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

Nos. 21-1086 & 21-1087

In the Supreme Court of the United States

_________________

JOHN H. MERRILL, et al.,

Appellants,

v.

EVAN MILLIGAN, et al.,

Appellees.

_________________

JOHN H. MERRILL, et al.,

Petitioners,

v.

MARCUS CASTER, et al.,

Respondents.

_______________

On Appeal from and on Writ of Certiorari to the United States

District Court for the Northern District of Alabama

_______________

BRIEF OF THE DISTRICT OF COLUMBIA, NEW YORK,

CALIFORNIA, COLORADO, CONNECTICUT,

DELAWARE, HAWAII, ILLINOIS, MAINE, MARYLAND,

MASSACHUSETTS, MICHIGAN, MINNESOTA, NEVADA,

NEW JERSEY, OREGON, PENNSYLVANIA, RHODE

ISLAND, VERMONT, WASHINGTON, AND WISCONSIN

AS AMICI CURIAE IN SUPPORT OF APPELLEES AND

RESPONDENTS

_________________

LETITIA JAMES

Attorney General of

New York

BARBARA D. UNDERWOOD

Solicitor General

JUDITH N. VALE

Deputy Solicitor General

ANDREA W. TRENTO

Assistant Solicitor

General

Office of the Attorney General

28 Liberty Street

New York, NY 10005

(212) 416-8020

barbara.underwood@ag.ny.gov

KARL A. RACINE

Attorney General for the

District of Columbia

CAROLINE S. VAN ZILE *

Solicitor General

ASHWIN P. PHATAK

Principal Deputy

Solicitor General

GRAHAM E. PHILLIPS

Deputy Solicitor General

ADAM J. TUETKEN

CAROLINE W. TAN

Assistant Attorneys General

Office of the Attorney General

400 6th Street, NW, Suite 8100

Washington, D.C. 20001

(202) 724-6609

caroline.vanzile@dc.gov

* Counsel of Record

i

QUESTION PRESENTED

Whether the State of Alabama’s 2021 redistricting

plan for its seven seats in the United States House of

Representatives violated Section 2 of the Voting

Rights Act, 52 U.S.C. § 10301.

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ......................................... i

TABLE OF AUTHORITIES ..................................... iii

INTRODUCTION AND INTEREST OF AMICI

CURIAE ................................................................ 1

STATEMENT ............................................................. 3

SUMMARY OF ARGUMENT.................................... 5

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

I. Alabama Misconstrues How The First Gingles

Condition Affects States. ................................... 7

II. Alabama’s Radical Proposal For Gingles Would

Be Unworkable For States. ............................. 12

A. The settled Gingles framework is workable for

states. ........................................................... 12

B. States would struggle to implement

Alabama’s version of Gingles. ..................... 15

1. Alabama fails to define a manageable

standard. .................................................. 15

2. States should not be required to rely on

computer simulations to litigate Section 2

vote dilution cases. ................................... 17

III. Abandoning The Gingles Framework Would

Improperly Upend Decades Of Reliance By

States On That Established Framework. ....... 19

CONCLUSION ......................................................... 26

iii

TABLE OF AUTHORITIES

Page(s)

CASES

Abbott v. Perez,

138 S. Ct. 2305 (2018) ..................................... 2, 12

Abrams v. Johnson,

521 U.S. 74 (1997)............................................... 10

Allied-Signal, Inc. v. Dir., Div. of Tax’n,

504 U.S. 768 (1992)........................... 12, 13, 19, 20

Bartlett v. Strickland,

556 U.S. 1 (2009)................................... 8, 9, 14, 19

Bethune-Hill v. Va. State Bd. of Elections,

137 S. Ct. 788 (2017)........................................... 15

Bone Shirt v. Hazeltine,

461 F.3d 1011 (8th Cir. 2006)............................... 9

Bush v. Vera,

517 U.S. 952 (1996)....................................... 11, 12

Cane v. Worcester County,

35 F.3d 921 (4th Cir. 1994)................................. 10

Clark v. Calhoun County,

88 F.3d 1393 (5th Cir. 1996)..................... 9, 10, 12

Cooper v. Harris,

137 S. Ct. 1455 (2017)..................................... 3, 11

Davis v. Chiles,

139 F.3d 1414 (11th Cir. 1998)........................... 10

iv

Detroit Caucus v. Indep. Citizens Redistricting

Comm’n,

969 N.W.2d 331 (Mich. 2022) ............................. 21

Dillard v. Baldwin Cnty. Comm’rs,

376 F.3d 1260 (11th Cir. 2004)........................... 14

Ga. State Conf. of the NAACP v. Fayette Cnty.

Bd. of Comm’rs,

950 F. Supp. 2d 1294 (N.D. Ga. 2013) ............... 12

Growe v. Emison,

507 U.S. 25 (1993)........................................... 2, 13

Hilton v. S.C. Pub. Rys. Comm’n,

502 U.S. 197 (1991)........................... 13, 19, 21, 25

In re Colo. Indep. Legis. Redistricting

Comm’n,

No. 21SA305, 2021 WL 5294962 (Colo.

Nov. 15, 2021) ......................................... 19, 20, 23

In re Senate Joint Resol. of Legis.

Apportionment 100,

334 So. 3d 1282 (Fla. 2022) ................................ 23

Johnson v. De Grandy,

512 U.S. 997 (1994)............................... 2, 8, 13, 17

Johnson v. Wis. Elections Comm’n,

972 N.W.2d 559 (Wis. 2022) ............................... 19

Kingman Park Civic Ass’n v. Williams,

924 A.2d 979 (D.C. 2007) .................................... 23

v

League of United Latin Am. Citizens v. Perry,

548 U.S. 399 (2006)......................................... 3, 10

McConchie v. Scholz,

Nos. 21-CV-3091, 21-CV-3139, &

21-CV-5512, 2021 WL 6197318 (N.D. Ill.

Dec. 30, 2021) ...................................................... 20

McGhee v. Granville County,

860 F.2d 110 (4th Cir. 1988)............................... 13

McNeil v. Springfield Park Dist.,

851 F.2d 937 (7th Cir. 1988)......................... 13, 14

Merrill v. Milligan,

142 S. Ct. 879 (2022)................... 4, 5, 7, 10, 17, 18

Miller v. Johnson,

515 U.S. 900 (1995)............................................. 10

Montes v. City of Yakima,

40 F. Supp. 3d 1377 (E.D. Wash. 2014) ............. 12

Neal v. United States,

516 U.S. 284 (1996)............................................. 25

Pope v. County of Albany,

687 F.3d 565 (2d Cir. 2012) ........................ 8, 9, 14

Robinson v. Ardoin,

37 F.4th 208 (5th Cir. 2022) ......................... 10, 11

Rodriguez v. Harris County,

964 F. Supp. 2d 686 (S.D. Tex. 2013) ........... 11, 16

vi

Rucho v. Common Cause,

139 S. Ct. 2484 (2019)................................... 16, 17

Sanchez v. Colorado,

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

Shaw v. Hunt,

517 U.S. 899 (1996)............................................... 9

Shaw v. Reno,

509 U.S. 630 (1993)............................................... 2

Thornburg v. Gingles,

478 U.S. 30 (1986)................................. 1, 3, 24, 25

Vieth v. Jubelirer,

541 U.S. 267 (2004)............................................. 17

Voinovich v. Quilter,

507 U.S. 146 (1993)............................................... 4

Wright v. Sumter Cnty. Bd. of Elections &

Registration,

301 F. Supp. 3d 1297 (M.D. Ga. 2018) ............... 11

Yumori-Kaku v. City of Santa Clara,

59 Cal. App. 5th 385 (2020) ................................ 24

CONSTITUTIONAL PROVISIONS

Cal. Const. art. XXI, § 2 ........................................... 21

Colo. Const. art. V, § 48.1 ........................................ 21

Mich. Const. art. IV, § 6 ..................................... 21, 25

N.Y. Const. art. III, § 4 ...................................... 22, 24

vii

STATUTES

52 U.S.C. § 10301 ................................................. 1, 22

Cal. Elec. Code §§ 14025-14032 ............................... 24

Cal. Elec. Code § 14027 ............................................ 22

Cal. Elec. Code § 14028 ............................................ 23

D.C. Code § 1-1011.01 ........................................ 22, 24

10 Ill. Comp. Stat. § 120/5-5 ........................ 21, 22, 24

Mich. Comp. Laws § 3.63 ................................... 21, 24

Mich. Comp. Laws § 4.261a ............................... 21, 25

N.Y. Elec. Law § 17-206 ............................... 22, 23, 24

Wash. Rev. Code § 29A.92.010 ................................ 24

Wash. Rev. Code § 29A.92.020 ................................ 22

Wash. Rev. Code § 29A.92.030 ................................ 23

Wis. Stat. Ann. § 5.081 ...................................... 21, 25

EXECUTIVE AND LEGISLATIVE MATERIALS

Cal. Voting Rights Act of 2001, Cal. Legis. Serv.

Ch. 129 (S.B. 976) (2002) .................................... 24

Colo. Ballot Amends. Y, Z (2018) ............................. 24

1990 D.C. Laws 8-240 (Act 8-323) ........................... 24

viii

Ill. Voting Rights Act of 2011, Pub. Act No.

96-1541 (S.B. 3976) ............................................. 24

1996 Mich. Pub. Act No. 463 (H.B. No. 5275) ......... 24

1999 Mich. Pub. Act No. 221 (S.B. No. 810)............ 24

Mich. Ballot Proposal 18-2 (2018) ........................... 25

John R. Lewis Voting Rights Act of N.Y., 2022

N.Y. Laws ch. 226 (S. 1046-E) ............................ 24

N.Y. Ballot Proposal 1 (2014) .................................. 24

Wash. Voting Rights Act of 2018, 2018 Wash.

Legis. Serv. Ch. 113 (S.S.B 6002)....................... 25

1985 Wis. Act 312 ..................................................... 25

OTHER AUTHORITIES

Jowei Chen & Nicholas O. Stephanopoulos,

The Race-Blind Future of Voting Rights,

130 Yale L.J. 862 (2021) ............................... 17, 18

Moon Duchin & Douglas M. Spencer, Models,

Race, and the Law, 130 Yale L.J. Forum

744 (2021) ............................................................ 15

Christopher S. Elmendorf, Kevin M. Quinn, &

Marisa A. Abrajano, Racially Polarized

Voting, 83 U. Chi. L. Rev. 587 (2016)................. 14

Ellen D. Katz, et al., Documenting

Discrimination in Voting: Judicial

Findings Under Section 2 of the Voting

ix

Rights Act Since, 39 U. Mich. J.L. Reform

643 (2006) ............................................................ 13

Eric S. Lynch, Going, Gutted, Gone? Why

Section 2 of the Voting Rights Act Is in

Danger, and What States Can Do About It,

22 U. Pa. J. Const. L. 1441 (2020)...................... 21

INTRODUCTION AND

INTEREST OF AMICI CURIAE

Alabama asks the Court to upend decades of

settled jurisprudence and to impose a new,

technology-intensive test for vote dilution claims. As

sovereigns responsible for redistricting in their

respective jurisdictions, states have expertise in how

existing law applies in practice and strong interests

in having the established framework continue to

apply in the future. Because Alabama’s proposed new

standards for vote dilution claims are misguided and

unworkable, the District of Columbia and the States

of New York, California, Colorado, Connecticut,

Delaware, Hawaii, Illinois, Maine, Maryland,

Massachusetts, Michigan, Minnesota, Nevada, New

Jersey, Oregon, Pennsylvania, Rhode Island,

Vermont, Washington, and Wisconsin (“Amici

States”) submit this brief as amici curiae in support

of

appellees

and

respondents

(collectively,

“Plaintiffs”).

In these consolidated cases, the district court

applied settled law to assess a state’s congressional

map—as courts around the country have done for

years. Here, voters and organizations alleged that

Alabama’s congressional map violated Section 2 of the

Voting Rights Act (“VRA”), 52 U.S.C. § 10301, because

it contained just one majority-Black district, thereby

diluting the power of Black voters. Although Black

voters comprise 27% of the state’s population, they

had an opportunity to elect a representative of their

choice in only 14% of districts.

Applying the

established framework for such claims set forth in

Thornburg v. Gingles, 478 U.S. 30 (1986), the district

court found after trial that every relevant factor

2

pointed to vote dilution. This Gingles framework is a

known quantity for states, having guided both their

redistricting processes and defenses against Section 2

claims for decades.

Seeking to avoid the result of properly applying

Gingles here—i.e., invalidation of Alabama’s map

under Section 2—Alabama asks the Court to upend

the Gingles framework and, in the process, scrap

decades of precedent that states have relied on. The

Court should decline that invitation and the chaos it

would cause.

Amici States have “primary responsibility for

apportionment of their federal congressional and

state legislative districts.” Growe v. Emison, 507 U.S.

25, 34 (1993). When fulfilling this responsibility,

Amici States undertake a complex task in geography

and democratic governance, as they consider “a

variety of . . . demographic factors,” including race, in

order to achieve fair representation for their

residents. Shaw v. Reno (Shaw I), 509 U.S. 630, 646

(1993). At the same time, Amici States must adhere

to “delicately balanced requirements” under federal

law, Abbott v. Perez, 138 S. Ct. 2305, 2314 (2018),

including the “now-familiar” Gingles framework,

Johnson v. De Grandy, 512 U.S. 997, 1011 (1994). In

reliance on the settled understanding of Gingles,

Amici States have enacted legislative maps, defended

them in court, and even, in some instances, modeled

their own state election laws on this Court’s

conception of vote dilution.

In place of this familiar Gingles framework,

Alabama asks the Court to impose a new test on

states. But Alabama’s version of Gingles would be

3

unworkable. It would turn vote dilution litigation

into an unpredictable battle of the experts predicated

on new technology and unclear standards. Moreover,

in seeking to reformulate the standards for vote

dilution claims, Alabama bears a heavy burden in

asking the Court to overrule a long line of statutory

precedent. Yet, Alabama presents no persuasive

reason to abandon Gingles and its progeny—and

especially not for the flawed alternative Alabama

proposes.

STATEMENT

Plaintiffs in two consolidated cases alleged that

Alabama’s failure to include an additional majorityBlack district in its congressional map diluted the

power of Black voters. Milligan Stay Appendix

(“MSA”) 36-41. 1

To prove a vote dilution claim under the Gingles

framework, a plaintiff must make a threshold

showing, and then the court will consider the totality

of the circumstances to determine if a legislative map

dilutes the power of minority voters. League of United

Latin Am. Citizens v. Perry (LULAC), 548 U.S. 399,

425-26 (2006). The threshold showing involves three

conditions, id. at 425, but only the first is relevant

here. That first condition requires a plaintiff to show

that a minority group is “‘sufficiently large and

geographically compact to constitute a majority’ in

some reasonably configured legislative district.”

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

(quoting Gingles, 478 U.S. at 50). “To make the

Like the parties’ briefs, this brief cites the appendix filed

in support of the stay applications. Alabama Br. 2 n.1.

1

4

requisite showing, plaintiffs typically submit one or

more illustrative, alternative maps complying with

traditional districting criteria while also adding a

majority-minority district.” Merrill v. Milligan, 142

S. Ct. 879, 885 (2022) (Kagan, J., dissenting from

grant of stay). Once a plaintiff makes that showing

and satisfies the other two conditions, a court

considers several factors (commonly called the

“Senate Factors”) to decide whether the state’s failure

to add a majority-minority district “has the effect of

denying a [minority] the equal opportunity to elect its

candidate of choice.” Voinovich v. Quilter, 507 U.S.

146, 155 (1993) (emphasis omitted).

Applying this framework here, in one of the cases,

a three-judge district court found that Plaintiffs made

the threshold showing and that the totality of

circumstances showed that Alabama’s map diluted

the power of Black voters. MSA 195-96. The question

whether Plaintiffs proved their case under Gingles

was not “a close one.” MSA 195. The court thus

ordered Alabama to redraw its map. MSA 5-6,

210-14. In the other case, before a single judge, the

court adopted the three-judge court’s findings and

issued a similar order. Caster Stay Appendix 4-6.

Now, Alabama and a group of amici states (led by

Louisiana) ask this Court to upend the established

Gingles framework in at least two ways. As to the

first Gingles condition, Alabama argues that the

Court should require that a plaintiff produce an

illustrative map without considering race at all.

Alabama Br. 47-50. To implement this new rule,

plaintiffs would need to use computer software to

generate some number of maps while ignoring race,

5

and then show that those computer simulations

happened to produce a map with an additional

majority-minority district. Merrill, 142 S. Ct. at 887

(Kagan, J., dissenting). Next, and regardless of a

plaintiff’s showing at step one or any other step of

Gingles, Alabama says that if a state’s plan

“resembles” maps generated using race-blind

computer simulations, then a Section 2 claim should

automatically fail. Alabama Br. 45; see also Alabama

Br. 54-56. Under this new version of Gingles,

Alabama says Plaintiffs’ Section 2 claim should fail.

Alabama Br. 2.

SUMMARY OF ARGUMENT

1. Alabama’s contentions regarding the first

Gingles condition rest on fundamentally incorrect

premises. Alabama argues that plaintiffs should be

required to produce illustrative maps without

considering race because otherwise states would be

required to adopt maps drawn with race in mind each

time that a plaintiff shows that it is possible to draw

maps with additional majority-minority districts.

Alabama Br. 64-65. But that is not accurate. Under

Gingles, states violate Section 2 and must redraw

their maps only if a plaintiff actually proves vote

dilution—not if a plaintiff merely produces an

alternative map. And proving vote dilution requires

a fact-intensive showing on the totality of the

circumstances using the Senate Factors, among other

things.

Moreover, contrary to Alabama’s assertions, if a

plaintiff proves vote dilution, the state need not adopt

a plaintiff’s proposed map but can draw its own. And

if the state chooses to adopt a plaintiff’s map, that

6

map will comport with the requirements of the Equal

Protection Clause by either adhering to traditional

redistricting principles or providing a tailored

solution to an adjudicated finding of vote dilution.

Thus, the Court should not accept Alabama’s

invitation to upend the first Gingles condition based

on unfounded concerns of what that condition means

for states.

2. Alabama’s new version of Gingles is not only

misguided but also unworkable. To begin, the current

Gingles framework is sufficiently settled and

regularly applied that it does not need replacement.

Moreover, Alabama’s proposed framework is far

worse, as Alabama fails to define manageable

standards and its standard would require states to

use new computer technologies to implement. It is

thus Alabama’s proposal that would be unworkable,

not Gingles.

3. Stare decisis considerations, including the

Amici States’ reliance on the settled Gingles

framework, also weigh against accepting Alabama’s

new version of the first Gingles condition. States have

long relied on how Gingles has been applied to draft

redistricting maps and to defend against Section 2

challenges to those maps. And they have also relied

on Gingles in enacting their own voting rights laws.

A substantial reworking of Gingles could subject

redistricting maps across the country to further legal

challenge and could force states to reexamine their

own state-law provisions. Moreover, Alabama tries to

upend this Court’s settled interpretation of a federal

statute, yet Congress—not this Court—is best

7

situated to make changes to a federal statute in

response to criticism about how it has been applied.

ARGUMENT

I. Alabama Misconstrues How The

Gingles Condition Affects States.

First

Alabama’s arguments regarding the first Gingles

condition proceed from a flawed account of how that

condition affects states. The first condition merely

requires a plaintiff to show that an additional

majority-minority district is possible, usually by

producing an illustrative map. Merrill, 142 S. Ct. at

887 (Kagan, J., dissenting). Then the analysis moves

on to consider other factors. As Plaintiffs correctly

explain, drawing such proposed maps has always

necessarily involved some consideration of racial

demographics because the purpose of the first Gingles

condition is to show that another district may be

drawn in which members of a particular minority race

constitute at least 50% of the voting-age population.

Br. for Milligan Appellees 43; Br. for Caster Resp’ts

52-57. But Alabama argues that plaintiffs should now

be required to produce these sample maps in a raceblind manner by using redistricting software that can

ignore race. Alabama Br. 47-50. Alabama claims that

this requirement is necessary because otherwise

states would be forced to adopt illustrative maps

crafted with race as the primary motivator. Alabama

Br. 47-50, 64-65. Alabama’s argument relies on

several mistaken premises, and each error

undermines its core contentions.

A. Alabama is wrong that the “takeaway” from

this case is that “where it is possible to draw an

additional majority-black district, a State must draw

8

the district.” Alabama Br. 65 (emphases omitted).

Similarly, Louisiana’s brief errs in asserting that

Gingles demands that members of a minority group

be able to elect representatives of their choice in strict

proportion to the number of their voting-age

members. Louisiana Br. 8-11. This is so for two

reasons.

First, it is not true that a state must draw a map

with an additional majority-minority district

whenever a plaintiff shows at step one of the Gingles

framework that it is possible to draw, or that

proportionality demands, such a map. De Grandy,

512 U.S. at 1009-12. Rather, the state must redraw

its map only if a plaintiff also proves, among other

things, that the enacted map dilutes minority voting

power based on a “comprehensive, not limited,

canvassing of relevant facts” under the totality of the

circumstances. Id. at 1011; see Bartlett v. Strickland,

556 U.S. 1, 24 (2009) (plurality op.) (“Majorityminority districts are only required if all three

Gingles factors are met and if § 2 applies based on a

totality of the circumstances.”). Here, for example,

Alabama was not required to draw an additional

majority-Black district solely because Plaintiffs

proffered maps with such a district. Alabama was

required to do so because the district court found after

a trial that every relevant factor—and there were

many—indicated that Alabama’s map diluted the

power of Black voters. MSA 195-96.

Second, even if a plaintiff prevails on a Section 2

vote dilution claim, the state is not required to adopt

the maps that the plaintiff offered at the first step of

Gingles. See, e.g., Pope v. County of Albany, 687 F.3d

9

565, 576 (2d Cir. 2012); Bone Shirt v. Hazeltine, 461

F.3d 1011, 1019 (8th Cir. 2006); Clark v. Calhoun

County, 88 F.3d 1393, 1407 (5th Cir. 1996). Those

maps are used only “to prove that a solution is

possible, and not necessarily to present the final

solution to the problem.” Pope, 687 F.3d at 576

(quoting Bone Shirt, 461 F.3d at 1019). Courts must

give the state the first opportunity to redraw the

districts to remedy vote dilution. Shaw v. Hunt

(Shaw II), 517 U.S. 899, 917 n.9 (1996). As a result,

the state “is free . . . to develop a different remedial

plan from those proposed by the plaintiffs.” Clark, 88

F.3d at 1407. And that is exactly what happened

here: the district court gave Alabama the opportunity

to redraw its maps. MSA 210-14.

What is more, Alabama was not even required to

add another majority-minority district. Rather, the

district court stated that Alabama’s remedial plan

could include “either an additional majority-Black

congressional district, or an additional district in

which Black voters otherwise have an opportunity to

elect a representative of their choice.” MSA 5. So

Alabama could have remedied the finding of vote

dilution by, for example, creating a “crossover

district” in which Black voters, although not a

majority, could elect candidates of their choice “with

help from voters who are members of the majority and

who cross over to support the minority’s preferred

candidate.” Bartlett, 556 U.S. at 13 (plurality op.).

Thus, Alabama had several options to remedy the

finding of vote dilution here.

B. In any event, Alabama and its amici are also

wrong—again, for two reasons—in arguing that

10

adopting a plaintiff’s illustrative map to remedy a

Section 2 violation would contravene the Equal

Protection Clause. Alabama Br. 48; Louisiana Br. 1.

First, a legislative map is subject to strict scrutiny

only if it “subordinat[es] traditional race-neutral

districting principles . . . to racial considerations.”

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

plaintiff’s mapmaker attempts to draw illustrative

maps to satisfy the first Gingles condition, the

mapmaker of course considers race, as courts and

parties to redistricting litigation have long

understood. Merrill, 142 S. Ct. at 886-87 (Kagan, J.,

dissenting); see, e.g., Davis v. Chiles, 139 F.3d 1414,

1425-26 (11th Cir. 1998); Clark, 88 F.3d at 1407-08;

Sanchez v. Colorado, 97 F.3d 1303, 1327-28 (10th Cir.

1996); Cane v. Worcester County, 35 F.3d 921, 926 n.6

(4th Cir. 1994). But considering race to answer the

first Gingles question does not mean that the

mapmaker subordinated traditional redistricting

principles to race. Robinson v. Ardoin, 37 F.4th 208,

222-23 (5th Cir. 2022) (per curiam), stayed and cert.

granted, No. 21-1596, 2022 WL 2312680 (U.S. June

28, 2022) (Mem.); Davis, 139 F.3d at 1425-26; Clark,

88 F.3d at 1407-08; Sanchez, 97 F.3d at 1328; Cane,

35 F.3d at 926 n.6. To the contrary, the first Gingles

condition protects against that outcome by requiring

that plaintiffs show that the proposed additional

majority-minority district “take[s] into account

traditional districting principles such as maintaining

communities of interest and traditional boundaries.”

LULAC, 548 U.S. at 433 (quoting Abrams v. Johnson,

521 U.S. 74, 92 (1997)); see Robinson, 37 F.4th at 218.

And as the district court correctly observed, a “rule

that rejects as unconstitutional a remedial plan for

11

attempting to satisfy [the first Gingles condition]

would preclude any plaintiff from ever stating a

Section Two claim.” MSA 205.

Applying this well-settled understanding of the

first Gingles condition, the district court here found

that Plaintiffs’ proposed maps did not subordinate

traditional redistricting criteria to race, MSA 204-05,

and rejected Alabama’s attempts to misconstrue the

record otherwise, MSA 244-55. As a result, Alabama

could adopt the illustrative maps here without

triggering strict scrutiny. MSA 204-06, 259-60.

The district court’s ruling was no outlier. Several

other courts have likewise rejected the argument that

an illustrative map was off-limits based on equal

protection concerns, each noting that if a map does

not subordinate traditional redistricting principles to

race, strict scrutiny does not apply. E.g., Robinson,

37 F.4th at 222-23; Wright v. Sumter Cnty. Bd. of

Elections & Registration, 301 F. Supp. 3d 1297, 132526 (M.D. Ga. 2018), aff’d, 979 F.3d 1282 (11th Cir.

2020); Rodriguez v. Harris County, 964 F. Supp. 2d

686, 745-46 (S.D. Tex. 2013), aff’d sub nom. Gonzalez

v. Harris County, 601 F. App’x 255 (5th Cir. 2015).

Second, even if plaintiffs considered or prioritized

race in a way that states normally could not, there

would be no equal protection violation in adopting

their maps to remedy a Section 2 violation. That is

because remedying vote dilution satisfies strict

scrutiny. This Court has long assumed as much.

Cooper, 137 S. Ct. at 1464; see also Bush v. Vera, 517

U.S. 952, 977 (1996) (plurality op.). That assumption

is correct. States have a compelling interest in

complying with the VRA and preventing or

12

eradicating vote dilution. Abbott, 138 S. Ct. at 2315.

And a properly drawn majority-minority district—

which must account for traditional redistricting

principles as reasonably necessary—created to

remedy vote dilution is a narrowly tailored means to

serve that end, Bush, 517 U.S. at 977 (plurality op.),

that should not violate the Equal Protection Clause,

e.g., Clark, 88 F.3d at 1408; Montes v. City of Yakima,

40 F. Supp. 3d 1377, 1401 (E.D. Wash. 2014); Ga.

State Conf. of the NAACP v. Fayette Cnty. Bd. of

Comm’rs, 950 F. Supp. 2d 1294, 1305 (N.D. Ga. 2013),

aff’d in part, vacated in part, and remanded, 775 F.3d

1336 (11th Cir. 2015). Alabama thus misplaces its

reliance on equal protection concerns when asking

this Court to upend the first Gingles condition.

II. Alabama’s Radical Proposal For Gingles

Would Be Unworkable For States.

Alabama’s proposed replacement for the first

Gingles condition is not only misguided but also

unworkable. Contrary to Alabama and its amici’s

assertions, the Gingles framework is settled and

predictable for states. Alabama’s new version of

Gingles, on the other hand, is too undefined and

dependent on new technology for states to workably

implement. Thus, “if anything would be unworkable

in practice, it would be for [the Court] now to abandon

[its] settled jurisprudence” for Alabama’s radical new

approach. Allied-Signal, Inc. v. Dir., Div. of Tax’n,

504 U.S. 768, 785 (1992).

A. The settled Gingles

workable for states.

framework

is

The basic Gingles framework is settled and

straightforward for states to apply in practice, and

13

they have regularly done so. For decades, Gingles has

provided a structured analytical framework for

states, allowing them to draw districts without

diluting votes and to defend those districts in

litigation. See De Grandy, 512 U.S. at 1010 (“Gingles

provided some structure to the statute’s ‘totality of

the circumstances’ test . . . .”); McNeil v. Springfield

Park Dist., 851 F.2d 937, 942 (7th Cir. 1988)

(“[Gingles] reins in the almost unbridled discretion

that section 2 gives the courts, focusing the

inquiry . . . .”); McGhee v. Granville County, 860 F.2d

110, 119 (4th Cir. 1988) (describing “the Gingles

Court’s careful effort to contain the vote dilution

concept and claims based upon it within principled

bounds”).

Indeed, courts have applied that

framework in hundreds of cases to various types of

election practices.

E.g., Ellen D. Katz, et al.,

Documenting Discrimination in Voting: Judicial

Findings Under Section 2 of the Voting Rights Act

Since 1982, 39 U. Mich. J.L. Reform 643, 655 (2006)

(identifying 211 lawsuits from 1982 to 2006 that

“produced at least one published merits decision on

the question of whether Section 2 was violated”); id.

at 756-70 (identifying which of those cases made a

finding regarding the first Gingles condition). And

the framework has applied to redistricting for singlemember districts for nearly thirty years. Growe, 507

U.S. at 40-41.

Given states’ “long experience in

applying” Gingles, the Court should not jettison such

a well-established legal framework. Allied-Signal,

504 U.S. at 783; see also Hilton v. S.C. Pub. Rys.

Comm’n, 502 U.S. 197, 202 (1991) (considering that

states had relied on precedent when declining to

overrule it).

14

Indeed, the first Gingles condition—which

Alabama seeks to transform here, see Alabama Br.

68-70—“provides straightforward guidance . . . to

those officials charged with drawing district lines to

comply with § 2,” Bartlett, 556 U.S. at 18 (plurality

op.), and “has been the baseline of [the Court’s] § 2

jurisprudence,” id. at 16. The Courts of Appeals have

repeatedly explained the ease with which this first

condition can be applied. See, e.g., Dillard v. Baldwin

Cnty. Comm’rs, 376 F.3d 1260, 1268 (11th Cir. 2004)

(stating that the first condition provides

“ascertainable and objective standards”); McNeil, 851

F.2d at 942 (“The Court’s approach, by focusing up

front on whether there is an effective remedy for the

claimed injury, promotes ease of application without

distorting the statute or the intent underlying it.”).

As one court has explained, “the first Gingles question

is straightforward and statistical” because it asks

whether a district can be drawn with “a simple

majority of the relevant [minority] population.” Pope,

687 F.3d at 576. Indeed, the first condition has not

been the subject of much critique. See Christopher S.

Elmendorf, Kevin M. Quinn, & Marisa A. Abrajano,

Racially Polarized Voting, 83 U. Chi. L. Rev. 587, 627

(2016) (contrasting judicial consensus around the first

condition with the second). Accordingly, this Court

has rebuffed efforts to modify it. See Bartlett, 556

U.S. at 19 (plurality op.) (collecting cases rejecting a

new standard for the first condition and “declin[ing]

to depart from the uniform interpretation of § 2 that

has guided federal courts and state and local officials

for more than 20 years”). This Court should do the

same here.

15

B. States would struggle to implement

Alabama’s version of Gingles.

Alabama’s radical new approach to Gingles is not

feasible to implement because Alabama fails to

adequately define how its test operates and litigants

should not be required to use particular technologies

in every vote dilution case.

1. Alabama fails to define a manageable

standard.

The ultimate inquiry in Alabama’s new Gingles

test is whether a state’s plan “resembles” “neutrally

drawn” maps, i.e., maps generated using race-blind

computer simulations. Alabama Br. 45, 54-56. If it

does, Alabama contends, the state’s map cannot

violate Section 2.

But, beyond that headline,

Alabama provides no guidance on how a standard

based on deviation from a “neutrally drawn” map

should work.

Start with “neutrally drawn,” which Alabama

suggests is a map drawn considering only “traditional

redistricting principles” and ignoring race. Alabama

Br. 53. But such principles “are numerous and

malleable. . . . By deploying those factors in various

combinations and permutations, a State could

construct a plethora of potential maps that look

consistent with traditional, race-neutral principles.”

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

788, 799 (2017); see Moon Duchin & Douglas M.

Spencer, Models, Race, and the Law, 130 Yale L.J.

Forum 744, 768 (2021) (explaining that computer

simulations allow experts to generate a high volume

of maps complying with traditional redistricting

principles while ignoring race). As a result, if the

16

benchmark becomes “traditional redistricting

criteria,” then states will have to spend years of

litigation hashing out which permutations will be the

baseline “neutrally drawn” map for comparison under

Alabama’s theory. See Rodriguez, 964 F. Supp. 2d at

746 (observing that, “[g]iven the nuance and

discretion involved in the redistricting calculus,” one

party can always object to a map by arguing that the

mapmaker “did not weigh competing considerations

in the same manner” as another would have).

Nor does Alabama define what it means for one

map to “resemble” a “neutrally drawn” map. In other

words, even if “neutrally drawn” maps are an

identifiable baseline, then how much deviation from

those maps is acceptable? Is it enough for courts to

“eyeball” a map, or is there some mathematical

function that assigns a value to the level of deviation?

Even if those questions are answered, how many

“neutrally drawn” maps must be produced as

comparators and what percentage of them must

“resemble” a state’s map? And does the appropriate

percentage depend on the degree of resemblance?

The Court faced similar questions in Rucho v.

Common Cause, 139 S. Ct. 2484 (2019), when

considering a potential standard for partisan

gerrymandering claims. One proposed standard was

to generate maps with computer simulations using

only traditional redistricting criteria and then

compare those maps with a state’s map. Id. at 2505;

see also id. at 2517-18 (Kagan, J., dissenting). The

more a map deviated from a “neutral baseline,” the

more likely that it was gerrymandered. Id. at 2505

(majority op.). But the Court concluded that such a

17

proposal did not provide a sufficiently manageable

standard because there was no clear benchmark from

which to compare a plan, and because deciding how

much deviation from any such benchmark was too

much constituted an “unanswerable question.” Id.

(quoting Vieth v. Jubelirer, 541 U.S. 267, 296 (2004)

(plurality op.)). Alabama’s proposal suffers from the

same flaws and thus should fail for the same reasons.

2. States should not be required to rely on

computer simulations to litigate Section 2

vote dilution cases.

In addition to lacking clarity, Alabama’s proposal

requires litigants to use new technologies. Alabama’s

new Gingles requires litigants to generate large

numbers of race-blind maps, which can only be done

with computer simulations. See Merrill, 142 S. Ct. at

887 (Kagan, J., dissenting); Jowei Chen & Nicholas O.

Stephanopoulos, The Race-Blind Future of Voting

Rights, 130 Yale L.J. 862, 882-84 (2021); Louisiana

Br. 3, 10. But states should not be forced as a matter

of law to rely on computer simulations to litigate

every Section 2 vote dilution case. This Court has

never demanded a particular form of evidence in vote

dilution cases, and it should not do so now. See De

Grandy, 512 U.S. at 1011 (“[U]ltimate conclusions

about equality or inequality of opportunity were

intended by Congress to be judgments resting on

comprehensive, not limited, canvassing of relevant

facts.”).

To begin, the technology required for this

approach is new. In simple terms, the technology

involves inputting redistricting criteria into a

computer program that then automatically and

18

randomly generates different maps complying with

the programmed criteria. Chen & Stephanopoulos,

supra, at 882-83. But only since 2013 has it even

become possible to use algorithms to generate maps

relying on the same criteria and geographical units

that real mapmakers use. Id. Given that this method

of litigating vote dilution cases is not widely practiced,

it makes little sense to impose it as the standard for

all cases. See Merrill, 142 S. Ct. at 887 (Kagan, J.,

dissenting) (“[W]hatever the pros and cons of

[Alabama’s] method, this Court has never demanded

its use; we have not so much as floated the idea, let

alone considered how it would work.”).

This is not to say that computer simulation

evidence is always unreliable or inadequate. Both

plaintiffs and states may find that such evidence is an

effective way of proving their case; and a trial court,

as gatekeeper, may admit such evidence after

carefully considering its reliability and value. But

that is quite different from requiring, as a matter of

law, that these technologies be used in every vote

dilution case. While computer simulations may aid in

particular cases, they should not be the universal

standard of proof. Moreover, it simply makes no sense

for Alabama to contend that the “only” valid way to

apply the VRA requires technology that did not exist

when the statute was enacted or Gingles was decided.

Alabama Br. 70. The Court should reject Alabama’s

demand for this “[a]vulsive change” to the nature of

Section 2 vote dilution litigation.

Chen &

Stephanopoulos, supra, at 946.

19

III. Abandoning The Gingles Framework Would

Improperly Upend Decades Of Reliance By

States On That Established Framework.

Stare decisis principles weigh decisively against

overturning the settled Gingles framework,

particularly given that states and their residents

have relied on that framework for decades in

conducting redistricting. Where, as here, states have

relied on a particular precedent, that reliance has

weighed against overruling the precedent. AlliedSignal, 504 U.S. at 785; Hilton, 502 U.S. at 203.

In drafting and enacting state and congressional

district maps, states have long relied on the settled

understanding that the first Gingles condition

contemplates identifying a discrete group of voters by

race or ethnicity, and then determining whether that

group can satisfy size, compactness, and reasonable

configuration requirements. States have relied on

this “straightforward guidance” from Gingles,

Bartlett, 556 U.S. at 18 (plurality op.), in evaluating

whether another majority-minority district might be

needed to comply with the VRA. See, e.g., Johnson v.

Wis. Elections Comm’n, 972 N.W.2d 559, 571-72 (Wis.

2022) (evaluating whether an additional majorityminority district is needed to comply with VRA); In re

Colo. Indep. Legis. Redistricting Comm’n (Colorado

Redistricting), No. 21SA305, 2021 WL 5294962, at *7

(Colo. Nov. 15, 2021) (describing independent

redistricting commission efforts to evaluate whether

an additional majority-minority district needed under

Section 2). And states have defended their maps,

including current maps recently enacted after the

2020 census, against Section 2 challenges by arguing

20

that the plaintiffs bringing such challenges failed to

satisfy the first Gingles condition.

See, e.g.,

McConchie v. Scholz, Nos. 21-CV-3091, 21-CV-3139,

& 21-CV-5512, 2021 WL 6197318, at *6 (N.D. Ill. Dec.

30, 2021); Colorado Redistricting, 2021 WL 5294962,

at *7.

Accepting Alabama’s arguments here would

undermine states’ reliance on the Gingles framework

and potentially subject their current maps to further

legal challenges. For example, Alabama contends

that following the longstanding Gingles framework

“raises serious constitutional questions” as to

whether

the

resulting

maps

are

racially

gerrymandered. See Alabama Br. 71. But accepting

that argument would mean that state legislatures,

independent redistricting commissions, and courts

that have drawn district maps may have long engaged

in racial gerrymandering simply by following this

Court’s precedent. Such a startling change would not

only substantially alter decades of jurisprudence but

also potentially open states’ current maps to legal

challenges—even though states faithfully followed

Gingles.

States have also relied on the established Gingles

framework in enacting their own redistricting

requirements or voting-rights statutes. Drastically

altering the Gingles framework could thus, at

minimum, raise significant questions about the

proper interpretation and application of these state

laws as well. The Court should not accept such a

destabilizing interpretation of the VRA. See AlliedSignal, 504 U.S. at 785 (pointing to reliance by state

legislatures on “settled jurisprudence defining the

21

limits of state power to tax” in adhering to stare

decisis); Hilton, 502 U.S. at 202-03 (considering, as

one factor in favor of adhering to stare decisis, the

extent to which states had crafted workers’

compensation laws to exclude certain protections in

reliance on the existence of those protections under

federal law).

Several

states’

redistricting

requirements

mandate compliance with the VRA as an independent

state-law obligation.

For example, the state

constitutions or statutes of California, Colorado,

Illinois, Michigan, and Wisconsin expressly require

that districts comply with the VRA. 2 In some of these

states, the courts have expressly looked to “the

decisions of the United States Supreme Court that

construe” the VRA in evaluating whether maps

comply with these state-law provisions. E.g., Detroit

2

See Cal. Const. art. XXI, § 2(d)(2) (“Districts shall comply

with the federal Voting Rights Act[.]”); Colo. Const. art. V,

§ 48.1(1)(b) (requiring that legislative redistricting plans

“[c]omply with the federal ‘Voting Rights Act of 1965’”); 10 Ill.

Comp. Stat. § 120/5-5(a) (requiring districts to comply with “any

federal law regarding redistricting Legislative Districts or

Representative Districts, including but not limited to the federal

Voting Rights Act”); Mich. Const. art. IV, § 6(13)(a) (“Districts

shall . . . comply with the voting rights act and other federal

laws.”); Mich. Comp. Laws § 3.63(b)(ii) (“Each congressional

district shall not violate section 2 of title I of the voting rights

act of 1965.”); Mich. Comp. Laws § 4.261a (“[State legislative

districts] shall not violate section 2 of title I of the voting rights

act of 1965.”); Wis. Stat. Ann. § 5.081 (authorizing the attorney

general to enforce section 2 of the VRA); see also Eric S. Lynch,

Going, Gutted, Gone? Why Section 2 of the Voting Rights Act Is

in Danger, and What States Can Do About It, 22 U. Pa. J. Const.

L. 1441, 1471-75 (2020) (cataloguing all states that incorporate

Section 2 standards in some way as a matter of state law).

22

Caucus v. Indep. Citizens Redistricting Comm’n, 969

N.W.2d 331, 331 (Mich. 2022) (Mem.).

Moreover, several states have enacted state

constitutional or statutory language that parallels the

language of Section 2 of the VRA, which forbids

“political

processes . . . not

equally

open

to

participation by members of” protected racial classes

“in that [such] 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). For example, the

District of Columbia, New York, California, Colorado,

and Washington prohibit election schemes that

“dilut[e] the voting strength of minority citizens,”

D.C. Code § 1-1011.01(g), or that “impair[] the ability”

of such voters “to elect candidates of their

choice . . . as a result of vote dilution,” N.Y. Elec. Law

Although these provisions exist

§ 17-206(2)(a). 3

independently as state law, in many cases they “were

3

See also Cal. Elec. Code § 14027 (prohibiting an “at-large

method of election” that “impairs the ability of a protected class

to elect candidates of its choice or its ability to influence the

outcome of an election, as a result of the dilution or the

abridgment of the rights of voters who are members of a

protected class”); Wash. Rev. Code § 29A.92.020 (prohibiting an

election method “that impairs the ability of members of a

protected class or classes to have an equal opportunity to elect

candidates of their choice as a result of the dilution or

abridgment of the rights of voters who are members of a

protected class or classes”); N.Y. Const. art. III, § 4(c)(1)

(“Districts shall be drawn so that, based on the totality of the

circumstances, racial or minority language groups do not have

less opportunity to participate in the political process than other

members of the electorate and to elect representatives of their

choice.”).

23

modeled on and embrace the principles of key

provisions” of the VRA, including Section 2. In re

Senate Joint Resol. of Legis. Apportionment 100, 334

So. 3d 1282, 1288 (Fla. 2022) (internal quotation

marks and alterations omitted); see also Colorado

Redistricting, 2021 WL 5294962, at *13 (“[W]e

presume that in adopting the phrase ‘including

diluting the impact of that racial or language minority

group’s electoral influence’ . . . , Colorado voters were

referring to the then-existing protections against

voter influence that were encompassed in the VRA.”).

Courts thus often look to precedents construing the

VRA, including Gingles, in interpreting these state

laws. See, e.g., Kingman Park Civic Ass’n v. Williams,

924 A.2d 979, 987 (D.C. 2007) (interpreting the

District’s prohibition on vote dilution to incorporate

the Gingles framework).

Even states with additional protections that go

beyond the requirements of Section 2 nevertheless

rely, to some extent, on federal-court interpretations

of the VRA in their implementation. For example, the

state statutes enacted by New York and California

dispense with the Gingles requirement that the group

of minority voters be geographically compact. See

N.Y. Elec. Law § 17-206(2)(c); Cal. Elec. Code

§ 14028(c). And some states, like New York, Illinois,

and Washington, allow the creation of crossover

districts, coalition districts, or influence districts in

which members of different minority groups may join

together in demonstrating that their combined

membership constitutes the majority in a proposed

district. See N.Y. Elec. Law § 17-206(8); 10 Ill. Comp.

Wash.

Rev.

Code

Stat.

§ 120/5-5(a)-(b);

§ 29A.92.030(2). By contrast, the first prong of

24

Gingles requires establishing that a particular

minority group constitutes the “majority” of voters in

a “geographically compact” district. Gingles, 478 U.S.

at 50-51. Nevertheless, Gingles may remain relevant

in interpreting these state-law provisions. See

Yumori-Kaku v. City of Santa Clara, 59 Cal. App. 5th

385, 392-94 (2020) (explaining that California VRA

“was in part modeled” on “the interpretation of federal

voting rights law,” and that “[Gingles] serves as our

principal guide [in interpreting the Act],” and noting,

however, that only the second and third Gingles

factors are required to prove a violation of the

California VRA); Wash. Rev. Code § 29A.92.010

(providing that “courts may rely on relevant federal

case law for guidance” in applying Washington’s

VRA).

As these examples demonstrate, states have relied

on the VRA and the Gingles framework in crafting

and applying their own state redistricting provisions.

Indeed, all but one of the constitutional and statutory

provisions described above were adopted after

Gingles. 4 A sudden reworking of the Gingles

See Cal. Voting Rights Act of 2001, Cal. Legis. Serv. Ch.

129 (S.B. 976) (2002) (enacting Cal. Elec. Code §§ 14025-14032);

Colo. Ballot Amends. Y, Z (2018) (amending the Colorado

Constitution to add art. V, §§ 44.3, 48.1); 1990 D.C. Laws 8-240

(Act 8-323) (enacting what is now D.C. Code § 1-1011.01); N.Y.

Ballot Proposal 1 (2014) (amending N.Y. Const. art. III, § 4);

John R. Lewis Voting Rights Act of N.Y., 2022 N.Y. Laws ch. 226

(S. 1046-E) (enacting N.Y. Elec. Law § 17-206); Ill. Voting Rights

Act of 2011, Pub. Act No. 96-1541 (S.B. 3976) (promulgating

10 Ill. Comp. Stat. § 120/5-5); 1999 Mich. Pub. Act No. 221 (S.B.

No. 810) (promulgating Mich. Comp. Laws § 3.63(b)(ii)); 1996

Mich. Pub. Act No. 463, § 1 (H.B. No. 5275) (promulgating Mich.

4

25

framework by this Court, as Alabama demands,

might “require these States to reexamine their

statutes.” Hilton, 502 U.S. at 203. If that raised new

questions about whether the meaning of state-law

provisions had changed in parallel with a revised

understanding of Section 2, that would, in turn, open

the door to countless lawsuits attempting to require

mid-cycle changes in district lines. This Court should

decline Alabama’s unwarranted invitation to upend

the Gingles framework given the negative effects such

a ruling would have on states.

Indeed, Congress remains free to alter—or, as it

has for nearly forty years, leave in place—the

framework this Court set forth in Gingles for

adjudicating Section 2 cases. Gingles was itself the

result of a statutory amendment to Section 2 that

arose directly out of Congress’s disagreement with

this Court’s prior interpretation of the VRA. See

Gingles, 478 U.S. at 35. Because “Congress, not this

Court, has the responsibility for revising its statutes,”

Neal v. United States, 516 U.S. 284, 296 (1996), the

Court should leave to Congress the policy questions of

whether and how to alter the requirements for

establishing a Section 2 claim.

Comp. Laws § 4.261a); Mich. Ballot Proposal 18-2 (2018)

(amending Mich. Const. art. IV, § 6); Wash. Voting Rights Act of

2018, 2018 Wash. Legis. Serv. Ch. 113 (S.S.B 6002) (enacting

Wash. Rev. Code Chapter 29A.92). The only statute that

predates Gingles is Wis. Stat. Ann. § 5.081, which was passed in

1985. See 1985 Wis. Act 312 (enacting Wis. Stat. § 5.081).

Section 2 has not been amended as relevant here since Gingles

was issued in 1986.

26

CONCLUSION

This Court should affirm the judgments of the

district court.

Respectfully submitted,

LETITIA JAMES

Attorney General for the

State of New York

KARL A. RACINE

Attorney General for the

District of Columbia

BARBARA D. UNDERWOOD

Solicitor General

CAROLINE S. VAN ZILE

Solicitor General

Counsel of Record

JUDITH N. VALE

Deputy Solicitor General

ANDREA TRENTO

Assistant Solicitor General

ASHWIN P. PHATAK

Principal Deputy Solicitor

General

GRAHAM E. PHILLIPS

OFFICE OF THE ATTORNEY

Deputy Solicitor General

GENERAL FOR THE STATE OF

NEW YORK

ADAM J. TUETKEN

Office of the Attorney General CAROLINE W. TAN

28 Liberty Street

Assistant Attorneys General

New York, NY 10005

OFFICE OF THE ATTORNEY

(212) 416-8020

barbara.underwood@ag.ny.gov GENERAL FOR THE

DISTRICT OF COLUMBIA

400 6th Street, NW, Ste.

8100

Washington, D.C. 20001

(202) 724-6609

July 2022

caroline.vanzile@dc.gov

On behalf of:

ROB BONTA

Attorney General

State of California

PHILIP J. WEISER

Attorney General

State of Colorado

WILLIAM TONG

Attorney General

State of Connecticut

KATHLEEN JENNINGS

Attorney General

State of Delaware

HOLLY T. SHIKADA

Attorney General

State of Hawaii

KWAME RAOUL

Attorney General

State of Illinois

AARON M. FREY

Attorney General

State of Maine

BRIAN E. FROSH

Attorney General

State of Maryland

MAURA HEALEY

Attorney General

Commonwealth of

Massachusetts

DANA NESSEL

Attorney General

State of Michigan

KEITH ELLISON

Attorney General

State of Minnesota

AARON D. FORD

Attorney General

State of Nevada

MATTHEW J. PLATKIN

Acting Attorney General

State of New Jersey

ELLEN F. ROSENBLUM

Attorney General

State of Oregon

JOSH SHAPIRO

Attorney General

Commonwealth of

Pennsylvania

PETER F. NERONHA

Attorney General

State of Rhode Island

SUSANNE R. YOUNG

Attorney General

State of Vermont

ROBERT W. FERGUSON

Attorney General

State of Washington

JOSHUA L. KAUL

Attorney General

State of Wisconsin