Reply Brief — Michigan Independent Citizens Redistricting Commission, et al., Applicants v. Donald Agee Jr., et al.

No. 23A641

IN THE

Supreme Court of the United States

___________

MICHIGAN INDEPENDENT CITIZENS REDISTRICTING COMMISSION, et al.,

Defendant-Applicant,

v.

DONALD AGEE, JR., et al.,

Plaintiffs-Respondents,

&

JOCELYN BENSON, in her official capacity as Michigan Secretary of State,

Defendant-Respondent.

___________

Reply Brief in Support of Emergency Application for Stay and

Request for an Immediate Administrative Stay

___________

To the Honorable Brett M. Kavanaugh

Associate Justice of the Supreme Court of the United States and

Circuit Justice for the Sixth Circuit

___________

NATHAN J. FINK

DAVID H. FINK

FINK BRESSACK

38500 Woodward Ave., Suite 350

Bloomfield Hills, MI 48304

(248) 971-2500

nfink@finkbressack.com

dfink@finkbressack.com

PATRICK T. LEWIS

BAKER & HOSTETLER LLP

127 Public Square

Suite 2000

Cleveland, OH 44114

(216) 621-0200

plewis@bakerlaw.com

RICHARD B. RAILE

Counsel of Record

KATHERINE L. MCKNIGHT

DIMA J. ATIYA

BAKER & HOSTETLER LLP

1050 Connecticut Ave., N.W.

Suite 1100

Washington, D.C. 20036

(202) 861-1500

rraile@bakerlaw.com

kmcknight@bakerlaw.com

datiya@bakerlaw.com

TABLE OF CONTENTS

TABLE OF CONTENTS ................................................................................................ ii

TABLE OF AUTHORITIES ......................................................................................... iii

STATEMENT ................................................................................................................. 1

ARGUMENT ....................................................................................................................

I.

II.

The Court Is Likely To Note Probable Jurisdiction and

Reverse...................................................................................................... 2

A.

The Commission Had a Strong Basis in Evidence

To Conclude That §2 Required Racial Considerations ................................................................................................ 4

B.

The Commission’s Use of Race Was Narrowly Tailored.............................................................................................. 11

C.

The Commission Properly Declined To Draw Districts Based on Primary-Election Information ........................... 14

D.

Respondents’ Remaining Positions Lack Merit .......................... 18

The Equitable Factors Favor a Stay ...................................................... 21

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

ii

TABLE OF AUTHORITIES

Cases

Page(s)

Abbott v. Perez,

138 S. Ct. 2305 (2018) ........................................................................ 1, 2, 17, 19, 21

Alabama Legislative Black Caucus v. Alabama,

575 U.S. 254 (2015) ............................................................................................ 4, 13

Allen v. Milligan,

599 U.S. 1 (2023) .............................................................................................. 12, 18

Am. Party of Texas v. White,

415 U.S. 767 (1974) .................................................................................................. 9

Arizona State Legislature v. Arizona Indep. Redistricting Comm'n,

576 U.S. 787 (2015) ................................................................................................ 21

Ayestas v. Davis,

138 S. Ct. 1080 (2018) .............................................................................................. 5

Bartlett v. Strickland,

556 U.S. 1 (2009) ................................................................................................ 6, 19

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

580 U.S. 178 (2017) ................................................................ 1, 2, 5, 7, 9, 10, 11, 16

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

326 F. Supp. 3d 128 (E.D. Va. 2018) ...................................................................... 18

Bush v. Vera,

517 U.S. 952 (1996) .................................................................................................. 6

Cooper v. Harris,

581 U.S. 285 (2017) .................................................................................................. 1

Covington v. North Carolina,

316 F.R.D. 117 (M.D.N.C. 2016) .............................................................................. 8

Department of Transportation v. Association of American Railroads,

575 U.S. 43 (2015) .................................................................................................... 5

Dunn v. Blumstein,

405 U.S. 330 (1972) .................................................................................................. 9

iii

Georgia v. Ashcroft,

539 U.S. 461 (2003) .................................................................................... 15, 19, 20

Harris v. Forklift Systems, Inc.,

510 U.S. 17 (1993) .................................................................................................... 5

Hollingsworth v. Perry,

558 U.S. 183 (2010) ............................................................................................ 2, 23

Houston v. Lafayette Cnty., Miss.,

56 F.3d 606 (5th Cir. 1995) ...................................................................................... 6

Johnson v. De Grandy,

512 U.S. 997 (1994) ............................................................................................ 7, 20

Johnson v. Miller,

864 F. Supp. 1354 (S.D. Ga. 1994) ......................................................................... 23

Karcher v. Daggett,

455 U.S. 1303 (1982) .............................................................................................. 21

League of United Latin Am. Citizens v. Perry,

548 U.S. 399 (2006) ................................................................................................ 22

Lewis v. Alamance Cnty., N.C.,

99 F.3d 600 (4th Cir. 1996) ...................................................................................... 7

Lyng v. Nw. Indian Cemetery Protective Ass'n,

485 U.S. 439 (1988) ................................................................................................ 22

Maryland v. King,

567 U.S. 1301 (2012) .............................................................................................. 21

Miller v. Johnson,

512 U.S. 1283 (1994) .............................................................................................. 23

Miller v. Johnson,

515 U.S. 900 (1995) .......................................................................................... 17, 20

Nat’l Collegiate Athletic Ass’n v. Smith,

525 U.S. 459, 470 (1999) .......................................................................................... 5

Navajo Nation v. San Juan Cnty.,

929 F.3d 1270 (10th Cir. 2019) .............................................................................. 20

Personhuballah v. Alcorn,

155 F. Supp. 3d 552 (E.D. Va. 2016) ...................................................................... 20

iv

Roberts v. Galen of Virginia, Inc.,

525 U.S. 249 (1999) .................................................................................................. 5

Rostker v. Goldberg,

448 U.S. 1306 (1980) .............................................................................................. 22

Sensley v. Albritton,

385 F.3d 591 (5th Cir. 2004) .................................................................................... 6

Shaw v. Hunt,

517 U.S. 899 (1996) ................................................................................................ 20

Shelby Cnty., Ala. v. Holder,

570 U.S. 529 (2013) ................................................................................................ 18

Singleton v. Allen,

No. 2:21-cv-1291-AMM, 2023 WL 6567895 (N.D. Ala. Oct. 5, 2023) .................... 13

Thornburg v. Gingles,

478 U.S. 30 (1986) ...................................................................................... 12, 20, 22

Wilkins v. West,

571 S.E.2d 100 (Va. 2002) ...................................................................................... 18

Wisconsin Legislature v. Wisconsin Elections Comm’n,

595 U.S. 398 (2022) .................................................................................................. 4

Wright v. Sumter Cnty. Bd. of Elections & Registration,

979 F.3d 1282 (11th Cir. 2020) .............................................................................. 20

Other Authorities

B. Grofman, L. Handley, & R. Niemi, Minority Representation and the

Quest for Voting Equality 136 (1992) .................................................................... 20

B. Grofman, & C. Davidson, Controversies in Minority Voting 56 (1992) ................. 20

Grofman, Handley, & Lublin, Drawing Effective Minority Districts: A

Conceptual Framework and Some Empirical Evidence, 79 N.C.L.

Rev. 1383 (2001) ............................................................................................... 20, 21

Miller & Grofman, Redistricting Commissions in the Western United

States, 3 U.C. Irvine L. Rev. 637 (2013) ................................................................ 21

v

STATEMENT

The Commission faithfully adhered to this Court’s precedents holding that the

Fourteenth Amendment will be satisfied by efforts at Voting Rights Act (VRA) compliance informed by a “functional analysis” of voting patterns, Bethune-Hill v. Virginia State Bd. of Elections, 580 U.S. 178, 195 (2017), not mechanical thresholds divorced from evidence, Cooper v. Harris, 581 U.S. 285, 304–06 (2017). Yet its plans

still were found deficient. Under the decision below, no plan drawn predominantly to

comply with §2 can pass muster. This Court’s prompt intervention is necessary to

prevent that outcome and provide essential guidance for redistricting authorities to

navigate the “competing hazards of liability” posed by the Fourteenth Amendment

and the VRA. Abbott v. Perez, 138 S. Ct. 2305, 2315 (2018) (citation omitted).

Respondents’ defense of the decision below confirms its infirmities. The narrow-tailoring question is whether the Commission had good reasons to believe the

Gingles preconditions were satisfied. Cooper, 581 U.S. at 294. But respondents admit

the district court did not evaluate whether the Gingles preconditions were satisfied

and ignored the work of the Commission’s expert, Dr. Handley, which showed that

they were. A court cannot apply the “good reasons . . . standard,” id., without examining a redistricting authority’s actual reasons for its decisions. Respondents’ belated

efforts to supply findings the district court failed to make are both unavailing and

incorrect. And their insistence that primary elections should be examined ignores

that they were examined. Respondents identify no election data Dr. Handley failed to

review and do not say what she should have inferred from the primary data prominently featured in her report. Respondents’ position, in essence, is the theme of the

decision below: whatever the redistricting authority did, it was wrong.

1

That view misses the governing legal standard, which affords “breathing room”

by permitting a legislative body to show “good reasons” for its decisions and by not

requiring proof “that its action was actually necessary.” Bethune-Hill, 580 U.S. at

194–95 (quotation and alteration marks omitted). The Commission satisfied this test

to a degree never before achieved. This Court is unlikely to find otherwise after a

fulsome review on the merits (which is likely to occur), and it should stay the injunction below to preserve the status quo pending that review.

ARGUMENT

I.

The Court Is Likely To Note Probable Jurisdiction and Reverse

The first two stay factors are satisfied. This case will likely be among the most

important redistricting cases this Court will resolve this decade, and it is unlikely to

affirm the injunction below.

Respondents acknowledge that “compliance with the VRA can be a compelling

interest,” Opp. 17, that will “justify the consideration of race in a way that would not

otherwise be allowed,” Abbott, 138 S. Ct. at 2315; see also Bethune-Hill, 580 U.S. at

193 (upholding challenged district where the plaintiffs did “not dispute that compliance with § 5 was a compelling interest”). Thus, respondents’ extensive discussion of

the district court’s findings of fact in its predominance inquiry, e.g., Opp. 9–10, 13–

14, and their repeated observation that applicants rest their stay application only on

the narrow-tailoring inquiry, e.g., Opp. 10, 17, do not move the needle. The Commission’s narrow-tailoring defense supplies more than a sufficient basis for this Court to

note probable jurisdiction and reverse. Hollingsworth v. Perry, 558 U.S. 183, 190

(2010); see Stay Appl. 19–34.

2

Because the district court’s analysis is deficient—and because the effects of its

ruling are likely to be widespread and deleterious—this Court is likely to do both.

Respondents strive to paint the district court’s narrow-tailoring analysis as “meticulously detailed,” founded on “over 10,000 pages of record,” and comprising “an unassailable factual finding.” Opp. 10. But they cannot overcome the basic fact that the

district court’s “shorter work” of the narrow-tailoring inquiry is barely over two pages

long, App. 112a–114a, and contains very little of the analysis respondents now read

into it. Indeed, respondents’ theories of what this case concerns—and what the court

below held—are erratic. For example, they repeatedly say the district court’s narrowtailoring holding is a “factual finding,” Opp. 14, but elsewhere admit the district court

“did not examine Dr. Handley’s polarization analysis” and say it did not need to because it rested on “a legal mistake,” Opp. 26 (citation omitted); but see Opp. 14 (“There

is no disputed legal issue at stake here”). They announce that the narrow-tailoring

issue is “one the panel decisively resolved against the Commission after considering

all the trial evidence,” Opp. 14, but then admit the district court “did not address any

of the Gingles preconditions or determine whether the Commission had good reasons

to believe they were satisfied,” Opp. 26 (quoting Stay Appl. 28). They also

acknowledge that §2 may be violated if “an ‘excessive majority’ of Black voters are

packed into a single district,” Opp. 19, but later propose that “districts of more than

70% BVAP and less than 30% BVAP” would not violate the VRA “because those

BVAPs reflect the natural geographic distribution of Black voters in Detroit,” Opp.

26. Their arguments do not make sense and are often difficult to follow.

That is symptomatic of deeper problems. While laden with quips, respondents’

brief falls short in coherence and substance and cannot make up for an ill-reasoned

3

lower-court ruling that will, if left undisturbed, pose significant national consequences for redistricting authorities that attempt to comply with §2.

A.

The Commission Had a Strong Basis in Evidence To Conclude

That §2 Required Racial Considerations

The Commission set forth its strong basis in evidence to conclude that the Gingles preconditions were satisfied and proved its use of race was narrowly tailored.

Stay Appl. 22–27. To summarize, early draft plans contained supermajority BVAP

districts (as high as 76.56% BVAP) that neighbored districts with BVAPs below 30%

(and even 10%), and a polarized-voting analysis demonstrated that the former were

packed and the latter were cracked. Rather than employ “a mechanically numerical

view” of the VRA, the Commission tailored its efforts to bring high BVAPs down and

low BVAPs up to “a functional analysis of the electoral behavior within the particular

jurisdiction or election district.” Alabama Legislative Black Caucus v. Alabama, 575

U.S. 254, 276–77 (2015) (citation omitted). That is what this Court’s precedents have

directed legislative bodies to do. See id.; Cooper, 581 U.S. at 301–02; Wisconsin

Legislature v. Wisconsin Elections Comm’n, 595 U.S. 398, 404 (2022). If that approach

does not work, nothing does.

1.

Respondents admit the district court ignored the proper standard.

Cooper unanimously held that a redistricting authority will have a strong basis in

evidence to use race for §2 compliance if it “has good reason to think that all the

‘Gingles preconditions’ are met.” 581 U.S. at 302; see Opp. 5 (acknowledging this

standard applies). Respondents concede “it is true that the three-judge panel ‘did not

address any of the Gingles preconditions or determine whether the Commission had

good reasons to believe they were satisfied.’” Opp. 26 (quoting Stay Appl. 28). That

admission defeats respondents’ insistence that the district court’s “work was factual,

4

not legal, in nature.” Opp. 22. Declining to apply the correct “legal standard” is a

quintessential legal error. Bethune-Hill, 580 U.S. at 183; see also Ayestas v. Davis,

138 S. Ct. 1080, 1095 (2018) (vacating and remanding decision that applied incorrect

legal standard); Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993) (reversing

because “application of these incorrect standards may have influenced [the] ultimate

conclusion”). Where the parties agree to all predicates of such an error, it is close to

certain that this Court will not affirm the decision below. See Bethune-Hill, 580 U.S.

at 188–192 (vacating and remanding based on failure to apply correct standard).

Undeterred, respondents ask this Court to determine for itself that “the Commission did not reasonably believe that all the Gingles preconditions were met at the

time the Commission was drawing maps.” Opp. 14. But these positions were not decided below and are not “sufficiently developed” for this Court “to assess them.” Roberts v. Galen of Virginia, Inc., 525 U.S. 249, 253–54 (1999). This Court “is a court of

final review and not first view,” Bethune-Hill, 580 U.S. at 193 (quoting Department

of Transportation v. Association of American Railroads, 575 U.S. 43, 56 (2015)), and

it does “not decide in the first instance issues not decided below,” Nat’l Collegiate

Athletic Ass’n v. Smith, 525 U.S. 459, 470 (1999). Given that respondents’ various

assertions include fact-bound ones, Opp. 14–17, this case is not a candidate for departure from that norm. The best case scenario for respondents insofar as they rely

on these positions is vacatur and remand.

2.

Respondents’ assertions are, in any event, unfounded, beginning with

their odd view that the Commission’s record did not establish the first Gingles precondition. See Opp. 14.

5

That precondition is established by evidence that the relevant minority group

is “sufficiently large and geographically compact to constitute a majority in some reasonably configured legislative district.” Cooper, 581 U.S. at 301 (quotation marks

omitted). As the Commission explained, draft house and senate plans contained multiple supermajority BVAP districts, Stay Appl. 23–24; App. 260a, 272a–73a, that easily show the minority group can make up “more than 50 percent of the voting-age

population in the relevant geographic area,” Bartlett v. Strickland, 556 U.S. 1, 18

(2009). That is no surprise, when respondents acknowledge that “[a] near super-majority of” black Michigan residents “reside in Wayne, Oakland, and Macomb counties

with the epicenter of these residents hailing from Detroit, which is 78% ‘Black alone.’”

Opp. 2.

Respondents are incorrect in asserting that—beyond that evidence—the Commission needed another “demonstration map” to meet the narrow-tailoring standard.

Opp. 14. To the contrary, the Commission merely needed a “good reason to think” this

precondition would be met, Cooper, 581 U.S. at 301–302, not any specific manifestation of evidence, see Bush v. Vera, 517 U.S. 952, 966 (1996) (plurality opinion) (explaining that this inquiry does “not . . . require States engaged in redistricting to compile a comprehensive administrative record” (quotation marks omitted)). Even in after-the-fact §2 litigation, the first precondition turns not on the “proposed district”

itself but on whether it shows “that a geographically compact district could be drawn.”

Houston v. Lafayette Cnty., Miss., 56 F.3d 606, 611 (5th Cir. 1995); see also Sensley v.

Albritton, 385 F.3d 591, 596 (5th Cir. 2004). Here, the draft plans before the Commission showed that, and no additional plan bearing the label “demonstration plan” was

needed.

6

Likewise, no authority supports respondents’ contention that the Commission

needed to identify precisely “how many Black majority-minority districts could be

created in and around Detroit.” Opp. 15. It was more than sufficient that the Commission’s record showed that at least three majority-minority senate districts and

eight majority-minority house districts were possible, and it was apparent that more

were possible beyond that, given the supermajority BVAP levels of many draft districts. See App.267a–72a. Requiring more precision would “ask too much from state

officials charged with the sensitive duty of reapportioning legislative districts.” Bethune-Hill, 580 U.S. at 195. Besides, the “failure to maximize [majority-minority districts] cannot be the measure of §2, Johnson v. De Grandy, 512 U.S. 997, 1017 (1994),

so a plan doing that would not be informative.

3.

Respondents’ contentions on the second Gingles precondition are equally

flawed. See Opp. 15. That precondition requires evidence that black voters are “politically cohesive.” Cooper, 581 U.S. at 302 (citation omitted). Dr. Handley’s analysis

showed that black voters support the same candidates in general elections at very

high levels, exceeding 98% and 99% in Oakland and Wayne Counties. See App. 189a–

94a; see also App. 166a (“[I]n every election contest considered at least 95% of Black

voters supported the Black-preferred candidate.”). Voters cannot get more cohesive

than that.

In the face of that evidence, respondents offer tricks, pointing out that Dr.

Handley and Mr. Adelson found an absence of cohesion in primary elections. Opp. 15.

But that only proves why the Commission did not look to primaries in structuring

Detroit-area districts. See Stay Appl. 31–33; infra § I.C. VRA §2 “requires that minorities have an equal opportunity to participate not only in primary elections but

7

also in general elections,” Lewis v. Alamance Cnty., N.C., 99 F.3d 600, 616

(4th Cir. 1996), so the cohesion in general elections provided the good reasons the

Commission needed for §2 compliance.

4.

The Commission also had good reasons to believe the third precondition

would be met, given its evidence that—without opportunity districts—a “white majority” would “vote sufficiently as a bloc to usually defeat the minority’s preferred

candidate.” Cooper, 581 U.S. at 302 (quotation and alteration marks omitted). Dr.

Handley determined that black and white voters do not support the same candidates,

App. 152a, and that in districts below 40% BVAP in Oakland County and 35% BVAP

in Wayne County, the white voting bloc could outvote the cohesive black electorate.

See App. 165a–68a; App. 248a–53a. That analysis accounted for “pattern[s] of white

crossover voting in the area,” Cooper, 581 U.S. at 304, in the type of “district effectiveness analysis” called for in precedent, Covington v. North Carolina, 316 F.R.D.

117, 169 n.46 (M.D.N.C. 2016), aff’d, 581 U.S. 1015 (2017). Respondents cite no case

where a redistricting authority had a more thorough analysis, and we know of none.

Respondents’ numerous quarrels with this analysis are incorrect and unpersuasive.

First, they are wrong in contending that Dr. Handley’s analysis is “based on

counties and a statewide analysis” and that she “performed no district-by-district

analysis whatsoever.” Opp. 15. Dr. Handley’s analysis was as district-specific as possible, as she determined the percent needed to win within Wayne and Oakland Counties; she did not merely add up vote totals of the counties themselves. See App. 162a–

69a. In this way, the analysis would show what BVAP level of specific districts in

these counties would enable black voters to elect their preferred candidates—e.g.,

8

draft house district 1 (28.26% BVAP) would not likely perform, but draft house district 6 (65.66% BVAP) easily would perform, see App. 272a. It was not possible to be

more precise: when Dr. Handley performed her analysis, districts had not yet been

drawn. Constitutional scrutiny “has never required the States to do the impossible.”

Am. Party of Texas v. White, 415 U.S. 767, 786–87 (1974); Dunn v. Blumstein, 405

U.S. 330, 360 (1972) (“By requiring classifications to be tailored to their purpose, we

do not secretly require the impossible.”). Moreover, Dr. Handley advised commissioners to consider recompiled election analyses that did show electoral outcomes for each

district as it was drawn, see App. 171a–72a, and the district court found that commissioners employed this tool, see App. 009–10a. It faulted that analysis, not for failing to be district specific, but for utilizing general elections–a point addressed below

(§ I.C). See App. 009–10a. 1

Second, respondents fault Dr. Handley for including “no analysis about Macomb County.” Opp. 16. But the district court correctly held that she was unable to

analyze voting patterns by race in Macomb County “because black voters are scarce

there.” App. 008a; see also D. Ct. Doc. 108, 5 Trial Tr. 36:16–21. Respondents again

demand “the impossible.” Am. Party of Texas, 415 U.S. at 786–87; see also BethuneHill, 580 U.S. at 195 (cautioning courts not to ask “too much”).

Third, respondents insist the elections Dr. Handley analyzed did not show the

third precondition because black candidates of choice typically won elections “in Oakland County” and “in Wayne County.” Opp. 16. But this, again, misses the relevant

Respondents contend that the recompiled-election analysis would permit “[t]he

Commission [to] draw down BVAPs as low as Mr. Adelson directed, and the Bellwether Election button would always show that Black candidates of choice would prevail.” Opp. 16. But the tool would not show black-preferred-candidate success below

those levels, which is the key point here.

1

9

question, which is the percent BVAP that single-member districts within these counties required. That is what Dr. Handley calculated; she did not rely on county-wide

vote totals.

Fourth, respondents appear to argue that Dr. Handley’s analysis was too conservative, as it showed that black-preferred candidates would prevail in Wayne

County in BVAPs as low as 35%. See Opp. 20. But that proves why Dr. Handley identified 35% BVAP as an appropriate lower bound in Wayne County, App. 166a. It

would not have made sense to advise commissioners that even lower BVAPs would

work—especially where the data showed that wins for black-preferred candidates

would fall from supermajority victories in 55% BVAP districts to narrow success in

35% BVAP districts, see Opp. 20; App. 167a. Districts below that latter mark would

not perform for black voters. Indeed, in Oakland County, black-preferred candidates

would begin losing contests in 35% BVAP districts, see App. 168a, which is why Dr.

Handley recommended a “40% BVAP” mark there, App. 166a. Even if there is room

to quarrel with those conclusions, “[t]he law cannot insist that a state legislature,

when redistricting, determine precisely what percent minority population” the VRA

demands. Bethune-Hill, 580 U.S. at 195.

Fifth, respondents repeatedly insist that Dr. Handley’s polarized voting analysis cannot make sense “because Detroit overwhelmingly elects Democrats,” Opp. 20;

see also id. at 22–23. But respondents cite no evidence in support of their assertion.

All evidence refutes it. Dr. Handley’s analysis showed that white voters in Wayne

and Oakland Counties routinely prefer Republicans. Nearly 54% of white voters in

Wayne County, and more than 57% in Oakland County, supported Donald Trump in

2020; about the same percentages supported the Republican senatorial candidates

10

that year; more than 55% of white voters in Wayne County, and nearly 60% in Oakland County, supported Trump in 2016; high percentages supported Republican senatorial candidates those years; and white voters routinely gave better than majority

support to Republican candidates in down-ballot races. See App. 189a–94a.

Those patterns constitute the “white bloc-voting” that would become “effective”

in districts drawn with BVAPs below the levels Dr. Handley identified. Cooper, 581

U.S. at 305–06. Notably, respondents’ expert testified at trial that he does not “disagree about these numbers” and that Dr. Handley and he “are pretty much in agreement” about these estimates. D. Ct. Doc. 102, 2 Trial Tr. 72:17–73:2. Those numbers

provided “a strong basis in evidence to conclude that § 2 demands . . . race-based

steps.” Cooper, 581 U.S. at 304.

B.

The Commission’s Use of Race Was Narrowly Tailored

As the Commission explained, its use of race was as narrowly tailored as possible under applicable practical constraints. Stay Appl. 25–27. It considered factors

like “white crossover voting,” minority cohesion, and turnout rates to determine

whether a proposed district will “allow the minority group to elect its favored candidates.” Cooper, 581 U.S. at 304–05. That is the “functional analysis” this Court’s precedents command. Bethune-Hill, 580 U.S. at 195. Respondents do not meaningfully

address this Court’s narrow-tailoring precedents, and their arguments predictably

miss the mark.

1.

Echoing the district court, respondents contend that “only an ‘excessive

majority’ of Black voters can amount to packing under the VRA.” Opp. 18. But elsewhere in their brief, they answer their own objection, admitting “that, ‘without the

use of race, the plans would likely have contained districts of more than 70% BVAP

11

and less than 30% BVAP.’” Opp. 26 (quoting Stay Appl. 29). Precisely. Districts of

70% BVAP—well above the level black voters required to elect their preferred candidates—and those below 30% and even 10%—well below that level—are packed and

cracked districts. Stay Appl. 21–25. Respondents agree that those types of packed and

cracked districts were before the Commission, and that is why the Commission had

good reasons to avoid §2 liability. Notably, the Commission demonstrated that draft

plans contained cracked districts, not just packed districts. Stay Appl. 26. Respondents (like the district court) do not address those districts.

Respondents erroneously defend the draft districts on the ground that “those

BVAPs reflect the natural geographic distribution of Black voters in Detroit” and propose “[t]hat’s not a VRA violation.” Opp. 26. That error misses the entire point of the

“effects” test of §2, which “turns on the presence of discriminatory effects, not discriminatory intent.” Allen v. Milligan, 599 U.S. 1, 25 (2023). The effects test “prevent[s] the cracking or packing—whether intentional or not—of large and geographically compact minority populations.” Id. at 44 (Kavanaugh, J., concurring). If the

Gingles preconditions are satisfied, and liability is shown under the totality of circumstances, §2 prohibits “the dispersal of blacks into districts in which they constitute an ineffective minority of voters” and “the concentration of blacks into districts

where they constitute an excessive majority.” Thornburg v. Gingles, 478 U.S. 30, 46

n.11 (1986). There is no §2 defense if the cracking or packing is somehow “natural.”

Opp. 26. If there were, §2’s commands would not mean much.

2.

Respondents also argue that the §2 “remedy” for “packing” is “more dis-

tricts with BVAPs above 50%,” which they say precludes the Commission’s approach

of drawing districts below 50% BVAP. Opp. 18. This repeats the precise “legal

12

mistake” unanimously condemned in Cooper: that “whenever a legislature can draw

a majority-minority district, it must do so—even if a crossover district would also

allow the minority group to elect its favored candidates.” 581 U.S. at 305. While respondents are correct that a “remedy” was necessary to cure the draft plans’ cracking

and packing, Opp. 18, they mistakenly ignore that §2 can be “satisfied by crossover

districts,” Cooper, 581 U.S. at 305. That was the narrowly tailored remedy here.

Respondents’ discussion of the Milligan litigation exposes their confusion for

what it is. Respondents correctly note that the Milligan plaintiffs satisfied the first

Gingles precondition by showing that “two reasonably configured majority-minority

districts” were possible. Opp. 18. But they mistakenly propose that “[n]o court suggested that the appropriate remedy was” a district “below 50%.” Opp. 18–19. But that,

in fact, was the outcome. The district court adopted a remedial district that “is not

majority-Black; the Black voting-age population is 48.7%.” Singleton v. Allen, No.

2:21-cv-1291-AMM, 2023 WL 6567895, at *16 (N.D. Ala. Oct. 5, 2023). That result

tracks Cooper, which explained that the majority-minority rule applies to “the first

Gingles precondition,” but it does not follow that only a majority-minority district

may remedy a §2 violation where that precondition (and others) are met; rather §2

can be “satisfied by crossover districts (for groups in fact meeting Gingles’ size condition).” 581 U.S. at 305. Thus, in Milligan, the plaintiffs had to meet the size condition

to show liability, but a 48.7% BVAP district could (and did) provide the remedy.

As relevant here, the narrow-tailoring question directs redistricting authorities to look, not to the rigid 50% BVAP target respondents propose, but to “a functional analysis of the electoral behavior within the particular jurisdiction or election

district,” Alabama Legislative Black Caucus, 575 U.S. at 276, that considers whether

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“a substantial bloc of black voters, if receiving help from some white ones, could elect

the candidates of their choice” at less than a majority, Cooper, 581 U.S. at 305. In

many cases, that may show that districts at, or even above, 50% BVAP are necessary,

but the evidence did not support such a conclusion here. In opposing the Commission’s determination, respondents ignore practically everything this Court has said

in recent years about narrow tailoring.

C.

The Commission Properly Declined To Draw Districts Based on

Primary-Election Information

The Commission’s stay application established two points about primary elections beyond serious dispute: (1) Dr. Handley and Mr. Adelson carefully examined

primary elections and (2) they found that primary elections did not show likely §2

liability and so did not form a proper basis for line-drawing in any material respect.

Stay Appl. 31–32. Like the district court, respondents do not address what the evidence showed about primary elections or what the Commission’s advisors found. Failing to understand any of this, respondents have nothing persuasive to say about it.

1.

Respondents conflate two distinct concepts: a “failure to consider” pri-

mary elections, on the one hand, and a failure to arrive at a given conclusion, on the

other. See, e.g., Opp. 22; Opp. 23. As to the former, it is obviously not true that Dr.

Handley did not “consider the ability of Black candidates of choice to succeed at the

primary level.” Opp. 22. Dr. Handley’s report contains extensive primary analysis,

see App. 156a–57a; App. 170a–71A, and she testified about that analysis at trial, App.

287a–288a (4 Trial Tr. 226:5–227:4). Those facts are inescapable and in hard print.

As to the latter, however, Dr. Handley did not arrive at the conclusion respondents

would prefer for reasons she explained: her analysis did not uncover a barrier to black

electoral opportunity in primary elections because “half of these contests are not

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polarized” and “the black preferred candidate was winning in . . . many of the contests

that were polarized.” App. 287a. That finding is supported in her report, which shows

that the two Gingles polarized-voting preconditions were satisfied in only four contests in the relevant area (in about 35 examined elections), and two of those losses

occurred in districts below 30% BVAP. See App. 155a–57a. 2 It is for that reason that

the general elections—where likely §2 vulnerabilities were apparent, and the barrier

to black opportunity identified—informed the line-drawing, rather than primaries.

Respondents do not address Dr. Handley’s analysis in terms of data or rationale, and the district court did not either. Respondents acknowledge “that the

three-judge panel ‘did not examine Dr. Handley’s polarization analysis,’” Opp. 26

(quoting Stay Appl. 29), and a paradigmatic case of clear error occurs where a district

court “ignored the evidence” before it. Georgia v. Ashcroft, 539 U.S. 461, 486 (2003).

It is not possible to evaluate a state’s “good reasons” for its §2-compliance approach,

Cooper, 581 U.S. at 301, by refusing to even acknowledge what those reasons are. As

noted, respondents’ expert testified to his “agreement” about Dr. Handley’s estimates,

D. Ct. Doc. 102, 2 Trial Tr. 72:17–73:2, so any “factual” finding on this point, Opp. 22,

would need to depend on some error of methodology or interpretation. Respondents

offer none. 3

Instead, respondents check off evidence establishing “the importance of examining primary elections,” including in Dr. Handley’s academic work, Opp. 23, her

2 The two polarized voting preconditions (black cohesion and white bloc voting) are

satisfied where Dr. Handley provided the designation “polarized–lost.”

3 Respondents direct their only discussion of primary results to 2022 contests, after

the Commission’s work was complete. See Opp. 21–22. But they admit the analysis

must be “based on the record before the Commission at the time of redistricting.” Opp.

14. Post-redistricting information is properly directed to respondents’ §2 claims, not

their equal-protection claims. See infra § I.C.2.

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expert testimony, Opp. 23–24, and Mr. Adelson’s advice to the Commission, Opp. 30.

All these citations show is a widespread (and correct) agreement that primary elections should be examined. But it does not follow that any precise meaning must be

extracted from them regardless of what that examination uncovers. A functional

analysis is not an exercise in confirmation bias. And there is certainly no reason to

conclude that, where primary election results demonstrate no §2 vulnerability, but

general-election results do demonstrate a §2 vulnerability, the primary results should

inform the process.

Respondents also attempt to brush off Dr. Handley’s analysis of primaries,

pointing out that Dr. Handley’s report containing primary election data was delivered

on the date commissioners voted to adopt the final plan and suggesting these data

were somehow not considered. Opp. 6. But the information was in the Commission’s

record when it adopted final plans, respondents concede it was “possible Mr. Adelson

talked about it with Commissioners before then,” Opp. 6, and Mr. Adelson testified

to “significant conversations and exchanges of information” before December 28, D.

Ct. Doc. 106, 4 Trial Tr. 96:24–97:10. Moreover, Dr. Handley’s more extensive primary analysis in her December 28 report corroborated her prior findings and analysis, as it showed there was no need to do anything differently based on primary results.

2.

Respondents’ arguments about primary elections are presented in the

wrong posture. See Stay Appl. 31. “The question is whether the State had good reasons to believe” its efforts were “necessary to avoid liability,” and this standard “does

not require the State to show that its action was actually necessary.” Bethune-Hill,

580 U.S. at 194–95 (quotation and alteration marks omitted). It is a standard of

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“breathing room.” Id. at 196. That is because a racial-gerrymandering claim is “‘analytically distinct’ from a vote dilution claim” and considers whether racial measures

were used and, if so, whether they were “justified,” not whether a redistricting plan

has the effect of diluting votes. Miller v. Johnson, 515 U.S. 900, 911 (1995). The narrow-tailoring inquiry is not a proper vehicle for challengers to demand that states

disprove anything and everything that might be asserted related to §2 compliance.

The redistricting authority must have good reasons for what it actually did and need

not disprove every argued basis for alternative choices.

To be sure, this does not leave voters who believe their districts’ BVAPs are

“shockingly low” without recourse. Opp. 1. Even if a redistricting authority has good

reasons to justify its decision, a choice that turns out in hindsight to be erroneous can

be challenged under §2 itself, where the burden is properly on the challenger to show

the Gingles preconditions and establish vote dilution under the totality of circumstances. See Abbott, 138 S. Ct. at 2331. Respondents had the opportunity to prove

their §2 claims, and the arguments they tender here, see, e.g., Opp. 21–22, but the

district court did not resolve them. While the Commission contests §2 liability and

submits respondents are not likely to succeed—precisely because the Commission did

its proverbial homework on the front end—it respects the opportunity of challengers

to make out their best case.

That is the proper posture for, among other things, respondents’ contentions

that the effect of the Hickory and Linden plans will be to reduce the size of the Michigan Legislative Black Caucus so that it “could fit into the backseat of an Uber XL.”

Opp. 22. For present purposes, it is sufficient to note that Michigan’s Black Caucus

did not lose membership. See D. Ct. Doc. 76 at 25–26. Indeed, Michigan elected its

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first black house speaker under the Hickory plan. In a recent interview, the newly

elected speaker explained: “I’m the first Black Speaker in Michigan’s history, and

part of that—you could argue—was because the lines were drawn by an independent

redistricting commission versus a partisan legislature,” which he asserted is “something that should be taken into account.” 4

D.

Respondents’ Remaining Positions Lack Merit

Several of respondents’ other positions implicitly or explicitly warrant a response.

First, respondents imply that the Commission should have maintained highBVAP districts because plans from the 1990s and 2010 redistricting cycles contained

them. See, e.g., Opp. 2–3. “But this Court has never held that a State’s adherence to

a previously used districting plan can defeat a § 2 claim.” Milligan, 599 U.S. at 22.

Moreover, to satisfy constitutional scrutiny, the Commission’s VRA efforts had to be

“justified by current needs,” Shelby Cnty., Ala. v. Holder, 570 U.S. 529, 550 (2013),

not former needs. Past plans provided no defense to any plausible claim.

In fact, the Virginia legislative districts invalidated last decade, see BethuneHill v. Virginia State Bd. of Elections, 326 F. Supp. 3d 128 (E.D. Va. 2018) (threejudge court), were carried forward from a prior decade’s plan that survived a racialgerrymandering challenge, see Wilkins v. West, 571 S.E.2d 100, 111–18 (Va. 2002).

When the state proffered an expert report from that litigation as justifying its maintenance of majority-minority districts, the three-judge federal court rejected it, holding

that “the underlying data was based on electoral results from the 1990s and thus was

4 Hernz Laguerre, MichMash: Michigan House Speaker Joe Tate on redistricting,

2024 agenda, WDET (Jan. 12, 2024), at https://wdet.org/2024/01/12/michigan-housespeaker-joe-tate-on-redistricting-2024-agenda/ (visited Jan. 17, 2024).

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outdated for purposes of the 2011 redistricting.” Bethune, 326 F. Supp. 3d at 179 n.61.

The court explained that, without current evidence justifying their choices, “legislatures could pack black voters into majority-minority districts in perpetuity, claiming

ignorance of the fact that high BVAP concentrations were not necessary to comply

with” the VRA. Id. at 180.

Second, respondents suggest the Commission should have heeded “public comments regarding the need for higher BVAPs in the Detroit districts.” Opp. 7. But this

Court rejected a similar argument in Abbott, where Texas created a majority-minority district because advocates “demanded as much.” 138 S. Ct. at 2334. The Court

found that such “demands alone cannot be enough” because “[a] group that wants a

State to create a district with a particular design may come to have an overly expansive understanding of what § 2 demands.” Id. Likewise, in this case, the Commission

was presented with advocacy for higher BVAPs, but no evidence or analysis supporting that advocacy.

Third, respondents close their brief with a law review article by Jocelyn Benson

(who is now Michigan’s Secretary of State but was not when she authored the article)

advocating for majority-minority districts, even proposing “a ban on reductions below

55%” minority voting-age population. Opp. 38 (citation omitted). But the article was

criticizing this Court’s majority decision in Georgia v. Ashcroft, which granted states

leeway “to choose to create a certain number of ‘safe’ districts, in which it is highly

likely that minority voters will be able to elect the candidate of their choice” or “to

create a greater number of [crossover] districts in which it is likely—although perhaps not quite as likely as under the benchmark plan—that minority voters will be

able to elect candidates of their choice.” 539 U.S. at 480. This Court repeated that

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position and applied it to VRA §2 in Bartlett. See 556 U.S. at 23 (plurality opinion).

Respondents do not address these (or most other) precedents of this Court speaking

to the issues in this case. Their recourse to a law review article disagreeing with this

Court’s precedents is powerful evidence that their position reflects what they want

the law to be, not what it is.

Finally, if there was any doubt of that, respondents erased it in a filing in the

district court made after the stay application was filed. The district court announced

its intention to appoint Dr. Bernard Grofman as one of two special masters for the

remedial phase below, and respondents objected on the ground that Dr. Grofman’s

“redistricting theory” conflicts with the district court’s opinion. D. Ct. Doc. 159 at 5;

see also id. at 6 (asserting that Dr. Grofman shares “the same views” as those the

district court rejected). That is quite an admission. Dr. Grofman was the plaintiffs’

expert in Thornburg v. Gingles, 478 U.S. 30, 52 (1986), has been called “one of the

world’s leading experts in the study of redistricting and voting rights,” Wright v. Sumter Cnty. Bd. of Elections & Registration, 979 F.3d 1282, 1299 (11th Cir. 2020) (Marcus, J., for the court), has been the special master in numerous remedial processes

after plans were invalidated on equal-protection and VRA grounds, see, e.g., id. at

1299–1300; Navajo Nation v. San Juan Cnty., 929 F.3d 1270, 1290–91 (10th Cir.

2019); Bethune-Hill v. Virginia State Bd. of Elections, 368 F. Supp. 3d 872 (E.D. Va.

2019) (three-judge court); Personhuballah v. Alcorn, 155 F. Supp. 3d 552, 556 (E.D.

Va. 2016) (three-judge court), and has authored various articles cited favorably by

this Court, see Johnson, 512 U.S. at 1020 (favorably citing B. Grofman, L. Handley,

& R. Niemi, Minority Representation and the Quest for Voting Equality 136 (1992));

Shaw v. Hunt, 517 U.S. 899, 912 (1996) (Shaw II) (favorably citing B. Grofman & C.

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Davidson, Controversies in Minority Voting 56 (1992)); Miller, 515 U.S. at 924 (same);

Georgia, 539 U.S. at 483 (2003) (favorably citing Grofman, Handley, & Lublin, Drawing Effective Minority Districts: A Conceptual Framework and Some Empirical Evidence, 79 N.C.L.Rev. 1383 (2001)); Arizona State Legislature v. Arizona Indep. Redistricting Comm'n, 576 U.S. 787, 798 (2015) (favorably citing Miller & Grofman, Redistricting Commissions in the Western United States, 3 U.C. Irvine L. Rev. 637, 661,

663–664, 666 (2013)). Respondents’ belief that the “philosophy” of the nation’s

preeminent VRA expert conflicts with the district court’s opinion, D. Ct. Doc. 159 at

2, may be the best evidence that the district court’s decision is wrong.

This Court is likely to give this case fulsome review and conclude as much. The

first two stay factors are satisfied.

II.

The Equitable Factors Favor a Stay

The Commission’s stay application demonstrates multiple forms of irreparable

harm that will manifest without a stay, and that any balancing of considerations favors a stay. Respondents say comparatively little about these factors, and what they

do say lacks probative force.

1.

In contending that the Commission “is not irreparably harmed by being

required to draw a race-neutral, constitutionally compliant map,” Opp. 34, respondents do not address this Court’s repeated holding that “the [State’s] inability to enforce its duly enacted plans clearly inflicts irreparable harm on the State.” Abbott,

138 S. Ct. at 2324, n.17; see also Maryland v. King, 567 U.S. 1301 (2012) (Roberts,

C.J., in chambers). Nor do they address precedent holding that a requirement to

“adopt an alternative redistricting plan” by a date certain (before an appeal will be

decided) constitutes “irreparable harm.” Karcher v. Daggett, 455 U.S. 1303, 1306

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(1982) (Brennan, J., in chambers). And their argument does not speak to the irreparable-harm standard because it improperly assumes the Commission’s house and senate plans are not “constitutionally compliant.” Opp. 34. The point of the irreparableharm inquiry is not to double count the inquiry into likelihood of success, but to determine whether “irreparable harm is likely to result from the denial of a stay” in the

event that the appellant “eventually succeed[s] on the merits.” Rostker v. Goldberg,

448 U.S. 1306, 1310 (1980) (Brennan, J., in chambers). Because the Commission has

shown a likelihood of prosecuting this case to full briefing and argument in this Court,

and a fair prospect of winning at that stage, the likelihood that it will lose much of

the benefit of an ultimate ruling in its favor without a stay amounts to irreparable

harm.

Those harms are uniquely severe here in ways the Commission demonstrated.

Stay Appl. 35–39. Respondents’ curt retorts, Opp. 34–35, are wholly inadequate to

that showing. Respondents’ §2 claims are not resolved, even though federal courts

ordinarily must resolve statutory claims before constitutional ones, Lyng v. Nw. Indian Cemetery Protective Ass'n, 485 U.S. 439, 446 (1988); see League of United Latin

Am. Citizens v. Perry, 548 U.S. 399, 442 (2006); Gingles, 478 U.S. at 38, and this

leaves the Commission with little idea of how to configure Detroit-area districts. Respondents’ repetition of the district court’s quip—“stop using the VRA as a proxy for

race,” Opp. 35—cannot be reconciled with their objection to any Detroit-area district

with “shockingly low” BVAPs. Opp. 1. Respondents’ arguments about “election deadlines,” Opp. 37, stand rebutted in the brief of Respondent Secretary of State, who

raises profound concerns about “how well the changes can be made in the condensed

timeframe” before 2024 house elections. Sec. of State Br. 19. The concerns of the

22

State’s chief election administrator are more probative than respondents’ unsupported statements.

Meanwhile, respondents’ assertions that the district court has power “to move

forward” and override state-law requirements, Opp. 34, misses that the irreparableharm inquiry does not turn on power, but on equitable discretion. Federal supremacy

does empower federal courts to make alterations to state law in some instances to

vindicate federal rights and interests. But those alterations amount to irreparable

harm all the same. As just one example, Michigan’s Constitution directs the Commission to post proposed plans for a 45-day notice-and-comment period to solicit public

input, Mich. Const. art. IV, § 6(14)(b), but the district court ordered the Commission

to conduct a 21-day notice-and-comment period, D. Ct. Doc. 156 at 5. While its power

to do that is not disputed below, it irreparably harms compelling state interests in

maximizing public input all the same. Respondents’ admission that the district court

is aggressively intervening in state affairs only proves this stay element is satisfied.

2.

Respondents’ contentions that a stay will irreparably harm them ignore

that, even if they made such a showing, it would not defeat this application. “In close

cases the Circuit Justice or the Court will balance the equities and weigh the relative

harms to the applicant and to the respondent.” Hollingsworth, 558 U.S. at 190. Even

assuming this case qualifies as close, respondents’ arguments place them in a posture

no different from any other plaintiff in past redistricting cases where this Court

granted stays. One example is Miller v. Johnson, 512 U.S. 1283 (1994), where this

Court granted a stay pending appeal, even though the district court found that “race

was the overriding, predominant force determining the lines of the [challenged] district.” Johnson v. Miller, 864 F. Supp. 1354, 1372 (S.D. Ga. 1994); see id. at 1374–93.

23

Respondents’ position here is comparatively weak. They assert a stay would “force

Detroit’s Black voters to be further disenfranchised,” Opp. 35, but, as noted, the

equal-protection claim that was resolved entails no determination of vote dilution or

denial. Respondents’ claims to that effect are unresolved and would not be harmed

by a stay pending appeal.

CONCLUSION

The Court should grant the application and issue a stay of the district court’s

injunction and remedial proceeding pending applicants’ forthcoming appeal to this

Court. The Court should also issue a prompt administrative stay pending resolution

of this application. The Court would, in addition, be justified in construing this application as a jurisdictional statement, noting probable jurisdiction, and conducting

prompt oral argument.

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January 18, 2024

Respectfully Submitted,

/s/ Richard B. Raile

__________________________

NATHAN J. FINK

DAVID H. FINK

FINK BRESSACK

38500 Woodward Ave.,

Suite 350

Bloomfield Hills, MI 48304

(248) 971-2500

nfink@finkbressack.com

dfink@finkbressack.com

RICHARD B. RAILE

Counsel of Record

KATHERINE L. MCKNIGHT

DIMA J. ATIYA

BAKER & HOSTETLER LLP

1050 Connecticut Ave., N.W.

Suite 1100

Washington, D.C. 20036

(202) 861-1500

rraile@bakerlaw.com

kmcknight@bakerlaw.com

datiya@bakerlaw.com

PATRICK T. LEWIS

BAKER & HOSTETLER LLP

127 Public Square

Suite 2000

Cleveland, OH 44114

(216) 621-0200

plewis@bakerlaw.com

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