Amicus Curiae Brief — Wes Allen, Alabama Secretary of State, et al., Appellants v. Evan Milligan, et al.

Supreme Court briefOct 9, 2025

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Nos. 25-273, 25-274

In the Supreme Court of the United States

__________

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

Appellants,

BOBBY SINGLETON, ET AL., Appellees.

____________________

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

Appellants,

EVAN MILLIGAN, ET AL., Appellees.

____________________

ON APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

_______________

BRIEF FOR PROJECT ON FAIR

REPRESENTATION AS AMICUS CURIAE

IN SUPPORT OF APPELLANTS

__________

CHRISTOPHER E. MILLS

Counsel of Record

Spero Law LLC

557 East Bay Street

#22251

Charleston, SC 29413

(843) 606-0640

cmills@spero.law

TABLE OF CONTENTS

Page

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

Interest of Amicus Curiae ........................................... 1

Summary of the Argument ......................................... 2

Argument ..................................................................... 5

States do not intentionally discriminate by

declining to discriminate. ........................................ 5

A. The district court’s evidence does not show

intentional racial discrimination. .............. 10

B. The State’s conduct is explained by its

obligation to provide equal treatment. ...... 19

Conclusion .................................................................. 24

TABLE OF AUTHORITIES

Page(s)

CASES

Abbott v. Perez,

585 U.S. 579 (2018) .................................... 12, 15, 21

Alabama Leg. Black Caucus v. Alabama,

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

vacated on other grounds, 575 U.S. 254 (2015) .... 15

Alabama St. Conf. NAACP v. Alabama,

612 F. Supp. 3d 1232 (M.D. Ala. 2020) ................. 15

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

602 U.S. 1 (2024) .................. 5, 7, 8, 9, 10, 18, 20, 21

Allen v. Milligan,

599 U.S. 1 (2023) ............................ 13, 14, 16, 20, 21

Barr v. Am. Ass’n of Pol. Consultants, Inc.,

591 U.S. 610 (2020) .................................................. 6

Brnovich v. Democratic Nat’l Comm.,

594 U.S. 647 (2021) ................................................ 18

Brown v. Board of Education,

347 U.S. 483 (1954) .................................................. 5

Bush v. Vera,

517 U.S. 952 (1996) ................................................ 21

Chisom v. Roemer,

501 U.S. 380 (1991) ................................................ 16

Doran v. Salem Inn, Inc.,

422 U.S. 922 (1975) ................................................ 13

Lackey v. Stinnie,

604 U.S. 192 (2025) ................................................ 13

iii

League of United Latin Am. Citizens v. Perry,

548 U.S. 399 (2006) ................................................ 20

Merrill v. Milligan,

142 S. Ct. 879 (2022) ........................................ 14, 21

Miller v. Johnson,

515 U.S. 900 (1995) ................................................ 22

New York State Rifle & Pistol Ass’n, Inc. v. City of

New York,

590 U.S. 336 (2020) ................................................ 15

Nw. Austin Mun. Util. Dist. No. One v. Holder,

557 U.S. 193 (2009) ................................................ 17

Pers. Adm’r of Massachusetts v. Feeney,

442 U.S. 256 (1979) .......................................... 18, 23

Ramos v. Louisiana,

590 U.S. 83 (2020) .................................................. 24

Reno v. Bossier Par. Sch. Bd.,

520 U.S. 471 (1997) .......................................... 16, 18

Rogers v. Lodge,

458 U.S. 613 (1982) .......................................... 11, 17

Shaw v. Reno,

509 U.S. 630 (1993) ................................................ 22

Sole v. Wyner,

551 U.S. 74, 78 (2007) ............................................ 13

Students for Fair Admissions, Inc. v. President &

Fellows of Harvard College,

600 U.S. 181 (2023) ...... 2, 4, 5, 10, 19, 20, 22, 23, 24

Thornburg v. Gingles,

478 U.S. 30 (1986) ............................ 6, 14, 16, 17, 18

United States v. Rutherford,

442 U.S. 544 (1979) ................................................ 16

University of Texas v. Camenisch,

451 U.S. 390 (1981) ................................................ 13

Vill. of Arlington Heights v. Metro. Hous. Dev. Corp.,

429 U.S. 252 (1977) .................................................. 7

White v. Weiser,

412 U.S. 783 (1973) .................................................. 6

Whole Woman’s Health v. Jackson,

595 U.S. 30 (2021) .................................................. 24

Wisconsin Legislature v. Wisconsin Elections

Comm’n,

595 U.S. 398 (2022) ................................................ 22

STATUTES

52 U.S.C. § 10301 .... 3, 4, 10, 11, 14, 16, 17, 18, 20, 21

OTHER AUTHORITIES

Brief for Milligan Appellees, Allen v. Milligan,

No. 21-1086 (U.S. July 11, 2022) ........................... 12

Brief for Project on Fair Representation, Louisiana v.

Callais & Robinson v. Callais, Nos. 24-109, 24-110

(U.S. Sept. 23, 2025) .............................................. 21

C. Elmendorf, Making Sense of Section 2: Of Biased

Votes, Unconstitutional Elections, and Common

Law Statutes, 160 U. Pa. L. Rev. 377 (2012) ........ 17

INTEREST OF AMICUS CURIAE

The Project on Fair Representation is a publicinterest organization committed to the principle that

racial and ethnic classifications are unconstitutional,

unfair, and harmful. It works to advance race-neutral

rules in education, government action, and voting. The

Project pursues these goals through education and

advocacy and has been involved in several cases before

the Supreme Court involving these important issues.

The Project opposes racial districting of all kinds.

Eliminating racial sorting in districting is not only

what our Constitution requires, but it is also a needed

remedy for our Nation’s increasingly polarized and

racialized politics. Because Alabama properly declined

to segregate citizens based on race yet was somehow

found to have intentionally discriminated based on

race, the Project has a direct interest in this case.*

* Under Rule 37.2, the parties’ counsel of record received timely

notice of the intent to file this brief. Under Rule 37.6, no counsel

for a party authored this brief in whole or in part, and no person

other than amicus curiae or its counsel made a monetary

contribution to its preparation or submission.

SUMMARY OF THE ARGUMENT

A State does not discriminate by declining to

discriminate. Yet the district court held that Alabama

intentionally discriminated when it chose not to enact

a map that would segregate black citizens. To justify

that counterintuitive result, the district court said

that the State’s decision not to follow a non-existent

order to draw a second majority-minority district—

and decision to pass a new race-neutral map instead—

amounted to intentional discrimination. That holding

turns the promise of equal protection upside down.

Drawing maps based on race violates equal protection,

while a State’s refusal to sort voters by race does not.

This Court has created a mess in which States face

liability for intentional discrimination even when they

specifically refuse to discriminate. It is time to fix that

mess.

Though the decision below runs past 125,000

words, one searches in vain for any mention of

Students for Fair Admissions, Inc. v. President &

Fellows of Harvard College, in which this Court

reiterated that “trying to derive equality from

inequality” is “inherent folly.” 600 U.S. 181, 203

(2023). But unlike the decision below, the State could

not ignore that the Fourteenth Amendment condemns

“all manner of race-based state action.” Id. at 204.

That includes race-based districting. So when

Alabama set out to draw a new map, it had no choice

but “to comply with the twin commands of the Equal

Protection Clause”: “that race may never be used as a

‘negative’ and that it may not operate as a stereotype.”

Id. at 218. The State complied with those commands,

yet the district court found intentional discrimination.

The district court tried to transform the State’s

race-neutral effort into discrimination by implying

that the State refused to provide a remedy for the

Court’s finding that the prior map could have violated

§ 2 of the Voting Rights Act. But this is not evidence

of discrimination at all, much less the type of stringent

evidence that would overcome the State’s presumption

of good faith. The court never ordered the State to do

anything, and it never adjudicated an actual § 2

violation. It did nothing more than find that the

plaintiffs were likely to succeed in showing a violation

and give the State an opportunity to pass a new map.

The State did so, passing a map that it believed would

satisfy § 2 while remaining race-neutral. Disagreement with a court’s preliminary finding about § 2’s

notoriously incomprehensible standard does not show

an intent to discriminate.

Even if some § 2 violation had been actually

adjudicated, passing the new map here still would not

have been enough to show intentional discrimination.

That is because modern-day § 2 liability is based

almost entirely on the independent decisions of voters

of all races about (1) where to live and (2) how to vote.

Because § 2 liability under current standards would

say practically nothing about discrimination based on

race—much less show intentional discrimination—a

State’s decision to draw a map that might implicate

§ 2’s modern applications does not show intentional

discrimination.

What’s more, disagreement with any court’s

suggestion that § 2 today could excuse a violation of

the Constitution does not show intentional

discrimination. If anything, it shows a basic compre-

hension of the Supremacy Clause. Indeed, if the State

had segregated voters using the overriding principle

of the plaintiffs and the district court’s special

master—draw another majority-minority district—it

would have used race to stereotype voters’ decisions

and segregate them, and thus would have squarely

violated the Fourteenth Amendment. But States must

adhere to the Fourteenth Amendment’s guarantee of

equal treatment based on race, and Alabama’s effort

to satisfy that guarantee is not discriminatory.

This case reinforces that § 2 has evolved into a

sword for creating racially gerrymandered districts

rather than a shield against racial discrimination.

Courts should not be in the business of forcing States

to violate the Fourteenth Amendment’s promise that

the government will treat citizens equally regardless

of race. Much less should courts smear a State that

declines to eagerly segregate citizens as itself

discriminatory. Under Students for Fair Admissions,

the State had no other choice. Neither should courts—

and it is time for this Court to say so.

ARGUMENT

States do not intentionally discriminate by

declining to discriminate.

The Fourteenth Amendment’s Equal Protection

Clause “requires equality of treatment before the law

for all persons without regard to race.” Students for

Fair Admissions, 600 U.S. at 205. The Clause was

viewed as embodying “a ‘foundational principle’—‘the

absolute equality of all citizens of the United States

politically and civilly before their own laws.’” Id. at

201 (cleaned up). It does “not permit any distinctions

of law based on race or color.” Id. at 202. In Brown v.

Board of Education, 347 U.S. 483 (1954), this Court

finally held that States have “no” “authority under the

equal-protection clause of the Fourteenth Amendment

to use race as a factor.” Students for Fair Admissions,

600 U.S. at 204.

“The Constitution entrusts state legislatures with

the primary responsibility for drawing congressional

districts,” and “a legislature may pursue partisan ends

when it engages in redistricting.” Alexander v. S.C.

State Conf. of the NAACP, 602 U.S. 1, 6 (2024). When

claimant

argues

that

redistricting

was

impermissibly motivated by race, courts must

presume “legislative good faith” by “draw[ing] the

inference that cuts in the legislature’s favor when

confronted with evidence that could plausibly support

multiple conclusions.” Id. at 10. Several reasons

account for this presumption, including “the Federal

Judiciary’s due respect for the judgment of state

legislators,” judicial hesitance to “hurl [racist]

accusations at the political branches,” and a wariness

“of plaintiffs who seek to transform federal courts into

weapons of political warfare that will deliver victories

that eluded them in the political arena.” Id. at 11

(cleaned up).

The district court claimed that it “underst[ood] the

importance of this presumption” and “tried to apply

it.” App. 487. But the district court’s explanation of its

“try” casts some doubt on its understanding. For

instance, the court believed that it was applying the

presumption when it did not issue an unnecessary

constitutional opinion earlier in the case. App. 487–88.

But the presumption has nothing to do with

constitutional avoidance principles. The court also

believed that it was applying the presumption when it

“conducted [its] Senate Factors analysis [under

Gingles] with restraint.” App. 487. (Put aside what

that says about the absence of neutral principles

under Gingles.) But the Gingles factors too have

nothing to do with the presumption of legislative good

faith in an intentional discrimination claim. Last, the

court believed that it was applying the presumption

when it “allow[ed] the Legislature sufficient time to

enact a new plan.” App. 488. But that leeway is

required by this Court’s precedents, see, e.g., White v.

Weiser, 412 U.S. 783, 795 (1973),1 and is a separate

issue from the premise that courts should not assume

that state legislatures seek to discriminate based on

race. The district court’s repeated misapprehensions

And likely also required by the limits on federal courts’

equitable powers. See Barr v. Am. Ass’n of Pol. Consultants, Inc.,

591 U.S. 610, 627 n.8 (2020) (plurality opinion) (explaining that

the judicial authority under Article III “amounts to little more

than the negative power to disregard an [unlawful] enactment”

(cleaned up)).

of the legislative presumption of good faith suggest

that it neither understood nor properly applied it.

Claimants must overcome the presumption of good

faith and prove “racially discriminatory intent or

purpose” “to show a violation of the Equal Protection

Clause.” Vill. of Arlington Heights v. Metro. Hous. Dev.

Corp., 429 U.S. 252, 265 (1977). “This showing can be

made through some combination of direct and

circumstantial evidence.” Alexander, 602 U.S. at 8.

Direct evidence may be some “relevant state actor’s

express acknowledgment that race played a role in the

drawing of district lines.” Ibid. There was no direct

evidence here. The district court tried to manufacture

direct evidence, mainly in the form of legislative

findings and statements suggesting that the

legislature “was not focused on trying to remedy likely

vote dilution.” App. 510. But that simply restates that

the legislature was focused on achieving its political

goals; it is not direct evidence of discriminatory intent.

The district court also pointed to aspersions on the

map cast by legislators on the losing end of the vote,

but comments from (as the district court put it)

“legislators whose preferences did not prevail” (App.

511)—and who have an obvious motivation to smear

the map—are not “relevant.” Alexander, 602 U.S. at 8.

So the district court was left to rely on

circumstantial evidence. But “[p]roving racial

[discrimination] with circumstantial evidence alone is

much more difficult.” Ibid. In fact, this Court has

“never invalidated an electoral map in a case in which

the plaintiff failed to adduce any direct evidence” of

discriminatory intent. Ibid.

Circumstantial evidence is especially suspect when

used to “infer[] bad faith based on the racial effects of

a political gerrymander in a jurisdiction in which race

and partisan preference are very closely correlated.”

Id. at 20–21. Alabama has that close correlation. See

App. 280 (noting apparently undisputed testimony

that in “Alabama, Black voters are voting Democratic

more than 90% of the time”). Where a large percentage

of “black voters vote[s] for Democratic candidates,” “it

is obvious that any map” seeking a Republican

advantage in a district “would inevitably involve the

removal of a disproportionate number of black voters.”

Alexander, 602 U.S. at 20. If there is a “possibility”

that the legislature had such a “partisan goal,” and

“nothing rules out that possibility,” it “is dispositive”

“[i]n light of the presumption of legislative good faith”:

no discriminatory intent can be found. Ibid.

Here, it is blindingly obvious that the Alabama

legislature preferred a map that would generally

support the election of six Republican House members

to a map that would generally support only five. The

district court acted as if there were some evidentiary

question on that point, waving aside calls from

national leaders about preserving “the slim

Republican majority in the United States House” as

“precious little evidence.” App. 524. Yet even the

plaintiffs affirmatively argued below that the

legislature wanted to support the election of a

“Republican instead in District 2.” App. 473 (cleaned

up). Of course it did. Denying that each party has a

motivation in districting to support election of its own

blinks reality.

The district court eventually (and obliquely)

conceded the point, acknowledging that “[t]he

Legislature may well have drawn the 2021 Plan the

way it did for partisan reasons.” App. 525. And the

court acknowledged that the map it believed the

legislature should have passed in 2023 “does not

achieve all the political goals of the Legislature.” App.

514. Again, of course not: it inevitably resulted in the

election of two Democrats rather than one. Yet the

court refused to follow this Court’s lead and hold that

“the high priority that the legislature gave to its

partisan goal provides an entirely reasonable

explanation for” its map. Alexander, 602 U.S. at 21.

Nor did the court even try to disentangle race and

politics in its intentional discrimination discussion.

Contra App. 488 (“we draw every inference we can in

the Legislature’s favor”).2

Rather,

the

court’s

entire

intentional

discrimination holding hinged on one fact: the State’s

decision after a preliminary ruling against the prior

map not to draw a second majority-minority district.

“[T]he State’s avowed partisan objective easily

explains” this decision: it is no surprise that Alabama

preferred its own map that would likely result in the

election of six Republicans to a court-imposed one that

would likely lead to only five. Alexander, 602 U.S. at

21. Because “the legislature’s stated partisan goal can

easily explain this decision,” the district court “erred

2 The legislature also had an avowed “political goal[]” of “keeping

Mobile and Baldwin Counties whole and together in one

congressional district”—a permissible goal that the district court

agreed its preferred plan did not satisfy. App. 514.

in crediting the less charitable conclusion that the

legislature’s real aim was racial.” Id. at 22.

The district court’s errors, though, did not end

there. As detailed below, it also erred in its (vehement)

belief that a State’s effort to address a tentative ruling

by passing a new map with a different approach to the

alleged statutory violation proved racial discrimination. Indeed, even if the prior map had an adjudicated

§ 2 violation, modern-day § 2 liability can be imposed

absent racial discrimination. Thus, even an actual

decision to draw a map that a State knew would fail

§ 2 could not alone prove intentional discrimination.

In too many cases, § 2 is now read to require racebased districting. A State’s efforts to resist race-based

action are not discriminatory. Quite the opposite: they

vindicate “the constitutional promise of equal

treatment.” Students for Fair Admissions, 600 U.S. at

228.

A. The district court’s evidence does not

show intentional racial discrimination.

The circumstantial evidence relied on by the

district court to find intentional discrimination was

“very weak”—and wholly inadequate to overcome the

legislative presumption of good faith. Alexander, 602

U.S. at 18. Though the court walked through several

factors articulated by this Court’s precedents about

intentional discrimination—historical background,

the events leading to the 2023 map, the legislative

process, and any disparate impact—its findings all

boiled down to a single focus: the State did not draw a

map that adhered to the suggestion in a preliminary

ruling against a prior map that another majority-

minority district could be necessary to resolve an

alleged § 2 violation by that old map.

1. To begin, the district court’s intentional

discrimination analysis depended on its view that the

State “purposefully refuse[d] to satisfy the remedial

requirements unambiguously found in a federal court

order.” App. 526. A hypothetical shows this reliance. If

there had been no preliminary injunction in the

challenge to the 2021 map—or if there had been no

prior litigation—and a suit had been brought against

Alabama only for the 2023 map, would the district

court’s reasoning have stood up? Of course not. Its

entire intentional discrimination analysis centered on

the State’s supposed refusal to provide a remedy. See

App. 527 (“We do not hold that if SB5 had been

originally adopted in 2021, the Milligan Plaintiffs

would have prevailed on a claim of intentional

discrimination at that time.”).

But the district court’s reasoning immediately runs

into problems. “[I]ntent is identified as the

constitutional standard and yet the persons who

allegedly harbored an improper intent are never

identified or mentioned.” Rogers v. Lodge, 458 U.S.

613, 647 (1982) (Stevens, J., dissenting); see App. 490

(“[W]e do not accuse any Legislator of being animated

by racism.”).

Instead, the court identified the passage of a new

map as intentionally discriminatory—because the

court had suggested different maps in a preliminary

ruling. But the court’s earlier preliminary injunction

ordered the State to do only one thing: refrain “from

conducting any congressional elections according to

the [2021] Plan.” App. 769. Once this Court allowed

that order to take effect, the State did not conduct a

congressional election using the 2021 map. So the

State fully complied with the preliminary injunction

order.

At the same time, the State chose to enact a new

map. To be sure, the district court gave the State the

option “to enact a remedial plan.” App. 770. And the

court alluded to what it saw as “the practical reality,

based on the” evidence “adduced during the

preliminary injunction proceedings, that any remedial

plan will need to include two districts in which Black

voters either comprise a voting-age majority or

something quite close to it.” Ibid. But it did not require

the State to draw such a map. See App. 515

(acknowledging that “the face of the order did not

order the Legislature to do anything”); contra App. 520

(darkly pronouncing that “an attempt to evade a court

order is not legitimate”). And it did not even say that

such a map would ever be required. As several

plaintiffs reassured this Court, the district court “did

not order Alabama to enact Plaintiffs’ plans or even to

create a second majority-Black district.” Brief for

Milligan Appellees 2, Allen v. Milligan, No. 21-1086

(U.S. July 11, 2022). So while the district court now

proclaims that “[p]reliminary injunctions are

preliminary, but they are not advisory,” App. 517, the

court’s suggestions about a new map were expressly

advisory.

“[T]he preliminary nature of the” prior opinion “is

relevant” to understand the State’s response. Abbott v.

Perez, 585 U.S. 579, 610 (2018). Preliminary

injunctions “do not conclusively resolve legal disputes”

and are “often dependent as much on the equities of a

given case as the substance of the legal issues it

presents.” Lackey v. Stinnie, 604 U.S. 192, 200 (2025).

Thus, this Court has repeatedly “cautioned against

improperly equating ‘likelihood of success’ with

‘success’ and treating preliminary injunctions as

tantamount to decisions on the underlying merits.” Id.

at 201 (cleaned up) (quoting University of Texas v.

Camenisch, 451 U.S. 390, 394 (1981)). A preliminary

injunction grants “no enduring change” and is

“tentative in character, in view of the continuation of

the litigation to definitively resolve the controversy.”

Id. at 203 (brackets omitted) (quoting Sole v. Wyner,

551 U.S. 74, 78, 86 (2007)). In short, the district court’s

preliminary injunction did no more than “temporarily

preserve[] the parties’ litigating positions based in

part on a prediction of the likelihood of success on the

merits.” Id. at 207.

Though the district court repeatedly emphasized

this Court’s affirmance of the preliminary injunction,

that affirmance was about likelihood of success and

only “[b]ased on [the Court’s] review of the record”

assembled at the preliminary stage. Allen v. Milligan,

599 U.S. 1, 19 (2023). That record was compiled “on an

extremely expedited basis” without even depositions

of expert witnesses. App. 777; see App. 793–94. This

Court’s decision in Allen necessarily “intimate[d] no

view as to the ultimate merits of [the Plaintiffs’]

contentions.” Doran v. Salem Inn, Inc., 422 U.S. 922,

934 (1975) (cleaned up).

All that shows that the district court’s tentative

suggestion that a permissible map that would

preserve the parties’ positions could require

something like another majority-minority district has

little bearing on the State’s subsequent enactment of

the 2023 map. The State was perfectly entitled to

think that it would eventually prevail on the § 2

challenge to its old map after a full trial, particularly

given the “considerable disagreement and uncertainty

regarding the nature and contours of a vote dilution

claim.” Merrill v. Milligan, 142 S. Ct. 879, 883 (2022)

(Roberts, C.J., dissenting from grant of applications

for stays). That four Justices of this Court believed

that the State should have prevailed even at the

preliminary stage is ample evidence that the State’s

view was reasonable. What’s more, the State at trial

would have the opportunity to show that “even if

Congress in 1982 could constitutionally authorize

race-based redistricting under § 2 for some period of

time, the authority to conduct race-based

redistricting” had expired. Allen, 599 U.S. at 45

(Kavanaugh, J., concurring in part); see also id. at 78–

88 (Thomas, J., dissenting, joined by Gorsuch and

Barrett, JJ.); id. at 100 (Alito, J., dissenting).

The State was also entitled to think that, whatever

the district court’s tentative view of a permissible

map, it could find another way to comply with § 2.

Section 2 “determination[s] [are] peculiarly dependent

upon the facts of each case,” Thornburg v. Gingles, 478

U.S. 30, 79 (1986), requiring “an intensely local

appraisal of the electoral mechanism at issue,” Allen,

599 U.S. at 19 (cleaned up). And again, the district

court’s § 2 view of the 2021 map was only tentative. In

fact, in recent § 2 dilution cases, the State won at the

totality-of-circumstances stage after full trial. See

Alabama Leg. Black Caucus v. Alabama, 989 F. Supp.

2d 1227, 1287 (M.D. Ala. 2013), vacated on other

grounds, 575 U.S. 254 (2015); Alabama St. Conf.

NAACP v. Alabama, 612 F. Supp. 3d 1232, 1316 (M.D.

Ala. 2020). The legislature could have found those

decisions persuasive and thought the State could

prevail on similar grounds after having a chance to

fully make its case.

Thus, the State had good reasons to think that it

could design another map that would be legally

compliant. Its choice to follow that view, rather than

assume that a district court’s tentative view of another

map would automatically invalidate a different

approach, is not evidence of discriminatory intent at

all. “There is nothing to suggest that the Legislature

proceeded in bad faith—or even that it acted

unreasonably—in pursuing this strategy.” Abbott, 585

U.S. at 612. Yet the district court strangely counted

the State’s efforts “to persuade” the federal judiciary

“to change its view about the Legislature’s Section

Two violation” as itself discriminatory. App. 21–22;

see, e.g., App. 494 (faulting the legislature for

“invit[ing] a historian to testify about the historical

connections between Mobile and Baldwin Counties”).

The district court also expressed great concern that

enactment of a new map would result in “an infinity

loop that no court order can break.” App. 516. First,

that concern has nothing to do with whether the State

intentionally discriminated based on race. Second,

that challenges to an “old rule” are often “moot” is not

unique to districting. New York State Rifle & Pistol

Ass’n, Inc. v. City of New York, 590 U.S. 336, 339

(2020). “[W]here the plaintiff may have some residual

claim under the new framework,” any prior judgment

should be vacated and “the parties may, if necessary,

amend their pleadings or develop the record more

fully”—as happened here. Ibid. Plaintiffs “remain[]

free to initiate a § 2 proceeding if [they] believe[] that

a jurisdiction’s newly enacted voting ‘qualification,

prerequisite, standard, practice, or procedure’ may

violate that section.” Reno v. Bossier Par. Sch. Bd., 520

U.S. 471, 485 (1997). But federal courts do not sit as

permanent “councils of revision,” United States v.

Rutherford, 442 U.S. 544, 555 (1979), and the district

court’s apparent frustration with that fact is no

substitute for actual evidence of intentional

discrimination.

2. Even if the district court had finally adjudicated

an actual § 2 violation (and been affirmed), the State’s

choice below still would not suggest intentional

discrimination. Perhaps one could argue that a refusal

to remedy intentional discrimination itself shows such

discrimination. But modern-day § 2 liability attaches

absent any intentional discrimination—or even any

race-based official discrimination at all. See Chisom v.

Roemer, 501 U.S. 380, 394 (1991) (“[P]roof of intent is

no longer required to prove a § 2 violation.”). Under

Gingles, liability generally attaches “[i]f voting is

racially polarized in a jurisdiction, and if there exists

any more or less reasonably configured districting

plan that would enable the minority group to

constitute a majority in a number of districts roughly

proportional to its share of the population.” Allen, 599

U.S. at 81 (Thomas, J., dissenting); see App. 115–16

(“it will be only the very unusual case in which the

[P]laintiffs can establish the existence of the three

Gingles factors but still have failed to establish a

violation of § 2”).

“But racially polarized voting”—and independent

residential

choices—are

“not

evidence

unconstitutional discrimination,” Nw. Austin Mun.

Util. Dist. No. One v. Holder, 557 U.S. 193, 228 (2009);

see Rogers, 458 U.S. 623–24 (“bloc voting along racial

lines” is “insufficient” “to prove purposeful

discrimination”). That is especially true given that

Gingles, as applied by the district court, does not

disentangle race and politics. See App. 372 (declining

to “fully disentangle party and race”); App. 392 (“we

cannot separate voters’ racial considerations from

their party affiliations”). Plus, “[g]iven the ubiquity

and long tradition of highly majoritarian electoral

systems in American democracy, there is scant basis

for suspecting an official intent to discriminate from

the mere fact that an electoral system results in a

minority

community

enjoying

less-thanproportionate share of political representation.” C.

Elmendorf, Making Sense of Section 2: Of Biased

Votes, Unconstitutional Elections, and Common Law

Statutes, 160 U. Pa. L. Rev. 377, 401 (2012). Thus, § 2

is “doctrinally divorced from the [Voting Rights Act’s]

purpose” to stand against official discrimination in

voting. Id. at 398.

While the district court characterized its

preliminary holding as finding that the old map “likely

unlawfully diluted the votes of Black Alabamians,”

App. 489, a liability finding under Gingles does not

show that any dilution occurred because of race. Given

that, it is wrong to say that, by passing another map

without two majority-minority districts, “the

Legislature purposefully diluted Black Alabamians’

opportunity to participate in the political process”

based on race. App. 490. Modern-day § 2 liability does

not permit this extrapolation, for it identifies neither

intentional nor race-based discrimination. Compare

Alexander, 602 U.S. at 6 (“[A] party challenging a

map’s constitutionality must disentangle race and

politics if it wishes to prove that the legislature was

motivated by race as opposed to partisanship.”);

Brnovich v. Democratic Nat’l Comm., 594 U.S. 647,

689 (2021) (“partisan motives are not the same as

racial motives”).

An analogy proves the point. Say that Congress

passed a “results test” for college admissions, and a

district court found that a public university did not

enroll enough minority students—making no effort to

disentangle merit from race. Cf. App. 372 (declining to

“disentangle party and race”). Would the university’s

choice of another merit-based system—that would not

change the racial composition of the student body, but

would continue to be race-neutral—prove intentional

discrimination? It is hard to see how the answer to

that question could be yes.

In short, “choos[ing] a redistricting plan that has a

dilutive impact”—especially given how Gingles

envisions vote dilution—“does not, without more,

suffice to establish that the jurisdiction acted with a

discriminatory purpose.” Reno, 520 U.S. at 487–88.

“Discriminatory purpose” “implies more than intent as

volition or intent as awareness of consequences,” and

instead “implies that the decisionmaker” “selected or

reaffirmed a particular course of action at least in part

‘because of,’ not merely ‘in spite of,’ its adverse effects

upon an identifiable group.” Pers. Adm’r of

Massachusetts v. Feeney, 442 U.S. 256, 279 (1979). The

evidence that Alabama purposefully discriminated

based on race because it enacted a race-neutral law is

pitifully weak—no matter how much the district court

was evidently affronted by this new law. As shown

next, it makes much more sense that Alabama enacted

such a law because the Fourteenth Amendment

requires equal treatment based on race.

B. The State’s conduct is explained by its

obligation to provide equal treatment.

Beyond politics, another explanation exists for the

2023 map that is far more compelling than racial

discrimination—the State’s adherence to its

constitutional obligation to eliminate “all” race-based

state action. Students for Fair Admissions, 600 U.S. at

206. To the extent that the district court believed that

the State had to draw another “district[] in which

Black voters either comprise a voting-age majority or

something quite close to it” (App. 491)—though no

such order existed—that would have required the

State to discriminate based on race.

The district court seemed to welcome that

discrimination. Indeed, the remedial map it adopted

was premised on such discrimination, notwithstanding the court’s claim that its special master’s plan was

“race-blind.” App. 514. Not so. The only “reason the

Special Master Plan splits Mobile County” is to

segregate citizens by race. Ibid.; see App. 530–31 (“all

stakeholders know that . . . all paths to” drawing a

second district “revolve around Mobile County”). As

the court itself explained, all remedial plans “split

Mobile County to join Black Alabamians living in

Mobile with parts of the Black Belt in a majority-Black

district.” App. 521. So while the court highlighted that

its special master “did not display racial demographic

data within the mapping software . . . while drawing

his remedial proposals,” App. 17, he had no need to.

He had already decided to split Mobile County to

segregate citizens by race, and before he produced his

map, he confirmed that adequate segregation was

accomplished with “an election performance analysis”

based on race. Ibid.; see Milligan D. Ct. Dkt. 295, at

29 (“A performance analysis assesses whether, using

recent election results, a candidate preferred by a

particular [racial] group would be elected from a

proposed opportunity district.”); see id. at 35 (“the

Special Master confirmed that Black residents had an

opportunity to elect candidates of their choice”).

“Racial considerations predominate when race [i]s

the criterion” that cannot “be compromised in the

drawing of district lines.” Alexander, 602 U.S. at 7

(cleaned up). And when the government “intentionally

creates a majority-minority district, race is necessarily

its predominant motivation.” League of United Latin

Am. Citizens v. Perry, 548 U.S. 399, 517 (2006) (Scalia,

J., concurring in judgment in part and dissenting in

part, joined by Roberts, C.J., and Thomas & Alito, JJ.).

Thus, there is no question that the district court

wanted the State to intentionally discriminate based

on race, in service of its preliminary view about § 2

liability. But States have a higher calling than the

feelings of district judges: “the Constitution’s

unambiguous guarantee of equal protection.” Students

for Fair Admissions, 600 U.S. at 212. Alabama has

consistently argued that drawing the map envisioned

by the district court would violate that guarantee. See,

e.g., Allen, 599 U.S. at 41. That provides an easy,

obvious, and more “charitable” (Alexander, 602 U.S. at

22) explanation for its map: it continued to seek ways

to comply with the Constitution, while also gamely

trying to satisfy § 2’s “notoriously unclear and

confusing” standards. Merrill, 142 S. Ct. at 881

(Kavanaugh, J., concurring).

This explanation is valid regardless of whether § 2

could somehow serve as an adequate justification for

racial segregation today. As amicus has recently

explained, there is significant reason to doubt that.

See generally Brief for Project on Fair Representation

10–26, Louisiana v. Callais & Robinson v. Callais,

Nos. 24-109, 24-110 (U.S. Sept. 23, 2025). But there is

no doubt that racial segregation for districting

purposes is still racial segregation. That is why this

Court has repeatedly emphasized the tension between

§ 2 and the Constitution’s guarantee of equal

treatment based on race. See, e.g., Abbott, 585 U.S. at

587 (quoting Bush v. Vera, 517 U.S. 952, 977 (1996)

(plurality opinion)).3 No matter if strict scrutiny might

excuse that discrimination sometimes, it is still

discrimination. Thus, a State that refuses to

discriminate—even one that, unlike Alabama,

believes its law will certainly violate modern § 2—has

not intentionally discriminated. It has refused to

discriminate, prioritizing its constitutional obligations

over a potential statutory excuse to discriminate.

By analogy, take a State that declined to ever

segregate its prisons based on race. Even if it could

3 Even the district court claimed to “take seriously the concern

that Section Two ‘may impermissibly elevate race in the

allocation of political power within the States.’” App. 520 (quoting

Allen, 599 U.S. at 41–42); see App. 456.

have avoided liability for such segregation in some

circumstances, see Students for Fair Admissions, 600

U.S. at 207, it beggars belief to say that this refusal is

itself discriminatory. It is the opposite of discriminatory; it is equal.

What’s more, regardless of whether a State’s law

“compl[ies] with strict scrutiny,” this Court said in

Students for Fair Admissions that a law “may never

use race as a stereotype or negative.” Under the

“commands of the Equal Protection Clause,” “race may

never be used as a ‘negative’ and . . . may not operate

as a stereotype.” Id. at 218 (emphasis added). And

“[j]ust like” universities used race as a negative and

stereotype in the affirmative action context, “drawing

district lines” with “consideration of race” also uses

race as a negative or stereotype. Id. at 361 n.34

(Sotomayor, J., dissenting).

“[D]istricting [laws] that sort voters on the basis of

race ‘are by their very nature odious.’” Wisconsin

Legislature v. Wisconsin Elections Comm’n, 595 U.S.

398, 401 (2022) (quoting Shaw v. Reno, 509 U.S. 630,

643 (1993)). “When the State assigns voters on the

basis of race, it engages in the offensive and

demeaning assumption that voters of a particular

race, because of their race, think alike, share the same

political interests, and will prefer the same candidates

at the polls.” Miller v. Johnson, 515 U.S. 900, 911–12

(1995) (cleaned up). Consider, for instance, the district

court’s finding that “issues of race drive Black voters’

choices at the polls,” accompanied by snippets from

two black voters’ testimony and the conclusion that

“[w]e see no reason to think that these Black voters

are unusual.” App. 391. Assumptions like these

“further[] stereotypes that treat individuals as the

product of their race, evaluating their thoughts and

efforts—their very worth as citizens—according to a

criterion barred to the Government by history and the

Constitution.” Students for Fair Admissions, 600 U.S.

at 221 (cleaned up).

Thus, a refusal to racially stereotype voters amply

justifies Alabama’s new map. That commitment to

equal treatment does not show discrimination. This

Court has explained that “the Fourteenth Amendment

guarantees equal laws, not equal results.” Feeney, 442

U.S. at 273. So a State choosing between equal laws

and equal results has no real choice at all: it must

follow the Constitution. The Constitution guarantees

that laws will not discriminate based on race.

Alabama’s proper refusal to discriminate was not

discriminatory.

Permeating the district court’s opinion is a

frustration that Alabama did not just do what the

court suggested in its preliminary finding. However

frustrating a State’s perceived recalcitrance might be,

a State does not have to make a federal court’s job

easy. But it does have to follow the Constitution,

including its promise of equal treatment. No doubt,

the federal courts have made that job harder by

pretending that a statute perhaps can override States’

constitutional obligations. But a state legislature that

errs on the side of the Constitution’s promise of equal

treatment has not discriminated based on race; it has

refused to discriminate based on race. The district

court’s upside-down analysis “regrettably succumbs to

th[e] trend” of “attempt[ing] to discredit an argument

not by proving that it is unsound but by attacking the

character or motives of the argument’s proponents.”

Ramos v. Louisiana, 590 U.S. 83, 141 (2020) (Alito, J.,

dissenting, joined by Roberts, C.J., and Kagan, J.).

Hence the court’s disregard of Students for Fair

Admissions and its reminder that “[e]liminating racial

discrimination means eliminating all of it.” 600 U.S.

at 206. Imputing racism to legislative bodies that are

acting without regard to race “cheapens the gravity” of

actual intentional discrimination—like segregating

voters based on racial stereotypes. Whole Woman’s

Health v. Jackson, 595 U.S. 30, 49 (2021).

CONCLUSION

For these reasons, the Court should note probable

jurisdiction and reverse.

Respectfully submitted,