Amicus Curiae Brief — John H. Merrill, Alabama Secretary of State, et al., Applicants v. Evan Milligan, et al.

No. 21A375

__________________________________________________

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.

EVAN MILLIGAN, ET AL.

Respondents.

________________________

On Application for a Stay of the Preliminary Injunction Issued by the

United States District Court for the Northern District of Alabama

________________________

To the Honorable Clarence Thomas

Associate Justice of the United States and

Circuit Justice for the Eleventh Circuit

________________________

MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF

AND AMICUS CURIAE BRIEF OF THE

NATIONAL REPUBLICAN REDISTRICTING TRUST

IN SUPPORT OF APPLICANTS

_______________________

Jason Brett Torchinsky

Counsel of Record

Edward M. Wenger

Shawn T. Sheehy

Andrew Pardue

Michael Beato

Holtzman Vogel Baran

Torchinsky & Josefiak, PLLC

15405 John Marshall Highway

Haymarket, VA 20169

(540) 341-8808 (telephone)

(540) 341-8809 (facsimile)

Counsel for Movant and Amicus Curiae

the National Republican Redistricting Trust

MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF

The National Republican Redistricting Trust respectfully moves under

Supreme Court Rule 37.2(b) for leave to file a brief as Amicus Curiae in support of

Applicant Secretary of State John H. Merrill.

IDENTITY AND INTERESTS

OF MOVANT1

The National Republican Redistricting Trust, or NRRT, is the central

Republican organization tasked with coordinating and collaborating with national,

state, and local groups on a fifty-state congressional and state legislative

redistricting effort that is currently underway.

NRRT’s mission is threefold. First, it aims to ensure that redistricting

faithfully follows all federal constitutional and statutory mandates. Under Article I,

Section 4 of the Constitution, it is the States, subject to congressional supervision,

that are entrusted with the responsibility of redrawing the States’ congressional

districts. Every citizen should have an equal voice, and the Voting Rights Act and

other federal laws must be followed in a way that protects the constitutional rights

of individuals, not political parties or other groups.

Second, NRRT believes redistricting should be clean, a requirement best

fulfilled by the traditional redistricting criteria States have applied for centuries.

1 Consistent

with Federal Rule of Appellate Procedure 29(a)(4)(E) and this

Court’s Rule 37.6, counsel for Movant and Amicus Curiae authored these motions

and brief in whole, and no counsel for a party authored the motions and brief in

whole or in part, nor did any person or entity, other than the Movant/Amicus and

its counsel, make a monetary contribution to preparation or submission of the

motions and brief. Counsel for Applicants and Respondents have consented to the

filing of this brief.

i

This means districts should be sufficiently compact and preserve communities of

interest by respecting municipal and county boundaries, avoiding the forced

combination of disparate populations to the extent possible. Such clean districts are

consistent with the principle that legislators represent individuals living within

identifiable communities.

Legislators represent communities, not political parties, and we do not have a

system of proportional representation. Article I, Section 4 of the Constitution tells

courts that any change in our community-based system of districts is exclusively a

matter for deliberation and decision by our political branches, the state legislatures,

and Congress.

Third, NRRT believes redistricting should make sense to voters. All

Americans should be able to look at their district and understand why it was drawn

the way it was.

REASONS TO GRANT LEAVE TO FILE AMICUS CURIAE BRIEF

This case presents issues of critical constitutional importance to proposed

Amicus. Amicus believes that the three-judge panel’s order gravely misapplies the

Voting Rights Act, the Equal Protection Clause, and this Court’s jurisprudence

interpreting both. In the absence of an emergency stay from this Court, the State of

Alabama will be forced to adopt congressional voting maps drawn in a way that

offends the Equal Protection Clause and distorts beyond recognition the Voting

Rights Act.

ii

Amicus represents the view that, under Article I, Section 4 of the

Constitution, it is the States, subject to congressional supervision, that are

entrusted with the responsibility of redrawing the States’ congressional districts.

The unwarranted intrusion of the lower court into this process threatens to topple

this constitutionally imposed order of responsibility. Because Amicus can provide a

unique vantage point into the redistricting process underway throughout the

Nation, its submission will materially help the Court as it decides how to resolve

this application for an emergency stay.

For the foregoing reasons, the motion should be granted.

January 31, 2022

Respectfully submitted,

Jason Brett Torchinsky

Counsel of Record

Edward M. Wenger

Shawn T. Sheehy

Andrew Pardue

Michael Beato

HOLTZMAN VOGEL

BARAN TORCHINSKY & JOSEFIAK, PLLC

15405 John Marshall Highway

Haymarket, VA 20169

(540) 341-8808 (telephone)

(540) 341-8809 (facsimile)

Counsel for Movant and

Amicus Curiae the

National Republican Redistricting

Trust

iii

TABLE OF CONTENTS

MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF....................................... i

TABLE OF CONTENTS ............................................................................................... iv

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

BRIEF OF AMICUS CURIAE THE NATIONAL REPUBLICAN

REDISTRICTING TRUST IN SUPPORT OF APPLICANTS ............................. 1

INTEREST OF AMICUS CURIAE ............................................................................... 1

INTRODUCTION & SUMMARY OF THE ARGUMENT............................................ 2

ARGUMENT .................................................................................................................. 4

I.

THE STATES URGENTLY NEED THIS COURT’S

CLARIFICATION REGARDING RACE-BASED CLAIMS UNDER

SECTION 2 OF THE VOTING RIGHTS ACT. ........................................... 4

II.

WITHOUT CLARIFICATION, PARTISAN MANIPULATION OF

THE VOTING RIGHTS ACT WILL CONTINUE TO ESCALATE. ......... 10

A.

Lawyers aligned with the Democratic Party have a

sophisticated legal strategy to “undo” majority-minority

districts in select areas. ..................................................................... 11

B.

These same Democrat-affiliated Lawyers support the

elimination of majority-minority districts in Michigan. ................... 14

C.

In contrast, the same Democrat-affiliated lawyers have

argued that majority-minority districts are required in

Alabama, Georgia, and Louisiana. .................................................... 17

III. AT A MINIMUM, THE COURT CANNOT LET STAND THE

ORDER UNDER REVIEW. ........................................................................ 20

CONCLUSION............................................................................................................. 24

iv

TABLE OF AUTHORITIES

CASES

Miller v. Johnson, 864 F. Supp. 1354 (S.D. Ga. 1994) ................................................. 6

Abrams v. Johnson, 521 U.S. 74 (1997) .................................................................... 5, 8

Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977) ............................ 6

Bethune-Hill v. Virginia State Board of Elections, 326 F. Supp. 3d 128 (E.D.

Va. 2018) .............................................................................................................. 11

Bethune-Hill v. Va. State Bd. of Elections, 368 F. Supp. 3d 872 (E.D. Va.

2019) ........................................................................................................ 12, 12, 13

Caster v. Merrill, No. 2:21-cv-1536-AMM (N.D. Ala. Jan. 24, 2022) ....................... 8, 9

Caster v. Merrill, No. 2:21-cv-1536 (N.D. Ala. Dec. 27, 2021) .................................... 17

Chapman v. Meier, 420 U.S. 1 (1975) ........................................................................... 4

Cooper v. Harris, 137 S. Ct. 1455 (2017)........................................................... 4, 20, 24

Detroit Caucus v. Mich. Indep. Citizens Redistricting Comm'n, No. 163926

(Mich. Sup. Ct. 2022)........................................................................................... 16

Growe v. Emison, 507 U.S. 25 (1993) ............................................................................ 4

Hays v. Louisiana, 839 F. Supp. 1188 (W.D. La. 1993), vacated on other

grounds, Louisiana v. Hays, 512 U.S. 1230 (1994) ............................................ 18

League of United Latin Am. Citizens v. Perry ("LULAC"), 548 U.S. 399 (2006) passim

Metro Broadcasting, Inc. v. FCC, 497 U.S. 547 ............................................................ 6

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

Page v. Virginia State Board of Elections, 58 F. Supp. 3d 533, 540 (E.D. Va.

2014) .............................................................................................................. 11, 13

Pendergrass v. Raffensperger, No. 1:21-cv-05339-SCJ (N.D. Ga. Jan. 12, 2022) ...... 19

Rucho v. Common Cause, 139 S. Ct. 2484 (2019) ....................................................... 12

v

Shaw v. Reno, 509 U.S. 630 (1993) ............................................................................... 6

Smiley v. Holm, 285 U.S. 355 (1932) ............................................................................ 4

STATUTES AND RULES

52 U.S.C. §§ 10101 et seq ............................................................................................... 4

52 U.S.C. § 10301(a) ..................................................................................................... 5

OTHER AUTHORITIES

Expert Report of William S. Cooper, Pendergrass v. Raffensperger, No. 1:21cv-05339-SCJ, ECF No. 34-1 (N.D. Ga. Jan. 12, 2022) ...................................... 19

Letter to Virginia Supreme Court from the Hampton Roads Black Caucus,

(last visited Jan. 31, 2022) .................................................................................. 13

Memorandum from Bernard Grofman, Ph.D. and Sean Trende, to the Chief

Justices and Justices of the Supreme Court of Virginia re: Redistricting

Maps, (Dec. 27, 2021) .......................................................................................... 12

Memorandum from John E. Johnson, Jr., to Mich. Independent Citizens

Redistricting Comm’n, (Dec. 9, 2021) ................................................................. 15

NAACP Legal Def. Fund Coal.’s Cong. Dist. Plan A5 v2, State of La.

Redistricting (last visited Jan. 31, 2022) ........................................................... 18

Ned Oliver, Virginia’s Legislative Black Caucus Swells to 23. “We Unleashed

Some of Those Black Votes.”, Va. Mercury (Nov. 6, 2019) ................................. 12

Resolution In Support of Fair Maps And In Opposition to Minority Vote

Dilution, Mich. Dep’t of Civil Rights (Nov. 22, 2021) ........................................ 14

Va. Dep’t of Elections, Virginia 2021 Election Results (last visited Jan. 27,

2022) .................................................................................................................... 12

vi

BRIEF OF AMICUS CURIAE THE NATIONAL REPUBLICAN

REDISTRICTING TRUST IN SUPPORT OF APPLICANTS

INTEREST OF AMICUS CURIAE1

The National Republican Redistricting Trust, or NRRT, is the central

Republican organization tasked with coordinating and collaborating with national,

state, and local groups on a fifty-state congressional and state legislative

redistricting effort that is currently underway.

NRRT’s mission is threefold. First, it aims to ensure that redistricting

faithfully follows all federal constitutional and statutory mandates. Under Article I,

Section 4 of the Constitution, it is the States, subject to congressional supervision,

that are entrusted with the responsibility of redrawing the States’ congressional

districts. Every citizen should have an equal voice, and the Voting Rights Act and

other federal laws must be followed in a way that protects the constitutional rights

of individuals, not political parties or other groups.

Second,

NRRT

believes

redistricting

should

follow

the

traditional

redistricting criteria that States have applied for centuries. This means districts

should avoid the forced combination of disparate populations to the extent possible.

Legislators represent communities, not political parties, and we do not have a

system of proportional representation.

1 Consistent

with Federal Rule of Appellate Procedure 29(a)(4)(E) and this

Court’s Rule 37.6, counsel for Movant/Amicus Curiae authored these motions and

brief in whole, and no counsel for a party authored the motions and brief in whole or

in part, nor did any person or entity, other than the Movant/Amicus and its counsel,

make a monetary contribution to preparation or submission of the motions and

brief. Counsel for Applicants and Respondents have consented to the filing of this

brief.

1

Third, NRRT believes redistricting should make sense to voters. All

Americans should be able to look at their district and understand why it was drawn

the way it was.

INTRODUCTION & SUMMARY OF THE ARGUMENT

Since President Johnson signed into law the Voting Rights Act, this Court

has been called on, time and again, to sort out the often-tense interplay between

that watershed statute and the Fourteenth Amendment’s Equal Protection

guarantee. Despite the Court’s commendable efforts and its rich jurisprudence,

work remains to be done. Because the Voting Rights Act requires cognizance of race

in redistricting while the Equal Protection Clause renders constitutionally suspect

any instance in which race predominates in redistricting, difficult cases will

inevitably arise.

This is not one of those tough cases. By forcing the State of Alabama to

subordinate every traditional redistricting criterion below the goal of creating a

second majority-minority congressional district in that State, the three-judge panel

has transgressed both the plain letter and the clear spirit of several cases decided

by this Court. Section 2 of the Voting Rights Act does not require the outcome

below; rather, the Equal Protection Clause forbids it. The case currently under

review cannot stand, and the Court should stay it on its way to reaching this

conclusion.

2

That the three-judge panel erred in this fashion, however, was not due to

happenstance. The navigational route between the Voting Rights Act and the Equal

Protection Clause is often murky, and this shroud provides an opportunity for

exploitation by those who never miss a chance to seize political advantage. This

opportunity has, in turn, resulted in lawyers from the same Democratic Partyaligned law firm arguing simultaneously that the Voting Rights Act (1) requires

additional majority-minority districts in, e.g., Alabama, Georgia, and Louisiana,

even though doing so means ignoring all other traditional redistricting criteria, yet

(2) does not require any majority-minority congressional districts in, e.g., Michigan,

and far fewer than historically present in, e.g., Virginia.

The

antidote

to

the

partisan

gamesmanship

infecting

the

current

redistricting cycle can only come in the form of elucidation from this Court. For that

reason, NRRT respectfully urges the Court to grant Applicants’ emergency request

to stay the constitutionally infirm preliminary injunction. Doing so, and then

eventually resolving this case in favor of the Applicants, will ensure that Alabama

is not forced to adopt congressional districts anathema to the Equal Protection

Clause and will also provide guidance to federal courts and States alike as all work

to ensure that the post-2020 decennial-census redistricting process runs as

smoothly as the current political climate will allow it to.

3

ARGUMENT

I.

THE STATES URGENTLY NEED THIS COURT’S CLARIFICATION REGARDING

RACE-BASED CLAIMS UNDER SECTION 2 OF THE VOTING RIGHTS ACT.

For decades, this Court has not wavered from the principle that

“reapportionment is primarily the duty and responsibility of the State through its

legislature or other body.” Chapman v. Meier, 420 U.S. 1, 27 (1975); see also Growe

v. Emison, 507 U.S. 25, 34 (1993) (Article I, Section 2 “leaves with the States

primary

responsibility

for

apportionment

of

their

federal

congressional . . . districts”); Smiley v. Holm, 285 U.S. 355, 366–67 (1932) (noting

that reapportionment implicates State’s powers under Article I, § 4). “That the

federal courts sometimes are required to order legislative redistricting . . . does not

shift the primary locus of responsibility.” League of United Latin Am. Citizens v.

Perry (“LULAC”), 548 U.S. 399, 415 (2006). Indeed, “the obligation placed upon the

Federal Judiciary is” particularly “unwelcome because drawing lines for

congressional districts is one of the most significant acts a State can perform to

ensure citizen participation in republican self-governance.” Id. at 416.

Although the Article III branch remains subordinate when States draw their

voting-district boundaries, States nonetheless need to know the metes and bounds

of the few critical federal parameters that guide the redistricting process. One is the

Fourteenth Amendment’s Equal Protection Clause, which, according to the Court,

means that “[a] State may not use race as the predominant factor in drawing

district lines unless it has a compelling reason.” Cooper v. Harris, 137 S. Ct. 1455,

1463 (2017). Another is the Voting Rights Act, 52 U.S.C. §§ 10101 et seq., which, per

4

Section 2, forbids States from instituting any “voting qualification or prerequisite”

that would “result[] in a denial or abridgement of the right of any citizen of the

United States to vote on account of race or color,” id. § 10301(a).

The calibration between the Equal Protection Clause and Section 2 of the

Voting Rights Act remains a thicket. On the surface, the former renders

constitutionally suspect (and subject to strict scrutiny) any redistricting plan that

makes race a consideration when drawing district boundaries. The latter, however,

presupposes that voting-district map drawers must, at a minimum, remain

cognizant of race through Section 2’s application while creating those same voting

districts.

In 2006, the Court provided a touch of elucidation by warning lower courts

that “there is no [Section] 2 right to a district that is not reasonably compact.”

LULAC, 548 U.S. at 430 (citing Abrams v. Johnson, 521 U.S. 74, 91–92 (1997)). At

issue in LULAC was a Texas non-compact congressional district that connected

portions of Austin with the Rio Grande Valley—and thus stretched roughly threehundred miles—to merge two distinct Latino communities. Id. at 429–30. In

rejecting these boundaries, the Court spurned any suggestion that a district can

“satisfy [Section] 2 no matter how noncompact it [is], so long as all the members of a

racial group, added together, could control election outcomes.” Id. at 432.

5

LULAC built on this Court’s 1995 Miller v. Johnson decision. 515 U.S. 900

(1995).2 Miller, at the outset, reiterated that “‘redistricting legislation that is so

bizarre on its face that it is unexplainable on grounds other than race, . . . demands

the same close scrutiny that we give other state laws that classify citizens by race.’”

Id. at 905 (quoting Shaw v. Reno, 509 U.S. 630, 644 (1993) (quoting, in turn,

Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977))). It then

addressed a Georgia congressional district “connecting the black neighborhoods of

metropolitan Atlanta and the poor black populace of coastal Chatham County,” even

though the two communities were “260 miles apart in distance and worlds apart in

culture.” Id. at 908. This district, drawn to achieve preclearance under Section 5 of

the Voting Rights Act, nonetheless told “a tale of disparity, not community” from a

“social, political and economic” perspective. Id.

Relying on the principle that, “[a]t the heart of the Constitution’s guarantee

of equal protection lies the simple command that the Government must treat

citizens as individuals, not as simply components of a racial, religious, sexual or

national class,” id. at 911 (quoting Metro Broadcasting, Inc. v. FCC, 497 U.S. 547,

602 (O’Connor, J., dissenting)), the Court held that a race-based gerrymandering

claim arises whenever “the legislature subordinate[s] traditional race-neutral

districting principles, including but not limited to compactness, contiguity, respect

2 The lower court opinion in Miller v. Johnson squarely rejected the notion

that the Voting Rights Act requires proportional representation by race. 864

F. Supp. 1354, 1379 (S.D. Ga. 1994) (three-judge court) (citing Shaw v. Reno, 509

U.S. 630, 652 (1993); Johnson v. De Grandy, 512 U.S. 997 (1994)). That portion of

the lower court opinion was not overturned by this Court on appeal in Miller, 515

U.S. 900 (1995).

6

for political subdivisions or communities defined by actual shared interests, to

racial considerations,” id. at 916. Applying this standard to the Georgia

congressional map at issue, it first agreed with the lower court that the Georgia

legislature (prompted by the U.S. Department of Justice) “was motivated by a

predominant, overriding desire to assign black populations to” a voting district so

that the State would have three, instead of two, “majority-black district[s].” Id. at

917. For this reason, it then held that “Georgia’s congressional redistricting plan

cannot be upheld unless it satisfies strict scrutiny, our most rigorous and exacting

standard of constitutional review.” Id. at 920. And because “[t]he congressional plan

challenged [t]here was not required by the Voting Rights Act under a correct

reading of the statute,” id. at 921, the Court agreed that the Georgia map violated

the Equal Protection Clause, id. at 928.

Critical to the Court’s Miller decision was its conclusion that, although the

Voting Rights Act (in that case, Section 5) prohibits retrogression, it does not give

States license to dispense with “adher[ence] to other districting principles” to

“creat[e] as many majority-minority districts as possible.” Id. at 924. According to

the Miller Court, “utilizing [Section] 5 to require States to create majority-minority

districts wherever possible” would augment federal authority “beyond what

Congress intended” and what this Court has “upheld.” Id. at 925. The Court

declined the invitation to construe the Voting Rights Act in that fashion; in so

declining, it sought to, among other things, “avoid the constitutional problems” that

interpreting the Act that way would trigger. Id. at 927.

7

The three-judge decision at issue here cannot be squared with LULAC or

Miller. The three-judge court below decided that Section 2 requires the creation of a

second Alabama majority-minority district. See Caster v. Merrill, No. 2:21-cv-1536AMM, ECF No. 101, at 5 (N.D. Ala. Jan. 24, 2022) (three-judge court). In so doing, it

not only crammed the consideration of race back into the Alabama district-drawing

calculus (which, if the Alabama legislature had done in the first instance, would

have rendered its work constitutionally suspect); it also necessarily ratcheted the

consideration of race to the pole position. And because Alabama demographic

patterns make it virtually impossible to create two majority-minority, yet compact,

congressional voting districts, the three-judge panel simply dispensed with the

compactness requirement—in direct contravention of this Court’s admonition that

“there is no [Section] 2 right to a district that is not reasonably compact.” LULAC,

548 U.S. at 430 (citing Abrams, 521 U.S. at 91–92), and this Court’s earlier

reproach that “[i]t takes a shortsighted and unauthorized view of the Voting Rights

Act to invoke that statute, which has played a decisive role in redressing some of

our worst forms of discrimination, to demand the very racial stereotyping the

Fourteenth Amendment forbids,” Miller, 515 U.S. at 927–28.

The decision by the lower court seems to rely heavily on a misunderstanding

of this Court’s discussion of proportionality in Miller and the three-judge district

court’s opinion that led to it. The three-judge panel in this case said, for example:

[D]espite Black Alabamians constituting nearly 27% of the population,

they only have meaningful influence in 14% of congressional

seats. . . . And as the Caster plaintiffs correctly add, white Alabamians

are over-represented because 86% of congressional districts are

8

majority-white, but white Alabamians comprise over 63% of the

population; they also point out that even if Alabama were to draw a

second majority-Black congressional district, this circumstance would

persist, because 71.5% of congressional districts would be majority

white.

Caster, No. 2:21-cv-1536-AMM, ECF No. 101, at 194 (internal citations and

quotations omitted). This simply cannot be squared with the Court’s admonition in

Miller:

Only if our political system and our society cleanse themselves of that

discrimination will all members of the polity share an equal

opportunity to gain public office regardless of race. As a Nation we

share both the obligation and the aspiration of working toward this

end. The end is neither assured nor well served, however, by carving

electorates into racial blocs . . . . It takes a shortsighted and

unauthorized view of the Voting Rights Act to invoke that statute,

which has played a decisive role in redressing some of our worst forms

of discrimination, to demand the very racial stereotyping the

Fourteenth Amendment forbids.

Miller, 515 U.S. at 927–28.

The three-judge court indisputably erred; that much is certain from even a

cursory read of LULAC and Miller. Its blunder, however, accentuates the more

fundamental issue. There is very real, and very knotty, tension between the text of

the Equal Protection Clause, the text of the Voting Rights Act, and this Court’s

jurisprudence regarding each.3 The three-judge court’s bungle provides an avenue

3 See Miller, 515 U.S. at 915–16 (“The courts, in assessing the sufficiency of a

challenge to a districting plan, must be sensitive to the complex interplay of forces

that enter a legislature’s redistricting calculus. Redistricting legislatures will, for

example, almost always be aware of racial demographics; but it does not follow that

race predominates in the redistricting process. . . . The distinction between being

aware of racial considerations and being motivated by them may be difficult to

make. This evidentiary difficulty, together with the sensitive nature of redistricting

and the presumption of good faith that must be accorded legislative enactments,

9

for this Court to cut away some of the weeds that are causing Article III tribunals

across the Country to arrive at the sort of distorted conclusions that the Applicants

here are pleading for the Court to correct.

II.

WITHOUT CLARIFICATION, PARTISAN MANIPULATION OF THE VOTING RIGHTS

ACT WILL CONTINUE TO ESCALATE.

Jurisprudential fog not only escalates the risk of judicial mistakes. It also

creates opportunities for exploitation, and this concern is neither abstract nor

conjectural. Indeed, elements of the Democratic Party have snatched the opening

created by this judicial haze to argue that Section 2 of the Voting Rights Act

requires majority-minority districts (e.g., in this case, as well as in Louisiana and

Georgia), while simultaneously arguing that the Equal Protection Clause does not

require, and States should therefore not prioritize creation of, majority-minority

districts (e.g., in Virginia and Michigan). Although each interpretation might be

plausible, both cannot universally be true. That lawyers primarily aligned with one

political party would advance, simultaneously, two entirely irreconcilable legal

positions in different areas of the Country has one, and only one, explanation: The

lack of clarity in the Section 2 arena has created an opening that these lawyers

affiliated with the Democratic Party have exploited, and continues to exploit, in

pursuit of their partisan goals.

requires courts to exercise extraordinary caution in adjudicating claims that a state

has drawn district lines on the basis of race.”).

10

A.

Lawyers aligned with the Democratic Party have a

sophisticated legal strategy to “undo” majority-minority

districts in select areas.

The saga of race-based redistricting litigation in Virginia is nearing its tenth

year. In Page v. Virginia State Board of Elections, a three-judge panel of the

Eastern District of Virginia struck down a majority-minority congressional district

(initially created in 1991) after concluding that the district was drawn with race as

the “predominant consideration.” 58 F. Supp. 3d 533, 540 (E.D. Va. 2014) (threejudge court). A three-judge Eastern District of Virginia court recently ruled

similarly in a challenge to the Commonwealth’s legislative maps; specifically, in

Bethune-Hill v. Virginia State Board of Elections, the lower court found that “race

predominated over traditional districting factors” in eleven Commonwealth house

districts, and, accordingly, struck them as violative of the Equal Protection Clause.

326 F. Supp. 3d 128, 137 (E.D. Va. 2018) (three-judge court).

In both cases, litigants affiliated with the Democratic Party argued that race

must not predominate (notwithstanding Section 2 of the Voting Rights Act). As a

result, the federal court ordered remedial districts that reduced the Black votingage population below the majority-minority threshold in one district and dropped

the black voting-age population from 56 to 53 percent in another. “Social scientists”

had assured the court that these changes would nonetheless result in the election of

Black members to the Virginia House of Delegates. Non-minorities, however,

currently represent both seats. Bethune-Hill v. Va. State Bd. of Elections, 368

F. Supp. 3d 872, 882–83 (E.D. Va. 2019) (three-judge court).

11

At the aggregate level, majority Black districts in the Virginia House were

reduced from twelve in 20114 to eight, following the Court’s imposition of a map in

Bethune-Hill. Id. at 882–83, 885, 887–88. Virginia’s Senate has historically had five

black majority seats, and these had not been challenged in court. After the 2020

Census, the maps imposed by Virginia’s Supreme Court reduced the majority-Black

Senate seats to two (out of forty) and reduced the majority-Black House seats to five

(out of one hundred). The impact on Black representation in the Virginia legislature

has already come to fruition. See Memorandum from Bernard Grofman, Ph.D. and

Sean Trende, to the Chief Justices and Justices of the Supreme Court of Virginia re:

Redistricting

Maps,

(Dec.

27,

2021),

https://www.vacourts.gov/courts/scv/d

istricting/2021_virginia_redistricting_memo.pdf.

The

federal

court’s

redrawn

districts have resulted in two fewer Black Delegates after the 2021 election cycle,5

4 See

Ned Oliver, Virginia’s Legislative Black Caucus Swells to 23. “We

Unleashed Some of Those Black Votes.”, Va. Mercury (Nov. 6, 2019),

https://www.virginiamercury.com/blog-va/virginias-legislative-black-caucus-swellsto-23-we-unleashed-some-of-those-black-votes/ (last visited Jan. 31, 2022).

5 In Bethune-Hill, an Eastern District of Virginia three-judge panel reduced

the Black voting-age population in two House of Delegates districts—District 63

and District 75—after two political scientists (including one who even served as the

court’s special master) calculated that the districts with reduced Black voting-age

populations would still allow Black voters to continue to elect their preferred

candidates. 368 F. Supp. 3d at 882–83. In the following House of Delegates election,

which was held under the new court-drawn plan, the incumbent black Delegates in

District 63 and District 75 were defeated by white candidates. See Va. Dep’t of

Elections,

Virginia

2021

Election

Results,

https://results.elections.

virginia.gov/vaelections/2021%20November%20General/Site/GeneralAssembly.html

(last visited Jan. 27, 2022). Once again, as this Court noted in Rucho v. Common

Cause, “[e]xperience proves that accurately predicting electoral outcomes is not so

simple, either because the plans are based on flawed assumptions about voter

preferences and behavior or because demographics and priorities change over time.”

139 S. Ct. 2484, 2503 (2019).

12

and the new post-2020 map pairs two incumbent Black senators in the same district

(both of whom are up for reelection in 2023).

Despite widespread objection by Virginia’s Black community,6 litigants

affiliated with the Democratic Party writ large apparently have no similar concerns

about this purge. In a letter submitted to the Virginia Supreme Court during

pendency of the Commonwealth’s redistricting process, a lead Democratic Party law

firm maintained that Section 2 of the Voting Rights Act does not require majorityminority districts at all. Indeed, they (on behalf of some of the Page plaintiffs)

described as “packed” two “minority opportunity” congressional districts that had a

black voting-age population of 44.5 and 45.3 percent, respectively. They then argued

that the court should further reduce them.

The Democratic Party’s newfound emphasis on “minority-opportunity,” as

opposed to majority-minority, districts in Virginia represents a shift in emphasis.

Roughly five years ago, the National Democratic Redistricting Trust and a lead

Democratic Party lawyer issued a joint press release after this Court’s Bethune-Hill

decision. In it, they praised the Court’s decision as one that would help rectify a

problem of “minority voter underrepresentat[ion] in government”:

6 See, e.g., Letter to Virginia Supreme Court from the Hampton Roads Black

Caucus, https://www.vacourts.gov/courts/scv/districting/public_comments.pdf (page

1396 of the PDF) (last visited Jan. 31, 2022).

13

Rather than increasing minority representation (as the authors of the press

release claimed it would), this legal strategy has already reduced the number of

Black legislators in the Virginia House of Delegates. The Republican Party now

controls the Virginia House of Delegates by two seats—the seats that the

Democratic Party’s counsel convinced a federal court to redraw in 2019.

B.

These same Democrat-affiliated Lawyers support the

elimination of majority-minority districts in Michigan.

Democrats in Michigan have fallen into lockstep with their Virginia brethren.

After the Michigan Independent Citizens Redistricting Commission proposed a slate

of maps for comment, some of which wiped out every majority-Black congressional

district, the Michigan Department of Civil Rights issued a resolution urging the

Commission to “use statistical data . . . to determine whether” the proposed maps

“comply with” this Court’s decision in Thornburg.7 A few weeks later, the

7 See Resolution In Support of Fair Maps And In Opposition to Minority Vote

Dilution, Mich. Dep’t of Civil Rights (Nov. 22, 2021), https://www.

michigan.gov/mdcr/commission/documents/resolutions-statements (last visited Jan.

31, 2022).

14

Department of Civil Rights escalated their alarm by issuing a memorandum

warning that the Commissions’ maps, if imposed, “may lead to forbidden

retrogression in minority voting strength.”8

National Democrats, in contrast, seem entirely at ease with the erasure of all

majority-Black congressional voting districts in Michigan:

8 See Memorandum from John E. Johnson, Jr., to Mich. Independent Citizens

Redistricting Comm’n, (Dec. 9, 2021), https://redistrictingonline.org/wpcontent/uploads/2021/03/MDCRAnalysisofMICRCProposedMaps-dec092021.pdf

(last visited Jan. 31, 2022).

15

After Michigan finalized its maps, individual Black members of the Michigan

House, the Romulus City Council, and a group of Black Michiganders filed an

original action in the Michigan Supreme Court. See Detroit Caucus v. Mich. Indep.

Citizens Redistricting Comm’n, No. 163926 (Mich. Sup. Ct. 2022). The plaintiffs

have alleged that the new voting maps dilute the strength of Black voters,

particularly those in and around Detroit, in violation of the State Constitution and

Section 2 of the Voting Rights Act. The case remains pending before the Michigan

Supreme Court as of the date of this filing.

16

C.

In contrast, the same Democrat-affiliated lawyers have argued

that majority-minority districts are required in Alabama,

Georgia, and Louisiana.

Despite their apparent agreement with the decreased number of majorityBlack legislative districts in Virginia and the vanishing Michigan majority-Black

districts, the Democratic Party’s law firm of choice has insisted in this case that

Section 2 of the Voting Rights Act “entitle[s]” “Black Alabamians” to “a second

majority-minority congressional district.” Reply Br. ISO of Mot. for a Preliminary

Injunction at 1, Caster v. Merrill, No. 2:21-cv-1536, ECF No. 84 (N.D. Ala. Dec. 27,

2021) (emphasis added). In their view, “two majority-minority districts can be

drawn consistent with traditional redistricting principles.” Id. Testimony from one

of the experts in this case belies this assertion. She generated two-million sample

maps using traditional redistricting criteria and reported that not a single one of

the samples included a second majority-Black congressional district. The only way

to create a second majority-Black voting district in Alabama is to preference race

first, and then fit every traditional redistricting criterion around the racially driven

districts.

Alabama is not the only State where (in contrast to Virginia and Michigan)

maximizing

majority-minority

voting

districts

through

the

subjugation

of

traditional redistricting criteria remains the aim of Democratic Party-affiliated

litigators. In the early 1990s, a three-judge panel of the Western District of

Louisiana struck, as violative of the Equal Protection Clause, a racially

gerrymandered map with a majority-minority district that, “[l]ike the fictional

swordsman Zorro, when making his signature mark . . . slashes a giant but

17

somewhat shaky ‘Z’ across the state, as it cuts a swath through much of Louisiana.”

Hays v. Louisiana, 839 F. Supp. 1188, 1199 (W.D. La. 1993), vacated on other

grounds, Louisiana v. Hays, 512 U.S. 1230 (1994).

Despite this criticism, the Democratic Party litigators seem to think that the

passage of roughly thirty years means they are at liberty to resurrect the

constitutionally infirm “shaky Z.” It appeared again in a submission offered by the

NAACP Legal Defense Fund:

NAACP Legal Def. Fund Coal.’s Cong. Dist. Plan A5 v2, State of La. Redistricting,

https://redist.legis.la.gov/2020_Files/PlanEvals/Congress/NAACPLDF_Coalition_CD

_Plan_A5_v2_Combined.pdf (last visited Jan. 31, 2022).

And in Georgia, the Democratic Party’s law firm of choice offered a map with

a district so misshapen that it would give rise to an immediate and obvious Equal

18

Protection violation if the State Legislature had drawn it, all in the name of

creating an additional majority-minority district. Once again, Democratic-Party

affiliated lawyers are arguing for the same types of “fingers” to the north and south

of this proposed district for the sole purpose of including black population:

See Expert Report of William S. Cooper, Pendergrass v. Raffensperger, No. 1:21-cv05339-SCJ, ECF No. 34-1 (N.D. Ga. Jan. 12, 2022).9

9 Preliminary injunction briefing is currently underway in Pendergrass. See

Order, Pendergrass v. Raffensperger, No. 1:21-cv-05339-SCJ, ECF No. 51 (hearing

scheduled for Feb. 7 through 14, 2022). Once the three-judge Northern District of

Georgia panel resolves that motion, it will likely proceed to this Court.

19

*

*

*

The right outcome in this case is quite apparent; lawyers affiliated with the

Democratic Party have staked out a position here (and in both Louisiana and

Georgia) entirely at odds with this Court’s declarations in LULAC, Cooper, and

Miller (and entirely irreconcilable with the positions they have advanced in, among

other places, Virginia and Michigan). That they feel empowered to do so brings into

stark clarity the fundamental and pressing reason for this Court to pump the

breaks by issuing a stay, considering this case, and providing more fulsome

guidance to the Southern District of Alabama (as well as the rest of the single judge

and three-judge courts around the Nation preparing to resolve federal challenges to

newly redrawn voting districts). Jurisprudential abstruseness allows exploitation

first to arise, then to fester, and finally to metastasize. This case offers the Court a

chance to snip off the sort of partisan manipulation arising throughout the Nation.

III.

AT A MINIMUM, THE COURT CANNOT LET STAND THE ORDER UNDER REVIEW.

Although “[t]he distinction between being aware of racial considerations and

being motivated by them may be difficult to make” in some cases, Miller, 515 U.S.

at 916, this case is not one of them. If the decision below remains in effect, it will

represent an order from a federal court mandating that Alabama do what this Court

forbade Texas from doing in LULAC, what it prohibited Georgia from doing in

Miller, and what it prohibited North Carolina from doing in Cooper.

Each of the plans submitted by the Plaintiffs below cuts the compact Black

population in the Western portion of the State in half and combines the Black

20

population in Mobile with the Black population in Dothan, communities that are

separated by two-hundred miles. They appear as follows:

21

22

District 1 cannot be described as compact under any conceivable definition of

the word. But because Alabama cannot have two majority-Black congressional

districts without it, and because the order below mandates two majority-Black

congressional districts, this “[g]eographic[]. . . monstrosity” cannot be eliminated.

See Miller, 515 U.S. at 909 (quotation omitted).

In LULAC, the Court struck as unconstitutional a voting district that merged

separate Latino populations that shared no community of interest and were located

three-hundred

miles

from

each

other.

The

long,

spindly

reach

of

the

unconstitutional district at issue in LULAC (District 25) bears an uncanny

resemblance to the district that must be created in Alabama if the decision below is

allowed to stand:

23

At a minimum, Alabama must not, via federal-court decree, be forced to

combine wholly dissimilar urban populations in industrial areas with rural

populations in agricultural areas hundreds of miles apart—only because the two

areas share a similar racial composition.10 As the graphics demonstrate better than

words, the court below has ordered Alabama to do what this Court forbade Texas in

LULAC, Georgia in Miller, and North Carolina in Cooper from doing. At a

minimum, then, the Court must swiftly correct the course of the Northern District

of Alabama.

CONCLUSION

For the foregoing reasons, NRRT respectfully requests that the Court stay

the preliminary injunction entered by the United States District Court for the

Northern District of Alabama.

10 Compare

the

history

and

economy

of

Eufala,

Alabama

(https://www.britannica.com/place/Eufaula-Alabama (last visited Jan. 30, 2022))

with the history and economy of Mobile, Alabama (https://www.

britannica.com/place/Mobile-Alabama (last visited Jan. 30, 2022)).

24

January 31, 2022

Respectfully submitted,

Jason Brett Torchinsky

Counsel of Record

Edward M. Wenger

Shawn T. Sheehy

Andrew Pardue

Michael Beato

HOLTZMAN VOGEL

BARAN TORCHINSKY & JOSEFIAK, PLLC

15405 John Marshall Highway

Haymarket, VA 20169

(540) 341-8808 (telephone)

(540) 341-8809 (facsimile)

Counsel for Movant and

Amicus Curiae the

National Republican Redistricting

Trust

25