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 on Writ of Certiorari to the United States

District Court for the Northern District of Alabama

__________________

BRIEF FOR AMICI CURIAE LAWYERS’ COMMITTEE

FOR CIVIL RIGHTS UNDER LAW, THE LEADERSHIP

CONFERENCE ON CIVIL AND HUMAN RIGHTS,

THE LEADERSHIP CONFERENCE EDUCATION

FUND, AND ASIAN AMERICAN LEGAL DEFENSE

AND EDUCATION FUND IN SUPPORT OF

APPELLEES/RESPONDENTS

__________________

SHEILA L. BIRNBAUM

DANIELLE A. GENTIN STOCK

JUSTIN KADOURA

JON OLSSON

NEIL A. STEINER

DECHERT LLP

Three Bryant Park

1095 Avenue of the Americas

New York, NY 10036

(212) 698-3625

DAMON T. HEWITT*

JON M. GREENBAUM

Counsel of Record

EZRA D. ROSENBERG

JENNIFER NWACHUKWU

POOJA CHAUDHURI

LAWYERS’ COMMITTEE FOR CIVIL

RIGHTS UNDER LAW

1500 K Street, NW, Suite 900

Washington, DC 20005

Dir: (202) 662-8315

jgreenbaum@lawyerscommittee.org

*Admitted in Pennsylvania only.

Practice limited to matters before

federal courts.

Counsel for Amici Curiae

i

TABLE OF CONTENTS

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

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

INTRODUCTION AND SUMMARY OF

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

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

I. Gingles and its progeny provide constitutional

standards appropriate for assessing Section 2

vote dilution cases. . . . . . . . . . . . . . . . . . . . . . . . . 7

A. Gingles is consistent with Section 2’s

implementation of Fourteenth and Fifteenth

Amendment Protections . . . . . . . . . . . . . . . . 10

B. This Court’s post-Gingles Section 2 vote

dilution cases have consistently looked to

Gingles as the touchstone . . . . . . . . . . . . . . . 16

C. The Gingles standards are judicially

manageable . . . . . . . . . . . . . . . . . . . . . . . . . . 20

D. Gingles is an effective gatekeeper for vote

dilution claims . . . . . . . . . . . . . . . . . . . . . . . . 23

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

ii

TABLE OF AUTHORITIES

CASES

Alpha Phi Alpha Fraternity Inc. v. Raffensperger,

2022 WL 633312 (N.D. Ga. 2022). . . . . . . . . . . . 10

Ardoin v. Robinson,

2022 WL 2312680 (Jun. 28, 2022) . . . . . . . . . . . 10

Arizona v. Inter Tribal Council of Arizona, Inc.,

570 U.S. 1 (2013). . . . . . . . . . . . . . . . . . . . . . . . . . 1

Bartlett v. Strickland,

556 U.S. 1 (2009). . . . . . . . . . . . . . . . . . . . 5, 19, 22

Black Political Task Force v. Galvin,

300 F. Supp. 2d 291 (D. Mass. 2004) . . . . . . . . . 26

Bone Shirt v. Hazeltine,

336 F. Supp. 2d 976 (D.S.D. 2004) . . . . . . . . . . . 27

Brnovich v. Democratic Nat’l Comm.,

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

Burns v. Richardson,

384 U.S. 73 (1966). . . . . . . . . . . . . . . . . . . . . . . . 14

City of Mobile v. Bolden,

446 U.S. 55 (1980). . . . . . . . . . . . . . . . . . . . . . . . 12

Clark v. Roemer,

500 U.S. 646 (1991). . . . . . . . . . . . . . . . . . . . . . . . 1

Clerveaux v. E. Ramapo Central School District.,

984 F.3d 213 (2d Cir. 2021) . . . . . . . . . . . . . . . . 27

Diaz v. Silver,

978 F. Supp. 96 (E.D.N.Y. 1997) . . . . . . . . . . . . . 3

iii

Favors v. Cuomo,

881 F. Supp. 2d 356 (E.D.N.Y. 2012) . . . . . . . . . . 3

Fusilier v. Landry,

963 F.3d 447 (5th Cir. 2020). . . . . . . . . . . . . . . . 26

Goosby v. Town Bd. of the Town of Hempstead,

956 F. Supp. 326 (E.D.N.Y. 1997), aff’d,

180 F.3d 476 (2d Cir. 1999) . . . . . . . . . . . . . . . . 27

Growe v. Emison,

507 U.S. 25 (1993). . . . . . . . . . . . . . . . . . . . . 16, 17

Holder v. Hall,

512 U.S. 874 (1994). . . . . . . . . . . . . . . . . . . . . . . 22

Houston v. Lafayette Cty.,

56 F.3d 606 (5th Cir. 1995). . . . . . . . . . . . . . . . . 26

Jenkins v. Manning,

116 F.3d 685 (3d Cir. 1997) . . . . . . . . . . . . . . . . 26

Jenkins v. Red Clay Consol. Sch. Dist. Bd.

of Educ., 4 F.3d 1103 (3d Cir. 1993). . . . . . . . . . 26

Johnson v. De Grandy,

512 U.S. 997 (1994). . . . . . . . . . . . . . 17, 18, 23, 27

Johnson v. Hamrick,

296 F.3d 1065 (11th Cir. 2002). . . . . . . . . . . . . . 25

Kumar v. Frisco Independent School District,

476 F. Supp. 3d (E.D. Tex. 2020) . . . . . . . . . . . . 25

Large v. Fremont Cty.,

709 F. Supp. 2d 1176 (D. Wyo. 2010) . . . . . . . . . 27

iv

League of United Latin Am. Citizens (LULAC) v.

Perry, 548 U.S. 399 (2006) . . . . . . . . 16, 18, 19, 27

League of United Latin Am. Citizens v. Abbott,

2022 WL 1410729 (W.D. Tex. 2022). . . . . . . . . . 10

Lewis v. Alamance Cty.,

99 F.3d 600 (4th Cir. 1996). . . . . . . . . . . . . . 25, 26

Milwaukee Branch of the N.A.A.C.P. v. Thompson,

116 F.3d 1194 (7th Cir. 1997). . . . . . . . . . . . . . . 24

N.A.A.C.P. v. Fordice,

252 F.3d 361 (5th Cir. 2001). . . . . . . . . . . . . . . . 26

N.A.A.C.P. v. New York,

413 U.S. 345 (1973). . . . . . . . . . . . . . . . . . . . . . . 11

Nipper v. Smith,

39 F.3d 1494 (11th Cir. 1994). . . . . . . . . . . . . . . 26

OCA-Greater Houston v. Texas,

867 F.3d 604 (5th Cir. 2017). . . . . . . . . . . . . . . . . 3

Old Person v. Brown,

312 F.3d 1036 (9th Cir. 2002). . . . . . . . . . . . . . . 26

Pope v. County of Albany,

687 F.3d 565 (2d Cir. 2012) . . . . . . . . . . . . . . . . 25

Purcell v. Gonzalez,

549 U.S. 1 (2006). . . . . . . . . . . . . . . . . . . . . . . . . 10

Reynolds v. Sims,

377 U.S. 533 (1964). . . . . . . . . . . . . . . . . . . . . . . 21

Robinson v. Ardoin,

37 F.4th 208 (5th Cir. 2022) . . . . . . . . . . . . . . . . 10

v

Rodriguez v. Pataki,

308 F. Supp. 2d 346 (S.D.N.Y. 2004) . . . . . . . . . 26

Rucho v. Common Cause,

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

Sanchez v. Bond,

875 F.2d 1488 (10th Cir. 1989). . . . . . . . . . . . . . 25

Shelby County, Alabama v. Holder,

570 U.S. 529 (2013). . . . . . . . . . . . . . . . . . . 1, 6, 10

Singleton v. Merrill,

2022 WL 265001 (N.D. Ala. 2022) . . . . . . . . . . . 27

Solomon v. Liberty County Commissioners,

221 F.3d 1218 (11th Cir. 2000). . . . . . . . . . . . . . 26

Thornburg v. Gingles,

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

United States v. Alamosa Cty.,

306 F. Supp. 2d 1016 (D. Colo. 2004) . . . . . . . . . 26

Uno v. City of Holyoke,

72 F.3d 973 (1st Cir. 1995) . . . . . . . . . . . . . . . . . 26

Vieth v. Jubelirer,

541 U.S. 267 (2004). . . . . . . . . . . . . . . . . . . . . . . 21

Voinovich v. Quilter,

507 U.S. 146 (1993). . . . . . . . . . . . . . . . . 11, 17, 19

White v. Regester,

412 U.S. 755 (1973). . . . . . . . . . . . . . . 5, 11, 12, 13

Wright v. Sumpter Cty. Bd. of Elecs. & Reg.,

979 F.3d 1282 (11th Cir. 2020). . . . . . . . . . . . . . 26

vi

Young v. Fordice,

520 U.S. 273 (1997). . . . . . . . . . . . . . . . . . . . . . . . 1

CONSTITUTION AND STATUTES

U.S. Const. amend. XIV . . . . . . . . . . . . . . . 4, 8, 10, 11

U.S. Const. amend. XV . . . . . . . . . . . . . . . 4, 8, 10, 11

42 U.S.C. § 1973 . . . . . . . . . . . . . . . . . . . . . . . . passim

OTHER AUTHORITIES

All. of South Asian Am. Labor v. The Bd. of

Elections in the City of New York, No. 1:13cv-03732 (E.D.N.Y. July 2, 2013), ECF No. 1 . 3, 4

Complaint, Chinatown Voter Education All. v.

Ravitz, No. 1:06-cv-0913 (S.D.N.Y. Feb. 6, 2006),

ECF No. 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Complaint, Detroit Action v. City of Hamtramck,

No. 2:21-cv-11315 (E.D. Mich. June 3, 2021),

ECF No. 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Katz, Ellen D.; Remlinger, Brian; Dziedzic, Andrew;

Simone, Brooke; and Schuler, Jordan, “To

Participate and Elect: Section 2 of the Voting

Rights Act at 40” (2022). Other Publications.

192. https://repository.law.umich.edu/other/192

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 27

S. Rep. No. 97-417 (1982). . . . . . . . . . . . . . . . . 8, 9, 13

1

INTEREST OF AMICI CURIAE1

Formed at the request of President John F.

Kennedy in 1963, Amicus Lawyers’ Committee for Civil

Rights Under Law (“Lawyers’ Committee”) uses legal

advocacy to achieve racial justice, fighting inside and

outside the courts to ensure that Black people and

other people of color have voice, opportunity, and power

to make the promises of our democracy real. For the

entirety of its history, the Lawyers’ Committee has had

an active voting rights practice and has fought to

ensure that all Americans have an equal opportunity to

participate in the electoral process.

Section 2 of the Voting Rights Act of 1965, based on

the precedent established in Thornburg v. Gingles, 478

U.S. 30 (1986), has been a major weapon used by the

Lawyers’ Committee in that fight. The Lawyers’

Committee has litigated voting rights cases before this

Court including Shelby County, Alabama v. Holder, 570

U.S. 529 (2013), Arizona v. Inter Tribal Council of

Arizona, Inc., 570 U.S. 1 (2013), Young v. Fordice, 520

U.S. 273 (1997), and Clark v. Roemer, 500 U.S. 646

(1991).

1

Pursuant to Supreme Court Rule 37.6, counsel for amici

represent that they authored this brief in its entirety and that

none of the parties or their counsel, nor any other person or entity

other than amici or their counsel, made a monetary contribution

intended to fund the preparation or submission of this brief.

Pursuant to Rule 37.3(a), counsel for amici also represent that

all parties have consented to the filing of this brief; letters

reflecting their blanket consent to the filing of amicus briefs are on

file with the Clerk.

2

Additionally, the Lawyers’ Committee has

participated as amicus curiae in numerous voting

rights cases before the United States Supreme Court,

including cases that have defined the contours of

Section 2 of the Voting Rights Act, such as Gingles and

Brnovich v. Democratic National Committee, 141 S. Ct.

2321 (2021). Amicus Curiae has a direct interest in this

case because it raises important voting rights issues

central to the organization’s mission.

The Leadership Conference on Civil and Human

Rights (“The Leadership Conference”) is a coalition of

over 230 organizations committed to the protection of

civil and human rights in the United States. It is the

nation’s oldest, largest, and most diverse civil and

human rights coalition. The Leadership Conference

was founded in 1950 by three legendary leaders of the

civil rights movement—A. Philip Randolph, of the

Brotherhood of Sleeping Car Porters; Roy Wilkins, of

the NAACP; and Arnold Aronson, of the National

Jewish Community Relations Advisory Council. One of

the missions of The Leadership Conference is to

promote effective civil rights legislation and policy. The

Leadership Conference was in the vanguard of the

movement to secure passage of the Civil Rights Acts of

1957, 1960 and 1964, the Voting Rights Act of 1965 and

its subsequent reauthorizations, and the Fair Housing

Act of 1968.

The Leadership Conference Education Fund (“The

Education Fund”) is the education and research arm of

The Leadership Conference on Civil and Human

Rights. The Education Fund’s mission is to inform the

public not only to achieve civil and human rights, but

3

to make sure those rights endure. By activating the

power of the coalition, The Education Fund and its

partners can share innovative research and

information around the country — and, ultimately,

shift the narrative on civil and human rights.

The Asian American Legal Defense and Education

Fund (“AALDEF”), founded in 1974, is a New Yorkbased national organization that protects and promotes

the civil rights of Asian Americans. By combining

litigation, advocacy, education, and organizing,

AALDEF works with Asian American communities

across the country to secure human rights for all.

AALDEF has monitored elections through annual

multilingual exit poll surveys since 1988.

Consequently, AALDEF has documented both the use

of, and the continued need for, protection under the

Voting Rights Act of 1965 (“VRA”). AALDEF has

litigated cases around the country under the language

access provisions of the VRA, and seeks to protect the

voting rights of language minority, limited English

proficient (“LEP”), and Asian American voters.

AALDEF has litigated cases that implicate the ability

of Asian American communities of interest to elect

candidates of their choice, including lawsuits involving

equal protection and constitutional challenges to

discriminatory redistricting plans. See, e.g., Favors v.

Cuomo, 881 F. Supp. 2d 356 (E.D.N.Y. 2012); Diaz v.

Silver, 978 F. Supp. 96 (E.D.N.Y. 1997); OCA-Greater

Houston v. Texas, 867 F.3d 604 (5th Cir. 2017);

Complaint, Detroit Action v. City of Hamtramck, No.

2:21-cv-11315 (E.D. Mich. June 3, 2021), ECF No. 1;

All. of South Asian Am. Labor v. The Bd. of Elections in

the City of New York, No. 1:13- cv-03732 (E.D.N.Y. July

4

2, 2013), ECF No. 1; Complaint, Chinatown Voter

Education All. v. Ravitz, No. 1:06-cv-0913 (S.D.N.Y.

Feb. 6, 2006), ECF No. 1.

INTRODUCTION AND SUMMARY OF

ARGUMENT

After the passage of the Voting Rights Act of 1965

enabled many Black voters to exercise their

constitutional right to vote for the first time, white

officials in many jurisdictions resorted to schemes

designed to render the Black vote ineffective — what is

commonly known as vote dilution. Preventing vote

dilution was a driving force behind the 1982

amendments of the Voting Rights Act where Congress

amended Section 2 of the Act to allow for results

claims.

Four years after the 1982 amendments, this Court

handed down Thornburg v. Gingles, 478 U.S. 30 (1986),

which just last year this Court described as the

“seminal § 2 vote-dilution case.” Brnovich v. Democratic

Nat’l Comm., 141 S. Ct. 2321, 2337 (2021). Faithfully

interpreting Section 2 of the Voting Rights Act and

consistent with the constitutional bases for that law in

the Fifteenth and Fourteenth Amendments, Gingles

has provided courts with a fair and workable

framework by which to assess whether a jurisdiction’s

redistricting decision’s adverse impact on the

opportunity of voters of color to participate in the

political process was “on account of race.”

It has accomplished this by, first, setting forth three

objective preconditions — all of which a plaintiff must

satisfy before the court will engage in the totality of

5

circumstances balancing test. The first precondition of

proof of a reasonably compact majority-minority

district is intended to show that there is, in fact, a

potentially injured population. The second and third

preconditions, which together prove racially polarized

voting, are intended to establish a prima facie showing

that it is the structure selected by the jurisdiction

combined with voting patterns, and not something else

such as merely losing an occasional election, that forms

the basis for a possible Section 2 violation. Indeed,

“[T]he Gingles threshold inquiry . . . has been the

baseline of our § 2 jurisprudence.”

Bartlett v.

Strickland, 556 U.S. 1, 16 (2009).

Further, consistent with the express intent of

Congress, the Gingles Court steered the lower courts to

a set of non-exclusive factors to determine whether

plaintiffs ultimately prove vote dilution. These factors

had been deemed relevant by this Court in White v.

Regester, 412 U.S. 755 (1973), and the Senate Judiciary

Committee specifically embraced them in its report

accompanying the 1982 amendments. These factors

are themselves objective, including empirically

provable facts such as the history of voting

discrimination in the district, the interaction between

historic socio-economic discrimination against voters of

color in the jurisdiction and voting participation by

those voters, and the success of voters of color

themselves being elected in the jurisdiction.

Over the years, as this Court has addressed Section

2 vote dilution cases, this Court has consistently stated

its fidelity to Gingles and its framework as opposed to

criticizing or minimizing the decision or the framework.

6

Concomitantly, courts have applied Gingles and its

progeny rigorously, and the history of their decisions

reflects a standard that is judicially manageable.

Moreover, the Gingles framework has proved to be a

fair gatekeeper for Section 2 vote dilution cases, with

plaintiffs winning about the same percentage of cases

that they lose. There is no need for this Court to

abandon its longstanding faithfulness to the Gingles

framework. It has stood the test of time.

Indeed, the arguments made by Appellants and

their amici against preservation of the Gingles

framework are virtually identical to those made by

opponents of the 1982 amendments, including the

argument that vote dilution is not a problem that

requires a statutory remedy, which in 1982 meant not

amending Section 2 and today means overruling

Gingles. In actuality, Appellants and their amici are

asking this Court to import the functional equivalent of

a sunset provision into Section 2 of the Voting Rights

Act.

This is not the time to give opponents of the Voting

Rights Act another bite at the apple. With the effective

evisceration of Section 5 of the Voting Rights Act in

Shelby County, Alabama v. Holder, 570 U.S. 529

(2013), Section 2 is the last standing federal statutory

protection against the practice of diluting the votes of

persons of color. The record in this case — and claims

recently or currently litigated — shows that the

problem is far from over. Black, Latinx, AsianAmerican, and Native American voters in certain

jurisdictions are being denied their equal opportunity

to participate in the political process on account of their

7

race. And Section 2 of the Voting Rights Act, as

construed by this Court in Gingles, remains a fair and

effective bulwark against these insidious practices.

ARGUMENT

I. Gingles and its progeny provide constitutional

standards appropriate for assessing Section 2

vote dilution cases.

Contrary to the pleas of Appellants2 and several of

Appellants’ amici, this Court should not seize the

opportunity presented by this case so as to tamper with

or — as suggested by one amicus — overrule

Thornburg v. Gingles, 478 U.S. 30 (1986). The spurious

grounds pressed by these advocates range from there

no longer being a need for the Gingles framework

because times have supposedly changed,3 to Gingles’

“unnecessary infusing of race into the redistricting

process,”4 to Gingles leading to “balkanization” of the

electorate,5 to the claim that application of Gingles

favors plaintiffs.6

2

Br. for Appellants at 31.

3

Br. of Alabama Center for Law and Liberty as Amicus Curiae in

Supp. of Appellants and Pet’rs at 19, 21–24.

4

Br. of Senator John Braun, Leader of the Washington Senate

Republican Caucus, et al., as Amicus Curiae in Supp. of Appellants

at 3.

5

Br. of Amicus Curiae National Republican Redistricting Trust in

Supp. of Appellants/Pet’rs at 13–14.

6

Br. Amicus Curiae for American Legislative Exchange Council in

Supp. of Pet’r at 6.

8

Appellants’ and amici’s concerns mimic, almost

verbatim, the concerns raised by opponents of the 1982

amendments to the Voting Rights Act, who claimed

that the addition of the “results” cause of action to

Section 2 would:

Inevitably lead to a requirement of

proportional representation for minority groups

on elected bodies;

Make thousands of at-large election systems

across the country either per se illegal or

vulnerable on the basis of the slightest evidence

of underrepresentation of minorities; and

Be a devisive [sic] factor in total communities

by emphasizing the role of racial politics.

S. Rep. No. 97-417, at 31 (1982). In response back

then, the Senate Judiciary Committee meticulously

detailed how these concerns were belied by the actual

results of litigation applying the very standards which

Congress was about to codify in the 1982 amendments.

Id. at 31-34. Gingles, as will be demonstrated below,

did not change that dynamic.

In fact, Gingles has stood the test of time as solidly

grounded in Section 2 of the Voting Rights Act, totally

consistent with the Fourteenth and Fifteenth

Amendments protections furthered by the Voting

Rights Act, and providing fair, objective, and judicially

manageable standards for both litigants and the courts.

Indeed, Congress in its express disavowal of

proportional representation as a right created under

Section 2 and this Court in its establishment of excess

of proportionality as a consideration in defense to a

9

Section 2 action have built safeguards against abuse of

the Gingles standards that are reflected in the

balanced outcome of Section 2 vote dilution cases

adjudicated since Gingles.

In this context, Appellants’ amici’s recurrent theme

that times have changed and therefore the Gingles

framework is no longer needed must be addressed at

the outset. One amicus phrased the argument in terms

of “the South has largely turned from its former ways.”7

Section 2, of course, is not a law directed at the South

or at any specific part of the country. It is directed at

the whole country, and it has been applied to stop

racial discrimination in voting in every state in this

nation.

Further, the need for Section 2’s protections has not

diminished with the times. In 1982, the Senate

Judiciary Committee recognized that “The right to vote

can be affected by a dilution of voting power as well as

by an absolute prohibition on casting a ballot,” and that

in reaction to the rising political power of Black voters,

“a broad array of dilution schemes were employed to

cancel the impact on the new Black vote.” S. Rep. No.

97-417, at 6 (1982). Such schemes are still being

deployed today, particularly where — in many areas of

the country — increases in population growth of

communities of color are met with districting maps

that, as was found in this case, expressly ignore that

population growth, or, has been alleged elsewhere,

7

Alabama Center for Law and Liberty Amicus Br. at 19.

10

actually decrease the political power of those very

communities.8

When this Court struck down Section 4 of the

Voting Rights Act less than a decade ago, effectively

eliminating the protections of Section 5, Chief Justice

Roberts’s majority opinion emphasized that, “Our

decision in no way affects the permanent, nationwide

ban on racial discrimination in voting found in § 2.”

Shelby County v. Holder, 570 U.S. 529, 557 (2013).

With the demise of Section 5, the protections of Section

2, as manifested in the Gingles framework’s

furtherance of the aims of that important statute, are

as essential as they have ever been.

A. Gingles is consistent with Section 2’s

implementation of Fourteenth and

Fifteenth Amendment Protections.

Section 2 of the Voting Rights Act of 1965 and its

1982 amendments are deeply rooted in the Fourteenth

8

See e.g., Alpha Phi Alpha Fraternity Inc. v. Raffensperger, 2022

WL 633312, (N.D. Ga. 2022) (finding probability of success on

merits of Section 2 vote dilution claims as to Georgia congressional

and state legislative maps, but denying motion for preliminary

injunction on Purcell v. Gonzalez, 549 U.S. 1 (2006) grounds);

League of United Latin Am. Citizens v. Abbott, 2022 WL 1410729

(W.D. Tex. 2022) (denying preliminary injunction as to Texas

redistricting of state senate district on intentional discrimination

and racial gerrymander claims, but recognizing possible colorable

Section 2 vote dilution results claim which had not been pled);

Robinson v. Ardoin, 37 F.4th 208 (5th Cir. 2022), cert. granted sub

nom. Ardoin v. Robinson, 2022 WL 2312680 (Jun. 28, 2022)

(denying stay (subsequently entered by this Court) of preliminary

injunction issued on Section 2 vote dilution grounds as to

Louisiana congressional map).

11

and Fifteenth Amendments. “Congress enacted § 2 of

the Voting Rights Act of 1965 . . . to help effectuate the

Fifteenth Amendment’s guarantee that no citizen’s

right to vote shall ‘be denied or abridged ... on account

of race, color, or previous condition of servitude.’”

Voinovich v. Quilter, 507 U.S. 146, 152 (1993) (citing

U.S. Const., Amdt. 15 and N.A.A.C.P. v. New York, 413

U.S. 345, 350 (1973)). And it was a ruling in a

Fourteenth Amendment case, White v. Regester, 412

U.S. 755 (1973), that a vote dilution plaintiff had to

show that the political processes leading to an election

were not “equally open” to participation by the

protected group in that its members had “less

opportunity” than did others to use the political process

that became the foundation of the 1982 amendments to

Section 2. Id. at 766. In White, this Court further

ruled that it was a vote dilution plaintiff’s burden to

illustrate that “the totality of the circumstances,”

including the cultural and economic realities, as

“designed and operated,” excluded Mexican-American

voters from “effective participation in political life.” Id.

at 768–69. This Court in White thus looked to “a blend

of history” and conducted an “intensely local appraisal

of the design and impact” of the challenged district. Id.

at 769–70.

This Court recently described White as having

“outsized importance in the development of our VRA

case law.” Brnovich v. Democratic Nat’l Comm., 141 S.

Ct. 2321, 2331 (2021). As Justice Alito’s majority

opinion observed, it was vote dilution cases that

“reflected the results of the Senate Judiciary

Committee’s extensive survey of what it regarded as

Fifteenth Amendment violations that called out for

12

legislative redress” in 1982. Id. at 2333 (citing S. Rep.

No. 97–417, at 6, 8, 23–24, 27, 29). Indeed, the White

Court’s precise phraseology — “equally open,” “less

opportunity,” and “totality of the circumstances” —

became the key elements of Congress’ 1982 overhaul of

Section 2 and addition of the “results” prong to Section

2(a) and the “totality of circumstances” standard to

Section 2(b).9 See Gingles, 478 U.S. at 43-44.10 In

Brnovich, this Court characterized White’s “equally

open” standard as the “touchstone” of Section 2

jurisprudence. Brnovich, 141 S. Ct. at 2338.

Further, the White Court’s discussion of the sort of

facts that instruct on the totality of the circumstances,

such as the history of discrimination, the present

impact of that history, and the success of candidates of

color, became the Senate Factors which the Senate

Judiciary Committee, in its report accompanying the

9

Section 2(b) of the VRA, as amended, reads, in pertinent part:

(b) A violation of subsection (a) is established if, based

on the totality of circumstances, it is shown that the

political processes leading to nomination or election in the

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 to elect representatives of their

choice.” (Emphasis added.) Codified at 42 U.S.C. § 1973.

10

In 1982, Congress, rejecting this Court’s plurality decision in

City of Mobile v. Bolden, 446 U.S. 55 (1980), that had required

proof of discriminatory intent behind the challenged voting

practice, clarified that a practice that “results” in depriving

members of a protected class of their equal opportunity to

participate in the political process was also actionable under

Section 2.

13

1982 amendments, characterized as “typical” in the

proof of whether a challenged voting practice results in

person of color having an unequal opportunity to

participate in the political processes. S. Rep. No. 97417, at 28–29 (1982).11

Gingles is in complete harmony with the intent

behind the 1982 amendments and this Court’s

construction of the VRA — and has been so since it was

handed down. In Gingles, this Court was confronted

with a challenge under Section 2 of the VRA to a

legislative redistricting plan of five North Carolina

multimember legislative districts. 478 U.S. at 34.

Considering factors deemed relevant in White, the

district court had held that the redistricting plan had

diluted the votes of Black citizens. In affirming the

11

The Senate Report accompanying the 1982 amendments to the

VRA set forth the following non-exclusive factors which “typically

may be relevant to a § 2 claim: the history of voting-related

discrimination in the State or political subdivision; the extent to

which voting in the elections of the State or political subdivision is

racially polarized; the extent to which the State or political

subdivision has used voting practices or procedures that tend to

enhance the opportunity for discrimination against the minority

group, . . . ; the extent to which minority group members bear the

effects of past discrimination in areas such as education,

employment, and health, which hinder their ability to participate

effectively in the political process; the use of overt or subtle racial

appeals in political campaigns; and the extent to which members

of the minority group have been elected to public office in the

jurisdiction. . . . The Report notes also that evidence demonstrating

that elected officials are unresponsive to the particularized needs

of the members of the minority group, and that the policy

underlying the State’s or the political subdivision’s use of the

contested practice or structure is tenuous, may have probative

value.” Gingles, 478 U.S. at 44–45.

14

district court’s ruling, the Gingles Court began with the

premise that, “The essence of a § 2 claim is that a

certain electoral law, practice, or structure interacts

with social and historical conditions to cause an

inequality in the opportunities enjoyed by black and

white voters to elect their preferred representatives.”

478 U.S. at 47. Certain voting schemes, this Court

continued, may “‘operate to minimize or cancel out the

voting strength of racial [minorities in] the voting

population.’” Id. (quoting Burns v. Richardson, 384

U.S. 73, 88 (1966)). But, this Court cautioned, they are

“not per se violative of minority voters’ rights.” Gingles,

478 U.S. at 48. A plaintiff must prove so, not only by

reference to “many or all of the factors listed in the

Senate report,” but by proving “a conjunction” of

circumstances demonstrating that “a bloc voting

majority [is] usually . . . able to defeat candidates

supported by a politically cohesive, geographically

insular minority group.” Id. at 48–49 (emphasis in

original).

This Court spelled out these circumstances as three

preconditions: “First, the minority group must be able

to demonstrate that it is sufficiently large and

geographically compact to constitute a majority in a

single-member district. . . . Second, the minority group

must be able to show that it is politically cohesive. . . .

Third, the minority must be able to demonstrate that

the white majority votes sufficiently as a bloc to enable

it — in the absence of special circumstances . . . —

usually to defeat the minority’s preferred candidate.”

Id. at 50–51. The extent to which voting is racially

polarized in the affected jurisdiction, this Court later

15

explained, is essential to proof of the second and third

preconditions. Id. at 55–56.

Significantly, this Court explained why each of

these preconditions was relevant.

If the first

precondition of proving the existence of a

geographically compact majority-minority population

could not be met, “as would be the case in a

substantially integrated district,” then the form of the

district “cannot be responsible for minority voters’

inability to elect its candidates.” Id. at 50. If the

second precondition of proving cohesion of voters of

color could not be met, “it cannot be said that the

selection of [the districting] structure thwarts

distinctive minority group interests.” Id. at 51. And

meeting the third precondition of showing that white

bloc voting usually prevents the population of voters of

color from electing candidates of their choice

“distinguishes structural dilution from the mere loss of

an occasional election.” Id.12

The Gingles preconditions are, therefore, not geared

to making race the primary consideration in the

drawing of districts, but rather to ascertaining whether

it is even possible, as a prima facie matter, that the

districting choices made by the jurisdiction could result

12

In this regard, the argument of amicus National Republican

Redistricting Trust that Gingles is obsolete because times have

supposedly changed and communities are more integrated is

factored into the Gingles preconditions. If, in fact, communities

are so integrated, it should be difficult to meet the first

precondition, and if, in fact, the communities’ supposed integration

has led to a confluence of interest among disparate racial groups,

then that should manifest itself in the racially polarized voting

analysis under the second and third preconditions.

16

in less than an equal opportunity for the population of

voters of color to participate in the electoral process. If

it is not possible to draw a reasonably compact

majority-minority district, there is no possibility of a

claim. If the minority group or groups in question do

not vote cohesively, there is no possibility of a claim. If

the white majority population does not vote as a bloc to

usually defeat the minority population’s candidates of

choice, there is no possibility of a claim. The

preconditions do not presume liability or predetermine,

let alone require, a remedy. They are “threshold

conditions for establishing a § 2 violation.” League of

United Latin Am. Citizens (LULAC) v. Perry, 548 U.S.

399, 425–26 (2006). As per the express language of

Section 2(b), it is the totality of the circumstances,

including consideration of any of the Senate Factors

that are relevant to the case, that prove the vote

dilution claim.

B. This Court’s post-Gingles Section 2 vote

dilution cases have consistently looked to

Gingles as the touchstone.

Following Gingles, this Court has addressed Section

2 vote dilution cases several times. In doing so, this

Court has consistently tried to decide the case before it

in a way that was most faithful to the Gingles

framework. Throughout this time, the Gingles

framework has been shown to have sufficient flexibility

to apply to different circumstances and to be subject to

refinement without losing its relevance or vitality.

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

unanimous Court applied Gingles to a single-member

redistricting scheme and to “vote fragmentation”

17

(commonly known as “cracking”) claims in which a

community of color was split among multiple districts.

Id. at 40.

Recognizing the importance of the

preconditions to establish the threshold for liability,

Justice Scalia’s opinion rejected the Section 2 claim

because the Gingles preconditions “were not only

ignored but were unattainable.” Id. at 41. Less than

a month later, this Court in Voinovich v. Quilter, 507

U.S. 146 (1993), applied Gingles to a “packing” case,

where the plaintiffs claimed that Black voters had been

added to a district in numbers far in excess of what was

needed to provide them with an equal opportunity to

participate in the political process. In reversing the

District Court’s finding of liability, this Court stated

that “[h]ad the District Court employed the Gingles

test in this case, it would have rejected appellees’ § 2

claim.” Id. at 158.

In Johnson v. De Grandy, 512 U.S. 997 (1994), this

Court “amplif[ied],” what had been decided in

Voinovich, that “‘the Gingles factors cannot be applied

mechanically and without regard to the nature of the

claim.’” 512 U.S. at 1007 (quoting Voinovich, 507 U.S.

at 158). Citing Gingles, the De Grandy Court stated

that meeting the three Gingles factors was necessary,

but not sufficient, to establish vote dilution: “But if

Gingles so clearly identified the three as generally

necessary to prove a § 2 claim, it just as clearly

declined to hold them sufficient in combination, either

in the sense that a court’s examination of relevant

circumstances was complete once the three factors

were found to exist, or in the sense that the three in

combination necessarily and in all circumstances

demonstrated dilution.” Id. at 1011.

18

In De Grandy, this Court found that the district

court’s finding of unlawful vote dilution failed to

consider proportionality — the fact that the number of

majority-minority districts reflected the minority

group’s share of the relevant population — in its

totality of the circumstances analysis. Id. at 1006,

1014–20. At the same time, this Court emphatically

rejected the premise of an “inflexible rule” that

proportional representation absolutely barred a vote

dilution claim under Section 2, as violative of the

“totality of the circumstances” standard. Id. at 1018.

Importantly, this Court noted that, even in a

jurisdiction “with numerically demonstrable

proportionality,” a court must undertake the searching

review of the past and present reality, including factors

deemed relevant under the Senate factors, to decide

whether proportionality is a harbor “safe for voters.” Id.

at 1018–19. Indeed, the De Grandy Court returned to

Gingles on this point: “‘[P]ersistent proportional

representation . . . [may] not accurately reflect the

minority group’s ability to elect its preferred

representatives.’” De Grandy, 412 U.S. at 1019 (quoting

Gingles, 478 U.S. at 77).

In LULAC v. Perry, 548 U.S. 399 (2006), this Court

emphasized the importance of the compactness inquiry

under the first Gingles threshold in finding that “there

is no basis to believe a district that combines two farflung segments of a racial group with disparate

interests provides the opportunity that § 2 requires or

that the first Gingles condition contemplates.” Id. at

433. This Court also acknowledged the continued

vitality of Gingles’ approach to the totality of the

circumstances, considering not only the proportionality

19

factor, but — significantly — two factors embraced in

Gingles as part of the Senate factors: the effect of

historic racial discrimination in voting and the

tenuousness of the State’s rationale for its redistricting

(incumbency protection). Id. at 439–41. As to the

latter rationale, key to this Court’s ruling was that

voters had been moved in and out of districts because

of their race, in order to protect an incumbent. Id. at

440–41.

In Bartlett v. Strickland, this Court settled an issue

reserved in Gingles and Voinovich, and held that the

first Gingles precondition cannot be satisfied by a

district comprised of less than a majority of voters of

color. 556 U.S. 1. In rejecting petitioner’s argument,

which this Court said “would call in question the

Gingles framework the Court has applied under § 2,”

id. at 16, this Court was implicitly endorsing the

Gingles framework that Appellants and their

supporting amici are now asking this Court to abolish

or materially weaken.

Finally, in Brnovich v. Democratic National

Committee, this Court reaffirmed that Section 2 and in

particular the Gingles standards apply with full force

to vote dilution claims. 141 S. Ct. 2321. Brnovich was

a Section 2 vote denial claim, i.e., dealing with voting

practices as to time, place, or manner of elections, not

with allegations of vote dilution. Throughout the

opinion, this Court took pains to emphasize the

importance of Gingles in vote dilution jurisprudence,

highlighting the differences between vote dilution cases

and the case before it. In this context, the Brnovich

Court described Gingles as “our seminal § 2 vote-

20

dilution case,” id. at 2337, a case that set a path this

Court’s “many subsequent vote-dilution cases have

largely followed . . . ,” id. (and see at 2333 n.5 for the

“steady stream” of vote-dilution cases that have applied

Gingles), stressing that the Senate factors “grew out of

and were designed for use in vote-dilution cases,” id. at

2340, and that several, notably Factors 2 (racially

polarized voting), 6 (racially tinged campaign appeals),

and 7 (election of candidates of color), had particular

application in vote dilution cases, in addition to Factors

1 (past discrimination) and 5 (the effects of

discrimination that persist), which have relevance to

all Section 2 claims. Id.

In this Court’s post-Gingles Section 2 vote dilution

jurisprudence, this Court has consistently looked to

Gingles and its framework to decide the matter before

it, whether the case involved multi-member districts,

or single member district “cracking” or “packing,” or

the relevance of proportionality to the assessment of

Section 2 vote dilution claims. The Gingles framework

has proven to be durable and flexible.

C. The Gingles

manageable.

standards

are

judicially

Not only has the Gingles framework proved easily

adaptable to numerous districting scenarios, but it is

also a framework of the sort that courts are

experienced in applying. Gingles and its progeny

provide objective, judicially manageable standards for

determining Section 2 vote dilution claims.

First, similar to vote dilution claims based on the

one person/one vote doctrine, racial vote dilution claims

21

emanate from clear constitutional authority. See

Reynolds v. Sims, 377 U.S. 533, 566 (1964) (explaining

why “complex and many-faceted” issues involved in

apportionment and “dangers of entering into political

thickets and mathematical quagmires” must yield

when the states use their power to circumvent a

federally protected right).

Second, unlike the partisan gerrymander claims

that this Court has found to be non-justiciable, vote

dilution claims under Section 2 of the VRA, as assessed

under the guidance of Gingles and its progeny are

“grounded in a ‘limited and precise rationale’ and [are]

‘clear, manageable, and politically neutral.’” Rucho v.

Common Cause, 139 S. Ct. 2484, 2498 (2019) (quoting

Vieth v. Jubelirer, 541 U.S. 267, 306-308 (2004)

(opinion concurring in judgment)). Indeed, the Gingles

objective preconditions and the equally objective Senate

factors allow courts adjudicating Section 2 vote dilution

claims to “act only in accord with especially clear

standards.” Rucho, 139 S. Ct at 2498.

Nor do such claims, when adjudicated in accordance

with the Gingles standards result in a court’s dithering

as to “what fairness looks like in this context.” Id. at

2500. The Gingles preconditions, particularly the first

precondition, guide the courts as to “what fairness

looks like in this context.” Indeed, this Court has

recently observed that it “need not decide” what “denial

or abridgement of the right . . . to vote on account of

race or color” as used in Section 2(a) “would mean if it

stood alone because § 2(b) . . . explains what must be

shown to establish a § 2 violation.” Brnovich, 141 S.

Ct. at 2337.

22

This Court has distinguished racial vote dilution

claims that are judicially unmanageable from those

which are judicially manageable, without even hinting

that Gingles presents a problem in that regard. For

example, in Holder v. Hall, 512 U.S. 874 (1994), this

Court found that a Section 2 claim to enlarge a

commission from one member to five, so as to create a

majority-minority district, was not actionable because

it was impossible to determine “acceptable principles

for deciding future cases.” Id. at 885.

Further, one of the reasons the Bartlett Court ruled

that crossover-district claims were not actionable under

Section 2 was that such claims would “require courts to

make predictive political judgments not only about

familiar, two-party contests in large districts, but also

about regional and local jurisdictions that often feature

more than two parties or candidates.” 556 U.S. at 18.

Far from finding that Gingles was judicially

unmanageable, the Bartlett Court instead noted that

Gingles’ “majority-minority rule” had “its foundation in

principles of democratic governance” and that “[t]he

special significance, in the democratic process, of a

majority means it is a special wrong when a minority

group has 50 percent or more of the voting population

and could constitute a compact voting majority but,

despite racially polarized bloc voting, that group is not

put into a district.” Id. at 19. That Gingles provides

standards that are judicially manageable is not in

serious dispute.

23

D. Gingles is an effective gatekeeper for vote

dilution claims.

Finally, any argument that Gingles creates a “strictliability regime,” Br. for Appellants at 31, is simply

untrue.13 First, of course, Section 2(b) and the case law

is abundantly clear that plaintiffs cannot prove a

Section 2 vote dilution claim merely by meeting the

Gingles preconditions.

Plaintiffs must also

demonstrate that the “totality of the circumstances,”

which include reference to the Senate factors,

proportionality concerns, traditional districting

principle issues, and “any circumstance that has a

logical bearing on whether voting is ‘equally open’ and

affords equal ‘opportunity,’ may be considered.”

Brnovich, 141 S. Ct. at 2338. The language in Section

2(b) that no right to proportional election of candidates

of the group of voters of color is created in the statute

and the De Grandy holding that proportionality of

representation may provide a defense to a Section 2

claim further serve to limit any notion that Section 2

can be used improperly to maximize electoral

opportunity for voters of color.

The actual results of Section 2 vote dilution

litigation demonstrate that Gingles has provided courts

with a workable and fair framework that serves as an

effective gatekeeper for Section 2 vote dilution cases.

Since the 1982 amendment to the Voting Rights Act,

there have been 316 reported cases that addressed

13

See also Br. Amicus Curiae for American Legislative Exchange

Council in Supp. of Pet’r, p. 9-15 (indicating that Gingles results in

rare victories for existing election systems and legislative policy

determinations).

24

some form of vote dilution, most of which involved a

challenge to an at-large electoral structure or a

redistricting plan.14 Plaintiffs achieved successful

outcomes in 49% of such cases.15

Contrary to the assertions of some of Appellants’

amici, see e.g., Br. of Amicus Curiae Republican Nat’l

Comm. at 13–14; courts frequently find that plaintiffs

do not satisfy the Gingles factors, even when a state

“could have” created a majority-minority district. See

Milwaukee Branch of the N.A.A.C.P. v. Thompson, 116

F.3d 1194, 1196 (7th Cir. 1997) (“The possibility of

increasing minority representation does not compel a

jurisdiction to achieve that outcome, unless the three

conditions have been met and the judge is satisfied that

14

Katz, Ellen D.; Remlinger, Brian; Dziedzic, Andrew; Simone,

Brooke; and Schuler, Jordan, “To Participate and Elect: Section 2

of the Voting Rights Act at 40” (2022). Other Publications. 192.

https://repository.law.umich.edu/other/192. The sample of 316 vote

dilution cases includes judicial decisions from June 29, 1982

through December 31, 2021 that were published or made available

on Westlaw or Lexis. Most cases in the sample are decisions on

the merits that determined whether Section 2 was violated. Absent

a direct decision on the merits, the sample evaluated cases based

on a final ruling that made a substantive determination (e.g.,

preliminary injunction, evidentiary disputes, judicial approval of

a settlement, or a remedial order) for or against the plaintiff. The

sample omits cases in which the Section 2 claim appeared frivolous

and cases in which the merits decision was vacated on appeal. A

case was coded as successful for the plaintiff if it resulted in a

change to a challenged practice.

15

Id. Plaintiffs succeeded in 74% of the dilution cases brought

during the first decade following the 1982 amendments to the

Voting Rights Act; plaintiffs succeeded in 35% of the dilution cases

in 1992-2001; 39% in 2002-2011; and 43% from 2012-2021.

25

minority voters have lacked an equal opportunity to

participate in the political process.”).16

Nor is it true that courts “exclusive[ly] focus on the

three Gingles preconditions” or that “the Gingles

factors have subsumed the ‘totality of the

circumstances’ analysis.”

Br. of Amicus Curiae

Republican Nat’l Comm. at 12–13. To the contrary,

prior decisions demonstrate that courts hold plaintiffs

to their burden of proof in their totality of the

circumstances analysis. Lower courts have taken

seriously this Court’s admonition that the Gingles

factors are only “necessary preconditions” in vote

dilution cases and do not replace plaintiffs’ burden of

showing that their district is not “equally open” to

voters of all races. See Gingles, 478 U.S. at 48–50.

Lower courts have “emphatically rejected the

suggestion that courts can rely solely on the three

16

See, e.g., Pope v. County of Albany, 687 F.3d 565 (2d Cir.

2012)(rejecting vote dilution claim where plaintiffs met the first

Gingles factor, where they failed to prove third Gingles factor;

Kumar v. Frisco Independent School District, 476 F. Supp. 3d 439

(E.D. Tex. 2020) (rejecting vote dilution claim where plaintiffs met

the first Gingles factor, but failed to prove second Gingles factor);

see also Johnson v. Hamrick, 296 F.3d 1065, 1073–74 (11th Cir.

2002) (rejecting plaintiffs’ claim that Gainesville’s at-large election

system for city commissioners diluted Black votes, holding that

“the plaintiffs could not show white bloc voting under the third

Gingles factor”); Lewis v. Alamance Cty., 99 F.3d 600 (4th Cir.

1996); Sanchez v. Bond, 875 F.2d 1488, 1495–96 (10th Cir. 1989)

(holding that plaintiffs failed to establish second Gingles factor,

even though it would have been possible to create majorityminority district in place of the county’s at-large election system);

Kumar v. Frisco Indep. Sch. Dist., 476 F. Supp. 3d 439, 508 (E.D.

Tex. 2020) (holding that minority voters were not politically

cohesive even though they were geographically compact).

26

Gingles preconditions to establish a Section 2 dilution

violation.” N.A.A.C.P. v. Fordice, 252 F.3d 361, 373

(5th Cir. 2001).17 As the First Circuit has explained,

the Gingles factors “give rise to an inference that racial

bias is operating . . . to impair minority political

opportunities,” but do not always conclusively prove it.

Uno v. City of Holyoke, 72 F.3d 973, 983 (1st Cir. 1995).

Thus, several courts have denied relief under the

totality of circumstances analysis, even where plaintiffs

have satisfied the Gingles factors.18

These decisions are not outliers.

Statistics

demonstrate that courts hold plaintiffs to their burden

of proof in their totality of the circumstances analysis.

Plaintiffs in vote dilution and non-dilution claims

17

See also Wright v. Sumpter Cty. Bd. of Elecs. & Reg., 979 F.3d

1282, 1304–05 (11th Cir. 2020); Lewis v. Alamance Cty., 99 F.3d

600, 604 (4th Cir. 1996); Houston v. Lafayette Cty., 56 F.3d 606,

609–10 (5th Cir. 1995); Nipper v. Smith, 39 F.3d 1494, 1513–14

(11th Cir. 1994); Jenkins v. Red Clay Consol. Sch. Dist. Bd. of

Educ., 4 F.3d 1103, 1115 (3d Cir. 1993); Black Political Task Force

v. Galvin, 300 F. Supp. 2d 291, 298 (D. Mass. 2004) (explaining

that “[p]laintiffs who satisfactorily complete [Gingles’s] three-step

pavane are not home free” because they must satisfy the “wideranging” totality of circumstances analysis).

18

See, e.g., Fordice, 252 F.3d at 374; Old Person v. Brown, 312 F.3d

1036, 1042, 1050 (9th Cir. 2002); United States v. Alamosa Cty., 306

F. Supp. 2d 1016, 1040 (D. Colo. 2004) (“Although the evidence

presented at trial is arguably facially sufficient to satisfy the three

Gingles preconditions, upon consideration of the totality of the

circumstances, it does not prove that the at-large method of electing

county commissioners in Alamosa County dilutes the vote of Hispanic

residents.”); same: Fusilier v. Landry, 963 F.3d 447, 459–68 (5th Cir.

2020); Solomon v. Liberty County Commissioners, 221 F.3d 1218

(11th Cir. 2000) Jenkins v. Manning, 116 F.3d 685, 699–700 (3d Cir.

1997); Rodriguez v. Pataki, 308 F. Supp. 2d 346 (S.D.N.Y. 2004).

27

under Section 2 have lost 85% of cases in which a court

determined that Senate Factor 7 (the extent to which

candidates of color have won elections) was absent;

77% of cases where Senate Factor 5 (discrimination in

socioeconomic areas) was absent; 74% of cases where

Senate Factor 3 (the extent of the jurisdiction’s use of

majority vote requirements, unusually large electoral

districts, prohibitions on bullet voting, and other

devices that tend to enhance the opportunity for voting

discrimination) was absent; and 72% of cases where

Senate Factor 1 (history of official discrimination in the

jurisdiction that affects the right to vote) was absent.19

Similarly, in vote dilution cases where plaintiffs

have prevailed, courts have looked beyond the Gingles

factors and considered the totality of the circumstances

before granting relief.20 Indeed, after concluding that

Plaintiffs here satisfied the three Gingles factors, the

district court in this case undertook a lengthy

discussion of the Senate factors. Singleton v. Merrill,

2022 WL 265001, at *45–47 (N.D. Ala. 2022).

Particularly since this Court clarified the

proportionality issue in Johnson v. De Grandy and

LULAC v. Perry, the lower courts have proved adept at,

first, using the Gingles preconditions as a tool to

separate the wheat from the chaff in the first instance,

19

20

Katz, et al., supra note 14, at 11.

See, e.g., Clerveaux v. E. Ramapo Central School District., 984

F.3d 213, 237–44 (2d Cir. 2021); Large v. Fremont Cty., 709 F.

Supp. 2d 1176, 1207–32 (D. Wyo. 2010); Bone Shirt v. Hazeltine,

336 F. Supp. 2d 976, 1017–52 (D.S.D. 2004); Goosby v. Town Bd.

of the Town of Hempstead, 956 F. Supp. 326, 337–48 (E.D.N.Y.

1997), aff’d, 180 F.3d 476 (2d Cir. 1999).

28

and, then, applying the statutorily-mandated totality

of the circumstances test — including those Senate

Factors that are relevant — in ways that sometimes

result in plaintiffs’ victories, but just as often result in

defendants’ victories. These decisions do not reflect

uncertainty and confusion on the part of the courts

charged with applying Gingles in the first instance, but

rather illustrate courts finding sufficient guidance from

the objective Gingles standards to decide these cases.

Thus, contrary to the assertions of Appellants’

amici, Gingles does not provide voters of color with a

free pass. Rather, when voters of color succeed in these

cases, it is because plaintiffs have proved that the

totality of the circumstances demonstrate that the

districting plans denied them an equal opportunity to

participate in the political process, and that, therefore,

the electoral system is not “equally open” to them.

29

CONCLUSION

For the foregoing reasons, Amici respectfully

request that this Court affirm the judgment of the

District Court.

Respectfully submitted,

SHEILA L. BIRNBAUM

DANIELLE A. GENTIN STOCK

JUSTIN KADOURA

JON OLSSON

NEIL A. STEINER

DECHERT LLP

Three Bryant Park

1095 Avenue of the

Americas New York, NY

10036

(212) 698-3625

DAMON T. HEWITT*

JON M. GREENBAUM

Counsel of Record

EZRA D. ROSENBERG

JENNIFER NWACHUKWU

POOJA CHAUDHURI

LAWYERS’ COMMITTEE FOR

CIVIL RIGHTS UNDER LAW

1500 K Street, NW, Suite 900

Washington, DC 20005

(202) 662-8315

jgreenbaum@lawyerscommittee.org

*Admitted in Pennsylvania only.

Practice limited to matters before

federal courts.