Motion to affirm — Wes Allen, Alabama Secretary of State, et al., Appellants v. Bobby Singleton, et al.

No. 25-273

IN THE

Supreme Court of the United States

WES ALLEN, SEC’Y OF STATE, ET AL.,

Appellants,

v.

BOBBY SINGLETON, ET AL.,

Appellees.

On Appeal from the United States District Court

for the Northern District of Alabama

MOTION TO AFFIRM

J.S. “Chris” Christie

DENTONS SIROTE PC

2311 Highland Avenue South

Birmingham, AL 35205

Henry C. Quillen

WHATLEY KALLAS, LLP

159 Middle Street, Suite 2C

Portsmouth, NH 03801

James Uriah Blacksher

Counsel of Record

825 Linwood Road

Birmingham, AL 35222

(205) 612-3752

jublacksher@gmail.com

U.W. Clemon

U.W. CLEMON, LLC

2001 Park Place North,

Suite 1000

Birmingham, AL 35203

Additional Counsel Listed on Inside Cover

Myron Cordell Penn

PENN & SEABORN, LLC

1971 Berry Chase Place

Montgomery, AL 36117

Joe R. Whatley, Jr.

W. Tucker Brown

WHATLEY KALLAS, LLP

2001 Park Place North

1000 Park Place Tower

Birmingham, AL 35203

Diandra “Fu” Debrosse

Zimmermann

Eli Hare

DICELLO LEVITT LLP

505 20th Street North,

15th Floor

Birmingham, AL 35203

Counsel for Appellees

October 20, 2025

QUESTIONS PRESENTED

In 2022, a three-judge district court held that the

State’s congressional districting plan likely violated

Section 2 of the Voting Rights Act, enjoined its use,

and stated that a compliant plan must include two districts in which Black voters have an opportunity to

elect a representative of their choice. This Court affirmed. After remand, the Alabama Legislature enacted a new plan in 2023 that undisputedly does not

include two opportunity districts. Following an

eleven-day trial, the district court held that the Legislature’s 2023 plan violated Section 2 and permanently

enjoined its use. The questions presented are:

1. Did the district court clearly err in its factual

findings that the Legislature’s 2023 plan had both the

effect and intent of diluting Black votes?

2. If the district court’s factual findings were not

clearly erroneous, did it correctly determine that the

Legislature’s 2023 plan violates Section 2 of the

Voting Rights Act?

(i)

TABLE OF CONTENTS

QUESTIONS PRESENTED ...................................... (i)

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

STATEMENT OF THE CASE.................................... 3

ARGUMENT ............................................................... 9

I.

The Appellants’ First, Second, and Fourth

Questions Are Not Presented Because

Neither Section 2, nor the Fourteenth

Amendment, nor the District Court Required

the State to Segregate Voters by Race

or Create a Majority-Minority District ........... 9

A.

B.

The District Court Correctly Applied

Established Law..................................... 10

1.

The District Court Followed

Gingles, Milligan, and Other

Precedent........................................ 11

2.

The State Has Not Shown That the

District Court’s Factual Findings

Were Clearly Erroneous ................ 14

3.

A State Cannot Insulate a Plan

from Scrutiny with “Non-Negotiable”

Redistricting Principles ................. 15

The District Court’s Remedial Plan

Proves that the State Could Have

Complied with the Injunction Without

Segregating Voters by Race or Creating

a Majority-Minority District .................. 18

(ii)

C.

The State Never Tried to Prove That

Complying with Section 2 Requires

Dividing the Gulf Coast ......................... 20

D.

The State Violated the Fourteenth

Amendment Because It Intentionally

Diluted Black Votes, Not Because It

“Declined to Draw a Race-Based Plan” . 24

II. This Court Should Affirm on the Third

Question Because Section 2 Contains a

Well-Established Private Right of Action ..... 25

CONCLUSION.......................................................... 26

(iii)

TABLE OF AUTHORITIES

Cases

Allen v. Milligan,

599 U.S. 1 (2023) ...1, 4, 5, 10, 11, 14, 15, 16, 23

Bartlett v. Strickland,

556 U.S. 1 (2009) ............................................ 11

Cooper v. Harris,

581 U.S. 285 (2017) .................................. 13, 14

League of United Latin Am. Citizens v. Perry,

548 U.S. 399 (2006) ........................................ 23

Thornburg v. Gingles,

478 U.S. 30 (1986) ...1, 2, 4, 8, 10, 11, 12, 15, 16

(iv)

1

INTRODUCTION

To avoid this Court’s 2023 opinion in this same

case, the State’s jurisdictional statement attacks an

opinion the district court never wrote. To hear the

State tell it, the district court demanded that the Legislature segregate Alabamians by race, and punished

the State for refusing to do so. In fact, the district

court enjoined the Legislature’s 2023 plan because of

its willful refusal to provide an opportunity for Black

voters to elect representatives of their choice, rejecting

even race-neutral plans that provided two opportunity

districts.

From the first sentence of the State’s Questions

Presented, the jurisdictional statement misrepresents

the opinions below. According to the State, “Alabama’s

2021 congressional districting plan was preliminarily

enjoined under §2 of the Voting Rights Act because it

splintered one community of interest, the Black Belt,

while keeping together another, the Gulf Coast.” J.S.

at i. In fact, the 2021 plan was preliminarily enjoined

because the plaintiffs showed that it likely met the

standards this Court established in Thornburg v. Gingles, 478 U.S. 30 (1986). This Court held in Allen v.

Milligan that “the District Court concluded that plaintiffs’ § 2 claim was likely to succeed under Gingles. 582

F. Supp. 3d, at 1026. Based on our review of the record, we agree.” 599 U.S. 1, 19 (2023). The district court

had discussed the supposed tradeoff between splitting

the Black Belt and the Gulf Coast only because the

State raised it as a defense; it was not the basis of the

district court’s decision.

2

In the jurisdictional statement’s third sentence, the

State misrepresents the district court’s order enjoining the 2023 plan as well: “Even so, the district court

permanently enjoined the 2023 plan because it did not

racially divide the Gulf to place more black voters

from ‘Black Belt counties in a majority-Black district.’

App.345.” J.S. at i. This incorrect statement typifies

the State’s repeated conflation of illustrative plans,

which are designed to satisfy the first Gingles precondition and necessarily include one or more majorityminority districts, and remedial plans, whose districts

need not meet any racial target as long as minority

voters have the opportunity to elect candidates of

their choice. Here, the phrase “majority-Black district” refers to the plaintiffs’ illustrative plans, but the

permanent injunction rested on the State’s undisputed failure to provide two opportunity districts in

its remedial plan. App.19, 416–17. At no point did the

district court fault the State for failing “to place more

Black voters … in a majority-Black district.”

In sum, the district court never required the Legislature to segregate voters by race or to create a majority-minority district. Moreover, the district court

found that “the Special Master Plan, which was prepared race-blind, provides compelling evidence that

two reasonably configured Black-opportunity districts

easily can be drawn in Alabama.” App.16. Therefore,

summary affirmance is appropriate for the State’s

first, second, and fourth questions presented.

The only remaining issue is whether Section 2 provides a private right of action. The State’s position is

that every federal court that entertained a private suit

under Section 2 from 1965 to 2021, including this

3

Court, misunderstood the law. For reasons the district

court explained in detail, the text and the history of

Section 2 show that the State is wrong. Because the

State’s jurisdictional statement discusses neither the

text nor the history of Section 2, this Court should

summarily affirm on the third question presented as

well.

STATEMENT OF THE CASE

The history of this case and the opinions of the district court and this Court reveal that the first, second,

and fourth questions presented refer to rulings the

district court never made.

In 2021, the Alabama Legislature enacted new congressional districts. One district, District 7, had

elected a black Democrat to Congress in every election

since 1992, and it was majority-black in the 2021 plan.

App.11. Three sets of plaintiffs challenged the plan:

The Singleton plaintiffs alleged that the plan violated

the constitution because District 7 was a racial gerrymander, and the plan intentionally discriminated

against black voters; the Caster plaintiffs alleged that

the plan violated Section 2 of the Voting Rights Act

because it had the effect of diluting black votes; and

the Milligan plaintiffs alleged both constitutional and

statutory claims on similar grounds. App.784–88.

The plaintiffs in all three cases moved to enjoin the

defendants from using the 2021 plan in the 2022 election. In January 2022, the district court held a sevenday evidentiary hearing with live testimony from seventeen witnesses, more than 350 exhibits, more than

1,000 pages of briefing, and seventy-five pages of joint

stipulations of fact. App.11–12. Among that evidence

4

was expert testimony that it is possible to draw two

reasonably configured majority-Black congressional

districts in Alabama while adhering to traditional districting principles, satisfying the first Gingles precondition. App.928–56. Holding that the defendants had

likely violated the Voting Rights Act, and that it was

“not a close call,” the district court granted a preliminary injunction to the Milligan and Caster plaintiffs.

App.12. Citing the principle of constitutional avoidance, the district court reserved ruling on the Singleton and Milligan plaintiffs’ Equal Protection claims.

Id. The defendants appealed.

This Court affirmed, agreeing that “plaintiffs’ § 2

claim was likely to succeed under Gingles.” Milligan,

599 U.S. at 19. As to the first Gingles precondition,

this Court held that the plaintiffs’ illustrative plans

“‘strongly suggest[ed] that Black voters in Alabama’

could constitute a majority in a second, reasonably

configured, district.” Id. at 20 (quoting App.941). Responding to the State’s argument that no illustrative

plan can be reasonably configured if it splits the Gulf

Coast (as the illustrative plans did), this Court found

the State’s evidence of the Gulf Coast as a community

of interest to be weak. Id. at 21 (“The District Court

understandably found this testimony insufficient to

sustain Alabama’s ‘overdrawn argument that there

can be no legitimate reason to split’ the Gulf Coast region.”) (quoting App.953). Evidentiary concerns aside,

this Court wrote,

Even if the Gulf Coast did constitute a community of interest, moreover, the District Court

found that plaintiffs’ maps would still be reasonably configured because they joined together a

5

different community of interest called the Black

Belt. … The District Court concluded—correctly,

under our precedent—that it did not have to conduct a “beauty contest[]” between plaintiffs’

maps and the State’s. There would be a split community of interest in both.

Id. (quoting App.947).

On remand, the State asked the district court to delay trial so the Legislature could attempt to enact a

new plan. Singleton v. Allen, No. 21-cv-1291 (N.D.

Ala.), Doc. 133. The State based its proposed deadline

for the Legislature to finish its work in part on the

time required “for the Reapportionment Committee to

receive public input regarding the plan and then propose it to legislators for review before a vote.” Id. at 2–

3. The district court agreed, Singleton, Doc. 135, and

the Governor called a special session of the Legislature. At the special session, the Reapportionment

Committee readopted its 2021 redistricting guidelines, which were substantially the same as the guidelines the committee had used since the 1990s.

App.419; Milligan v. Allen, No. 21-cv-1530 (N.D. Ala.),

Doc. 459-20 at 12–13. Among those guidelines was one

specifying that a plan “shall have neither the purpose

nor the effect of diluting minority voting strength.”

App.58–59.

“Then the Legislature took a series of unusual

turns.” App.419. The Reapportionment Committee did

not form a plan and receive public input. Casting aside

plans designed to have two opportunity districts, including one introduced by Senator Singleton (one of

the appellees in this case), the Legislature settled on

6

one that the State concedes has just one opportunity

district. App.420–21. Despite his role as House CoChair of the Reappointment Committee, Representative Pringle was shut out of discussions of this plan;

Senator Livingston and other Senators “met with the

Solicitor General behind closed doors in a different

room on a different floor.” App.420, 496. Representative Pringle, concerned that Senator Livingston’s plan

violated federal law, asked for the plan’s reasoning

and was told, “You’re going to have to talk to Senator

Livingston and [the Solicitor General].” App.420–21.

Senator Livingston testified that the reason for the

shift was “some additional information” committee

members received, but he testified that he did not

know what the information was, where it came from,

or who had received it. App.420. The district court

found that Senator Livingston’s testimony “strains

credulity.” Id.

On the last morning of the special session, the Legislature was presented with a variation of Senator

Livingston’s plan, which again did not contain a second opportunity district. They were also presented

with something unprecedented in Alabama: a list of

“Legislative Findings” that “were drafted surreptitiously, in the dead of night, at the very last minute,

and without any input from either the Senate CoChair or House Co-Chair of the Legislature’s Reapportionment Committee.” App.22. According to Senator

Livingston, the Solicitor General drafted these findings. App.98. Compared to the guidelines the Reapportionment Committee had used since the 1990s, the

findings made major changes. For one, they eliminated the guideline that a plan “shall have neither the

7

purpose nor the effect of diluting minority voting

strength,” and added a statement that “The Supreme

Court of the United States recently clarified that Section 2 of the Voting Rights Act ‘never requires adoption of districts that violate traditional redistricting

principles.’” App.543. The findings then declared, for

the first time in Alabama history, that certain redistricting principles were “non-negotiable,” including

keeping the Gulf Coast counties of Mobile and Baldwin together, App.544, notwithstanding that Mobile

and Baldwin Counties had been in separate congressional districts for most years since the Civil War, see

Singleton, Doc. 285-6 (historical Alabama congressional maps). The findings spent far more space discussing the Gulf Coast as a community of interest

than it did on the other two identified communities of

interest: the Black Belt and the Wiregrass. App.545–

49. The Legislature adopted the plan with only one opportunity district, along with the legislative findings,

and the Governor signed it into law.

The State’s tactics “thrust this case into an unusual

posture: we [the district court] are not aware of any

other case in which a state legislature — faced with a

federal court order declaring that its electoral plan unlawfully dilutes minority votes and requiring a remedial plan that provides an additional opportunity

district — responded with a plan that the state concedes does not provide that district.” App.14. The district court preliminarily enjoined the 2023 plan and

set a trial on the plaintiffs’ claims that the plan violated Section 2 and the Fourteenth Amendment.

8

Before trial, the district court charged its special

master with proposing remedial plans. With the assistance of a cartographer, the special master proposed

three plans that were all drawn without regard to

race, included two opportunity districts, and followed

traditional redistricting principles and the contours of

the 2023 plan to the extent they could while complying

with the law. App.73–77. All plaintiffs supported the

third proposed plan, which the district court adopted,

and which was used in Alabama’s 2024 congressional

elections. App.77–82.

In February 2025, the district court tried the case.

At trial, the evidence of the State’s Section 2 violation

was similar to the evidence at the original preliminary

injunction hearing, but stronger. The plaintiffs’ experts presented additional illustrative plans showing

that it is possible to create two reasonably configured

majority-minority illustrative districts (satisfying the

first Gingles precondition), and other evidence showing that the other two Gingles preconditions and the

Senate factors were satisfied as well. App.123–260,

319–428. Much of this evidence, along with the bizarre

sequence of events in the Legislature, demonstrated

that the State’s 2023 plan was intended to dilute minority voting strength, violating the Fourteenth

Amendment. App.490–529. The district court permanently enjoined the 2023 plan, and the State appealed.

9

ARGUMENT

I. The Appellants’ First, Second, and Fourth

Questions Are Not Presented Because

Neither Section 2, nor the Fourteenth

Amendment,

nor

the

District

Court

Required the State to Segregate Voters by

Race or Create a Majority-Minority District.

The State raises three questions that are not presented by the record below:

Question 1: “Does §2 require Alabama to segregate

a conceded community of interest to combine black

voters from that community with black voters elsewhere to form a majority-black district?”

The district court never stated that Section 2 required the State to segregate anyone or to form a majority-Black district, and it ultimately adopted a raceblind remedial plan whose new opportunity district

was not majority-Black.

Question 2: “Whether §2 can require Alabama to

intentionally create a second majority-minority district without violating the Fourteenth or Fifteenth

Amendments to the U.S. Constitution?”

Again, the district court never said that Section 2

required the State to create a second majority-minority district, and it adopted a remedial plan without a

second majority-minority district.

Question 4: “Did Alabama violate the Fourteenth

Amendment by declining to draw a race-based plan?”

10

The district court did not hold that the State violated the Fourteenth Amendment by declining to

draw a race-based plan. Instead, the district court

held that the State violated the Fourteenth Amendment by intentionally failing to create two opportunity

districts when it knew, from litigation in the district

court and this Court, that a plan with only one opportunity district “very likely unlawfully diluted the

votes of Black Alabamians.” App.489. The remedial

plan the district court adopted, which undisputedly

was drawn race-blind, contains two opportunity districts.

Summary affirmance is appropriate for Questions

1, 2 and 4 because they are not presented here.

A. The District Court Correctly Applied

Established Law.

When the State last appealed a decision enjoining

its unlawful congressional districts, it claimed that

the district court had misapplied the Gingles test in

several ways. This Court disagreed. Milligan, 599

U.S. at 19–30; see also id. at 30 (“the State misunderstands § 2 and our decisions implementing it”). On remand, the district court applied the Gingles test the

same way, supporting its careful decision with hundreds of pages of discussion of the evidence. In its new

appeal, the State identifies no way in which the district court departed from Gingles or clearly erred in its

factfinding.

11

1. The

District

Court

Followed

Gingles,

Milligan,

and

Other

Precedent.

When the plaintiffs first challenged the State’s

2021 congressional districting plan, the district court

held a seven-day evidentiary hearing that included

live testimony from seventeen witnesses, more than

1,000 pages of briefing, reports and rebuttal reports

from every expert witness, more than 350 hearing exhibits; and seventy-five pages of joint stipulations of

fact. App.777. Based on this ample record, the district

court applied the Gingles framework for evaluating a

potential violation of Section 2, determining that the

plaintiffs were likely to satisfy all three Gingles preconditions and show that Black voters have less opportunity to elect candidates of their choice under the

totality of the circumstances. App.778.

This Court affirmed, holding that the district court

correctly applied the Gingles framework, including

the first Gingles precondition: “With respect to the

first Gingles precondition, the District Court correctly

found that black voters could constitute a majority in

a second district that was ‘reasonably configured.’”

Milligan, 599 U.S. at 19–20.1

1 The requirement that illustrative plans include majority-mi-

nority districts is well established. Milligan, 599 U.S. at 19 (citing cases); see also Bartlett v. Strickland, 556 U.S. 1 (2009)

(crossover districts do not meet the first Gingles precondition).

This Court has already rejected the State’s contention that compliance with Section 2 requires a “race-neutral benchmark.” Milligan, 599 U.S. at 23–30.

12

On remand, the district court faithfully applied the

Gingles framework as this Court laid it out in Milligan. In particular, the district court noted that the evidence that Black voters could constitute a majority in

a second district had only grown stronger since the

preliminary injunction stage. In addition to the illustrative plans that this Court had already held to be

reasonably configured, the district court stated, “the

Special Master Plan, which was prepared race-blind,

provides compelling evidence that two reasonably configured Black-opportunity districts easily can be

drawn in Alabama.” App.16. The district court also

discussed new illustrative plans prepared by the same

two experts whose previous plans supported the preliminary injunction. App.123–38, 203–24. Taken together, these plans left no doubt that the first Gingles

precondition was satisfied. App.363

Turning to the remainder of the Gingles analysis,

the district court laid out a wealth of evidence that

spans 146 pages of its opinion, App.138–203, 224–60,

271–317, and explained at length that the second and

third Gingles preconditions and the Senate factors

were satisfied. App.363–428. Based on this thorough

analysis, and the State’s concession that “the 2023

Plan does not include an additional opportunity district,” App.3, the district court held that “these Section

Two claims are not a close call,” App.19.

Despite the appellants’ repeated accusations to the

contrary, the district court did not hold that the State

had violated Section 2 by failing to draw districts

based on race in the 2023 plan. To be sure, the district

court recognized that “as a practical reality, based on

13

extensive evidence of intensely racially polarized voting in Alabama, any remedial plan would need to include two districts in which Black voters either

comprise a voting-age majority or something quite

close to it.” App.12–13 (internal quotation marks omitted). But the remedy the district court required, as opposed to what it acknowledged as a practical reality,

demanded no thresholds for racial demographics or

district lines based on race: “the appropriate remedy

is a districting plan that includes either an additional

majority-Black district, or an additional district in

which Black voters otherwise have an opportunity to

elect a representative of their choice.” App.20 (emphasis added). This was the correct remedial standard; an

opportunity district need not be majority-minority to

avoid liability under Section 2. Cooper v. Harris, 581

U.S. 285, 305–06 (2017). Therefore, while the State

could have avoided liability by drawing two majorityBlack districts, it was not required to do so: opportunity districts, drawn without regard to race, would

have sufficed.

Because the State’s violation of Section 2 was

straightforward, the district court’s holding that the

State had intentionally diluted Black voting power

was not hard to reach. After all, the State had been

told by the district court and this Court that a plan

that did not provide two opportunity districts likely

unlawfully diluted Black voting power, and the State

enacted “a map that did not nurture any ambition to

comply with what the Court said the law required.”

App.489. Again, this was not because the State failed

to segregate voters by race or create majority-Black

14

districts; instead, the State flouted its obligations under the Fourteenth Amendment by knowingly and intentionally extinguishing the right to equal protection

for hundreds of thousands of Black voters. Id.

2. The State Has Not Shown That the

District Court’s Factual Findings

Were Clearly Erroneous.

Although the State complains about several of the

district court’s factual findings, it only claims that one

was clearly erroneous: that the plaintiffs’ expert Bill

Cooper “generally drew lines [for illustrative districts]

based on neutral factors. App.222 [sic: App.322].” J.S.

at 13. But the district court never stated that Mr.

Cooper generally drew lines based on neutral factors.

Applying the correct standard, it held that race did not

predominate in the design of Mr. Cooper’s illustrative

plans. App.322.

Establishing clear error, which is already difficult, 2

is even harder here because the district court had

reached the same conclusion about Mr. Cooper’s process before, and this Court affirmed. App.931–34; Milligan, 599 U.S. at 31–32 (plurality opinion).3 As the

2 “The court’s findings of fact—most notably, as to whether

racial considerations predominated in drawing district lines—

are subject to review only for clear error. Under that standard,

we may not reverse just because we would have decided the matter differently. A finding that is plausible in light of the full record—even if another is equally or more so—must govern.”

Cooper, 581 U.S. at 293 (cleaned up).

3 Justice Kavanaugh did not join the part of the opinion that

specifically discussed Mr. Cooper’s testimony, but he did join the

15

Caster respondents explain, the district court’s evaluation of Mr. Cooper’s testimony was correct. Whether

the State contends that the district court also clearly

erred when it found that race did not predominate in

the illustrative plans drawn by the plaintiffs’ expert

Moon Duchin is unclear. See J.S. at 13. But if that is

the State’s contention, it is wrong for the same reasons, as the Milligan appellees explain.

Because the district court unquestionably carried

out the correct analysis under Gingles, and none of its

factual findings were clearly erroneous, its decision

that the State violated Section 2 must be affirmed.

3. A State Cannot Insulate a Plan from

Scrutiny with “Non-Negotiable”

Redistricting Principles.

The State believes that it has found “one weird

trick” to exempt the State from liability under Section 2: Because a plaintiff’s illustrative majority-minority districts must be “reasonably configured” to

satisfy the first Gingles precondition, a legislature

need only adopt a “non-negotiable” redistricting principle with which majority-minority districts are incompatible. Here, it is mathematically impossible to

draw two reasonably configured majority-Black districts if all of Mobile and Baldwin Counties are in the

same district. App.136. Therefore, according to the

State, any plan that includes two majority-Black districts will be unreasonably configured per se, and the

part holding that the plaintiffs’ illustrative plans (including Mr.

Cooper’s) all “contained two majority-black districts that comported with traditional districting criteria.” Milligan, 599 U.S. at

20.

16

Gingles preconditions cannot be satisfied. The State’s

trick is as intentionally discriminatory as it is wrong.

No court has ever condoned this tactic. While courts

must take traditional redistricting principles seriously, and measure illustrative plans against those

principles, there is no support for pushing any principle (other than those mandated by the United States

Constitution) across the line from “important” to “nonnegotiable.” “Indeed, requiring a plaintiff to meet or

beat an enacted plan on every redistricting principle a

State selects would allow the State to immunize from

challenge a racially discriminatory redistricting plan

simply by claiming that it best satisfied a particular

principle the State defined as non-negotiable.”

App.329.

Moreover, the State’s tactic would contravene this

Court’s holding in Milligan that the first Gingles precondition is not a “beauty contest” between a plaintiff’s illustrative maps and a state’s map. Milligan,

599 U.S. at 21. Here, the State wants not only to hold

a beauty contest, but also to set the criteria for beauty

in its sole discretion.

None of this is to say that the district court ignored

the Gulf Coast. The district court expressly accepted

the Legislature’s finding that the Gulf Coast is a community of interest:

To be clear, we accept that the Gulf Coast is a

community of interest, but we cannot accept the

Legislature’s effective designation of it as

unsplittable, nor its designation of it as superlative to all other traditional districting principles.

We particularly cannot prioritize that effective

17

designation above compliance with Section Two,

or above the Black Belt for that matter. If evading the requirement of an additional opportunity

district under Section Two were as easy as enacting a rule against splitting a specific majorityWhite community of interest, Section Two would

have no meaning.

App.348.

Furthermore, as the district court found, “Mobile and Baldwin Counties were in separate congressional districts for almost 100 years, “from 1875 until

the 1970s.” App.349. The district court also noted that

“for many years, the Legislature has split the Gulf

Coast counties in the districting plan for the State

Board of Education.” App.357; Even in 2021, the State

split Mobile County in the Alabama Board of Education plan. App.349; see App.533–36 (same 2021 “Reapportionment Committee Redistricting Guidelines” for

congressional districts and State Board of Education

districts).

And the district court heard extensive testimony

about specific communities within the Gulf Coast and

their relationship both to each other and to other communities like the Black Belt. App.193, 350–52. Based

on this evidence, the district court found that splitting

the Gulf Coast in an illustrative plan “does not always

disrespect (or even disadvantage) that community,”

and it noted that sometimes a community of interest

prefers to be split to increase its representation.

App.350.

The State does not contend that these factual

findings were clearly erroneous, arguing instead that

18

splitting a “non-negotiable” community of interest is

unreasonable per se. As the district court found, however, “[s]plit communities of interest are inevitable in

any plan, and we must evaluate them in an intensely

local appraisal. … [The plaintiffs’ experts’] decisions

to split Mobile County did not violate communities of

interest or produce unreasonably configured plans.”

App.352. The district court’s careful evaluation of local conditions justified its conclusion that an illustrative plan that splits Mobile County can be reasonably

configured.

B. The District Court’s Remedial Plan

Proves That the State Could Have

Complied with the Injunction Without

Segregating Voters by Race or Creating

a Majority-Minority District.

The district court’s remedial proceedings proved

that a fundamental premise of the jurisdictional statement—that the State was punished for not drawing

districts based on race—is false. After the district

court enjoined the State’s 2023 plan, it directed the

special master to propose remedial plans that satisfied four requirements: (1) completely remedy the

likely Section 2 violation, (2) comply with the United

States Constitution and the Voting Rights Act, (3)

comply with the one-person, one-vote principle, and

(4) “[r]espect traditional redistricting principles to the

extent reasonably practicable … such as compactness,

contiguity, respect for political subdivisions, and

maintenance of communities of interest.” Singleton,

Doc. 192 at 7–9; App.74–75. None of these requirements was any less strict than the requirements for a

19

remedial plan the district court identified when it enjoined the 2021 plan. See App.779. And in one regard,

they were stricter: the district court recognized that

“the Alabama Legislature has substantially more discretion than does this Court in drawing a remedial

map: state legislatures may consider political circumstances that courts may not.” Singleton, Doc. 192 at 9.

The special master submitted three plans that complied with each of the district court’s requirements, including the creation of two opportunity districts. The

district court found as follows:

Although 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 (on

a very short timetable) confirms for us that it is

not only possible, but relatively easy. We thus

have no concern that race will predominate in

the preparation of a remedial plan, nor that a remedial plan will segregate Alabama voters on

the basis of race.

App.532. Again, the State does not contend that these

findings are clearly erroneous.

The special master stated, and no party disputes,

that each of the three plans was drawn race-blind.

App.76. All plaintiffs endorsed the special master’s

third plan, and the district court held that it completely remedied the State’s violation of Section 2.

App.514 (“Even if the Legislature refused to consider

the Duchin Plans and Cooper Plans out of its view that

race predominated in the preparation of those plans,

the subsequent preparation of a race-blind plan by the

Special Master on September 25, 2023 suggests to us

20

how easy it would have been for the Legislature to consider another plan that complied with the requirements of Section Two.”).

Because the district court approved a plan that was

drawn without respect to race, the State cannot claim

that it was ordered to segregate voters, form a majority-Black district, or draw a race-based plan. See J.S.

at i (Questions Presented). Without those claims,

there is nothing left of its grounds for appeal other

than its argument that individuals cannot enforce

Section 2.

C. The State Never Tried to Prove That

Complying with Section 2 Requires

Dividing the Gulf Coast.

Another false premise underlies the jurisdictional

statement: “the court concluded that §2 requires splitting the Gulf Coast—an undisputed community of interest—and combining black Mobilians with black

voters in the Black Belt.” J.S. at 6; see also id. at i, 4–

7, 11–12, 14, 22. While the district court held that the

Gulf Coast would need to be split if the Black Belt is

split in half (as the Legislature did in the 2023 plan),

App.355, the district court never held that the Gulf

Coast would need to be split in every compliant plan.

If the State intends to rest its entire appeal on the

premise that the 2023 plan was rejected for failing to

split the Gulf Coast, it must cite at least some proof

that it would have been impossible simultaneously to

keep the Gulf Coast intact and create two opportunity

districts. But the State never tried to prove this point

21

at trial.4 And one of the plans introduced during the

2023 special session demonstrates that the State’s

premise is false. At that session, appellee Senator

Bobby Singleton introduced a race-neutral plan that

kept the Gulf Coast intact:

4 The district court stated that it would be impossible to create

a plan with two opportunity districts that complies with all the

requirements of the legislative findings, App.492, but not that it

would be impossible to create a plan with two opportunity districts that keeps the Gulf Coast intact. When asked whether it

would be possible to create two opportunity districts and comply

with the legislative findings, the State’s counsel reframed the

question as whether it would be possible to create two majorityBlack districts and keep the Gulf Coast together, and answered

in the negative. App.61, 136.

22

All three appellants admitted that in the 28

statewide contested elections from 2012 to 2022, the

Black-preferred candidate received the most votes 22

times in District 6 of the Singleton plan, and all 28

times in District 7.5 Based on these admissions alone,

it would be untenable for the State to deny that the

Singleton plan contains two opportunity districts

while keeping Mobile and Baldwin Counties together.

Moreover, the Singleton plan better comports with

the Legislature’s contrived redistricting criteria than

the enacted 2023 plan does. Besides keeping the Gulf

Coast intact and providing two opportunity districts,

the Singleton plan satisfies every relevant redistricting principle contained in the Legislature’s findings.

See App.544–49. It has minimal population deviation,

it is contiguous, it is at least as compact as the 2023

plan, it keeps the state’s four largest municipalities

intact (which the 2023 plan fails to do), it splits no

more than six county lines, and it keeps together communities of interest. Specifically, it keeps the Gulf

Coast intact, and it puts 16 of the 18 core Black Belt

counties in the same district—the highest number

mathematically possible. It also keeps the Wiregrass

intact except for two counties that are also core Black

5 Secretary Allen admitted this fact in response to a request

for admission. Singleton, Doc. 180-1 at 5–6. Senator Livingston

and Representative Pringle made the same admission in separate responses, which were not introduced as exhibits in the district court.

23

Belt counties (Crenshaw and Pike), which are placed

in the Black Belt district.6

The only way the Singleton plan falls short of the

2023 plan is that it does not preserve the cores of existing districts or protect all incumbents, but these

cannot be nonnegotiable principles in the context of

remedial redistricting: “[T]his Court has never held

that a State’s adherence to a previously used districting plan can defeat a § 2 claim. If that were the rule,

a State could immunize from challenge a new racially

discriminatory redistricting plan simply by claiming

that it resembled an old racially discriminatory plan.”

Milligan, 599 U.S. at 22; see League of United Latin

Am. Citizens v. Perry, 548 U.S. 399, 441 (2006) (“[T]he

problem here is entirely of the State’s own making.

The State chose to break apart a Latino opportunity

district to protect the incumbent congressman from

the growing dissatisfaction of the cohesive and politically active Latino community in the district.”).

Although the Singleton plan complied with the district court’s directives and performed well on every legitimate districting principle the Legislature

identified, including keeping the Gulf Coast together,

the Legislature rejected it. It is impossible to reconcile

6 For further description of the Singleton plan and its perfor-

mance on various metrics, see In re Redistricting 2023, No. 23mc-1181 (N.D. Ala.), Doc. 5 at 6–19.

24

the existence of the Singleton plan with the State’s position that the district court required the State to split

the Gulf Coast in order to comply with Section 2. 7

D. The State Violated the Fourteenth

Amendment Because It Intentionally

Diluted Black Votes, Not Because It

“Declined to Draw a Race-Based Plan.”

During the 2023 special session of the Legislature,

it was clear that the State had been preliminarily enjoined from using the 2021 plan because the district

court and this Court held that it likely diluted Black

votes in violation of Section 2. It was also clear that a

remedial plan would have to include two opportunity

districts. And yet, the State rejected every plan that

at least arguably contained two opportunity districts

in favor of a plan that admittedly did not. These basic

facts, along with many other supporting ones, led the

district court to conclude that the State intentionally

discriminated against Black voters. App.484–529.

What the district court did not do was fault the

State for declining to draw a race-based plan. Had the

State adopted the Singleton plan, or some other plan

that also was not driven by race, the proceedings below would have been very different. The State could

have argued that the Legislature believed it was

7 To be clear, the Singleton appellees do not claim that the

Legislature or the district court was required to adopt the Singleton plan; they highlight the Singleton plan to show that a fundamental premise of the jurisdictional statement is wrong and

that the 2023 plan was intended to dilute Black voting strength.

25

adopting a plan that complied with Section 2. The

State would not have needed to resort to arguments

that preliminary injunctions are more like suggestions, or that compliance with Section 2 is not required

if a state’s solicitor general drafts “legislative findings” that make compliance impossible. In short, the

State cannot prevail on its fourth question presented

because no one has suggested that its failure to draw

a race-based plan was the reason for the district

court’s finding that it violated the Equal Protection

Clause.8

II. This Court Should Affirm on the Third

Question Because Section 2 Contains a WellEstablished Private Right of Action.

The State contends that the district court’s opinion

should be reversed because Section 2 does not create

a privately enforceable right. J.S. at 26–27. Here, the

district court closely examined the statute’s text and

concluded that “every sentence of Section Two either

refers to rights of the benefited class, contains rightscreating language that creates new rights for that specific class, or expressly focuses on the benefited class.”

App.433. The district court addressed each of the

State’s arguments to the contrary, App.438–43, held

that recognizing a private right of action is consistent

with this Court’s precedents, App.443–49, noted that

8 Although the district court did not decide the Fourteenth

Amendment claim in Singleton, the Singleton appellees have addressed it briefly here because the State included it in the jurisdictional statement in Singleton. The Milligan appellees’ brief

discusses this claim in more detail.

26

Congress has implicitly ratified the private right of action by amending the Voting Rights Act without

changing Section 2, App.450–51, and invoked statutory stare decisis, App.452–53. In the end, the district

court found it “difficult in the extreme … to believe

that for nearly sixty years, federal courts have consistently misunderstood one of the most important sections of one of the most important civil rights statutes

in American history, and that Congress has steadfastly refused to correct our apparent error.” App.454.

If the jurisdictional statement is an accurate preview of the State’s arguments on appeal, the State has

little to offer. The jurisdictional statement ignores

precedent, congressional ratification, and statutory

stare decisis, briefly arguing—without referring to the

statute’s text at all—that Section 2 does not confer any

rights on voters. Because the State fails to engage

meaningfully with the district court’s opinion on this

question, the district court’s opinion should be summarily affirmed.

CONCLUSION

The State directs its argument at an opinion the

district court never wrote, and it attacks a bedrock

right of action. Moreover, at trial, the evidence of the

State’s Section 2 violation was stronger than the evidence justifying the original preliminary injunction,

which this Court affirmed in 2023. Therefore, summary affirmance is appropriate here.

27

Respectfully submitted,9

J.S. “Chris” Christie

DENTONS SIROTE PC

2311 Highland Avenue

South

Birmingham, AL 35205

James Uriah Blacksher

Counsel of Record

825 Linwood Road

Birmingham, AL 35222

(205) 612-3752

jublacksher@gmail.com

Henry C. Quillen

WHATLEY KALLAS, LLP

159 Middle Street,

Suite 2C

Portsmouth, NH 03801

U.W. Clemon

U.W. CLEMON, LLC

2001 Park Place North,

Suite 1000

Birmingham, AL 35203

Myron Cordell Penn

PENN & SEABORN, LLC

1971 Berry Chase Place

Montgomery, AL 36117

Diandra “Fu” Debrosse

Zimmermann

Eli Hare

DICELLO LEVITT LLP

505 20th Street North,

15th Floor

Birmingham, AL 35203

Joe R. Whatley, Jr.

W. Tucker Brown

WHATLEY KALLAS, LLP

2001 Park Place North

1000 Park Place Tower

Birmingham, AL 35203

October 20, 2025

Counsel for Appellees

9 Counsel would like to recognize the valuable assistance they

received throughout the case from Edward Still, who advocated

for civil rights over a fifty-four-year career. Mr. Still passed away

on September 1, 2025.