Alabama Legislative Black Caucus and Alabama Democratic Conference v. Alabama Brief Amicus Curiae of LDF

    Nos. 13-895 & 13-1138

In The

Supreme Court of tfje fHmteb States
ALABAMA LEGISLATIVE BLACK CAUCUS, et al,

Appellants,
v.

ALABAMA, et al.,
Appellees.

ALABAMA DEMOCRATIC CONFERENCE, et al,
Appellants,

v.
THE STATE OF ALABAMA, et al,

Appellees.

On Appeal from the United States District Court 
for the Middle District of Alabama

BRIEF OF AMICUS CURIAE NAACP LEGAL 
DEFENSE & EDUCATIONAL FUND, INC., 

IN SUPPORT OF APPELLANTS

Sherrilyn Ifill 
President & Director-Counsel 

Christina A. Swarns 
Ryan P. Haygood 

Counsel of Record 
Natasha M. Korgaonkar 
Leah C. Aden 
Deuel Ross 
NAACP Legal Defense 

& Educational Fund , Inc . 
40 Rector Street, 5th Floor 
New York, New York 10006 
(212) 965-2200
rhaygood@naacpldf.org______

Samuel Spital 
William J. Honan 
S. Mustafa Rizvi 
Holland & Knight LLP 
31 West 52nd Street 
New York, New York 10019 
(212) 513-3200

mailto:rhaygood@naacpldf.org


1

TABLE OF CONTENTS

INTEREST OF AMICUS CURIAE.............................. 1
SUMMARY OF THE ARGUMENT..... ........................ 2
ARGUMENT.................................................................... 2
I. Compliance with the Voting Rights Act Is a

Compelling State In terest......................................... 2
II. Alabama’s Legislative Redistricting Was

Not Narrowly Tailored to Comply with the 
Voting Rights Act........................................................ 6
A. The VRA Can Require the Creation or

Maintenance of Majority-Minority 
D istricts...................................................................7

B. The VRA Does Not Require Fixed
Percentages of Minority Voters........................ 12

CONCLUSION...............................................................18



TABLE OF AUTHORITIES
Cases

Page(s)
Allen v. State Board of Elections,

393 U.S. 544 (1969)..................................................7, 8
Bartlett v. Strickland,

556 U.S. 1 (2009)...........................................................9
Beer v. United States,

425 U.S. 130 (1976).........................................2, 12, 13
Bush v. Vera,

517 U.S. 952 (1996)........................................... passim
Chisom v. Roemer,

501 U.S. 380 (1991)...................................................... 2
City of Rome v. United States,

446 U.S. 156 (1980).......................................   4
Easley v. Cromartie,

532 U.S. 234 (2001)....................................................... 1
Georgia v. Ashcroft,

539 U.S. 461 (2003)............................................... 1, 13
Georgia State Conference NAACP v.

Fayette County Board of Commissioners,
950 F. Supp. 2d 1294 (N.D. Ga. 2013)....................10

Gomillion v. Lightfoot,
364 U.S. 339 (1960)....................................................... 2

Houston Lawyers’ Association v.
Attorney General of Texas,
501 U.S. 419 (1991)....................................................... 2



Ill

King u. State Board of Elections,
979 F. Supp. 619 (N.D. 111. 1997),
a ff’d, 522 U.S. 1087 (1998)..........................................6

Kirksey v. Board of Supervisors,
554 F.2d 139 (5th Cir. 1977)...................................... 2

League of United Latin American Citizens v.
Clements, 999 F.2d 831 (5th Cir. 1993) ...................1

League of United Latin American Citizens v.
Perry, 548 U.S. 399 (2006)...............................passim

Miller v. Johnson,
515 U.S. 900 (1995).............................................  12, 14

Northwest Austin Municipal Utility District 
Number One v. Holder, 557 U.S. 193 (2009). 1, 5, 11

Schnell v. Davis,
336 U.S. 933 (1949) ......................................................2

Shaw v. Hunt,
517 U.S. 899 (1996)............................................... 1, 12

Shaw v. Reno,
509 U.S. 630 (1993)................................................. 2, 7

Shelby County, Alabama v. Holder,
133 S. Ct. 2612 (2013).................................... 1, 3, 4, 5

Sm ith v. Allwright,
321 U.S. 649 (1944).......................................................2

South Carolina v. Katzenbach,
383 U.S. 301 (1966).....   3

Terry v. Adams,
345 U.S. 461 (1953)........................... ...... ................... 2

Texas v. United States,
831 F. Supp. 244 (D.D.C. 2011) .15



IV

Thornburg v. Gingles,
478 U.S. 30 (1986)...........................................2, 10, 15

Turner Broadcasting System, Inc. v.
Federal Communications Commission,
520 U.S. 180 (1997)..................................   4

United States v. Hays,
515 U.S. 737 (1995).......................................................1

White u. Regester,
412 U.S. 755 (1973) ..................................................... 8

White v. Regester,
422 U.S. 935 (1975) ..................................................... 2

Yick Wo v. Hopkins,
118 U.S. 356 (1886)...................................................... 4

Zimmer v. McKeithen,
485 F.2d 1297 (5th Cir. 1973).................................... 2

Statutes and L egislative M aterials
42 U.S.C. § 1973c.......................................................... 13
Voting Rights Act: Section 5 of the Act —
History, Scope & Purpose: Hearing Before the 
Subcommittee on the Constitution of the 
House Committee on the Judiciary, 109th 
Cong. (Oct. 25, 2005).....................................................8
Renewing the Temporary Provisions of the 
Voting Rights Act: Legislative Options after 
LULAC v. Perry: Hearing Before the 
Subcommittee on the Constitution, Civil 
Rights and Property Rights of the Senate 
Committee on the Judiciary, 109th Cong.
(July 13, 2006) 9, 10



V

Other A uthorities
76 Fed. Reg. 7470 (Feb. 9. 2011).................................16
Stephen Ansolabehere, Nathaniel Persily & Charles 
Stewart III, Regional Differences in Racial 
Polarization in the 2012 Presidential Election: 
Implications for the Constitutionality of Section 5 of
the Voting Rights Act, 126 Harv. L. Rev. F. 205 
(2013)..................................................................................9
David T. Canon, Race, Redistricting, and 
Representation: The Unintended Consequences of 
Black Majority Districts (1999).....................................8
Lisa Handley & Bernard Grofman, The Impact of the 
Voting Rights Act on Minority Representation, in 
Quiet Revolution in the South 335 (Chandler 
Davidson & Bernard Grofman eds., 1994)................11
Brief of Nathaniel Persily, et al. as Amici Curiae in 
Northwest Austin Municipal Utility District Number 
One v. Holder, 557 U.S. 193 (2009) (No. 08-322).... 10



1

INTEREST OF AMICUS CURIAE*

The NAACP Legal Defense and Educational 
Fund, Inc. (“LDF”) is a non-profit legal organization 
established under the laws of New York to assist 
Black and other people of color in the full, fair, and 
free exercise of their constitutional rights. Founded 
in 1940 under the leadership of Thurgood Marshall, 
LDF focuses on eliminating racial discrimination in 
education, economic justice, criminal justice, and 
political participation.

LDF has been involved in nearly all of the 
precedent-setting litigation relating to minority 
voting rights before state and federal courts, 
including lawsuits involving constitutional and legal 
challenges to discriminatory state voter registration 
laws. See, e.g., Shelby County, Ala. u. Holder, 133 S. 
Ct. 2612 (2013); Nw. Austin Mun. Util. Dist. No. One 
v. Holder, 557 U.S. 193 (2009); League of United 
Latin Am. Citizens v. Perry, 548 U.S. 399 (2006); 
Georgia u. Ashcroft, 539 U.S. 461 (2003); Easley u. 
Cromartie, 532 U.S. 234 (2001); Bush v. Vera, 517 
U.S. 952 (1996); Shaw v. Hunt, 517 U.S. 899 (1996); 
United States v. Hays, 515 U.S. 737 (1995); League of

1 Pursuant to Supreme Court Rule 37.6, counsel for amicus 
state that no counsel for a party authored this brief in whole or 
in part, and no person other than amicus, its members, or its 
counsel made a monetary contribution to the preparation or 
submission of this brief. The parties have filed blanket consent 
letters with the Clerk of the Court pursuant to Supreme Court 
Rule 37.3.



2

United Latin Am. Citizens v. Clements, 999 F.2d 831 
(5th Cir. 1993) (en banc); Chisom v. Roemer, 501 U.S. 
380 (1991); Houston Lawyers’ A ss’n v. Attorney Gen. 
of Texas, 501 U.S. 419 (1991); Thornburg v. Gingles, 
478 U.S. 30 (1986); Beer v. United States, 425 U.S. 
130 (1976); White v. Regester, 422 U.S. 935 (1975) 
(per curiam); Gomillion v. Lightfoot, 364 U.S. 339 
(1960); Terry v. Adams, 345 U.S. 461 (1953); Schnell 
v. Davis, 336 U.S. 933 (1949) (per curiam); Sm ith v. 
Allwright, 321 U.S. 649 (1944); Kirksey v. Bd. of 
Supervisors, 554 F.2d 139 (5th Cir. 1977); Zimmer v. 
McKeithen, 485 F.2d 1297 (5th Cir. 1973). As such, 
LDF has a significant in terest in ensuring the full, 
proper, and continued enforcement of the Voting 
Rights Act and United States Constitution.

SUMMARY OF THE ARGUMENT
The focus of this brief is whether Alabama’s 

redistricting plan satisfies strict scrutiny under 
Shaw v. Reno, 509 U.S. 630 (1993), i.e., was it 
narrowly tailored to a compelling state interest. 
Amicus contends tha t compliance with the Voting 
Rights Act (VRA or Act) is a compelling state 
interest, see P art I, but th a t Alabama’s redistricting 
plan was not narrowly tailored, see P art II.

ARGUMENT
I. Com pliance w ith  the V oting R ights Act Is a

Com pelling State Interest.
The Voting Rights Act of 1965 was enacted to 

“address entrenched racial discrimination in voting, 
‘an insidious and pervasive evil which had been 
perpetuated in certain parts of our country through 
unrem itting and ingenious defiance of the



3

Constitution.’” Shelby County, Ala. v. Holder, 133 S. 
Ct. 2612, 2618 (2013) (quoting South Carolina v. 
Katzenbach, 383 U.S. 301, 309 (1966)).

In the decision below, the majority and dissent 
agreed th a t compliance with the VRA is a compelling 
state interest. Appendix to the Jurisdictional 
Statem ent in No. 13-895 (“J.S. App.”) 173 (majority); 
see J.S. App. 244 (dissent). That conclusion is 
consistent with this Court’s guidance in League of 
United Latin Am. Citizens v. Perry, 548 U.S. 399 
(2006) (“LU LAC ’), in which all eight Justices who 
reached the issue agreed th a t compliance with 
Section 5 of the Act is a compelling state interest. 
See id. a t 475 n.12 (Stevens, J., concurring in part 
and dissenting in part); id. at 485 n.2 (Souter, J., 
concurring in part and dissenting in part); id. a t 518 
(Scalia, J., concurring in the judgment in part and 
dissenting in part).

As Justice Scalia noted in LULAC, this Court had 
upheld Section 5 “as a proper exercise of Congress’s 
authority under § 2 of the Fifteenth Amendment to 
enforce tha t Amendment’s prohibition on the denial 
or abridgment of the right to vote.” Id. Thus, at the 
time of Alabama’s redistricting, Section 5 was 
binding on Alabama by virtue of the Supremacy 
Clause, which “obliges the States to comply with all 
constitutional exercises of Congress’ power.” Bush v. 
Vera, 517 U.S. 952, 991-92 (1996) (O’Connor, J., 
concurring) (recognizing tha t compliance with 
Section 2 of the VRA is a compelling state interest). 
And, “[i]f compliance with [Section 5 of the VRA] 
were not a compelling state interest, then a State 
could be placed in the impossible position of having



4

to choose,” between compliance with the VRA and 
compliance with Shaw  and its progeny. LULAC, 548 
U.S. a t 518 (Opinion of Scalia, J.).

The conclusion tha t compliance with the VRA is a 
compelling state interest “is bolstered by concerns of 
respect for the authority of Congress under the 
Reconstruction Amendments.” Vera, 517 U.S. a t 992 
(O’Connor, J., concurring). Racial discrimination in 
voting causes a grave constitutional injury because it 
lies at the intersection of race, the most suspect 
classification, and the right to vote, the right 
“preservative of all rights.” Yick Wo v. Hopkins, 118 
U.S. 356, 370 (1886). As this Court recognized in 
Shelby County, 133 S. Ct. 2631, “any racial 
discrimination in voting is too much.”

Congress has carefully studied the problem of 
racial discrimination in voting, and it has 
determined th a t the Voting Rights Act is necessary 
to remedy unconstitutional voting discrimination. 
See, e.g., City of Rome u. United States, 446 U.S. 156, 
180-82 (1980) (discussing Section 5); Vera, 517 U.S. 
a t 992 (O’Connor, J., concurring) (discussing Section 
2). These determinations are entitled to respect both 
because of Congress’s expressly delegated authority 
under the Reconstruction Amendments, and because 
Congress “is far better equipped than  the judiciary to 
amass and evaluate the vast amounts of data 
bearing upon legislative questions,” Turner Broad. 
Sys., Inc. v. FCC, 520 U.S. 180, 195 (1997) (citations 
and internal quotation m arks omitted)—questions 
such as what tools are necessary to remedy a 
complex and persistent problem like racial 
discrimination in voting. The failures of legislative



5

and judicial efforts to address such discrimination 
prior to the VBA are well-documented. See, e.g., Nw. 
Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 
193, 197-98 (2009).

Amicus recognizes tha t this Court has held that 
the VRA’s section 4(b) coverage provision is 
unconstitutional. Shelby County, 133 S. Ct. a t 2629. 
This Court, however, did not question Congress’s 
authority under the Reconstruction Amendments, or 
the importance of Congress’s institutional role in 
undertaking legislative factfinding or making 
predictive judgments in this area. See Nw. Austin, 
557 U.S. a t 205 (“The Fifteenth Amendment 
empowers ‘Congress,’ not the Court, to determine in 
the first instance what legislation is needed to 
enforce it.”). And this Court in Shelby County 
stressed th a t its holding did not undermine other 
provisions of the VRA. See, e.g., 133 S. Ct. a t 2631 
(“Our decision in no way affects the permanent, 
nationwide ban on racial discrimination in voting 
found in § 2.”).

In sum, compliance with the VRA is a compelling 
state interest: the VRA enforces the Reconstruction 
Amendments, and the Supremacy Clause obligates 
the States to comply with the Act. As another three- 
judge court stated in holding th a t compliance with 
Section 2 of the VRA is a compelling state interest:

“In Shaw, the Court recognized tha t a 
significant state interest exists in 
eradicating the effects of past racial 
discrimination, provided the State has a 
‘strong basis in evidence for concluding 
th a t remedial action is necessary.’ This



6

compelling state in terest extends to 
remedying past or present violations of 
federal statu tes intended to eliminate 
discrimination in specific aspects of 
life.”

King v. State Bd. of Elections, 979 F. Supp. 619, 622 
(N.D. 111. 1997) (citations and alterations omitted); 
summarily a ff’d 522 U.S. 1087 (1998).
II. Alabam a’s L egislative R edistricting Was Not

N arrow ly Tailored to Comply w ith  the
V oting R ights Act.
Although amicus agrees with the District Court 

th a t compliance with the Voting Rights Act is a 
compelling state interest, amicus disagrees with the 
conclusion of the majority below tha t Alabama’s 
legislative redistricting was narrowly tailored.

Amicus recognize that, particularly in the 
redistricting context, narrow tailoring does not 
require perfect tailoring. “[T]he ‘narrow tailoring’ 
requirement of strict scrutiny allows the States a 
limited degree of leeway in furthering such 
interests.” Vera, 517 U.S. a t 977 (plurality opinion). 
When a State has a “‘strong basis in evidence’” for 
concluding th a t its redistricting decisions are 
“reasonably necessary” to comply with the Voting 
Rights Act, the redistricting plan is narrowly 
tailored. Id. (discussing Section 2) (citations 
omitted); see also LULAC, 548 U.S. at 519 (Opinion 
of Scalia, J.) (discussing Section 5).

Thus, districts designed to comply with the VRA 
that are “reasonably compact and regular, taking 
into account traditional districting principles . . .



7

may pass strict scrutiny”; they need not “defeat rival 
compact districts designed by plaintiffs’ experts [as 
hypothetical alternatives] in endless ‘beauty 
contests.’” Vera, 517 U.S. at 977 (plurality opinion) 
(emphasis in original); see also id. (“We . . . reject, as 
impossibly stringent, the District Court’s view of the 
narrow tailoring requirement tha t ‘a district must 
have the least possible amount of irregularity in 
shape, making allowances for traditional districting 
criteria.’”) (citation omitted).

Here, the majority of the District Court concluded 
th a t Alabama’s redistricting was narrowly tailored 
because the legislature had a strong basis in 
evidence for believing that: (a) m aintaining the 
number of majority-Black districts; and (b) 
m aintaining the percentages of Black voters in those 
districts, were both reasonably necessary to comply 
with Section 5 of the VRA. J.S. App. 183. Amicus 
agrees with the majority about the first point, but 
not the second.

A. The VRA Can Require the Creation or 
M aintenance o f M ajority-M inority 
D istricts.

Shortly after passage of the VRA, it “became 
apparent tha t guaranteeing equal access to the polls 
would not suffice to root out other racially 
discriminatory voting practices. . . . [designed to] 
reduce or nullify minority voters’ ability, as a group, 
to elect the candidate of their choice.’” Shaw, 509 
U.S. a t 640-41 (1993) (quoting Allen v. State Bd. of 
Elections, 393 U.S. 544, 569 (1969)). Such
unconstitutional efforts to “cancel out or minimize 
the voting strength” of minority voters, White v.



8

Regester, 412 U.S. 755, 765 (1973), are known as 
vote dilution. This Court has always interpreted the 
VRA to prohibit vote dilution, which can “nullify 
[minority voters’] ability to elect the candidate of 
their choice just as would prohibiting some of them 
from voting.” Allen, 393 U.S. a t 569.

A necessary precondition for vote dilution is 
racially polarized voting, a phenomenon tha t can be 
m anipulated by jurisdictions to enact districting 
schemes or other measures (such as at-large voting) 
that serve to freeze minority voters out of the 
political process. And in voting, as in many other 
areas, stark  polarization along racial lines has long 
been an unfortunate reality throughout this country. 
See, e.g., LULAC, 548 U.S. a t 427 (majority opinion 
of Kennedy, J.) (citation omitted) (noting tha t the 
district court had found “found ‘racially polarized 
voting’ in south and west Texas, and indeed 
‘throughout the S tate’”).

In a total of “6,667 House elections in white 
majority districts between 1966 and 1996 . . . only 35 
(0.52 percent) were won by blacks.” David T. Canon, 
Race, Redistricting, and Representation: The 
Unintended Consequences of Black Majority Districts 
10 (1999). This is especially true in Alabama, where, 
as of 2005, every African-American member of the 
legislature was elected from a single-member district 
with an effective black voter majority. See Voting 
Rights Act: Section 5 of the Act — History, Scope & 
Purpose: Hearing Before the Subcommittee on the 
Constitution of the House Committee on the 
Judiciary, 109th Cong. 3199 (Oct. 25, 2005)
(statem ent of Jam es U. Blacksher). Stated



9

differently, in 2006, Alabama had no Black officials 
elected statewide, and virtually all Black local 
officials were elected from majority-minority 
districts — notwithstanding the fact tha t Black 
people comprise more than 26% of the population. 
Renewing the Temporary Provisions of the Voting 
Rights Act: Legislative Options after LULAC v. 
Perry: Hearing Before the Subcommittee on the 
Constitution, Civil Rights and Property Rights of the 
Senate Committee on the Judiciary, 109th Cong. 388- 
89 (July 13, 2006).

While there has been undeniable progress, “racial 
discrimination and racially polarized voting are not 
ancient history. Much remains to be done to ensure 
tha t citizens of all races have equal opportunity to 
share and participate in our democratic processes 
and traditions . . . .” Bartlett v. Strickland, 556 U.S. 
1, 25 (2009) (Kennedy, J.) (plurality opinion). And, 
while racial polarization has declined in some parts 
of the country, data from recent federal elections 
show tha t in other areas, including Alabama, “the 
extent of racial polarization in presidential elections 
increased over the past decade,” even while 
“account[ing] for partisan identification,” meaning 
that “the race of the voter continues to constitute a 
statistically significant factor in determining vote 
choice even after controlling for party.” Stephen 
Ansolabehere, Nathaniel Persily & Charles Stewart 
III, Regional Differences in Racial Polarization in the 
2012 Presidential Election: Implications for the 
Constitutionality of Section 5 of the Voting Rights 
Act, 126 Harv.~ L. Rev. F. 205, 210, 218 (2013) 
(emphasis added).



10

The 2008 Presidential election results, for 
example, confirm the existence of extreme racial 
polarization in Alabama. President Obama received 
near-unanim ous support from Black voters, with 98 
percent of Black voters pulling the lever for him, but 
received support from only 10 percent of white voters 
in Alabama—his worst showing among the 50 states. 
Brief of Nathaniel Persily, et al. as Amici Curiae in 
Northwest Austin, No. 08-322, at 11-12. Two 
additional striking examples of racially polarized 
voting, “indicative of the racial cleavage th a t exists 
in Alabama to this day,” were the 2003 and 2004 
unsuccessful voter referenda to remove 
unconstitutional Jim  Crow provisions of Alabama’s 
Constitution, including poll tax language. July 13, 
2006 Hearing, a t 367, 372.

To combat vote dilution, the VRA sometimes 
requires jurisdictions to create or m aintain majority- 
minority districts. See, e.g., Georgia State 
Conference NAACP u. Fayette County Bd. of 
Commissioners, 950 F. Supp. 2d 1294, 1312, 1316, 
1322, 1326-27 (N.D. Ga. 2013) (finding the creation 
of a majority-minority district necessary to remedy a 
Section 2 violation based on the county’s use of at- 
large elections, in combination with racially 
polarized voting, to prevent Black voters from ever 
electing candidates of choice to either the county 
school board or board of commissioners in nearly two 
centuries). Such districts can be essential to 
ensuring tha t the majority, “by virtue of its 
numerical superiority,” does not always defeat the 
choices of minority voters. Thornburg v. Gingles, 
478 U.S. 30, 48 (1986). In other words, in light of the



11

reality of racially polarized voting, majority-minority 
districts are sometimes necessary for minority voters 
to have a meaningful opportunity to participate in 
the political process and to elect candidates of their 
choice.

Indeed, much of the progress caused by the VRA 
has been the result of majority-minority districts. In 
Northwest Austin, this Court noted, as one of the 
VRA’s great successes, that “minority candidates 
[now] hold office at unprecedented levels.” 557 U.S. 
at 202. Such office holding has been made possible 
because, notwithstanding persistent racial 
polarization, the VRA has required the creation of 
majority-minority districts to combat vote dilution. 
See, e.g., Lisa Handley & Bernard Grofman, The 
Impact of the Voting Rights Act on Minority 
Representation, in Quiet Revolution in the South 335 
(Chandler Davidson & Bernard Grofman eds., 1994) 
(noting th a t since the enactment of the VRA, “the 
increase in the number of blacks elected to office in 
the South [has been] a product of the increase in the 
number of majority-black districts and not of blacks 
winning in majority-white districts”).

In this case, the Alabama legislature had a strong 
basis in evidence to believe that racially polarized 
voting remains stark and persistent in the State, see 
J.S. App. 84-85; and, therefore, amicus agrees with 
the District Court tha t maintaining the same 
number of majority-Black districts was reasonably 
necessary to comply with Section 5. As this Court 
has explained, under Section 5’s non-retrogression 
principle, “the minority’s opportunity to elect 
representatives of its choice,” may not be



12

“diminished, directly or indirectly, by the State’s 
actions.” Vera, 517 U.S. a t 983 (plurality opinion) 
(emphasis omitted); see also Miller v. Johnson, 515 
U.S. 900, 906 (1995) (Section 5 prohibits ‘“voting- 
procedure changes . . . th a t would lead to a 
retrogression in the position of racial minorities with 
respect to their effective exercise of the electoral 
franchise.’”) (quoting Beer u. United States, 425 U.S. 
130, 141 (1976)). The Alabama legislature’s decision 
to m aintain the same number of majority-Black 
districts, standing alone, would have passed m uster 
under strict scrutiny.

B. The VRA D oes Not Require Fixed  
P ercentages o f M inority Voters.

The drafters of Alabama’s redistricting plan also 
attem pted to m aintain “as closely as possible” the 
Black population percentage in the majority-Black 
districts because they believed tha t doing so was 
required by Section 5. J.S. App. 33 (majority); J.S. 
App. 245 (Thompson, J., dissenting). That is not a 
“correct reading of § 5,” which means it cannot 
justify Alabama’s use of race as a predominant factor 
in these districting decisions. Shaw v. Hunt, 517 
U.S. 899, 911 (1996); see J.S. App. 244 (Thompson, 
J., dissenting).

As discussed, Section 5 prohibits retrogression, 
i.e., diminishing minority voters’ opportunities to 
elect candidates of their choice. See Vera, 517 U.S. 
at 983 (plurality opinion). But not all reductions in 
the minority population of a majority-minority 
district are retrogressive. Judge Thompson noted an 
obvious example: reducing a district’s Black
population from 99% to 98% is not retrogressive



13

because Black voters will still retain  their ability (or 
opportunity) to elect a candidate of choice in the new 
district. See J.S. App. 253.

The majority below nonetheless concluded that 
the 2006 Amendments to Section 5, which prohibit 
retrogression in minorities “ability to . . . elect their 
preferred candidates of choice,” 42 U.S.C. § 1973c, 
mean tha t any reduction in the minority population 
of a majority-minority district violates Section 5. 
J.S. App. 180.2 This interpretation, however, “is 
contrary to the in tent of Congress” and “has been 
rejected by both entities primarily responsible for 
administering § 5.” J.S. App. 251 (Thompson, J., 
dissenting).

As the majority of the District Court recognized, 
Congress’s in tent through the 2006 Amendments 
was to restore the retrogression standard set forth in 
Beer, 425 U.S. a t 130, and reverse what Congress 
viewed as a departure from that standard in Georgia 
v. Ashcroft, 539 U.S. 461 (2003). See J.S. App, 179.

2 Although the majority below stated tha t “the 
Alabama Legislature correctly concluded tha t it 
could not . . . significantly reduce the percentages of 
black voters in the majority-black districts,” J.S. 
App. 180 (emphasis added), what it m eant by 
“significantly” is unclear. The Alabama Legislature 
did not seek to prevent “significant” reductions in 
the Black populations of majority-Black districts, it 
sought to prevent, as much as possible, any 
reduction in the Black populations of majority-Black 
districts. See J.S. App. 33 (majority); J.S. App. 245 
(Thompson, J., dissenting).



14

Congress’s concern with Georgia was not th a t the 
case perm itted reductions in the minority population 
percentage of majority-minority districts (which both 
the majority and dissent in Georgia agreed were not 
categorically prohibited by Section 5). Instead, 
Congress’s concern was th a t Georgia perm itted 
States to trade “districts where minority voters had 
actual ability to elect in exchange for amorphous 
influence districts or apparently powerful jobs for 
minority representatives.” J.S. App. 254 (Thompson, 
J., dissenting) (emphasis added). It is this aspect of 
Georgia, and this aspect alone, which Congress 
overturned in the 2006 Amendments. See id.3

Thus, the 2006 Amendments prohibit the 
dismantling of districts where minority voters have 
the ability to elect candidates of choice, but the 
Amendments do not prohibit all reductions in the 
minority population of a majority-minority district.

Determining whether a district retains the 
opportunity for minority voters to elect candidates of 
choice is a fact-specific inquiry, which requires

3 The majority below also erred in suggesting tha t 
there is a difference between the “ability to elect” 
standard and the question of whether minority 
voters have opportunities to elect candidates of 
choice. J.S. App. 181. As the majority itself 
recognized, the “ability to elect” standard is simply 
the Beer standard, J.S. App. 179, and this Court 
equated the Beer standard with electoral 
opportunities for minority voters. See, e.g., Vera, 517 
U.S. a t 983 (plurality opinion); Miller, 515 U.S. at 
906.



15

consideration of numerous factors including 
registration and turnout rates, the size of the 
minority population, and the severity of racially 
polarized voting. Cf. Texas v. United States, 831 F. 
Supp. 2d 244, 272 (D.D.C. 2011) (“Section 5 requires 
a multi-factored, functional approach to gauge 
whether a redistricting plan will have the effect of 
denying or abridging minority citizens’ ability to 
elect representatives of their choice. It does not lend 
itself to formalistic inquiry and complexity is 
inherent in the statu te.”). This is equally true under 
Section 2’s “ability to elect” standard. See Gingles, 
478 U.S. a t 45 (“the question whether the political 
processes are equally open depends upon a searching 
practical evaluation of the past and present reality, 
and on a functional view of the political process”) 
(citations and quotation marks omitted).

The Departm ent of Justice (DOJ) explained in its 
guidance to covered jurisdictions after the 2010 
census tha t the Section 5 retrogression inquiry turns 
on a context-specific comparison of minority voters’ 
electoral opportunities in the new plan as opposed to 
the benchmark plan, not predetermined numerical 
percentages:

In determining whether the ability to 
elect exists in the benchmark plan and 
whether it continues in the proposed 
plan, the Attorney General does not 
rely on any predetermined or fixed 
demographic percentages at any point 
in the assessment. Rather, in the 
Departm ent’s view, this determination 
requires a functional analysis of the



16

electoral behavior within the particular 
jurisdiction or election district.

76 Fed. Reg. 7470-01, 7471 (Feb. 9, 2011).
Consistent with this standard, DOJ granted 

preclearance to post-2010 redistricting plans tha t 
reduced the minority population percentages in 
majority-minority districts below the levels in the 
benchmark plans. See Brief of Appellant Alabama 
Democratic Conference at 30-31. Indeed, DOJ had 
similarly granted preclearance to post-2000 
redistricting plans with reductions in the minority 
populations of majority-minority districts, including 
Alabam a’s. See id. a t 28-30; Brief of Appellant 
Alabama Black Caucus at 3-4.

In sum, nothing in Section 5, as amended in 
2006, requires the maintenance of a specific minority 
population percentage in majority-minority districts. 
Alabama’s redistricting decisions were premised on 
an incorrect interpretation of the VRA. Therefore, 
the State’s use of a race as the predominant factor in 
those decisions was not narrowly tailored to its 
compelling in terest in complying with the Act.



17

CONCLUSION
The judgment of the District Court should be 

reversed so tha t the State may enact a new 
redistricting plan which complies both with the 
Voting Rights Act and the Constitution.

Respectfully submitted,

Sherrilyn  Ifill  
President & Director-Counsel 

Christina  A. Swarns 
Ryan P. Haygood 

Counsel of Record 
Natasha M. Korgaonkar 
Leah C. Ad en  
D euel  R oss
NAACP L egal D e fen se  & 
Educational F u n d , In c .

40 Rector Street, 5th Floor 
New York, New York 10006 
(212) 965-2200 
rhaygood@naacpldf.org

Sam uel Spital 
W illiam  J . H onan 
S. M ustafa  R izvi 
H olland & Kn ig h t  LLP 
31 West 52nd Street 
New York, NY 10019 
(212)513-3200

August 20, 2014

mailto:rhaygood@naacpldf.org