Reply Brief — Wes Allen, Alabama Secretary of State, et al., Petitioners v. Marcus Caster, et al.

No. 21-1087

(No. 21A376)

In the Supreme Court of the United States

──────────────────────────

JOHN H. MERRILL,

IN HIS OFFICIAL CAPACITY AS THE

ALABAMA SECRETARY OF STATE, et al.,

Applicants,

v.

MARCUS CASTER, et al.,

Respondents.

──────────────────────────

REPLY IN SUPPORT OF EMERGENCY

APPLICATION FOR ADMINISTRATIVE STAY,

STAY OR INJUNCTIVE RELIEF PENDING

APPEAL, AND ALTERNATIVE PETITION FOR

WRIT OF CERTIORARI BEFORE JUDGMENT

──────────────────────────

Dorman Walker

BALCH & BINGHAM LLP

105 Tallapoosa St., Ste. 200

P.O. Box 78 (36101)

Montgomery, AL 36104

(334) 269-3138

DWalker@Balch.com

Jeffrey M. Harris

Taylor A.R. Meehan

CONSOVOY MCCARTHY PLLC

1600 Wilson Blvd., Ste. 700

Arlington, VA 22209

(703) 243-9423

Jeff@ConsovoyMcCarthy.com

Steve Marshall

Attorney General

Edmund G. LaCour Jr.

Counsel of Record

A. Barrett Bowdre

Thomas A. Wilson

James W. Davis

Misty S. Fairbanks Messick

Brenton M. Smith

A. Reid Harris

Benjamin M. Seiss

OFFICE OF THE ATTORNEY GENERAL

STATE OF ALABAMA

501 Washington Avenue

Montgomery, AL 36130-0152

(334) 242-7300

Edmund.LaCour@AlabamaAG.gov

Counsel for Applicants

i

TABLE OF CONTENTS

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

REPLY .........................................................................1

I.

This Court Is Likely to Grant the Petition

for Writ of Certiorari Before Judgment

and Ultimately Reverse the Preliminary

Injunction........................................................3

A. Certiorari before judgment is proper. .....3

B. The district court’s error is legal, not

factual. ......................................................4

C. To state a Section 2 claim, nothing

requires a Plaintiff to prioritize race

on purpose when drawing proposed

remedial districts. ....................................6

D. To establish vote dilution, plans must

be neutrally drawn, or Section 2 is

unconstitutional as applied to singlemember districts. ................................... 11

E. Plaintiffs cannot transform the

court’s legal error into a factual one...... 15

F. Plaintiffs have no answer for the

millions of race-neutral maps, so they

tell this Court to disregard them ........... 25

II. The Equities Warrant A Stay. ..................... 30

Conclusion ................................................................. 32

ii

TABLE OF AUTHORITIES

Cases

Abbott v. Perez,

138 S. Ct. 2305 (2018) ................................. 5, 6, 13

Ala. Legis. Black Caucus v. Alabama,

575 U.S. 254 (2015) ......................................... 6, 13

Bartlett v. Strickland,

556 U.S. 1 (2009) ...................................................3

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

137 S. Ct. 788 (2017) ................................. 5, 10, 11

Brnovich v. Democratic Nat’l Comm.,

141 S. Ct. 2321 (2021) ......................... 3, 13, 14, 21

Colleton Cnty. Council v. McConnell,

201 F. Supp. 2d 618 (D.S.C. 2002) ..................... 23

Cooper v. Harris,

137 S. Ct. 1455 (2017) ................................. passim

Gamble v. United States,

139 S. Ct. 1960 (2019) ...........................................5

Gonzalez v. City of Aurora,

535 F.3d 594 (7th Cir. 2008) ........................... 7, 12

Harris v. McCrory,

159 F. Supp. 3d 600 (M.D.N.C. 2016) ............ 8, 11

Holder v. Hall,

512 U.S. 874 (1994) ............................................. 14

Johnson v. DeGrandy,

512 U.S. 997 (1994) ............................................. 29

Karcher v. Daggett,

462 U.S. 725 (1983) ............................................. 20

iii

League of United Latin Am. Citizens v. Perry,

548 U.S. 399 (2006) ....................................... 21, 25

Miller v. Johnson,

515 U.S. 900 (1995) ............................................. 13

Reynolds v. Sims,

377 U.S. 533 (1964) ............................................. 32

Rucho v. Common Cause,

139 S. Ct. 2484 (2019) ...........................................1

Shaw v. Hunt,

517 U.S. 899 (1996) ................................... 1, 10, 13

Shaw v. Reno,

509 U.S. 630 (1993) ............................................. 14

Thornburg v. Gingles,

478 U.S. 30 (1986) ......................................... 5, 6, 9

Wesch v. Hunt,

785 F. Supp. 1491 (S.D. Ala. 1992) .................... 23

Statutes

52 U.S.C. §20302(a)(8)(A).......................................... 31

52 U.S.C. §10301(a) ................................................... 12

Other Authorities

Arthur R. Miller, Copyright Protection for

Computer Programs, Databases and

Computer-Generated Works: Is Anything New

Since CONTU?, 106 Harv. L. Rev. 977 (1993) ... 29

1

REPLY

Imagine the Alabama Legislature had enlisted an

expert to help it determine what Section 2 of the Voting Rights Act required and what the Constitution

prohibited. Imagine further that the expert used advanced computing technology to generate millions of

possible plans, without considering race. The expert

even generated possible plans from scratch, without

regard to existing district lines, to give the Legislature

the full range of neutrally drawn possibilities. Not one

of the millions of plans contained two majority-black

districts. But the Legislature drew two majority-black

districts anyway—an “out-out-outlier” among the millions of randomly drawn maps. Rucho v. Common

Cause, 139 S. Ct. 2484, 2518 (2019) (Kagan, J., dissenting).

The only inference to be drawn from these hypothetical facts would be that Alabama’s black population could not be placed into two “reasonably configured” majority-minority congressional districts.

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

the Legislature’s hypothetical choice to create two majority-black districts anyway would be the strongest

circumstantial evidence that race was—unconstitutionally—“the criterion that … could not be compromised.” Shaw v. Hunt (“Shaw II”), 517 U.S. 899, 907

(1996).

Now consider what actually happened here. Section 2 plaintiffs admit that it is hard to draw two majority-black districts in Alabama, so they must be

drawn on purpose by making race a non-negotiable redistricting criterion. Plaintiffs propose eleven

2

illustrative plans, every one of which creates two majority-black districts in exactly the same way: Eliminate a Mobile-anchored district that has existed for

decades and split Gulf-area residents along racial

lines, connecting black voters in urban Mobile with

black voters in rural counties stretching more than

200 miles to the east.

According to the court below, the Section 2 plaintiffs’ eleven illustrative plans (and the State’s hypothetical “out-out-outlier” plan) are what the Voting

Rights Act requires. As for the millions of race-neutral

maps with only one majority-black district, they

would all be Voting Rights Act violations. Without a

second majority-black district, elections are not

“equally open” to black voters, according to the court.

Sure, it might be “hard”—if not impossible—“to draw

two majority-black districts by” observing only raceneutral districting criteria, but that just “shows the

importance” of prioritizing race “on purpose.” App.375

(Tr. 685:23-25). If the Voting Rights Act makes race a

“nonnegotiable” criterion in redistricting, so be it, reasoned the court. App.69, 223. Or as Plaintiffs say, it’s

no problem for a plan to prioritize race at step one so

long as it is ultimately “consistent with” traditional

districting criteria. See, e.g., Caster Resp. 16, 23.

A stay, and ultimately reversal, of the district

court’s order is necessary. Section 2 does not permit—

let alone require—that race be prioritized at step one

in redistricting. A Section 2 plaintiff cannot presume

the answer to the Section 2 question by showing two

majority-black districts could be drawn so long as one

prioritizes race above traditional districting principles. A Section 2 plaintiff must show that two

3

majority-black districts could be neutrally drawn. Indeed, it is inconceivable that a Section 2 plaintiff’s proposed district could be deemed “reasonably configured” if it could not be neutrally drawn using only traditional districting principles. Cooper, 137 S. Ct. at

1470. Section 2’s touchstone is equal opportunity for

minority voters, not the sort of race-prioritized “electoral advantage” demanded by the backwards approach here. See Bartlett v. Strickland, 556 U.S. 1, 20

(2009). The same VRA that “does not deprive the

States of their authority to establish non-discriminatory voting rules,” Brnovich v. Democratic Nat’l

Comm., 141 S. Ct. 2321, 2343 (2021), does not require

States to draw discriminatory district lines.

Nevertheless, the district court presses on. With

less than two months to go before absentee voting begins (and critical deadlines before that), the court has

begun the process of retaining a special master and a

map drawer to create new districts that will divide Alabamians by race. Each day the order remains in effect creates more confusion for voters, candidates, and

the election officials trying to ensure a fair and orderly

election. The Court should immediately stay the district court’s order, consider these redistricting appeals

on the merits, and reverse.

I. This Court Is Likely to Grant the Petition for

Writ of Certiorari Before Judgment and Ultimately Reverse the Preliminary Injunction.

A. Certiorari before judgment is proper.

The Caster Plaintiffs agree that “[i]ssuing a writ of

certiorari before judgment in this case would prevent

the prospect of two disjointed appeals from the same

4

order based on the same record.” Resp. 13 n.2. The

Caster and Milligan cases are identical twins, separated at appeal. Hearing them together is appropriate.

B. The district court’s error is legal, not factual.

1. This Court can issue a stay based on the lower

court’s fundamental legal error. Whatever factual errors the court below made,1 they are well downstream

of the court’s fundamental error of law. The district

court interpreted Section 2 in a way that will require

legislatures to first “prioritize[] race” and—only

“[a]fter that”—apply race-neutral traditional districting principles. App.69, 223; see also App.166, 168 (experts “prioritized race only to the extent necessary to

answer the essential question [of whether it is …] possible to draw a second, reasonably compact majorityBlack district,” and “did not prioritize it to any greater

extent”). The court endorsed a map-drawing process

in which Plaintiffs considered traditional districting

criteria only “after” two districts hit a target of 50-percent black voting-age population. App.270; App. 274

(“As soon as [Plaintiffs] determined the answer to

[whether BVAP exceeded 50 percent in their proposed

majority-minority district], they assigned greater

weight to other traditional redistricting criteria.”).

1 To be sure, the State believes the district court clearly erred

in several of its factual determinations, any of which could be

further briefed on the merits. But the focus of the State’s stay

motion—aside from whether the court should have entered an

injunction on the eve of an election—is the district court’s fundamental misunderstanding of Section 2.

5

The court’s misconception of Section 2 contravenes

this Court’s precedents and the Constitution.2

Plaintiffs believe that the district court’s error is

reviewed only for clear error. Caster Resp. 14-15; see

also Milligan Resp. 18. They are wrong. Cf. Gamble v.

United States, 139 S. Ct. 1960, 1988 (2019) (Thomas,

J., concurring) (“Calls for such deference grow loudest

when the decision ‘at issue is least defensible.’”).

While a court’s “finding of vote dilution” gets deference, legal errors do not. Thornburg v. Gingles, 478

U.S. 30, 79 (1986) (emphasis added). Nothing “inhibits” this Court from “correct[ing] errors of law.” Id. Legal errors that “infect a so-called mixed finding of law

and fact” and even factfindings “predicated on a misunderstanding of the governing rule of law” are reversible without deference to the district court. Id. at

79 (internal quotation marks omitted); see also, e.g.,

Abbott v. Perez, 138 S. Ct. 2305, 2326 (2018) (“While a

district court’s finding of fact on the question of discriminatory intent is reviewed for clear error, whether

the court applied the correct burden of proof is a question subject to plenary review.”); Bethune-Hill v. Va.

State Bd. of Elections, 137 S. Ct. 788, 797 (2017) (considering whether “the District Court misapplied

2 The Caster Plaintiffs’ description of the error is not quite

right. They describe the State as contesting that Plaintiffs “intentionally sought to draw an illustrative district that contained

the requisite ‘large and geographically compact’ minority group

rather than stumbling into that showing by accident.” Caster

Resp. 2. The error has nothing to do with what Plaintiffs intended. Of course, Plaintiffs intended to state a Section 2 claim.

The error is what Plaintiffs had to make “non-negotiable” (race),

and what other criteria had “to yield” (race-neutral criteria), in

attempting to state their claim. App.223, 274.

6

controlling law”); Ala. Legis. Black Caucus v. Alabama, 575 U.S. 254, 262 (2015) (“[E]ach of these determinations reflects an error about relevant law[,

a]nd each error likely affected the District Court’s conclusions ….”).

Applied here, the district court misunderstood the

governing law and, consequently, misapplied Section

2. That is legal error, deference to which would “endanger[] the rule of law.” Gingles, 478 U.S. at 79. Of

course, this Court has the power to correct such errors—as well as any fact findings based on them—by

applying “plenary review.” Abbott, 138 S. Ct. at 2326.

C. To state a Section 2 claim, nothing requires a Plaintiff to prioritize race on

purpose when drawing proposed remedial districts.

The district court’s invalidation of Alabama’s congressional districts was premised on a legal error: that

the Voting Rights Act requires the creation of districts

that would not otherwise be neutrally drawn. The

court declared that Section 2 can’t mean that litigants

must “set about drawing illustrative remedial plans

using only race-neutral districting principles and

hope to happen upon a plan that includes an additional majority-minority district.” App.278; see also

Caster Resp. 18-19 (“The first Gingles precondition

does not require Plaintiffs’ experts to blindly stumble

around Alabama’s map, hoping they might just happen to run into a new majority-Black district.”); Milligan Resp. 7 (“Nothing in this Court’s precedents requires plaintiffs’ experts to undertake the Gingles 1

inquiry in a race-blind manner.”); but see Gonzalez v.

7

City of Aurora, 535 F.3d 594, 598-600 (7th Cir. 2008)

(Easterbrook, C.J.) (articulating the opposite rule).

But a plaintiff cannot establish that a potential district can be “reasonably configured” for purposes of

Gingles’s first precondition, Cooper, 137 S. Ct. at 1470,

if the district cannot be drawn without prioritizing

race first while other criteria “yield.” See Stay Application 20-32; see, e.g., infra, Part I.E (listing examples

of ways in which Plaintiffs’ experts explained they prioritized race first at the expense of other criteria

here). The whole point of the Gingles analysis is for

plaintiffs to prove that race must be prioritized, not to

assume as much from the start.

1. Plaintiffs repeat that error here. They contend

that they “satisfied the first Gingles precondition by

showing that it is possible to draw an additional majority-Black district in Alabama consistent with traditional districting principles,” Caster Resp. 2, even if

they had to prioritize race. They assert that it cannot

be the case that “illustrative plans that considered

race cannot satisfy the first Gingles precondition.”

Caster Resp. 16; see Milligan Resp. 32. But Plaintiffs

did not merely “consider race.” They made race nonnegotiable, requiring other race-neutral factors “to

yield.” App.223-24. As millions of simulations showed,

their illustrative plans would not have been neutrally

drawn and were not neutrally drawn. See infra, Part

I.E.

Plaintiffs cannot pretend it’s all okay because their

proposals—which prioritized race “on purpose” so as

not to resemble the millions of neutrally drawn

maps—are still “consistent with” traditional redistricting criteria. Caster Resp.16, 23. Elsewhere, they

8

argue they can’t be said to have “prioritized race” because their plans comport with traditional criteria.

Milligan Resp. 4, 27-28. By that logic, if a public college categorically excludes all applicants of one race

at step one, it’s all okay so long as the admissions office later abides by race-neutral criteria such as

grades or test scores for those who make it to step two.

Even if the college rejects the first two million applicants based on race alone, that race-based exclusion

would be okay under Plaintiffs’ theory because the applicants who ultimately receive admissions offers

have grades or test scores “consistent with” the college’s race-neutral admissions standards. According

to Plaintiffs’ logic, all that is required for race not to

have “predominated” is that the resulting admittees

don’t “offend” any of the school’s race-neutral standards. Caster Resp. 30. Such mental gymnastics offends both the Constitution and the English language.

If, as here, a racial “quota operated as a filter through

which all line-drawing decisions had to pass,” then as

a matter of law and language, race “predominates.”

Harris v. McCrory, 159 F. Supp. 3d 600, 612

(M.D.N.C. 2016), aff’d sub nom. Cooper v. Harris, 137

S. Ct. 1455 (2017).

2. Separately, Plaintiffs contend that the district

court’s error is essentially unreviewable because “the

record forecloses a finding that race predominated in

the plaintiffs’ preparation of their illustrative remedial plans.” App.278 (emphasis added). The court

stated that it “found” race did not “predominate” because Plaintiffs’ experts were not overly concerned

with race after they hit their racial targets of two majority-black districts: “Beyond ensuring crossing that

9

50 percent line, there was no further consideration of

race in choosing blocks within the split [voting tabulation districts].” App.70, 269-71 (alteration in original); App.336-37 (Tr. 577:16-20) (“[A]fter … what I

took to be nonnegotiable principles of population balance and seeking two majority-black districts, after

that, I took contiguity as a requirement and compactness….” (emphasis added)). The court added that it

found testimony that experts “focused on race only to

the extent that was necessary to be sure that [they]

maintained two districts with [BVAP] of greater than

50%” to be “highly credible.” App.270. But it is this

finding and this testimony, “highly credible” or not,

that betrays the court’s legal error.

This is a textbook example of legal error infecting

all the subsequent findings of fact. See Gingles, 478

U.S. at 79. The court’s self-described fact findings

about predominance (and likewise its findings about

the subversion of traditional redistricting criteria to

race) are “predicated on a misunderstanding of the

governing rule of law.” Id. The court’s re-definition of

the relevant legal standards infected every aspect of

its preliminary injunction.

Specifically, the Court must correct the district

court’s mistaken belief that a Legislature can (and

must) “prioritize[]” race and only “after that” consider

other criteria, all while being careful not to allow race

to unconstitutionally “predominate.” See, e.g.,

App.223-24, 259-60. In the district court’s view, race

must be the animating factor in redistricting just

enough (but not too much). According to the court,

Plaintiffs’ experts struck that balance: Making race

“nonnegotiable” at the beginning was not so bad; after

10

all, they eventually considered race-neutral factors

(after they hit their race-based target of two majorityblack districts). App.69-70 (“I did sometimes look at

race of those blocks, but really, only to make sure that

I was creating two districts over 50 percent.”). Because they could have prioritized race more—but

didn’t—that step-one prioritization of race was forgivable, in the court’s view. See, e.g., App.223-24 (erroneously suggesting that an expert would “maximize the

number of majority-Black districts, or the BVAP in

any particular majority-Black district…if race were

her predominant consideration”); see Caster Resp. 20.

The district court’s re-definition of “predominance”

is legally indefensible. This is not a case where a map

drawer was merely “conscious of race.” Id. at 29. This

is the case where race made all the difference; it was

necessarily the “non-negotiable” factor. That is “predominance,” as this Court said in Shaw II and again

in Bethune-Hill: “Race may predominate even when a

reapportionment plan respects traditional principles

… if ‘[r]ace was the criterion that … could not be compromised,’ and race-neutral considerations ‘came into

play only after the race-based decision had been

made.’” Bethune-Hill, 137 S. Ct. at 798 (quoting Shaw

II, 517 U.S. at 907) (emphasis added). For a plaintiff

to state an Equal Protection claim against a State’s

redistricting plan, that plan need not even “conflict”

with traditional redistricting criteria for race to predominate; it need only “depart” or “deviate” from those

neutral principles. Id. at 799.

Applying this Court’s legal standards, this is the

easy case. It necessarily follows from Shaw II and Bethune-Hill that where, as here, proposed plans would

11

not have been neutrally drawn, then the district court

has required a new congressional map that the Alabama Legislature could not have drawn in the first instance. This case does not require the Court to decide

the precise amount of racial consideration Section 2

permits; it is enough that race was admittedly the criterion that “could not be compromised” in the creation

of redistricting plans with two majority-black districts

in Alabama and that race-neutral considerations

therefore had to “yield.” Bethune-Hill, 137 S. Ct. at

798; App.223 (describing Plaintiffs as not allowing “a

minimum level of compliance” with the criterion to

create two majority-black districts “to yield to other

considerations”); see also Harris, 159 F. Supp. 3d at

612 (describing racial “quota operat[ing] as a filter

through which all line-drawing decisions had to

pass”). Plaintiffs said so themselves. See infra, Part

I.E. And if that is so, then the VRA cannot constitutionally require such districts.

D. To establish vote dilution, plans must be

neutrally drawn, or Section 2 is unconstitutional as applied to single-member districts.

1. Plaintiffs still have no answer to the fundamental problem in their case: There wasn’t just “some consideration of race,” in Plaintiffs’ words. Caster Resp.

17. To produce maps with two majority-black districts,

Plaintiffs had to (“on purpose”) make race the primary, non-negotiable criterion, meaning other raceneutral criteria had “to yield.” App.223-24. That alone

is evidence that Plaintiffs’ vote dilution claims fail. Alabama’s population is not sufficiently numerous or

12

compact to create a neutrally drawn second majorityblack district.

As then-Chief Judge Easterbrook explained in

Gonzalez, the proper baseline for determining vote dilution is a “neutrally” drawn plan. This Court has

never permitted litigants to use Section 2 to justify

“transparent gerrymandering that boosts one group’s

chances at the expense of another,” 535 F.3d at 598,

especially before the Gingles preconditions have even

been met. Section 2, consistent with the Equal Protection Clause, must correct racial gerrymanders, not impose them. See 52 U.S.C. §10301(a) (prohibiting the

“denial or abridgement of the right of any citizen of

the United States to vote on account of race or color”).

2. If Plaintiffs are right that to state a Section 2

claim they must be permitted to prioritize race first

and cause race-neutral criteria to yield, then Section

2 as conceived in Gingles is unconstitutional.3

For this argument, the Caster Plaintiffs fault the

State for relying on racial gerrymandering cases.

Resp. 18. They fail to appreciate that however this

Court interprets Section 2, it must be consistent with

the constitutional limitations on State Legislatures. It

3 Plaintiffs wrongly suggest that the State’s arguments are

limited to Gingles I. Caster Resp. 26-27; Milligan Resp. 19. As is

clear from the State’s stay application, the State’s arguments are

three-fold: First, Gingles I cannot possibly permit what Plaintiffs

did here. Stay Application 21-32. Even if Gingles I permitted it,

the statute’s instruction to consider the “totality of the circumstances” cannot possibly permit what Plaintiffs did here. Id. at

32-33. And even if either Gingles I or the statutory text permitted

it, the Constitution cannot possibly permit what Plaintiffs did

here. Id. at 33-40.

13

cannot be that Section 2 requires something that this

Court has previously declared unconstitutional when

done by a State Legislature. If that were so, then legislatures could never simultaneously comply with

both Section 2 and the Equal Protection Clause in the

normal legislative process; they would always become

subject to suit, and then have their districts redrawn

at the direction of a district court. But see Brnovich,

141 S. Ct. at 2341 (rejecting test that would “transfer

much of the authority to regulate [districting] from

the States to the federal courts”).4

3. Finally, contrary to Plaintiffs’ arguments, of

course there are competing plausible interpretations

4 Plaintiffs surmise that the State’s racial gerrymander can

always be forgiven by VRA compliance because this Court has

“long assumed that complying with the VRA is a compelling interest.” Cooper, 137 S. Ct. at 1469; see Caster Resp. 34-35. Plaintiffs blind themselves to reality. With increasing frequency,

States’ attempts to navigate the labyrinth of VRA compliance are

rejected as unconstitutional. See, e.g., Cooper, 137 S. Ct. at 1468

(racial gerrymander where Senators “repeatedly told their colleagues that District 1 had to be majority-minority, so as to comply with the VRA”); Abbott, 138 S. Ct. at 2334 (racial gerrymander despite Texas arguing it had “good reasons to believe” racial

manipulation was necessary to satisfy Section 2) (internal quotation marks omitted); Ala. Legis. Black Caucus, 575 U.S. at 277

(racial gerrymander where Alabama’s interpretation of VRA was

too “mechanical”); Shaw II, 517 U.S. at 911 (racial gerrymander

because VRA did not actually require additional majority-minority district, and that new district “as drawn, [was] not a remedy

narrowly tailored to the State’s professed interest in avoiding

[Section] 2 liability”); Miller v. Johnson, 515 U.S. 900, 921 (1995)

(racial gerrymander because “compliance with federal antidiscrimination laws cannot justify race-based districting where the

challenged district was not reasonably necessary under a constitutional reading and application of those laws”).

14

of Section 2. Caster Resp. 27-28.5 Following Gingles, a

Plaintiff can claim elections are not “equally open” if

the Legislature could increase the number of majority-minority districts after meeting various preconditions. Others have questioned whether that is what

“equally open” means. See Holder v. Hall, 512 U.S.

874, 893 (1994) (Thomas, J., concurring in judgment);

see also Brnovich, 141 S. Ct. at 2341. So at best, there

is an ambiguity in the statute. At worst, the statute

has been distorted beyond any possible meaning. Either way, the decision by the court below cannot constitutionally hold. There is no better indication that

elections are “equally open” to all Alabamians when

the number of black-majority districts in Alabama’s

current congressional plan matches or exceeds the

number of black-majority districts in millions of neutrally drawn simulations.

*

*

*

To be sure, a map drawer may be “aware” of race.

Shaw v. Reno (“Shaw I”), 509 U.S. 630, 646 (1993).

And a Section 2 plaintiff will necessarily be “aware”

that its proposed remedial districts exceed 50% BVAP.

But “awareness” of a district’s composition is not synonymous with prioritization of race as a non-negotiable principle. By making race non-negotiable from the

start, Plaintiffs guaranteed that traditional

Moreover, Plaintiffs’ assertion that “not once during the

proceedings below did Alabama identify a ‘plausible interpretation’ of Section 2 that it wanted the district court to adopt” is

simply not true. Caster Resp. 28. In the opening pages of their

post-trial briefing (among other places), the State set out for the

district court the interpretation it advocates here. See Caster v.

Merrill, No. 2:21-cv-1536, ECF 96 at 7-9.

5

15

districting principles would “yield” to race. App.22324. They presumed the answer to the Gingles inquiry.

The district court’s endorsement of that approach is

reversible legal error.

E. Plaintiffs cannot transform the court’s

legal error into a factual one.

1. Plaintiffs are also now running away from basic

facts that the district court already accepted. The Milligan Plaintiffs repeatedly assert that statements that

they “prioritized race” are “false.” Resp. 19; see id. at

1, 26. But the district court literally said they “prioritized race,” going on to conclude that it was okay for

Plaintiffs to make race nonnegotiable “on purpose” to

state their VRA claim, and only “[a]fter that” consider

traditional criteria. See Stay Application 20 n.9 (quoting every time the district court described Plaintiffs’

experts as prioritizing race); App.69; App.336-37 (Tr.

577:17-20); App.375 (Tr. 685:23-25). The Milligan

Plaintiffs’ claim is particularly baffling considering

that they directly quote one of the several instances in

which the district court referred to them as “prioritiz[ing] race.” Resp. 29 (“As the panel explained, the

experts ‘prioritized race only as necessary.’”). That

Plaintiffs prioritized race is not in dispute because

Plaintiffs themselves (and the court) established it.6

Plaintiffs’ real disagreement is whether they prioritized

race just enough versus too much. Echoing the district court, they

say they didn’t “prioritize[] race” because they could have prioritized race more or because they did not “prioritize[] race above

everything else.” Caster Resp. 19-20; Milligan Resp. 5. For the

reasons already explained, such an approach to the VRA—if the

6

16

First, Plaintiffs established what a likely redistricting plan would look like had race not been a nonnegotiable target:

•

The Milligan Plaintiffs’ expert, Dr. Moon

Duchin, testified that she “generated 2 million districting plans for Alabama, which I

think we’ll agree is quite a few. And we

found some with one majority-black district,

but never found a second with a majorityblack district in 2 million attempts. But,

again, that’s without taking race into account in any way in the generation process.”

App.372 (Tr. 682:3-14).7

•

Dr. Duchin described her 2 million maps

study as “showing that it is hard to draw two

majority-black districts by accident,” adding

VRA is to stay within the Constitution’s guardrails—is unadministrable and inconsistent with this Court’s precedents. Stay Application 30-32.

7 Tellingly, the Milligan Plaintiffs now object that the two

million “simulated maps are not a part of the record.” Resp. 2930. Plaintiffs cannot erase Dr. Duchin’s own testimony about her

personal observations of her two million simulations from the

record. It is plain as day: in two million attempts, “never” was

there a plan with two majority-black districts. See App.371 (Tr.

682:3-14) (responding to question whether she ran “the algorithm without [a] strong preference for two-majority-black districts” by stating: “In fact, I have a publication where I do that in

Alabama. And in that paper, we generated 2 million districting

plans for Alabama, which I think we’ll agree is quite a few. And

we found some with one majority-black district, but never found

a second with a majority-black district in 2 million attempts. But,

again, that’s without taking race into account in any way in the

generation process.”).

17

that “shows the importance of doing so on

purpose.” App.375 (Tr. 685:23-25).

•

Another of the Milligan Plaintiffs’ experts,

Dr. Kosuke Imai, generated 30,000 possible

redistricting plans for Alabama, unconstrained by Alabama’s existing district

lines. He found none with two naturally occurring majority-black districts. App.304

(Tr. 268:23-269:6).8

•

Dr. Imai also found that a drawn-fromscratch, race-blind plan with even one majority-black district would be an outlier. Milligan v. Merrill, 2:21-cv-1530, ECF 88-1 at

10, Fig.1; see also Tr. 232:25-233:25. Indeed,

Dr. Imai agreed that if two districts were

drawn with black voting-age population percentages of 50.01%, he would “conclude that

race predominated in their drawing” based

8 The Milligan Plaintiffs state that this expert’s simulations

were “designed to assess the role of race in the State’s Plan.”

Resp. 31. As was extensively briefed in the court below, the simulations did not simulate the Legislature’s map-drawing process

because they started from a blank slate while the Legislature indisputably started with existing district lines, as most States do.

See Tr. 291:1-14. Having failed to consider the criteria that the

Legislature considered, the simulations told the district court

nothing about the Legislature’s intent for purposes of an Equal

Protection Clause claim. They do, however, say much about

Plaintiffs’ illustrative plans because their plans—like the 30,000

simulations—cast aside existing district lines. To paraphrase the

Milligan Plaintiffs, Dr. Imai’s results “alone shows that [Plaintiffs’ illustrative plans] used race as a predominant factor.” Milligan v. Merrill, 21-cv-1530, ECF 69 at 27.

18

on the set of criteria considered by his raceblind simulations. Tr. 236:14-18.

•

One of the lead plaintiffs, Mr. Milligan, testified that he is the Executive Director of a

voting rights group called Alabama Forward. Tr. 127:5-7. Before Alabama passed

its 2021 plan, his team, with training in

map-making, worked on possible plans using professional mapping software, Maptitude. Tr. 133:1-4. And yet when they tried to

draw a map with two majority-black districts, they “weren’t able to do so successfully.” Tr. 133:6-7.

Second, Plaintiffs explained how they therefore

had to consider race first to hit their target of two

black-majority districts; traditional criteria were necessarily considered second:

•

Describing her approach, Dr. Duchin stated,

“[A]fter … what I took to be nonnegotiable

principles of population balance and seeking

two majority-black districts, after that, I

took contiguity as a requirement and compactness as paramount.” App.336-37 (Tr.

577:17-20) (emphasis added).

•

Describing her approach, Dr. Duchin stated,

“I took, for example, county integrity to take

precedence over the level of BVAP once that

level was past 50 percent.” App.338

(Tr.577:20-23) (emphasis added).

•

When Dr. Duchin was asked whether “an

express goal of [hers was] to keep the Black

19

Belt counties in majority-black districts to

the extent she could.” Answer: “Yes.” Then

when asked whether that was “part of the

reason why [her] compactness scores for CD

1 and CD 2 were lower”? Answer: “That’s

right.” App.360 (Tr. 664:17-24).

•

When Dr. Duchin was asked whether she

split small voting districts (known as

“VTDs” or “precincts”) on the basis of race?

Answer: “I did sometimes look at race of

those blocks, but really, only to make sure

that I was creating two districts over 50

percent. Beyond ensuring crossing that 50

percent line, there was no further

consideration of race in choosing blocks

within the split VTDs.” App.332 (Tr.

573:3:8) (emphasis added).

•

When Dr. Duchin was asked whether it

would be “fair to say that the principle of

splitting fewer counties was subordinated to

the principle of getting two majority-black

districts in Alabama?” Answer: “It’s true

that I regard the federal requirements of

population balance and minority electoral

opportunity to be nonnegotiable and, therefore, higher ranked.” Tr. 635:1-6 (emphasis

added).

•

When Dr. Duchin was asked whether she

thought “one reason that there are nine

splits in counties in [her] plan as opposed to

six splits in counties [in the enacted plan] …

was because of the weight [she] gave to the

20

criteria of ensuring two majority-black congressional districts?” Answer: “There’s no

question. And I have consistently acknowledged that I took minority electoral opportunity to be a nonnegotiable principle

sought in these plans.” App.352 (Tr. 647:1220) (emphasis added).

•

When Dr. Duchin was asked whether she

considered looking at Alabama’s “core retention score[s]” (i.e., what portion of an existing district is retained in a new district) “to

get a sense of what might reasonably be considered to be core retention?” Answer: “I did

not …. I would not be able to achieve corresponding statistics while creating a second

majority-black district.” Tr. 694:19-695:1.9

9 The district court concluded that the Legislature’s race-neu-

tral concern for core retention ought to be discarded because

“core disruption … is to be expected” when one draws a second

majority-minority district and States could be unfairly “immuniz[ed]” from Section 2 liability so long as they have a

“longstanding, well-established map.” App.191. The court ignored that core retention is a well-established traditional redistricting criterion. See, e.g., Karcher v. Daggett, 462 U.S. 725, 740

(1983) (recognizing that “preserving the cores of prior districts”

is a legitimate state interest); Cooper, 137 S. Ct. at 1492 (Alito,

J., concurring in part) (“When a new census requires redistricting, it is common practice to start with the plan used in the prior

map and to change the boundaries of the prior districts,” thereby

“minimiz[ing] the risk that the new plan will be overturned”).

The court also ignored that Plaintiffs’ expert stated she could

have considered core retention to some degree, yet inexplicably

chose to abandon it wholesale. Tr. 672:3-16. A plan with a “long

pedigree” like Alabama’s should not be presumed unlawful and

21

•

When the Caster Plaintiffs’ expert, Mr. Bill

Cooper, was asked about splitting Mobile

County and whether there was a way to

draw a map with equal population and two

majority-minority districts “without splitting Mobile County?” Answer: “[T]rue, no

way. More problematic. Maybe there would

be a way, but you would also have to split

other counties. So I think this is the best

compromise. Split Mobile County.” Tr.

494:19-495:1.

•

As summarized by the district court, the

Milligan and Caster Plaintiffs’ experts

“carefully considered traditional redistricting criteria when [they] drew their illustrative plans. [They] were candid that [they]

prioritized race only to the extent necessary

to answer the essential question asked of

[them] as a Gingles I expert (‘Is it possible

to draw a second, reasonably compact majority-Black district?’), and clearly explained, with concrete examples, that [they]

did not prioritize it to any greater extent.”

App.166; see also App.168.

•

According to the district court, Dr. Duchin

made “two majority-Black districts” a “‘nonnegotiable’ … criterion.” And “Dr. Duchin

cast aside. Brnovich, 141 S. Ct. at 2340; cf. League of United

Latin Am. Citizens v. Perry (“LULAC”), 548 U.S. 399, 424, 435

(2006) (finding Section 2 violation when Texas did not retain the

core of existing district just as the Latino population “was becoming … cohesive”).

22

did not allow a minimum level of compliance

with that criterion to yield to other considerations.” App.223.

2. Now before this Court, and despite all of the

above, Plaintiffs assert that no line-drawing decisions

were based on race. Caster Resp. 20, 30, 32-33.10 But

Plaintiffs cannot explain away that compactness

scores for proposed Districts 1 and 2 were lower because of racial considerations; their expert testified

under oath that they were. App.349 (Tr. 644:17-24).

Plaintiffs cannot explain away that the Milligan

Plaintiffs’ illustrative plans contained more county

splits in certain districts due to race; their expert testified under oath that “[t]here was no question” it was.

App.352 (Tr. 647:12-20). Plaintiffs cannot explain

away that they chose to split small voting districts because of race; their expert testified under oath that

she did. App.332-33 (Tr. 573:3:8).

More fundamentally, Plaintiffs cannot seriously

dispute that race is the only explanation for the complete reconfiguration of Alabama’s districts. Every

single illustrative plan submitted by Plaintiffs separates white and black voters in the same way: splitting Mobile County for the first time in the State’s history and doing so along racial lines. It blinks reality to

assert—many times over—that this was done simply

The Caster Plaintiffs’ assertion that the State’s expert

“could not identify any ‘line drawing decision’ made by Mr.

Cooper based on race” is misleading. Caster Resp. 30. The testimony quoted was about what the State’s expert included in his

expert report. Immediately before that testimony, the State’s expert explained that the Caster Plaintiffs’ maps, just like every

other map, split Mobile County along racial lines. Tr. 975.

10

23

to keep communities of interest together. “[T]he cores

in existing districts are the clearest expression of the

legislature’s intent to group persons on a ‘community

of interest’ basis.” Colleton Cnty. Council v.

McConnell, 201 F. Supp. 2d 618, 649 (D.S.C. 2002).

Those cores have been the same in Alabama for decades. Indeed, decades ago, a federal court rejected a

congressional map that would have split the Mobile

area because it would have “distort[ed] … Districts 1

and 2,” and the court instead selected a plan that “better preserves the communities of interests in those

two districts.” Wesch v. Hunt, 785 F. Supp. 1491, 1497

(S.D. Ala. 1992); see also App.389-400 (Tr. 1665-76)

(testimony by former Congressman Bradley Byrne explaining the communities of interest that have long

united Mobile and Baldwin counties, particularly the

“unique problems” faced by communities along the

Gulf Coast and the different business, agricultural,

and military priorities between that region (District

1) and the Wiregrass region (District 2) that would

make it difficult for a representative “to become an expert on two different regions altogether, two different

communities of interest”). Plaintiffs’ illustrative maps

seek to undo what the federal courts previously required, and they seek to do so by racially sorting Alabama’s voters, pure and simple.11

Plaintiffs resort to arguments about Alabama’s State

Board of Education map, which divides Mobile County. Milligan

Resp. 5, 24, 35; Caster Resp. 5, 7, 25. The board plan is an 8district plan (not a 7-district plan), and it is distinct from the

congressional plans with members serving “very different” roles

than members of Congress. See Milligan Resp. 24; Tr. 1680:1411

24

And for all the ink spilled by Plaintiffs about the

Black Belt as a community of interest, they misrepresent the record. The Caster Plaintiffs assert that they

“proved that the minority communities within their

proposed CD 2 have very similar interests and needs.”

Caster Resp. 25. The district court never made that

finding. While the court noted that the Black Belt is a

community of interest, Plaintiffs’ proposals go beyond

simply keeping that community together. They necessarily sacrifice other communities of interest to stitch

together several distinct communities, including

black Alabamians in urban Mobile, Montgomery, and

western Alabama with black Alabamians in the rural

countryside along the State’s eastern border. Stay Application 36. Even one of the lead Plaintiffs couldn’t

explain how black voters in Mobile share the same interests as black voters in rural counties more than 200

miles away. When asked about the faraway counties

that would make up part of his new majority-black

district, Mr. Caster testified, “I don’t know anything

about them, so I can’t say that I am in … that community [of] interest with them or not.” Tr. 1640-41. Mr.

Caster’s confusion is consistent with Plaintiffs’

1682:3 (former SBOE member and congressman explaining significant differences). The reason for the SBOE split—in 2011—

was to comply with Section 5 of the VRA. See Caster v. Merrill,

No. 2:21-cv-1536, ECF 76-26 (the 2001 SBOE map), ECF 48 at

16-17 (showing BVAP for SBOE District 5 following 2000 and

2010 censuses); ECF 80-23 (preclearance submission for 2011

SBOE Plan); Tr. 1753:6-14 (explaining that District 5 “lost a lot

of population” between 2000 and 2010, which required “significant changes” to the district). It remained similarly configured in

2021 given the Legislature’s adherence to the principle of core

retention.

25

expert’s own testimony. Dr. Duchin did not testify

that she was uniting these areas out of any special

concern for the keeping together the Black Belt’s

“community of interest.” Rather, her primary concern

was placing Black Belt counties “in majority-black

districts.” App.342 (Tr. 598:21-599:1) (emphasis

added). She was simply placing black Alabamians

with more black Alabamians. So much for this Court’s

admonition that “[t]he recognition of nonracial communities of interest reflects the principle that a State

may not assum[e] from a group of voters’ race that

they think alike, share the same political interests,

and will prefer the same candidates at the polls.” LULAC, 548 U.S. at 433 (internal quotation marks omitted).

Contrary to Plaintiffs’ view, no traditional districting principle justifies conjoining disparate communities of interest simply because they contain large percentages of people of the same race. Id. (“[T]here is no

basis to believe a district that combines two far-flung

segments of a racial group with disparate interests

provides the opportunity that § 2 requires or that the

first Gingles condition contemplates.”).

F. Plaintiffs have no answer for the millions

of race-neutral maps, so they tell this

Court to disregard them

In light of Plaintiffs’ experts’ own evidence and testimony, there is also no basis for Plaintiffs’ statement

that millions of neutrally drawn simulations—none of

which yielded two majority-black districts—“tell us

nothing about whether Plaintiffs’ illustrative plans respect traditional redistricting principles.” Caster

26

Resp. 22 (emphasis omitted). The simulations would

have told the Alabama Legislature everything. The

Legislature would not have drawn two majority-minority districts without placing race first and its own

race-neutral districting criteria second. Plaintiffs

themselves said so.

1. None of Plaintiffs’ arguments here can rewrite

what they said below. For example, Plaintiffs assert

that their experts’ millions of maps are irrelevant because they took account of some traditional redistricting criteria but not others. Milligan Resp. 30. But

what Dr. Duchin did (and did not) consider makes her

millions of maps all the more compelling. She established that even if one were to draw on a blank slate,

without considering existing district lines, a neutrally

drawn map would not include two black-majority districts. But imposing more race-neutral constraints

would not change that undisputed outcome. More

race-neutral constraints—for example, keeping Mobile County whole and the Gulf Coast region unified

(as it has been for decades)—makes it even less likely

that two majority-black districts would be drawn.

2. Plaintiffs also emphasize that the millions of

maps involved 2010 Census data. Caster Resp. 21;

Milligan Resp. 6, 30. That also fails to explain away

Dr. Duchin’s findings (and doesn’t apply to others’

failed attempts to draw two majority-black districts,

supra, Part I.E). It is indisputable that between the

2010 and 2020 Census, the total black population in

Alabama shifted a negligible 0.36 percentage points.

See Caster v. Merrill, No. 2:21-cv-1536, ECF 48 at 6

(showing change from 26.8% of population to 27.16%).

And various counties in central Alabama with high

27

percentages of black population, counties implicated

in Plaintiffs’ redraw, lost population over that decade.

See U.S. Census Bureau, 2020 Census Demographic

Data

Map

Viewer,

Population

Change,

https://arcg.is/0eWzy8 (last visited Feb. 2, 2022)

(showing decreased population for Barbour, Bullock,

Butler, Choctaw, Crenshaw, Dallas, Greene, Hale,

Lowndes, Macon, Marengo, Montgomery, Perry, Pickens, Sumter, Wilcox, Clarke, Conecuh, Escambia,

Monroe, and Washington counties). In short, there are

no demographic changes between 2010 and 2020 that

explain Plaintiffs’ unprecedented changes to Alabama’s existing district geography.12

12 As amici have explained, achieving proportional represen-

tation would be atypical given that existing geography. See Br.

for U.S. Representatives from Alabama as Amici Curiae, 4-7.

Plaintiffs’ own expert explained that outside of Alabama’s four

largest (and far-apart) cities, less than 10 percent of black Alabamians (111,201 individuals) are dispersed across the width of

the State in the 11 relatively small, rural Black Belt counties

identified by their expert. See Caster v. Merrill, No. 2:21-cv-1536,

ECF 48 at 7, 12 (Cooper Report) (“about half of Alabama’s Black

population (49.53%) is concentrated in the urban counties” while

“[t]he rural Black Belt counties (excluding urban Black Belt

Montgomery) account for 8.68% of the statewide Black

population”). With congressional districts at ideal population of

717,514 people, even if one were to put all black Alabamians from

those rural Black Belt counties into one district, they would

make up only 15.5% of that district’s population (or 34% if Montgomery were included). That dispersal illustrates why Plaintiffs’

illustrative plans must stretch hundreds of miles to connect disparate populations of black Alabamians. See App.349 (Tr.

644:17-24) (agreeing that reduced compactness in CD 1 and CD

2 explained by racial target). In Alabama, it was inevitable that

traditional race-neutral principles would have “to yield” or bend

28

3. Additionally, Plaintiffs now contend—despite all

of the above statements by their experts—that Dr.

Duchin ultimately opined that it was “certainly possible” for a randomly generated map to produce “literally thousands” of plans with two majority-Black districts. Caster Resp. 21; Milligan Resp. 7, 31. They omit

that she went on to clarify that it was “certainly possible” to draw such maps assuming race was a “nonnegotiable.” App.375 (Tr. 685:7-10) (describing “the

world of possibility” to “include[] my demonstrative

maps, which could be arrived at through a random

process” that uses race as a criterion); App.337

(Tr.577:17-20). She testified that she could not conceive “of a way to talk about the traditional [redistricting] principles as a package that is race blind.”

App.373 (Tr. 683:19-21).13

One can defer to Dr. Duchin’s testimony about

what might be “possible” under those race-conscious

circumstances all one wants; it doesn’t matter. Whatever Plaintiffs’ expert thought was “possible” when

making race non-negotiable is irrelevant. What would

transpire had Plaintiffs’ expert not made race a

“nonnegotiable” is the question.14 And Plaintiffs’

or break “as necessary” to hit Plaintiffs’ unnatural two majorityminority district target. App. 69, 223-24.

13

Similarly, Mr. Cooper testified that he understood race

to be a “traditional districting principle.” Mr. Cooper testified

that he complied with the Guidelines “within the constraints of

creating second majority-black districts.” App.312 (Tr. 478:11479:2).

14 Moreover, what is eventually “possible” through a random

process also cannot be the legal test here. For example, if a racially gerrymandered map were “possible” to draw only after

29

experts already answered it. Supra, Part I.E. Again,

the VRA does not guarantee “political feast” for any

group. Johnson v. DeGrandy, 512 U.S. 997, 1017

(1994). It guarantees that elections are “equally open,”

52 U.S.C. §10301(b), and neutrally drawn maps are

the only plausible evidence of that requirement.

4. Finally, as noted above, Dr. Duchin was not the

only expert to draw numerous maps. Dr. Imai, too,

produced 30,000 maps, none of which had two majority-black districts. Though his simulations could not

shed light on the Legislature’s intent because the Legislature began with the preexisting lines while Dr.

Imai’s algorithm assumed a map drawn on a blank

slate, see supra, n.8, his results do simulate Plaintiffs’

experts’ blank-slate approach. In the Milligan Plaintiffs’ words, Dr. Imai’s results “alone shows that

[Plaintiffs’ illustrative plans] used race as a predominant factor.” Milligan v. Merrill, No. 21-cv-1530, ECF

69 at 27.

millions of attempts—such that it can be described only as an

out-and-out outlier when compared to maps drawn with traditional redistricting criteria—then that could be strong evidence

of a constitutional violation. Bethune-Hill, 137 S. Ct. at 798. And

of course, as any trained mathematician would know, almost anything can be arrived at through “a random process” that goes on

long enough. See Arthur R. Miller, Copyright Protection for Computer Programs, Databases and Computer-Generated Works: Is

Anything New Since CONTU?, 106 Harv. L. Rev. 977, 1042

(1993) (“We all have heard about the proverbial roomful of monkeys striking the keys of typewriters . . . with one of the monkeys eventually ‘producing’ Shakespeare’s Hamlet.”).

30

II. The Equities Warrant A Stay.

The equities require a stay. Plaintiffs belittle the

harm to the State, its voters, and potential candidates

as “administrative inconvenience.” Caster Resp. 36;

Milligan Resp. 36. To be clear, this case is not akin to

one involving harm to the State’s “‘fiscal and administrative burdens.’” Caster Resp. 37. The harm extends

not just to the State but also to the State’s voters and

its candidates, all of whom have indisputable interests—with their own constitutional dimensions—in

being properly registered, getting the right ballots,

and knowing who their candidates or potential constituents will be. See Stay Application 40-44.

In concluding otherwise, Plaintiffs have misunderstood (or simply ignored) the unrebutted, sworn testimony before the district court. Alabama’s Director of

Elections explained that “[t]here are substantial obstacles to changing the Congressional districts at this

late date….” Milligan v. Merrill, No. 2:21-cv-1530AMM, ECF 82-7 at 2. Among the most pressing is that

new congressional lines would require reassigning

millions of registered voters to new precincts and districts: “If Congressional districts change, local officials

will have to start over in the process of assigning voters to new Congressional districts, making the already shortened time for the assignment process,” due

to Census delays, “even shorter,” and “potentially increasing the likelihood of mistaken reassignments.”

Id. at 5-6.; see also id. at 2-3. This is a “laborious” process that can take three to four months, particularly

in the 45 of the State’s 67 counties where the process

is performed manually. Id. at 3-4. The reassignment

must be complete before various pre-election

31

deadlines so that voters can receive the right ballots

and absentee voting can commence on March 30. Id.

at 2-6; see also 52 U.S.C. § 20302(a)(8)(A) (requiring

transmittal of absentee ballots to certain voters no

later than April 9 for general election). The State and

its citizens obviously have a paramount interest in ensuring that voters receive the correct ballots.15

The district court, and now Plaintiffs, gave the

State’s interest short shrift in part based on their

novel view that the State should have begun preparing backup maps as soon as Plaintiffs threatened litigation. In the words of the district court, Defendants

have known “that persons and organizations such as

the Milligan plaintiffs and Caster plaintiffs would

likely assert a Section Two challenge” to any map that

didn’t set nonnegotiable racial targets for two districts. App.220. But it is often the case that “the losers

in the redistricting process … seek to obtain in court

what they could not achieve in the political arena.”

Cooper, 137 S. Ct. at 1490 (Alito, J., concurring in the

judgment in part and dissenting in part). The State’s

failure to pre-draft racially gerrymandered maps can’t

count against it in the balance of equities.

The March 30 start to absentee voting—and all the

preceding requirements to meet that deadline—are

“imminent” and the “State’s election machinery is already in progress.” Reynolds v. Sims, 377 U.S. 533,

15 Puzzlingly, the district court apparently misread the Di-

rector’s affidavit, suggesting that the “next election” did not

mean “the upcoming one.” App. 150. This makes no sense. Voters

will vote in new congressional districts starting this March and

it is, understandably, Alabama’s goal that voters be given the

correct ballots at that election, in addition to subsequent ones.

32

585 (1964). That alone is reason enough to grant the

stay. And the equities tilt even further in Defendants’

favor because the district court’s order would require

the State to hold elections using racially segregated

districts.

CONCLUSION

For

the

foregoing

reasons,

Defendants

respectfully ask the Court to enter an administrative

stay and then a stay pending appeal.

33

Respectfully submitted,

Dorman Walker

Steve Marshall

BALCH & BINGHAM LLP Attorney General

105 Tallapoosa Street

/s/ Edmund G. LaCour Jr.

Ste. 200

Edmund G. LaCour Jr.

P.O. Box 78 (36101)

Solicitor General

Montgomery, AL

Counsel of Record

36104

A. Barrett Bowdre

(334) 269-3138

Thomas A. Wilson

DWalker@Balch.com

Deputy Solicitors General

Counsel for Sen.

James W. Davis

McClendon

Deputy Attorney General

and Rep. Pringle

Misty S. Fairbanks Messick

Brenton M. Smith

Jeffrey M. Harris

A. Reid Harris

Taylor A.R. Meehan

Benjamin M. Seiss

CONSOVOY MCCARTHY Assistant Attorneys General

PLLC

OFFICE OF THE ATTORNEY

1600 Wilson Blvd.

GENERAL

Ste. 700

STATE OF ALABAMA

Arlington, VA 22209

501 Washington Avenue

(703) 243-9423

P.O. Box 300152

Jeff@ConsovoyMcCarMontgomery, AL 36130thy.com

0152

Counsel for Secretary (334) 242-7300

Merrill

Edmund.LaCour@

AlabamaAG.gov

FEBRUARY 2, 2022

Counsel for Secretary

Merrill