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.,

____________________

JOHN H. MERRILL, et al.,

Appellees.

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

CAMPAIGN LEGAL CENTER IN SUPPORT OF

APPELLEES AND RESPONDENTS

____________________

Paul M. Smith

Mark P. Gaber

Counsel of Record

Hayden Johnson

Valencia Richardson

Orion de Nevers

CAMPAIGN LEGAL CENTER

1101 14th St. NW, Ste. 400

Washington, DC 20005

(202) 736-2200

mgaber@campaignlegal.org

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

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

SUMMARY OF ARGUMENT .................................... 1

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

I.

Gingles 1 requires an illustrative map that is

consistent with constitutional consideration

of race. ................................................................ 5

A. Gingles 1 identifies the potential of racial

vote dilution and nothing more. .................... 5

B. The Equal Protection Clause does not apply

to illustrative maps offered to satisfy

Gingles 1. ........................................................ 9

II. The flexible remedies available for Section 2

violations relieve Appellants’ equal protection

concerns. .............................................................. 14

A. Illustrative Gingles 1 maps are not the same

as a remedial map. ....................................... 15

B. Appellants manufacture limits on their

remedial authority. ...................................... 18

C. Alabama has numerous remedial options. . 21

D. The presented illustrative maps are not

racial gerrymanders. .................................... 33

ii

E. Appellants’ arguments overlook alternative

Section 2 remedies. ...................................... 38

CONCLUSION .......................................................... 42

iii

TABLE OF AUTHORITIES

Cases

Abbott v. Perez, 138 S. Ct. 2305 (2018) .............. 18, 19

Abrams v. Johnson, 521 U.S. 74 (1997) ..................... 7

African American Voting Rights Legal Defense Fund,

Inc. v. Villa, 54 F.3d 1345 (8th Cir. 1995) ............ 9

Anne Harding v. County of Dallas, Texas, 948 F.3d

302 (5th Cir. 2020) ................................................. 9

Backus v. South Carolina,

857 F. Supp. 2d 553 (D.S.C. 2012) ........................ 7

Baird v. Consolidated City of Indianapolis,

976 F.2d 357 (7th Cir. 1992) ................................. 8

Balderas v. Texas, No. 6:01-cv-158, 2001 WL

36403750 (E.D. Tex. Nov. 14, 2001)...................... 7

Bartlett v. Strickland, 556 U.S. 1 (2009)... … 6, 17, 19,

32, 33

Bethune-Hill v. Virginia State Board of Elections,

137 S. Ct. 788 (2017).......................... 11, 13, 18, 20

Bone Shirt v. Hazeltine,

461 F.3d 1011 (8th Cir. 2006) ....................... 14, 16

Branch v. Smith, 538 U.S. 254 (2003)...................... 39

Bridgeport Coalition for Fair Representation v. City

of Bridgeport, 26 F.3d 271 (2d Cir. 1994) ........... 14

iv

Broward Citizens for Fair Districts v. Broward

County, No. 12-cv-60317, 2012 WL 1110053

(S.D. Fla. Apr. 3, 2012) .......................................... 7

Bush v. Vera, 517 U.S. 952 (1996) .............. 3, 7, 11, 36

Cane v. Worcester County, Maryland,

35 F.3d 921 (4th Cir. 1994) ................................. 14

City of Bridgeport v. Bridgeport Coalition for Fair

Representation, 512 U.S. 1283 (1994) ................. 14

Civil Rights Cases, 109 U.S. 3 (1883)....................... 13

Clark v. Calhoun County, Mississippi,

88 F.3d 1393 (5th Cir. 1996) ............................... 14

Cooper v. Harris, 137 S. Ct. 1455 (2017)... 3, 7, 11, 13,

19, 20, 32, 34

Cox v. Larios, 542 U.S. 947 (2004) ........................... 23

Davis v. Board of School Commissioners of Mobile

County, 402 U.S. 33 (1971) .................................. 12

Davis v. Chiles, 139 F.3d 1414 (11th Cir. 1998) ...... 14

Dillard v. Chilton County Board of Education,

699 F. Supp. 870 (M.D. Ala. 1988) ...................... 41

Dillard v. Chilton County Commission,

868 F.2d 1274 (11th Cir. 1989) ........................... 39

Dillard v. Town of Cuba,

708 F. Supp. 1244 (M.D. Ala. 1988) .................... 41

v

Dillard v. Town of Louisville,

730 F. Supp. 1546 (M.D. Ala. 1990) .................... 39

Easley v. Cromartie, 532 U.S. 234 (2001) ................ 33

Fairley v. Hattiesburg Mississippi,

662 F. App’x 291 (5th Cir. 2016) ........................... 8

Growe v. Emison, 507 U.S. 25 (1993) ................... 9, 16

Hall v. Louisiana,

108 F. Supp. 3d 419 (M.D. La. 2015) .................... 9

Hall v. Virginia, 385 F.3d 421 (4th Cir. 2004)........... 7

Harper v. City of Chicago Heights, 223 F.3d 593

(7th Cir. 2000) ...................................................... 41

Holder v. Hall, 512 U.S. 874 (1994) ................. 3, 9, 39

Holt v. Hobbs, 574 U.S. 352 (2015) .......................... 12

Houston Lawyers’ Association v. Attorney General of

Texas, 501 U.S. 419 (1991) .................................. 16

Johnson v. De Grandy,

512 U.S. 997 (1994).................................. 7, 8, 9, 33

Kelley v. Board of Trustees,

35 F.3d 265 (7th Cir. 1994) ................................. 12

Lawyer v. Department of Justice,

521 U.S. 567 (1997)........................................ 19, 32

League of United Latin American Citizens v. Perry,

548 U.S. 399 (2006).......................... 6, 7, 17, 18, 23

vi

McGhee v. Granville County, N.C.,

860 F.2d 110 (4th Cir. 1988) ............................... 41

Miami University Wrestling Club v. Miami

University, 302 F.3d 608 (6th Cir. 2002) ............ 12

Miller v. Johnson, 515 U.S. 900 (1995) .... …11, 13, 33,

36, 37

Missouri State Conference of the NAACP v. FergusonFlorissant School District,

894 F.3d 924 (8th Cir. 2018) ............................... 14

Neal v. Board of Trustees of California State

Universities, 198 F.3d 763 (9th Cir. 1999).......... 12

North Carolina v. Covington,

138 S. Ct. 2548 (2018).......................................... 18

Reynolds v. Sims, 377 U.S. 533 (1964) ..................... 18

Sanchez v. Colorado,

97 F.3d 1303 (10th Cir. 1996) ............................. 14

Shaw v. Hunt, 517 U.S. 899 (1996) ............................ 7

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

Swann v. Charlotte-Mecklenburg Board of

Education, 402 U.S. 1 (1971) .............................. 12

Thornburg v. Gingles,

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

United States v. City of Eastpointe, No. 4:17-cv10079, 2019 WL 2647355

(E.D. Mich. June 26, 2019) .................................. 41

vii

United States v. Euclid City School Board,

632 F. Supp. 2d 740 (N.D. Ohio 2009) ................ 41

United States v. Montgomery County Board of

Education, 395 U.S. 225 (1969) .......................... 12

United States v. Morrison, 529 U.S. 598 (2000) ...... 13

United States v. Village of Port Chester,

704 F. Supp. 2d 411(S.D.N.Y. 2010) ................... 41

Upham v. Seamon, 456 U.S. 37 (1982) .................... 19

Voinovich v. Quilter, 507 U.S. 146 (1993) ............ 9, 19

White v. State of Ala.,

867 F. Supp. 1519 (M.D. Ala. 1994) .................... 39

White v. State of Ala., 74 F.3d 1058

(11th Cir. 1996) .................................................... 39

Wisconsin v. Yoder, 406 U.S. 205 (1972) .................. 12

Wisconsin Legislature v. Wisconsin Elections

Commission, 142 S. Ct. 1245 (2022) ..................... 5

Wright v. Sumter County Board of Elections &

Registration, 979 F.3d 1282 (11th Cir. 2020) ..... 16

Statutes

52 U.S.C. § 10301 ............................................... passim

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

viii

Other Authorities

Benjamin P. Lempert, Ranked-Choice Voting As

Reprieve from the Court-Ordered Map,

119 Mich. L. Rev. 1785 (2021) ............................. 40

Richard L. Engstrom, Cumulative and Limited

Voting: Minority Electoral Opportunities and

More, 30 St. Louis U. Pub. L. Rev. 97 (2010) ..... 40

Steven J. Mulroy, The Way Out: A Legal Standard

for Imposing Alternative Electoral Systems As

Voting Rights Remedies, 33 Harv. C.R.-C.L. L.

Rev. 333 (1998) .................................................... 40

1

INTEREST OF AMICUS CURIAE1

Amicus curiae Campaign Legal Center (“CLC”) is

a leading nonpartisan election law nonprofit. CLC

develops policy on a range of democracy issues. CLC

aims to protect Americans’ voting rights and secure

equal access for historically disenfranchised racial

minorities under the Constitution and the Voting

Rights Act (“VRA”). CLC regularly litigates Section 2

vote dilution cases. CLC’s attorneys have decades of

expertise with the VRA. CLC has an interest in

ensuring that Section 2, a critical tool in enforcing the

Fourteenth Amendment’s equal protection guarantee,

is not undermined by the distorted arguments

Appellants advance here.

SUMMARY OF ARGUMENT

Section 2 presents a limited but necessary

constraint

on

jurisdictions,

requiring

that

redistricting plans may not “abridge[]” minority

voters’ equal “opportunity … to participate in the

political process and to elect representatives of their

choice.” 52 U.S.C. § 10301. Since the Court adopted

the framework for Section 2 vote dilution claims in

Thornburg v. Gingles, 478 U.S. 30 (1984), it has

developed several additional rules limiting the scope

of liability while expanding the available remedies.

These standards make it harder for plaintiffs to

1 Under Rule 37.6, counsel for amicus curiae certifies 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 curiae, their

members, or their counsel has made a monetary contribution

intended to fund the preparation or submission of this brief.

Appellants and Appellees have consented to this filing.

2

establish a Section 2 violation but easier for

jurisdictions to devise a resolution once established.

Appellants, however, contort these settled rules

to put them at odds with each other. They argue that

the threshold evidentiary step requiring plaintiffs to

present illustrative districts in which minority voters

could control electoral outcomes somehow makes

jurisdictions focus too much on race when remedying

a proven Section 2 violation.

The statute demands nothing of the sort for three

reasons. First, Section 2 plaintiffs’ obligation to

provide illustrative maps containing majorityminority districts—mandated by the Court’s decisions

as an evidentiary precondition—is a limit on liability

rather than an imposition on states. It is one

requirement among several that plaintiffs must

satisfy, and it does not create problems under the

Equal Protection Clause. Second, states are in no way

constrained to resolve a Section 2 violation with an

illustrative plan that plaintiffs introduce in evidence.

They instead have broad discretion to timely remedy

the violation. The Singleton Plaintiffs offer one

example. Amicus offers two more in this brief—maps

that remedy the Section 2 violation while better

respecting Alabama’s redistricting criteria than does

the enacted plan. Third, many Section 2 violations can

be corrected through remedies that have nothing to do

with redistricting or race. To make their sweeping

attack on Section 2, Appellants simply ignore the

many other contexts in which claims arise and

disregard that lower courts and opinions of this Court

have endorsed alternative remedies to Section 2

3

violations.

Accepting Appellants’ flawed understanding of

Section 2 would contradict the statute’s text and

longstanding practice, and require effectively

“overruling a sizable number of this Court’s

precedents.” Holder v. Hall, 512 U.S. 874, 965 (1994)

(Stevens, J., dissenting) (collecting cases). This

includes not just Thornburg v. Gingles—the “seminal

§ 2 vote-dilution case,” Brnovich v. DNC, 141 S. Ct.

2321, 2337 (2021)—but numerous recent cases

reaffirming the contours of Section 2 and its

relationship with the Equal Protection Clause. See,

e.g., Cooper v. Harris, 137 S. Ct. 1455, 1470 (2017).

Appellants’ invitation to reimagine Section 2

undermines this indispensable “apparatus chosen by

Congress to effectuate this Nation’s commitment ‘to

confront its conscience and fulfill the guarantee of the

Constitution’ with respect to equality in voting,”

which—far from a violation of the Constitution—is

“necessary and appropriate to ensure full protection of

the Fourteenth and Fifteenth Amendments rights.”

Bush v. Vera, 517 U.S. 952, 992 (1996) (O’Connor, J.,

concurring) (quotations omitted).

Not even a decade ago, this Court reinforced that

Section 2 would keep the promise of the VRA alive by

providing a “permanent, ... nationwide” protection

that “is available in appropriate cases to block voting

laws from going into effect.” Shelby County v. Holder,

570 U.S. 529, 537 (2013). Now, the Court should make

good on that promise by rejecting Appellants’ attempt

to put an end to the VRA.

4

ARGUMENT

Appellants distort this Court’s Section 2

jurisprudence to advance their argument on appeal.

Two stages in a Section 2 vote dilution case involve

generating alternative maps. The first is one of

Section 2’s evidentiary preconditions, often called

“Gingles 1”: plaintiffs must identify an alternative

illustrative map in which a sufficiently numerous and

compact group of minority voters could constitute a

majority of voters in a reasonable district. Gingles 1

limits Section 2 liability to circumstances in which

minority voters are so packed or cracked among

existing districts that a different configuration would

allow them, without a single vote from non-minority

voters, to elect additional candidates of their choice in

more districts than the enacted map allows. When

combined with a showing that there is a large degree

of racial polarization in voting in the jurisdiction, the

presentation of such a demonstration district is a red

flag that minority voters may be underrepresented,

whether intentionally or not. But the liability

determination begins, not ends, with that showing;

plaintiffs must meet an exacting test to demonstrate

a violation.

The second stage involving alternative maps is

the remedy. If liability is established, the jurisdiction

has the first chance to offer a solution. Often, this

solution is a remedial map of alternative singlemember districts. But the government has substantial

flexibility to resolve most Section 2 violations through

other means as well—including cumulative or rankedchoice voting systems that involve zero consideration

5

of race.

The Court’s carefully calibrated standards for

proving Section 2 liability and adopting a remedy

provide an already limited, but nonetheless crucial,

means of addressing racial vote dilution. And they

have worked in this case. CLC shows below, see infra

Part II, that Alabama could have avoided liability—

and can remedy the finding of liability—by drawing

two crossover districts that offend none of the

districting priorities it trumpets in its brief. Indeed, it

can do so while improving on those priorities. The

Court should reject Appellants’ invitation to upend its

Section 2 precedent.

I.

Gingles 1 requires an illustrative map that

is

consistent

with

constitutional

consideration of race.

To establish a Section 2 vote dilution claim,

plaintiffs must present convincing evidence that the

three liability preconditions are satisfied and that the

challenged practice is discriminatory under the

totality of circumstances. Wisc. Legis. v. Wisc.

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

first precondition, Gingles 1, is the only element at

issue here. Gingles 1 is a bright-line requirement

interpreted from Section 2’s text that poses no

constitutional concerns.

A. Gingles 1 identifies the potential of

racial vote dilution and nothing more.

The first Gingles precondition, if satisfied, raises

an inference of vote dilution in the State’s plan by

demonstrating an objective, potential alternative

6

district. Section 2 prohibits voting practices that

“result in a denial or abridgment of the right of any

citizen … to vote,” such that they have “less

opportunity than other members of the electorate to

participate in the political process and to elect

representatives of their choice” because of their “race

or color, [or language-minority status].” 52 U.S.C.

§ 10301.

To assess whether a minority voter has an equal

“opportunity . . . to elect” their preferred candidate, 52

U.S.C. § 10301(b), that opportunity must be measured

“in relation to” the majority group’s opportunity.

Gingles, 478 U.S. at 50 n.17. This Court has

interpreted Section 2’s text strictly, reasoning that the

phrase “to elect” requires a showing that minority

voters “based on their own votes and without

assistance from others” would have additional

opportunity to elect candidates if different—though

similarly compact—district configurations had been

drawn. Bartlett v. Strickland, 556 U.S. 1, 15 (2009)

(plurality opinion).

When the illustrative map “create[s] more than

the existing number of reasonably compact districts

with a sufficiently large minority population to elect

candidates of its choice,” LULAC v. Perry, 548 U.S.

399, 430 (2006), a plaintiff satisfies the threshold step

of showing the possibility of “a wrong” and

corresponding potential for “a remedy,” Bartlett, 556

U.S. at 15.

Appellants’ assertion that Gingles 1 “mandat[es]

maximization of majority-minority districts,” Br. at

53, is unfounded. To start, this Court in Cooper v.

7

Harris explicitly rejected interpreting Section 2 to

require that “whenever a legislature can draw a

majority-minority district, it must do so—even if a

crossover district would also allow the minority group

to elect its favored candidates.” 137 S. Ct. at 1472.

Regardless, far from a maximization mandate, this

Court has instead limited Section 2 based on Gingles

1 in several respects.

First, this Court has routinely rejected

arguments that Section 2 requires drawing a

minority-opportunity district where Gingles 1’s

compactness standards are not met. See, e.g., LULAC

v. Perry, 548 U.S. 399, 434-45 (2006); Abrams v.

Johnson, 521 U.S. 74, 91-95 (1997); Shaw v. Hunt, 517

U.S. 899, 916-18 (1996) (“Shaw II”); Bush, 517 U.S. at

976-81. Lower courts follow suit.2

Second, the Court has further limited the scope of

Section 2 by considering whether rough racial

proportionality already exists—a factor that can count

against plaintiffs. See Johnson v. De Grandy, 512 U.S.

997, 1014 (1994); see id. at 1025 (O’Connor, J.,

concurring). “[A]ny theory of vote dilution must

necessarily rely to some extent on a measure of

minority voting strength that makes some reference

to the proportion between the minority group and the

electorate at large.” Gingles, 478 U.S. at 84 (O’Connor,

2 See e.g., Backus v. South Carolina, 857 F. Supp. 2d 553, 567

(D.S.C.), aff’d, 568 U.S. 801 (2012); Broward Citizens for Fair

Districts v. Broward Cty., No. 12-cv-60317, 2012 WL 1110053, at

*5 (S.D. Fla. Apr. 3, 2012); Hall v. Virginia, 385 F.3d 421, 430

(4th Cir. 2004); Balderas v. Texas, No. 6:01-cv-158, 2001 WL

36403750, at *5 (E.D. Tex. Nov. 14, 2001).

8

J., concurring). Crucially, though, this baseline of

proportionality across an electorate often functions as

a limit on how many minority-opportunity districts

are available, and never as a remedial command. De

Grandy, 512 U.S. at 1014 n.11. The baseline anchors

Section 2 only to relative “opportunit[ies] . . . to

elect”—not to any “right to have members of a

protected class elected in numbers equal to their

proportion in the population.” 52 U.S.C. § 10301;

contra, e.g., Br. at 39-40.

Proportionality, then, “is always relevant

evidence in determining vote dilution, but is never

itself dispositive.” De Grandy, 512 U.S. at 1025

(O’Connor, J., concurring). And courts have

interpreted this relevant consideration to restrict

drawing more minority-opportunity districts where

the illustrative maps show that the minority group

already has opportunity to elect candidates

commensurate with its voting strength. See id. at

1017-20 (majority opinion); see also, e.g., Baird v.

Consol. City of Indianapolis, 976 F.2d 357, 361 (7th

Cir. 1992) (rejecting Section 2 claim based on finding

rough proportionality); Fairley v. Hattiesburg

Mississippi, 662 F. App’x 291, 301 (5th Cir. 2016)

(same). Alabama is case in point that Gingles 1

mandates neither proportionality nor majorityminority district maximization. Across the State,

“Black Alabamians are sufficiently numerous to

constitute majorities of three out of seven

congressional districts,” yet all agree that because of

the Gingles 1 constraint, no more than two districts

may be drawn to remedy the Section 2 vote dilution.

MSA56 (emphasis added).

9

Moreover, Appellants’ suggestion that the

Gingles 1 standard makes establishing Section 2

liability too easy, Br. at 65, also disregards the

numerous additional requirements that often cause

plaintiffs to lose despite having met Gingles 1. See,

e.g., Growe v. Emison, 507 U.S. 25, 41-42 (1993)

(plaintiff failed to establish Gingles 2); Voinovich v.

Quilter, 507 U.S. 146, 158 (1993) (Gingles 3); De

Grandy, 512 U.S. at 1008-09 (totality of

circumstances); Anne Harding v. Cty. of Dallas, 948

F.3d 302, 309 (5th Cir. 2020) (Gingles 2); Hall v.

Louisiana, 108 F. Supp. 3d 419, 429, 434-37 (M.D. La.

2015) (Gingles 3); Afr. Am. Voting Rts. Legal Def.

Fund, Inc. v. Villa, 54 F.3d 1345, 1352, 1355-56 (8th

Cir. 1995) (totality of circumstances). The district

court’s decision in this case would have been much

shorter than 234 pages if Gingles 1 were the ballgame.

Overall, Gingles 1 serves a narrow function: it

solicits an undiluted illustrative map to determine

whether a racial vote dilution injury might exist. At

the same time, it provides “determinable constraint[]

on the dilution inquiry” by holding plaintiffs to brightline requirements and reinforcing that Section 2 is not

a proportional representation mandate. Holder, 512

U.S. at 888 (O’Connor, J., concurring) (citation and

quotations omitted).

B. The Equal Protection Clause does not

apply to illustrative maps offered to

satisfy Gingles 1.

Overlooking that Gingles 1 is a mandatory

precondition interpreted from Section 2’s text that

limits liability, Appellants seek to use it as a reason

10

to curtail the statute. They argue that because

plaintiffs complying with Gingles 1’s evidentiary

requirements must illustrate districts meeting a

court-required racial population threshold, Section 2

affronts the Equal Protection Clause. Br. at 8, 47-50.

Because, on Appellants’ theory, race may never

“predominate in redistricting, no matter what the

reason,” id. at 37, plaintiffs satisfy Gingles 1 only by

proffering randomly generated illustrative plans that

may somehow satisfy Bartlett’s and LULAC’s

numerosity and compactness requirements. Br. at 48.

Otherwise, they say, Section 2 would permit

“plaintiffs to draw maps in ways that States never

could.” Id. Appellants betray a fundamental

misunderstanding of this Court’s precedent and of the

separate endeavors of plaintiffs offering an

illustrative plan and states enacting a remedial map.

First, Appellants’ position is irreconcilable with

this Court’s racial gerrymandering doctrine.

Appellants ground their argument in Shaw v. Reno,

509 U.S. 630 (1993) (“Shaw I”), but they distort the

Court’s holding and the subsequent development of its

doctrine. In Shaw I, the Court held that “a

reapportionment scheme so irrational on its face that

it can be understood only as an effort to segregate

voters into separate voting districts because of their

race” is justified under the Equal Protection Clause

only if it “is narrowly tailored to further a compelling

governmental interest.” Id. at 658. Contrary to

Appellants’ insistence that this holding means

redistricting must be wholly race-blind, the Shaw

doctrine does not forbid redistricting “performed with

consciousness of race,” nor demand strict scrutiny in

11

“all cases of [a State’s] intentional creation of

majority-minority districts.” Bush, 517 U.S. at 958-59

(plurality opinion). It instead requires strict scrutiny

only in those narrow circumstances in which “race

was the predominant factor motivating the

[redistricting] decision.” Cooper, 137 S. Ct. at 1463-64

(quoting Miller v. Johnson, 515 U.S. 900, 916 (1995))

(emphasis added).

Even when race is the predominant consideration

motivating a redistricting plan, that just means that

the plan is subject to strict scrutiny. Bush, 517 U.S. at

958. And a redistricting plan designed to comply with

Section 2 can and often does satisfy strict scrutiny.

That is so when the plan is “narrowly tailored” to

satisfy the “compelling interest” of complying with the

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

Ct. 788, 800-01 (2017). What’s more, a state need not

wait for the remedial phase of a Section 2 suit to

reduce vote dilution. Redistricting may be conducted

in a race-conscious manner when the mapmaker has

a “strong basis in evidence” for believing racial

considerations are necessary to avoid vote dilution—

“even if a court does not find that the actions were

necessary.” Id. at 801. Appellants’ conclusion that a

Section 2 plaintiff is prohibited from considering race

in devising its illustrative plan because a “State[]

never could,” Br. at 48, is based on a false legal

premise.

Second, it is unremarkable that the Equal

Protection Clause permits the government to be

conscious of a protected class in fashioning a remedy

for discrimination against that class. To the contrary,

12

it is a necessary part of anti-discrimination law.

In other race discrimination contexts, this Court

has long-recognized the necessity of appropriately

race-conscious remedies. See, e.g., Swann v.

Charlotte-Mecklenburg Board of Education, 402 U.S.

1 (1971); Davis v. Bd. of Sch. Comm’rs of Mobile Cty.,

402 U.S. 33 (1971); United States v. Montgomery Cty.

Bd. of Educ., 395 U.S. 225 (1969). In Swann, for

example, the Court unanimously held that the

Constitution does not require remedying racial

discrimination “on a ‘color blind’ basis,” 402 U.S. at 19,

explaining instead that “[a]wareness of [] racial”

demographics “is likely to be a useful starting point in

shaping a remedy to correct” discrimination, id. at 25.

Similarly, in sex discrimination cases under Title

IX, courts routinely permit universities to calibrate

athletic opportunities on the basis of sex to eliminate

sex-based imbalances. See, e.g., Neal v. Bd. of Trustees

of Calif. State Univs., 198 F.3d 763, 772-73 (9th Cir.

1999); Kelley v. Board of Trustees, 35 F.3d 265, 272

(7th Cir. 1994); Miami University Wrestling Club v.

Miami University, 302 F.3d 608, 613-14 (6th Cir.

2002).

The same is true in religious discrimination cases,

where the Court necessarily considers the protected

faith to remedy faith-based discrimination. See, e.g.,

Holt v. Hobbs, 574 U.S. 352, 361-63 (2015); Wisconsin

v. Yoder, 406 U.S. 205, 235 (1972). The VRA is no

different. Considering race to remedy or prevent

racial vote dilution abides the generally accepted

principle that remedying or avoiding discrimination

often

requires

considering

the

protected

13

characteristic.

Appellants’ argument is that plaintiffs cannot

proffer evidence of racial discrimination mandated by

Gingles 1 because to do so makes judges see race. This

is a remarkable perversion of the Fourteenth

Amendment, which, it bears reminding, was ratified

in response to the Civil War, slavery, and political

suppression of, among others, Black Alabamians. The

Reconstruction Republican Congress would not

recognize the version of the Fourteenth Amendment

that Appellants advocate today.

Third, whatever the proper standard of scrutiny

for reviewing the government’s consideration of race

in redistricting, that standard does not apply to a

plaintiff’s Gingles 1 evidentiary showing. Without

question, “the prohibitions of the [fourteenth]

amendment” apply only to state action. C.R. Cases,

109 U.S. 3, 13 (1883); accord United States v.

Morrison, 529 U.S. 598, 621 (2000). The “Equal

Protection Clause prohibits a State without sufficient

justification, from ‘separat[ing] its citizens into

different voting districts on the basis of race.’”

Bethune-Hill, 137 S. Ct. at 797 (quoting Miller, 515

U.S., at 911) (emphasis added); accord Cooper, 137 S.

Ct. at 1463.

Section 2 plaintiffs mounting their evidence are

not operating as a state actor; they are not bound by

Equal Protection Clause constraints when proposing

illustrative maps that need not become government

action. Recognizing this, every circuit court met with

a Shaw objection to a plaintiff’s illustrative plan has

dismissed the argument for conflating a plaintiff’s

14

burden under Gingles with the government’s

obligations under Shaw.3 Regardless, even if

illustrative plans were subject to equal protection

restraints, the panel below did not clearly err in

concluding that race did not predominate in drawing

the Gingles 1 districts here. MSA183.

In sum, doctrinally, practically, and based on the

record, the Gingles 1 requirement serves its

“gatekeeping role” to limit Section 2 claims, Br. at 47,

without needing to be reimagined under Shaw

jurisprudence. A plaintiff’s illustrative plans merely

establish the undiluted baseline against which a

challenged plan is measured and, as described below,

does not mandate the ultimate remedy.

II. The flexible remedies available for Section 2

violations

relieve

Appellants’

equal

protection concerns.

The Gingles 1 evidentiary requirement and the

need to devise a remedy upon finding a Section 2

violation are distinct steps legally, functionally, and

in their objectives. In conflating the two, Appellants

dramatically expand the Court’s equal protection

3 Bridgeport Coal. for Fair Representation v. City of Bridgeport,

26 F.3d 271, 278 (2d Cir. 1995), vacated sub nom. on other

grounds City of Bridgeport v. Bridgeport Coal. for Fair

Representation, 512 U.S. 1283 (1994); Cane v. Worcester Cty., 35

F.3d 921, 926 n.6 (4th Cir. 1994); Clark v. Calhoun Cty., 88 F.3d

1393, 1406-07 (5th Cir. 1996); Mo. State Conf. of the NAACP v.

Ferguson-Florissant Sch. Dist., 894 F.3d 924, 934-35 (8th Cir.

2018); Sanchez v. Colorado, 97 F.3d 1303, 1329 (10th Cir. 1996);

Bone Shirt v. Hazeltine, 461 F.3d 1011, 1019 (8th Cir. 2006);

Davis v. Chiles, 139 F.3d 1414, 1425 (11th Cir. 1998).

15

jurisprudence and discard decades of Section 2

precedent. They also invent new limits on their own

remedial authority by implying that Appellees’

Gingles 1 illustrative plans will necessarily become

law. This is not how redistricting litigation works.

Rather than accepting Appellants’ imaginative

but wrong depiction of the doctrine, the Court should

reinforce a basic rule: while this Court’s bright-line

Gingles 1 requirement explicitly prompts considering

race to prove liability, that consideration is neither

constitutionally suspect nor an undue imposition on

the government. Whatever consideration of race is

done to draw illustrative maps says nothing about the

range of possible remedies the jurisdiction may

implement to simultaneously avoid vote dilution and

impermissible race-based districting.

Below, Amicus describes these principles and

provides a sample of potential remedial plans—among

“thousands” of available undiluted maps, MSA56—

that correct the Section 2 violations here.

Additionally, in many other cases, Section 2 provides

jurisdictions significant latitude to adopt alternative

voting systems as remedies that cannot be framed as

race conscious. Appellants simply disregard these

numerous remedial options, which heed the Court’s

equal protection guidance, enable jurisdictions to

satisfy their designated policy priorities, and remove

the avoidable dilution of voters of color in

redistricting.

A. Illustrative Gingles 1 maps are not the

same as a remedial map.

Once Section 2 plaintiffs establish vote dilution

16

by proving the three Gingles preconditions and the

totality-of-circumstances considerations, the court

proceeds to the subsequent remedy phase.

Though the Gingles 1 liability requirement and

the remedy phase operate separately, these stages are

related in three respects. First, this Court has held

that proving Gingles 1 is a necessary precondition:

unless minorities have “the potential to elect a

representative of [their] own choice in some

[alternative] single-member district … there neither

has been a wrong nor can be a remedy.” Growe, 507

U.S. at 40-41. Second, an illustrative plan can—but

certainly not must—become the remedial plan,

depending on the flexible decision-making of the

jurisdiction and the factual circumstances of the case.

See, e.g., Bone Shirt v. Hazeltine, 461 F.3d 1011, 1019

(8th Cir. 2006). Third, where a Section 2 violation

cannot be remedied without offending equal

protection safeguards, including through adopting an

illustrative plan, a court may then be “precluded from

finding an ongoing section 2 violation.” Wright v.

Sumter Cty. Bd. of Elections & Registration, 979 F.3d

1282, 1303 (11th Cir. 2020) (citation and quotations

omitted); accord Houston Lawyers’ Ass’n v. Att’y Gen.

of Texas, 501 U.S. 419, 426 (1991) (reasoning that the

inability to fashion a remedy may “preclude a finding

that vote dilution has occurred under the ‘totality of

the circumstances’ in a particular case”).4

4 But these circumstances will be rare because this Court has

interpreted Gingles 1 to require illustrative maps that also “take

into account ‘traditional districting principles such as

17

Apart from these discrete touchpoints, the

Gingles 1 illustrative plan requirement and the

remedial map phase diverge significantly in their

functions and legal frameworks. For numerosity,

Bartlett recognized that “Section 2 allows States to

choose their own method of complying with the Voting

Rights Act, and we have said that may include

drawing crossover districts.” 556 U.S. at 23. The

consideration of compactness also differs at the two

phases. An illustrative plan accounts for “the

compactness of the minority population,” while a

challenged remedial plan analyzes compactness in

“the contours of district lines to determine whether

race was the predominant factor in drawing those

lines.” LULAC, 548 U.S. at 433 (citations omitted).

In short, the maps produced at the two stages

simply answer different questions: Gingles 1 indicates

that it is possible to avoid vote dilution present in an

enacted redistricting plan, while a proposed remedial

plan generates the solution to that established

violation. The panel below recognized these

differences, noting that finding Section 2 liability

“would not be a determination that the Milligan

plaintiffs are entitled to a map of their choice, or to

one of the remedial maps submitted to establish the

first Gingles requirement[.]” MSA53-54.5

maintaining communities of interest and traditional

boundaries.’” LULAC, 548 U.S. at 433 (citation omitted).

5 Although at times the district court used a shorthand to refer

to illustrative Gingles 1 maps as “remedial maps,” the panel

clearly understood the differences between the two stages. See,

e.g., MSA50, 52-54, 94-96, 174, 179-80, 183, 215-16, 221-23.

18

B. Appellants manufacture limits on their

remedial authority.

Disregarding these well-settled principles,

Appellants insist that the Gingles 1 requirement

somehow ties states’ hands at the remedy phase by

forcing states into a “virtually impossible” situation

where “traditional [redistricting] principles yield to

race-based line-drawing from the start.” Br. at 68.

Upon manufacturing this dilemma, Appellants then

contend that Section 2 therefore “runs headlong into

the Fourteenth Amendment’s equal protection

guarantee.” Id. at 71. Manipulating the VRA and the

Equal Protection Clause in this manner undermines

decades of precedent calibrating the bounds of Section

2 and the Shaw v. Reno doctrine. See supra Part I.B.

But it also contorts this Court’s core equitable

redistricting principles beyond recognition.

For fifty years, the Court in redistricting

litigation has consistently ruled that a violating

jurisdiction should have the first opportunity to, in

good faith, fashion a remedy. See North Carolina v.

Covington, 138 S. Ct. 2548, 2554 (2018) (per curiam);

Reynolds v. Sims, 377 U.S. 533, 586 (1964). It has also

reinforced that, in doing so, the jurisdiction maintains

“‘broad discretion’ to comply [with Section 2] as it

reasonably s[ees] fit.” Abbott v. Perez, 138 S. Ct. 2305,

2333 (2018) (quoting LULAC, 548 U.S. at 429). As

such, devising an appropriate remedy necessarily

involves a fact-intensive, “functional analysis” that

varies case to case. Id. at 2335 (quoting Bethune-Hill,

137 S. Ct. at 801).

The narrow limits on jurisdiction’s flexible

19

remedial discretion are (1) the remedy must actually

“cure any constitutional or statutory defect,” Upham

v. Seamon, 456 U.S. 37, 43 (1982), and (2) the

jurisdiction must resolve the violation in

“a timely fashion after having had an adequate

opportunity to do so,” id. at 41. Past that, a

jurisdiction exercising its broad authority to first

develop a Section 2 remedy is encouraged—not only

as a matter of federalism but also to give flexibility to

Section 2-violating jurisdictions—to avoid a potential

later equal protection challenge.

The option to adopt crossover districts as Section

2 remedies provides jurisdictions greater flexibility at

the remedial stage—and when enacting maps in the

first place—than plaintiffs have in producing

illustrative maps under Gingles 1. Crossover districts

have a cohesive group of minority voters who “are

numerous enough and their candidate attracts

sufficient crossover votes from white voters” to elect

minority-preferred candidates despite lacking a

numerical majority in the district. Voinovich, 507 U.S.

at 154; accord Cooper, 137 S. Ct. at 1470. “States that

wish to draw crossover districts” to comply with

Section 2 in the first place “are free to do so,” Bartlett,

556 U.S. at 23-24, and states that needlessly

eliminate performing crossover districts in the name

of Section 2 violate equal protection mandates.

Cooper, 137 S. Ct. at 1472. Thus, “draw[ing]

‘opportunity’ districts in which minority groups form

‘effective majorit[ies]’” through forming coalitions

suffices to avoid both constitutional and Section 2

defects. Abbott, 138 S. Ct. at 2315 (citation omitted);

see also Lawyer v. Dep’t of Just., 521 U.S. 567, 581-82

20

(1997) (approving crossover districts remedy). As the

district court repeatedly recognized here, crossover

districts are available solutions in Alabama that give

the State remedial flexibility. MSA6-8, 32, 38 n.7, 211.

In fact, equal protection concerns may arise

where the jurisdiction fails to exercise this careful

discretion to consider crossover districts and instead

inflexibly acts as if it must hit certain racial

population quotas in a Section 2 district. Cooper, 137

S. Ct. at 1468-69; Bethune-Hill, 137 S. Ct. at 800.6 But

even then, jurisdictions complying with the VRA have

considerable leeway; as noted supra Part I.B., the

“strong basis (or ‘good reasons’) standard” developed

under the Shaw v. Reno doctrine “gives States

‘breathing room’ to adopt reasonable [Section 2]

compliance measures that may prove, in perfect

hindsight, not to have been needed.” Cooper, 137 S.

Ct. at 1464 (quotation omitted); see also id. at 1491-92

(Alito,

J.,

dissenting)

(emphasizing

“the

high evidentiary standard that our cases require

challengers to meet in order to prove racial

predominance”).

Accordingly, Appellants’ effort to set aside

precedent and conflate Gingles 1 with the remedial

redistricting phase should be rejected. The available

options for Alabama to enact a sufficient remedy are

numerous.

6 Alabama rejecting the Singleton Plaintiffs’ proposed plan in

favor of pursuing a majority-Black district is such an instance.

21

C. Alabama

options.

has

numerous

remedial

Alabama has several available remedial options.

Below are two maps that Amicus offers to illustrate

the ease with which Alabama can fashion a remedial

plan that meets the State’s priority criteria (better

than the enacted plan) while resolving the Section 2

violations here. These maps do so without

predominantly considering race in drawing district

lines, but rather by adhering to county boundaries

and undisputed non-racial communities of interest.

[IMAGE ON NEXT PAGE]

22

CLC Remedial Map 17

7 An interactive version of CLC Remedial Map 1, with metrics

showing its performance on various criteria, is available at

https://davesredistricting.org/join/9135080b-26bf-48f2-b5eaa14dae4993c2.

23

CLC Remedial Map 1 meets all of Alabama’s

baseline redistricting criteria. Its population

deviation is zero.8 All districts are contiguous. The

districts are reasonably compact, with Reock (0.3869)

and Polsby-Popper (0.2266) scores performing as good

as the enacted plan, see MSA63 n.9; SJA29, and the

map contains no problematic “tentacles, appendages,

bizarre shapes, or any other obvious irregularities.”

MSA171. It minimizes county, municipality, and

precinct splits, dividing the same number of counties

(six) and one fewer precinct compared to the enacted

plan. See SJA28. And the map reduces unnecessary

changes to the enacted plan by, for example, leaving

Districts 1, 4, and 5 entirely unchanged. MSA35;

SJA177.9

Critically, CLC Remedial Map 1 keeps together

key communities of interest in Alabama. Contrary to

the enacted plan, CLC Remedial Map 1 preserves the

Black Belt—a “community of interest of substantial

8 The closest to zero that is possible in Alabama is for six districts

to have a zero deviation and one district to have a plus-one

deviation.

9 Although incumbency protection, and the related “core

retention” of prior districts, are stated criteria in Alabama, the

court below rightly gave those considerations less than

dispositive weight. See, e.g., MSA181. This is because these

policies can be manipulated “to give an electoral advantage” at

the cost of other neutral factors, Cox v. Larios, 542 U.S. 947, 949

(2004) (Stevens, J., concurring), and can be used improperly to

worsen, instead of relieve, racial vote dilution. See LULAC, 548

U.S. at 441. Thus, incumbency protection and core retention

must give ground to the more important obligation to remedy

Section 2 vote dilution, which Alabama’s criteria list itself

recognizes. MSA33-34.

24

significance,” MSA175—in District 7 by combining

sixteen Black Belt counties from Sumter to Macon

while avoiding divisions in other areas. MSA39. It

likewise keeps Montgomery and Jefferson Counties

whole, whereas the enacted plan splits the cities of

Birmingham and Montgomery in half and largely

along racial lines. MSA57; SJA28.

CLC Remedial Map 1 also retains what

Appellants designate as other priority communities of

interest in the Gulf Coast and Wiregrass regions in

southern Alabama, see Br. at 9, 21, even though the

district court found the record identifying these

communities “less compelling.” MSA180. Identical to

the enacted plan, CLC Remedial Map 1 keeps Mobile,

Baldwin, Washington, Monroe, and almost all of

Escambia County together in District 1. District 2 in

CLC Remedial Map 1 also clusters the Wiregrass

counties—Houston, Covington, Coffee, Dale, Geneva,

and Henry—but diverges from the enacted plan in

southeast Alabama to avoid District 2 senselessly

dividing the Black Belt and Montgomery to the

northwest. And its configuration of District 6 is far

better at satisfying Alabama’s districting criteria than

the enacted plan’s treatment of Jefferson County.

25

CLC Remedial Map 1: Black Belt, Gulf Coast,

and Wiregrass Closeup (District 1: Blue,

District 2: Green, District 7: Brown)

In CLC Remedial Map 1, Districts 6 (in teal) and

7 (in brown) would provide Black voters an equal

opportunity to elect their candidates of choice. Black

voters constitute 41.2% (District 6) and 51.4%

(District 7) of the citizen voting-age population in the

districts.10 Recent election results show that the

The citizen voting-age population data are based upon the

Census Bureau’s 2016-2020 American Community Survey

10

26

Black-preferred candidates for the most recent eight

elections for statewide office would have carried each

district.11

This configuration is far from the only available

option. An alternative, CLC Remedial Map 2,12 shown

below, also satisfies Alabama’s redistricting criteria

but would enable the State to make other policy

tradeoffs while complying with Section 2.

estimates. The Black voting-age population according to the 2020

Census is 39.6% and 49.4% respectively.

11 The Black-preferred candidates would have carried District 6

with the following vote shares: 2020 President (54.2%), 2020

Senator (57.0%), 2018 Governor (57.3%), 2018 Attorney General

(56.6%), 2018 Lieutenant Governor (54.5%), 2017 Senator

(66.6%), 2016 President (49.7%), and 2016 Senator (50.2%). The

Black-preferred candidates would have carried District 7 with

the following vote shares: 2020 President (56.9%), 2020 Senator

(59.2%), 2018 Governor (58.2%), 2018 Attorney General (60.1%),

2018 Lieutenant Governor (57.8%), 2017 Senator (66.9%), 2016

President (55.2%), and 2016 Senator (55.0%).

12 An interactive version of CLC Remedial Map 2, with metrics

showing its performance on various criteria, is available at

https://davesredistricting.org/join/2c01747b-1661-441f-92d8c4d84848b680.

27

CLC Remedial Map 2

28

CLC Remedial Map 2 likewise meets baseline

redistricting criteria of population parity and district

contiguity. Its districts are reasonably compact, again

with Reock (0.4129) and Polsby-Popper (0.2516)

scores that perform better than the enacted plan.

SJA29. CLC Remedial Map 2 also minimizes county,

municipality, and precinct splits, splitting one fewer

precinct than the enacted plan and again just six

counties. And even more so than CLC Remedial Map

1, this potential remedy makes the minimum possible

adjustments to Alabama’s enacted plan to resolve the

Section 2 violations while meeting other criteria.13 For

example, Districts 1 (covering the Gulf Coast region),

4, and 5 are entirely unchanged between CLC

Remedial Map 2 and the enacted plan, and Districts 2

and 3 are closely analogous in both. SJA177.14 The

similarity is illustrated by a comparison to the

enacted plan, shown below.

District 6 (in teal) and District 7 (in brown) are again the

Black-opportunity districts. District 6 is unchanged from Map 1.

District 7’s Black citizen voting-age population is 48.3% and its

Black voting-age population is 46.2%. The Black-preferred

candidates would have carried District 7 with the following vote

shares: 2020 President (54.1%), 2020 Senator (56.4%), 2018

Governor (55.8%), 2018 Attorney General (57.5%), 2018

Lieutenant Governor (55.1%), 2017 Senator (64.8%), 2016

President (52.1%), and 2016 Senator (52.1%).

13

14 Map 2 keeps slightly fewer Black Belt counties together than

Map 1 (shifting Bullock and Macon Counties to District 2), but

as a tradeoff creates a more compact configuration of District 2.

29

District 7 in CLC Remedial Map 2 diverges to be

even more compact: unlike in the enacted plan, this

version of District 7 resolves the Section 2 violation

while keeping Montgomery whole; eliminating the

unexplained appendage that extends through

30

Jefferson County to grab half of Birmingham; and

retaining more of the Black Belt by including Butler,

Conecuh, and Montgomery Counties in the district.

Maps already in the record are also available

remedial options. For example, the Singleton Plan,

shown below, that was presented as a remedy for the

presently unresolved equal protection claim in a

related case would be a sensible solution that is

entirely anchored to respecting county lines. MSA3637.

[IMAGE ON NEXT PAGE]

31

This whole-county remedy would remove the

32

Section 2 vote dilution without any of the district line

rejiggering that the Court has typically deemed

hallmarks of a Shaw violation. See, e.g., Cooper, 137

S. Ct. at 1470-71; see also infra Part II.D. And devising

such a map imposes little burden on Alabama, given

that the Singleton Plan was “draw[n] … in part of an

afternoon.” MSA224.

The CLC remedial maps, as well as the Singleton

Plan, demonstrate how crossover districts can be used

to correct a vote dilution violation, even though such

districts are not available for Gingles 1 illustrative

plans. Indeed, Appellants stipulated that districts

with Black voting-age population figures such as

these, specifically those in the district makeup in the

Singleton Plan, would elect Black-preferred

candidates and therefore resolve the Section 2

violations. See, e.g., Milligan, Doc 82-5 at 7-14;

Singleton, Doc. 47 at 6. In both the CLC and Singleton

plans, preservation of county lines, reduction of

precinct

splits,

compactness,

and

retaining

communities of interest predominate. There is no

conceivable argument that race does.

The Court has endorsed precisely this type of

crossover districting to avoid a Section 2 problem in

the first place, Bartlett, 556 U.S. at 23; to draw lines

in a manner compliant with the Equal Protection

Clause, Cooper, 137 S. Ct. at 1472; and to remedy an

established Section 2 violation, see Lawyer, 521 U.S.

at 581-82 (approving district with 36.2% Black votingage population that “offers to any candidate, without

regard to race, the opportunity to seek and be elected

to office”). This is in part because adding voters to

33

potential remedial crossover districts is not done “on

the basis of race,” Miller, 515 U.S. at 911, but for the

“legitimate political explanation” that including other

socially and politically cohesive voters would avoid the

dilution of the minority voters already in the core of

the district. See Easley v. Cromartie, 532 U.S. 234, 242

(2001). Thus, in remedying Section 2 dilution with

crossover districts, “legislatures [are given] a choice

that can lead to less racial isolation, not more.”

Bartlett, 556 U.S. at 23. Such districts “diminish the

significance and influence of race by encouraging

minority and majority voters to work together toward

a common goal,” id., consistent with minority voters’

“obligation to pull, haul, and trade to find common

political ground” and “hasten the waning of racism in

American politics.” De Grandy, 512 U.S. at 1020.

Appellants’ contention that this Court’s Section 2

jurisprudence forces them to improperly consider race

attacks a strawman. Consistent with reality, this

Court should reject the State’s arguments.

D. The presented illustrative maps are not

racial gerrymanders.

Even if Alabama limited itself to adopting one of

the illustrative maps as the eventual remedial plan

here, no equal protection problems would arise. As the

district court noted, the eleven presented illustrative

plans respected traditional redistricting principles

throughout the process and did not permit race to

predominate. MSA213-14, 258-59. In fact, the panel

concluded that the illustrative plans “considered

many traditional redistricting principles” and

respected them “at least as much as” Alabama’s

34

enacted plan. MSA259. These determinations “as to

whether racial considerations predominated in

drawing district lines … are subject to review only for

clear error” and “warrant[] significant deference on

appeal.” Cooper, 137 S. Ct. at 1464-65 (citation

omitted).

In any event, the districts that this Court has

struck down as racial gerrymanders bear no

resemblance to what the plaintiffs proffered in their

illustrative maps in this case. In Shaw I, for example,

the Court rejected North Carolina District 12 as a

racial gerrymander, describing it as “160 miles long

and, for much of its length, no wider than the

[interstate] corridor” that “winds in snakelike fashion

through tobacco country, financial centers, and

manufacturing areas until it gobbles in enough

enclaves of black neighborhoods.” 509 U.S. at 635-36.

Later, the Court in Cooper rejected a modern iteration

of the same district ruled unconstitutional in Shaw I,

because it similarly went block-by-block adding Black

voters and subtracting white voters in a way the Court

held was only explainable by race. 137 S. Ct. at 147476. Both maps are shown below.

35

Congressional Map Invalidated in Shaw I

Congressional Map Invalidated in Cooper

36

In Miller, the Court struck down Georgia’s

“monstrosity” district that was anchored in the

“lightly populated, but heavily black” central part of

the State but then extended “links by narrow

corridors [to] the black neighborhoods in Augusta,

Savannah and southern DeKalb County” near

Atlanta. 515 U.S. at 909. These lines, the Court ruled,

were only explained by a desire to maximize the racial

composition in the district. Id. The Court reached a

similar conclusion in Bush, holding unconstitutional a

Texas district that “deliberately exclude[d]” white

voters by “extend[ing] fingers” into “outermost” areas

to “pick [] up” minority voters and appeared “like a

jigsaw puzzle ... in which it might be impossible to get

the pieces apart.” 517 U.S. at 965, 973.

Congressional Map Invalidated in Miller

37

Congressional Map Invalidated in Bush

In all these cases, the state attempted to use a

contrived fear of VRA liability as justification for

drawing districts blatantly along racial lines that

were “so bizarre on its face that it discloses a racial

design.” Miller, 515 U.S. at 900, 914.

Here, the illustrative plans fell within “a normal

range for congressional districts nationwide,” gave

38

“equal weighting to all traditional redistricting

criteria,” and “reflect[ed] the geographic dispersion of

Black residents across Alabama.” See MSA159, 166,

169; SJA27, 99-109 (displaying the illustrative plans

submitted by Dr. Moon Duchin and Mr. William

Cooper, respectively). Even if these plans were subject

to equal protection scrutiny, they are not

constitutionally suspect.

E. Appellants’

arguments

overlook

alternative Section 2 remedies.

If accepted, Appellants arguments attacking

Gingles 1 by expanding the Shaw doctrine could have

far-reaching

implications

beyond

Section

2

congressional redistricting cases. The outcome of this

case could affect the ability of jurisdictions and voters

to apply a broad range of remedies for vote dilution

that have nothing to do with single-member districts.

Appellants ignore that lower federal courts and

opinions of this Court have endorsed such alternative

remedies as race-neutral options to resolve Section 2

violations.

Section 2 applies to elections in every state and

political subdivision, reaching beyond congressional

redistricting to elections for school board, county

office, state legislatures, and more. Given this scope of

application, it is unsurprising that jurisdictions and

courts have developed a broad range of remedial

options to fix vote dilution apart from redrawing

single-member districts.

Neither Section 2’s text nor this Court’s precedent

limits jurisdictions’ remedial authority to only singlemember districts. To be sure, “single-member

39

districting schemes” are often used “both as a

benchmark for measuring undiluted minority voting

strength and as a remedial mechanism for

guaranteeing minorities undiluted voting power.”

Holder, 512 U.S. at 897 (Thomas, J., concurring). But

“there is no principle inherent in our constitutional

system, or even in the history of the Nation’s electoral

practices, that makes single-member districts the

proper mechanism for electing representatives to

governmental bodies or for giving undiluted effect to

the votes of a numerical minority.” Id. (quotations

omitted). Instead, jurisdictions and courts can adopt

“some other method [of voting] that would result in a

plan that satisfies the Voting Rights Act” apart from

single-member districts. Branch v. Smith, 538 U.S.

254, 310 (2003) (O’Connor, J., concurring in part and

dissenting in part with Thomas, J.).

In numerous VRA cases not involving

congressional redistricting, see id. at 266-67 (majority

opinion), jurisdictions and lower courts have devised

creative and constitutional solutions to vote dilution

problems.15 As of 2010, at least 100 local jurisdictions

across the country had at some point switched to

alternative methods of elections and many did so “in

response to vote dilution litigation under the” VRA.

Richard L. Engstrom, Cumulative and Limited

Voting: Minority Electoral Opportunities and More, 30

15 See, e.g., White v. State of Ala., 867 F. Supp. 1519, 1546 (M.D.

Ala. 1994), vacated on other grounds, 74 F.3d 1058 (11th Cir.

1996); Dillard v. Town of Louisville, 730 F. Supp. 1546, 1548

(M.D. Ala. 1990); Dillard v. Chilton Cty. Bd. of Educ., 699 F.

Supp. 870, 875 (M.D. Ala. 1988), aff’d sub nom. Dillard v. Chilton

Cty. Comm’n, 868 F.2d 1274 (11th Cir. 1989).

40

St. Louis U. Pub. L. Rev. 97, 98 (2010). Crucially,

alternative election systems can be used to avoid even

the appearance of race-conscious remedies because

such systems are, by definition, race neutral. See

Steven J. Mulroy, The Way Out: A Legal Standard for

Imposing Alternative Electoral Systems As Voting

Rights Remedies, 33 Harv. C.R.-C.L. L. Rev. 333, 339

(1998).

The most common alternative election methods

that are adopted to resolve Section 2 vote dilution

concerns include cumulative voting, limited voting,

and ranked-choice voting systems. Engstrom, supra,

at 98. In a cumulative voting system, all voters have

a certain number of votes that they can distribute

among a number of candidates for an election or

concentrate them on one candidate. Id. For limited

voting, a voter casts a number of votes which are less

than the number of candidates. Id. Finally, in a

ranked-choice voting system, voters cast their votes

for candidates in order of preference. Benjamin P.

Lempert, Ranked-Choice Voting As Reprieve from the

Court-Ordered Map, 119 Mich. L. Rev. 1785, 1790-91

(2021). In each system, the ability of cohesive minority

voters to elect their candidates of choice is enhanced

because they can more effectively coalesce and vote as

a bloc to elect the same preferred candidates. See

Mulroy, supra, at 339. Because alternative methods of

election do not require districting, jurisdictions may

implement these systems without fearing any

legitimate challenge that race played an excessive role

in remedying an alleged or proven Section 2 vote

dilution violation. Id.

41

In part because of these benefits, federal courts

have repeatedly approved adopting alternative

election methods as remedies for minority vote

dilution. For example, some jurisdictions have

adopted ranked-choice voting as a remedy for a

dilutive at-large city council elections system. See,

e.g., United States v. City of Eastpointe, No. 4:17-cv10079, 2019 WL 2647355, at *1 (E.D. Mich. June 26,

2019) (consent decree). Others have opted for

cumulative voting to remedy the dilutive conditions

that were present in elections for local boards or

county commissions. United States v. Vill. of Port

Chester, 704 F. Supp. 2d 411, 449 (S.D.N.Y. 2010);

Chilton Cty. Bd. of Educ., 699 F. Supp. at 876; cf.

Harper v. City of Chicago Heights, 223 F.3d 593, 602

(7th Cir. 2000) (remanding to devise new remedy but

discussing “virtues” of cumulative voting). And some

have enacted limited voting for other local elections.

United States v. Euclid City Sch. Bd., 632 F. Supp. 2d

740, 770 (N.D. Ohio 2009) (school board); Dillard v.

Town of Cuba, 708 F. Supp. 1244, 1246 (M.D. Ala.

1988) (city council); McGhee v. Granville Cty., N.C.,

860 F.2d 110, 120 (4th Cir. 1988) (county board).

Thus, Appellants’ argument that Section 2

plaintiffs cannot challenge dilutive single-member

districting schemes because a remedy must be other

race-conscious districts, Br. at 43, is both legally

misguided and descriptively wrong. Only by

oversimplifying Section 2 claims to one context—

congressional redistricting—can Appellants then

advocate for their preferred curtailment of the statute

across the board. But to the extent the Court’s

precedents favor Section 2 remedies that “do not

42

classify voters on the basis of race,” Shaw, 509 U.S. at

649, adopting alternative election systems will do just

that and Appellants have no answer to this reality.

These alternative remedy options further prove

that maps produced at the liability stage of a Section

2 vote dilution case do not tie jurisdictions’ hands at

the remedial phase. It is at that phase that excessive

and unjustified race-conscious actions are prohibited,

but the existing Section 2 framework leaves

jurisdictions with ample room to eliminate vote

dilution without incurring constitutional liability.

CONCLUSION

The Court should affirm the decision below.

July 18, 2022

Respectfully submitted,

Paul M. Smith

Mark P. Gaber

Counsel of Record

Hayden Johnson

Valencia Richardson

Orion de Nevers

CAMPAIGN LEGAL CENTER

1101 14th St. NW, Ste. 400

Washington, DC 20005

(202) 736-2200

mgaber@campaignlegal.org

Counsel for Amicus Curiae