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 and Writ of Certiorari to

the United States District Court

for the Northern District of Alabama

_______________________

BRIEF OF AMICUS CURIAE

THE BRENNAN CENTER FOR JUSTICE

IN SUPPORT OF APPELLEES/RESPONDENTS

________________________

DAVID A. O’NEIL

ALICIA L. BANNON

MICHAEL C. LI

Counsel of Record

DEBEVOISE & PLIMPTON LLP

YURIJ RUDENSKY

801 Pennsylvania Ave. N.W.

BRENNAN CENTER FOR JUSTICE

Washington, D.C. 20004

120 Broadway, Suite 1750

(202) 383-8000

New York, NY 10271

daoneil@debevoise.com

(646) 292-8310

bannona@brennan.law.nyu.edu

Additional Counsel on Inside Cover

ANAGHA SUNDARARAJAN

DEBEVOISE & PLIMPTON LLP

919 3rd Ave.

New York, NY 10022

i

TABLE OF CONTENTS

Page

Table of Authorities.....................................................ii

Interest of Amicus Curiae ...........................................1

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

Statutory Background.................................................4

Argument.....................................................................9

A.

B.

The Gingles Framework Gives Effect to

Congress’ Prohibition in Section 2

Against Actual Discrimination in

Redistricting. ....................................................9

1.

The Gingles Factors Provide

Structure to Section 2’s “Totality of

the Circumstances” Test...................... 14

2.

States Have Broad Flexibility in

How They Draw Section 2Compliant Maps................................... 17

The Gingles Framework Ensures that

Race Is Used Appropriately in

Redistricting.. ................................................. 21

Conclusion ................................................................. 29

ii

TABLE OF AUTHORITIES

Cases

Abrams v. Johnson,

521 U.S. 74 (1997)................................................26

Ala. Legis. Black Caucus v. Alabama,

575 U.S. 254 (2015)..............................................17

Baldus v. Members of Wis. Gov’t.

Accountability Bd.,

849 F. Supp. 2d 840

(E.D. Wis. 2012) ...................................................10

Bartlett v. Strickland,

556 U.S. 1 (2009)........................................9, 15, 23

Bone Shirt v. Hazeltine,

461 F.3d 1011 (8th Cir. 2006)........................23, 24

Bone Shirt v. Hazeltine,

336 F. Supp. 2d 976 (D.S.D. 2004) ............10, 20, 4

Bone Shirt v. Hazeltine,

387 F. Supp. 2d 1035 (D.S.D. 2005) ....................20

Brnovich v. Dem. Nat’l Comm.

141 S. Ct. 2321 (2021)............................................4

Bush v. Vera,

517 U.S. 952 (1996)..............................................19

Chapman v. Meier,

420 U.S. 1 (1975)..............................................4, 20

iii

City of Mobile v. Bolden,

446 U.S. 55 (1980)..............................................4, 5

Clark v. Calhoun Cnty.,

88 F.3d 1393 (5th Cir. 1996)................................18

Connor v. Finch,

431 U.S. 407 (1977)................................................4

Cooper v. Harris,

137 S. Ct. 1455 (2017)..........................................18

Cousin v. Sundquist,

145 F.3d 818 (6th Cir. 1998)....................25, 26, 27

Gomillion v. Lightfoot,

364 U.S. 339 (1960)................................................4

Gonzalez v. Harris Cnty.,

601 F. App’x 255 (5th Cir. 2015)..........................23

Growe v. Emison,

507 U.S. 25 (1993)..........................................16, 24

Hall v. Virginia,

385 F.3d 421 (4th Cir. 2004)................................18

Harris v. Forklift System, Inc.,

510 U.S. 17 (1993)................................................15

Harvell v. Blytheville Sch. Dist. No. 5,

71 F.3d 1382 (8th Cir. 1995)..........................27, 28

Holder v. Hall,

512 U.S. 874 (1994)..............................................13

iv

Johnson v. De Grandy,

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

League of United Latin Am.

Citizens v. Perry,

548 U.S. 399 (2006)........................................21, 22

Luna v. Cnty. of Kern,

291 F. Supp. 3d 1088

(E.D. Cal. 2018)..............................................25, 27

N.C. State Conf. of the NAACP v.

McCrory, 831 F.3d 204

(4th Cir. 2016) ......................................................12

N.C. State Bd. of Ed. v. Swann,

402 U.S. 43 (1971)................................................18

Parents Involved in Cmty. Schs. v.

Seattle Sch. Dist. No. 1,

551 U.S. 701 (2007)..............................................18

Pope v. Cnty. of Albany,

687 F.3d 565 (2d Cir. 2012) ...........................23, 24

Pope v. Cnty. of Albany,

94 F. Supp. 3d 302 (N.D.N.Y. 2015) ........20, 24, 28

Pope v. Cnty. of Albany, No. 1:11-cv0736-LEK-CFH, 2014 WL 316703,

(N.D.N.Y. Jan. 28, 2014)......................................24

Reno v. Bossier Parish Sch. Bd.,

520 U.S. 471 (1997)..............................................23

v

Rodriguez v. Harris Cnty.,

964 F. Supp. 2d 686

(S.D. Tex. 2013)............................................ passim

Shaw v. Reno,

509 U.S. 630 (1993)..............................................22

South Carolina v. Katzenbach,

383 U.S. 301 (1996)..........................................4, 28

Snyder v. Phelps,

562 U.S. 443 (2011)..............................................15

Thornburg v. Gingles,

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

United States v. City of Euclid,

580 F. Supp. 2d 584

(N.D. Ohio 2008) ..................................................27

United States v. Euclid Cnty. Sch. Bd.,

632 F. Supp. 2d 740

(N.D. Ohio 2009) ..................................................19

United States v. Paradise,

480 U.S. 149 (1987)..............................................18

United States v. Village of Port Chester,

704 F. Supp. 2d 411 (S.D.N.Y. 2010) ..................19

Uno v. City of Holyoke,

72 F.3d 973 (1st Cir. 1995) ..................................17

Voinovich v. Quilter,

507 U.S. 146 (1993)........................................10, 16

vi

Washington v. Davis,

426 U.S. 229 (1976)................................................5

Whitcomb v. Chavis,

403 U.S. 124 (1971)................................................5

White v. Regester,

412 U.S. 755 (1973)......................................5, 6, 15

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

142 S. Ct. 1245 (2022)..........................................17

Wise v. Lipscomb,

437 U.S. 535 (1978)..............................................20

Wright v. Sumter Cnty. Bd. of Elections

and Registration, 979 F.3d 1282

(11th Cir. 2020) ....................................................16

Wright v. Sumter Cnty. Bd. of Elections

and Registration, No. 1:14-cv-42WLS, 2020 WL 499615

(M.D. Ga. Jan. 29, 2020) ......................................20

Constitutional Provisions, Statutes, and

Legislative History

U.S. Const. amend. XV................................................4

52 U.S.C. § 10301(a)....................................................6

52 U.S.C. § 10301(b)..............................................6, 12

H.R. Rep. No. 109-478 (2006)................................8, 10

vii

S. Rep. No. 97-417 (1982).................................. passim

Voting Rights Act Amendment of 1982,

Pub. L. No. 97-205, § 3, 96 Stat. 131.....................5

Other Authorities

Kevin M. Kruse, White Flight: Atlanta

and the Making of Modern

Conservatism (2005) ............................................22

Michael Barone & Grant Ujifusa, The

Almanac of American Politics 1994

(12th ed., 1993).......................................................8

Michael Li & Laura Royden, Minority

Representation: No Conflict with

Fair Maps, Brennan Center for

Justice (Sept. 5, 2017)............................................8

Moon Duchin & Douglas M/ Spencer,

Response, Models, Race, and the

Law, 130 Yale L.J.F. 744 (2021). ...................26, 27

1

INTEREST OF AMICUS CURIAE1

Named for the late Associate Justice William J.

Brennan, Jr., the Brennan Center for Justice at New

York University School of Law 2 is a not-for-profit,

nonpartisan think tank and public interest law institute that seeks to improve systems of democracy and

justice. Through its Democracy Program, the Brennan Center seeks to bring the idea of representative

self-government closer to reality, including by working to ensure fair and non-discriminatory redistricting practices and to protect the right of all Americans to vote. The Brennan Center has focused

extensively on protecting minority voting rights, including by authoring numerous reports relating to

redistricting and voting rights and participating as

counsel or amicus in a number of federal and state

cases involving voting, election issues, and redistricting. The Brennan Center has submitted amicus curiae briefs in a number of Supreme Court cases involving redistricting and/or the Voting Rights Act,

including Brnovich v. Democratic National Committee, 141 S. Ct. 2321 (2021); Cooper v. Harris, 137 S.

Ct. 1455 (2017); Alabama Legislative Black Caucus

v. Alabama, 575 U.S. 254 (2015); Shelby County v.

Pursuant to Rule 37.6, counsel for amicus curiae authored

this brief in whole; no party’s counsel authored, in whole or in

part, this brief; and no person or entity other than amicus and

its counsel contributed monetarily to preparing or submitting

this brief. Consistent with Rule 37.2, the parties to this action

have granted blanket consent to the filing of amicus curiae

briefs in these cases.

2

This brief does not purport to convey the position of New

York University School of Law.

1

2

Holder, 570 U.S. 529 (2013); Northwest Austin Municipal Utility District No. One v. Holder, 557 U.S.

193 (2009); and League of United Latin American

Citizens v. Perry, 548 U.S. 399 (2005).

SUMMARY OF THE ARGUMENT

Section 2 of the Voting Rights Act plays a narrow

but critical role in redistricting. Far from inviting

the permanent or excessive use of race in redistricting, Section 2 surgically targets a set of carefully defined circumstances in which mapmakers, as in Alabama, ignored clear and reasonable alternatives that

give minority voters the ability to engage in the

“pull, haul, and trade” at the heart of the democratic

process and instead, design racially polarized districts where minority voters are submerged and effectively shut out of the political process. Johnson v.

De Grandy, 512 U.S. 997, 1020 (1994). Conversely,

where mapmakers do not choose a discriminatory

map over non-discriminatory alternatives, Section 2

offers no recourse.

Proving liability under Section 2 is demanding.

Under the framework for analyzing Section 2 claims

established by this Court’s decision in Thornburg v.

Gingles, 478 U.S. 30 (1986), courts must engage in a

rigorous, locality-specific, and highly fact-intensive

inquiry before imposing liability.

The Gingles

framework not only helps identify districts where a

mapmaker’s discretionary design choices cause minority voters to be shut out from the democratic processes, but also insulates from judicial intervention

districts where minority voters are not so excluded.

If, for example, voting in a region is not (or over time

ceases to be) racially polarized and minority voters

3

can effectively advocate for their interests by forming

coalitions with other groups—as is increasingly the

case in much of the country—there will be no liability. Similarly, where there is no history of discrimination or persistent disparities that exacerbate disadvantages faced by minority voters, a Section 2

claim will fail under the framework’s totality of the

circumstances inquiry.

Importantly, contrary to Appellants’ assertions,

Gingles and its progeny do not unconstitutionally

require mapmakers to make race the predominant

factor when drawing districts to remedy Section 2

liability. This Court’s precedents are clear that

mapmakers retain broad flexibility and discretion in

how they draw Section 2-compliant maps. Although

Section 2 requires mapmakers to factor in the existence and severity of racially polarized voting when

designing maps, the law is agnostic about the method that mapmakers employ to prevent or remedy

vote dilution. The only prohibition is that a mapmaker may not favor district maps that severely disadvantage minority voters if there are reasonable

alternatives that would not have that same discriminatory effect.

In this case, although Alabama could have met

its Section 2 obligations by creating a second Black

majority district, it was not required to do so.

Though racially polarized voting in Alabama is pronounced, the State had a variety of options short of

creating a majority-minority district that would have

ensured that Black voters stood on equal footing with

their white counterparts. Instead, Alabama bypassed those options in favor of districts that render

minority voters politically powerless.

4

The district court properly found liability under

Section 2 and ordered Alabama to redraw its congressional map while affording the state legislature

broad discretion in shaping that remedy in the first

instance. The decision below should be affirmed.

STATUTORY BACKGROUND

Since its passage in 1965, the Voting Rights Act

(“VRA”) has effectuated Congress’ “firm intention” to

“banish the blight of racial discrimination in voting”

and ensure that the Fifteenth Amendment’s guarantee—that the “right . . . to vote shall not be denied or

abridged . . . on account of race, color, or previous

condition of servitude,” U.S. Const. amend. XV—

becomes a reality throughout the United States.

South Carolina v. Katzenbach, 383 U.S. 301, 308

(1996); see also Brnovich v. Democratic Nat’l Comm.,

141 S. Ct. 2321, 2330–31 (2021).

In the first two decades after its passage, the

VRA was used sparingly in connection with redistricting. Instead, minority voters relied primarily on

the text of the Fifteenth Amendment itself and on

the “one person, one vote” principle derived from the

Fourteenth Amendment, rather than the statutory

rights established by the VRA, to challenge the configuration of legislative and congressional districts

that were drawn to dilute their votes and thereby

prevent them from effectively participating in the

democratic process. See generally, e.g., Gomillion v.

Lightfoot, 364 U.S. 339 (1960); Chapman v. Meier,

420 U.S. 1 (1975); Connor v. Finch, 431 U.S. 407

(1977); cf. City of Mobile v. Bolden, 446 U.S. 55, 60–

61 (1980) (plurality opinion) (noting that the original

5

text of Section 2 “simply restated the prohibitions

already contained in the Fifteenth Amendment”).

This Court’s approach to these vote dilution cases closely tracked its broader Fourteenth (and Fifteenth) Amendment jurisprudence during this time,

focusing on the effect of a particular district map on

minority voters. This Court explained that the relevant inquiry was whether “the political processes

leading to nomination and election were not equally

open to participation by the group in question—that

[is, whether] its members had less opportunity than

did other residents in the district to participate in

the political process and elect legislators of their

choice.” White v. Regester, 412 U.S. 755, 766 (1973)

(citing Whitcomb v. Chavis, 403 U.S. 124, 149–50

(1971)).

As the Court’s jurisprudence interpreting the Reconstruction Amendments evolved, see, e.g., Washington v. Davis, 426 U.S. 229 (1976), so too did its

interpretation of Section 2. In 1980, a plurality of

this Court imposed an intent requirement on litigants seeking to challenge any voting scheme that “is

racially neutral on its face.” Bolden, 466 U.S. at 62

(plurality opinion). To succeed, Justice Stewart asserted, a claim under Section 2, like a claim directly

under the Constitution, required a showing of purposeful discrimination. Id. at 61–63.

Congress responded almost immediately by

amending Section 2 to make clear that a statutory

violation under the VRA did not require proof of discriminatory intent. See Voting Rights Act Amendment of 1982, Pub. L. No. 97-205, § 3, 96 Stat. 131,

134 (codified as 52 U.S.C. § 10301(a)). Recognizing

that discriminatory motives were often deeply woven

into the design and application of longstanding elec-

6

toral systems and rules, Congress found that “[t]he

intent test places an unacceptably difficult burden on

Plaintiffs” and “diverts the judicial inquiry away

from the crucial question of whether minorities have

equal access to the electoral process to a historical

question of individual motives.” S. Rep. No. 97-417,

at 16–17 (1982).

To help root out situations where disguised, often

invidious, discriminatory motives may be at play, the

amended statute made clear that it prohibited any

“voting qualification or prerequisite to voting or

standard, practice or procedure . . . which results in a

denial or abridgment of the right . . . to vote on account of race or color.” 52 U.S.C. § 10301(a) (emphasis added). But, the 1982 amendments did not establish a pure results-only test. Rather, through the

addition of what is now Section 2(b), the amendments incorporated the “results-plus” standard in

White, which states that a violation of Section 2:

is established if, based on the totality of

the circumstances, it is shown that the

political processes leading to the nomination or election in a State or political

subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) in that

its members have less opportunity than

other members of the electorate to participate in the political process and elect

representatives of their choice.

52 U.S.C. § 10301(b). Compare id. with White, 412

U.S. at 766. Under this standard, courts must not

7

only look at disparate impact, but also undertake a

searching examination of the political realities on the

ground and consider the degree to which a state’s

discretionary choices about the design of electoral

systems take advantage of those conditions to perpetuate racial discrimination. In doing so, Section 2

helps identify systems and practices that, although

facially race-neutral, may be rooted, at least in part,

in discriminatory desires to politically disadvantage

minority voters.

In the context of redistricting, the 1982 amendments expressly gave minority voters the right to

challenge legislative maps that have been drawn in a

manner that protects the dominance of the majority

(white) population and locks minority voters out of

meaningful access to political power through the

democratic process. See S. Rep. No. 97-417, at 33–

34, 40 (1982).

This Court first applied the amended Section 2 in

Thornburg v. Gingles, 478 U.S. 30 (1986), where it

held that North Carolina’s choice to use at-large,

multimember districts, though facially neutral, violated Section 2 because it had the effect of locking

Black voters out of power when the reasonable alternative of single-member districts would not. In subsequent cases, courts extended the use of the multipart framework developed in Gingles to analyze

whether choices about the configuration of singlemember legislative districts similarly bypassed reasonable alternatives and deprived minority voters of

the opportunity to participate as equals in the political process.

In the decades since the 1982 amendments

passed, Section 2 and the Gingles framework have

helped transform American politics by giving minori-

8

ty voters the necessary tools to ensure that they have

meaningful access to the political process. H.R. Rep.

No. 109-478, at 11 (2006) (“Section 2 has been instrumental in paving the way for minority voters to

more fully participate in the political process across

the country.”). In 1990, during the first round of redistricting after the passage of the 1982 amendments, minority representation in the U.S. House of

Representatives increased by 60 percent. Michael Li

& Laura Royden, Minority Representation: No Conflict with Fair Maps, Brennan Center for Justice, at

7 (Sept. 5, 2017), https://www.brennancenter.org/ourwork/research-reports/minority-representation-noconflict-fair-maps. The effect of the amendments

was especially profound in Southern states; in five

states, redistricting following the 1990 census saw

the election of the first minority members to Congress since Reconstruction, finally breaking the dominance of white Democrats. See id.; see also Michael

Barone & Grant Ujifusa, The Almanac of American

Politics 1994 (12th ed., 1993).

The genius of Section 2, however, is not only in

where it applies, but also where it does not. As the

country’s politics become less racialized, the need for

Section 2 in redistricting will naturally fade as the

rigorous preconditions needed to establish Section 2

liability cease to exist. Though this has already happened in much of the country, in other parts of the

country, Section 2 remains an irreplaceable tool for

ensuring that mapmakers’ discretionary choices do

not shut minority voters out of a seat at the table.

The Gingles framework establishes a nuanced test

for rooting out racial discrimination in redistricting

in the narrow circumstances where there is constitu-

9

tionally-offensive line-drawing. It is essential that it

remain robust.

ARGUMENT

A. The Gingles Framework Gives Effect to

Congress’ Prohibition in Section 2

Against Actual Discrimination in Redistricting.

When mapmakers sit down to craft legislative

districts, they have available to them hundreds or

thousands (or more) of plausible alternatives. For

the most part, Congress has left the decision about

which map to adopt to states and localities. However, Section 2 of the VRA places a narrow, but essential, limitation on a mapmaker’s discretion by guarding against the possibility that they will choose a

racially discriminatory map over equally feasible,

non-discriminatory alternatives.

Although Section 2 constrains a mapmaker’s

choices, it is, by careful design, a narrow intervention. The Court’s Gingles framework limits the application of Section 2 to situations in which a jurisdiction’s purportedly race-neutral redistricting rules,

or a mapmaker’s discretionary choices in applying

those rules, take advantage of racially polarized voting and a legacy of purposeful discrimination to produce districts that make it impossible for politically

cohesive minority voters to participate equally in the

electoral process and to elect candidates of their

choice. Thornburg v. Gingles, 478 U.S. 30, 47 (1986);

see also Bartlett v. Strickland, 556 U.S. 1, 18–19

(2009) (Kennedy, J.). By contrast, where a mapmak-

10

er’s choices are not the cause of minority voters’ political ineffectiveness, Section 2 offers no recourse.

Mapmakers can violate Section 2 in one of two

ways: (1) by dividing a sizeable and politicallycohesive group of minority voters into districts dominated by a hostile majority that will not engage in

coalition building across racial lines; or (2) by concentrating minority voters into a small number of

districts in which they form a supermajority, thereby

depriving that group of any reasonable opportunity

for electoral success in neighboring districts. See

Voinovich v. Quilter, 507 U.S. 146, 153 (1993). Compare e.g., Baldus v. Members of Wis. Gov. Accountability Bd., 849 F. Supp. 2d 840, 854–57 (E.D. Wis.

2012) (finding liability under Section 2 where Milwaukee’s Latino population was divided into two legislative districts, effectively diluting its voting power), with Bone Shirt v. Hazeltine, 336 F. Supp. 2d

976, 980, 1052 (D.S.D. 2004) (finding liability under

Section 2 where South Dakota’s Native American

population was packed into a single, majorityminority district).

Both kinds of violations require a showing of racially polarized voting, which exists only when white

and minority voters cast ballots along racial lines

with such regularity that race plays an outsized, and

usually determinative, role in electoral politics. See

H.R. Rep. No. 109-478, at 34 (2006) (“Racially polarized voting occurs when voting blocs within the minority and white communities cast ballots along racial lines and is the clearest and strongest evidence

the Committee has before it of the continued resistance [sic] within covered jurisdictions to fully ac-

11

cept minority citizens and their preferred candidates

into the electoral process.”).

In communities where racially polarized voting

exists, such voting often interacts with a legacy of

racial discrimination and significant, ongoing racial

disparities to leave minority voters unable to exert

pressure on candidates and representatives through

ordinary democratic channels. Indeed, racialized

politics also frequently disincentivizes non-minority

elected officials from responding to minority voters’

needs or representing their views because they do

not need the support of minority voters and may face

political consequences from white voters if they are

seen as being too sensitive to minority interests.

On the other hand, in areas where racialized voting does not exist, a sizeable, cohesive bloc of minority voters has the same opportunity to exert political

pressure as any other large bloc of voters. Indeed,

any large group of cohesive voters in a position to be

the deciding difference in an election, whether minority or not, will be an attractive source of votes

that a rational candidate or party trying to form a

winning coalition ignores at their own peril. Fortunately for American democracy, in most communities

around the country, minority voters are able to engage in precisely this kind of cross-racial coalition

building to bring their needs and concerns to the fore

and to work to elect candidates who will address

those needs and concerns. Johnson v. De Grandy,

512 U.S. 997, 1020 (1994).

But, these democratic processes do not work as

they should in every part of the country. In Alabama, continued high levels of racially polarized voting, coupled with design choices that divide deeply-

12

rooted Black communities, upend the expectation

that minority voters will be able to participate effectively in the political process. Even if Black voters

make up a sizable share of a district, as they do in

multiple congressional districts in Alabama, their

votes simply will not translate into meaningful representation because candidates and representatives

have a perverse incentive to cut those voters out of

the political process entirely. See N.C. State Conf. of

the NAACP v. McCrory, 831 F.3d 204, 222 (4th Cir.

2016) (“Racially polarized voting is not, in and of itself, evidence of [intentional] racial discrimination.

But it does provide an incentive for intentional discrimination in the regulation of elections.”). Indeed,

“[i]t is the political cohesiveness of the minority

groups that provides the political payoff for legislators who seek to dilute or limit the minority vote.”

Id. In these circumstances (and only these circumstances), Section 2 requires courts to consider

whether mapmakers ignored reasonable alternatives

or deliberately drew lines to produce dilutive outcomes.

Though racially polarized voting lies at the heart

of the Section 2 inquiry, it is not the end of the assessment. Section 2 also requires a rigorous, locality-specific, and highly fact-intensive examination of

the totality of the circumstances to determine

whether racially polarized voting is so severe that it

results in actual discrimination against minority

voters that cannot be remedied without judicial intervention. See 52 U.S.C. § 10301(b).

The multi-part test that this Court articulated in

Gingles provides a robust structure to help courts

13

systematically evaluate when a district map violates

Section 2’s mandate. These conditions will be satisfied only in the small class of cases where “racial politics do dominate the electoral process” and where

“racial bloc voting and other factors,” including a history of discrimination, result in a district map that

effectively “den[ies] minority voters equal opportunity to participate meaningfully in elections.” See S.

Rep. No. 97-417, at 33–34 (1982); see also id. at 40

(noting that Section 2 is designed to prevent mapmakers from taking advantage of racially polarized

voting and disparities in political, social, and economic outcomes that “perpetuate the effects of past

purposeful discrimination”).

The Gingles inquiry does not, as Appellants suggest, promote racial balkanization or mandate the

creation of purely race-based districts. See Appellants’ Br. at § 2. In fact, it does the opposite: Section

2, as interpreted and applied by this Court in Gingles

and its progeny, provides a critical safeguard to prevent a mapmaker from designing or using facially

neutral rules to draw districts in a manner that further entrenches racial polarization and prolongs the

nation’s troubled history of racial politics. And, it

does so by requiring courts to engage in a searching,

multi-part inquiry that considers both the actual

consequences of the district map and the full range of

available, reasonable alternatives that would “provide greater electoral opportunity to minority voters.” Holder v. Hall, 512 U.S. 874, 887 (1994)

(O’Connor, J., concurring).

Far from being a permanent mandate to draw

districts based on race whenever a minority group is

14

large enough, Section 2 provides a targeted remedy

in a narrow, and comparatively rare, set of circumstances. It is triggered only in those circumstances

where line-drawing choices, even if not intentionally

discriminatory, interact with current circumstances

on the ground to make healthy, normal politics impossible and where the record shows that ready alternatives would not have that effect. Under Section

2, the central inquiry is whether a state’s deliberate

mapping choices take advantage of racial polarization to make it impossible for minority voters to engage in the normal “pull, haul, and trade” of politics.

De Grandy, 512 U.S. at 1020. Only if mapmakers

ignored reasonable alternatives to configure districts

in a way that disadvantages minority voters and impedes a healthy and robust democratic process will

there be liability. And, if circumstances change over

time, so will Section 2’s application.

The Gingles framework therefore tackles the deliberate choices, whether invidious or not, that perpetuate the legacy of the discrimination that Congress sought to eradicate when enacting Section 2,

while preserving the mapmaker’s considerable flexibility in determining how to draw Section 2compliant districts.

1. The Gingles Factors Provide Structure

to Section 2’s “Totality of the Circumstances” Test.

By its terms, Section 2 requires courts to engage

in a highly fact-intensive “totality of the circumstances” analysis to determine whether a district

map improperly dilutes the votes of minority voters.

15

Though the Senate Report accompanying the 1982

amendments set forth some of the factors that may

be relevant to a claim of vote dilution, both the statutory text itself and this Court’s earlier precedents

provided little guidance to lower courts as to how to

apply Section 2 to evaluate vote-dilution claims. See

Gingles, at 478 U.S. at 43–46; see also generally,

White, 412 U.S. at 765–70.

In Gingles, the Court interpreted the amended

Section 2 for the first time and provided structure to

guide lower courts’ application of its “totality of the

circumstances” test in redistricting cases. 3 There,

this Court identified three preconditions that were

necessary, but not in and of themselves sufficient, to

show that a district map improperly diluted a minority group’s voting power in violation of Section 2.

First, plaintiffs challenging a district map must

show that the minority group is “sufficiently large

and geographically compact to constitute a majority

in a single-member district.” Gingles, 478 U.S. at 50.

To meet this standard, it must be possible to create

an electoral district where the “minority population

in the potential election district is greater than 50

percent.” Bartlett, 556 U.S. at 19–20 (Kennedy, J.);

see also De Grandy, 512 U.S. at 1008 (noting that the

first Gingles condition is satisfied if plaintiffs can

show that it is possible to create “more than the exGingles’ articulation of a multi-factor test comports with

this Court’s approach in other circumstances in which the relevant standard requires case-specific considerations of a totality

of the circumstances. See, e.g., Snyder v. Phelps, 562 U.S. 443,

452–54 (2011) (describing the various factors this Court considers to determine whether speech is public or private); Harris v.

Forklift System, Inc., 510 U.S. 17, 23 (1993) (same in the Title

VII context).

3

16

isting number of reasonably compact districts with a

sufficiently large minority population to elect candidates of its choice”). Second, the minority group

must be “politically cohesive” and generally share

common beliefs, ideals, and principles such that the

group votes as a bloc. Gingles, 478 U.S. at 51; see

also Growe v. Emison, 507 U.S. 25, 40–41 (1993).

Third, plaintiffs must show that the white majority

similarly votes “sufficiently as a bloc to enable it—in

the absence of special circumstances . . .—usually to

defeat the minority’s preferred candidate.” Gingles,

478 U.S. at 51. Finally, even if these three preconditions are satisfied, the plaintiffs must still demonstrate, based on a totality of the circumstances, that

minority voters do not have an equal opportunity to

participate in the political process.

Where any one of the three Gingles conditions is

not met—or if these conditions change over time as

communities become less racially polarized or as

broader social, economic, and political racial disparities ease—liability will not exist. See Voinovich, 507

U.S. at 158 (rejecting a Section 2 claim in the absence of evidence that the white majority voted as a

bloc); Wright v. Sumter Cnty. Bd. of Elections and

Regristration, 979 F.3d 1282, 1308 (11th Cir. 2020)

(“We do not suggest . . . that Section 2 allows a protected group to bring a vote dilution claim in perpetuity and irrespective of its numerical advantage.”).

Indeed, the Gingles factors are calibrated to

identify circumstances in which “racial politics [so]

dominate the electoral process” that an otherwise

race-neutral district map, when combined with the

effects of polarized voting and other factors, could

effectively deprive minority voters of access to political power through the ordinary push and pull of the

17

democratic process. See S. Rep. No. 97-417, at 33

(1982). If Section 2 plaintiffs carry their burden and

satisfy these three factors, Gingles directs lower

courts to then conduct a searching, totality-of-thecircumstances inquiry to determine if the challenged

map, in fact, dilutes a minority group’s vote and violates Section 2. De Grandy, 512 U.S. at 1011–12; see

also Wis. Legisl. v. Wis. Elections Comm’n, 142 S. Ct.

1245, 1250 (2022) (“[N]o single statistic provides

courts with a shortcut to determine whether a set of

single-member districts unlawfully dilutes minority

voting strength.”); Uno v. City of Holyoke, 72 F.3d

973, 983–84 (1st Cir. 1995) (“[P]laintiffs . . . must

prove that . . . racial politics . . . significantly diminished opportunities for minority participation in elective government.”).

2. States Have Broad Flexibility in How

They Draw Section 2-Compliant Maps.

Appellants misunderstand what Section 2 requires as a remedy. The Gingles framework does not

automatically require mapmakers to draw majorityminority districts; nor does it compel a mapmaker to

draw districts that prioritize race to the exclusion of

other considerations.

Rather, as this Court has repeatedly held, there

is no arbitrary number when it comes to determining

whether a group of politically cohesive minority voters has the ability to elect its preferred candidates.

See, e.g., Ala. Legis. Black Caucus v. Alabama, 575

U.S. 254, 275–76 (2015) (noting that the VRA does

not require an electoral district to maintain a “particular numerical minority percentage,” as long as

“minority voters retain the ability to elect their pre-

18

ferred candidate”); Cooper v. Harris, 137 S. Ct. 1455,

1472 (2017) (same); see also, e.g., Hall v. Virginia,

385 F.3d 421, 431 (4th Cir. 2004) (finding no liability

where Black voters could reasonably join with other

voters to elect a candidate of their choice). Likewise,

this Court has repeatedly emphasized that Section 2

does not insulate minority voters from “the obligation to pull, haul, and trade to find common political

ground” and build coalitions to elect the candidates

of their choice. De Grandy, 512 U.S. at 1020.

While mapmakers must consider the existence

and severity of racially polarized voting when creating maps and avoid drawing districts that result in a

wholesale sidelining of minority voters, they have

flexibility to find a solution that addresses vote dilution while also maximizing the state’s other legitimate policy objectives.4 See Clark v. Calhoun Cnty.,

88 F.3d 1393, 1408 (5th Cir. 1996) (“Redistricting to

remedy found violations of § 2 of the Voting Rights

Act by definition employs race. . . . The limit is that

the remedy must use race at the expense of tradiThe requirement that a mapmaker consider race at the

remedial phase is entirely consistent with this Court’s equal

protection jurisprudence. See, e.g., N.C. State Bd. of Ed. v.

Swann, 402 U.S. 43, 45–46 (1971) (permitting consideration of

race when drawing school district boundaries and assigning

students to particular schools in light of persistent segregation

in public education and a history of discrimination); United

States v. Paradise, 480 U.S. 149, 166–67 (1987) (“It is well established that government bodies, including courts, may constitutionally employ racial classifications essential to remedy unlawful treatment of racial or ethnic groups subject to discrimidiscrimination.”); cf. Parents Involved in Cmty. Schs. v. Seattle

Sch. Dist. No. 1, 551 U.S. 701, 702–03 (2007) (holding that a

race-conscious remedy was improper where there was no indication of constitutionally-offensive discrimination).

4

19

tional political concerns no more than is reasonably

necessary to remedy the found wrong.” (citing, inter

alia, Bush v. Vera, 517 U.S. 952, 993–94 (1996)

(O’Connor, J., concurring))).

For example, mapmakers could choose to eliminate vote dilution by drawing an influence or coalition district, rather than a majority-minority district,

in order to keep a city or town together or avoid having a district cross a mountain range. Likewise, if

mapmakers wished, they could adopt a number of

other race-neutral solutions, including cumulative

voting and limited voting, to ensure that minority

voters have an equal opportunity to elect candidates

of their choice. See, e.g., United States v. Village of

Port Chester, 704 F. Supp. 2d 411, 477, 449–53

(S.D.N.Y. 2010) (finding that a system of cumulative

voting, where each voter would be allocated “the

same number of votes as there are seats up for election and would be free to allocate them however he

or she chooses,” was an appropriate remedy under

Section 2); United States v. Euclid Cnty. Sch. Bd.,

632 F. Supp. 2d 740, 755–57, 770–71 (N.D. Ohio

2009) (finding that a system of limited voting, where

“each voter would be able to vote for a single candidate in [a given] election[], even though multiple

seats would be vacant” was an appropriate remedy

under Section 2). The only constraint Section 2 imposes is to prevent mapmakers from choosing a district configuration that deprives a minority group of

the opportunity to elect candidates or build coalitions

when there are feasible alternatives that would not

have this discriminatory effect.

In arguing that Section 2 is at tension with the

Constitution’s requirement that race not predominate in the drawing of districts, Appellants conflate

20

demonstration plans introduced to satisfy the first

Gingles factor with the ultimate remedy. While it is

true that this Court’s precedents require plaintiffs to

submit a demonstration plan with a majorityminority district in order to establish liability, this

Court’s precedents also make clear that such a plan

in no way limits the state’s available remedies. Because “reapportionment is primarily the duty and

responsibility of the State,” states and localities are

ordinarily permitted to redraw district maps to address a Section 2 violation in the first instance. 5

Chapman, 420 U.S. at 27 (noting that a court will

not step in unless the state legislature fails to enact

a constitutionally-acceptable plan); see also, e.g.,

Bone Shirt, 336 F. Supp. 2d at 1052–53 (giving the

state government the first opportunity to propose a

remedy for a Section 2 violation); Pope v. Cnty. of

Albany, 94 F. Supp. 3d 302, 351 (N.D.N.Y. 2015)

(same). As the party responsible for redrawing the

Federal courts will only step in to compel adoption of a

specific redistricting plan if the legislature has consciously

failed to correct the Section 2 violation or if “the imminence of a

state election makes it impractical for them to do so.” Wise v.

Lipscomb, 437 U.S. 535, 539–40 (1978). Even then, a judiciallymandated redistricting plan remains in place only until the

mapmaker takes legislative action to draw a Section 2compliant map. Id.; see also Bone Shirt v. Hazeltine, 387 F.

Supp. 2d 1035, 1038 (D.S.D. 2005), aff’d 461 F.3d 1011 (8th Cir.

2006) (adopting Plaintiffs’ proposed plan only after the legislature declined to submit a new district plan). Wright v. Sumter

County Bd. of Elec. And Reg., No. 1:14-cv-42-WLS, 2020 WL

499615, at *3 (M.D. Ga. Jan. 29, 2020), aff’d 979 F.3d 1282

(11th Cir. 2020) (ordering the adoption of a specific redistricting

plan where the “Court has twice sought the legislatures’ involvement” and the parties agreed that “this Court should not

defer to the legislature.”).

5

21

map in the first instance, Alabama has broad flexibility to remedy vote dilution in any number of ways

without drawing a Black-majority district.

In sum, far from requiring a mapmaker to draw

districts to meet a numeric target, Section 2 only

bars a mapmaker from ignoring feasible nondiscriminatory alternatives so as to draw district

lines in a way that submerges a minority group into

a hostile majority—and even then, only in circumstances in which racial polarization is so severe that

the minority group is incapable of forming a coalition

with voters from other racial or ethnic groups and,

therefore, is effectively shut out of the political process. De Grandy, 512 U.S. at 1020; see also Gingles,

478 U.S. at 48, 51 (noting that Section 2 is only violated where an electoral map operates to “minimize

or cancel out [a minority group’s] ability to elect their

preferred candidate” and distinguishing between

“the usual predictability of a majority’s success” and

the “mere loss of an occasional election”).

B. The Gingles Framework Ensures that

Race Is Used Appropriately in Redistricting.

The Gingles framework performs the dual function of identifying constitutionally-offensive linedrawing while, at the same time, carefully guarding

against the improper use of race in redistricting.6

To the extent the Court perceives any tension between the

demands of Section 2 and the requirements of the Constitution

(although there is none), this Court could refine this framework, as it has done in the past, to narrow the conditions that

give rise to a claim. See, e.g., League of United Latin American

Citizens v. Perry, 548 U.S. 399, 432 (2006) (expanding the com6

22

1. First, the requirement that the minority

group be “sufficiently large and geographically compact to constitute a majority in a single-member district” ensures that courts will not order district maps

to be redrawn unless a non-dilutive alternative can

be created without running afoul of race-neutral redistricting principles. Gingles, 478 U.S. at 50; see

also Rodriguez v. Harris Cnty., 964 F. Supp. 2d 686,

725 (S.D. Tex. 2013); cf. Shaw v. Reno, 509 U.S. 630,

641–42 (1993). “Because the very concept of vote

dilution implies . . . the existence of an undiluted

practice” or district map, a Section 2 plaintiff has to

show that it is possible to draw a district map where

pactness requirement for Section 2 compliance); Johnson v. De

Grandy, 512 U.S. 997, 1014 (1994) (finding that the number of

political effective districts in an area is relevant to a dilution

claim). But, this Court should reject Appellants’ invitation to

prioritize state redistricting rules over the requirements of federal law. While this Court has held that a Section 2 remedy

must be drawn with consideration of a state’s neutral districting rules, it has never held, as the Appellants would have it

hold, that those rules have absolute priority over federal law.

Indeed, it would be inappropriate to do so both because state

law by definition cannot override congressionally-enacted legislation and because many supposedly neutral mapping rules

may themselves be rooted in past discriminatory practices. In

many places in the South, for example, cities and school districts, which states, when drawing districts, frequently choose

to keep whole, are anything but neutral in their shapes and

instead reflect past racial discrimination. See, e.g., Kevin M.

Kruse, White Flight: Atlanta and the Making of Modern Conservatism 37–38 (2005) (discussing Atlanta’s annexation of surrounding suburbs to increase the white share of its population).

While a Section 2 remedy must respect a state’s districting criteria, it is not wholly bound by them when excessively rigid

adherence would frustrate Congress’ intent in enacting Section

2 to eradicate the legacy of racial discrimination.

23

the relevant minority group could form a majority of

the voting population in a single-member district.

Rodriguez, 964 F. Supp. 2d at 725; see also Bartlett,

556 U.S. at 18–19 (Kennedy, J.); Pope v. Cnty. of Albany, 687 F.3d 565, 576 (2d Cir. 2012) (stating that,

to satisfy the first Gingles factor, a plaintiff has to

“prove that a solution is possible” (quoting Bone

Shirt v. Hazeltine, 461 F.3d 1011, 1019 (8th Cir.

2006))).

In other words, to satisfy the first Gingles factor,

a Section 2 plaintiff must show that the mapmaker

had a reasonable alternative that is broadly consistent with race-neutral redistricting principles. 7

See, e.g., Gonzalez v. Harris Cnty., 601 F. App’x 255,

258 (5th Cir. 2015) (denying liability where plaintiffs

failed to show that a compact district could be drawn

with consideration of traditional redistricting principles); Rodriguez, 964 F. Supp. 2d at 725 (citing Reno

v. Bossier Parish Sch. Bd., 520 U.S. 471, 480 (1997)).

To carry their burden on this factor, Section 2 plaintiffs may “postulate,” and a fact-finder may consider,

various alternative district maps that were drawn

with race in mind that can serve “as the benchmark

undiluted practice.” Rodriguez, 964 F. Supp. 2d at

725.

Indeed, the bright-line requirement this Court imposed in

Bartlett v. Strickland, 556 U.S. 1 (2009), that requires plaintiffs

to demonstrate that it is possible to draw alternative districts

where minority voters can form a majority is best viewed as a

maximalist assurance of redressability. That is, Plaintiffs must

show that a remedy is available that would allow minority voters to participate in the political process and elect candidates of

choice, even if localized politics are polarized to an extreme

degree.

7

24

Contrary to Appellants’ assertions, the fact that

a plaintiff must show that a “solution is possible”

does not mean the plaintiff must, at this stage in the

inquiry, “present the final solution to the problem.”

Pope, 687 F.3d at 576 (quoting Bone Shirt, 461 F.3d

at 1019). A fact-finder’s consideration of these alternative maps at the liability phase does not mean that

the mapmaker will be required to adopt one of these

proposals; nor does it signal that the court, in crafting a remedy once liability has been established, improperly prioritized race. See, e.g., Bone Shirt, 336 F.

Supp. 3d at 987–95, 1053 (considering proposed alternative maps in connection with the first Gingles

factor, but leaving the remedy to the state legislature

in the first instance); Pope, 94 F. Supp. 3d at 332,

351 (relying in part on Pope v. Cnty. of Albany, No.

1:11-cv-0736-LEK-CFH, 2014 WL 316703, at *12

(N.D.N.Y. Jan. 28, 2014) (granting in part and denying in part plaintiffs’ motion for summary judgment))

(same).

2. Second, the requirement that the minority

group be “politically cohesive” limits Section 2 liability to circumstances in which the minority group in

fact acts as a political community that ordinarily

would be able to form coalitions and exercise political

power through the democratic process. Gingles, 478

U.S. at 51, 56; see also De Grandy, 512 U.S. at 1020.

This requirement ensures that district maps will not

be upended—and that minority voters are not placed

into a district—because of a shallow or reflexive assumption that voters from the same racial or ethnic

group think or vote alike. Growe, 507 U.S. at 41–42

(“Section 2 does not assume the existence of racial

bloc voting; plaintiffs must prove it.” (quoting Gingles, 478 U.S. at 46)); Rodriguez, 964 F. Supp. 2d at

25

756 (“[The second factor] contemplates that a specified group of voters shares common beliefs, ideals,

principles, agendas, concerns, and the like such that

it generally unites behind . . . particular candidates

and issues.”). If members of a minority group are

sufficiently diverse that they generally do not share

a single preferred candidate, agenda, or set of concerns, it cannot be said that the challenged district

map “thwarts distinctive minority interests” and

prevents them from electing representatives of their

choice. Gingles, 478 U.S. at 51; see also Luna v.

Cnty. of Kern, 291 F. Supp. 3d 1088, 1117–18 (E.D.

Cal. 2018) (“If the minority group does not have a

preferred candidate, it cannot be said that the jurisdiction’s electoral scheme thwarts the minority

group’s interest.”). Conversely, where a minority

group is relatively politically homogenous—and generally unites behind a single candidate or set of issues—the Gingles inquiry ensures that the minority

group is not effectively barred from participation in

the democratic process because of the way district

lines are drawn.

3. Third, the requirement that the “white majority [also] vote[] sufficiently as a bloc” further limits Section 2 liability to those circumstances in which

a minority’s “submergence in a white [majority] district impedes its ability to elect its chosen representative.” Gingles, 478 U.S. at 51; see also Cousin v.

Sundquist, 145 F.3d 818, 825–26 (6th Cir. 1998)

(finding that the third factor is not met where the

minority group’s favored candidate was also the winning candidate). Crucially, this factor requires a

fact-finder to distinguish between “the mere loss of

an occasional election” and circumstances in which

racial polarization is so severe that the white majori-

26

ty’s electoral success is nearly inevitable. Gingles,

478 U.S. at 51. If the minority group in question is

able to build a coalition with voters from other racial

or ethnic groups in order to elect its candidate of

choice, even if it does not constitute a majority of a

given district, this third condition is not satisfied.

See Abrams v. Johnson, 521 U.S. 74, 92–95 (1997)

(finding no Section 2 liability where there was a significant degree of cross-over voting and so, no need

for a majority-minority district); Rodriguez, 964 F.

Supp. 2d at 757 (noting that the correct test is

whether, “as a practical matter,” bloc voting effectively minimizes or cancels “minority voters’ ability

to elect representatives of their choice”). Like the

cohesion inquiry, the polarization inquiry focuses the

fact-finder’s attention on those narrow circumstances

in which “racial politics do dominate the electoral

process,” S. Rep. No. 97-417, at 33 (1982), and minority voters cannot form successful coalitions in order

to elect representatives of their choice.

Courts around the country have consistently applied the second and third Gingles factors with rigor,

focusing on the specific circumstances of a given district and actual voting patterns of various racial and

ethnic groups over time. In doing so, courts have

relied on a variety of statistical methodologies to ensure that a mapmaker is required to create a majority-minority district only where there is no feasible

alternative.8 See generally, e.g., Cousin, 145 F.3d at

The Court should resist relying on simulated, algorithmic

mapping in order to establish a race-blind benchmark for undiluted redistricting outcomes within a given state because these

methods are unlikely to be responsive to the Section 2 inquiry.

See generally, e.g., Moon Duchin & Douglas M. Spencer, Re8

27

818 (reversing in part because of the district court’s

failure to meaningfully engage with the statistical

evidence on the record); Luna, 291 F. Supp. 3d 1088

(discussing the various statistical methodologies presented on the record in finding the third condition

satisfied); United States v. City of Euclid, 580 F.

Supp. 2d 584 (N.D. Ohio 2008) (same).

4. Finally, as Gingles itself makes clear, even if

all three preconditions are satisfied, the fact-finder

must still engage in a qualitative, “totality of the circumstances” inquiry—as required by the statutory

text—to determine whether the localized political

environment actually results in disparate outcomes

for minority voters. Gingles, 478 U.S. at 79; see also,

e.g., Harvell v. Blytheville Sch. Dist. No. 5, 71 F.3d

1382, 1390 (8th Cir. 1995) (noting that, even after

sponse, Models, Race, and the Law, 130 Yale L.J.F. 744 (2021).

In their brief, Appellants repeatedly assert that the 2 million

race-blind congressional plans created by the Milligan Plaintiffs’ expert failed to produce a map with two majority-Black

districts. Appellants’ Br. at 23. But, this argument misses the

point. As discussed above, Section 2 does not mandate the creation of majority-minority districts. Rather, the focus of the Section 2 inquiry is equality of opportunity, and the more salient

question when determining liability would be how many of

these 2 million simulated plans actually allocate Black voters

into districts in which they have the opportunity to form coalitions, participate in the political process, and elect candidates of

choice. The problem, of course, is that modeling such opportunity based on a comprehensive analysis of recent election

data is far more challenging than modeling the incidence of

majority-minority districts. Appellants further muddy the waters by conflating a plaintiff’s burden to proffer a demonstrative

plan with the ultimate remedy. See id. at § 1.B. In effect, Appellants rely on a metric that is ill-suited as a benchmark and

compound the issue by using that inapposite metric to assess

evidence that is intended to show redressability.

28

the Gingles factors have been satisfied, plaintiffs

“must still show that the challenged electoral scheme

provides minority voters with less opportunity than

other members of the electorate . . .” based on a totality of the circumstances); Pope, 94 F. Supp. 3d at 341

(considering the totality of the circumstances after

determining that the Gingles factors have been satisfied).

In doing so, Gingles and its progeny give courts

around the country an effective framework to evaluate claims for vote dilution and to identify those circumstances in which the challenged district map actually discriminates against minority voters in a way

that runs afoul of Section 2, and of the VRA’s broader

purpose of “banish[ing] the blight of racial discrimination in voting.” Katzenbach, 383 U.S. at 308. At

the same time, the Gingles framework carefully

guards against any temptation to draw race-based

districts simply for the sake of creating race-based

districts.

29

CONCLUSION

For the reasons set forth above, the judgment of

the court below should be affirmed.

Respectfully submitted,

DAVID A. O’NEIL

Counsel of Record

DEBEVOISE & PLIMPTON LLP

801 Pennsylvania Ave. N.W.

Washington, D.C. 20004

(202) 383-8000

daoneil@debevoise.com

ANAGHA SUNDARARAJAN

DEBEVOISE & PLIMPTON LLP

919 Third Avenue

New York, NY 10022

ALICIA L. BANNON

MICHAEL C. LI

YURIJ RUDENSKY

BRENNAN CENTER FOR JUSTICE

120 Broadway, Suite 1750

New York, NY 10271

(646) 292-8310

bannona@brennan.law.nyu.edu

Counsel for Amicus Curiae

July 18, 2022