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

No. 25-243

Supreme Court of the United States

──────────────────────────

WES ALLEN, SEC’Y 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

──────────────────────────

REPLY BRIEF

Michael P. Taunton

Riley Kate Lancaster

BALCH & BINGHAM LLP

1901 Sixth Ave. N., Ste. 1500

Birmingham, AL 35203

Taylor A.R. Meehan

CONSOVOY MCCARTHY PLLC

1600 Wilson Blvd., Ste. 700

Arlington, VA 22209

Steve Marshall

Alabama Att’y Gen.

A. Barrett Bowdre

Solicitor General

Counsel of Record

Robert M. Overing

Dylan Mauldin

George Muirhead

James W. Davis

Misty Messick

Brenton M. Smith

Benjamin M. Seiss

OFFICE OF THE ATT’Y GEN.

501 Washington Ave.

Montgomery, AL 36130

(334) 242-7300

Barrett.Bowdre@

AlabamaAG.gov

i

TABLE OF CONTENTS

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

REPLY BRIEF.............................................................1

I. The District Court’s §2 Holding

Contravenes Allen by Ordering the State

to Sacrifice a Community of Interest to

Achieve a Racial Goal. ......................................3

II. Requiring Race-Based Districts Is Racial

Discrimination That Cannot Survive

Strict Scrutiny. .................................................5

A. Race-based redistricting lacks an

exact connection between means

and ends. ......................................................6

B. Race-based redistricting will not

end on its own or “any time soon.”..............8

C. Race-based

districts

do

not

remediate

specific,

identified

instances of past discrimination .................9

D. The Fifteenth Amendment does not

save race-based redistricting .................... 11

CONCLUSION .......................................................... 12

ii

TABLE OF AUTHORITIES

Cases

Abbott v. Perez,

585 U.S. 579 (2018) .............................................. 10

Adarand Constructors, Inc. v. Pena,

515 U.S. 200 (1995) .............................................. 12

Ala. NAACP v. Allen,

No. 2:21-cv-1531, 2025 WL 2451166

(N.D. Ala. Aug. 22, 2025) ................................... 7, 9

ALBC v. Alabama,

989 F.Supp.2d 1227 (M.D. Ala. 2013) ............... 6, 7

Alexander v. S.C. NAACP,

602 U.S. 1 (2024) .......................................... 2, 4, 10

Allen v. Milligan,

599 U.S. 1 (2023) ............................................ 1, 3, 7

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

580 U.S. 178 (2017) ................................................4

Bostock v. Clayton County,

590 U.S. 644 (2020) ................................................9

Cooper v. Harris,

581 U.S. 285 (2017) ................................................5

Grutter v. Bollinger,

539 U.S. 306 (2003) ................................................8

Johnson v. De Grandy,

512 U.S. 997 (1994) ................................................2

iii

LULAC v. Perry,

548 U.S. 399 (2006) ............................................ 2, 4

Merrill v. Milligan,

142 S.Ct. 879 (2022) ............................................... 6

Miller v. Johnson,

515 U.S. 900 (1995) ........................................ 10, 11

Oregon v. Mitchell,

400 U.S. 112 (1970) .............................................. 11

Rucho v. Common Cause,

588 U.S. 684 (2019) ............................................ 2, 7

SFFA v. Harvard,

600 U.S. 181 (2023) .......................... 2, 5, 6, 8, 9, 12

Shaw v. Reno,

509 U.S. 630 (1993) ........................................ 1, 2, 4

Shelby County v. Holder,

570 U.S. 529 (2013) .............................................. 11

Soto Palmer v. Hobbs,

686 F.Supp.3d 1213 (W.D. Wash. 2023).............. 10

South Carolina v. Katzenbach,

383 U.S. 301 (1966) .............................................. 11

Thornburg v. Gingles,

478 U.S. 30 (1986) ................................ 3, 4, 6, 7, 10

iv

Turtle Mountain Band of Chippewa Indians v. Howe,

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

(D.N.D. Nov. 17, 2023) ......................................... 10

Other Authorities

Br. of Alabama and 15 Other States,

Louisiana v. Callais,

No. 24-109 (U.S. Sept. 24, 2025)........................ 6-9

Br. of Project on Fair Representation,

Allen v. Milligan,

No. 25-274 (U.S. Oct. 9, 2025) ............................. 11

Motion to Affirm of Milligan Appellees,

Allen v. Milligan,

No. 25-274 (U.S. Oct. 20, 2025) ..................... 3, 4, 7

Reply Brief,

Allen v. Milligan,

No. 25-274 (U.S. Nov. 4, 2025) ............................ 11

Transcript of Oral Reargument,

Louisiana v. Callais,

No. 24-109 (U.S. Oct. 15, 2025) ......................... 2, 6

1

REPLY BRIEF

It’s “defiance,” Plaintiffs say, for a State to redistrict after being told in a preliminary-injunction posture that its prior districts “likely” violated §2, Allen

v. Milligan, 599 U.S. 1, 19 (2023). After Allen, Alabama went back to the drawing board rather than

head to trial on its 2021 Plan. The new map—the 2023

Plan—preserved both the Black Belt and Gulf Coast

regions in as few districts as possible. Ordering the

State to split the Gulf Coast for the first time in fifty

years, the district court required what §2 “never require[s]”: the “adoption of districts that violate traditional redistricting principles.” Id. at 30. Alabama’s

court-drawn congressional districts are now “unexplainable on grounds other than race.” Shaw v. Reno,

509 U.S. 630, 644 (1993).

The court below went far beyond Allen, such that

any districting “criterion [that] has the practical effect

of … precluding the creation of a second majorityBlack district” must give way, BIO.9, not only for purposes of Gingles-1 but to draw the actual congressional district lines that will govern 5 million

Alabamians. It is not enough to treat communities of

interest equally—as earlier iterations of this case had

suggested. App.937; Allen, 599 U.S. at 21. What “matters” now, Plaintiffs say, is the priority of drawing an

additional majority-minority district, or something

quite close. BIO.9-10; accord, e.g., App.329. That

comes first, and whatever the State’s actual race-neutral priorities, those must come second. Under that

version of §2, race is always the criterion that cannot

be compromised.

This Court must reverse, even assuming that race

could be used in districting in a way that would not

2

otherwise be allowed. Pet.10-12. But the Court should

question that assumption too. Alabama did not “contrive[] a tension” between §2 and the Fourteenth

Amendment. BIO.23. For decades, States have had

“good reason … to recognize that explicit race-based

districting embarks us on a most dangerous course.”

Johnson v. De Grandy, 512 U.S. 997, 1031 (1994)

(Kennedy, J., concurring). Officials recognize the dangers, but they have no way to navigate them. Try to

satisfy courts with a race-based map; get enjoined. Try

to satisfy courts with a race-neutral map; get

enjoined. Alabama and Louisiana took two different

paths and ended up in the same place. Callais v. Louisiana, No. 24-109 (U.S.).

If erring on the side of declining to discriminate is

now deemed racial discrimination, Pet.27-35, a State

can never decide that enough is enough. That holding

is proof positive that §2 is not “ridding our electoral

process of race,” Callais.Rearg.Tr.41, but prolonging

“fixat[ion]” on it, LULAC v. Perry, 548 U.S. 399, 434

(2006); see also De Grandy, 512 U.S. at 1030 (Kennedy, J., concurring); Shaw, 509 U.S. at 657. As long

as the judiciary is balancing a “fair share of political

power” among racial groups, cf. Rucho v. Common

Cause, 588 U.S. 684, 709 (2019), courts will be treated

as “weapons of political warfare,” Alexander v. S.C.

NAACP, 602 U.S. 1, 11 (2024). “That is a feature, not

a bug, of § 2.” BIO.32. It cannot go on forever. SFFA v.

Harvard, 600 U.S. 181, 221-26 (2023).

3

I.

The

District

Court’s

§2

Holding

Contravenes Allen by Ordering the State to

Sacrifice a Community of Interest to

Achieve a Racial Goal.

A. After the 2023 Plan united the Black Belt in two

districts—the smallest number possible—Plaintiffs

cannot complain about the “dispersal” of a community

of interest, but only of Black voters. BIO.9-10. That

can be cured only with a new race-based district combining the “overwhelmingly rural, agrarian” Black

Belt community (Milligan.Mot.12) with “Black Mobile” in the Gulf (App.708)—indisputably not part of

the Black Belt and 250 miles from the Black Belt’s

eastern edge.

All along, Alabama has disputed that §2 can constitutionally require such a thing. Contra BIO.6. This

case obviously does not involve a “compact” and “siloed minority” population, contra BIO.6, 24, so the

district court asked the wrong question: How many of

the eighteen “Black Belt counties,” spanning the

width of Alabama, could be placed “in a majorityBlack district”? App.345. This approach erroneously

treats “the minority population” itself as the community when the Black Belt is “a ‘historical feature’ of the

State, not a demographic one,” and must be “treated

… as a community of interest for [that] reason.” Allen,

599 U.S. at 32 n.5 (plurality). Thus, the notion that

the 2023 Plan limited “Black voting strength”

(BIO.10) could be the conclusion of a successful §2

challenge, but not the beginning proof of it. That

would be circular.

4

Even if Gingles-1 maps can join together “farflung

segments of a racial group,” contra LULAC, 548 U.S.

at 433, race cannot predominate in the actual districts

to govern Alabama without satisfying strict scrutiny.

Now at the end of this case, a district court has concluded that Alabama’s only means of complying with

§2 was a race-first district combining “Black Mobile”

with black voters from a separate community of interest 250 miles away. App.708. That remedy uses race

“explicit[ly]” by demanding the State place more

Black Belt counties in a race-based district. Shaw, 509

U.S. at 642. And, as the district court observed, “all

paths” to another majority-black district “require[]

splitting” white voters from black voters in the Gulf

Coast. App.7, 531. Admitting that no §2-compliant

map “achieve[s] all the political goals” of the 2023

Plan, App.514; see App.492, the court “subordinated”

neutral criteria to race, Alexander, 602 U.S. at 7.

B. The rejoinder that the court-drawn districts did

not consider race “at all,” was “race-blind,” BIO.25, or

even lacked “awareness of race,” Milligan.Mot.21, is

preposterous. The court ordered a “district[] in which

Black voters either comprise a voting-age majority or

something quite close to it.” App.13. It insisted that

CD2 have enough black voters that a Democrat would

likely win. E.g., Milligan, DE311:3, 41. These are

“racial targets.” Contra Milligan.Mot.23-24.

We know that “race-neutral considerations ‘came

into play only after the race-based decision had been

made,’” Bethune-Hill v. Va. State Bd. of Elections, 580

U.S. 178, 189 (2017), because the court treated Alabama’s “redistricting principle[s]” as “[]negotiable,”

App.329. Traditional criteria were to be “consider[ed]”

by the special master, Milligan, DE273:9, but only “to

the extent reasonably practicable,” id. at 8.

5

Traditional principles could be compromised; racial

targets could not. See App.329 (no “non-negotiable”

principles); App.514 (no “deference” to principle that

“entrenches vote dilution”); App.719 (communities of

interest not a “trump card”).

Drawing maps without displaying racial data, as

the special master says he did, does not erase racepredominance. Cf. Cooper v. Harris, 581 U.S. 285,

313-17 (2017).1 The court required that he remedy

“ineffective” “Black voting strength.” App.715; see Milligan, DE273:7. He “confirmed” he hit his target before presenting his plans. Milligan, DE295:36. His

plans sacrificed compactness, paired incumbents, and

split a major city, county, and community of interest.

Milligan, DE295:14, 17, 23, 25, 38; id. at 42 (acknowledging “‘need to split the Gulf Coast’” for “Black voting

strength”). The Fourteenth Amendment may not “be

so easily thwarted.” BIO.31.

II.

Requiring Race-Based Districts is Racial

Discrimination That Cannot Survive Strict

Scrutiny.

The district court addressed the State’s constitutional argument in just three pages, did not cite

SFFA, and refused to apply strict scrutiny. App.45456. Bereft of any serious analysis of the Equal

1 The special master already had a roadmap: “split the Gulf

Coast,” App.715, “split Mobile County,” App.947, and connect

Mobile’s urban core with Montgomery and Black Belt counties on

the Georgia border, id.; see Milligan, DE295:13 (special master

had “the eleven illustrative plans”). Small wonder he “grouped

together the same” farflung populations as Plaintiffs had. BIO.6.

Alabama stipulated, contra BIO.14, only that his report states

that he did not “display racial demographic data … while drawing.” Milligan, DE436:22.

6

Protection Clause, its judgment must be reversed. See

Pet.16-25; Br. of Alabama and 15 States, Louisiana v.

Callais, No. 24-109 (U.S. Sept. 24, 2025).

A.

Race-based redistricting lacks an exact

connection between means and ends.

No one really thinks that “few legal tests are as

clear as the Gingles inquiry.” BIO.29. The law of vote

dilution “is notoriously unclear.” Merrill v. Milligan,

142 S.Ct. 879, 881 (2022) (Kavanaugh, J., concurring).

Even after forty years, there remains “considerable

disagreement and uncertainty” about the “nature” of

vote dilution. Id. at 883 (Roberts, C.J., dissenting).

The “essence of a §2 claim” is easy to recite (BIO.28)

but hard to explain. See, e.g., Callais.Rearg.Tr.14

(when “race is playing a role to contaminate” democracy), 17 (when “race is playing an outsized role”), 37

(when maps “use race in excessive fashion”). If no one

can articulate the very “concept of injury,” then this

area of law is not safe enough for courts to wield the

“dangerous” tool of racial sorting. SFFA, 600 U.S. at

209, 212; see Ala.Callais.Br.6-9 & nn.1-4.

The assurance that some features of the test are

“numeric and measurable” (BIO.29) rings particularly

hollow here, where the district court rejected as “too

formulaic” Alabama’s attempt to disprove the “lasting

effects of official discrimination” with statistical proof

of “racial parity in rates of voter registration and turnout.” App.411. What was “overwhelming evidence” of

political equality last cycle, ALBC v. Alabama, 989

F.Supp.2d 1227, 1287 (M.D. Ala. 2013) (W. Pryor, J.),

was hardly considered in 2025. Deferring to memories

of segregation, the district court refused to credit evidence of equality today because it would somehow give

7

“punitive effect to the political participation of Black

Alabamians.” App.403.

Plaintiffs try to distinguish ALBC for having relied

in part on racially proportional representation in the

State Senate, which they admit “obviously” indicates

“that minority voters have an equal opportunity.”

BIO.30. It’s hard to see how Alabama’s state elections

could be obviously fair, yet its federal elections so

plagued by racism that this case was “not a close call.”

BIO.4. And in any event, Alabama’s Senate map, featuring the same proportion of majority-black districts

as in ALBC, was recently enjoined. Ala. NAACP v.

Allen, No. 2:21-cv-1531, 2025 WL 2451166 (N.D. Ala.

Aug. 22, 2025), stay denied, DE51-2, No. 25-13007

(11th Cir. Oct. 30, 2025) (not likely to succeed despite

“high registration rates” and no “obstacles to voting”).

Experience has proven that allotting a “fair share

of political power” among racial groups is not possible.

Cf. Rucho, 588 U.S. at 709. In the same breath that

Plaintiffs say that courts must “adhere to traditional

redistricting principles,” they add that “the denial of

[a race-based] district” “matters” more than “any

other criterion,” and that “non-racial redistricting

goals” can offer no “safe harbor.” BIO.10, 25-26, 31.

How, then, can §2 possibly “guard[] against the excessive use of race”? BIO.25.

As things stand, States cannot predict how courts

will apply the more “malleable” and “ethereal” districting principles, Milligan.Mot.27, especially when

they conflict with each other, see Ala.Callais.Br.11-14.

“Nothing in §2 provides an answer[.]” Cf. Allen, 599

U.S. at 35. Without a “reliable way to determine who

wins, or even where the finish line is,” id. at 37, §2’s

8

use of race is not narrowly tailored but “inescapably

imponderable,” SFFA, 600 U.S. at 215.

B.

Race-based redistricting will not end

on its own or “any time soon.”

The district court held that race-based redistricting could not be “render[ed] unconstitutional” by “the

mere passage of time,” App.454, but that’s not the argument. See Pet.23-25. Rather, time is “the acid test

of [the] justification” for using race. Grutter v. Bollinger, 539 U.S. 306, 343 (2003). If race-based districting had any “efficacy,” Plaintiffs would be able to say

when it will “no longer be necessary.” Id.

Under the current regime, States can never stop

using race. Each census restarts redistricting anew,

but that just guarantees a “periodic review” of how

States use (or do not use) race every decade in perpetuity, much like Harvard’s use of race every admissions cycle. SFFA, 600 U.S. at 225.

The theory that §2 will sunset on its own is

divorced from reality. See Ala.Callais.Br.19-25. According to district courts, if a 250-mile-wide majorityblack district can be drawn in Alabama (or Louisiana),

it must be drawn. As for the totality-of-circumstances

test, States can win repeatedly one cycle and lose in

the next, even with overlapping evidence. Pet.16-17.

Anything that has ever happened in the State is fair

game, and which facts courts will deem relevant is anyone’s guess. Ben Carson’s finish in the 2016 primary

was counted against Alabama in 2022. App.844. After

Alabama proved that Carson’s tally in Alabama was

one of his best in the country, App.281, Plaintiffs dug

up a CNN exit poll from two cycles prior, and the State

was faulted for President Obama’s unpopularity in

2007, App.389. Likewise, after Alabama proved that

9

it had the second-smallest racial gap in incarceration

in the nation, Tr.2203:24-25, the district court turned

to gaps in infant mortality, App.405. The test is ever

evolving, and the sun seems only to be rising. Contra

BIO.34-35 & n.5; see Ala.Callais.Br.7-8 & n.5.

Thus, States can make “substantial progress”

across every vector, App.455, without ever knowing

whether they have satisfied the test. That’s what

makes §2’s use of race unlike “chemotherapy,” which

is also toxic but has an end goal to “cure” a specific

illness. BIO.25. One more race-based district will not

end myriad “disparities … in the modern world.”

App.404-09. It will not stop candidates from making

politics about race, especially if it helps their party in

court, Ala. NAACP, 2025 WL 2451166 at *81; see

Ala.Callais.Br.29. Whatever §2 diagnoses, it will not

cure anything “any time soon.” SFFA, 600 U.S. at 225.

C.

Race-based districts do not remediate

specific, identified instances of past

discrimination.

1. Remedying “specific, identified instances of past

discrimination,” BIO.28, cannot be the constitutional

reason for §2’s indefinite use of race. For starters, a §2

violation is anything but “specific,” supra §II.A, and it

does not prove “discrimination.” Contra BIO.27-28.

Discrimination is treating someone “worse than others who are similarly situated.” Bostock v. Clayton

County, 590 U.S. 644, 657 (2020). But courts do not

ask §2 plaintiffs to prove that the State’s districting

plan makes them worse off than other voters—only

that they are less likely to vote for the winning candidate than they would be in an alternative districting

plan. That can be true for a host of race-neutral reasons, such as a legislature’s partisan goals, which

10

make plaintiffs differently “situated” from other voters. Simply calling the result “discrimination” does

not make it so. Cf. Miller v. Johnson, 515 U.S. 900,

922 (1995) (no “blind judicial deference”).

Nor does a §2 violation indicate “likely intentional

discrimination.” Contra BIO.23. States can violate

§2’s results test even when they are “intensely concerned with complying with the VRA.” Turtle Mountain v. Howe, No. 3:22-cv-22, 2023 WL 8004576, at *16

(D.N.D. Nov. 17, 2023). Or even when lines drawn by

a “bipartisan and independent commission reflected a

difficult balance of many competing factors and could

be justified in any number of rational, nondiscriminatory ways.” Soto Palmer v. Hobbs, 686 F.Supp.3d

1213, 1232 (W.D. Wash. 2023). By design, proving a

§2 violation does not begin to prove intentional discrimination. See Thornburg v. Gingles, 478 U.S. 30, 44

(1986); BIO.31. If an intent finding requires at least

“extraordinarily powerful” evidence, Alexander, 602

U.S. at 35, then “§2’s results-centric approach” is far

from “perfect[].” BIO.23.

2. Plaintiffs point to the discrimination holding in

the companion case as proof that §2 is “working just

as Congress intended.” BIO.33. But they cite zero evidence to support the erroneous finding of “animus,”

App.523, never confront the full presumption of good

faith under Alexander or Abbott, and still misunderstand the basic nature of a preliminary injunction, see

Pet.27-35. Alabama was not required to “take the L,”

Tr.2669, and enact a new race-predominant map. Indeed, after enforcement of the 2021 Plan was preliminarily enjoined, the State was not required to enact a

new map at all. Passing a better plan that it believed

had a “good shot” of winning (App.510) is “defiance”

(BIO.19) only if one thinks that a finding that an

11

earlier map “likely” violated §2 is equivalent to a final

judgment that any other map the Legislature may

draw actually violates §2. That is not how preliminary

injunctions work. Project on Fair Representation

Br.11-16, No. 25-274 (U.S. Oct. 9, 2025).

The district court wrongly discarded multiple raceneutral motives: constitutional concerns, the partisan

aim to save a Republican seat, and traditional districting principles. See Reply §II, Milligan (Nov. 4, 2025).

Plaintiffs fixate on the Gulf Coast, calling it “White,”

which is both inaccurate (its diversity is why they

want to carve it up) and irrelevant. Alabama proved

that the Gulf Coast is a community entitled to respect,

the district court agreed, and the 2023 Plan treats it

just the same as the Black Belt. Id.

D.

The Fifteenth Amendment does not

save race-based redistricting.

Congress may “enforce” the Fifteenth Amendment

with “appropriate legislation.” Plaintiffs claim that §2

is valid enforcement legislation as a “rational means”

to effectuate the Amendment. BIO.22. But Plaintiffs’

version of §2 cannot be deemed enforcement legislation when it conflicts with the constitutional provisions it purports to be enforcing—segregating “Black

Mobile” from the rest of the Gulf Coast community. As

the Court “recalled in Katzenbach itself, Congress’ exercise of its Fifteenth Amendment authority even

when otherwise proper still must ‘consist with the letter and spirit of the constitution.’” Miller, 515 U.S. at

927; see Shelby County v. Holder, 570 U.S. 529, 555

(2013). Congress does not use enforcement legislation

to “undercut” the Constitution’s “guarantees of personal equality and freedom from discrimination.” See

Oregon v. Mitchell, 400 U.S. 112, 128 (1970) (opinion

12

of Black, J.). Thus, “all racial classifications, imposed

by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under

strict scrutiny.” Adarand Constructors, Inc. v. Pena,

515 U.S. 200, 227 (1995). Because §2 as applied to redistricting requires States to sort citizens based on

race, it must “survive a daunting” standard of review.

SFFA, 600 U.S. at 206.

CONCLUSION

The Court should grant the petition and reverse.

Respectfully submitted,

Michael P. Taunton

Riley Kate Lancaster

BALCH & BINGHAM LLP

1901 Sixth Ave. N., Ste. 1500

Birmingham, AL 35203

Taylor A.R. Meehan

CONSOVOY MCCARTHY PLLC

1600 Wilson Blvd., Ste 700

Arlington, VA 22209

November 4, 2025

Steve Marshall

Attorney General

A. Barrett Bowdre

Solicitor General

Counsel of Record

Robert M. Overing

Dylan Mauldin

George Muirhead

James W. Davis

Misty Messick

Brenton M. Smith

Benjamin M. Seiss

STATE OF ALABAMA

OFFICE OF THE ATT’Y GEN.

501 Washington Ave.

Montgomery, AL 36130

(334) 242-7300

Barrett.Bowdre@

AlabamaAG.gov