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

No. 25-243

IN THE

Supreme Court of the United States

__________________________________

WES ALLEN, ALABAMA SECRETARY OF STATE, et al.,

Petitioners,

v.

MARCUS CASTER, et al.,

Respondents.

__________________________________

On Petition for a Writ of Certiorari Before Judgment

to the United States Court of Appeals for the Eleventh

Circuit

__________________________________

CASTER RESPONDENTS’ RESPONSE TO

ALABAMA’S PETITION FOR A WRIT OF

CERTIORARI BEFORE JUDGMENT

__________________________________

LALITHA D. MADDURI

JACOB D. SHELLY

RICHARD A. MEDINA

QIZHOU GE

ELIAS LAW GROUP LLP

250 Massachusetts Ave. NW

Suite 400

Washington, DC 20001

(202) 968-4490

Counsel for Respondents

ABHA KHANNA

Counsel of Record

ELIAS LAW GROUP LLP

1700 Seventh Ave

Suite 2100

Seattle, Washington 98101

(206) 656-0177

AKhanna@elias.law

i

QUESTIONS PRESENTED

1. Whether the State of Alabama’s 2023 redistricting

plan for its seven seats in the United States House

of Representatives violated § 2 of the Voting Rights

Act, 52 U.S.C. §10301.

2. Whether § 2 of the Voting Rights Act, 52 U.S.C.

§10301, as applied by the District Court is constitutional.

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED ....................................... i

TABLE OF AUTHORITIES .......................................iv

INTRODUCTION ........................................................1

STATEMENT ..............................................................2

ARGUMENT ...............................................................4

I. The District Court correctly applied the Court’s

longstanding § 2 precedent as reaffirmed in

Allen........................................................................4

A. Black voters in southern Alabama can

comprise a majority in an additional,

reasonably configured district..........................4

B. Voting in Alabama is racially polarized. .......14

C. The

totality

of

the

circumstances

demonstrates that the challenged political

process is not equally open to Black voters. ..15

D. The District Court’s finding of intentional

discrimination further supports its totalityof-circumstances determination. ....................19

II. Section 2 is constitutional....................................20

A. Section 2 enforces the Fourteenth and

Fifteenth Amendments...................................21

iii

B. Section 2 remedies instances of likely

intentional discrimination..............................23

C. The Court’s § 2 and race-based admissions

jurisprudence are fundamentally different. ..26

D. Section 2 is clear. ............................................28

E. The Court should not remake Gingles 1. .......30

F. Section 2’s protections have not expired........33

CONCLUSION ..........................................................36

iv

TABLE OF AUTHORITIES

CASES

Abbott v. Perez,

585 U.S. 579 (2018) ....................................... 32

Ala. Legis. Black Caucus v. Alabama,

989 F. Supp. 2d 1227 (M.D. Ala. 2013) ......... 30

Ala. State Conf. NAACP v. Alabama,

949 F.3d 647 (11th Cir. 2020) ....................... 21

Alabama v. Ala. State Conf. NAACP,

141 S. Ct. 2618 (2021) ................................... 21

Alexander v. S.C. State Conf. NAACP,

602 U.S. 1 (2024) ........................................... 31

Allen v. Milligan,

144 S. Ct. 476 (2023) ....................................... 3

Allen v. Milligan,

599 U.S. 1 (2023) ............... 1–3, 5–9, 11, 15, 17

.......................................... 20, 26–28, 30, 33–34

Anderson v. City of Bessemer City,

470 U.S. 564 (1985) ....................................... 11

Ark. State Conf. NAACP v. Ark. Bd. of

Apportionment,

86 F.4th 1204 (8th Cir. 2023)........................ 21

v

Bartlett v. Strickland,

556 U.S. 1 (2009) ........................................... 29

Brnovich v. DNC,

594 U.S. 647 (2021) ....................................... 36

Bush v. Vera,

517 U.S. 952 (1996) ....................................... 26

Celotex Corp. v. Edwards,

514 U.S. 300 (1995) ....................................... 19

City of Rome v. United States,

446 U.S. 156 (1980) ................................. 22, 30

Cooper v. Harris,

581 U.S. 285 (2017) ................................. 11, 14

Gill v. Whitford,

585 U.S. 48 (2018) ........................................... 9

GTE Sylvania, Inc. v. Consumers Union of U.S.,

Inc.,

445 U.S. 375 (1980) ....................................... 19

Johnson v. De Grandy,

512 U.S. 997 (1994) ..................... 26, 30, 31, 36

Kimble v. Marvel Ent., LLC,

576 U.S. 446 (2015) ....................................... 34

LULAC v. Perry,

548 U.S. 399 (2006) ....................................... 31

vi

Miller v. Johnson,

515 U.S. 900 (1995) ....................................... 26

Mixon v. Ohio,

193 F.3d 389 (6th Cir. 1999) ......................... 21

Morse v. Republican Party of Va.,

517 U.S. 186 (1996) ....................................... 21

N.C. State Conf. of NAACP v. McCrory,

831 F.3d 204 (4th Cir. 2016) ......................... 33

Oregon v. Mitchell,

400 U.S. 112 (1970) ....................................... 21

Robinson v. Ardoin,

86 F.4th 574 (5th Cir. 2023).......................... 21

Rogers v. Lodge,

458 U.S. 613 (1982) ................................. 23, 31

Rucho v. Common Cause,

588 U.S. 684 (2019) ......................................... 8

Ry. Emps.’ Dep’t v. Hanson,

351 U.S. 225 (1956) ....................................... 33

Sanchez v. Colorado,

97 F.3d 1303 (10th Cir. 1996) ....................... 24

Schuette v. BAMN,

572 U.S. 291 (2014) ....................................... 25

vii

Shaw v. Reno,

509 U.S. 630 (1993) ................................... 8, 26

Shelby County v. Holder,

570 U.S. 529 (2013) ............................. 2, 22, 34

South Carolina v. Katzenbach,

383 U.S. 301 (1966) ................................. 17, 22

Students for Fair Admissions, Inc. v. President &

Fellows of Harvard Coll.,

600 U.S. 181 (2023) ........................... 23, 27, 28

Thornburg v. Gingles,

478 U.S. 30 (1986) ...................... 1, 2, 9, 18–19,

.......................................... 24–25, 28–29, 30–32

Turtle Mountain Band of Chippewa Indians v.

Howe,

145 S. Ct. 2876 (2025) ................................... 21

Veasey v. Abbott,

830 F.3d 216 (5th Cir. 2016) ......................... 20

Whitcomb v. Chavis,

403 U.S. 124 (1971) ....................................... 18

White v. Regester,

412 U.S. 755 (1973) ................................. 22, 29

viii

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. XIV, § 5 ................................. 21

U.S. Const. amend. XV, § 1 ................................... 22

U.S. Const. amend. XV, § 2 ................................... 21

STATUTES

52 U.S.C. § 10301 .............................................. 9, 25

OTHER AUTHORITIES

Br. of Amici Curiae Professors Chen,

Elemendorf, Stephanopoulos, & Warshaw,

Merrill v. Milligan,

Nos. 21-1086, 21-1087

(U.S. July 18, 2022) ....................................... 36

Ellen D. Katz, et al., The Evolution of Section 2:

Numbers and Trends,

UNIV. MICH. L. SCH. VOTING RIGHTS

INITIATIVE (2025),

https://voting.law.umich.edu/findings .......... 35

Lori Ringhand & Zach Poppe, Congruence &

Proportionality as a Const’l Construction,

UNIV. OF GA. SCH. OF L. LEGAL STUD. RSCH.

PAPER FORTHCOMING (Sep. 2, 2025),

https://papers.ssrn.com/sol3/papers.cfm?

abstract_id=5418455 ..................................... 22

ix

S. Rep. No. 97-417,

97th Cong., 2nd Sess. (1982) ............. 15, 17, 22

............................................................ 25, 31, 33

T. Crum, Reconstructing Racially Polarized

Voting,

70 DUKE L. J. 261, 279 (2020) ....................... 34

1

INTRODUCTION

Just two years ago, Alabama took a swing at

Thornburg v. Gingles, 478 U.S. 30 (1986), hoping to

dodge § 2 liability on a devastating record by knocking

out the law. This Court rejected “Alabama’s attempt

to remake our § 2 jurisprudence anew.” Allen v. Milligan, 599 U.S. 1, 23 (2023). But here we go again.

There remains no real question that Alabama’s

congressional map violated the Gingles/Allen test. Indeed, Alabama presses only one evidentiary argument

with any enthusiasm here. Before trial, the State manipulated its redistricting criteria to elevate the

maintenance of the White Gulf Coast community over

the uncracking of neighboring Black voters. Thus, Alabama now boasts, its dilutive map became more reasonably configured than Plaintiffs’ illustrative maps

according to Alabama’s own revised scorecard. But

that inventive logic goes nowhere. The illustrative

configurations this Court endorsed as reasonable two

years ago were not rendered unreasonable by Alabama’s rigged rubric for a beauty contest that this

Court explicitly rejected. See id. at 21. And any doubt

as to the reasonableness of Plaintiffs’ illustrative districts was definitively erased upon the adoption of a

remedial map that was drawn race-blind.

Alabama is thus left flailing against the law once

more, aiming to smash Congress’s landmark enactment and 40 years of precedent. It argues that § 2 is

bad policy, as if the evaluation of racial discrimination

is somehow more divisive than racial discrimination

itself. It argues that § 2 is a relic of a bygone era—but

in the next breath emphasizes that courts continue to

2

find violations “from purple Georgia to deep blue

Washington State.” Pet.17. It complains that § 2’s test

is too mechanical but also that it is too abstract.

None of these criticisms land. Congress enacted § 2

as a “permanent, nationwide ban on racial discrimination in voting.” Shelby County v. Holder, 570 U.S.

529, 557 (2013). The operative legal standard pairs objective criteria with a holistic analysis, requiring

plaintiffs to prove in a specific way that a specific kind

of discrimination is corrupting a specific political process in a specific place at a specific time. By bridging

the Fifteenth Amendment’s radiant command with

“an intensely local appraisal,” Allen, 599 U.S. at 19

(quoting Gingles, 478 U.S. at 79), § 2 endures to protect voters like Plaintiffs from schemes like Alabama’s.

The Court should summarily affirm the judgment

below in Milligan and Singleton and deny the petition

for a writ of certiorari in this case. If the Court declines to summarily affirm the judgment below, Caster

Plaintiffs respectfully join Alabama’s request for a

writ of certiorari before judgment so that the Caster,

Milligan, and Singleton cases can be heard together

as they were in 2022.

STATEMENT

The Court is well familiar with the history of this

case. Alabama’s 2021 Plan cracked Black voters in

southern Alabama across three congressional districts—CDs 1, 2, and 3—such that they constituted an

ineffective minority in each, while maintaining CD-7

3

as the lone district in which Black voters had the opportunity to elect their preferred candidates. App.90.

Plaintiffs sued, the District Court preliminarily enjoined the use of that plan, and this Court affirmed

the injunction in full. Allen, 599 U.S. at 1. The Court

saw no reason “to disturb the District Court’s careful

factual findings,” “upset [its] legal conclusions,” or “remake [this Court’s] § 2 jurisprudence anew.” Id. at 23.

Alabama then enacted the 2023 Plan, which, once

again, contained only one district in which Black voters had the opportunity to elect their preferred candidates. App.3. Like the 2021 Plan, the 2023 Plan kept

Mobile and Baldwin Counties united in a majorityWhite district. App.55, 136. The District Court preliminarily enjoined use of the 2023 Plan for failing to remedy the likely § 2 violation already found and, in the

alternative, for likely violating § 2 in its own right.

App.4.

After this Court declined to stay that injunction,

Allen v. Milligan, 144 S. Ct. 476 (2023) (Mem.), the

District Court adopted a plan prepared by a special

master and a court-appointed cartographer. The plan

was prepared “race-blind” and “satisfied all constitutional and statutory requirements while hewing as

closely as possible to the Legislature’s 2023 Plan.”

App.16. The 2024 elections were conducted under the

court-adopted remedial plan.

Early this year, the District Court held an 11-day

trial on the 2023 Plan. App.5. In addition to the evidence from the first two preliminary injunction hearings, the District Court heard live testimony from 23

witnesses, received testimony by designation from 28

4

additional witnesses, and considered 39 pages of stipulated facts and more than 790 exhibits. On May 8,

2025, the District Court permanently enjoined the

2023 Plan, finding that it violated § 2. App.7. The District Court also found that the 2023 Plan was enacted

with discriminatory intent. App.527. Alabama appealed and now petitions for certiorari before judgment.

ARGUMENT

I.

The District Court correctly applied the

Court’s longstanding § 2 precedent as reaffirmed in Allen.

The District Court’s final judgment reflects the

same careful and correct application of § 2 that this

Court affirmed in Allen. The robust trial record confirmed that Alabama’s congressional plan unlawfully

diluted Black Alabamians’ votes, leading the District

Court to hold for the third time that Plaintiffs’ “Section Two claim is not a close call.” App.6. Alabama’s

arguments to the contrary are foreclosed by this

Court’s precedent—including its previous holdings in

this very case—and the District Court’s extensive factual findings.

A.

Black voters in southern Alabama can

comprise a majority in an additional, reasonably configured district.

This Court already determined that Plaintiffs satisfied the first Gingles precondition at the preliminary

injunction phase by presenting eleven illustrative

maps “contain[ing] two majority-black districts that

5

comported with traditional districting criteria.” Allen,

599 U.S. at 20. Based on that evidence, this Court

held, “the District Court correctly found that black

voters could constitute a majority in a second district

that was ‘reasonably configured.’” Id. at 19.

At trial, the parties stipulated that there is a “numerically sufficient number of Black people of voting

age in Alabama to draw [] two majority-Black Congressional Districts.” App.123. And based on the

eleven illustrative plans Plaintiffs submitted during

the preliminary injunction phase and the four additional illustrative plans submitted at trial, the District Court found that Black voters in southern Alabama are sufficiently compact to constitute a majority

in a second reasonably configured district. App.319

(citing Allen, 599 U.S. at 18). The District Court gave

“particular[] focus” to Cooper Plan 9, which Caster

Plaintiffs’ expert Bill Cooper “drew in response to criticisms about compactness.” App.333. As Alabama’s

expert Dr. Sean Trende conceded, Cooper Plan 9 is

“‘more compact than any plan that Alabama has

drawn or used in the last 40 years,’ including the 2023

Plan,” App.333-34, while simultaneously splitting

fewer counties and municipalities than the 2023 Plan,

App.211-12.

Ultimately, the District Court analyzed the “reasonable configuration” element of Gingles 1 “six

ways”—including through visual assessment of the

geographic concentration of the Black population, statistical compactness scores, traditional districting

principles, and all these methods in combination—

6

and found that “all the arrows point in the same direction; [Plaintiffs’ illustrative plans], and the remedial districts in them, are reasonably configured.”

App.362. If any question remained about Plaintiffs’

satisfaction of Gingles 1, the District Court’s remedial

plan puts it to bed: the Special Master’s plan, drawn

race-blind, grouped together the same compact Black

population as Plaintiffs’ illustrative maps. App.529,

531.

Alabama disputes none of this. Instead, it rehashes the same arguments this Court already rejected, complaining that Plaintiffs’ plans (1) split Mobile County and the Gulf Coast and (2) were drawn

predominantly based on race.

1. It is no serious demerit that Plaintiffs’ illustrative plans split one of Alabama’s 67 counties that Alabama preferred to keep whole. Alabama previously argued “that plaintiffs’ maps erred by separating [the

Gulf Coast region] into two different districts,” and

this Court rejected that very argument as “not … persuasive.” Allen, 599 U.S. at 20. The Court further held

that “[e]ven if the Gulf Coast did constitute a community of interest, ... [t]he District Court concluded—correctly, under our precedent—that it did not have to

conduct a ‘beauty contest[]’ between plaintiffs’ maps

and the State’s.” Id. at 21 (quotation omitted).

But Alabama remains fully committed to the pageant, placing a tiara on its own map and declaring it

best-in-show.

Alabama’s first order of business after this Court

accepted Plaintiffs’ illustrative districts was to rewrite the State’s districting criteria—and then fault

7

Plaintiffs’ illustrative plans for not abiding by them.

The 2023 Plan was accompanied by a “novel” series of

“legislative findings” that emphasized the Gulf Coast

community’s “distinct culture stemming from its

French and Spanish colonial heritage,” App.548, and

purported to “elevat[e] the Gulf Coast community of

interest over all other traditional districting principles in Alabama,” App.347. According to Alabama, the

effect of the 2023 legislative findings was to render

Plaintiffs’ illustrative maps unreasonably configured—contra this Court’s explicit determination otherwise—because they divide one “predominantly

white” community of interest that Alabama has since

deemed inviolable. Pet.11-12. 1

Alabama sorely misunderstands the fundamental

purpose of Gingles 1. “A district will be reasonably

configured, [this Court’s] cases explain, if it comports

with traditional districting criteria, such as being contiguous and reasonably compact.” Allen, 599 U.S. at

18. “Traditional districting criteria,” in turn, “are important not because they are constitutionally re-

1 Alabama’s insistence that the Gulf Coast is now somehow invi-

olable is belied by its State Board of Education Plan, which splits

the Gulf Coast in the same manner as Plaintiffs’ illustrative

plans. App.357. In fact, Alabama placed Mobile and Baldwin

Counties in different congressional districts for nearly 100 years

and only placed them together in the 1970s to prevent the reelection of a Black incumbent. App.349; see also Allen, 599 U.S. at 21

(“The District Court understandably found [the PI record] insufficient to sustain Alabama’s overdrawn argument that there can

be no legitimate reason to split the Gulf Coast region.” (citation

modified)).

8

quired—they are not—but because they serve as objective factors” by which courts may evaluate claims

that a district’s configuration was unduly influenced

by race. Shaw v. Reno, 509 U.S. 630, 647 (1993) (emphasis added). They are not, as Alabama would have

it, a subjective set of policy preferences that states can

manipulate to move the goalpost for § 2 plaintiffs and

courts alike. Cf. Rucho v. Common Cause, 588 U.S.

684, 715 (2019) (noting that “it does not make sense to

use criteria that will vary from State to State and year

to year as the baseline for determining” undue consideration of various factors because “the same map

could be [lawful] or not depending solely on what the

mapmakers said they set out to do”).

Alabama’s insistence that § 2 liability turns on the

preservation of the Gulf Coast community fails for the

same reason this Court rejected Alabama’s “related

argument based on ‘core retention.’” Allen, 599 U.S. at

21; see Br. for Appellants at 60 (“Merrill Appellants’

Br.”), Merrill v. Milligan, Nos. 21-1086, 21-1087 (U.S.

Apr. 25, 2022) (defending Alabama’s “longstanding interests in maintaining the Gulf Coast and respecting

the existing district”). Like core retention, Alabama’s

Gulf Coast criterion has the practical effect of entrenching CD-2 as a majority-White district, precluding the creation of a second majority-Black district.

App.347. “No document, testimony, or lawyer disputes ... this point.” Id. In fact, “counsel for the State

conceded in closing argument that he is ‘not aware of

a way to draw two majority-Black districts without going against the Legislature’s priority of keeping Mobile and Baldwin County whole.’” Id. And as with core

9

retention, “this Court has never held that a State’s adherence to a previously used” majority-White district

“can defeat a § 2 claim. If that were the rule, a State

could immunize from challenge a new racially discriminatory redistricting plan simply by” mandating

the preservation of a predominantly-White community that was prioritized in “an old racially discriminatory plan.” Allen, 599 U.S. at 22. “That is not the

law: § 2 does not permit a State to provide some voters

‘less opportunity ... to participate in the political process’” simply by proclaiming one community of interest paramount to all others. Id. (quoting 52 U.S.C.

§ 10301(b)).

Alabama has already conceded that it “couldn’t

rely on core retention” to escape § 2 liability. App.68

([Solicitor General]: “Allen made that clear. So if we

said the new context is core retention, it is our number

one priority, that would do us no good in a future challenge.”). Alabama’s attempt to repackage “core retention” as “retention of a majority-White district” fails

for the same reason.

Alabama’s insistence that the 2023 Plan escapes

§ 2 liability by cracking the Black Belt into two districts instead of three does not help either. The problem of cracking is not the number of districts into

which a community is split, but the effect of that dispersal—that it leaves the community in “districts in

which they constitute an ineffective minority of voters.” Gingles, 478 U.S. at 46 n.11; cf. Gill v. Whitford,

585 U.S. 48, 67 (2018) (noting that vote dilution harm

“arises from the particular composition of the voter’s

own district, which causes his vote—having been

10

packed or cracked—to carry less weight than it would

carry in another, hypothetical district”).

Alabama does not dispute that, under the 2023

Plan, Black voters in southern Alabama are dispersed

into two districts—CDs 1 and 2—in which they constitute an ineffective minority of voters, or that CD-7 remains the sole district in which Black voters have the

opportunity to elect their preferred candidates.

App.355; see also App.417 (explaining that the State

“sent a lawyer into court to concede that the 2023 Plan

has only one Black-opportunity district”). “This evidence—and concession—undermine the State’s assertion that the 2023 plan remedies the cracking of Black

voting strength in the Black Belt simply by splitting

the Black Belt into fewer districts.” App.355. Gingles

1 is satisfied where, as here, the State could have

drawn an additional, reasonably-configured majorityminority district but chose not to. App.334-35.

Whether Black Belt voters are fragmented to form a

minority of two or three districts makes no difference;

it is the denial of an additional opportunity district

that matters.

Ultimately, a “reasonably configured” Gingles 1 illustrative district cannot be rendered “unreasonable”

just because the legislature chooses to elevate a particular community of interest—or any other criterion—as especially important. To rule otherwise

would let states evade Section 2 by gerrymandering

their redistricting criteria to match their preferred

districts.

11

2. The District Court correctly found “no evidence

that [Plaintiffs’ mapdrawers] allowed race to predominate, and extensive evidence that they took great

care to avoid that fault,” when drawing illustrative

maps. App.362. Reviewing seven of those illustrative

maps, this Court confirmed that “[t]he District Court

did not err” in making that finding. Allen, 599 U.S. at

32. The only additional evidence on this point that Alabama adduced at trial was expert testimony from Dr.

Trende. See App.362. Tellingly, Alabama does not

even mention his name on appeal. For good reason:

Dr. Trende failed to offer any “evidentiary basis for his

bald assertion” of race-based splits, and ultimately the

District Court assigned his testimony “less weight”

based on the flaws and concessions in his testimony.

App.325-26, 361-62. Alabama does not contest these

credibility findings on appeal, where they are subject

to “singular deference,” Cooper v. Harris, 581 U.S.

285, 311 (2017) (quoting Anderson v. City of Bessemer

City, 470 U.S. 564, 575 (1985)).

Alabama is thus left with the same predominance

arguments it advanced—and the Court rejected—last

time: that connecting Mobile and the Black Belt is per

se racial predominance, compare Pet.12, with Merrill

Appellants’ Br.25-26, and that Plaintiffs’ experts predominantly pursued racial targets, compare Pet.13,

with Merrill Appellants’ Br.57. Neither argument has

improved with age.

Alabama’s insistence that Mobile and the Black

Belt have nothing in common besides race is wholly

unmoored from the record. Pet.14. Alabama does not

12

cite any witness testimony or exhibit evidence in support of this assertion, see id., and ignores the extensive

record chronicling the shared interests between Mobile, Montgomery, and the core Black Belt counties.

Testimony from Plaintiffs’ expert Dr. Bagley charted

the historical, cultural, socioeconomic, and migratory

connections between Mobile and the Black Belt.

App.169-70. Lay witness testimony from Mr. Milligan,

Ms. Dowdy, Representative Jones, Mr. Clopton, Dr.

Caster, and Pastor Jackson detailed migration, work,

familial, educational, religious, economic, healthcare,

and cultural ties. App.182-93, 236-43. And Alabama’s

own 2011 and 2021 State Board of Education Plans—

drawn by Alabama lawmakers pursuant to the same

redistricting guidelines that governed the state’s congressional plans—combine the City of Mobile with the

Black Belt and separate Mobile from Baldwin County,

just like Plaintiffs’ illustrative plans. App.349; see also

App.351 (noting that Plaintiffs’ experts used the State

Board of Education Plan as guidance for what Alabama considered reasonable).

Alabama’s rehashed accusations against Plaintiffs’

experts likewise “badly misstate the record.” App.359.

Alabama points to Mr. Cooper’s testimony that he believed it was possible to create “a majority-black district in south-central Alabama” and “also have a Gulf

Coast district.” Pet.12. But far from indicating racial

predominance, that testimony only underscores Mr.

Cooper’s careful consideration of all relevant communities of interest in constructing his plans. As his illustrative plans demonstrate, respecting the shared

interests between the City of Mobile and the Black

Belt does not preclude respecting the shared interests

13

between the coastal communities in Mobile and Baldwin Counties. See Trial Tr. 207-08 (Cooper) (“I’ve always left part of Mobile County in a district that joins

with Baldwin County…. Why can’t you have a majority-black district in south-central Alabama and also

have a Gulf Coast district that includes parts of Mobile County and all of Baldwin County?”); see also

App.351 (quoting Cooper testimony that rather than

separating Mobile County along racial lines, his illustrative majority-minority District 2 excludes “the waterfront area of Mobile, which is actually a grouping

of precincts that are predominantly African-American” and puts that area into District 1 “so that there

was a transportation route between District 1 [in] Mobile County and District 1 in Baldwin County”). While

Alabama tries to retroactively inject race into Plaintiffs’ experts’ mapdrawing process through its selective “splic[ing]” of the testimony, the District Court

rightly “reject[ed] th[o]se accusations.” App.359; see

App.360 (“[W]e will not infer from things Mr. Cooper

knew that he assigned race a predominant role in his

mapmaking process, particularly in the light of his

testimony that he did not.”).

Nor did Plaintiffs’ mapdrawers use any “announced racial target,” Pet.13; instead, they set out to

determine whether it was possible to draw a second

majority-Black district based on the size and compactness of the Black population. App.219-24, 360-63. As

Mr. Cooper explained, he did not consider a “race

threshold as an outer limit on his respect for traditional districting principles,” App.223; he “would not

have gone to 50 percent plus one for a second majorityBlack district if [he] were not also balancing the other

14

traditional redistricting principles,” App.322; and he

“never split a VTD ... for the purpose of creating a majority-Black district,” id. Indeed, Mr. Cooper testified

that in the course of his nearly 40-year career, he has

“routinely” advised potential § 2 plaintiffs that he

could not draw a reasonably compact district in satisfaction of Gingles 1. Id.; see also id. (“This testimony

enhances Mr. Cooper’s trustworthiness and our regard for his opinions.”). Alabama offers nothing to refute either Mr. Cooper’s testimony or the District

Court’s credibility findings, let alone demonstrate

that the District Court committed “clear error” on this

score. Cooper, 581 U.S. at 293.

Finally, the Special Master’s remedial plan “confirmed ... that a lawful remedial plan” similar to Plaintiffs’ illustrative plans “may be prepared race-blind.”

App.531 (emphasis added). Alabama stipulated to the

Special Master’s description, id., and has offered no

argument or evidence—at trial or on appeal—to contest the race-blind auspices of the remedial plan.

Thus, “[a]lthough federal law does not require a Section Two remedial plan to be prepared race-blind, the

ability of the Special Master to do it that way” stamps

out any “concern that race will predominate in the

preparation of a remedial plan.” App.532.

B.

Voting in Alabama is racially polarized.

Alabama does not dispute that voting in the state

is extremely racially polarized, satisfying the second

and third Gingles preconditions. As the District Court

found, “[t]his record supports only one finding: that

voting in Alabama, particularly in the districts at issue in these cases, is intensely and extremely racially

15

polarized.” App.372; see also App.372-73 (“We cannot

imagine a more comprehensive record, and we really

cannot imagine clearer proof.”).

C.

The totality of the circumstances demonstrates that the challenged political process is not equally open to Black voters.

The District Court carefully and correctly analyzed

the Senate Factors in concluding that the political

process in Alabama is not equally open to Black voters. App.373-428. Alabama offers no reason to question the District Court’s finding that “every relevant

Senate Factor weighs in favor of the Plaintiffs, and

none is neutral or weighs in favor of the State.”

App.425.

Alabama waves away the trial record as reflecting

little more than bygone racial animus and modernday partisan politics. But the District Court carefully

considered—and thoroughly rejected—Alabama’s efforts to minimize the totality of its “intensive racial

politics,” Allen, 599 U.S. at 30 (quoting S. Rep. No. 97417 (“S. Rep.”), 97th Cong., 2nd Sess. (1982), at 33-34).

First, Alabama contends that its admittedly

“stark[] and intense[]” racial polarization—and resulting “nearly invariant” electoral losses for Black-preferred candidates—is merely the consequence of partisan differences. App.271. But despite Alabama’s

best efforts, the District Court found “no evidence that

only party politics are at work.” App.385.

Indeed, Alabama’s own experts dispel Alabama’s

claim. Alabama offered Dr. Trey Hood to testify to Al-

16

abama’s purportedly race-blind politics, but his testimony was “widely inconsistent” with his own scholarly work, including several articles that “directly refute his litigation opinions.” App.375-76. Contrary to

Alabama’s position, Dr. Hood’s published scholarship

“spanning nearly a decade” “repeat[edly]” concludes

that “race remains the dominant political influence in

Southern politics today.” App.385. Where the very

scholarship that qualifies Dr. Hood as an expert explicates “[t]oday’s racialized partisan cleavage,”

App.377, Alabama can hardly contend otherwise. See

App.385 (“Ultimately, Dr. Hood’s opinions support the

Plaintiffs more than the State on the issue of racially

polarized voting.”).

Alabama’s other expert on this issue, Dr. Christopher Bonneau, analyzed only a handful of Alabama

elections, made a “material error that reversed his

conclusions,” and ultimately conceded that the data

on racial voting patterns “established ‘that White voters in Alabama support White Democrats more than

they support Black Democrats.’” App.367, 386 (quoting Trial Tr. 1789). This is consistent with the undisputed data demonstrating that White Alabamians of

both parties are less willing to support minority candidates. For instance, in 2008, White Democrats in Alabama supported Senator John McCain over thenSenator Barack Obama. App.389. And just last year,

the four Black candidates in the CD-2 Republican primary finished behind the four White candidates, together amassing only 6% of the primary vote. Id.

The result of such stark racial polarization is that

“Black Alabamians enjoy virtually zero success in

17

statewide elections,” Allen, 599 at 22, or at the state

or federal level outside of majority-Black districts prescribed by § 2. App.393-94. 2 And while Alabama complains that the Court did not give due weight to the

single Black Republican state legislator elected in a

majority-White district in the last 150 years, Pet.8, it

was the state’s own expert who described that election

as a “unicorn,” App.394.

Ultimately, Alabama’s asserted partisan explanation for racial polarization is directly at odds with the

“political reality” borne out in the evidentiary record.

App.389. As the District Court found based on its “intensely local appraisal,” Allen, 599 U.S. at 19, “it denies reality for us to say that at the end of the day, all

of that is just party politics.” App.391.

Second, Alabama suggests there can be no § 2 violation because Black registration rates in Alabama

have risen. Pet.16. But this argument only underscores the uniquely insidious nature of discriminatory

redistricting maps. While burdens on the registration

and balloting process may eventually be overcome

through strenuous mobilization efforts, a dilutive map

destroys electoral power no matter how passionate the

civic resistance. See S. Rep. at 199 (§ 2 was intended

to stamp out precisely this kind of “complex form[] of

invidious discrimination”); South Carolina v. Katzenbach, 383 U.S. 301, 308, 335 (1966).

2 The fact that Black elected officials in Alabama hail almost ex-

clusively from majority-minority districts entirely undermines

Alabama assertion that the state’s racial progress is unconnected

to § 2 or that § 2 has run its course, Pet.23-24.

18

Third, Alabama swings at a strawman, claiming

§ 2 punishes it for its sordid history of racial discrimination. Pet.24. But, in accordance with the Court’s

precedent, the District Court declined to “assign Alabama’s shameful history dispositive weight.” App.395.

Instead, the court “carefully considered an extensive

record about both past and present discrimination”—

including documented incidents of official discrimination found “in the last ten years by federal judges who

remain in service today,” the bail-in of three Alabama

jurisdictions in the last decade, and ongoing school desegregation litigation in three major school districts,

App.395-412—to conclude that “under all the circumstances in Alabama today, Black Alabamians have

less opportunity than other Alabamians to elect representatives of their choice,” App.7 (emphasis added).

Alabama’s only remaining quibble relies on Whitcomb v. Chavis, 403 U.S. 124 (1971), Pet.15, a case

that predates the 1982 Amendments and Gingles, to

argue that Black Alabamians suffer nothing more

than normal political defeat. But the Gingles Court

cited Whitcomb to explain that “loss of political power

through vote dilution is distinct from the mere inability to win a particular election.” Gingles, 478 U.S. at

57. Section 2 prohibits only the former—redistricting

plans like Alabama’s that perpetuate electoral racial

exclusion by systematically “minimiz[ing] or cancel[ing] out” the votes of a sizeable minority group. Id.

at 48.

19

D.

The District Court’s finding of intentional

discrimination further supports its totality-of-circumstances determination.

With orders in hand from both the District Court

and this Court warning that a map confining Black

voters’ electoral opportunity to only a single district

would likely discriminate in violation of § 2, Alabama

intentionally reenacted just such a map. It “purposefully and admittedly refused to provide th[e] remedy”

that federal law requires. App.489. The District

Court’s finding of intentional discrimination on that

basis means that Senate Factor 9 (whether the policy

underlying the 2023 Plan is tenuous) weighs strongly

in favor of Plaintiffs and further supports the District

Court’s determination that Plaintiffs carried their

burden on the totality of circumstances. App.149-51

(citing Gingles, 478 U.S. at 36-37); App.489.

Alabama cannot recast its defiance as a mere procedural disagreement. Contrary to Alabama’s suggestion, Pet.29, preliminary injunctions are not advisory

and compliance is not optional. See Celotex Corp. v.

Edwards, 514 U.S. 300, 306 (1995) (“[P]ersons subject

to an injunctive order issued by a court with jurisdiction are expected to obey that decree until it is modified or reversed, even if they have proper grounds to

object to the order.” (quoting GTE Sylvania, Inc. v.

Consumers Union of U.S., Inc., 445 U.S. 375, 386

(1980))). And Alabama’s claim that it defied the District Court’s order because it feared racial gerrymandering charges, Pet.28, cannot be squared with the reality that Alabama had assurance from both the District Court and this Court that it was possible to draw

20

a remedial district that did not give undue consideration to race. Allen, 599 U.S. at 33; App.114 (explaining

that satisfaction of Gingles 1 “demonstrate[s] the existence of a proper remedy”).

While Alabama now suggests that the 2023 Plan

was driven by partisanship, Pet.33-35, the record contains “precious little evidence to support the State’s

claim.” App.524. To the contrary, Alabama adamantly

insisted—in detailed legislative findings and legal arguments—that the 2023 Plan was grounded in its desire to preserve the predominantly White Gulf Coast

community, rooted in White colonial heritage,

App.346-48.

In any event, “[i]ntentions to achieve partisan gain

and to racially discriminate are not mutually exclusive.” Veasey v. Abbott, 830 F.3d 216, 241 n.30 (5th

Cir. 2016). Alabama’s partisan defense rests on the

untenable notion that states may avoid providing

remedies for adjudicated § 2 violations if doing so

would reduce the dominant racial group’s political

power. Neither § 2 nor the Constitution condone such

an outcome. See infra II.E.

II.

Section 2 is constitutional.

Re-costuming arguments that this Court rejected

in Allen, Alabama argues that § 2 itself is unconstitutional. But as this Court held just two years ago, § 2

is a valid exercise of Congress’s enforcement power

under the Fourteenth and Fifteenth Amendments. Allen, 599 U.S. at 41. Section 2’s test is meticulously designed to identify and remedy only current, proven instances of racial discrimination. And the Court need

21

look no further than Alabama’s unrelenting efforts to

avoid a second Black opportunity district here to confirm that § 2’s protections have not outlived their purpose. Even so, the Gingles/Allen test builds in a clear

sunset for § 2. 3

A.

Section 2 enforces the Fourteenth and Fifteenth Amendments.

Section 2 falls well within Congress’s authority to

enforce the Fourteenth and Fifteenth Amendments,

which were designed to provide members of minority

racial groups equal access to the political process by

prohibiting discrimination. See Oregon v. Mitchell,

400 U.S. 112, 127 (1970). Congress’s power to enforce

these amendments by “appropriate” legislation is explicit from the constitutional text, U.S. Const. amend.

XIV, § 5; id. amend. XV, § 2, and that power is broad.

3 Alabama’s cursory challenge to § 2’s private right of action is

foreclosed by Morse v. Republican Party of Virginia, 517 U.S.

186, 232 (1996), as explained by the District Court below,

App.439, and courts across the country, see, e.g., Robinson v. Ardoin, 86 F.4th 574, 587-88 (5th Cir. 2023); Mixon v. Ohio, 193

F.3d 389, 406 (6th Cir. 1999); Ala. State Conf. NAACP v. Alabama, 949 F.3d 647, 649 (11th Cir. 2020), vacated on other

grounds sub nom. Alabama v. Ala. State Conf. NAACP, 141 S.

Ct. 2618 (2021). Alabama relies exclusively on two Eighth Circuit

decisions, Pet.26, one of which has been stayed by this Court,

Turtle Mountain Band of Chippewa Indians v. Howe, 145 S. Ct.

2876, 2877 (2025), and the second which did not reach any conclusions about private litigants’ ability to bring § 2 claims, Ark.

State Conf. NAACP v. Ark. Bd. of Apportionment, 86 F.4th 1204,

1209 (8th Cir. 2023) (“It is unclear whether § 2 creates an individual right.”).

22

Congress’s enforcement of the Fifteenth Amendment—which guarantees that the right of citizens to

vote shall not be denied or abridged “by any State on

account of race,” U.S. Const. amend. XV, § 1—need

only provide a “rational means [of] effectuat[ing]” the

Amendment. Katzenbach, 383 U.S. at 324; see City of

Rome v. United States, 446 U.S. 156, 177 (1980);

Shelby County, 570 U.S. at 550-51. In Allen, the Court

affirmed that “[t]he VRA’s ‘ban on electoral changes

that are discriminatory in effect’ … ‘is an appropriate

method of promoting the purposes of the Fifteenth

Amendment.’” Id. (citing City of Rome, 446 U.S. at

177). 4

In amending § 2 in 1982, Congress eliminated the

“inordinately difficult” evidentiary burden to demonstrate intentional discrimination. Gingles, 478 U.S. at

44 (quoting S. Rep. at 36). But even without an intent

requirement, § 2 plaintiffs must prove the existence of

circumstances where minority voters have “less opportunity than d[o] other residents” to “participate in

the political processes and to elect legislators of their

choice.” White v. Regester, 412 U.S. 755, 766 (1973).

By requiring plaintiffs to prove pervasive racially polarized voting, contemporary effects of discrimination,

4 As scholars have recently reiterated, there is no originalist ba-

sis for importing into the Fifteenth Amendment the “congruent

and proportional” test applied to statutes enforcing the Fourteenth Amendment. See Lori Ringhand & Zach Poppe, Congruence & Proportionality as a Const’l Construction, UNIV. OF GA.

SCH. OF L. LEGAL STUD. RSCH. PAPER FORTHCOMING (Sep. 2,

2025),

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5418455.

23

barriers to minority-candidate success, and other factors indicative of racially exclusionary political systems, § 2 remains closely tethered to the constitutional prohibitions it enforces. See Rogers v. Lodge,

458 U.S. 613, 623 (1982) (recognizing § 2’s focus on

“evidence of bloc voting along racial lines” and a lack

of minority success “bear[s] heavily on the issue of

purposeful discrimination”). And precisely because

“discriminators may go to great lengths to hide and

perpetuate their unlawful conduct,” Students for Fair

Admissions, Inc. v. President & Fellows of Harvard

Coll. (“SFFA”), 600 U.S. 181, 257 (2023) (Thomas, J.,

concurring), § 2’s results-centric approach to identifying circumstantial evidence of intentional discrimination is perfectly constitutional.

B.

Section 2 remedies instances of likely intentional discrimination.

Alabama contrives a tension between the Constitution and statute by interpreting § 2 to arbitrarily

require race-based districting. Pet.16-18, 20. But § 2

does no such thing—it operates only where a specific

race-based harm has been demonstrated, constrains

remedies to actual, ongoing discrimination in political

structures, and forecloses relief in contexts where the

districting is genuinely race-neutral. In other words,

§ 2 targets likely instances of intentional discrimination.

Consider again the many elements that § 2 plaintiffs must prove to establish a violation, each of which

corroborates a finding that districting in a jurisdiction

is already race-based. First, the “minority group must

be sufficiently large and geographically compact to

24

constitute a majority in a reasonably configured district” that the mapdrawer chose not to create. Allen,

599 at 18. In other words, there must be substantial

residential segregation (alarm bell number one of a

racialized social context) where the minority population was cracked or packed by district lines (alarm bell

number two).

“Second, the minority group must be able to show

that it is politically cohesive,” and “[t]hird, … that the

white majority votes sufficiently as a bloc to enable it

... usually to defeat the minority’s preferred candidate.” Gingles, 478 U.S. at 51. In other words, voters

in the jurisdiction must consistently vote along racial

lines in opposition to one another (alarm bell number

three), resulting in the systematic defeat of the minority group’s preferences (alarm bell number four). In a

context that is not defined by race, policy needs will

not be tightly intertwined with race.

When a siloed minority converges on the same political pleas, and no amount of organizing can obtain

any traction in translating those pleas into policy because lawmakers have cracked or packed the minority

group within districts so that their efforts are reflexively rejected by the dominant group, the racial strife

is manifest. See Sanchez v. Colorado, 97 F.3d 1303,

1310 (10th Cir. 1996) (recognizing the presence of the

Gingles preconditions “creates the inference the challenged practice is discriminatory”).

Even still, § 2 requires more. After establishing

each of the Gingles preconditions, § 2 plaintiffs must

ring further alarm bells by showing that the totality

of circumstances reveals that political processes “are

25

not equally open to participation by members of” the

minority group. 52 U.S.C. § 10301(b). Again, each of

the factors considered provides indicia of a racialized

political system. Gingles, 478 U.S. at 44-45. Only after

§ 2 plaintiffs adduce this gauntlet of evidence does liability attach.

Contrary to Alabama’s contention, Pet.25, § 2 evaluation of racial discrimination does not cause racial

discrimination. Just as a thermometer does not create

or raise a fever—it simply reflects its presence, S. Rep.

at 34—§ 2’s evidentiary test is calibrated to identify

intensely racialized politics that are already present.

Schuette v. BAMN, 572 U.S. 291, 331 (2014) (Scalia,

J., concurring). Likewise, race-conscious correction of

a race-based harm is not the same thing as race-based

infliction of that harm. “Section 2 litigation perpetuates a fixation on race,” Pet.25, only in the way that

cancer detection tools prolong the use of chemotherapy—as a means to a cure.

Nor does § 2 require race-based remedies: This

case proves that § 2 remedies need not consider race

at all. The District Court’s remedial plan was drawn

entirely race-blind, without any “racial demographic

data,” considering only traditional redistricting principles “such as preserving the Black Belt community

of interest, restoring counties that had been split, and

preserving precincts and municipalities to the extent

possible.” App.17. The Court’s precedent also guards

against the excessive use of race in remedial districts

by ensuring illustrative districts are reasonably configured and adhere to traditional redistricting princi-

26

ples. Allen, 599 U.S. at 21; see id. at 43 & n.2 (Kavanaugh, J., concurring). In other words, Gingles 1 itself prevents any constitutionally suspect use of race.

Finally, the Court’s racial gerrymandering precedents

serve as a backstop, preventing any excessive use of

race that is not otherwise justified by § 2. See id. at

27-28 (citing Shaw, 509 U.S. at 630, Miller v. Johnson,

515 U.S. 900 (1995), and Bush v. Vera, 517 U.S. 952

(1996)).

When a § 2 violation has been proven—that is,

when the inference of racial discrimination has been

strongly corroborated by extensive evidence—courts

have two options. They can either 1) tolerate the discrimination by doing nothing, or 2) require a new

map. The first option would not be neutral as to discrimination—it would affirmatively permit, facilitate,

and aggravate discrimination. The second option accomplishes the opposite—the remedy excises proven

discrimination. For this reason, Alabama’s argument

that § 2 uses race as a negative, Pet.22-23, is wrong.

Section 2 does not give any “race-based preference[s],”

Pet.22—let alone guarantee electoral victories—it

merely eliminates identified race discrimination, so

minority voters have the same opportunity to “pull,

haul, and trade to find common political ground” as

majority-group voters. Johnson v. De Grandy, 512

U.S. 997, 1020 (1994).

C.

The Court’s § 2 and race-based admissions

jurisprudence are fundamentally different.

Because § 2 is a congressional enactment that targets proven discrimination, Alabama’s attempt to

27

cram § 2 in an ill-fitting SFFA box fails. Pet.16-25.

Section 2 is a remedial statute passed under Congress’s express authority under the Reconstruction

Amendments to address ongoing instances of discrimination. Supra II.A. The admissions programs at issue

in SFFA involved universities conducting race-conscious admissions, absent any specific finding of discrimination, in perpetuity.

None of the Court’s reasoning in SFFA applies to

§ 2. The Court rejected interests—such as “training

future leaders,” “better educating [] students through

diversity,” and “fostering innovation”—that the universities offered in defense of race-conscious admissions programs as “not sufficiently coherent for purposes of strict scrutiny.” SFFA, 600 U.S. at 214. It

found the universities’ “racial categories” simultaneously “arbitrary,” “overbroad,” “underinclusive,” and

“opaque.” Id. at 217-18. It was persuaded by evidence

that universities used race to stereotype. Id. at 220.

And it emphasized the universities’ concession that

there was no conceivable circumstance whereby their

system of racial preferences would no longer be necessary. Id. at 220-25.

Section 2 differs in every respect. First, this Court

has found interests in remedying unlawful vote dilution to be concrete and compelling. See Allen, 599 U.S.

at 41 (“[W]e are not persuaded by Alabama’s arguments that [Section] 2 as interpreted in Gingles exceeds the remedial authority of Congress.”). Second,

Black Alabamians plainly comprise a discrete racial

minority. See App.331. Third, § 2 never stereotypes

28

voters or makes “assumption[s]” regarding their electoral viewpoints, SFFA, 600 U.S. at 219-20, instead

requiring proof of minority and majority voting preferences. Allen, 599 U.S. at 18. Fourth, § 2’s test is designed to cease operation as discrimination in voting

subsides. Infra II.F.

This Court reiterated in SFFA that “race-based

government action” is permissible to “remediat[e] specific, identified instances of past discrimination that

violated the Constitution or a statute.” 600 U.S. at 207

(emphasis added) (citing redistricting example); id. at

317 (Kavanaugh, J. concurring) (“Federal and state

civil rights laws serve to deter and provide remedies

for current acts of racial discrimination.”). That is,

SFFA expressly endorses requiring states to remedy

“specific,” proven instances of discriminatory vote dilution in a map “that violated” § 2—precisely what

Plaintiffs proved here—by enacting a new map that

corrects racial discrimination. Id. at 207.

D.

Section 2 is clear.

As the Court affirmed just two years ago, there is

nothing “amorphous” about § 2, the vote dilution injury that gives rise to a violation, or the test for identifying unlawful electoral schemes. Pet.18-19. “‘The

essence of a § 2 claim,’ the Court explained, ‘is that a

certain electoral law, practice, or structure interacts

with social and historical conditions to cause an inequality in the opportunities enjoyed by black and

white voters.’” Allen, 599 U.S. at 17-18 (citing Gingles,

478 U.S. at 47).

29

Courts are well equipped to adjudicate these

claims, and few legal tests are as clear as the Gingles

inquiry. Each precondition is based on objective measurements of quantifiable data about where people live

and how they tend to vote, providing bright-line

benchmarks to determine § 2 liability. Cf. Bartlett v.

Strickland, 556 U.S. 1, 18 (2009) (recognizing Gingles

“provides straightforward guidance to courts and to

those officials charged with drawing district lines to

comply with § 2”). The totality, while requiring a

“searching practical evaluation,” is far from imprecise.

Gingles, 478 U.S. at 79. It examines specific factors,

each designed to ferret out racialized political systems. White, 412 U.S. at 767-70. Like the preconditions, several of the factors are numeric and measurable: the extent of racially polarized voting, whether

members of the minority group have been elected to

office, and whether members of the minority group

bear the effects of past discrimination that hinders

their ability to participate politically. Other factors

are qualitative, but no less concrete, including the existence of official instances of racial discrimination

and racial campaign appeals. Still others resemble familiar constitutional tests like the tenuousness between the challenged law and the government’s justification.

Alabama does not seriously dispute the District

Court’s totality finding here. Supra § I.C. It instead

argues that the totality of circumstances test is inherently flawed because a different district court, on a different factual record, considering a challenge to different maps, in a different decade, rejected a § 2 claim for

Alabama’s state legislative elections. Pet.19-20 (citing

30

Ala. Legis. Black Caucus v. Alabama (“ALBC”), 989 F.

Supp. 2d 1227 (M.D. Ala. 2013)). But in ALBC, the

district court held the totality of the circumstances did

not support a § 2 violation in large part because Black

voters were able to elect their preferred candidates to

the state legislature in majority-Black districts in proportion to Alabama’s Black voting age population.

ALBC, 989 F. Supp. 2d at 1286 (citing De Grandy, 512

U.S. at 1020). And while § 2 disclaims any right to proportional representation, proportionality can nevertheless act as a shield from liability because it “is obviously an indication that minority voters have an

equal opportunity, in spite of racial polarization ‘to

participate in the political process and to elect representatives of their choice.’” Id. at 1287 (citing De

Grandy, 512 U.S. at 1020).

The ALBC case therefore only underscores that the

Gingles/Allen intensely local appraisal, as set forth in

the District Court’s 50 pages of careful and extensive

totality findings, distinguishes between instances

where unlawful dilution is and is not occurring. See

Allen, 599 U.S. at 19 (quoting Gingles, 478 U.S. at 79)

(“[T]he totality of the circumstances inquiry ... is ‘peculiarly dependent upon the facts of each case.’”). Absent a strong evidentiary basis like the one here,

courts will not rubberstamp a § 2 claim based on “bare

disparities.” Pet.20.

E.

The Court should not remake Gingles 1.

The Court should not adopt the United States’ suggestion that Plaintiffs at Gingles 1 should be required

to provide a map that meets a jurisdiction’s partisan

goals. Suppl. Br. for United States at 25, Louisiana v.

31

Callais, Nos. 24-109, 24-110 (U.S. Sep. 24, 2025). The

United States’ test essentially imports Alexander’s racial gerrymandering alternative-map requirement

into Gingles, conflating these “analytically distinct”

claims, Alexander v. S.C. State Conf. NAACP, 602

U.S. 1, 38 (2024), and nullifying Congress’s express

purpose in enacting the 1982 amendments.

Adding a partisan-matching requirement to Gingles 1 effectively reinstates the intent test Congress

“repudiated” in amending § 2, “ask[ing] the wrong

question” by focusing on motives rather than impact

on minority electoral opportunity. Gingles, 478 U.S. at

44 (quoting S. Rep. at 36). The dangers of requiring

plaintiffs to adhere to a state’s purportedly race neutral goal of partisanship are well illustrated by the

“race-neutral” justifications Alabama offered for its

dilutive maps here—core retention and inviolability of

one majority-White community. Accepting either of

Alabama’s non-racial redistricting goals, like adding a

partisan safe harbor, allows jurisdictions to hide behind those facially neutral justifications for racially

dilutive practices, just as they have done throughout

history. See, e.g., Rogers, 458 U.S. at 613 (invalidating

“racially neutral” but discriminatory at-large election

system); LULAC v. Perry, 548 U.S. 399, 440 (2006) (rejecting incumbent protection as justification for discriminatory redistricting). Congress did not intend for

§ 2 to be so easily thwarted: “[T]he need for” § 2’s “‘totality’ review springs from the demonstrated ingenuity of state and local governments in hobbling minority voting power, a point recognized by Congress when

it amended the statute in 1982.” De Grandy, 512 U.S.

at 1018 (citation omitted).

32

More fundamentally, § 2 claims are definitionally

aimed at correcting the racial majority’s attempts to

entrench its political power at the expense of minority

political representation. Where voting is deeply polarized along racial lines, as in Alabama, providing a racial minority group with an equal opportunity to elect

their preferred candidates will necessarily result in

the possibility of change to the partisan composition

of the challenged plan. That is a feature, not a bug, of

§ 2—the partisan change reflects the restoration of

minority political power. It is precisely where minority voters are shut out by the White majority’s political preferences that § 2 is meant to operate. Adding a

partisan-matching requirement would nonsensically

pit Gingles 1 against itself and Gingles 2 and 3—anywhere minority and White voters are politically segregated along racial lines, resulting in the defeat of minority-preferred candidates (Gingles 2 and 3), the minority group would be unable to produce a Gingles 1

map that both preserves the partisan goals of the ruling White majority and “performs” for them. Abbott v.

Perez, 585 U.S. 579, 618-19 (2018).

Ultimately, the United States’ test would force

Black voters to forfeit § 2’s protections because they

mobilize to pursue unique goals and interests under a

common party banner. The purpose of a political party

is for people who vote alike to come together to advance their shared goals. See, e.g., Gingles, 478 U.S.

at 56 (examining whether Black voters are “politically

cohesive”). Where partisan alignment is so tightly organized on racial lines around racialized issues, the

majority party’s discrimination against the minority

33

party to entrench its own political power is racial discrimination. Cf. N.C. State Conf. of NAACP v.

McCrory, 831 F.3d 204, 222-23 (4th Cir. 2016)

(“[I]ntentionally targeting a particular race’s access to

the franchise because its members vote for a particular party, in a predictable manner, constitutes discriminatory purpose.”).

F.

Section 2’s protections have not expired.

The Court need look no further than the District

Court’s finding of intentional discrimination in this

very case to see that § 2 remains necessary. The Legislature’s effort to “intentionally checkmate any remedial order designed to require a second opportunity

district,” App.504, makes abundantly clear that § 2 remains both necessary and effective in smoking out invidiously discriminatory electoral structures. Section

2 is thus working just as Congress intended: to eliminate “discriminatory election systems or practices

which operate, designedly or otherwise, to minimize

or cancel out the voting strength and political effectiveness of minority groups.” S. Rep. at 28.

Despite proven racial discrimination in its redistricting map, Alabama says the Court should abandon

its duty to remedy that invidious discrimination because some time has passed since Congress amended

§ 2. But when Congress exercises its constitutional authority to proscribe unlawful conduct—as it did in enacting § 2, Allen, 599 U.S. at 41—that conduct remains unlawful until the political process produces a

contrary policy judgment through amendment or repeal. Ry. Emps.’ Dep’t v. Hanson, 351 U.S. 225, 234

(1956) (“Congress, acting within its constitutional

34

powers, has the final say on policy issues … The task

of the judiciary ends once it appears that the legislative measure adopted is relevant or appropriate to the

constitutional power which Congress exercises.”). Indeed, this Court’s interpretation of § 2 in Gingles and

Allen enjoys “enhanced” stare decisis protection. Kimble v. Marvel Ent., LLC, 576 U.S. 446, 456 (2015); see

Allen, 599 U.S. at 42 (Kavanaugh, J., concurring); id.

(rejecting Alabama’s argument “that the Court should

overrule Gingles” in part because statutory stare decisis “is comparatively strict” and “[i]n the past 37

years [] Congress and the President have not disturbed Gingles, even as they have made other changes

to the Voting Rights Act”). The decision whether § 2

has served its purpose and that the country no longer

requires a “permanent, nationwide ban on discrimination in voting,” Shelby County, 570 U.S. at 557, is appropriately left to Congress.

Even so, § 2 will not operate in perpetuity, as Alabama prophesizes. Pet.23. Section 2’s functional expiration date for vote-dilution claims, as Allen explained, is built directly into the Gingles/Allen test:

Precisely because plaintiffs must prove that minority

groups are geographically compact, their task will

grow increasingly difficult “as residential segregation

decreases—as it has ‘sharply’ done since the 1970s.”

Allen, 599 U.S. at 28-29 (quoting T. Crum, Reconstructing Racially Polarized Voting, 70 DUKE L. J. 261,

279 (2020)) (recognizing Ҥ 2 litigation in recent years

has rarely been successful for just that reason”). The

same is true for the other corroborating evidence that

plaintiffs must produce. As voting becomes less ra-

35

cially polarized and evidence of voting-related discrimination recedes in the rearview mirror, § 2 claims

will grow ever-more-difficult to prove. The § 2 inquiry

thus inherently dispels SFFA’s concerns of indefiniteness. Pet.23. 5

If, however, the Court is inclined to put a clock on

the life left in Congress’s landmark enactment, the

timing should provide sufficient notice for state and

local governments to evaluate and achieve within

their borders § 2’s purpose of equal opportunity, such

that the majority can no longer maintain power

through racial division or exclusion. Any timeline

must also align with the traditional redistricting cycle. Redistricting is a decennial task, and hewing to

that schedule serves principles of equity, reliance, and

judicial minimalism. A mid-decade change in the

rules would potentially upset settled expectations

about a districting map’s applicability, penalize states

that legislated in good faith to follow then-existing

law, impose new burdens on states to revisit their

maps mid-cycle, and interpose courts in a politicized

morass with legislators and litigants in every state

racing against varying state-specific election deadlines. Because all states must redistrict anew after the

5 Though Alabama notes that there have been a handful more

successful § 2 cases in the current redistricting cycle as compared

to the last, Pet.17 & n.4, that is the obvious result of the demise

of Section 5. See Ellen D. Katz, et al., The Evolution of Section 2:

Numbers and Trends, UNIV. MICH. L. SCH. VOTING RIGHTS INITIATIVE (2025), https://voting.law.umich.edu/findings. And in any

event, that courts continue to find violations demonstrates § 2’s

continued necessity, not its obsolescence.

36

publication of decennial census results, any new regime should go into effect then.

In all events, the Court should tread lightly before

signaling the end of § 2, as history tells us jurisdictions will be quick to jostle power away from minority

voters, decimate minority representation—in Congress, state legislatures, city councils, and school

boards—and roll back minority voting strength to the

dismal levels that demanded enactment of the Voting

Rights Act in the first place. See Brnovich v. DNC, 594

U.S. 647, 698 (2021) (Kagan, J., dissenting) (detailing

the discriminatory voting legislation passed in the immediate aftermath of Shelby County by several states

and local governments, including Alabama); Br. of

Amici Curiae Professors Chen, Elemendorf, Stephanopoulos, & Warshaw at 27, Merrill v. Milligan, Nos.

21-1086, 21-1087 (U.S. July 18, 2022) (“The empirical

literature is thus unanimous about the impact of

[weakening § 2]: It would enable most states to substantially reduce their numbers of minority opportunity districts.”). Where § 2 has guarded against “the

demonstrated ingenuity of state and local governments in hobbling minority voting power” for half a

century, an erosion of § 2’s barriers will usher in a new

wave of both “over[t]” and more “sophisticated devices

to dilute minority voting strength.” De Grandy, 512

U.S. at 1018 (quotations omitted).

CONCLUSION

The Court should deny the Petition for Certiorari

before Judgment and summarily affirm the district

court’s order in Milligan and Singleton. If the Court

does not summarily affirm Milligan and Singleton, it

37

should grant the Petition in Caster so the cases can be

heard together.

Respectfully submitted,

LALITHA D. MADDURI

JACOB D. SHELLY

RICHARD A. MEDINA

QIZHOU GE

ELIAS LAW GROUP LLP

250 Massachusetts Ave. NW

Suite 400

Washington, DC 20001

(202) 968-4490

Counsel for Respondents

October 20, 2025

ABHA KHANNA

Counsel of Record

ELIAS LAW GROUP LLP

1700 Seventh Ave

Suite 2100

Seattle, Washington 98101

(206) 656-0177

AKhanna@elias.law