Amicus Curiae Brief — Thomas C. Alexander, in His Official Capacity as President of the South Carolina Senate, et al., Appellants v. The South Carolina State Conference of the NAACP, et al.

No. 22-807

In the

Supreme Court of the United States

──────────────────────────

THOMAS C. ALEXANDER, IN HIS OFFICIAL CAPACITY AS

PRESIDENT OF THE SOUTH CAROLINA SENATE, ET AL.,

Appellants,

v.

THE SOUTH CAROLINA STATE CONFERENCE OF THE

NAACP, ET AL.,

Appellees.

──────────────────────────

On Appeal from the United States District Court for the

District of South Carolina

──────────────────────────

BRIEF OF ALABAMA AND 15 OTHER STATES AS

AMICI CURIAE IN SUPPORT OF APPELLANTS

──────────────────────────

OFFICE OF ALABAMA

ATTORNEY GENERAL

501 Washington Avenue

Montgomery, AL 36130

(334) 242-7300

edmund.lacour@

AlabamaAG.gov

STEVE MARSHALL

Alabama Attorney General

Edmund G. LaCour Jr.

Solicitor General

Counsel of Record

Bethany C. Lee

Assistant Solicitor General

Counsel for Amicus Curiae

State of Alabama

i

QUESTION PRESENTED

The district court found that the South Carolina

General Assembly sought to alter the partisan tilt of

District 1 in the State’s congressional redistricting

plan and had the partisan data needed to do so. The

General Assembly thus had no reason to use race to

achieve that partisan goal. Did the district court err

in ignoring the presumption of legislative good faith

and concluding that the General Assembly used race

to draw District 1?

ii

TABLE OF CONTENTS

Question Presented ..................................................... i

Table of Contents ....................................................... ii

Table of Authorities................................................... iii

Interest of Amici Curiae..............................................1

Summary of Argument................................................3

ARGUMENT ...............................................................5

I.

The District Court Ignored The

Presumption Of Legislative Good Faith ........5

II. The District Court Invented And

Ascribed To The General Assembly An

Irrational Racial Intent ................................ 11

III. The District Court Effectively Created A

Disparate-Impact

Regime

For

Redistricting ................................................. 15

Conclusion ................................................................. 23

iii

TABLE OF AUTHORITIES

Cases

Abbott v. Perez,

138 S. Ct. 2305 (2018) .......................3, 7-11, 20, 21

Ala. Legis. Black Caucus v. Alabama,

575 U.S. 254 (2015) .............................................. 12

Allen v. Milligan,

143 S. Ct. 1487 (2023) .................. 13, 14, 17, 18, 22

Ashcroft v. Iqbal,

556 U.S. 662 (2009) ................................................6

Brnovich v. Democratic Nat’l Comm.,

141 S. Ct. 2321 (2021) ...................................... 6, 19

Bush v. Vera,

517 U.S. 952 (1996) ........................ 7, 12, 15, 20, 22

Cooper v. Harris,

581 U.S. 285 (2017) .............. 7, 8, 10, 12, 14, 16, 21

Easley v. Cromartie,

532 U.S. 234 (2001)

(Cromartie II) ................................. 8, 11, 13, 15, 22

Edwards v. Aguillard,

482 U.S. 578 (1987) ................................................6

Fletcher v. Peck,

10 U.S. 87 (1810) ....................................................1

iv

Gomillion v. Lightfoot,

364 U.S. 339 (1960) .......................................... 8, 23

Hunt v. Cromartie,

526 U.S. 541 (1999) (Cromartie I) ................... 7, 20

Hunter v. Underwood,

471 U.S. 222 (1985) ............................................ 6, 7

League of Women Voters of Fla., Inc. v. Fla. Sec’y

of State,

32 F.4th 1363 (11th Cir. 2022) ..............................9

McCleskey v. Kemp,

481 U.S. 279 (1987) ............................................ 1, 8

Miller v. Johnson,

515 U.S. 900 (1995) ........... 1, 3-8, 12, 16, 18, 19, 23

Milligan v. Merrill,

Case No. 2:21-cv-1530-AMM (N.D. Ala. filed

Dec. 15, 2021) ....................................................... 18

Pers. Adm’r of Mass. v. Feeney,

442 U.S. 256 (1979) ........................ 6, 16, 18, 19, 21

Rucho v. Common Cause,

139 S. Ct. 2484 (2019) .......................................... 13

Shaw v. Reno,

509 U.S. 630 (1993) ................................. 11, 12, 20

v

Vill. of Arlington Heights v. Metro. Hous. Dev.

Corp.,

429 U.S. 252 (1977) .......................................... 7, 23

Washington v. Davis,

426 U.S. 229 (1976) .......................................... 2, 15

Other Authorities

Andrew Gelman & Eric Loken, The Statistical

Crisis in Science, 102 AMERICAN SCIENTIST

460 (2014) ............................................................. 16

Erin M. Kirkham & Edward M. Weaver, A

Review of Multiple Hypothesis Testing in

Otolaryngology Literature, 125

LARYNGOSCOPE 599 (2015) ................................... 17

Denes Szucs & John P.A. Ioannidis, When Null

Hypothesis Significance Testing Is Unsuitable

for Research: A Reassessment, FRONTIERS

HUM. NEUROSCIENCE, Aug. 3, 2017 ..................... 17

1

INTEREST OF AMICI CURIAE

The States of Alabama, Alaska, Arkansas, Florida,

Georgia, Indiana, Iowa, Louisiana, Mississippi, Montana, Nebraska, South Carolina, Tennessee, Texas,

Utah, and West Virginia respectfully submit this brief

as amici curiae in support of the South Carolina Appellants. Amici are States seeking to ensure that “the

good faith of a state legislature” continues to be “presumed.” Miller v. Johnson, 515 U.S. 900, 915 (1995).

Federal courts should never be eager to find a hidden,

unlawful purpose lurking behind a facially valid state

law. As Chief Justice Marshall declared, “it is not on

slight implication and vague conjecture that the legislature is to be pronounced to have transcended its

powers, and its acts to be considered as void.” Fletcher

v. Peck, 10 U.S. 87, 128 (1810). Instead, “[t]he opposition between the constitution and the law” must be

“clear.” Id. And in the redistricting context, courts

should be especially sure to tread lightly, as “[f]ederalcourt review of districting legislation represents a serious intrusion on the most vital of local functions.”

Miller, 515 U.S. at 915. Thus, when there are “legitimate reasons” for a legislature to enact a particular

law, courts should “not infer a discriminatory purpose

on the part of the State.” McCleskey v. Kemp, 481 U.S.

279, 298-99 (1987).

Yet that is precisely what the district court did

here. It not only ignored the presumption of legislative

good faith but flipped it on its head. The court recognized that the General Assembly sought to change the

partisan tilt of District 1 and that partisan legislators

had the partisan data needed to accomplish their partisan goal. Yet the court concluded, without any direct

2

evidence, that the racial effect of the resulting map

was proof of a racial target. By creating this racial target out of thin air, the court effectively imposed a disparate impact regime for redistricting.

This presumption of bad faith represents a serious

threat to self-government and our federalist system.

There are “a whole range of” neutral laws, redistricting and otherwise, that may “in practice … benefit[]

or burden[] one race more than another.” Washington

v. Davis, 426 U.S. 229, 248 (1976). This case shows

how easy it could be for district courts to deem any of

those laws unconstitutional. Simply cherry-pick data

to identify a purported disparity, ignore the challenged law’s obvious purpose, and then declare that

the legislature acted “because of” the disparity. Amici

States have a strong interest in ensuring that this

Court emphatically rejects that legal regime and

makes clear that applying the presumption of legislative good faith is not optional. The Court should reverse the district court’s order.

3

SUMMARY OF ARGUMENT

“Redistricting is primarily the duty and responsibility of the State,” Abbott v. Perez, 138 S. Ct. 2305,

2324 (2018) (cleaned up), and federal courts must “exercise extraordinary caution in adjudicating claims

that a State has drawn district lines on the basis of

race,” Miller, 515 U.S. at 916. Thus, until plaintiffs

can meet their high burden to show that a legislature

“acted with invidious intent,” “the good faith of the

state legislature must be presumed.” Abbott, 138 S.

Ct. at 2324 (cleaned up). But the district court did precisely what the Court in Abbott prohibited: It “reversed the burden of proof,” holding that the General

Assembly had a racial intent simply because its partisan goal had a racial effect. Id. at 2325. The court declined to mention, much less apply, a presumption of

good faith.

The district court instead presumed bad faith, creating a racial target from whole cloth and then using

that target to impute racial intent to the South Carolina General Assembly. The court accepted that

“[w]hen the South Carolina House and Senate began

considering congressional reapportionment in 2021,

the Republican majorities in both bodies sought to create a stronger Republican tilt to Congressional District No. 1.” App.21a. The court then cited an expert

report and a closing statement demonstrative when

noting that “[a]nalyses of partisan voting patterns

within Congressional District No. 1 provided by both

Plaintiffs and Defendants indicated that a district in

the range of 17% African American produced a Republican tilt, a district in the range of 20% produced a

4

‘toss up district,’ and a plan in the 21-24% range produced a Democratic tilt.” App.22a-23a.

So far, so good. But then things took a turn. The

court purported to “find[] that this data demonstrate[ed] the need to limit the African American population to a certain level to produce the desired partisan tilt” and “resulted in a target of 17% African

American population for Congressional District No.

1.” App.23a. This leap in logic—from a “desired partisan tilt” to “a target of 17% African American population,” id.—is as inexplicable as it was unexplained.

The court never assessed whether the General Assembly, when pursuing its “desired partisan tilt,” id.,

acted “because of, not merely in spite of,” the racial

impact. Miller, 515 U.S. at 916 (cleaned up). Indeed,

the direct evidence consistently showed that the General Assembly was motivated by a partisan target rather than a racial one and that it had the partisan

data needed to accomplish its non-racial goal.1

After inventing a racial target and projecting it

onto South Carolina, the court proceeded to conflate

awareness of race with intentional racial sorting, reject partisan actors’ partisan goals as implausible explanations for partisan actions, and presume that any

ostensible oddities in the plan were explainable only

1

Moreover, the data relied on by the district court cannot

“demonstrat[e] the need to limit the African American population

to a certain level.” App.23a (emphasis added). The data show

only that a handful of proposed plans featuring different percentages of African American voters in District 1 would have produced different partisan tilts. Those limited data points do not

rule out other potential iterations of District 1 with both a higher

percentage of African American voters and a Republican tilt.

5

by racial discrimination. The court even strangely

suggested that the General Assembly used “partisanship as a proxy for race,” App.33a, never explaining

why partisans would do that in a case where it was

unnecessary to use race to accomplish partisan goals.

The district court’s standard stacks the deck

against representative government. Redistricting in

particular is a difficult subject for legislatures, with a

“complex interplay of forces that enter a legislature’s

redistricting calculus.” Miller, 515 U.S. at 915-16. But

for the district court, the math here was simple—District 1 ended up with a black population of 17%, so the

General Assembly must have set “a target of 17%”

from the start. App.23a. The district court thus not

only failed to apply a presumption of good faith but

did the opposite, equating the racial effects of a partisan decision with intentional racial discrimination.

The district court’s approach is essentially a disparate-impact regime for redistricting, which would

lead to a flood of new lawsuits for state and local governments. This Court should reverse the decision below.

ARGUMENT

I. The District Court Ignored The Presumption

Of Legislative Good Faith.

A. The presumption of legislative good faith requires courts to presume that a legislature acted for

legitimate reasons unless there is unmistakable evidence to the contrary. The presumption reflects the

different roles that legislatures and courts occupy in

our federal system. Every time legislatures act, they

6

must “exercise the political judgment necessary to balance competing interests.” Miller, 515 U.S. at 915.

Disputes about whether laws are “undemocratic and

unwise” should remain in the statehouse, not the

courthouse. Pers. Adm’r of Mass. v. Feeney, 442 U.S.

256, 280 (1979). The presumption of legislative good

faith thus safeguards the separation of powers between the States and the federal government by steering federal courts away from the temptation to ascribe

bad motives whenever a judge views a legislature’s

work as bad policy.

The presumption also reflects the reality that “discerning the subjective motivation of those enacting [a]

statute is … almost always an impossible task.” Edwards v. Aguillard, 482 U.S. 578, 636 (1987) (Scalia,

J., dissenting). While proving an illicit purpose is no

mean feat even where the decisionmaker is a single

government official, see Ashcroft v. Iqbal, 556 U.S.

662, 680-83 (2009), plaintiffs face even greater “difficulties” where the decisionmaker is a legislative body

as large as a state legislature, Hunter, 471 U.S. at 228.

It is not enough to prove the motives of only a handful

of the bill’s backers, for “the legislators who vote to

adopt a bill are not the agents of the bill’s sponsor or

proponents.” Brnovich v. Democratic Nat’l Comm.,

141 S. Ct. 2321, 2350 (2021). Instead, a plaintiff must

show “that the legislature as a whole was imbued with

racial motives.” Id. Moreover, even if a plaintiff sufficiently proves racial motives, the inquiry does not end.

Instead, “the burden shifts to the law’s defenders to

demonstrate that the law would have been enacted

without this factor.” Hunter, 471 U.S. at 228. If the

law would have been enacted absent a race-based

7

purpose, “there would be no justification for judicial

interference with the challenged” law. Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252,

271 n.21 (1977).

The presumption “takes on special significance in

districting cases,” where “federal-court review of districting legislation represents a serious intrusion on

the most vital of local functions.” Abbott, 138 S. Ct. at

2324 (cleaned up). Courts “must be sensitive to the

complex interplay of forces that enter a legislature’s

redistricting calculus.” Miller, 515 U.S. at 915-16. Any

other approach would “invite losers in the redistricting process to seek to obtain in court what they could

not achieve in the political arena.” Cooper v. Harris,

581 U.S. 285, 335 (2017) (Alito, J., concurring in part).

Plaintiffs’ difficulties are further compounded if

they are alleging a racial gerrymander when “political

and racial reasons are capable of yielding similar oddities in a district’s boundaries.” Cooper, 581 U.S. at

308. Plaintiffs—not the State—must “disentangle

race from politics and prove that the former drove a

district’s lines,” id. (citing Hunt v. Cromartie, 526 U.S.

541, 546 (1999) (Cromartie I)), which requires proof

that “political considerations were subordinated to racial classification,” Bush v. Vera, 517 U.S. 952, 970-71

(1996).

To be sure, the presumption of good faith can be

overcome in certain circumstances, such as when the

State’s conceded “aim” is to “disenfranchis[e] practically all of” one racial group, Hunter v. Underwood,

471 U.S. 222, 230 (1985), or when the State asserts an

explicit desire to target a racial percentage in a

8

district, Cooper, 581 U.S. at 311. There have also been

a few “rare cases in which a statistical pattern of discriminatory impact demonstrated a constitutional violation,” but those cases involved “statistical disparities” so stark that they were “‘tantamount for all practical purposes to a mathematical demonstration’ that

the State acted with a discriminatory purpose.” McCleskey v. Kemp, 481 U.S. 279, 294 n.12

(1987) (quoting Gomillion v. Lightfoot, 364 U.S.

339, 341 (1960)). In all other cases, where there are

nonracial, “legitimate reasons” for a law, courts are

not to “infer a discriminatory purpose.” Id. at 299.

Because of the strength of the good-faith presumption, weak circumstantial evidence is “plainly insufficient to prove … intentional discrimination” in a redistricting plan when a legislature’s stated purpose is

“reasonable” and “legitimate” on its face. Abbott, 138

S. Ct. at 2327. Indeed, where “racial identification is

highly correlated with political affiliation,” even evidence of “the district’s shape, its splitting of towns and

counties, and its high African-American voting population” is insufficient— “as a matter of law”—to justify

a finding of racial intent. Easley v. Cromartie, 532

U.S. 234, 243 (2001) (Cromartie II). Such evidence

cannot meet the high burden to show “that racial considerations [we]re ‘dominant and controlling.’” Id. at

257 (quoting Miller, 515 U.S. at 913).

In Abbott, for example, the Court faulted the lower

court for imputing bad faith to the legislature based

on wholly circumstantial evidence, such as recent discriminatory intent in prior redistricting and the “willful ignorance” of the legislature toward deficiencies in

the new plan. Abbott, 138 S. Ct. at 2327-29 (cleaned

9

up). Rejecting this reliance on circumstantial evidence, the Court emphasized that “[t]he only direct evidence … suggest[ed] that the 2013 Legislature’s intent was legitimate” and that the district court improperly “discounted this direct evidence.” Id. at 2327.

Because the legislature’s expressed intent was “entirely reasonable and certainly legitimate,” the circumstantial evidence was “plainly insufficient to

prove that the 2013 Legislature acted in bad faith and

engaged in intentional discrimination.” Id.

B. Despite Defendants’ repeated references to Abbott and its required good-faith presumption, see, e.g.,

Doc. 323 at 1, 29, 33, the district court here didn’t even

mention, much less apply, the presumption of legislative good faith. That unexplained failure to apply the

correct legal standard is grounds enough to reverse.

See Abbott, 138 S. Ct. at 2326 (“[W]hen a finding of

fact is based on the application of an incorrect burden

of proof, the finding cannot stand.”); see also League of

Women Voters of Fla., Inc. v. Fla. Sec’y of State, 32

F.4th 1363, 1373 (11th Cir. 2022) (per curiam) (staying district court injunction pending appeal because

“it does not appear to us that the district court here

meaningfully accounted for the presumption” of legislative good faith).

Worse, the court applied the very analysis denounced in Abbott by cross-examining the legislative

aide who drew the map, ascribing racial motivations

to his actions, and then assigning those motivations to

the State itself. In doing so, the district court improperly shifted the burden of proof to the State, holding

that the mapdrawer “failed to provide the Court with

any plausible explanation for the abandonment of his

10

‘least change’ approach … or the subordination of traditional districting principles.” App.29a. The court did

not attempt to explain why the mapdrawer’s testimony that he targeted a “partisan lean” was not a

“plausible explanation.” App.24a. This was not a credibility determination between conflicting testimony,

cf. Cooper, 581 U.S. at 309-10, but instead a complete

rejection of the idea that a good-faith partisan explanation could be plausible.

Indeed, the district court recognized yet then “discounted … direct evidence” that universally indicated

legitimate political motives. Abbott, 138 S. Ct. at 2327.

First, “Republican majorities in both” the House and

Senate “sought to create a stronger Republican tilt to

Congressional District No. 1.” App.21a. Second, “the

lead proponent of what would become the enacted congressional district plan … explained at trial that he

was seeking to include” particular “counties in the reconfigured Congressional District No. 1 to give the

district a stronger Republican lean.” App.22a. Third,

the mapdrawer “testified that he relied ‘one hundred

percent’ on data regarding ‘the partisan lean of the

district.’” App.24a (quoting Roberts Tr. 1558:13-19).

And fourth, the State admitted its goal to preserve

“the 6-1 Republican-to-Democratic split in House

seats.” Doc. 323 at 16. Yet, citing even less evidence

than the lower court in Abbott—which could at least

point to the Texas Legislature’s recent history of discriminatory map drawing—the district court inexplicably “discounted this direct evidence” and assumed a

secret racial motivation. Abbott, 138 S. Ct. at 2327.

When “[t]he only direct evidence brought to [the

Court’s] attention suggests that the … Legislature’s

11

intent was legitimate,” the district court’s contrary

finding cannot stand. Id. The facts relied on by the

district court “cannot, as a matter of law, support the

District Court’s judgment.” Cromartie II, 532 U.S. at

243.

II. The District Court Invented And Ascribed To

The General Assembly An Irrational Racial

Intent.

The district court didn’t just assume that Republican majorities in the General Assembly were discriminatory; the court thought they were dimwitted too.

How else to explain the court’s conclusion that these

partisan actors with partisan data on hand decided to

imperil their partisan plan by needlessly injecting

race into the redistricting process? Occam’s razor suggests that a rational, partisan legislature would

simply use partisan data to alter the partisan lean of

District 1. But the district court found that legislators

instead constructed and aimed first at a racial “target

of 17% African American population for Congressional

District No. 1” (App.23a) as a bank shot means of hitting the partisan target they formed when they “began

considering congressional reapportionment in 2021.”

App.21a. That makes no sense. And this lack of any

plausible racial motive sets this case apart from the

racial gerrymandering cases the Court over has considered since Shaw v. Reno, 509 U.S. 630 (1993).

This case, for example, does not involve a State relying on the Voting Rights Act to try to justify racebased lines. See, e.g., Abbott, 138 S. Ct. at 2334

(“Texas does not dispute that race was the predominant factor in the design of HD90, but it argues that

12

this was permissible because it had ‘good reasons to

believe’ that this was necessary to satisfy § 2 of the

Voting Rights Act.”); Ala. Legis. Black Caucus v. Alabama, 575 U.S. 254, 275 (2015) (attempts to comply

with VRA led to racial gerrymander); Bush, 517 U.S.

at 979 (State relying on VRA to defend “bizarrely

shaped” districts); Miller, 515 U.S. at 927-28 (invalidating a plan that was based on “a shortsighted and

unauthorized view of the Voting Rights Act” by which

the Act would “demand the very racial stereotyping

the Fourteenth Amendment forbids”). No one in South

Carolina argued that District 1 needed to have an African-American population of 17% “to avoid dilution of

black voting strength in violation of § 2.” Shaw, 509

U.S. at 655; see also Cooper, 581 U.S. at 299 (legislators “repeatedly told their colleagues that District 1

had to be majority-minority, so as to comply with the

VRA”). Unlike in Shaw and its progeny, this racial

gerrymandering case does not involve a State guessing wrong about what the VRA might require.

Nor did the district court suggest that “legislators

use[d] race as” cover for partisanship, “thinking that

a proposed district is more ‘sellable’ as a race-based

VRA compliance measure than as a political gerrymander.” Cooper, 581 U.S. at 308 n.7.

Neither is this a situation like that faced by the

mapdrawers in the early 1990s in Bush v. Vera, who

had access to racial data that was more detailed than

then-available partisan data. That asymmetry created an incentive to use race as a proxy for partisanship. 517 U.S. at 961-62. As the Court recounted, mapdrawers had access to “unprecedented” “block-byblock racial data,” and this “uniquely detailed racial

13

data … enabled districters to make more intricate refinements on the basis of race than on the basis of

other demographic information.” Id. The result was

unmistakable. Districts’ borders “change[d] from

block to block” in a “nearly perfect” emulation of “racial data at the block-by-block level.” Id. at 961-62. Notably, “other data, such as party registration and past

voting statistics, were only available at the level of

voter tabulation districts.” Id. at 961. Thus, because

only racial data were available with such granularity,

only race could explain the district’s “change from

block to block, from one side of the street to the

other, … in seemingly arbitrary fashion.” Id. at 962.

Unlike thirty years ago, today’s mapdrawers have

no need to use race as a proxy for partisanship because they “now have access to more granular data

about party preference and voting behavior than ever

before,” including “city-block-level data.” Rucho v.

Common Cause, 139 S. Ct. 2484, 2513 (2019) (Kagan,

J., dissenting). Plus, new “computerized mapmaking

software” can generate “millions” of potential “population-balanced districting plans that satisfy the state’s

requirements” without considering race. Allen v. Milligan, 143 S. Ct. 1487, 1513-14 (2023). Thus, even if

the district court wasn’t willing to presume the General Assembly’s good faith, it should have at least assumed that the General Assembly would not needlessly (and recklessly) sort voters based on race instead of partisanship when trying to “create a

stronger Republican tilt to Congressional District No.

1.” App.21a. “A legislature trying to secure a safe [Republican] seat is interested in [Republican] voting behavior.” Cromartie II, 532 U.S. at 245. Because that

14

admitted partisan aim explains this legislature’s actions, Plaintiffs failed “to disentangle race from politics and prove that the former drove a district’s lines.”

Cooper, 581 U.S. at 308.

The district court’s error may have stemmed from

its obviously mistaken premise that a handful of maps

presented by the Plaintiffs “demonstrat[ed] the need

to limit the African American population” to 17% of

District 1 “to produce the desired partisan tilt.”

App.23a (emphasis added). The fact that Plaintiffs

proposed a few plans that leaned more heavily Democratic and had higher percentages of black voters in

District 1 does not show a “need” for the enacted plan

to be at 17%. If “the number of possible districting

maps in Alabama is at least in the trillion trillions,”

Milligan, 143 S. Ct. at 1514 (quotation marks omitted), there are surely at least a few versions of South

Carolina’s District 1 that tilt Republican while having

a black voting age population of more than 17%. In

any event, Plaintiffs certainly never proved—or even

tried to prove—that a 17% target was needed. That

theory of the case was invented by the district court.

The district court invented one other odd theory.

The court appears to have assumed not only that the

General Assembly used racial data as a proxy for the

partisanship data it already possessed, but also that

the General Assembly “use[d] partisanship as a proxy

for race.” App.33a. It is not clear exactly what the district court meant by that. Why would a legislature

ever use partisanship as a proxy for race, when detailed racial data could be used instead? Plaintiffs

never claimed in their complaint that partisanship

was used as a proxy for race. See Doc. 267. More to the

15

point, why would a legislature set on “creat[ing] a

stronger Republican tilt to Congressional District No.

1,” App.21a, limit its options for doing so by incorporating a racial target? The decision below underscores

the dangers of abandoning the presumption of legislative good faith and the need for the Court to reaffirm

the presumption.

III. The District Court Effectively Created A Disparate-Impact Regime For Redistricting.

A. As this Court has repeatedly recognized, nearly

every policy has the potential for some disparate racial impact. A legislative decision cannot be held discriminatory simply because “in practice it benefits or

burdens one race more than another”; such a rule

“would be far-reaching and would raise serious questions about, and perhaps invalidate, a whole range of

tax, welfare, public service, regulatory, and licensing

statutes that may be more burdensome to” some racial

groups than to others. Washington v. Davis, 426 U.S.

at 248.

This observation rings particularly true in redistricting, where “racial identification is highly correlated with political affiliation.” Cromartie II, 532 U.S.

at 243. “If district lines merely correlate with race because they are drawn on the basis of political affiliation, which correlates with race, there is no racial classification to justify, just as racial disproportions in the

level of prosecutions for a particular crime may be unobjectionable if they merely reflect racial disproportions in the commission of that crime.” Bush, 517 U.S.

at 968. At the same time, this correlation means that

courts must “‘exercise extraordinary caution’ in

16

distinguishing race-based redistricting from politicsbased redistricting,” lest “the federal courts … be

transformed into weapons of political warfare.”

Cooper, 581 U.S. at 335 (Alito, J., concurring in part)

(quoting Miller, 515 U.S. at 916). Thus, plaintiffs

bringing racial gerrymandering claims must prove

“more than intent as volition or intent as awareness

of consequences.” Miller, 515 U.S. at 916 (quoting

Feeney, 442 U.S. at 279). When courts fail to hold

plaintiffs to this high burden, “they … invite the losers

in the redistricting process to seek to obtain in court

what they could not achieve in the political arena.”

Cooper, 581 U.S. at 335 (Alito, J., concurring in part).

Courts should be especially cautious about conflating racial correlation with racial motives because

plaintiffs can almost always find an expert who can

identify a suspicious-sounding statistical correlation.

As scientists have routinely emphasized, “statistical

significance can obviously be obtained even from pure

noise by the simple means of repeatedly performing

comparisons, excluding data in different ways, examining different interactions, controlling for different

predictors, and so forth.” Andrew Gelman & Eric

Loken, The Statistical Crisis in Science, 102 AMERICAN SCIENTIST 460, 460-65 (2014). Thus, if “a highly

unscrupulous researcher … perform[ed] test after test

in a search for statistical significance,” a statistically

significant result “could almost certainly be found.”

Id. As one study explains, “[w]hen rolling one die, the

chance of a six is 1/6, or 17%. When ten dice are rolled,

the chance of at least one landing on six is 84%. Similarly, when multiple hypotheses are tested, each at a

significance level of 0.05, the chance of obtaining at

17

least one false positive rises precipitously with the

number of hypotheses tested.” Erin M. Kirkham & Edward M. Weaver, A Review of Multiple Hypothesis

Testing in Otolaryngology Literature, 125 LARYNGOSCOPE 599, 599-603 (2015); see also Denes Szucs &

John P.A. Ioannidis, When Null Hypothesis Significance Testing Is Unsuitable for Research: A Reassessment, FRONTIERS HUM. NEUROSCIENCE, Aug. 3, 2017,

at 1, 11 (discussing ways in which this phenomenon

makes “unjustified inference too easy”). What this

means in the redistricting context is that if one metric

for a challenged map does not suit the plaintiffs’

needs, they can always try another. And if controlling

for certain traditional redistricting criteria explains

the racial breakdown of a district, an expert can

simply ignore those criteria and pin the distribution

instead on race.

Plaintiffs in redistricting cases generally know this

phenomenon to be true, which is why they sometimes

disavow their own statistical analyses. For example,

in litigation over Alabama’s 2021 congressional districts, the plaintiffs—represented by many of the

same counsel representing Plaintiffs in this case—

used Dr. Kosuke Imai to perform a “race-blind simulation analysis” that would purportedly reveal the

challenged map to be race predominant. See App.30a;

Supp. Jt. App. at 52, Milligan, 143 S. Ct. 1487 (No. 211086). They argued that his analysis “alone show[ed]

that [Alabama’s] HB1 used race as a predominant factor to crowd Black voters into District 7” because of

the statistical differences between his simulations

and the enacted plan. Mot. for Prelim. Inj., Milligan

v. Merrill, Case No. 2:21-cv-1530-AMM (N.D. Ala.

18

filed Dec. 15, 2021) (ECF No. 69); Supp. Jt. App. at 62,

Milligan, 143 S. Ct. 1487 (No. 21-1086). The problem

with this analysis was obvious: Alabama’s enacted

plan—like South Carolina’s plan—followed existing

district lines; Dr. Imai’s simulations did not. He drew

on a blank slate. His analysis thus could not reveal

that race predominated in the map he claimed to be

evaluating. But when Alabama noted that Dr. Imai’s

analysis could show that race predominated in blankslate plans offered by plaintiffs in that litigation,

plaintiffs tossed their expert to the curb. In their

words, “[s]imulations that do not match what states

actually do in redistricting are neither useful nor relevant.” Appellees’ Br. at 50, Milligan, No. 21-1086

(filed July 11, 2022).

Perhaps redistricting plaintiffs will all now recognize that fact and stop attacking enacted plans with

useless and irrelevant analyses. More likely, plaintiffs

will continue offering courts cherrypicked data in

hopes that courts mistake correlations for causation.

B. After all, it worked here. The district court

based its finding of racial motivation almost entirely

on correlations it found suspicious. Indeed, by focusing on the statistical effects of the new map, the district court appeared to define “discriminatory purpose” as mere volition or awareness of consequences—

the very analysis this Court has repeatedly warned

against. See, e.g., Miller, 515 U.S. at 916; Feeney, 442

U.S. at 279. According to the district court, the General Assembly chose a map with a partisan tilt (volition), knowing that the partisan tilt would result in “a

district in the range of 17% African American” (awareness of consequences). App.23a. From this alone, the

19

court reasoned that the General Assembly had a predetermined purpose to achieve “a target of 17% African American population” in the district. Id. The district court never considered that the General Assembly may have acted “in spite of,” not “because of,” racial effects. Miller, 515 U.S. at 916 (quoting Feeney,

442 U.S. at 279). Indeed, none of the evidence cited by

the court was incompatible with the State’s asserted

purpose of creating a partisan tilt in District 1. Yet

without any evidence showing that the General Assembly chose the map because of its effects on race,

the court was left with a singular focus on the General

Assembly’s decision to choose a map while aware of its

racial effects. This is materially indistinguishable

from a disparate-impact regime for redistricting.

Other elements of the opinion bear this out. The

district court emphasized the mapdrawer’s awareness

of race, reasoning that his “in-depth knowledge of the

racial demographics of South Carolina” belied “his

claim that he did not consider race in drawing Congressional District No. 1.” App.29a-30a. There are at

least two problems here. First, the mapdrawer is not

the General Assembly, so his purported consideration

of race (conscious or otherwise) cannot be imputed to

the General Assembly. See Brnovich, 141 S. Ct. at

2350 (“The ‘cat’s paw’ theory has no application to legislative bodies.”).

Second, “the legislature always is aware of race

when it draws district lines, just as it is aware of age,

economic status, religious and political persuasion,

and a variety of other demographic factors. That sort

of race consciousness does not lead inevitably to impermissible race discrimination.” Shaw, 509 U.S. at

20

646. Thus, ensuring an incumbent remains in her district is not racial gerrymandering, even if the legislature knows her race. And “a jurisdiction may engage

in constitutional political gerrymandering, even if it

so happens that the most loyal Democrats happen to

be black Democrats and even if those responsible for

drawing the district are conscious of that fact.”

Cromartie I, 526 U.S. at 542. “If the State’s goal is otherwise constitutional political gerrymandering, it is

free … to achieve that goal regardless of its awareness

of its racial implications.” Bush, 517 U.S. at 968.

Apart from awareness of race, the court’s only

other “striking evidence” of racial intent was the mapdrawer’s purported “subordination of traditional districting principles” and “abandonment of his ‘least

change’ approach.”2 App.29a. But each of these pieces

of evidence is more readily explained by the State’s

declared partisan motivations. The State never hid

the ball: It wanted to preserve “the 6-1 Republican-toDemocratic split in House seats,” a target that “animated the General Assembly’s line-drawing decisions” and ultimately manifested in the final plan.

Doc. 323 at 16. The court never explained why this

could not be a plausible explanation for any of the evidence it found suspicious. Because political

2 The court also discussed “South Carolina’s legal and political

history” but did not state whether that history supported a finding of discriminatory intent. App.18a-20a. In any case, “[p]ast

discrimination cannot, in the manner of original sin, condemn

governmental action that is not itself unlawful,” and “[t]he allocation of the burden of proof and the presumption of legislative

good faith are not changed by a finding of past discrimination.”

Abbott, 138 S. Ct. at 2324.

21

motivations could explain all the “oddities in [the] district’s boundaries,” Cooper, 581 U.S. at 308, the

State’s express political motivation—which was “entirely reasonable and certainly legitimate”—should

have received a presumption of good faith, not cursory

dismissal. Abbott, 138 S. Ct. at 2327. Indeed, “the legitimate noninvidious purposes of [the] law cannot be

missed.” Feeney, 442 U.S. at 275.

The district court’s other observations similarly go

only to the effect, not the intent, of the law. For example, the court noted that the mapdrawer “acknowledged … that if there was a target for the district of

17%, the inclusion of a VTD that was 35% African

American would adversely impact the 17% objective.”

App.28a (emphasis added). But this unremarkable

(and question-begging) tautology merely acknowledged the racial effect of the selected map.

The district court next noted that 2020 census data

applied to the 2011 lines for District 1 resulted in an

African-American percentage of 17.8%, the same percentage in District 1 under the 2022 plan enacted by

the General Assembly. App.29a. In the court’s view,

this “was more than a coincidence and was accomplished only by the stark racial gerrymander.” Id. Not

only was this an odd statement (normally, a lack of

change would be the least suspicious outcome), but the

court was again merely observing an effect of the plan

and ascribing to it a racial intent. Neither numerology

nor speculation are bases for invalidating a facially

neutral law.

The district court also relied on the analysis of Dr.

Jordan Ragusa, who concluded that the racial

22

composition of a voter tabulation district (VTD) was a

better predictor than political composition of whether

the VTD would be moved from the prior version District 1 to another district. App.31a-32a. But Dr. Ragusa’s analysis suffered the very flaw this Court criticized in Cromartie II: It failed to “specify whether the

excluded white-reliably-Democratic precincts were located near enough to [the district’s] boundaries or

each other for the legislature as a practical matter to

have drawn [the district’s] boundaries to have included them, without sacrificing other important political goals.” 532 U.S. at 247; see Doc. 323-29. Indeed,

Dr. Ragusa did not consider compactness at all. Doc.

323-30 at 3. An analysis that suffers this fundamental

flaw “offers little insight into the legislature’s true motive,” Cromartie II, 532 U.S. at 248, because it cannot

show “that the legislature could have achieved its legitimate political objectives in alternative ways that

are comparably consistent with traditional districting

principles,” id. at 258. And it certainly cannot show

that a plan is “unexplainable in terms other than

race.” Bush, 517 U.S. at 972.

Finally, the court cited the testimony of Dr. Imai,

who concluded that the 2022 plan “splits Charleston

County by placing a disproportionately large number

of black voters into District 6, while assigning relatively few voters to District 1.” App.30a (quoting PX0032, Expert Report of Kosuke Imai at 13). But Dr.

Imai admitted that he never considered partisan information in his analysis, much less controlled for it.

JA.251-56. His “[s]imulations … are neither useful

nor relevant.” Appellees’ Br. at 50, Milligan, 143 S. Ct.

1487 (No. 21-1086).

23

In sum, the district court’s observations about the

effect of the plan fall far short of showing that the

State acted “because of, not merely in spite of,” racial

impact. Miller, 515 U.S. at 916 (cleaned up). “Absent

a pattern as stark as that in Gomillion or Yick Wo,

impact alone is not determinative, and the Court must

look to other evidence.” Arlington Heights, 429 U.S. at

266. Because the record lacked such additional evidence, and this case is no Gomillion, the presumption

of legislative good faith must carry the day.

CONCLUSION

The Court should reverse the decision below.

Respectfully submitted,

STEVE MARSHALL

Alabama Attorney General

Edmund G. LaCour Jr.

Solicitor General

Counsel of Record

Bethany C. Lee

Assistant Solicitor General

OFFICE OF ALA. ATT’Y GEN.

501 Washington Avenue

Montgomery, AL 36130

(334) 242-7300

edmund.lacour@AlabamaAG.gov

JULY 14, 2023

(Additional Counsel listed below)

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