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

No. 21-1086, 21-1087

IN THE

Supreme Court of the United States

___________

JOHN H. MERRILL, et. al.,

v.

EVAN MILLIGAN, et al.,

___________

JOHN H. MERRILL, et. al.,

v.

MARCUS CASTER, et al.,

Appellants,

Appellees.

Petitioners,

Respondents.

___________

On Appeal from and on Writ of Certiorari to the

United States District Court for the Northern

District of Alabama

___________

BRIEF OF U.W. CLEMON, FRED D. GRAY,

HENRY SANDERS, THE ALABAMA

LEGISLATIVE BLACK CAUCUS, AND SOCIAL

SCIENCE PROFESSORS AS AMICI CURIAE

FOR APPELLEES AND RESPONDENTS

___________

NAOMI IGRA

JEFFREY T. GREEN*

SIDLEY AUSTIN LLP

MARISA WEST

555 California Street

CHIKE CROSLIN

Suite 200

SIDLEY AUSTIN LLP

San Francisco, CA 94104 1501 K Street NW

Washington, DC 20005

(202) 736-8000

jgreen@sidley.com

Counsel for Amici Curiae

July 18, 2022

*Counsel of Record

ii

TABLE OF CONTENTS

Page

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

iii

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

1

INTRODUCTION AND SUMMARY OF

ARGUMENT ......................................................

4

ARGUMENT .........................................................

4

I. RACIAL HIERARCHY IN ALABAMA’S

POLITICAL CULTURE AND INSTITUTIONS REFLECTS PATH DEPENDENCE

FROM 1860 TO THE PRESENT .................

4

A. A State’s Historical Choices and Actions

Shape Behavior and Decision-Making in

the Present ................................................

6

B. Alabama’s Prior Commitment to Entrenched Racial Hierarchy Measurably

Affects

its

Present-Day

Political

Culture ......................................................

9

II. ALABAMA’S HISTORY OF VOTING-RELATED DISCRIMINATION MAKES IT AN

UNRELIABLE GUARANTOR OF RACIAL

EQUALITY IN THE PRESENT .................

13

CONCLUSION .....................................................

18

iii

CASES

TABLE OF AUTHORITIES

Page

Brnovich v. Democratic Nat’l Comm.,

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

14

Gomillion v. Lightfoot,

364 U.S. 339 (1960) ................................... 1, 7

Harris v. Siegelman,

695 F. Supp. 517 (M.D. Ala. 1988) ...........

13

League of United Latin Am. Citizens v.

Perry, 548 U.S. 399 (2006) ........................

14

People First of Ala. v. Merrill,

491 F. Supp. 3d 1076 (N.D. Ala. 2020) .....

13

Thornburg v. Gingles,

478 U.S. 30 (1986) ..................................... 4, 14

United States v. McGregor,

824 F. Supp. 2d 1339 (M.D. Ala. 2011) .... 5, 12

Whitfield v. Oliver,

399 F. Supp. 348 (M.D. Ala. 1975) ...........

17

BOOKS

Avidit Acharya, Matthew Blackwell, &

Maya Sen, Deep Roots: How Slavery Still

Shapes Southern Politics (Princeton Univ.

Press, 2018) ........................................ 3, 7, 9, 10,

11, 12, 15

C. Vann Woodward, The Strange Career of

Jim Crow (1955) .................................... 9, 10, 18

Peyton McCrary et al., Quiet Revolution in

the South: The Impact of the Voting

Rights Act, 1965–1990 (Davidson &

Grofman, eds., 1994) ................................

17

W.E. Burghardt Du Bois, Black Reconstruc

tion (1935)..................................................

10

iv

TABLE OF AUTHORITIES—continued

Page

ARTICLES

Charles Stewart III, Nathaniel Persily &

Stephen

Ansolabehere,

Regional

Differences in Racial Polarization in the

2012 Presidential Election: Implications

for the Constitutionality of Section 5 of

the Voting Rights Act, 126 Harv. L. Rev.

F. 205 (2013) ............................................. 15, 16

Eric Foner & Olivia Mahoney, America’s

Reconstruction: People and Politics After

the Civil War (1995) ..................................

10

Margaret Levi, A Model, a Method, and a

Map: Rational Choice in Comparative and

Historical

Analysis, Compar.

Pol.:

Rationality, Culture, and Structure 19

(Mark I. Lichbach and Alan S.

Zuckerman, eds., 1997) .............................

7

Nico Voigtländer & Hans-Joachim Voth,

Persecution Perpetuated: The Medieval

Origins of Anti-Semitic Violence in Nazi

Germany, 127 The Quarterly J. of Econ.

1339 (2012) ................................................

8

Paul Pierson, Increasing Returns, Path

Dependence, and the Study of Politics, 94

Amer. Pol. Sci. Rev. 251 (2000) ................ 6, 8

Roger L. Ransom & Richard Sutch, One

Kind of Freedom: The Economic

Consequences

of

Emancipation

(Cambridge Univ. Press 2001)..................

10

Ronald Smothers, The 1992 Campaign:

House Race; After 115 Years, a Black Will

Represent Alabama, N.Y. Times, May 23,

1992 ...........................................................

17

v

TABLE OF AUTHORITIES—continued

U.W. Clemon & Bryan K. Fair, Making

Bricks without Straw: The NAACP Legal

Defense Fund and the Development of

Civil Rights Law in Alabama 1940–1980,

52 Ala. L. Rev. 1121 (2001) .......................

Volha Charnysh, Historical Legacies of

Interethnic Competition; Anti-Semitism

and the EU Referendum in Poland, 48

Compar. Pol. Stud. 1711 (2015) ................

Page

17

8

OTHER AUTHORITIES

America Counts Staff, Alabama Population

Grew 5.1% Since 2010, Surpassing 5

Million, U.S. Census Bureau, (Aug. 25,

2021), https://www.census.gov/library/sto

ries/state-by-state/alabama-populationchange-between-census-decade.html ....... 5, 16

Investigation of the Ferguson Police

Department, U.S. Dep’t of Just. Civ.

Rights Div. (March 2015) .........................

7

Kim Chandler, Alabama elects first Black

Republican to House in 140 years,

Associated

Press

(July

13,

2021) https://apnews.com/article/governm

ent-and-politics-alabama-election-2020house-elections-df2ff75265ffc67482290

f2f1a272 .....................................................

13

vi

TABLE OF AUTHORITIES—continued

Letter from Jerrie Leonard, Assistant

Attorney General, Civil Rights Division,

to MacDonald Gallion, Att’y General,

Alabama (Mar. 13, 1970), https://www.ju

stice.gov/crt/case-document/file/

1277176/download.....................................

National Conference of State Legislatures,

State Legislator Demographics (Dec. 1, 20

20), https://www.ncsl.org/research/aboutstate-legislatures/state-legislatordemographics.aspx ....................................

Voting Rights and Election Administration

in Alabama: Hearing before the

Subcomm. on Elections, Comm. on House

Admin., H.R., One Hundred Sixteenth

Congress, First Session (2019), https://w

ww.govinfo.gov/content/pkg/CHRG-116h

hrg38128/pdf/CHRG-116hhrg38128.pdf ..

Page

17

5

5

INTEREST OF AMICI CURIAE 1

U.W. Clemon was the first African-American federal

judge in the State of Alabama, being appointed in 1980

and serving a term as Chief Judge of the Northern District of Alabama. He was the presiding judge in the

Lilly Ledbetter case. A graduate of Columbia Law

School, he previously worked as a cooperating civil

rights lawyer with the NAACP Legal Defense Fund.

One of the first two African Americans elected to the

Alabama Senate since Reconstruction, and as Chairman of its Rules Committee, he often confronted then

Governor George Wallace on racial issues. After retirement from the bench in 2009, he returned to the active

practice of civil rights law.

Fred D. Gray is an attorney in Tuskegee, Alabama.

Mr. Gray represented Rosa Parks and Claudette Colvin following their arrests for refusing to give up their

bus seats to white passengers. He also represented

plaintiffs in integrating both the University of Alabama and Auburn University. He has successfully presented argument in four cases before this Court, including Gomillion v. Lightfoot, 364 U.S. 339 (1960)

(unanimously holding that Alabama violated the Fifteenth Amendment by shaping an electoral district to

deny equal representation to Black citizens). Mr. Gray

was the second African American elected to the Alabama state legislature since Reconstruction, and was

a member of the Alabama House of Representatives

from 1970 to 1974. He served as the President of the

1 No counsel for any party authored this brief in whole or in

part, and no other entity or person made any monetary contribution toward the preparation and submission of this brief. Pursuant to Supreme Court Rule 37.3, all parties have consented to the

filing of this brief.

2

National Bar Association in 1985, and in 2001 was

elected as the first African-American President of the

Alabama State Bar. He also received a Presidential

Medal of Freedom in 2022.

Henry Sanders served in the Alabama Senate for 35

years (1983–2018). As a graduate of Harvard Law

School, he founded one of the largest Black law firms

in Alabama (Chestnut, Sanders & Sanders), which

later led the Pigford v. Glickman and In re Black

Farmers Discrimination class actions. Those actions

ultimately won $2.25 billion for Black farmers who

had been discriminated against by the U.S. Department of Agriculture in the provision of loans and other

services. The Alabama Legislative Black Caucus has

named him Outstanding Legislator, and he received a

1999 Nation Builder Award from the National Caucus

of Black State Legislators. Mr. Sanders is also a published novelist.

The Alabama Legislative Black Caucus is an organization of Black state and county elected officials,

whose members are engaged in the day-to-day struggles to advance the interests of their constituents, particularly Black Alabamians, in a social, political and

legal environment that is still dominated by vestiges

of official racial discrimination and still is governed by

the 1901 Alabama Constitution that was adopted for

the purpose of disfranchising Black citizens and preserving white supremacy.

Avidit Acharya is an Associate Professor of Political

Science and Political Economy at Stanford University.

He has authored 19 peer-reviewed articles on political

economy, including several articles on the historical

origins of political attitudes and institutions. Together

with Professors Blackwell and Sen, Dr. Acharya is the

recipient of the Joseph L. Bernd Best Paper Award for

best paper published in The Journal of Politics for his

3

work on the political impact of Southern slavery. Dr.

Acharya holds a PhD in Political Economy from

Princeton University.

Matthew Blackwell is an Associate Professor of Government at Harvard University. He also is an affiliate

of the Institute for Quantitative Social Science. Dr.

Blackwell has authored 16 peer-reviewed articles covering topics such as long-term historical persistence in

American politics, causal inference, and statistical

methodology. Among 13 career awards he has received, he was awarded the Gosnell Prize by the Society for Political Methodology for best paper in political

methodology. Dr. Blackwell received a PhD in Political

Science from Harvard University.

Maya Sen is a Professor of Public Policy at Harvard

University. She is the director of Harvard’s Stone Program in Wealth Distribution, Inequality & Social Policy as well as an affiliate of the Institute for Quantitative Social Science, the Taubman Center for State and

Local Government, and the Ash Center for Democratic

Governance and Innovation. Dr. Sen co-authored the

book The Judicial Tug of War: How Lawyers, Politicians, and Political Incentives Shape the American Judiciary and has authored 30 peer-reviewed articles

covering political and social science subjects. Dr. Sen

received a PhD in Political Science and an AM degree

in Statistics, both from Harvard University.

Professors Acharya, Blackwell, and Sen co-authored

Deep Roots: How Slavery Still Shapes Southern Politics, Princeton University Press (2018). Their book was

awarded the William H. Riker Book Award for the best

book in Political Economy. Together, they examine the

lasting effects of slavery on modern-day politics in

Southern states.

4

INTRODUCTION AND SUMMARY OF

ARGUMENT

The “essence of a § 2 claim is that a certain electoral

law, practice, or structure” in the present “interacts

with social and historical conditions” to produce inequalities in electoral opportunity. Thornburg v. Gingles, 478 U.S. 30, 47 (1986). This Court’s precedent and

the Voting Rights Act’s legislative history reflect an

understanding that historical, discriminatory practices impact political participation in the present.

Amici include individuals who have experienced those

historical practices and have dedicated their lives to

countering their impact. Amici also include social scientists whose work explains why the effects of historical practices do not dissipate, even if it is assumed—

and often inaccurately so—that all of society’s members would not express a commitment to racial hierarchy. Through rigorous analysis, social scientists have

demonstrated that past rules, policies, and practices

are not confined to the past, immobilized and irrelevant. Instead, they continue to incentivize behavior

and reproduce the effects of those past commitments,

regardless of whether present-day actors share past

motives. That principle applies to redistricting in Alabama and demonstrates the critical importance of historical analysis in applying the Voting Rights Act.

ARGUMENT

I. RACIAL HIERARCHY IN ALABAMA’S POLITICAL CULTURE AND INSTITUTIONS REFLECTS PATH DEPENDENCE FROM 1860 TO

THE PRESENT.

The district court expressly found that Alabama had

not come far enough in addressing its history of racial

discrimination. See App. to Emergency Application for

Stay (or “MSA”), Vol. 1, 182, 183–88. That observation

5

applies to Alabama’s government institutions—and,

despite the significant civil rights victories of the past,

the situation is now getting worse, not better. For instance, only two Black people have ever held any

statewide office—both were Alabama Supreme Court

Justices—and none have held statewide office in the

last twenty years. JA423–24, 261. The number of

Black state legislators has decreased over the last 12

years (to 23%) 2—even while the non-white population

has increased 3—and nearly all Black state legislators

were elected in majority-Black legislative districts. 4

Federal courts in Alabama have recognized that racial bias continues to taint the business of the state

legislature. Just a few years ago, Alabama senators

and “influential” legislative allies were recorded referring to Black citizens as “Aborigines,” and suggesting

that they would be lured to the polls by “free food.”

United States v. McGregor, 824 F. Supp. 2d 1339,

1345–46 (M.D. Ala. 2011) (citation omitted). The same

recording captured these influential politicians actively strategizing about how to suppress Black votes.

Id. Those findings align with the experiences of Alabama Legislative Black Caucus members, who report

2 National Conference of State Legislatures, State Legislator

Demographics

(Dec.

1,

2020),

https://www.ncsl.org/research/about-state-legislatures/state-legislator-demographics.

aspx.

3 See America Counts Staff, Alabama Population Grew 5.1%

Since 2010, Surpassing 5 Million, U.S. Census Bureau, (Aug. 25,

2021), https://www.census.gov/library/stories/state-by-state/alabama-population-change-between-census-decade.html.

4 See Voting Rights and Election Administration in Alabama:

Hearing before the Subcomm. on Elections, Comm. on House Admin., H.R., One Hundred Sixteenth Congress, First Session at 25

(2019), https://www.govinfo.gov/content/pkg/CHRG-116hhrg

38128/pdf/CHRG-116hhrg38128.pdf.

6

routinely confronting racist commentary and disrespectful behavior—such as refusal to recognize their

right to speak during debate on proposed legislation

implicating the constitutional rights of Black protestors—during the course of their duties. And all of the

above aligns with a marked resurgence in politicians’

resort to racial appeals. Caster Br. at 13; JA455–57.

Recent peer-reviewed research sheds crucial light on

how patterns, statements, and actions consistent with

racial hierarchy persist in Alabama. In so doing, that

research unites the experience of legislators and longtime civil rights advocates with rigorous analysis,

demonstrating through empirical methods what others have seen, lived, and litigated: that Alabama’s historical commitment to racial hierarchy still defines its

contemporary political culture, and that there is no

reason to expect that culture to change of its own accord.

A. A State’s Historical Choices and Actions

Shape Behavior and Decision-Making in the

Present.

Researchers of all stripes routinely rely on the concept of “path dependence” to explain the persistence of

patterns in the social and political world over time.

The concept refers to a dynamic in which “preceding

steps in a particular direction induce further movement in the same direction” because “the relative benefits of the current activity compared with other possible options increase over time.” Paul Pierson, Increasing Returns, Path Dependence, and the Study of Politics, 94 Amer. Pol. Sci. Rev. 251, 252 (2000). Another

metaphor is a that of a tree: “From the same trunk,

there are many different branches and smaller

branches. Although it is possible to turn around or to

clamber from one to the other. . . the branch on which

a climber begins is the one she tends to follow.” See

7

Margaret Levi, A Model, a Method, and a Map: Rational Choice in Comparative and Historical Analysis,

Compar. Pol.: Rationality, Culture, and Structure 19,

28 (Mark I. Lichbach and Alan S. Zuckerman, eds.,

1997). Movement down one behavioral branch from a

prior point at which many branches converge—called

a “critical juncture”—raises the cost of reversing

course relative to any alternative.

Recent contributions to the path dependence literature have identified the role of past institutional

choices in producing persistence in the political attitudes, ideologies, or beliefs of individuals and communities. See, e.g., Avidit Acharya, Matthew Blackwell, &

Maya Sen, Deep Roots: How Slavery Still Shapes

Southern Politics 29 (Princeton Univ. Press, 2018)

(noting that “at a conceptual level, institutional mechanisms (i.e., rules, laws, and local ordinances) can,

over time, influence behavioral path dependence by reinforcing particular attitudes, values, customs, or beliefs”).

Attitudes, ideologies, or beliefs—which can persist

even after the laws, norms, and practices that reinforced them have disappeared—become part of the environment within which institutions operate and new

political developments unfold. Thus, they influence institutional forms and political outcomes across time

periods and social contexts. Compare, e.g., Gomillion,

364 U.S. at 347 (“the inescapable human effect of this

essay [changing the boundaries in the city of Tuskegee

in 1957] is to despoil colored citizens, and only colored

citizens, of their theretofore enjoyed voting rights”),

with Investigation of the Ferguson Police Department,

U.S. Dep’t of Just. Civil Rights Div., 4 (March 2015)

(“Ferguson’s approach to law enforcement both reflects

and reinforces racial bias, including stereotyping.”);

see Nico Voigtländer & Hans-Joachim Voth,

8

Persecution Perpetuated: The Medieval Origins of AntiSemitic Violence in Nazi Germany, 127 The Quarterly

J. of Econ. 1339, 1385–86 (2012) (examining German

towns during the period between World War I and

World War II and finding a higher vote share for the

Nazi party in towns where residents had engaged in

Jewish pogroms during the Black Death, 500 years

earlier); Volha Charnysh, Historical Legacies of Interethnic Competition; Anti-Semitism and the EU Referendum in Poland, 48 Compar. Pol. Stud. 1711, 1741

(2015) (noting that an anti-Jewish pogrom in 1941 predicts opposition to European Union accession in 2003,

during which political actors used anti-Semitic rhetoric in opposing EU membership).

Thus, explaining the current outcomes solely or primarily in terms of current circumstances is likely to

produce a “highly misleading” result—“a ‘snapshot’ explanation for what should be seen as a moving picture.” Pierson, 94 Amer. Pol. Sci. Rev. at 263. Instead,

the relevant analysis must identify the critical junctures that mark the start of distinct paths, ascertain

the path chosen at that point, identify the factors that

contribute to continuity along that path, and take

stock of any intervening forces that may have disrupted those mechanisms.

In this case, that analysis reveals that Alabama’s

history of discrimination in electoral opportunity

leaves it vulnerable to further discrimination in the

present and future.

B. Alabama’s Prior Commitment to Entrenched Racial Hierarchy Measurably Affects its Present-Day Political Culture.

Peer-reviewed research shows that Alabama’s history is an essential part of its political culture in the

present. In particular, the published work of amici

9

Professors Avidit Acharya, Matthew Blackwell, and

Maya Sen demonstrates that the concentration of enslaved persons in a given county in 1860 predicts negative racial and race-related political attitudes of

white citizens living in those counties today. 5 See

Avidit Acharya, Matthew Blackwell, & Maya Sen,

Deep Roots: How Slavery Still Shapes Southern Politics (Princeton Univ. Press, 2018) (hereinafter Deep

Roots) at 60–62. They conclude that the contemporary

correlation is in significant part explained by historical path dependence.

Emancipation was a clear “critical juncture” defining

the course of southern politics over the 20th and 21st

centuries. See Deep Roots at 128; C. Vann Woodward,

The Strange Career of Jim Crow 44 (1955) (hereinafter

Woodward) (describing “three alternative philosophies

of race relations” at emancipation, when “[t]here were

still real choices to be made”). That is because not only

were enslaved persons the backbone of the American

and southern export economies, but they were also the

South’s principal asset. Half of all wealth in the five

principal cotton states, including Alabama, consisted

of enslaved persons. Roger L. Ransom & Richard

Sutch, One Kind of Freedom: The Economic Consequences of Emancipation 52 (Cambridge Univ. Press,

2001). That means emancipation was a particularly

disruptive event—a defining moment of political and

5 Those attitudes include partisan affiliation—long connected

to perspectives on race relations in the South—opposition to affirmative action, and levels of racial resentment and hostility. 78

J. Pol. at 625 (describing construction of outcome variables measuring contemporary white political and racial attitudes). As the

share of the enslaved population in 1860 increases, the average

contemporary level of racial resentment rises, conservative party

affiliation increases, support for affirmative action decreases, and

the gap between how white citizens view other white citizens versus Black ones increases. Deep Roots at 61.

10

economic change that disrupted the old path and created the possibility of defining a new one. See Deep

Roots at 25–26, 128; see also W.E. Burghardt Du Bois,

Black Reconstruction 30 (1935).

Although Reconstruction offered a brief glimpse of

progress on racial equality, the South soon transitioned from slavery to other forms of racial hierarchy

in many aspects of social and political life. See Eric

Foner & Olivia Mahoney, America’s Reconstruction:

People and Politics After the Civil War 114 (1995) (noting that “most white Southerners” during Reconstruction “could not accept the idea of former slaves . . . enjoying equality before the law” because “[t]hey had always regarded blacks as an inferior race whose proper

place was as dependent laborers”); Woodward at 32

(“[T]he old heritage of slavery and the new and insecure heritage of legal equality were wholly incompatible as ideas.”).

This choice in Alabama was a response to incentives—white planters and businessmen depended on

cheap labor, other white citizens resented the loss of

superior legal and social status, and still others feared

that Black citizens would disrupt the balance of political power. Deep Roots at 129–130. While these incentives affected the whole South, they affected the Black

Belt counties most of all: “the more that the local white

elite had to lose as a result of a free, mobile, and politically active black labor force, the more intense was

their response to emancipation.” Id. at 130. Alabama

in particular was at the forefront of this response. Id.

at 129 (“For example, the former slaveholding bastions

within states like Alabama and Mississippi were also

those that most strongly supported enactments of regressive state constitutions; these early twentieth-century state constitutions codified many provisions that

11

would go on to form the bedrock of Southern Jim

Crow.”).

This entrenchment of racial hierarchy depended on

racist attitudes that were passed down through generations and persist today. The dynamic is observable

empirically. One statistical analysis of the expressed

racial preferences of Southern high school seniors and

their parents in 1965, 1973, 1982, and 1997 demonstrated significant intergenerational correlation in

racist attitudes. This correlation increased with the

number of enslaved persons in their county of residence in 1860. Id. at 167–69. Critically, this correlation was as strong in 1997 as it was in 1965, notwithstanding enactment of landmark civil rights legislation in the intervening years. Id. Similarly, another

statistical analysis differentiating contemporary

southern residents who grew up in the South from

those who later migrated there demonstrates a significantly higher incidence of negative racial attitudes

among those socialized in the South. Id. at 169–70.

Additionally, Southern institutions reinforced this

intergenerational transfer of attitudes. Segregation at

schools, in businesses, in means of transportation, and

in virtually all other settings, reinforced racial hierarchy by requiring its practice in everyday life. Id. at

178–80 (describing statistical analyses of the impact of

school segregation on racial attitudes, and finding increased negative racial attitudes today in counties

where segregation was highest in 1960). Worse, the

rate of natural attrition or decay of such attitudes is

slow and small. 6 As for intervening forces, the logic of

6 See Deep Roots at 40 (noting studies estimating that the observable effects of the 45-year Cold War would take two to four

decades to dissipate in Germany, and that the effect of the 400-

12

path dependence dictates that to be effective in altering the existing path of a political culture, such a force

must disrupt the mechanisms sustaining that path.

On that score, the foregoing analyses reveal an uncomfortable truth: while the reform efforts of the Civil

Rights Movement were effective at repressing certain

manifestations of negative racial attitudes, they were

not effective at fully uprooting the attitudes themselves. There is no debate that legal rulings, national

legislation, and popular organizing delegitimized and

undermined much institutional reinforcement of racial

hierarchy. See id. at 197–99, 201 (noting that differences between high-slave counties and low-slave counties within the South have become less pronounced as

measured in terms of educational outcomes, levels of

voter registration, and certain other indicators). But

the continued connection between contemporary negative racial attitudes and the earlier commitment to racial hierarchy strongly suggests that the reform efforts

associated with the Civil Rights Movement—the

South’s most recent critical juncture—did not fundamentally alter the path of political culture in the

Southern states, including in Alabama.

Alabama’s federal courts have independently

reached similar conclusions. See McGregor, 824 F.

Supp. 2d at 1347 (noting that “[t]o some extent, ‘things

have changed in the South’ . . . . Certain things, however, remain stubbornly the same” and that “Alabama

remains vulnerable to politicians setting an agenda

that exploits racial differences”) (citation omitted);

Harris v. Siegelman, 695 F. Supp. 517, 525–26 (M.D.

Ala. 1988) (noting that while harassment and intimidation were “much less frequent today than in the

year African slave trade continues to be felt 100 years after it

ended (and is hypothesized to take even longer to dissipate)).

13

past,” perpetrators “well know” that “even isolated recent instances of discrimination would quickly ripple

through the black community and frighten away black

voters,” and that “racially-inspired policies and law

continue to have their intended effects today”); MSA,

Vol. 1, 182–88 (describing recent evidence that Alabama’s contemporary political culture is shaped by its

racial history); People First of Ala. v. Merrill, 491 F.

Supp. 3d 1076, 1106–08 (N.D. Ala. 2020) (similar).

And Alabama’s legislature—almost exclusively Black

Democrats and white Republicans—also reflects its

path dependent political culture. Kim Chandler, Alabama elects first Black Republican to House in 140

years, Associated Press (July 13, 2021) https://apnews.com/article/government-and-politics-alabamaelection-2020-house-elections-df2ff75265ffc67482290

149f2f1a272 (“The political parties in the Alabama

Legislature are almost entirely divided along racial

lines . . . . The Alabama Senate and House each have

one white Democratic member.”). Certainly the interventions associated with the Civil Rights Movement

have not been effective at placing Alabama’s political

culture on a new path altogether.

II. ALABAMA’S HISTORY OF VOTING-RELATED

DISCRIMINATION MAKES IT AN UNRELIABLE GUARANTOR OF RACIAL EQUALITY IN

THE PRESENT.

“The essence of a § 2 claim is that a certain electoral

law, practice, or structure interacts with social and

historical conditions to cause an inequality in the opportunities enjoyed by [B]lack and white voters to elect

their preferred representatives.” Gingles, 478 U.S. at

47 (emphasis added). That essence is confirmed by the

1982 Senate Report this Court has often cited for its

analysis of §2 claims. Id. at 42–47 (citing S. Rep. No.

14

97-417 (1982)). 7 Amici submit that the empirical evidence of path-dependent processes deepens the significance of Congress’s and this Court’s analytical commitment to historical conditions and a “searching practical evaluation of the past and present reality” in § 2

cases. Id. at 45 (citing S. Rep. at 36).

That “searching practical evaluation” cannot be complete without consideration of empirical evidence

showing that Alabama’s history has deeply shaped its

present. The foregoing scholarship establishes that Alabama’s prior institutional commitments to racial hierarchy go to the heart of its contemporary political

culture. It also establishes that Alabama’s contemporary political culture is steeped in durable attitudes

consistent with belief in racial hierarchy. These attitudes are a prominent feature of Alabama’s political

landscape, and for that reason incentivize political and

strategic decisions that perpetuate Alabama’s prior

commitment to racial hierarchy.

The history and path dependence of attitudes carries

over into political behavior, with evidence showing

steep political polarization along racial lines that is

sharpest in the former slaveholding south—including

in Alabama. Deep Roots at 62–64.

Analysis of recent elections corroborates this conclusion—that is, white citizens seldom vote for non-white

7 League of United Latin Am. Citizens v. Perry, 548 U.S. 399,

426 (2006) (explaining that the Court has “referred to the Senate

Report” for its analysis of the “totality of circumstances” test under § 2); see also Brnovich v. Democratic Nat’l Comm., 141 S. Ct.

2321, 2332 (2021) (referring to the “oft-cited” 1982 Senate Report); id. at 2337 (recognizing Gingles’ reliance on the Report and

noting that the Court’s vote-dilution cases have largely followed

Gingles); but see id. (taking “a fresh look” at the Act’s text because

the Court was addressing its “first § 2 time, place or manner”

case).

15

candidates, whom Black citizens frequently prefer. See

MSA, Vol. 1, 69–73 (crediting expert statistical analysis that reveals the “clarity and starkness of the pattern of racially polarized voting” between Black and

white Alabamians). That is the case even after controlling for party, ideology, and a range of other considerations. For example, race remains a statistically significant predictor of vote choice for white citizens in

Alabama. See Charles Stewart III, Nathaniel Persily

& Stephen Ansolabehere, Regional Differences in Racial Polarization in the 2012 Presidential Election: Implications for the Constitutionality of Section 5 of the

Voting Rights Act, 126 Harv. L. Rev. F. 205, 206, 217

(2013).

Alabama’s slaveholding history is an important predictor of this deep racial polarization. For example,

higher slave prevalence in 1860 predicts lower 2008

non-Black vote share for President Obama in six

Southern states—including in Alabama. 8 Deep Roots

at 62–64 (“[F]or counties at the lowest levels of slavery,

Obama won about thirty percent of the nonblack vote,

while in those at the highest levels of slavery Obama

only won around ten percent of the nonblack vote.”).

That result—which the authors note may overestimate

the support of white voters, id. at 63—shows that prior

history of entrenched discrimination directly influences both negative racial attitudes and vote choices

that align with those attitudes.

This feature of the Alabama political landscape interacts with one of the principal interests at play in the

redistricting process—representatives’ desire to keep

their seats. Pet. Br. at 17, 55 (noting that incumbent

protection is a traditional redistricting principle). The

8 The six Southern states included in this analysis were selected based on the availability of quality data. Deep Roots at 62.

16

result is that white, non-minority preferred representatives and their allies have a perverse incentive to

draw or preserve districts that exclude Black citizens

in favor of white ones, because existing patterns make

white citizens more reliable voters for those white candidates. See Stewart, Persily & Ansolabehere, 126

Harv. L. Rev. F. at 209 (“[W]hen political preferences

fall along racial lines, the natural inclinations of incumbents and ruling parties to entrench themselves

have predictable racial effects. Under circumstances of

severe racial polarization . . . race-based discrimination becomes an efficient tool for incumbent protection

or partisan advantage.”). Put differently, white representatives who today seek to gain or keep seats have

the best chance when districts are drawn to maximize

the impact of white voters.

In Alabama, that means largely preserving the district maps already in place. And it means doing so despite changing demographics and increasing racial diversity throughout the state. America Counts Staff,

Alabama Population Grew 5.1% Since 2010, Surpassing 5 Million, U.S. Census Bureau, (Aug. 25,

2021), https://www.census.gov/library/stories/stateby-state/alabama-population-change-between-censusdecade.html (explaining that between 2010 and 2020:

(1) the diversity index in Alabama rose 5%; (2) the

number of counties with a diversity index of more than

55% tripled from four to thirteen; and (3) the population that identifies as Black or African American—

alone or in part—rose by 6.5%). As petitioners note,

“[f]or nearly 50 years, Alabama’s congressional districts have remained remarkably similar.” Pet. Br. at

9; see also Pet. Br. at 53 (noting that “enacted districts

17

reflect past districts”). 9 They have also always produced all-white congressional delegations during that

time—the only exception is District 7, where court intervention in 1992 resulted in the election of Alabama’s first Black congressman in nearly a century.

Pet. Br. at 9–12; see also Ronald Smothers, The 1992

Campaign: House Race; After 115 Years, a Black Will

Represent Alabama, N.Y. Times, May 23, 1992 (§ 1), at

8.

It follows that Alabama representatives’ incentives

make them unreliable guardians of equality in electoral opportunity. That is true regardless of the subjective beliefs of legislators themselves. The state is

“among the slowest to put away old habits,” Peyton

McCrary et al., Quiet Revolution in the South: The Impact of the Voting Rights Act, 1965–1990 39 (Davidson

& Grofman, eds., 1994) and remains predisposed to acquiesce in future exclusionary practices. See U.W.

Clemon & Bryan K. Fair, Making Bricks without

Straw: The NAACP Legal Defense Fund and the Development of Civil Rights Law in Alabama 1940–1980, 52

Ala. L. Rev. 1121, 1124 (2001) (“[r]acism is not simply

the work of a few random bad actors. It has been a

foundation of American life and will remain so.”). This

9 Notably, literacy requirements remained a live issue in Alabama in 1970. Letter from Jerrie Leonard, Assistant Attorney

General, Civil Rights Division, to MacDonald Gallion, Att’y General, Alabama (Mar. 13, 1970), https://www.justice.gov/crt/casedocument/file/1277176/download (noting that act requiring applicant for absentee registration to complete a written questionnaire

without assistance “impose[d] a literacy requirement.”). That fact

dovetails with the tremendous amount of racial discrimination

documented in the Alabama federal courts between 1965 and

1975, occurring in and beyond the political process. See Whitfield

v. Oliver, 399 F. Supp. 348, 355–57 (M.D. Ala. 1975) (noting and

summarizing dozens of cases). Amici personally litigated many of

these cases.

18

aspect of Alabama’s politics can only be mitigated

through sustained attention to the role of history in

shaping contemporary political attitudes and incentives. Cf. Woodward at 69 (“The South’s adoption of extreme racism was due not so much to a conversion as

it was to a relaxation of the opposition.”).

The foregoing analysis demonstrates that, where

path-dependent processes operate, evaluating the

causes and consequences of contemporary phenomena

requires a deep understanding of historical choices

and a focus on the links between those choices and present-day outcomes. The objectives of the Voting Rights

Act will be frustrated without continued attention to

the role history plays in structuring contemporary decision-making.

CONCLUSION

For these reasons, the Court should affirm the decision below.

Respectfully submitted,

NAOMI IGRA

SIDLEY AUSTIN LLP

555 California Street

Suite 200

San Francisco, CA 94104

JEFFREY T. GREEN*

MARISA WEST

CHIKE CROSLIN

SIDLEY AUSTIN LLP

1501 K Street NW

Washington, D.C. 20005

(202) 736-8000

jgreen@sidley.com

Counsel for Amici Curiae

July 18, 2022

*Counsel of Record