller, this Court invalidated congressional

maps drawn in Georgia that sought proportional

representation. At the insistence of the Department of

Justice, the state legislature had drawn three of 11

districts as majority-minority to mirror the State’s

black population (27%). Id. at 906–07, 927–28. The

Court rejected those maps because, as the State had

all but conceded, “race was the predominant factor in

drawing” the new majority-minority district. Id. at

918. “[E]very objective districting factor that could

realistically be subordinated to racial tinkering in fact

suffered that fate.” Id. at 919 (cleaned up). Even where

“the boundaries” of the new district “follow[ed]”

existing divisions like precinct lines, those choices

were themselves the product of “design[] . . . along

racial lines.” Ibid. (cleaned up).

The Court rejected this racial gerrymander,

specifically holding that “there was no reasonable

basis to believe that Georgia’s earlier [nonproportional] plans violated” the VRA. Id. at 923. “The

State’s policy of adhering to other districting principles

instead of creating as many majority-minority districts

as possible does not support an inference that the

plan . . . discriminates on the basis of race or color.” Id.

at 924. Because engaging in “presumptively

unconstitutional race-based districting” would have

brought Section 2 “into tension with the Fourteenth

Amendment,” the Court rejected the State’s maps,

even though those maps provided proportional

representation. Id. at 927. As the Court explained, “It

takes a shortsighted and unauthorized view of the

Voting Rights Act to invoke that statute, which has

played a decisive role in redressing some of our worst

forms of discrimination, to demand the very racial

stereotyping the Fourteenth Amendment forbids.” Id.

at 927–28.

This Court thus remanded the case, and after the

state legislature failed to act, the district court drew

maps with only one majority-minority district (9%)—

representation far below black Georgians’ 27% share

of the population. Abrams, 521 U.S. at 78; see id. at

103 (Breyer, J., dissenting). “The absence of a second,

if not a third, majority-black district” was “the

principal point of contention.” Id. at 78 (majority

opinion). Yet this Court upheld the district court’s

maps, which focused on “Georgia’s traditional

redistricting principles” like core retention. Id. at 84.

The district court had “considered the possibility of

creating a second majority-black district but decided

doing so would require it to subordinate Georgia’s

traditional districting policies and consider race

predominantly, to the exclusion of both constitutional

norms and common sense.” Ibid. (cleaned up). This

Court agreed and explained “that the black population

was not sufficiently compact” for even “a second

majority-black district.” Id. at 91 (emphasis added).

Thus, even getting to two majority-minority districts

(18%) by focusing on race would have violated the

Equal Protection Clause, and the Court rejected the

use of DOJ’s proposed “plan as the basis for a remedy

[that] would validate the very maneuvers that were a

major cause of the unconstitutional districting” at

issue in Miller. Id. at 86; see id. at 109 (Breyer, J.,

dissenting) (“The majority means that a two-district

plan would be unlawful—that it would violate the

Constitution”).

This Court’s teachings in Miller and Abrams show

the error of the district court’s analysis, which

prioritized race over traditional districting principles

in pursuit of proportional representation. Not only is

the degree of disproportionality in this case well below

the disproportionality permitted in Abrams, the

district court’s overarching focus on race makes the

same mistake made by the state legislature (at DOJ’s

insistence) in Miller. The district court’s decision thus

conflicts with this Court’s precedents.

C. The Fourteenth Amendment prohibits

maps drawn based on race.

A State cannot constitutionally be forced to adopt a

plan that is premised on and would never exist absent

unequal treatment based on race. “[T]he moral

imperative of racial neutrality is the driving force of

the Equal Protection Clause.” Bartlett, 556 U.S. at 21

(cleaned up). “[S]ystematically dividing the country

into electoral districts along racial lines” is “nothing

short of a system of ‘political apartheid.’” Holder, 512

U.S. at 905 (Thomas, J., concurring in judgment)

(quoting Reno, 509 U.S. at 647). The Court has time

and again recognized that any “maps that sort voters

on the basis of race ‘are by their very nature odious.’”

Wisconsin Legislature, 142 S. Ct. at 1248 (quoting

Reno, 509 U.S. at 643). “[The sorting of persons with

an intent to divide by reason of race raises the most

serious constitutional questions.” De Grandy, 512 U.S.

at 1029 (Kennedy, J., concurring in part and in

judgment).

This Court has applied strict scrutiny when the

government

discriminates

based

“racial

classifications.” Parents Involved in Cmty. Schs. v.

Seattle Sch. Dist. No. 1, 551 U.S. 701, 720 (2007)

(plurality

opinion)

(collecting

cases).

Racial

gerrymanders must be narrowly tailored to achieving

a “compelling state interest.” Shaw v. Hunt, 517 U.S.

899, 908 (1996). Without narrow tailoring, “[s]uch laws

cannot be upheld.” Wisconsin Legislature, 142 S. Ct. at

1248 (cleaned up).

Proportional representation is not a compelling

state interest. See Gingles, 478 U.S. at 84 (O’Connor,

J., concurring in judgment) (“Congress did not intend

to create a right to proportional representation”). This

Court has “assume[d], without deciding, that the

State’s interest in complying with the Voting Rights

Act [is] compelling.” Bethune-Hill v. Virginia State Bd.

of Elections, 137 S. Ct. 788, 801 (2017). But “the

purpose of the Voting Rights Act [is] to eliminate the

negative effects of past discrimination.” Gingles, 478

U.S. at 65. And “[a] State’s interest in remedying the

effects of past or present racial discrimination” will

only “rise to the level of a compelling state interest” if

the State “satisf[ies] two conditions,” Hunt, 517 U.S. at

909. First, “the discrimination must be ‘identified

discrimination.’” Ibid. Any mere “generalized

assertion of past discrimination in a particular

industry or region is not adequate.” Ibid. Likewise, “an

effort to alleviate the effects of societal discrimination

is not a compelling interest.” Id. at 909–10. Second, a

legislature “must have had a strong basis in evidence

to conclude that remedial action was necessary, before

it” acts based on race. Id. at 910 (cleaned up).

Here, the plaintiffs cannot show either condition

leading to a compelling interest, much less narrow

tailoring. They cannot identify any relevant

discrimination, because two million neutral maps

produced the same (or less) representation. They

cannot establish that race, rather than neutral

principles like core retention, was the “predominant

factor motivating the legislature’s decision to place a

significant number of voters within or without a

particular district.” Cooper, 1137 S. Ct. at 1463. And

they cannot show that a “strong basis in evidence”

justifies their maps. Id. at 1464. The only

discrimination here is by the plaintiffs, whose

proposed “racial tinkering” and prioritization of

“mechanical racial targets above all other districting

criteria” provides strong “evidence that race motivated

the drawing” of their proposed remedial plans. Miller,

515 U.S. at 919 (cleaned up) (first quote); Alabama

Legislative Black Caucus v. Alabama, 575 U.S. 254,

267 (2015) (second and third quotes).

Interpreting Section 2 to sanction the plaintiffs’

approach would challenge its constitutionality. As

discussed, Section 2 is grounded in the constitutional

prohibitions on intentional discrimination. Imposing

liability on a State that drew race-neutral maps

disconnects Section 2 from its constitutional authority.

Given that the standard American electoral “rule

usually

results

less-than-proportionate

representation for all political minorities,” “there is

scant basis for suspecting an official intent to

discriminate from the mere fact that an electoral

system results in a minority community enjoying a

less-than-proportionate

political

representation.” C. Elmendorf, Making Sense of

Section 2: Of Biased Votes, Unconstitutional Elections,

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

401 (2012). That is especially true when the State’s

map is closely tied to longstanding district cores.

Requiring a state to depart from that neutral map and

instead intentionally discriminate based on race would

be a strange way indeed to enforce the Constitution’s

prohibition on purposeful race discrimination. This

constitutional quandary is yet another reason to reject

the district court’s approach.

“The way to stop discrimination on the basis of race

is to stop discriminating on the basis of race.” Parents

Involved, 551 U.S. at 748. This Court should not

countenance the district court’s substitution of a raceneutral plan for one premised on segregation.

CONCLUSION

“Racial gerrymandering, even for remedial

purposes, may balkanize us into competing racial

factions; it threatens to carry us further from the goal

of a political system in which race no longer matters—

a goal that the Fourteenth and Fifteenth Amendments

embody, and to which the Nation continues to aspire.”

Bartlett, 556 U.S. at 21 (quoting Reno, 509 U.S. at

657). By prioritizing race to pursue segregated maps,

the district court flouted both Section 2 and the

Constitution. The judgments below should be

reversed.

Respectfully submitted,