Amicus Curiae Brief — Charles Walen, et al., Appellants v. Doug Burgum, Governor of North Dakota, et al.

No. 23-969

In the

Supreme Court of the United States

──────────────────────────

CHARLES WALEN and PAUL HENDERSON,

Plaintiffs-Appellants,

v.

DOUG BURGUM, et al.,

Defendants-Appellees.

The MANDAN, HIDATSA, and ARIKARA Nation;

CESAR ALVAREZ; and LISA DEVILLE,

Intervenors-Appellees.

──────────────────────────

On Appeal From the United States District Court

for the District of North Dakota

──────────────────────────

BRIEF OF ALABAMA AND 13 OTHER STATES AS

AMICI CURIAE IN SUPPORT OF APPELLANTS

──────────────────────────

OFFICE OF THE ALABAMA

STEVE MARSHALL

ATTORNEY GENERAL

Attorney General

501 Washington Avenue

EDMUND G. LACOUR JR.

Montgomery, AL 36130

Solicitor General

(334) 242-7300

Counsel of Record

Edmund.LaCour@

SOREN GEIGER

AlabamaAG.gov

Assistant Solicitor General

Counsel for Amicus Curiae

State of Alabama

April 5, 2024

i

TABLE OF CONTENTS

TABLE OF CONTENTS ............................................. i

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

INTEREST OF AMICI CURIAE ................................1

SUMMARY OF ARGUMENT .....................................2

ARGUMENT ...............................................................3

I.

The Gingles Preconditions Alone Cannot

Justify Race-Based Districting. .....................3

A. Unequal Opportunity to Participate

in the Political Process is a

Necessary Element of a §2 Vote

Dilution Claim. .........................................5

B. The District Court Greenlit Racial

Gerrymandering Based Solely on

the Gingles Preconditions. ..................... 10

C. Other Courts Have Adopted a

Similarly Atextual Approach to §2. ..... 144

II.

The District Court’s Approach To §2 Is

Unconstitutional. ....................................... 177

III. The States Need Clarity. ............................. 20

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

ii

TABLE OF AUTHORITIES

Cases

Abbott v. Perez,

585 U.S. 579 (2018) ............................................ 1, 4

Abrams v. Johnson,

521 U.S. 74 (1997) ................................................ 22

Allen v. Milligan,

599 U.S. 1 (2023) ........................................ 4, 15, 19

Alpha Phi Alpha Fraternity Inc. v. Raffensperger,

No. 1:21-cv-05337, 2023 WL 7037537

(N.D. Ga. Oct. 26, 2023) ................................. 14, 21

Callais v. Landry,

No. 3:24-cv-00122

(W.D. La. Jan. 31, 2024) ...................................... 23

Chisom v. Roemer,

501 U.S. 380 (1991) ............................ 5, 6, 9, 15, 16

City of Richmond v. J.A. Croson Co.,

488 U.S. 469 (1989) .............................................. 17

Clark v. Calhoun County,

21 F.3d 92 (5th Cir. 1994) .................................... 14

Cooper v. Harris,

581 U.S. 285 (2017) .................................... 4, 15, 16

Dilliard v. City of Greensboro,

213 F.3d 1347 (11th Cir. 2000) ............................ 18

iii

Growe v. Emison,

507 U.S. 25 (1993) ................................................ 14

Grutter v. Bollinger,

539 U.S. 306 (2003) .............................................. 17

Hays v. State of Louisiana,

936 F. Supp. 360 (W.D. La. 1996)........................ 23

Jenkins v. Red Clay Consol. Sch. Dist. Bd. of Educ.,

4 F.3d 1103 (3d Cir. 1993) ................................... 14

Johnson v. De Grandy,

512 U.S. 997 (1994) .......................... 6, 9, 12, 15, 16

Johnson v. DeSoto Cnty. Bd. of Comm’rs,

72 F.3d 1556 (11th Cir. 1996) .............................. 13

Ketchum v. Byrne,

740 F.2d 1398 (7th Cir. 1984) .............................. 18

League of United Latin Am. Citizens,

Council No. 4434 v. Clements,

999 F.2d 831 (5th Cir. 1993) ................................ 20

Miller v. Johnson,

515 U.S. 900 (1995) ................................ 3, 4, 20, 22

NAACP v. City of Niagara Falls,

65 F.3d 1002 (2d Cir. 1995) ................................. 14

iv

Nairne v. Ardoin,

2024 WL 492688

(M.D. La. Feb. 8, 2024) .............................. 3, 14, 23

Nw. Austin Mun. Util. Dist. No. One v. Holder,

557 U.S. 193 (2009) .............................................. 18

Petteway v. Galveston County,

No. 3:22-cv-57, 2023 WL 6786025

(S.D. Tex. Oct. 13, 2023) ...................................... 14

Plessy v. Ferguson,

163 U.S. 537 (1896) ................................................4

Robinson v. Ardoin,

605 F. Supp. 3d 759 (M.D. La. 2022)................... 23

Rucho v. Common Cause,

139 S. Ct. 2484 (2019) .................................... 20, 21

SFFA v. President & Fellows of Harvard Coll.,

600 U.S. 181 (2023) .................................. 17, 19, 20

Shaw v. Hunt,

517 U.S. 899 (1996) .............................................. 19

Shaw v. Reno,

509 U.S. 630 (1993) ............................................ 1, 3

Shelby County v. Holder,

570 U.S. 529 (2013) ........................................ 17, 24

South Carolina v. Katzenbach,

383 U.S. 301 (1966) .............................................. 18

v

Taggart v. Lorenzen,

139 S. Ct. 1795 (2019) ............................................6

Teague v. Attala County,

92 F.3d 283 (5th Cir. 1996) .................................. 14

Thornburg v. Gingles,

478 U.S. 30 (1986) ................... 1-3, 5-7, 9-12, 14-17

Turtle Mtn. Band of Chippewa Indians v. Howe,

No. 3:22-cv-22, 2023 WL 8004576

(D.N.D. Nov. 17, 2023) ......................................... 21

Wesch v. Hunt,

785 F. Supp. 1491 (S.D. Ala. 1992) ..................... 17

Whitcomb v. Chavis,

403 U.S. 124 (1971) ...........................2, 6-10, 13, 24

White v. Regester,

412 U.S. 755 (1973) .......................2, 6, 8-10, 13, 24

Wis. Legislature v. Wis. Elections Comm’n,

595 U.S. 398 (2022) ...............................4, 12, 14-16

Wright v. Sumter Cnty. Bd. of Elections and Reg.,

979 F.3d 1282 (11th Cir. 2020) ............................ 14

Wygant v. Jackson Bd. of Educ.,

476 U.S. 267 (1986) .............................................. 19

vi

Statutes

52 U.S.C. §10301(b) ..............................1, 2, 4, 5, 11-13

................................................................... 18, 20-22, 24

52 U.S.C. §10302(c) ............................................... 3, 24

52 U.S.C. §10308(a) ............................................... 3, 24

Constitutional Provisions

U.S. CONST. amend XIV ................................ 16, 17, 23

Other Authorities

Richard Marcellais, BALLOTPEDIA,

https://ballotpedia.org/Richard_Marcellais#El

ections (last accessed April 3, 2024) .................... 19

INTEREST OF AMICI CURIAE

The States of Alabama, Alaska, Georgia, Iowa,

Kansas, Mississippi, Missouri, Montana, Nebraska,

South Carolina, South Dakota, Texas, Utah, and West

Virginia respectfully submit this brief as amici curiae

in support of Appellants.1

“Redistricting is never easy,” Abbott v. Perez, 585

U.S. 579, 585 (2018), and for many States, litigationfree redistricting will be virtually impossible if courts

continue to overlook the text of the Voting Rights Act.

The District Court here never considered the meaning

of §2, focusing solely on the preconditions to liability

set forth in Gingles. Other courts identify evidence

that can fit into “Senate Factors” categories, but the

quantum of evidence needed to prove liability remains

undefined. Neither approach provides legislators

meaningful guidance on how to craft redistricting

laws that comply with both §2 and the Constitution.

Amici States have an interest in being able to

accurately predict whether their redistricting laws

will comply with federal law. North Dakota is one of

the latest to fall prey to the uncertainty that continues

to mark vote dilution claims. Below, the District Court

held that North Dakota could racially gerrymander to

comply with §2. Weeks later, another district court

held that the same districting law violated §2 because

North Dakota failed to engage further in racial

sorting. Neither decision makes sense as a matter of

statutory interpretation, and both “threaten[] to carry

us further from the goal of a political system in which

race no longer matters.” Shaw v. Reno, 509 U.S. 630,

657 (1993). This area of the law needs clarity now.

1 Per Rule 37, Amici provided timely notice to counsel of record.

2

SUMMARY OF ARGUMENT

In 1982, Congress amended Section 2 of the Voting

Rights Act, codifying the test for vote dilution

employed by this Court in Whitcomb v. Chavis, 403

U.S. 124 (1971), and White v. Regester, 412 U.S. 755

(1973). This test has two key elements: members of

the minority group must have less opportunity than

other voters to (1) elect representatives of their choice,

and (2) participate in the political process. Proof of

both is required to establish liability.

In 1986, the Court decided Thornburg v. Gingles,

478 U.S. 30 (1986), which established three preconditions every plaintiff must satisfy before a court will

consider whether a redistricting law violates §2.

These prerequisites touch upon the first element in

the test: opportunity to elect. If plaintiffs clear these

three hurdles, they still must show less opportunity to

participate in the political process. That element—

articulated in Whitcomb and White and codified in

§2—requires evidence that members of the minority

group are not allowed to register and vote, choose a

preferred party, participate in its affairs, or have an

equal vote when the party’s candidates are chosen.

The District Court, when holding that North Dakota had good reasons to believe §2 required it to sort

voters by race, ignored the second part of the test,

focusing exclusively on the first. And many courts that

purport to consider whether there is equal opportunity to participate in the political process do so without any description of precisely what plaintiffs must

prove or how it ties into §2.

3

These atextual approaches are both standardless

and unconstitutional. If §2 requires States in 2024 to

gerrymander their maps according to race wherever

the Gingles preconditions are likely satisfied, then §2

is no longer constitutional. That approach does not

identify past discrimination that could justify a racebased remedy, and it requires racial classifications in

districting with no end in sight. Similarly, a political

participation inquiry that looks not to the ability to

vote but rather to such things as disparities in “access

to computers”2 or “the subliminal message of the Sheriff’s Office being housed on the same floor as [the] Registrar of Voter’s Office,”3 cannot be justified under §2

or the Constitution.

No statute that authorizes preclearance for racial

gerrymanders and prison time for §2 violations should

remain so inscrutable. See 52 U.S.C. §§10302(c),

10308(a). The States need clarity, and the Court

should provide it now.

ARGUMENT

I. The Gingles Preconditions Alone Cannot

Justify Race-Based Districting.

Under our Constitution, race-based classifications

“are by their very nature odious,” Shaw v. Reno,

509 U.S. 630, 643 (1993), “offensive,” Miller v. Johnson, 515 U.S. 900, 912 (1995), “demeaning,” id., and

“inconsistent ... with that equality of rights which pertains to citizenship” and “the personal liberty enjoyed

2 Doc. 109-19 at 10.

3 Nairne v. Ardoin, 2024 WL 492688, at *41 n.461 (M.D. La.

Feb. 8, 2024).

4

by every one within the United States,” Plessy v. Ferguson, 163 U.S. 537, 555 (1896) (Harlan, J., dissenting).

Nevertheless, Section 2 of the VRA “demands consideration of race,” “often insist[ing] that districts be

created precisely because of race.” Abbott v. Perez,

585 U.S. 579, 586-87 (2018). Recognizing these “competing hazards of liability,” id. at 587, the Court has

“assumed that complying with”4 §2 can justify “narrowly tailored” “race-based sorting of voters,” Wisconsin Legislature v. Wisconsin Elections Comm’n,

595 U.S. 398, 401 (2022) (per curiam).

To survive “strict scrutiny,” the State “must

show … that it had a strong basis in evidence for concluding that the statute required” “race-based districting.” Id. at 401-02 (quoting Cooper v. Harris, 581 U.S.

285, 292 (2017)). While this standard gives the States

a little “‘breathing room’ to make reasonable mistakes” of fact, it “does not allow a State to adopt a

racial gerrymander that the State does not, at the

time of imposition, ‘judge necessary under a proper

interpretation of the VRA.’” Id. at 404 (quoting

Cooper, 581 U.S. at 292, 306). A reading of the VRA is

not proper unless it is “a constitutional reading and

application of” the law. Miller, 515 U.S. at 921.

The District Court assumed that North Dakota

racially gerrymandered its 2021 Plan. Still, the Plan

earned the District Court’s stamp of approval because

there were good reasons to think a hypothetical

4 The Court has “never applied this assumption to uphold a

districting plan that would otherwise violate the Constitution….”

Allen v. Milligan, 599 U.S. 1, 79 (2023) (Thomas, J., dissenting).

5

plaintiff could clear a few of the hurdles necessary,

though not sufficient, to prove a §2 vote dilution claim.

This betrays an atextual, improper, and unconstitutional interpretation of §2 that requires reversal.

While the District Court’s failure to engage the

text of §2 was particularly obvious, many other lower

courts likewise give the text short shrift by presuming

vote dilution whenever a new majority-minority

district can plausibly be drawn. The result is a jurisprudence of vote dilution that strays far from the original meaning of the statute and renders it utterly

unpredictable for any Legislature trying to determine

whether race-based districting is required or whether

race-neutral districting will do. Congress did not write

so arbitrary a law.

A. Unequal Opportunity to Participate in

the Political Process is a Necessary

Element of a §2 Vote Dilution Claim.

To prove that a voting “standard, practice, or

procedure” dilutes minority voting strength in violation of §2, a plaintiff must show that members of a

minority group “have less opportunity than other

members of the electorate [1] to participate in the

political process and [2] to elect representatives of

their choice.” 52 U.S.C. §10301 (emphasis added). In

Chisom v. Roemer, the Court clarified that proving

only less opportunity to elect “is not sufficient to

establish a violation unless, under the totality of the

circumstances, it can also be said that the members of

the protected class have less opportunity to participate in the political process.” 501 U.S. 380, 397 (1991).

A few years earlier, in Thornburg v. Gingles, the Court

6

established a threshold showing every §2 plaintiff

must overcome. 478 U.S. 30, 50-51 (1986). These three

prerequisites, known as the Gingles preconditions,

speak only to electoral opportunity. See Johnson v. De

Grandy, 512 U.S. 997, 1011-13 (1994).5 To assess §2

liability, “courts must also examine … the extent of

the opportunities minority voters enjoy to participate

in the political processes.” Id. at 1011-12.

To determine if Native Americans and other members of the North Dakota electorate today enjoy an

equal “opportunity … to participate in the political

process,” it is of first importance to determine what

that statutory phrase means.

Chisom again points to the answer. The 1982

amendments to “§ 2 [were] intended to ‘codify’ the

results test employed in Whitcomb v. Chavis, 403 U.S.

124 (1971), and White v. Regester, 412 U.S. 755

(1973).” Chisom, 501 U.S. at 394 n.21 (quoting

Gingles, 478 U.S. at 83-84 (O’Connor, J., concurring in

the judgment)). Those two decisions supplied §2’s key

language. And because the phrase “is obviously transplanted from another legal source,” standard rules of

statutory interpretation mandate that “it brings the

old soil with it.” Taggart v. Lorenzen, 139 S. Ct. 1795,

1801 (2019) (cleaned up). Thus, “it is to Whitcomb and

White that [courts] should look in the first instance in

determining how great an impairment of minority

voting strength is required to establish vote dilution

5 See also Gingles, 478 U.S. at 50 n.15 (“It is obvious that unless

minority group members experience substantial difficulty

electing representatives of their choice, they cannot prove that a

challenged electoral mechanism impairs their ability ‘to elect.’”);

id. at 50 (“inability to elect”); id. at 46, 48, 51 (“ability to elect”).

7

in violation of § 2.” Gingles, 478 U.S. at 97 (O’Connor,

J., concurring in the judgment).

1. Whitcomb makes clear what is not enough to

establish a “vote dilution” claim. The plaintiffs there

challenged the use of a multimember districting

scheme in Marion County, Indiana, to elect the

county’s “eight senators and 15 members of the

house,” alleging the system diluted the voting

strength of a heavily black and poor part of the county

“termed ‘the ghetto area.’” 403 U.S. at 128-29. For “the

period 1960 through 1968,” that area made up “17.8%

of the population” of Marion County but was home to

only “4.75% of the senators and 5.97% of the representatives.” Id. at 133. The voters there “voted heavily

Democratic,” but “the Republican Party won four of

the five elections from 1960 to 1968.” Id. at 150. The

district court found vote dilution and ordered singlemember districting. Id. at 138.

This Court reversed, emphasizing the absence of

“evidence and findings that [black] residents had less”

“opportunity to participate in and influence the selection of candidates and legislators.” Id. at 149, 153. The

Court made clear what these words meant by describing what plaintiffs failed to prove:

We have discovered nothing in the record

or in the court’s findings indicating that

poor [blacks] were not allowed [1] to register or vote, [2] to choose the political

party they desired to support, [3] to participate in its affairs or [4] to be equally

represented on those occasions when legislative candidates were chosen. Nor did

8

the evidence purport to show or the court

find that inhabitants of the ghetto were

[5] regularly excluded from the slates of

both major parties, thus denying them

the chance of occupying legislative seats.

Id. at 149-50.

This is what equal “opportunity … to participate in

the political process” means. One has “opportunity” if

he is “allowed” to register and vote, choose his preferred party, participate in its affairs, and have an

equal vote when the party’s candidates are chosen.

“Strong differences” in socioeconomic indicators did

not control. Id. at 132. And it made no difference that

the Democratic Party in Marion County had lost all

23 legislative seats in “four of the five elections from

1960 to 1968.” Id. at 150. The record suggested that

“had the Democrats won all of the elections or even

most of them,” plaintiffs “would have had no justifiable complaints about representation.” Id. at 152. That

the area did not “have legislative seats in proportion

to its populations emerge[d] more as a function of losing elections,” not built-in racial bias. Id. at 153. The

plaintiffs’ alleged denial of equal opportunity was “a

mere euphemism for political defeat at the polls.” Id.

White v. Regester shows what is enough to prove

vote dilution. There, black voters of Dallas County,

Texas, also favored the Democratic Party, but at-large

elections and “a white-dominated organization that

[was] in effective control of Democratic Party candidate slating” combined to stymie political participation by black voters. 412 U.S. at 766-67. The

Democratic Party “did not need the support of the

9

[black] community to win elections in the county, and

it did not therefore exhibit good-faith concern for the

political and other needs and aspirations of the [black]

community.” Id. at 767. Because “the black community” was “effectively excluded from participation in

the Democratic primary selection process,” it “was

therefore generally not permitted to enter into the

political process in a reliable and meaningful

manner.” Id. Similarly, the “poll tax” and “restrictive

voter registration procedures” kept Mexican-American residents of Bexar County, Texas, from accessing

the political process on an equal footing with their

white neighbors. Id. at 768. This evidence was

sufficient to establish illegal vote dilution.

2. All three minority groups—black voters in

Dallas County, Mexican-American voters in Bexar

County, and black voters in Marion County—experienced socioeconomic hardship and persistent political

defeat. All three would likely have been able to satisfy

the Gingles preconditions. But the political process

was closed to two and open to one. The key difference

was that the black residents in Marion County had

access to those traditional means of political participation like registering, voting, and engaging with

their preferred party, while their Texas counterparts

did not.

When Congress amended §2 in 1982, it codified

this test for vote dilution employed in Whitcomb and

White. Then in Gingles, the Court gave “some structure” to the test and established “three threshold

conditions” designed to weed out bad cases—i.e., cases

that fail to show even unequal opportunity to elect. De

Grandy, 512 U.S. at 1006, 1010. In Chisom, the Court

10

confirmed that a plaintiff alleging vote dilution under

§2 must show (1) less opportunity to elect and (2) less

opportunity to participate in the political process.

501 U.S. at 397. Satisfaction of the preconditions is

evidence of the first, but not the second. That is where

Whitcomb and White come into play. The two decisions speak with a unified voice: “less opportunity …

to participate in the political process” means “being

denied access to the political system,” Whitcomb,

403 U.S. at 155, in other words, being excluded “from

effective participation in political life,” White,

412 U.S. at 769. Access to the “political system,” in

turn, means access to those traditional methods of

political engagement like registering to vote, voting,

and participating in the political party of one’s choosing.

Applied here, the Legislative Assembly needed “a

strong basis in evidence” to show that Native Americans in North Dakota today face more inequality in

terms of those traditional methods of political participation than did black Indianians in 1960s Marion

County. But neither the Assembly nor the District

Court looked for such evidence.

B. The District Court Greenlit Racial

Gerrymandering Based Solely on the

Gingles Preconditions.

The Legislative Assembly heard no evidence that

Native Americans were excluded from effective political participation in 2021 North Dakota, just testimony

about the Gingles preconditions. The District Court

found this was enough to justify racial sorting.

11

1. The District Court discussed first the testimony

heard by the Redistricting Committee, all of which

pertained to the Gingles preconditions. For example,

the Director of North Dakota Native Vote, the Director of the Gaming Commission, and the Chairman

plus a Councilman of the Standing Rock Sioux Tribe

all informed the Committee that the Native American

population had grown yet still suffered defeat at the

polls. App.21-22; Docs.104-1, 104-2, 104-3, 104-4. The

Chairman of the Tribal Business Council of the MHA

Tribe laid out the Gingles preconditions in his written

testimony and supplied his bases for concluding that

each was satisfied. App.21-22; Doc.109-14. The court

then looked to the Redistricting Committee’s final

report and found its discussion of the Gingles preconditions “sufficient pre-enactment analysis to establish

it had good reasons to believe the subdistricts were

required by the VRA.” App.25; Doc.104-14 at 27, 29.

Turning to the House and Senate floor debates, the

District Court highlighted speeches by Redistricting

Committee members about the Gingles preconditions.

Several officials discussed whether Native Americans

in Districts 4 and 9 were sufficiently large and reasonably compact to constitute majorities in subdivided

districts. App.25-26; Doc.100-8 at 11, 19, 53; Doc.1009 at 2-9. Rep. Nathe addressed the lack of Native

American electoral success, telling the House, “You

have to follow the thresholds.” App.26; Doc.100-8 at

30, 45-46. And Rep. Devlin, who chaired the Committee, seemed to lament, “[W]ith the Gingles precedents,

we had no choice.” Doc. 100-8 at 33.

Others, who went unmentioned by the District

Court, criticized the Committee’s efforts, asserting

12

that “nobody’s even looked at the voting information.”

Doc.100-8 at 25 (Rep. Jones). There was “no proof of”

“voter denial and voter dilution”—“[t]here were no

studies done.” Id. at 40 (Rep. Ruby). Likewise, the District Court never asked whether the Legislative

Assembly had good reasons to believe that Native

Americans had less opportunity than other North

Dakotans to participate in the political process.

2. As a postscript, the District Court noted, without saying more, the “compelling and unrefuted

evidence that as to district 4, without the subdistrict,

Native American voters would in fact have a viable

Section 2 voter dilution claim under the VRA.”

App.27. First, even if that evidence was “undisputed,”

the District Court was required to “carefully

evaluat[e] … at the district level” evidence of vote

dilution in order to “shoulder strict scrutiny’s burden.”

Wisconsin Legislature, 595 U.S. at 403, 404. It did not,

so the mere presence in the record of “unrefuted evidence” cannot serve as grounds for affirmance as to

the race-based subdivision of District 4.

Beyond that, an examination of the evidence

reveals no such “viable claim.” Both North Dakota’s

and the MHA Tribe’s experts opined that a potential

plaintiff could satisfy the Gingles preconditions. See

Docs.106-2 (Hood), 106-3 (Collingwood). That

evidence, “standing alone,” is insufficient to prove a §2

claim. De Grandy, 512 U.S. at 1012.

The MHA Tribe also submitted two expert reports

on the “Senate Factors.” See Docs.109-18 (McCool),

109-19 (Magargal). But the Senate Factors are not the

text of §2, and the “Supreme Court has never held that

13

the Senate Report can override the plain language of

§ 2 itself.” Johnson v. DeSoto Cnty. Bd. of Comm’rs, 72

F.3d 1556, 1563-64 (11th Cir. 1996). Moreover, the

Senate Factors describe certain types of evidence one

might find if a political process provides some groups

“less opportunity” than others “to participate”; the

factors do not say how much evidence is required to

make such a showing. 52 U.S.C. §10301(b). But

Whitcomb and White do. The evidence adduced by the

MHA Tribe, while tapping Senate Factor bases, does

not suggest that Native Americans in 2020s North Dakota had any stronger proof of exclusion from the

political process than the unsuccessful plaintiffs in

Whitcomb.

The Tribe’s experts emphasized socioeconomic disparities between Native Americans and white North

Dakotans, including “statistically significant” gaps in

education, employment, health, wealth, and internet

access. See Docs.109-18 at 45-61, 109-19 at 9-17. But

none of this suggests liability because the same or

worse could be said for poor black residents of Marion

County in the 1960s, where “[s]trong differences were

found in terms of housing conditions, income and

educational levels, rates of unemployment, juvenile

crime, and welfare assistance.” Whitcomb, 403 U.S. at

132. Thus, plaintiffs here would have needed to show

not just a 1.8% disparity in “access to computers,”

Doc.109-19 at 10, but that Native Americans were

prohibited from participating in the political process

on an equal footing with other voters. Such evidence

is absent from the record.

14

C. Other Courts Have Adopted a Similarly

Atextual Approach to §2.

The District Court is not alone in giving undue

weight to the Gingles preconditions. Thirty years ago,

the Third Circuit stated, “it will be only the very

unusual case in which the plaintiffs can establish the

existence of the three Gingles factors but still have

failed to establish a violation of § 2 under the totality

of the circumstances.” Jenkins v. Red Clay Consol.

Sch. Dist. Bd. of Educ., 4 F.3d 1103, 1116, 1135 (3d

Cir. 1993). Other courts have articulated this same

presumption in favor of finding vote dilution once the

Gingles preconditions are satisfied. See Clark v. Calhoun County, 21 F.3d 92, 97 (5th Cir. 1994); Teague v.

Attala County, 92 F.3d 283, 293 (5th Cir. 1996);

NAACP v. City of Niagara Falls, 65 F.3d 1002, 1019

n.21 (2d Cir. 1995); Wright v. Sumter Cnty. Bd. of

Elections and Reg., 979 F.3d 1282, 1304 (11th Cir.

2020). Even since Wisconsin Legislature, multiple district courts have invoked this “rule” when finding that

a districting scheme violates §2. See, e.g., Nairne v.

Ardoin, 2024 WL 492688, at *36 (M.D. La. Feb. 8,

2024); Alpha Phi Alpha Fraternity Inc. v. Raffensperger, No. 1:21-cv-05337, 2023 WL 7037537, at *57 (N.D.

Ga. Oct. 26, 2023); Petteway v. Galveston County, No.

3:22-cv-57, 2023 WL 6786025, at *50 (S.D. Tex. Oct.

13, 2023).

But presuming vote dilution as soon as a plaintiff

satisfies the threshold showing does not track §2’s text

and misapprehends the purposes served by the

Gingles preconditions. The first prerequisite makes

sure a potential remedy exists. See Growe v. Emison,

507 U.S. 25, 40 (1993). The second and third are

15

evidence that a minority group would elect its preferred representative but currently cannot given the

“larger white voting population.” Id. In short, the preconditions weed out bad cases before they get in the

door. These prerequisites further respect the States’

sovereign authority over reapportionment by ensuring that Ҥ 2 never requires adoption of districts that

violate traditional redistricting principles.” Allen,

599 U.S. at 30. But they say nothing about whether

minority voters are allowed to register, vote, and

participate in the party of their choosing.

When focusing solely on the Gingles preconditions,

the District Court mistakenly took guidance from a

particular line, plucked out of context, from Cooper v.

Harris. In Cooper, the Court remarked: “If a State has

good reason to think that all the Gingles preconditions

are met, then so too it has good reason to believe that

§ 2 requires drawing a majority-minority district.”

581 U.S. at 302. This line, read alone, appears to condone the District Court’s tunnel vision. See App.18.

But that statement was not made in isolation, and it

must be understood in light of De Grandy, Chisom,

Wisconsin Legislature, and Gingles itself.

Earlier in the Cooper opinion, the Court set the

stage by declaring in no uncertain terms that a State

could avoid a constitutional violation when sorting

voters by race only if “it had ‘good reasons’ to think

that it would transgress the Act if it did not draw racebased district lines.” 581 U.S. at 293 (emphasis

added); see also id. at 282 (repeating that the State

must reasonably believe “the statute required its

action”) (emphasis added). “The Act” requires a plaintiff to prove, under the totality of circumstances,

16

(1) less opportunity to elect and (2) less opportunity to

participate in the political process. As noted earlier,

the Gingles preconditions go only to the first. See De

Grandy, 512 U.S. at 1011-12. Thus, their presence

alone is “not sufficient to establish a violation.”

Chisom, 501 U.S. at 397.

And given the particular facts presented in Cooper,

it made sense the Court would emphasize the Gingles

preconditions. North Carolina defend its gerrymandered map by arguing that §2 required it. But missing

from the record was any “evidence that a § 2 plaintiff

could demonstrate the third Gingles prerequisite.” Id.

at 302. Indeed, the entire §2 discussion revolved

around Gingles III and the State’s failure to conduct a

“meaningful legislative inquiry” into whether white

bloc voting would usually defeat the minority preferred candidate. Id. at 304. This doomed the State’s

§2 defense.

Cooper must also be read in light of the Court’s

later decision in Wisconsin Legislature. There, the

Court repeated that “satisfying the Gingles preconditions are necessary but not sufficient.” 595 U.S. at 402

(citing De Grandy, 512 U.S. at 1011-12). Ultimately, a

State wishing to avoid liability under the Equal

Protection Clause must conduct the full “totality-ofcircumstances analysis,” id. at 405, which includes an

inquiry into whether “members of the protected class

have less opportunity to participate in the political

process,” Chisom, 501 U.S. at 397.

17

II. The District Court’s Approach To §2 Is

Unconstitutional.

The District Court held that a State may sort

voters by race without offending the Constitution

whenever it reasonably believes the Gingles preconditions require it. App.25. If that is right, then “no end

is in sight” to §2’s race-based demands, and §2 “must

… be invalidated under the Equal Protection Clause

of the Fourteenth Amendment.” SFFA v. President &

Fellows of Harvard Coll., 600 U.S. 181, 213 (2023).

Every racial classification by the government is

either unconstitutional or on its way to that end.

Those that are not outright prohibited are allowed

only to the degree “necessary” “to further compelling

governmental interests.” Id. at 207. That is because

even the race-based actions our Constitution permits

are “dangerous,” Grutter v. Bollinger, 539 U.S. 306,

342 (2003), and “the deviation from the norm of equal

treatment”; as such, they must be limited “in scope

and duration.” City of Richmond v. J.A. Croson Co.,

488 U.S. 469, 498, 510 (1989) (plurality opinion).

Even if the District Court’s understanding of what

§2 allows or requires “made sense” decades ago, it does

not today. Shelby County v. Holder, 570 U.S. 529, 546

(2013). Over the last few decades, “things have

changed dramatically.” Id. at 547. For example, in

1992 in Alabama, all parties assumed that an “opportunity district” in the State’s congressional map would

need a black population of at least 65%. See Wesch v.

Hunt, 785 F. Supp. 1491, 1495-97 (S.D. Ala. 1992)

(three-judge court). In that challenge, one proposed

plan included two districts with black populations of

18

59% and 62% respectively, but even the party who

submitted the plan doubted whether black Alabamians would have an “opportunity to elect candidates of

their choice in these districts.” Id. at 1496.

Likewise, a proposed district in a 1990s Alabama

city council map with a “bare black supermajority in

the voting-age population” was decried as preserving

“white hegemony.” Dilliard v. City of Greensboro,

213 F.3d 1347, 1351 (11th Cir. 2000) (emphasis

added). Plaintiffs, in turn, proposed an 83% black

“swing district.” Id. at 1351. Similarly, in the 1980s, it

was “widely accepted … that minorities must have

something more than a mere majority even of voting

age population in order to have a reasonable” chance

of electoral success. Ketchum v. Byrne, 740 F.2d 1398,

1413 (7th Cir. 1984). Back then, a DOJ “guideline of

65% of total population” was “adopted and maintained

for years … to ensure minorities a fair opportunity to

elect a candidate of their choice.” Id. at 1415.

Compare those figures with today, and it becomes

apparent that the “stringent new remedies” of the

VRA worked. South Carolina v. Katzenbach, 383 U.S.

301, 308 (1966). “Voter turnout and registration rates

now approach parity,” blatant “discriminatory evasions of federal decrees are rare,” and “minority candidates hold office at unprecedented levels.” Nw.

Austin Mun. Util. Dist. No. One v. Holder, 557 U.S.

193, 202 (2009).

Modern-day North Dakota is a case in point. From

2006 until 2022, a Native American represented

19

District 9 in the State Senate.6 According to the 2020

census, District 9 had a Native American voting age

population of just 51.7%. Doc.100-10 at 4. No “bare

supermajority” was needed because everyone has the

opportunity to register, vote, and engage in the affairs

of their preferred party.

Absent “particularized findings” that members of

the minority group are excluded from effective political participation, the “racial classifications” condoned

by the District Court will be “ageless in their reach

into the past, and timeless in their ability to affect the

future.” Wygant v. Jackson Bd. of Educ., 476 U.S. 267,

276 (1986). A Senate Factors expert will always be

able to identity at least some “race-based gaps … with

respect to the health, wealth, [or] well-being of American citizens.” SFFA, 600 U.S. at 384 (Jackson, J., dissenting). This will allow §2 to function as “an

affirmative-action program” for race-based districting

in perpetuity. Shaw v. Hunt, 517 U.S. 899, 910 (1996).

But “this Court’s precedents make clear that” even

“narrowly tailored race-based affirmative action in

higher education” may not “extend indefinitely into

the future.” SFFA, 600 U.S. at 316 (Kavanaugh, J.,

concurring). Likewise, “even if Congress in 1982 could

constitutionally authorize race-based redistricting

under § 2 for some period of time, the authority to

conduct race-based redistricting cannot extend indefinitely into the future.” Allen, 599 U.S. at 45

(Kavanaugh, J., concurring). If §2 allows courts to

“pick[] winners and losers based on the color of their

See Richard Marcellais, BALLOTPEDIA, https://ballotpedia

.org/Richard_Marcellais#Elections (last accessed Apr. 3, 2024).

6

20

skin,” SFFA, 600 U.S. at 229, it is time to get out of

that sordid business.

III. The States Need Clarity.

The decision below and several other recent

decisions from lower courts demonstrate the utter

indeterminacy of current vote dilution jurisprudence.

“Relatively clear lines of legality and morality have

become more difficult to locate as demands for outcomes have followed the cutting away of obstacles to

full participation.” League of United Latin Am. Citizens, Council No. 4434 v. Clements, 999 F.2d 831, 837

(5th Cir. 1993) (en banc). In other words, the VRA’s

successes have produced statutory mission creep, with

some plaintiffs and courts stretching ever further to

fill each Senate Factor bucket with some evidence,

while lacking any discernible notion of what it is that

is even being proven.

This is a critical problem for federalism and federal

courts. “Federal-court review of districting legislation

represents a serious intrusion on the most vital of

local functions.” Miller, 515 U.S. at 915. “And it is vital

in such circumstances that” federal courts “act only in

accord with especially clear standards,” lest they “risk

assuming political, not legal, responsibility for a process that often produces ill will and distrust.” Rucho

v. Common Cause, 139 S. Ct. 2484, 2498 (2019). At a

minimum, legislators deserve a rule clear enough to

give them a fair chance of complying with §2 and the

Constitution. The recent decisions discussed below

underscore that legislators do not yet have that clear

rule and that the Court should provide it now.

21

1. Begin with North Dakota. During the floor

debates for the 2021 Plan, one representative prophesied, “We’re going to end up in court one way or

another unless, I don’t know, unless we do everything

that everybody else says we should do. And I don’t

even know because there’s opposing sides.” Doc.100-8

at 15. He was right—two times over.

Within nine days of each other, two sets of private

plaintiffs sued the Secretary of State. One (kicking off

this case) alleged that the 2021 Plan racially gerrymandered by subdividing Districts 4 and 9. App.1. The

District Court granted summary judgment for

Defendants, finding that the Legislative Assembly

had good reasons to believe it needed to sort voters by

race to comply with §2. App.27.

The other suit alleged that the 2021 Plan violated

§2 by packing Native Americans into the newly subdivided House District 9A. Turtle Mtn. Band of Chippewa Indians v. Howe, No. 3:22-cv-22, 2023 WL

8004576, at *1 (D.N.D. Nov. 17, 2023). The district

court found it “evident that the Secretary and the Legislative Assembly did carefully examine the VRA and

believed that” its “boundaries of districts 9 … would

comply with the VRA.” 2023 WL 8004576, at *17. Yet

“those efforts did not go far enough to comply with

Section 2.” Id. Apparently, more race-based sorting

was needed. “How much is too much?” Rucho, 139

S. Ct. at 2501. The court didn’t say.

2. Turning south, a federal court recently decided

that Georgia’s congressional and state legislative

plans violated §2. Alpha Phi Alpha, 2023 WL

7037537, at *144. This notwithstanding the fact that

22

98% of all eligible voters in Georgia are registered,

both major party nominees for the last U.S. Senate

race were black, the State’s congressional delegation

includes five black Democrats despite having only two

majority-black districts, and black Georgians enjoy

proportional representation in Congress. See id. at *910, 71, 75, 126, 130, 137.

What should have tipped off the Georgia Legislature that it was required to engage in race-based districting? In the district court’s view, it was recent

“official discrimination in the state” that included several voting laws “determined in prior decisions by the

Court to not be illegal under federal law.” Id. at *59,

62. For example, one law that the same judge had

deemed not to violate §2 was transmuted into

evidence that Georgia’s redistricting laws did violate

§2 because, among the tiny number of people affected

by the VRA-compliant law, a higher percentage were

black. Id. at *63.

But the most telling “evidence” was the district

court’s reliance on the 1990 congressional redistricting cycle. Without any apparent irony, the court identified DOJ’s rejection of “the State’s reapportionment

plans” as evidence of “Georgia’s history of discrimination against Black voters.” Id. at *60. What the court

omitted, however, was that DOJ was misusing Section 5 to demand a flagrantly gerrymandered “‘maxblack’ plan.” Abrams v. Johnson, 521 U.S. 74, 80

(1997). When, on DOJ’s third try, Georgia finally

acquiesced to the “Justice Department’s maximization

policy,” this Court held that Georgia’s map was unconstitutional. Miller, 515 U.S. at 926. Thus, in the

district court’s upside-down view, Georgia’s repeated

23

refusal to racially discriminate was evidence of racial

discrimination. It is hard to fathom how the Georgia

Legislature could have seen this coming.

3. Then there’s the Louisiana ping-pong saga.

Following the 1990 census, Louisiana enacted a plan

containing a second majority-black congressional district. Hays v. State of Louisiana, 936 F. Supp. 360,

363 (W.D. La. 1996). During the ensuing years, a federal court thrice held that plans with two majorityblack districts violated the Equal Protection Clause.

Id. at 362. Following the 2020 Census, Louisiana

enacted a plan with one majority-black district, but a

federal court held that this plan likely violated §2 for

not containing a second majority-black district. Robinson v. Ardoin, 605 F. Supp. 3d 759 (M.D. La. 2022).

The State then enacted a new congressional plan with

a second majority-black district, and one week later

was sued for racial gerrymandering. See Callais v.

Landry, No. 3:24-cv-00122 (W.D. La. Jan. 31, 2024)

(Complaint).

4. Unable to catch a break, Louisiana received

word in February that its legislative districting plans

also violated §2 due, in part, to the “subliminal message of the Sheriff’s Office being housed on the same

floor as [the plaintiff’s] Registrar of Voter’s Office.”

Nairne, 2024 WL 492688, at *41 n.461. If this is the

test, no legislator can know with any reasonable certainty whether he should vote for a race-neutral plan

or whether federal law demands gerrymandering.

*

*

*

24

The stakes are high. If the States cross the line

from race-neutral districting to racial gerrymandering without good enough reasons, then Section 3 preclearance is back on the table, and if they don’t

gerrymander enough, state officials could face jail

time for violating §2. See 52 U.S.C. §§10302(c);

10308(a). This was not lost on one North Dakota representative, who told the Assembly: “[M]y wife spends

a lot of time trying to keep me out of jail. And I would

not want this body to do anything that would be even

looking like we’re ignoring federal law.” Doc.100-8 at

25.

When federal courts are citing VRA-compliant voting laws, refusals to racially gerrymander, and “subliminal messages” as evidence of §2 violations, at least

two things are clear: (1) “things have changed dramatically” for the better, Shelby County, 570 U.S. at 547,

and (2) it may be harder than ever to predict whether

redistricting laws will comply with §2 and the Constitution. The way forward is to read §2 like any other

statute. That text, drawn from Whitcomb and White,

shows that the Voting Rights Act is concerned with

the right to register, vote, and participate in politics—

win or lose—not on rates of computer ownership or

subliminal messages from parish buildings. But

whatever the statute means, the Court should tell the

States.

CONCLUSION

The Court should reverse.

25

Respectfully submitted,

STEVE MARSHALL

Attorney General

EDMUND G. LACOUR JR.

Solicitor General

Counsel of Record

SOREN GEIGER

Assistant Solicitor General

OFFICE OF ALA. ATT’Y GEN.

501 Washington Avenue

Montgomery, AL 36130

(334) 242-7300

Edmund.LaCour@

AlabamaAG.gov

April 5, 2024

(additional counsel listed below)

ADDITIONAL COUNSEL

TREG TAYLOR

Attorney General

State of Alaska

MICHAEL T. HILGERS

Attorney General

State of Nebraska

CHRIS CARR

Attorney General

State of Georgia

ALAN WILSON

Attorney General

State of South Carolina

BRENNA BIRD

Attorney General

State of Iowa

MARTY J. JACKLEY

Attorney General

State of South Dakota

KRIS KOBACH

Attorney General

State of Kansas

KEN PAXTON

Attorney General

State of Texas

LYNN FITCH

Attorney General

State of Mississippi

SEAN D. REYES

Attorney General

State of Utah

ANDREW BAILEY

Attorney General

State of Missouri

PATRICK MORRISEY

Attorney General

State of West Virginia

AUSTIN KNUDSEN

Attorney General

State of Montana