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,

ALABAMA SECRETARY OF STATE, ET AL.,

Appellants,

v.

EVAN MILLIGAN, ET AL.,

Appellees.

_____________

JOHN H. MERRILL,

ALABAMA SECRETARY OF STATE, ET AL.,

Petitioners,

v.

MARCUS CASTER, ET AL.,

_____________

Respondents.

ON APPEAL FROM AND WRIT OF CERTIORARI TO THE

U NITED S TATES D ISTRICT C OURT

FOR THE N ORTHERN D ISTRICT OF A LABAMA

_____________

BRIEF OF CITIZENS UNITED, CITIZENS

UNITED FOUNDATION, AND THE

PRESIDENTIAL COALITION AS AMICI CURIAE

IN SUPPORT OF APPELLANTS AND

PETITIONERS

_____________

BRADLEY A. BENBROOK

Counsel of Record

STEPHEN M. DUVERNAY

Benbrook Law Group, PC

701 University Ave., Ste. 106

Sacramento, California 95825

(916) 447-4900

brad@benbrooklawgroup.com

Counsel for Amici Curiae

TABLE OF CONTENTS

TABLE OF AUTHORITIES ............................................ ii

INTEREST OF AMICI CURIAE.................................... 1

SUMMARY OF ARGUMENT .......................................... 3

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

I. This Case Highlights How §2’s Remedial VoteDilution Concepts Make No Sense When Minority

Voters Are Geographically Dispersed And

Increasingly Integrated – There Is Nothing To

Remedy ............................................................................ 4

A. It Was Difficult For Plaintiffs To Draw Two

Majority-Black Districts Because Alabama’s

Black Voters Are Geographically Dispersed

Throughout The State ............................................. 7

B. Alabama’s Counties and Cities Have Steadily

Become More Integrated, Which Properly Makes

Vote-Dilution Claims More Anachronistic .......... 10

II. This Case Also Provides The Court An Opportunity

To Reiterate That § 2’s Language Really Does Mean

That Proportionate Representation Is Not Required

And Therefore Should Not Factor So Prominently In

Lower Court Litigation ............................................... 17

CONCLUSION ................................................................. 22

(i)

TABLE OF AUTHORITIES

Cases

Belk v. Charlotte-Mecklenburg Bd. of Educ.,

269 F.3d 305 (4th Cir. 2001) ...........................................11

Brnovich v. Democratic Nat’l Comm.,

141 S. Ct. 2321 (2021) ......................................................18

Chisom v. Roemer,

501 U.S. 380 (1991) ............................................................4

Coalition to Save Our Child. v. State Bd. of Educ.

of State of Del.,

90 F.3d 752 (3d Cir. 1996)...............................................11

Holder v. Hall,

512 U.S. 874 (1994) ..............................................16, 20, 21

Holloway v. City of Virginia Beach,

531 F. Supp. 3d 1015 (E.D. Va. 2021) ...........................11

Johnson v. De Grandy,

512 U.S. 997 (1994) ..........................................................19

League of United Latin Am. Citizens v. Perry,

548 U.S. 399 (2006) ................................................... 18–19

Miller v. Johnson,

515 U.S. 900 (1995) ..........................................................19

Mobile v. Bolden,

446 U.S. 55 (1980) ..............................................................3

Shaw v. Reno,

509 U.S. 630 (1993) ........................................16–17, 19, 20

Shelby County v. Holder,

570 U.S. 529 (2013) ..........................................................10

South Carolina v. Katzenbach,

383 U.S. 301 (1966) ............................................................4

(ii)

Thornburg v. Gingles,

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

Wright v. Rockefeller,

376 U.S. 52 (1964) ............................................................16

Statutes

52 U.S.C. § 10301(b) ....................................................4, 5, 18

Other Authorities

2021 Alabama Congressional Plan, Plan

Components with Population Detail, Dkt. 83-21,

Milligan v. Merrill, No. 2:21-cv-01530-AMM

(N.D. Ala. Dec. 27, 2021) ......................................... 12–13

Alabama Legislature, State of Alabama 2021

Redistricting Maps, https://2021-redistrictingplans-algeohub.hub.arcgis.com/ ....................................10

Briffault, Book Review, Lani Guinier and the

Dilemmas of American Democracy, The Tyranny

of the Majority: Fundamental Fairness in

Representative Democracy, 95 Colum. L. Rev.

418 (1995)..........................................................................15

Carstarphen, The Single Transferable Vote:

Achieving the Goals of Section 2 Without

Sacrificing the Integration Ideal, 9 Yale L. &

Pol’y Rev. 405 (1991) .......................................................14

Diversity & Disparities, Spatial Structures in the

Social Sciences, Brown Univ., Residential

Segregation, Index of Dissimilarity,

https://bit.ly/3xDKGRb. ...........................................11, 13

Engstrom, The Single Transferable Vote: An

Alternative Remedy for Minority Vote Dilution,

27 U.S.F. L. Rev. 779 (1993) ..........................................15

(iii)

FRED, Fed. Reserve Bank of St. Louis, Racial

Dissimilarity Index: Alabama,

https://bit.ly/3MC0IPV ...................................................12

Karlan, Maps and Misreadings: The Role of

Geographic Compactness in Racial Vote Dilution

Litigation, 24 Harv. C.R.-C.L. L. Rev. 173 (1989) ......19

Karlan, Our Separatism? Voting Rights As an

American Nationalities Policy, 1995 U. Chi.

Legal F. 83 (1995)............................................................15

Mulroy, Alternative Ways Out: A Remedial Road

Map for the Use of Alternative Electoral

Systems as Voting Rights Act Remedies, 77 N.C.

L. Rev. 1867 (1999) ..........................................................16

Richie & Spencer, The Right Choice for Elections:

How Choice Voting Will End Gerrymandering

and Expand Minority Voting Rights, from City

Councils to Congress, 47 U. Richmond L. Rev.

959 (2013)................................................................... 15–16

Stephanopoulos, Civil Rights in A Desegregating

America, 83 U. Chi. L. Rev. 1329 (2016).............6, 14, 15

U.S. Census Bureau, Housing Patterns: Appendix

B: Measures of Residential Segregation,

https://bit.ly/3L2x31T .....................................................11

U.S. Census Bureau, Race and Ethnicity in the

United States: 2010 Census and 2020 Census

(Aug. 12, 2021),

https://www.census.gov/library/visualizations/int

eractive/race-and-ethnicity-in-the-united-state2010-and-2020-census.html. .............................................9

(iv)

U.S. Dep’t of Commerce, Bureau of the Census,

1980 Census of Population, General Population

Characteristics (North Carolina) (June 1982) ........ 9–10

U.S. Dep’t of Commerce, Bureau of the Census,

1980 Population and Number of Representatives

by State (Dec. 31, 1980) ....................................................8

U.S. Dep’t of Commerce, U.S. Census Bureau,

Apportionment of Seats in the U.S. House of

Representatives and Average Population Per

Seat: 1910 to 2020 (Apr. 26, 2021) ...................................8

(v)

In the Supreme Court of the United States

_____________

Nos. 21-1086 & 21-1087

JOHN H. MERRILL,

ALABAMA SECRETARY OF STATE, ET AL.,

Appellants,

v.

EVAN MILLIGAN, ET AL.,

Appellees.

_____________

JOHN H. MERRILL,

ALABAMA SECRETARY OF STATE, ET AL.,

Petitioners,

v.

MARCUS CASTER, ET AL.,

_____________

Respondents.

ON APPEAL FROM AND WRIT OF CERTIORARI TO

THE U NITED S TATES D ISTRICT C OURT

FOR THE N ORTHERN D ISTRICT OF A LABAMA

_____________

BRIEF OF CITIZENS UNITED, CITIZENS

UNITED FOUNDATION, AND THE

PRESIDENTIAL COALITION AS AMICI

CURIAE IN SUPPORT OF APPELLANTS AND

PETITIONERS

_____________

1

INTEREST OF AMICI CURIAE 1

Citizens United and Citizens United Foundation are

dedicated to restoring government to the people through

a commitment to limited government, federalism, individual liberties, and free enterprise. Amici regularly participate as litigants (e.g., Citizens United v. Fed. Election

Comm’n, 558 U.S. 310 (2010)) and amici in important cases

in which these fundamental principles are at stake.

Citizens United is a nonprofit social welfare organization exempt from federal income tax under Internal Revenue Code (“IRC”) section 501(c)(4). Citizens United

Foundation is a nonprofit educational and legal organization exempt from federal income tax under IRC section

501(c)(3). These organizations were established to, among

other things, participate in the public policy process, including conducting research, and informing and educating the public on the proper construction of state and federal constitutions, as well as statutes related to the rights

of citizens, and questions related to human and civil rights

secured by law.

The Presidential Coalition, LLC is an IRC section 527

political organization that was founded to educate the

American public on the value of having principled conservative Republican leadership at all levels of govern-

1. No counsel for a party authored any part of this brief. And no one

other than the amicus or their members or counsel financed the

brief’s preparation or submission. The parties have filed blanket consents to the filing of this brief and their letters of consent are on file

with the Clerk.

2

ment, and to support the election of conservative candidates to state and local government and the appointment

of conservatives to leadership positions at the federal and

state level in order to advance conservative public policy

initiatives.

3

SUMMARY OF ARGUMENT

Two demographic realities of Alabama illustrate why

it was so “hard” for plaintiffs’ experts to draw two majority-black districts out of seven in Alabama, and thus why

§ 2 cannot possibly give plaintiffs the relief they seek under Thornburg v. Gingles, 478 U.S. 30 (1986). This case is

nothing like the paradigm vote-dilution scenario described in Gingles, and it provides the Court a valuable

opportunity to reorient lower courts and litigators to both

the text of § 2 and the facts required to satisfy Gingles’

compactness precondition.

First, Alabama’s concentrations of black populations

are dispersed throughout the state, and none of those concentrations are, by themselves, nearly populous enough to

constitute a majority in a congressional district of nearly

720,000. Alabama’s effort to divide 5 million residents into

only seven congressional districts contrasts sharply with

North Carolina’s efforts to draw state legislative lines for

populations that were roughly 90% smaller per seat – and

where contiguous concentrations of black voters in those

comparatively tiny districts constituted majorities.

Second, Alabama has become steadily more integrated over the years. Alabama, like the rest of the Nation, is much different than it was in 1980, when Mobile v.

Bolden, 446 U.S. 55 (1980), spawned the 1982 amendment

to § 2 and set in motion 40 years of vote-dilution litigation.

As Gingles explained, the §2 remedy is potentially available when populations are compact and insular – no remedy is needed when a population is integrated. Indeed, integration should be celebrated as a civil-rights victory, but

4

partisan § 2 scholars and litigators perversely decry integration as a “problem” that gets in the way of their political goals.

Finally, the record in this case underscores the importance of reorienting § 2 litigators and lower courts who

fixate on proportionate representation for minority

groups as their touchstone. This must stop. The text of the

Voting Rights Act expressly states that “nothing” in § 2

“establishes 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). But that principle was lost

on the lower court, with predictable results.

Alabama did not violate § 2 by failing to create a second majority-black congressional district.

ARGUMENT

I. This Case Highlights How §2’s Remedial VoteDilution Concepts Make No Sense When Minority

Voters Are Geographically Dispersed And

Increasingly Integrated – There Is Nothing To

Remedy.

Section 2 is a remedial statute. Chisom v. Roemer, 501

U.S. 380, 403 (1991); South Carolina v. Katzenbach, 383

U.S. 301, 315 (1966). As such, it is designed to thwart efforts that make “the political process[] . . . not equally

open to participation by” minority voters “in that [they]

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

representatives of their choice.” 52 U.S.C. § 10301(b).

And, critically, “nothing” in § 2 “establishes a right to have

5

members of a protected class elected in numbers equal to

their proportion in the population.” Id.

In vote-dilution claims under section 2, the Gingles

preconditions flow from the remedial purpose of the statute: they weed out claims that otherwise-fair line-drawing

– that is, line drawing that has not taken race into account

in order to limit minority participation in the political process – has denied them political results that they prefer.

478 U.S. at 50–51.

This case highlights the importance of the Gingles I

compactness factor: the minority group must be “sufficiently large and geographically compact to constitute a

majority in a single-member district.” Id. at 50. The Court

explained that the absence of this “sufficient” concentration of minority voters, “as would be the case in a substantially integrated district,” means that the political practice

“cannot be responsible for minority voters’ inability to

elect its candidates.” Id.

The Court explained in note 17 that a vote-dilution theory simply doesn’t make sense in the absence of contiguous concentrations of a sufficient size to constitute a majority in a district:

The reason that a minority group making such a

challenge must show . . . that it is sufficiently large

and geographically compact to constitute a majority in a single-member district is this: Unless minority voters possess the potential to elect representatives in the absence of the challenged structure or practice, they cannot claim to have been injured by that structure or practice. The single-

6

member district is generally the appropriate

standard against which to measure minority group

potential to elect because it is the smallest political

unit from which representatives are elected. Thus,

if the minority group is spread evenly throughout

a multimember district, or if, although geographically compact, the minority group is so small in relation to the surrounding white population that it

could not constitute a majority in a single-member

district, these minority voters cannot maintain that

they would have been able to elect representatives

of their choice in the absence of the multimember

electoral structure.

478 U.S. at 50 n.17 (emphasis in original). See also Stephanopoulos, Civil Rights in A Desegregating America, 83

U. Chi. L. Rev. 1329, 1334 (2016) (under Gingles, “Geographic compactness is almost a synonym for geographic

segregation”); see also id. at 1334–35 & 1379–80 (discussing the relationship between geographic compactness and

residential segregation).

The facts in Gingles are important and instructive

here. That case involved a challenge to North Carolina’s

state legislative redistricting scheme. Plaintiffs alleged

that North Carolina violated § 2 by improperly submerging pockets of black voters in five multi-member state

house legislative districts and one multi-member state

7

senate district (i.e., a collection of at-large legislative districts). Id. at 34–35.2 The district court found that “at the

time the multimember districts were created, there were

concentrations of black citizens within the boundaries of

each that were sufficiently large and contiguous to constitute effective voting majorities in single-member districts

lying wholly within the boundaries of the multi-member

districts.” Id. at 38 (emphasis added). It bears repeating:

The concentrations of black citizens that could form a majority in a district were themselves contiguous.

The numbers tell a very different story here. Two demographic realities of Alabama illustrate why it was so

“hard” for plaintiffs’ experts to draw two majority-black

districts out of seven in Alabama, JA714,3 and thus why §

2 cannot possibly give plaintiffs the relief they seek under

Gingles.

A. It Was Difficult For Plaintiffs To Draw Two

Majority-Black Districts Because Alabama’s

Black Voters Are Geographically Dispersed

Throughout The State.

Alabama’s disparate concentrations of black voters do

not resemble the concentrations of North Carolina’s black

voters submerged within the multi-member districts in

2

Plaintiffs also challenged a single-member state senate district

on a “cracking” theory, alleging that a sufficiently large and geographically compact concentration of black voters had been split

across two adjoining single-member districts. 478 U.S. at 38.

In the words of the Milligan Plaintiffs’ expert Dr. Moon Duchin,

the fact “that it is hard to draw two majority-black districts by accident shows the importance of doing so on purpose.” JA714.

3

8

Gingles because each of the various concentrations of

black populations is not nearly populous enough to create

a majority-black district. In Gingles, North Carolina was

apportioning its nearly 6 million residents into 120 state

house seats (roughly 50,000 residents per seat) and 50

state senate seats (roughly 120,000 residents per seat).

U.S. Dep’t of Commerce, Bureau of the Census, 1980 Population and Number of Representatives by State, p. 2

(Dec. 31, 1980) (North Carolina’s population basis for apportionment 5,874,429); Gingles, 478 U.S. at 40 (discussing number of seats in the North Carolina General Assembly).

Here, by stark contrast, Alabama is apportioning its 5

million residents into only seven congressional seats

(nearly 718,000 residents per seat). U.S. Dep’t of Commerce, U.S. Census Bureau, Apportionment of Seats in

the U.S. House of Representatives and Average Population Per Seat: 1910 to 2020 (Apr. 26, 2021); see SJA87–88.

Alabama’s urban black voters are mostly located in

three counties that form the three points of a triangle in

the state: Jefferson County to the north (in and around

Birmingham), Mobile County 250 miles to the southwest,

and Montgomery County 175 miles from Mobile (and 90

miles from Birmingham) to the southeast.

Of these three counties, only Montgomery County is

majority-black – with 134,029 of the county’s 228,954 residents (58.5%) identifying as Black or African American

in the 2020 Census – but the county’s total population is

not nearly large enough to constitute an entire congressional district. Jefferson County is Alabama’s largest with

9

674,721 residents (42.9% black). Mobile is the second largest (414,809 residents; 36.8% black).4

Alabama’s rural black voters are predominantly located in the 18 counties making up the so-called “Black

Belt” – a narrow row of counties stretching west to east

across the southern third of the state. But the total population of the 18 Black Belt counties (including Montgomery County) is only 562,358 – again, not nearly enough for

its own congressional district (despite comprising 18 of 67

counties).

Indeed, given this lack of concentration, Alabama’s

proposed majority District 7 reaches far to the northeast

to gather black residents in Birmingham, and sweeps far

to the east to gather black residents in Montgomery

County. JA99.

Drawing seven districts in this population is an entirely different exercise than what occurred when North

Carolina submerged contiguous concentrations of black

voters in legislative races whose per-seat populations

were 93% smaller (in the case of the house) and 83%

smaller (in the case of the senate). With a black population

of 22.4% in 1980 North Carolina, it’s no wonder the courts

found that North Carolina’s failure to draw more majority-minority districts constituted vote dilution. U.S. Dep’t

4

Population data in this section is obtained from the interactive

data visualization tool on the Census Bureau’s website. U.S. Census

Bureau, Race and Ethnicity in the United States: 2010 Census and

2020 Census (Aug. 12, 2021), https://www.census.gov/library/visualizations/interactive/race-and-ethnicity-in-the-united-state-2010-and2020-census.html.

10

of Commerce, Bureau of the Census, 1980 Census of Pop-

ulation, General Population Characteristics (North Carolina), p. 14 (June 1982). And here it’s no wonder that, as

plaintiffs’ own experts confirmed, it’s impossible to draw

two majority-minority districts unless race is the “non-negotiable” top priority. MSA213–14; MSA60–61.5

B. Alabama’s Counties and Cities Have Steadily

Become More Integrated, Which Properly Makes

Vote-Dilution Claims More Anachronistic.

Nine years ago, in Shelby County v. Holder, involving

one Alabama county’s challenge to § 4 of the Voting

Rights Act, the Court noted that “things have changed

dramatically” since the VRA’s passage; namely, the “conditions justifying [Section 5’s preclearance] requirement

have dramatically improved.” 570 U.S. 529, 547, 550

(2013). Alabama in 2022 is different than it was in 2013,

and it is even more different than it was in 1980 when the

Court decided Mobile v. Bolden, the decision that

spawned the 1982 amendments to § 2. Among other

things, Alabama is more integrated, which has massive

consequences for vote-dilution claims, particularly given

the geography and math set out above.

5

By the same token, Alabama’s proposed statehouse maps have 27

of 105 house seats with majority black districts (plus one that’s 49.72%

black), and 8 of 35 senate seats with majority black districts. Alabama

Legislature, State of Alabama 2021 Redistricting Maps, https://2021redistricting-plans-algeohub.hub.arcgis.com/ (authors’ calculation

based on data exported for Alabama’s 2021 districting plans).

11

Demographic data reveal a multi-decade pattern of

decreasing racial segregation in Alabama. One key measure of residential integration is the “dissimilarity index,”

which is the “most widely used measure of evenness”

among populations. U.S. Census Bureau, Housing Patterns: Appendix B: Measures of Residential Segregation,

https://bit.ly/3L2x31T (“Housing Patterns”). Courts have

relied on dissimilarity index measurements in § 2 cases,

e.g., Holloway v. City of Virginia Beach, 531 F. Supp. 3d

1015 (E.D. Va. 2021), and school desegregation cases, e.g.,

Belk v. Charlotte-Mecklenburg Bd. of Educ., 269 F.3d

305, 320 (4th Cir. 2001); Coalition to Save Our Child. v.

State Bd. of Educ. of State of Del., 90 F.3d 752, 761–62 &

n.7 (3d Cir. 1996).

“Conceptually, dissimilarity measures the percentage

of a group’s population that would have to change residence for each neighborhood to have the same percentage

of that group as the metropolitan area overall.” Housing

Patterns, supra. The measure ranges from 0 to 100, where

“[a] high value indicates that the two groups tend to live

in different [census] tracts. . . . A value of 60 (or above) is

considered very high. It means that 60% (or more) of the

members of one group would need to move to a different

tract in order for the two groups to be equally distributed.

Values of 40 or 50 are usually considered a moderate level

of segregation, and values of 30 or below are considered

to be fairly low.” Diversity & Disparities, Spatial Structures in the Social Sciences, Brown Univ., Residential

Segregation,

Index

of

Dissimilarity,

https://bit.ly/3xDKGRb.

12

Dissimilarity calculations published by the Federal

Reserve Bank of St. Louis show a consistent shift toward

more racial integration in Alabama’s ten most populous

counties over the last decade – every county became more

integrated over the ten-year period:

County

Jefferson

Mobile

Madison

Montgomery

Baldwin

Shelby

Tuscaloosa

Lee

Morgan

Calhoun

2010

63.73

54.18

48.95

51.96

33.82

28.10

52.31

33.42

56.74

46.06

2020

59.95

50.58

42.38

50.36

26.81

27.02

50.71

30.21

51.31

40.00

Source: FRED, Fed. Reserve Bank of St. Louis, Racial

Dissimilarity Index: Alabama, https://bit.ly/3MC0IPV

(calculating dissimilarity index based on percentage of

non-hispanic white population that would have to change

Census tracts to equalize the racial distribution between

white and non-white population groups across all tracts in

the county, based on U.S. Census Bureau American Community Survey data).

To be sure, segregation in Jefferson County (and its

main city Birmingham) remains elevated, and the State’s

majority-black district 7 includes much of Birmingham’s

black population. 2021 Alabama Congressional Plan, Plan

13

Components with Population Detail, Dkt. 83-21, Milligan

v. Merrill, No. 2:21-cv-01530-AMM (N.D. Ala. Dec. 27,

2021), 42–43 & 58 (showing that Jefferson County’s residents are split between districts 6 (380,694 total population, 26.44% black) and 7 (294,027 total population, 61.45%

black)). But no other county has a dissimilarity index of

greater than 51.31, and all ten counties are trending down.

We have not located county-level dissimilarity measurements for prior censuses. But dissimilarity trends in

three of Alabama’s most populous cities reveal a similar

(and even more pronounced) trend over the 30-year period between 1980 and 2010:

City

Birmingham

Montgomery

Mobile

1980

75.2

72

77.6

1990

66.7

67.8

69.1

2000

61.9

61.9

60.9

2010

62.6

54.7

53.9

Source: Diversity & Disparities, Spatial Structures in the

Social Sciences, Brown Univ., Residential Segregation,

Index of Dissimilarity, https://bit.ly/3xDKGRb (accessing

“City Data” to obtain calculation of White-Black/BlackWhite dissimilarity index based on census data).6

6

For the sake of context, we note the following sample of comparably-populated counties outside the South that have 2020 dissimilarity index scores higher than both Montgomery and Mobile Counties:

Providence, RI (53.69); Kane, IL (54.07); Hampden, MA (56.57);

Lake, IN (57.07); Berks, PA (57.41); and Plymouth, MA (65.30). And,

of course, many larger counties outside the South have higher levels,

including: Los Angeles, CA (56.40); Essex, MA (57.95); Cuyahoga, OH

(59.33); Erie, NY (59.70); Milwaukee, WI (61.38); and Bronx, NY

(63.26).

14

Greater racial integration should be celebrated as civil

rights progress, but § 2 litigators don’t see it that way.

Rather, they view integration as a “problem” that gets in

the way of reaching their goal of proportionate representation in each and every political body:

The problems posed by integration are clearest

with respect to Gingles’s first prong. Minority voters who are residentially integrated are the very

opposite of a geographically compact group. In the

Court’s terminology, they are diffuse rather than

“insular,” dilute rather than “concentrated.

Stephanopoulos, supra, 83 U. Chi. L. Rev. at 1384; see also

id. at 1388 (“Residential integration is not one of § 2’s

goals. But minority representation is one of them, and for

all of the reasons discussed above, it is imperiled by desegregation. Lawsuits making possible the election of minority-preferred candidates become ever harder to win as

minority voters grow ever more dispersed.”) (emphasis in

original). As one commentator put it, “[b]y making residential segregation a prerequisite for vote dilution remedies,” Gingles “ created a direct conflict between voting

rights and the integration ideal.” Carstarphen, The Single

Transferable Vote: Achieving the Goals of Section 2 Without Sacrificing the Integration Ideal, 9 Yale L. & Pol’y

Rev. 405, 407 (1991); see also id. at 418 (“Paradoxically,

residential segregation has become a precondition for the

full enjoyment of voting rights.”).

Partisan scholars have long lamented that § 2 creates

tension between integration and maximizing minority voting representation through district line-drawing.

15

Briffault, Book Review, Lani Guinier and the Dilemmas

of American Democracy, The Tyranny of the Majority:

Fundamental Fairness in Representative Democracy, 95

Colum. L. Rev. 418, 430 (1995) (“districting is increasingly

a problematic device for even the election of minority representatives;” “[d]istricting will be effective only in areas

where minority voters are residentially concentrated in

homogeneous territories so that majority-minority districts can be created”); Karlan, Our Separatism? Voting

Rights As an American Nationalities Policy, 1995 U. Chi.

Legal F. 83, 88–89 (1995) (“Even a minority group whose

members all live quite segregated lives . . . can seek relief

through relatively race-neutral remedial districting only

if they live in large ghettoes that form seemingly ‘natural’

districts. Otherwise, smaller minority communities must

be strung together like pearls on a necklace to create a

majority-nonwhite district.”); Stephanopoulos, supra, 83

U. Chi. L. Rev. at 1335 (noting that “desegregation unsettles the [§ 2] doctrine” because where “minority populations are residentially integrated” and “a jurisdiction nevertheless encloses a dispersed minority group within a

single district, then the district probably violates the constitutional ban on racial gerrymandering.”).7

7

Some have argued that the supposed limitations of § 2 as interpreted by the Court (including the geographic compactness requirement) necessitate radical alternative remedies, such as cumulative

voting or “transferable votes.” E.g., Engstrom, The Single Transferable Vote: An Alternative Remedy for Minority Vote Dilution, 27

U.S.F. L. Rev. 779 (1993); Richie & Spencer, The Right Choice for

Elections: How Choice Voting Will End Gerrymandering and Expand

16

Disregarding the reality of increased integration to

serve political ends has significant societal consequences.

Drawing district lines by narrowly focusing on minority

political power rests on a devious presumption: By adhering “to the view that race defines political interest,” the

government “act[s] on the implicit assumption that members of racial and ethnic groups must all think alike on important matters of public policy and must have their own

‘minority preferred’ representatives holding seats in

elected bodies if they are to be considered represented at

all.” Holder v. Hall, 512 U.S. 874, 903 (1994) (Thomas, J.,

concurring in the judgment).

The district court’s decision, in substance and effect,

requires Alabama to enact a “[r]acial electoral register[]”

that “weights votes along one racial line more heavily than

it does other votes.” Wright v. Rockefeller, 376 U.S. 52, 66

(1964) (Douglas, J., dissenting). Make no mistake, divvying up voters by race – under the cover of ensuring minority political power – “is a divisive force in a community,

emphasizing differences between candidates and voters

that are irrelevant in the constitutional sense.” Id. “When

a district obviously is created solely to effectuate the perceived common interests of one racial group, elected officials are more likely to believe that their primary obligation is to represent only the members of that group, rather than their constituency as a whole. This is altogether

Minority Voting Rights, from City Councils to Congress, 47 U. Richmond L. Rev. 959 (2013); Mulroy, Alternative Ways Out: A Remedial

Road Map for the Use of Alternative Electoral Systems as Voting

Rights Act Remedies, 77 N.C. L. Rev. 1867 (1999).

17

antithetical to our system of representative democracy.”

Shaw v. Reno, 509 U.S. 630, 648 (1993).

As the Nation becomes ever more integrated in the

coming decades, § 2 anti-dilution lawsuits over district

line-drawing will presumably (and properly) fade away.

The 2021 plan has one majority-black district – District 7

– which continues to include parts of Birmingham and

Montgomery, just as it has done each redistricting cycle

since 1990 (including while it was subject to § 5 preclearance in 2000 and 2010). Considering the increase in integration over that same time period (not to mention the

continuing dispersion throughout the state of concentrations of black populations), it is simply impossible that § 2

somehow now requires the creation of two majority-black

districts.

II. This Case Also Provides The Court An Opportunity

To Reiterate That § 2’s Language Really Does Mean

That Proportionate Representation Is Not Required

And Therefore Should Not Factor So Prominently In

Lower Court Litigation.

The district court expressly relied on proportional

representation arguments to bolster its ruling that Alabama’s congressional maps violated § 2.

Specifically, the court observed that black Alabamans

were underrepresented in comparison to their share of

the total population in that they comprise 27% of the

state’s population, but the districting plan only provided

them “meaningful influence” over 14% of congressional

seats (i.e., 1 of 7 districts). MSA204. Sticking with its fixation on direct proportionality, the court found that white

18

Alabamans were overrepresented because they comprise

63% of the state’s population but 86% of congressional districts (6 of 7) were majority white. Id. In the district

court’s view, even a second majority-black seat would not

remedy the proportionality problem “because 71.5% of

congressional districts would be majority-white” – a result the district court found anomalous because “the share

of Alabama’s population that is white . . . has decreased

substantially in the nearly thirty years since [Wesch v.

Hunt, 75 F. Supp. 1491 (S.D. Ala. 1992)] ordered one majority-Black district.” Id.; see also SJA33, Dec. 14, 2021,

Decl. of Moon Duchin, Ph.D., Ex. 1 at 10 (plaintiffs’ expert

witness report claiming that “[p]roportionality for the

White non-Hispanic population in Alabama would amount

to roughly 4.5 out of 7 seats in Congress, but the State’s

map would lock in fully 6 out of 7 seats for White-preferred candidates – a massively super-proportional showing”).

In Brnovich v. Democratic National Committee, the

Court reoriented lower courts away from indulging the

“radical project” of treating § 2 as a disparate-impact statute and toward § 2’s actual language, 141 S. Ct. 2321,

2336–38, 2341 (2021). The same reorienting is needed

here. § 2 expressly states that “nothing in this section establishes a right to have members of a protected class

elected in numbers equal to their proportion in the population.” 52 U.S.C § 10301(b). Yet the parties and the district court here took proportionality as its guidepost.

Even granting that proportionality may be “‘a relevant fact in [Section 2’s] totality of circumstances’” analysis, League of United Latin Am. Citizens v. Perry, 548

19

U.S. 399, 436 (2006) (citing Johnson v. De Grandy, 512

U.S. 997, 1000 (1994)), it must not be allowed to assume

the prominent role it played here. “[P]lacing undue emphasis upon proportionality risks defeating the goals underlying the Voting Rights Act” and “tend[s] to entrench

the very practices and stereotypes the Equal Protection

Clause is set against.” De Grandy, 512 U.S. at 1028, 1029

(Kennedy, J., concurring in part).

And there is good reason for courts to be cautious

when relying on notions of proportionality to justify the

creation of unusual districts that cast aside compactness

and contiguity, disrespect political subdivisions, and cross

community lines to serve a racial end. See Miller v. Johnson, 515 U.S. 900, 916 (1995). On that score, Gingles’

threshold requirements impose important limitations

where, as here, residential integration and geographic

dispersion combine to result in a districting plan where

proportional representation is not possible unless race is

the predominant factor in the redistricting process. See

Gingles, 478 U.S. at 50 n.17; see also Karlan, Maps and

Misreadings: The Role of Geographic Compactness in Racial Vote Dilution Litigation, 24 Harv. C.R.-C.L. L. Rev.

173, 178–79 (1989) (“[R]equirements of geographic compactness provide a way to assess claims of racial vote dilution that need not devolve ultimately into a simple measure of proportionality. They thus offer courts an opportunity to avoid the tension, implicit in Section 2, between

the rejection of proportional representation and the focus

on the number of minority elected officials.”).

But here, the district court countenanced precisely the

sort of “[r]acial gerrymandering” that “balkanize[s] us

20

into competing racial factions [and] threatens to carry us

further from the goal of a political system in which race

no longer matters.” Shaw, 509 U.S. at 657. The proposed

remedy is a map designed to hit a “non-negotiable” racial

target – a target that plaintiffs’ own experts were unable

to meet when generating millions of race-neutral alternatives. This is nothing less than racial engineering that

“should be repugnant to any nation that strives for the

ideal of a color-blind Constitution.” Holder, 512 U.S. at

905–06 (1994) (Thomas, J., concurring in the judgment).

As the Court observed in Shaw v. Reno,

A reapportionment plan that includes in one district individuals who belong to the same race, but

who are otherwise widely separated by geographical and political boundaries, and who may have little in common with one another but the color of

their skin, bears an uncomfortable resemblance to

political apartheid. It reinforces the perception

that members of the same racial group—regardless of their age, education, economic status, or the

community in which they live—think alike, share

the same political interests, and will prefer the

same candidates at the polls. . . . By perpetuating

such notions, a racial gerrymander may exacerbate the very patterns of racial bloc voting that majority-minority districting is sometimes said to

counteract.

509 U.S. at 647–48.

21

Drawing electoral lines on the basis of race is a pernicious enterprise that is antithetical not only to the spirit

of the VRA but to the Fourteenth Amendment’s guarantees. Nearly three decades ago, Justice Thomas presaged

the result achieved below when he wrote: “[O]ur voting

rights decisions are rapidly progressing toward a system

that is indistinguishable in principle from a scheme under

which members of different racial groups are divided into

separate electoral registers and allocated a proportion of

political power on the basis of race. Under our jurisprudence, rather than requiring registration on racial rolls

and dividing power purely on a population basis, we have

simply resorted to the somewhat less precise expedient of

drawing geographic district lines to capture minority populations and to ensure the existence of the ‘appropriate’

number of ‘safe minority seats.’” Holder, 512 U.S. at 906

(Thomas, J., concurring in the judgment).

Alabama did not violate § 2 by failing to divide up its

seven congressional seats to assure proportionate racial

representation.

22

CONCLUSION

The decision below should be reversed.

Respectfully submitted.

BRADLEY A. BENBROOK

Counsel of Record

STEPHEN M. DUVERNAY

Benbrook Law Group, PC

701 University Ave., Ste. 106

Sacramento, California 95825

(916) 447-4900

brad@benbrooklawgroup.com

May 2, 2022

Counsel for Amici Curiae