Amicus Curiae Brief — Wes Allen, Alabama Secretary of State, et al., Petitioners v. Marcus Caster, et al.

Nos. 25-243, 25-273, 25-274

In The

Supreme Court of the United States

WES ALLEN, ALABAMA SECRETARY OF STATE, ET AL.,

Petitioners,

v.

MARCUS CASTER, ET AL.,

Respondents.

WES ALLEN, ALABAMA SECRETARY OF STATE, ET AL.,

Petitioners,

v.

BOBBY SINGLETON, ET AL.,

Respondents.

WES ALLEN, ALABAMA SECRETARY OF STATE, ET AL.,

Petitioners,

v.

EVAN MILLIGAN, ET AL.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI BEFORE

JUDGMENT TO THE U.S. COURT OF APPEALS FOR THE

ELEVENTH CIRCUIT AND APPEAL FROM THE U.S. DISTRICT

COURT FOR THE NORTHERN DISTRICT OF ALABAMA

Brief of Amici Curiae State Senator Nikki Torres,

State Representative Alex Ybarra, and Jose

Trevino in Support of Petitioners and Appellants

Jason B. Torchinsky

Counsel of Record

HOLTZMAN VOGEL BARAN

TORCHINSKY & JOSEFIAK, PLLC

2300 N Street, NW

Washington, D.C. 20037

Phone: (202) 737-8808

jtorchinsky@holtzmanvogel.com

Dallin B. Holt

HOLTZMAN VOGEL BARAN

TORCHINSKY & JOSEFIAK, PLLC

2555 E Camelback Rd., Ste 700

Phoenix, AZ 85016

Daniel A. Bruce

HOLTZMAN VOGEL BARAN

TORCHINSKY & JOSEFIAK, PLLC

15405 John Marshall Hwy

Haymarket, VA 20169

LEGAL PRINTERS LLC ! Washington, DC ! 202-747-2400 ! legalprinters.com

i

TABLE OF CONTENTS

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

Identity and Interest of Amici Curiae . . . . . . . . . . .

Introduction and Summary of the Argument . . . . .

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

ii

1

3

6

I.

Amici's case, like Alabama's, illustrates

the absurdities current §2 jurisprudence

creates. . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

II. Section 2 was originally understood to

remedy political lockout. . . . . . . . . . . . . 10

III. Polarized voting due to party, not

race, is insufficient for a §2 claim . . . . . 15

IV. Section 2's totality of the circumstances

test must analyze causation . . . . . . . . . 18

V. Without these reasonable constraints,

§2 authorizes federal courts to unconstitutionally engage in racial and partisan

gerrymandering . . . . . . . . . . . . . . . . . . . 21

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

ii

TABLE OF AUTHORITIES

Cases

Abbott v. Perez,

585 U.S. 579 (2018) ...............................................20

Alabama State Conf. NAACP v. Alabama,

612 F. Supp. 3d 1232 (MD Ala. 2020) ..................18

Alexander v. South Carolina Conf. of the NAACP,

602 U.S. 1 (2024) ..................................... 3, 6, 23, 24

Baird v. Consolidated City of Indianapolis,

976 F.2d 357 (CA7 1992).......................................23

Brnovich v. DNC,

594 U.S. 647 (2021) ...........................................5, 19

Chisom v. Roemer,

501 U.S. 380 (1991) .........................................13, 18

Cooper v. Harris,

581 U.S. 285 (2017) ...............................................23

Edmonson v. Leesville Concrete Co.,

500 U.S. 614 (1991) ...............................................22

Garcia v. Hobbs,

691 F. Supp. 3d 1254 (WD Wash. 2023) .................1

Garcia v. Hobbs,

No. 24-2603, 2025 U.S. App. LEXIS 22059

(CA9 Aug. 27, 2025) ................................................1

Gomez v. Watsonville,

863 F.2d 1407 (CA9 1988).....................................15

Growe v. Emison,

507 U.S. 25 (1993) .............................................4, 13

Irby v. Virginia State Bd. of Elections,

889 F.2d 1352 (CA4 1989).....................................19

Johnson v. DeGrandy,

512 U.S. 997 (1994) ...............................................13

iii

LULAC v. Clements,

999 F.2d 831 (CA5 1993)......................... 5, 8, 15, 22

Nipper v. Smith,

39 F.3d 1494 (CA11 1994).....................................15

Ortiz v. City of Philadelphia Off. of the City

Comm’rs,

28 F.3d 306 (CA3 1994).........................................19

Palmer v. Hobbs,

686 F. Supp. 3d 1213 (WD Wash.

2023) .............................................. 1, 2, 8, 14, 17, 20

Palmer v. Hobbs,

No. 3:22-cv-05035-RSL, 2024

U.S. Dist. LEXIS 50419 (WD Wash. Mar. 15,

2024) ........................................................ 2, 9-10, 24

Palmer v. Hobbs,

No. 23-35595, 2025 U.S. App. LEXIS 22068

(CA9 Aug.27, 2025) .................................................1

Pierce v. North Carolina State Bd. of Elections,

97 F.4th 194 (CA4 2024) .................................12, 15

Rucho v. Common Cause,

588 U.S. 684 (2019) ....................................... 5-6, 22

Ruiz v. City of Santa Monica,

160 F.3d 543 (CA9 1998).................................16, 17

Salas v. Southwest Tex. Junior Coll. Dist.,

964 F.2d 1542 (CA5 1992).....................................19

Shaw v. Reno,

509 U.S. 630 (1993) ............................... 3, 21, 22, 23

Smith v. Salt River Proj. Agric. Improvement

& Power Dist.,

109 F.3d 586 (CA9 1997)............................. 5, 15, 19

Students for Fair Admissions, Inc. v. President

& Fellows of Harv. Coll.

600 U.S. 181 (2023) ...........................................5, 22

iv

Thornburg v. Gingles,

478 U.S. 30 (1986) ...................................................4

Wesley v. Collins,

791 F.2d 1255 (CA6 1986).....................................19

Whitcomb v. Chavis,

403 U.S. 124 (1971) ..................................... 4, 11, 12

White v. Regester,

412 U.S. 755 (1973) .........................................11, 12

Constitutional and Statutory Provisions

U.S. Const., Art. II, § 2 ...............................................6

Wash. Const., Art II, § 43(1) .......................................6

52 U.S.C. § 10301(a)...................................... 15, 17-18

52 U.S.C. § 10301(b)............................................11, 14

1

IDENTITY &

INTEREST OF AMICI CURIAE 1

Amici are residents of, and public officials in, the

Yakima region of the State of Washington. For over

three years, the Yakima region has been the epicenter

of challenges to Washington’s state legislative map.

See Palmer v. Hobbs (“Palmer I”), 686 F. Supp. 3d

1213 (WD Wash. 2023) (§2 challenge); Garcia v.

Hobbs, 691 F. Supp. 3d 1254 (WD Wash. 2023) (14th

Amendment challenge). 2 Each Amici has experienced

firsthand the absurdities that current §2

jurisprudence can create when federal judges—at the

urging of partisan litigants—mangle §2 into an

unrecognizable tool for partisan gain rather than

minority protection. Amici thus share a commitment

to ensuring §2 jurisprudence does not perpetuate

racial stereotypes or become a smoke screen for

partisan litigants and federal judges to engage in

racial or partisan gerrymandering under the guise of

protecting minority voting rights.

1 Pursuant to Supreme Court Rule 37.2, counsel for all

parties were timely notified of Amici’s intent to file this amicus

brief. Pursuant to Supreme Court Rule 37.6, no counsel for any

party authored this brief in whole or in part. The American

Redistricting Project, a nonpartisan, nonprofit organization

working to strengthen our republic by supporting constitutional

redistricting,

election

transparency,

and

accountable

government, funded the preparation and submission of this

brief.

2 Petitions for writs of certiorari from the Ninth Circuit are

forthcoming in these cases. See Palmer v. Hobbs, No. 23-35595,

2025 U.S. App. LEXIS 22068 (CA9 Aug.27, 2025); Garcia v.

Hobbs, No. 24-2603, 2025 U.S. App. LEXIS 22059 (CA9 Aug. 27,

2025).

2

Senator Nikki Torres is the Washington State

Senator currently representing Washington’s 15th

Legislative District (“LD-15”). In 2022, LD-15 elected

Senator Torres to serve a four-year term under

Washington’s enacted legislative map. Senator

Torres, a Latina Republican, defeated her White

Democratic general election opponent 67.7% to 32.1%.

Yet a federal district court redistricted her out of her

own district after it determined that she could not

possibly be the representative of her Hispanic

constituents’ choice because she is not a Democrat—

the party that, in the court’s view, Hispanics are

supposed to favor. See Palmer v. Hobbs (“Palmer II”),

No. 3:22-cv-05035-RSL, 2024 U.S. Dist. LEXIS 50419

(WD Wash. Mar. 15, 2024). Her district was

approximately 52.6% Hispanic citizen voting age

population (“HCVAP”) based on 2021 population

numbers. Yet the court-ordered remedial map

attempted to cure alleged Hispanic vote dilution by

lowering the HCVAP of LD-15 and drawing Senator

Torres out of her District.

Representative Alex Ybarra and Jose Trevino are

Intervenor-Defendants in the §2 challenge to

Washington’s legislative map. See Palmer I, 686 F.

Supp. 3d at 1213.

Representative Alex Ybarra is a current State

Representative for LD-13. The Court-ordered

remedial map replaced most of the Hispanic voters in

Representative Ybarra’s district (over 30,000 voters)

with White Democrats. Representative Ybarra now

faces a costlier and more difficult general election

campaign because of the realignment of his district.

3

Jose Trevino is a Hispanic resident and voter in

Granger, Washington. He previously served as the

Mayor of Granger. While Trevino was originally

placed in enacted LD-15, the court’s remedial plan

moved him into a new district, remedial LD-14, based

predominantly on his race.

INTRODUCTION &

SUMMARY OF THE ARGUMENT

Current §2 jurisprudence is hopelessly unmoored

from §2’s original public meaning and constitutional

applications. Nothing demonstrates this more clearly

than Amici’s case. There, under the guise of §2, a

single federal district court judge purported to save

Hispanic voters in the Yakima region from the stain

of race-based vote dilution by stereotyping all

Hispanic voters as Democrats, refusing to credit the

success of Hispanic public officials like Amici, and

purposefully diluting HCVAP to achieve the court’s

and the challengers’ preferred partisan outcome.

That cannot be overstated. The district court

“cured” alleged Hispanic vote dilution by removing

Hispanic voters from the district and replacing them

with White Democratic voters. Indeed, Amici’s case

was so bad that Justice Thomas recently acknowledge

that it “exemplifies the tendency of the Court’s raceobsessed jurisprudence to ‘balkanize us into

competing racial factions’” and urged this Court to

“correct course now” before its §2 jurisprudence

“inflicts further damage.” Alexander v. South

Carolina Conf. of the NAACP, 602 U.S. 1, 60 (2024)

(Thomas, J., concurring) (quoting Shaw v. Reno, 509

U.S. 630, 657 (1993)).

4

Now is the time to correct course. Amici’s and

Alabama’s cases demonstrate three ways this Court

can better moor §2 to its original understanding and

constitutional applications.

First, the Court should reiterate that political

lockout is a prerequisite to a §2 remedy. This Court

long ago held that §2 was designed to remedy

instances where minority voters had less “opportunity

to participate” in the electoral process than majority

voters. Whitcomb v. Chavis, 403 U.S. 124, 153 (1971).

Congress then amended §2 to expressly adopt that

standard. And in Thornburg v. Gingles, 478 U.S. 30

(1986), this Court established a three-part test to

determine when a minority group has been

sufficiently locked out of the political process by

“submerging it in a larger white voting population.”

Growe v. Emison, 507 U.S. 25, 40 (1993). But courts

too often blindly apply §2 in cases where minority

voters enjoy equal access to the political process as

their neighbors, as in Amici’s case, where the

challenged district was already a majority Hispanic

district by HCVAP, and in Alabama’s case, where a

non-majority-minority district performed for a Black

Democrat in 2024.

Second, this Court should hold that §2 analysis

must account for polarized voting that is caused by

partisan preferences, not race. Both Gingles and the

totality of the circumstances test require courts to

analyze whether voting in the challenged district is

racially polarized. See 478 U.S. at 50–51, 57–58. Any

such polarization must be “legally significant.” Id. at

58. Courts must therefore analyze the cause of any

alleged polarization to determine whether such

5

polarization is caused by race or another factor, such

as partisanship. See LULAC v. Clements, 999 F.2d

831, 853–54 (CA5 1993) (en banc). But, as Amici’s and

Alabama’s cases demonstrate, courts too often ignore

clear evidence that partisan preferences, not race,

correlate with racially polarized voting.

Third, this Court should clarify that §2’s totality

of the circumstances test must include a causation

analysis. Without it, the totality of the circumstances

test will remain hopelessly malleable. Because many

of the factors considered under the totality of the

circumstances test go beyond core cases of present

political lockout, some courts have adopted guardrails

on the extent to which certain factors can support a

§2 claim. See, e.g., Brnovich v. DNC, 594 U.S. 647, 671

(2021); Smith v. Salt River Proj. Agric. Improvement

& Power Dist., 109 F.3d 586, 595 (CA9 1997). But as

Amici’s and Alabama’s cases demonstrate, courts too

often ignore these reasonable guardrails at the urging

of partisan litigants, telling minority communities

how they should vote and that no progress toward

equal opportunity, absent intervention from their

judicial saviors, will ever be enough to place them on

equal footing with their fellow citizens.

Without these reasonable limitations, current §2

jurisprudence thrusts federal courts into the

intersection of two activities this Court has held are

never within the province of the federal judiciary—

engaging in race-based sorting based on racial

stereotypes, see Students for Fair Admissions, Inc. v.

President & Fellows of Harv. Coll. (“SFFA”), 600 U.S.

181, 206, 213 (2023), and entering the political thicket

of partisan gerrymandering. See Rucho v. Common

6

Cause, 588 U.S. 684, 696 (2019). Amici’s case makes

this clear. In order to purportedly cure Hispanic vote

dilution, the district court insisted LD-15 needed to be

more Democratic and carved out a swath of Hispanic

voters to replace them with White Democrats.

If that is what current §2 jurisprudence demands,

then we have fallen hopelessly astray from §2’s

original public meaning and its constitutional

applications. The Court should “correct course now”

before it “inflicts further damage.” Alexander, 602

U.S. at 60 (Thomas, J., concurring).

ARGUMENT

I.

Amici’s case, like Alabama’s,

illustrates the absurdities current

§2 jurisprudence creates

Amici’s case arises out of a §2 challenge to

Washington’s state legislative map. Washington’s

state legislative map is supposed to be drawn

exclusively by an independent and bipartisan

redistricting commission (the “Commission”). Wash.

Const., Art II, § 43(1); U.S. Const., Art. II, § 2.

Following the 2020 Census, the Commission

convened and unanimously agreed on a map.

Negotiations heavily focused on LD-15. The

Democratic and Republican Commissioners disagreed

as to whether a majority-minority district was

required in the Yakima region. They struck a

compromise. The Republican Commissioners agreed

to support a district that would be majority HCVAP,

and the Democratic Commissioners agreed the

7

district would be drawn to lean Republican (using a

recent State Treasurer election as the metric). The

result was LD-15, with an estimated HCVAP of 52.6%

using 2021 population figures. All Commissioners

and their staffs testified that LD-15 was essential to

the map; without it, the Commission would not have

agreed on a map. The Legislature adopted the

Commission’s map with limited amendments and no

population changes to LD-15 (the “Enacted Map”).

Shortly after, a group of voters challenged the

Enacted Map, focusing entirely on LD-15. The

challengers demanded novel relief—not a majority

Hispanic district, or even a majority Hispanic district

by CVAP, which already existed, but a map that

guaranteed Democratic candidates would be elected

in a different majority-minority district. The district

court complied. The district court’s opinion cannot be

coherently understood except as holding that

Hispanic “preferred candidates” means “Democratic

candidates” in all circumstances. And to achieve that

goal, the court purposefully reduced HCVAP in LD15. Said differently, the district court cured alleged

Hispanic vote dilution by removing Hispanic voters

from the district and replacing them White

Democratic voters. After all, who knows better what

Hispanic voters in Central Washington need than

White Democrats?

While the case was pending, Washington held its

2022 state Legislature elections under the Enacted

Map. LD-15 elected Senator Nikki Torres, a Latina

Republican, as State Senator. Senator Torres, in a

contested general election, defeated her White,

Democratic Party opponent 67.7% to 32.1%, a 35.6%

8

margin of victory. According to expert testimony

presented at trial, Senator Torres won between 32%

and 48% of the Hispanic vote.

But despite the facts that LD-15 contained a

majority HCVAP and elected a Latina candidate in

the only contested election held under the Enacted

Map, the district court held that it violated §2. Palmer

I, 686 F. Supp. 3d at 1221. The district court did not

hold that LD-15 was a “façade” majority-minority

district, i.e., one where, as in LULAC v. Perry, the

district was drawn to have a nominal voting-age

majority “without a citizen voting-age majority.” 548

U.S. 399, 441 (2006). Nor could it—LD-15 contained

52.6% HCVAP. Until then, no district court had ever

previously held that a majority-minority district

violated the VRA without finding that the putative

majority was in fact a “façade” or “hollow” and had

been upheld on appeal.

The district court held that the challengers

satisfied each of the three Gingles preconditions. With

respect to the second and third Gingles preconditions,

the court held that the challengers established that

“Latino voters overwhelmingly favored the same

candidate in the vast majority of” elections in the

Yakima region and that White voters voted cohesively

to block Hispanic-preferred candidates. Palmer I, 686

F. Supp. 3d at 1225. The court declined to analyze the

cause of any such cohesion, in particular, whether

such cohesion was more attributable to party over

race. Id. at 1226–27.

The district court also held that the challengers

prevailed under the totality-of-the-circumstances

9

inquiry. The court based its decision on: (i) the general

history of discrimination in Washington’s past, id. at

1227–28; (ii) moderate polarized voting in one kind of

election (contested partisan elections with a White

Republican candidate), id. at 1228; (iii) voting

practices of non-Presidential-year senate elections

and at-large districts in Washington, id. at 1228–29;

(iv) the socioeconomic disparities between Whites and

Hispanics, id. at 1229; (v), one instance of one

candidate for local office invoking illegal immigration

on a social media post, id. at 1230; (vi) past Hispanic

electoral success that is less than proportional to the

Hispanic population in the Yakima Valley region, id.

at 1230–31; (vii) hearsay testimony of one-off

instances of “white voter antipathy”; and (viii) elected

Republicans from the region not supporting all

legislation endorsed by a single progressive selfanointed Hispanic advocacy group, id. at 1231.

Although it acknowledged the outcome, the court did

not analyze the only endogenous, contested election to

date under enacted LD-15, in which Senator Torres

defeated her White, Democrat opponent by a margin

greater than 2 to 1. Id. at 1230–31.

The court then proceeded to the remedial phase

and imposed a horrifically racially gerrymandered

remedial map that purported to cure Hispanic vote

dilution by purposefully decreasing HCVAP in LD-15.

All five of the challengers’ proposed remedial maps

reduced HCVAP in LD-15. The court ultimately

adopted the challengers’ “Map 3B,” finding that the

map remedied the §2 violation by (1) “unit[ing] the

Latino community of interest in the region”; and (2)

making it “substantially more Democratic than its LD

15 predecessor.” Palmer II, 2024 U.S. Dist. LEXIS

10

50419, at *10, *15 (emphasis added). The court

admitted that “the Latino citizen voting age

population of [new LD-15] in the adopted map is less

than that of the enacted district,” but justified such

dilution as necessary for Hispanic voters to “elect

candidates of their choice”––in the court’s view,

Democrats––“to the state legislature.” Id. at *7. The

court also needlessly adopted down-stream changes to

other districts—adjusting partisan performance

metrics to favor Democrats. See id. at *16.

In sum, under the guise of §2, a single district

court judge purported to save Hispanic voters in the

Yakima region from the stain of race-based vote

dilution by stereotyping all Hispanic voters as

Democrats, refusing to credit the success of Hispanic

public officials like Amici, and purposefully diluting

HCVAP to achieve the court’s and the challengers’

preferred partisan outcome. If that is what current §2

jurisprudence demands, then we have fallen

hopelessly astray from §2’s original public meaning

and its constitutional applications.

II.

Section 2 was originally understood

to remedy political lockout

This Court has long recognized that §2 is designed

to ensure minority voters equal opportunity to

participate in the political process and to elect

representatives of their choice. See Gingles, 478 U.S.

at 43. Unequal access to the political process—or,

“political lockout”—is thus a necessary element of a

§2 claim. Whether proof of political lockout is a

prerequisite to a §2 claim, folded into the Gingles

factors, or analyzed under totality of the

11

circumstances, Amici’s and Alabama’s cases

demonstrate the necessity of starting from this §2

first principle.

Section 2’s text makes this clear: To prove §2 vote

dilution, a plaintiff must show that minorities “have

less opportunity than other members of the electorate

to participate in the political process and to elect

representatives of their choice.” 52 U.S.C. § 10301(b).

And importantly, “nothing in this section establishes

a right to have members of a protected class elected

in numbers equal to their proportion in the

population.” Id.

Section 2, as amended, was “intended to ‘codify’

the ‘results’ test employed in Whitcomb v. Chavis and

White v. Regester.” Gingles, 478 U.S. at 83–84

(O’Connor, J., concurring in judgment). In Whitcomb,

the Court upheld a multimember districting scheme

in Indiana, holding it “discovered nothing in the

record or in the [trial] court’s findings indicating that”

minority voters had less “opportunity to participate in

and influence the selection of candidates and

legislators.” 403 U.S. at 149, 153. For example,

plaintiffs failed to show that minority voters “were not

allowed to register to vote, to choose the political

party they desired to support, to participate in its

affairs or to be equally represented on those occasions

when legislative candidates were chosen.” Id. at 149.

“The mere fact that one interest group or another

concerned with the outcome of . . . elections has found

itself outvoted and without legislative seats of its own

provides no basis for invoking [§2] remedies where, as

here, there is no indication that this segment of the

12

population is being denied access to the political

system.” Id. at 154–55.

White shows what political lockout looks like. In

that case, the Court invalidated a multimember

districting scheme where barriers like a poll tax,

restrictive voter registration, and racial campaign

tactics prevented minority voters from accessing the

political process on an equal footing with their White

neighbors. 412 U.S. 755, 766–67 (1973).

Minority voters in both Whitcomb and White

suffered

socioeconomic

hardships,

historical

discrimination, and persistent political defeat. But

the political process was closed to the voters in White

but not the voters in Whitcomb. It was that lockout

that triggered §2 protections. And ever since, this

Court has unsurprisingly held that the ultimate right

of §2 is “equality of opportunity, not a guarantee of

electoral success for minority-preferred candidates of

whatever race.” Johnson v. DeGrandy, 512 U.S. 997,

1014 n.11 (1994) (emphasis added); see also Pierce v.

North Carolina State Bd. of Elections, 97 F.4th 194,

217 (CA4 2024) (majority-minority district not

required where “State lacked evidence that such

districts were necessary for Black-preferred

candidates to win”).

Gingles itself confirms this reading of §2. Each of

the three Gingles preconditions speaks primarily to

electoral opportunity. See 478 U.S. at 50–51; id. at 88

(O’Connor, J., concurring in judgment). This Court

has emphasized that the Gingles factors “are needed

to establish that the challenged districting thwarts a

distinctive minority vote by submerging it in a larger

13

white voting population.” Growe, 507 U.S. at 40

(emphasis added). Thus, a minority group that has

been locked out of the political process is a

prerequisite to Gingles. “Unless these points are

established, there neither has been a wrong nor can

be a remedy.” Id. at 40–41. Said differently, a

statistical minority by CVAP is a prerequisite to

finding a plaintiff satisfies the Gingles factors. A

racial/ethnic group that is a majority CVAP in a

district is not a “minority” group for purposes of the

Gingles analysis.

The totality of the circumstances test likewise, at

its core, addresses political lockout. As this Court

recognized in Chisom v. Roemer, “the inability to

elect representatives of their choice is not sufficient to

establish a violation unless, under the totality of the

circumstances, it can also be said that the members of

the protected class have less opportunity to

participate in the political process.” 501 U.S. 380, 397

(1991).

Whether addressed as a prerequisite to the

Gingles factors, as part of the second and third

Gingles factors, or under the totality of the

circumstances, it is clear that §2 plaintiffs must

establish that they have been locked out of the

political process to succeed on a §2 claim.

In Amici’s case, Hispanic voters already held a

majority in LD-15 based on CVAP. By definition,

Hispanic voters thus possessed equal access to the

political process—they were not locked out. And they

possessed more opportunity to elect candidates of

their choice by virtue of outnumbering their White

14

neighbors. In the only election held under enacted

LD-15, the district elected Senator Torres, a Latina

Republican.

Nevertheless, the district court dubiously

concluded that Hispanic voters in LD-15 constituted

a “bare, ineffective majority.” Palmer I, 686 F. Supp.

3d at 1234. The only evidence cited for this putative

ineffectiveness was that Democrats did not typically

win. Id. at 1225–26. The district court further

reasoned that the majority-minority district was not

“effective” because “past discrimination, current

social-economic conditions, and a sense of

hopelessness keep Latino voters from the polls in

numbers significantly greater than white voters.” Id.

at 1234. But Plaintiffs failed to put forward a single

Washington Hispanic voter that had trouble voting,

nor could any witnesses identify anyone they knew

that had difficulty voting in a State election. The

court’s analysis erroneously demands that §2 produce

particular electoral outcomes rather than guarantee

equal

“opportunity”

and

“open[ness]”

to

participation.” 52 U.S.C. § 10301(b). Whether voters

avail themselves of the equal opportunities mandated

by §2 is a question of electoral outcomes that §2 does

not regulate.

Alabama’s case is similar. The Special Master

Plan the court adopted to govern the 2024 elections

did not create a second majority-Black district but

rather a crossover district. District 2 was 48.69%

BVAP. Pet.App.81. But in 2024, enough White voters

crossed over to vote for the Black-preferred candidate

that District 2 elected Shomari Figures, a Black

Democrat, in 2024. See Pet.App.11. The 2024 results

15

thus showed that a majority-Black district is not

needed for Black-preferred candidates to win, see

Pierce, 97 F.4th at 217, and that Black voters were

thus not locked out of the political process.

III.

Polarized voting due to party, not

race, is insufficient for a §2 claim

Section 2 likewise becomes unhinged when courts

refuse to analyze whether polarized voting results

from partisanship instead of race. This Court requires

racially polarized voting (“RPV”) to be “legally

significant.” See Gingles, 478 U.S. at 55–56. Lower

courts have held that RPV exists when the “minority

group has expressed clear political preferences that

are distinct from those of the majority.” Gomez v.

Watsonville, 863 F.2d 1407, 1415 (CA9 1988). That is,

racially polarized voting alone does not satisfy the

Gingles preconditions; it needs more to meet the

“legally significant” and “clear” thresholds.

Courts therefore should “undertake the additional

inquiry into the reasons for, or causes of,” RPV “in

order to determine whether they were the product of

‘partisan politics’ or ‘racial vote dilution,’ ‘political

defeat’ or ‘built-in bias.’” LULAC, 999 F.2d at 853–54

(citation

omitted).

This

baseline

causation

requirement flows from the text of §2 itself, which

prohibits only practices that result in the denial or

abridgement of the right to vote “on account of race or

color.” 52 U.S.C. § 10301(a) (emphasis added). Where

challenged practices are caused by partisanship,

rather than race, they necessarily are outside of §2’s

scope. See, e.g., Nipper v. Smith, 39 F.3d 1494, 1525

(CA11 1994) (“Electoral losses that are attributable to

16

partisan politics . . . do not implicate the protections

of § 2.”). Courts, therefore, must analyze whether the

aggregate cause of differences in voting is the political

identity of the minority-preferred candidate, i.e., the

“candidate who receives sufficient votes to be elected

if the election were held only among the minority

group in question.” Ruiz v. City of Santa Monica, 160

F.3d 543, 552 (CA9 1998).

Courts must also analyze the probative value of

any identified polarization. “An election pitting a

minority against a non-minority . . . is considered

more probative and accorded more weight.” Id. In

contrast, “non-minority elections . . . do not fully

demonstrate the degree of racially polarized voting in

the community.” Id. at 552–53. Indeed, “they may

reveal little” and are “comparatively less important.”

Id. at 553.

But too often courts ignore clear evidence that

polarized voting is the result of party, not race. In

Amici’s case, for example, the trial established two

truths about voting in the Yakima region. First, RPV

existed only for one kind of election—contested

partisan contests between a White Democrat and a

White Republican. It existed in no others. Notably,

when a Latina Republican––Senator Torres––faced a

White Democrat in the district in 2022, she won in a

35-point landslide. 3 RPV also disappeared in

nonpartisan races, even when one of the candidates

3 Neither the district court nor any experts below were able

to analyze how election contests performed with a Hispanic

Democratic candidate, because no such election existed—

Hispanic candidates in central Washington have only run as

Republicans.

17

was Hispanic, and in races between two Democrats (a

general election possibility under Washington’s “top

two” primary system). Second, a candidate’s partisan

identity was the cause of the detected polarization—

not race.

But the district court refused to address these

facts, insisting that partisan causation need not be

meaningfully analyzed because “a minority [does not]

waive[] its statutory protections simply because its

needs and interests,” in the court’s view, “align with

one partisan party over another.” Palmer I, 686 F.

Supp. 3d at 1235. The court failed to consider Senator

Torres’s 2022 victory as part of the Gingles analysis

at all. See id. at 1223–27. And it refused to

acknowledge—let alone analyze—the actual vote

margins from 2022, rather than the bare outcome. Id.

at 1230–31. Ignoring this “most probative evidence” of

RPV’s cause in the Yakima region, see Ruiz, 160 F.3d

at 553, the court fixated on hypothetical elections that

never

occurred—essentially

political

science

experiments—and the binary results of ten exogenous

elections as evidence that White voters in the region

vote cohesively to block Hispanic-preferred

candidates. See id. at 1226–27. But six of those

elections were decided by exceedingly close margins

and none involved the same probative evidence as the

only contested election to occur within LD-15 in which

a Hispanic candidate defeated a White candidate by a

landslide. See id.

Alabama’s case is similar. There, the court

insisted that Gingles does not “require that we fully

disentangle party and race.” Pet.App.371–72. Section

2’s text begs to differ. See 52 U.S.C. § 10301(a) (“on

18

account of race or color” (emphasis added)).

Nevertheless, the court proceeded to address partisan

causation in its totality of the circumstances analysis.

Yet, the court refused to credit evidence that the

prevalence of straight-ticket voting in Alabama

suggests voters are motivated by political party, not

candidate. Pet.App.386. And the court ignored a sister

court’s finding that Alabama is a “ruby red” state that

made it “virtually impossible for Democrats—of any

race—to win statewide in Alabama in the past two

decades” and that “the notion that African-American

candidates lose solely because of their skin color [was]

not supported by the evidence.” Pet.App.387–88

(quoting Alabama State Conf. NAACP v. Alabama,

612 F. Supp. 3d 1232, 1291, 1293 (MD Ala. 2020)).

Instead, the court focused on the “evidentiary record

about the importance of race in Alabama politics.”

Pet.App.391. But importance is not causation.

IV.

Section 2’s totality of the

circumstances test must analyze

causation

Without tethering §2 to cases of political lockout,

the totality of the circumstances test, as currently

applied, is hopelessly malleable and prone to

manipulation for partisan ends. The test is ostensibly

designed to determine whether minority voters in the

district have less or equal opportunity to participate

in the political process and elect representatives of

their choice. Chisom, 501 U.S. at 297. But many of

those factors go beyond just present political lockout.

See Gingles, 478 U.S. at 36–37 (factors include

“history

of

official

discrimination”

and

19

“discrimination in such

employment and health”).

areas

as

education,

Recognizing this, courts have imposed guardrails

on the extent to which certain factors can support a

§2 claim. In Brnovich, this Court recognized that

“courts must consider the opportunities provided by a

State’s entire system of voting” because §2 refers to

the “collective concept of a State’s ‘political process’ as

a whole.” 594 U.S. at 671.

Other courts have held that statistical disparities

alone do not suffice unless the challenger

demonstrates “a causal connection between the

challenged voting practice and a prohibited

discriminatory result.” Smith, 109 F.3d at 595; see

also Ortiz v. City of Philadelphia Off. of the City

Comm’rs, 28 F.3d 306, 315 (CA3 1994); Irby v.

Virginia State Bd. of Elections, 889 F.2d 1352, 1358–

59 (CA4 1989); Salas v. Southwest Tex. Junior Coll.

Dist., 964 F.2d 1542, 1556 (CA5 1992); Wesley v.

Collins, 791 F.2d 1255, 1262 (CA6 1986).

In this same vein, other factors, such as modern

legislative efforts to remedy past harms to a minority

group, should count towards political opportunity.

But too often lower courts leap over these

reasonable

guardrails—particularly

in

the

redistricting context—at the urging of partisan

litigants, telling minority communities how they

should vote and that no progress toward equal

opportunity, absent intervention from their judicial

saviors, will ever be enough to place them on equal

footing with their fellow citizens.

20

Amici’s and Alabama’s cases are cases-in-point. In

Amici’s case, the district court ignored clear evidence

that Hispanic representation in Washington’s

legislature exceeds HCVAP. See Palmer I, 686 F.

Supp. 3d at 1230–31. The court also ignored modern

efforts to ameliorate past discrimination. See id. at

1227–28. The court elevated decades-old miscarriages

of justice and emphasized socioeconomic disparities

without identifying a causal connection between

those factors and present opportunity. Id. at 1228.

The court incorrectly elevated hearsay testimony of

an alleged racial remark by a member of the general

public—not a racial appeal by a political campaign—

as evidence of racial appeals. Finally, the court

diminished Hispanic electoral success in LD-15 and

the surrounding region simply because those

Hispanic elected officials do not belong to the political

party a single federal district court judge feels

Hispanic voters in central Washington are supposed

to prefer, and it cast aside a robust record of

responsiveness to Hispanic communities by those

Hispanic officials. See id. at 1230–31.

Alabama’s case is similar. While purportedly

heeding to this Court’s command that “[p]ast

discrimination cannot, in the manner of original sin,

condemn governmental action that is not itself

unlawful,” Pet.App.395 (quoting Abbott v. Perez, 585

U.S. 579, 603 (2018)), the court elevated Alabama’s

sordid but past history of official racial discrimination

while diminishing modern progress toward

remedying those harms. The court also credited lay

witness testimony about Alabama’s history of slavery

and segregation, despite the fact the each of the

witnesses

were

presently

politically

active.

21

Pet.App.401–03. And the court focused on

socioeconomic disparities tied to past discrimination

without meaningfully discerning a causal link

between those disparities and any current, or even

recent, discriminatory voting practices. See

Pet.App.409 (concluding simply that those disparities

hinder “political participation” but not political

access). Finally, the court found that Alabama’s

failure to enact a second majority-Black district itself

was evidence of a lack of responsiveness to the needs

of Black Alabamians, without considering any

evidence of responsiveness outside the redistricting

context. Pet.App.423–25.

V.

Without these reasonable constraints,

§2 authorizes federal courts to

unconstitutionally engage in racial

and partisan gerrymandering

If §2 remains unmoored from cases of political

lockout, instances of polarized voting caused only by

race and not partisanship, and circumstances that

actually cause lost political opportunity, it will

perpetuate racial sorting for partisan gain at the

hands of the federal judiciary. Current §2

jurisprudence thus thrusts federal courts into the

intersection of two activities this Court has held are

never within the province of the federal judiciary—

engaging in race-based sorting based on racial

stereotypes and entering the political thicket of

partisan gerrymandering.

This Court has long recognized that “[r]acial

classifications of any sort pose the risk of lasting harm

to our society.” Shaw, 509 U.S. at 657; see also

22

Edmonson v. Leesville Concrete Co., 500 U.S. 614

(1991) (“Racial discrimination [is] invidious in all

contexts.”). “Racial classifications with respect to

voting carry particular dangers” because they “may

balkanize us into competing racial factions” and

threaten to “carry us further from the goal of a

political system in which race no longer matters.”

Shaw, 509 U.S. at 657.

“Eliminating

racial

discrimination

means

eliminating all of it.” SFFA, 600 U.S. at 206. As this

Court recognized in SFFA, that means that race may

never be used “as a stereotype or negative” and “at

some point,” racial classifications “must end.” Id. at

213. Thus, to the extent current §2 jurisprudence

perpetually authorizes federal courts to engage in

racial stereotyping and participate in the “sordid

business [of[ divvying us up by race,” it must end.

LULAC, 548 U.S. at 511 (Roberts, C.J., concurring in

part and dissenting in part).

This Court has also held that there is no

“appropriate role for the Federal judiciary in

remedying the problem of partisan gerrymandering.”

Rucho, 588 U.S. at 696 (internal quotations omitted).

It necessarily follows that there is no appropriate role

for the federal judiciary to engage in partisan

gerrymandering. Indeed, the Framers “entrust[ed]

districting to political entities,” and “[a]t no point was

there a suggestion that federal courts had a role to

play.” Id. at 701, 699. A jurisprudence that permits

federal courts to engage in partisan gerrymandering

to purportedly remedy race-based discrimination

commits

federal

courts

“to

unprecedented

23

intervention in the American political process.” Id. at

703–04.

This Court and others have long warned of the

dangers of allowing §2 to become a partisan tool.

Section 2 “is a balm for racial minorities, not political

ones.” Baird v. Consolidated City of Indianapolis, 976

F.2d 357, 361 (CA7 1992). As Justice Alito observed,

“Unless courts ‘exercise extraordinary caution’ in

distinguishing race-based redistricting from politicsbased redistricting, they will invite the losers in the

redistricting process to seek to obtain in court what

they could not achieve in the political arena.” Cooper

v. Harris, 581 U.S. 285, 335 (2017) (Alito, J.,

concurring in part and dissenting in part) (internal

citations omitted)).

But when it comes to redistricting, federal courts

too often overstep their judicial role, engaging in

blatantly unconstitutional racial sorting and

impermissibly entering the political thicket of

partisan gerrymandering, as in Amici’s and

Alabama’s cases.

Indeed, Amici’s case “exemplifies the tendency of

the Court’s race-obsessed jurisprudence to ‘balkanize

us into competing racial factions.’” Alexander, 602

U.S. at 60 (Thomas, J., concurring) (quoting Shaw,

509 U.S. at 657). The court “concluded that Hispanic

voters in a majority-Hispanic district lacked an

opportunity to elect the candidate of their choice, even

though the district elected a Hispanic Republican.”

Id. The court then “purported to correct the lack of

Hispanic opportunity by imposing a remedial map

that made the district ‘substantially more

24

Democratic,’ but slightly less Hispanic.” Id. (quoting

Palmer II, 2024 U.S. Dist. LEXIS 50419, at *15).

This never-before-seen VRA remedy cannot be

overstated. The district court purported to cure

dilution of Hispanic voting strength by affirmatively

lowering HCVAP. Specifically, the court lowered

HCVAP in LD-15 from 52.6% to 50.2% in 2021

population numbers to, in the court’s words, make the

district “substantially more Democratic.” Palmer II,

2024 U.S. Dist. LEXIS 50419, at *15. The court

replaced Hispanic voters with White and Native

American Democrats because those voters supposedly

voted for candidates that Hispanic voters, in the

courts view, are supposed to vote for. See id. at *6. To

accomplish this, the court drew a horrifically racially

gerrymandered district that resembled an octopus

slithering along the ocean floor. See id. And the court

went even further—gratuitously changing 13 out of

49 districts, altering the partisan composition of 10

districts (including flipping partisan control of two),

and displacing multiple incumbents. See id.

All this from a single federal judge. In

Washington, the state Democratic Party was thus

able to achieve through a federal court what it could

not achieve through the constitutionally mandated

bipartisan redistricting process—more favorable

Democratic districts in central Washington. Indeed,

Amici’s case is so troubling that it led Justice Thomas

to urge this Court to “correct course now” before its §2

jurisprudence “inflicts further damage.” Alexander,

602 U.S. at 60.

25

Alabama’s case is no better. There, the court split

part of Mobile County and combined it with part of

the Black Belt, two very different regions with very

different interests, solely because the voters there

were Black. See Pet.App.1037. And the court refused

to credit clear evidence that White voters in District 2

do not vote as a monolith, as shown by the 2024

election of Shomari Figures, a Black Democrat, in a

District with only 48.69% BVAP. See Pet.App.370–71.

Under the guise of §2, federal judges in both

Amici’s and Alabama’s cases engaged in blatant racial

and partisan gerrymandering. This Court should

return §2 to its original moors to prevent the further

degradation of the judicial role.

CONCLUSION

For the foregoing reasons, the Court should grant

certiorari and note probable jurisdiction.

Respectfully submitted,

Jason B. Torchinsky

Counsel of Record

HOLTZMAN VOGEL BARAN

TORCHINSKY & JOSEFIAK, PLLC

2300 N Street, NW

Washington, D.C. 20037

Phone: (202) 737-8808

jtorchinsky@holtzmanvogel.com

26

Dallin B. Holt

HOLTZMAN VOGEL BARAN

TORCHINSKY& JOSEFIAK, PLLC

2555 E Camelback Rd., Suite 700

Phoenix, AZ 85016

Phone: (615) 647-8528

Daniel A. Bruce

HOLTZMAN VOGEL BARAN

TORCHINSKY & JOSEFIAK, PLLC

15405 John Marshall Hwy

Haymarket, VA 20169

Phone: (540) 341-8808