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

No. 23A231

In the Supreme Court of the United States

__________

WES ALLEN,

IN HIS OFFICIAL CAPACITY AS THE ALABAMA SECRETARY OF STATE,

Applicant,

v.

EVAN MILLIGAN, ET AL.,

Respondents.

__________

ON EMERGENCY APPLICATION FOR STAY PENDING APPEAL FROM THE

U.S. DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA

__________

BRIEF FOR NATIONAL REPUBLICAN REDISTRICTING TRUST

AS AMICUS CURIAE IN SUPPORT OF APPLICANT

__________

CHRISTOPHER E. MILLS

Counsel of Record

Spero Law LLC

557 East Bay Street #22251

Charleston, SC 29413

(843) 606-0640

cmills@spero.law

Counsel for Amicus Curiae

TABLE OF CONTENTS

Table of Authorities ....................................................................................................... ii

Interest of Amicus Curiae.............................................................................................. 1

Summary of the Argument ............................................................................................ 2

Argument ....................................................................................................................... 4

I. Allen does not authorize novel, unlawful remedies. ............................................ 4

A. Section 2 does not require proportional or super-proportional

representation. ............................................................................................... 7

B. Section 2 does not require the creation of opportunity districts................ 14

II. Alabama must have a full opportunity to defend its 2023 Plan. ...................... 16

A. Preliminary proceedings do not decide a case. ........................................... 17

B. A new law is not a “remedy” subject to summary adjudication. ................ 20

Conclusion .................................................................................................................... 24

i

TABLE OF AUTHORITIES

CASES

Abbott v. Perez, 138 S. Ct. 2305 (2018) ......................................................................... 6

Abrams v. Johnson, 521 U.S. 74 (1997) .................................................................. 9, 10

Allen v. Milligan, 143 S. Ct. 1487 (2023) ............................ 2, 3, 5, 6, 10, 13, 17, 18, 21

Alpha Phi Alpha Fraternity, Inc. v. Raffensperger, No. 1:21-cv-5337, 2023 WL

5674599 (N.D. Ga. July 17, 2023) ............................................................................ 13

Barr v. Am. Ass’n of Pol. Consultants, Inc., 140 S. Ct. 2335 (2020) .......................... 22

Bartlett v. Strickland, 556 U.S. 1 (2009)............................................................... 14, 15

Brnovich v. Democratic Nat’l Comm., 141 S. Ct. 2321 (2021).................................. 5, 7

Bush v. Vera, 517 U.S. 952 (1996) ......................................................................... 10, 13

Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157 (2004)................................... 19

Doran v. Salem Inn, Inc., 422 U.S. 922 (1975) ........................................................... 18

Grace, Inc. v. Miami, No. 1:22-cv-24066, 2023 WL 4853635

(S.D. Fla. July 30, 2023) .......................................................................................... 23

Grace, Inc. v. Miami, No. 23-12472, 2023 WL 5286232 (11th Cir. Aug. 4, 2023) ..... 23

Grace, Inc. v. Miami, No. 23A116, 2023 WL 5284458 (U.S. Aug. 17, 2023).............. 23

Growe v. Emison, 507 U.S. 25, 34 (1993) ...................................................................... 1

Johnson v. De Grandy, 512 U.S. 997 (1994) ........................................................... 7, 12

Massachusetts v. Mellon, 262 U.S. 447 (1923) ............................................................ 22

Merrill v. Milligan, 142 S. Ct. 879 (2022) ................................................................... 13

Miller v. Johnson, 515 U.S. 900 (1995) ............................................................... 8, 9, 10

New York State Rifle & Pistol Ass’n, Inc. v. City of New York, 140 S. Ct. 1525

(2020) ........................................................................................................................ 22

Rucho v. Common Cause, 139 S. Ct. 2484 (2019) ....................................................... 15

Seminole Tribe of Fla. v. Fla., 517 U.S. 44 (1996) ................................................ 19, 20

Singleton v. Merrill, 582 F. Supp. 3d 924 (N.D. Ala. 2022) ..................... 10, 13, 18, 21

Sole v. Wyner, 551 U.S. 74 (2007)................................................................................ 17

Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 143

S. Ct. 2141 (2023) ..................................................................................................... 11

United Jewish Orgs. of Williamsburgh, Inc. v. Carey, 430 U.S. 144 (1977) .............. 11

United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33 (1952) .......................... 20

ii

United States v. Richardson, 418 U.S. 166 (1974)...................................................... 22

United States v. Rutherford, 442 U.S. 544 (1979) ...................................................... 22

Univ. of Texas v. Camenisch, 451 U.S. 390 (1981) ..................................................... 17

Voinovich v. Quilter, 507 U.S. 146 (1993) ............................................................. 20, 24

Wisconsin Legislature v. Wisconsin Elections Comm’n, 142 S. Ct. 1245 (2022) .......... 8

STATUTES

52 U.S.C. § 10301 .................................. 2, 3, 4, 5, 6, 7, 11, 12, 14, 15, 16, 17, 18, 19, 20

OTHER AUTHORITIES

Appellees’ Brief, Alexander v. S.C. Conf. of the NAACP, No. 22-807 (U.S. Aug. 11,

2023) ......................................................................................................................... 13

Brief for Milligan Appellees, Allen, No. 21-1086 (U.S. July 11, 2022),

https://tinyurl.com/2x45zehh ......................................................................... 4, 12, 19

CONSTITUTIONAL PROVISIONS

U.S. Const. art. I, § 4 ..................................................................................................... 1

iii

INTEREST OF AMICUS CURIAE

The National Republican Redistricting Trust (“NRRT”) is the central Republican

organization tasked with coordinating and collaborating with national, state, and

local groups on the fifty-state congressional and state legislative redistricting effort.

NRRT’s mission is threefold.*

First, it aims to ensure that redistricting faithfully follows all federal

constitutional and statutory mandates. Under Article I, § 4 of the U.S. Constitution,

the State Legislatures are primarily entrusted with the responsibility of redrawing

the States’ congressional districts. See Growe v. Emison, 507 U.S. 25, 34 (1993). Every

citizen should have an equal voice, and laws must be followed to protect the

constitutional rights of individual voters, not political parties or other groups.

Second, NRRT believes redistricting should be conducted primarily by applying

the traditional redistricting criteria States have applied for centuries. 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 as much as possible. Such sensible districts follow the principle

that legislators represent individuals living within identifiable communities.

Legislators do not represent political parties, and we do not have a system of

statewide proportional representation in any State. Article I, § 4 of the U.S.

Constitution tells courts that any change in our community-based system of districts

* In accordance with Rule 37.6, no counsel for a party authored this brief in whole or in part, and no

person or entity, other than amicus curiae, its members, or its counsel, made a monetary contribution

to its preparation or submission.

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. Each American

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

was.

To advance these principles, NRRT regularly files amicus briefs in redistricting

cases, including two briefs during this Court’s prior consideration of this case and a

brief in the district court’s post-remand proceedings.

SUMMARY OF THE ARGUMENT

“Forcing proportional representation is unlawful and inconsistent with this

Court’s approach to implementing § 2.” Allen v. Milligan, 143 S. Ct. 1487, 1509 (2023).

That was the “simple” “point” emphasized by this Court a few months ago. Id. That

point—and the corollary point that “§ 2 never requires adoption of districts that

violate traditional redistricting principles” (id. at 1510 (cleaned up))—is “ma[d]e

clear” by “the Court’s precedents.” Id. at 1518 (Kavanaugh, J., concurring in part).

Alabama “could not create” districts that “flout[] traditional criteria.” Id. at 1509

(majority op.).

With this guidance in hand, Alabama drew new maps in good faith. The State

repealed its prior law and adopted a new one. Yet in the district court, the Plaintiffs

then demanded what this Court said is “never require[d]” under the Voting Rights

Act: proportional representation via remedial plans that subordinate traditional

redistricting criteria to race. The district court acceded to this demand, treating

2

Alabama’s new enacted maps as part of some remedial phase for a trial that has never

happened about a law that no longer exists. Calling “the dispositive question”

“whether the 2023 Plan contains an additional Black-opportunity district,” App. 136,

the court enjoined the new plan after a single-day hearing. For a “remedy,” it ordered

its own maps with an overtly racial goal: “an additional majority-Black congressional

district, or an additional district in which Black voters otherwise have an opportunity

to elect a representative of their choice.” Id. at 224.

Every aspect of this process flouts this Court’s precedents. First, the Voting Rights

Act does not require proportionality, much less super-proportionality. Nor does the

VRA require districts that contain less than a majority of a minority group on some

sort of crossover opportunity voting theory. This Court has repeatedly rejected

reading § 2 to require such remedies. Alabama’s 2023 Plan adheres to traditional

districting principles better than any of the Plaintiffs’ plans, maintaining

communities of interest that the 2021 Plan did not. To reject this new Plan—with

scant consideration of its merits—turns the Court’s VRA precedents on their head.

Second, any suggestion that Alabama is “defying” this Court’s opinion in Allen by

passing a new law that follows traditional districting principles rather than racial

proportionality makes no sense. To the contrary, the Plaintiffs’ plans, which “[f]orc[e]

proportional representation,” defy that opinion and a long line of precedents. Allen,

143 S. Ct. at 1509. And the Plaintiffs affirmatively told this Court last time around

that the district court “did not order Alabama to enact Plaintiffs’ plans or even to

create a second majority-Black district.” Brief for Milligan Appellees 2, Allen, No. 21-

3

1086 (U.S. July 11, 2022), https://tinyurl.com/2x45zehh. Now, the district court

asserts that “[it] said” a second district “is the legally required remedy,” App. 126,

and the Plaintiffs claim defiance. The notion that Alabama “defied” an appellate

affirmance of a preliminary injunction by passing a new law misunderstands: (1) the

tentative nature of every preliminary injunction, (2) the parameters of this

preliminary injunction, which merely enjoined enforcement of the old plan and did

not require any new plan, (3) the limited scope of an appellate holding that a

preliminary injunction was not an abuse of discretion, (4) Allen’s limitation to § 2

liability standards, and (5) how challenges to new laws are supposed to work—and

who bears the burden on such challenges.

Hinging liability on plans that underperform the State’s own map on traditional

criteria would turn § 2 into a pure proportionality regime in most cases. And forcing

the State to adopt unlawful, race-based districts as a preliminary “remedy” to a nonexistent law without adequate consideration of the operative law flouts Article III

principles. An emergency stay is necessary.

ARGUMENT

I.

Allen does not authorize novel, unlawful remedies.

In the district court’s view, § 2 plaintiffs can succeed under Gingles even if their

proposed plans do not “meet-or-beat” the State’s plan on “any” traditional “metric.”

App. 148 (emphasis added); see id. at 633 (“[T]he Plaintiffs are not required to produce

a plan that ‘meets or beats’ the 2023 Plan on any particular traditional districting

criteria.”). This holding led the court to dismiss the relevance of the fact that the

State’s Plan preserves communities of interest better than any of the Plaintiffs’ plans.

4

Combining this holding with the realities of computerized mapmaking and the

district court’s dismissal of the State’s redistricting guidelines would transform § 2

into a mandatory proportionality regime. That result contradicts this Court’s

precedents, including Allen.

As Justice Kavanaugh explained in Allen, this Court’s decisions “have flatly

rejected” requiring states to enact “a proportional number of majority-minority

districts” by “group[ing] together geographically dispersed minority voters into

unusually shaped districts, without concern for traditional districting criteria.” 143

S. Ct. at 1518 (opinion concurring in part). Analyzing these precedents, the majority

in Allen agreed that § 2 “never require[s] adoption of districts that violate traditional

redistricting principles” Id. at 1510; see id. at 1508–10 (collecting cases showing that

“the Gingles framework itself imposes meaningful constraints on proportionality, as

our decisions have frequently demonstrated”).

“To ensure that Gingles does not improperly morph into a proportionality

mandate, courts must rigorously apply” its preconditions. Id. at 1518 n.2

(Kavanaugh, J., concurring in part). “[F]or example, it is important that” any

remedial map follow traditional districting principles “at least as well as Alabama’s

redistricting plan.” Id. Otherwise, § 2 liability would often “turn almost entirely on

just one circumstance—disparate impact.” Brnovich v. Democratic Nat’l Comm., 141

S. Ct. 2321, 2341 (2021).1

1 Even if § 2 were a disparate-impact regime, plaintiffs who failed to produce a map that advanced

legitimate redistricting criteria as well as the State’s map could not prove that the State’s law was

“not needed to achieve a government’s legitimate goals.” Brnovich, 141 S. Ct. at 2361 (Kagan, J.,

dissenting).

5

If § 2 plaintiffs do not have to show that any of their maps adhere to traditional

districting principles as well as the state’s single map, the state will practically

always lose. In Allen, the Court quoted academic commentary suggesting that “the

universe of all possible connected, population-balanced districting plans that satisfy

the state’s requirements . . . is likely in the range of googols.” Allen, 143 S. Ct. at 1514.

Especially if one combines that statement with the court below’s dismissal of any

traditional requirements that the plaintiffs’ map flunk as “particular principle[s] the

State defined as non-negotiable,” App. 148,2 little is left of Gingles. Its preconditions

can practically always be satisfied. And states will almost always lose, substituting

permanent judicial redistricting for rule by the people’s representatives.

That cannot be the law. This Court has “repeatedly observed” that redistricting

“‘is primarily the duty and responsibility of the States,’ not the federal courts,” and

“the Gingles factors help ensure that remains the case.” Allen, 143 S. Ct. at 1510

(brackets omitted) (quoting Abbott v. Perez, 138 S. Ct. 2305, 2324 (2018)). To protect

this balance, a plaintiff must show that its proposed maps outperform the state’s map

when it comes to traditional districting criteria.

Here, given the nature of Alabama’s population and geographic dispersion—only

11 of 67 counties are majority black—it would be surprising to see proportional

representation without a violation of traditional districting principles. It is therefore

unsurprising that the Plaintiffs’ proposed remedial plans significantly underperform

the State’s 2023 Plan when it comes to traditional districting principles, particularly

2 See also App. 633 (“The Secretary cannot avoid Section Two liability merely by devising a plan that

excels at the traditional criteria the Legislature deems most pertinent.”).

6

keeping communities of interest together. Under the Court’s precedents, reiterated

in Allen, one of the Plaintiffs’ super-proportional remedial plans cannot be

substituted for a state plan that adheres to traditional districting principles.

A.

Section 2 does not require proportional or super-proportional

representation.

The Plaintiffs’ proposed remedial plans cannot be substituted for the State’s 2023

Plan because § 2 does not guarantee equality through proportional representation.

“[T]he ultimate right of § 2 is equality of opportunity, not a guarantee of electoral

success for minority candidates.” Johnson v. De Grandy, 512 U.S. 997, 1014 n.11

(1994). Section 2 is violated only if “the political processes leading to nomination or

election . . . are not equally open to participation by members of a class of citizens.”

52 U.S.C. § 10301(b). Section 2 specifically disclaims that it “establishes a right to

have members of a protected class elected in numbers equal to their proportion in the

population.” Id.; see also Brnovich, 141 S. Ct. at 2342 n.14 (noting this disclaimer as

“a signal that § 2 imposes something other than a pure disparate-impact regime”).

Thus, “[f]ailure to maximize [minority representation] cannot be the measure of

§ 2.” De Grandy, 512 U.S. at 1017. In De Grandy, the Court examined proportionality

only as potentially relevant in the “totality of circumstances” analysis. Id. at 1011.

But the Court cautioned that “the degree of probative value assigned to

disproportionality, in a case where it is shown, will vary not only with the degree of

disproportionality but with other factors as well.” Id. at 1021 n.17. “[L]ocal

conditions” matter. Id. (cleaned up). And even purported proportionality is not “a safe

harbor for any districting scheme.” Id. at 1018. The “totality-of-circumstances

7

analysis” cannot be “reduced” to the “single factor” of “proportionality.” Wisconsin

Legislature v. Wisconsin Elections Comm’n, 142 S. Ct. 1245, 1250 (2022). In

particular, as Allen reiterated, proportionality cannot be substituted for traditional

districting principles.

Miller v. Johnson provides a good example of how this analysis works in practice.

There, the Court explained that to establish a racial gerrymandering claim, “a

plaintiff must prove that the legislature subordinated traditional race-neutral

districting principles . . . to racial considerations.” 515 U.S. 900, 916 (1995) (cleaned

up). “Where these or other race-neutral considerations are the basis for redistricting

legislation, and are not subordinated to race, a State can defeat a claim that a district

has been gerrymandered on racial lines.” Id. (cleaned up).

In Miller, the Court invalidated congressional maps drawn in Georgia that sought

proportional representation. At the insistence of the U.S. Department of Justice, the

state legislature had drawn three of 11 districts as majority-minority to mirror the

State’s black population (27%). Id. at 906–07, 927–28. The Court rejected those maps

because, as the State had all but conceded, “race was the predominant factor in

drawing” the new majority-minority district. Id. at 918. “[E]very objective districting

factor that could realistically be subordinated to racial tinkering in fact suffered that

fate.” Id. at 919 (cleaned up). Even where “the boundaries” of the new district

“follow[ed]” existing divisions like precinct lines, those choices were themselves the

product of “design[] . . . along racial lines.” Id. (cleaned up).

8

The Court rejected this racial gerrymander, specifically holding that “there was

no reasonable basis to believe that Georgia’s earlier [non-proportional] plans

violated” the VRA. Id. at 923. “The State’s policy of adhering to other districting

principles instead of creating as many majority-minority districts as possible does not

support an inference that the plan . . . discriminates on the basis of race or color.” Id.

at 924. Because engaging in “presumptively unconstitutional race-based districting”

would have brought the VRA “into tension with the Fourteenth Amendment,” the

Court rejected the State’s maps, even though those maps provided proportional

representation. Id. at 927. As the Court explained, “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.” Id. at 927–28.

The Court thus remanded the case, and after the state legislature failed to act,

the district court drew maps with only one majority-minority district (9%)—meaning

representation that fell far below black Georgians’ 27% share of the population.

Abrams v. Johnson, 521 U.S. 74, 78 (1997); see id. at 103 (Breyer, J., dissenting). “The

absence of a second, if not a third, majority-black district” was “the principal point of

contention” in the second appeal to this Court. Id. at 78 (majority opinion). Yet the

Court upheld the district court’s maps, which focused on “Georgia’s traditional

redistricting principles.” Id. at 84. The district court had “considered the possibility

of creating a second majority-black district but decided doing so would require it to

9

subordinate

Georgia’s

traditional

districting

policies

and

consider

race

predominantly.” Id. (cleaned up).

This Court agreed with that conclusion, explaining “that the black population was

not sufficiently compact” for even “a second majority-black district.” Id. at 91

(emphasis added)). Thus, even getting to two majority-minority districts (18%) by

focusing on race would have violated the Equal Protection Clause, and the Court

rejected the use of DOJ’s proposed “plan as the basis for a remedy [that] would

validate the very maneuvers that were a major cause of the unconstitutional

districting” at issue in Miller. Id. at 86; see id. at 109 (Breyer, J., dissenting) (“The

majority means that a two-district plan would be unlawful—that it would violate the

Constitution.”).

In Allen, this Court highlighted Miller and several other precedents, including

Shaw v. Reno and Bush v. Vera, in explaining that “traditional districting criteria

limit[s] any tendency of the VRA to compel proportionality.” 143 S. Ct. at 1509. Here,

nearly every county in Alabama is majority white; only 11 of 67 are majority black.

The share of any black voting-age population in Alabama (the most Plaintifffavorable metric) is 25.9%—lower than the Plaintiffs’ and the district court’s rounded

27% figure (which the court below used to justify its conclusion in the previous

preliminary

injunction

proceeding

that

28.57%

representation

would

be

proportional). See Singleton v. Merrill, 582 F. Supp. 3d 924, 1025 (N.D. Ala. 2022).

This corrected BVAP shows that the Plaintiffs are seeking super-proportional

representation. Amicus is unaware of any case since the enactment of the Voting

10

Rights Act in which a federal court’s mandate of a maximization plan providing for

super-proportional representation was affirmed by this Court.3

Tellingly, the “race-neutral plan” demanded by the Plaintiffs on their racial

gerrymandering claim was a “decrease [in] the BVAP in District 7 to around 50%”

and a redrawn District 2 “with [a] BVAP[]” of “almost 40% as opposed to the current

30%.” Milligan D. Ct. Dkt. 69, at 31. That is exactly what the State’s 2023 Plan

provides: by the parties’ stipulations, District 7 “has a BVAP of 50.65%,” and District

2 “has a BVAP of 39.93%.” App. 88. Neither the Plaintiffs nor the district court

explained why a § 2 remedy would look so different—or how judicially-imposed

intentional discrimination to overcome the Plaintiffs’ own race-neutral ideal could

coexist with the Equal Protection Clause. On that point, even as two sets of Plaintiffs

here demanded super-proportional remedies, the Singleton Plaintiffs doubted

whether that plan “could satisfy strict scrutiny under the Constitution because of the

way it splits Mobile and Jefferson County along racial lines.” Milligan D. Ct. Dkt.

220-1, at 71–72; see Singleton D. Ct. Dkt. 147, at 1 (arguing that the 2023 Plan’s one

majority-minority district makes it “a racial gerrymander that violates the

Fourteenth Amendment”).

3 See United Jewish Orgs. of Williamsburgh, Inc. v. Carey, 430 U.S. 144, 165 (1977) (suggesting that

super-proportional plans would exclude the majority “from participation in the political processes” and

amount to “discrimination violative of the Fourteenth Amendment”); see also id. at 173 (Brennan, J.,

concurring in part) (“[W]hat is presented as an instance of benign race assignment in fact may prove

to be otherwise,” which “suggest[s] the need for careful consideration of the operation of any racial

device, even one cloaked in preferential garb. And if judicial detection of truly benign policies proves

impossible or excessively crude, that alone might warrant invalidating any race-drawn line.”). As this

Court recently reiterated: “Eliminating racial discrimination means eliminating all of it. And the

Equal Protection Clause, we have accordingly held, applies without regard to any differences of race,

of color, or of nationality—it is universal in its application.” Students for Fair Admissions, Inc. v.

President & Fellows of Harvard Coll., 143 S. Ct. 2141, 2161–62 (2023) (cleaned up).

11

The way to avoid these lose-lose situations for states is for them to be able to rely

on neutral principles. Under Allen and the established precedents discussed above, a

federal court may not mandate even a proportional representation plan in derogation

of traditional districting principles. This Court has warned that if a state uses

different “line-drawing standards in minority neighborhoods as it used elsewhere in

the jurisdiction, the inconsistent treatment might be significant evidence of a § 2

violation, even in the face of proportionality.” De Grandy, 512 U.S. at 1015. As to

Alabama’s 2021 Plan, the Plaintiffs repeatedly argued that the neutral districting

principle was keeping communities together, and “HB1 fragments two significant

majority-Black communities of interest—the Black Belt and the City of

Montgomery—while maintaining in a single district the majority-White, ‘French and

Spanish’-ethnic population of Baldwin and Mobile Counties.” Brief for Milligan

Appellees, supra, at 20–21.

Yet now, faced with the 2023 Plan that keeps the Black Belt together better than

the Plaintiffs’ plans and maintains communities in the Gulf Coast and Wiregrass, the

Plaintiffs demand the inconsistent treatment they had decried by calling for a split

of the latter communities. Using the myopic goal of proportionality to excuse this

violation of traditional districting principles “would be in derogation of the statutory

text and its considered purpose, . . . and of the ideal that the Voting Rights Act of

1965 attempts to foster”: “equal political and electoral opportunity.” De Grandy, 512

U.S. at 1018, 1020.

12

The district court did not explain how its approach to Gingles would not impose

liability writ large on state plans. Instead, echoing this Court, the district court said

that it “did not have to conduct a beauty contest between plaintiffs’ maps and the

State’s.” App. 147 (quoting Allen, 143 S. Ct. at 1505). Put aside that beauty contests

are more administrable than Gingles. See Merrill v. Milligan, 142 S. Ct. 879, 882–83

(2022) (Roberts, C.J., dissenting) (collecting authorities and noting “the wide range of

uncertainties arising under Gingles”).4 This Court made the “beauty contest”

comment about maps that “both” had “a split community of interest.” Allen, 143 S.

Ct. at 1505. That is no longer the case. See Application 29–31 & n.51. More generally,

it is one thing to say, as the three-Justice plurality “precedent” quoted by Allen (143

S. Ct. at 1505) did, that states “may pass strict scrutiny without having to defeat rival

compact districts designed by plaintiffs’ experts in endless ‘beauty contests.’” Bush v.

Vera, 517 U.S. 952, 977 (1996). It is something quite different to say that the state

can be liable based on plaintiffs’ plans that underperform on traditional criteria.

Underscoring the problems with this plaintiffs-always-win approach, the

Plaintiffs’ counsel recently insisted in another redistricting case pending before this

Court that “splitting” counties and “disregarding communities of interest” proves a

“subordinat[ion]” of “traditional districting principles” to a “racial target.” Appellees’

Brief 26, Alexander v. S.C. Conf. of the NAACP, No. 22-807 (U.S. Aug. 11, 2023). They

attacked South Carolina’s plan because its split of Charleston County purportedly

“The eyeball test,” for instance, is a creature of Gingles, not beauty contests. Alpha Phi Alpha

Fraternity, Inc. v. Raffensperger, No. 1:21-cv-5337, 2023 WL 5674599, at *11 (N.D. Ga. July 17, 2023)

(citing Allen, 143 S. Ct. at 1528 n.10); see also Singleton, 582 F. Supp. 3d at 1010.

4

13

“exil[es]” “residents—particularly in heavily Black North Charleston—from their

economically integrated coastal community,” placing “Black Charlestonians” in “a

district anchored more than 100 miles away in Columbia.” Id. at 16–17. Yet here, the

Plaintiffs demand that Alabama divide the coastal community of Mobile County to

place thousands of black residents—“Black Mobile,” per the Plaintiffs’ expert (App.

158)—in a district anchored more than 160 miles away in Montgomery. And the court

below accepted that demand, on the rationale that “there remains a need to split the

Gulf Coast” to increase “Black voting strength.” Id. at 166. The logic of the decision

below puts states in an impossible position.

In sum, under Allen and this Court’s longstanding precedents, the Plaintiffs’

super-proportionality-focused plans may not be substituted for the State’s Plan that

better satisfies traditional districting principles.

B. Section 2 does not require the creation of opportunity districts.

The Plaintiffs and the district court previously suggested plans that “include two

districts in which Black voters either comprise a voting-age majority or something

quite close to it.” App. 3 (emphasis added). Under established precedent, a remedy of

a district that is less than majority black is also unavailable. In Bartlett v. Strickland,

this Court held “that § 2 does not require crossover districts”—i.e., “one[s] in which

minority voters make up less than a majority of the voting-age population.” 556 U.S.

1, 13, 23 (2009) (plurality opinion). That is because § 2 “requires a showing that

minorities ‘have less opportunity than other members of the electorate to . . . elect

representatives of their choice,’” and in crossover districts, minorities “have no better

or worse opportunity to elect a candidate than does any other group of voters with

14

the same relative voting strength.” Id. at 14. If such districts could be judicially

imposed, courts would be placed “in the untenable position of predicting many

political variables and tying them to race-based assumptions.” Id. at 17. But courts

are inherently ill-equipped to “make decisions based on highly political judgments of

th[ese] sort[s].” Id. at 17 (cleaned up); accord Rucho v. Common Cause, 139 S. Ct.

2484, 2501 (2019) (explaining that “how close does the split need to be for the district

to be considered competitive” is an unanswerable political question). Plus, “[i]f § 2

were interpreted to require crossover districts,” “it would unnecessarily infuse race

into virtually every redistricting, raising serious constitutional questions.” Bartlett,

556 U.S. at 21 (cleaned up).

Of course, Ҥ 2 allows States to choose their own method of complying with the

Voting Rights Act,” and “that may include drawing crossover districts.” Id. at 23. But

“there is no support for the claim that § 2 can require the creation of crossover

districts in the first instance” by a federal court. Id. at 24; accord Caster D. Ct. Dkt.

179, at 7 (“Plaintiffs are not aware of any case in which a court has approved a Section

2 remedial district with less than a majority-minority voting-age population.”). Nor

may a state attempt compliance with § 2 of the Voting Rights Act by using a crossover

district when a crossover district violates the state’s own criteria.

In sum, none of the Plaintiffs’ plans provides an appropriate § 2 remedy against

the State’s superior 2023 Plan, and the district court had no warrant to order a

judicially-created remedial plan.

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II.

Alabama must have a full opportunity to defend its 2023 Plan.

The district court considered itself “deeply troubled that the State enacted a map

that the State readily admits does not provide the remedy we said federal law

requires,” adding that it was “disturbed” that Alabama did not have “the ambition to

provide the required remedy.” App. 8. The court even said that it was “not aware of

any other case in which a state legislature—faced with a federal court

order . . . requiring a plan that provides an additional opportunity district—

responded with a plan that” “does not provide that district.” Id. at 8–9. Likewise, the

Plaintiffs have proclaimed that Alabama is somehow “defying” the Supreme Court’s

opinion by declining to adopt a proportional representation plan. See Caster D. Ct.

Dkt. 179, at 1 (“Alabama is in open defiance of the federal courts.”).

All this is quite wrong. Far from being contrary to Allen, Alabama’s 2023 Plan

faithfully follows it—and the Plaintiffs’ plans disregard it. As shown, Alabama’s 2023

Plan is consistent with a long line of this Court’s precedents holding that states must

not subordinate traditional districting principles to race. The Plaintiffs’ remedial

plans, on the other hand, perform worse when it comes to those traditional principles

because they prioritize super-proportional racial representation. Only the Plaintiffs’

plans depend on splitting up communities of interest into sprawling districts. It is

their prioritization of proportional representation over neutral districting principles

that not only defies this Court but also contradicts their prior arguments.

More fundamentally, this criticism of Alabama ignores the limited nature of initial

proceedings like the preliminary injunction affirmed by this Court. The Plaintiffs

have never proved that any map violates § 2 on the merits. Alabama has never had

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an opportunity to defend any map at trial. The district court never ordered the State

to adopt a new map, much less one with an additional majority-minority district. Yet

after the State chose to repeal its 2021 Plan and adopt a new plan—as was its

prerogative, and without being “required” to do so by any court order—the court below

forged ahead with an abbreviated “remedial” proceeding for a tentative injunction

against a law that no longer exists. This approach impermissibly relieved the

Plaintiffs of their burden in challenging the new plan and deprived Alabama of its

right to defend its duly enacted laws.

A. Preliminary proceedings do not decide a case.

Neither the court below nor this Court has held that Alabama’s 2021 Plan violated

§ 2. That is because the prior proceedings merely involved a preliminary injunction.

As this Court explained its holding, “the District Court concluded that plaintiffs’ § 2

claim was likely to succeed under Gingles,” and “[b]ased on our review of the record,

we agree.” Allen, 143 S. Ct. at 1504. This holding does not establish that the 2021

Plan was unlawful. And the entirely different 2023 Plan could not somehow “defy” a

non-existent holding.

“At the preliminary injunction stage, the court is called upon to assess the

probability of the plaintiff’s ultimate success on the merits.” Sole v. Wyner, 551 U.S.

74, 84 (2007). It is “only the parties’ opening engagement,” and any “provisional relief

granted” is “tentative” “in view of the continuation of the litigation to definitively

resolve the controversy.” Id. “[T]he findings of fact and conclusions of law made by a

court granting a preliminary injunction are not binding at trial on the merits.” Univ.

of Texas v. Camenisch, 451 U.S. 390, 395 (1981).

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The scope of an appellate affirmance of a preliminary injunction—like Allen—is

similarly circumscribed. The issue before an appellate court considering a

preliminary injunction is merely “whether the District Court had abused its

discretion in issuing a preliminary injunction,” an inquiry that is “significantly

different” from “a final resolution of the merits.” Id. at 393. Because of the limited

“extent of [the] appellate inquiry,” Allen necessarily “intimate[d] no view as to the

ultimate merits of [the Plaintiffs’] contentions.” Doran v. Salem Inn, Inc., 422 U.S.

922, 934 (1975) (cleaned up). To read the Court’s decision otherwise is to assign it

authority it does not have.

If anything, Allen was even narrower than a typical decision of a preliminary

injunction appeal. That is because this Court limited its consideration to one

preliminary injunction factor: likelihood of success. And the Court merely “affirmed”

the court below’s determination “that plaintiffs demonstrated a reasonable likelihood

of success on their claim that HB1 violates § 2” and thus its preliminary injunction

prohibiting “Alabama from using HB1 in forthcoming elections.” 143 S. Ct. at 1502.

Allen decided nothing more. It did not decide that the State must draw two

majority-minority districts. The district court repeatedly noted its own prior

statement that “as a practical reality, the evidence of racially polarized voting

adduced during the preliminary injunction proceedings suggests that any remedial

plan will need to include two districts in which Black voters either comprise a votingage majority or something quite close to it.” Singleton, 582 F. Supp. 3d at 1033; see

App. 135. According to the district court, that suggestion meant “the remedy” of “an

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additional opportunity district” “was required.” Id. at 184; see id. at 6, 8, 99, 108–09,

126, 132 (all asserting that the court already required an additional district). Not only

does that confuse dicta with judicial orders, but this Court’s opinion was to the

opposite effect. And the question of an appropriate remedy was simply not before this

Court. Allen focused on the Gingles factors and § 2 standards for liability, not any

remedial question.

The State’s briefs in this Court did not address the district court’s “suggestion” of

a remedial majority-minority district. As noted, the Milligan Plaintiffs affirmatively

told this Court that the district court “did not order Alabama to enact Plaintiffs’ plans

or even to create a second majority-Black district.” Brief for Milligan Appellees,

supra, at 2; see also Oral Arg. Trans. 70:14–16, Allen, Nos. 21-1086, 21-1087 (U.S.

Oct. 4, 2022) (Milligan counsel: “[W]hat plaintiffs are really looking for is not any sort

of guarantee of a second majority-minority district.”), https://tinyurl.com/j6bmnk8w.

In light of these statements, it beggars belief for the district court and the

Plaintiffs to now suggest that anything short of two majority-minority districts is

“defying” any court. This Court did not consider that issue, and the Plaintiffs told the

Court that the State need not draw two majority-minority districts. No one could

pretend that Allen somehow held—either in its “result” or in “those portions of the

opinion necessary to that result”—that the State had to do what the Plaintiffs told

this Court it did not have to do. Seminole Tribe of Fla. v. Fla., 517 U.S. 44, 67 (1996);

cf. Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157, 170 (2004) (“Questions

which merely lurk in the record, neither brought to the attention of the court nor

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ruled upon, are not to be considered as having been so decided as to constitute

precedents.” (cleaned up)); United States v. L.A. Tucker Truck Lines, Inc., 344 U.S.

33, 38 (1952) (where an issue was neither “raised in briefs or argument nor discussed

in the opinion of the [c]ourt,” there is no “binding precedent on th[e] point”). The

district court says that “[t]he Supreme Court did not . . . warn us that we misstated

the appropriate remedy,” App. 135, but silence is not an affirmance of an issue not

before the Court—and, as explained below, that was a suggestion in dicta in the

district court’s prior order.

Thus, neither the State nor the district court was “bound” to require two majorityminority districts. Seminole, 517 U.S. at 67. This Court made no such holding (as the

issue was not raised or presented), it made no final determination on the merits of

any issue here, and it rejected the proposition that § 2 requires proportionality. The

State did not “defy” this Court; those who insist on two majority-minority districts

are defying this Court’s repeated admonitions that § 2 is not a proportionality regime.

B. A new law is not a “remedy” subject to summary adjudication.

Based on its misunderstanding about the judicial process and power, the district

court held an abbreviated “remedial” hearing about the preliminary injunction

against enforcement of a non-existent law. Then it simply ordered the State to use a

court-invented law. That approach misallocates the burden of proof and deprives the

State of its right to defend its duly enacted laws.

“The States do not derive their reapportionment authority from the Voting Rights

Act, but rather from independent provisions of state and federal law.” Voinovich v.

Quilter, 507 U.S. 146, 156 (1993) (cleaned up). “Districting involves myriad

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considerations—compactness, contiguity, political subdivisions, natural geographic

boundaries, county lines, pairing of incumbents, communities of interest, and

population equality.” Allen, 143 S. Ct. at 1513. And “the federal courts are bound to

respect the States’ apportionment choices unless those choices contravene federal

requirements.” Voinovich, 507 U.S. at 156. The “burden of proving an

apportionment’s invalidity squarely on the plaintiff’s shoulders.” Id. at 155.

Conversely, a state is never required “to prove the []validity of its own apportionment

scheme.” Id. at 156. “Of course, the federal courts may not order the creation of

majority-minority districts unless necessary to remedy a violation of federal law.” Id.

Here, the preliminary injunction had nothing to do with the State’s 2023 Plan,

which was not even enacted yet. The district court had “PRELIMINARILY

ENJOIN[ED] Secretary Merrill from conducting any congressional elections

according to the [2021] Plan.” Singleton, 582 F. Supp. 3d at 936. That injunction was

stayed by this Court, and since the stay was lifted, no one contends that a

congressional election has been held under the 2021 Plan. The preliminary injunction

contained no other order requiring the State to do anything about a new plan. The

State chose to enact a new map.

There was simply no “required remedy” in the preliminary injunction for the new

law “to provide,” as the district court now says over and over. App. 8. This new law,

then, cannot be characterized as a “remedy” for a non-existent order. The judicial

authority under Article III “amounts to little more than the negative power to

disregard an [unlawful] enactment.” Barr v. Am. Ass’n of Pol. Consultants, Inc., 140

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S. Ct. 2335, 2351 n.8 (2020) (plurality opinion) (quoting Massachusetts v. Mellon, 262

U.S. 447, 488 (1923)). Now that the 2021 Plan has been repealed, any injunction as

to that Plan’s enforcement is simply inoperative.

The district court’s objection to this conclusion underscores its confusion about the

nature of Article III’s judicial power. According to the district court, requiring

Plaintiffs to show that a new law is unlawful would “create[] an endless paradox that

only [the State] can break, thereby depriving Plaintiffs of the ability to effectively

challenge and the courts of the ability to remedy.” App. 126. But challenges to an “old

rule” are often “moot.” New York State Rifle & Pistol Ass’n, Inc. v. City of New York,

140 S. Ct. 1525, 1526 (2020). “[W]here the plaintiff may have some residual claim

under the new framework,” any prior judgment should be vacated, and “the parties

may, if necessary, amend their pleadings or develop the record more fully.” Id.

Here, of course, there was no final judgment to vacate. And if a state passes a new

law that is unlawful, federal courts may intervene in a proper case or controversy if

the plaintiff proves his case. If a state “simply re-enacted the same district lines,”

Caster D. Ct. Dkt. 190, at 8, a preliminary injunction would likely not be long in

issuing. But federal courts do not sit as permanent “councils of revision.” United

States v. Rutherford, 442 U.S. 544, 555 (1979); see United States v. Richardson, 418

U.S. 166, 189 (1974) (Powell, J., concurring) (explaining that under the Council of

Revision, “every law passed by the legislature automatically would have been

previewed by the Judiciary before the law could take effect”). They decide cases or

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controversies, and the 2023 Plan presents a new controversy. This is not

“manipulat[ion],” App. 126; it is black-letter Article III law.5

Of more concern is what happened here: the court below used a preliminary

proceeding against one law to prejudge a new law in an even more abbreviated

preliminary proceeding, forcing the State to adopt a court-imposed map without ever

allowing it the full opportunity to defend any of its plans. Even though the Plaintiffs

have the burdens of production and persuasion, the district court did not require the

Plaintiffs to prove much at all about the 2023 Plan. Though one section of its lengthy

opinion purports to “reset the Gingles analysis to ground zero” (after claiming that a

reset would be “inconsistent with our understanding of this Court’s judicial power”),

that section does no such thing. App. 124, 139. It judges the State’s experts based on

its prior “credibility determination[s],” complaining that the State “makes no effort

to rehabilitate [one expert’s] credibility.” Id. at 141. It complains that “[t]he State

does not acknowledge . . . or suggest that any of the problems we identified have been

remedied.” Id. at 142. It refuses to “defer to the legislative findings” because of its

prior finding of likely liability, even while acknowledging that “assum[ing] the truth

of our conclusion as a premise of our analysis” was “circular reasoning.” Id. at 161–

62; see id. at 164. The court’s only justification for all this? “This is not an ordinary

5 The Eleventh Circuit recently stayed a similar decision treating a new map as “remedial” and thus

declining to “consider[] [it] anew.” Grace, Inc. v. Miami, No. 1:22-cv-24066, 2023 WL 4853635, at *8

(S.D. Fla. July 30, 2023); see Grace, Inc. v. Miami, No. 23-12472, 2023 WL 5286232, at *2 (11th Cir.

Aug. 4, 2023). This Court declined to vacate that stay. Grace, Inc. v. Miami, No. 23A116, 2023 WL

5284458, at *1 (U.S. Aug. 17, 2023).

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case.” Id. at 162. But standards and burdens of proving liability apply across Article

III cases.

In no other area of law would such contortions be sanctioned in enjoining a state’s

duly enacted law. As the district court conceded, if it approached the challenge to the

2023 Plan in an “ordinary” way, its reasoning would be “circular” and unsupportable.

Id. The district court’s “departure from the statutorily required allocation of burdens”

“was error.” Voinovich, 507 U.S. at 156. Alabama is due a full opportunity to defend

its enacted law, which follows this Court’s opinion in Allen.

CONCLUSION

The application should be granted.

Respectfully submitted,

CHRISTOPHER E. MILLS

Counsel of Record

Spero Law LLC

557 East Bay Street #22251

Charleston, SC 29413

(843) 606-0640

cmills@spero.law

Counsel for Amicus Curiae

SEPTEMBER 13, 2023

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