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 MILLIGAN, et al.,

Appellees.

____________________

JOHN H. MERRILL, et al.,

Petitioners,

v.

MARCUS CASTER, et al.,

Respondents.

___________________________

On Appeal from the United States District Court for the

Northern District of Alabama and Writ of Certiorari

Before Judgment to the United States Court of Appeals

for the Eleventh Circuit

____________________

BRIEF OF THE AMERICAN BAR ASSOCIATION AS

AMICUS CURIAE IN SUPPORT OF APPELLEES

AND RESPONDENTS

____________________

Reginald M. Turner

Counsel of Record

American Bar Association

321 N. Clark St.

Chicago, IL 60654

(312) 988-5000

amicusbriefs@

americanbar.org

Michael R. Dreeben

Ephraim McDowell

Megan Whisler

O’MELVENY & MYERS LLP

1625 Eye Street, N.W.

Washington, D.C. 20006

(202) 383-5300

Attorneys for Amicus Curiae

i

QUESTION PRESENTED

Whether the district court correctly found a violation of § 2 of the Voting Rights Act, 52 U.S.C.

§ 10301.

ii

TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIAE .......................... 1

INTRODUCTION ..................................................... 3

SUMMARY OF ARGUMENT................................... 4

ARGUMENT ............................................................. 7

I. ALABAMA’S NOVEL CONCEPTION

OF § 2 IS INCORRECT .................................. 7

A. The Gingles Test Has Long Provided

A Workable Framework ............................ 7

B. Alabama’s Proposed Transformation

Of Gingles Is Unsound ............................ 13

C. Section 2 Applies To Single-Member

Districts ................................................... 23

II. SECTION 2 IS CONSTITUTIONAL ........... 26

A. Section 2 Is Consistent With The

Fifteenth Amendment............................. 27

B. Section 2 Is Consistent With The

Fourteenth Amendment ......................... 31

CONCLUSION ........................................................ 32

iii

TABLE OF AUTHORITIES

Page(s)

CASES

Abbott v. Perez,

138 S. Ct. 2305 (2018)........................................ 10

Abrams v. Johnson,

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

Allen v. State Bd. of Elections,

393 U.S. 544 (1969)............................................ 25

Ariz. State Legislature v. Ariz. Indep.

Redistricting Comm’n,

576 U.S. 787 (2015)............................................ 24

Bartlett v. Strickland,

556 U.S. 1 (2009).......................................3, 10, 13

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

137 S. Ct. 788 (2017).......................................... 18

Brnovich v. Democratic Nat’l Comm.,

141 S. Ct. 2321 (2021).....................................7, 23

Bush v. Vera,

517 U.S. 952 (1996).............................3, 12, 19, 32

Canada Packers, Ltd. v. Atchison,

Topeka & Sante Fe Ry. Co.,

385 U.S. 182 (1966)............................................ 12

City of Boerne v. Flores,

521 U.S. 507 (1997)............................................ 28

Clark v. Calhoun Cnty.,

88 F.3d 1393 (5th Cir. 1996).............................. 12

Cooper v. Harris,

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

Davis v. Chiles,

139 F.3d 1414 (11th Cir. 1998).......................... 11

Fairley v. Hattiesburg,

584 F.3d 660 (5th Cir. 2009).........................11, 19

iv

TABLE OF AUTHORITIES

(continued)

Page(s)

Georgia v. United States,

411 U.S. 526 (1973)............................................ 25

Gonzalez v. City of Aurora,

535 F.3d 594 (7th Cir. 2008).........................14, 15

Growe v. Emison,

507 U.S. 25 (1993).....................................9, 10, 26

Jama v. Immigr. & Customs Enf’t,

543 U.S. 335 (2005)............................................ 25

Johnson v. De Grandy,

512 U.S. 997 (1994)...................................8, 10, 20

Jones v. City of Lubbock,

727 F.2d 364 (5th Cir. 1984).............................. 30

Katzenbach v. Morgan,

384 U.S. 641 (1966)............................................ 28

Kimble v. Marvel Ent., LLC,

576 U.S. 446 (2015).......................................22, 23

League of United Latin Am. Citizens

(LULAC) v. Perry,

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

Loughrin v. United States,

573 U.S. 351 (2014)............................................ 24

Luna v. Cnty. of Kern,

291 F. Supp. 3d 1088 (E.D. Cal. 2018) .............. 11

Nev. Dep’t of Human Res. v. Hibbs,

538 U.S. 721 (2003).......................................27, 30

New Prime Inc. v. Oliveira,

139 S. Ct. 532 (2019).......................................... 16

Nw. Austin Mun. Util. Dist. No. One v.

Holder,

557 U.S. 193 (2009).............................................. 2

Oregon v. Mitchell,

400 U.S. 112 (1970)............................................ 28

v

TABLE OF AUTHORITIES

(continued)

Page(s)

Patterson v. McLean Credit Union,

491 U.S. 164 (1989)............................................ 22

Rogers v. Lodge,

458 U.S. 613 (1982)............................................ 29

Rucho v. Common Cause,

139 S. Ct. 2484 (2019)........................................ 21

Rural W. Tenn. African-American

Affairs Council v. Sundquist,

209 F.3d 835 (6th Cir. 2000), cert.

denied, 531 U.S. 944 (2000) ............................... 26

Sanchez v. Colorado,

97 F.3d 1303 (10th Cir. 1996)............................ 11

Shelby County v. Holder,

570 U.S. 529 (2013).......................................... 2, 3

Solomon v. Liberty Cnty. Comm’rs,

221 F.3d 1218 (11th Cir. 2000)............................ 9

South Carolina v. Katzenbach,

383 U.S. 301 (1966)............................................ 28

Tennessee v. Lane,

541 U.S. 509 (2004).............................6, 27, 28, 31

Thornburg v. Gingles,

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

United States v. Blaine Cnty.,

363 F.3d 897 (9th Cir. 2004).............................. 30

United States v. Marengo Cnty. Comm’n,

731 F.2d 1546 (11th Cir. 1984).......................... 30

Voinovich v. Quilter,

507 U.S. 146 (1993).......................................10, 24

Wesberry v. Sanders,

376 U.S. 1 (1964).................................................. 3

White v. Regester,

412 U.S. 755 (1973).......................................14, 24

vi

TABLE OF AUTHORITIES

(continued)

Page(s)

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

142 S. Ct. 1245 (2022)........................................ 18

STATUTES

42 U.S.C. § 1973 (1964 ed., Supp. I) ....................... 25

52 U.S.C. § 10301 ...................................................... 7

52 U.S.C. § 10301(a).............................................5, 23

52 U.S.C. § 10301(b)...........................................17, 20

Pub. L. No. 97-205 ..................................................... 7

OTHER AUTHORITIES

ABA 1981 Report with Recommendation

#105 ...................................................................... 2

ABA 2005 Report with Recommendation

#108 ...................................................................... 2

ABA 2006 Report with Recommendation ................. 2

ABA 2013 Report with Recommendation ................. 2

Altman & McDonald, The Promise and

Perils of Computers in Redistricting,

5 Duke J. of Const. L. & Pub. Pol’y

69 (2010) ............................................................. 15

Blacksher & Menefee, From Reynolds v.

Sims to City of Mobile v. Bolden, 34

Hastings L.J. 1 (1982) ....................................... 17

Chen & Stephanopoulos, The RaceBlind Future of Voting Rights, 130

Yale L.J. 862 (2021) ............................4, 15, 16, 17

Cox & Miles, Judicial Ideology and the

Transformation of Voting Rights

Jurisprudence, 75 U. Chi. L. Rev.

1493 (2008) ........................................................... 9

vii

TABLE OF AUTHORITIES

(continued)

Page(s)

Ho, Voting Rights Litigation After

Shelby County: Mechanics and

Standards in Section 2 Vote Denial

Claims, 17 N.Y.U. J. Leg. & Pub.

Pol’y 675 (2014) .................................................. 10

Katz et al., Documenting

Discrimination in Voting: Judicial

Findings Under Section 2 of the

Voting Rights Act Since 1982, 39 U.

Mich. J. L. Reform 643 (2006) ............................. 9

Elmendorf & Spencer, Administering

Section 2 of the Voting Rights Act

After Shelby County, 115 Colum. L.

Rev. 2143 (2015) .................................................. 3

Engstrom & Wildgen, Pruning Thorns

from the Thicket: An Empirical Test

of the Existence of Racial

Gerrymandering, 2 Legis. Stud. Q.

465 (1977) ........................................................... 17

Liu et al., PEAR: A Massively Parallel

Evolutionary Computation Approach

for Political Redistricting

Optimization and Analysis, 30

Swarm & Evolutionary Computation

78 (2016) ............................................................. 16

Karlan, Answering Questions,

Questioning Answers, and the Roles

of Empiricism in the Law of

Democracy, 65 Stan. L. Rev. 1269

(2013) .................................................................. 10

Karlan, Two Section Twos and Two

Section Fives: Voting Rights and

Remedies After Flores, 39 Wm. &

Mary L. Rev. 725 (1998) .................................... 29

viii

TABLE OF AUTHORITIES

(continued)

Page(s)

Practice, Black’s Law Dictionary (11th

ed. 2019) ............................................................. 23

S. Rep. No. 97-417 (1982).......................17, 25, 30, 32

The Evolution of Section 2: Numbers

and Trends, Michigan Law Voting

Rights Initiative ................................................... 9

Crum, Reconstructing Racially Polarized

Voting, 70 Duke L.J. 261 (2021) ........................ 10

Vickrey, On the Prevention of

Gerrymandering, 76 Pol. Sci. Q. 105 (1961) ..... 15

INTEREST OF AMICUS CURIAE

The American Bar Association (ABA) respectfully

submits this brief supporting Appellees and Respondents. 1 The ABA is the largest voluntary professional membership organization and leading organization of legal professionals in the United

States. Its members span all fifty states and include

attorneys in private law firms, corporations, nonprofit organizations, government agencies, and prosecutorial and public-defender offices, as well as judges, legislators, law professors and law students. 2

As the legal profession’s national voice, the ABA

has a special responsibility for ensuring protection of

constitutional rights, fostering the rule of law, and

promoting full and equal access to our nation’s electoral processes. To that end, the ABA has adopted

numerous policies opposing discrimination against

minorities and supporting the Voting Rights Act

(VRA).

In 1981, for example, the ABA’s Standing Committee on Election Law held a symposium during the

congressional hearings on VRA reauthorization. In

1 Letters from all parties providing blanket consent for the

filing of amicus briefs in these cases are on file with the Clerk’s

office. Pursuant to this Court’s Rule 37.6, amicus states that

this brief was not authored in whole or in part by counsel for

any party, and that no person or entity other than amicus, its

members, or its counsel made a monetary contribution intended to fund the preparation or submission of this brief.

2 Neither this brief nor the decision to file it should be in-

terpreted to reflect the view of any judicial member of the ABA.

And no inference should be drawn that any member of the Judicial Division Council has participated in the adoption or endorsement of the positions in this brief.

2

its report recommending reauthorization, the Committee noted that the Act has “not only enhanced the

political posture of minority groups, but it has also

advanced the very ideals that make our country’s

governmental system unique in political history.”

ABA 1981 Report with Recommendation #105. In

2005, the ABA reiterated its commitment to the VRA

by adopting a policy supporting the 25-year extension of the Act. ABA 2005 Report with Recommendation #108. The ABA reaffirmed that policy in 2006

during the congressional debates on VRA reauthorization. ABA 2006 Report with Recommendation.

And following the Court’s decision in Shelby County

v. Holder, 570 U.S. 529 (2013), the ABA urged Congress to legislate a coverage formula for § 5 preclearance or enact other remedial amendments in order

to, inter alia, strengthen the litigation remedy available under § 2. ABA 2013 Report with Recommendation. In addition, the ABA has participated as amicus curiae in cases before this Court, arguing in favor of the VRA’s constitutionality. See Shelby County, 570 U.S. 529; Nw. Austin Mun. Util. Dist. No.

One v. Holder, 557 U.S. 193 (2009).

Given its long support of minority voting rights

and the VRA, the ABA has a special interest in this

case. Racial discrimination still exists in the electoral process. And § 2 provides a vital means of ensuring equal minority voting participation. Appellants’/petitioners’ (hereinafter “Alabama”) proposed

framework here would undermine § 2’s core protections and destabilize voting-rights law—results antithetical to the interests of the ABA and its members.

3

INTRODUCTION

“No right is more precious in a free country than

that of having a voice in the election of those who

make the laws under which, as good citizens, we

must live,” because “[o]ther rights, even the most

basic, are illusory if the right to vote is undermined.”

Wesberry v. Sanders, 376 U.S. 1, 17 (1964). Recognizing that racial discrimination was thwarting the

equal opportunity to exercise this precious right,

Congress passed the VRA. The VRA’s core protections, § 2 and § 5, countered discriminatory voting

practices and thus “effectuate[d] this Nation’s commitment to confront its conscience and fulfill the

guarantee of the Constitution with respect to equality in voting.” Bush v. Vera, 517 U.S. 952, 992 (1996)

(O’Connor, J., concurring).

But especially after this Court’s decision in Shelby County v. Holder, 570 U.S. 529 (2013), invalidating § 5’s coverage formula, § 2 stands as a vital safeguard against the systematic dilution of minority

representation. That safeguard is critical because

“racial discrimination and racially polarized voting

are not ancient history.” Bartlett v. Strickland, 556

U.S. 1, 25 (2009); see Elmendorf & Spencer, Administering Section 2 of the Voting Rights Act After Shelby County, 115 Colum. L. Rev. 2143, 2146 (2015)

(documenting post-Shelby County districting maneuvers that would reduce minority representation).

Alabama’s purportedly race-blind approach

threatens to eviscerate § 2’s protection against minority vote dilution. One recent study shows that

adopting Alabama’s position could allow states to

dismantle substantial numbers of majority-minority

and minority-opportunity districts, and would also

4

likely mean that “most section 2 suits seeking the

formation of new opportunity districts would fail.”

Chen & Stephanopoulos, The Race-Blind Future of

Voting Rights, 130 Yale L.J. 862, 922-23 (2021).

The result would be a major restriction of minority

voting rights nationwide.

This result would run counter to the ABA’s

longstanding interest in equal electoral opportunity.

It would also undermine the ABA’s core value of

promoting democracy and the rule of law. A basic

tenet of our democracy is that all individuals have

an equal voice in electing those who enact and enforce the laws governing our conduct. For decades,

the VRA has ensured that all Americans—regardless

of race—will have that equal voice. But adopting

Alabama’s position in this case will result in the denial of an equal voice to large numbers of Americans.

That denial will both infringe individual rights and

create systemic risks for our democracy. As elaborated below, the ABA urges the Court to avoid this

result and reaffirm its longstanding interpretation of

§ 2, which protects representational rights while respecting legitimate state interests.

SUMMARY OF ARGUMENT

Section 2 is a key means of ensuring that all

Americans have an equal opportunity to exercise the

fundamental right to vote. Adopting Alabama’s proposed framework in this case would threaten to eviscerate § 2 and thereby undermine equality in voting

nationwide. That result would do lasting harm to

minority voting rights, democracy, and the rule of

law. It would also be enormously disruptive for the

ABA’s many voting-rights litigators. The following

5

legal arguments demonstrate that these consequences are unwarranted.

I. A. In Thornburg v. Gingles, 478 U.S. 30 (1986),

this Court developed a clear framework for proving

§ 2 vote-dilution claims. Litigants, governments,

lower courts, and this Court have all applied that

framework over the ensuing 36 years. That framework is sound, and Congress has never altered it.

B. Alabama nonetheless asks this Court to radically transform—and effectively overrule—Gingles.

Rather than applying the Gingles test, Alabama

would have courts ask one primary question: Is the

state’s enacted plan substantially different from a

random sample of computer-generated plans drawn

according to race-neutral principles?

Alabama’s proposed test is flawed. It contradicts

basic statutory-interpretation principles by imposing

a standard that Congress could not have plausibly

envisioned in 1982. It seeks to address nonexistent

constitutional problems. It would raise the same

administrability concerns that this Court found untenable in the partisan-gerrymandering context only

three years ago. And it would require this Court to

disregard statutory stare decisis principles.

C. In the alternative, Alabama presses an even

more radical statutory argument: that § 2 does not

apply to single-member districting plans at all. That

argument disregards § 2’s text, which covers all

“standard[s], practice[s], or procedure[s]” that “result[] in a denial or abridgement of the right” to vote

on account of race. 52 U.S.C. § 10301(a). Alabama’s

argument likewise disregards § 2’s history, which

Alabama admits shows that the provision covers

6

multi-member districting plans. And if § 2’s terms

cover multi-member districting plans, they must

cover single-member districting plans as well. Finally, even if Alabama’s argument had merit, statutory

stare decisis would compel this Court to reject it.

II. Alabama also argues that § 2, as it has long

been interpreted, is unconstitutional. Alabama’s arguments break with fundamental constitutional

principles.

A. Section 2 is a constitutional exercise of Congress’s power to enforce the Fifteenth Amendment.

That power encompasses “‘the authority both to

remedy and to deter violation of rights guaranteed

[by the Fourteenth and Fifteenth Amendments] by

prohibiting a somewhat broader swath of conduct,

including that which is not itself forbidden by the

Amendment’s text.” Tennessee v. Lane, 541 U.S.

509, 518 (2004). 3 Section 2 falls well within this authority. Its test closely tracks the factors bearing on

a showing of unconstitutional discrimination, and

Congress made ample findings supporting the need

for § 2.

B. Complying with § 2 does not require governments to violate the Fourteenth Amendment. In

most cases, drawing a § 2-compliant map will only

require governments to consider race—not to make

race the predominant districting factor. Accordingly,

strict scrutiny will not normally apply. And even in

the rare cases where strict scrutiny is triggered, governments can satisfy that standard by showing that

Internal quotation marks are omitted unless otherwise

stated.

3

7

their use of race is narrowly tailored to the compelling interest of complying with § 2.

ARGUMENT

I.

ALABAMA’S NOVEL CONCEPTION OF § 2 IS INCORRECT

In the nearly four decades since this Court decided Thornburg v. Gingles, 478 U.S. 30 (1986), litigants, governments, lower courts, and this Court

have repeatedly applied its test to assess vote dilution under § 2. Alabama asks the Court to upend

Gingles, but it offers no persuasive reason for that

seismic change in a fundamental guarantee of equal

voting rights—whose protection is critical to ensuring fair electoral processes and the rule of law.

A. The Gingles Test Has Long Provided A Workable

Framework

1. In 1982, Congress amended § 2 to enact the legal standard that still exists today. See Pub. L. No.

97-205 (codified at 52 U.S.C. § 10301). Four years

later, this Court construed the amended § 2 in Gingles, establishing a framework that has governed § 2

vote-dilution claims ever since. See Brnovich v.

Democratic Nat’l Comm., 141 S. Ct. 2321, 2337

(2021) (Gingles is the “seminal § 2 vote-dilution

case”).

Under Gingles, a plaintiff must initially satisfy

three “necessary preconditions.” 478 U.S. at 50.

“First, the minority group must be able to demonstrate that it is sufficiently large and geographically

compact to constitute a majority in a single-member

district.” Id. Second, the minority group must show

that it “is politically cohesive.” Id. at 51. “Third, the

minority [group] must be able to demonstrate that

8

the white majority votes sufficiently as a bloc to enable it … usually to defeat the minority’s preferred

candidate.” Id.

If a plaintiff can establish these three preconditions, it must then demonstrate that the “totality of

the circumstances” supports a finding of vote dilution. Id. at 79. Those circumstances—derived from

the 1982 Senate Report—include the jurisdiction’s

history of voting-related racial discrimination, the

extent of racially polarized voting, and minority representation in public office. See id. at 36-37, 44-45.

Contrary to Alabama’s suggestion, Gingles has

never functioned as “a strict-liability rule that will

invalidate districting plans … that do not add majority-minority districts wherever possible.” Br. 65. In

fact, this Court recently deemed the argument that

“whenever a legislature can draw a majorityminority district, it must do so” to be “at war with

our § 2 jurisprudence.” Cooper v. Harris, 137 S. Ct.

1455, 1472 (2017). Rather than a strict-liability

rule, Gingles establishes a multi-step test, with additional showings required at each step. See, e.g., id.

at 1470 (finding “no evidence that a § 2 plaintiff

could demonstrate the third Gingles prerequisite—

effective white-bloc voting”); League of United Latin

Am. Citizens (LULAC) v. Perry, 548 U.S. 399, 435,

442, 446 (2006) (finding Gingles test satisfied for certain districts but not others); Johnson v. De Grandy,

512 U.S. 997, 1013 (1994) (noting “the error of treating the three Gingles conditions as exhausting the

enquiry required by § 2” and rejecting claim based

on totality of circumstances); Growe v. Emison, 507

U.S. 25, 41-42 (1993) (rejecting claim for lack of minority political cohesiveness).

9

2. In the 36 years since Gingles, litigants and

courts have applied its framework in countless cases.

One empirical analysis published 20 years after

Gingles documents hundreds of cases applying it.

See Katz et al., Documenting Discrimination in Voting: Judicial Findings Under Section 2 of the Voting

Rights Act Since 1982, 39 U. Mich. J. L. Reform 643

(2006). That analysis shows that in 169 decisions

applying the Gingles preconditions, 101 found those

preconditions not satisfied and 68 found them satisfied. Id. at 660. An updated version of this analysis

from 2021 found that 439 § 2 cases have resulted in

publicly available opinions since 1982, and that

plaintiffs’ success rate in vote-dilution cases has

hovered between 35%-43% over the last three decades. 4 Similarly, a 2008 study shows that “judges

[had] moved sharply away from the view that satisfaction of the Gingles preconditions was essentially

sufficient to establish liability.” Cox & Miles, Judicial Ideology and the Transformation of Voting

Rights Jurisprudence, 75 U. Chi. L. Rev. 1493, 1526

(2008); see, e.g., Solomon v. Liberty Cnty. Comm’rs,

221 F.3d 1218, 1235 (11th Cir. 2000) (no § 2 violation

even though plaintiffs had proved Gingles preconditions). Nothing in the case law suggests that Gingles

is unworkable or yields one-sided results.

The experience of the voting-rights bar confirms

Gingles’s administrability. One voting-rights scholar

and litigator has explained that “plaintiffs [have

long] used the Court’s roadmap [in Gingles]” to bring

See The Evolution of Section 2: Numbers and Trends,

Michigan

Law

Voting

Rights

Initiative,

https://voting.law.umich.edu/findings/.

4

10

§ 2 cases and that litigators have worked effectively

“with a range of academic experts” to satisfy the

Gingles test. Karlan, Answering Questions, Questioning Answers, and the Roles of Empiricism in the

Law of Democracy, 65 Stan. L. Rev. 1269, 1275

(2013). Another has written that “[l]itigators on

both sides and courts have substantial experience in

applying the [Gingles] Senate Factors over the last

three decades.” Ho, Voting Rights Litigation After

Shelby County: Mechanics and Standards in Section

2 Vote Denial Claims, 17 N.Y.U. J. Leg. & Pub. Pol’y

675, 691 (2014). And other voting-rights scholars

have emphasized that “[t]he Gingles factors provide[]

an easily administrable means of implementing Section 2’s opportunity-to-elect standard.” See, e.g.,

Crum, Reconstructing Racially Polarized Voting, 70

Duke L.J. 261, 285 (2021).

This Court’s cases confirm that Gingles is workable. This Court has repeatedly applied Gingles without apparent difficulty. 5 And it has called Gingles’s

first precondition—a principal target of Alabama’s

arguments here, see Br. 47-50—an “objective, numerical test” that “provides straightforward guidance to

courts and to those officials charged with drawing

district lines to comply with § 2.” Bartlett v. Strickland, 556 U.S. 1, 18 (2009).

When applying that first precondition, litigants

and courts proffer and assess illustrative alternative

maps seeking to demonstrate that it is possible to

See, e.g., Abbott v. Perez, 138 S. Ct. 2305, 2331-2334

(2018); Cooper, 137 S. Ct. at 1470-72; LULAC, 548 U.S. at 427431; De Grandy, 512 U.S. at 1008-1016; Voinovich v. Quilter,

507 U.S. 146, 158 (1993); Growe, 507 U.S. at 40-41.

5

11

draw additional majority-minority districts while

adhering to traditional districting principles. See,

e.g., Fairley v. Hattiesburg, 584 F.3d 660, 669 (5th

Cir. 2009) (“[T]o establish the first Gingles precondition, plaintiffs typically have been required to propose hypothetical redistricting schemes and present

them to the district court in the form of illustrative

plans”). 6 “[N]either the plaintiff nor the court is

bound by the precise lines drawn in these illustrative redistricting maps,” Luna, 291 F. Supp. 3d at

1106, so “the plaintiff’s plan need not be an ultimate

solution,” Fairley, 584 F.3d at 671 n.14. Rather, the

illustrative plans are used only to “show that a remedy may feasibly be developed.” Luna, 291 F. Supp.

3d at 1106; see, e.g., Sanchez v. Colorado, 97 F.3d

1303, 1314 (10th Cir. 1996).

The experts who draw illustrative plans will invariably consider the racial makeup of the electorate. The very purpose of these plans is to show

the possibility of drawing additional majorityminority districts while adhering to traditional districting principles. Given that purpose, the mapmaker will necessarily need to adjust district lines in

part based on where minority voters reside. See Davis, 139 F.3d at 1426 (race must be “a factor in

[plaintiffs’ experts’] process of designing” illustrative

plans because Gingles “require[s] plaintiffs to show

that it is possible to draw [additional] majorityminority voting districts”); Clark v. Calhoun Cnty.,

88 F.3d 1393, 1407 (5th Cir. 1996) (“[The] first Gin6 See also, e.g., Davis v. Chiles, 139 F.3d 1414, 1425 (11th

Cir. 1998); Luna v. Cnty. of Kern, 291 F. Supp. 3d 1088, 1106

(E.D. Cal. 2018).

12

gles factor … necessarily classifies voters by their

race”). This approach is not “racially discriminatory,” Br. 50—it simply involves consideration of race,

along with traditional districting principles, as a

means of showing an available remedy. Nor does

this approach render Gingles’s first precondition “a

useless gatekeeper.” Br. 68. In many cases, plaintiffs will be unable to draw an additional majorityminority district that also complies with traditional

districting principles—for instance, “because of the

dispersion of the minority population.” Bush v. Vera,

517 U.S. 952, 979 (1996). And when that is so, Gingles’s first precondition ensures that a claim cannot

proceed. See, e.g., LULAC, 548 U.S. at 433-35 (rejecting § 2 challenge at Gingles step one); Abrams v.

Johnson, 521 U.S. 74, 91 (1997).

Thus, Gingles provides a workable standard for

§ 2 vote-dilution claims, and litigators and courts are

deeply familiar with applying it. That standard has

effectively balanced governments’ legitimate districting interests with the VRA’s core purpose of ensuring equal minority voting rights. In applying the

Gingles standard, race will inevitably be considered

as one among many districting factors. Congress

surely knows all this. And yet, in the years since

Gingles, Congress has never amended § 2 to alter the

Gingles test. See, e.g., Canada Packers, Ltd. v.

Atchison, Topeka & Sante Fe Ry. Co., 385 U.S. 182,

184 (1966) (“[W]e shall not disturb the construction

previously given the statute by this Court” where

“Congress, which could easily change the rule, has

not yet seen fit to intervene”). This Court should

“decline to depart from the uniform interpretation of

§ 2 that has guided federal courts[, litigants,] and

13

state and local officials for more than [30] years.”

Bartlett, 556 U.S. at 19. And it should reaffirm § 2’s

status as an essential safeguard of minority voting

rights—a cause the ABA has long championed

through its steadfast support for the VRA.

B. Alabama’s Proposed Transformation Of Gingles Is

Unsound

Alabama asks the Court to transform—and effectively overrule—Gingles. First, at Gingles step one,

Alabama would have plaintiffs submit “comparator

map[s]” that do not account for race. Br. 49; see id.

at 56 (attacking district court’s reliance on “racebased comparator plans”). Second, Alabama would

convert the “totality-of-the-circumstances” inquiry

into a one-circumstance inquiry that asks whether

“the State’s enacted map compares favorably to neutrally drawn plans.” Br. 43. To prove a § 2 violation

under Alabama’s new test, plaintiffs would need to

submit computer-generated districting simulations

and show that the state’s enacted plan “substantially

deviates from plans that could have been generated

through a race-neutral districting process.” Br. 44;

see id. at 54-56.

As explained above, Alabama’s test would gut

§ 2’s protection of equal minority voting opportunities and allow states to dismantle large numbers of

majority-minority and minority-opportunity districts. For that reason, Alabama’s test is at odds

with the VRA, racial equality, and democratic values. And Alabama offers no sound legal reason to

adopt its test and the harmful consequences it would

produce. Rather, Alabama’s proposal suffers from

several serious legal flaws—each of which should independently compel its rejection.

14

1. a. Alabama’s new test is inconsistent with § 2

as amended by the 1982 Congress. When Congress

amended § 2 in 1982, it would not have envisioned

courts evaluating § 2 claims based on Alabama’s rigid “race-neutral benchmark.” Br. 44. To the contrary, Congress amended § 2 “to establish as the relevant legal standard the ‘results test,’ applied by this

Court in White v. Regester, 412 U.S. 755 (1973),”

Gingles, 478 U.S. at 35, which itself looked to certain

racial dynamics as part of its “totality of the circumstances” analysis, White, 412 U.S. at 769; see id. at

766 (examining “the history of official racial discrimination in Texas”). Likewise, “the Senate Report espouses a flexible, fact-intensive test for § 2 violations” that considers racial dynamics in multiple

ways. Gingles, 478 U.S. at 46. For instance, Congress sought to require plaintiffs to prove “the existence of racial bloc voting,” id., and emphasized the

relevance of “the history of voting-related discrimination in the State or political subdivision,” id. at 44.

Accordingly, Congress knew that when applying § 2,

litigants, governments, and courts would be attuned

to race—they would not merely conduct a colorblind

comparison of the enacted map to a set of neutrally

drawn alternative maps.

Alabama’s “race-neutral benchmark” theory appears to stem from two sources that postdate § 2’s

amendment by decades. First is Gonzalez v. City of

Aurora, 535 F.3d 594 (7th Cir. 2008), which posited

that “computers can use census data” to “generate a

hundred or a thousand different maps,” and if these

randomly generated maps “look something like the

actual map” in their racial characteristics, then “[it]

could confidently conclude that [the actual] map did

15

not dilute the effectiveness of the [minority] vote.”

Id. at 599-600. Second is even more recent academic

work relying on large computer-simulated samples of

maps drawn according to neutral districting principles. “This technique was still in its infancy when

[the Seventh Circuit] referred to it in 2008,” but it

“ripened to full maturity” in “the ensuing decade.”

Chen & Stephanopoulos, The Race-Blind Future of

Voting Rights, 130 Yale L.J. 862, 866 (2021). 7 “[T]he

most obvious (and perhaps the only possible) way” to

satisfy Alabama’s test would be through use of these

computerized map simulations. Id. at 877.

But such computerized map-simulation technology did not exist when Congress amended § 2 in 1982.

The theoretical “possibility of producing random

computer-simulated district maps was first flagged”

in the 1960s. Id. at 882; see Vickrey, On the Prevention of Gerrymandering, 76 Pol. Sci. Q. 105, 106-07

(1961). But “[t]he early excitement about randomized redistricting … soon dissipated” because the

technology lacked sufficient sophistication. Chen &

Stephanopoulos, 130 Yale L.J. at 883. In particular,

computer algorithms could not operationalize all relevant districting criteria or “assemble districts from

the small building blocks … that real mapmakers

tend to use.” Id. So while creating randomized computer-simulated district maps seemed initially promising, “progress was essentially halted by computing

technology that was insufficiently advanced to permit nuanced and helpful guidance for actual redis7 See also Altman & McDonald, The Promise and Perils of

Computers in Redistricting, 5 Duke J. of Const. L. & Pub. Pol’y

69, 80 (2010); Amicus Br. of Eric S. Lander at 31, Rucho v.

Common Cause, No. 18-422 (U.S. 2019).

16

tricting problems.” Liu et al., PEAR: A Massively

Parallel Evolutionary Computation Approach for Political Redistricting Optimization and Analysis, 30

Swarm & Evolutionary Computation 78, 79 (2016).

It is only “over the last ten years” that “mapmaking methods have advanced in leaps and bounds,”

making it “now feasible to generate district maps

randomly based on” the necessary neutral criteria.

Chen & Stephanopoulos, 130 Yale L.J. at 878; see id.

at 884-85. And such techniques have been used in

voting-rights litigation—almost exclusively in the

partisan-gerrymandering context—since only around

2016. See id. at 887 (citing cases).

Thus, the computer technology necessary to apply

Alabama’s test did not exist at the relevant time—

when Congress amended the statute in 1982. See

New Prime Inc. v. Oliveira, 139 S. Ct. 532, 539

(2019). And the 1982 Congress would not have imposed a test for liability that plaintiffs could not

meet. Alabama’s proposed test thus impermissibly

asks the Court to “invest old statutory terms with

new meanings.” Id.

Gingles did cite commentators who proposed

race-neutral benchmarks in their academic work.

Br. 49-50 n.10. But those commentators did not implement their approaches with sufficient sophistication or reliability to be useful to litigants or courts.

See Chen & Stephanopoulos, 130 Yale L.J. at 888 &

nn.138-39 (noting that these studies were “limited to

basic criteria like contiguity and population equality”). In any event, Gingles never cited this aspect of

the commentators’ work; rather, it cited those commentators to support propositions relevant to the

17

three Gingles preconditions—for instance, that

“commentators agree that racial bloc voting is a key

element of a vote dilution claim.” 478 U.S. at 55 (citing Blacksher & Menefee, From Reynolds v. Sims to

City of Mobile v. Bolden, 34 Hastings L.J. 1 (1982);

Engstrom & Wildgen, Pruning Thorns from the

Thicket: An Empirical Test of the Existence of Racial

Gerrymandering, 2 Legis. Stud. Q. 465 (1977)).

b. Alabama cannot derive its race-neutralbenchmark approach from statutory text or precedent.

Alabama argues that an “equally open,” 52 U.S.C.

§ 10301(b), redistricting plan is one that “resembles

neutrally drawn plans,” Br. 43. But nothing in that

statutory phrase favors Alabama’s approach over

Gingles’s framework. The Senate Report explains

that “the question whether the political processes

are ‘equally open’ depends upon a searching practical

evaluation of the ‘past and present reality,’ and on a

‘functional view’ of the political process.” Gingles,

478 U.S. at 45 (quoting S. Rep. No. 97-417, at 30

(1982)). Gingles’s “flexible, fact-intensive test for § 2

violations,” id. at 46, therefore tracks Congress’s intended meaning of “equally open.” In contrast, Alabama’s reliance on one dispositive factor would

short-circuit a “searching practical evaluation of the

‘past and present reality.’” Id. at 45.

Alabama also contends (Br. 47-48) that a raceneutral-benchmark test accords with this Court’s requirement that plaintiffs show at Gingles step one

that a minority group is “sufficiently large and compact to constitute a majority in a reasonably configured district.” Wis. Legislature v. Wis. Elections

18

Comm’n, 142 S. Ct. 1245, 1248 (2022) (emphasis

added). Yet this Court has never equated “reasonably configured” with racially neutral. Rather, the

Court asks only whether the proposed district accords with “traditional districting principles such as

maintaining communities of interest and traditional

boundaries.” LULAC, 548 U.S. at 433. And here,

appellees’ illustrative districts fulfilled that requirement, as the district court found. Appendix to

Emergency Application for Stay (App.) 159-174.

2. Alabama next argues that its approach is necessary to respect certain “constitutional guardrails.”

Br. 42-43. But Alabama seeks to solve a problem

that does not exist, because the Gingles framework

complies with all constitutional “guardrails.”

Alabama first asserts that “race cannot predominate in redistricting, no matter what the reason.”

Br. 37. That is incorrect: a state may employ race as

the predominant districting factor if it can satisfy

strict scrutiny by showing that its use of race was

“narrowly tailored to achieve a compelling interest.”

Bethune-Hill v. Va. State Bd. of Elections, 137 S. Ct.

788, 800-01 (2017). And as Alabama admits, Br. 3738, this Court has “long assumed” (correctly, see infra § II) that complying with § 2 is such an interest.

See Cooper, 137 S. Ct. at 1464; see, e.g., Bethune-Hill,

137 S. Ct. at 801 (upholding district drawn for predominantly racial purpose where narrowly tailored

to satisfying VRA).

In any event, complying with § 2 as interpreted

by Gingles will generally not trigger strict scrutiny.

As an initial matter, a plaintiff’s submission of an

illustrative map that accounts for race involves no

19

state action at all and “need not be an ultimate solution” for a court or government. Fairley, 584 F.3d at

671 n.14. But even when a court or government

draws districts “with consciousness of race,” that action does not trigger strict scrutiny. Bush, 517 U.S.

at 958-59; see id. at 962 (“[T]he decision to create a

majority-minority district [is not] objectionable in

and of itself”). Rather, strict scrutiny applies only

where a state “subordinate[s] other factors—

compactness, respect for political subdivisions, partisan advantage, what have you—to ‘racial considerations.’” Cooper, 137 S. Ct. at 1464. Subordination of

those other factors is what makes race the predominant factor. Id. at 1463-64. And applying Gingles

requires no such subordination of other factors—to

the contrary, satisfying Gingles step one requires

that the relevant district respect “traditional districting principles.” LULAC, 548 U.S. at 433.

Alabama argues that the district court’s decision

requires the state to draw a map that “would no

doubt be labeled an unconstitutional racial gerrymander, where race [is] the criterion that … could

not be compromised.” Br. 1. But in fact, the district

court found that Alabama could draw a second “reasonably compact majority-Black congressional district[]” without “prioritiz[ing] race above everything

else.” App. 214. All Alabama would need to do, the

court reasoned, was consider race “for the purpose of

determining” whether a second reasonably compact

majority-Black district was possible, and then “[a]s

soon as [it] determined the answer to that question,

[it could] assign[] greater weight to other traditional

districting criteria.” Id. And the court rejected Alabama’s argument that appellees’ experts used “race

20

[as their] predominant consideration” when drawing

illustrative maps. Id. at 215. The limited consideration of race contemplated by the district court therefore does not trigger strict scrutiny. Id. at 214. And

even if it did, the district court further found that

this consideration of race would satisfy that standard. Id. at 215-16.

Alabama next observes that to avoid constitutional concerns, proportionality—meaning that “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—cannot be “the test for § 2

liability.” Br. 39. 8 But nothing in Gingles mandates

proportionality.

Proportionality “is a relevant

fact”—though not a “dispositive” one—“in the totality of circumstances to be analyzed.” De Grandy, 512

U.S. at 1000. And that is precisely how the district

court here regarded proportionality. App. 203-05.

3. Not only do Alabama’s statutory and constitutional claims lack merit, but unlike Gingles’s timetested framework, Alabama’s novel race-neutral

benchmark would confuse litigants and lower courts,

while generating multiple difficult questions.

8 This type of proportionality “is distinct from the subject of

the proportional representation clause of § 2, which provides

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.’” De Grandy, 512 U.S. at 1014 n.11

(emphasis added) (quoting 52 U.S.C. § 10301(b)). Section 2’s

“proviso speaks to the success of minority candidates, as distinct from the political or electoral power of minority voters.”

Id.

21

As noted, Alabama would have courts decide

whether “the State’s enacted plan substantially deviates from plans that could have been generated

through a race-neutral districting process.” Br. 44.

But this test would force courts and litigants to

grapple with a host of difficult inquiries: How many

race-neutral comparator plans must a plaintiff offer?

What districting criteria must those plans include?

When does an enacted plan deviate “substantially”

from the comparator plans? Would an enacted plan

violate § 2, for instance, if it had fewer majorityminority districts than 50% of the comparator plans?

Or would the threshold be 75%? 90%?

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

(2019), this Court recently rejected a test in the partisan-gerrymandering context because of similar

concerns. Under that proposed test, courts would

“line up all the possible maps drawn” with “a State’s

own districting criteria,” and “[d]istance from the

‘median’ map would indicate whether a particular

districting plan harms supporters of one party to an

unconstitutional extent.” Id. at 2505. The Court

concluded that this test raised “unanswerable question[s],” id.: “Would twenty percent away from the

median map be okay? Forty percent? Sixty percent?

Why or why not?” Id. Indeed, the Court emphasized

that “[t]here is no way” to “give[] content” to a

standard that rests on “substantial deviation from a

median map,” id. at 2506—the same basic standard

that Alabama proposes here. Rather than adopt a

new § 2 standard that the Court found unworkable

in a similar context only three years ago, the Court

should adhere to Gingles.

22

4. Alabama’s alteration of Gingles defies stare decisis. Alabama would replace the current understanding of § 2 with a test that requires proof that

“the State’s enacted plan substantially deviates from

plans that could have been generated through a

race-neutral districting process.” Br. 44. Because

adopting that new test would mean that “today’s

Court” is not “stand[ing] by yesterday’s decisions,”

stare decisis considerations must apply. Kimble v.

Marvel Ent., LLC, 576 U.S. 446, 455 (2015).

“[S]tare decisis carries enhanced force when a

decision, like [Gingles], interprets a statute.” Id. at

456. That is because in a statutory case, “unlike in a

constitutional case, critics of [the Court’s] ruling can

take their objections across the street, and Congress

can correct any mistake it sees.” Id. Here, the Gingles interpretation has been settled law for 36 years

without congressional revision. And throughout

multiple redistricting cycles, litigants and governments have relied on Gingles as the test to balance

governments’ districting prerogatives and minorities’

voting rights.

To jettison Gingles, then, this Court would need a

“special justification”—“over and above the belief

that the precedent was wrongly decided.” Id. Alabama offers no such justification here. Gingles has

not “proved unworkable.” Id. at 459. Nor have its

“statutory and doctrinal underpinnings … eroded

over time,” Id. at 458: Congress has taken no “further action” to undermine Gingles, Patterson v.

McLean Credit Union, 491 U.S. 164, 173 (1989), and

this Court’s recent § 2 precedent only confirms Gingles’s continued applicability to vote-dilution cases,

Brnovich, 141 S. Ct. at 2337 (noting that “[o]ur many

23

… vote dilution cases have largely followed the path

that Gingles charted” and distinguishing vote dilution from “§ 2 time, place, or manner case[s]”). Instead of presenting a special justification, Alabama

simply argues that its test better interprets “§2’s

text” and applicable “constitutional limitations.” Br.

43. But those are arguments that the Court “got

something wrong,” and especially in a statutory case,

“even a good argument to that effect” is insufficient.

Kimble, 576 U.S. at 455.

C. Section 2 Applies To Single-Member Districts

Alabama also argues “[i]n the alternative” that

“§ 2 does not apply to single-member districts” at all.

Br. 50. That argument disregards § 2’s text and history, and adopting it would require the Court to

overrule numerous precedents. It would also strip

plaintiffs of any statutory avenue to challenge minority vote dilution in single-member districting

plans—a result that would dramatically undermine

minority voting rights nationwide.

1. Section 2 applies to “voting qualification[s] or

prerequisite[s] to voting or standard[s], practice[s],

or procedure[s]” that “result[] in a denial or

abridgement of the right of any citizen of the United

States to vote on account of race or color.” 52 U.S.C.

§ 10301(a). A “practice” is a “customary action or

procedure.” Practice, Black’s Law Dictionary (11th

ed. 2019). Drawing district lines is a voting-related

“practice” because it is a “customary action or procedure” that legislatures engage in every decade after

the new census. See, e.g., Ariz. State Legislature v.

Ariz. Indep. Redistricting Comm’n, 576 U.S. 787, 824

(2015) (referring to “the practice of gerrymander-

24

ing”). And the practice of “manipulat[ing] district

lines” is “the usual device for diluting minority voter

power”—whether through “[d]ividing the minority

group among various districts” or “concentrat[ing]” it

within “districts where [a minority group] constitute[s] an excessive majority.” Voinovich, 507 U.S.

at 153-54.

Alabama contends that the phrase “standard,

practice, or procedure” is “constrained by § 2’s preceding terms ‘voting qualification’ and ‘prerequisite

to voting.’” Br. 51. But the text uses the word “or” to

cover three separate categories: (1) “qualification[s]”;

(2) “prerequisite[s] to voting”; (3) “standard[s], practice[s], or procedure[s].” And the “ordinary use” of

the word “or” is “almost always disjunctive,” meaning that “the words it connects are to be given separate meanings.” Loughrin v. United States, 573 U.S.

351, 357 (2014). So no textual basis exists for construing the first two “entirely distinct” categories to

limit the third. Id..

Alabama’s textual argument is also internally inconsistent. Alabama appears to concede that § 2 applies to multi-member districting plans, acknowledging that “such schemes were well-known devices of

invidious discrimination” when Congress amended

§ 2. Br. 36 (citing White, 412 U.S. at 765). Yet Alabama’s argument that districting plans are not

“standards, practices, or procedures” would apply

equally to multi-member districting plans and single-member districting plans alike. So under its own

logic, § 2 would not even cover multi-member districting plans—a result it recognizes is untenable.

25

Section 2’s history confirms its application to districting plans. Like the 1982 amendment, the 1965

VRA used the phrase “voting qualification or prerequisite to voting, or standard, practice, or procedure.”

42 U.S.C. § 1973 (1964 ed., Supp. I). This Court emphasized that Congress intended that language to

have “the broadest possible scope,” Allen v. State Bd.

of Elections, 393 U.S. 544, 567 (1969), and it expressly held that the language applied to districting

plans, Georgia v. United States, 411 U.S. 526, 531-32

(1973). When Congress amended § 2 in 1982, it used

the same “standard, practice, or procedure” language

that the Court had already interpreted to cover districting plans. By doing so, Congress ratified that

prior interpretation. See Jama v. Immigr. & Customs Enf’t, 543 U.S. 335, 349 (2005) (“congressional

ratification” where relevant language “reenact[ed] …

without change” and prior “judicial consensus” exists). And the 1982 Senate Report specifically references “single-member districts” as being used to

“prevent an effective minority vote.” S. Rep. No. 97417, at 6.

Alabama next contends that applying § 2 to single-member districts immerses courts “in the hopeless project of weighing questions of political theory.”

Br. 51. But as shown, this Court and lower courts

have routinely applied Gingles to evaluate whether

single-member districting plans comply with § 2.

And no part of that test asks courts to delve into political theory.

2. Stare decisis provides a further dispositive basis for rejecting Alabama’s argument that § 2 does

not apply to single-member districts.

26

For the last 29 years, this Court and lower courts

have applied § 2 to single-member districting plans.

In Growe v. Emison, 507 U.S. 25 (1993), this Court

first held that § 2 bars vote dilution in singlemember districting plans, explaining that “the reasons for the three Gingles prerequisites continue to

apply” to such plans. Id. at 40. Since Growe, this

Court has applied Gingles to single-member districting plans on numerous occasions. See supra § I.A.

Statutory stare decisis considerations strongly favor adherence to this Court’s longstanding § 2 precedent. That this Court has rejected some § 2 challenges to single-member districting plans does not

cast doubt on its application in that context. Contra

Br. 52. The Court has validated some other such

challenges, see LULAC, 548 U.S. at 435, and still

others have succeeded in the lower courts, see, e.g.,

Rural W. Tenn. African-American Affairs Council v.

Sundquist, 209 F.3d 835 (6th Cir. 2000), cert. denied,

531 U.S. 944 (2000). If anything, the fact that § 2

challenges to single-member districting plans have

produced a mix of results shows that the standards

applicable to those challenges are workable and neutral.

II. SECTION 2 IS CONSTITUTIONAL

Alabama contends that § 2 “is unconstitutional as

applied to single-member districts” to the extent it

may “require[] replacing neutrally drawn districts

with race-based districts.” Br. 71. Alabama raises

both Fifteenth and Fourteenth Amendment challenges. But as the ABA has long advocated, the

VRA’s core protections are fully consistent with the

Constitution and necessary to combat racial discrim-

27

ination in voting, which still exists today. In fact, § 2

furthers the aims of the Fourteenth and Fifteenth

Amendments; it does not violate those provisions.

The ABA accordingly urges the Court to reject Alabama’s constitutional challenges and uphold § 2’s

promise of an equal opportunity to vote for all Americans, regardless of race.

A. Section 2 Is Consistent With The Fifteenth

Amendment

1. Congress’s power “to enforce the substantive

guarantees” of the Fourteenth and Fifteenth

Amendments encompasses “the authority both to

remedy and to deter violation of rights guaranteed

[by those amendments] by prohibiting a somewhat

broader swath of conduct, including that which is not

itself forbidden by the Amendment’s text.” Tennessee v. Lane, 541 U.S. 509, 518 (2004). Congress may

therefore “enact so-called prophylactic legislation

that proscribes facially constitutional conduct, in order to prevent and deter unconstitutional conduct.”

Nev. Dep’t of Human Res. v. Hibbs, 538 U.S. 721,

727-28 (2003). In so doing, Congress may “proscrib[e] practices that are discriminatory in effect, if

not in intent, to carry out the [Fourteenth and Fifteenth Amendments’] basic objectives.” Lane, 541

U.S. at 520. Such legislation is valid at least so long

as “it exhibits ‘a congruence and proportionality between the injury to be prevented or remedied and

the means adopted to that end.’” Id. (quoting City of

Boerne v. Flores, 521 U.S. 507, 520 (1997)). 9

9 The Court has never held that Boerne’s “congruence and

proportionality” standard applies to Congress’s enforcement of

the Fifteenth Amendment, and in previously upholding the

28

Congress’s enforcement authority is at its apex

when addressing racial discrimination in voting.

The Court has long “acknowledge[d] the necessity of

using strong remedial and preventive measures to

respond to the widespread and persisting deprivation of constitutional rights resulting from this country’s history of racial discrimination.” City of Boerne,

521 U.S. at 526. And the Court has frequently concluded that “measures protecting voting rights are

within Congress’ power to enforce the Fourteenth

and Fifteenth Amendment, despite the burdens

those measures placed on States.” Id. at 518 (citing

Katzenbach, 383 U.S. 301; Katzenbach v. Morgan,

384 U.S. 641 (1966); Oregon v. Mitchell, 400 U.S. 112

(1970)).

2. Section 2’s prohibition against vote dilution in

single-member districting plans falls well within

Congress’s power to enforce the Fifteenth Amendment. To start, the Gingles test relies on the same

basic factors used to show the intentional discrimination that the Fifteenth Amendment explicitly prohibits. To satisfy Gingles, a plaintiff must prove racial bloc voting in the relevant jurisdiction—a sign

that the “jurisdiction’s politics is characterized by

racial polarization” and thus potential discrimination. Karlan, Two Section Twos and Two Section

Fives: Voting Rights and Remedies After Flores, 39

Wm. & Mary L. Rev. 725, 741 (1998). And Gingles’s

“totality of the circumstances” test includes factors

VRA, the Court explained that “Congress may use any rational

means to effectuate the constitutional prohibition of racial discrimination in voting.” South Carolina v. Katzenbach, 383 U.S.

301, 324 (1966). Section 2 would satisfy the “congruence and

proportionality” standard even assuming it applies.

29

such as “the history of voting-related discrimination

in the State or political subdivision.” 478 U.S. at 44

(emphasis added).

Gingles substantially resembles the test this

Court adopted to discern unconstitutional intentional vote dilution in Rogers v. Lodge, 458 U.S. 613

(1982). Rogers, issued only days after Congress enacted § 2, first looked to three factors similar to Gingles’s preconditions: “blacks have always made up a

substantial majority of the population in [the relevant county]”; “[t]here was also overwhelming evidence of bloc voting along racial lines”; and “no black

[person] had ever been elected to the … County

Commission.” Id. at 623-24. Then, noting that these

factors are “insufficient in themselves to prove purposeful discrimination,” id. at 624, Rogers proceeded

to examine factors similar to those in the Gingles

“totality-of-circumstances” test—e.g., “the impact of

past discrimination on the ability of blacks to participate effectively in the political process” and evidence that elected officials “have been unresponsive

and insensitive to the needs of the black community.” Id. at 624-27. Based on this analysis, the Court

affirmed the district court’s finding that although

the districting plan was “neutral in origin,” it “has

been maintained for the purpose of denying blacks

equal access to the political processes in the county.”

Id. at 626-27.

Thus, a comparison of Rogers and Gingles reveals

no significant daylight between the standard for § 2

vote dilution and this Court’s standard for unconstitutional vote dilution. And even if § 2 “prohibit[s] a

somewhat broader swath of conduct” than the Fif-

30

teenth Amendment, it is still constitutional. Hibbs,

538 U.S. at 737.

Section 2’s constitutionality is reinforced by Congress’s “[e]mpirical findings … of persistent abuses

of the electoral process, and the apparent failure of

[an] intent test to rectify those abuses.” Jones v.

City of Lubbock, 727 F.2d 364, 375 n.6 (5th Cir.

1984). “After listening to over 100 witnesses and at

least 27 days of testimony in the Senate alone,” Congress found that an intent test stifled “efforts to

overcome discriminatory barriers” in voting and suffered from numerous practical problems that rendered the test ineffective. United States v. Blaine

Cnty., 363 F.3d 897, 908 (9th Cir. 2004). For instance, “those who enacted ancient voting requirements could not be subpoenaed from their graves,

and present-day legislators were protected from testifying about their motives by legislative immunity.”

Id. (citing S. Rep. No. 97-417, at 36-37). Congress

thus determined that “the difficulties faced by plaintiffs forced to prove discriminatory intent through

case-by-case adjudication create a substantial risk

that intentional discrimination barred by the Fourteenth and Fifteenth Amendments will go undetected unless the results test proposed by section 2 is

adopted.” S. Rep. No. 97-417, at 40; see United

States v. Marengo Cnty. Comm’n, 731 F.2d 1546,

1557 (11th Cir. 1984).

3. Alabama’s contrary arguments are unfounded.

Alabama contends that to be constitutional, the § 2

test must make “[t]he absence of racially discriminatory intent” a “relevant consideration.” Br. 73. But

Congress may “enact prophylactic legislation proscribing practices that are discriminatory in effect, if

31

not in intent, to carry out the [Fifteenth Amendment’s] basic objectives.” Lane, 541 U.S. at 520. In

any event, as just shown, Gingles relies on considerations often used to prove discriminatory intent.

Alabama also argues that § 2 exceeds Congress’s

authority to the extent it requires states to “create

another majority-minority district wherever one is

possible.” Br. 74. But that argument rests on a

flawed premise because this Court’s precedent rejects such a requirement. See, e.g., Cooper v. Harris,

137 S. Ct. 1455, 1472 (2017).

B. Section 2 Is Consistent With The Fourteenth

Amendment

Alabama argues that § 2, as interpreted by the

district court, violates the Fourteenth Amendment.

Br. 78. Yet much of Alabama’s Fourteenth Amendment argument rests on already-discussed errors.

Alabama asserts, for instance, that complying with

§ 2 requires states to enact “[r]acial gerrymanders.”

Br. 76. In fact, it requires states only to take race

into account when drawing district lines, which does

not trigger strict scrutiny.

Alabama further contends that a state’s consideration of race to comply with § 2 could not satisfy

strict scrutiny (to the extent it applies), because

“§ 2’s existing framework is largely devoted to”

“[g]eneralized allegations of past discrimination.”

Br. 76. But the Gingles test turns on evidence that a

state’s current plan denies minority voters an effective opportunity to elect their chosen candidates. As

Justice O’Connor explained in addressing a similar

argument: “[T]he States have a compelling interest

in complying with the results test as this Court has

32

interpreted it” because Congress reasonably “believed that without the results test, nothing could be

done about overwhelming evidence of unequal access

to the electoral system” and “the sad reality that

there still are some communities in our Nation

where racial politics do dominate the electoral process.” Bush v. Vera, 517 U.S. 952, 992 (1996).

Justice O’Connor’s admonition rang true then

and is no less true today. That is why the ABA has

made clear—repeatedly throughout the last 40

years—that the VRA is necessary to prevent a regression to “the sad reality” of racial discrimination

in voting. Yet adopting Alabama’s position here

would threaten precisely such a regression. This

Court should therefore reject Alabama’s position,

adhere to the Court’s longstanding interpretation of

§ 2, and reaffirm the VRA’s promise of equal voting

opportunity for all Americans.

CONCLUSION

The district court’s judgment should be affirmed.

33

Respectfully submitted.

Reginald M. Turner

Counsel of Record

American Bar Association

321 N. Clark St.

Chicago, IL 60654

(312) 988-5000

amicusbriefs@

americanbar.org

July 18, 2022

Michael R. Dreeben

Ephraim McDowell

Megan Whisler

O’MELVENY & MYERS

LLP

1625 Eye Street, N.W.

Washington, D.C. 20006

(202) 383-5300