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

Nos. 21-1086 & 21-1087

In the Supreme Court of the United States

__________________

JOHN H. MERRILL, ET AL.,

Appellants,

v.

EVAN MULLIGAN, ET AL.,

Appellees.

______________________

JOHN H. MERRILL, ET AL.,

Petitioners,

v.

MARCUS CASTER, ET AL.,

Respondents.

__________________

On Appeal from and on Writ of Certiorari to the United States

District Court for the Northern District of Alabama

__________________

AMICI CURIAE BRIEF OF THE STATES OF

LOUISIANA, ARIZONA, ARKANSAS, GEORGIA,

INDIANA, MISSOURI, MISSISSIPPI, MONTANA,

NEBRASKA, OKLAHOMA, SOUTH CAROLINA,

TEXAS, UTAH AND WEST VIRGINIA IN SUPPORT

OF APPELLANTS/PETITIONERS

__________________

JEFF LANDRY

Attorney General

ELIZABETH B. MURRILL*

Solicitor General

*Counsel of Record

SHAE MCPHEE

Deputy Solicitor General

Louisiana Department of Justice

1885 N. Third Street

Baton Rouge, LA 70802

(225) 326-6766

murrille@ag.louisiana.gov

Counsel for Amici Curiae

TABLE OF CONTENTS

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

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

INTRODUCTION AND SUMMARY OF

ARGUMENT ........................................................ 2

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

I.

THE COURT SHOULD NOT ALLOW VOTE

DILUTION

CLAIMS

TO

MANDATE

PROPORTIONAL REPRESENTATION. ................. 4

II. THE DISTRICT COURT’S INTERPRETATION

OF SECTION 2 DISCOUNTS KEY EVIDENCE

EFFECTIVELY

MANDATES

AND

PROPORTIONAL REPRESENTATION. ................. 8

III. EVEN IF SECTION 2 IS AMBIGUOUS, THE

COURT SHOULD REJECT THE DISTRICT

COURT'S INTERPRETATION ............................ 11

CONCLUSION ......................................................... 12

ii

TABLE OF AUTHORITIES

CASES

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

137 S. Ct. 788 (2017) ................................................ 2

Clark v. Martinez,

543 U.S. 371 (2005) ................................................ 11

Cooper v. Harris,

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

Georgia v. Ashcroft,

539 U.S. 461 (2003) .............................................. 4, 7

Gonzalez v. City of Aurora, Illinois,

535 F.3d 594 (7th Cir. 2008) ........................ 9, 10, 11

Holder v. Hall,

512 U.S. 874 (1994) ........................................ 3, 7, 10

Johnson v. De Grandy,

512 U.S. 997 (1994) .............................................. 6, 7

League of United Latin American Citizens v. Perry,

548 U.S. 399 (2006) .......................................... 4, 5, 6

Merrill v. Milligan,

142 S. Ct. 879 (2022) ................................ 1, 9, 10, 11

Miller v. Johnson,

515 U.S. 900 (1995) ........................................ 1, 7, 11

Mobile v. Bolden,

446 U.S. 55 (1980) .................................................... 5

iii

Plessy v. Ferguson,

163 U.S. 537 (1896) .................................................. 4

Shaw v. Reno,

509 U.S. 630 (1993) .................................................. 5

Thornburg v. Gingles,

478 U.S. 30 (1986) .................................... 2, 3, 5, 6, 8

White v. Regester,

412 U.S. 755 (1973) .................................................. 5

Wisconsin Legislature v. Wisconsin Elections

Comm’n,

142 S. Ct. 1245 (2022) .............................................. 6

STATUTES

52 U.S.C. § 10301(a) .................................................... 7

52 U.S.C. § 10301(b) .......................................... 2, 9, 11

OTHER AUTHORITIES

Chen & Jowei Chen, Nicholas O. Stephanopoulos,

The Race-Blind Future of Voting Rights, 130 Yale

L.J. 862, 878 (2021) ........................................ 3, 7, 10

INTEREST OF AMICI CURIAE

Even at the best of times, “[e]lectoral

districting is a most difficult subject for legislatures.”

Miller v. Johnson, 515 U.S. 900, 915 (1995). Federalcourt review of redistricting “represents a serious

intrusion” on a State’s ability to draw new maps. Id.

Given the delicate nature of the State’s task—and

the interruptive force represented by federal judicial

intervention—one might expect federal redistricting

law to be clear. Not so.

When staying the district court’s orders in this

litigation, several Justices commented upon the

murkiness of this Court’s jurisprudence interpreting

Section 2 of the Voting Rights Act. The Chief Justice

noted

the

“considerable

disagreement

and

uncertainty regarding the nature and contours of a

vote dilution claim.” Merrill v. Milligan, 142 S. Ct.

879, 883 (2022) (Roberts, C.J., dissenting). Justice

Kavanaugh (writing for himself and Justice Alito)

agreed. Id. at 881 (Kavanaugh, J., concurring)

(observing “the Court’s case law in this area is

notoriously unclear and confusing”). Amici States

have pleaded for clarity on these issues. See id.

The district court’s misinterpretation of both

Section 2 and this Court’s precedents only adds to

the confusion. By relying on remedial maps that

prioritize race as a “non-negotiable factor”—

MSA215—the

district

court’s

orders

are

incompatible with the Fourteenth Amendment’s

Equal Protection Clause and Section 2’s express

disclaimer

of

any

right

to

proportional

representation.

2

INTRODUCTION AND SUMMARY

OF ARGUMENT

Under this Court’s precedent, a plaintiff’s vote

dilution claim fails right out of the gate unless a

“minority group” is “sufficiently large and

geographically compact to constitute a majority in a

single-member district.” Thornburg v. Gingles, 478

U.S. 30, 50 (1986). Even if a group can satisfy this

requirement, Section 2 expressly disclaims any right

to

“proportional

representation.”

52

U.S.C.

§ 10301(b) (“[N]othing in this section establishes a

right to have members of a protected class elected in

numbers equal to their proportion in the

population.”); see Gingles, 478 U.S. at 84 (O’Connor,

J., concurring) (observing the “disclaimer was

essential to the compromise that resulted in passage

of the amendment” to Section 2).

Thanks to modern mapmaking technology,

Plaintiffs’ experts were able to generate millions of

illustrative remedial maps—without using race as a

factor. The result? Not one map included two

majority-Black districts. See MSA260–61. In other

words, using only traditional redistricting tools, a

second majority-Black district could not be drawn in

Alabama. MSA261 (“[T]he simulation results suggest

that some awareness of race likely is required to

draw two majority-Black districts.”). Only by

prioritizing race as a “non-negotiable factor” could

Plaintiffs contort the map to fit their claims.

MSA215. Thus, it seems that “race furnished ‘the

overriding reason for choosing one map over others.’”

Cooper v. Harris, 137 S. Ct. 1455, 1469 n.2 (2017)

(quoting Bethune–Hill v. Virginia State Bd. of

Elections, 137 S. Ct. 788, 799 (2017)).

3

According to the district court, it was

permissible for Plaintiffs’ experts to use race as a

non-negotiable factor when drawing their maps

because “the law does not demand zero race

consciousness from a Section Two plaintiff”—

MSA261—and “a Section Two plaintiff either must

place race in precisely the role that Defendants

assail, or fail at the starting gate.” MSA269. But in

the face of overwhelming evidence showing that a

second district could not be drawn without

considering race, the district court’s interpretation of

Section 2 cannot be right. In fairness, this evidence

is derived from modern mapmaking technology that

has developed rapidly over the past decade. Chen &

Jowei Chen, Nicholas O. Stephanopoulos, The RaceBlind Future of Voting Rights, 130 Yale L.J. 862, 878

(2021) (“[M]apmaking methods have advanced in

leaps and bounds over the last ten years.”). That is

no reason to discount it, however.

Moreover, if courts are not careful, vote

dilution claims can devolve into mandates for

proportional representation. See Holder v. Hall, 512

U.S. 874, 903 (1994) (Thomas, J., concurring)

(worrying that the Court’s decision in Gingles

effectively “adopted a rule of roughly proportional

representation, at least to the extent proportionality

[is] possible given the geographic dispersion of

minority populations.”); Chen & Stephanopoulos,

130 Yale L.J. at 872 (“[M]ore than any other

doctrinal factor, [the proportionality benchmark]

sets the level of representation to which minority

voters are legally entitled.”). This Court has

emphasized that “[t]he role of proportionality” is

limited and is meant merely to provide “some

evidence” of whether a section 2 violation occurred.

4

League of United Latin American Citizens v. Perry,

548 U.S. 399, 437 (2006) (LULAC). But if the district

court’s interpretation of Section 2 is correct, and the

statute allows plaintiffs to make race a nonnegotiable factor, then vote dilution claims

essentially mandate proportional representation.

Overreliance on proportionality has the

perverse effect of making race the “predominant

factor in drawing the lines” of a district. Georgia v.

Ashcroft, 539 U.S. 461, 491 (2003) (Kennedy, J.,

concurring). It flatly contravenes the Fourteenth

Amendment’s Equal Protection Clause, which

“removed the race line from our governmental

systems.” Plessy v. Ferguson, 163 U.S. 537, 555

(1896) (Harlan, J., dissenting). The Constitution “is

color-blind”—id. at 559—but the district court’s

interpretation of Section 2 is not.

Instead

of

eradicating

race-based

redistricting, the district court’s order entrenched it.

Rather than complying with Congress’ edict in

Section 2, the district court flouted it. If the district

court’s interpretation of Section 2 is correct, the

statute is unconstitutional.

ARGUMENT

I.

THE COURT SHOULD NOT ALLOW VOTE

DILUTION

CLAIMS

TO

MANDATE

PROPORTIONAL REPRESENTATION.

Knowing how the Court got in the business of

addressing vote dilution claims is helpful to

understanding why the Court should reject the

district court’s interpretation of Section 2—which

would put federal courts in the “sordid business” of

5

“divvying us up by race.” LULAC, 548 U.S. at 511

(Roberts, C.J., concurring in part and dissenting in

part). As an initial matter, it is important to

remember that “redistricting differs from other kinds

of state decisionmaking in that the legislature

always is aware of race when it draws district lines.”

Shaw v. Reno, 509 U.S. 630, 646 (1993). “That sort of

race consciousness” was inescapable, and the Court

concluded it does “not lead inevitably to

impermissible race discrimination.” Id.

Still, the fact that legislatures could consider

race when drawing their maps raised the possibility

that majorities might engage in “vote dilution” or, in

the words of the Court, the “dispersal of [a group’s

members] into districts in which they constitute an

ineffective minority of voters.” Gingles, 478 U.S. at

46, n.11. The Court construed Section 2 of the VRA

to ban vote dilution. See Cooper, 137 S. Ct. at 1464

(citing Gingles, 478 U.S. at 46 n.11).

Eventually, the question arose of how to

identify vote dilution. After this Court employed an

“intent” test in Mobile v. Bolden, 446 U.S. 55, 100

(1980) (plurality op.), Congress amended Section 2 to

codify language from this Court’s prior opinions

requiring a plaintiff bringing a vote dilution claim to

show that the “political processes leading to

nomination and election were not equally open to

participation by the group in question.” White v.

Regester, 412 U.S. 755, 766 (1973); Whitcomb v.

Chavis, 403 U.S. 124 (1971); see Gingles, 478 U.S. at

83 (O’Connor, J., concurring). Importantly, Congress

passed the amendment to Section 2 with a

disclaimer

of

any

right

to

proportional

representation. See id.

6

Making sense of Congress’ mandate proved to

be “not an easy task” for the Court. Gingles, 478 U.S.

at 83 (O’Connor, J., concurring). Justice O’Connor

observed “[t]here is an inherent tension between

what Congress wished to do and what it wished to

avoid.” Id. She worried that “any theory of vote

dilution must necessarily rely to some extent on a

measure of minority voting strength that makes

some reference to the proportion between the

minority group and the electorate at large.” Id.

Sticking with the text of Section 2, this Court

has never interpreted the statute to mandate

proportional representation. But, as part of its

analysis vote dilution claims, the Court considers

“whether the number of districts in which the

minority group forms an effective majority is roughly

proportional to its share of the population in the

relevant area.” LULAC, 548 U.S. at 426; accord

Wisconsin Legislature v. Wisconsin Elections

Comm’n, 142 S. Ct. 1245, 1249 (2022); see Johnson v.

De Grandy, 512 U.S. 997, 1025 (1994) (O’Connor, J.,

concurring) (“[P]roportionality . . . is always relevant

evidence in determining vote dilution, but is never

itself dispositive.”).

This Court should vigorously guard against

proportionality becoming the alpha and omega of

vote dilution claims. Beyond the fact that Section 2

expressly disclaims any right to proportionality,

jurists and scholars have noted other serious

drawbacks associated with overreliance

on

proportionality.

Emphasis on proportionality encourages

legislatures to create districts for minority voters to

elect their preferred candidates—i.e., proportionality

encourages districts to be drawn “on account of race

7

or color.” § 10301(a); see Holder, 512 U.S. at 892

(Thomas, J., concurring) (“[I]n pursuing the ideal

measure of voting strength, we have devised a

remedial mechanism that encourages federal courts

to segregate voters into racially designated districts

to ensure minority electoral success.”). According to

Justice Thomas, mandating proportionality causes

what may “aptly be termed the racial balkanization

of the Nation.” Holder, 512 U.S. at 892 (Thomas, J.,

concurring) (cleaned up)); Chen & Stephanopoulos,

130 Yale L.J. at 873.

Justice Kennedy observed that “placing undue

emphasis upon proportionality risks defeating the

goals underlying the Voting Rights Act.” De Grandy,

512 U.S. at 1028 (Kennedy, J., concurring in part

and concurring in judgment). One might reasonably

believe that making race “a predominant factor in

drawing the lines” of a redistricting map would

violate Section 2. Ashcroft, 539 U.S. at 491

(Kennedy, J., concurring).

The biggest problem with overreliance on

proportionality is its fundamental incompatibility

with the Fourteenth Amendment’s Equal Protection

Clause—which mandates “racial neutrality in

governmental decisionmaking,” Miller, 515 U.S. at

904. Under that mandate, “efforts to separate voters

into different districts on the basis of race must

satisfy the rigors of strict scrutiny.” Cooper, 137 S.

Ct. at 1487 (cleaned up).

To be sure, “[t]his Court has long assumed

that one compelling interest is compliance with the

[VRA].” Id. at 1459. But requiring proportionality on

these grounds can have the effect of subordinating

8

the Equal Protection Clause to Section 2. 1 Again,

Section 2 expressly disclaims any right to

proportional representation. So, even accepting the

assumption that a State can satisfy strict scrutiny by

complying with the VRA, it is impossible to

understand how the district court’s orders are

consistent with the Fourteenth Amendment.

II.

THE DISTRICT COURT’S INTERPRETATION OF

SECTION 2 DISCOUNTS KEY EVIDENCE AND

EFFECTIVELY MANDATES PROPORTIONAL

REPRESENTATION.

In this litigation, Plaintiffs’ expert “considered

two majority-Black districts as ‘non-negotiable’” in

Alabama. MSA214–15. For that reason, Plaintiffs’

expert kept race as a necessary factor when

preparing illustrative remedial maps. Id. But why?

Everyone agrees that if a second majority-minority

district could not be drawn with race considered in

the mapping process, Plaintiffs’ vote dilution claim

would fail right out of the gate under the first

Gingles factor. Gingles, 478 U.S. at 50. Using similar

reasoning, if Plaintiffs’ expert could not draw one

majority-minority district without using race as a

consideration, surely a court could safely conclude

that Plaintiffs’ voting power had not been diluted.

1

To be clear, the subordination follows from these three

steps: (1) The Equal Protection Clause prohibits States from

separating voters into districts on the basis of race unless they

can satisfy strict scrutiny; (2) States can satisfy strict scrutiny

by complying with the VRA; and (3) the district court’s

interpretation of the VRA requires States to separate voters

into districts on the basis of race.

9

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

600 (7th Cir. 2008).

The district court allowed Plaintiffs’ expert to

keep race as a necessary factor in the mapping

process because the expert did not try “to maximize

the number of majority-Black districts.” MSA214.

But even the “minimum level” of race-based

redistricting that the district court approved—id.—is

an affront to the Equal Protection Clause absent

“sufficient justification.” Cooper, 137 S. Ct. at 1463

(internal quotation marks omitted). The district

court grounded its use of remedial race-based maps

in its need to comply with the VRA. MSA216. But

justifying the race-based sorting required by its

interpretation of the VRA with a need to comply

with the VRA is circular, and ultimately no

justification at all.

The district court acknowledged that Section 2

expressly disclaims the “right to have members of a

protected class elected in numbers equal to their

proportion in the population.” MSA52 (quoting §

10301(b)). The district court defended its reliance on

proportionality by arguing this was merely “part and

parcel of the totality of the circumstances.” MSA205.

But the effect of the district court’s ruling is to

aggrandize the role of proportionality beyond the

limits of the Equal Protection Clause and Section 2’s

text. Again, this litigation features the “showstopper claim that one of the plaintiffs’ experts had

randomly generated a large number of Alabama

plans, and produced not a one with two majorityBlack districts.” Merrill, 142 S. Ct. at 887 (Kagan, J.,

dissenting). It is not clear why the district court

allowed Plaintiffs’ expert to make race a nonnegotiable factor, especially in light of overwhelming

10

evidence showing that a second district could not be

drawn using only traditional districting criteria. But

it is clear that making race indispensable to the

question of whether a majority-minority district can

be drawn effectively mandates proportional

representation, as this litigation plainly illustrates.

In fairness, vote dilution claims have long

been difficult to define. See Holder, 512 U.S. at 896

(Thomas, J., concurring) (“The central difficulty in

any vote dilution case, of course, is determining a

point of comparison against which dilution can be

measured.” See Gonzalez, 535 F.3d at 598 (“Diluted

relative to what benchmark?”). But, thanks to

modern mapmaking technology, it is now possible to

know whether a map is race conscious. See Cooper,

137 S. Ct. at 1491 (Alito, J., concurring in part and

dissenting in part) (“Today, an expert with a

computer can easily churn out redistricting maps

that control for any number of specified criteria”—

including race). What was technologically impossible

even 15 years ago—let alone in 1965 when Congress

enacted Section 2 or in 1982 when Congress

amended the statute—is now possible. Chen &

Stephanopoulos, 130 Yale L.J. at 878.

The district court failed to account for the

advancements in mapping technology when

concluding that race is a non-negotiable factor. See

Merrill, 142 S. Ct. at 883 (Kagan, J., dissenting)

(“There may—or may not—be a basis for revising our

VRA precedent in light of the modern districting

technology that Alabama’s application highlights.”).

This error led it to prioritize race in a manner that

practically mandates proportionality. That, in turn,

puts the district court’s decision at odds with both

11

the text of Section 2 and the Equal Protection

Clause.

III.

EVEN IF SECTION 2 IS AMBIGUOUS, THE

COURT SHOULD REJECT THE DISTRICT

COURT’S INTERPRETATION.

The pressing question in this case is “whether

a second majority-minority congressional . . . is

required by the Voting Rights Act and not prohibited

by the Equal Protection Clause.” Merrill, 142 S. Ct.

at 881 (Kavanaugh, J., concurring). Amici States

respectfully assert that the district court’s order is

incompatible with this Court’s jurisprudence and

Section 2, for the reasons explained above.

That said, the text of Section 2 has been

described as “famously elliptical.” Gonzalez, 535 F.3d

at 597. Under the most natural interpretation of

Section 2, the law disclaims proportionality and

requires political processes to be “equally open.”

§ 10301(b). According to the district court, however,

Section 2 requires traditional redistricting criteria to

yield to race as a non-negotiable factor—which raises

grave constitutional concerns. See Miller, 515 U.S. at

904; Cooper, 137 S. Ct. at 1487.

Assuming the text is truly ambiguous, it

triggers the avoidance canon—which is “a tool for

choosing

between

competing

plausible

interpretations of a statutory text.” Clark v.

Martinez, 543 U.S. 371, 381 (2005). If there are two

possible interpretations of Section 2, under the

avoidance canon, the Court employs the “reasonable

presumption that Congress did not intend the

alternative which raises serious constitutional

doubts.” Id. Here, that would mean jettisoning the

12

district court’s interpretation of Section 2 for an

interpretation that does not make race a nonnegotiable factor.

At bottom, racial gerrymandering is odious to

the constitution. The district court elevated racial

considerations

over

traditional

redistricting

principles. That cannot be the law.

CONCLUSION

Amici respectfully ask the Court to reverse the

district court and hold Alabama’s 2021 redistricting

plan is consistent with Section 2.

Respectfully submitted,

JEFF LANDRY

Attorney General

ELIZABETH B. MURRILL*

Solicitor General

*Counsel of Record

SHAE MCPHEE

Deputy Solicitor General

Louisiana Department of Justice

1885 N. Third Street

Baton Rouge, LA 70802

(225) 326-6766

murrille@ag.louisiana.gov

Counsel for Louisiana

13

ADDITIONAL COUNSEL

MARK BRNOVICH

ARIZONA ATTORNEY

GENERAL

DOUG PETERSON

NEBRASKA ATTORNEY

GENERAL

LESLIE RUTLEDGE

ARKANSAS ATTORNEY

GENERAL

JOHN O’CONNOR

OKLAHOMA ATTORNEY

GENERAL

CHRIS CARR

GEORGIA ATTORNEY

GENERAL

ALAN WILSON

SOUTH CAROLINA

ATTORNEY GENERAL

TODD ROKITA

INDIANA ATTORNEY

GENERAL

KEN PAXTON

TEXAS ATTORNEY

GENERAL

LYNN FITCH

MISSISSIPPI ATTORNEY

GENERAL

SEAN REYES

UTAH ATTORNEY

GENERAL

ERIC SCHMITT

MISSOURI ATTORNEY

GENERAL

PATRICK MORRISEY

WEST VIRIGINIA

ATTORNEY GENERAL

AUSTIN KNUDSEN

MONTANA ATTORNEY

GENERAL

May 2, 2022