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

No. 25-274

Supreme Court of the United States

──────────────────────────

WES ALLEN, SEC’Y OF STATE, ET AL.,

Appellants,

v.

EVAN MILLIGAN, ET AL.,

Appellees.

──────────────────────────

On Appeal from the United States District Court

for the Northern District of Alabama

──────────────────────────

REPLY BRIEF

Michael P. Taunton

Riley Kate Lancaster

BALCH & BINGHAM LLP

1901 Sixth Ave. N., Ste. 1500

Birmingham, AL 35203

Taylor A.R. Meehan

CONSOVOY MCCARTHY PLLC

1600 Wilson Blvd., Ste. 700

Arlington, VA 22209

Steve Marshall

Alabama Att’y Gen.

A. Barrett Bowdre

Solicitor General

Counsel of Record

Robert M. Overing

Dylan Mauldin

George Muirhead

James W. Davis

Misty S. F. Messick

Brenton M. Smith

Benjamin M. Seiss

OFFICE OF THE ATT’Y GEN.

501 Washington Ave.

Montgomery, AL 36130

(334) 242-7300

Barrett.Bowdre@

AlabamaAG.gov

i

TABLE OF CONTENTS

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

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

I. The District Court’s §2 Holding is

Irreconcilable with Allen and the

Constitution. ..................................................3

A. The district court ordered the

State to sacrifice a community of

interest to achieve a racial goal. ..............3

B. Requiring race-based districts is

racial discrimination that cannot

survive strict scrutiny. .............................6

II. The Legislature Did Not Intentionally

Discriminate by Declining to Adopt a

Race-Based map. ............................................9

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

ii

TABLE OF AUTHORITIES

Cases

Abbott v. Perez,

585 U.S. 579 (2018) ................................................9

Alexander v. S.C. NAACP,

602 U.S. 1 (2024) .......................................... 4, 9, 10

Allen v. Milligan,

599 U.S. 1 (2023) .......................................... 1, 3, 11

Ardoin v. Robinson,

No. 21A814 (U.S. June 23, 2022)...........................9

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

580 U.S. 178 (2017) ............................................ 5, 9

Bostock v. Clayton County,

590 U.S. 644 (2020) ................................................8

Cooper v. Harris,

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

Grutter v. Bollinger,

539 U.S. 306 (2003) ................................................6

LULAC v. Perry,

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

Merrill v. Milligan,

142 S.Ct. 879 (2022) ........................................... 2, 7

Miller v. Johnson,

515 U.S. 900 (1995) ................................................8

Nairne v. Ardoin,

715 F.Supp.3d 808 (M.D. La. 2024)..................... 11

Rucho v. Common Cause,

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

iii

SFFA v. Harvard,

600 U.S. 181 (2023) .................................... 2, 6, 7, 9

Shaw v. Reno,

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

Soto Palmer v. Hobbs,

686 F.Supp.3d 1213 (W.D. Wash. 2023)................8

Thornburg v. Gingles,

478 U.S 30 (1986) ....................................... 1, 3, 7, 8

Turtle Mountain Band v. Howe,

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

(D.N.D. Nov. 17, 2023) ...........................................8

United States v. Bailey,

444 U.S. 394 (1980) .............................................. 11

Other Authorities

Brief of Milligan Plaintiffs,

Allen v. Milligan,

No. 21-1086 (U.S. July 11, 2022) ........................... 1

Brief of Alabama and 15 Other States,

Louisiana v. Callais,

No. 24-109 (U.S. Sept. 24, 2025).................. 6, 7, 11

Transcript of Oral Reargument,

Louisiana v. Callais,

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

Motion to Affirm of Singleton Appellees,

Allen v. Singleton,

No. 25-273 (U.S. Oct. 20, 2025) ............................. 3

Stay Opposition of Robinson Plaintiffs,

Ardoin v. Robinson,

No. 21A814 (U.S. June 23, 2022)........................... 9

1

REPLY BRIEF

In 2022, Plaintiffs told this Court that Alabama’s

2021 Plan “crack[ed]” the Black Belt because it “split[]

the Black Belt into four districts.” Milligan.Br.16, No.

21-1086 (U.S. July 11, 2022); see id. at 20-21, 33, 47.

That “‘inconsistent treatment’ of communities of interest” was Plaintiffs’ proffered “significant evidence

of a § 2 violation.” E.g., id. at 53. This Court agreed at

the preliminary-injunction stage, holding in particular that Plaintiffs’ Gingles-1 maps were “reasonably

configured” because “[t]here would be a split community of interest in both” the 2021 Plan and Plaintiffs’

alternatives. Allen v. Milligan, 599 U.S. 1, 21 (2023).

Alabama then enacted an entirely new plan in

2023 that made “keeping the Black Belt together (i.e.,

split between as few congressional districts as possible)” not just “important” (App.937) (2022 Order) but

“non-negotiable” (App.544-46).

Now, the about face: it was never about “geographic splits,” Plaintiffs say. Mot.16. Alabama’s placing “the Black Belt into two districts instead of three”

is irrelevant because the 2023 Plan still “cracks Black

voters.” Mot.16. How so? Because the 2023 Plan refused to split the Gulf Coast counties along racial

lines, combining black voters from the Gulf with those

in the Black Belt for the sole purpose of creating a new

majority-minority district. This race-predominant

reasoning was essential to the judgment below and

mandates reversal. J.S.10-12. If Alabama had split

the Gulf Coast community to maximize the “voting

power” of “blacks,” Mot.16, its map would be “unexplainable on grounds other than race,” Shaw v. Reno,

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

2

The flip side of Callais v. Louisiana, No. 24-109

(U.S.), this case perfectly illustrates the dilemma for

States. Try to satisfy courts with a race-based map;

get enjoined. Try to satisfy courts with a race-neutral

map; get enjoined. There’s no way for state officials to

know whether a map satisfies federal law before federal-court inspection.

“States need clarity,” Merrill v. Milligan, 142 S.Ct.

879, 881 (2022) (Kavanaugh, J., concurring), yes, but

there will be no clarity with the district court’s conception of §2. Allotting a “fair share of political power”

among racial groups is no less impossible than among

political groups. Cf. Rucho v. Common Cause, 588 U.S.

684, 709 (2019). Even if §2 used race in a “[l]imited,”

“objective,” and “precis[e]” manner, Mot.25-26, it

could not do so permanently, SFFA v. Harvard, 600

U.S. 181, 221-26 (2023). The district court’s constitutional holding—that the Legislature discriminated by

declining to discriminate—is proof positive that §2 is

not “ridding our electoral process of race.” Callais.Rearg.Tr.41. Nothing in Plaintiffs’ response dispels the need for plenary review on each question

presented.

3

I.

The District Court’s §2 Holding is Irreconcilable with Allen and the Constitution.

A.

The district court ordered the State to

sacrifice a community of interest to

achieve a racial goal.

1. Now that Alabama has united the Black Belt in

two districts,1 Plaintiffs cannot complain about the

“dispersal” of a community of interest, but only of

“Black voters.” Mot.16. That can be cured only with a

new race-based district combining an “overwhelmingly rural, agrarian” community (Mot.12) with

“Black Mobile” (App.708)—which is not in the Black

Belt and lies over 250 miles opposite the Black Belt’s

eastern edge.

Accepting Plaintiffs’ new framing, the district

court asked whether the 2023 Plan put enough “Black

Belt counties in a majority-Black district.” App.345.

That was the wrong question. It treats “the minority

population” itself as the community when the Black

Belt is “a ‘historical feature’ of the State, not a demographic one,” and must be “treated … as a community

of interest for [that] reason.” Allen, 599 U.S. at 32 n.5

(plurality). Promoting the minority population “in and

of itself” cannot be a traditional districting principle.

Id. Thus, the notion that the 2023 Plan “limited Black

… voting power” (Mot.16) could be the conclusion of a

successful §2 challenge, but not the beginning proof of

it, which would be circular.

Even if Gingles-1 maps can join together “farflung

segments of a racial group,” contra LULAC v. Perry,

1 Plaintiffs misleadingly fault Alabama for not keeping the

Black Belt “together in one district,” Mot.8, knowing full well

that is impossible, see App.546; Singleton.Mot.15; Tr.200.

4

548 U.S. 399, 433 (2006), race cannot predominate in

a §2 remedy without satisfying strict scrutiny. Now at

the end of this case, a district court has concluded that

Alabama’s only means of complying with §2 was a

race-first district combining “Black Mobile” with black

voters from a separate community of interest 250

miles away. App.708.2 That remedy is “explicit[ly]”

racial because it demands that more Black Belt counties be placed in a race-based district. Shaw, 509 U.S.

at 642. And, as the district court observed, “all paths”

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

white voters from black voters in the Gulf Coast.

App.7, 531.3 Admitting that no §2-compliant map

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

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

neutral criteria to race. Alexander v. S.C. NAACP, 602

U.S. 1, 7 (2024).

2. The rejoinder that the district court’s remedy

did not consider race “at all,” Mot.3, 22-23, or lacked

“awareness of race,” Mot.21, is preposterous. The

court ordered a “district[] in which Black voters either

comprise a voting-age majority or something quite

close to it.” App.13. It insisted that CD2 have enough

black voters that a Democrat would likely win. E.g.,

Milligan, DE311:41. These are “racial targets.” Contra Mot.23-24.

We know that “race-neutral considerations ‘came

into play only after the race-based decision had been

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

2 Alabama does not “admit[]” that any failure to draw such a

district constitutes “cracking.” Contra Mot.16.

3 The Singleton plaintiffs offered a “whole county” plan that

would preserve the Gulf, Mot.38, but sacrifice other traditional

principles, see App.105-06, 480. The district court rejected it.

5

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

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

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

the extent reasonably practicable,” id. at 8. Neutral

principles could be compromised; racial targets could

not. See App.329 (no “non-negotiable” principles),

App.514 (no “deference” to any principle that

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

interest not a “trump card”).

Drawing maps without displaying racial data, as

the special master says he did, Mot.9, does not erase

race-predominance. Cf. Cooper v. Harris, 581 U.S.

285, 313-17 (2017).4 The court required that he remedy “ineffective” “Black voting strength.” App.715; see

Milligan, DE273:7. He “confirmed” he hit his target

before presenting his plans. Milligan, DE295:36. His

plans thus sacrificed compactness, paired incumbents, and split a major city, a county, and a community of interest. See Milligan, DE295:14, 17, 23, 25, 38;

id. at 42 (acknowledging “‘need to split the Gulf

Coast’” for “Black voting strength”).5

4 The special master had a roadmap to hit the racial target

without explicitly relying on racial data: “split the Gulf Coast,”

App.715, “split Mobile County,” App.947, and split Mobile City

to connect its urban core with Montgomery and Black Belt counties on the Georgia border, id.; see Milligan, DE295:13 (he had

“the eleven illustrative plans”). Small wonder he “grouped together the same” far-flung populations “as Plaintiffs’ illustrative

maps.” Caster.BIO.6.

5 Alabama united the two Gulf Coast counties in 1972 after

the census resulted in the loss of a congressional seat. In fifty

years, no court found that animus drove that decision. Contra

Mot.2, 17-18. The attempt to taint this proven community of interest (led by an expert whose book identifies Mobile and

6

B.

Requiring race-based districts is racial

discrimination that cannot survive

strict scrutiny.

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

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

judgment must be reversed. See J.S.16-25; Br. of Alabama and 15 States, Louisiana v. Callais, No. 24-109

(U.S. Sept. 24, 2025).

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

“the mere passage of time,” App.454, but that’s not Alabama’s argument. See Ala.Callais.Br.8, 25-29. Rather, time is “the acid test of [the] justification” for

using race. Grutter v. Bollinger, 539 U.S. 306, 343

(2003). If race-based districting had any “efficacy,”

Plaintiffs would be able to say when it will “no longer

be necessary.” Id. “[A]t least past today” (App.456), or

until a State “outrun[s]” its past (App.455), are insufficient answers.

Under the current regime, States can never stop

using race. The census may restart redistricting anew,

Mot.30, but that just guarantees a “periodic review” of

how States use (or do not use) race every decade in

perpetuity, much like Harvard’s use of race every admissions cycle. SFFA, 600 U.S. at 225.

The theory that §2 will sunset on its own is

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

Baldwin counties as a distinct region he calls “Metropolitan Mobile,” Tr.1440-41) is a smoke screen. Infra II.C.

7

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

inquiry, States can win repeatedly in one decade and

lose in the next, even with overlapping evidentiary

records. J.S.16-17. Anything that has ever happened

in the State is fair game, and which facts courts will

deem relevant is anyone’s guess. Ben Carson’s finish

in the 2016 primary was counted against Alabama in

2022. App.844. After Alabama proved that Carson’s

tally in Alabama was one of his best in the country,

App.281, the State was faulted for not proving that

relatively underfunded and unknown congressional

candidates were not penalized for their race, Mot.13.

Likewise, after Alabama proved that it had the second-smallest racial gap in incarceration in the Nation,

Tr.2203:24-25, the district court turned to gaps in infant mortality, App.405. States can make “substantial

progress” across any number of vectors, App.455, and

still flunk the ever-changing test.

2. Remedying “specific, identified instances of past

discrimination,” Mot.21, cannot be the constitutional

reason for using race indefinitely. First, a §2 violation

is anything but specific. No one really thinks that “few

legal tests are as clear as the Gingles inquiry.”

Caster.BIO.29. The law “is notoriously unclear.” Merrill, 142 S.Ct. at 881 (Kavanaugh, J., concurring).

Even after forty years, “considerable disagreement

and uncertainty” about the very “nature” of vote dilution persists. Id. at 883 (Roberts, C.J., dissenting).

Core aspects of the test lack objective standards, culminating in a limitless inquiry into all past and present “circumstances,” Ala.Callais.Br.9-25, which may

yield a “527-page decision,” Mot.10, but not a finding

that can be fairly called “specific.” Even the most concrete and measurable indicators of political participation are discounted (App.411) or ignored (App.403).

8

See J.S.16. Government use of race is “simply too pernicious,” SFFA, 600 U.S. at 217, to rest on a test

plagued by such “uncertainties,” Merrill, 142 S.Ct. at

883 (Roberts, C.J., dissenting).

Second, a §2 vote-dilution claim does not prove racial “discrimination.” Contra Mot.21. Discrimination

is treating someone “worse than others who are similarly situated.” Bostock v. Clayton County, 590 U.S.

644, 657 (2020). But courts do not ask §2 plaintiffs to

prove that the State’s districting plan makes them

worse off than other voters—only that they are less

likely to vote for the winning candidate than they

would be in an alternative plan. That can be true for

a host of race-neutral reasons, such as a legislature’s

partisan goals, which make plaintiffs differently “situated.” Simply calling the result “discrimination”

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

900, 922 (1995) (no “blind judicial deference”).

Third, a §2 violation does not mean “likely intentional discrimination.” Contra Caster.BIO.23; see

Thornburg v. Gingles, 478 U.S 30, 44 (1986). States

can violate §2 even when they are “intensely concerned with complying with the VRA.” Turtle Mountain v. Howe, No. 3:22-cv-22, 2023 WL 8004576,

at *16s (D.N.D. Nov. 17, 2023). Or even when lines

drawn by a “bipartisan and independent commission

reflected a difficult balance of many competing factors

and could be justified in any number of rational, nondiscriminatory ways.” Soto Palmer v. Hobbs, 686

F.Supp.3d 1213, 1232 (W.D. Wash. 2023). As courts

interpret §2 today, a violation does not begin to prove

intent.

9

II.

The Legislature Did Not Intentionally

Discriminate by Declining to Adopt a

Race-Based Map.

The holding that the Legislature acted out of “racial animus” (App.523) when it declined to adopt a

race-based map that would “not achieve all [its] political goals” (App.514) goes to show how far afield §2 has

gone in redistricting. The court was required to “draw

the inference that cuts in the legislature’s favor”

whenever possible. Alexander, 602 U.S. at 10; see Abbott v. Perez, 585 U.S. 579, 605-07 (2018). It did the

opposite, consistently inferring invidious intent from

its disagreement with Alabama’s §2 arguments and

twisting neutral legislative findings. But whatever

the district court thought about the legal arguments

could not change the Legislature’s “actual considerations.” Bethune-Hill, 580 U.S. at 189. Regardless of

how this Court resolves the §2 claims, it should summarily reverse or give plenary review to this extraordinary holding, which contravenes Alexander and

Abbott and will haunt the State for decades to come.

A. Racial-Gerrymandering Concerns. Start

with the fanciful idea that “Alabama had no reason for

‘concern[] that splitting Mobile County [along racial

lines] exposed it to a racial gerrymandering claim.”

Mot.38. The Robinson plaintiffs said the same thing,

Stay.Opp.31-35, Ardoin v. Robinson, No. 21A814 (U.S.

June 23, 2022), and within two years, Louisiana’s new

map was enjoined for racial gerrymandering.

While States are always navigating the twin hazards of §2 and the Constitution, here there were racial

gerrymandering claims pending in both Milligan and

Singleton, which plaintiffs raised during the 2023

Special Session, just weeks after SFFA. J.S.5, 28-29.

10

Of course the Legislature “may well have believed”

there was a constitutional problem (App.519), and

that possibility precludes a finding of animus.

B. Partisan Motives. None of the “undisputed

facts” (Mot.34) distinguish partisan motives from discriminatory ones. That even an “occasional opportunity” for Democrats to win CD2 “was too much” for

the Republican Legislature is more than plausibly explained by partisanship. Id. Likewise for the adoption

of the “worst-performing map” for Democrats. Mot.37.

At the same time that Plaintiffs say “partisanship

does not explain” why Selma remained in CD7,

Mot.39, they concede that leaving it there reduced any

Democrat’s “chance of winning,” Mot.8.

Plaintiffs are not just “quick to hurl [] accusations”

of racism, Alexander, 602 U.S. at 11; they ignore obvious indicia of party politics. The 2023 Plan was crafted

by Republicans and passed along party lines. The Republican Speaker of the U.S. House of Representatives called Republican members of the Legislature

and urged them not to lose a seat. App.524. Yet the

court below demanded direct testimony that legislators “acted on those conversations,” id., which was not

the State’s burden, see Project on Fair Representation

Br.8-10, No. 25-274 (U.S. Oct. 9, 2025). “Without an

alternative map” that achieves the same partisan

goals, plaintiffs could not “defeat [the] starting presumption” of good faith. Cf. Alexander, 602 U.S. at 10.

C. Traditional Principles. In Plaintiffs’ upsidedown world, when it is “impossible” to draw a second

majority-minority district while still satisfying a

State’s race-neutral goals, those goals must be “pretext” for discrimination. Mot.35. But refusal to subordinate race-neutral goals to race is anything but

11

evidence of a constitutional violation. And even if a §2

remedy that jettisons the State’s goals could be lawful,

that still would not mean the State intends “discriminatory vote dilution” by pursuing non-racial goals. Id.

Like the district court, Plaintiffs scold the State for

not splitting the Gulf Coast in particular. This is a canard. First, after the district court and this Court

found evidence from the breakneck-paced preliminary-injunction stage “insufficient,” 599 U.S. at 21,

the State showed with tremendous evidence that the

Gulf is its own community. It is unsurprising, even

“expect[ed]” (App.953), that the Legislature would enact findings and develop testimony (App.494) about

what was “being litigated” (App.504), especially with

how easily courts manipulate communities of

interest, Ala.Callais.Br.15-17. Likewise, it is not surprising that the Legislature dedicated less space to

the Black Belt, which no one disputes is a community.

Contra Mot.8. In any event, the district court agreed

with the State, recognizing the Gulf as a community.

App.346. Plaintiffs do not contest that finding.

Second, there’s nothing untoward about identifying the French and Spanish influence in the Gulf region (contra Mot.1, 4, 8, 35, 39), any more than

recognizing the “Anglo-Saxon tradition of criminal

justice[] embodied in the United States Constitution,”

United States v. Bailey, 444 U.S. 394, 414 (1980).

Neither suggests any racial preference, as the NAACP

has recognized elsewhere. Nairne v. Ardoin,

715 F.Supp.3d 808, 844-45 (M.D. La. 2024) (NAACP

identifying “community” of both “White and Black

people” that was “influenced by French colonialism”).

Third, the State did not, and need not, “exalt and

extol one community” over others. Contra Mot.35. The

12

whole explanation for the 2023 Plan was showing that

Alabama could preserve both the Gulf Coast and the

Black Belt, splitting them no more than necessary.

D. Ordinary Legal Disagreement. The most

basic error in the decision below is the idea that Alabama “refused to provide the remedy” that Plaintiffs

say was “required” by virtue of a preliminary-injunction order. Mot.37. Enforcement of the 2021 Plan was

preliminarily enjoined. After that, the State was not

required to enact a new map at all. Passing a better

plan that the State believed gave it a “good shot” at

winning (App.510) is “defiance” (Mot.2, 4) only if one

misunderstands the fundamentals of a preliminary

injunction, which says only that a particular map

“likely” violates §2 and nothing about whether a different map actually does so. See Fair.Rep.Br.11-16.

The premise that the 2023 Plan reflects “zero

effort” by Alabama to comply with §2 (Mot.37) is

equally absurd. The parties have many disagreements

about this notoriously unclear area of law. But disagreeing with Plaintiffs is not discrimination.

CONCLUSION

The Court should note probable jurisdiction or

summarily reverse.

13

Respectfully submitted,

Michael P. Taunton

Riley Kate Lancaster

BALCH & BINGHAM LLP

1901 Sixth Ave. N., Ste. 1500

Birmingham, AL 35203

Taylor A.R. Meehan

CONSOVOY MCCARTHY PLLC

1600 Wilson Blvd., Ste 700

Arlington, VA 22209

November 4, 2025

Steve Marshall

Attorney General

A. Barrett Bowdre

Solicitor General

Counsel of Record

Robert M. Overing

Dylan Mauldin

George Muirhead

James W. Davis

Misty S. F. Messick

Brenton M. Smith

Benjamin M. Seiss

STATE OF ALABAMA

OFFICE OF THE ATT’Y GEN.

501 Washington Ave.

Montgomery, AL 36130

(334) 242-7300

Barrett.Bowdre@

AlabamaAG.gov