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
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In The
Supreme Court of the United States
---------------------------------♦---------------------------------
JOHN H. MERRILL, ET AL., APPELLANTS
v.
EVAN MILLIGAN, ET AL.
---------------------------------♦---------------------------------
JOHN H. MERRILL, ET AL., PETITIONERS
v.
MARCUS CASTER, ET AL.
---------------------------------♦--------------------------------ON APPEAL FROM AND WRIT OF CERTIORARI
TO THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
---------------------------------♦---------------------------------
BRIEF FOR LOCAL GOVERNMENTS
AS AMICI CURIAE SUPPORTING
APPELLEES AND RESPONDENTS
---------------------------------♦--------------------------------JONATHAN B. MILLER
MARISSA ROY
PUBLIC RIGHTS PROJECT
4096 Piedmont Ave. #149
Oakland, CA 94611
Counsel for Amici Curiae
JOSEPH R. PALMORE
Counsel of Record
SAMUEL B. GOLDSTEIN
MORRISON & FOERSTER LLP
2100 L St. NW, Suite 900
Washington, DC 20037
(202) 887-6940
JPalmore@mofo.com
ANDREW W. GARTH
KATE BURROUGHS
SHANNON PRICE
801 Plum St., Room 214
Cincinnati, OH 45202
Counsel for City of Cincinnati
JULY 2022
================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM
TABLE OF CONTENTS
INTERESTS OF AMICI CURIAE .......................
1
INTRODUCTION AND SUMMARY
OF ARGUMENT ..................................................
3
ARGUMENT ........................................................
5
I.
II.
SECTION 2 REFLECTS LOCALITIES’
OBLIGATION TO DRAW DISTRICTS
THAT ENABLE EQUAL OPPORTUNITY
TO PARTICIPATE IN THE POLITICAL
PROCESS ....................................................
5
EXISTING STANDARDS FOR ASSESSING
SECTION
2
COMPLIANCE
IN
REDISTRICTING ARE APPROPRIATE
AND ADMINISTRABLE ............................. 12
III. ALABAMA’S PROPOSED SECTION 2
STANDARD
IS
INFLEXIBLE AND
UNWORKABLE .......................................... 19
CONCLUSION..................................................... 24
APPENDIX A—LIST OF AMICI CURIAE .......... 1a
ii
TABLE OF AUTHORITIES
CASES
Abbott v. Perez,
138 S. Ct. 2305 (2018) ....................................... 12, 18
Ala. Legis. Black Caucus v. Alabama,
575 U.S. 254 (2015) .................................................18
Bethune-Hill v. Va. State Bd. of Elections,
137 S. Ct. 788 (2017) ...............................................19
Brnovich v. Democratic Nat’l Comm.,
141 S. Ct. 2321 (2021) ................................... 3, 20, 21
Bush v. Vera,
517 U.S. 952 (1996) ........................................... 17, 18
Chisom v. Roemer,
501 U.S. 380 (1991) .................................................21
Cooper v. Harris,
137 S. Ct. 1455 (2017) ................................. 11, 18, 22
FERC v. Mississippi,
456 U.S. 742 (1982) ...................................................5
Johnson v. De Grandy,
512 U.S. 997 (1994) ........................................... 13, 17
League of United Latin Am. Citizens v. Perry,
548 U.S. 399 (2006) ........................................... 13, 17
League of Women Voters of Ohio v. Ohio
Redistricting Comm’n,
No. 2021-1193, 2022 WL 803033
(Ohio Mar. 16, 2022) ..................................................9
Merrill v. Milligan,
142 S. Ct. 879 (2022) ...............................................20
iii
TABLE OF AUTHORITIES—Continued
Miller v. Johnson,
515 U.S. 900 (1995) ..................................... 16, 18, 23
Mobile v. Bolden,
446 U.S. 55 (1980) ...................................................20
Reynolds v. Sims,
377 U.S. 533 (1964) ...................................................8
Shelby Cnty. v. Holder,
570 U.S. 529 (2013) ........................................... 10, 16
Thornburg v. Gingles,
478 U.S. 30 (1986) ............................ 3, 10, 11, 13, 21
Voinovich v. Quilter,
507 U.S. 146 (1993) .................................................13
STATUTES
52 U.S.C. § 10301(a) ................................................ 8, 20
52 U.S.C. § 10301(b) .......................................... 9, 13, 20
52 U.S.C. § 10310(c)(2) ..................................................8
OTHER AUTHORITIES
Alamo Colleges District, Redistricting,
https://www.alamo.edu/about-us/
leadership/board-of-trustees/redistricting
(last visited July 14, 2022) ........................................6
Br. of City of Cincinnati as Amicus Curiae,
League of Women Voters of Ohio v. Ohio
Redistricting Comm’n,
No. 2021-1193 (Ohio Oct. 29, 2021). .......................10
iv
TABLE OF AUTHORITIES—Continued
Caliper Software, Mapping Software,
https://www2.caliper.com/store/
product-category/software
(last visited July 14, 2022) ......................................22
Jowei Chen & Nicholas O. Stephanopoulos,
The Race-Blind Future of Voting Rights,
130 Yale L.J. 862 (2021) ..........................................23
City of Albuquerque, 2022 City Council
Redistricting Process,
https://www.cabq.gov/council/projects/currentprojects/2022-city-council-redistricting-process
(last visited July 14, 2022) ........................................6
City of Los Angeles,
2021 City of Los Angeles Redistricting,
https://redistricting2021.lacity.org
(last visited July 14, 2022) ........................................7
City of San Diego, Mapping Services and
Demographic Consulting Request
for Proposal (RFP) Is Posted,
https://www.sandiego.gov/departmentdocument/mapping-services-and-demographicconsulting-request-proposal-rfp-posted
(last visited July 14, 2022) ......................................22
Bruce M. Clarke & Robert Timothy Reagan,
Redistricting Litigation: An Overview
of Legal, Statistical, and
Case-Management Issues (2002),
https://www.fjc.gov/sites/default/files/2012/
Redistri.pdf ..............................................................14
v
TABLE OF AUTHORITIES—Continued
County of Santa Clara, 2021 Advisory
Redistricting Commission,
https://countyexec.sccgov.org/2021redistricting-process/2021-advisoryredistricting-commission
(last visited July 14, 2022) ........................................7
Adam B. Cox & Richard T. Holden,
Reconsidering Racial and Partisan
Gerrymandering, 78 U. Chi. L. Rev. 553
(2011) .........................................................................9
El Dorado County, County of
El Dorado Redistricting,
https://www.edcgov.us/Government/Elections/
county-of-el-dorado-redistricting
(last visited July 14, 2022) ........................................6
H.R. Rep. No. 109-478 (2006) .......................................9
Harris County, Harris County Commissioner
Court Precinct Redistricting Criteria
(July 20, 2021),
https://cao.harriscountytx.gov/Portals/20/
Documents/Redistricting%20Order.pdf ?
ver=ebmKIX1ellRIVmYTTNE6Kg%3d%3d .............7
Dale E. Ho, Voting Rights Litigation After
Shelby County: Mechanics and Standards
in Section 2 Vote Denial Claims,
17 N.Y.U. J. Legis. & Pub. Pol’y 675 (2014) ............13
Ellen D. Katz et al., To Participate and Elect:
Section 2 of the Voting Rights Act at 40,
U. Mich. L. Sch. Voting Rts. Initiative (2022),
https://voting.law.umich.edu ...................................15
vi
TABLE OF AUTHORITIES—Continued
King County Council, District Court Redistricting,
https://kingcounty.gov/council/issues/District
CourtRedistricting.aspx
(last visited July 14, 2022) ........................................6
Los Angeles County, Mapping Software,
https://redistricting.lacounty.gov/
mapping-software
(last visited July 14, 2022) ......................................22
Loudoun County, Local Redistricting
in Loudoun County,
https://www.loudoun.gov/redistricting
(last updated June 2022) ..........................................7
Montgomery County Public Schools,
Board of Education Redistricting,
https://www.montgomeryschoolsmd.org/
boe/about/redistricting.aspx
(last visited July 14, 2022) ........................................6
Office of the Harris County Attorney,
Join the Discussion,
https://cao.harriscountytx.gov/CommissionerPrecinct-Redistricting/Join-the-Discussion
(last visited July 14, 2022) ........................................7
Palm Beach County, Redistricting Program,
https://discover.pbcgov.org/Pages/
redistricting.aspx
(last visited July 14, 2022) ........................................8
S. Rep. No. 97-417 (1982) ...................................... 15, 21
vii
TABLE OF AUTHORITIES—Continued
Santa Clara Valley Water District,
Redistricting, https://www.valleywater.org/
how-we-operate/redistricting
(last visited July 14, 2022) ........................................6
Nicholas O. Stephanopoulos, The Causes
and Consequences of Gerrymandering,
59 Wm. & Mary L. Rev. 2115 (2018) .......................10
Tompkins County, Redistricting 2021,
https://www.tompkinscountyny.gov/redistricting
(last visited July 14, 2022) ........................................7
U.S. Comm’n on Civil Rights, An Assessment of
Minority Voting Rights Access in the United
States: 2018 Statutory Report (2018),
https://www.usccr.gov/files/pubs/2018/
Minority_Voting_Access_2018.pdf ..........................16
U.S. Election Assistance Comm’n,
Election Administration and Voting
Survey: 2018 Comprehensive Report (2019),
https://www.eac.gov/sites/default/files/
eac_assets/1/6/2018_EAVS_Report.pdf ..................15
U.S. Election Assistance Comm’n,
Local Election Officials’ Guide
to Redistricting (Aug. 25, 2021),
https://discover.pbcgov.org/Pages/
redistricting.aspx ......................................................8
Va. Const. art. VII, § 5 ..................................................6
INTERESTS OF AMICI CURIAE1
Amici are local governments from across the
United States.2 Amici’s residents rely on them to provide critical services and infrastructure, promote economic development, and maintain safe and healthy
neighborhoods. Local governments can best perform
these functions when local laws—and the elected officials who enact and enforce them—reflect the needs
and policy preferences of all their residents. But
amici recognize that racial discrimination has long
limited the ability of people of color to meaningfully
participate in the political process. Amici seek to create inclusive governments to help remedy the ongoing
consequences of past racial discrimination and to eradicate discrimination that persists today. Amici thus
have a strong interest in ensuring that their electoral
processes are representative of and responsive to all
members of their communities.
In particular, amici have a critical interest in preserving the balance that Congress struck in enacting
Section 2 of the Voting Rights Act. States and localities have the constitutional responsibility to regulate elections, including by drawing electoral districts
and regularly updating those maps in response to
1
No counsel for a party authored this brief in whole or in
part, and no person other than amici or their counsel made a monetary contribution to its preparation or submission. The parties
have filed blanket consents to the filing of amicus briefs.
2
A complete list of amici appears in an appendix to this
brief.
2
population changes. At the same time, Congress
enacted Section 2 with the goal of ensuring that all
individuals, regardless of race, have equal opportunity
to participate in the political process.
For decades, amici have conducted redistricting
against the backdrop of Section 2 and this Court’s
longstanding precedents interpreting it. In amici’s
experience, existing Section 2 jurisprudence strikes
an appropriate and workable balance by furthering
collective commitments to democracy representative of
our multi-racial society without unduly intruding on
state and local prerogatives. Alabama’s effort here to
rewrite Section 2 would upset that balance. It would
undermine Section 2’s protections and impair amici’s
efforts to promote racial justice and equity in their
communities, while imposing substantial burdens on
amici and their officials involved in redistricting.
3
INTRODUCTION AND
SUMMARY OF ARGUMENT
Congress enacted the Voting Rights Act of 1965 to
ensure that members of every racial group have an
equal opportunity to participate in the political process. In 1982, it amended Section 2 of the statute to
prohibit not only voting practices motivated by a discriminatory purpose, but also those that “result[ ] in”
unequal access to the political process based on race.
In Thornburg v. Gingles, 478 U.S. 30 (1986), this
Court interpreted the amended Section 2 and set forth
the standard that has long governed vote-dilution
claims—claims that a districting plan impairs minority voters’ ability to elect representatives of their
choice.
For the nearly four decades since Gingles, States
and localities have relied on that framework in drawing congressional, statewide, and local district lines.
After several redistricting cycles resulting in thousands of electoral maps, Section 2 vote-dilution claims
have been relatively rare, and successful challenges
rarer still. And this Court has continued to provide
consistent guidance on compliance with Section 2’s
requirements. As the Court observed just last Term,
its “many subsequent vote-dilution cases have largely
followed the path that Gingles charted.” Brnovich v.
Democratic Nat’l Comm., 141 S. Ct. 2321, 2337 (2021).
Section 2 has served as a critical check on redistricting
plans that grossly dilute the votes of people of color,
while allowing state and local governments to draw
nearly all maps without litigation.
4
This case presents a textbook example of the rare
redistricting plan that denies minority voters equal
access to the political process in violation of Section 2.
Voting in Alabama is racially polarized, and “Alabama’s extensive history of repugnant racial and
voting-related discrimination is undeniable and well
documented.” Milligan Stay App. 182. Under Alabama’s 2021 congressional redistricting plan, Black
voters could be expected to elect a representative of
their choice in only one district out of seven. A threejudge district court held a lengthy evidentiary hearing with testimony from numerous expert witnesses.
It then made extensive factual findings and concluded
that Alabama could have drawn a second Blackmajority district consistent with the State’s traditional districting principles, such as keeping together
existing communities of interest—the first showing
required to prove a Section 2 violation under Gingles.
Id. at 157-74. The court also found that the plaintiffs
had satisfied the remaining Gingles requirements and
that “under the totality of the circumstances * * *
Black voters have less opportunity than other Alabamians to elect candidates of their choice to Congress.”
Id. at 5.
Alabama hardly disputes the correctness of the
district court’s decision under Gingles and its progeny. Instead, Alabama asks this Court to upend those
longstanding Section 2 precedents. It contends that
“neutrally drawn districting plans”—apparently meaning maps drawn without expressly considering voters’
race—cannot violate Section 2. Alabama Br. 29. It
5
faults Plaintiffs for considering voters’ race when
drawing comparator maps, as Section 2 challengers
have done for decades. And it claims there is “tension”
between complying with Section 2 and the Equal Protection Clause’s constraints on race-based classifications. Id. at 42.
Amici file this brief to encourage the Court to
reject Alabama’s efforts to rewrite Section 2. Amici
and other local governments are responsible for
drawing numerous electoral district boundaries. In
amici’s experience, this Court’s well-settled votedilution standards provide sufficient guidance to map
drawers on how to comply with Section 2 and the Constitution simultaneously. By contrast, Alabama’s proposed standard would significantly weaken Section 2’s
protections while imposing needless burdens on States
and localities involved in redistricting. This Court
should affirm.
ARGUMENT
I.
SECTION 2 REFLECTS LOCALITIES’ OBLIGATION TO DRAW DISTRICTS THAT
ENABLE EQUAL OPPORTUNITY TO PARTICIPATE IN THE POLITICAL PROCESS
1. “[P]articipation in local government is a cornerstone of American democracy.” FERC v. Mississippi,
456 U.S. 742, 789 (1982) (O’Connor, J., concurring).
Local laws, no less than state and federal laws, have a
profound effect on individuals’ daily lives. The elected
officials who enact and enforce local laws are thus of
critical importance to amici and their residents.
6
Although redistricting is most often associated
with state governments, local governments are responsible for drawing district boundaries for a wide range
of elected officials. To name a few examples, in some
jurisdictions, electoral maps are drawn at the local
level for city councils, e.g., City of Albuquerque, 2022
City Council Redistricting Process;3 county supervisors,
e.g., El Dorado County, County of El Dorado Redistricting;4 county school boards, e.g., Montgomery County
Public Schools, Board of Education Redistricting;5
community college boards of trustees, e.g., Alamo Colleges District, Redistricting;6 water district boards of
directors, e.g., Santa Clara Valley Water District,
Redistricting;7 and local judiciaries, e.g., King County
Council, District Court Redistricting.8
Every ten years after the decennial national census—and sometimes more frequently—localities redraw
district lines to reflect changes in the population. See,
e.g., Va. Const. art. VII, § 5 (requiring redrawing of districts for local governing bodies every ten years). Local
3
https://www.cabq.gov/council/projects/current-projects/2022city-council-redistricting-process (last visited July 14, 2022).
4
https://www.edcgov.us/Government/Elections/county-of-eldorado-redistricting (last visited July 14, 2022).
5
https://www.montgomeryschoolsmd.org/boe/about/redistricting.
aspx (last visited July 14, 2022).
6
https://www.alamo.edu/about-us/leadership/board-of-trustees/
redistricting (last visited July 14, 2022).
7
https://www.valleywater.org/how-we-operate/redistricting
(last visited July 14, 2022).
8
https://kingcounty.gov/council/issues/DistrictCourtRedistricting.
aspx (last visited July 14, 2022).
7
governments take this responsibility seriously. Many
city and county redistricting bodies adopt public guidelines for their redistricting processes, such as prioritizing compact and contiguous districts and preserving
communities of interest. See, e.g., Loudoun County,
Local Redistricting in Loudoun County;9 Harris
County, Harris County Commissioner Court Precinct
Redistricting Criteria (July 20, 2021).10 In some jurisdictions, officials solicit public input on proposed maps
or the redistricting process more generally. See, e.g.,
Office of the Harris County Attorney, Join the Discussion.11 Some local governments have established
advisory or independent redistricting commissions to
consider and draw draft maps and recommend or
adopt final maps that comply with Section 2, the Equal
Protection Clause, and well-settled traditional redistricting criteria. See, e.g., County of Santa Clara,
2021 Advisory Redistricting Commission;12 Tompkins
County, Redistricting 2021;13 City of Los Angeles,
2021 City of Los Angeles Redistricting.14 And some
9
https://www.loudoun.gov/redistricting (last updated June
2022).
10
https://cao.harriscountytx.gov/Portals/20/Documents/
Redistricting%20Order.pdf ?ver=ebmKIX1ellRIVmYTTNE6Kg%
3d%3d.
11
https://cao.harriscountytx.gov/Commissioner-PrecinctRedistricting/Join-the-Discussion (last visited July 14, 2022).
12
https://countyexec.sccgov.org/2021-redistricting-process/2021advisory-redistricting-commission (last visited July 14, 2022).
13
https://www.tompkinscountyny.gov/redistricting (last visited July 14, 2022).
14
https://redistricting2021.lacity.org (last visited July 14, 2022).
8
jurisdictions retain outside consultants or experts to
assist with the redistricting process. See, e.g., Palm
Beach County, Redistricting Program.15 Based on census data, voter records, public comments, and a variety
of other information, local redistricting officials or commissions adopt maps that will govern elections until
the following redistricting cycle. See generally U.S.
Election Assistance Comm’n, Local Election Officials’
Guide to Redistricting (Aug. 25, 2021).16
2. Section 2 plays an important role in these
local redistricting processes. Localities’ basic goal in
redistricting is to ensure that every eligible voter has
an equal opportunity to participate in the political process. After all, as this Court has recognized, the “basic
aim of legislative apportionment” is “the achieving
of fair and effective representation for all citizens.”
Reynolds v. Sims, 377 U.S. 533, 565-66 (1964).
Section 2 aligns with and complements that basic
mission. Section 2 prohibits imposition of any “standard, practice, or procedure” that “results in a denial or
abridgement of the right * * * to vote on account of
race.” 52 U.S.C. § 10301(a). Notably, Section 2 applies
not only to “State[s]” but also to their “political subdivision[s],” including counties, cities, and towns. Id.
§§ 10301(a), 10310(c)(2).
Section 2 is thus an important component of local
redistricting. It prevents even apparently neutral
15
https://discover.pbcgov.org/Pages/redistricting.aspx (last visited July 14, 2022).
16
https://discover.pbcgov.org/Pages/redistricting.aspx.
9
election practices and procedures from depriving individuals of an equal opportunity to participate in the
political process based on their race. Id. § 10301(b).
The focus on outcomes, rather than intent, is especially
important given the perniciousness of racial discrimination and the lingering consequences of past discrimination in American society. As Congress found when
reauthorizing the Voting Rights Act in 2006, “[d]iscrimination today is more subtle than the visible methods used in 1965,” but “the effect and results are the
same, namely a diminishing of the minority community’s ability to fully participate in the electoral process and to elect their preferred candidates of choice.”
H.R. Rep. No. 109-478, at 6 (2006).
If anything, Section 2’s prohibition on electoral
maps that dilute minority voters’ ability to elect representatives of their choice is even more crucial today
than when Congress first enacted the Voting Rights
Act in 1965 and amended Section 2 in 1982. Mapmakers now have access to more data, such as population
demographics and voter preferences, than did their
predecessors from previous generations. See Adam B.
Cox & Richard T. Holden, Reconsidering Racial and
Partisan Gerrymandering, 78 U. Chi. L. Rev. 553, 571
(2011). Using that information, they can more effectively “pack” disfavored voters “into supermajority districts that are essentially thrown away electorally” and
“crack[ ]” disfavored voters among several districts “so
as not to constitute a majority in any single district.”
Id. at 561-62; see also League of Women Voters of
Ohio v. Ohio Redistricting Comm’n, No. 2021-1193,
10
2022 WL 803033, at *7 n.6 (Ohio Mar. 16, 2022) (noting
that “the party controlling the map-drawing process”
had used computer software to create “outlier maps
solely to maximize that party’s partisan advantage”).
This particularly affects minority voters in urban
areas. Not only are such voters less able to elect
state representatives of their choice, but the resulting
non-representative state legislatures can also preempt
local policymaking. See Nicholas O. Stephanopoulos,
The Causes and Consequences of Gerrymandering,
59 Wm. & Mary L. Rev. 2115, 2125-26 (2018); Br. of
City of Cincinnati as Amicus Curiae at 5, League of
Women Voters of Ohio v. Ohio Redistricting Comm’n,
No. 2021-1193 (Ohio Oct. 29, 2021) (describing how
Ohio’s gerrymandered legislative maps disenfranchise
Black Cincinnatians). Section 2’s limits on electoral
maps that “dispers[e]” a racial group’s members “into
districts in which they constitute an ineffective minority of voters” is an important tool in combating that
conduct. Gingles, 478 U.S. at 46 n.11.
Section 2’s importance has also been heightened
by the fact that Section 5 of the Voting Rights Act,
which was “intended to be temporary,” is no longer
operative. Shelby Cnty. v. Holder, 570 U.S. 529, 538
(2013) (finding the coverage formula for the preclearance requirement invalid). Section 2’s “permanent,
nationwide ban on racial discrimination in voting”
thus plays an even more vital role now. Id. at 557.
3. Section 2 also gives States and localities flexibility to consider race (among other information about
11
voters and communities of interest) in districting to
ensure that all groups can meaningfully participate
in the political process. The Court has “long assumed
that one compelling interest” justifying consideration
of race “is complying with operative provisions of the
Voting Rights Act.” Cooper v. Harris, 137 S. Ct. 1455,
1464 (2017). This (limited) ability to consider race in
map-drawing is critical to meeting localities’ objectives
in redistricting. When legislative and executive officials are representative of the voting population’s
diversity, all citizens have an equal opportunity to have
their ideas and priorities considered. In amici’s experience, that produces better policies and outcomes for
the entire voting public.
In fact, consideration of race in redistricting is
often inevitable. Many communities of interest are
defined in part by race, such as Japantown in San Jose.
Local governments thus necessarily take race into
account when considering those communities during
redistricting. And when members of the public propose
maps, districting officials must consider demographic
information to assess whether the maps maintain
those communities of interest. Indeed, Alabama’s
redistricting guidelines expressly define a “community
of interest” to include “ethnic” and “racial” identities.
Milligan Stay App. 46.
As this discussion shows, Section 2 shares the
same “intensely local” and practical focus as the redistricting process itself. Gingles, 478 U.S. at 79. Section
2 thus complements redistricting officials’ obligation to
ensure that all voters can participate in the political
12
process on equal footing, without regard to past or
current racial discrimination.
II.
EXISTING STANDARDS FOR ASSESSING
SECTION
2
COMPLIANCE
IN
REDISTRICTING ARE APPROPRIATE
AND ADMINISTRABLE
Alabama asserts that this Court’s existing law has
“left States caught in the middle” between attempting
to comply with Section 2, on one hand, and the Fourteenth Amendment’s limits on considering race when
redistricting, on the other. Alabama Br. 42. To be
sure, this Court has recognized that these two constraints can sometimes “pull[ ] in the opposite direction.” Abbott v. Perez, 138 S. Ct. 2305, 2314 (2018). In
amici’s real-world experience with redistricting, however, this Court’s “effort[s] to harmonize these conflicting demands” have proven largely successful. Id. at
2315. In particular, the Court’s current vote-dilution
standards provide map drawers sufficient guidance on
how to comply with Section 2 and the Constitution
simultaneously—while also respecting States’ and
localities’ traditional districting criteria.
1. This Court’s standards for assessing electoral
maps’ Section 2 compliance have been settled for more
than three and a half decades. To prevail on a votedilution claim under Section 2, a plaintiff must prove
“three threshold conditions”: (1) a minority group
exists that is “sufficiently large and geographically
compact to constitute a majority in a single-member
district,” (2) the minority group is “politically cohesive,”
13
and (3) “the white majority vot[es] sufficiently as a bloc
to enable it * * * usually to defeat the minority’s preferred candidate.” Johnson v. De Grandy, 512 U.S. 997,
1006-07 (1994) (quoting Gingles, 478 U.S. at 50-51).
In addition to satisfying those three conditions, a
Section 2 plaintiff must also show that the challenged
map “den[ies] minority voters equal political opportunity” under the “totality of facts.” Id. at 1013-14; see
52 U.S.C. § 10301(b) (providing that a Section 2 violation “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 [protected] class of citizens”). The relevant
circumstances include “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,” and “the
extent to which members of the minority group have
been elected to public office in the jurisdiction.” League
of United Latin Am. Citizens v. Perry, 548 U.S. 399, 426
(2006) (LULAC) (citing Gingles, 478 U.S. at 44-45).
Experienced practitioners in the field have noted
that Section 2 cases are among the most “work intensive” cases tried in federal court. Dale E. Ho, Voting
Rights Litigation After Shelby County: Mechanics and
Standards in Section 2 Vote Denial Claims, 17 N.Y.U.
J. Legis. & Pub. Pol’y 675, 682-83 (2014). The plaintiff
bears the burden of proof on each of the three Gingles
preconditions and the totality-of-the-circumstances
test. Voinovich v. Quilter, 507 U.S. 146, 156 (1993); see
14
Milligan Stay App. 25-26. And proving the Gingles
preconditions, plus all the other factors relevant under
the totality of the circumstances, “ordinarily involves
a considerable amount of statistical evidence derived
from population figures, demographics, and voter
behavior.” Bruce M. Clarke & Robert Timothy Reagan,
Redistricting Litigation: An Overview of Legal, Statistical, and Case-Management Issues 10 (2002).17
This case proves the point. The district court conducted a seven-day preliminary injunction hearing,
documented in nearly 2,000 pages of transcript, and
included testimony from eleven expert witnesses and
six other fact witnesses. Milligan Stay App. 4. The
proceedings also involved “more than 400 pages of prehearing briefing and 600 pages of post-hearing briefing; reports and rebuttal reports from every expert
witness; more than 350 hearing exhibits;” and “joint
stipulations of fact that span seventy-five pages.” Ibid.
These practical realities show that Gingles and
later cases have provided an effective, administrable
framework for Section 2 cases. This Court’s existing
test guards against excessive litigation while preserving the most meritorious claims: challenges to maps
that blatantly undermine minority voters’ ability to
elect representatives of their choice.
2. Section 2 litigation statistics bear out these
observations. Though critics of Section 2 have long
expressed concern that Section 2’s results test would
17
https://www.fjc.gov/sites/default/files/2012/Redistri.pdf.
15
prompt endless and protracted litigation, see, e.g.,
S. Rep. No. 97-417, at 99-103 (1982) (additional views
of Sen. Hatch), those fears have proven unfounded.
Over the last 40 years, Section 2 litigation—especially
successful challenges to redistricting plans—has been
rare.
Thousands of local jurisdictions engage in redistricting every decade, if not more frequently. For example,
in 2018, there were 6,459 county or county-equivalent
electoral jurisdictions within States and U.S. territories. See U.S. Election Assistance Comm’n, Election
Administration and Voting Survey: 2018 Comprehensive Report 4 (2019).18 Those jurisdictions contain
numerous cities, towns, school districts, and special
districts that may also engage in redistricting. Yet only
a fraction of those maps have been challenged under
Section 2. One recent study found only 316 Section 2
vote-dilution cases resulting in published decisions
between the 1982 Voting Rights Act amendment and
the end of 2021. Ellen D. Katz et al., To Participate
and Elect: Section 2 of the Voting Rights Act at 40,
U. Mich. L. Sch. Voting Rts. Initiative (2022).19 Plaintiffs achieved successful outcomes in 49% of these votedilution cases, though that rate has sharply decreased
over time: plaintiffs succeeded in 74% of vote-dilution
cases in the first decade after the 1982 amendment,
18
https://www.eac.gov/sites/default/files/eac_assets/1/6/2018_
EAVS_Report.pdf.
19
https://voting.law.umich.edu.
16
but less than 40% of cases in the following years.
Ibid.20
Another survey by the U.S. Commission on Civil
Rights, an independent agency directed by Congress
to examine federal civil rights enforcement efforts,
showed similar results. It determined that, since
this Court’s Shelby County decision in 2013, only 61
suits have been filed under Section 2. U.S. Comm’n
on Civil Rights, An Assessment of Minority Voting
Rights Access in the United States: 2018 Statutory
Report 10 (2018).21 As of 2018, only 23 of those had
been successful, and only 14 of those successful cases
involved vote-dilution claims. Id. at 227-28.
In sum, States and localities have drawn countless
electoral maps since Congress adopted Section 2’s
“results” test in 1982. Yet very few have resulted in
Section 2 litigation, and even fewer have been successfully challenged. So under this Court’s longstanding
interpretations, Section 2 only minimally “intru[des]”
into redistricting legislation, among “the most vital of
local functions.” Miller v. Johnson, 515 U.S. 900, 915
(1995). But Section 2 still plays a critical role in
ensuring recourse when a redistricting authority,
like Alabama here, adopts a map that grossly dilutes
minorities’ votes.
3. Alabama’s complaints about this Court’s Section 2 precedents mischaracterize those cases and are
20
https://voting.law.umich.edu/findings.
https://www.usccr.gov/files/pubs/2018/Minority_Voting_
Access_2018.pdf.
21
17
inconsistent with amici’s practical experience applying
them in redistricting.
a. For instance, Alabama objects to applications
of Section 2 that “[f ]ind[ ] a * * * violation based on a
mere lack of proportionality” and that “subordinate
traditional redistricting criteria.” Alabama Br. 31, 39.
But this Court’s existing vote-dilution framework
already accounts for these concerns. The Court has
made clear that “whether the number of districts in
which the minority group forms an effective majority
is roughly proportional to its share of the population”
is only one “relevant consideration” among many others in the totality-of-the-circumstances test. LULAC,
548 U.S. at 426; see De Grandy, 512 U.S. at 1000
(explaining that “proportionality is not dispositive in
a challenge to single-member districting”). And the
first Gingles precondition requires the plaintiff to
show that another “reasonably compact” majorityminority district can be drawn consistent with “traditional districting principles such as maintaining
communities of interest and traditional boundaries.”
LULAC, 548 U.S. at 432-33.
The Court thus has declined to find Section 2 violations where minorities were underrepresented relative to their share of the population, but no additional
majority-minority district could be drawn consistent
with traditional districting criteria. For example, in
Bush v. Vera, a plurality of this Court explained that
“[i]f, because of the dispersion of the minority population, a reasonably compact majority-minority district cannot be created, [Section 2] does not require a
18
majority-minority district.” 517 U.S. 952, 979 (1996)
(plurality opinion). And in Miller, the Court determined that the Voting Rights Act did not compel creation of an additional majority-Black district where
doing so would require “connecting the [B]lack neighborhoods of metropolitan Atlanta and the poor [B]lack
populace of coastal Chatham County, though 260
miles apart in distance and worlds apart in culture.”
515 U.S. at 908.
b. Nor does Section 2 compliance leave States
unduly “vulnerable” to racial-gerrymandering claims,
as Alabama contends. Alabama Br. 42. “In an effort
to harmonize these conflicting demands,” this Court
has long “assumed that compliance with the [Voting Rights Act] may justify the consideration of
race in a way that would not otherwise be allowed.”
Abbott, 138 S. Ct. at 2315. “[A] State’s consideration of
race in making a districting decision is narrowly tailored and thus satisfies strict scrutiny if the State has
‘good reasons’ for believing that its decision is necessary in order to comply with” the Voting Rights Act.
Ibid.
Notably, this Court has emphasized that States
and localities “enjoy leeway to take race-based actions reasonably judged necessary under a proper
interpretation of ” the Voting Rights Act. Cooper,
137 S. Ct. at 1472. The Court’s cases thus do not
“insist that a state legislature, when redistricting,
determine precisely what percent minority population”
the Voting Rights Act “demands.” Ala. Legis. Black
Caucus v. Alabama, 575 U.S. 254, 278 (2015). And
19
“[a]s a practical matter,” challengers generally “will be
unable to prove an unconstitutional racial gerrymander without evidence that the enacted plan conflicts
with traditional redistricting criteria.” Bethune-Hill v.
Va. State Bd. of Elections, 137 S. Ct. 788, 799 (2017).
All this means that when States and localities
draw electoral maps to ensure that minority voters
have an equal opportunity to participate in the political process, those maps are unlikely to be invalidated
as unconstitutional racial gerrymanders. In amici’s
experience, this Court’s existing cases have provided
workable standards for simultaneously complying
with both Section 2 and the Constitution in districting.
Alabama’s contrary assertion does not warrant upsetting this Court’s longstanding Section 2 precedents.
III. ALABAMA’S PROPOSED SECTION 2
STANDARD
IS
INFLEXIBLE
AND
UNWORKABLE
As explained, States and localities have successfully relied on this Court’s existing cases for nearly
four decades to produce lawful districting plans. But
Alabama effectively proposes replacing those longstanding precedents with an entirely new, atextual
standard for Section 2 liability. Under Alabama’s
theory, Section 2 is violated only when there are “irregularities in the State’s enacted plan that can be explained
only by racial discrimination.” Alabama Br. 44. And
Alabama would demand that Section 2 plaintiffs produce comparator maps drawn without any consideration of race. Id. at 49-50. Alabama’s position “would
20
essentially require [Section 2] plaintiffs to demonstrate that modern map-drawing software, designed
to give no attention at all to race, would produce
maps with” an additional majority-minority district.
Merrill v. Milligan, 142 S. Ct. 879, 886 (2022) (Kagan,
J., dissenting from grant of applications for stays). For
multiple reasons, this Court should reject Alabama’s
proposed upheaval of Section 2.
1. Most important, Alabama’s position contravenes Section 2’s text and purpose. The statute prohibits districting plans that “result[ ] in a denial or
abridgement of the right * * * to vote on account of
race.” 52 U.S.C. § 10301(a) (emphasis added); see id.
§ 10301(b) (providing that a statutory violation “is
established” if members of a protected class “have less
opportunity than other members of the electorate to
participate in the political process and to elect representatives of their choice”). Section 2 thus focuses
on the results of the challenged law, not the State or
locality’s intent in adopting it.
Indeed, Congress’s 1982 amendment to Section 2
was intended to reject any such requirement of discriminatory intent. Before that amendment, this
Court had held that “facially neutral voting practices
violate [Section 2] only if motivated by a discriminatory purpose.” Brnovich, 141 S. Ct. at 2332 (citing
Mobile v. Bolden, 446 U.S. 55, 68-70 (1980)). Congress
amended Section 2 “[s]hortly” thereafter; the “oftcited” Senate Report accompanying the amendment
“stated that the amendment’s purpose was to repudiate Bolden and establish a new vote-dilution test”
21
that turns on whether the challenged practice “results
in” an abridgement of the right to vote based on race.
Ibid. (citing S. Rep. No. 97-417, at 2, 15-16, 27). Thus,
“[t]he essence of a [Section 2] claim” after the 1982
amendment “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.” Gingles, 478 U.S. at 47.
Far from merely “clarif[ying] the evidentiary
showing required of a [Section 2] plaintiff,” as Alabama
asserts (at 33), Congress’s amendment to Section 2
prohibited any districting plans that result in dilution
of the votes of minority voters. Alabama’s proposed
Section 2 standard cannot be squared with Congress’s
“broad remedial purpose of ridding the country of
racial discrimination in voting.” Chisom v. Roemer,
501 U.S. 380, 403 (1991) (internal quotation marks and
alterations omitted). Simply put, Congress enacted
and amended Section 2 to guard against practices that
dilute the voting strength of people of color; it would
be illogical to adjudicate Section 2 claims in an entirely
“race-neutral” manner, as Alabama suggests. Alabama
Br. 47.
2. Alabama’s position also could deprive jurisdictions of any ability to consider race in redistricting and
impose unnecessary burdens on States and localities.
As noted, state and local governments may take race
into account during redistricting—as one factor among
many—to help ensure that elected officials represent
the interests and needs of the entire eligible voting
22
population. See supra pp. 10-12. Again, however, this
Court has permitted “race-based districting” only
when there is “good reason to think” a plaintiff otherwise would prevail on a Section 2 vote-dilution claim.
Cooper, 137 S. Ct. at 1469-70.
Under Alabama’s proposed standard, jurisdictions
may need to use computer software that randomly
generates districting maps to ascertain their potential
Section 2 liability—and thus the extent to which they
can consider race in districting. That is simply unrealistic for the vast majority of localities. True, some
larger counties and cities already use map-drawing
software, such as Geographic Information System
(GIS) programs, as part of their redistricting processes.
See, e.g., Los Angeles County, Mapping Software.22 But
such software can be expensive, and its redistricting
functions require specialized training and expertise.
See, e.g., Caliper Software, Mapping Software.23 So
some jurisdictions hire or contract with experts that
license and use these programs during redistricting.
See, e.g., City of San Diego, Mapping Services and
Demographic Consulting Request for Proposal (RFP)
Is Posted.24 Yet these arrangements burden localities’
already-strained budgets. The result is that using
22
https://redistricting.lacounty.gov/mapping-software (last visited July 14, 2022).
23
https://www2.caliper.com/store/product-category/software
(last visited July 14, 2022).
24
https://www.sandiego.gov/department-document/mappingservices-and-demographic-consulting-request-proposal-rfp-posted
(last visited July 14, 2022).
23
mapping software during redistricting is prohibitively
expensive for many local governments, especially
smaller jurisdictions and those in rural areas.
What is more, Alabama apparently would require
jurisdictions to run computer simulations that randomly generate tens of thousands of possible maps,
as Plaintiffs’ experts did here. See Alabama Br. 54-56;
Milligan Stay App. 56. Such simulations are even less
widely accessible, as they require greater expertise
than typical map-drawing functions. See, e.g., Jowei
Chen & Nicholas O. Stephanopoulos, The Race-Blind
Future of Voting Rights, 130 Yale L.J. 862, 884-85,
891-95 (2021) (describing Markov chain Monte Carlo
algorithms for producing randomized district maps).
Thus, as a practical matter, Alabama’s position would
all but eliminate jurisdictions’ ability to consider race
in districting.
*
*
*
Amici have decades of experience with redistricting under this Court’s well-established Section 2
framework. States and localities need “discretion to
exercise the political judgment necessary” in drawing
district lines. Miller, 515 U.S. at 915. But that freedom must be balanced against Congress’s important
goal of ensuring that all eligible voters have an equal
opportunity to participate in the political process. This
Court’s existing Section 2 precedents reflect a reasonable, workable accommodation between those interests. The Court should reaffirm those precedents and
reject Alabama’s efforts to undermine them.
24
CONCLUSION
For these reasons and those in appellees’ and
respondents’ briefs, the judgments should be affirmed.
Respectfully submitted,
JONATHAN B. MILLER
MARISSA ROY
PUBLIC RIGHTS PROJECT
4096 Piedmont Ave. #149
Oakland, CA 94611
Counsel for Amici Curiae
JOSEPH R. PALMORE
Counsel of Record
SAMUEL B. GOLDSTEIN
MORRISON & FOERSTER LLP
2100 L St. NW, Suite 900
Washington, DC 20037
(202) 887-6940
JPalmore@mofo.com
ANDREW W. GARTH
KATE BURROUGHS
SHANNON PRICE
801 Plum St., Room 214
Cincinnati, OH 45202
Counsel for City of Cincinnati
JULY 2022
25
ADDITIONAL COUNSEL
ANNE L. MORGAN
City Attorney
P.O. Box 1546
Austin, TX 78767
DONNA R. ZIEGLER
County Counsel
1221 Oak St.
Oakland, CA 94612
Counsel for the City of
Austin, Texas
Counsel for the County of
Alameda, California
JAMES L. SHEA
City Solicitor
100 N. Holliday St.,
Suite 101
Baltimore, MD 21202
ADAM CEDARBAUM
Corporation Counsel
City Hall, Room 615
Boston, MA 02201
Counsel for the City of
Baltimore, Maryland
Counsel for the City of
Boston, Massachusetts
JOSEPH J. KHAN
County Solicitor
55 East Court St.
Doylestown, PA 18901
ZACH KLEIN
City Attorney
77 North Front St.,
4th Floor
Columbus, OH 43215
Counsel for the County of
Bucks, Pennsylvania
Counsel for the City of
Columbus, Ohio
MARK D. GRIFFIN
Chief Legal Officer
601 Lakeside Ave.,
Room 106
Cleveland, OH 44114
KRISTIN M. BRONSON
City Attorney
1437 Bannock St.,
Room 353
Denver, CO 80202
Counsel for the City of
Cleveland, Ohio
Counsel for the City and
County of Denver,
Colorado
26
RODNEY POL, JR.
City Attorney
401 Broadway, Suite 104
Gary, IN 46402
Counsel for the City of
Gary, Indiana
ARTURO G. MICHEL
City Attorney
900 Bagby St., 4th Floor
Houston, TX 77002
Counsel for the City of
Houston, Texas
MICHAEL HAAS
City Attorney
210 Martin Luther King
Jr. Blvd., Room 401
Madison, WI 53703
Counsel for the City of
Madison, Wisconsin
MARGARET C. DAUN
Corporation Counsel
901 North 9th St.,
Room 303
Milwaukee, WI 53233
Counsel for Milwaukee
County, Wisconsin
BARBARA J. PARKER
City Attorney
One Frank H. Ogawa
Plaza, 6th Floor
Oakland, CA 94612
Counsel for the City of
Oakland, California
CHRISTIAN D. MENEFEE
County Attorney
Harris County Attorney’s
Office
1019 Congress St.
Houston, TX 77002
Office of the Harris
County, Texas Attorney
MICHAEL N. FEUER
City Attorney
200 North Main St.,
8th Floor
Los Angeles, CA 90012
Counsel for the City of
Los Angeles, California
BRIAN E. WASHINGTON
County Counsel
3501 Civic Center Dr.,
Suite 275
San Rafael, CA 94903
Counsel for the County of
Marin, California
SYLVIA O. HINDS-RADIX
Corporation Counsel of
the City of New York
100 Church St.
New York, NY 10007
Counsel for the City of
New York, New York,
including the Mayor
and Council of the
City of New York
27
DIANA P. CORTES
City Solicitor
1515 Arch St., 17th Floor
Philadelphia, PA 19102
Counsel for the
City of Philadelphia,
Pennsylvania
LYNDSEY M. OLSON
City Attorney
400 City Hall &
Court House
15 West Kellogg Blvd.
Saint Paul, MN 55102
Counsel for the City of
Saint Paul, Minnesota
DAVID CHIU
City Attorney
City Hall Room 234
One Dr. Carlton B.
Goodlett Pl.
San Francisco, CA 94102
Counsel for the
City and County of
San Francisco, California
ERIN K. MCSHERRY
City Attorney
200 Lincoln Ave.
Santa Fe, NM 87501
Counsel for the City of
Santa Fe, New Mexico
KRYSIA KUBIAK
City Solicitor and
Chief Legal Officer
414 Grant St.
Pittsburgh, PA 15219
Counsel for the City of
Pittsburgh, Pennsylvania
MARA W. ELLIOTT
San Diego City Attorney
1200 Third Ave.,
Suite 1100
San Diego, CA 92101
Counsel for the City of
San Diego, California
JAMES R. WILLIAMS
County Counsel
70 W. Hedding St. East
Wing, 9th Floor
San José, CA 95110
Counsel for the County of
Santa Clara, California
SANDRA KENNEDY
Corporation Counsel
227 W. Jefferson Blvd.,
Suite 1200S
South Bend, IN 46601
Counsel for the City of
South Bend, Indiana
DELIA GARZA
Travis County Attorney
P.O. Box 1748
Austin, TX 78701
Counsel for Travis County,
Texas
1a
APPENDIX A
List of Amici Curiae
City of Cincinnati, Ohio
City of Austin, Texas
County of Alameda, California
City of Baltimore, Maryland
City of Boston, Massachusetts
Bucks County, Pennsylvania
City of Cleveland, Ohio
City of Columbus, Ohio
City and County of Denver, Colorado
City of Gary, Indiana
Harris County Attorney’s Office
City of Houston, Texas
City of Los Angeles, California
City of Madison, Wisconsin
County of Marin, California
Milwaukee County, Wisconsin
City of Montgomery, Alabama
The City of New York, including the Mayor and
Council of the City of New York
City of Oakland, California
City of Philadelphia, Pennsylvania
City of Pittsburgh, Pennsylvania
City of Saint Paul, Minnesota
2a
City of San Diego, California
City and County of San Francisco, California
County of Santa Clara, California
City of South Bend, Indiana
City of Santa Fe, New Mexico
Travis County, Texas
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.