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

Nos. 21-1086, 21-1087

In the

Supreme Court of the United States

______________________

JOHN H. MERRILL, et al.,

v.

EVAN MULLIGAN, et al.,

______________________

JOHN H. MERRILL, et al.,

v.

MARCUS CASTER, et al.,

______________________

Appellants,

Appellees.

Petitioners,

Respondents.

On Appeal from and on Writ of Certiorari to the United

States District Court for the Northern District of Alabama

Amicus Curiae Brief of the Lawyers Democracy

Fund in Support of Appellants/Petitioners

EFREM MARSHALL BRADEN

PATRICK T. LEWIS

Counsel of Record

BAKER & HOSTETLER LLP BAKER & HOSTETLER LLP

1050 Connecticut Ave., N.W.

127 Public Square

Suite 1100

Suite 2000

Washington, D.C. 20036

Cleveland, Ohio 44114

(202) 861-1711

(216) 621-0200

mbraden@bakerlaw.com

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ..................................... iii

INTEREST OF THE AMICUS .................................. 1

INTRODUCTION AND SUMMARY OF THE

ARGUMENT ........................................................... 3

ARGUMENT .............................................................. 5

I. This Court Should Reverse The District Court

And Clarify The Requirements For An Illustrative District To Be “Reasonably Configured” To Satisfy Gingles’ First Precondition ....... 5

A. The Fourteenth Amendment Circumscribes The Use Of Race In Redistricting....... 6

B. Section 2 Of The Voting Rights Act Sometimes Compels The Use Of Race In Redistricting To Ensure Districts Are “Equally

Open” To All Voters ......................................... 8

C. The District Court’s Decision Creates Further Confusion And Litigation Risk In An

Already Challenging Redistricting Environment.......................................................... 10

II. The Court Should Affirm That A “Reasonably

Configured” District Is One That Comports

With Traditional Districting Principles............. 16

A. Judging The Compactness Of A Minority

Population Requires In-Depth Analysis Of

Traditional Districting Principles................. 17

ii

B. The “Compactness” Inquiry Should Incorporate The Notion That A District Is A Recognizable Representational Unit Of Geography .............................................................. 19

C. The District Court’s Use Of Mathematical

Measurements Of District Compactness To

Evaluate Plaintiffs’ Illustrative Benchmark Districts Illustrates The Limitations

Of Those Metrics ........................................... 23

CONCLUSION ......................................................... 28

iii

TABLE OF AUTHORITIES

CASES

Abbott v. Perez,

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

Abrams v. Johnson,

521 U.S. 74 (1997) .......................................... 11, 17

Alabama Legislative Black Caucus v. Alabama,

575 U.S. 254 (2015) ................................................ 4

Arizona State Legislature v. Arizona Indep.

Redistricing Comm’n, 576 U.S. 787 (2015)............ 6

Bartlett v. Strickland,

556 U.S. 1 (2009) .................................................. 16

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

137 S. Ct. 788 (2017) ...............................1, 3, 6, 7, 8

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

326 F. Supp. 3d 128 (E.D. Va. 2018) ...................... 4

Bone Shirt v. Hazeltine,

336 F. Supp. 2d 976 (D.S.D. 2004) ......................... 3

Brnovich v. Democratic National Cmte.,

141 S. Ct. 2321 (2021) .......................................... 10

Bush v. Vera,

517 U.S. 952 (1996) .................................... 3, 17, 24

iv

Chapman v. Meier,

420 U.S. 1 (1975) .................................................... 5

Cooper v. Harris,

137 S. Ct. 1455 (2017) ...........................3, 4, 8, 9, 14

Gonzalez v. City of Aurora, Ill.,

535 F.3d 594 (7th Cir. 2008) ................................ 14

Growe v. Emison,

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

Holder v. Hall,

512 U.S. 874 (1994) .............................................. 11

Johnson v. De Grandy,

512 U.S. 997 (1994) .................................... 9, 11, 14

Karcher v. Daggett,

462 U.S. 725 (1983) .............................................. 22

League of United Latin American Citizens v. Perry,

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

Luna v. County of Kern,

291 F. Supp. 3d 1088 (E.D. Cal. 2018)................... 3

Miller v. Johnson,

515 U.S. 900 (1995) ...........................5, 7, 13, 17, 18

Prosser v. Election Bd.,

793 F. Supp. 859 (W.D. Wis. 1992) ...................... 22

v

Reno v. Bossier Parochial School Bd.,

520 U.S. 471 (1997) .............................................. 11

Reynolds v. Sims,

377 U.S. 533 (1964) .......................................... 5, 22

Rucho v. Common Cause,

139 S. Ct. 2484 (2019) .................................... 13, 20

Shaw v. Hunt,

517 U.S. 899 (1996) .......................10, 13, 17, 19, 24

Shaw v. Reno,

509 U.S. 630 (1993) .......................................... 7, 13

Thornburg v. Gingles,

478 U.S. 30 (1986) ............................................ 9, 11

Vieth v. Jubelirer,

541 U.S. 267 (2004) .............................................. 26

Voinovich v. Quilter,

507 U.S. 146 (1993) .......................................... 9, 10

Williams v. City of Dallas,

734 F. Supp. 1317 (N.D. Tex. 1990) ....................... 3

Wisconsin Legislature v. Wisconsin Elections

Comm'n, 142 S. Ct. 1245 (2022)

........................................................................ passim

Constitution and Statutes

U.S. Const. amend. XIV ............................................. 6

vi

2 U.S.C. § 2c ............................................................. 21

52 U.S.C. § 10301(a)................................................... 8

52 U.S.C. § 10301(b)................................................. 10

Apportionment Act of 1850, ch. 11,

9 Stat. 433 ............................................................. 21

Apportionment Act of 1862, ch. 170,

12 Stat. 572 ........................................................... 21

Other Authorities

Brennan Center for Law and Justice, Redistricting

LitigationRoundup, Apr. 13, 2022,

https://www.brennancenter.org/ourwork/

research-reports/redistricting-litigationroundup-0 ................................................................ 6

Cong. Globe, 27th Cong., 2d Sess. app. 749

(1842) .............................................................. 20, 21

Aaron R. Kaufman, Gary King, Mayya

Komiscarchik, How To Measure Legislative

District Compactness If You Only Know It When

You See It, 65 Am. J. Poly. Sci. 3 (July 2021) ...... 25

The Federalist No. 56 (James Madison) (Hallowell

ed., 1842). .............................................................. 20

INTEREST OF THE AMICUS 1

Lawyers Democracy Fund (“LDF”) is a non-profit

organization established in 2007 to promote the role

of ethics, integrity, and legal professionalism in the

electoral process. To accomplish this, LDF primarily

conducts, funds, and publishes research and in-depth

analysis regarding the effectiveness of current and

proposed election methods, particularly those that fail

to receive adequate coverage in the national media.

Robust defense of reasonable, validly enacted election

laws is essential to achieve these goals. As part of its

mission, LDF is a resource for lawyers, journalists,

policymakers, courts, and others interested in elections and the electoral process.

The need for clarity in the application of the Voting

Rights Act to the decennial redistricting process is

profoundly important. Redistricting authorities

throughout our Nation need a clear legal standard to

appropriately navigate the “competing hazards of liability,” Bethune-Hill v. Virginia State Bd. of Elections,

137 S. Ct. 788, 802 (2017), occasioned by the Voting

Rights Act’s requirement to consider race in redistricting, on one hand, and the limitations on the use

of race compelled by the Fourteenth Amendment’s

Equal Protection Clause, on the other. That certainty

also inspires public confidence in the electoral process

1 No counsel for a party authored this brief in whole or in part,

and no person other than LDF and its counsel made any monetary contribution intended to fund the preparation or submission

of this brief. All parties have filed a blanket consent to amicus

briefs with the Clerk.

2

and the rule of law. LDF supports efforts to improve

judicial review of election laws. For these reasons,

LDF has an interest in the issues presented in Appellants’ appeals in these consolidated cases.

3

INTRODUCTION AND SUMMARY OF

THE ARGUMENT

A legislature’s attempt to simultaneously comply

with the Voting Rights Act, which sometimes compels

drawing districts on the basis of race, and with the

Equal Protection Clause, which restricts the use of

race, too often leaves the legislature “trapped between

the competing hazards of liability” created by those

competing requirements. Bethune-Hill v. Virginia

State Bd. of Elections, 137 S. Ct. 788, 802 (2017) (quoting Bush v. Vera, 517 U.S. 952, 977 (1996)).

This legal regime requires states to minimize the

use of race in redistricting to comply with the Fourteenth Amendment, while simultaneously considering race where necessary to avoid minority vote-dilution under Section 2 of the Voting Rights Act. A jurisdiction can be found liable under Section 2 if does not

consider race enough, i.e., by failing to draw a majority-minority district where one is necessary to assure

minority voters an equal opportunity to elect their

preferred candidates. See, e.g., Luna v. County of

Kern, 291 F. Supp. 3d 1088 (E.D. Cal. 2018); Bone

Shirt v. Hazeltine, 336 F. Supp. 2d 976 (D.S.D. 2004);

Williams v. City of Dallas, 734 F. Supp. 1317 (N.D.

Tex. 1990).

But on the other hand, a jurisdiction that considers

race too much in its redistricting, i.e., one that draws

a race-based district beyond that needed to comply

with Section 2, can find its plan struck down as a racial-gerrymander in violation of the Equal Protection

Clause. See, e.g., Cooper v. Harris, 137 S. Ct. 1455,

4

1472 (2017); Bethune-Hill v. Virginia State Bd. of

Elections, 326 F. Supp. 3d 128, 176–77 (E.D. Va.

2018); Abbott v. Perez, 138 S. Ct. 2305, 2334–35

(2018); Alabama Legislative Black Caucus v. Alabama, 575 U.S. 254, 277 (2015).

Having clear guidance on how to balance these delicate, and often competing goals, is essential to guide

the conduct of states and localities, political actors,

courts, and the public. The district court decision adds

confusion, rather than clarity, to the law.

The district court found that Alabama’s newly enacted congressional district plan violated Section 2 of

the Voting Rights Act because the plan had established one majority-minority district but should have

established two. But the only way a second district

could be drawn was by prioritizing race as a “nonnegotiable” design criterion that predominated over traditional districting principles. Although this second

district sprawled the entire width of the state (some

250 miles), SJA27, 99–109, 149, the district court

deemed it a “compact” and “reasonably configured”

district to satisfy the first Gingles precondition.

Cooper, 137 S. Ct. at 1470.

The district court’s decision is inconsistent with

this Court’s precedents. If allowed to stand, the district court’s decision will make redistricting standards more confusing and force states to guess when,

and how much, they must subordinate traditional districting principles to “racial considerations” that trigger strict scrutiny, id. at 1463–64, without violating

the Fourteenth Amendment. Adopting the district

5

court’s approach to the first Gingles precondition

would increase litigation, turning over more redistricting decisions to the courts from the people’s

elected legislative representatives.

This Court should reverse and should clarify the

standards for a “reasonably configured” district under

Gingles.

ARGUMENT

I. This Court Should Reverse The District

Court And Clarify The Requirements For An

Illustrative District To Be “Reasonably Configured” To Satisfy Gingles’ First Precondition.

After each decade’s census, the States undertake a

“periodic revision of their apportionment schemes,”

Reynolds v. Sims, 377 U.S. 533, 583 (1964), to adjust

district boundaries to account for population changes.

This essential task is “primarily the duty and responsibility of the State through its legislature or other

body...” Growe v. Emison, 507 U.S. 25, 34 (1993) (quoting Chapman v. Meier, 420 U.S. 1, 27 (1975)).

“Redistricting is never easy.” Abbott, 138 S. Ct. at

2314. Rather, it is “a most difficult subject for legislatures,” Miller v. Johnson, 515 U.S. 900, 915 (1995),

requiring them to make hundreds of discrete decisions about how to divide their territories into districts while navigating the “complex interplay of

forces that enter a legislature’s redistricting calculus,” id. at 915–16.

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Race is among the most complex challenges in the

redistricting legal landscape. States often find themselves “trapped” between the “competing hazards” of

Section 2 and Fourteenth Amendment racial-gerrymandering liability. Bethune-Hill, 137 S. Ct. at 802.

Legislatures are capable of discharging their responsibilities under Article I, Section 4 of the Constitution, 2 but obtuse legal standards inevitably shift redistricting decision-making to the judicial branch.

Indeed, redistricting litigation has proliferated this

cycle. The Brennan Center reports that, as of April 29,

2022, “a total of 68 cases have been filed challenging

congressional and legislative maps in 24 states as racially discriminatory and/or partisan gerrymanders.” 3

The expense, disruption, and legal risk that flows

from the use of race in redistricting not only confounds legislatures but also polarizes the electorate.

A. The Fourteenth Amendment Circumscribes The Use Of Race In Redistricting.

The first competing hazard of liability is a racialgerrymandering claim. Specifically, “[t]he Equal Protection Clause [of the Fourteenth Amendment] forbids ‘racial gerrymandering,’ that is, intentionally as-

2 See Arizona State Legislature v. Arizona Indep. Redistricing

Comm’n, 576 U.S. 787, 824–27 (2015) (Roberts, C.J., dissenting).

3 Brennan Center for Law and Justice, Redistricting Litigation

Roundup, Apr. 26, 2022, https://www.brennancenter.org/ourwork/research-reports/redistricting-litigation-roundup-0

(visited Apr. 29, 2022).

7

signing citizens to a district on the basis of race without sufficient justification.” Abbott, 138 S. Ct. at 2314

(citing Shaw v. Reno, 509 U.S. 630, 641 (1993) (“Shaw

I”)). The Fourteenth Amendment limits “the deliberate segregation of voters into separate districts on the

basis of race.” Shaw, 509 U.S. at 641. Indeed, districting maps that “sort voters on the basis of race ‘are by

their very nature odious.’” Wisconsin Legislature v.

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

(2022) (quoting Shaw, 509 U.S. at 643).

This Court has developed a two-part test to evaluate racial gerrymandering claims. First, a Fourteenth

Amendment plaintiff must show “that race was the

predominant factor motivating the legislature’s decision to place a significant number of voters within or

without a particular district.” Bethune-Hill, 137 S. Ct.

at 797 (citation omitted). Second, “[w]here a challenger succeeds in establishing racial predominance,

the burden shifts to the State to ‘demonstrate that its

districting legislation is narrowly tailored to achieve

a compelling interest.’” Id. at 800–01 (citation omitted).

At the tailoring stage, the question is whether “the

legislature [had] a strong basis in evidence in support

of the (race-based) choice that it has made.” Id. at 801.

That test is a demanding one, as redistricting plans

that assign voters based on race are subject to the

“strictest scrutiny.” Miller, 515 U.S. at 915.

This Court has long “assumed” that compliance

with the Voting Rights Act of 1965 (“VRA”) can be a

8

compelling state interest to justify race-based redistricting. Abbott, 138 S. Ct. at 2315. Where a state asserts the VRA as its compelling interest, the question

is whether “the legislature has ‘good reasons to believe’ it must use race in order to satisfy the Voting

Rights Act.” Bethune-Hill, 137 S. Ct. at 801 (emphasis

in original) (citation omitted). In particular, “[i]f a

State has good reason to think that all the ‘Gingles

preconditions’ are met, then so too it has good reason

to believe that § 2 requires drawing a majority-minority district. But if not, then not.” Cooper, 137 S. Ct. at

1470 (citation omitted). For a state to justify a district

under VRA § 2, it must adduce evidence—at the time

of redistricting—establishing the three Gingles preconditions (described below). See, e.g., Bethune-Hill,

137 S. Ct. at 801; Cooper, 137 S. Ct. at 1470.

B. Section 2 Of The Voting Rights Act Sometimes Compels The Use Of Race In Redistricting To Ensure Districts Are “Equally

Open” To All Voters.

But competing with the Fourteenth Amendment is

the Voting Rights Act, which can require the use of

race in redistricting. Under Section 2 of the VRA, no

state may deny or abridge a person’s right to vote “on

account of race or color.” 52 U.S.C. 10301(a). “A State

violates § 2 if its districting plan provides ‘less opportunity’ for racial minorities ‘to elect representatives of

their choice.’” Abbott, 138 S. Ct. at 2314 (quoting

League of United Latin American Citizens v. Perry,

548 U.S. 399, 425 (2006) (“LULAC”)). The Court “has

construed § 2 to prohibit the distribution of minority

9

voters into districts in a way that dilutes their voting

power.” Wisconsin Legislature, 142 S. Ct. at 1248.

To prove a claim that § 2 requires a state to establish majority-minority districts in a jurisdiction, a

plaintiff must first prove “three threshold” elements.

Cooper, 137 S. Ct. at 1470. Those elements, i.e., the

Gingles preconditions, are as follows:

(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, 142 S. Ct. at 1248 (citing

Thornburg v. Gingles, 478 U.S. 30, 50–51 (1986)); see

also Cooper, 137 S. Ct. at 1470. Notably, “the Gingles

factors cannot be applied mechanically and without

regard to the nature of the claim.” Johnson v. De

Grandy, 512 U.S. 997, 1007 (1994) (quoting Voinovich

v. Quilter, 507 U.S. 146, 158 (1993)).

If a plaintiff can establish all three Gingles preconditions in a jurisdiction, the court must then “consider

all other relevant circumstances and must ultimately

find based on the totality of those circumstances that

members of a protected class ‘have less opportunity

than other members of the electorate to participate in

the political process and to elect representatives of

10

their choice.’” Shaw v. Hunt, 517 U.S. 899, 914 (1996)

(“Shaw II”) (quoting 52 U.S.C. § 10301(b)).

While Shaw and its progeny treat districts drawn

predominantly on the basis of race as “odious” under

the Fourteenth Amendment, this Court has interpreted Section 2 “to mean that, under certain circumstance, States must draw ‘opportunity’ districts in

which minority groups form ‘effective majorit[ies],’”

Abbott, 138 S. Ct. at 2315 (citation omitted), i.e.,

States may have to draw race-based districts. But

there are limits to this obligation. “[C]ourts may not

order the creation of majority-minority districts unless necessary to remedy a violation of federal law”

under the VRA. Voinovich, 507 U.S. at 156.

C. The District Court’s Decision Creates Further Confusion And Litigation Risk In An

Already Challenging Redistricting Environment.

Navigating these competing hazards of liability requires clear, workable standards for when Section 2

requires the consideration of race in redistricting. The

district court’s decision fails to offer such standards,

and if allowed to stand will only exacerbate the expense, disruption, and legal risk facing the redistricting process.

1. In a vote-dilution case, an essential issue is the

choice of benchmark used to assess the claimed “dilution.” Stated differently: is a person’s vote diluted

compared to what baseline? See, e.g., Brnovich v.

Democratic Nat’l Cmte., 141 S. Ct. 2321, 2338 (2021)

11

(“[I]t is useful to have benchmarks with which the

burdens imposed by a challenged rule can be compared”); Gingles, 478 U.S. at 88 (O’Connor, J., concurring in judgment) (“[I]n order to decide whether an

electoral system has made it harder for minority voters to elect the candidates they prefer, a court must

have an idea in mind of how hard it should be for minority voters to elect their preferred candidates under

an acceptable system”); Holder v. Hall, 512 U.S. 874,

896 (1994) (Thomas, J., concurring in judgment) (“The

central difficulty in any vote dilution case, of course,

is determining a point of comparison against which

dilution can be measured.”). For a Section 2 vote-dilution claim, the “benchmark” is a “hypothetical, undiluted plan” the plaintiff must proffer. See Reno v.

Bossier Parish School Bd., 520 U.S. 471, 478–80

(1997).

Gingles’ first precondition is critical to supplying

that benchmark. A Section 2 plaintiff establishes that

a “minority group [is] sufficiently large and compact

to constitute a majority in a reasonably configured

district,” Wisconsin Legislature, 142 S. Ct. at 1248, by

showing that “there is a ‘possibility of creating more

than the existing number of reasonably compact’ opportunity [i.e., majority-minority] districts,” Abbott,

138 S. Ct. at 2331 (quoting LULAC, 548 U.S. at 430).

The compactness inquiry is vital, because 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)

(quoting Johnson, 512 U.S. at 1008).

12

2. In this case, the preliminary-injunction record

makes clear that two majority-minority districts

could be created in Alabama only through the predominant consideration of race. Two redistricting experts, Drs. Moon Duchin and Kosuke Imai, used sophisticated computerized tools to create ensembles of

plans (over two million in all) without expressly considering race. SJA58–59 (Imai); JA710–14 (Duchin).

None of their plans two majority-minority districts.

As Dr. Duchin explained, this result demonstrated

that “it is hard to draw two majority-black districts by

accident,” which “shows the importance of doing so on

purpose.” JA714. In addition to the expert evidence,

Appellants report that one of the lead Plaintiffs attempted to draw a congressional plan with two majority-minority districts with the benefit of training and

software but could not do so. Appellants’ Br. at 23–24.

Plaintiffs’ illustrative districts were, then, all

drawn with race as a “nonnegotiable principle,”

MSA60, and only “after” their racial targets were satisfied were traditional districting principles allegedly

considered, MSA60–61. The district court credited

this approach, finding it defensible for Plaintiffs’ experts to prioritize race to answer the essential question, “is it possible to draw two reasonably compact

majority-Black congressional districts?” MSA266.

The district court deemed this prioritization of race

acceptable so long as, once the target was met, Plaintiffs’ experts “assigned greater weight to other traditional redistricting criteria.” MSA266.

13

But that is, on its face, a classic subordination of

traditional districting criteria to race. 4 Plaintiffs proffered, and the district court accepted, a racially gerrymandered map as the “hypothetical, undiluted plan”

as the benchmark for their vote-dilution claim. Reno,

520 U.S. at 480. In Shaw II, the Court found racial

predominance where “[r]ace was the criterion that, in

the State’s view, could not be compromised; respecting communities of interest and protecting Democratic incumbents came into play only after the racebased decision had been made.” Shaw II, 517 U.S. at

907; see also Miller v. Johnson, 515 U.S. 900, 919

(1995) (rejecting defense to racial gerrymandering

claim based on compliance with “traditional districting principles” where “those factors were subordinated to race”).

3. To understand the challenges posed by the district court’s approach, consider how a legislature or

other redistricting authority would have to proceed

under the framework endorsed by the district court in

this case. Before the legislature can use race to redistrict, the legislature must have a “strong basis in evidence” to believe VRA compliance requires “race4 The computer-simulation results could themselves be evidence

of racial predominance. The simulations, when run race-blind,

did not yield a single plan with two majority-minority districts;

two such districts only emerged when race was a “nonnegotiable”

constraint. In the partisan-gerrymandering context, similar simulations analyses have been used “to assess whether partisanship has run amok,” i.e., whether traditional districting principles were subordinated to partisanship. Rucho v. Common

Cause, 139 S. Ct. 2484, 2520 (2019) (Kagan, J., dissenting).

14

based district lines.” Cooper, 137 S. Ct. at 1464; see

also Abbott, 138 S. Ct. at 2334. That inquiry, in turn,

requires the legislature to determine if the Gingles

preconditions are satisfied. Cooper, 137 S. Ct. at 1471.

Under the district court’s framework, to evaluate

the first Gingles precondition, a legislature would

first have to engage in “serious gerrymandering” on

the basis of race, Gonzalez v. City of Aurora, 535 F.3d

594, 600 (7th Cir. 2008) (Easterbrook, J.), to attempt

to identify majority-minority districts within a state

or region. Then, the potential districts would have to

be assessed to determine if they are “compact” and

“reasonably configured” to serve as suitable comparator districts under Gingles. Wisconsin Legislature,

142 S. Ct. at 1248.

This approach fails to provide any clarity to redistricting bodies to help them govern their conduct. To

the contrary, it is a recipe for nothing but chaos, litigation, and judicial policymaking.

First, the district court offers no limiting principle

(other than mathematics) to determine how many majority-minority districts a legislature must attempt to

draw. But mathematical maximums are not a valid

limiting principle, because “reading § 2 to define

[vote] dilution as any failure to maximize tends to obscure the very object of the statute and run counter to

its textually stated purpose.” Johnson, 512 U.S. at

1016–17 (concluding that “failure to maximize cannot

be the measure of § 2”); see also, e.g., LULAC, 548 U.S.

at 435 (“[T]he mathematical possibility of a racial bloc

15

does not make a district compact”); Wisconsin Legislature, 142 S. Ct. at 1249 (rejecting “uncritical majority-minority district maximization”).

Second, the Gingles compactness inquiry is complex and dependent on the very traditional districting

principles that the district court permitted Plaintiffs

to subordinate to race. Gingles compactness is not a

measurement of the shape of a district; it instead entails an assessment of the minority community with a

focus on traditional districting principles, including

respect for traditional boundaries and communities of

interest. See infra § II(A). Many of these principles

are subjective or qualitative in nature, leaving room

for litigants to second-guess the legislature’s choices.

Assessing compactness under the district court’s

analysis is challenged by the fact that compliance

with traditional districting criteria is part of the compactness inquiry, yet the court below permitted those

criteria to “yield” to race, at least until the plan

achieves the desired number of districts. MSA214.

But if compactness constraints that block the creation

of a new, “compact” majority-minority district can be

forced to “yield” until the district can be drawn, compactness soon loses its power as a limiting principle.

And that appears to have occurred in this case when

Plaintiffs’ experts made race the “nonnegotiable” criteria for drawing their illustrative benchmark plans.

This Court has previously held that “the need for

workable standards and sound judicial and legislative

administration” counseled in favor of adopting a

bright-line rule for the first Gingles precondition.

16

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

an area where bright-line, objective rules—like one

requiring Section 2 illustrative districts be drawn in

a race-neutral manner—add value and clarity in an

area of law bedeviled by complexity and uncertainty.

The district court’s decision below fails to offer a path

out of the “legal obstacle course,” Abbott, 138 S. Ct. at

2315, but instead leads litigants and courts deeper

into the thicket. Legislatures, lower courts, and the

public would be better served with a clear, administrable standard for determining the benchmark “undiluted” plan to use to judge a Section 2 vote-dilution

claim, and Amicus urges the Court to adopt one.

II.

The Court Should Affirm That A “Reasonably Configured” District Is One That

Comports With Traditional Districting

Principles.

This case offers an important opportunity for this

Court to clarify the parameters of a “compact” and

“reasonably configured” district to serve as the comparator for a vote-dilution claim under Section 2 of the

VRA. For the following reasons, the Court should affirm that for a district to be compact and reasonably

configured, it must follow traditional districting principles such as maintaining communities of interest

and traditional boundaries. Doing so honors the important doctrinal, historical, and policy reasons behind district-based representation. Mathematical

measures of district compactness, by contrast, do not

adequately capture these important qualitative features of districts—and, as applied in this case, do not

17

even address the legally important question: the compactness of the minority community itself.

A. Judging The Compactness Of A Minority

Population Requires In-Depth Analysis Of

Traditional Districting Principles.

1. The first Gingles precondition requires that the

minority group be “sufficiently large and compact to

constitute a majority in a reasonably configured district.” Wisconsin Legislature, 142 S. Ct. at 1248. Notably, “compactness” for Gingles purposes is not the

same thing as the “compactness” analysis for an

equal-protection claim, which focuses on “the contours of district lines to determine whether race was

the predominant factor in drawing those lines.” LULAC, 548 U.S. at 433 (citing Miller, 515 U.S. at 916–

17)); see also Bush, 517 U.S. at 997 (Kennedy, J., concurring); Shaw II, 517 U.S. at 916.

Compactness for Gingles purposes is different. It focuses on the compactness of the minority community

itself, which requires a deeper analysis of that community than just its geographic shape. While “no precise rule has emerged governing § 2 compactness,”

LULAC, 548 U.S. at 433, the “inquiry should take into

account ‘traditional districting principles such as

maintaining communities of interest and traditional

boundaries,’” Abrams, 521 U.S. at 92 (quoting Bush,

517 U.S. at 977).

2. A central focus on communities of interest and

traditional boundaries is essential to analyzing

whether the subject minority community can be

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drawn into a “reasonably configured” district. A “reasonably configured” majority-minority district should

be one drawn in a manner reasonably consistent with

other districts in the plan, which themselves respect

these time-honored principles. Communities are not

defined solely by race, and consideration 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 (quoting Miller, 515

U.S. at 920)). In the absence of that “prohibited assumption, there is no basis to believe that a district

that combines two farflung segments of a racial group

with disparate interests provides the opportunity that

§ 2 requires or that the first Gingles condition contemplates.” Id.

LULAC illustrates the point well. In that case,

Texas had created a majority-Latino district (District

25) that combined “the Latino community near the

Mexican border” with “the one in and around Austin,”

with a “300-mile gap” between the two Latino communities. 548 U.S. at 432, 434. Despite the two Latino

communities having different backgrounds and interests, however, the district court in that case concluded

the resultant district was reasonably compact because of the “relative smoothness of the district lines,”

id. at 432–33. This was problematic because “the

practical consequence of drawing a district to cover

two distant, disparate communities is that one or both

groups will be unable to achieve their political goals.”

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Id. at 434. In particular, the Court credited the idea

that the sprawling size and diversity of the new district “could make it more difficult for the constituents

in the Rio Grande Valley to control election outcomes.” Id. (quotation omitted). Compactness, then, is

not about “style points” for the district but is instead

“critical to advancing the ultimate purposes of § 2,”

i.e., ensuring equal electoral opportunity. Id.

To be sure, the physical distance separating the different elements of the asserted minority community

matters to the analysis. The “enormous geographical

distance” separating the two Latino communities was

an essential element that, in combination with the

“disparate needs and interests of these populations,”

rendered the district noncompact. Id. at 435. Likewise, the sprawling size and character of North Carolina’s District 12 doomed it in Shaw II. See Shaw II,

517 U.S. at 916 (“No one looking at District 12 could

reasonably suggest that the district contains a ‘geographically compact’ population of any race.”). But a

rigorous analysis of the communities of interest and

traditional boundaries in the region in question is

equally essential to ensure the minority community is

truly “compact” for purposes of § 2.

B. The “Compactness” Inquiry Should Incorporate The Notion That A District Is A

Recognizable Representational Unit Of

Geography.

Furthermore, judging Gingles compactness in part

on respect for traditional districting principles is consistent with the historical meaning of a “district” as a

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recognizable geographic unit of representation and

vindicates important representational policy goals.

The term “district” encompasses the views of the

Founding Fathers that effective representation can be

accomplished by dividing a state into geographic units

encompassing relatively recognizable meanings. Such

districts give effect to political subdivisions, allow representatives to “bring with them...a local knowledge

of their respective districts,” and can thereby effectively represent their constituencies. The Federalist

No. 56, at 261 (James Madison) (Hallowell ed., 1842).

Further support for the historical understanding of

the term “district” is found in the debates on the Apportionment Act of 1842, “which required singlemember districts for the first time” for congressional

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

2495 (2019). That debate further indicates that Congress used the term to refer to a recognizable local

representational unit of geography that respects political subdivisions. Senator Graham commented “we

find in every great nation with any extension of country…that the representative assemblies of the people

have been chosen by counties, parishes, departments,

and districts, by whatever named called. It ensures

that personal and intimate acquaintance between the

representative and constituent which is of the very essence of true representation.” Cong. Globe, 27th

Cong., 2d Sess. app. 749 (1842). The House debate

also focused on the advantages of localized, geographically recognizable districts. Representative Summers

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stated, “The essential feature of representative democracy is that the Representative shall reflect the

will and know the wants of his constituents. He

should live among them, be familiar with their condition, and hold with them a common political interest.

These ends can only be secured by providing for representative elections in districts suited to the situation and convenience of the people.” Id. at 354.

Nothing in the legislative history of the first Apportionment Act would indicate that the drafters ever

considered that districts would be divided in any way

other than straightforward geographic partitions representing local interest. And while the 1842 Apportionment Act has gone through a number of renditions over the past 150 years, the requirement that

Congressional elections be held in “districts” has remained generally constant since 1842. 5 It remains so

today. See 2 U.S.C. § 2c.

In contrast, the tortured and sprawling amalgamations of census geography that appear in some district

plans largely fail to follow any political boundaries or

evince any geographical reasoning, preventing representatives from becoming intimately familiar with issues important to their constituents. Such meandering districts often require the representative to represent communities of diverse interests, are inconven5 The Apportionment Act of 1850, ch. 11, 9 Stat. 433, eliminated

the provision requiring election by districts, but this provision

was restored twelve years later in the Apportionment Act of

1862, ch. 170, 12 Stat. 572.

22

ient for voters, and make it far more difficult for candidates and members to become familiar with the issues that matter to their constituents. Thus, requirements that preserve political subdivisions serve independent values, including facilitation of political organization, electoral campaigning, and constituent

representation. See Karcher v. Daggett, 462 U.S. 725,

756 (1983) (Stevens, J., concurring); see also Prosser

v. Election Bd., 793 F. Supp. 859, 863 (W.D. Wis.

1992) (three-judge court per curiam).

Congressional representatives are elected to “represent people” and “not trees or acres,” Reynolds, 377

U.S. at 562, but people participate in our political process through group action. Legislators represent not

only individuals, but also the interests of organized

and unorganized associations of individuals. If members of a legislature become uncoupled from specific

political subdivisions, their bonds to identifiable interests are lessened. Legislative members cast free of

the responsibility for specific communities of interest

become more vulnerable to the influence of special, or

single, interest groups. This is why respect for communities of interest remains an important districting

principle in the modern age of technology when communities can take many forms. Subordinating traditional districting principles to race, and thereby creating a § 2 “district” that departs from the traditional

common understanding of a district, would risk depriving those voters of these benefits of traditional

districting.

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C. The District Court’s Use Of Mathematical

Measurements Of District Compactness

To Evaluate Plaintiffs’ Illustrative Benchmark Districts Illustrates The Limitations

Of Those Metrics.

As part of the district court’s “compactness” analysis under Gingles, the court credited mathematical

measurements of the compactness of Plaintiffs’ various illustrative remedial plans. The court’s use of

these measurements reveals weaknesses in those

metrics that underscore the importance of relying on

traditional districting principles for the Gingles compactness analysis.

In its compactness analysis, the district court began with a review of mathematical compactness

measures using “an average Polsby-Popper metric,”

MSA167, which is a statewide calculation (i.e., the average Polsby-Popper score of all the districts in a

given plan). The Polsby-Popper score is a ratio “comparing a region’s area to its perimeter,” and is expressed as a score from 0 to 1 with higher scores being

ranked as more compact. MSA63.

Looking at the illustrative remedial plans submitted by both the Milligan and Caster plaintiffs, the

court concluded that the plans as a whole were more

compact than Alabama’s enacted 2021 congressional

plan using the Polsby-Popper metric. MSA167–68.

The court also credited Dr. Duchin’s testimony that

her remedial plans’ least compact districts, Districts

1 and 2, were “comparable to or better than the least

compact plans” in the 2021 plan or the 2011 plan.

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MSA167. Therefore, the court concluded, “based on

statistical scores of geographic compactness, each set

of Section Two plaintiffs has submitted remedial

plans that strongly suggest that Black voters in Alabama are sufficiently numerous and reasonably compact to comprise a second majority-Black congressional district.” MSA168.

But those metrics add little value to the compactness inquiry. To begin, Plaintiffs used these tools to

measure the shape of their illustrative remedial plans

and not the shape of Alabama’s Black community,

which is the relevant inquiry for Gingles. LULAC, 548

U.S. at 433; Bush, 517 U.S. at 997.

Second, statewide average compactness measures

(or a comparison between the “least compact” districts

among two plans) are not probative of the compactness of the proposed illustrative majority-minority

district. It is unclear how the compactness of districts

far from the Black Belt or Mobile County inform the

“compactness” of the Black population residing in

those regions. Nor is a statewide approach consistent

with the intensely local nature of Section 2, which requires a remedy in the location of the injury and not

elsewhere. See, e.g., Shaw II, 517 U.S. at 917 (“The

vote-dilution injuries suffered by these persons are

not remedied by creating a safe majority-black district somewhere else in the State.”); LULAC, 548 U.S.

at 429 (“The Court has rejected the premise that a

State can always make up for the less-than-equal opportunity of some individuals by providing greater opportunity to others.”). Looking at an average allows

25

more compact districts in a different portion of the

state to mask uncompact districts elsewhere.

Third, mathematical models of district compactness have methodological limitations and are often internally inconsistent. As one recent article put it,

“scholars have shown that in fact compactness is a

complicated multidimensional concept and have offered almost 100 different features of it.” Aaron R.

Kaufman, Gary King, Mayya Komisarchik, How To

Measure Legislative District Compactness If You Only

Know It When You See It, 65 Am. J. Poly. Sci. 533, 534

(July 2021). And the calculations given by these

mathematical measurements can vary widely and be

internally inconsistent; in their study, the paper’s authors “estimate[d] that in our collection of 17,896

state legislative and congressional districts..., there

exist 162 trillion sets of four districts such that every

one of the seven measures [of compactness] provides

a unique rank order.” Id. at 536.

The same is true of the compactness measurements

the district court relied on in this case. Dr. Duchin,

Milligan Plaintiffs’ expert, reported the following

statewide measures of district compactness for her

four remedial plans and for Alabama’s enacted plan:

26

SJA29 at Tbl. 2. Under her three metrics, Alabama’s

enacted plan was the most compact using the Reock

measure, scored second-best on the “block cut edges”

score, and was less compact than all four of her proposed remedial plans on the Polsby-Popper score. Id.

Attempts to use these measurements, given their volatility and inconsistency, simply invite more uncertainty and litigation—the “devil lurks precisely in

such details.” Vieth v. Jubelirer, 541 U.S. 267, 296

(2004).

These mathematical measurements also obscured,

rather than captured, the fact that Plaintiffs’ illustrative remedial plans created a district that stretched

from Mississippi to Georgia, a distance of 250 miles,

to combine disparate communities of voters. Common

sense illustrates that this district is little more “compact” than the sprawling districts condemned in

Shaw II and LULAC.

Courts should accordingly be cautious when relying

on these measures of compactness for evaluating Gingles compactness. Computer technology has advanced

in the past decade to permit computers to draw millions of possible maps of a state like Alabama to look

for maps that combine populations without the need

to resort to “tentacles” or other geographic features

27

that historically have been hallmarks of a racial gerrymander. But the real Gingles compactness inquiry

is not focused on “style points,” LULAC, 548 U.S. at

434, that mathematical compactness measures attempt to model. Overreliance on these measures risks

missing the forest for the trees, and risks reducing the

compactness element to a math problem. But see id.

at 435 (“The mathematical possibility of a racial bloc

does not make a district compact.”). Just because

mathematical measurements of compactness can be

easily obtained does not mean that they should override adherence to traditional redistricting criteria.

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CONCLUSION

For the foregoing reasons, the Lawyers Democracy

Fund respectfully requests that this Court reverse the

district court’s decision below, and provide state legislatures a clear legal standard for discharging their

responsibilities under the Fourteenth Amendment

and Section 2 of the Voting Rights Act.

Respectfully submitted,

EFREM MARSHALL BRADEN

Counsel of Record

PATRICK T. LEWIS

BAKER & HOSTETLER LLP BAKER & HOSTETLER LLP

1050 Connecticut Ave., N.W.

127 Public Square

Suite 1100

Suite 2000

Washington, D.C. 20036

Cleveland, Ohio 44114

(202) 861-1711

(216) 621-0200

mbraden@bakerlaw.com

MAY 2022