Alabama Legislative Black Caucus v. Alabama , 135 S. Ct. 1257 ( 2015 )

(Slip Opinion) OCTOBER TERM, 2014 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
ALABAMA LEGISLATIVE BLACK CAUCUS ET AL. v.
ALABAMA ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF ALABAMA
No. 13–895. Argued November 12, 2014—Decided March 25, 2015*
In 2012 Alabama redrew the boundaries of the State’s 105 House dis-
tricts and 35 Senate districts. In doing so, while Alabama sought to
achieve numerous traditional districting objectives—e.g., compact-
ness, not splitting counties or precincts, minimizing change, and pro-
tecting incumbents—it placed yet greater importance on two goals:
(1) minimizing a district’s deviation from precisely equal population,
by keeping any deviation less than 1% of the theoretical ideal; and (2)
seeking to avoid retrogression with respect to racial minorities’ “abil-
ity to elect their preferred candidates of choice” under §5 of the Vot-
ing Rights Act of 1965, 52 U. S. C. §10304(b), by maintaining roughly
the same black population percentage in existing majority-minority
districts.
Appellants—Alabama Legislative Black Caucus (Caucus), Alabama
Democratic Conference (Conference), and others—claim that Ala-
bama’s new district boundaries create a “racial gerrymander” in vio-
lation of the Fourteenth Amendment’s Equal Protection Clause. Af-
ter a bench trial, the three-judge District Court ruled (2 to 1) for the
State. It recognized that electoral districting violates the Equal Pro-
tection Clause when race is the “predominant” consideration in decid-
ing “to place a significant number of voters within or without a par-
ticular district,” Miller v. Johnson, 515 U. S. 900, 913, 916, and the
use of race is not “narrowly tailored to serve a compelling state inter-
est,” Shaw v. Hunt, 517 U. S. 899, 902 (Shaw II).
In ruling against appellants, it made four critical determinations:
——————
*Together with No. 13–1138, Alabama Democratic Conference et al. v.
Alabama et al., also on appeal from the same court.
2 ALABAMA LEGISLATIVE BLACK CAUCUS v. ALABAMA
Syllabus
(1) that both appellants had argued “that the Acts as a whole consti-
tute racial gerrymanders,” and that the Conference had also argued
that the State had racially gerrymandered Senate Districts 7, 11, 22,
and 26; (2) that the Conference lacked standing to make its racial
gerrymandering claims; (3) that, in any event, appellants’ claims
must fail because race “was not the predominant motivating factor”
in making the redistricting decisions; and (4) that, even were it
wrong about standing and predominance, these claims must fail be-
cause any predominant use of race was “narrowly tailored” to serve a
“compelling state interest” in avoiding retrogression under §5.
Held:
1. The District Court’s analysis of the racial gerrymandering claim
as referring to the State “as a whole,” rather than district-by-district,
was legally erroneous. Pp. 5–12.
(a) This Court has consistently described a claim of racial gerry-
mandering as a claim that race was improperly used in the drawing
of the boundaries of one or more specific electoral districts, see, e.g.,
Shaw v. Reno, 509 U. S. 630, 649 (Shaw I), and has described the
plaintiff ’s evidentiary burden similarly, see Miller, supra, at 916.
The Court’s district-specific language makes sense in light of the per-
sonal nature of the harms that underlie a racial gerrymandering
claim, see Bush v. Vera, 517 U. S. 952, 957; Shaw I, supra, at 648.
Pp. 5–6.
(b) The District Court found the fact that racial criteria had not
predominated in the drawing of some Alabama districts sufficient to
defeat a claim of racial gerrymandering with respect to the State as
an undifferentiated whole. But a showing that race-based criteria did
not significantly affect the drawing of some Alabama districts would
have done little to defeat a claim that race-based criteria predomi-
nantly affected the drawing of other Alabama districts. Thus, the
District Court’s undifferentiated statewide analysis is insufficient,
and the District Court must on remand consider racial gerrymander-
ing with respect to the individual districts challenged by appellants.
Pp. 7–8.
(c) The Caucus and the Conference did not waive the right to fur-
ther consideration of a district-by-district analysis. The record indi-
cates that plaintiffs’ evidence and arguments embody the claim that
individual majority-minority districts were racially gerrymandered,
and those are the districts that the District Court must reconsider.
Although plaintiffs relied heavily upon statewide evidence to prove
that race predominated in the drawing of individual district lines,
neither the use of statewide evidence nor the effort to show wide-
spread effect can transform a racial gerrymandering claim about a
set of individual districts into a separate, general claim that the leg-
Cite as: 575 U. S. ____ (2015) 3
Syllabus
islature racially gerrymandered the State “as” an undifferentiated
“whole.” Pp. 8–12.
2. The District Court also erred in deciding, sua sponte, that the
Conference lacked standing. It believed that the “record” did “not
clearly identify the districts in which the individual members of the
[Conference] reside.” But the Conference’s post-trial brief and the
testimony of a Conference representative support an inference that
the organization has members in all of the majority-minority dis-
tricts, which is sufficient to meet the Conference’s burden of estab-
lishing standing. At the very least, the Conference reasonably be-
lieved that, in the absence of a state challenge or a court request for
more detailed information, it need not provide additional information
such as a specific membership list. While the District Court had an
independent obligation to confirm its jurisdiction, in these circum-
stances elementary principles of procedural fairness required the
District Court, rather than acting sua sponte, to give the Conference
an opportunity to provide evidence of member residence. On remand,
the District Court should permit the Conference to file its member-
ship list and the State to respond, as appropriate. Pp. 12–15.
3. The District Court also did not properly calculate “predomi-
nance” in its alternative holding that “[r]ace was not the predominant
motivating factor” in the creation of any of the challenged districts.
It reached its conclusion in part because it placed in the balance,
among other nonracial factors, legislative efforts to create districts of
approximately equal population. An equal population goal, however,
is not one of the “traditional” factors to be weighed against the use of
race to determine whether race “predominates,” see Miller, supra, at
916. Rather, it is part of the redistricting background, taken as a
given, when determining whether race, or other factors, predominate
in a legislator’s determination as to how equal population objectives
will be met. Had the District Court not taken a contrary view of the
law, its “predominance” conclusions, including those concerning the
four districts that the Conference specifically challenged, might well
have been different. For example, there is strong, perhaps over-
whelming, evidence that race did predominate as a factor when the
legislature drew the boundaries of Senate District 26. Pp. 15–19.
4. The District Court’s final alternative holding—that “the [chal-
lenged] Districts would satisfy strict scrutiny”—rests upon a misper-
ception of the law. Section 5 does not require a covered jurisdiction to
maintain a particular numerical minority percentage. It requires the
jurisdiction to maintain a minority’s ability to elect a preferred can-
didate of choice. Pp. 19–23.
(a) The statute’s language, 52 U. S. C. §§10304(b), (d), and De-
partment of Justice Guidelines make clear that §5 is satisfied if mi-
4 ALABAMA LEGISLATIVE BLACK CAUCUS v. ALABAMA
Syllabus
nority voters retain the ability to elect their preferred candidates.
The history of §5 further supports this view, as Congress adopted the
language in §5 to reject this Court’s decision in Georgia v. Ashcroft,
539 U. S. 461, and to accept the views of Justice Souter’s dissent—
that, in a §5 retrogression case, courts should ask whether a new vot-
ing provision would likely deprive minority voters of their ability to
elect a candidate of their choice, and that courts should not mechani-
cally rely upon numerical percentages but should take account of all
significant circumstances, id., at 493, 498, 505, 509. Here, both the
District Court and the legislature relied heavily upon a mechanically
numerical view as to what counts as forbidden retrogression. Pp. 19–
22.
(b) In saying this, this Court does not insist that a state legisla-
ture, when redistricting, determine precisely what percent minority
population §5 demands. A court’s analysis of the narrow tailoring re-
quirement insists only that the legislature have a “strong basis in ev-
idence” in support of the (race-based) choice that it has made. Brief
for United States as Amicus Curiae 29. Here, however, the District
Court and the legislature both asked the wrong question with respect
to narrow tailoring. They asked how to maintain the present minori-
ty percentages in majority-minority districts, instead of asking the
extent to which they must preserve existing minority percentages in
order to maintain the minority’s present ability to elect the candidate
of its choice. Because asking the wrong question may well have led to
the wrong answer, the Court cannot accept the District Court’s con-
clusion. Pp. 22–23.
989 F. Supp. 2d 1227, vacated and remanded.
BREYER, J., delivered the opinion of the Court, in which KENNEDY,
GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. SCALIA, J., filed a dis-
senting opinion, in which ROBERTS, C. J., and THOMAS and ALITO, JJ.,
joined. THOMAS, J., filed a dissenting opinion.
Cite as: 575 U. S. ____ (2015) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 13–895 and 13–1138
_________________
ALABAMA LEGISLATIVE BLACK CAUCUS, ET AL.,
APPELLANTS
13–895 v.
ALABAMA ET AL.
ALABAMA DEMOCRATIC CONFERENCE, ET AL.,
APPELLANTS
13–1138 v.
ALABAMA ET AL.
ON APPEALS FROM THE UNITED STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF ALABAMA
[March 25, 2015]
JUSTICE BREYER delivered the opinion of the Court.
The Alabama Legislative Black Caucus and the Ala-
bama Democratic Conference appeal a three-judge Federal
District Court decision rejecting their challenges to the
lawfulness of Alabama’s 2012 redistricting of its State
House of Representatives and State Senate. The appeals
focus upon the appellants’ claims that new district bound-
aries create “racial gerrymanders” in violation of the
Fourteenth Amendment’s Equal Protection Clause. See,
e.g., Shaw v. Hunt, 517 U. S. 899, 907–908 (1996) (Shaw
II) (Fourteenth Amendment forbids use of race as “ ‘pre-
dominant’ ” district boundary-drawing “ ‘factor’ ” unless
boundaries are “narrowly tailored” to achieve a “ ‘compel-
ling state interest’ ” (citations omitted)). We find that the
2 ALABAMA LEGISLATIVE BLACK CAUCUS v. ALABAMA
Opinion of the Court
District Court applied incorrect legal standards in evaluat-
ing the claims. We consequently vacate its decision and
remand the cases for further proceedings.
I
The Alabama Constitution requires the legislature to
reapportion its State House and Senate electoral districts
following each decennial census. Ala. Const., Art. IX,
§§199–200. In 2012 Alabama redrew the boundaries of
the State’s 105 House districts and 35 Senate districts.
2012 Ala. Acts no. 602 (House plan); id., at no. 603 (Senate
plan) (Acts). In doing so, Alabama sought to achieve
numerous traditional districting objectives, such as com-
pactness, not splitting counties or precincts, minimizing
change, and protecting incumbents. But it placed yet
greater importance on achieving two other goals. See
Alabama Legislature Reapportionment Committee Guide-
lines in No. 12–cv–691, Doc. 30–4, pp. 3–5 (Committee
Guidelines).
First, it sought to minimize the extent to which a dis-
trict might deviate from the theoretical ideal of precisely
equal population. In particular, it set as a goal creating a
set of districts in which no district would deviate from the
theoretical, precisely equal ideal by more than 1%—i.e., a
more rigorous deviation standard than our precedents
have found necessary under the Constitution. See Brown
v. Thomson, 462 U. S. 835, 842 (1983) (5% deviation from
ideal generally permissible). No one here doubts the
desirability of a State’s efforts generally to come close to a
one-person, one-vote ideal.
Second, it sought to ensure compliance with federal law,
and, in particular, the Voting Rights Act of 1965. 79 Stat.
439, as amended, 52 U. S. C. §10301 et seq. At the time of
the redistricting Alabama was a covered jurisdiction under
that Act. Accordingly §5 of the Act required Alabama to
demonstrate that an electoral change, such as redistrict-
Cite as: 575 U. S. ____ (2015) 3
Opinion of the Court
ing, would not bring about retrogression in respect to
racial minorities’ “ability . . . to elect their preferred can-
didates of choice.” 52 U. S. C. §10304(b). Specifically,
Alabama believed that, to avoid retrogression under §5, it
was required to maintain roughly the same black popula-
tion percentage in existing majority-minority districts.
See Appendix B, infra.
Compliance with these two goals posed particular diffi-
culties with respect to many of the State’s 35 majority-
minority districts (8 in the Senate, 27 in the House). That
is because many of these districts were (compared with the
average district) underpopulated. In order for Senate
District 26, for example, to meet the State’s no-more-than-
1% population-deviation objective, the State would have to
add about 16,000 individuals to the district. And, prior to
redistricting, 72.75% of District 26’s population was black.
Accordingly, Alabama’s plan added 15,785 new individ-
uals, and only 36 of those newly added individuals were
white.
This suit, as it appears before us, focuses in large part
upon Alabama’s efforts to achieve these two goals. The
Caucus and the Conference basically claim that the State,
in adding so many new minority voters to majority-
minority districts (and to others), went too far. They
allege the State created a constitutionally forbidden “ra-
cial gerrymander”—a gerrymander that (e.g., when the
State adds more minority voters than needed for a minor-
ity group to elect a candidate of its choice) might, among
other things, harm the very minority voters that Acts such
as the Voting Rights Act sought to help.
After a bench trial, the Federal District Court held in
favor of the State, i.e., against the Caucus and the Confer-
ence, with respect to their racial gerrymandering claims
as well as with respect to several other legal claims that
the Caucus and the Conference had made. With respect to
racial gerrymandering, the District Court recognized that
4 ALABAMA LEGISLATIVE BLACK CAUCUS v. ALABAMA
Opinion of the Court
electoral districting violates the Equal Protection Clause
when (1) race is the “dominant and controlling” or “pre-
dominant” consideration in deciding “to place a significant
number of voters within or without a particular district,”
Miller v. Johnson, 515 U. S. 900, 913, 916 (1995), and (2)
the use of race is not “narrowly tailored to serve a compel-
ling state interest,” Shaw II, 517 U. S., at 902; see also
Shaw v. Reno, 509 U. S. 630, 649 (1993) (Shaw I ) (Consti-
tution forbids “separat[ion of] voters into different districts
on the basis of race” when the separation “lacks sufficient
justification”); Bush v. Vera, 517 U. S. 952, 958–959, 976
(1996) (principal opinion of O’Connor, J.) (same). But,
after trial the District Court held (2 to 1) that the Caucus
and the Conference had failed to prove their racial gerry-
mandering claims. The Caucus along with the Conference
(and several other plaintiffs) appealed. We noted probable
jurisdiction with respect to the racial gerrymandering
claims. 572 U. S. ___ (2014).
We shall focus upon four critical District Court determi-
nations underlying its ultimate “no violation” conclusion.
They concern:
1. The Geographical Nature of the Racial Gerryman-
dering Claims. The District Court characterized
the appellants’ claims as falling into two categories.
In the District Court’s view, both appellants had ar-
gued “that the Acts as a whole constitute racial ger-
rymanders,” 989 F. Supp. 2d 1227, 1287 (MD Ala.
2013) (emphasis added), and one of the appellants
(the Conference) had also argued that the State had
racially gerrymandered four specific electoral dis-
tricts, Senate Districts 7, 11, 22, and 26, id., at
1288.
2. Standing. The District Court held that the Caucus
had standing to argue its racial gerrymandering
claim with respect to the State “as a whole.” But
the Conference lacked standing to make any of its
Cite as: 575 U. S. ____ (2015) 5
Opinion of the Court
racial gerrymandering claims—the claim requiring
consideration of the State “as a whole,” and the
claims requiring consideration of four individual
Senate districts. Id., at 1292.
3. Racial Predominance. The District Court held that,
in any event, the appellants’ claims must fail be-
cause race “was not the predominant motivating
factor” either (a) “for the Acts as a whole” or (b) with
respect to “Senate Districts 7, 11, 22, or 26.” Id., at
1293.
4. Narrow Tailoring/Compelling State Interest. The
District Court also held that, even were it wrong
about standing and predominance, the appellants’
racial gerrymandering claims must fail. That is be-
cause any predominant use of race in the drawing of
electoral boundaries was “narrowly tailored” to
serve a “compelling state interest,” id., at 1306–
1307, namely the interest in avoiding retrogression
with respect to racial minorities’ “ability to elect
their preferred candidates of choice.” §10304(b).
In our view, each of these determinations reflects an
error about relevant law. And each error likely affected
the District Court’s conclusions—to the point where we
must vacate the lower court’s judgment and remand the
cases to allow appellants to reargue their racial gerry-
mandering claims. In light of our opinion, all parties
remain free to introduce such further evidence as the
District Court shall reasonably find appropriate.
II
We begin by considering the geographical nature of the
racial gerrymandering claims. The District Court repeat-
edly referred to the racial gerrymandering claims as
claims that race improperly motivated the drawing of
boundary lines of the State considered as a whole. See,
e.g., 989 F. Supp. 2d, at 1293 (“Race was not the predomi-
6 ALABAMA LEGISLATIVE BLACK CAUCUS v. ALABAMA
Opinion of the Court
nant motivating factor for the Acts as a whole”); id., at
1287 (construing plaintiffs’ challenge as arguing that the
“Acts as a whole constitute racial gerrymanders”); id., at
1292 (describing the plaintiffs’ challenge as a “claim of
racial gerrymandering to the Acts as a whole”); cf. supra,
at 4–5 (noting four exceptions).
A racial gerrymandering claim, however, applies to the
boundaries of individual districts. It applies district-by-
district. It does not apply to a State considered as an
undifferentiated “whole.” We have consistently described
a claim of racial gerrymandering as a claim that race was
improperly used in the drawing of the boundaries of one or
more specific electoral districts. See, e.g., Shaw I, 509
U. S., at 649 (violation consists of “separat[ing] voters into
different districts on the basis of race” (emphasis added));
Vera, 517 U. S., at 965 (principal opinion) (“[Courts] must
scrutinize each challenged district . . .” (emphasis added)).
We have described the plaintiff ’s evidentiary burden
similarly. See Miller, supra, at 916 (plaintiff must show
that “race was the predominant factor motivating the
legislature’s decision to place a significant number of
voters within or without a particular district” (emphasis
added)).
Our district-specific language makes sense in light of
the nature of the harms that underlie a racial gerryman-
dering claim. Those harms are personal. They include
being “personally . . . subjected to [a] racial classification,”
Vera, supra, at 957 (principal opinion), as well as being
represented by a legislator who believes his “primary
obligation is to represent only the members” of a particu-
lar racial group, Shaw I, supra, at 648. They directly
threaten a voter who lives in the district attacked. But
they do not so keenly threaten a voter who lives elsewhere
in the State. Indeed, the latter voter normally lacks
standing to pursue a racial gerrymandering claim. United
States v. Hays, 515 U. S. 737, 744–745 (1995).
Cite as: 575 U. S. ____ (2015) 7
Opinion of the Court
Voters, of course, can present statewide evidence in
order to prove racial gerrymandering in a particular dis-
trict. See Miller, supra, at 916. And voters might make
the claim that every individual district in a State suffers
from racial gerrymandering. But this latter claim is not
the claim that the District Court, when using the phrase
“as a whole,” considered here. Rather, the concept as used
here suggests the existence of a legal unicorn, an animal
that exists only in the legal imagination.
This is not a technical, linguistic point. Nor does it
criticize what might seem, in effect, a slip of the pen.
Rather, here the District Court’s terminology mattered.
That is because the District Court found that racial crite-
ria had not predominated in the drawing of some Alabama
districts. And it found that fact (the fact that race did not
predominate in the drawing of some, or many districts)
sufficient to defeat what it saw as the basic claim before it,
namely a claim of racial gerrymandering with respect to
the State as an undifferentiated whole. See, e.g., 989
F. Supp. 2d, at 1294 (rejecting plaintiffs’ challenge because
“[the legislature] followed no bright-line rule” with respect
to every majority-minority district); id., at 1298–1299,
1301 (citing examples of majority-minority districts in
which black population percentages were reduced and
examples of majority-white districts in which precincts
were split).
A showing that race-based criteria did not significantly
affect the drawing of some Alabama districts, however,
would have done little to defeat a claim that race-based
criteria predominantly affected the drawing of other Ala-
bama districts, such as Alabama’s majority-minority
districts primarily at issue here. See id., at 1329 (Thomp-
son, J., dissenting) (“[T]he drafters[’] fail[ure] to achieve
their sought-after percentage in one district does not
detract one iota from the fact that they did achieve it in
another”). Thus, the District Court’s undifferentiated
8 ALABAMA LEGISLATIVE BLACK CAUCUS v. ALABAMA
Opinion of the Court
statewide analysis is insufficient. And we must remand
for consideration of racial gerrymandering with respect to
the individual districts subject to the appellants’ racial
gerrymandering challenges.
The State and principal dissent argue that (but for four
specifically mentioned districts) there were in effect no
such districts. The Caucus and the Conference, the State
and principal dissent say, did not seek a district-by-
district analysis. And, the State and principal dissent
conclude that the Caucus and the Conference have conse-
quently waived the right to any further consideration.
Brief for Appellees 14, 31; post, at 5–12 (opinion of
SCALIA, J.).
We do not agree. We concede that the District Court’s
opinion suggests that it was the Caucus and the Confer-
ence that led the Court to consider racial gerrymandering
of the State “as a whole.” 989 F. Supp. 2d, at 1287. At
least the District Court interpreted their filings to allege
only that kind of claim. Ibid. But our review of the record
indicates that the plaintiffs did not claim only that the
legislature had racially gerrymandered the State “as” an
undifferentiated “whole.” Rather, their evidence and their
arguments embody the claim that individual majority-
minority districts were racially gerrymandered. And those
are the districts that we believe the District Court must
reconsider.
There are 35 majority-minority districts, 27 in the
House and 8 in the Senate. The District Court’s opinion
itself refers to evidence that the legislature’s redistricting
committee, in order to satisfy what it believed the Voting
Rights Act required, deliberately chose additional black
voters to move into underpopulated majority-minority
districts, i.e., a specific set of individual districts. See, e.g.,
989 F. Supp. 2d, at 1274 (referring to Senator Dial’s testi-
mony that the Committee “could have used,” but did not
use, “white population within Jefferson County to repopu-
Cite as: 575 U. S. ____ (2015) 9
Opinion of the Court
late the majority-black districts” because “doing so would
have resulted in the retrogression of the majority-black
districts and potentially created a problem for [Justice
Department] preclearance”); id., at 1276 (stating that
Representative Jim McClendon, also committee cochair,
“testified consistently with Senator Dial”); id., at 1277
(noting that the committee’s expert, Randolph Hinaman,
testified that “he needed to add population” to majority-
black districts “without significantly lowering the percent-
age of the population in each district that was majority-
black”).
The Caucus and the Conference presented much evidence
at trial to show that that the legislature had deliberately
moved black voters into these majority-minority dis-
tricts—again, a specific set of districts—in order to pre-
vent the percentage of minority voters in each district
from declining. See, e.g., Committee Guidelines 3–5; 1 Tr.
28–29, 36–37, 55, 63, 67–68, 77, 81, 96, 115, 124, 136, 138
(testimony of Senator Dial); Deposition of Gerald Dial in
No. 12–cv–691 (May 21, 2013), Doc. 123–5, pp. 17, 39–41,
62, 100 (Dial Deposition); 3 Tr. 222 (testimony of Repre-
sentative McClendon); id., at 118–119, 145–146, 164, 182–
183, 186–187 (testimony of Hinaman); Deposition of Ran-
dolph Hinaman in No. 12–cv–691 (June 25, 2013), Doc.
134–4, pp. 23–24, 101 (Hinaman Deposition).
In their post-trial Proposed Findings of Fact and Con-
clusions of Law, the plaintiffs stated that the evidence
showed a racial gerrymander with respect to the majority
of the majority-minority districts; they referred to the
specific splitting of precinct and county lines in the draw-
ing of many majority-minority districts; and they pointed
to much district-specific evidence. E.g., Alabama Legisla-
tive Black Caucus Plaintiffs’ Notice of Filing Proposed
Findings of Fact and Conclusions of Law in No. 12–cv–
691, Doc. 194, pp. 9–10, 13–14, 30–35, 40 (Caucus Post-
Trial Brief); Newton Plaintiffs’ Notice of Filing Proposed
10 ALABAMA LEGISLATIVE BLACK CAUCUS v. ALABAMA
Opinion of the Court
Findings of Fact and Conclusions of Law in No. 12–cv–
691, Doc. 195, pp. 33–35, 56–61, 64–67, 69–74, 82–85, 108,
121–122 (Conference Post-Trial Brief); see also Appendix
A, infra (organizing these citations by district).
We recognize that the plaintiffs relied heavily upon
statewide evidence to prove that race predominated in the
drawing of individual district lines. See generally Caucus
Post-Trial Brief 1, 3–7, 48–50; Conference Post-Trial Brief
2, 44–45, 105–106. And they also sought to prove that the
use of race to draw the boundaries of the majority-
minority districts affected the boundaries of other districts
as well. See, e.g., 1 Tr. 36–37, 48, 55, 70–71, 93, 111, 124
(testimony of Dial); 3 Tr. 142, 162 (testimony of Hinaman);
see generally Caucus Post-Trial Brief 8–16. Such evidence
is perfectly relevant. We have said that the plaintiff ’s
burden in a racial gerrymandering case is “to show, either
through circumstantial evidence of a district’s shape and
demographics or more direct evidence going to legislative
purpose, that race was the predominant factor motivating
the legislature’s decision to place a significant number of
voters within or without a particular district.” Miller, 515
U. S., at 916. Cf. Easley v. Cromartie, 532 U. S. 234, 258
(2001) (explaining the plaintiff ’s burden in cases, unlike
these, in which the State argues that politics, not race,
was its predominant motive). That Alabama expressly
adopted and applied a policy of prioritizing mechanical
racial targets above all other districting criteria (save one-
person, one-vote) provides evidence that race motivated
the drawing of particular lines in multiple districts in the
State. And neither the use of statewide evidence nor the
effort to show widespread effect can transform a racial
gerrymandering claim about a set of individual districts
into a separate, general claim that the legislature racially
gerrymandered the State “as” an undifferentiated “whole.”
We, like the principal dissent, recognize that the plain-
tiffs could have presented their district-specific claims
Cite as: 575 U. S. ____ (2015) 11
Opinion of the Court
more clearly, post, at 6–8, 10–12 (opinion of SCALIA, J.),
but the dissent properly concedes that its objection would
weaken had the Conference “developed such a claim in the
course of discovery and trial.” Post, at 6. And that is just
what happened.
In the past few pages and in Appendix A, we set forth
the many record references that establish this fact. The
Caucus helps to explain the complaint omissions when it
tells us that the plaintiffs unearthed the factual basis for
their racial gerrymandering claims when they deposed the
committee’s redistricting expert. See Brief for Appellants
in No. 13–895, pp. 12–13. The State neither disputes this
procedural history nor objects that plaintiffs’ pleadings
failed to conform with the proof. Indeed, throughout, the
plaintiffs litigated these claims not as if they were wholly
separate entities but as if they were a team. See, e.g.,
Caucus Post-Trial Brief 1 (“[We] support the additional
claims made by the [Conference] plaintiffs”); but cf. post,
at 3–12 (SCALIA, J., dissenting) (treating separately Con-
ference claims from Caucus claims). Thus we, like the
dissenting judge below (who also lived with these cases
through trial), conclude that the record as a whole shows
that the plaintiffs brought, and their argument rested
significantly upon, district-specific claims. See 989
F. Supp. 2d, at 1313 (Thompson, J., dissenting) (constru-
ing plaintiffs as also challenging “each majority-Black
House and Senate District”).
The principal dissent adds that the Conference waived
its district-specific claims on appeal. Cf. post, at 8. But
that is not so. When asked specifically about its position
at oral argument, the Conference stated that it was rely-
ing on statewide evidence to prove its district-specific
challenges. Tr. of Oral Arg. 15–16. Its counsel said that
“the exact same policy was applied in every black-majority
district,” id., at 15, and “[b]y statewide, we simply mean a
common policy applied to every district in the State,” id.,
12 ALABAMA LEGISLATIVE BLACK CAUCUS v. ALABAMA
Opinion of the Court
at 16. We accept the Conference’s clarification, which is
consistent with how it presented these claims below.
We consequently conclude that the District Court’s
analysis of racial gerrymandering of the State “as a whole”
was legally erroneous. We find that the appellants did not
waive their right to consideration of their claims as ap-
plied to particular districts. Accordingly, we remand the
cases. See Pullman-Standard v. Swint, 456 U. S. 273, 291
(1982) (remand is required when the District Court “failed
to make a finding because of an erroneous view of the
law”); Rapanos v. United States, 547 U. S. 715, 757 (2006)
(same).
III
We next consider the District Court’s holding with
respect to standing. The District Court, sua sponte, held
that the Conference lacked standing—either to bring
racial gerrymandering claims with respect to the four
individual districts that the court specifically considered
(i.e., Senate Districts 7, 11, 22, and 26) or to bring a racial
gerrymandering claim with respect to the “State as a
whole.” 989 F. Supp. 2d, at 1292.
The District Court recognized that ordinarily
“[a]n association has standing to bring suit on behalf
of its members when its members would have standing
to sue in their own right, the interests at stake are
germane to the organization’s purpose, and neither
the claim asserted nor the relief requested requires
individuals members’ participation in the lawsuit.”
Id., at 1291 (quoting Friends of the Earth, Inc. v.
Laidlaw Environmental Services (TOC), Inc., 528
U. S. 167, 181 (2000); emphasis added).
It also recognized that a “member” of an association
“would have standing to sue” in his or her “own right”
when that member “resides in the district that he alleges
Cite as: 575 U. S. ____ (2015) 13
Opinion of the Court
was the product of a racial gerrymander.” 989 F. Supp.
2d, at 1291 (citing Hays, 515 U. S., at 744–745). But, the
District Court nonetheless denied standing because it
believed that the “record” did “not clearly identify the
districts in which the individual members of the [Confer-
ence] reside,” and the Conference had “not proved that it
has members who have standing to pursue any district-
specific claims of racial gerrymandering.” 989 F. Supp. 2d,
at 1292.
The District Court conceded that Dr. Joe Reed, a repre-
sentative of the Conference, testified that the Conference
“has members in almost every county in Alabama.” Ibid.
But, the District Court went on to say that “the counties in
Alabama are split into many districts.” Ibid. And the
“Conference offered no testimony or evidence that it has
members in all of the districts in Alabama or in any of the
[four] specific districts that it challenged.” Ibid.
The record, however, lacks adequate support for the
District Court’s conclusion. Dr. Reed’s testimony sup-
ports, and nothing in that record undermines, the Confer-
ence’s own statement, in its post-trial brief, that it is a
“statewide political caucus founded in 1960.” Conference
Post-Trial Brief 3. It has the “purpose” of “endors[ing]
candidates for political office who will be responsible to the
needs of the blacks and other minorities and poor people.”
Id., at 3–4. These two statements (the second of which the
principal dissent ignores), taken together with Dr. Reed’s
testimony, support an inference that the organization has
members in all of the State’s majority-minority districts,
other things being equal, which is sufficient to meet the
Conference’s burden of establishing standing. That is to
say, it seems highly likely that a “statewide” organization
with members in “almost every county,” the purpose of
which is to help “blacks and other minorities and poor
people,” will have members in each majority-minority
district. But cf. post, at 3–5 (SCALIA, J., dissenting).
14 ALABAMA LEGISLATIVE BLACK CAUCUS v. ALABAMA
Opinion of the Court
At the very least, the common sense inference is strong
enough to lead the Conference reasonably to believe that,
in the absence of a state challenge or a court request for
more detailed information, it need not provide additional
information such as a specific membership list. We have
found nothing in the record, nor has the State referred us
to anything in the record, that suggests the contrary. Cf.
App. 204–205, 208 (State arguing lack of standing, not
because of inadequate member residency but because an
association “lives” nowhere and that the Conference
should join individual members). The most the State
argued was that “[n]one of the individual [p]laintiffs [who
brought the case with the Conference] claims to live in”
Senate District 11, id., at 205 (emphasis added), but the
Conference would likely not have understood that argu-
ment as a request that it provide a membership list. In
fact, the Conference might have understood the argument
as an indication that the State did not contest its member-
ship in every district.
To be sure, the District Court had an independent obli-
gation to confirm its jurisdiction, even in the absence of a
state challenge. See post, at 4–5 (SCALIA, J., dissenting).
But, in these circumstances, elementary principles of
procedural fairness required that the District Court, rather
than acting sua sponte, give the Conference an oppor-
tunity to provide evidence of member residence. Cf. Warth
v. Seldin, 422 U. S. 490, 501–502 (1975) (explaining that a
court may “allow or [r]equire” a plaintiff to supplement the
record to show standing and that “[i]f, after this opportu-
nity, the plaintiff ’s standing does not adequately appear
from all materials of record, the complaint must be dis-
missed” (emphasis added)). Moreover, we have no reason
to believe that the Conference would have been unable to
provide a list of members, at least with respect to the
majority-minority districts, had it been asked. It has filed
just such a list in this Court. See Affidavit of Joe L. Reed
Cite as: 575 U. S. ____ (2015) 15
Opinion of the Court
Pursuant to this Court’s Rule 32.3 (Lodging of Conference
affidavit listing members residing in each majority-
minority district in the State); see also Parents Involved in
Community Schools v. Seattle School Dist. No. 1, 551 U. S.
701, 718 (2007) (accepting a lodged affidavit in similar
circumstances). Thus, the District Court on remand
should reconsider the Conference’s standing by permitting
the Conference to file its list of members and permitting
the State to respond, as appropriate.
IV
The District Court held in the alternative that the
claims of racial gerrymandering must fail because “[r]ace
was not the predominant motivating factor” in the crea-
tion of any of the challenged districts. 989 F. Supp. 2d, at
1293. In our view, however, the District Court did not
properly calculate “predominance.” In particular, it
judged race to lack “predominance” in part because it
placed in the balance, among other nonracial factors,
legislative efforts to create districts of approximately equal
population. See, e.g., id., at 1305 (the “need to bring the
neighboring districts into compliance with the require-
ment of one person, one vote served as the primary moti-
vating factor for the changes to [Senate] District 22” (em-
phasis added)); id., at 1297 (the “constitutional
requirement of one person, one vote trumped every other
districting principle”); id., at 1296 (the “record establishes
that the drafters of the new districts, above all, had to
correct [for] severe malapportionment . . .”); id., at 1306
(the “inclusion of additional precincts [in Senate District
26] is a reasonable response to the underpopulation of the
District”).
In our view, however, an equal population goal is not
one factor among others to be weighed against the use of
race to determine whether race “predominates.” Rather, it
is part of the redistricting background, taken as a given,
16 ALABAMA LEGISLATIVE BLACK CAUCUS v. ALABAMA
Opinion of the Court
when determining whether race, or other factors, predom-
inate in a legislator’s determination as to how equal popu-
lation objectives will be met.
To understand this conclusion, recall what “predomi-
nance” is about: A plaintiff pursuing a racial gerrymander-
ing claim must show that “race was the predominant
factor motivating the legislature’s decision to place a
significant number of voters within or without a particular
district.” Miller, 515 U. S., at 916. To do so, the “plaintiff
must prove that the legislature subordinated traditional
race-neutral districting principles . . . to racial considera-
tions.” Ibid. (emphasis added).
Now consider the nature of those offsetting “traditional
race-neutral districting principles.” We have listed several,
including “compactness, contiguity, respect for political
subdivisions or communities defined by actual shared
interests,” ibid., incumbency protection, and political
affiliation, Vera, 517 U. S., at 964, 968 (principal opinion).
But we have not listed equal population objectives. And
there is a reason for that omission. The reason that
equal population objectives do not appear on this list of
“traditional” criteria is that equal population objectives
play a different role in a State’s redistricting process.
That role is not a minor one. Indeed, in light of the Con-
stitution’s demands, that role may often prove “predomi-
nant” in the ordinary sense of that word. But, as the
United States points out, “predominance” in the context of
a racial gerrymandering claim is special. It is not about
whether a legislature believes that the need for equal
population takes ultimate priority. Rather, it is, as we
said, whether the legislature “placed” race “above tradi-
tional districting considerations in determining which
persons were placed in appropriately apportioned dis-
tricts.” Brief for United States as Amicus Curiae 19 (some
emphasis added). In other words, if the legislature must
place 1,000 or so additional voters in a particular district
Cite as: 575 U. S. ____ (2015) 17
Opinion of the Court
in order to achieve an equal population goal, the “predom-
inance” question concerns which voters the legislature
decides to choose, and specifically whether the legislature
predominately uses race as opposed to other, “traditional”
factors when doing so.
Consequently, we agree with the United States that the
requirement that districts have approximately equal
populations is a background rule against which redistrict-
ing takes place. Id., at 12. It is not a factor to be treated
like other nonracial factors when a court determines
whether race predominated over other, “traditional” fac-
tors in the drawing of district boundaries.
Had the District Court not taken a contrary view of the
law, its “predominance” conclusions, including those con-
cerning the four districts that the Conference specifically
challenged, might well have been different. For example,
once the legislature’s “equal population” objectives are put
to the side—i.e., seen as a background principle—then
there is strong, perhaps overwhelming, evidence that race
did predominate as a factor when the legislature drew the
boundaries of Senate District 26, the one district that the
parties have discussed here in depth.
The legislators in charge of creating the redistricting
plan believed, and told their technical adviser, that a
primary redistricting goal was to maintain existing racial
percentages in each majority-minority district, insofar as
feasible. See supra, at 9–10 (compiling extensive record
testimony in support of this point). There is considerable
evidence that this goal had a direct and significant impact
on the drawing of at least some of District 26’s boundaries.
See 3 Tr. 175–180 (testimony of Hinaman); Appendix C,
infra (change of district’s shape from rectangular to irreg-
ular). Of the 15,785 individuals that the new redistricting
laws added to the population of District 26, just 36 were
white—a remarkable feat given the local demographics.
See, e.g., 2 Tr. 127–128 (testimony of Senator Quinton
18 ALABAMA LEGISLATIVE BLACK CAUCUS v. ALABAMA
Opinion of the Court
Ross); 3 Tr. 179 (testimony of Hinaman). Transgressing
their own redistricting guidelines, Committee Guidelines
3–4, the drafters split seven precincts between the majority-
black District 26 and the majority-white District 25,
with the population in those precincts clearly divided on
racial lines. See Exh. V in Support of Newton Plaintiffs’
Opposition to Summary Judgment in No. 12–cv–691, Doc.
140–1, pp. 91–95. And the District Court conceded that
race “was a factor in the drawing of District 26,” and that
the legislature “preserved” “the percentage of the popula-
tion that was black.” 989 F. Supp. 2d, at 1306.
We recognize that the District Court also found, with
respect to District 26, that “preservi[ng] the core of the
existing [d]istrict,” following “county lines,” and following
“highway lines” played an important boundary-drawing
role. Ibid. But the first of these (core preservation) is not
directly relevant to the origin of the new district inhabit-
ants; the second (county lines) seems of marginal im-
portance since virtually all Senate District 26 boundaries
departed from county lines; and the third (highways) was
not mentioned in the legislative redistricting guidelines.
Cf. Committee Guidelines 3–5.
All this is to say that, with respect to District 26 and
likely others as well, had the District Court treated equal
population goals as background factors, it might have
concluded that race was the predominant boundary-
drawing consideration. Thus, on remand, the District
Court should reconsider its “no predominance” conclusions
with respect to Senate District 26 and others to which our
analysis is applicable.
Finally, we note that our discussion in this section is
limited to correcting the District Court’s misapplication of
the “predominance” test for strict scrutiny discussed in
Miller, 515 U. S., at 916. It does not express a view on the
question of whether the intentional use of race in redis-
tricting, even in the absence of proof that traditional
Cite as: 575 U. S. ____ (2015) 19
Opinion of the Court
districting principles were subordinated to race, triggers
strict scrutiny. See Vera, 517 U. S., at 996 (KENNEDY, J.,
concurring).
V
The District Court, in a yet further alternative holding,
found that “[e]ven if the [State] subordinated traditional
districting principles to racial considerations,” the racial
gerrymandering claims failed because, in any event, “the
Districts would satisfy strict scrutiny.” 989 F. Supp. 2d, at
1306. In the District Court’s view, the “Acts are narrowly
tailored to comply with Section 5” of the Voting Rights Act.
Id., at 1311. That provision “required the Legislature to
maintain, where feasible, the existing number of majority-
black districts and not substantially reduce the relative
percentages of black voters in those districts.” Ibid. (em-
phasis added). And, insofar as the State’s redistricting
embodied racial considerations, it did so in order to meet
this §5 requirement.
In our view, however, this alternative holding rests
upon a misperception of the law. Section 5, which covered
particular States and certain other jurisdictions, does not
require a covered jurisdiction to maintain a particular
numerical minority percentage. It requires the jurisdic-
tion to maintain a minority’s ability to elect a preferred
candidate of choice. That is precisely what the language of
the statute says. It prohibits a covered jurisdiction from
adopting any change that “has the purpose of or will have
the effect of diminishing the ability of [the minority group]
to elect their preferred candidates of choice.” 52 U. S. C.
§10304(b); see also §10304(d) (the “purpose of subsection
(b) . . . is to protect the ability of such citizens to elect their
preferred candidates of choice”).
That is also just what Department of Justice Guidelines
say. The Guidelines state specifically that the Depart-
ment’s preclearance determinations are not based
20 ALABAMA LEGISLATIVE BLACK CAUCUS v. ALABAMA
Opinion of the Court
“on any predetermined or fixed demographic percent-
ages. . . . Rather, in the Department’s view, this de-
termination requires a functional analysis of the elec-
toral behavior within the particular jurisdiction or
election district. . . . [C]ensus data alone may not pro-
vide sufficient indicia of electoral behavior to make
the requisite determination.” Guidance Concerning
Redistricting Under Section 5 of the Voting Rights
Act, 76 Fed. Reg. 7471 (2011).
Consistent with this view, the United States tells us that
“Section 5” does not “requir[e] the State to maintain the
same percentage of black voters in each of the majority-
black districts as had existed in the prior districting
plans.” Brief for United States as Amicus Curiae 22.
Rather, it “prohibits only those diminutions of a minority
group’s proportionate strength that strip the group within
a district of its existing ability to elect its candidates of
choice.” Id., at 22–23. We agree. Section 5 does not re-
quire maintaining the same population percentages in
majority-minority districts as in the prior plan. Rather, §5
is satisfied if minority voters retain the ability to elect
their preferred candidates.
The history of §5 further supports this view. In adopt-
ing the statutory language to which we referred above,
Congress rejected this Court’s decision in Georgia v. Ash-
croft, 539 U. S. 461, 480 (2003) (holding that it is not nec-
essarily retrogressive for a State to replace safe majority-
minority districts with crossover or influence districts),
and it adopted the views of the dissent. H. R. Rep. No.
109–478, pp. 68–69, and n. 183 (2006). While the thrust of
Justice Souter’s dissent was that, in a §5 retrogression
case, courts should ask whether a new voting provision
would likely deprive minority voters of their ability to
elect a candidate of their choice—language that Congress
adopted in revising §5—his dissent also made clear that
Cite as: 575 U. S. ____ (2015) 21
Opinion of the Court
courts should not mechanically rely upon numerical per-
centages but should take account of all significant circum-
stances. Georgia v. Ashcroft, supra, at 493, 498, 505, 509.
And while the revised language of §5 may raise some
interpretive questions—e.g., its application to coalition,
crossover, and influence districts—it is clear that Congress
did not mandate that a 1% reduction in a 70% black popu-
lation district would be necessarily retrogressive. See
Persily, The Promises and Pitfalls of the New Voting
Rights Act, 117 Yale L. J. 174, 218 (2007). Indeed, Ala-
bama’s mechanical interpretation of §5 can raise serious
constitutional concerns. See Miller, supra, at 926.
The record makes clear that both the District Court and
the legislature relied heavily upon a mechanically numeri-
cal view as to what counts as forbidden retrogression. See
Appendix B, infra. And the difference between that view
and the more purpose-oriented view reflected in the stat-
ute’s language can matter. Imagine a majority-minority
district with a 70% black population. Assume also that
voting in that district, like that in the State itself, is ra-
cially polarized. And assume that the district has long
elected to office black voters’ preferred candidate. Other
things being equal, it would seem highly unlikely that a
redistricting plan that, while increasing the numerical size
of the district, reduced the percentage of the black popula-
tion from, say, 70% to 65% would have a significant im-
pact on the black voters’ ability to elect their preferred
candidate. And, for that reason, it would be difficult to
explain just why a plan that uses racial criteria predomi-
nately to maintain the black population at 70% is “narrowly
tailored” to achieve a “compelling state interest,” namely
the interest in preventing §5 retrogression. The cir-
cumstances of this hypothetical example, we add, are
close to those characterizing Senate District 26, as set
forth in the District Court’s opinion and throughout the
record. See, e.g., 1 Tr. 131–132 (testimony of Dial); 3 Tr.
22 ALABAMA LEGISLATIVE BLACK CAUCUS v. ALABAMA
Opinion of the Court
180 (testimony of Hinaman).
In saying this, we do not insist that a legislature guess
precisely what percentage reduction a court or the Justice
Department might eventually find to be retrogressive. The
law cannot insist that a state legislature, when redistrict-
ing, determine precisely what percent minority population
§5 demands. The standards of §5 are complex; they often
require evaluation of controverted claims about voting
behavior; the evidence may be unclear; and, with respect
to any particular district, judges may disagree about the
proper outcome. The law cannot lay a trap for an unwary
legislature, condemning its redistricting plan as either (1)
unconstitutional racial gerrymandering should the legisla-
ture place a few too many minority voters in a district or
(2) retrogressive under §5 should the legislature place a
few too few. See Vera, 517 U. S., at 977 (principal opin-
ion). Thus, we agree with the United States that a court’s
analysis of the narrow tailoring requirement insists only
that the legislature have a “strong basis in evidence” in
support of the (race-based) choice that it has made. Brief
for United States as Amicus Curiae 29 (citing Ricci v.
DeStefano, 557 U. S. 557, 585 (2009)). This standard, as
the United States points out, “does not demand that a
State’s actions actually be necessary to achieve a compel-
ling state interest in order to be constitutionally valid.”
Brief for United States as Amicus Curiae 29. And legisla-
tors “may have a strong basis in evidence to use racial
classifications in order to comply with a statute when they
have good reasons to believe such use is required, even if a
court does not find that the actions were necessary for
statutory compliance.” Ibid. (emphasis added).
Here the District Court enunciated a narrow tailoring
standard close to the one we have just mentioned. It said
that a plan is “narrowly tailored . . . when the race-based
action taken was reasonably necessary” to achieve a com-
pelling interest. 989 F. Supp. 2d, at 1307 (emphasis added).
Cite as: 575 U. S. ____ (2015) 23
Opinion of the Court
And it held that preventing retrogression is a compel-
ling interest. Id., at 1306–1307. While we do not here
decide whether, given Shelby County v. Holder, 570 U. S.
___ (2013), continued compliance with §5 remains a com-
pelling interest, we conclude that the District Court and
the legislature asked the wrong question with respect to
narrow tailoring. They asked: “How can we maintain
present minority percentages in majority-minority dis-
tricts?” But given §5’s language, its purpose, the Justice
Department Guidelines, and the relevant precedent, they
should have asked: “To what extent must we preserve
existing minority percentages in order to maintain the
minority’s present ability to elect the candidate of its
choice?” Asking the wrong question may well have led to
the wrong answer. Hence, we cannot accept the District
Court’s “compelling interest/narrow tailoring” conclusion.
* * *
For these reasons, the judgment of the District Court is
vacated. We note that appellants have also raised addi-
tional questions in their jurisdictional statements, relating
to their one-person, one-vote claims (Caucus) and vote
dilution claims (Conference), which were also rejected by
the District Court. We do not pass upon these claims. The
District Court remains free to reconsider the claims should
it find reconsideration appropriate. And the parties are
free to raise them, including as modified by the District
Court, on any further appeal.
The cases are remanded for further proceedings con-
sistent with this opinion.
It is so ordered.
24 ALABAMA LEGISLATIVE BLACK CAUCUS v. ALABAMA
Opinion
Appendix of the Court
A to opinion of the Court
Appendixes
A
Majority- Instances in Plaintiffs’ Post-Trial
minority Briefs Arguing that Traditional
District Race-Neutral Districting Principles
Were Subordinated to Race
HOUSE
HD 52, 54–60 Caucus Post-Trial Brief 30;
Conference Post-Trial Brief 56–57, 60,
82–83, 121–122
HD 53 Caucus Post-Trial Brief 33–35;
Conference Post-Trial Brief 59–61
HD 68 Conference Post-Trial Brief 70, 84–85
HD 69 Conference Post-Trial Brief 66–67, 85
HD 70 Conference Post-Trial Brief 85
HD 71 Conference Post-Trial Brief 83–85
HD 72 Caucus Post-Trial Brief 40;
Conference Post-Trial Brief 83–85
HD 76–78 Conference Post-Trial Brief 65–66
SENATE*
SD 18–20 Conference Post-Trial Brief 56–59
SD 23–24 Caucus Post-Trial Brief 9–10, 40; Con-
ference Post-Trial Brief 69–74
SD 33 Caucus Post-Trial Brief 13–14
* Senate District 26 excluded from this list
Cite as: 575 U. S. ____ (2015) 25
Opinion
Appendix of the Court
B to opinion of the Court
B
State’s Use of Incorrect Retrogression Standard
The following citations reflect instances in either the
District Court opinion or in the record showing that the
State believed that §5 forbids, not just substantial reduc-
tions, but any reduction in the percentage of black inhab-
itants of a majority-minority district.
District 989 F. Supp. 2d, at 1307; id., at 1273; id.,
Court at 1247
Findings
Evidence Senator Gerald 1 Tr. 28–29, 36–37, 55,
in the Dial 81, 96, 136, 138
Record
Dial Deposition 17, 39–
41, 81, 100
Representative 3 Tr. 222
Jim McClendon
Randolph 3 Tr. 118–119, 145–146,
Hinaman 149–150, 164, 182–183,
187
Hinaman Deposition
23–24, 101; but see id.,
at 24–25, 101
26 ALABAMA LEGISLATIVE BLACK CAUCUS v. ALABAMA
Opinion
Appendix of the Court
C to opinion of the Court
C
Cite as: 575 U. S. ____ (2015) 1
SCALIA, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 13–895 and 13–1138
_________________
ALABAMA LEGISLATIVE BLACK CAUCUS, ET AL.,
APPELLANTS
13–895 v.
ALABAMA ET AL.
ALABAMA DEMOCRATIC CONFERENCE, ET AL.,
APPELLANTS
13–1138 v.
ALABAMA ET AL.
ON APPEALS FROM THE UNITED STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF ALABAMA
[March 25, 2015]
JUSTICE SCALIA, with whom THE CHIEF JUSTICE,
JUSTICE THOMAS, and JUSTICE ALITO join, dissenting.
Today, the Court issues a sweeping holding that will
have profound implications for the constitutional ideal of
one person, one vote, for the future of the Voting Rights
Act of 1965, and for the primacy of the State in managing
its own elections. If the Court’s destination seems fantas-
tical, just wait until you see the journey.
Two groups of plaintiffs, the Alabama Democratic Con-
ference and the Alabama Legislative Black Caucus,
brought separate challenges to the way in which Alabama
drew its state legislative districts following the 2010 cen-
sus. These cases were consolidated before a three-judge
District Court. Even after a full trial, the District Court
lamented that “[t]he filings and arguments made by the
plaintiffs on these claims were mystifying at best.” 989
F. Supp. 2d 1227, 1287 (MD Ala. 2013). Nevertheless, the
2 ALABAMA LEGISLATIVE BLACK CAUCUS v. ALABAMA
SCALIA, J., dissenting
District Court understood both groups of plaintiffs to
argue, as relevant here, only that “the Acts as a whole
constitute racial gerrymanders.” Id., at 1287. It also
understood the Democratic Conference to argue that
“Senate Districts 7, 11, 22, and 26 constitute racial gerry-
manders,” id., at 1288, but held that the Democratic Con-
ference lacked standing to bring “any district-specific
claims of racial gerrymandering,” id., at 1292 (emphasis
added). It then found for Alabama on the merits.
The Court rightly concludes that our racial gerryman-
dering jurisprudence does not allow for statewide claims.
Ante, at 5–12. However, rather than holding appellants to
the misguided legal theory they presented to the District
Court, it allows them to take a mulligan, remanding the
case with orders that the District Court consider whether
some (all?) of Alabama’s 35 majority-minority districts
result from impermissible racial gerrymandering. In
doing this, the Court disregards the detailed findings and
thoroughly reasoned conclusions of the District Court—in
particular its determination, reached after watching the
development of the case from complaint to trial, that no
appellant proved (or even pleaded) district-specific claims
with respect to the majority-minority districts. Worse
still, the Court ignores the Democratic Conference’s ex-
press waiver of these claims before this Court. It does this
on the basis of a few stray comments, cherry-picked from
district-court filings that are more Rorschach brief than
Brandeis brief, in which the vague outline of what could be
district-specific racial-gerrymandering claims begins to
take shape only with the careful, post-hoc nudging of
appellate counsel.
Racial gerrymandering strikes at the heart of our demo-
cratic process, undermining the electorate’s confidence in
its government as representative of a cohesive body politic
in which all citizens are equal before the law. It is there-
fore understandable, if not excusable, that the Court balks
Cite as: 575 U. S. ____ (2015) 3
SCALIA, J., dissenting
at denying merits review simply because appellants pur-
sued a flawed litigation strategy. But allowing appellants
a second bite at the apple invites lower courts similarly to
depart from the premise that ours is an adversarial sys-
tem whenever they deem the stakes sufficiently high.
Because I do not believe that Article III empowers this
Court to act as standby counsel for sympathetic litigants, I
dissent.
I. The Alabama Democratic Conference
The District Court concluded that the Democratic Con-
ference lacked standing to bring district-specific claims. It
did so on the basis of the Conference’s failure to present
any evidence that it had members who voted in the chal-
lenged districts, and because the individual Conference
plaintiffs did not claim to vote in them. 989 F. Supp. 2d,
at 1292.
A voter has standing to bring a racial-gerrymandering
claim only if he votes in a gerrymandered district, or if
specific evidence demonstrates that he has suffered the
special harms that attend racial gerrymandering. United
States v. Hays, 515 U. S. 737, 744–745 (1995). However,
the Democratic Conference only claimed to have “chapters
and members in almost all counties in the state.” Newton
Plaintiffs’ Proposed Findings of Fact and Conclusions of
Law in No. 12–cv–691, Doc. 195–1, pp. 3–4 (Democratic
Conference Post-Trial Brief) (emphasis added). Yet the
Court concludes that this fact, combined with the Confer-
ence’s self-description as a “ ‘statewide political caucus’ ”
that endorses candidates for political office, “supports an
inference that the organization has members in all of the
State’s majority-minority districts, other things being
equal.” Ante, at 13. The Court provides no support for
this theory of jurisdiction by illogical inference, perhaps
because this Court has rejected other attempts to peddle
more-likely-than-not standing. See Summers v. Earth
4 ALABAMA LEGISLATIVE BLACK CAUCUS v. ALABAMA
SCALIA, J., dissenting
Island Institute, 555 U. S. 488, 497 (2009) (rejecting a test
for organizational standing that asks “whether, accepting
[an] organization’s self-description of the activities of its
members, there is a statistical probability that some of
those members are threatened with concrete injury”).
The inference to be drawn from the Conference’s state-
ments cuts in precisely the opposite direction. What is at
issue here is not just counties but voting districts within
counties. If the Conference has members in almost every
county, then there must be counties in which it does not
have members; and we have no basis for concluding (or
inferring) that those counties do not contain all of the
majority-minority voting districts. Morever, even in those
counties in which the Conference does have members, we
have no basis for concluding (or inferring) that those
members vote in majority-minority districts. The Confer-
ence had plenty of opportunities, including at trial, to
demonstrate that this was the case, and failed to do so.
This failure lies with the Democratic Conference, and the
consequences should be borne by it, not by the people of
Alabama, who must now shoulder the expense of further
litigation and the uncertainty that attends a resuscitated
constitutional challenge to their legislative districts.
Incredibly, the Court thinks that “elementary principles
of procedural fairness” require giving the Democratic
Conference the opportunity to prove on appeal what it
neglected to prove at trial. Ante, at 14. It observes that
the Conference had no reason to believe it should provide
such information because “the State did not contest its
membership in every district,” and the opinion cites an
affidavit lodged with this Court providing a list of the
Conference’s members in each majority-minority district
in Alabama. Ibid. I cannot imagine why the absence of a
state challenge would matter. Whether or not there was
such a challenge, it was the Conference’s responsibility, as
“[t]he party invoking federal jurisdiction,” to establish
Cite as: 575 U. S. ____ (2015) 5
SCALIA, J., dissenting
standing. See Lujan v. Defenders of Wildlife, 504 U. S.
555, 561 (1992). That responsibility was enforceable,
challenge or no, by the court: “The federal courts are un-
der an independent obligation to examine their own juris-
diction, and standing ‘is perhaps the most important of
[the jurisdictional] doctrines.’ ” FW/PBS, Inc. v. Dallas,
493 U. S. 215, 230–231 (1990) (citations omitted). And
because standing is not a “mere pleading requiremen[t]
but rather an indispensable part of the plaintiff ’s case,
each element must be supported in the same way as any
other matter on which the plaintiff bears the burden of
proof, i.e., with the manner and degree of evidence re-
quired at the successive stages of the litigation.” Defend-
ers of Wildlife, supra, at 561.
The Court points to Parents Involved in Community
Schools v. Seattle School Dist. No. 1, 551 U. S. 701, 718
(2007), as support for its decision to sandbag Alabama
with the Democratic Conference’s out-of-time (indeed, out-
of-court) lodging in this Court. The circumstances in that
case, however, are far afield. The organization of parents
in that case had established organizational standing in the
lower court by showing that it had members with children
who would be subject to the school district’s “integration
tiebreaker,” which was applied at ninth grade. Brief for
Respondents, O. T. 2006, No. 05–908, p. 16. By the time
the case reached this Court, however, the youngest of
these children had entered high school, and so would no
longer be subject to the challenged policy. Ibid. Accord-
ingly, we accepted a lodging that provided names of addi-
tional, younger children in order to show that the organi-
zation had not lost standing as a result of the long delay
that often accompanies federal litigation. Here, by con-
trast, the Democratic Conference’s lodging in the Supreme
Court is its first attempt to show that it has members in
the majority-minority districts. This is too little, too late.
But that is just the start. Even if the Democratic Con-
6 ALABAMA LEGISLATIVE BLACK CAUCUS v. ALABAMA
SCALIA, J., dissenting
ference had standing to bring district-specific racial-
gerrymandering claims, there remains the question
whether it did bring them. Its complaint alleged three
counts: (1) Violation of §2 of the Voting Rights Act, (2)
Racial gerrymandering in violation of the Equal Protection
Clause, and (3) §1983 violations of the Voting Rights Act
and the Fourteenth and Fifteenth Amendments. Com-
plaint in No. 2:12–cv–1081, Doc. 1, pp. 17–18. The racial
gerrymandering count alleged that “Alabama Acts 2012-
602 and 2012-603 were drawn for the purpose and effect of
minimizing the opportunity of minority voters to partici-
pate effectively in the political process,” and that this
“racial gerrymandering by Alabama Acts 2012-602 and
2012-603 violates the rights of Plaintiffs.” Id., at 17. It
made no reference to specific districts that were racially
gerrymandered; indeed, the only particular jurisdictions
mentioned anywhere in the complaint were Senate District
11, Senate District 22, Madison County Senate Districts,
House District 73, and Jefferson and Montgomery County
House Districts. None of the Senate Districts is majority-
minority. Nor is House District 73. Jefferson County
does, admittedly, contain 8 of the 27 majority-minority
House Districts in Alabama, and Montgomery County
contains another 4, making a total of 12. But they also
contain 14 majority-white House Districts between them.
In light of this, it is difficult to understand the Court’s
statement that appellants’ “evidence and . . . arguments
embody the claim that individual majority-minority dis-
tricts were racially gerrymandered.” Ante, at 8.
That observation would, of course, make sense if the
Democratic Conference had developed such a claim in the
course of discovery and trial. But in its post-trial Pro-
posed Findings of Fact and Conclusions of Law, the Con-
ference hewed to its original charge of statewide racial
gerrymandering—or, rather, it did so as much as it rea-
sonably could without actually proposing that the Court
Cite as: 575 U. S. ____ (2015) 7
SCALIA, J., dissenting
find any racial gerrymandering, statewide or otherwise.
Instead, the Conference chose only to pursue claims that
Alabama violated §2 of the Voting Rights Act under two
theories. See Democratic Conference Post-Trial Brief 91–
103 (alleging a violation of the results prong of Voting
Rights Act §2) and 103–124 (alleging a violation of the
purpose prong of Voting Rights Act §2).
To be sure, the Conference employed language and
presented factual claims at various points in its 126-page
post-trial brief that are evocative of a claim of racial ger-
rymandering. But in clinging to these stray comments to
support its conclusion that the Conference made district-
specific racial-gerrymandering claims, ante, at 9–10, the
Court ignores the context in which these comments ap-
pear—the context of a clear Voting Rights Act §2 claim.
Voting Rights Act claims and racial-gerrymandering
claims share some of the same elements. See League of
United Latin American Citizens v. Perry, 548 U. S. 399,
514 (2006) (SCALIA, J., concurring in judgment in part and
dissenting in part). Thus, allegations made in the course
of arguing a §2 claim will often be indistinguishable from
allegations that would be made in support of a racial-
gerrymandering claim. The appearance of such allega-
tions in one of the Conference’s briefs might support re-
versal if this case came to us on appeal from the District
Court’s grant of a motion to dismiss. See Johnson v. City
of Shelby, 574 U. S. ___, ___ (2014) (per curiam) (slip op.,
at 1) (noting that the Federal Rules of Civil Procedure “do
not countenance dismissal of a complaint for imperfect
statement of the legal theory supporting the claim as-
serted”). But here the District Court held a full trial be-
fore concluding that the Conference failed to make or prove
any district-specific racial-gerrymandering claims with
respect to the majority-minority districts. In this posture,
and on this record, I cannot agree with the Court that the
Conference’s district-specific evidence, clearly made in the
8 ALABAMA LEGISLATIVE BLACK CAUCUS v. ALABAMA
SCALIA, J., dissenting
course of arguing a §2 theory, should be read to give rise to
district-specific claims of racial gerrymandering with
respect to Alabama’s majority-minority districts.
The Court attempts to shift responsibility for the Demo-
cratic Conference’s ill-fated statewide theory from the
Conference to the District Court, implying that it was the
“legally erroneous” analysis of the District Court, ante, at
12, rather than the arguments made by the Conference,
that conjured this “legal unicorn,” ante, at 7, so that the
Conference did not forfeit the claims that the Court now
attributes to it, ante, at 12. I suspect this will come as a
great surprise to the Conference. Whatever may have
been presented to the District Court, the Conference un-
equivocally stated in its opening brief: “Appellants chal-
lenge Alabama’s race-based statewide redistricting policy,
not the design of any one particular election district.”
Brief for Appellants in No. 13–1138, p. 2 (emphasis added).
It drove the point home in its reply brief: “[I]f the
Court were to apply a predominant-motive and narrow-
tailoring analysis, that analysis should be applied to the
state’s policy, not to the design of each particular district
one-by-one.” Reply Brief in No. 11–1138, p. 7. How could
anything be clearer? As the Court observes, the Confer-
ence attempted to walk back this unqualified description
of its case at oral argument. Ante, at 11–12. Its assertion
that what it really meant to challenge was the policy as
applied to every district (not every majority-minority
district, mind you) is not “clarification,” ante, at 12, but an
entirely new argument—indeed, the same argument it
expressly disclaimed in its briefing. “We will not revive a
forfeited argument simply because the petitioner gestures
toward it in its reply brief.” Republic of Argentina v. NML
Capital, Ltd., 573 U. S. ___, ___, n. 2 (2014) (slip op., at 5,
n. 2); we certainly should not do so when the issue is first
presented at oral argument.
Cite as: 575 U. S. ____ (2015) 9
SCALIA, J., dissenting
II. The Alabama Legislative Black Caucus
The Court does not bother to disentangle the independ-
ent claims brought by the Black Caucus from those of the
Democratic Conference, but it strongly implies that both
parties asserted racial-gerrymandering claims with re-
spect to Alabama’s 35 majority-minority districts. As we
have described, the Democratic Conference brought no
such claims; and the Black Caucus’s filings provide even
weaker support for the Court’s conclusion.
The Black Caucus complaint contained three counts: (1)
Violation of One Person, One Vote, see Reynolds v. Sims,
377 U. S. 533 (1964); (2) Dilution and Isolation of Black
Voting Strength in violation of §2 of the Voting Rights Act;
and (3) Partisan Gerrymandering. Complaint in No. 2:12–
cv–691, Doc. 1, pp. 15–22. The failure to raise any racial-
gerrymandering claim was not a mere oversight or the
consequence of inartful pleading. Indeed, in its amended
complaint the Black Caucus specifically cited this Court’s
leading racial-gerrymandering case for the proposition
that “traditional or neutral districting principles may not
be subordinated in a dominant fashion by either racial or
partisan interests absent a compelling state interest for
doing so.” Amended Complaint in No. 2:12–cv–691, Doc.
60, p. 23 (citing Shaw v. Reno, 509 U. S. 630, 642 (1993);
emphasis added). This quote appears in the first para-
graph under the “Partisan Gerrymandering” heading, and
claims of subordination to racial interests are notably
absent from the Black Caucus complaint.
Racial gerrymandering was not completely ignored,
however. In a brief introductory paragraph to the amended
complaint, before addressing jurisdiction and venue, the
Black Caucus alleged that “Acts 2012-602 and 2012-
603 are racial gerrymanders that unnecessarily minimize
population deviations and violate the whole-county provi-
sions of the Alabama Constitution with both the purpose
and effect of minimizing black voting strength and isolat-
10 ALABAMA LEGISLATIVE BLACK CAUCUS v. ALABAMA
SCALIA, J., dissenting
ing from influence in the Alabama Legislature legislators
chosen by African Americans.” Amended Complaint, at 3.
This was the first and last mention of racial gerrymander-
ing, and like the Democratic Conference’s complaint, it
focused exclusively on the districting maps as a whole
rather than individual districts. Moreover, even this
allegation appears primarily concerned with the use of
racially motivated districting as a means of violating one
person, one vote (by splitting counties), and §2 of the
Voting Rights Act (by minimizing and isolating black
voters and legislators).
To the extent the Black Caucus cited particular districts
in the body of its complaint, it did so only with respect to
its enumerated one-person, one-vote, Voting Rights Act,
and partisan-gerrymandering counts. See, e.g., id., at 13–
14 (alleging that the “deviation restriction and disregard
of the ‘whole county’ requirements . . . facilitated the
Republican majority’s efforts to gerrymander the district
boundaries in Acts 2012–602 and 2012–603 for partisan
purposes. By packing the majority-black House and Sen-
ate districts, the plans remove reliable Democratic voters
from adjacent majority-white districts . . .”); id., at 36
(“The partisan purpose of [one] gerrymander was to re-
move predominately black Madison County precincts to
SD 1, avoiding a potential crossover district”); id., at 44–
45 (asserting that “splitting Jefferson County among 11
House and Senate districts” and “increasing the size of its
local legislative delegation and the number of other coun-
ties whose residents elect members” of the delegation
“dilut[es] the votes of Jefferson County residents” by
diminishing their ability to control county-level legislation
in the state legislature). And even these claims were
made with a statewide scope in mind. Id., at 55 (“Viewed
in their entirety, the plans in Acts 2012-602 and 2012-603
have the purpose and effect of minimizing the opportuni-
ties for black and white voters who support the Democratic
Cite as: 575 U. S. ____ (2015) 11
SCALIA, J., dissenting
Party to elect candidates of their choice”).
Here again, discovery and trial failed to produce any
clear claims with respect to the majority-minority dis-
tricts. In a curious inversion of the Democratic Confer-
ence’s practice of pleading racial gerrymandering and then
effectively abandoning the claims, the Black Caucus,
which failed to plead racial gerrymandering, did clearly
advance the theory after the trial. See Alabama Legisla-
tive Black Caucus Plaintiffs’ Post-Trial Proposed Findings
of Fact and Conclusions of Law in No. 2:12–cv–691, Doc.
194, pp. 48–51 (Black Caucus Post-Trial Brief). The Black
Caucus asserted racial-gerrymandering claims in its post-
trial brief, but they all had a clear statewide scope. It
charged that Alabama “started their line drawing with the
majority-black districts” so as to maximize the size of their
black majorities, which “impacted the drawing of majority-
white districts in nearly every part of the state.” Id., at
48–49. “[R]ace was the predominant factor in drafting
both plans,” id., at 49, which “drove nearly every district-
ing decision,” “dilut[ing] the influence of black voters in
the majority-white districts,” id., at 50.
The Black Caucus did present district-specific evidence
in the course of developing its other legal theories. Al-
though this included evidence that Alabama manipulated
the racial composition of certain majority-minority dis-
tricts, it also included evidence that Alabama manipulated
racial distributions with respect to the districting maps as
a whole, id., at 6 (“Maintaining the same high black per-
centages had a predominant impact on the entire plan”),
and with respect to majority-white districts, id., at 10–11
(“Asked why [majority-white] SD 11 was drawn in a semi-
donut-shape that splits St. Clair, Talladega, and Shelby
Counties, Sen. Dial blamed that also on the need to pre-
serve the black majorities in Jefferson County Senate
districts”), and 43–44 (“Sen. Irons’ quick, ‘primative’ [sic]
analysis of the new [majority-white] SD 1 convinced her
12 ALABAMA LEGISLATIVE BLACK CAUCUS v. ALABAMA
SCALIA, J., dissenting
that it was designed to ‘shed’ the minority population of
Sen. Sanford’s [majority-white] SD 7 to SD 1” in order to
“crack a minority influence district”). The Black Caucus
was attacking the legislative districts from every angle.
Nothing gives rise to an inference that it ever homed in on
majority-minority districts—or, for that matter, any par-
ticular set of districts. Indeed, the fair reading of the
Black Caucus’s filings is that it was presenting illustrative
evidence in particular districts—majority-minority, minor-
ity-influence, and majority-white—in an effort to make out
a claim of statewide racial gerrymandering. The fact that
the Court now concludes that this is not a valid legal
theory does not justify its repackaging the claims for a
second round of litigation.
III. Conclusion
Frankly, I do not know what to make of appellants’
arguments. They are pleaded with such opacity that,
squinting hard enough, one can find them to contain just
about anything. This, the Court believes, justifies de-
manding that the District Court go back and squint harder,
so that it may divine some new means of construing
the filings. This disposition is based, it seems, on the
implicit premise that plaintiffs only plead legally correct
theories. That is a silly premise. We should not reward
the practice of litigation by obfuscation, especially when
we are dealing with a well-established legal claim that
numerous plaintiffs have successfully brought in the past.
See, e.g., Amended Complaint and Motion for Preliminary
and Permanent Injunction in Cromartie v. Hunt, No. 4:96–
cv–104 (EDNC), Doc. 21, p. 9 (“Under the March 1997
redistricting plan, the Twelfth District and First District
have boundaries which were drawn pursuant to a predom-
inantly racial motivation,” which were “the fruit of [earlier]
racially gerrymandered plans”). Even the complaint in
Shaw, which established a cause of action for racial ger-
Cite as: 575 U. S. ____ (2015) 13
SCALIA, J., dissenting
rymandering, displayed greater lucidity than appellants’,
alleging that defendants “creat[ed] two amorphous dis-
tricts which embody a scheme for segregation of voters by
race in order to meet a racial quota” “totally unrelated to
considerations of compactness, contiguous, and geographic
or jurisdictional communities of interest.” Complaint and
Motion for Preliminary and Permanent Injunction and for
Temporary Restraining Order in Shaw v. Barr, No. 5:92–
cv–202 (EDNC), Doc. 1, pp. 11–12.
The Court seems to acknowledge that appellants never
focused their racial-gerrymandering claims on Alabama’s
majority-minority districts. While remanding to consider
whether the majority-minority districts were racially
gerrymandered, it admits that plaintiffs “basically claim
that the State, in adding so many new minority voters to
majority-minority districts (and to others), went too far.”
Ante, at 3 (emphasis added). It further concedes that
appellants “relied heavily upon statewide evidence,” and
that they “also sought to prove that the use of race to draw
the boundaries of the majority-minority districts affected
the boundaries of other districts as well.” Ante, at 10.
The only reason I see for the Court’s selection of the
majority-minority districts as the relevant set of districts
for the District Court to consider on remand is that this
was the set chosen by appellants after losing on the claim
they actually presented in the District Court. By playing
along with appellants’ choose-your-own-adventure style of
litigation, willingly turning back the page every time a
strategic decision leads to a dead-end, the Court discour-
ages careful litigation and punishes defendants who are
denied both notice and repose. The consequences of this
unprincipled decision will reverberate far beyond the
narrow circumstances presented in this case.
Accordingly, I dissent.
Cite as: 575 U. S. ____ (2015) 1
THOMAS, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 13–895 and 13–1138
_________________
ALABAMA LEGISLATIVE BLACK CAUCUS, ET AL.,
APPELLANTS
13–895 v.
ALABAMA ET AL.
ALABAMA DEMOCRATIC CONFERENCE, ET AL.,
APPELLANTS
13–1138 v.
ALABAMA ET AL.
ON APPEALS FROM THE UNITED STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF ALABAMA
[March 25, 2015]
JUSTICE THOMAS, dissenting.
“[F]ew devices could be better designed to exacerbate
racial tensions than the consciously segregated districting
system currently being constructed in the name of the
Voting Rights Act.” Holder v. Hall, 512 U. S. 874, 907
(1994) (THOMAS, J., concurring in judgment). These con-
solidated cases are yet another installment in the “disas-
trous misadventure” of this Court’s voting rights jurispru-
dence. Id., at 893. We have somehow arrived at a place
where the parties agree that Alabama’s legislative dis-
tricts should be fine-tuned to achieve some “optimal”
result with respect to black voting power; the only dis-
agreement is about what percentage of blacks should be
placed in those optimized districts. This is nothing more
than a fight over the “best” racial quota.
I join JUSTICE SCALIA’s dissent. I write only to point out
that, as this case painfully illustrates, our jurisprudence
2 ALABAMA LEGISLATIVE BLACK CAUCUS v. ALABAMA
THOMAS, J., dissenting
in this area continues to be infected with error.
I
The Alabama Legislature faced a difficult situation in
its 2010 redistricting efforts. It began with racially segre-
gated district maps that were inherited from previous
decades. The maps produced by the 2001 redistricting
contained 27 majority-black House districts and 8 majority-
black Senate districts—both at the time they were
drawn, App. to Juris. Statement 47–48, and at the time of
the 2010 Census, App. 103–108. Many of these majority-
black districts were over 70% black when they were drawn
in 2001, and even more were over 60% black. App. to
Juris. Statement 47–48. Even after the 2010 Census, the
population remained above 60% black in the majority of
districts. App. 103–108.
Under the 2006 amendments to §5 of the Voting Rights
Act of 1965, Alabama was also under a federal command
to avoid drawing new districts that would “have the effect
of diminishing the ability” of black voters “to elect their
preferred candidates of choice.” 52 U. S. C. §10304(b). To
comply with §5, the legislature adopted a policy of main-
taining the same percentage of black voters within each of
those districts as existed in the 2001 plans. See ante, at
16. This, the districting committee thought, would pre-
serve the ability of black voters to elect the same number
of preferred candidates. App. to Juris. Statement 174–
175. The Department of Justice (DOJ) apparently agreed.
Acting under its authority to administer §5 of the Voting
Rights Act, the DOJ precleared Alabama’s plans.1 Id.,
——————
1 As I have previously explained, §5 of the Voting Rights Act is uncon-
stitutional. See Shelby County v. Holder, 570 U. S. ___, ___ (2013)
(THOMAS, J., concurring) (slip op., at 1). And §5 no longer applies to
Alabama after the Court’s decision in Shelby County. See id., at ___
(slip op., at 24) (majority opinion). Because the appellants’ claims are
not properly before us, however, I express no opinion on whether
Cite as: 575 U. S. ____ (2015) 3
THOMAS, J., dissenting
at 9.
Appellants—including the Alabama Legislative Black
Caucus and the Alabama Democratic Conference—saw
matters differently. They sued Alabama, and on appeal
they argue that the State’s redistricting plans are racially
gerrymandered because many districts are highly packed
with black voters. According to appellants, black voters
would have more voting power if they were spread over
more districts rather than concentrated in the same num-
ber of districts as in previous decades. The DOJ has en-
tered the fray in support of appellants, arguing that the
State’s redistricting maps fail strict scrutiny because the
State focused too heavily on a single racial characteristic—
the number of black voters in majority-minority districts—
which potentially resulted in impermissible packing of
black voters.
Like the DOJ, today’s majority sides with appellants,
faulting Alabama for choosing the wrong percentage of
blacks in the State’s majority-black districts, or at least for
arriving at that percentage using the wrong reasoning. In
doing so, the Court—along with appellants and the DOJ—
exacerbates a problem many years in the making. It
seems fitting, then, to trace that history here. The prac-
tice of creating highly packed—“safe”—majority-minority
districts is the product of our erroneous jurisprudence,
which created a system that forces States to segregate
voters into districts based on the color of their skin. Ala-
bama’s current legislative districts have their genesis in
the “max-black” policy that the DOJ itself applied to §5
throughout the 1990’s and early 2000’s. The 2006
amendments to §5 then effectively locked in place Ala-
——————
compliance with §5 was a compelling governmental purpose at the time
of Alabama’s 2012 redistricting, nor do I suggest that Alabama would
necessarily prevail if appellants had properly raised district-specific
claims.
4 ALABAMA LEGISLATIVE BLACK CAUCUS v. ALABAMA
THOMAS, J., dissenting
bama’s max-black districts that were established during
the 1990’s and 2000’s. These three problems—a jurispru-
dence requiring segregated districts, the distortion created
by the DOJ’s max-black policy, and the ossifying effects of
the 2006 amendments—are the primary culprits in this
case, not Alabama’s redistricting policy. Nor does this
Court have clean hands.
II
This Court created the current system of race-based
redistricting by adopting expansive readings of §2 and §5
of the Voting Rights Act. Both §2 and §5 prohibit States
from implementing voting laws that “den[y] or abridg[e]
the right to vote on account of race or color.” §§10304(a),
10301(a). But both provisions extend to only certain types
of voting laws: any “voting qualification or prerequisite to
voting, or standard, practice, or procedure.” Ibid. As I
have previously explained, the terms “ ‘standard, practice,
or procedure’ . . . refer only to practices that affect minor-
ity citizens’ access to the ballot,” such as literacy tests.
Holder, 512 U. S. at 914 (opinion concurring in judgment).
They do not apply to “[d]istricting systems and electoral
mechanisms that may affect the ‘weight’ given to a ballot
duly cast and counted.” Ibid. Yet this Court has adopted
far-reaching interpretations of both provisions, holding
that they encompass legislative redistricting and other
actions that might “dilute” the strength of minority votes.
See generally Thornburg v. Gingles, 478 U. S. 30 (1986)
(§2 “vote dilution” challenge to legislative districting plan);
see also Allen v. State Bd. of Elections, 393 U. S. 544, 583–
587 (1969) (Harlan, J., concurring in part and dissenting
in part).
The Court’s interpretation of §2 and §5 have resulted in
challenge after challenge to the drawing of voting districts.
See, e.g., Bartlett v. Strickland, 556 U. S. 1 (2009); League
of United Latin American Citizens v. Perry, 548 U. S. 399Cite as: 575 U. S. ____ (2015) 5
THOMAS, J., dissenting
(2006); Georgia v. Ashcroft, 539 U. S. 461 (2003); Reno v.
Bossier Parish School Bd., 528 U. S. 320 (2000) (Bossier
II ); Hunt v. Cromartie, 526 U. S. 541 (1999); Reno v. Boss-
ier Parish School Bd., 520 U. S. 471 (1997) (Bossier I );
Bush v. Vera, 517 U. S. 952 (1996); Shaw v. Hunt, 517
U. S. 899 (1996) (Shaw II ); Miller v. Johnson, 515 U. S.
900 (1995); United States v. Hays, 515 U. S. 737 (1995);
Holder, supra; Johnson v. De Grandy, 512 U. S. 997(1994); Growe v. Emison, 507 U. S. 25 (1993); Shaw v.
Reno, 509 U. S. 630 (1993) (Shaw I ); Voinovich v. Quilter,
507 U. S. 146 (1993).
The consequences have been as predictable and as they
are unfortunate. In pursuing “undiluted” or maximized
minority voting power, “we have devised a remedial mech-
anism that encourages federal courts to segregate voters
into racially designated districts to ensure minority elec-
toral success.” Holder, supra, at 892 (THOMAS, J., concur-
ring in judgment). Section 5, the provision at issue here,
has been applied to require States that redistrict to main-
tain the number of pre-existing majority-minority dis-
tricts, in which minority voters make up a large enough
portion of the population to be able to elect their candidate
of choice. See, e.g., Miller, supra, at 923–927 (rejecting the
DOJ’s policy of requiring States to increase the number of
majority-black districts because maintaining the same
number of majority-black districts would not violate §5).
In order to maintain these “racially ‘safe burroughs,’ ”
States or courts must perpetually “divid[e] the country
into electoral districts along racial lines—an enterprise of
segregating the races into political homelands.” Holder,
supra, at 905 (opinion of THOMAS, J.) (internal quotation
marks omitted). The assumptions underlying this practice
of creating and maintaining “safe minority districts”—
“that members of [a] racial group must think alike and
that their interests are so distinct that they must be pro-
vided a separate body of representatives”—remain “re-
6 ALABAMA LEGISLATIVE BLACK CAUCUS v. ALABAMA
THOMAS, J., dissenting
pugnant to any nation that strives for the ideal of a color-
blind Constitution.” Id., at 905–906. And, as predicted,
the States’ compliance efforts have “embroil[ed] the courts
in a lengthy process of attempting to undo, or at least to
minimize, the damage wrought by the system we created.”
Id., at 905. It is this fateful system that has produced
these cases.
III
A
In tandem with our flawed jurisprudence, the DOJ has
played a significant role in creating Alabama’s current
redistricting problem. It did so by enforcing §5 in a man-
ner that required States, including Alabama, to create
supermajority-black voting districts or face denial of
pre-clearance.
The details of this so-called “max-black” policy were
highlighted in federal court during Georgia’s 1991 con-
gressional redistricting. See Johnson v. Miller, 864
F. Supp. 1354, 1360–1361 (SD Ga. 1994). On behalf of the
Black Caucus of the Georgia General Assembly, the Amer-
ican Civil Liberties Union (ACLU) submitted a redistrict-
ing proposal to the Georgia Legislature that became
known as the “max-black plan.” Id., at 1360. The ACLU’s
map created two new “black” districts and “further maxim-
ized black voting strength by pushing the percentage of
black voters within its majority-black districts as high as
possible.” Id., at 1361 (internal quotation marks omitted).
The DOJ denied several of Georgia’s proposals on the
ground that they did not include enough majority-black
districts. Id., at 1366. The plan it finally approved was
substantially similar to the ACLU’s max-black proposal,
id., at 1364–1366, creating three majority-black districts,
with total black populations of 56.63%, 62.27%, and
Cite as: 575 U. S. ____ (2015) 7
THOMAS, J., dissenting
64.07%, id., at 1366, and n. 12.2
Georgia was not the only State subject to the DOJ’s
maximization policy. North Carolina, for example, sub-
mitted a congressional redistricting plan after the 1990
Census, but the DOJ rejected it because it did not create a
new majority-minority district, and thus “appear[ed] to
minimize minority voting strength.” Shaw v. Barr, 808
F. Supp. 461, 463–464 (EDNC 1992) (quoting Letter from
John R. Dunne, Assistant Attorney General of N. C., Civil
Rights Div., to Tiare B. Smiley, Special Deputy Attorney
General of N. C. 4 (Dec. 18, 1991)). The DOJ likewise
pressured Louisiana to create a new majority-black dis-
trict when the State sought approval of its congressional
redistricting plan following the 1990 Census. See Hays v.
Louisiana, 839 F. Supp. 1188, 1190 (WD La. 1993), va-
cated on other grounds by Louisiana v. Hays, 512 U. S. 1230(1994).
Although we eventually rejected the DOJ’s max-black
policy, see Miller, supra, at 924–927, much damage to the
States’ congressional and legislative district maps had
already been done. In those States that had enacted
districting plans in accordance with the DOJ’s max-black
policy, the prohibition on retrogression under §5 meant
that the legislatures were effectively required to maintain
those max-black plans during any subsequent redistrict-
ing. That is what happened in Alabama.
B
Alabama’s 2010 redistricting plans were modeled after
max-black-inspired plans that the State put in place in the
——————
2 The District Court found it “unclear whether DOJ’s maximization
policy was driven more by [the ACLU’s] advocacy or DOJ’s own mis-
guided reading of the Voting Rights Act,” and it concluded that the
“considerable influence of ACLU advocacy on the voting rights decisions
of the United States Attorney General is an embarrassment.” Johnson
v. Miller, 864 F. Supp. 1354, 1368 (SD Ga. 1994).
8 ALABAMA LEGISLATIVE BLACK CAUCUS v. ALABAMA
THOMAS, J., dissenting
1990’s under the DOJ’s max-black policy. See generally
Kelley v. Bennett, 96 F. Supp. 2d 1301 (MD Ala. 2000),
vacated on other grounds by Sinkfield v. Kelley, 531 U. S.
28 (2000) (per curiam).
Following the 1990 Census, the Alabama Legislature
began redrawing its state legislative districts. After sev-
eral proposals failed in the legislature, a group of plaintiffs
sued, and the State entered into a consent decree agreeing
to use the “Reed-Buskey” plan. 96 F. Supp. 2d, at 1309.
The primary designer of this plan was Dr. Joe Reed, the
current chairman of appellant Alabama Democratic Con-
ference. According to Dr. Reed, the previous plan from the
1980’s was not “fair” because it did not achieve the num-
ber of “black-preferred” representatives that was propor-
tionate to the percentage of blacks in the population. Id.,
at 1310. And because of the DOJ’s max-black policy, “it
was widely assumed that a state could (and, according to
DOJ, had to) draw district lines with the primary intent of
maximizing election of black officials.” Id., at 1310, n. 14.
“Dr. Reed thus set out to maximize the number of black
representatives and senators elected to the legislature by
maximizing the number of black-majority districts.” Id.,
at 1310. Illustrating this strategy, Alabama’s letter to the
DOJ seeking preclearance of the Reed-Buskey plan “em-
phasize[d] the Plan’s deliberate creation of enough majority-
black districts to assure nearly proportional representa-
tion in the legislature,” ibid., n. 14 and boasted that the
plan had created four new majority-black districts and two
additional majority-black Senate districts. Ibid.Dr. Reed populated these districts with a percentage of
black residents that achieved an optimal middle ground—
a “happy medium”—between too many and too few. Id., at
1311. Twenty-three of the twenty-seven majority-black
House districts were between 60% and 70% black under
Reed’s plan, id., at 1311, and Senate District 26—one of
the districts at issue today—was pushed from 65% to 70%
Cite as: 575 U. S. ____ (2015) 9
THOMAS, J., dissenting
black. Id., at 1315.3 A District Court struck down several
districts created in the Reed-Buskey plan as unconstitu-
tionally based on race. Id., at 1324. This Court reversed,
however, holding that the plaintiffs lacked standing be-
cause they did not live in the gerrymandered districts.
Sinkfield, supra, at 30–31.
The Reed-Buskey plan thus went into effect and provided
the template for the State’s next redistricting efforts in
2001. See Montiel v. Davis, 215 F. Supp. 2d 1279, 1282
(SD Ala. 2002). The 2001 maps maintained the same
number of majority-black districts as the Reed-Buskey
plan had created: 27 House districts and 8 Senate dis-
tricts. Ibid. And “to maintain the same relative percent-
ages of black voters in those districts,” the legislature
“redrew the districts by shifting more black voters into the
majority-black districts.” App. to Juris. Statement 4. The
State’s letters requesting preclearance of the 2001 plans
boasted that the maps maintained the same number of
majority-black districts and the same (or higher) percent-
ages of black voters within those districts, other than
“slight reductions” that were “necessary to satisfy other
legitimate, nondiscriminatory redistricting considera-
tions.” Letter from William H. Pryor, Alabama Attorney
General, to Voting Section Chief, Civil Rights Division,
Department of Justice 6–7 (Aug. 14, 2001) (Senate dis-
tricts); Letter from William H. Pryor, Alabama Attorney
——————
3 In this litigation, Dr. Reed and the Alabama Democratic Conference
argue that the percentage of black residents needed to maintain the
ability to elect a black-preferred candidate is lower than it was in the
2000’s because black participation has increased over the last decade.
Brief for Appellants in No. 13–1138, pp. 39–40. Although appellants
disclaim any argument that the State must achieve an optimal per-
centage of black voters in majority-black districts, id., at 35, it is clear
that that is what they seek: a plan that maximizes voting strength by
maintaining “safe” majority-minority districts while also spreading
black voters into other districts where they can influence elections. Id.,
at 17–18.
10 ALABAMA LEGISLATIVE BLACK CAUCUS v. ALABAMA
THOMAS, J., dissenting
General, to Voting Section Chief, Civil Rights Division,
Department of Justice 7, 9 (Sept. 4, 2001) (House
districts).
Section 5 tied the State to those districts: Under this
Court’s §5 precedents, States are prohibited from enacting
a redistricting plan that “would lead to a retrogression in
the position of racial minorities.” Beer v. United States,
425 U. S. 130, 141 (1976). In other words, the State could
not retrogress from the previous plan if it wished to com-
ply with §5.
IV
Alabama’s quandary as it attempted to redraw its legis-
lative districts after 2010 was exacerbated by the 2006
amendments to §5. Those amendments created an inflexi-
ble definition of “retrogression” that Alabama understand-
ably took as requiring it to maintain the same percentages
of minority voters in majority-minority districts. The
amendments thus provide the last piece of the puzzle that
explains why the State sought to maintain the same per-
centages of blacks in each majority-black district.
Congress passed the 2006 amendments in response to
our attempt to define “retrogression” in Georgia v. Ash-
croft, 539 U. S. 461. Prior to that decision, practically any
reapportionment change could “be deemed ‘retrogressive’
under our vote dilution jurisprudence by a court inclined
to find it so.” Bossier I, 520 U. S., at 490–491 (THOMAS, J.,
concurring). “[A] court could strike down any reappor-
tionment plan, either because it did not include enough
majority-minority districts or because it did (and thereby
diluted the minority vote in the remaining districts).” Id.,
at 491. Our §5 jurisprudence thus “inevitably force[d] the
courts to make political judgments regarding which type of
apportionment best serves supposed minority interests—
judgments courts are ill equipped to make.” Id., at 492.
We tried to pull the courts and the DOJ away from
Cite as: 575 U. S. ____ (2015) 11
THOMAS, J., dissenting
making these sorts of judgments in Georgia v. Ashcroft,
supra. Insofar as §5 applies to the drawing of voting
districts, we held that a District Court had wrongly re-
jected Georgia’s reapportionment plan, and we adopted a
retrogression standard that gave States flexibility in
determining the percentage of black voters in each dis-
trict. Id., at 479–481. As we explained, “a State may
choose to create a certain number of ‘safe’ districts, in
which it is highly likely that minority voters will be able to
elect the candidate of their choice.” Id., at 480. Alterna-
tively, “a State may choose to create a greater number of
districts in which it is likely—although perhaps not quite
as likely as under the benchmark plan—that minority
voters will be able to elect candidates of their choice.”
Ibid. We noted that “spreading out minority voters over a
greater number of districts creates more districts in which
minority voters may have the opportunity to elect a candi-
date of their choice,” even if success is not guaranteed, and
even if it diminished the chance of electing a representa-
tive in some districts. Id., at 481. Thus, States would be
permitted to make judgments about how best to prevent
retrogression in a minority group’s voting power, including
assessing the range of appropriate minority population
percentages within each district. Id., at 480–481.
In response, Congress amended §5 and effectively over-
ruled Georgia v. Ashcroft. See 120 Stat. 577. The 2006
amendments added subsection (b), which provides:
“Any voting qualification or prerequisite to voting, or
standard, practice or procedure with respect to voting
that has the purpose or will have the effect of dimin-
ishing the ability of any citizens of the United States
on account of race or color . . . to elect their preferred
candidates of choice denies or abridges the right to
vote within the meaning of . . . this section.” 52
U. S. C. §10304(b). See §5, 120 Stat. 577.
12 ALABAMA LEGISLATIVE BLACK CAUCUS v. ALABAMA
THOMAS, J., dissenting
Thus, any change that has the effect of “diminishing the
ability” of a minority group to “elect their preferred candi-
date of choice” is retrogressive.
Some were rightly worried that the 2006 amendments
would impose too much inflexibility on the States as they
sought to comply with §5. Richard Pildes, who argued on
behalf of the Alabama Democratic Conference in these
cases, testified in congressional hearings on the 2006
amendments. He explained that Georgia v. Ashcroft “rec-
ognizes room . . . for some modest flexibility in Section 5,”
and warned that if “Congress overturns Georgia v. Ash-
croft, it will make even this limited amount of flexibility
illegal.” Hearing on the Continuing Need for Section 5
Pre-Clearance before the Senate Committee on the Judici-
ary, 109th Congress, 2d Sess., pp. 11–12 (2006). Pildes
also observed that the proposed standard of “no ‘dimin-
ished ability to elect’ . . . has a rigidity and a mechanical
quality that can lock into place minority districts in the
south at populations that do not serve minority voters’
interests.” Id., at 12. Although this testimony says
nothing about how §5 ought to be interpreted, it tells us
that the Alabama Democratic Conference’s own attorney
believes that the State was subject to a “rigi[d]” and
“mechanical” standard in determining the number of
black voters that must be maintained in a majority-black
district.
V
All of this history explains Alabama’s circumstances
when it attempted to redistrict after the 2010 Census.
The legislature began with the max-black district maps
that it inherited from the days of Reed-Buskey. Using
these inherited maps, combined with population data from
the 2010 Census, many of the State’s majority-black
House and Senate districts were between 60% and 70%
black, and some were over 70%. App. to Juris. Statement
Cite as: 575 U. S. ____ (2015) 13
THOMAS, J., dissenting
103–108. And the State was prohibited from drawing new
districts that would “have the effect of diminishing the
ability” of blacks “to elect their preferred candidates of
choice.” §10304(b). The legislature thus adopted a policy
of maintaining the same number of majority-black dis-
tricts and roughly the same percentage of blacks within
each of those districts. See ante, at 16.
The majority faults the State for taking this approach. I
do not pretend that Alabama is blameless when it comes
to its sordid history of racial politics. But, today the State
is not the one that is culpable. Its redistricting effort was
indeed tainted, but it was tainted by our voting rights
jurisprudence and the uses to which the Voting Rights Act
has been put. Long ago, the DOJ and special-interest
groups like the ACLU hijacked the Act, and they have
been using it ever since to achieve their vision of maxim-
ized black electoral strength, often at the expense of the
voters they purport to help. States covered by §5 have
been whipsawed, first required to create “safe” majority-
black districts, then told not to “diminis[h]” the ability to
elect, and now told they have been too rigid in preventing
any “diminishing” of the ability to elect. Ante, at 17–18.
Worse, the majority’s solution to the appellants’ gerry-
mandering claims requires States to analyze race even
more exhaustively, not less, by accounting for black voter
registration and turnout statistics. Ante, at 18–19. The
majority’s command to analyze black voting patterns en
route to adopting the “correct” racial quota does nothing to
ease the conflict between our color-blind Constitution and
the “consciously segregated districting system” the Court
has required in the name of equality. Holder, 512 U. S., at
907. Although I dissent today on procedural grounds, I
also continue to disagree with the Court’s misguided and
damaging jurisprudence.