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

Supreme Court briefJul 18, 2022

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Nos. 21-1086, 21-1087

IN THE

Supreme Court of the United States

JOHN H. MERRILL, et al.,

Appellants,

EVAN MILLIGAN, et al.,

Appellees.

JOHN H. MERRILL, et al.,

Petitioners,

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 FOR VOTING RIGHTS PRACTITIONERS

AS AMICI CURIAE IN SUPPORT OF

APPELLEES AND RESPONDENTS

DEBO P. ADEGBILE

EDWARD WILLIAMS

Counsel of Record

AYANA D. WILLIAMS

SAMUEL E. WEITZMAN

SONIKA R. DATA

WILMER CUTLER PICKERING WILMER CUTLER PICKERING

HALE AND DORR LLP

1875 Pennsylvania Ave., NW 7 World Trade Center

250 Greenwich St.

Washington, DC 20006

New York, NY 10007

(212) 295-6717

debo.adegbile@wilmerhale.com

TABLE OF CONTENTS

Page

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

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

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

ARGUMENT ....................................................................... 3

SECTION 2 IMPLEMENTS THE

RECONSTRUCTION AMENDMENTS .............................. 3

II. SECTION 2 IS THE KEY REMAINING

REMEDIAL PROVISION OF THE VOTING

RIGHTS ACT ................................................................... 6

III. GINGLES IS WORKABLE ............................................. 10

A. The Gingles Preconditions Are

Workable .............................................................. 11

B. The Totality-of-the-Circumstances

Inquiry Buttresses The Gingles

Preconditions ....................................................... 15

IV. GINGLES IS EFFECTIVE ............................................. 18

CONCLUSION ................................................................. 25

(i)

TABLE OF AUTHORITIES

CASES

Page(s)

Abbott v. Perez, 138 S. Ct. 2305 (2018) ..................... 12, 15

Abrams v. Johnson, 521 U.S. 74 (1997) .............. 12, 13, 14

Alpha Phi Alpha Fraternity Inc. v.

Raffensperger, — F. Supp. 3d —, 2022 WL

633312 (N.D. Ga. Feb. 28, 2022) .................................. 8

Arbor Hill Concerned Citizens Neighborhood

Ass’n v. County of Albany, 281 F. Supp. 2d

436 (N.D.N.Y. 2003) ................................................... 19

Baldus v. Members of Wisconsin Government

Accountability Board, 849 F. Supp. 2d 840

(E.D. Wis. 2012) .................................................... 19, 21

Bartlett v. Strickland, 556 U.S. 1 (2009) .................... 4, 12

Benavidez v. City of Irving, 638 F. Supp. 2d 709

(N.D. Tex. 2009) .......................................................... 14

Black Political Task Force v. Galvin,

300 F. Supp. 2d 291 (D. Mass. 2004) ............. 16, 19, 21

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

2006) ............................................................................. 13

Brnovich v. Democratic National Committee,

141 S. Ct. 2321 (2021) ................................................... 3

Bush v. Vera, 517 U.S. 952 (1996) ................................... 12

Colleton County Council v. McConnell,

201 F. Supp. 2d 618 (D.S.C. 2002) ............................ 21

Cooper v. Harris, 137 S. Ct. 1455 (2017) ........................ 12

Corbett v. Sullivan, 202 F. Supp. 2d 972

(E.D. Mo. 2002) ........................................................... 19

iii

TABLE OF AUTHORITIES—Continued

Page(s)

Cottier v. City of Martin, 604 F.3d 553 (8th Cir.

2010) ............................................................................. 15

Fairley v. Hattiesburg, 122 F. Supp. 3d 553

(S.D. Miss. 2015) ......................................................... 16

Flores v. Town of Islip, 382 F. Supp. 3d 197

(E.D.N.Y. 2019) .......................................................... 15

Fusilier v. Landry, 963 F.3d 447 (5th Cir. 2020) .......... 15

Gonzalez v. City of Aurora, 535 F.3d 594 (7th

Cir. 2008) ...................................................................... 16

Growe v. Emison, 507 U.S. 25 (1993) .................. 14, 15, 19

Hinds County Republican Party v. Hinds

County, 432 F. Supp. 3d 684 (S.D. Miss.

2020) ............................................................................. 15

Holder v. Hall, 512 U.S. 874 (1994) ............................. 5, 11

Holloway v. City of Virginia Beach,

531 F. Supp. 3d 1015 (E.D. Va. 2021)....................... 17

Jamison v. Tupelo, 471 F. Supp. 2d 706

(N.D. Miss. 2007) ........................................................ 19

Jeffers v. Beebe, 895 F. Supp. 2d 920 (E.D. Ark.

2012) ............................................................................. 15

Jenkins v. Manning, 116 F.3d 685 (3d Cir.

1997) ....................................................................... 16, 17

Johnson v. De Grandy, 512 U.S. 997 (1994) .... 11, 12, 16, 19

Kumar v. Frisco Independent School District,

476 F. Supp. 3d 439 (E.D. Tex. 2020) ....................... 15

TABLE OF AUTHORITIES—Continued

Page(s)

Large v. Fremont County, 670 F.3d 1133

(10th Cir. 2012)............................................................ 21

League of United Latin American Citizens v.

Perry, 548 U.S. 399 (2006) ............................. 14, 16, 19

Little Sisters of the Poor Saints Peter & Paul

Home v. Pennsylvania, 140 S. Ct. 2367

(2020) .............................................................................. 6

Lopez v. Abbott, 339 F. Supp. 3d 589 (S.D. Tex.

2018) ............................................................................. 15

Luna v. County of Kern, 291 F. Supp. 3d 1088

(E.D. Cal. 2018) ........................................... 8, 14, 19, 21

McConchie v. Scholz, — F. Supp. 3d —, 2021

WL 6197318 (N.D. Ill. Dec. 30, 2021) ....................... 15

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

Mims v. Arrow Financial Services, LLC,

565 U.S. 368 (2012) ....................................................... 6

Missouri State Conference of NAACP v.

Ferguson-Florissant School District,

894 F.3d 924 (8th Cir. 2018) ...................................... 21

Montes v. City of Yakima, 40 F. Supp. 3d 1377

(E.D. Wash. 2014) ....................................................... 21

New Rochelle Voter Defense Fund v. City of

New Rochelle, 308 F. Supp. 2d 152

(S.D.N.Y. 2003) ........................................................... 21

Nipper v. Smith, 39 F.3d 1494 (11th Cir. 1994) ............. 17

Patino v. City of Pasadena, 230 F. Supp. 3d

667 (S.D. Tex. 2017) .................................................... 19

TABLE OF AUTHORITIES—Continued

Page(s)

Pope v. County of Albany, 687 F.3d 565 (2d

Cir. 2012) ................................................................ 12, 13

Radogno v. Illinois State Board of Elections,

836 F. Supp. 2d 759 (N.D. Ill. 2011) ......................... 15

Regents of University of California v. Bakke,

438 U.S. 265 (1978) ..................................................... 12

Reynolds v. Sims, 377 U.S. 533 (1964) ............................. 6

Rios-Andino v. Orange County, 51 F. Supp. 3d

1215 (M.D. Fla. 2014) ................................................. 15

Robinson v. Ardoin, — F. Supp. 3d —, 2022

WL 2012389 (M.D. La. 2022) ....................................... 9

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

(2019) ............................................................................ 11

Shaw v. Reno, 509 U.S. 630 (1993) ................ 11, 13, 14, 17

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

(2013) ...................................................... 1, 3, 4, 7, 15, 21

Solomon v. Liberty County Commissioners,

221 F.3d 1218 (11th Cir. 2000) .................................. 16

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

(1966) ........................................................................ 4, 24

Thornburg v. Gingles, 478 U.S. 30

(1986) ............................................ 3, 5, 11, 12, 13, 16, 17

United States v. Blaine County, 363 F.3d 897

(9th Cir. 2004).............................................................. 21

United States v. Board of Commissioners of

Sheffield, 435 U.S. 110 (1978)...................................... 5

TABLE OF AUTHORITIES—Continued

Page(s)

United States v. Charleston County,

365 F.3d 341 (4th Cir. 2004) ...................................... 17

United States v. City of Eastpointe,

378 F. Supp. 3d 589 (E.D. Mich. 2019) ..................... 21

United States v. City of Euclid, 580 F. Supp. 2d

584 (N.D. Ohio 2008) .................................................. 19

United States v. County Board of Elections of

Monroe County, 248 F. Supp. 316

(W.D.N.Y. 1965).......................................................... 24

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

Wisconsin Legislature v. Wisconsin Elections

Commission, 142 S. Ct. 1245 (2022)..................... 5, 13

Wright v. Sumter County Board of Elections &

Registration, 979 F.3d 1282 (11th Cir. 2020) .......... 14

York v. City of Gabriel, 89 F. Supp. 3d 843

(M.D. La. 2015)............................................................ 15

DOCKETED CASES

Shelby County v. Holder, No. 12-96 (U.S.) .......... 2, 3, 7, 9

STATUTORY PROVISIONS

52 U.S.C.

§ 10301 ...................................................................... 5, 16

§ 10303 ............................................................................ 5

Fannie Lou Hamer, Rosa Parks, and

Coretta Scott King Voting Rights Act

Reauthorization and Amendments Act of

2006, Pub. L. No. 109-246, 120 Stat. 577.................... 6

vii

TABLE OF AUTHORITIES—Continued

Page(s)

OTHER AUTHORITIES

Aladangady, Aditya & Akila Forde, Wealth

Inequality and the Racial Wealth Gap,

Federal Reserve (Oct. 22, 2021),

https://www.federalreserve.gov/econres/no

tes/feds-notes/wealth-inequality-and-theracial-wealth-gap-20211022.htm .............................. 22

Bayer, Patrick & Kerwin Kofi Charles,

Divergent Paths: A New Perspective on

Earnings Differences Between Black and

White Men Since 1940, 133 Q.J. Econ. 1459

(2018) ............................................................................ 22

Best, Ryan & Elena Mejía, The Lasting

Legacy of Redlining, FiveThirtyEight

(Feb. 9, 2022), https://projects.five

thirtyeight.com/redlining/ ......................................... 23

Blacksher, James U. & Larry T. Menefee,

From Reynolds v. Sims to City of Mobile v.

Bolden: Have the White Suburbs

Commandeered the Fifteenth

Amendment?, 34 Hastings L.J. 1 (1982) ................. 13

Burton, Orville, et al., South Carolina, in Quiet

Revolution in the South: The Impact of the

Voting Rights Act, 1965–1990, at 191

(Chandler Davidson & Bernard Grofman

eds., 1994) .................................................................... 20

viii

TABLE OF AUTHORITIES—Continued

Page(s)

Campaign Legal Center Blog, More

Observations on Shelby County, Alabama,

and the Supreme Court (Mar. 1, 2013),

http://www.campaignlegalcenter.org/news/

blog/more-observations-shelby-countyalabama-and-supreme-court ....................................... 9

Crum, Travis, Deregulated Redistricting,

107 Cornell L. Rev. 359 (2022) .................................... 4

Davidson, Chandler & Bernard Grofman,

The Voting Rights Act and the Second

Reconstruction, in Quiet Revolution in the

South: The Impact of the Voting Rights

Act, 1965–1990, at 378 (1994) ................................ 4, 18

Faulk, Mike, Big Costs, Heavy Hitters in

ACLU Suit Against Yakima, Yakima

Herald-Republic (Aug. 10, 2014),

https://www.yakimaherald.com/big-costsheavy-hitters-in-aclu-suit-againstyakima/article_3cbcce20-ee9d-11e4-bfbaf3e05bd949ca.html ........................................................ 9

Leadership Conference Educational Fund,

Democracy Diverted: Polling Place

Closures and the Right to Vote (2019),

http://civilrightsdocs.info/pdf/reports/Demo

cracy-Diverted.pdf ....................................................... 2

TABLE OF AUTHORITIES—Continued

Page(s)

Orfield, Gary, et al., Brown at 60: Great

Progress, a Long Retreat and an

Uncertain Future, UCLA Civil Rights

Project (May 15, 2014), https://civilrights

project.ucla.edu/research/k-12-education/

integration-and-diversity/brown-at-60great-progress-a-long-retreat-and-anuncertain-future/Brown-at-60-051814.pdf .............. 23

Pendharkar, Eesha, An Expansive Look

at School Segregation Shows It’s Getting

Worse, Education Week (June 3, 2022),

https://www.edweek.org/leadership/

an-expansive-look-at-school-segregationshows-its-getting-worse/2022/06 .............................. 23

Perales, Nina, et al., Voting Rights in Texas:

1982-2006, 17 S. Cal. Rev. L. & Soc. Just.

713 (2008) ......................................................... 19, 20, 24

Pérez, Lucy, et al., The Economic State of

Latinos in America: The American Dream

Deferred, McKinsey & Co. (2021),

https://www.mckinsey.com/featuredinsights/sustainable-inclusive-growth/theeconomic-state-of-latinos-in-america-theamerican-dream-deferred ......................................... 22

Rabin, Roni Caryn, Racial Inequities Persist

in Health Care Despite Expanded

Insurance, N.Y. Times (Aug. 17, 2021),

https://www.nytimes.com/2021/08/17/health

/racial-disparities-health-care.html ......................... 22

TABLE OF AUTHORITIES—Continued

Page(s)

Ruoff, John C. & Herbert E. Buhl, Voting

Rights In South Carolina: 1982-2006,

17 Rev. L. & Soc. Just. 643 (2008) ............................ 20

Sample, James, The Decade of Democracy’s

Demise, 69 Am. Univ. L. Rev. 1559 (2020) ............... 2

Suddath, Claire, U.S. Residential Segregation

Is Likely to Get Worse: New Study,

Bloomberg (July 8, 2021), https://www.bloo

mberg.com/news/newsletters/2021-07-08/us-residential-segregation-is-likely-to-getworse-new-study ........................................................ 23

United States Commission on Civil Rights,

An Assessment of Minority Voting Rights

Access in the United States (2018),

https://www.usccr.gov/files/pubs/2018/Mino

rity_Voting_Access_2018.pdf ................... 2, 7, 8, 9, 10

Wilson, Valerie & William M. Rogers III,

Black-White Wage Gaps Expand With

Rising Wage Inequality, Economic Policy

Institute (2016), https://files.epi.org/pdf/

101972.pdf .................................................................... 22

INTEREST OF AMICI CURIAE

Amici—Neil Bradley, Arkie Byrd, J. Gerald

Hebert, Larry T. Menefee, and William P. Quigley—are

longstanding practitioners of election law, both inside

and outside of government.1 Each has decades of experience litigating voting rights cases, including, as relevant here, under Section 2 of the Voting Rights Act of

1965. By virtue of their substantial Voting Rights Act

litigation experience, all have extensive familiarity with

the applicable constitutional and statutory provisions.

Additionally, all can speak firsthand to the workability

and efficacy of existing Section 2 doctrine in both the

trial and appellate courts.

SUMMARY OF ARGUMENT

During the oral argument and in the opinion that

followed in Shelby County v. Holder, 570 U.S. 529

(2013), this Court made clear that Section 2 of the Voting Rights Act of 1965 would remain available and effective as a means of guaranteeing a meaningful right

to vote. Alabama now asks this Court to break with

that commitment.

During oral arguments in Shelby County, Justice

Kennedy asked the advocates whether litigation under

Section 2 of the Voting Rights Act of 1965 was a sufficiently “effective remedy” to combat racial voter suppression and dilution, such that preclearance under

The parties have consented to the filing of this brief in letters on file with the Clerk. No counsel for a party authored this

brief in whole or in part, and no entity or person, other than amici

curiae and their counsel, made a monetary contribution intended

to fund the preparation or submission of this brief. Amici submit

this brief solely in their capacities as private citizens.

Section 5 was no longer “utterly necessary.” Oral Arg.

Tr. 25, 37, No. 12-96 (U.S. Feb. 27, 2013). In posing this

question, he noted that Section 2 plaintiffs could obtain

preliminary injunctions and thus prevent illegal maps

and procedures from remaining in place while cases

wound through the courts. See id. at 37. The implication was that there was not “much difference” between

the two provisions in terms of efficacy, and that Section

2’s availability rendered Section 5 unnecessary.2 Id.

When this Court invalidated Section 4(b)’s coverage

formula, it made the same suggestion, assuring the Nation that there was no reason to worry so long as Section 2 remained on the books: “Both the Federal Government and individuals have sued to enforce § 2, and

injunctive relief is available in appropriate cases to

block voting laws from going into effect. Section 2 is

permanent, applies nationwide, and is not at issue in

Subsequent events have confirmed precisely how essential

Section 5 was in deterring and defeating attempts to worsen the

position of minority voters. See, e.g., U.S. Comm’n on Civil Rights,

An Assessment of Minority Voting Rights Access in the United

States 60-82 (2018) (“USCCR Rep’t”), https://www.usccr.gov/files/

pubs/2018/Minority_Voting_Access_2018.pdf; Leadership Conf.

Educ. Fund, Democracy Diverted: Polling Place Closures and the

Right to Vote 10 (2019), http://civilrightsdocs.info/pdf/reports/

Democracy-Diverted.pdf; Sample, The Decade of Democracy’s

Demise, 69 Am. Univ. L. Rev. 1559, 1599-1601 (2020). But as the

law stands, Section 2 is an imperfect—but vital—tool in detecting

and combatting the enduring problem of racial voter suppression

and dilution. It is now the best federal law method of protecting

the effective exercise of the franchise post-Shelby County.

this case.” Shelby County, 570 U.S. at 537 (internal citations omitted).3

Now, however, Appellants-Petitioners and their

amici paint Section 2 as unworkable, unfair, and unconstitutional. These assertions are both unfounded and

unmoored from the text, history, purpose, and realworld application of the Voting Rights Act. Section 2—

as interpreted by Thornburg v. Gingles, 478 U.S. 30

(1986), and its progeny—is workable, balanced, and

consistent with the U.S. Constitution. Significantly,

plaintiffs who have willingly assumed the arduous burdens of Section 2 litigation have achieved meaningful

successes in jurisdictions nationwide. Post-Shelby

County, Section 2 is the Nation’s best hope for fostering equal political opportunity.

ARGUMENT

SECTION 2 IMPLEMENTS THE RECONSTRUCTION

AMENDMENTS

The Voting Rights Act’s historical background is

one “that all Americans should remember,” and bears

noting. Brnovich v. Democratic Nat’l Comm., 141 S.

Ct. 2321, 2341 (2021). Standing alone, the Reconstruction Amendments did not transform this Nation from a

whites-only regime to a genuine multiracial democracy.

Petitioners in Shelby County likewise defended Section 2 as

“an adequate remedy in covered jurisdictions,” as “an effective—

and in some ways superior—remedy” for vote dilution, and as

“provid[ing] greater protection against vote dilution than Section

5.” Pet’rs’ Reply Br. 21-22, Shelby County v. Holder, No. 12-96

(U.S. Feb. 19, 2013), http://blackfreedom.proquest.com/wp-content/

uploads/2020/09/shelby17.pdf. All other citations to briefs herein

refer to filings in the consolidated cases at bar.

See South Carolina v. Katzenbach, 383 U.S. 301, 308315 (1966). It took the Voting Rights Act to bring

America closer to the promise of political equality. The

VRA’s framers “were well aware” of the Fifteenth

Amendment’s “failure to effectively protect black voting rights almost from the time it was ratified in 1870,”

and they “were determined that the Second Reconstruction should not fall victim once more to the same

reactionary impulse that had emasculated the First Reconstruction.” Davidson & Grofman, The Voting Rights

Act and the Second Reconstruction, in Quiet Revolution in the South: The Impact of the Voting Rights Act,

1965–1990, at 378, 379 (1994) (“Davidson & Grofman”).

Through the Act’s various provisions, Congress

sought “to rid the country of racial discrimination in

voting.” South Carolina, 383 U.S. at 315. As this

Court has acknowledged, “racial discrimination and racially polarized voting are not ancient history. Much

remains to be done to ensure that citizens of all races

have equal opportunity to share and participate in our

democratic processes and traditions; and § 2 must be

interpreted to ensure that continued progress.” Bartlett v. Strickland, 556 U.S. 1, 25 (2009) (opinion of Kennedy, J., joined by Roberts, C.J. and Alito, J.). Section

2, as amended,4 “forbids any ‘standard, practice, or procedure’ that ‘results in a denial or abridgement of the

right of any citizen of the United States to vote on account of race or color.’” Shelby County, 570 U.S. at 537

“When Congress revised Section 2 in 1982, it eliminated the

discriminatory intent requirement and permitted a finding of liability based on discriminatory effect. In so doing, Congress relied

on its Reconstruction Amendment enforcement authority to enact

prophylactic legislation.” Crum, Deregulated Redistricting, 107

Cornell L. Rev. 359, 381 (2022).

(quoting 52 U.S.C. § 10301(a)). Section 2 is violated “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 [racial minority group]

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.” 52

U.S.C. § 10301(b).

This Court has long recognized that Section 2 forbids not only instruments of outright vote denial, but

also methods of districting-based vote dilution. See,

e.g., Wisconsin Legis. v. Wisconsin Elections Comm’n,

142 S. Ct. 1245, 1248 (2022) (per curiam) (citing Thornburg v. Gingles, 478 U.S. 30, 46-51 (1986). Specifically,

the phrase “standard, practice, or procedure” is a term

of art used in both Section 2 and Section 5. See 52

U.S.C. §§ 10301(a), 10303(f)(2). This Court has repeatedly held that “standard, practice, or procedure,” as

used in both Sections, encompasses vote dilution claims,

and Congress has ratified that understanding on multiple occasions. See Holder v. Hall, 512 U.S. 874, 885-886

(1994) (O’Connor, J., concurring in part and concurring

in the judgment); id. at 957-966 (separate opinion of

Stevens, J., joined by Blackmun, Souter, and Ginsburg,

JJ.). “Congress is treated as having adopted that interpretation, and this Court is bound thereby.” United

States v. Board of Comm’rs of Sheffield, 435 U.S. 110,

134 (1978).

Congress endorsed this construction of Section 2’s

scope yet again in 2006. It not only left Section 2’s language unchanged, but also approvingly cited “the section 2 litigation filed to prevent dilutive techniques

from adversely affecting minority voters” as evidence

that Section 5 preclearance was still necessary. See

Fannie Lou Hamer, Rosa Parks, and Coretta Scott

King Voting Rights Act Reauthorization and Amendments Act of 2006, Pub. L. No. 109-246, § 2(b)(8), 120

Stat. 577, 578.5 Here, too, Congress declared—in a

manner comporting with bicameralism and presentment—its definitive understanding: namely, that Section 2’s text properly extends to vote dilution.

This interpretation also reflects the understanding—enunciated by this Court just a year before the

Act’s initial passage—that “the right of suffrage can be

denied by a debasement or dilution of the weight of a

citizen’s vote just as effectively as by wholly prohibiting

the free exercise of the franchise.” Reynolds v. Sims,

377 U.S. 533, 555 (1964). As such, Section 2 implements

the Fifteenth Amendment, by providing a mechanism

for achieving equality of political opportunity.

II. SECTION 2 IS THE KEY REMAINING REMEDIAL

PROVISION OF THE VOTING RIGHTS ACT

If Alabama is successful in this case, minority litigants will have no meaningful opportunity to challenge

demonstrably discriminatory practices that abridge

their right to vote or dilute the power of their votes.

Gutting Section 2 would frustrate Congress’s clearly

stated purpose for enacting the Voting Rights Act in

1965 and reauthorizing it in 1970, 1975, 1982, 1992, and

2006. The most recent reauthorization in 2006 took

place after 21 hearings and included over 15,000 pages

This Court often relies upon enacted Congressional findings

of fact when interpreting the scope of remedial statutes. See, e.g.,

Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania, 140 S. Ct. 2367, 2383 (2020); Mims v. Arrow Fin. Servs.,

LLC, 565 U.S. 368, 372 (2012).

of record evidence describing continued discrimination

in voting. See USCCR Rep’t 37-41, supra note 2. It

was clear to Congress in 2006 that “without the continuation of the Voting Rights Act of 1965 protections, racial and language minority citizens [would] be deprived

of the opportunity to exercise their right to vote, or

[would] have their votes diluted, undermining the significant gains made by minorities in the last 40 years.”

Shelby County, 570 U.S. at 566 (Ginsburg, J., dissenting, joined by Breyer, Sotomayor, and Kagan, JJ.) (quotation marks omitted). Prior to this Court’s decision in

Shelby County, Sections 2 and 5 of the Voting Rights

Act worked in tandem to provide mechanisms for challenging enacted discriminatory election practices nationwide and, in jurisdictions with a history of discrimination, for preventing certain discriminatory measures

before enactment, respectively.

In Shelby County, this Court invalidated Section 5

with the understanding that the continued availability

of Section 2 would prevent continued voter discrimination. This dynamic is reflected in both the oral argument and the opinion. Counsel for Shelby County assured the Court that Section 2 was an “effective remedy” against discriminatory practices such that the preclearance provisions were no longer necessary. Shelby

County Oral Arg. Tr. 26. Though General Verrilli responded that “Section 2 cannot do the work of Section

5,” id. at 36, this Court ultimately held that Section 2

would be just as effective on its own: “Both the Federal

Government and individuals have sued to enforce § 2,

and injunctive relief is available in appropriate cases to

block voting laws from going into effect,” Shelby County, 570 U.S. at 537 (internal citations omitted). The

Court went further to say: “Section 2 is permanent, applies nationwide, and is not at issue in this case.” Id.

(emphasis added). Section 2 is now at issue and Alabama seeks to cripple it. There is no warrant to erode

the minority protection principle embodied in Section 2,

and doing so could only be read as a retreat from a

Constitutionally-compliant and Constitution-enhancing

federal law.

Without the protections of Section 2, racial and

language minority citizens are at risk for vote dilution

or deprivation of the right altogether. As recently as

2018, the U.S. Civil Rights Commission catalogued discriminatory practices that affected the right to vote

and concluded that there were “indicia of ongoing discrimination in voting in the formerly covered jurisdictions and in other states.” USCCR Rep’t 60. This is

not ancient history. In 2016, Latino voters in Kern

County, California challenged a redistricting plan that

was found to be “not equally open to participation by

Latino voters.” Luna v. County of Kern, 291 F. Supp.

3d 1088, 1144 (E.D. Cal. 2018). The district lines were

found to dilute the political power of Latino voters and

struck down by a federal court, but only after remaining in effect for years while the litigation proceeded.

See id.; USCCR Rep’t 229. Likewise, in 2021, voters in

Georgia challenged the post-2020 Census State legislature maps. Although the district court ultimately denied relief on Purcell grounds in the wake of this

Court’s order denying preliminary relief in the consolidated cases at bar, it did so only after finding that the

plaintiffs had shown a substantial likelihood of success

on the merits of their Section 2 claim. See Alpha Phi

Alpha Fraternity Inc. v. Raffensperger, — F. Supp. 3d

—, 2022 WL 633312, at *70 (N.D. Ga. Feb. 28, 2022).

These examples, others catalogued by the Commission,

and the various maps successfully challenged in the district courts following the 2020 redistricting cycle—only

to be stayed pending resolution of this case—show the

continued necessity of Section 2.6

Undoubtedly, Section 2 litigation has practical disadvantages compared to Section 5 preclearance. Section 2 litigation is labor-intensive, almost prohibitively

expensive, and only provides an after-the-fact remedy.

See, e.g., Shelby County Oral Arg. Tr. 38 (“[Section 2]

suits are extremely expensive and they typically result

in after-the-fact litigation.”); USCCR Rep’t 96 (describing litigation experts who “testified that [Section 2] litigation is exceedingly time-consuming and expensive”);

Campaign Legal Ctr. Blog, More Observations on Shelby County, Alabama, and the Supreme Court (Mar. 1,

2013), http://www.campaignlegalcenter.org/news/blog/

more-observations-shelby-county-alabama-and-supreme

-court (noting that, out of the “the hundreds of Section

2 cases that have been filed over the years,” the number of preliminary injunctions granted is “quite small,

likely putting the percentage at less than 5%, and possibly quite lower”); Faulk, Big Costs, Heavy Hitters in

ACLU Suit Against Yakima, Yakima Herald-Republic

(Aug. 10, 2014), https://www.yakimaherald.com/bigcosts-heavy-hitters-in-aclu-suit-against-yakima/article

_3cbcce20-ee9d-11e4-bfba-f3e05bd949ca.html (explaining that, over the course of a Section 2 case, the City of

Yakima produced over 340,000 pages of documents and

more than 50 people were deposed). Indeed, Congress

recognized those inefficiencies in 2006 and “found Section 2 litigation to be more difficult, expensive, and

See, e.g., Robinson v. Ardoin, — F. Supp. 3d —, 2022 WL

2012389 (M.D. La. 2022), stay denied, 37 F.4th 208 (5th Cir. 2022),

stayed pending appeal, — S. Ct. —, No. 21-1596, 2022 WL 2312680

(U.S. June 28, 2022) (Mem.).

time-consuming than Section 5 procedures.” USCCR

Rep’t 225.

Despite these challenges, Section 2 has unquestionably facilitated more equal access to the ballot across

the country. Its continued availability is key to—and

the last remaining hope for—fulfillment of the Fifteenth Amendment’s promise. Section 2 must remain

meaningfully available to determined litigants who

seek to enjoin a particularly offensive practice that dilutes their right to vote. With this litigation, some of

Alabama’s amici seek to invalidate Section 2 altogether.7 Alabama now contends that the standard established by this Court in Gingles and applied by courts

around the country for forty years is somehow not sufficiently administrable. Milligan Cert. Reply Br. 15

n.6. This is contradicted by the evidence, by this

Court’s precedents, and by the long experience of Article III judges and litigants.

III. GINGLES IS WORKABLE

Federal courts have consistently interpreted and

applied Section 2 in post-1982 challenges of at-large and

single-member election systems. Plaintiffs do not succeed inevitably in Section 2 litigation, and rightly so.8

But while the outcomes of these cases have not skewed

uniformly in one direction or another, the method of de7

See, e.g., America First Legal Found. Amicus Br. 5-23.

Contrary to some amici’s assertions, “legislative policy determinations” have been regularly “sustained” by courts in Section

2 cases. Contra American Legis. Exch. Council Amicus Br. 9.

Furthermore, the “dozens of cases [filed] pursuant to § 2” in recent

years, id. at 11, testify less to issues with Gingles’ clarity and more

to the consequences of preclearance’s post-Shelby County demise.

ciding them has coalesced into a well-developed, evenhanded jurisprudential inquiry. Gingles offers attainable—but not automatic—criteria for proving that a particular districting arrangement “operate[s] to impair

minority voters’ ability to elect representatives of their

choice.” 478 U.S. at 50. Accordingly, this Court ought

not accept the invitation to radically revise the doctrine

for establishing vote dilution-based Section 2 violations.9

A. The Gingles Preconditions Are Workable

The Gingles preconditions and the totality-of-thecircumstances inquiry are reasonably “limited and precise standard[s]” that give sufficiently clear guideposts

to legislatures, litigants, and courts alike. Rucho

v. Common Cause, 139 S. Ct. 2484, 2502 (2019). To be

sure, they “‘cannot be applied mechanically,’” Johnson

v. De Grandy, 512 U.S. 997, 1007 (1994), but this is a

virtue, not a vice.10 Gingles does not indulge “impermissible racial stereotypes,” Shaw v. Reno, 509 U.S.

Contra, e.g., Project on Fair Representation Amicus Br. 1315; Sen. John Braun et al. Amicus Br. 14-24; Lawyers Democracy

Fund Amicus Br. 10-16; Republican Nat’l Comm. Amicus Br. 17-20.

Nor is this trait unique to Section 2. American jurisprudence abounds with doctrines that resist “mechanical” application

yet are regularly applied effectively. Examples include specific

personal jurisdiction, the Rule of Reason, fair use, public rights,

Erie, the Mathews test, the Arlington Heights factors, and entire

fairness review of corporate transactions. “There is no question

that the Voting Rights Act has required the courts to resolve difficult questions, but that is no reason to deviate from an interpretation that Congress has thrice approved.” Holder, 512 U.S. at 966

(separate opinion of Stevens, J., joined by Blackmun, Souter, and

Ginsburg, JJ.).

630, 647 (1993), or adopt strict “racial quota[s],” Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 279 (1978).

To the contrary, Gingles commands “an intensely local

appraisal of the design and impact of the contested

electoral mechanisms,” including “a searching practical

evaluation of the past and present reality.” Gingles,

478 U.S. at 79 (quotation marks and citations omitted).

It guarantees that race is taken into consideration “[no]

more than is ‘reasonably necessary’” to effectuate the

Act’s purpose of ensuring equality of political opportunity. Bush v. Vera, 517 U.S. 952, 979 (1996) (opinion of

O’Connor, J., joined by Rehnquist, C.J. and Kennedy, J.).

To begin, a plaintiff must demonstrate “the possibility of creating more than the existing number of reasonably compact districts with a sufficiently large minority population to elect candidates of its choice.” De

Grandy, 512 U.S. at 1008. To do so, a plaintiff must satisfy “an objective, numerical test: Do minorities make

up more than 50 percent of the voting-age population in

the relevant geographic area?” Bartlett, 556 U.S. at 18;

see also id. at 19 (noting that every federal appeals

court to consider the issue has “interpreted the first

Gingles factor to require a majority-minority standard”). The relevant geographic area is a hypothetical

alternative district that is “‘reasonably configured,’”

Cooper v. Harris, 137 S. Ct. 1455, 1470 (2017), and in

which the minority population is “geographically compact,” Abbott v. Perez, 138 S. Ct. 2305, 2330 (2018), with

due consideration of “traditional districting principles

such as maintaining communities of interest and traditional boundaries,” Abrams v. Johnson, 521 U.S. 74, 92

(1997). The “‘ultimate end’ of the first Gingles factor is

simply ‘to prove that a solution is possible, and not necessarily to present the final solution to the problem.’”

Pope v. County of Albany, 687 F.3d 565, 576 (2d Cir.

2012) (quoting Bone Shirt v. Hazeltine, 461 F.3d 1011,

1019 (8th Cir. 2006)).

If the inquiry ended here and States were forced to

enact the Gingles step one map, Appellants-Petitioners

and certain amici might be justified in asserting that

Gingles results in unconstitutional racial gerrymandering.11 But, of course, Gingles demands far more of

plaintiffs. The second and third preconditions require

proof that the minority group is “politically cohesive,”

Gingles, 478 U.S. at 51, and that the majority group

“vote[s] sufficiently as a bloc to enable it to usually defeat the minority group’s preferred candidate,” Wisconsin Legis., 142 S. Ct. at 1248. These inquiries—

See, e.g., Appellants-Pet’rs Br. 71-80; Alabama Ctr. for Law

& Liberty Amicus Br. 20. Additionally, in their opening merits

brief, Appellants-Petitioners claim that “Gingles relied heavily on

commentators who argued that ‘the relevant question should be

whether the minority population is so concentrated that, if districts were drawn pursuant to accepted nonracial criteria, there is

a reasonable possibility that at least one district would give the

racial minority a voting majority.’” Appellants-Pet’rs Br. 49-50

n.10 (quoting Blacksher & Menefee, From Reynolds v. Sims to

City of Mobile v. Bolden: Have the White Suburbs Commandeered

the Fifteenth Amendment?, 34 Hastings L.J. 1, 56 n.330 (1982)).

Appellants-Petitioners apparently regard the quoted language as

supporting an approach contrary to existing doctrine and practice.

Yet litigants already must ensure that their hypothetical districts

respect “traditional districting principles such as maintaining

communities of interest and traditional boundaries.” Abrams, 521

U.S. at 92; see also Shaw, 509 U.S. at 647. Just as it is possible to

“be aware of racial demographics” without allowing race to “predominate[] in the redistricting process,” Miller v. Johnson, 515

U.S. 900, 916 (1995), so too is it possible to draw a map that comports with traditional districting principles while also complying

with Gingles step one’s requirement of showing “that a solution is

possible,” Pope, 687 F.3d at 576.

generally treated together under the rubric of “racially

polarized voting”12—entail using at least one of three

“generally

accepted

statistical

techniques—

homogenous precinct analysis, ecological regression,

and ecological inference.” Wright v. Sumter Cnty. Bd.

of Elections & Registration, 979 F.3d 1282, 1290 (11th

Cir. 2020); see also Luna, 291 F. Supp. 3d at 1118 (discussing these methodologies); Benavidez v. City of Irving, 638 F. Supp. 2d 709, 723 (N.D. Tex. 2009) (same).

Under this political cohesion test, the focus consciously

moves beyond race to look to a demonstration of actual

voting behavior. A large but non-cohesive collection of

people of a particular racial minority group cannot avail

themselves of Section 2.

Thus, the second and third preconditions are robust

safeguards against the use of “impermissible racial stereotypes.” Shaw, 509 U.S. at 647. Section 2, as interpreted by Gingles and its progeny, does not presume

“that members of the same racial group—regardless of

their age, education, economic status, or the community

in which they live—think alike, share the same political

interests, and will prefer the same candidates at the

polls.” Id. Instead, Gingles’ second and third preconditions assess how people actually vote in the locality at

issue. They require litigants and courts to scour the

facts on the ground, as evidenced by statistical analyses

of recent elections. They ensure that “a court [does]

not presume bloc voting within even a single minority

group.” Growe v. Emison, 507 U.S. 25, 41 (1993). Gingles is thus inherently “grounded in current condi-

E.g., League of United Latin Am. Citizens v. Perry, 548

U.S. 399, 427 (2006) (“LULAC”); Abrams, 521 U.S. at 92.

tions.” Shelby County, 570 U.S. at 554.13 And where

“the record simply ‘contains no statistical evidence’ of

minority political cohesion … or of majority bloc voting,” courts have not hesitated to rule in defendants’

favor. Growe, 507 U.S. at 41; see, e.g., McConchie

v. Scholz, — F. Supp. 3d —, 2021 WL 6197318, at *6

(N.D. Ill. Dec. 30, 2021) (per curiam); Kumar v. Frisco

Indep. Sch. Dist., 476 F. Supp. 3d 439, 513-514 (E.D.

Tex. 2020); Hinds Cnty. Republican Party v. Hinds

County, 432 F. Supp. 3d 684, 697-700 (S.D. Miss. 2020);

York v. City of Gabriel, 89 F. Supp. 3d 843, 858 (M.D.

La. 2015); Rios-Andino v. Orange County, 51 F. Supp.

3d 1215, 1225-1226 (M.D. Fla. 2014); Jeffers v. Beebe,

895 F. Supp. 2d 920, 935 (E.D. Ark. 2012); Radogno v.

Illinois State Bd. of Elections, 836 F. Supp. 2d 759, 773

(N.D. Ill. 2011), aff’d, 568 U.S. 801 (2012); Cottier v.

City of Martin, 604 F.3d 553, 562 (8th Cir. 2010) (en

banc).

B. The Totality-of-the-Circumstances Inquiry

Buttresses The Gingles Preconditions

Even after satisfying the Gingles preconditions,

the plaintiff “must then go on to prove that, under the

totality of the circumstances, the district lines dilute

the votes of the members of the minority group.” Abbott, 138 S. Ct. at 2331. Although most unsuccessful

Section 2 cases fail at the preconditions stage, plaintiffs

can—and do—lose under the totality of the circumstances. See, e.g., Fusilier v. Landry, 963 F.3d 447, 462463 (5th Cir. 2020); Flores v. Town of Islip, 382 F. Supp.

3d 197, 245 (E.D.N.Y. 2019); Lopez v. Abbott, 339 F.

4-11.

Contra National Republican Redistricting Tr. Amicus Br.

Supp. 3d 589, 619 (S.D. Tex. 2018); Fairley

v. Hattiesburg, 122 F. Supp. 3d 553, 580-581 (S.D. Miss.

2015), aff’d, 662 F. App’x 291 (5th Cir. 2016); Solomon

v. Liberty Cnty. Comm’rs, 221 F.3d 1218, 1221-1224

(11th Cir. 2000) (en banc); Jenkins v. Manning, 116

F.3d 685, 700 (3d Cir. 1997) (Greenberg, J., joined by

Alito, J.).

As such, consistent with the Dole Proviso14—and

contrary to certain amici’s pronouncements—Gingles

does not “mandate proportional representation”15 or

“require[] … proportionality of outcomes.”16 If that

were so, then in every case where Plaintiffs satisfied

the first Gingles precondition, the map would be invalidated—yet the case law is to the contrary.

This Court has held repeatedly that “whether the

number of districts in which the minority group forms

an effective majority is roughly proportional to its

share of the population in the relevant area” is one

“relevant consideration” among many. LULAC, 548

U.S. at 426 (citing De Grandy, 512 U.S. at 1000). At

most, it provides “some evidence.” Id. at 437 (emphasis

added). But, as this Court has stressed and lower

courts have reiterated, proportionality is not dispositive. See, e.g., Gingles, 478 U.S. at 46; Gonzalez v. City

of Aurora, 535 F.3d 594, 598 (7th Cir. 2008); Black Pol.

Task Force v. Galvin, 300 F. Supp. 2d 291, 310 (D.

“Provided, That nothing in this section establishes a right

to have members of a protected class elected in numbers equal to

their proportion in the population.” 52 U.S.C. § 10301(b).

State of Louisiana et al. Amicus Br. 4.

Republican Nat’l Comm. Amicus Br. 6.

Mass. 2004); Jenkins, 116 F.3d at 692. The actual practice of the lower courts reinforces that conclusion.

The totality-of-the-circumstances inquiry provides

another buffer against potential adoption of “impermissible racial stereotypes.” Shaw, 509 U.S. at 647. Rather than treating satisfaction of the preconditions as

sufficient to justify relief, a court must undergo “a

searching practical evaluation of the past and present

reality.” Gingles, 478 U.S. at 79 (quotation marks and

citations omitted). In addition to contesting the enumerated Senate Factors, a defendant may also “attempt to rebut the plaintiff’s claim by introducing evidence of objective, non-racial factors under the totality

of the circumstances standard,” including potential evidence that partisanship alone can explain evidence of

racial polarization. Nipper v. Smith, 39 F.3d 1494, 1513

(11th Cir. 1994) (en banc).17 This fact-intensive inquiry

One amicus has suggested that evidence of partisan polarization should be considered as rebuttal evidence to the Gingles

preconditions. See National Republican Redistricting Tr. Amicus

Br. 18-20. However, nearly every circuit to consider the issue has

agreed that “the approach most faithful to the Supreme Court’s

case law is one that treats causation as irrelevant in the inquiry

into the three Gingles preconditions, but relevant in the totality of

circumstances inquiry.” United States v. Charleston County, 365

F.3d 341, 347-348 (4th Cir. 2004) (quotation marks and citation

omitted); see Holloway v. City of Virginia Beach, 531 F. Supp. 3d

1015, 1078 (E.D. Va. 2021) (noting that the Second, Fourth, Seventh, Tenth, and Eleventh Circuits have adopted the majority

view; the Fifth Circuit stands alone in holding otherwise) (subsequent history omitted). As Judge Wilkinson has explained, addressing partisanship’s potential causal role as part of the Gingles

preconditions “would convert the threshold test into precisely the

wide-ranging, fact-intensive examination it is meant to precede.”

Charleston County, 365 F.3d at 348.

ensures that evidence-based proof, not mindless stereotyping, is the basis for relief.

Thus, Gingles is not an anachronistic doctrine too

unwieldy to apply or too one-sided to retain. Gingles is

workable—and vital.

IV. GINGLES IS EFFECTIVE

For decades, the Voting Rights Act has been a

stalwart safeguard against racial discrimination in voting, and Section 2 has been an essential part of that defense. In turn, where plaintiffs achieve a successful

outcome, often what follows is the opportunity for minority citizens of a voting age population to elect their

preferred candidate and an increase in civic engagement amongst minority communities.

From the outset—but especially following the 1982

amendments—Section 2 has been transformative.

“Hundreds” of “cities, counties, and other kinds of jurisdictions shifted from at-large elections [to singlemember districts] in the 1980s.” Davidson & Grofman

383. “[T]his widespread shift in local election structures … stemmed from the Voting Rights Act, especially section 2.” Id. at 385. Following the 1982 VRA

amendments, “numerous suits attacking local at-large

elections were filed,” the “vast bulk” of which “were

brought by minority plaintiffs.” Id. By comparison,

“section 2 litigation brought solely by the Department

of Justice played only a minor role in effecting changes

in local election systems.” Id. In turn, the “replacement of at-large elections led to remarkable gains in

black officeholding that far outstripped gains in the jurisdictions that remained at large.” Id. at 383. In

States such as Texas, “Hispanic representation also

showed noteworthy gains.” Id. at 384.

Nor has Section 2’s coverage been confined to uprooting at-large election systems. Since 1993—when

this Court confirmed that Gingles applies with equal

force to single-member districting schemes—Section 2

has been used to thwart attempts to crack and pack

minority voters into districts that undermine their ability to elect representatives of their choice, including in

the consolidated cases at bar. See De Grandy, 512 U.S.

at 1006-1007 (discussing Voinovich v. Quilter, 507 U.S.

146 (1993); Growe, 507 U.S. 25); see also, e.g., LULAC,

548 U.S. 399; Luna, 291 F. Supp. 3d 1088; Baldus

v. Members of Wis. Gov’t Accountability Bd., 849 F.

Supp. 2d 840 (E.D. Wis. 2012) (per curiam); Black Pol.

Task Force, 300 F. Supp. 2d 291; Arbor Hill Concerned

Citizens Neighborhood Ass’n v. County of Albany, 281

F. Supp. 2d 436 (N.D.N.Y. 2003); Corbett v. Sullivan,

202 F. Supp. 2d 972 (E.D. Mo. 2002).18

Altogether, the increases in the number of minority

officials elected have been dramatic. For example,

from 1973 to 2005, the number of Latino elected officials in Texas nearly quadrupled. Perales et al., Voting

Rights in Texas: 1982-2006, 17 S. Cal. Rev. L. & Soc.

Just. 713, 717 (2008) (“Perales et al.”). Between 1970

and 2001, the number of Black elected officials in Texas

increased from 29 to 475, including the first two Black

Additionally, some cases have involved hybrid districting

schemes using a mix of at-large and single-member districts. See,

e.g., Patino v. City of Pasadena, 230 F. Supp. 3d 667 (S.D. Tex.

2017); United States v. City of Euclid, 580 F. Supp. 2d 584 (N.D.

Ohio 2008); Jamison v. Tupelo, 471 F. Supp. 2d 706 (N.D. Miss.

2007).

members of Congress from the State.19 Id. Texas voting rights plaintiffs have secured a successful outcome

in more Section 2 cases than any other State—

prevailing in or settling more than 150 cases through

2008. Id. at 744. As a result, 197 jurisdictions in Texas

altered their discriminatory voting systems. Id.

South Carolina’s electoral landscape has also been

transformed because of the vigorous enforcement of the

Voting Rights Act. At the time of the Act’s passage,

South Carolina had not had a Black elected official since

Reconstruction despite Black citizens comprising onethird of its population. Ruoff & Buhl, Voting Rights In

South Carolina: 1982-2006, 17 Rev. L. & Soc. Just. 643,

649 (2008) (Ruoff & Buhl). During the 1980s, county

councils in numerous South Carolina jurisdictions—

including Abbeville, Barnwell, Darlington, Fairfield,

Georgetown, Laurens, Richland, and Saluda counties—

entered consent decrees, changing their at-large districts to single-member districts. See Burton et al.,

South Carolina, in Quiet Revolution in the South: The

Impact of the Voting Rights Act, 1965–1990, at 191, 228

(Chandler Davidson & Bernard Grofman eds., 1994).

By the early 2000s, robust Voting Rights Act enforcement had eliminated enough obstacles for 540 Black

elected officials to take office. See Ruoff & Buhl 649.

Today, implementation of Section 2 remains essential in

States like South Carolina where “substantial evidence

[shows] that th[e] disturbing fact” of racially polarized

It is worth noting that these strides were accomplished

with the combined efforts of Sections 2 and 5. However, with

Shelby County rendering Section 5 inoperable, Section 2 has become even more essential to defeat laws that make it disproportionately more difficult for minority voters to participate in the

political process.

voting “has seen little change” in recent decades.

Colleton Cnty. Council v. McConnell, 201 F. Supp. 2d

618, 641 (D.S.C. 2002).

The South has not been alone in experiencing this

transformation, either. Successful Section 2 vote dilution cases have been brought in jurisdictions across the

country, from New York’s Westchester County to California’s Central Valley;20 in Massachusetts, Michigan,

Missouri, and Montana;21 and in Washington, Wisconsin, and Wyoming.22 In other words, Section 2 does not

“treat[] States differently from one another.” Shelby

County, 570 U.S. at 553.

Nor are these successes confined to the past, as evidenced by the number of cases from recent years cited

herein. Even as this Nation has made measurable progress towards political, economic, and social equality,

America remains riven with racial disparities in terms

See, e.g., New Rochelle Voter Def. Fund v. City of New Rochelle, 308 F. Supp. 2d 152 (S.D.N.Y. 2003); Luna, 291 F. Supp. 3d

1088.

See, e.g., Black Pol. Task Force, 300 F. Supp. 2d 291; United States v. City of Eastpointe, 378 F. Supp. 3d 589 (E.D. Mich.

2019); Missouri State Conf. of NAACP v. Ferguson-Florissant

Sch. Dist., 894 F.3d 924 (8th Cir. 2018); United States v. Blaine

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

See, e.g., Montes v. City of Yakima, 40 F. Supp. 3d 1377

(E.D. Wash. 2014); Baldus, 849 F. Supp. 2d 840; Large v. Fremont

County, 670 F.3d 1133 (10th Cir. 2012).

of income,23 wealth,24 healthcare access,25 and other

metrics of quality of life.26 De facto residential27 and

See, e.g., Bayer & Charles, Divergent Paths: A New Perspective on Earnings Differences Between Black and White Men

Since 1940, 133 Q.J. Econ. 1459, 1459 (2018) (“After narrowing

from 1940 to the mid-1970s, the median black-white level earnings

gap has since grown as large as it was in 1950.”); Wilson & Rogers

III, Black-White Wage Gaps Expand With Rising Wage Inequality 1, Econ. Pol’y Inst. (2016), https://files.epi.org/pdf/101972.pdf

(“As of 2015, relative to the average hourly wages of white men

with the same education, experience, metro status, and region of

residence, black men make 22.0 percent less, and black women

make 34.2 percent less.”); Pérez et al., The Economic State of Latinos in America: The American Dream Deferred vi, McKinsey &

Co. (2021), https://www.mckinsey.com/featured-insights/sustainableinclusive-growth/the-economic-state-of-latinos-in-america-theamerican-dream-deferred (both native-born and foreign-born Latinos “earn significantly less on average than White workers in the

same occupations”).

See, e.g., Aladangady & Forde, Wealth Inequality and the

Racial Wealth Gap, Fed. Res. (Oct. 22, 2021), https://www.

federalreserve.gov/econres/notes/feds-notes/wealth-inequality-andthe-racial-wealth-gap-20211022.htm (reporting that “the average

Black and Hispanic or Latino households earn about half as much

as the average White household and own only about 15 to 20 percent as much net wealth,” and that “this wealth gap has widened

notably over the past few decades”).

See, e.g., Rabin, Racial Inequities Persist in Health Care

Despite Expanded Insurance, N.Y. Times (Aug. 17, 2021), https://

www.nytimes.com/2021/08/17/health/racial-disparities-health-care.

html.

Indeed, the Gingles framework provides for consideration

of these disparities in connection with Senate Factor 5.

educational28 segregation is nearly as widespread now

as it was a generation or two ago. And racial voter

suppression and dilution remain clear and present

threats, especially following the demise of preclearance.

These social ills require a real, sustainable solution:

change through our electoral process—an electoral process that Section 2 as it exists today makes more equitable.

See, e.g., Best & Mejía, The Lasting Legacy of Redlining,

FiveThirtyEight (Feb. 9, 2022), https://projects.fivethirtyeight.com/

redlining/ (study examining 138 cities where the Home Owners’

Loan Corporation conducted redlining “found that nearly all formerly redlined zones in the country are still disproportionately

Black, Latino or Asian compared with their surrounding metropolitan area, while two-thirds of greenlined zones—neighborhoods

that HOLC deemed ‘best’ for mortgage lending—are still overwhelmingly white”); Suddath, U.S. Residential Segregation Is

Likely to Get Worse: New Study, Bloomberg (July 8, 2021),

https://www.bloomberg.com/news/newsletters/2021-07-08/u-s-resi

dential-segregation-is-likely-to-get-worse-new-study (“81% of

metropolitan areas with more than 200,000 people were more racially segregated in 2019 than they were in 1990.”).

See, e.g., Pendharkar, An Expansive Look at School Segregation Shows It’s Getting Worse, Educ. Week (June 3, 2022),

https://www.edweek.org/leadership/an-expansive-look-at-schoolsegregation-shows-its-getting-worse/2022/06 (“School segregation

has increased in the last 30 years, especially in the 100 largest districts that enroll about 40 percent of the nation’s K-12 population.”); Orfield et al., Brown at 60: Great Progress, a Long Retreat

and an Uncertain Future 11, UCLA Civil Rights Project (May 15,

2014), https://civilrightsproject.ucla.edu/research/k-12-education/

integration-and-diversity/brown-at-60-great-progress-a-long-retreatand-an-uncertain-future/Brown-at-60-051814.pdf (“The reality is

that segregation has been increasing since l990, for almost a quarter century, and that today black students are substantially more

segregated than they were in l970.”).

The efficacy of Gingles is in part attributable to the

fact that the inquiries it demands are fact-sensitive. In

other words, Gingles accounts for racial progress made

in this country without ignoring continued threats to

democracy. The recent cases “represent ongoing and

recurring attempts to discriminate against minority

voters” nationwide. Perales et al. 744. Of equal importance, however, the numerous cases cited herein also indicate Section 2’s ability to thwart such attempts.

Following preclearance’s demise in Shelby County,

Section 2 has become the last, best hope to “eliminate

second-class citizenship wherever present.” United

States v. County Bd. of Elections of Monroe Cnty., 248

F. Supp. 316, 317 (W.D.N.Y. 1965). The successful cases demonstrate Section 2’s efficacy in effectuating Congress’ aspiration that the Voting Rights Act “rid the

country of racial discrimination in voting.” South Carolina, 383 U.S. at 315.

***

Section 2, the vital federal tool for ensuring equal

political opportunity, must endure as an available and

effective protection. What was once considered a

“permanent” tool to combat the disproportionate marginalization of minority voters is now characterized as

unmanageable, imbalanced, and unlawful. Amici can

attest otherwise. After decades of litigating cases under the VRA, amici can attest to the workability, fairness, and constitutionality of Section 2.

CONCLUSION

The Court should affirm the lower court’s judgment.

Respectfully submitted.

DEBO P. ADEGBILE

EDWARD WILLIAMS

Counsel of Record

AYANA D. WILLIAMS

SAMUEL E. WEITZMAN

SONIKA R. DATA

WILMER CUTLER PICKERING WILMER CUTLER PICKERING

HALE AND DORR LLP

1875 Pennsylvania Ave., NW 7 World Trade Center

250 Greenwich St.

Washington, DC 20006

New York, NY 10007

(212) 295-6717

debo.adegbile@wilmerhale.com

JULY 2022

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.