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

Supreme Court briefOct 20, 2025

Ask Donna

What actually matters in this document.

Text

No. 25-274

IN THE

Supreme Court of the United States

_________

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

Appellants,

EVAN MILLIGAN, ET AL.

_________ Appellees.

On Appeal from the United States District Court

for the Northern District of Alabama

_________

MOTION TO AFFIRM

_________

DAVIN M. ROSBOROUGH

SOPHIA LIN LAKIN

THERESA J. LEE

DAYTON CAMPBELL-HARRIS

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

125 Broad St.

New York, NY 10004

CECILLIA D. WANG

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

425 California St., Suite 700

San Francisco, CA 94104

JESSICA L. ELLSWORTH

JO-ANN TAMILA SAGAR

HOGAN LOVELLS US LLP

555 Thirteenth St., NW

Washington, DC 20004

DEUEL ROSS

Counsel of Record

VICTOR OLOFIN

NAACP LEGAL DEFENSE &

EDUCATIONAL FUND, INC.

700 Fourteenth St., NW

Washington, DC 20005

(202) 682-1300

dross@naacpldf.org

JANAI NELSON

SAMUEL SPITAL

STUART NAIFEH

KATHRYN SADASIVAN

BRITTANY CARTER

COLIN BURKE

NAACP LEGAL DEFENSE &

EDUCATIONAL

FUND, INC.

40 Rector St., 5th Floor

New York, NY 10006

Counsel for Appellees

Additional counsel listed on inside cover

DAVID DUNN

SHELITA STEWART

MICHAEL J. WEST

AMANDA N. ALLEN

HOGAN LOVELLS US LLP

555 Thirteenth St., NW

Washington, DC 20004

MICHAEL TURRILL

HARMONY A. GBE

JAY ETTINGER

HOGAN LOVELLS US LLP

1999 Avenue of the Stars,

Suite 1400

Los Angeles, CA 90067

ALISON MOLLMAN

LAUREL HATTIX

ACLU OF ALABAMA

PO Box 6179

Montgomery, AL 36106

SIDNEY M. JACKSON

NICKI LAWSEN

WIGGINS CHILDS PANTAZIS

FISHER & GOLDFARB, LLC

301 19th St. North

Birmingham, AL 35203

JOHANNAH CASSEL-WALKER

HOGAN LOVELLS US LLP

4 Embarcadero Center,

Suite 3500

San Francisco, CA 94111

CHARNICE CULMER

HOGAN LOVELLS US LLP

1735 Market St., Floor 23

Philadelphia, PA 19103

(ii)

QUESTIONS PRESENTED

1. Whether the three-judge court properly applied

this Court’s settled precedents in finding that

Alabama violated §2 of the Voting Rights Act in

enacting a congressional districting plan that,

contrary to the preliminary injunction ordered by the

same court and affirmed by this Court in Allen v.

Milligan, 599 U.S. 1 (2023), did not contain a second

district in which Black voters have an opportunity to

elect a representative of their choice.

2. Whether, as this Court recognized only two Terms

ago in Milligan, §2 of the Voting Rights Act is

constitutional.

3. Whether §2 of the Voting Rights Act, which has

principally been enforced by private plaintiffs since its

enactment, creates a privately enforceable right.

4. Whether Alabama violated the Fourteenth

Amendment by intentionally enacting a districting

plan that “minimize[d] . . . the voting potential of”

Black Alabamians. Alexander v. S.C. State Conf. of the

NAACP, 602 U.S. 1, 38-39 (2024).

RULE 29.6 CORPORATE DISCLOSURE

The Alabama State Conference of the NAACP is a

non-profit membership civil rights advocacy

organization. There are no parents, subsidiaries

and/or affiliates of the Alabama State Conference of

the NAACP that have issued shares or debt securities

to the public.

Greater Birmingham Ministries is a non-profit

membership organization that provides emergency

services to people in need. There are no parents,

subsidiaries and/or affiliates of the Greater

Birmingham Ministries that have issued shares or

debt securities to the public.

iii

TABLE OF CONTENTS

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

RULE 29.6 CORPORATE DISCLOSURE ............. ii

TABLE OF CONTENTS ........................................ iii

TABLE OF AUTHORITIES .................................... vi

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

STATEMENT .......................................................... 5

A. This Court Affirms the District Court’s

Preliminary

Injunction

Against

Alabama’s 2021 Congressional Map. ........... 5

B. Alabama Enacts the 2023 Congressional

Map, Admitting That this Map Failed to

Remedy the Likely Violation Identified in

Milligan......................................................... 6

C. The District Court Preliminarily Enjoins

SB5. ............................................................... 9

D. The District Court Issues a Final

Judgment Holding that SB5 Violates the

VRA And the Fourteenth Amendment. ....... 10

1. The District Court Concludes that

Alabama Violated §2. .............................. 10

2. The Court Finds that Alabama

Engaged

Intentional

Racial

Discrimination in Adopting SB5............. 14

REASONS TO DISMISS OR AFFIRM ................... 15

THE DISTRICT COURT CORRECTLY

APPLIED

THIS

COURT’S

PRECEDENTS IN HOLDING THAT SB5

VIOLATED §2............................................... 15

A. This Court Has Already Rejected

Alabama’s Challenges to the Proposed

Maps’ Configuration. ............................... 16

B. Alabama’s Attempt to Immunize SB5

from Challenge Fails. .............................. 17

C. The

District

Court

Correctly

Concluded that Black Alabamians

Have Less Opportunity to Participate

in the Political Process than White

Alabamians. ............................................. 19

II. SECTION 2 IS CONSTITUTIONAL AND

CREATES A JUSTICIABLE STANDARD

FOR IDENTIFYING AND REMEDYING

RACIAL VOTE DILUTION. ........................ 21

A. Recent

Precedent

Compels

the

Conclusion that §2 Is Constitutional. ..... 21

B. Alabama’s Arguments to the Contrary

Are Unpersuasive. ................................... 25

1. Section 2 Uses Race in a Limited

Manner. .............................................. 25

2. Section 2 Does Not Employ Race as

a Stereotype or a Negative. ............... 29

3. Section 2 Imposes Temporal Limits

on Remedies. ...................................... 30

III. SECTION 2 IS PRIVATELY

ENFORCEABLE. ......................................... 31

IV. THE DISTRICT COURT’S

INTENTIONAL DISCRIMINATION

FINDINGS ARE NOT CLEARLY

ERRONEOUS. .............................................. 33

A. The District Court’s Finding of

Intentional

Discrimination

Supported by a Robust Record................ 34

B. The District Court Applied the Correct

Legal Framework, Without Requiring

Proof of Racist Intent. ............................. 36

C. Alabama’s Attempts to Suggest

Alternative Motives Do Not Establish

Clear Error. ............................................. 36

CONCLUSION ........................................................ 40

TABLE OF AUTHORITIES

CASES

Abrams v. Johnson,

521 U.S. 74 (1997) .......................................... 23

Ala. Legis. Black Caucus v. Alabama,

989 F. Supp. 2d 1227 (M.D. Ala. 2013) .......... 26

Ala. State Conf. of NAACP v. Alabama,

612 F. Supp. 3d 1232 (M.D. Ala. 2020) .......... 26

Ala. State Conf. of NAACP v. City of Pleasant Grove,

No. 2:18-CV-02056, 2019 WL 5172371

(N.D. Ala. Oct. 11, 2019)................................. 24

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

602 U.S. 1 (2024) ................ 4, 24, 34, 36, 38, 39

Allen v. City of Evergreen,

No. 13-CV-107, 2013 WL 1163886

(S.D. Ala. Mar. 20, 2013) ................................ 24

Allen v. Milligan,

144 S. Ct. 476 (2023) .................................... 3, 9

Allen v. Milligan,

599 U.S. 1 (2023) .......... 1-3, 5, 6, 10, 13, 15, 16,

.................... 18-21, 23, 25, 26, 28, 30, 31, 35, 38

Anderson v. City of Bessemer City,

470 U.S. 564 (1985)......................................... 39

Bartlett v. Strickland,

556 U.S. 1 (2009) ................................ 16, 17, 23

Bd. of Ed. of Okla. City Pub. Schs. v. Dowell,

498 U.S. 237 (1991)......................................... 30

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

580 U.S. 178 (2017)................................... 23, 27

vii

Black Pol. Task Force v. Galvin,

300 F. Supp. 2d 291 (D. Mass. 2004) ............. 29

Branch v. Smith,

538 U.S. 254 (2003)......................................... 24

City of Richmond v. J.A. Croson Co.,

488 U.S. 469 (1989)......................................... 22

Cooper v. Harris,

581 U.S. 285 (2017)................. 23, 25, 28, 30, 39

Dillard v. Chilton Cnty.,

615 F. Supp. 2d 1292 (M.D. Ala. 2009) .......... 24

Easley v. Cromartie,

532 U.S. 234 (2001)......................................... 28

Escambia Cnty. v. McMillan,

466 U.S. 48 (1984) .......................................... 34

Flowers v. Mississippi,

588 U.S. 284 (2019)......................................... 36

Garza v. Cnty. of Los Angeles,

918 F.2d 763 (9th Cir. 1990) .......................... 36

Gonzaga Univ. v. Doe,

536 U.S. 223, 280 (2002) ................................ 33

Health & Hosp. Corp. of Marion Cnty. v. Talevski,

599 U.S. 166 (2023)................................... 31, 32

Jones v. Alfred H. Mayer Co.,

392 U.S. 409 (1968)......................................... 30

Jones v. Jefferson Cnty. Bd. of Educ.,

No. 2:19-CV-01821, 2019 WL 7500528

(N.D. Ala. Dec. 16, 2019) ................................ 24

Lawyer v. Dep’t of Justice,

521 U.S. 567 (1997)................................... 23, 24

viii

League of United Latin Am. Citizens v. Perry,

548 U.S. 399 (2005)................. 19, 28, 29, 32, 36

Maine v. Thiboutot,

448 U.S. 1 (1980) ............................................ 33

Miller v. Johnson,

515 U.S. 900 (1995)......................................... 28

Miller-El v. Dretke,

545 U.S. 231 (2005)......................................... 37

Morse v. Republican Party of Va.,

517 U.S. 186 (1996)................................... 31, 33

Rogers v. Lodge,

458 U.S. 613 (1982)......................................... 36

Rucho v. Common Cause,

588 U.S. 684 (2019)......................................... 27

Shaw v. Hunt,

517 U.S. 899 (1996)................................... 22, 23

Stout ex rel. Stout v. Jefferson Cnty. Bd. of Educ.,

882 F.3d 988 (11th Cir. 2018) ........................ 19

Students for Fair Admissions v.

President & Fellows of Harvard Coll.,

600 U.S. 181 (2023)................................3, 21-26

Swann v. Charlotte-Mecklenburg Bd. of Educ.,

402 U.S. 1 (1971) ............................................ 31

Thornburg v. Gingles,

478 U.S. 30 (1986) ..... 5, 10, 13, 15, 17, 21, 25, 27, 29

United States v. City of Calera,

No. CV-08-BE-1982-S, 2009 WL 10730411

(N.D. Ala. Oct. 23, 2009)................................. 24

United States v. Vill. of Port Chester,

704 F. Supp. 2d 411 (S.D.N.Y. 2010) ............. 24

Whitcomb v. Chavis,

403 U.S. 124 (1971)......................................... 20

Wis. Legislature v. Wis. Elections Comm’n,

595 U.S. 398 (2022)................................... 24, 25

STATUTES

52 U.S.C. § 10301(a) .................................................. 32

52 U.S.C. § 10301(b) ................................ 19, 25, 28, 32

52 U.S.C. § 10302 ...................................................... 33

Pub. L. No. 89-110, 79 Stat. 437 (1965) .................... 33

IN THE

Supreme Court of the United States

_________

No. 25-274

_________

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

Appellants,

EVAN MILLIGAN, ET AL.

_________ Appellees.

On Appeal from the United States District Court

for the Northern District of Alabama

_________

MOTION TO AFFIRM

_________

INTRODUCTION

Alabama’s jurisdictional statement seems like déjà

vu because it is.

Two Terms ago, this Court upheld a three-judge

district court’s order concluding that Alabama likely

violated §2 of the Voting Rights Act (VRA). See Allen

v. Milligan, 599 U.S. 1, 9-17 (2023). That dispute

concerned Alabama’s 2021 congressional plan, in

which Alabama maintained the core of an early-1970s

map and unlawfully diluted Black voting power by

cracking the historic “Black Belt” community and

separating it from the City of Mobile. In 2021 (as

today), Alabama expressly prioritized keeping

together two coastal counties because of their “French

and Spanish colonial heritage.” Then (as now)

intensely racially polarized voting—where most

White Alabamians refuse to vote for Black candidates,

regardless of their political party—combined with

Alabama’s “well documented” and recent history of

“repugnant” discrimination, id. at 22 (citation

omitted), to make it impossible for Black voters to

elect their preferred candidates beyond one district.

This

Court

affirmed

the

district

court’s

“understandabl[e]” view that the evidence was

“insufficient to sustain Alabama’s overdrawn

argument that there can be no legitimate reason to

split” two counties. Id. at 21 (citation modified).

This appeal from final judgment is nearly identical

to the last one. Alabama has again enacted a map that

cracks the Black vote—this time in defiance of the

injunction affirmed by this Court. Alabama largely

repeats the arguments rejected in Milligan. It adds

only an effort to immunize its 2023 map from review

with “legislative findings,” which again prioritize

keeping Mobile and Baldwin Counties together. But

Defendants’ own testimony undermines the propriety

of these “findings,” which legislators neither

requested, nor wrote. Instead, the state Solicitor

General authored and inserted the “findings” into the

bill with the 2023 plan at “the very last minute.”

App.22. Defendant Representative Pringle refused to

put his name on that bill due to his concern that the

2023 plan violated the VRA. App.421. Further, the

undisputed evidence is that Alabama split Baldwin

and Mobile Counties for a century and united them in

the 1970s to fracture the Black vote after the VRA’s

passage. After a 12-day trial, the three-judge court

held that Alabama’s 2023 map violated §2 and the

Fourteenth Amendment

underlying Milligan.

the

same

grounds

This Court previously rejected Alabama’s request to

stay the district court’s ruling that the 2023 map

likely violated §2. Allen v. Milligan, 144 S. Ct. 476

(2023). Alabama again asks this Court to jettison the

decision below. This Court should again decline that

invitation. On remand, the district court faithfully

applied this Court’s decision in Milligan and anchored

its analysis in well-supported factual findings and

credibility determinations.

Recognizing this, Alabama urges this Court to cast

aside Milligan and §2 as unconstitutional based on

Students for Fair Admissions v. President and Fellows

of Harvard College (“SFFA”), 600 U.S. 181 (2023). But

SFFA was decided concurrently with Milligan. They

were consistent then and remain consistent now.

Unlike the admissions processes in SFFA, remedial

redistricting sometimes allows a limited awareness of

race only where there is evidence of official

discrimination and significant racially polarized

voting. Neither of these evidentiary showings rests on

stereotypes. And, unlike the SFFA admissions

processes, all remedial maps have inherent sunset

dates with each new decennial census.

Critically, here, the court’s remedial map was drawn

“race blind” without considering race or racial targets

at all. No one was classified or assigned to districts

based on race. Further, the court’s plan explicitly

expires after the 2030 census. Finally, unlike the

SFFA plans’ nonremedial “diversity” goal, the court’s

remedial map is a time-limited order that enforces §2,

a federal law enacted by Congress using its broad

powers under the Reconstruction Amendments.

Alabama’s arguments against the district court’s

intentional discrimination ruling also fail. Alabama

violated the Fourteenth Amendment when it “enacted

a particular voting scheme as a purposeful device to

minimize or cancel out the voting potential of racial or

ethnic minorities.” Alexander v. S.C. State Conf. of the

NAACP, 602 U.S. 1, 38-39 (2024) (citation modified).

Despite a preliminary injunction directing the

creation of a second opportunity district, Alabama

rejected alternative maps that could have provided

such a district in favor of a map Alabama knew lacked

one. Alabama justifies its defiance by referencing the

state Solicitor General’s unsolicited “legislative

findings,” which “exalt and extol one” community

“above others” based on its European “heritage” while

cracking the Black Belt. App.501-502. These

“findings” starkly prove that Alabama intentionally

diluted Black voters’ rights. While the district court

agreed that it is “unusual” to succeed on an

intentional discrimination claim, the court found that

this is not “a particularly close call.” App.21-22.

Rather, the “unusual corpus of undisputed evidence []

confirms th[is] obvious inference.” Id.

It has now been four years since Alabama first

violated the voting rights of Black Alabamians after

the 2020 census. Every court thus far has rejected

that effort. This Court should do so again and affirm

the decision below.

STATEMENT

A. This Court Affirms the District Court’s

Preliminary

Injunction

Against

Alabama’s 2021 Congressional Map.

In 2021, Alabama enacted a congressional plan that

included “only one district in which black voters

constituted a majority of the voting age population.”

Milligan, 599 U.S. at 16. This Court affirmed a threejudge district court’s holding that the map likely

violated §2.

This Court agreed that the record supported the

district court’s conclusion that Plaintiffs’ §2 claim was

likely to succeed. Id. at 23. The district court “correctly

found that black voters could constitute a majority in

a second district that was ‘reasonably configured’”

under the first Gingles precondition. Id. at 19; see

Thornburg v. Gingles, 478 U.S. 30, 50 (1986). And

there was “no serious dispute that Black voters are

politically cohesive, nor that the challenged districts’

white majority votes sufficiently as a bloc to usually

defeat Black voters’ preferred candidate” under the

second and third preconditions. Milligan, 599 U.S. at

22 (citation modified). The Court also credited the

district court’s “careful factual findings” at the

totality-of-circumstances stage, including its findings

about “Alabama's extensive history of repugnant”

discrimination. Id. at 22-23 (citation modified).

The Court then rejected Alabama’s request to

“remake . . . § 2 jurisprudence anew” by holding that

the mere awareness of race in drawing illustrativedistrict

lines

would

trespass

constitutional

boundaries. Id. at 23. The Court also rejected

Alabama’s request to hold §2 and any related “racebased” remedies unconstitutional. Id. at 41.

This Court instead explained that §2 is consistent

with the Fourteenth and Fifteenth Amendments.

Regarding the Fourteenth Amendment, this Court

noted that “in case after case,” it has “rejected

districting plans that would bring States closer to

proportionality when those plans violate traditional

districting criteria,” illustrating that “[f]orcing

proportional representation is unlawful and

inconsistent with this Court’s approach to

implementing § 2.” Id. at 28-29 & n.4. Regarding the

Fifteenth Amendment, this Court noted that “for the

last four decades,” this Court had applied §2’s results

test and, “under certain circumstances, [had]

authorized race-based redistricting as a remedy,” and

held that §2 “is an appropriate method of promoting

the purposes of the Fifteenth Amendment.” Id. at 41

(citation modified).

Justice Kavanaugh’s concurred, agreeing that §2

does not “exceed[] Congress’s remedial or preventive

authority under the Fourteenth and Fifteenth

Amendments.” Id. at 45 (Kavanaugh, J., concurring).

B. Alabama Enacts the 2023 Congressional

Map, Admitting That this Map Failed To

Remedy the Likely Violation Identified in

Milligan.

The preliminary injunction affirmed in Milligan

required Alabama to draw “an additional district in

which Black voters . . . have an opportunity to elect a

representative of their choice.” App.41.

In response, Alabama called a special legislative

session. App.54-55. Before the session began, the

Permanent

Legislative

Committee

Reapportionment—led by Co-Chairs Representative

Pringle and Senator Livingston (the “Co-Chairs”)—

readopted the 2021 Districting Guidelines. App.55.

These Guidelines listed principles to be “observed to

the extent they do not violate or subordinate” federal

or state law. App.535-536.

The Co-Chairs directed their mapmaker to keep

Mobile and Baldwin Counties whole and together in

any map. App.92. When the session began,

Representative Pringle introduced the “Community of

Interest” (COI) Plan. App.91. This plan retained one

majority-Black district. Id. “[T]he district with the

next-highest” Black voting age population (BVAP)

was District 2 (CD2) with 42.25%. Id. The

Committee’s analysis showed that Black-preferred

candidates would have sometimes 1 won in the COI

Plan’s CD2, id., but only when they were well-known

White Democrats, App.97-98, 464-465.

The House passed the COI Plan, but the Senate

rejected it in favor of a so-called “Opportunity Plan.”

App.91. This plan, developed by an outside

consultant, maintained one majority-Black district

The special master found that the COI Plan’s CD2 “would

almost never elect the Black-preferred candidate.” Special

Master Report at 32, No. 2:21-CV-1530 (N.D. Ala. Sept. 25,

2023), Doc. 295. In the COI plan’s CD2, Black-preferred

candidates won just three of the 17 analyzed races. Ex. 14 at 3,

No. 2:21-CV-1530 (N.D. Ala. Sept. 25, 2023), Doc. 296-14; cf.

Abbott v. Perez, 585 U.S. 579, 617 (2018) (rejecting a remedial

district where minority candidates won “7 out of 35” races).

but drew CD2 such that “Black-preferred candidates

would have no chance of winning.” App.93, 102; see

also App.497-498. Representative Pringle refused to

introduce or put his name on the Senate’s new plan,

“out of [his] concern about [its] compliance with

federal law.” App.420-421; see also App.103, 507.

Alabama ultimately enacted a modified version of

the Opportunity Plan as Senate Bill 5 (SB5). App.91.

Unlike CD2 in the COI plan, SB5’s CD2 did not

contain Dallas County and Selma, App.497, which

had politically active Black electorates, App.468. The

Co-Chairs knew that “without Dallas County . . . in

[CD2], Black-preferred candidates would have no

chance of winning[.]” App.93. Before its passage, the

Legislature confirmed that, in SB5’s CD2, Blackpreferred candidates lost all seven analyzed elections.

App.92.

On the morning of SB5’s passage, eight pages of

“legislative findings” were inserted into the bill.

App.57, 421. Such findings had never appeared in

Alabama’s previous redistricting laws. App.421.

Alabama’s Solicitor General drafted these findings

without the Co-Chairs’ knowledge or participation.

App.98. The legislative findings name three

communities of interest “that shall be kept together to

the fullest extent possible”: the Black Belt, Gulf Coast,

and Wiregrass. App.57-58. The findings describe the

Black Belt counties in three paragraphs. App.58. In

contrast, the findings contain nine paragraphs

detailing Baldwin and Mobile Counties’ “economy and

history, including their ‘French and Spanish Colonial

heritage.’” App.58. Unlike the Black Belt, SB5 keeps

the Gulf Coast together in one district.

C. The District Court Preliminarily Enjoins

SB5.

In 2023, Plaintiffs objected to SB5 for violating the

VRA, and for intentionally discriminating against

Black voters. Alabama conceded that—despite a

preliminary injunction requiring a second opportunity

district—SB5 did “not include an additional

opportunity district.” App.567. The three-judge court

issued another preliminary injunction, holding that

SB5 “does not remedy the likely [§2] violation” and

that Plaintiffs “are substantially likely to establish

that [SB5] violates [§2].” App.568.

The Secretary appealed. App.73. Both the district

court and this Court denied the Secretary’s request for

a stay. See id.; Milligan, 144 S. Ct. at 476. The

Secretary then dismissed his appeals.

The district court appointed a special master to

propose remedial plans. App.73-74. Alabama did not

object. The Special Master recommended three plans

that were drawn without displaying racial

demographic data. App.76.

The district court selected plan three, which was

drawn “without reference to any illustrative or

proposed plan” and was instead “based on other

nonracial characteristics and criteria related to

communities of interest and political subdivisions.”

App.531-32. This plan’s CD2 had a BVAP of 48.69%,

App.370, and preserved 90.4% of the City of Mobile in

a single district, App.531.

D. The District Court Issues a Final

Judgment Holding that SB5 Violates the

VRA And the Fourteenth Amendment.

In 2025, the district court issued a 527-page decision

holding that SB5 violated §2 and the Fourteenth

Amendment. App.18-23. The decision was based on a

trial record including “live testimony from twentythree witnesses (including thirteen experts)” and

“testimony by designation for twenty-eight additional

witnesses.” App.83. By stipulation, the court ordered

the Secretary “to administer Alabama’s congressional

elections according to the Special Master Plan until

Alabama enacts a new congressional districting plan

based on 2030 census data.” App.1033.

1. The District Court Concludes that Alabama

Violated §2.

a. Illustrative Districts. The district court

concluded that Plaintiffs “far surpassed their burden”

under Gingles I, App.363, which requires a showing

that “the minority group must be sufficiently large

and geographically compact to constitute a majority in

a reasonably configured district,” Milligan, 599 U.S.

at 18 (citation modified). Because the parties

stipulated that Plaintiffs’ maps met the Gingles I

numerosity requirement, App.319, and contained

contiguous districts that equalize population,

App.336, the only questions for the district court to

resolve were compactness and respect for traditional

districting principles.

The district court found that “the Black population

in the majority-Black districts” in the illustrative

plans “is sufficiently compact that those plans and

districts are reasonably configured.” App.334. As to

the geographic compactness of the Black population

itself, the court found that it is “obvious” that “there

are areas where much of Alabama’s Black population

is concentrated, and that many of these areas are in

close proximity to each other.” App.331. And

Alabama’s own expert conceded that some of

Plaintiffs’ maps were more compact than both SB5,

App.332, and many “plans and districts that Alabama

has enacted for the past thirty years.” App.327. The

court further found that Plaintiffs’ plans “respect

political subdivisions,” with the post-remand Duchin

Plan E—drawn by Plaintiffs’ expert Dr. Moon Duchin

and reproduced below—performing “at least as well

as” SB5 on both municipality, App.337, and county

splits, App.336.

App.127.

The district court likewise found that the illustrative

plans “respect communities of interest.” App.339. The

court found the Black Belt is “quite clearly a

community of interest of substantial significance,”

App.340, with a “substantial body of evidence”

establishing “the shared history and economy (or lack

thereof) in the Black Belt; the overwhelmingly rural,

agrarian experience; the extreme poverty; and major

migrations and demographic shifts that impacted

many Black Belt residents.” App.342. The court also

found “meaningful connections between the City of

Mobile, the City of Montgomery, and the Black Belt,”

App.342, relying on the “intimate historical and

socioeconomic ties” between the City of Mobile and

Black Belt. App.624 (citation omitted); accord

App.175, 342.

In contrast, the district court concluded that

Alabama “lacks a basis” in the record for elevating the

Gulf Coast “above the Black Belt (and every other

community of interest in Alabama) or declaring it

inviolable.” App.349. For example, although Alabama

insisted that Mobile County was inextricably linked

with Baldwin County, the court found that Alabama’s

congressional plans had put the two countries in

separate districts from 1875 until 1972. App.349. The

court also assigned “very little weight” to Alabama’s

expert who testified against splitting the Mobile and

Baldwin Counties based on websites like Wikipedia

and Reddit. App.379-380.

Analyzing the whole record, the court saw “no

evidence that” Plaintiffs’ experts “allowed race to

predominate, and extensive evidence that they took

great care to avoid that fault.” App.362. The court

further observed that “the Special Master Plan, which

was prepared race-blind, provides compelling

evidence that two reasonably configured Black-

opportunity districts

Alabama.” App.16.

easily

can

drawn

b. Racially Polarized Voting. The court found

there was a “comprehensive record” showing

“intensely and extremely racially polarized [voting]

for purposes of the second and third Gingles

preconditions.” App.372-373; accord Milligan, 599

U.S. at 18.

The court also found “overwhelming” quantitative

and qualitative evidence about the continued

“importance of race in Alabama politics.” App.391.

Alabama’s expert admitted that “race remains the

dominant political influence” in the State. App.385.

For example, Black and White Alabamians hold

similar views on policies like same-sex marriage and

abortion, App.171, 305, but their voting patterns do

not reflect these shared values, App.391-392. At

times, White self-identified Democrats supported

White Republicans over Black Democrats in general

elections. App.388-89. Likewise, in primaries for both

Democrats, App.147-148, and Republicans, App.388389; see also App.229-230, White voters consistently

supported White candidates over Black ones. For

example, in remedial CD2’s 2024 Republican primary,

four experienced Black politicians “together received

only 6.2% of the total vote,” finishing behind four

White candidates, App.389, including a political

novice, App.163. The court found that this race-based

polarization, inflamed by racial appeals, App.413-415,

led to a “near-total absence of Black Alabamians in

statewide office and legislative office (outside of

Black-opportunity districts).” App.388.

c. Totality of the Circumstances. Finally, the

district court found that “official discrimination on the

basis of race . . . continues to affect Black Alabamians’

lives and political participation today.” App.396.

It concluded that each analyzed Senate Factor

favored Plaintiffs. App.413-425. The court considered

Alabama’s “pervasive and protracted history of official

discrimination,” including multiple cases that “run

well into the present era.” App.400. It found that

“Alabama is the only state to have more than one

jurisdiction bailed back into federal preclearance

requirements.” App.403-404. And it relied on fact and

expert witnesses’ testimony to find that racial

disparities in voting, education, and other areas were

attributable to Alabama’s official discrimination that

had “hamper[ed]” Black voters’ participation.

App.408-410.

2. The Court Finds that Alabama Engaged in

Intentional Racial Discrimination in

Adopting SB5.

Finally, the district court held that SB5 was “an

intentional effort to dilute Black Alabamians’ voting

strength and evade the unambiguous requirements of

court orders standing in the way.” App.21. While

acknowledging that a successful Fourteenth

Amendment claim is “unusual,” the court found this

case was not “a particularly close call.” App.22.

The court began with a “heavy presumption of good

faith,” App.486, drew “every inference [it could] in the

Legislature’s favor,” App.488, and did “not accuse any

Legislator of being animated by racism,” App.490. It

carefully considered and rejected each of Alabama’s

proposed alternative motives for SB5. App.515-529.

For example, it credited the Co-Chairs’ own testimony

that SB5 lacked a partisan motive. App.524. The court

also relied on Alabama’s “admi[ssion that it] did not

include an additional opportunity district” despite the

court’s order and the “novel legislative findings that

made the additional opportunity district impossible to

draw.” App.492.

The court nevertheless found that through the

“legislative” findings’ nonnegotiable rules, Alabama

elevated “the Gulf Coast as the most important

community of interest in Alabama,” effectively

“prescribing a majority-White district there.”

App.347.

REASONS TO DISMISS OR AFFIRM

I. THE

DISTRICT

COURT

CORRECTLY

APPLIED THIS COURT’S PRECEDENTS IN

HOLDING THAT SB5 VIOLATED §2.

The district court properly concluded that SB5

violated §2. App.18. The map “unlawfully dilutes

Black voting strength by consigning it to one majorityBlack district despite Alabama’s Black population

plainly being numerous and compact enough, and

voting in Alabama [being] racially polarized enough,

to readily support an additional opportunity district

under all the circumstances in Alabama today.”

App.19. The court correctly applied the Gingles

framework to its well-supported factual findings—

just as it did in the preliminary-injunction order

affirmed by this Court in Milligan. Alabama’s attacks

(at 10-15) on the district court’s §2 analysis fail.

A. This Court Has Already Rejected

Alabama’s Challenges to the Proposed

Maps’ Configuration.

Alabama rehashes (at 12) the argument it made two

years ago that Plaintiffs’ maps “prioritized race over

conceded communities of interest” by separating

Baldwin and Mobile Counties. Milligan forecloses

that argument: Even if “the Gulf Coast did constitute

a community of interest,” Plaintiffs’ maps “would still

be reasonably configured because they joined together

a different community of interest called the Black

Belt.” 599 U.S. at 21. The trial record only strengthens

the Court’s reasoning in Milligan. Alabama’s

attempts to distinguish it fail.

Alabama first falsely claims that there is “no longer

a ‘split community of interest’ in Alabama’s plan.”

J.S.14. Yet SB5 still “cracks” the Black Belt, App.355,

as Alabama elsewhere admits, J.S.4.

Alabama next asserts that splitting the Black Belt

into fewer districts remedied its “cracking” and the

likely §2 violation. J.S.11. But “cracking” is “the

dispersal of blacks into districts in which they

constitute an ineffective minority,” it is not simply

geographic splits. Bartlett v. Strickland, 556 U.S. 1,

14 (2009) (plurality) (citation omitted). Milligan

affirmed that Alabama’s map unfairly limited Black

voters’ political opportunity by cabining their effective

voting power to “only one district.” 599 U.S. at 16. A

map that splits the Black Belt into two districts

instead of three but still cracks Black voters in a way

that limits their electoral opportunities is “not a cure

for the underlying problem.” App.518.

Finally, Alabama recycles its arguments that a few

lines of Duchin’s testimony from the preliminaryinjunction stage show that race predominated.

Compare J.S.13 with Appellants’ Br. 24, Allen v.

Milligan, Nos. 21-1086, 21-1087 (Apr. 25, 2022).

But Alabama “badly misstate[s] the record.”

App.359. The district court found that Duchin “did not

look at race as she drew district lines.” App.321. She

used nonracial traditional redistricting criteria to

draw illustrative maps—with her “top” priority in

Plan E being compactness. App.130. After drawing

plans, she “periodically check[ed]” racial data at the

“screening stage” only to ensure her submissions

satisfied the “nonnegotiable” parameters of

presenting two majority-Black districts pursuant to

Bartlett, 556 U.S. at 11-12 (plurality). App.127-130,

359. The court credited her testimony, and found that

she was “internally consistent,” “highly reliable and

helpful to the Court.” App.320.

B. Alabama’s Attempt To Immunize SB5 from

Challenge Fails.

Alabama asserts (at 14) that the district court erred

by finding maps that split Mobile and Baldwin

Counties satisfied Gingles I. But Alabama cannot use

these counties to “intentionally checkmate any

remedial order designed to require a second

opportunity district.” App.495. The record does not

support Alabama’s insistence on keeping those

counties together at all costs.

Take Alabama’s historical treatment of these

counties. Beginning in the 1870s, Alabama’s

Democratic-controlled Legislature first split Mobile

and Baldwin Counties across districts to “prevent the

reelection of a Black [Republican] incumbent.”

App.349; see also App.154-155, 461-462. For “nearly

100 years”—when Black voters were otherwise

disenfranchised—Mobile County was paired with

large parts of the Black Belt. App.349. The court

credited unrebutted testimony that, in the 1970s,

Alabama reunited Baldwin and Mobile Counties to

limit Black political influence. App.349; see also

App.462. Since 2010, Alabama has also “repeatedly

split Mobile and Baldwin Counties in districting maps

for the State Board of Education,” including “at the

very same time it drew the previous congressional

plans.” App.351 (emphasis added).

By contrast, the evidence showed that the Black Belt

is a genuine community of interest. The district court

noted that while the “Black Belt is overwhelmingly

Black,” “the reasons why it is a community of interest

have many more dimensions.” App.342. The court

credited evidence that “established the shared history

and economy (or lack thereof) in the Black Belt; the

overwhelmingly rural, agrarian experience; the

extreme poverty; and major migrations and

demographic shifts that impacted many Black Belt

residents.” Id.

Because Alabama’s arguments are unsupported by

the record, Alabama reaches the wrong conclusions.

Far from “abandon[ing]” Milligan’s “race-neutral

reasons for holding that §2 likely required new

districts,” J.S.14, the district court relied on those

very same reasons, as well as an expanded

evidentiary record, to reach the same result. Contrary

to Alabama’s claims regarding Mobile and Baldwin

Counties, a State cannot engineer one community of

interest as a “trump card” to override compliance with

§2, App.525; see also League of United Latin Am.

Citizens v. Perry (“LULAC”), 548 U.S. 399, 433 (2006).

The district court’s reasoning is fully consistent with

Milligan.

C. The District Court Correctly Concluded

that Black Alabamians Have Less

Opportunity to Participate in the Political

Process than White Alabamians.

1. Alabama wrongly contends (at 15) that the district

court’s analysis conflicts “with §2’s text and history.”

Section 2 requires courts to analyze equal opportunity

under “the totality of circumstances.” 52 U.S.C.

§ 10301(b). The court properly applied that test and

held that there was unlawful vote dilution. See supra

at 10-15.

As the court explained, the record illustrated that

“things are different” in Alabama (compared to most

other States), in a way that impacts Black political

participation. Official discrimination resulted in the

Black Belt’s “extreme poverty” that is “very

uncommon in the First World,” App.412, 404,

producing higher rates of illiteracy (up to 30%),

“squalid conditions” like raw sewage and undrinkable

water, and inadequate basic communication

infrastructure. App.343-345. Further, roughly 40% of

all Alabamians who voted in 2020 attended de jure

segregated schools. App.408. Others are experiencing

ongoing discrimination uncovered in recent

desegregation cases. App.399, 412; see, e.g., Stout ex

rel. Stout v. Jefferson Cnty. Bd. of Educ., 882 F.3d 988,

1009 (11th Cir. 2018). The court credited testimony

that this intentional discrimination led to today’s

educational disparities, which “hamper” Black voters

“due to an inability to read ballots, learn about

candidates, absentee vote, locate voting information,

and travel to polls,” App.408-409, making

“participation difficult and unlikely for many Black

Alabamians,” App.410.

2. Alabama favors a rule that would ignore this

evidence; it argues (at 15) that this Court should

replace the totality-of-circumstances test with a

bright-line rule—suggesting that “parity” in voter

registration

and

turnout

per

proves

nondiscrimination.

There are several problems with that suggestion.

For one, this Court rejected a similar argument in

Milligan as inconsistent with the VRA’s “textual

command” to “employ a more refined approach.” 599

U.S. at 26 (citation omitted). For another, this test

would not help Alabama. Plaintiffs’ experts identified

“a racial gap in voter registration and turnout in

Alabama,” App.172, meaning that evidence here

satisfies both the existing totality-of-circumstances

test and Alabama’s invented rule.

In any event, there is no support in this Court’s

precedent for Alabama’s proposal. Alabama’s sole

citation—Whitcomb v. Chavis, 403 U.S. 124, 153

(1971), which concerned vote dilution that was “a

mere euphemism for political defeat at the polls”—is

inapposite. The record here brims with qualitative

and quantitative evidence that race, rather than

partisanship, best explains Black candidates’

electoral losses, supra at 13, and with recent

intentional discrimination in voting and elsewhere,

App.398-400, 412.

II. SECTION 2 IS CONSTITUTIONAL AND

CREATES A JUSTICIABLE STANDARD FOR

IDENTIFYING AND REMEDYING RACIAL

VOTE DILUTION.

As in Milligan two Terms ago, Alabama argues §2 is

unconstitutional. J.S.16-25; see Milligan, 599 U.S. at

41. This time, Alabama latches onto SFFA, which held

that universities’ voluntary race-based admissions

processes that do not “comply with strict scrutiny,”

“use race as a stereotype or negative,” and “lack a

‘logical end point,’” violate the Fourteenth

Amendment. SFFA, 600 U.S. at 213, 221 (citation

omitted). But SFFA and Milligan were decided

concurrently, and there is no reason for the Court to

reach a different outcome now. The Gingles

framework ensures that only discriminatory maps

trigger a remedy, which may or may not (as here)

involve some awareness of race. Even if SFFA were

relevant, Gingles is consistent with it.

A. Recent

Precedent

Compels

Conclusion that §2 Is Constitutional.

the

Two years ago, this Court “reject[ed] Alabama’s

argument that § 2 as applied to redistricting is

unconstitutional.” Milligan, 599 U.S. at 41. This

Court decided SFFA in the same Term. The Chief

Justice authored both opinions. There is no tension

between Milligan and SFFA. Remedial redistricting

coheres with SFFA’s recognition that “remediating

specific, identified instances of past discrimination

that violated the Constitution or a statute” remains a

“compelling interest[] that permit[s] resort to racebased government action,” 600 U.S. at 207—if raceneutral actions done with a mere awareness of race,

cf. id. at 299-300 (Gorsuch, J., concurring), can be

considered “race-based” at all.

1. SFFA addressed a categorically different use of

race. The Court was careful to distinguish

universities’ affirmative-action programs from §2’s

discriminatory-results analysis, which this Court

devised to interpret a congressional statute. Id. at

207. SFFA approvingly cited Shaw v. Hunt, 517 U.S.

899, 909-910 (1996), as part of the Court’s

acknowledgement that compliance with federal

statutes can permit the remedial use of race. See

SFFA, 600 U.S. at 207. And the concurring Justices

all agreed that race-neutral actions need not trigger

strict scrutiny even if they are aimed at addressing

racial disparities or involve awareness of race. See,

e.g., id. at 299-300 (Gorsuch, J., with Thomas, J.,

concurring); id. at 317 (Kavanaugh, J., concurring).

Unlike affirmative-action programs, §2 does not

seek

remediate

amorphous

“[s]ocietal

discrimination.” City of Richmond v. J.A. Croson Co.,

488 U.S. 469, 497 (1989). Absent “some basis for

believing a constitutional or statutory violation [has]

occurred,” nonremedial SFFA-type programs “could

be used to ‘justify’ race-based decisionmaking

essentially limitless in scope and duration.” Id. at 497498 (citation omitted). But in applying §2, as Shaw

explains (and SFFA cites), a State may use race “in

remedying the effects of past or present racial

discrimination” where the State’s actions target

“identified discrimination.” Shaw, 517 U.S. at 909-910

(emphasis added); accord Croson, 488 U.S. at 500-501.

A court can thus order remedial districting under §2

only after “identified discrimination” is already

proved. Shaw, 517 U.S. at 909; see SFFA, 600 U.S. at

207 (favorably citing Shaw). Plaintiffs must

demonstrate, based on the most recent census and

electoral results, that race operates within the State’s

chosen electoral scheme to deny equal electoral

opportunity to minority voters. Milligan, 599 U.S. at

30. States can therefore engage in remedial

redistricting only where a State has “good reasons” to

believe that current conditions demonstrate a likely

§2 violation. Cooper v. Harris, 581 U.S. 285, 292-293

(2017); cf. Bethune-Hill v. Va. State Bd. of Elections,

580 U.S. 178, 195-196 (2017).

2. Remedial redistricting also coheres with SFFA’s

discussion of narrow tailoring. 600 U.S. at 207.

Section 2 allows flexible remedies, and Gingles

ensures such remedies are narrowly tailored to the

identified violation and permit only limited use of race

or (increasingly often, as here) no consideration of

race at all.

Remedying a §2 violation does not require

employing racial targets. See Abrams v. Johnson, 521

U.S. 74, 93 (1997) (rejecting a “methodology of

calculating” electoral opportunity in remedial

districts “based on strict racial percentages” rather

than election results). Remedies can be drawn based

on traditional districting principles, nonracial

socioeconomic data, and communities of interest.

Lawyer v. Dep’t of Just., 521 U.S. 567, 581-583 (1997);

Abrams, 521 U.S. at 93. And §2 can be satisfied

without racial targets using crossover districts where

“members of the majority help a ‘large enough’

minority to elect its candidate of choice.” Cooper, 581

U.S. at 303; Bartlett, 556 U.S. at 24 (plurality).

Moreover, §2 remedies can involve cumulative or

limited voting systems, which do not involve race or

districting at all. See, e.g., Branch v. Smith, 538 U.S.

254, 309-310 (2003) (O’Connor, J., with Thomas, J.,

concurring); United States v. Vill. of Port Chester, 704

F. Supp. 2d 411, 453 (S.D.N.Y. 2010). If a “raceneutral alternative” satisfies §2, then one need never

resort to race-based action. Wis. Legislature v. Wis.

Elections Comm’n, 595 U.S. 398, 406 (2022).

Tellingly, every successful recent VRA case in

Alabama has used race-neutral remedies, except one.

See Jones v. Jefferson Cnty. Bd. of Educ., No. 2:19-CV01821, 2019 WL 7500528, at *5 (N.D. Ala. Dec. 16,

2019) (crossover districts drawn using school zones);

Ala. State Conf. of NAACP v. City of Pleasant Grove,

No. 2:18-CV-02056, 2019 WL 5172371 (N.D. Ala. Oct.

11, 2019) (cumulative voting); Dillard v. Chilton

Cnty., 615 F. Supp. 2d 1292, 1294-95 (M.D. Ala. 2009)

(same); United States v. City of Calera, No. CV-08-BE1982-S, 2009 WL 10730411 (N.D. Ala. Oct. 23, 2009)

(limited voting); but see Allen v. City of Evergreen, No.

13-CV-107, 2013 WL 1163886 (S.D. Ala. Mar. 20,

2013).

3. This case only underscores §2’s consistency with

SFFA. The parties stipulated that the Special

Master’s cartographer drew the remedial plan “race

blind,” using only “nonracial characteristics.”

App.531-532. He never pursued racial targets and

reviewed racial data only after finishing his maps. Id.;

see also App.76. This Court has consistently held that

maps drawn “race blind” are constitutional. See, e.g.,

Alexander, 602 U.S. at 22; Lawyer, 521 U.S. at 581.

B. Alabama’s Arguments to the Contrary Are

Unpersuasive.

Alabama argues (at 18-25) that §2 breaches SFFA’s

guardrails. This is incorrect.

1. Section 2 Uses Race in a Limited Manner.

a. Section 2 instructs courts to consider the “totality

of circumstances.” 52 U.S.C. § 10301(b). Alabama

wrongly argues (at 19) that this Court should ignore

that congressional command because its goals “are not

sufficiently coherent for purposes of strict scrutiny.”

The three Gingles “preconditions” use objective

evidence, like maps and statistics derived from the

latest census. Milligan, 599 U.S. at 18. Only if

plaintiffs satisfy these preconditions—and many

cannot—do courts “conduct ‘an intensely local

appraisal’” that is “peculiarly dependent upon the

facts of each case.” Id. at 19 (citation omitted).

This fact-specific inquiry nonetheless includes

various bright-line rules. If the geographic

distribution of minorities under the latest census does

not permit the creation of an additional, reasonably

configured majority-minority district, there is no

violation. See id. at 18. If race predominates in an

illustrative district’s creation, plaintiffs will fail. Id. at

31 (plurality); App.114-115. If voting is not racially

polarized, then plaintiffs will fail. Cooper, 581 U.S. at

302. If the “totality” does not reveal the present-day

effects

discrimination

affecting

political

opportunity, there is no violation. Wis. Legislature,

595 U.S. 405-06; cf. App.402-412. And if partisanship,

not race, drives electoral defeats, plaintiffs fail. See

Gingles, 478 U.S. at 83 (White, J., concurring);

Whitcomb, 412 U.S. at 152-153; cf. App.384-393.

In short, the Gingles framework limits itself to

“those instances of intensive racial politics where the

excessive role of race in the electoral process . . . denies

minority voters equal opportunity to participate.”

Milligan, 599 U.S. at 30 (cleaned up). Section 2

operates with sufficient precision.

Alabama nevertheless contends that §2’s test is

arbitrary, pointing to two cases. J.S.12, 19 n.4 (citing

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

Supp. 2d 1227 (M.D. Ala. 2013), rev’d on other

grounds, 575 U.S. 254 (2015); Ala. State Conf. of

NAACP v. Alabama (“NAACP”), 612 F. Supp. 3d 1232

(M.D. Ala. 2020)). ALBC and NAACP are nothing like

this case. The ALBC plaintiffs failed to present an

acceptable illustrative map; thus, the district court’s

“totality” analysis was cursory. 989 F. Supp. 2d at

1286. Here, the record contains extensive findings on

these issues, including new evidence of intentional

discrimination, racial polarization, and racial appeals

unavailable in 2013. See supra at 10-15. The NAACP

court also found that plaintiffs failed at the

illustrative-map stage. 612 F. Supp. 3d at 1270. The

court’s secondary rationale for rejecting a §2 challenge

to Alabama’s at-large, statewide state-appellate court

scheme was that partisanship, not race, drove Black

candidates’ losses. Id. at 1291. The court below

expressly found that the record here reveals the

opposite. App.387-388. Indeed, Alabama’s expert

testified below that, after correcting a “material error”

in his regression analysis in NAACP, “he could not

rule out that Black candidates were penalized at the

polls on account of race.” App.386-387. When different

courts apply a fact-bound test to different records and

reach different conclusions, it shows the test is

working, not arbitrary.

b. In Callais, the United States filed an amicus brief

criticizing the district court here. Supp. Br. for the

United States 20-29, Louisiana v. Callais, Nos. 24-109

& 24-110 (Sept. 24, 2025) [hereinafter “U.S. Br.”]. The

United States’s approach is wrong for three reasons.

First, the United States proposes that Plaintiffs’

maps had to be “superior to the State’s under the

State’s own race-neutral districting principles.” U.S.

Br. 23. But many such principles are “malleable" or

“surprisingly ethereal.” Bethune-Hill, 580 U.S. at 190.

This rule would invite the States to invent bespoke

principles in attempts to unjustly insulate State maps

from §2 challenges while continuing to dilute minority

votes, as Alabama did here. App.422-423. Far from

vindicating §2, this proposal swallows it. See Supp.

Reply Br. for Robinson Appellants 42 (Oct. 3, 2025).

Second, the United States proposes that a plaintiff’s

illustrative maps must also match any partisan tilt in

the State’s enacted plan. This proposal misreads

Rucho v. Common Cause, which merely held that

partisan gerrymandering is non-justiciable. 588 U.S.

684, 718 (2019). Rucho did “not condone excessive

partisan gerrymandering,” and recognized that “such

gerrymandering is ‘incompatible with democratic

principles.’” Id. at 719 (citation omitted). Partisanship

is not a neutral criterion akin to the traditional

redistricting criteria relevant under Gingles I. Indeed,

because Alabama and others have long employed race

for partisan ends, supra at 17-18, even in racial

gerrymandering cases, using “race as a proxy” for

“political interest[s]” is “prohibit[ed].” Miller v.

Johnson, 515 U.S. 900, 914 (1995); see also Cooper,

581 U.S. at 308 n.7; Easley v. Cromartie, 532 U.S. 234,

266-267 (2001) (Thomas, J., dissenting). The United

States cites nothing to support the notion that

partisanship can override “the purposes of the

Fifteenth Amendment.” Milligan, 599 U.S. at 41

(citation omitted).

This proposal is also foreclosed by §2’s text and

precedent. Section 2 is violated when minorities have

“less opportunity” to elect their preferred candidates.

52 U.S.C. § 10301(b). Consistent with §2’s text,

LULAC and Milligan found illustrative maps were

reasonable even though they did not satisfy the

States’ goals of incumbent protection and core

retention. As Milligan explained, prioritizing goals

like core retention would wrongly permit “a State [to]

immunize

from

challenge

new

racially

discriminatory redistricting plan simply by claiming

that it resembled an old racially discriminatory plan.”

599 U.S. at 22; see also LULAC, 548 U.S. at 441

(rejecting incumbency protection as a §2 defense). The

“partisan match” proposal fails for the same reason: It

would effectively freeze in place dilutive maps.

Third, the United States’s approach would make it

impossible to succeed even when the State

intentionally

dismantles

existing

opportunity

districts since the State could simply point to its

partisan or incumbent protection goals. Cf. Milligan,

599 U.S. at 37 (“Demonstrating discriminatory intent

. . . ‘does not require a plaintiff to prove that the

challenged action rested solely on racially

discriminatory purpose[.]’) (citation omitted). That

danger exists regardless of which party has created

the dilutive map. See, e.g., LULAC, 548 U.S. at 440441; Black Pol. Task Force v. Galvin, 300 F. Supp. 2d

291, 313-314 (D. Mass. 2004). The United States’s

proposal would render § 2 a dead letter. That is not,

and cannot be, the law.

The United States offers its “partisan match”

proposal to stop plaintiffs from repackaging partisangerrymandering claims as §2 claims. U.S. Br. 26. But

§2 claims already fail if partisanship (but not race) is

driving polarization and electoral inequalities,

App.384-393. Where, as here, id., the evidence shows

race-based polarization, there is no danger of partisan

manipulation.

Here, contrary to the United States’s assertions, the

court below found (and the record shows) that race did

not predominate in Plaintiffs’ illustrative maps,

App.363; that Plaintiffs’ maps were often superior to

SB5, App.329; that SB5 was not enacted for partisan

ends, App.524; that race (not partisanship) drives

voting in Alabama, App.385-393; and that Alabama

has a recent history of intentional discrimination in

redistricting and elsewhere, App.398-400. Thus,

Alabama violated §2 under any version of Gingles that

preserves §2’s core goals.

2. Section 2 Does Not Employ Race as a

Stereotype or a Negative.

Contrary to Alabama’s claims (at 20-22), remedial

redistricting is not predicated on “racial stereotyping.”

Section 2 requires plaintiffs to adduce empirical

evidence to prove that there is consistent racially

polarized voting. Milligan, 599 U.S. at 18; Gingles,

478 U.S. at 46. In this case, for example, the district

court relied on a recent record of official

discrimination, App.396, 400-401, and expert

testimony that Black Alabamians are extremely

politically cohesive, App.365-367; see supra at 13. It

was Alabama’s experts who the court found had relied

on stereotypes, musing about racial differences in

I.Q., App.380, and “opin[ing] about Alabama without

first learning about Alabama,” App.382.

3. Section 2 Imposes Temporal Limits on

Remedies.

Finally, Alabama wrongly suggests (at 23-25) that

race-based districting must have an “end-point.”

No remedy is permanent. Residential, voting, and

other patterns change over time. Milligan, 599 U.S. at

28-29. Where new census data reveals population

changes, §2 permits neither liability, nor race-based

remedies. See, e.g., Cooper, 581 U.S. at 302-304, 306.

Each census provides an end point for a remedial plan.

Here, for example, the court’s order lasts only until

Alabama enacts a new plan “based on 2030 census

data.” App.1020-1021.

More fundamentally, this Court has never imposed

an atextual expiration date on a federal civil rights

statute, and for good reason. Bans on racial

discrimination in private employment and housing

are permanent. See, e.g., Jones v. Alfred H. Mayer Co.,

392 U.S. 409, 412-413 (1968). And while a particular

order may eventually elapse, Board of Education of

Oklahoma City Public Schools v. Dowell, 498 U.S. 237,

247-48 (1991), this Court has never suggested that the

Civil Rights Act’s ban on school segregation will one

day expire because a particular violation may require

race-based

remedies,

Swann

CharlotteMecklenburg Bd. of Educ., 402 U.S. 1, 31-32 (1971). So

too with §2 and its built-in guards against

unnecessary race-based remedies.

III. SECTION 2 IS PRIVATELY

ENFORCEABLE.

Plaintiffs brought their §2 claims both directly

under the statute and 42 U.S.C. § 1983. The district

court correctly held that Plaintiffs had the right to do

so. App.428-453.

1. Precedent required that conclusion. In Morse v.

Republican Party of Virginia, this Court’s majority

concluded that §2 is “enforceable by private action.”

517 U.S. 186, 232 (1996) (opinion of Stevens, J., joined

by Ginsburg, J.); accord id. at 240 (Breyer, J.,

concurring joined by O’Connor & Souter, JJ.). Private

plaintiffs have brought every one of the “legions of” §2

cases in this Court. App.449. Just months ago, this

Court stayed a lower court decision holding that §2 is

not privately enforceable. Turtle Mtn. Band of

Chippewa Indians, et al. v. Howe, No. 25A62 (July 24,

2025). “[S]tatutory stare decisis counsels [] staying the

course.” Milligan, 599 U.S. at 39.

First principles do too. A statute is privately

enforceable “where the provision in question is

phrased in terms of the persons benefited, and

contains rights-creating, individual-centric language

with an unmistakable focus on the benefited class.”

Health & Hosp. Corp. of Marion Cnty. v. Talevski, 599

U.S. 166, 183 (2023) (citation modified).

Section 2 fits that description. Subsection (a)

protects “the right of any citizen . . . to vote.” 52 U.S.C.

§ 10301(a). It further “expressly prohibits voting

practices that abridge voting rights based on race,

color, or language-minority status.” App.432-433.

Subsection (b), in turn, “expressly discusses the voting

rights of persons who are ‘members of a class of

citizens protected by subsection (a),’” and then

“refer[s] twice to ‘members of a protected class.’”

App.433 (quoting 52 U.S.C. § 10301(b)). “If all of this

is not rights-creating language with an unmistakable

focus on the benefitted class, it is difficult to imagine

what is.” App.434-435 (citation modified); see also

Mot. to Affirm 19-22, State Bd. of Election Comm’rs v.

Miss. State Conf. of the NAACP, No. 25-234 (Oct. 3,

2025).

2. Alabama’s contrary arguments are easily

dispatched. Alabama contends (at 26) that the

provision’s “command is directed at ‘State[s] and

political subdivision[s].’” But a statute’s reference to

“who it is that must respect and honor . . . statutory

rights” does not mean that the statute “fails to secure

rights.” Talevski, 599 U.S. at 185.

While Alabama asserts (at 26) that §2’s “concern is

the voting strength of racial groups, not individual

rights,” this Court has held that §2’s reference to “the

right of any citizen” makes clear that the “right to an

undiluted vote does not belong to the ‘minority as a

group,’ but rather to ‘its individual members.’”

LULAC, 548 U.S. at 437 (citation omitted).

Alabama stresses (at 26) that a different part of the

VRA, 52 U.S.C. § 10308, “expressly” permits

enforcement “by the federal government.” But that

does not preclude a private right of action. See

App.443. Furthermore, 52 U.S.C. § 10302 is more

illuminating. That section “originally provided for

special procedures in any action brought” under the

VRA by the Attorney General. Morse, 517 U.S. at 233

(plurality). But “Congress amended that section to

cover actions brought by ‘the Attorney General or an

aggrieved person.’” Id. (quoting 52 U.S.C. §§ 10302(a),

(b), (c)). The VRA thus now “provide[s] the same

remedies to private parties as had formerly been

available to the Attorney General alone.” Morse, 517

U.S. at 233 (plurality).

Finally, Alabama wrongly applies (at 26) the

“stringent and demanding” standard this Court has

articulated in determining whether “Spending Clause

statutes” create private rights. See Gonzaga Univ. v.

Doe, 536 U.S. 223, 280 (2002). But §2 was enacted

under the Fifteenth Amendment, not the Spending

Clause. Pub. L. No. 89-110, 79 Stat. 437, 437 (1965).

A “principal purpose” of § 1983 was to provide a cause

of action for violations of “federal legislation providing

specifically for equality of rights.” Maine v. Thiboutot,

448 U.S. 1, 7 (1980). Applying a heightened standard

here would thwart that purpose. Regardless, even if

that standard applied, §2 meets it. See App.431-435.

IV.THE DISTRICT COURT’S FINDINGS OF

INTENTIONAL DISCRIMINATION ARE NOT

CLEARLY ERRONEOUS.

The district court did not clearly err in finding that

Alabama intentionally discriminated in passing SB5.

This was not a finding of “racism,” as Alabama

contends. J.S.27. Rather, the court found that

Alabama “enacted a particular voting scheme as a

purposeful device to minimize or cancel out the voting

potential of racial or ethnic minorities.” Alexander,

602 U.S. at 38-39. That record supports that finding.2

A. The

District

Court’s

Finding

Intentional Discrimination Is Supported

by a Robust Record.

There were two key sets of undisputed facts

underpinning the district court’s finding that

Alabama intended to discriminate against Black

voters in SB5.

The first is how SB5 was enacted. The House first

passed the COI Plan, under which Black-preferred

candidates would only occasionally win in a second

district. App.90, 92; see supra at 7 n.1. But even this

occasional opportunity was too much for the Senate,

which rejected the COI Plan.

Senator Livingston instead introduced a new plan—

drawn by an outside consultant—which he knew

would destroy the viability of a second opportunity

district. App.497-498. SB5 was based on this plan.

The Legislature passed it despite knowing that Blackpreferred candidates lost in “all seven modeled races

by approximately seven points” in SB5’s CD2.

App.498. And Alabama concedes that SB5 “does not

include an additional opportunity district.” App.567.

The second set of facts focused on SB5’s “legislative

findings,” which Alabama’s Solicitor General drafted

Because the remedy for the §2 and constitutional violations are

the same, see App.1036 (denying broader remedy), this Court

need not reach this issue, see Escambia Cnty. v. McMillan, 466

U.S. 48, 51 (1984).

unbeknownst to legislators until the morning of SB5’s

enactment. App.498. He later said that the findings

are “essentially . . . describing” the enacted 2023 map.

Tr. at 162:12-16, Milligan v. Allen, 2:21-CV-01530AMM (N.D. Ala. Aug. 18, 2023), Doc. 265.

These “findings” purported to justify SB5’s

placement of Mobile and Baldwin Counties in one

district as a “nonnegotiable” community with

European “heritage.” App.502, 504-505. In contrast to

the focus on heritage there, the “findings” did not

mention that the Black Belt “contains a high

proportion” of voters who share “a lineal connection to

‘the many enslaved people brought there to work in

the antebellum period,’” Milligan, 599 U.S. at 21.

The findings also marked “sharp departures from . .

. Alabama’s traditional districting guidelines.”

App.500. Alabama’s Legislature had never before

described a redistricting principle as “nonnegotiable”

nor enacted similar findings. Id. Alabama’s 2021 and

2023 guidelines had previously prioritized the

“nondilution of minority voting strength” but SB5’s

findings eliminated this consideration. Id. Alabama’s

guidelines had not identified “specific communities of

interest;” the findings did. App.501. And they “exalt

and extol one community,” the Gulf Coast, “above

others.” Id.

As the court found, these “findings were intended to

make the discriminatory vote dilution . . . impossible

to remedy.” App.505. They were a pretext for

continuing to deny Black voters a second opportunity

district. App.503-504.

These undisputed facts among others, App.486-515,

support the court’s conclusion that Alabama

intentionally discriminated against its Black citizens.

B. The District Court Applied the Correct

Legal Framework, Without Requiring

Proof of Racist Intent.

Alabama mischaracterizes the district court’s order,

suggesting that the court concluded that legislators

acted with racist motives. J.S.27. But the district

court expressly disclaimed “accus[ing] any Legislator

of being animated by racism.” App.490. Instead, it

considered whether Alabama “enacted a particular

voting scheme as a purposeful device to minimize or

cancel out the voting potential of racial or ethnic

minorities.” Alexander, 602 U.S. at 38-39 (citation

omitted); see also Rogers v. Lodge, 458 U.S. 613, 622

(1982) (intentionally “diluting the voting strength of

the black population” is “invidious” discrimination).

Such intentional discrimination does not require

finding “racist” motives. See, e.g., Flowers v.

Mississippi, 588 U.S. 284, 299 (2019) (holding that

Batson violations depend on the intent to exclude

Black jurors without referencing “racist” motives);

LULAC, 548 U.S. at 440 (a State’s voting law “b[ore]

the mark of intentional discrimination,” despite

legislators’ political motives). “[I]ntentional [racial]

discrimination without an invidious motive” can still

single out voters for adverse race-based treatment.

Garza v. Cnty. of Los Angeles, 918 F.2d 763, 778 n.1

(9th Cir. 1990) (Kozinski, J., concurring in part).

C. Alabama’s

Attempts

Suggest

Alternative Motives Do Not Establish

Clear Error.

Alabama asks this Court to reweigh the evidence

and credit its alternative explanations. J.S.32-34. But

the record supports the district court’s finding that

Alabama’s “attempt at a race-neutral rationalization .

. . simply fails to explain what [Alabama] did.” MillerEl v. Dretke, 545 U.S. 231, 260 (2005).

1. Alabama contends (at 29-30) that the district

court treated its preliminary injunction “as a final

order” and failed to afford Alabama the presumption

of good faith. That is unfounded.

The district court began by presuming that the

Legislature acted in good faith. App.488. Its intent

analysis focused on how Alabama shut Black voters

out of a second opportunity district in 2023 by passing

the worst-performing map among those it considered,

App.495, 507-508, which Representative Pringle

admitted likely “did not satisfy” the VRA, App.496.

Alabama is similarly misguided in its contention that

the decision below “condemn[s] all defendants who

keep litigating after being preliminarily enjoined.”

J.S.31-32 (citing Abbott, 585 U.S. at 613). Alabama did

not simply “keep litigating.” It refused to provide the

remedy required by the order affirmed by this Court.

Unlike in Abbott, the district court placed the burden

on Plaintiffs to prove discriminatory intent, App.486490, and did not make Alabama disprove

discrimination in its 2023 map. 585 U.S. at 603-604.

Further, unlike in Abbott, Alabama made zero effort

to correct the court-identified §2 violation. App.488489; cf. Abbott, 585 U.S. at 590.

2. The district court also properly rejected

Alabama’s argument (at 31-32) that SB5 was an

attempt to “cure[] the alleged inconsistent treatment

of the Black Belt and Gulf Coast” and thus comply

with §2. App.518.

The record shows that Alabama had multiple ways

to join Baldwin and Mobile Counties while improving

Black electoral opportunities. For example, the

Singleton plaintiffs’ “whole county” plan kept those

counties together and created two districts that

usually performed for Black-preferred candidates.

Special Master Report at 33, No. 2:23-CV-1530, (N.D.

Ala. Sept. 25, 2023), Doc. 295. The House-passed COI

Plan likewise kept these counties together in an

additional district where Black-preferred candidates

could very rarely win. App.494; supra at 7 n.1.

Alabama nevertheless passed SB5 where it knew

Black-preferred candidates would never win in a

second district. App.495-498.

3. The record also belies Alabama’s claim (at 32-33)

that SB5 was driven by “constitutional concerns.”

App.520-522.

In Milligan, this Court rejected Alabama’s theory

that any plan connecting Mobile with the Black Belt

was a racial gerrymander since Alabama could have

drawn

§2-compliant

maps

without

racial

predominance. 599 U.S. at 34 n.7. Thus, as the district

court concluded, Alabama had no reason for “concern[]

that splitting Mobile County exposed it to a racial

gerrymandering claim.” App.522. Indeed, no legislator

raised such a concern. Id.

4. Alabama finally argues that the district court

erred by “rul[ing] out” Alabama’s “partisan and

political goals [as] a ‘plausible explanation.’” J.S.33

(quoting Alexander, 602 U.S. at 27). But Alabama’s

cited case involved an “analytically distinct” racialgerrymandering claim, Alexander, 602 U.S. at 38-39,

where legislators said “partisanship was one of the

most important factors” in their map-drawing process,

id. at 13.

Not so here. App.523-529. Defendant Co-Chairs both

denied any partisan motives. App.524. Alabama

points to nothing that can overcome Defendants’ own

testimony on clear-error review. See Anderson v. City

of Bessemer City, 470 U.S. 564, 573 (1985). Moreover,

partisanship does not explain why Representative

Pringle refused to introduce SB5. App.420-421. Nor

why SB5’s findings contain a “singular reference to

the [European] heritage of the majority-White” Gulf

Coast region while simultaneously “delet[ing] [] any

description” of the Black Belt’s heritage, App.504-505,

and “eliminat[ing] the [prior] express requirement

that a plan not dilute minority voting strength,”

App.21. And partisanship does not explain SB5’s

treatment of Selma. App.497.

Even if partisanship were an unspoken goal,

Alabama pursued that goal through racial means.

Indeed, Senator Livingston’s consultant (who drafted

the map that became SB5) used CD2’s BVAP as his

only metric for determining how safe CD2 was for the

White Republican incumbent. App.99-100. Even in

racial-gerrymandering cases, “the sorting of voters on

the grounds of their race remains suspect even if race

is meant to function as a proxy for other (including

political) characteristics.” Cooper, 581 U.S. at 308 n.7.

CONCLUSION

This Court should summarily affirm the decision

below.

Respectfully submitted,

DAVIN M. ROSBOROUGH

SOPHIA LIN LAKIN

THERESA J. LEE

DAYTON CAMPBELL-HARRIS

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

125 Broad St.

New York, NY 10004

CECILLIA D. WANG

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

425 California St.,

Suite 700

San Francisco, CA 94104

JESSICA L. ELLSWORTH

JO-ANN TAMILA SAGAR

DAVID DUNN

SHELITA STEWART

MICHAEL J. WEST

AMANDA N. ALLEN

HOGAN LOVELLS US LLP

555 Thirteenth St., NW

Washington, DC 20004

DEUEL ROSS

Counsel of Record

VICTOR OLOFIN

NAACP LEGAL DEFENSE &

EDUCATIONAL FUND, INC.

700 Fourteenth St., NW

Washington, DC 20005

(202) 682-1300

dross@naacpldf.org

JANAI NELSON

SAMUEL SPITAL

STUART NAIFEH

KATHRYN SADASIVAN

BRITTANY CARTER

COLIN BURKE

NAACP LEGAL DEFENSE &

EDUCATIONAL FUND, INC.

40 Rector St., 5th Floor

New York, NY 10006

ALISON MOLLMAN

LAUREL HATTIX

ACLU OF ALABAMA

PO Box 6179

Montgomery, AL 36106

MICHAEL TURRILL

HARMONY A. GBE

JAY ETTINGER

HOGAN LOVELLS US LLP

1999 Avenue of the Stars,

Suite 1400

Los Angeles, CA 90067

JOHANNAH CASSEL-WALKER

HOGAN LOVELLS US LLP

4 Embarcadero Center,

Suite 3500

San Francisco, CA 94111

SIDNEY M. JACKSON

NICKI LAWSEN

WIGGINS CHILDS

PANTAZIS FISHER &

GOLDFARB, LLC

301 19th St. North

Birmingham, AL 35203

CHARNICE CULMER

HOGAN LOVELLS US LLP

1735 Market St., Floor 23

Philadelphia, PA 19103

Counsel for Appellees

OCTOBER 2025

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.