Alabama Legislative Black Caucus, et al v. The State of Alabama, et al (PANEL)(LEAD)

Filing 316

MEMORANDUM OPINION AND ORDER granting judgment for the plfs with respect to Senate District 20, Senate District 26, Senate District 28, House District 32, House District 53, House District 54, House District 70, House District 71, House District 77, House District 82, House District 85, and House District 99, and we ENJOIN the use of these twelve districts in future elections. We GRANT judgment for the defendants with respect to the other 24 challenged districts, as further set out in order. A separate order setting a status conference will follow. BEFORE WILLIAM PRYOR, Circuit Judge, WATKINS, Chief District Judge, and THOMPSON, District Judge entered on 1/20/17. (djy, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
ALABAMA LEGISLATIVE
BLACK CAUCUS, et al.,

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Plaintiffs,
v.
THE STATE OF ALABAMA, et al.,
Defendants.
________________________________
ALABAMA DEMOCRATIC
CONFERENCE, et al.,
Plaintiffs,
v.
THE STATE OF ALABAMA, et al.,
Defendants.

CASE NO. 2:12-CV-691
(Three-Judge Court)

CASE NO. 2:12-CV-1081
(Three-Judge Court)

MEMORANDUM OPINION AND ORDER
Before WILLIAM PRYOR, Circuit Judge, WATKINS, Chief District Judge, and
THOMPSON, District Judge.
WILLIAM PRYOR, Circuit Judge:
The Alabama Legislature faced a difficult task in 2012. The Fourteenth
Amendment requires state legislative districts of roughly equal population and
prohibits racial gerrymandering. But the Voting Rights Act required Alabama to avoid
1

retrogressing the ability of black voters to elect candidates of their choice. In other
words, the legislature had to draw districts of roughly equal population that were
conscious enough of race to comply with the Voting Rights Act, but not so conscious
of race that they violated the Fourteenth Amendment. In the process, the legislature
had to resolve conflicts between traditional districting criteria and secure enough
votes to pass both houses. And to further complicate matters, most of the existing
majority-black districts were underpopulated by at least five percent.
After the legislature enacted a plan, the Alabama Legislative Black Caucus and
the Alabama Democratic Conference sued Alabama for violating the Fourteenth
Amendment and the Voting Rights Act. We granted judgment for Alabama after a
four-day bench trial. The Supreme Court vacated that judgment and remanded to
allow the plaintiffs to reargue their claims of racial gerrymandering and present new
evidence.
The plaintiffs now challenge all thirty-five majority-black districts and House
District 85 as racial gerrymanders. We accepted new evidence, ordered briefing, and
held oral argument. At our request, the plaintiffs agreed to draw alternative plans that
complied with federal and state law and to submit briefing on the plans. Alabama
deposed the plaintiffs’ experts and submitted its own briefing. We imposed no page
limits on any of the briefing.
We have readopted our earlier decisions resolving all claims that the Supreme
Court did not address, (Doc. 242), and we now decide the claims of racial
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gerrymandering. To succeed on a claim of racial gerrymandering, the plaintiffs must
prove that “race [was] the ‘dominant and controlling’ or ‘predominant’ consideration
in deciding ‘to place a significant number of voters within or without a particular
district.’” Ala. Legislative Black Caucus v. Alabama, 135 S. Ct. 1257, 1264 (2015) (quoting
Miller v. Johnson, 515 U.S. 900, 913, 916 (1995)). Race predominated over traditional
districting criteria if it “was the criterion that, in the State’s view, could not be
compromised.” Shaw v. Hunt, 517 U.S. 899, 907 (1996). If the plaintiffs prove that race
predominated, then the defendants must prove that they had a “strong basis in
evidence,” Ala. Legislative Black Caucus, 135 S. Ct. at 1274, that the use of race was
“narrowly tailored to serve a compelling state interest,” Shaw, 517 U.S. at 907–08. A
strong basis in evidence consists of “good reasons to believe such use is required,
even if a court does not find that the actions were necessary for statutory
compliance.” Ala. Legislative Black Caucus, 135 S. Ct. at 1274.
The plaintiffs argue that race predominated when the drafters kept the black
population percentage in a district the same as it was before redistricting, but more is
necessary under Supreme Court caselaw. It is possible to hit a supposed target solely
by considering traditional districting criteria, as the plaintiffs concede when their
alternative plans match the previous black population percentage in a district. The
plaintiffs instead must provide evidence of how the drafters subordinated traditional
districting criteria to race. We consider all of the evidence offered by the parties on

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remand, and we have no mechanical formula or system of weights for considering this
evidence.
We find that race did not predominate in 22 of the 36 districts, and with
respect to those districts, our inquiry ends there. We also find that race predominated
in 14 of the 36 districts, and we must next decide whether those districts survive strict
scrutiny.
We conclude that Alabama has satisfied strict scrutiny in two of the districts
where race predominated. Alabama asserts an interest in complying with the Voting
Rights Act, and it relies primarily on statements by two incumbent members of the
Black Caucus at public meetings of the redistricting committee. This evidence is
sufficient in those members’ districts. As we explain, the Supreme Court does not
require that the legislature conduct studies. It instead requires only that the legislature
had a strong basis in evidence for its use of race. The statement of Senator Hank
Sanders in particular is detailed and based on his experience as an influential longtime
incumbent. This kind of testimony constitutes a “strong basis in evidence.” And
despite the plaintiffs’ insistence to the contrary, the record does not establish that the
drafters had an incorrect understanding of section 5 in these two districts.
We GRANT judgment for the plaintiffs with respect to Senate District 20,
Senate District 26, Senate District 28, House District 32, House District 53, House
District 54, House District 70, House District 71, House District 77, House District
82, House District 85, and House District 99, and we ENJOIN the use of these
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districts in future elections. With respect to the other 24 districts, we GRANT
judgment for the defendants.

TABLE OF CONTENTS
I. BACKGROUND ................................................................................................ 6
A.

The Parties ................................................................................................. 6

B.

Relevant Factual Background .................................................................... 7

C.

Decision of the Supreme Court .................................................................20

D.

Subsequent Proceedings ...........................................................................22

II. FINDINGS OF FACT AND CONCLUSIONS OF LAW .................................24
A.

Standing....................................................................................................27

B.

Majority-Black Districts ...........................................................................28

C.

The Plaintiffs’ Court-Ordered Alternative Plans .......................................29

D.

Racial Predominance Generally ................................................................36
a.

The ±1% Deviation Does Not Prove that Race Predominated. ...............37

b. Alabama Had a Statewide Policy of Racial Targets, but the Plaintiffs Still
Must Prove that the Policy Caused Race to Predominate in Individual
Districts.........................................................................................................38
c.

The Dissent Misstates the Test for Racial Predominance. ......................48

d. The Plaintiffs Must Prove that the Precinct Splits Cannot Be Explained
by Traditional Districting Criteria. ................................................................54
E.

Strict Scrutiny Generally ..........................................................................58

F.

District-By-District Analysis of the Challenged Plan ................................66
a.

Senate Districts 18, 19, and 20 (Birmingham) .......................................66

b.

Senate District 23 (West Black Belt) .....................................................89

c.

Senate District 24 (West Black Belt) ...................................................130

d.
e.

Senate District 26 (Montgomery).........................................................154
Senate District 28 (East Black Belt) .....................................................173

f.

Senate District 33 (Mobile)..................................................................195

g.

House Districts 19 and 53 (Madison County) ......................................204

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h.

House District 32 .................................................................................229

i.

House Districts 52, 54, 55, 56, 57, 58, 59, and 60 (Jefferson County) ..239

j.

House Districts 67, 68, 69, 70, 71, and 72 (West Black Belt)...............281

k.

House Districts 76, 77, and 78 (Montgomery) .....................................357

l.

House Districts 82, 83, 84, and 85 (East Black Belt) ...........................379

m. House Districts 97, 98, 99, and 103 (Mobile County) ..........................410
CONCLUSION ..................................................................................................448
APPENDIX ........................................................................................................449
I. BACKGROUND
We divide our discussion of the background in four parts. First, we identify the
parties. Second, we explain the history of the redistricting process as it relates to the
claims of racial gerrymandering. Third, we review the decision of the Supreme Court
in Alabama Legislative Black Caucus v. Alabama, 135 S. Ct. 1257 (2015). Fourth, we
discuss the proceedings that occurred after the decision of the Supreme Court.
A.

The Parties

In this opinion, we divide the parties in three groups. The first group is the
Black Caucus plaintiffs: the Alabama Legislative Black Caucus, the Alabama
Association of Black County Officials, Fred Armstead, George Bowman, Rhondel
Rhone, Senator Bobby Singleton, Albert F. Turner, and Jiles Williams Jr. The second
group is the Democratic Conference plaintiffs: the Alabama Democratic Conference,
Lynn Pettway, Stacey Stallworth, Rosa Toussaint, and Framon Weaver Sr. We refer to
the third group as “Alabama” or “the defendants,” and they are Alabama, Governor

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Robert J. Bentley, Representative Randy Davis, Senator Gerald Dial, Representative
Jim McClendon, and Secretary of State John H. Merrill.
B.

Relevant Factual Background

This litigation has a deeply partisan backstory. After the 2000 Census, the
Democrat-controlled legislature adopted redistricting plans that were expressly
partisan. Montiel v. Davis, 215 F. Supp. 2d 1279, 1283 (S.D. Ala. 2002) (“Plaintiffs have
proffered no evidence to refute the abundant evidence . . . that [the redistricting plans]
were the product of the Democratic Legislators’ partisan political objective to design
Senate and House plans that would preserve their respective Democratic majorities.”).
The redistricting criteria in 2001 required that the population in a given district be
within ±5% of the ideal population of a district. Id. Within that range, the 2001
redistricting plans systematically underpopulated Democratic districts, including
majority-black districts. Out of the 26 majority-black House districts, 21 were
underpopulated, and 11 were underpopulated by greater than 4 percent. (Doc. 30-42
at 3–4). Six of the eight majority-black Senate districts were underpopulated, and four
of those districts were underpopulated by greater than four percent. (Doc. 30-44 at 2).
The Democratic leaders boasted about their partisan strategy. They filed an
amicus brief in the Supreme Court of the United States that described the districts as
an example of a successful partisan gerrymander. See Brief for Leadership of the
Alabama Senate and House of Representatives as Amici Curiae Supporting Appellees,
Vieth v. Jubelirer, 541 U.S. 267 (2004) (No. 02-1580) (Def. Ex. 448). The brief
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explained that, during the redistricting process after the 2000 Census, “the
Democratic leadership pursued a biracial strategy aimed at safeguarding its governing
majorities in both houses of the Legislature.” Id. The brief pronounced that the
partisan strategy had succeeded: “The 2002 general election returned Democratic
candidates to 71% of the Senate seats and 60% of the House seats, with 52% of the
statewide vote supporting Democrats in Senate races and 51% supporting Democrats
in House races.” Id.
Unsurprisingly, Republicans were not enthused. They challenged the 2001
districts as racial gerrymanders in federal court, but Alabama successfully defended
the population deviations as “the product of the Democratic Legislators’ partisan
political objective to design Senate and House plans that would preserve their
respective Democratic majorities.” Montiel, 215 F. Supp. 2d at 1283. After the
Republicans’ complaint of racial gerrymandering failed, they filed another complaint
that challenged the population deviations as an unlawful partisan gerrymander, but
that complaint failed because it was barred by res judicata. Gustafson v. Johns, 434 F.
Supp. 2d 1246, 1255, 1267 (S.D. Ala. 2006).
The 2010 Census revealed severe malapportionment of population among the
districts, especially in the majority-black House districts that the Democrat-controlled
legislature had drawn in 2001. In the 2010 Census, all of the 26 House districts that
were majority-black in 2001 were underpopulated. (Doc. 30-37). Twenty-four of those
districts were underpopulated by more than 5 percent, the maximum deviation
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allowed under the 2001 plans, and nine were underpopulated by more than 20
percent. (Id.). All eight of the Senate districts that were majority-black in 2001 were
underpopulated, seven of them by more than 5 percent and two of them by more
than 20 percent. (Doc. 30-41). Many of these malapportioned districts were located in
the Black Belt, a south-central region of the State named for its black soil. Many black
Alabamans reside there due to the region’s history of agriculture and slavery. (Doc.
203 at 18). The following tables illustrate the severity of the underpopulation in the
challenged districts:
Population Deviation in Challenged Senate Districts
Senate
District
18
19
20
23
24
26
28
33
(Doc. 30-41).

Overpop. (+) or Underpop. (–) of 2001
District Using 2010 Census Data (%)
–17.64
–20.06
–21.37
–18.03
–12.98
–11.64
–3.80
–18.05

Population Deviation in Challenged House Districts
House
District
19
32
52
53
54
55
56

Overpop. (+) or Underpop. (–) of 2001
District Using 2010 Census Data (%)
–6.90
–14.76
–5.19
–22.28
–23.32
–21.86
–9.79
9

57
58
59
60
67
68
69
70
71
72
76
77
78
82
83
84*
85*
97
98
99
103

–20.48
–17.75
–27.86
–19.37
–16.79
–20.40
–17.46
–13.77
–16.32
–13.42
–1.38
–23.12
–32.16
–4.68
–9.85
–9.24
–6.79
–22.22
–16.89
–12.59
–10.79

(Districts with a * were not majority-black in 2001).

(Doc. 30-37).
The 2001 partisan gerrymander failed to save the Democrats in 2010, when
Republicans won supermajorities in both houses. Because the Alabama Constitution
requires the Alabama Legislature to update its districts after each decennial census, see
Ala. Const. Art. IX, §§ 199–200, the task of responding to the population
malapportionment in the districts fell to the newly elected Republican-controlled
legislature. The Alabama Code provides for a Permanent Legislative Committee on
Reapportionment to address any problems of malapportionment that arise after a new
census. See Ala. Code §§ 29-2-50, 29-2-51. The Committee is charged with developing
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new reapportionment plans for the state. See id. § 29-2-50(2). Two Republicans,
Senator Gerald Dial and Representative Jim McClendon, co-chaired the Committee,
(Corr. Joint Stip. of Facts at 3), which eventually produced the legislative redistricting
plans that the plaintiffs now challenge: Act No. 2012-602 (House) and Act No. 2012603 (Senate).
The Republican-controlled legislature used the same criteria as previous
legislatures, with one exception: they tightened the limit on population deviation to
±1%. Republicans in the legislature used the narrow deviation in part to avoid a
judgment of liability under the Fourteenth Amendment as had occurred in Georgia in
Larios v. Cox, 300 F. Supp. 2d 1320 (N.D. Ga.), aff’d, 542 U.S. 947 (2004). (Doc. 217 at
205–06). They also benefited politically from a tighter deviation, as it would undo the
partisan gerrymander that the Democrats had previously enacted. But in all other
respects, the Republicans used the same guidelines as the previous plan and attempted
to avoid change when possible. (Doc. 215 at 29–30; Doc. 134-4 at 25–26).
Senator Dial and Representative McClendon worked with Randy Hinaman to
draw the new districts for the legislature. (Doc. 125-10 at 2). Hinaman is a political
consultant with experience working in Alabama. (Doc. 217 at 115). He drew the
congressional districts in Alabama after the 2010 Census, (id. at 116); worked with
Democrat leaders after the 2000 Census to draw the congressional districts that were
adopted by the legislature and precleared by the United States Department of Justice,
(id. at 115); and drew congressional districts that were adopted by a three-judge
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district court in 1992 and affirmed by the Supreme Court, see Wesch v. Hunt, 785 F.
Supp. 1491, 1499 (S.D. Ala.), aff’d sub nom. Camp v. Wesch, 504 U.S. 902 (1992); (Doc.
217 at 114–15).
Hinaman used a computer program called Maptitude to draw the plans.
Maptitude allows the user to draw districts based on census data. (Doc. 134-4 at 15).
It also allows the user to load additional data into the program to assist with the
drawing of the districts. (Id.) Hinaman collected political data from the Republican
National Committee for every election in Alabama between 2002 and 2010 and
imported that data into Maptitude. (Id.). Hinaman also collected and imported
information from the Reapportionment Office about the residences of incumbents.
(Id. at 36). As he drew the districts, Hinaman had political data down to the precinct
level and census data, including racial data, down to the census-block level. (Id. at
110–12).
The Committee gave Hinaman written guidelines for drawing the new district
lines, (Corr. Joint Stip. of Facts at 3), which we attach as an appendix to this opinion.
As already discussed, the Committee changed the allowable population deviation for
the State Board of Education and the legislature from ±5%, which had been used in
the 2001 plans, to ±1%. (Id. at 3; Doc. 30-4 at 2). The guidelines required the districts
to be drawn in accordance with the Voting Rights Act, to be contiguous and
reasonably compact, to be composed of as few counties as practicable, to avoid
contests between incumbent members whenever possible, and to respect
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communities of interest. (Doc. 30-4 at 2–4). The guidelines defined a community of
interest as “an area with recognized similarities of interest, including but not limited to
racial, ethnic, geographic, governmental, regional, social, cultural, partisan, or historic
interests; county, municipal, or voting precinct boundaries; and commonality of
communications.” (Id. at 3–4). Finally, the guidelines acknowledged that not all of the
redistricting goals could be accomplished and provided that, in cases of conflict,
priority would be given to the requirements of one person, one vote and the Voting
Rights Act. (Id. at 4).
Section 2 of the Act prohibits any “standard, practice, or procedure” that
“results in a denial or abridgement of the right of any citizen of the United States to
vote on account of race or color.” 52 U.S.C. § 10301(a). The Supreme Court has
applied section 2 to redistricting. See Thornburg v. Gingles, 478 U.S. 30 (1986). To decide
a claim under section 2, a court must first decide whether “(i) ‘[the racial minority] is
sufficiently large and geographically compact to constitute a majority in a singlemember district’; (ii) the group is ‘politically cohesive’; and (iii) ‘the white majority
votes sufficiently as a bloc to enable it . . . usually to defeat the minority’s preferred
candidate.’” Reno v. Bossier Parish Sch. Bd., 520 U.S. 471, 479 (1997) (alteration in
original) (quoting Gingles, 478 U.S. at 50–51). If these factors, known as the Gingles
factors, are present in a district, a court then looks to whether “the totality of the
circumstances supports a finding that the voting scheme is dilutive,” id. at 480, which
is to say that members of a protected minority group “have less opportunity than
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other members of the electorate to participate in the political process and to elect
representatives of their choice,” 52 U.S.C. § 10301(b).
Section 5 of the Act requires a jurisdiction covered under section 4 to obtain
preclearance of a new voting “standard, practice, or procedure” by either the Attorney
General of the United States or the United States District Court for the District of
Columbia. Id. § 10304. Such a change can have neither “the purpose nor . . . the effect
of denying or abridging the right to vote on account of race or color.” Id. The
Supreme Court has applied section 5 to redistricting, see, e.g., Beer v. United States, 425
U.S. 130, 133 (1976), and Alabama was a covered jurisdiction in 2012, see Shelby Cty. v.
Holder, 133 S. Ct. 2612, 2621 (2013). “Whether a voting procedure change should be
precleared depends on whether the change ‘would lead to a retrogression in the
position of racial minorities with respect to their effective exercise of the electoral
franchise.’” Georgia v. Ashcroft, 539 U.S. 461, 466 (2003) (quoting Beer, 425 U.S. at 141).
When the Attorney General evaluated whether the 2012 plan had a retrogressive
effect, he compared the new districts with the old districts in the light of the updated
census data. See Guidance Concerning Redistricting Under Section 5 of the Voting
Rights Act, 76 Fed. Reg. 7471 (Feb. 9, 2011).
The Committee co-chairs, Senator Dial and Representative McClendon, both
believed that avoiding retrogression was a priority. Representative McClendon
testified that a district “is retrogressed if the minorities in that district, whether by race
or language, are worse off after redistricting than they were before redistricting.”
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(Doc. 217 at 221). Senator Dial testified that, as each majority-black district was
repopulated, “to keep from regressing the district and increasing that population, we
had to increase it percentagewise on the same number of minority votes that we had.”
(Doc. 215 at 36). When asked whether “that included bringing the African American
populations of those districts up to approximately equal as best you could with what it
had been in 2001,” Dial agreed. (Id. at 37). He was “committed not to regress” the
“numbers that had been established under the last redistricting plan.” (Id. at 28–29).
According to Dial, it was “fair” to say that he tried to “maintain” the black percentage
in a given district relative to the 2010 Census population under the 2001 district lines.
(Id. at 136). Dial was not concerned with creating higher percentages of black
population within a district. (Id. at 56).
Hinaman was also concerned with retrogression. He “look[ed] at [the] 2010
census as applied to 2001 lines, [and] whatever that number was, [he] tried to be as
close to that as possible.” (Doc. 217 at 145–46). If he “was significantly below that,
[he] was concerned about that being retrogression that would be looked upon
unfavorably by the Justice Department under Section 5.” (Id.). Hinaman explained
that this inquiry was “somewhat of a subjective thing, but . . . if you took a district
that was somewhere in the 60 to 65 percent black majority district and you brought it
down into the low 50s,” he thought “people would be concerned whether that
population would then have the opportunity to elect a candidate of their choice.”
(Doc. 134-4 at 101–02). When asked about a hypothetical district “in the upper 70s”
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that was redrawn as 70 percent black, he answered that he “would be less concerned.”
(Id.). Hinaman also explained that no one instructed him that such a reduction was
forbidden. (Id.).
At the beginning of the reapportionment process, the Committee conducted
public hearings at 21 locations throughout Alabama. (Corr. Joint Stip. of Facts at 3).
Senator Dial and Representative McClendon attended all of the hearings. (Id. at 4). At
the public hearing in Dallas County, Senator Hank Sanders—a black Democrat who
represents majority-black Senate District 23—asked Dial to use 62 percent as a
minimum for the majority-black districts because often the population statistics for a
district do not reflect the actual voters in that district. (Doc. 30-28 at 6). At the public
hearing in Clarke County, Representative Thomas Jackson—a black Democrat who
represents majority-black District 68—explained that a majority-black district should
be 62 percent to 65 percent black. (Doc. 30-23 at 8).
When Hinaman began working on the plans, he drew the majority-black
districts first. (Doc. 217 at 146–47). Because every majority-black district was
underpopulated, he needed to add precincts to each district until it satisfied the ±1%
deviation. (Id. at 142–43). Hinaman explained how he drew those districts:
[I]n toto, whatever I added to a various district, I would look to see what
change that made to the overall black percentage in that district. And so
in some districts I could add in anything I wanted, and it didn’t matter
because they were—you know, either they didn’t need that much
population, or the changes I added didn’t matter.

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(Id. at 143). Hinaman “tried to look at the additions en masse, not just a precinct.” (Id.
at 144). He might “add a white precinct, a majority white precinct and a majority
African American precinct; but if you look at the end number, if it did not retrogress
the overall end number for that precinct, then they were added in.” (Id.) Hinaman
would consider splitting precincts to increase black population percentage only when
he was concerned that he had significantly reduced the black population percentage in
a given district. (Id. at 144–46).
Hinaman also tried to avoid putting incumbents in conflict with one another,
(id. at 119), to accommodate the wishes of incumbents about their districts, (id. at
139), to maintain each district along similar lines, (id. at 162), and to comply with the
guidelines set forth by the Committee, (id. at 139). According to Hinaman, “It was
also a goal to change each district to some extent the least amount possible.” (Doc.
134-4 at 25–26). Some of these goals had higher priority than others. For example,
counties were split in some instances to comply with requests from incumbent
legislators, (Doc. 217 at 135–36), or because they were split similarly in previous plans,
(Doc. 134-4 at 34). Although maintaining each district along similar lines to the
previous plan was “a goal,” it was “down on the list” from complying with the
Constitution and “[s]eparating incumbents.” (Doc. 217 at 162).
Significant portions of the plan were based on suggestions from incumbent
legislators. Hinaman traveled to Alabama to meet in person with many of the
Republican legislators. (Id. at 120–21). Although he did not meet with Democratic
17

legislators before the plans were introduced in the legislature, he incorporated
suggestions that Senator Dial and Representative McClendon received from
Democratic legislators. (Doc. 217 at 121). Dial gave Hinaman a proposed map for the
three majority-black Senate districts in Jefferson County that Senator Rodger
Smitherman, a black Democrat from Jefferson County, had given him. (Doc. 134-4 at
43). Dial instructed Hinaman to incorporate those maps into the Senate plan to the
extent possible because they represented the wishes of the three senators from those
districts. (Id.) Hinaman drew the majority-black districts in Jefferson County to be
substantially the same as the maps provided to him by Senator Dial. (Id.) McClendon
gave Hinaman proposed maps for Montgomery County from Representative Thad
McClammy, a black Democrat who represented that county. (Id. at 44–45).
McClendon told Hinaman to adopt as many of McClammy’s ideas as possible, and
Hinaman followed that instruction. (Id. at 45–47).
There were also alternative plans proposed in the legislature, including the
McClammy Plan for the House, (Common Ex. 45), the Sanders Plan for the Senate,
(Common Ex. 47), the Reed-Buskey Plans for the House and Senate, (Common Exs.
42, 48), and the Knight Plan for the House, (Common Ex. 46). None of them
complied with the ±1% deviation, and at least some of the plans put numerous
incumbents in conflict. For example, the Reed-Buskey Plan for the House put four
Republicans and two Democrats in conflict, and the Knight Plan put 26 Republicans
and six Democrats in conflict. (Def. Supp. Ex. 16). By contrast, the plans adopted by
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the legislature created only two incumbent conflicts. Two black incumbent
Democrats, Representatives Juandalynn Givan and Demetrius Newton, lived in the
new House District 60. But Hinaman had been told that Representative Newton
planned to retire, (Doc. 134-4 at 132), and he has since died, (Doc. 203 at 52).
Another black incumbent Democrat, Representative John Knight, and a white
incumbent Democrat, Representative Joe Hubbard, were both placed in the new
House District 77. (Def. Supp. Ex. 16).
Some of the alternative plans also drastically reduced the black population
percentage in certain districts. Senator Dial testified that he rejected two alternative
plans for the Senate because they did not keep certain majority-black districts at or
above 62 percent, as Senator Sanders had requested. Dial explained that he rejected
Sanders’s own Senate plan because “[i]t didn’t even meet the requirements [he] had
said would keep them 62 percent at least.” (Doc. 215 at 77). Dial likewise rejected the
Reed-Buskey Senate Plan because it retrogressed some districts and fell short of 62
percent black population. (Id. at 126).
The legislative plans that the plaintiffs now challenge, Act 2012-602 and Act
2012-603, were introduced, considered, and approved during a special session of the
legislature. All of the proposed substitutes were defeated, and Governor Bentley
signed the Acts into law on May 31, 2012. The votes to approve the plans fell largely
along party lines. (NPX 314–15; Def. Supp. Exs. 21, 25).

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C.

Decision of the Supreme Court

In 2015, the Supreme Court vacated our previous final judgment upholding the
districts and remanded the case. Ala. Legislative Black Caucus, 135 S. Ct. at 1262–63.
The Supreme Court “focus[ed] upon four critical District Court determinations”:
whether the plaintiffs could bring a statewide claim of racial gerrymandering, whether
the Democratic Conference plaintiffs had standing, whether race predominated, and
whether the districts survived strict scrutiny. Id. at 1264. We explain each issue in turn.
First, the Supreme Court held that the plaintiffs’ “undifferentiated statewide”
claims of racial gerrymandering were “insufficient.” Id. at 1266. It remanded so that
the plaintiffs could challenge individual districts as racial gerrymanders. Id. We were
instructed to review each challenged district individually, but we were also instructed
to consider “statewide evidence to prove that race predominated in the drawing of
individual district lines.” Id. at 1267. The Supreme Court further stated that Alabama
“expressly adopted and applied a policy of prioritizing mechanical racial targets above
all other districting criteria (save one-person, one-vote)” and remanded for a
determination of how that policy affected individual districts. Id. at 1267–68.
Second, the Supreme Court remanded with instructions to “reconsider the
[Democratic] Conference’s standing by permitting the [Democratic] Conference to
file its list of members and permitting the State to respond, as appropriate.” Id. at
1270.

20

Third, the Supreme Court held that Alabama’s “requirement that districts have
approximately equal populations is a background rule against which redistricting takes
place.” Id. at 1271. As a result, it “is not one factor among others to be weighed
against the use of race to determine whether race ‘predominates.’” Id. at 1270. Instead,
“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.” Id. The Supreme Court suggested that had we “not
taken a contrary view of the law, [our] ‘predominance’ conclusions, including those
concerning the four districts that the Democratic Conference specifically challenged,
might well have been different.” Id. at 1271.
Fourth, the Supreme Court clarified the test for strict scrutiny when a state
asserts that it had a compelling interest in complying with the Voting Rights Act. The
Supreme Court explained that a “mechanical interpretation of § 5 can raise serious
constitutional concerns.” Id. at 1273. Instead of asking, “How can we maintain
present minority percentages in majority-minority districts?” Alabama must ask, “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?” Id. at 1274. Alabama
must prove that it had “a ‘strong basis in evidence’ in support of the (race-based)
choice that it has made.” Id. (quoting Brief for the United States as Amicus Curiae
Supporting Neither Party 29, Ala. Legislative Black Caucus, 135 S. Ct. 1257 (Nos. 13895, 13-1138)). “[L]egislators ‘may have a strong basis in evidence to use racial
21

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.’” Id. (quoting Brief for the United States as Amicus Curiae
Supporting Neither Party 29).
The Supreme Court also discussed Senate District 26 in detail. The Court
found “strong, perhaps overwhelming, evidence that race did predominate as a factor
when the legislature drew the boundaries of Senate District 26.” Id. at 1271. It
observed that “[t]he 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.” Id.
And it found “considerable evidence that this goal had a direct and significant impact
on the drawing of at least some of District 26’s boundaries.” Id. But it made no
finding that race predominated in District 26 and instead remanded that issue to this
Court. Id. at 1272.
D.

Subsequent Proceedings

After we received the mandate from the Supreme Court, we directed the parties
to provide us with several pieces of information. First, we directed the plaintiffs to
identify the districts that they intended to challenge as racial gerrymanders. (Doc. 225
at 2). They challenged every district with a majority-black total population—House
Districts 19, 32, 52–60, 67–72, 76–78, 82–85, 97–99, and 103, and Senate Districts

22

18–20, 23, 24, 26, 28, and 33. (Doc. 229 at 2). The Black Caucus plaintiffs later
abandoned their challenge to House District 84. (Doc. 300-1 at 107).
Second, we directed the Democratic Conference plaintiffs to file a list of
members residing in the challenged districts. (Doc. 225 at 2). They did so, (Doc. 238),
and Alabama did not file a response to that list.
Third, we asked the parties to identify any new evidence that they hoped to
introduce and to consider whether an evidentiary hearing would be beneficial. (Doc.
225 at 2). They submitted hundreds of supplemental exhibits based on evidence
already introduced at trial. (Doc. 229 at 2–3). The plaintiffs also asked us to take
judicial notice of census data, several legislative acts, and the preclearance submissions
that Alabama sent to the Department of Justice regarding its 2001 redistricting plans.
(Id.). All parties declined the opportunity for an evidentiary hearing. (Id.).
We have readopted our earlier findings of fact and conclusions of law to the
extent that the Supreme Court did not address them. We readopted our orders on one
person, one vote; partisan gerrymandering; and the claim that the redistricting acts
violated the Equal Protection Clause based on the interaction between the Acts and
the local legislative system in Alabama. (Doc. 242 at 2 (readopting Docs. 53 and 174)).
We also readopted those portions of our previous final judgment that decided the
claim of vote dilution brought under section 2 and the claim of intentional
discrimination brought under section 2, the Fourteenth Amendment, and the
Fifteenth Amendment. (Id. (readopting parts of Doc. 203)). And we readopted our
23

previous findings of fact on all claims other than racial gerrymandering, as well as our
previous findings about historical fact and witness credibility. (Doc. 242 at 3). The
Black Caucus plaintiffs moved for reconsideration of our previous orders in the light
of Arizona State Legislature v. Arizona Independent Redistricting Commission, 135 S. Ct. 2652
(2015), and we denied that motion. (Docs. 261, 265).
Finally, we received briefs in support of final judgment on liability. (Docs. 256,
258, 263, 271–72). Before oral argument, we requested additional information from
the parties, (Doc. 275), which they provided, (Docs. 276–80). At oral argument, we
asked the plaintiffs whether they would be willing to submit an alternative statewide
plan that complies with federal law and the redistricting criteria adopted by Alabama.
They agreed, and we ordered them to do so, (Doc. 283), over the objection of
Alabama. The Black Caucus and Democratic Conference plaintiffs each filed a plan,
along with explanatory briefs and several hundred more exhibits. (Docs. 285–87, 294).
Alabama deposed both mapmakers and filed their depositions, and it submitted a
response brief and eighteen exhibits. (Docs. 295–97). The plaintiffs then submitted
reply briefs with more exhibits. (Docs. 298–301). We imposed no page limits on any
briefs on remand.
II. FINDINGS OF FACT AND CONCLUSIONS OF LAW
The Democratic Conference plaintiffs allege that all of the districts that are
majority-black by total population are the product of a racial gerrymander; the Black
Caucus plaintiffs challenge the same districts, with the exception of House District 84.
24

In the plaintiffs’ view, the drafters maintained a policy of meeting racial targets or
floors in each of the districts. According to the plaintiffs, the drafters attempted to
replicate the percentage of black population that lived in each challenged district
before redistricting. They argue that the use of these targets caused each of these
districts to be a racial gerrymander.
To make out a claim of racial gerrymandering, the burden is initially on the
plaintiffs to prove 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 v. Johnson, 515 U.S. 900, 916 (1995). The Supreme Court has explained
that the plaintiffs “must prove that the legislature subordinated traditional race-neutral
districting principles . . . to racial considerations.” Ala. Legislative Black Caucus, 135 S.
Ct. at 1270. Traditional considerations include factors such as protecting incumbents,
respecting communities of interest, maintaining contiguity and compactness,
conforming to political subdivisions, and sorting based on political affiliation. Id. Race
predominates over these factors if “[r]ace was the criterion that, in the State’s view,
could not be compromised.” Shaw v. Hunt, 517 U.S. 899, 907 (1996). When the
plaintiffs proceed with only indirect evidence that race predominated and the design
of a district can be explained by traditional districting criteria, the plaintiffs have not
satisfied their burden of proof.
If the plaintiffs meet their burden, then the defendants must prove that the
district satisfies strict scrutiny. “Strict scrutiny does not apply merely because
25

redistricting is performed with consciousness of race. Nor does it apply to all cases of
intentional creation of majority-minority districts.” Bush v. Vera, 517 U.S. 952, 958
(1996) (citation omitted). The elusive distinction between “being aware of racial
considerations and being motivated by them . . . , together with the sensitive nature of
redistricting and the presumption of good faith that must be accorded legislative
enactment, requires [us] to exercise extraordinary caution.” Miller, 515 U.S. at 916. We
“must be sensitive to the complex interplay of forces that enter a legislature’s
redistricting calculus.” Id. at 915–16. “[T]he Constitution does not place an affirmative
obligation upon the legislature to avoid creating districts that turn out to be heavily,
even majority, minority. It simply imposes an obligation not to create such districts
for predominantly racial, as opposed to political or traditional, districting
motivations.” Easley v. Cromartie, 532 U.S. 234, 249 (2001).
We have already ruled, (Doc. 203 at 160), and the parties do not dispute, that
compliance with federal election law, including sections 2 and 5 of the Voting Rights
Act, was a compelling governmental interest at the time of redistricting. The Supreme
Court has explained that a legislature must have a “strong basis in evidence” that its
district is narrowly tailored to comply with the Act:
This standard . . . ‘does not demand that a State’s actions actually be
necessary to achieve a compelling state interest in order to be
constitutionally valid.’ And legislators ‘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.”

26

Ala. Legislative Black Caucus, 135 S. Ct. at 1274 (citation omitted) (quoting Brief for
United States as Amicus Curiae in Support of Neither Party 29). Put succinctly, this
inquiry should not devolve into “a fight over the ‘best’ racial quota.” Id. at 1281
(Thomas, J., dissenting).
The plaintiffs have proved that race predominated in 14 of the 36 districts that
they challenge: Senate District 20, Senate District 23, Senate District 26, Senate
District 28, House District 32, House District 53, House District 54, House District
68, House District 70, House District 71, House District 77, House District 82,
House District 85, and House District 99. Of those 14 districts, only Senate District
23 and House District 68 survive strict scrutiny. We explain our reasoning in the rest
of this section, which we divide in six parts. First, we conclude that the Democratic
Conference plaintiffs have standing. Second, we make findings about the number of
majority-black districts in the challenged plan and the benchmark—the 2010 Census
population in the 2001 districts. Third, we discuss the court-ordered alternative plans
and the parties’ arguments about them. Fourth, we address the general arguments and
evidence about racial predominance. Fifth, we address the general arguments and
evidence about strict scrutiny. Sixth, we examine each challenged district individually.
A.

Standing

The Supreme Court remanded with instructions to “reconsider the
Conference’s standing by permitting the Conference to file its list of members and
permitting the State to respond, as appropriate.” Id. at 1270 (majority opinion). In
27

accordance with that mandate, we ordered the Democratic Conference to file its list
of members, (Doc. 225 at 2), and the Democratic Conference complied, (Doc. 238).
Alabama elected not to file a response to that list, although we gave it the opportunity
to do so. (Doc. 237 at 2.) We find that this list establishes that the Democratic
Conference has members who reside in all of the challenged districts, and we
conclude that this list “is sufficient to meet the Conference’s burden of establishing
standing.” Ala. Legislative Black Caucus, 135 S. Ct. at 1269.
B.

Majority-Black Districts

Throughout this litigation, the parties often have relied on total population
statistics. We have used those statistics because the plaintiffs argued that they prove
that race predominated. We will continue using those numbers in this opinion when
the parties argue about racial predominance using total population statistics.
But for purposes of the Voting Rights Act, the relevant statistic is voting-age
population. See, e.g., 52 U.S.C. §§ 10301, 10304 (referring to the right to vote); Bartlett
v. Strickland, 556 U.S. 1, 18 (2009) (opinion of Kennedy, J., joined by Roberts, C.J.,
and Alito, J.) (applying section 2); Georgia v. Ashcroft, 539 U.S. 461, 485–90 (2003)
(applying section 5), abrogated on other grounds by 52 U.S.C. § 10304. To avoid confusion,
we use “majority-black district” to refer to a district with a majority-black voting-age
population, not a majority-black total population. When we refer to a district with a
majority-black total population, we will add the words “total population.”

28

To the extent we earlier readopted any findings about the number of majorityblack districts, we now substitute the following findings. The legislature increased the
number of majority-black House districts from 26 in 2010 to 27 in Act 602. In 2010,
House Districts 19, 32, 52–60, 67–72, 76–78, 82, 83, 97–99, and 103 were majorityblack. (Doc. 35-2). All of these districts are majority-black in Act 602, as is House
District 84. (Id.). On the Senate side, the legislature increased the number of majorityblack districts from 7 in 2010 to 8 in Act 603. In 2010, Senate Districts 18, 19, 20, 23,
24, 26, and 33 were majority-black. (Doc. 35-3). All of those districts are majorityblack in Act 603, as is Senate District 28. (Id.).
C.

The Plaintiffs’ Court-Ordered Alternative Plans

After an initial round of briefs and supplemental exhibits, the plaintiffs had
produced several alternative plans, but none complied with the ±1% population
deviation set by the Committee. At oral argument, the plaintiffs agreed to draw plans
that complied with the state redistricting criteria and federal law. We ordered them to
do so over Alabama’s objection. The Black Caucus plaintiffs submitted their 1% Plan,
and the Democratic Conference plaintiffs submitted their Plan A. The parties agree
that both plans adhere to the ±1% deviation and have no more precinct splits or
incumbent conflicts than the enacted plan. The plaintiffs assert that race did not
predominate in their plans and that their districts comply with federal law and the
Committee guidelines, but the plaintiffs failed to prove that their plans comply with all
of the requirements of federal law. For this reason, we cannot treat the plaintiffs’
29

districts as conclusive evidence that race predominated in a district or that a district
was not narrowly tailored.
The plaintiffs’ mapmakers came dangerously close to admitting that race
predominated in at least some of the districts in their plans. The Black Caucus
plaintiffs’ expert, William Cooper, testified in his deposition that he intentionally
increased the black population in Senate District 9 to create an influence district
“because there was an interest that was expressed during that time period in 2012
when I was doing HB—or SB-5 to create a district in—a Senate District in north
Alabama, specifically in Madison County, that would have at least some influence.”
(Doc. 297-1 at 93–94). He reiterated later in his testimony that he “created an
influence district consciously” in Senate District 9. (Id. at 126).
Cooper’s use of race in this manner was not limited to Senate District 9. The
black population percentage in District 26 would be over 17 points lower in the 1%
Plan than it was in 2010. (Doc. 30-41 at 1; Doc. 296-1 at 4). He explained that he “did
consciously lower the black population percentage [in Senate District 26] by extending
it out into Lowndes [County] and Autauga [County],” (Doc. 297-1 at 129). And in
District 32, he testified that he “chose to create” a majority-black district with a black
voting-age population of 50 percent and split precincts to do so:
A:

Well, according to the court order, I needed to create 27 majorityblack districts, and [House District 32] is where I chose to create
one of the ones. That, logically, is a little more difficult—

Q:

And how did you know when you created a black district?
30

A:

When I had more than 50 percent black voting age. Generally, I
would stop at that point because I was working at the precinct
level.

Q:

Okay.

A:

In this case though, precincts had to be split.

(Id. at 124).
The Democratic Conference plaintiffs’ mapmaker, Anthony Fairfax, testified
that he also drew some district lines on the basis of race:
A:

. . . There were certain circumstances where I felt that the districts
had an exceedingly high [black population] percentage. . . . There
were some that were 70 percent and higher, and so in that
particular case, it bordered packing.

Q:

Okay. And so if you came to a district that was 70 percent, would
you look at the racial composition of the district as you were
drawing it?

A:

It was done probably on and off. Yeah, I would say at some times
you would have to look at the racial composition. There’s no
other way to actually stop from packing if you don’t look at the
racial composition.

Q:

Would you tend to look at it as you go, as you were adding
precincts, or would you draw a district and then look back to see
what the composition was?

A:

Usually there [were] no racial indicators, but if I saw that we’re
getting to 75, 78, 80 percent or something thereabouts, then you
have to look at the racial indicators for the voting districts.

Q:

Okay. And as you looked at it, you know, what would you do if
you get a district that was getting into the high 70s?

31

A:

You would have to move into areas, neighborhoods, that were
less black, less African-American, let’s say.

Q:

Okay. So let’s say hypothetically you were drawing a district, and
you noticed that it was getting to 75 percent or above. You would
then start looking for precincts that had a lower percentage of
African-American voters?

A:

Areas, yes. You move into those areas, not necessarily specific
precincts that you grab, but those areas that would actually offset
that percentage. There really isn’t any other way to do that.

...
Q:

. . . Can you tell me now any Senate districts where you got to a
high percentage and so you started looking for areas with a lower
percentage of African-American voters?

A:

There were. I can’t tell you specifically which numbers because it’s
a process that you’re working on. It’s not necessarily just one.

(Id. at 73–76).
He later testified that race may have dictated his redistricting choices in House
District 68 as well:
Q:

So you weren’t looking for population on the borders to try to
make sure [House District] 68 stayed above 50 percent [black]?

A:

There could have been consideration to make sure that stayed
majority minority. Yeah, there could have been consideration to
do that.

Q:

Are you saying you just don’t remember one way or the other?

A:

Right, right. And the reason why is, again, the process of
collecting . . . the voting districts, there may have been some time
where if I did and it dropped below 50, then I want to get it back
up. If it dropped into the 40s, then I want to get back up.

32

Q:

What would you do to get back up?

A:

Well, I’d have to go into areas that would increase the AfricanAmerican population.

(Doc. 296-7 at 191–92). But neither of the mapmakers admitted that race
predominated over traditional districting criteria in any district.
Moreover, neither of the plaintiffs proved that their alternative plans satisfied
the Voting Rights Act. A cursory look at the black voting-age population percentages
illustrates why we cannot assume that the alternative districts avoided retrogression
and satisfied section 2. For example, the Black Caucus plaintiffs dropped Senate
District 23 from 61.79 percent black in the benchmark to 51.06 percent black in the
1% Plan, and they dropped House District 32 from 56.62 percent black to 50.82
percent black. (Doc. 203 at 47–48; Doc. 295 at 18–19). The Democratic Conference
plaintiffs took Senate District 26 from 70.87 percent black in the benchmark to 57.70
percent black in Plan A, and they took House District 19 from 67.70 percent black to
50.13 percent black. (Doc. 203 at 47–48; Doc. 295 at 18–19). These districts may in
fact satisfy section 2 and section 5 of the Voting Rights Act, but the plaintiffs have
failed to prove that they do. Although plaintiffs are not required to produce
alternative plans, those plans cannot conclusively prove the unconstitutionality of the
challenged plans when we are uncertain whether they violate federal law.
The Black Caucus plaintiffs offer no arguments about how their 1% Plan
complies with the Voting Rights Act. The Democratic Conference plaintiffs make

33

several arguments, but they fail to persuade us. First, they cite Dr. Alan Lichtman’s
testimony at trial that a bare majority of black voters provides the ability to elect, as
well as his testimony about Montgomery County and Madison County. (Doc. 287 at
22–23). We discredited his statewide testimony because “Lichtman did not conduct
any statistical analysis to determine whether factors other than race were responsible
for the voting pattern,” such as “affluence, strength of a political campaign, or party
loyalty.” (Doc. 203 at 79). He “also did not conduct any analysis of Democratic
primaries between black and white candidates, which might have offered further
evidence about whether white voters are more likely to support white Democrats and
black voters are more likely to support black Democrats.” (Id.). The Democratic
Conference plaintiffs’ reliance on election returns in uncontested general elections
does not remedy that problem. Although we credited the testimony about specific
alternative districts in Madison and Montgomery Counties, Lichtman’s testimony does
not prove that this new plan—especially the districts in other parts of the state—
satisfies the Voting Rights Act. The plaintiffs argue that the districts comply by dint of
a coalition with Hispanics, but they fail to prove that Hispanics and blacks form a
cohesive coalition.
Second, the Democratic Conference plaintiffs argue for the first time in the
brief that explains their plan that the correct statistical category is any-part black, not
single-race black. (Doc. 287 at 24). They fail to explain why we should change our
metric at this late date, after they provided us with single-race black statistics when
34

attacking the enacted plan. More importantly, they fail to explain how the any-part
black statistics would prove that Plan A avoids retrogression; if we use any-part black
statistics for Plan A, then we would have to do so for the benchmark as well.
Third, the Democratic Conference plaintiffs argue that, “[e]ven if small
increases in black population were proven to be necessary, it would be a simple matter
to increase those numbers slightly, consistent with traditional districting criteria.” (Id.
at 19). They do not explain why we can be sure that they could raise the black
population percentage without subordinating traditional districting principles to race,
and their own expert warned of a potential “domino effect” across the state when the
shape of one district changes. (Doc. 296-7 at 164, 202). We reject this argument as
well.
We also disagree with the argument made by Alabama that “where Plaintiffs’
plans present districts with very similar lines or features to those in the Legislature’s
plans, these districts should be affirmed for that reason alone.” (Doc. 295 at 38). If an
alternative district has identical lines, we take the plaintiffs’ offering of that plan as a
concession that race did not predominate in the enacted district. But where there are
significant differences, we must review the record for evidence of racial
gerrymandering in the enacted district.
A district is constitutional even if the drafters were concerned about race, so
long as race was not “the predominant factor motivating the legislature’s decision to
place a significant number of voters within or without a particular district.” Ala.
35

Legislative Black Caucus, 135 S. Ct. at 1270 (quoting Miller, 515 U.S. at 916). That is, we
must determine whether “the legislature subordinated traditional race-neutral districting
principles . . . to racial considerations.” Id. (alteration in original) (quoting Miller, 515
U.S. at 916). The plaintiffs tell us that they did not subordinate traditional districting
criteria to race, so if they made the same choices as the legislature in a district, it is
strong evidence that the legislature did not subordinate traditional districting criteria
to race. Alternative plans also can establish that a certain black population percentage
was unavoidable based on demographics and traditional districting criteria.
D.

Racial Predominance Generally

The parties and the dissent make four general arguments about racial
predominance, and we address each one in turn. First, the plaintiffs yet again attack
the ±1% population deviation by arguing that it caused the drafters to subordinate
traditional districting principles to racial considerations, but they ignore our opinions
and those of the Supreme Court. Second, the plaintiffs argue that the drafters
explicitly prioritized the use of racial targets above other considerations in the
challenged districts, but this argument does not prove that race predominated in every
district. Third, the dissent offers its own version of the standard for racial
predominance, but its method is too inflexible. Fourth, Alabama argues that the
plaintiffs have failed to establish that any county split or precinct split was the result
of racial predominance, but once again this argument does not prove that race
predominated in every district.
36

a.

The ±1% Deviation Does Not Prove that Race Predominated.

The Black Caucus plaintiffs once again challenge the population deviation.
They contend that splitting counties is evidence of racial gerrymandering because the
provision of the Alabama Constitution that requires counties to be kept whole, Ala.
Const. Art. IX, § 200, is the “most important” districting principle in Alabama, (Doc.
256 at 12, 15–16), and Alabama split more counties than it would have with a looser
population deviation. The Black Caucus plaintiffs argue that “[w]hether a strict ± 1%
rule is an ‘appropriate[]’ apportionment . . . depends on how it interacts with race and
traditional districting principles.” (Id. at 17). Because a ±5% deviation is the bare
minimum to satisfy federal law, the Black Caucus plaintiffs believe that the decision to
better realize one person, one vote is evidence of racial gerrymandering.
This argument is frivolous. Five percent is the constitutional floor, not a
ceiling. The Constitution does not protect a right to less equal districts, and more
equal districts are not proof of racial gerrymandering. Our opinion on this issue, (Doc.
53 at 4–10), and the decision of the Supreme Court in this case, 135 S. Ct. at 1263,
have repeatedly explained that under federal law, Alabama is entitled to use a ±1%
population deviation. One person, one vote is merely “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.” Id. at 1270.

37

b. Alabama Had a Statewide Policy of Racial Targets, but the Plaintiffs Still Must
Prove that the Policy Caused Race to Predominate in Individual Districts.
The Supreme Court found that Alabama pursued a policy of keeping the black
population in each majority-black district at or above the percentage in that district in
2010, but it remanded for this Court to determine whether the legislature
subordinated traditional districting criteria to race in individual districts. See id. at 1267.
The plaintiffs argue that the targets were applied statewide in such a way that race
predominated in every challenged district. The Democratic Conference plaintiffs also
argue that Hinaman and Senator Dial explicitly subordinated the goals of maintaining
communities of interest, preserving county boundaries and precinct lines, and
avoiding changes in the districts.
Without further district-specific inquiry, these arguments fail to prove that race
necessarily predominated in the design of any challenged district. As the plaintiffs’
own mapmakers explained on remand, there are “places where you just literally
cannot avoid” a certain black population percentage. (Doc. 297-1 at 30). That is, the
legislature might have matched certain percentages of black population because they
followed traditional districting criteria.
The testimony of McClendon, Dial, and Hinaman establishes that the drafters
did not necessarily prioritize racial targets over all other traditional districting criteria
in every single district. None of the three gave any indication that “[r]ace was [a]
criterion that . . . could not be compromised.” Shaw, 517 U.S. at 907. Representative

38

McClendon testified that a “district is retrogressed if the minorities in that district,
whether by race or language, are worse off after redistricting than they were before
redistricting.” (Doc. 217 at 221). This statement does not mean that he prioritized
maintaining the black population percentage over all other criteria. Senator Dial
testified that “to keep from regressing [a] district and increasing [its] population, we
had to increase it percentagewise on the same number of minority votes that we had.”
(Doc. 215 at 36). But his goal was “bringing the African American populations of
those districts up to approximately equal as best [we] could with what it had been in
2001.” (Id. at 37). Senator Dial did not testify that he subordinated other districting
criteria to a racial target.
Hinaman testified that he “look[ed] at [the] 2010 census as applied to 2001
lines, [and] whatever that number was, [he] tried to be as close to that as possible. And
if [he] was significantly below that, [he] was concerned about that being retrogression
that would be looked upon unfavorably by the Justice Department under Section 5.”
(Doc. 217 at 145–46). Hinaman explained that “if you took a district that was
somewhere in the 60 to 65 percent black majority district and you brought it down
into the low 50s, [he thought] people would be concerned whether that population
would then have the opportunity to elect a candidate of their choice.” (Doc. 134-3 at
102). But if “a district that was in the upper 70s [was taken] down to 70 percent
black” he “would be less concerned.” (Id.) No one instructed Hinaman that such a
reduction would “be a matter of concern.” (Id.) This testimony, together with that of
39

Dial and McClendon, means that statewide evidence alone cannot answer the
question of racial predominance.
The Democratic Conference plaintiffs argue that, in every challenged district,
Hinaman and Senator Dial prioritized racial considerations over the goals of
maintaining communities of interest, preserving county boundaries and precinct lines,
and avoiding changes in the districts, (Doc. 258 at 15), but they are mistaken.
Hinaman testified that changing each district as little as possible “was a goal” but it
was “down on the list from one person, one vote,” “not retrogressing the minority
districts,” and “[s]eparating incumbents.” (Doc. 217 at 162). That some priorities (for
example, minimizing change) were less important than other priorities (for example,
separating incumbents) is unsurprising. It does not prove that race predominated over
traditional districting criteria. Hinaman also testified that he would sometimes split
precincts for several reasons: avoiding retrogression, maintaining the ±1% population
deviation, and accommodating incumbents. (Doc. 134-3 at 117–18). Again,
Hinaman’s testimony does not suggest that race was a “criterion that . . . could not be
compromised.” Shaw, 517 U.S. at 907. But even if he split some precincts for the sole
purpose of increasing the black population percentage in a majority-black district,
Hinaman did not testify that he did so in every precinct, and the plaintiffs must prove
their claims on a district-by-district basis. See Ala. Legislative Black Caucus, 135 S. Ct. at
1265.

40

To be sure, Senator Dial believed that compliance with the Voting Rights Act
was a higher priority than maintaining communities of interest and preserving county
boundaries. (Doc. 215 at 28). But he did not directly draft any of the districts, and he
did not testify that he used an impermissible racial target in any particular district.
Moreover, Dial was correct that compliance with federal law must be a higher priority.
In any event, we know that the policy of racial targets was often disregarded
because most of the districts did not match the previous black population percentage.
Only 13 of the 28 challenged House districts and 3 of the 8 challenged Senate districts
maintained a black population percentage within 1 point of the percentage in 2010. In
the House, 11 of the 28 districts were at least 4 points away from their prior
percentages; in the Senate, 4 of 8 were at least 4 points away from their prior
percentages. In the House, the 2012 plans varied by as much as –8.54% to +9.76%
from the target; in the Senate, they varied by as much as –14.58% to +8.91%.
Moreover, if the drafters tried to maintain a policy of not reducing the black
population percentage in any of the challenged districts, they failed spectacularly: in a
quarter of the districts, the black population percentage decreased between 4 and 15
points. The following tables illustrate the extent to which the state repeatedly, and
often badly, missed its alleged targets:

41

Change in Total Black Population Percentage in Challenged Senate Districts
Under Enacted Plans
Senate 2001 District Lines Using
District 2010 Census Data (%)
(Doc. 263-2)
18
59.92
19
71.59
20
77.82
23
64.76
24
62.78
26
72.69
28
50.98
33
64.85

Plan as Passed (%)
(Doc. 263-2)

Change in
Percentage

59.10
65.31
63.15
64.84
63.22
75.13
59.83
71.64

–0.82
–6.28
–14.67
+0.08
+0.44
+2.44
+8.85
+6.79

Change in Total Black Population Percentage in Challenged House Districts
Under Enacted Plans
House 2001 District Lines Using
District 2010 Census Data (%)
(Doc. 30-37)
19
69.82
32
59.34
52
60.11
53
55.70
54
56.73
55
73.55
56
62.13
57
68.42
58
77.86
59
67.03
60
67.41
67
69.14
68
62.55
69
64.16
70
61.83
71
64.28
72
60.20
76
69.54
77
73.52

Plan as Passed (%)
(Doc. 30-36)
61.25
60.05
60.13
55.83
56.83
73.55
62.14
68.47
72.76
76.72
67.68
69.15
64.56
64.21
62.03
66.90
64.60
73.79
67.04
42

Change in
Percentage
–8.57
+0.71
+0.02
+0.13
+0.10
—
+0.01
+0.05
–5.10
+9.69
+0.27
+0.01
+2.01
+0.05
+0.20
+2.62
+4.40
+4.25
–6.48

78
82
83
84
85
97
98
99
103

74.26
57.13
56.92
50.61
47.94
60.66
65.22
73.35
69.64

69.99
62.14
57.52
52.35
50.08
60.66
60.02
65.61
65.06

–4.27
+5.01
+0.60
+1.74
+2.14
—
–5.20
–7.74
–4.58

Nor is there anything necessarily suspicious about a district that maintains the
same black population percentage that it had in 2001. In fact, the plaintiffs drew
several districts in their court-ordered alternative plans that came closer to the
previous percentage than the state did. In the Black Caucus 1% Plan, House District
70 was only 0.07 points off, and House District 72 came within one point. (Doc. 295
at 31 & n.7). In Democratic Conference Plan A, Senate District 18 hit the target
exactly, and House District 82, House District 85, Senate District 28 came within one
point. (Id.).
Even the earlier alternative plans have similar black population percentages in
many of the majority-black districts. The following tables show the black population
percentages using data from the 2010 Census under the 2001 district lines, under the
enacted districts, and under the alternative plans.

43

Senate
District

2010 Pop.
Under 2001
Lines (Doc.
263-2)

Enacted Plan
(Doc. 263-2)

Sanders Plan
(Common Ex.
47)

Reed-Buskey
Plan
(Common Ex.
48)

New Black
Caucus Plan
(APSX 27)

Black Caucus
1% Plan
(APSX 470)

Democratic
Conference
Plan A Doc.
287-2)

Total Black Population Percentages of Challenged Senate Districts Across
Plans

18
19
20
23
24
26
28
33

59.92
71.59
77.82
64.76
62.78
72.69
50.98
64.85

59.10
65.31
63.15
64.84
63.22
75.13
59.83
71.64

58.49
65.30
62.82
57.75
56.90
71.28
51.55
71.83

61.32
62.89
65.10
61.23
60.43
68.44
60.38
65.83

59.80
66.55
63.68
54.19
60.42
56.91
50.24
62.83

55.96
64.94
63.32
53.80
57.31
57.59
50.98
62.28

59.5
62.1
62.2
58.9
59.3
60.7
51.7
58.3

House District

2010 Pop. Under
2001 Lines (Doc.
263-2)

Enacted Plan
(Doc. 263-2)

McClammy Plan
(Common Ex. 45)

Reed-Buskey Plan
4 (Common Ex.
42)

Knight Plan
(Common Ex. 46)

New Black Caucus
Plan (APSX 36)

Black Caucus 1%
Plan (APSX 462)

Democratic
Conference Plan A
(Doc. 287-1)

Total Black Population Percentages of Challenged House Districts Across
Plans

19
32
52
53
54
55
56
57
58
59
60
67
68
69
70

69.82
59.34
60.11
55.70
56.73
73.55
62.13
68.42
77.86
67.03
67.41
69.14
62.55
64.16
61.83

61.25
60.05
60.13
55.83
56.83
73.55
62.14
68.47
72.76
76.72
67.68
69.15
64.56
64.21
62.03

67.07
58.40
62.27
62.00
31.46
62.92
61.06
62.27
66.20
66.62
62.26
69.21
53.87
57.56
61.18

67.01
56.68
61.34
56.61
31.40
66.66
58.16
61.89
76.98
64.85
65.38
68.63
55.19
56.92
61.66

75.39
21.65
54.07
55.86
58.72
64.03
54.02
60.27
61.09
61.27
59.55
69.43
25.43
57.62
57.21

58.27
52.35
57.42
41.60
61.06
59.44
61.13
66.10
62.60
60.01
56.90
69.43
53.30
50.61
57.21

55.12*
52.52
55.64
53.60**
60.64
57.85
63.04
72.51
64.07
58.55
53.49
67.28
53.10
54.54
57.52

52.5
55.0
57.9
52.9
60.6
55.6
58.9
66.1
63.7
62.8
56.0
67.3
57.2
58.9
61.9

44

71
72
76
77
78
82
83
84
85
97
98
99
103

64.28
60.20
69.54
73.52
74.26
57.13
56.92
50.61
47.94
60.66
65.22
73.35
69.64

66.90
64.60
73.79
67.04
69.99
62.14
57.52
52.35
50.08
60.66
60.02
65.61
65.06

60.42
60.37
75.62
67.34
73.03
61.14
61.87
51.40
47.96
63.00
60.22
62.92
62.08

59.43
55.37
64.36
62.31
74.21
57.22
55.99
52.00
53.94
63.59
61.57
63.55
63.03

54.45
56.25
24.45
59.38
58.70
53.63
13.30
26.29
54.21
57.19
63.75
57.98
17.92

63.82
62.65
63.79
65.61
66.92
66.46
38.58
55.17
49.21
57.19
60.45
58.50
63.16

59.54
60.88
63.99
65.43
66.76
60.57
37.79
54.32
49.03
55.91
60.40
58.24
62.61

59.8
54.0
59.3
63.5
77.5
57.9
55.0
52.3
48.3
56.2
60.4
58.2
62.3

(* = Statistic for House District 6) (** = Statistic for House District 19)
Such similarities in black population percentages are unsurprising when the
plan was meant to maintain the characteristics of the preexisting districts to the extent
possible. (Doc. 134-4 at 25–26; Doc. 217 at 162). Even in the majority-white districts,
thirty-five districts have a black population percentage within one point of the old
lines. (Doc. 263-2). The plaintiffs do not argue that the drafters maintained racial
targets for the majority-white districts, and yet we see the same pattern of similar
percentages of black population. The plaintiffs have presented no evidence that the
2001 district lines were racial gerrymanders, and the only evidence we have suggests
that those lines were based on partisan gerrymanders, as the state and Democratic
leaders previously argued. Where Alabama chose to follow existing district lines, we
cannot infer that their decision to avoid change necessarily created a racial
gerrymander.

45

Some districts also will have high percentages of black population no matter
how the district is drawn because the black population in Alabama is not evenly
dispersed throughout the state. It is concentrated in counties along the Black Belt in
the south-central part of the state, as well as the counties that contain major
metropolitan areas: Madison County in the north (Huntsville), Jefferson County in the
north-central (Birmingham), Montgomery County in the south-central (Montgomery),
and Mobile County in the southwest (Mobile). The following map shows how the
counties with high percentages of black population are concentrated:
Black Population Percentages in Alabama Counties in 2010 Census

46

(U.S. Census Bureau, American FactFinder, http://factfinder.census.gov/faces/nav/jsf/
pages/community_facts.xhtml).
Within those counties, many cities and neighborhoods are racially concentrated.
For instance, Birmingham, with a population of 212,237, is 73.4 percent black, (id.),
and small towns to the west of Birmingham have high concentrations of black
population. Bessemer, southwest of Birmingham, is 71.2 percent black. (Id.) Fairfield,
west of Birmingham, is 94.6 percent black. (Id.) Midfield, west of Birmingham, is 81
percent black. (Id.) Brighton, southwest of Birmingham, is 81 percent black. (Id.) In
contrast, small towns and neighborhoods to the south and southeast of Birmingham
are predominantly white. Mountain Brook, southeast of Birmingham, is 97.2 percent
white. (Id.) Homewood, south of Birmingham, is 74.6 percent white. (Id.) Vestavia
Hills, south of Birmingham, is 90.4 percent white. (Id.) And Hoover, south of
Birmingham, is 75.1 percent white. (Id.). For these reasons, that a black population
percentage is similar to the old map does not prove by itself that race predominated in
every challenged district. The plaintiffs must prove district-by-district that race
predominated, including with evidence about targets where appropriate.
We also reject the related argument advanced by the plaintiffs that Alabama
should bear the burden of proving that race did not predominate in each district
because of the plaintiffs’ evidence about a statewide policy of racial targets. This
argument is another attempt by the plaintiffs to make out a statewide claim of racial
gerrymandering. As the Supreme Court explained, a “racial gerrymandering claim . . .
47

applies to the boundaries of individual districts. It applies district-by-district. It does
not apply to a State considered as an undifferentiated ‘whole.’” Ala. Legislative Black
Caucus, 135 S. Ct. at 1265 (citation omitted). A “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.’” Id. (quoting Miller, 515 U.S. at 916).
The plaintiffs “can present statewide evidence in order to prove racial gerrymandering in
a particular district,” id., but this evidence does not transform the inquiry. The
plaintiffs still must prove, in each district, that race predominated over traditional
districting factors.
c. The Dissent Misstates the Test for Racial Predominance.
Our dissenting colleague misapplies Supreme Court precedent and, like the
plaintiffs, uses a rebuttable presumption of racial predominance. The key to the
dissent’s test is whether the legislature hit the alleged racial target in a particular
district. (Dissent at 60–61, 89, 91). If the alleged target was met, our colleague infers
that race predominated. (Id. at 78, 85). This inference makes the dissent’s task easy.
(Id. at 131). Once the inference is applied, our colleague asks whether any districtspecific drafting choices corroborate the inference that race predominated and, if so,
presumes that it did. (Id. at 62–63, 91–92). Only then––after inferring that race
predominates and confirming that inference with circumstantial evidence––does our
colleague engage in the inquiry required by the Supreme Court: whether race-neutral
factors predominated over racial considerations in the “overall design of the district.”
48

(Id. at 91–92). But, tellingly, our colleague comes to this required inquiry with his
mind made up, because “evidence that the drafters hit, within one percentage point,
their admitted target of maintaining existing racial percentages paints a clear picture that
the racial percentage in each district was specifically intended.” (Id. at 93 (emphasis
added)). This test manifests two errors––it effectively flips the burden of proof, and it
excludes evidence that we must consider.
By starting with this inference of racial predominance, the dissent gets the test
exactly backwards. The plaintiffs have the burden of proving racial predominance,
and they “must prove that the legislature subordinated traditional race-neutral
districting principles . . . to racial considerations.” Ala. Legislative Black Caucus, 135 S.
Ct. at 1265 (alteration in original) (emphasis omitted) (quoting Miller, 515 U.S. at 916).
To be sure, the Supreme Court explained “[t]hat Alabama expressly adopted and
applied a policy of prioritizing mechanical racial targets above all other districting
criteria (save one-person, one-vote),” but that Alabama did so only “provides evidence
that race motivated the drawing of particular lines in multiple districts in the State.” Id.
at 1267 (emphasis added). That is, we weigh Alabama’s policy in our analysis, but our
consideration of this significant evidence does not end our inquiry as it effectively
does the inquiry of our colleague. (See Dissent at 107 (stating that the achievement of
an alleged racial quota “creates a strong inference of intent”)). Instead, we follow the
approach of the Supreme Court and ask whether the plaintiffs have introduced
additional evidence “that this goal had a direct and significant impact on the drawing
49

of at least some of” the boundaries of a district, or whether “‘traditional’ factors”
offer a better explanation. Ala. Legislative Black Caucus, 135 S. Ct. at 1271.
In contrast to the balanced approach of the Supreme Court, the test of our
dissenting colleague leads to the rebuttable presumption of unconstitutionality of
every majority-minority district in which the drafters came close to their alleged target.
(Dissent at 2, 91–92, 169). Take our dissenting colleague’s analysis of proposed House
District 67. He concedes that race-neutral principles explain why the drafters
incorporated portions of Perry County into the district. (Id. at 146). But our colleague
cannot join our “ultimate” conclusion that race did not predominate because the
black population remained close to the 2001 levels and some of the boundary lines
could have been “smoother.” (Id. at 142, 146–47). In other words, race predominated
because the alleged target was met. This ostensible but-for test of racial predominance
is not the test of the majority in Alabama Black Legislative Caucus. It is closer to the view
of the dissenting justices, first articulated in an earlier decision. See League of United
Latin Am. Citizens v. Perry, 548 U.S. 399, 517 (2006) (Scalia, J., concurring in the
judgment in part and dissenting in part, joined by Roberts, C.J., Thomas, J., and Alito.,
J.) (“In my view, however, when a legislature intentionally creates a majority-minority
district, race is necessarily its predominant motivation and strict scrutiny is therefore
triggered.”). True, our dissenting colleague’s test would make this case easy, but it
might also call into question “the constitutionality of the Voting Rights Act” itself. See
Bethune-Hill v. Va. State Bd. of Elections, 141 F. Supp. 3d 505, 527 (E.D. Va. 2015) (“If
50

the use of a [racial target to avoid retrogression] is sufficient to trigger strict scrutiny in
the absence of a facial manifestation in the lines themselves through the
subordination of traditional redistricting principles, then the constitutionality of the
Voting Rights Act—as applied to redistricting—would be drawn into question.”).
In addition, the district court decisions that the dissent relies on do not support
its view of racial predominance. (Dissent at 68–69). In Bethune-Hill, the majority
opinion rejected a test for racial predominance that is similar to the dissent’s inflexible
test. 141 F. Supp. 3d at 528 (rejecting the test of the dissent that “views the 55%
[black voting age population] floor as a ‘filter through which all line-drawing decisions
had to pass’” (citation omitted)). In Covington v. North Carolina, 316 F.R.D. 117
(M.D.N.C. 2016), the district court emphasized that a “racial gerrymandering claim
‘applie[d] district-by-district,’ and not to the state ‘as an undifferentiated whole.’” Id. at
140 (quoting Alabama Legislative Black Caucus, 135 S. Ct. at 1265)). The analysis of the
district court therefore weighed “district-specific evidence” together with statewide
evidence of racial predominance. Id. And in Harris v. McCrory, 159 F. Supp. 3d 600
(M.D.N.C. 2016), the district court found that statewide evidence of a racial quota
proved that race predominated because the drafter of the redistricting plan at issue
expressly testified that he subordinated race to traditional districting criteria. Id. at 612.
Such direct evidence is absent from the record before us.
By inferring that the drafters acted in bad faith if they hit their alleged target,
contra Miller, 515 U.S. at 915 (“[T]he good faith of a state legislature must be
51

presumed.”), our dissenting colleague ignores evidence that the legislature did not
subordinate race-neutral districting criteria to racial considerations. For example, our
dissenting colleague would have us disregard the alternative plans produced by the
plaintiffs. (Dissent at 71–77). Our consideration of the alternative plans, according to
our dissenting colleague, is an attempt to hunt down after-the-fact justifications for
the drafting decisions of the defendants, (id. at 72), but we disagree. We consider the
alternative plans because the plaintiffs urged us to consider them over the strong
objection of the defendants, (Doc. 284 at 9–10, 12–13, 35–38), and the plaintiffs bear
the burden of proving racial predominance. Ala. Legislative Black Caucus, 135 S. Ct. at
1265.
Our colleague would also have us cast every race-neutral drafting choice in a
district that hit its alleged target as evidence that race predominated. (Dissent at 78).
Once again, this assertion is the result of presuming the unconstitutionality of the
majority-minority districts in which the drafters hit their alleged target. The Supreme
Court, by contrast, commands us to weigh evidence that the drafters met a racial
target against other factors. Ala. Legislative Black Caucus, 135 S. Ct. at 1271.
Finally, the dissent argues that we take a “categorical[]” approach to racial
predominance because we refuse to rule that race predominated when the evidence
establishes that race-neutral factors offer the best explanation for the composition of
a district. (Dissent at 54, 57–58). Our colleague asserts that we “insist[] that race
predominates only when a district contains direct evidence of race-based
52

decisionmaking or explanations based on traditional districting criteria are
impossible.” (Id. at 58). Not true. We, unlike our dissenting colleague, hold the
plaintiffs to their burden of proof. Although the dissent’s inquiry effectively begins
and ends with evidence that the drafters met their racial target, we weigh all the
evidence the parties presented. And if race-neutral districting factors offer a better
explanation for the drafting of a district, we find that race did not predominate. Our
approach comports with the longstanding recognition by the Supreme Court of “the
sensitive nature of redistricting and the presumption of good faith that must be
accorded legislative enactments.” Miller, 515 U.S. at 916. Specifically, we exercise the
“extraordinary caution in adjudicating claims that a State has drawn district lines on
the basis of race” commanded by the Supreme Court. Id.
We follow the instruction of the Supreme Court to consider the evidence
presented by the parties on remand. As part of the totality of that evidence, we
consider the black population percentage in the challenged districts. And although our
dissenting colleague would have us consider this evidence to the exclusion or
diminution of other evidence produced by the parties, we cannot do so. Were it as
simple as seeing whether Alabama hit its alleged target, there would have been no
need for remand in this case.

53

d.

The Plaintiffs Must Prove that the Precinct Splits Cannot Be Explained by
Traditional Districting Criteria.
We agree with Alabama that the plaintiffs must prove that individual precincts,

which are a community of interest in Alabama, were split on the basis of race and not
some other traditional districting criterion. We also agree, with respect to most of the
splits, that the plaintiffs have failed to do so. Because these arguments are made about
many districts, we address them now.
That the legislature split a precinct does not necessarily prove that race
predominated. The plaintiffs present no direct evidence that any precinct was split
because of racial considerations. In fact, the Democratic Conference plaintiffs
admitted on remand that the presence of split precincts in the majority-black districts
is not probative, (Doc. 258 at 28–29), because many precincts were split between
majority-white districts as well. When they tried to draw an alternative plan, the Black
Caucus plaintiffs conceded that not all precinct splits are suspicious. (See, e.g., Doc.
301 at 11). And Hinaman testified that communities of interest may cross the lines of
political subdivisions. (Doc. 217 at 210).
Further, we cannot infer that race predominated in a district simply because the
legislature put a higher percentage of black population into one district or the other.
(See Doc. 256 at 31; Doc. 258 at 26). Many of the differences are negligible. (See, e.g.,
Def. Ex. 405 (Second Mount Zion Ch precinct, placing population that was 72.9
percent black into majority-black House District 68 and population that was 71.4

54

percent black into majority-white House District 90)). Several of the precinct splits
placed a higher black population percentage in a majority-white district than a
majority-black district. (See, e.g., Def. Ex. 405 (Westlawn Mid. Sch precinct, placing
population that was 18.6 percent black in majority-black House District 53 and
population that was 24.5 percent black in majority-white House District 6)). And
several of the precincts give so little population to a district that the split can hardly be
called evidence of anything. Moreover, in many of the splits where the majority of the
population is black on one side and white on the other side, the drafters could have
chosen to distribute census blocks on more racially polarized lines but did not do so.
(See, e.g., APSX 55 (placing majority-white census blocks along the border into House
District 72)).
Racial disparities in the precinct splits may also be the result of geography. For
example, if a majority-white district abuts a majority-black district, a precinct that
connects the two may naturally have more white population on one side and more
black population on the other. A sensible line between the two districts would
unavoidably have disparate racial percentages. Only a racial gerrymander could do
otherwise. As Fairfax testified, racial disparities in precinct splits can be “just natural,
unfortunately, population patterns, demographical population patterns.” (Doc. 296-7
143–44).
For these reasons, the plaintiffs have failed to prove that race predominated
because the legislature split precincts. We also observe that Alabama submitted an
55

exhibit in which it redrew each district with only whole precincts and, where possible,
a population within the ±1% deviation. Of the 33 hypothetical districts that could
comply with the ±1% deviation, 18 had a black population percentage within two
points of the corresponding enacted district. In fact, some of the hypothetical districts
came closer to the percentage for the 2010 Census population under the 2001 lines
than the enacted district did. The following tables compare the figures for the
hypothetical and enacted districts:
Black Population Percentages in Hypothetical Senate Districts with No Split
Precincts
Senate District

18
19
20
23
24
26
28
33

Black Population
Percentage in
Hypothetical
District
59.4
64.8
61.9
63.6
62.4
73.1
54.8
70.8

Black Population
Percentage in
Enacted District

Difference in Black
Population
Percentage

59.1
65.3
63.1
64.8
63.2
75.1
59.8
71.6

+0.3
–0.5
–1.2
–1.2
–0.8
–2.0
–5.0
–0.8

Black Population Percentages in Hypothetical House Districts with No Split
Precincts
House District
19
32
52
53
54

Black Population
Percentage in
Hypothetical District
59.9
53.4
64.5
55.9
62.4

Black Population
Percentage in
Enacted District
61.2
60.0
60.1
55.8
56.8
56

Difference in Black
Population
Percentage
–1.3
–6.6
+4.4
+0.1
+5.6

55*
73.5
73.6
–0.1
56
61.3
62.1
–0.8
57
66.6
68.5
–1.9
58
71.3
72.8
–1.5
59
77.6
76.7
+0.9
60
72.5
67.7
+4.8
67*
68.9
69.1
–0.2
68
57.9
64.6
–6.7
69
66.7
64.2
+2.5
70
63.1
62.0
+1.1
71
67.5
66.9
+0.6
72
62.6
64.6
–2.1
76*
79.0
73.8
+5.2
77
67.9
67.0
+0.9
78
69.0
69.9
–0.9
82*
63.9
62.1
+1.8
83
49.8
57.5
–7.7
84
52.3
52.3
0.0
85
35.8
50.1
–14.3
97
64.8
60.7
+4.1
98
64.9
60.0
+4.9
99
69.0
65.6
+3.4
103
68.3
65.1
+3.2
(For districts marked with an asterisk, there was no combination of precincts that
complied with the ±1% deviation.)
(Def. Ex. 3, Doc. 263-3).
Although the plaintiffs do not object to the method used in this exercise, we make no
findings about individual districts based solely on this exercise because the state
redrew each district individually and some precincts are included in more than one
district. (See Doc. 263-3 (House Districts 70 and 71)). We also observe that four
districts do not comply with the population deviation, and unsplitting some of
precincts could cause incumbent conflicts.

57

E.

Strict Scrutiny Generally

The parties do not dispute that, for each district where racial considerations
predominated over traditional districting criteria, Alabama must establish that the
district was narrowly tailored to achieve a compelling governmental interest. See Vera,
517 U.S. at 976. Here, the only asserted interest is complying with the Voting Rights
Act. Alabama must have a “strong basis in evidence” that its race-based choice was
necessary to achieve that compelling interest. Ala. Legislative Black Caucus, 135 S. Ct. at
1274.
As an initial matter, Alabama had a compelling governmental interest in
complying with sections 2 and 5 of the Voting Rights Act. We previously ruled that it
did, (Doc. 203 at 160), and the Supreme Court has not held otherwise. No party
disputes that, at the time of redistricting, section 5 required Alabama at least to
maintain the overall number of majority-black districts. Nor does any party dispute
that section 5 required Alabama to avoid a “discriminatory purpose” in redistricting.
52 U.S.C. § 10304. The plaintiffs initially argued that the requirements of section 5 are
irrelevant to the constitutionality of the 2012 redistricting because the Supreme Court
held the preclearance formula in section 4 unconstitutional in 2013, see Shelby County,
133 S. Ct. 2612, but the plaintiffs have since abandoned this argument and the
Supreme Court rejected it as applied to a different state in Harris v. Ariz. Indep.
Redistricting Comm’n, No. 14-232, slip op. at 10–11 (U.S. Apr. 20, 2016). Although the

58

Democratic Conference plaintiffs argue that the Legislature did not understand the
requirements of section 5, that argument relates to narrow tailoring.
Under section 5, the legislature must “preserve existing minority percentages”
to the extent necessary “to maintain the minority’s present ability to elect the
candidate of its choice.” Ala. Legislative Black Caucus, 135 S. Ct. at 1274. The legislature
need not “guess precisely what percentage reduction a court or the Justice
Department might eventually find to be retrogressive,” id. at 1273, but it must have a
“strong basis in evidence” for its use of race, id. at 1274. “[L]egislators ‘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.’” Id. (quoting Brief of
United States as Amicus Curiae 29).
Section 2 of the Voting Rights Act overlaps in some ways with section 5.
Under section 2, Alabama must avoid diluting the voting strength of a racial minority
where that “racial group is sufficiently large and geographically compact to constitute
a majority in a single-member district,” “the group is politically cohesive,” and the
white population “votes sufficiently as a bloc to enable it . . . usually to defeat the
minority’s preferred candidate,” Bossier Parish, 520 U.S. at 479 (quoting Gingles, 478
U.S. at 50–51). If these factors, known as the Gingles factors, are present in a district, a
court looks to whether “the totality of the circumstances supports a finding that the
voting scheme is dilutive.” Id. at 480.
59

Alabama makes three arguments about why the districts are narrowly tailored
to comply with section 5, but none of them prove that every challenged district
survives strict scrutiny. First, Alabama argues that the districts with a total black
population percentage of 62 to 65 percent are narrowly tailored because that was the
percentage that two black legislators told the Committee was necessary to maintain
black voters’ ability to elect their preferred candidates. At the public hearing in
Thomasville, Representative Thomas Jackson—a member of the Black Caucus—
explained that majority-black districts in his area should be “sixty-two percent or
sixty-five percent.” (Doc. 30-23 at 8). At the public hearing in Selma, Senator
Sanders—also a member of the Black Caucus—told Senator Dial that none of the
majority-black districts should be less than 62 percent black. (Doc. 30-28 at 6).
Senator Sanders explained why he thought this minimum was necessary:
Sometimes a lot of people don’t vote. Sometimes a lot of people can’t
vote. They might be in prisons or other kinds of institutions. Sometimes
a lot of folks are discouraged for one reason or another. So I would
hope that 62 percent is a minimal [percentage] for the majority AfricanAmerican district[s].
(Id.). Senator Dial testified that, if he had told the black leadership in the Senate that it
could have no more than 55 percent black population, and that this lower number
was better for their communities, “Senator Sanders and my other good friends in the
Senate . . . would simply have glazed over and asked me when I was going to the
mental institute.” (Doc. 215 at 44–45).

60

The Democratic Conference plaintiffs are correct that the use of the 65 percent
threshold was not narrowly tailored for every district. The drafters relied on the
statements of black legislators in rural districts in the western Black Belt. Because they
had no evidence about other districts, especially urban areas or districts outside of the
western Black Belt, Alabama cannot use 65 percent across the entire state without any
further inquiry.
Second, Alabama argues that caselaw from the Supreme Court and multiple
circuits establishes that 65 percent is a reasonable threshold for minority voting
percentages. In United Jewish Organizations of Williamsburgh, Inc. v. Carey, 430 U.S. 144
(1977), the Supreme Court explained that “it was reasonable for the Attorney General
to conclude in this case that a substantial nonwhite population majority in the vicinity
of 65% would be required to achieve a nonwhite majority of eligible voters.” Id. at
164. The Seventh Circuit has explained that “a guideline of 65% of total population
(or its equivalent) has achieved general acceptance in redistricting jurisprudence.”
Ketchum v. Byrne, 740 F.2d 1398, 1415 (7th Cir. 1984); see also Latino Political Action
Comm., Inc. v. City of Boston, 784 F.2d 409, 414 (1st Cir. 1986) (“Where voting is highly
polarized, a 65 percent figure is a generally accepted threshold which has been used by
the Department of Justice and reapportionment experts.”). The Eighth Circuit also
has concluded that “either 60% of the voting age population or 65% of the total
population is reasonably sufficient to provide black voters with an effective majority.”

61

African Am. Voting Rights Legal Def. Fund, Inc. v. Villa, 54 F.3d 1345, 1348 n.4 (8th Cir.
1995).
But as the Democratic Conference plaintiffs argue, this rule of thumb must
yield to specific evidence. Alabama asserted in its 2001 submissions to the
Department of Justice for preclearance that 55 percent black voting-age population
was sufficient to avoid retrogression, and Alabama submitted a study by Professor
Richard L. Engstrom that concluded “a black voting age population of about 55%
provides African-Americans with a reasonable opportunity to elect the representative
of their choice.” (ADC Supp. Ex. 1 at 7; accord ADC Supp. Ex. 2 at 9). None of the
cases that Alabama cites in its brief were decided about Alabama after this
submission, so none can provide a strong basis in evidence for the legislature to use a
higher percentage in 2012.
Third, Alabama argues that the enacted plans are the only plans in the record
that satisfy section 2, section 5, and the Committee guidelines with regard to every
majority-black district. We put no weight on the argument of Alabama that its plans
satisfy strict scrutiny because the plaintiffs have not offered any alternative plans that
comply with the Committee guidelines. Alabama has the burden to prove that its
plans are narrowly tailored. See Miller, 515 U.S. at 920. To be sure, the absence of a
better alternative is evidence that Alabama narrowly tailored its plan. But the lack of a
workable alternative is not dispositive. In some instances, we do not need to see an
alternative plan to conclude that a district fails strict scrutiny.
62

Our dissenting colleague distorts the evidentiary burden of Alabama to prove
narrow tailoring. Although our colleague uses the terms “narrow tailoring” and
“strong basis in evidence,” he looks to affirmative action caselaw––not caselaw about
claims of racial gerrymandering––to define those terms. (Dissent at 9–10, 12–13, 30,
33, 37, 51). Because this error transforms the burden of Alabama from one of proving
“good reasons” into a burden of proving actual necessity, Alabama Legislative Black
Caucus, 135 S. Ct. at 1274 (citation omitted), we respectfully disagree.
In the context of a racial gerrymandering claim, the Supreme Court has long
held that the requirement of narrow tailoring gives states “leeway,” although to a
“limited degree,” to comply with the Voting Rights Act. Bush v. Vera, 517 U.S. 952,
977 (1996). This flexible approach to narrow tailoring is unique to the racial
gerrymandering context because the Supreme Court “adhere[s] to [a] longstanding
recognition of the importance in our federal system of each State’s sovereign interest
in implementing its redistricting plan.” Id. at 978. Against this interest weighs
compliance with the Voting Rights Act. To balance these interests, and to avoid
placing “state actors . . . [in a] trap[] between . . . competing hazards of liability’ by the
imposition of unattainable requirements under the rubric of strict scrutiny,” the Court
instructs that we take a “flexib[le]” approach to narrow tailoring. Id. at 977–78
(quoting Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 291 (1986) (O’Connor, J.
concurring in part and concurring in the judgment)).

63

The Supreme Court emphasized on remand that we were to adhere to this
longstanding standard of narrow tailoring:
[W]e 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
redistricting, 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 legislature place a few
too many minority voters in a district or (2) retrogressive under § 5
should the legislature place a few too few.
Alabama Legislative Black Caucus, 135 S. Ct. at 1273–74 (citations omitted). The
distinctions that the Court drew in this passage make clear that narrow tailoring does
not require an exact connection between the means and ends of redistricting. Instead,
as we have explained, narrow tailoring requires that the legislature had a “strong basis
in evidence,” which in turn means that the legislators had “good reasons” to draft a
district in which race predominated over traditional districting criteria. Id. at 1274.
Our dissenting colleague argues that this standard is the same standard that the
Supreme Court “applie[s] . . . [in the] racial-preference context[].” (Dissent at 11). To
support this argument, our colleague latches onto a citation in Alabama Legislative Black
Caucus to an amicus brief of the United States that in turn cited Ricci v. DeStefano, 557
U.S. 557 (2009), and several citations in other racial-gerrymandering decisions.

64

(Dissent at 11, 14). But this argument misconstrues the decisions of the Supreme
Court.
The Supreme Court prescribes different approaches to narrow tailoring
depending upon the context. In the context of affirmative action, the Court asks
whether the “race-based action is necessary to further a compelling governmental
interest.” Grutter v. Bollinger, 539 U.S. 306, 327 (2003) (emphasis added); see also Ricci,
557 U.S. at 582 (explaining that race-based remedies for past discrimination “are
constitutional only where there is a ‘strong basis in evidence’ that the remedial actions
were necessary” (emphasis added) (quoting Richmond v. J.A. Croson Co., 488 U.S. 469,
500 (1989))). In the context of voting rights, by contrast, narrow tailoring “does not
demand that a State’s actions actually be necessary to achieve a compelling state interest
in order to be constitutionally valid.” Ala. Legislative Black Caucus, 135 S. Ct. at 1274
(emphasis added). In other words, the standard of proof is different in the voting
rights context. And this difference makes sense because a state must navigate the
Scylla and Charybdis of compliance with the Voting Rights Act, on one hand, and the
demands of the Equal Protection Clause, on the other. See id. at 1273–74 (“The law
cannot lay a trap for an unwary legislature . . . .”).
Finally, contrary to the dissent, (Dissent at 37–38, 46–47), the Supreme Court
has never required particular studies. Cf. Shaw v. Hunt, 517 U.S. 899, 915 (1996)
(“[W]e have not always provided precise guidance on how closely the means (the

65

racial classification) must serve the end (the justification or compelling interest).”). All
the Court “insist[s]” upon is “a ‘strong basis in evidence.’” Ala. Legislative Black
Caucus, 135 S. Ct. at 1274 (quoting Brief for United States as Amicus Curiae 29). We
evaluate the proposed districts in which race predominated based on this standard.
F.

District-By-District Analysis of the Challenged Plan

With these factual findings and conclusions of law in mind, we turn to the
district-specific evidence and arguments. We begin with the Senate districts, discussing
them in numerical order. We then discuss the House districts, beginning with the
Madison County districts and continuing in numerical order.
a.

Senate Districts 18, 19, and 20 (Birmingham)

We find that race did not predominate over traditional districting criteria in the
design of Senate Districts 18 and 19, but we find that race predominated in the design
of District 20. All three districts were severely underpopulated in 2010—by 17.64,
20.06, and 21.37 percentage points, respectively. (Doc. 1 at 10). Senator Smitherman,
a black Democrat who represents District 18, provided the drafters with a one-page
map that Hinaman “endeavored to duplicate.” (Doc. 203 at 31–32; Doc. 217 at 121).
The drafters maintained the core of each district, echoing their stated policy of
minimizing change, (Doc. 134-4 at 25–26), and each district has grown to expand in
population:

66

2001 District Lines

2012 District Lines

(Ala. Reapportionment Office, Alabama Legislative Policymaker’s Dashboard, http://
policymaker.alabama.gov/Districts.aspx.)
The total black population percentages decreased in each of these districts,
undermining the plaintiffs’ claim that race predominated over traditional districting
factors because of a policy of racial targets. In Districts 19 and 20, the black
population percentage dropped significantly. The following table shows the change
for each district:
Total Black Population Percentage in 2010 Census
Senate 2001 District
Plan as
District Lines (Doc. 30-41) Passed (Doc.
30-39)
18
59.92
59.10
19
71.59
65.31
20
77.82
63.15

Change in
Percentage
–0.82
–6.28
–14.67

If the drafters intended to meet targets, they missed them—and badly in Districts 19
and 20.

67

The Democratic Conference plaintiffs drew a different configuration of
Districts 18, 19, and 20, but they kept all three districts majority-black and entirely
within Jefferson County. The following map superimposes Democratic Conference
Plan A (darker dotted lines) on the enacted plan (red lines and shaded colors) and the
county boundaries (lighter dotted lines):
Senate Districts 18–20 in Democratic Conference Plan A and Act 603

(Doc. 287-20 at 1). Plan A District 18 trades the northern and southern additions of
the enacted district for a western addition, and Plan A District 19 pushes west to rural
Jefferson County and the county line. Plan A District 20 reaches into territory that
Act 603 gave to District 18, as well as farther north. The Democratic Conference
plaintiffs did not draw significantly more compact or regular districts, and they did not
explain why their choices were required by traditional districting criteria. They
provided us with quantitative measurements of the compactness of their alternative

68

districts, but they did not provide measurements for each enacted district, so we
cannot make any findings based on the measurements they have provided. That said,
the Democratic Conference plaintiffs split fewer precincts in these districts. Plan A
provides little evidence overall that race predominated in the design of Districts 18,
19, or 20.
The Black Caucus plaintiffs drew a different configuration of the three districts.
They shifted District 18 westward in an odd hook that follows precinct lines, moved
District 19 slightly northward, and kept District 20 largely in the same place but with
different irregular lines that follow precinct boundaries. The following maps
superimpose the Black Caucus 1% Plan (shaded colors and numbers in black boxes)
on the enacted plan (purple lines and numbers in purple circles), with 2012 incumbent
locations marked by a blue star:

69

Senate District 18 in Black Caucus 1% Plan and Act 603

(APSX 534).
Senate District 19 in Black Caucus 1% Plan and Act 603

(APSX 535).

70

Senate District 20 in Black Caucus 1% Plan and Act 603

(APSX 536). As with Democratic Conference Plan A, the shape and compactness of
these districts do not establish that race predominated in the design of Act 603. The
plaintiffs fail to explain why their choices were required by traditional districting
criteria other than precinct splits, which we discuss later. We cannot say that this plan
tends to establish that race predominated.
The plaintiffs argue that, although there “were not enough black residents to
maintain the existing super-majorities,” the drafters came as “close[]” as they could to
hitting their “targets.” (Doc. 258 at 43; see also Doc. 256 at 145). This argument fails
because the plaintiffs present no evidence to support their assertion. The shapes of
the districts are not so bizarre as to give rise to an inference of gerrymandering, nor
are they noticeably more bizarre than the alternative plans or the 2001 plan. And the
total black population percentages in the final alternative plans are not so different

71

from the enacted plan that we can infer that race predominated. In the Black Caucus
1% Plan, the black population was 3.14 percentage points lower in District 18, a mere
0.37 points lower in District 19, and 0.17 points higher in District 20. (Doc. 296-1 at 4).
In Democratic Conference Plan A, District 18 was 0.4 points higher, District 19 was
3.2 points lower, and District 20 was 0.9 points lower. (Id.). In fact, the black
population percentages in these districts are similar across every alternative plan, even
the ones that ignore the Committee guidelines:
2010 Census Total Black Population Percentages Under Various Plans
Senate
District

2001
District
Lines
(Doc. 3041)

Plan as
Passed
(Doc.
30-39)

Sanders
Plan
(Common
Ex. 47)

Reed-Buskey
Plan
(Common
Ex. 48)

18
19
20

59.92
71.59
77.82

59.10
65.31
63.15

58.49
65.30
62.82

61.32
62.89
65.10

New
Black
Caucus
Plan
(APSX
27A)

59.80
66.55
63.68

Black
Caucus
1% Plan
(APSX
470)

Democratic
Conference
Plan A (Doc.
287-2)

55.96
64.94
63.32

59.5
62.1
62.2

On this record, we find that the black population percentages in the enacted plan
were the result of demographics and race-neutral choices, not the unsuccessful pursuit
of numerical targets.
The plaintiffs also argued initially on remand that the “hook” in the
northwestern part of District 20 is proof that race predominated, but their own
evidence suggests otherwise. Both plaintiffs’ maps establish that the “hook” takes in
majority-white population as well as majority-black population. (ADC Supp. Ex. 36H;

72

APSX 319). And both Plan A and the 1% Plan put substantial portions of the hook in
District 20. (APSX 533B; Doc. 287-20 at 1).
The absence of county splits in the enacted districts has prompted odd and
contradictory arguments that do not persuade us that race predominated. The Black
Caucus plaintiffs argue on remand that the drafters were forced to split county
boundaries in the adjoining majority-white districts so that the majority-black districts
could meet their “targets.” (Doc. 256 at 146). But Senator Dial testified that it was
also the avoidance of incumbent conflicts that required the splitting of counties in the
majority-white districts. (Doc. 125-3 at 14). And the plaintiffs’ argument is at odds
with Supreme Court precedent. The Supreme Court has made clear that a plaintiff has
standing to challenge only his own district as a racial gerrymander. See United States v.
Hays, 515 U.S. 737, 745 (1995) (“Even assuming (without deciding) that [the Act]
causes injury sufficient to invoke strict scrutiny[,] . . . appellees have pointed to no
evidence tending to show that they have suffered that injury.”); see also Sinkfield v. Kelley,
531 U.S. 28 (2000). Whether the challenged districts are viable does not depend on
the borders of other districts.
The Democratic Conference plaintiffs suggest that the drafters should have
crossed county lines with the majority-black districts in Birmingham. They contended
initially on remand that “there is no explanation for the decision that the blackmajority districts alone had to be confined to [Jefferson] County and could not be
extended into adjacent counties.” (Doc. 258 at 42 n.20). They evidently changed their
73

minds when they drew Plan A because they kept the majority-black Senate districts in
Jefferson County entirely within county lines. The plaintiffs cannot have it both ways:
splitting county lines and not splitting county lines cannot both be evidence of racial
predominance, at least without more explanation than they provide.
Finally, the plaintiffs point to the number and characteristics of the precinct
splits. Both plaintiffs split fewer precincts than the state did, (Doc. 300-1 at 84–90). In
Districts 18 and 19, these splits do not provide any evidence that race predominated.
In District 20, they do. We discuss each district in turn.
In District 18, the drafters split six precincts, five of which are not suspicious.
In Birmingham Botanical Gardens precinct, the drafters split the precinct along a
smooth line and an area of zero-population blocks.

74

Birmingham Botanical Gardens Precinct in Act 603

(APSX 317). In Mountain Brook City Hall precinct, the drafters split a precinct of
exclusively majority-white blocks between Districts 18 and 15.

75

Mountain Brook City Hall Precinct in Act 603

(APSX 324). The split put 927 people in District 18, 6 percent of whom were black,
and 3,975 people in District 15, 0.2 percent of whom were black. (Def. Ex. 475). In
three other precincts—Muscoda Community Center precinct, (APSX 326), Pleasant
Hill United Methodist Church precinct, (APSX 328), and Robinson Elementary
School precinct, (APSX 329)— the drafters split the precinct with another majorityblack block, and the plaintiffs fail to explain the significance of these splits.
The sixth split, of Homewood Public Library precinct, is insufficient to prove
that race predominated. The legislature put 963 people in District 18, 41 percent of

76

whom were black, and 6,327 people in District 18, 3 percent of whom were black.
(Def. Ex. 475).
Homewood Public Library Precinct in Act 603

(APSX 321). But the number of black people placed in District 18 from this split
amounts to less than a third of a percent of the population of the district. If we
remove this precinct from the district entirely, the black population percentage
increases from 59.12 percent to 59.23 percent, still shy of the alleged target of 59.93
percent. We find that race did not predominate in the design of District 18.

77

In District 19, the drafters again split six precincts, five of which are not
suspicious. In Valley Creek Baptist Church precinct, the drafters drew an irregular line
that included many majority-white blocks that were unnecessary to reach majorityblack blocks.
Valley Creek Baptist Church Precinct in Act 603

(APSX 331). The split put 461 people in District 19, 28 percent of whom were black,
and 2,717 people in majority-white District 5, 11 percent of whom were black. (Def.
Ex. 475). In Johns Community Center Precinct, the drafters put several populous

78

majority-white blocks in District 19 that were unnecessary to reach majority-black
blocks.
Johns Community Center Precinct in Act 603

(APSX 322). The split put 805 people in District 19, 16 percent of whom were black,
and 683 people in District 5, 4 percent of whom were black. (Def. Ex. 475). In
Hillview Fire Station #1 precinct, the drafters put 366 people in District 19, 48
percent of whom were black, and 2,433 people combined in Districts 17 and 20, 66
percent of whom were black. (Def. Ex. 475).

79

Hillview Fire Station #1 Precinct in Act 603

(APSX 320). And in Pleasant Hill United Methodist Church precinct, (APSX 328),
and Muscoda Community Center precinct, (APSX 326), the drafters split the precinct
between two majority-black districts with no racial pattern.
The final split, of Maurice L West Community Center precinct, does not prove
that race predominated in the placement of a significant number of people. The
drafters used a suspicious line to put 1,579 people in District 19, 31 percent of whom
were black, and 581 people in District 17, 5 percent of whom were black. (Def. Ex.
475).
80

Maurice L West Community Center Precinct

(APSX 323). But the black people placed in District 19 from this split amount to less
than half of a percent of the population of the district. If we include the entire
precinct, which would keep the precinct within the ±1 percent population deviation,
the black population percentage decreases negligibly from 65.39 percent to 65.05
percent, still missing the alleged target of 71.65 percent by over six points. If we
remove the entire precinct, which would underpopulate the district, the black
population percentage increases negligibly to 65.72 percent, still about six points

81

under the supposed target. We find that race did not predominate in the design of
District 19.
In District 20, we find that one precinct split is not suspicious. The drafters
split Robinson Elementary School between two majority-black districts, (APSX 329),
and the plaintiffs fail to explain how this split proves that race predominated.
But on the basis of the other six precinct splits in District 20, we find that race
predominated. In Trussville Baptist Church precinct, the drafters used a suspicious
line to put 796 people in District 20, 44 percent of whom were black, and 9,300
people in majority-white District 17, 4 percent of whom were black.

82

Trussville First Baptist Church Precinct in Act 603

(APSX 330). In Mountain View Baptist Church precinct, the drafters drew a line that
does not wind around looking for majority-black blocks. But the line did put 7,325
people in District 20, 25 percent of whom were black, and 129 people in District 17,
only one of whom was black. (Def. Ex. 475).

83

Mountain View Baptist Church Precinct in Act 603

(APSX 325). In Gardendale Civic Center, the drafters used an irregular line to put
1,500 people in District 20, 33 percent of whom were black, and 12,863 people in
District 17, 5 percent of whom were black. (Def. Ex. 475).

84

Gardendale Civic Center Precinct in Act 603

(APSX 319). In Pinson United Methodist Church precinct, the drafters used a
somewhat irregular line, but the split assigned 4,260 people to District 20, 65 percent
of whom were black, and 2,457 people to Pinson United Methodist Church, 10
percent of whom were black. (Def. Ex. 475).

85

Pinson United Methodist Church Precinct in Act 603

(APSX 327). In Fultondale First Baptist Church precinct, the drafters used an
irregular line to split a precinct of almost all majority-white blocks.

86

Fultondale First Baptist Church Precinct in Act 603

(APSX 318). But the split put 2,268 people in District 20, 39 percent of whom were
black, and 1,637 people in District 17, only 6 percent of whom were black. (Def. Ex.
475). And in Hillview Fire Station #1 precinct, the drafters used an irregular line to
put 1,957 people in District 20, 81 percent of whom were black, and 842 people in
Districts 17 and 19 combined, only 23 percent of whom were black. (Id.).

87

Hillview Fire Station #1 Precinct in Act 603

(APSX 320). On the basis of these precinct splits, we find that race predominated in
the design of District 20.
We further conclude that District 20 does not survive strict scrutiny. Alabama
makes no district-specific arguments about why this district was narrowly tailored to
achieve its interest in complying with the Voting Rights Act. It makes a statewide
argument based on the comments of Senator Sanders and Representative Jackson, but
these statements do not provide a strong basis in evidence in District 20. Sanders and
Jackson would be familiar with their own districts in the west Black Belt, but Senate
88

District 20 is in Jefferson County. District 20 is also more urban than Sanders’s and
Jackson’s districts—51 percent of the district lives in Birmingham. (Def. Supp. Ex. 6).
Because the state has not provided a strong basis in evidence for its use of race, we
must enjoin the use of Senate District 20 in future elections.
b.

Senate District 23 (West Black Belt)

Although we view it to be a close question, we find that race predominated
over traditional districting criteria in the design of Senate District 23. We base this
finding primarily on the increased number of counties in the district and the way in
which irregular lines include areas with high percentages of black population,
especially through the use of precinct splits.
The district lines are not so irregular on their face that we find that race
predominated. District 23 was severely underpopulated before redistricting, and it
bordered the severely underpopulated District 24 and the residence of the incumbent
of District 22. As compared with the 2001 lines, the borders of Senate District 23 are
cleaner along the northern and eastern sides, and slightly more irregular to the
southwest:

89

2001 District Lines

2012 District Lines

(Ala. Reapportionment Office, Alabama Policymaker’s Dashboard, supra).
The Democratic Conference plaintiffs did not draw a significantly more regular
or compact district. The following map shades areas only in Plan A in yellow, areas
only in Act 603 in red, and areas of overlap in orange:
Senate District 23 in Conference Plan A and Act 603

(Doc. 287-24 at 1).

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The Black Caucus plaintiffs, in contrast, drew a worse overall shape for District
23. Instead of being relatively compact, the district in the 1% Plan wraps around part
of District 22. The following map shows the Black Caucus district in orange and the
enacted district with a purple line and the number 23 in a purple circle:
Senate District 23 in the Black Caucus 1% Plan and Act 603

(APSX 537).
The plaintiffs have more success with their evidence about counties. The 2001
plan included all or part of nine counties, two of them whole (Dallas and Wilcox) and
seven of them split (Autauga, Clarke, Conecuh, Lowndes, Marengo, Monroe, and
Perry). (Doc. 30-44 at 11). Act 603 increased the total number of counties to ten, five
of them whole (Butler, Dallas, Lowndes, Perry, and Wilcox) and five of them split
(Clarke, Conecuh, Marengo, Monroe, and Washington). (Doc. 30-40 at 8). Both
plaintiffs drew a district with no more than eight counties overall and no more than

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two split counties, raising the possibility that race trumped the Committee guideline
about counties in District 23. The Democratic Conference plaintiffs drew a district
with eight counties overall and one split by filling out Conecuh and Monroe;
removing Clarke, Marengo, and Washington; and adding part of Autauga. (Doc. 300-1
at 93; Doc. 287-19 at 2). Although we do not put much weight on the Black Caucus
plaintiffs’ unseemly design, they drew a district with six counties overall and two splits
by filling out Conecuh and Monroe, and removing Lowndes, Marengo, Perry, and
Wilcox. (APSX 537). Even in a district with eight (Plan A), nine (2001), or ten (Act
603) counties, a difference of two counties is substantial.
We now discuss each of the counties. We find no evidence that race
predominated in Butler, Dallas, Lowndes, Perry, or Wilcox Counties. Butler County
was whole in District 30 in the 2001 plan, (Doc. 30-44 at 12), and is whole in District
23 in Act 603, Plan A, and the 1% Plan. Dallas County is whole in District 23 in all
four plans. (Id.). Lowndes County was partially in District 23 in the 2001 plan, (id.),
and is entirely in District 23 in Act 603 and Plan A. Perry County was partially in
District 23 in the 2001 plan, (id.), and is entirely in District 23 in Act 603 and Plan A.
Wilcox County is whole in District 23 in all four plans.
But the evidence about Clarke County suggests that race predominated. The
drafters kept the core of the Clarke County portion of the district and pushed to the
border of Washington County. They then split Washington County, instead of taking
more of Clarke County. They gave no explanation about why this suspicious choice
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was the result of traditional districting criteria. Moreover, Clarke County has a much
lower black population percentage overall (43.88 percent) than the District 23 portion
of Clarke County does (70.67 percent). (Def. Ex. 475; Doc. 297-4 at 6). We
acknowledge that the District 23 portion of Clarke County was 77.69 percent black in
2001, (Doc. 30-44 at 11), but the legislature drew new lines in 2012 that must be
evaluated on their own merit.
The drafters split six precincts in Clarke County, and five of them are evidence
that race predominated. First, in Thomasville National Guard Armory precinct,
District 23 uses an irregular line to take all of the majority-black blocks along the
border and none of the majority-white blocks.

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Thomasville National Guard Precinct in Act 603

(APSX 300). The split placed no majority-black blocks in District 22. (Id.). Second, in
Fulton City Hall precinct, the legislature used irregular lines to put all but one of the
majority-black blocks in District 23.

94

Fulton City Hall Precinct in Act 603

(APSX 295). The resulting split assigned 146 people to District 23, 40 percent of
whom were black, and 859 people in District 22, only 4 percent of whom were black.
(Def. Ex. 475). Third, in Jackson City Hall precinct, District 22 pushes across the
border at two points and stops before reaching any majority-black blocks.

95

Jackson City Hall Precinct in Act 603

(APSX 296). Fourth, in Overstreet Grocery precinct, the split is formed by a line of
majority-white blocks on the District 22 side and almost exclusively majority-black
blocks on the District 23 side.

96

Overstreet Grocery Precinct in Act 603

(APSX 298). The split placed all of the majority-black blocks in District 23. (Id.).
Overall, it put 368 people in District 23, 78 percent of whom were black, and 286
people in District 22, only 17 percent of whom were black. (Def. Ex. 475). Fifth, in
Skipper Fire Station–Jackson National Guard–Jackson Fire Dept. precinct, the
legislature put into District 23 all of the populous majority-black blocks along the
border.

97

Skipper Fire Station–Jackson National Guard–Jackson Fire Dept. Precinct in
Act 603

(APSX 299A).
The sixth precinct split in Clarke County has no clear racial pattern. In Old
Engineers Building–Antioch Fire Station–Hellwestern Fire Dept–Grove City Hall–
Old Engineers precinct, the legislature drew an irregular shape that put 539 people in
District 23, 55 percent of them black, and 3,067 people in District 22, only 25 percent
of them black. (Def. Ex. 475). But the incursions sometimes pick up majority-black

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blocks and sometimes pick up majority-white blocks with no apparent pattern. (APSX
297).
Old Engineers Building–Antioch Fire Station–Hellwestern Fire Dept–Grove
City Hall–Old Engineers in Act 603

(Id.).
After splitting Clarke County to reach the border with Washington County, the
drafters put an 82 percent black population in District 23 from Washington County,
which was only 25 percent black overall. (Def. Ex. 475; Doc. 297-4 at 6). District 23
did not enter Washington County in the 2001 plan, and the Democratic Conference

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plaintiffs did not include Washington County in their alternative plan. The defendants
offered no specific explanation about why they entered and split Washington County.
The drafters also split five precincts in this county, and three of them are
evidence that race predominated. In Carson-Preswick precinct, the drafters put almost
exclusively majority-white blocks from two non-contiguous areas into District 22. The
border is composed of majority-black blocks and zero-population blocks on the
District 23 side and majority-white blocks and zero-population blocks on the District
22 side.
Carson-Preswick Precinct in Act 603

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(APSX 372). The drafters assigned 241 people to District 23, 86 percent of them
black, and 329 people to District 22, 17 percent of them black. (Def. Ex. 475). In
Cortelyou precinct, the drafters drew an irregular split in the northern corner of the
precinct that put only majority-white blocks in District 22.
Cortelyou Precinct in Act 603

(APSX 373). The drafters placed 412 people in District 23, 66 percent of them black,
and 86 people in District 22, none of them black. (Def. Ex. 475). In McIntosh Voting
House Voting District precinct, the drafters carved a bent leg into the southeast

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portion of the precinct that picked up every majority-black block in the area and only
three majority-white blocks.
McIntosh Voting House Voting District Precinct in Act 603

(APSX 376). The split placed 523 people in District 23, 73 percent of them black, and
1,435 people in District 22, 4 percent of them black. (Def. Ex. 475).
In the other two split precincts, there was no apparent pattern of racial sorting.
In Malcolm Voting House Voting District precinct, the drafters carved off a mostly
unpopulated corner of the irregularly shaped precinct.

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Malcolm Voting House Voting District Precinct in Act 603

(APSX 374). They put 24 people in District 23, 75 percent of them black, and 558
people in District 22, 61 percent of them black. (Def. Ex. 475). Neither the shape nor
the statistics are suspicious. In McIntosh Community Center Voting District precinct,
instead of following the straight precinct line, the drafters included a narrow zeropopulation block in District 22.

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Zoom of McIntosh Community Center Voting District Precinct in Act 603

(APSX 375A). We are at a loss as to why the drafters made this choice, but race could
not have been the reason.
In Conecuh County, we find weak evidence that race predominated. The
legislature kept the core of the Conecuh County portion of the district but changed
the shape slightly. This design put a slightly higher black population percentage in the
district (60 percent) than the county had as a whole (46 percent). (Def. Ex. 475; Doc.
297-4 at 6).
The drafters split five precincts in Conecuh County, and the splits give us only
mixed evidence. First, in Bermuda Community House precinct, the drafters opted for
an irregular line instead of a straight line and placed all of the majority-black blocks in
District 23.

104

Bermuda Community House Precinct in Act 603

(APSX 302). The split put 170 people in District 23, 54 percent of them black, and
262 people in District 22, only 19 percent of them black. (Def. Ex. 475). Second, in
Castleberry Fire Dept.-1 precinct, the drafters put a significant cluster of majorityblack blocks and a majority-white block of 49 people in District 23. (APSX 303). They
put almost no majority-black blocks in District 22. (Id.). But we cannot say that the
line was irregular:

105

Castleberry Fire Dept.-1 Precinct in Act 603

(Id.). The legislature assigned 225 people to District 23, 85 percent of them black, and
736 people to District 22, only 7 percent of them black. (Def. Ex. 475). Third, in
Herbert FD precinct, the drafters split the precinct roughly down the middle with a
sensible line and no apparent racial sorting.

106

Herbert FD Precinct in Act 603

(APSX 304). Fourth, in Paul Fire Dept. precinct, the drafters used an irregular line in
two places to put all three of the significant majority-black blocks and only one
majority-white block in District 23.

107

Paul Fire Dept. Precinct in Act 603

(APSX 305). The drafters assigned 137 people to District 23, 58 percent of them
black, and 122 people to District 22, only 2 percent of them black. (Def. Ex. 475).
The choices in Marengo County provide almost no evidence that race
predominated. The drafters preserved the core of the district in Marengo County and
smoothed out the line between Districts 23 and 24, as compared to 2001. The portion
of Marengo County in District 23 barely had a higher black population percentage (56
percent) than the county as a whole (52 percent). (Def. Ex. 475; Doc. 297-4 at 7). The

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drafters split only one precinct, Cornerstone Church, and they split it with another
majority-black district using no racial pattern. (APSX 337).
The choices in Monroe County more clearly reflect the predominance of race.
The district noticeably retreated in 2012, ceding territory to overpopulated District
22—a counterintuitive choice.
Monroe County in 2001

Monroe County in 2012

(Ala. Reapportionment Office, supra). We recognize that sometimes an
underpopulated district must give up population in one place to gain it in another, but
the defendants gave no explanation why they did so here. This shape put a
significantly higher percentage of black population in the district (68 percent) than the
county as a whole (42 percent). (Def. Ex. 475; Doc. 297-4 at 6). In contrast, the black
population percentage under the 2001 lines using 2000 Census data (43.9 percent)
more closely matched the county as a whole in 2001 (40.4 percent). (Doc. 30-44 at 11;
Def. Ex. 475). Based on these facts, we infer that race drove the drafters’ choices in
Monroe County.

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Four split precincts in Monroe County provide further evidence that race
predominated. First, in Mexia Fire Station precinct, the drafters put a narrow
majority-black census block running parallel to the border in District 23. That was the
only majority-black block in the precinct, although the number of people moved was
small and the shape is not any more irregular than the precinct line.
Mexia Fire Station Precinct in Act 603

(APSX 346). Second, the split in Monroe Beulah Church precinct follows a straight
line, except where doing so would put two small majority-black blocks in District 22.
This irregular line put all but one majority-black block in District 23.

110

Monroe Beulah Church Precinct in Act 603

(APSX 347). The drafters assigned 71 people to District 23, 72 percent of them black,
and 141 people to District 22, only 13 percent of them black. (Def. Ex. 475). Third, in
Monroeville Armory, the split puts all but one majority-black block in District 23. The
District 23 side of the irregular border is formed almost entirely by majority-black
blocks, while the District 22 side of the border is formed entirely by majority-white
blocks.

111

Monroeville Armory Precinct in Act 603

(APSX 348). The drafters assigned 1,524 people to District 23, 51 percent of them
black, and 1,247 people to District 22, only 23 percent of them black. (Def. Ex. 475).
In Perdue Hill Masonic Lodge precinct, District 22 took all of the reasonably
accessible majority-white blocks in the east.

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Perdue Hill Masonic Lodge Precinct in Act 603

(APSX 350).
The other precinct splits in Monroe County are less suspicious. In Bethel Bapt
House precinct, the drafters put a majority-white block in District 22 and mostly
majority-black blocks in District 23, but this decision smoothed out an irregular
precinct shape.

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Bethel Bapt House Precinct in Act 603

(APSX 343). In Chrysler-Eliska-McGill precinct, they drew a smooth line that placed
a sparsely populated majority-black area in District 23 but left majority-black blocks
along the border in District 22.

114

Chrysler-Eliska-McGill Precinct in Act 603

(APSX 344). In Days Inn-Ollie precinct, the drafters again smoothed out irregular
precinct lines in this and neighboring precincts with a split along mostly zeropopulation areas.

115

Days Inn-Ollie Precinct in Act 603

(APSX 345). That straight line continued into Monroeville Housing Auth precinct.

116

Monroeville Housing Auth Precinct in Act 603

(APSX 349). In Purdue Hill precinct, one majority-black block falls on the District 23
side of a roughly even break.

117

Purdue Hill Precinct in Act 603

(APSX 351). And in Shiloh Grimes precinct, the split shaved off an irregular bulge in
the precinct.

118

Shiloh-Grimes Precinct in Act 603

(APSX 352).
The drafters removed Autauga County in 2012, but the Democratic
Conference plaintiffs kept part of the county in Plan A. (Doc. 287-19 at 2). The
plaintiffs have not explained why keeping Autauga County was required by traditional
districting criteria, and there is reason to think that removing this county, which is not
part of the Black Belt, creates a stronger community of interest in the district.
The plaintiffs argue with some force that, given the extent of the changes to the
districts, the only way the drafters could have maintained black population

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percentages as close as they did was through a policy of racial targets. The enacted
district had a black population percentage of 64.84 percent, almost the same as the
64.76 percent black population in the benchmark. (Doc. 30-39 at 2; Doc. 30-41 at 1).
In the hypothetical district with no precinct splits submitted by Alabama, the black
population percentage would be 1.2 points lower, causing the district to miss the
purported target. (Doc. 263-3 at 2). The Democratic Conference plan, which
contained fewer counties and fewer split counties, had a total black population
percentage of only 58.9 percent, nearly six points lower. (Doc. 296-1 at 4). Alabama
has not explained why the Democratic Conference district violates the Committee
guidelines or federal law, and that plan suggests that some of the county and precinct
splits may have been race-based.
Whether race predominated in the design of District 23 is a close question. The
shape is not bizarre. The legislature added one county overall, bringing the total to
ten, in a district where it needed to add population. In the process, it also decreased
the number of split counties. Some of the choices about particular counties are not
suspicious, and neither are some of the precinct splits. But there are also suspicious
split counties and suspicious split precincts. The legislature managed to meet its target
almost exactly, which it would not have accomplished without the precinct splits. And
the Democratic Conference plaintiffs managed to draw a sensibly shaped district with
fewer county splits, two fewer counties overall, and a significantly lower black
population percentage. We find that race predominated in the design of District 23.
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Because we find that race predominated, we must decide whether District 23
survives strict scrutiny. We conclude that the district satisfies strict scrutiny because
the state had a strong basis in evidence to believe that ability to elect for purposes of
the Voting Rights Act required black population percentages of 62 to 65 percent in
this area. The drafters drew a district in that range.
Senator Sanders, the longtime incumbent in District 23, urged the Committee
to maintain at least 62 to 65 percent black majorities in the majority-black districts. He
gave clear testimony with several reasons for his conclusion:
One of many concerns is we are not to have any less AfricanAmerican—the majority African-American districts than you have, and
that those districts ought not be less than 62 percent. And I just want to
say why 62 percent, ought not to be less than 62 percent. Many times a
population of a district is not reflective of the voters at all in that district.
Sometimes a lot of people don’t vote. Sometimes a lot of people can’t
vote. They might be in prison or other kinds of institutions. Sometimes a
lot of folks are discouraged for one reason or another. So I would hope
that 62 percent is a minimal for the majority African-American district.
(Doc. 30-28 at 6). Representative Thomas Jackson, whose House district in the
western Black Belt overlaps with Senate District 23, likewise told the Committee that
the district should be “sixty-two percent or sixty-five percent.” (Doc. 30-23 at 8).
Senator Dial testified that, if he had told the black leadership in the Senate that it
could have no more than 55 percent black population percentage, “Senator Sanders
and my other good friends in the Senate . . . would simply have glazed over and asked
me when I was going to the mental institute.” (Doc. 215 at 44–45). The legislature

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could reasonably treat Senator Sanders and Representative Jackson as informed about
voting patterns in their home districts.
The plaintiffs’ evidence at trial and the testimony of one of their experts in
2000 confirmed what Sanders and Jackson told the Committee. Dr. Joe Reed testified
that a majority-black district needs to be at least 60 percent black to allow minority
voters to elect the candidate of their choice. (Doc. 216 at 159–60). And in 2000, Dr.
Theodore Arrington, an expert witness for the plaintiffs in this litigation, testified that
a 61 percent majority in nearby Dallas County did not guarantee black voters the
ability to elect a candidate of their choice for county commission. (Doc. 203 at 84;
Doc. 217 at 80–81). See Wilson v. Jones, 130 F. Supp. 2d 1315, 1326 (S.D. Ala.) (“Dr.
Arrington’s position [is] that at least a 62% black voting age population was needed to
assure blacks’ an opportunity to elect their choices in a district.”), aff’d sub nom. Wilson
v. Minor, 220 F.3d 1297 (11th Cir. 2000). Although we agree with our dissenting
colleague that the legislature did not use this evidence as its basis for District 23,
(Dissent at 34–35 n.9), it does confirm the reliability of the district-specific evidence
that it did have.
The Supreme Court has explained that “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.” Ala. Legislative Black Caucus, 135 S. Ct. at 1274 (quoting Brief
of the United States as Amicus Curiae 29). A strong basis in evidence consists of “good
reasons to believe such use [of race] is required,” but it need not “actually be necessary
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to achieve a compelling state interest.” Id. (quoting Brief of the United States as
Amicus Curiae 29). If the detailed comments of an influential longtime incumbent in
the district and a consistent statement by the incumbent in an overlapping House
district, provided to the Committee at a hearing for the purpose of gathering input, do
not fit this description, then the burden of proving “good reasons” has been
transformed into a burden of proving actual necessity.
We reject our dissenting colleague’s argument that the comments of Senator
Sanders and Representative Jackson are “exactly the type of stereotyping about black
voting behavior that strict scrutiny is intended to prohibit.” (Dissent at 50). Our
colleague makes this charge repeatedly. (Id. at 8–9, 16–17, 30, 37–39, 50). Although
we agree that strict scrutiny forbids the use of racial stereotypes, it denies reality to
suggest, as the dissent does, that the drafters relied on racial stereotypes instead of
“demographic[]” support, (id. at 50), when they followed the suggestions of Senator
Sanders and Representative Jackson. The drafters relied on these comments, as they
were urged to do, because Sanders and Jackson possessed intimate knowledge of the
concerns of the constituents of District 23.
In their public comments for this redistricting, both Sanders and Jackson, as
members of the Alabama Legislative Black Caucus, complained that the legislature
had failed to listen to their concerns about redistricting in the last cycle. At a public
hearing about redistricting, Representative Jackson protested the drafters’ disregard
for his constituents’ interests during the previous redistricting effort and his hope that
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this time around the drafters would listen to his constituents: “You know, during the
last reapportionment hearing, . . . [y]ou . . . made Montgomery County three different
districts and you brought the school board all the way down to Mobile. We fought
that. And I’m asking today, . . . are we going to be heard?” (Doc. 30-23 at 7). He later
observed, “[n]obody listens too well to us.” (Id. at 8). Similarly, Senator Sanders
voiced his “concerns” that the drafters would not heed the interests of his
constituents and would instead either retrogress or pack his district. (Doc. 30-28 at 6–
7).
As already explained, Senator Dial, one of the Republican leaders of the
redistricting process, testified that he worried that his colleagues would react with
disdain––they “would simply have glazed over”––if he refused to follow their advice
and imposed a lower black population percentage on their districts. (Doc. 215 at 44–
45). But the dissent suggests that the Republican leaders of the reapportionment
hearings should have retorted to Jackson and Sanders: “We appreciate our colleagues’
concern, but your comments are ‘generic and conclusory’; they ‘lack[] precise
recommendations’; and ‘they constitute exactly the type of stereotyping about black
voting behavior that strict scrutiny is intended to prohibit.’” (Dissent at 19, 50).
The dissent’s contention that the drafters were wrong to rely on this evidence
and, worse, that they engaged in pernicious racial discrimination by doing so
highlights the predicament of the drafters. Either the drafters could have adhered to
the suggestions and, under the view of the dissent, engage in racial stereotyping, or the
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drafters could have disregarded these comments and then faced accusation of not
“listen[ing] too well.” (Doc 30-23 at 8).
The dissent faults Senator Sanders in particular for imprecision in his use of
“sometimes,” “could be,” and other figures of speech, (Dissent at 7–8, 19–20, 50), but
Sanders’s testimony was powerful, concise, on point, and given by an expert in the
politics of the Black Belt and Senate District 23. Sanders, a Harvard-educated lawyer,
has served in the Alabama Senate for 34 years; his district includes parts of ten
counties, and has in the past included part of one other; he has had an active trial
practice throughout the region for many years, e.g. Sellers v. Lowndes Cty. Bd. of Educ.,
550 So. 2d 1021, 1021 (Ala. Civ. App. 1989) (listing “Hank Sanders” of the law firm
“Chestnut, Sanders, Sanders, Turner, Williams & Pettaway” as attorney for the
appellee), including in this court; and during his decades of public service, Senator
Sanders has spoken at countless meetings on topics of public concern. (See Doc. 3028). Nor is he a redistricting neophyte. He has participated in redistricting after the
1990, 2000, and now 2010 censuses. E.g., Gustafson v. Johns, 434 F. Supp. 2d 1246,
1251 (S.D. Ala. 2006) (explaining that “Senator Hank Sanders” was a “[d]efendant[i]ntervenor” in an earlier action that challenged a 2001 redistricting plan). As Senator
Dial testified at trial, Senator Sanders is a highly respected senator in the State of
Alabama. (Doc. 215 at 37–38).
The Legislature had strong reasons for relying on Senator Sanders’ testimony.
Senator Sanders had no need for demographic studies to form his political opinions,
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and he did not require exact voting behavior on a precinct level. And we reject the
dissent’s contention that Senator Sanders engaged in racial stereotyping. (Dissent at
8–9, 16–17, 30, 37–39, 50).
The dissent also argues that the public comments are a litigating positon
concocted by Alabama after the fact, (Dissent at 35–36), but the evidence proves
otherwise. Senator Sanders and Representative Jackson gave public statements at an
information-gathering hearing held by the redistricting committee. (See Docs. 30-23,
30-28). Senator Dial testified at trial that he considered Senator Sanders’s opinion:
Q.

Do you remember the hearing in Selma?

A.

Yes.

Q.

Okay. And did Senator Hank Sanders attend that hearing?

A.

Yes.

Q.
Did he at any time give you any instructions about his district or
about African American districts in general?
A.
He did both. I had talked to Senator Sanders. He realized his
district had to grow. . . . So he gave me some instructions on how he
thought his district should grow. He also told me, and it’s public record,
that he felt like that the minority districts should be at a minimum 62
percent minorities.
(Doc. 215 at 37). Senator Dial also testified that he considered Senator Sanders a
credible source: “I’ve worked with Senator Sanders for years. We’ve been together on
issues and opposed on issues, and I consider him a viable member of the Alabama
Senate and basically a spokesman for the minorities in the state of Alabama.” (Id.).

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The defendants rely on this testimony about Senator Sanders’s credibility, and the
plaintiffs fail to rebut it.
Nor are the dissent’s other objections to Senator Sanders’s and Representative
Jackson’s testimony persuasive. The dissent argues that Senator Sanders’s “comments
were not geographically specific,” (Dissent at 29), but Senator Sanders was the
longtime incumbent in District 23––a specific geographic area––and he testified at the
hearing in that capacity. (Doc. 30-28 at 1). Indeed, he made specific geographic
suggestions about his district to the drafters. (Id. at 13). The dissent also asserts that
Senator Sanders and Representative Jackson proposed “imprecise remedies.” (Dissent
at 30). But Jackson’s and Sanders’s comments were specific––they proposed
percentages they thought necessary to prevent retrogression.
The Democratic Conference plaintiffs reply to Alabama’s evidence in several
other ways, all of them unpersuasive. First, they argue that a bizarrely shaped district
cannot be narrowly tailored, (Doc. 272 at 28–29), but District 23 is not bizarrely
shaped. Second, they argue that Alabama is estopped from arguing for a higher black
population percentage than it argued for in 2001. (Doc. 272 at 30). But with time
comes new data, including recent election trends of which the two incumbents in this
area would be aware. Third, the Democratic Conference plaintiffs offer evidence that
a lower black population percentage would have been sufficient. (Id. at 30–31). But
this evidence fails to prove that the legislature lacked a strong basis in evidence in the
form of Senator Sanders’s testimony, and it instead proves only that the plaintiffs may
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have had a strong basis in evidence for a different percentage. The plaintiffs assert
that we credited Alan Lichtman’s testimony that a bare majority provides a sufficient
ability to elect, (Id. at 38; Doc. 287 at 19–20), but we actually discredited Lichtman’s
methodology:
[W]e do not credit Lichtman’s opinion that race is the motivating factor
for this voting pattern in Alabama. Lichtman did not conduct any
statistical analysis to determine whether factors other than race were
responsible for the voting patterns. He did not consider affluence,
strength of a political campaign, or party loyalty. Instead, he asserted
repeatedly that the resulting voter patterns were similar, which suggests
that race is the motivating factor. Lichtman also did not conduct any
analysis of Democratic primaries between black and white candidates,
which might have offered further evidence about whether white voters
are more likely to support white Democrats and black voters are more
likely to support black Democrats.
(Doc. 203 at 78–79 (citations omitted)). The plaintiffs still have not provided evidence
of this sort. They rely heavily on the number of uncontested elections, but that fact
does not prove anything about contested elections. Fifth, they point to the testimony
of other legislators proposing different percentages, (Doc. 272 at 38), but that
legislators from other areas wanted lower percentages does not disturb the strong
basis in evidence provided by the comments of two incumbents from the area.
The Democratic Conference plaintiffs also mount new attacks in their briefs
explaining Plan A. They observe that both Sanders and Jackson, near the end of the
special session, voted for plans with lower black population percentages. (Doc. 301 at
19). But legislators may vote for a bill for varied reasons, and those choices alone do
not impeach the legislators’ earlier comments to the Committee. The fact remains that
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the legislature had these public statements from the influential incumbent of the
district and from the incumbent of an overlapping house district, and there is
evidence that they relied on that testimony. The Democratic Conference plaintiffs
also argue that the Committee ignored other public comments, (Doc. 301 at 19), but it
would be impossible to heed every comment.
In addition, the dissent argues that Senator Sanders submitted a map that did
not comply with his own advice and that our dismissal of his alternative plan is our
attempt to bolster his credibility. (Dissent at 32–34). But the dissent misunderstands
our analysis. The question is not whether we choose to credit Senator Sanders’s
comments at the public hearing over his alternative plans, but whether the legislature
was justified in making that choice. After the legislature chose to gather input about
its redistricting effort through public hearings, the legislature was entitled to rely on
testimony from those hearings.
Nor are the district court decisions cited by the dissent dispositive here. In Page
v. Va. State Bd. of Elections, No. 3:13-CV-678, 2015 WL 3604029 (E.D. Va. June 5,
2015), the district court struck down a redistricting plan that employed a racial target
because the drafters presented no supporting evidence that the target was necessary to
comply with the Voting Rights Act. Id. at *18. And in Smith v. Beasley, 946 F. Supp.
1174 (D.S.C. 1996), the court invalidated a similar redistricting plan that employed a
racial target without supporting evidence. Id. at 1210. By contrast, the testimony of the

129

longtime incumbent of Senate District 23 provided a strong basis in evidence for the
choices of the drafters.
Finally, the Black Caucus plaintiffs argue that Alabama should not be allowed
to offer new arguments about strict scrutiny, (Doc. 271 at 27–28) but Sanders’s and
Jackson’s testimony is not new. It was in the trial record, and we cited it in our
previous final opinion. (Doc. 203 at 27–28). Even if it were a new argument, Alabama
should be allowed to make new arguments on remand to defend against a new
challenge brought on remand. We will not enjoin the use of Senate District 23.
c.

Senate District 24 (West Black Belt)

Although it is another close call, we find that race did not predominate in the
design of Senate District 24. The plaintiffs drew an alternative plan with one fewer
county, but we cannot say that this map—or any other evidence submitted by the
plaintiffs—proves that race predominated in the assignment of a significant number
of residents. The plaintiffs have failed to prove that the shape of the district, the black
population percentage, the precinct splits, the choices of which counties to include,
the choices about how to split counties, or the choice to include Clarke County were
the result of race predominating over traditional districting criteria.
District 24 was underpopulated in 2012 and constrained by Mississippi to the
west and District 23, also underpopulated, to the east. (Doc. 1 at 10). These
constraints explain why the drafters had to move 70,988 people to repopulate this
district. Hinaman “took it down further into Choctaw [County] and Clark[e]
130

[County]” to the south and into Pickens County to the north. (Doc. 217 at 123). He
also added a “little bit more” population in the Tuscaloosa area. (Id.)
We cannot say that the shape of District 24 is so bizarre that it is proof that
race predominated. The borders of District 24 are no less regular or compact than
they were in 2001:
2001 District Lines

2012 District Lines

(Ala. Reapportionment Office, supra).
Nor are they any more unusual than the alternatives proposed by the plaintiffs.
The southern border of the Democratic Conference plaintiffs’ district is no less
irregular than the southern border in Act 603, and the Democratic Conference
plaintiffs’ district appears no more compact.

131

Senate District 24 in Democratic Conference Plan A and Act 602

(Doc. 287-24 at 2). The shape of the 1% Plan district is actually more irregular and
less compact. The following map shows the alternative district in light blue:
Senate District 24 in Black Caucus 1% Plan and Act 603

(APSX 538).

132

Looking at the district as a whole, the black population percentage is not
suspicious. The enacted district had a total black population percentage of 63.22
percent, (Doc. 30-39 at 2), just meeting its purported target of 62.78 percent, (Doc.
30-41 at 1). Plan A and the 1% Plan had slightly lower percentages of 59.3 and 57.31
percent, respectively. (Doc. 287-2 at 1; APSX 470). These percentages are not
different enough to be strong evidence of racial predominance.
The dissent argues that the black population percentage combined with the
testimony of Senator Dial and Senator Keahey provides direct evidence that the state
“intended” for race to predominate in the drafting of District 24, (Dissent at 131–32,
137–38), but the testimony is at best equivocal. Senator Dial testified at trial that
District 24 “had to grow” because of massive underpopulation in the Black Belt
districts. (Doc. 215 at 48). The dissent also plucks Dial’s testimony that District 24
“had to have more minorities” from the record, (id.), but this testimony is not direct
evidence of racial predominance. All the statement suggests is that Dial considered
race in the drafting of the district, which is permitted.
Senator Keahey’s testimony supports this view. At trial, Keahey testified that
Dial would consider amendments to the proposed districts if the affected senators
were “in support of” the amendment, and the amendment did not retrogress
“minority districts.” (Id. at 192). When asked what he thought Dial meant by
retrogression, Keahey responded that it meant that the enacted plan should “not
dilute the minority population.” (Id.). Keahey then clarified his answer that Dial
133

thought preventing retrogression meant precluding a reduction in the population of
black voters. (Id.). At most this evidence shows that the drafters considered race
among other factors––which is permitted––not that race was the predominant factor
in the drafting of Senate District 24.
Both alternative plans improve on the enacted district by reducing the number
of counties from eight to seven and the number of split counties from six to two,
(Doc. 300-1 at 95–96), but this improvement is insufficient on its own. District 24 has
the same number of counties (eight) and the same number of split counties (six) in
both the 2001 and 2012 plans. (Doc. 30-40 at 8–9; Doc. 30-44 at 12). And a difference
of one county is not suspicious by itself, especially in a district that even the plaintiffs
concede should have seven counties. Moreover, it was sensible to take population
from overpopulated District 22 in Clarke County, as the enacted plan does, instead of
severely underpopulated District 23 in Marengo and Hale Counties, as the alternative
plans do. (Doc. 1 at 10).
Several counties remain exactly or generally the same. Sumter and Greene
Counties stayed whole, and Tuscaloosa County kept its hook. The Democratic
Conference plaintiffs’ own map establishes that the extension into Tuscaloosa County
brought in—and failed to include—both white and black areas.

134

Close-Up of Senate District 24 in Act 603 with Black Population Percentages

(ADC Supp. Ex. 38E.) And the black population percentage of the Tuscaloosa
County portion of the district is almost identical to what it was in the 2001 plan: it
changed from 58.9 percent black to 60.9 percent black. (Def. Ex. 408 at 708; Doc. 3040 at 9). The plaintiffs made much of this “contorted, bizarrely-shaped hook,” (Doc.
258 at 35), until they included a hook in their own plans. Forced to defend that
choice, the Democratic Conference plaintiffs’ expert testified that he could “look at
[the hook] as a core of [the] district.” (Doc. 296-7 at 136). The plaintiffs also informed
us that the hook “has been a fixture since at least . . . 1983.” (Doc. 287 at 17). We
agree that the hook is not suspicious, and the portions of District 24 in Tuscaloosa,
Greene, and Sumter counties provide no evidence that race predominated.
Several other counties in District 24 saw changes. The drafters added a portion
of Pickens County along the western border of the state, extended the district in the

135

northeastern part of Hale County, smoothed out the existing line down the middle of
Marengo County, pushed the district slightly into Clarke County, and stretched the
district farther south in Choctaw County. We discuss these counties one by one.
We find no evidence in Pickens County that race predominated. The
Democratic Conference plaintiffs included all of Pickens County, and the Black
Caucus plaintiffs failed to articulate a reason why they did not enter the county, so we
find that entering Pickens County does not prove that race predominated. The
plaintiffs and the dissent also have failed to prove that the decision to split Pickens
County instead of keeping it whole was the result of race predominating over
traditional criteria. Act 603 put a 74 percent black population in the district from a
county that was only 42 percent black, (Def. Ex. 475; Doc. 263 at 85), but the shape
sensibly anchors to the western border of the state and has a relatively smooth line to
the border with Greene County. And, while we agree with our dissenting colleague
that Senator Dial and the drafters considered race when they drafted District 24,
(Dissent at 133–34), the Supreme Court permits the consideration of race.
Act 603 split one precinct in Pickens County, Carrollton 4 Service Center, and
we find that race did not predominate. The split put 770 people in District 24, 78
percent of whom were black, and 889 people in District 21, 28 percent of whom
were black. (Def. Ex. 475). But the split made the district line more regular, and it
placed majority-black blocks along the border in majority-white District 22 and
majority-white blocks along the border in District 24.
136

Carrollton 4 Service Center Precinct in Act 603

(APSX 360). As best we can tell, any racial disparity is the result of demographics.
The split of Marengo County also provides no evidence that race
predominated. The drafters preserved the core of the district by drawing a line in
roughly the same place through the middle of the county. They also placed a lower
black population percentage into the district than the county had as a whole, 50
percent to 52 percent. (Def. Ex. 475; Doc. 263). If the legislature had made Marengo
County whole, as both plaintiffs did, it would have raised the black population
percentage. And the only split precinct in Marengo County, Cornerstone Church, is
137

split with District 23, another majority-black district. The plaintiffs do not explain
how this split with a majority-black district along smooth lines proves that race
predominated.
Cornerstone Church Precinct in Act 603

(APSX 337).
We find no evidence in the split of Clarke County that race predominated.
Neither plaintiff included Clarke County in their alternative districts, and District 24
did not include Clarke County in 2001. The split placed a 61 percent black population
in the district, higher than the 44 percent black population in the county as a whole.
(Def. Ex. 475; Doc. 263 at 85). Traditional districting criteria might dictate taking new

138

territory in counties that the district would have included anyway, but it seems equally
consistent with traditional districting criteria to take population from overpopulated
District 22 in Clarke County instead of underpopulated District 23 in Marengo or
Hale Counties, as both plaintiffs did. (Doc. 1 at 10). In addition, the line in the
enacted plan is not particularly suspicious and splits only three precincts with
majority-white District 22, none of which proves that race predominated. In the Bashi
Methodist Church and Thomasville National Guard Armory precincts, the drafters
dealt with irregularly shaped precincts. They pushed south into both precincts to
reach a large cluster of majority-black blocks and stopped before reaching majoritywhite blocks.

139

Bashi Methodist Church and Thomasville National Guard Precincts in Act 603

(APSX 293). But with this split, the district picked up the core of Thomasville,
respecting the traditional districting principle about communities of interest. The
following map from the Census Bureau, of which we take judicial notice, shows the
boundary of District 24 with a purple line and Thomasville in tan, with streets as gray
lines and highways as yellow lines:

140

City of Thomasville in Act 603

(U.S. Census Bureau, State Legislative District Reference Map: State Senate District 24
(Alabama), http://www2.census.gov/geo/maps/dc10map/SLD_RefMap/upper/
st01_al/sldu01024/DC10SLDU01024_006.pdf). The third split, of Fulton City
precinct, sensibly placed populated areas in the northeastern part of the precinct with
adjacent populated areas in District 24 instead of zero-population and sparsely
populated areas in District 22. The line also smoothed out the irregular shape of the
precinct.

141

Fulton City Precinct in Act 603

(APSX 294).
In Choctaw County, we find insufficient evidence that race predominated. The
drafters preserved the core of the district in Choctaw County. They added territory
along the Mississippi border and the southern county line, presumably to repopulate
the district. Both plaintiffs also included Choctaw County in the district, so the choice
to include it was not suspicious. The Democratic Conference plaintiffs also split the
county. The line that the drafters used, although different from the line in Plan A, is
not suspicious. The drafters included only a moderately higher percentage of black
142

population from Choctaw County than the county had overall, 54 percent to 44
percent, (Def. Ex. 475; Doc. 263 at 85), and the Democratic Conference plaintiffs
actually put a higher percentage of black population, 63 percent, in the district. (Doc.
297-4 at 7).
The drafters split seven precincts in Choctaw County, but we do not find a
racial pattern in five of the splits. First, in Bogueloosa precinct, the most irregular part
of the split is between majority-white blocks, and the drafters placed two majorityblack blocks in District 22 that they could have placed in District 24:
Bogueloosa Precinct in Act 603

143

(APSX 287). Second, the split of Branch–Bladon Springs–Cullomburg precinct placed
a significantly higher percentage of black population in District 24 than District 22,
but it does not snake around looking for black population and removed only 53
people from the precinct. (Def. Ex. 475).
Branch–Bladon Springs–Cullomburg Precinct in Act 603

(APSX 288). Third, the split of Butler–Lacava–Mt. Sterling Voting District precinct
smoothed out an irregularity in the shape of the precinct.

144

Butler–Lacava–Mt. Sterling Voting District in Act 603

(APSX 289). The Democratic Conference plaintiffs also split this precinct and put a
similar percentage of black population in the district (39 percent) as the legislature did
(37 percent). (Def. Ex. 475; Doc. 296-6 at 1). Fourth, we find no racial pattern in the
split of Silas-Souwilpa-Isney-Toomey Voting District because the split left several
majority-white blocks along the border:

145

Silas-Souwilpa-Isney-Toomey Voting District

(APSX 291). Fifth, the split of Riderwood–Rock Springs precinct managed to place 43
people in District 24, none of them black. (Def. Ex. 475). But the Democratic
Conference plaintiffs also split this precinct and put a higher percentage of black
population in the district (62 percent) than the legislature did (49 percent). (Id.; Doc.
296-6 at 1). As the following map illustrates, the legislature left several majority-white
blocks along the border:

146

Riderwood–Rock Springs Precinct in Act 603

(APSX 290). The record does not establish that race predominated in the split of this
precinct.
There are two mildly suspicious split precincts in Choctaw County, but they do
not provide meaningful evidence that race predominated. First, the split of Lusk–
Pleasant Valley–Ararat Voting District is suspicious because it put only majority-black
blocks and zero-population blocks in District 24 using an irregular shape, but the split
put only 55 people in the district. (Def. Ex. 475).

147

Lusk–Pleasant Valley–Ararat Voting District in Act 603

(APSX 289). Second, the split of Toxey-Gilbertown-Melvin-Hurricane Voting District
extended District 24 into majority-white areas and placed 34 people from three
majority-black blocks in the district:

148

Toxey-Gilbertown-Melvin-Hurricane Voting District in Act 603

(APSX 292). We cannot draw any strong inferences from this mixed pattern.
We find at most slight evidence in Hale County that race predominated. The
drafters reduced the concavity of the split, and they preserved the bulk of the district
in this county. The black population percentage from Hale County in District 24 (67
percent) is only slightly higher than the percentage in the county overall (59 percent).
(Def. Ex. 475; Doc. 263 at 85). The line is sensible in overall shape, and it split only
three precincts, all of them sparsely populated. First, the drafters split the irregularly
shaped Havanna A precinct along a straight line.
149

Havanna A Precinct in Act 603

(APSX 306). The split put 122 people in District 24, 43 percent of them black, and 53
people in District 14, 11 percent of them black. (Def. Ex. 475). Second, they split
Valley B precinct in a way that may have sorted residents by race.

150

Valley B Precinct in Act 603

(APSX 307). But this precinct is also sparsely populated: the split put 58 people in
District 24, 59 percent of them black, and 36 people in District 14, 19 percent of them
black. (Def. Ex. 475). Third, the drafters split the sparsely populated Valley C
precinct.

151

Valley C Precinct in Act 603

(APSX 308). The split put only 22 people in District 24, 64 percent of them black, and
only 57 people in District 14, 23 percent of them black. In all, the precinct splits
added 202 people to a district with 137,724 people, or 0.15 percent of the population.
(Def. Ex. 475).
There is also one county, Washington, that the Black Caucus plaintiffs added
and the legislature did not. But the Black Caucus plaintiffs did not explain why this
choice was required by traditional districting criteria, and no reason is apparent to us
from the record.
152

The Black Caucus plaintiffs make one other argument on remand, that a desire
to maintain racial targets in Senate District 24 led Senator Dial to “drastically” change
Senate District 22, Senate District 1, and other districts. (Doc. 256 at 155). But the
plaintiffs have not challenged those districts, and a plaintiff has standing to challenge
only his own district as a racial gerrymander. See Hays, 515 U.S. 737; Sinkfield, 531 U.S.
28. Senator Dial testified that the need to repopulate Senate Districts 23 and 24 had
effects on other districts, (Doc. 215 at 45–46, 48–50), but the Black Caucus plaintiffs
do not explain how these changes prove that race predominated over traditional
districting criteria in the challenged districts. Further, both districts needed to gain
population by growing and that growth would have affected other districts in any
plan.
We have weighed the evidence and arguments presented by the plaintiffs.
Everything except four precinct splits is clearly consistent with traditional districting
criteria, and we cannot say that race predominated even if we give the benefit of the
doubt to the plaintiffs on all four ambiguous splits. The splits—Lusk–Pleasant
Valley–Ararat Voting District, Toxey-Gilbertown-Melvin-Hurricane Voting District,
Valley B, and Valley C—assign only 433 black people to District 24, which is less than
half a percent of the total population of the district. If we unsplit these four according
to our method that assigns the entire precinct to the district that took the majority of
it, the black population would decrease by only 0.17 percent and still meet the
purported target. If we remove all four precincts entirely, the black population
153

percentage increases by only 0.11 percent. Based on the totality of the evidence, we
find that race did not predominate in the design of District 24.
d.

Senate District 26 (Montgomery)

The Supreme Court expressed particular concern about Senate District 26. See
Ala. Legislative Black Caucus, 135 S. Ct. at 1271. The overall shape of the district does
not establish that race predominated, but the exhibits submitted on remand make
clear that a significant number of people were assigned on the basis of race in five of
the split precincts. Based on these new exhibits, we find that race predominated in the
design of this district. Because the district also fails strict scrutiny, we must enjoin its
use in future elections.
District 26 was underpopulated by 11.64 percent in 2010, (Doc. 1 at 10), so
Hinaman removed the large, rural portion of southern Montgomery County from
District 26 and added more population from the city of Montgomery. (Doc. 217 at
129–30). The following map shows District 26 in the center in green and District 30
to the north and west in gray:

154

2001 District Lines

2012 District Lines

(Ala. Reapportionment Office, supra).
The removal of the large rural portion made sense for two reasons. First,
Senate District 25 needed a land bridge to Crenshaw County to fix Senate District 30.
(Doc. 217 at 129–30). Second, District 26 is primarily an urban district, and
communities of interest were better served by making a more compact, urban district.
The Democratic Conference plaintiffs also drew a district centered on the city
of Montgomery and wholly contained within Montgomery County. Fairfax defended
this choice at his deposition:
Q:

Okay. So you’ve got no problem with the small, compact Senate
District 26 focusing around the city limits and having Senate
District 25 take the rural areas of Montgomery County and going
into other counties to make up whatever—to grab the population
it needs?

A:

Correct. Whole counties, yes.

Q:

That concept makes sense to you.

A:

It is. It’s logical. Not necessarily in every case, but in this case, it
made sense.

155

(Doc. 296-7 at 97).
But the Democratic Conference plaintiffs made two different choices. First,
they removed outlying precincts along the southern half of the district and filled in the
“lagoon” in the eastern part of the district. Second, they split the “crab claw” precinct
in the southern part of the district, which has been the subject of much attention in
this litigation.
Senate District 26 in Conference Plan A and Act 603

.
(Doc. 287-24 at 3). Fairfax conceded that splitting the crab claw was not required by
traditional districting criteria:
Q:

So what makes you a better decider of which one you do than the
Legislature?

A:

I don’t necessarily believe that I’m a better judgment [sic] for that.
I made the judgment at that time that I thought was best.

156

Q:

Okay. If someone made a different judgment that says I would
rather have a whole precinct even if it’s slightly irregular, that’s
not always a wrong choice; correct?

A:

That could be done, definitely.

(Doc. 296-7 at 100–01).
The Black Caucus plaintiffs drew a very different district, straddling three
counties and pairing part of the city of Montgomery with rural counties. The
following map shows the 1% Plan district shaded in light purple:
Senate District 26 in Black Caucus 1% Plan and Act 603

(APSX 539). We do not give any weight to this alternative district because Cooper
admitted to splitting counties and choosing population on the basis of race. (Doc.
297-1 at 128–29).

157

The shape of District 26 in Act 603 does not establish that race predominated.
The Supreme Court questioned the change “from rectangular to irregular,” Ala.
Legislative Black Caucus, 135 S. Ct. at 1271, but the current district is more compact
than the previous one and centers more on the city of Montgomery. The district
includes 136,451 people, 96 percent of whom live in the city of Montgomery, (Def.
Supp. Ex. 6), up from 86 percent under the previous lines, (Doc. 30-44 at 38).
Concentrating the district within city lines was a reasonable decision that furthered a
traditional districting criterion. See Bush, 517 U.S. at 963.
We have no concerns about either the claw or the lagoon. The supplemental
exhibits proved that the incumbent lives in the claw, (Def. Supp. Ex. 5), and the claw
follows precinct lines, (APSX 539). The lagoon is roughly similar to the same area
under the 2001 plan:
2001 District Lines

2012 District Lines

(Ala. Reapportionment Office, supra). As the supplemental exhibits proved on
remand, District 3 of the Montgomery County Commission roughly matches the
lagoon. (Def. Supp. Exs. 12–15). The following map shows District 26 shaded in
green and the county commission districts enclosed by blue lines:

158

Senate District 26 and Montgomery County Commission Districts

(Def. Supp. Ex. 13). Because more than one session of the Alabama Legislature and
more than one state entity have considered this area to be a community of interest,
the shape of the lagoon does not help the plaintiffs prove that race predominated in
the design of District 26.
We also reject the plaintiffs’ arguments about the land bridge to District 30.
The plaintiffs assert that the drafters should have added Crenshaw County to District
26, (Doc. 258 at 37–38), but they provide no race-neutral reason for doing so, never
explain how to solve the ensuing underpopulation of District 25, and do not follow
their own advice in Plan A or the 1% Plan. (Doc. 287-22; APSX 539). The
Democratic Conference plaintiffs further argue that the drafters did not consider

159

District 25 when they drew District 26 because they “redrew the black majority
districts first,” (Doc. 272 at 58), but there is no evidence that the drafters drew the
majority-black districts while ignoring the rest of the districts. Hinaman was aware of
the other districts even as he began with the majority-black districts.
We also do not consider the black population percentage in this district
suspicious. The percentage increased by less than 3 points, from 72.69 to 75.13
percent black. (Doc. 263-2). The earlier alternative plans, Sanders and Reed-Buskey,
had very high black population percentages, but the plans on remand had significantly
lower percentages.
2010 Census Total Black Population Percentages in Senate District 26 Across
Alternative Plans
2010 Pop.
Under
2001 Lines
(Doc. 2632)

Enacted
Plan
(Doc.
263-2)

Sanders
Plan
(Comm
on Ex.
47)

ReedBuskey
Plan
(Common
Ex. 48)

New Black
Caucus
Plan
(APSX 27)

Black
Caucus
1% Plan
(APSX
470)

Democratic
Conference
Plan A
Doc. 287-2)

72.69

75.13

71.28

68.44

56.91

57.59

60.7

The fact that District 26 could have a lower black population percentage does not
convince us that the actual percentage is suspicious, especially because some of the
alternative plans had similarly high percentages of black population.
Nor does the argument made by the Democratic Conference plaintiffs that
their alternative district better matches the black population percentage of the city of
Montgomery, 56 percent, persuade us. (Doc. 287 at 18). The city of Montgomery is

160

too large for a single district. Because the state needed to split Montgomery, the
plaintiffs must explain how the enacted district splits the city in a way that does not
respect smaller communities of interest within the city. They have not done so.
Finally, we are not persuaded by the plaintiffs’ argument about racial
predominance that the net population added to District 26 included 14,806 black
people but only 36 white people. (See, e.g., Doc. 256 at 172). The net population
statistic that the plaintiffs cite is misleading. And the Supreme Court may have been
misled when it stated, “Alabama’s plan added 15,785 new individuals, and only 36 of
those newly added individuals were white.” Ala. Black Legislative Caucus v. Alabama, 135
S. Ct. 1257, 1263 (2015). The Court later repeated that misleading statistic. Id. at 1271
(explaining that the addition of “just 36” white people to District 26 is “a remarkable
feat given the local demographics.”). This representation of the evidence gives the
false impression that the Alabama legislature sought out 15,739 black individuals and
36 white individuals to add to the existing population of District 26.
The evidence before us establishes that 11,966 white people and 6,858 black
people were removed from Senate District 26; 12,002 white people (not a mere 36)
and 21,664 black people were added to the district. Afterward, 14,613 white
individuals and 80,856 black individuals remained in the district. In the end, a net total
of 52,490 people, black and white, were moved into and out of District 26. 36 white
individuals were added to District 26. In other words, post-redistricting, District 26
had 36 more white people than it had before redistricting. To us, that a large number
161

of individuals––white and black––were swept in and out of the district is the
significant fact, not that District 26 had a net gain of 36 white people. Although we
find that race predominated in the drafting of District 26, and that it fails strict
scrutiny, our conclusion does not follow from the supposed “remarkable feat” of the
drafters.
But the supplemental exhibits on the precinct splits provide persuasive
evidence that race predominated in District 26. Two of the precinct splits are not
suspicious. In 3F Goodwyn Community Center Voting District, the drafters split the
precinct along U.S. Route 231 and an unpopulated area. This choice respects
traditional districting criteria by following a major road and keeping populated areas
together. (See Doc. 217 at 184 (testimony of Hinaman explaining that precinct lines
“don’t necessarily follow roads and boundaries”)).

162

3F Goodwyn Community Center Voting District

(APSX 357).

163

Census Bureau Map in the Vicinity of 3F Goodwyn Community Center Voting
District

(U.S. Census Bureau, State Legislative District Reference Map: State Senate District 26,
(Alabama), http://www2.census.gov/geo/maps/dc10map/SLD_RefMap/upper/
st01_al/sldu01026/DC10SLDU01026_001.pdf). In 5M Bell Road YMCA Voting
District, the split follows County Road 43, another choice that respects traditional
districting criteria.

164

5M Bell Road YMCA Voting District Precinct in Act 603

County Road 43

(APSX 359).

165

Census Bureau Map in the Vicinity of County Road 43

(U.S. Census Bureau, TigerWEB, http://tigerweb.geo.census.gov/tigerweb/).
The other five splits are statistically and visually suspicious. None of these five
precincts were in District 26 under the 2001 line. (Def. Ex. 409 at 742–43). In Act
603, all five are split with District 25, which is 22.82 percent black. (Doc. 263-2 at 2).
The following map shows District 26 in green, District 25 in purple, and precinct lines
in blue:

166

Senate District 26 in Act 603

3G
Alcazar
Shrine
Temple
1A Cloverdale
C.C.

1B Vaughn
Park Ch. of
1D Christ
Whitfield
Mem’l
UMC

1C Montg.
Museum of
Fine Arts

(Def. Supp. Ex. 59 (precinct labels added by the Court)). The splits tend to put a
higher percentage of black people in District 26 than District 25, with the effect of
increasing the black population percentage in District 26 and keeping the black
population percentage in District 25 below 25 percent. As drawn, District 26 is 75.13
percent black. (Doc. 263-2 at 2). If we unsplit the precincts using our method, the
black population percentage in District 26 drops to 72.05 percent. If we put all of the
suspicious precincts entirely in District 25, the black population percentage in District

167

26 drops to 71.19 percent. And if we put all of the suspicious precincts entirely in
District 26, the black population percentage in District 26 drops to 69.47 percent.
We discuss each split in turn. First, the legislature pushed District 26 into two
corners of 1A Cloverdale Community Center Voting District precinct. In the
southwest corner, the district took only majority-black blocks in stepwise fashion and
left no accessible majority-black blocks in District 25. In the north, District 26
absorbed several majority-white blocks in an irregular shape, but it left behind no
adjacent majority-black blocks.
1A Cloverdale Community Center Voting District Precinct in Act 603

168

(APSX 353). The split placed 1,011 people in District 26, 68 percent of them black,
and 6,739 people in District 25, only 16 percent of them black. (Def. Ex. 475).
Second, District 26 absorbed two parts of 1B Vaughn Park Church of Christ
precinct, both parts comprised of mostly majority-black blocks. In the northwest, the
district could have reached more majority-black blocks, but did not do so. In the east,
the split left behind no majority-black blocks.
1B Vaughn Park Church of Christ Voting District Precinct in Act 603

(APSX 354). The split put 5,976 people in District 26, 56 percent of them black, and
3,895 people in District 25, only 25 percent of them black. (Def. Ex. 475).

169

Third, the legislature pushed District 26 into 1C Montgomery Museum of Fine
Arts Voting District precinct to reach a cluster of majority-black blocks. Along most
of the border, it stopped before reaching majority-white blocks. In one area, it left
behind accessible majority-black blocks.
1C Montgomery Museum of Fine Arts Voting District Precinct in Act 603

(APSX 355). But again, the racial pattern is clear: the split put 3,829 people in District
26, 69 percent of them black, and 3,599 people in District 25, only 37 percent of them
black. (Def. Ex. 475).
The same is true of 1D Whitfield Memorial United Methodist Church. The
drafters reached almost all of the majority-black blocks in the precinct, although they

170

excluded some accessible majority-black blocks and included some majority-white
blocks that they could have left behind.
1D Whitfield Memorial United Methodist Church Precinct in Act 603

(APSX 356). The split put 4,564 people in District 26, 67 percent of them black, and
1,781 people in District 25, only 18 percent of them black. (Def. Ex. 475).
Fifth, in 3G Alcazar Shrine Temple Voting District precinct, the legislature put
populous majority-black blocks and no majority-white blocks in District 26, although
they again left behind an accessible majority-black block.

171

3G Alcazar Shrine Temple Voting District Precinct in Act 603

(APSX 358). The split put 2,203 people in District 26, 80 percent of them black, and
1,411 people in District 25, only 43 percent of them black. (Def. Ex. 475).
These five splits put 17,583 people in District 26, 58 percent of them black.
(Id.). In contrast, the splits put 17,425 people in District 25, 25 percent of them black.
(Id.). On the basis of the evidence about these five precinct splits, we find that race
predominated in the design of Senate District 26.
We further conclude that District 26 does not survive strict scrutiny. Alabama
makes no arguments about strict scrutiny that are specific to this district. It cannot
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rely on the testimony of Sanders and Jackson in this district because District 26 has a
black population percentage above 65 percent. Based on the expanded record on
remand, we must enjoin the use of Senate District 26 in future elections.
e.

Senate District 28 (East Black Belt)

We find that race predominated over traditional districting criteria in the design
of Senate District 28, which was underpopulated by 3.8 percent in 2010. (Doc. 1 at
11). The district contains all or part of seven counties (Barbour, Bullock, Henry,
Houston, Lee, Macon, and Russell), and the black population percentage rose over
eight points in the enacted plan to 59.83 percent. (Doc. 30-41 at 2; Doc. 30-39 at 3).
The biggest changes to the district were the addition of a claw that reaches into
Houston County to take in population from the city of Dothan and several
protrusions into Lee County on the northern border of the district:

173

2001 District Lines

2012 District Lines

(Alabama Policymaker’s Dashboard, supra).
Democratic Conference Plan A drew a majority-black district, (Doc. 287-2 at
1), with a slightly less irregular protrusion into Houston County and no protrusion
into Lee County.

174

Senate District 28 in Democratic Conference Plan A and Act 603

(Doc. 287-24 at 3). The Black Caucus 1% Plan drew a plurality-black district with no
protrusion into Houston County and a slightly less irregular protrusion into Lee
County.
Senate District 28 in Black Caucus 1% Plan and Act 603

175

(APSX 540).
The drafters far exceeded any target of preserving a black population of 51.05
percent, (Doc. 263-3 at 2), but the expansion of the borders splits precincts in a racedriven fashion. We find it suspicious that the black population percentage increased
by eight points as a result of redistricting. Neither Democratic Conference Plan A
(51.7 percent black) nor the Black Caucus 1% Plan (50.98 percent black) had a
similarly high percentage, so it is not obvious that this percentage was unavoidable.
(Doc. 296-1 at 4).
The addition of population in Dothan had the effect of combining significant
urban population with otherwise mostly rural population. In 2001, six percent of the
population of the district lived in areas classified by the Census Bureau as urbanized
areas. (Doc. 30-44 at 39–40; U.S. Census Bureau, Alphabetically Sorted List of UAs,
http://www2.census.gov/geo/docs/reference/ua/ua2k.txt). Although we would
prefer to use data on urban and rural population in 2010 under the old district lines,
the parties did not provide us with that information. Under the plans enacted in 2012,
18 percent of the population lived in an urbanized area. (Def. Supp. Ex. 6; U.S.
Census Bureau, A National, State-Sorted List of All 2010 Urbanized Areas for the U.S.,
Puerto Rico, and Island Areas First Sorted by State FIPS Code, Then Sorted by UACE Code,
http://www2.census.gov/geo/docs/reference/ua/ua_st_list_ua.txt). Dothan
accounted for less than one percent of the district in 2001, but it accounted for 16
percent of the district under the currently enacted plan, and 70 percent of the
176

population included from Dothan in the enacted plan is black. This split also breaks
the community of interest in Dothan. We do not base our finding of racial
predominance solely on this change in the character of the district, but we observe
that it is suspect.
This suspicion is confirmed by the individual precinct splits. The expansion
into Dothan manages to grab almost every majority-black census block in the split
precincts, while avoiding almost every majority-white block. In Doug Tew
Community Center precinct, the drafters split the precinct along irregular lines,
putting all but two majority-black blocks in District 28.

177

Doug Tew Community Center Precinct in Act 603

(APSX 309). The resulting split put 3,196 people in District 28, 51 percent of them
black, and 4,526 people in District 29, 15 percent of them black. (Def. Ex. 475). In
Farm Center precinct, the drafters split the precinct along irregular lines, again putting
almost every majority-black block in District 28.

178

Farm Center Precinct in Act 603

(APSX 310). The resulting split put 927 people in District 28, 72 percent of them
black, and 5,133 people in District 29, 25 percent of them black. (Def. Ex. 475). The
drafters split the Library precinct with irregular lines that put almost all of the
majority-black blocks in District 28.

179

Library Precinct in Act 603

(APSX 313). The split put 3,330 people into District 28, 78 percent of them black,
and 4,716 people in District 29, 12 percent of them black. (Def. Ex. 475). In Lincoln
Community Center, the drafters put all but one of the majority-black blocks in
District 28.

180

Lincoln Community Center Precinct in Act 603

(APSX 314). The split put 1,253 people in District 28, 82 percent of whom were
black, and 861 people in District 29, 15 percent of whom were black. (Def. Ex. 475).
Other splits in Dothan County are less clearly racial. The split of Johnson
Homes put 4,762 people in District 28, 92 percent of whom were black, and 215
people in District 29, 20 percent of whom were black. (Id.).

181

Johnson Homes Precinct in Act 603

(APSX 311). But the Democratic Conference plaintiffs split the precinct with a
population that was 90 percent black in District 28 and a population that was 29
percent black in District 29, suggesting that such a split is unavoidable. (Doc. 296-6 at
1). The split of Kinsey precinct in the enacted plan put all of the majority-black blocks
in District 28.

182

Kinsey Precinct in Act 603

(APSX 312). But it also put majority-white blocks in District 28 that were not
necessary to reach the majority-black blocks, (id.), and the Democratic Conference
plaintiffs likewise split the precinct in a way that put a higher black population
percentage in District 28 than in District 29, (Doc. 296-6 at 1). We cannot draw many
conclusions from Vaughn Blumberg Center precinct, in which the drafters used
straight lines with two irregularities to put all of the majority-black blocks in District
28. The irregularity in the west keeps populated areas together, but the irregularity in
the south appears to be race-based.

183

Vaughn Blumberg Center Precinct in Act 603

(APSX 315). And in Wiregrass Park precinct, the drafters used irregular lines that
included most of the majority-black blocks, but also some majority-white blocks that
were unnecessary to reach majority-black blocks.

184

Wiregrass Park Precinct in Act 603

(APSX 316). On balance, the splits in Houston County tend to establish that race
predominated.
Similarly, the split precincts in the northern extension tend to prove that race
predominated. In Lee County, the drafters split the Waverly, Loachapoka, Auburn,
Beuaregard School, and Marvyn precincts. First, in Waverly precinct, they drew an
irregular shape that put nothing but majority-black and unpopulated blocks in District
28.

185

Waverly Precinct in Act 603

(APSX 336). The split placed 212 people in District 28, 85 percent of them black, and
257 people in District 27, 21 percent of them black. (Def. Ex. 475). Second, in
Auburn precinct, the drafters gave District 28 two irregularly shaped protrusions that
captured mostly majority-black census blocks, although several majority-black blocks
were put in District 27 that could have been put in District 28.

186

Auburn Precinct in Act 603

(APSX 332). The split put 3,644 people in District 28, 71 percent of whom were
black, and 48,831 people in District 27, 13 percent of whom were black. (Def. Ex.
475). Third, in Beuaregard School precinct, the drafters put majority-white population
in District 28, which built a bridge to Auburn precinct. (APSX 333; Def. Ex. 475).
Fourth, in Marvyn precinct, the drafters drew an irregular shape that put all of the
majority-black blocks in District 28.

187

Marvyn Precinct in Act 603

(APSX 335). The split placed 419 people in District 28, of whom 57 percent were
black, and 244 people in District 27, of whom 20 percent were black. (Def. Ex. 475).
Fifth, the split of Loachapoka precinct is irregular and put almost all of the majorityblack blocks in District 28, while also forming a bridge to the split in Waverly
precinct.

188

Loachapoka Precinct in Act 603

(APSX 334). It assigned 1,809 people to District 28, 81 percent of them black, and
1,517 people to District 27, 16 percent of them black. (Def. Ex. 475). On balance, the
precincts split in Lee County are evidence that race predominated.
Finally, the drafters split five precincts in Russell County in a way that provides
some evidence that race predominated. First, in Roy Martin Center precinct, District
28 picked up significant majority-black population and then continued to reach even
more significant majority-white population. (Def. Ex. 475). This split is not evidence
that race predominated.
189

Roy Martin Center Precinct in Act 603

(APSX 364). The split put 2,900 people in District 28, only 38 percent of them black.
(Def. Ex. 475). Second, in Austin Sumbry Park Voting District, the drafters put all of
the majority-black blocks in District 28, but added two unnecessary majority-white
blocks that make the overall addition majority-white. (Def. Ex. 475).

190

Austin Sumbry Park Voting District in Act 603

(APSX 361). This split is not evidence that race predominated. Third, in Ladonia Fire
Dept precinct, District 28 forms an odd protrusion containing no majority-white
blocks.

191

Ladonia Fire Dept Precinct in Act 603

(APSX 362). But the split places only 71 people in District 28, so we give this split less
weight. (Def. Ex. 475). In National Guard Armory Voting District precinct, the
drafters followed smooth lines that take in more majority-white blocks than are
necessary to reach the majority-black blocks.

192

National Guard Armory Voting District Precinct in Act 603

(APSX 363). And in Seale Courthouse Voting District precinct, the drafters put 1,299
people in District 28, 43 percent of them black, and 939 people in District 27, 16
percent of them black. (Def. Ex. 475). We cannot identify any racial pattern.

193

Seale Courthouse Voting District Precinct in Act 603

(APSX 365). On the basis of the suspicious precinct splits and the eight-point increase
in black population in this underpopulated district, we find that race predominated in
the design of Senate District 28.
We further conclude that Senate District 28 does not satisfy strict scrutiny.
Alabama does not explain why section 2 or section 5 required raising the voting-age
black population percentage over eight points, from 49.82 in the benchmark to 58.03
in Act 603. It also does not explain why section 2 or section 5 required converting a
plurality-black district into a majority-black district. The comments by Sanders and

194

Jackson are not relevant in this district because it falls short of a 62 percent black
population. And we find it persuasive that Plan A has a majority-black District 28
without the problematic protrusion in Lee County and with a less troubling
protrusion in Houston County. We must enjoin the use of Senate District 28 in future
elections.
f.

Senate District 33 (Mobile)

We find that race did not predominate over traditional districting criteria in the
design of Senate District 33. The plaintiffs argue that race predominated because the
drafters drew the boundaries to meet a target black population percentage, but this
district exceeded the previous percentage by 6.82 percentage points, increasing from
64.89 to 71.64 percent. (Doc. 30-41 at 2; Doc. 30-39 at 3). Even if exceeding the
target constitutes meeting the target, the plaintiffs have not demonstrated how the
drafters subordinated traditional districting principles to race.
Senate District 33 was underpopulated by 18.05 percent and needed to gain
significant population, but it was limited in how it could grow. The district could not
cross Mobile Bay into Baldwin County, as neither the Mobile County delegation nor
the Baldwin County delegation wanted Mobile Bay to be split. (Doc. 215 at 41–44).
And there was a complicated shift among the southern districts as the drafters
attempted to satisfy incumbents and avoid crossing Mobile Bay. District 35 also
needed to gain population, so that district took population from District 34. This
decision pushed District 34 north and east, which forced District 22 south and east, to
195

take population from overpopulated District 32. And the incumbent in District 35
lived near the southwest edge of District 33, limiting growth in that direction. (Def.
Supp. Ex. 5). The Democratic Conference plaintiffs’ own expert on remand, Fairfax,
described the situation as “somewhat of a landlock.” (Doc. 296-7 at 108). Although
changing little in shape and maintaining a core around the city of Prichard and the
north part of the city of Mobile, the district grew to the south while remaining wholly
in Mobile County. The district now has cleaner lines than it had under the 2001 plans,
and it maintained the same core.
2001 District Lines

2012 District Lines

(Ala. Reapportionment Office, supra).
Instead of moving south, the Democratic Conference plaintiffs moved north.

196

Senate District 33 in Democratic Conference Plan A and Act 603

(Doc. 287-23 at 2). Fairfax conceded that, on an eyeball test, the enacted District 33
was probably more compact than his own. (Doc. 296-7 at 110). The Black Caucus 1%
Plan also expanded District 33 to the north.
Senate District 33 in Black Caucus 1% Plan and Act 603

(APSX 541). We cannot say that this district is significantly more regular or compact.

197

The plaintiffs argue that race is the only explanation for the shape of District
33, but their argument fails. Hinaman testified about the constraints on District 33,
and the decision to move the district south was not dictated by race. (Doc. 217 at
131). The incumbent in District 34 limited expansion to the northwest, the incumbent
in District 35 limited expansion to the west, and moving District 33 north could
interfere with Senate District 22. (Id.) Based on these race-neutral constraints,
Hinaman explained that “going south was essentially the easiest course.” (Id.)
Moreover, the shape of the district is contiguous and compact. It also preserves an
urban core—82 percent of the population of the enacted district lives in the urbanized
area of Mobile. (Def. Supp. Ex. 6).
The Democratic Conference plaintiffs initially argued that the district expanded
southward into large concentrations of black population, instead of westward where
more of the population was white, (Doc. 258 at 28), but they supply no race-neutral
reason to move westward. Moreover, their own plan moved north, not west, leaving
us unable to say that moving west was required by traditional districting criteria.
The plaintiffs criticize the splitting of precincts, but three of the split precincts
are not suspicious. The drafters split Satsuma City Hall precinct in a way that
smoothed out the line and put no people in District 33.

198

Satsuma City Hall Precinct in Act 603

(APSX 341). In Morningside Elementary School precinct, the drafters divided the
precinct along Interstates 65 and 10.

199

Street Map and Population Map for Morningside Elementary School Precinct

(U.S. Census Bureau, TigerWEB, https://tigerweb.geo.census.gov/tigerweb/; APSX
339). The split leaves behind majority-black blocks in the west and takes in a majoritywhite block of 315 people in the east. And in Chickasaw Auditorium precinct, the
drafters used logical straight lines that improve the shape of an oddly shaped precinct.
The line follows zero-population blocks, it does not weave around looking for
majority-black blocks or avoiding majority-white blocks, and it keeps areas of dense
population together on each side of the line.

200

Chickasaw Auditorium Precinct in Act 603

(APSX 338). The split put 3,689 people in District 33, 43 percent of whom were
black, and 2,417 people in District 34, 19 percent of whom were black. (Def. Ex. 475).
We find that this split is not the result of racial predominance.
Two other split precincts are slightly suspicious, but they do not assign a
significant number of people on the basis of race. In Riverside Church of the
Nazarene precinct, the drafters put all of the majority-black blocks in District 33. The
split assigned 1,238 people to District 33, 57 percent of whom were black, and 466
people to majority-white District 35, 8 percent of whom were black. (Id.). But the
201

drafters used smooth lines, kept the banks of the river together, and included several
majority-white blocks that were unnecessary to reach majority-black blocks.
Riverside Church of the Nazarene Precinct in Act 603

(APSX 340). In St. Andrews Episcopal Church precinct, the drafters drew a more
irregular line that put 3,061 people in District 33, 49 percent of whom were black, and
427 people in District 35, 5 percent of whom were black. (Def. Ex. 475).

202

St. Andrews Episcopal Church Precinct in Act 603

(APSX 342).
Overall, we find that race did not predominate in the design of District 33. The
district maintains a coherent urban core in Mobile. The shape of the district is more
compact and regular. And the splits of Riverside Nazarene Church and St. Andrews
Episcopal Church precincts, although suspicious, do not affect a significant part of
the district.

203

g.

House Districts 19 and 53 (Madison County)

We find that race did not predominate over traditional districting criteria in the
design of House District 19, but we find on the basis of precinct splits that race
predominated in the design of District 53. In the 2001 plan, District 19 was in
Madison County, and District 53 was in Jefferson County. Both were
underpopulated—District 19 by 6.9 percent and District 53 by 22.28 percent. (Def.
Ex. 406). On Hinaman’s recommendation, the legislature moved District 53 from
Jefferson County to Madison County so that its former population could repopulate
the other majority-black districts in Birmingham, all of which were severely
underpopulated. (Doc. 217 at 132–33). Hinaman chose to move District 53 in
particular because he was told that the incumbent was retiring, (Doc. 134-4 at 132),
and the incumbent has since died, (Doc. 203 at 52). House District 53 moved to the
Huntsville area, where the black population had grown enough to justify drawing
another majority-black district. It took part of the former District 19, and both
districts, though centered on Huntsville, had to expand outside of the city to satisfy
the ±1% population deviation.
The dissent and the Democratic Conference plaintiffs argue that moving
District 53 was race-based because Hinaman moved the district to avoid retrogressing
the Birmingham districts, (Doc. 258 at 47), but the Democratic Conference’s own
expert disagreed when it came time to draw an alternative district. In Plan A, the

204

Democratic Conference moved District 53 to Madison County, and Fairfax defended
the move as race-neutral:
Q.

What did you do with District 53?

A.

That district was removed to the northern end, Madison County,
and the reason for that, I know that was done in the 2012 State
Plan. And from my vantage point, it seemed logical because of the
lack of population there. Once I add it up, it was something like
70,000, and lack of population amongst all the districts [in
Jefferson County] and that’s sort of where the city of Birmingham
area—

Q.

So moving a district from Jefferson County [that] lacked
population to Madison County that had lots of population, lots of
growth, you could go along with that.

A.

That seemed logical to me.

(Doc. 296-7 at 152). Fairfax’s testimony about “logical” choices establishes that
traditional districting criteria were not subordinated to race.
Nor, contrary to the dissent, was the relocation of District 53 the result of a
“self-inflicted challenge” to achieve equal population. (Dissent at 97). The Democratic
Conference plaintiffs’ expert did not defend the relocation of District 53 on the
ground of equal population. Instead, he defended it as a race-neutral choice in
response to population changes in Jefferson and Madison Counties. At bottom, this
argument is merely another version of the plaintiffs’ and dissent’s same, failed
argument that because the drafters considered race, it must have predominated. This
argument is further undermined by the plaintiffs’ decision to do the same thing in

205

their alternative plans. We find that the relocation of District 53 in itself provides no
evidence that race predominated.
The districts are not so unusually shaped as to suggest that race predominated.
District 19 is less compact than it was under the 2001 plan, but it is not facially bizarre
and has kept its core. District 53 is relatively compact and its borders are not facially
bizarre:
2001 District Lines

2012 District Lines

(Ala. Reapportionment Office, supra). The district crosses no county lines, and it is
coherently urban—about two-thirds of District 19 and over 99 percent of District 53
live in the city of Huntsville. (Def. Supp. Ex. 3).
Nor are the plaintiffs’ alternative plans more regular and compact. The
Democratic Conference plaintiffs traded the western half of District 19 for a southern
protrusion:

206

House District 19 in Conference Plan A and Act 602

(Doc. 287-15 at 4). In District 53, they swapped precincts in the south and east for
precincts in the north and west:
House District 53 in Conference Plan A and Act 602

(Id.). They failed to explain these choices except on the ground of precinct splits, a
theory that we reject later.

207

The 1% Plan is not good evidence about whether race predominated in Act
602 because it does not respect the principle of incumbent protection. The Black
Caucus plaintiffs kept District 53 in Jefferson County but drew a new majority-black
House District 6 in Madison County. It is located roughly where District 19 is, and
the incumbent in that district represented District 19. In the following map, House
District 6 in the 1% Plan is yellow, House District 19 in Act 602 is marked by the
number 19 in a purple circle and enclosed in purple lines, and the House District 19
incumbent is marked by a blue star and the label “Hall”:
House District 6 in Black Caucus 1% Plan and House District 19 in Act 602

(APSX 506). The 1% Plan in turn put a Republican incumbent in District 19, located
roughly where District 53 is in the enacted plan and Plan A, but we can expect that
this district will lean Democratic based on the plaintiffs’ evidence at trial about voting
patterns. (See Doc. 203 at 77–81). Avoiding partisan mismatch is a legitimate

208

explanation for the choice made by the legislature. As the Democratic Conference
plaintiffs’ mapmaker explained, “incumbent protection” is a legitimate districting
principle that includes not simply avoiding conflicts, but also avoiding “put[ting] the
incumbents in a different area.” (Doc. 296-7 at 46–48).
House District 19 in Black Caucus 1% Plan and House District 53 in Act 602

(APSX 505).
The plaintiffs also have failed to produce evidence that the drafters pursued a
target in either district. The black population percentage in House District 19
decreased from 69.82 to 61.25 percent, which means the drafters came up 8.57 points
short of any target. The plaintiffs argue that the reason for the drop in percentage was
that the drafters could not find any more black population, but they present no
evidence that the drafters tried to increase the black population percentage of House

209

District 19. District 19 does not cross county lines, and the precinct splits made little
difference in a district that badly missed its target.
Moreover, except for their final plans on remand, the plaintiffs produced
several versions of District 19 with comparable black population percentages. Three
of them, the McClammy, Reed-Buskey, and Knight Plans, were closer to the
supposed target than the enacted plan was:
2010 Census Total Black Population Percentages in District 19 or Equivalent
Under Various Plans
2010 Pop.
Under
2001 Lines
(Def. Ex.
406)

Plan as
Passed
(Def.
Ex. 403)

McClammy
Plan
(Common
Ex. 45)

69.82

61.25

67.07

ReedBuskey
Plan 4
(Comm
on Ex.
42)

67.01

Knight
Plan
(Comm
on Ex.
46)

75.39

New
Black
Caucus
Plan
(APSX
36)

58.27

(* District 6 percentage because of Black Caucus renumbering)

Black
Caucus
1% Plan
(APSX
470)

Democratic
Conference
Plan A
(Docs. 287,
296)

55.12*

52.5

Because some of the plaintiffs’ plans have similar—and even higher—black
population percentages, and because of the degree to which the drafters missed any
target, this argument provides no support for a claim of racial gerrymandering.
The black population percentage in House District 53 remained roughly the
same, increasing from 55.70 to 55.83 percent. Throughout this litigation, the plaintiffs
have treated almost meeting, meeting, or exceeding a supposed target as evidence of
racial predominance. The 1% Plan has a District 53 that exceeds the supposed target,
and both the 1% Plan and Plan A have a second district in Jefferson County with a
black population percentage within three points of the supposed target:

210

2010 Census Total Black Population Percentages in District 53 or Equivalent
Under Various Plans
2010 Pop. in
House District 53
Under 2001 Lines
(Def. Ex. 406)
55.71

House
District 53 as
Passed (Def.
Ex. 403)
55.83

House District
19 in ALBC
1% Plan
(APSX 470)*
53.60

House District
53 in ALBC 1%
Plan (APSX
470)**
56.96%

(* Located in Madison County) (** Located in Jefferson County)

ADC Plan A
(Docs. 287,
296)
52.9

In the light of these alternative plans, we find that the black population percentage in
District 53 is not suspicious.
Nearly all of the precinct splits in District 19 are unsuspicious. In Chase Valley
United Meth precinct, the drafters actually put a higher percentage of black
population in majority-white District 21 (86 percent) than in District 19 (36 percent).
(Def. Ex. 405 at 488, 491). In Harvest Bapt Church precinct, the drafters used an
irregular line, (APSX 152), but they put roughly equal black population percentages in
District 19 (36 percent) and District 6 (31 percent). (Def. Ex. 405 at 458, 488). In
Pineview Baptist Church precinct, the drafters again drew an irregular line between
Districts 6 and 19, (APSX 158), but they put roughly similar black population
percentages in both districts. The split put 6,041 people in District 19, 33 percent of
them black, and 3,715 people in District 6, 22 percent of them black. (Def. Ex. 405 at
457, 487). In Meridianville 1st Baptist Church precinct, the drafters split the precinct
along the limits of Meridianville.

211

Meridianville 1st Baptist Church Precinct in Act 602

(APSX 156).
Close-Up of Census Bureau Map of House District 19 in Act 602

(U.S. Census Bureau, State Legislative District Reference Map: State House District 19
(Alabama), http://www2.census.gov/geo/maps/dc10map/SLD_RefMap/lower/
st01_al/sldl01019/DC10SLDL01019_001.pdf). In Chapman Middle School precinct,

212

the drafters drew a smooth line along unpopulated blocks that improved the shape of
District 19.
Chapman Middle School Precinct in Act 602

(APSX 144). Ed White Middle School precinct consists of two noncontiguous areas,
one of which the drafters put in District 19 and one of which the drafters put in
District 53, improving the shape of both districts.

213

Ed White Middle School Precinct in Act 602

(APSX 149). Similarly, in Mad Co Teacher Resource Center precinct, the drafters put
one part of a noncontiguous precinct in District 19 and another in District 21.

214

Mad Co Teacher Resource Center Precinct in Act 602

(APSX 155). In Grace United Meth Church precinct, the drafters drew a line between
Districts 6 and 19 along a line of zero-population blocks.

215

Close-Up of Grace United Meth Church Precinct in Act 602

(APSX 151). In Sherwood Baptist Church precinct, the drafters split District 19 from
District 6 along zero-population blocks for most of the boundary and then several
sparsely populated blocks for the rest, a decision that we do not find suspicious.

216

Sherwood Baptist Church Precinct in Act 602

(APSX 161). In Blackburn Chapel CP Church precinct, the drafters drew an
irregularly shaped three-way split, (APSX 143), but the result was to place nearly
identical percentages of black population in Districts 19 (39 percent) and Districts 6
and 53 (40 percent). (Def. Ex. 405 at 458, 488). Finally, the drafters split Highlands
School precinct, (APSX 153), Lewis Chapel CP Church precinct, (APSX 154), St.
Luke Missionary Baptist Church precinct, (APSX 162), with another majority-black
block with no racial pattern.

217

The only slightly suspicious split does not prove that race predominated. In
Church of Christ Meridianville precinct, the drafters used an irregular finger to reach
population between Districts 6 and 21.
Church of Christ Meridianville Precinct in Act 602

(APSX 147). This split put 110 people in District 19, 65 percent of them black, and
4,121 people in Districts 6 and 21, 77 percent of them black. (Def. Ex. 405 at 458,
491). But the black people placed in District 19 from this precinct account for less
than a quarter of a percent of the total population of the district. If we remove the
precinct from District 19, the black population percentage remains essentially
unchanged at 61.2 percent. We find that race did not predominate in the design of
District 19.

218

Most of the precinct splits in District 53 also are not suspicious. As discussed
already, the split of Ed White Middle School precinct put one part of this
noncontiguous precinct in District 53 and the other in District 19. (APSX 149). In
Phillips CME Church precinct, the drafters improved the shape of the district without
splitting any population.
Phillips CME Church Precinct in Act 602

(APSX 157). In Charles Stone Agricultural Center precinct, the drafters again
improved the shape of the precinct by putting a block of two people in majority-white
District 21.

219

Charles Stone Agricultural Center Precinct in Act 602

(APSX 145). In Fire and Rescue Academy precinct, the drafters once again improved
the shape of the district by extending the northern border of Charles Stone
Agricultural Center precinct into Fire and Rescue Academy precinct until it
intersected a straight line of unpopulated blocks.

220

Fire and Rescue Academy Precinct in Act 602

(APSX 150). The drafters divided Westlawn Middle School precinct along a straight
line composed of unpopulated and sparsely populated blocks.

221

Westlawn Middle School Precinct in Act 602

(APSX 164). In Blackburn Chapel CP Church precinct, the drafters used a smooth
line of zero population blocks to improve the shape of District 53.

222

Blackburn Chapel CP Church Precinct in Act 602

(APSX 143). And in Highlands School precinct, Lewis Chapel CP Church, and St.
Luke Missionary Baptist Church precincts, the drafters drew splits with another
majority-black district. (APSX 153, 154, 162). The drafters fail to explain how these
splits with another majority-black district prove that race predominated.
But five precinct splits are suspicious, and they convince us that race
predominated in the design of District 53. In Eastside Community Center precinct,
the drafters put one populated block of 154 people in District 53, 55 percent of

223

whom were black, and 501 people in District 21, only 13 percent of whom were black.
(Def. Ex. 405 at 490, 550).
Eastside Community Center Precinct in Act 602

(APSX 148). In Airport Road Fire Station #6 precinct, the drafters followed smooth
lines of zero population blocks except for an irregular incursion of 21 people in the
northwest corner of the precinct.

224

Airport Road Fire Station #6 Precinct in Act 602

(APSX 142). In University Place School precinct, the drafters used an irregular line to
put 4,201 people in District 53, 42 percent of them black, and 1,731 people in
majority-white District 6, 13 percent of them black. (Def. Ex. 405 at 457, 550).

225

University Place School Precinct in Act 602

(APSX 163). In Senior Center precinct, the drafters put an irregular area of 316 people
in majority-white District 10, 5 percent of whom were black, and 3,111 people in
District 53, 33 percent of whom were black. (Def. Ex. 405 at 467, 551).

226

Senior Center Precinct in Act 602

(APSX 160). In Ridgecrest School precinct, the drafters appear to have snaked around
looking for black people. They put 2,853 people in District 53, 38 percent of them
black, and 2,323 people in District 10, 12 percent of them black. (Def. Ex. 405 at 467,
551).

227

Close-Up of Ridgecrest School Precinct in Act 602

(APSX 159). On the basis of these precinct splits, we find that race predominated in
the design of House District 53.
We further conclude that District 53 does not survive strict scrutiny because
Alabama makes no arguments that apply to District 53. The comments of Senator
Sanders and Representative Jackson do not provide a strong basis in evidence in this
district. District 53 is located in a different part of the state, with which we cannot
presume Sanders and Jackson would be familiar. And District 53 is more urban than
their districts—over 99 percent of the district lives in Huntsville. (Def. Supp. Ex. 3).
We must enjoin the use of House District 53 in future elections.

228

h.

House District 32

We find that race predominated over traditional districting criteria in the design
of House District 32. The district was underpopulated by nearly 15 percent, (Def. Ex.
406), but it maintained its general orientation and location in Talladega and Calhoun
Counties. The drafters added a southern protrusion, an eastern arm, and
modifications along the rest of the borders.
2001 District Lines

2012 District Lines

(Ala. Reapportionment Office, supra).
Some of the irregularity is explained by avoiding incumbent conflicts, a
legitimate districting principle. The incumbent in District 32 lived in the “head” of the
northeastern part of the district as drawn in 2001. The incumbents in District 35 and
36 also lived close to the boundary with District 32, constraining its growth to the east
or the north. (Def. Supp. Ex. 2). Overall, we cannot say that the shape of this district
is so facially bizarre that it leads us to infer that race predominated.
The Democratic Conference plaintiffs’ map looks slightly better:

229

House District 32 in Democratic Conference Plan A and Act 602

(Doc. 287-18 at 1). It avoids some of the precinct splits, removes the eastern arm and
southern protrusion, and keeps the same orientation and location in Calhoun and
Talladega Counties.
By contrast, District 32 is noticeably worse in the Black Caucus 1% Plan. Like
the enacted district, it is located in Talladega and Calhoun Counties and contains its
own southern protrusion and eastern arm. Unlike the enacted district, it is shaped
somewhat like a tilted number 3. The following map marks it with a tan color and
marks the enacted district with a purple line and the number 32 in a purple circle:

230

House District 32 in Black Caucus 1% Plan and Act 602

(APSX 507). This alternative district does not convince us that race predominated in
the design of District 32.
Instead, the black population percentage and the precinct splits persuade us
that race predominated. The black population percentage of the district barely
increased from 59.34 to 60.0 percent, (Doc. 263-2), but most of the alternative plans
had lower black population percentages.
2010 Census Black Population Percentage in District 32 Under Various Plans
2010 Pop.
Under 2001
Lines (Def.
Ex. 406)

Plan as
Passed
(Def.
Ex.
403)

McClammy
Plan
(Common
Ex. 45)

ReedBuskey
Plan 4
(Comm
on Ex.
42)

Knight
Plan
(Commo
n Ex. 46)

New
Black
Caucus
Plan
(APSX
36)

Black
Caucus
1% Plan
(APSX
470)

Democratic
Conference
Plan A
(Docs. 287,
296)

59.34

60.05

58.40

56.68

21.65

52.35

52.52

55.0

231

When the state drew a hypothetical district for this litigation with no split precincts,
the black population percentage was 6.6 points lower, taking the district from slightly
above the supposed target to well below it.
The lines of the precinct splits are also suspicious. In the eastern arm, the
drafters extended District 32 to the eastern edge of Eastaboga Comm Center–Old
Lincoln High Gym precinct, picking up all of the majority-black blocks along the way
and forming a bridge to Old Mumford High, where the drafters drew an irregular
shape that picked up a cluster of majority-black blocks.
Eastaboga Comm Center–Old Lincoln High Gym and Old Mumford High
Precincts in Act 603

232

(APSX 260). The drafters also formed two indentations in District 33 to pick up
clusters of majority-black blocks. The racial pattern gives rise to an inference that race
predominated. The 2001 district split the same precinct, but it did not push as far east.
Moreover, the 2001 district did not include any part of Old Mumford High precinct.
(Doc. 287-30 at 1). And the statistics about these splits are suspicious. The drafters
put 3,023 people from Eastaboga Comm Center–Old Lincoln High Gym precinct in
District 32, 34 percent of whom were black. (Def. Ex. 405 at 512). To the west they
put 3,678 people in District 33, 18 percent of whom were black, (id. at 515), and to
the east they put 456 people in District 35, 5 percent of whom were black, (id. at 520).
In Old Mumford High precinct, the drafters put 552 people in District 32, 74 percent
of whom were black, and 2,873 people in District 35, 11 percent of whom were black.
(Id. at 512, 520). Alabama offers no race-neutral explanation for these precinct splits.
In the southern protrusion of the district, the drafters split Limbaugh
Community Center–Bon Air–Oak Grove precinct in a racial fashion. The drafters
formed an irregular line through District 33, capturing a large cluster of majority-black
blocks and then stopping.

233

Limbaugh Comm Center–Bon Air–Oak Grove Precinct in Act 602

(APSX 261). The split put 1,908 people in District 32, of whom 62 percent were
black, and 9,268 people in District 33, of whom 24 percent were black. (Def. Ex. 405
at 512, 516). There is no race-neutral explanation for this precinct split.
Several other precinct splits are also suspicious, and one of them, Anniston,
accounts for over a third of the population of District 32. In the north of that
precinct, majority-white District 36 pushed across the line to capture large majoritywhite blocks, although District 32 absorbed several majority-white blocks adjacent to
District 36. In the west, the legislature split the precinct along a line that zigs to put
234

majority-white blocks in District 36 and zags to put majority-black blocks in District
32. Further south, District 36 crosses the precinct line to capture mostly majoritywhite blocks and leaves mostly majority-black blocks in District 32, although District
36 takes several majority-black blocks and District 32 takes some majority-white
blocks.
Anniston Precinct in Act 602

(APSX 61). This split put 17,705 people in District 32, 66 percent of whom were
black; 1,973 people in District 36, 11 percent of whom were black; and 426 people in
District 40, 5 percent of whom were black. (Def. Ex. 405 at 511, 520, 529). The
235

precinct was also split in 2001 along different irregular lines, (Def. Ex. 413 at 866), but
the split changed in 2012, so we cannot say that the drafters preserved existing lines.
In 1st Presby/Mental Health/Golden Springs/Donoho precinct, the drafters
drew a winding line that captured all of the populous majority-black blocks and very
few populous majority-white blocks.
1st Presby/Mental Health/Golden Springs/Donoho Precinct in Act 602

(APSX 60). The split put 3,238 people in District 32, 44 percent of whom were black,
and 7,587 people in District 36, 14 percent of whom were black. (Ex. DX 405 at 511,

236

522). The percentages and the notable, although not perfect, racial sorting are
evidence that race predominated.
Renfroe Fire Hall–Stemley Fire Hall, which is divided between Districts 32 and
33, provides more evidence that race predominated. District 33 takes the riverbank,
which contains almost exclusively majority-white blocks, and District 32 takes all of
the populous majority-black blocks. The line between the districts zigs and zags to
cause that result.
Renfroe Fire Hall–Stemley Fire Hall Precinct in Act 602

(APSX 264). District 32 took 1,966 people from the precinct, of whom 49 percent
were black, and District 33 took 2,721 people from the precinct, of whom 8 percent

237

were black. (Def. Ex. 405 at 512, 516). A “Renfroe Fire Hall” precinct was split in
2001, but we cannot tell whether this is the same precinct as “Renfroe Fire HallStemley Fire Hall,” (see DX 413 at 866), so we draw no conclusions from this fact.
The split of Renfroe Fire Hall–Stemley Fire Hall precinct is evidence that race
predominated in the design of the district.
We note that some of the precinct splits might be explained by traditional
factors. According to Fairfax, the following precincts were all split in the 2001 plan:
Eulaton/Bynum/West Park Heights Bapt., 1st Presby/Mental Health/Golden
Springs/Donoho, Eastaboga Comm Center–Old Lincoln High Gym, Talladega
National Guard Armory–Spring St Comm Center–Berniston, Mabra–Kingston Bapt–
Talla Co Central High, Winterboro Vol Fire-Gable’s Corner Vol Fire, Limbaugh
Comm Center–Bon Air-Oak Grove, and Renfroe Fire Hall–Stemley Fire Hall. (Doc.
296-7 at 181). Alabama argues on remand that the Democratic Conference plan splits
most of the same precincts in similar ways, (Doc. 295 at 32), but the Act 602 splits are
not along exactly the same lines as in 2001, and the Plan A splits are not along exactly
the same lines as in Act 602. We find that race predominated in the design of House
District 32.
We further conclude that District 32 does not survive strict scrutiny. Alabama
makes no district-specific arguments. The comments of Sanders and Jackson do not
provide a strong basis in evidence in this district because the district has a black
population percentage of 57.78 percent, shy of the 62 percent minimum advocated by
238

Senator Sanders and Representative Jackson. We have no credible evidence about
what percentage is necessary under the Voting Rights Act, and Alabama has the
burden of proof on strict scrutiny. We must enjoin the use of House District 32 in
future elections.
i.

House Districts 52, 54, 55, 56, 57, 58, 59, and 60 (Jefferson County)

We find that race did not predominate over traditional districting criteria in the
design of House Districts 52, 55, 56, 57, 58, 59, or 60, but we find that race
predominated in the design of District 54. Most of these districts were severely
underpopulated, as was District 53, which the legislature moved from Jefferson
County to Madison County in 2012:
House
District
52
53
54
55
56
57
58
59
60

Overpop. (+) or Underpop. (–) of
2001 District Using 2010 Census
Data (%) (Def. Ex. 406)
–5.19
–22.28
–23.32
–21.86
–9.79
–20.48
–17.75
–27.86
–19.37

Hinaman was concerned that there was no way to draw nine majority-black districts in
the Birmingham area while maintaining the ±1% deviation and avoiding dramatic
retrogression in all of the districts. (Doc. 134-4 at 60). To repopulate the districts,
Hinaman suggested moving District 53 from Jefferson County to Madison County so

239

that its former residents could repopulate the majority-black districts in Birmingham,
all of which were severely underpopulated. (Doc. 217 at 132–33). Hinaman chose to
move District 53 because he was told that the incumbent was retiring, (id. at 132), and
the incumbent has since died, (Doc. 203 at 52).
The plaintiffs argue that each of these districts is a racial gerrymander
because the drafters “cannibalized” District 53 to repopulate the remainder of
the majority-black districts in Birmingham. (Doc. 258 at 48). The dissent also
argues that the decision of the drafters to move District 53 “should be given
significant weight in the predominance analysis of its surrounding districts.”
(Dissent at 96). We disagree, for the reasons articulated by the Democratic
Conference plaintiffs’ own expert in defense of Plan A, which also moved
District 53 to Madison County:
Q.

What did you do with District 53?

A.

That district was removed to the northern end, Madison County,
and the reason for that, I know that was done in the 2012 State
Plan. And from my vantage point, it seemed logical because of the
lack of population there. Once I add it up, it was something like
70,000, and lack of population amongst all the districts there and
that’s sort of where the city of Birmingham area—

Q.

So moving a district from Jefferson County [that] lacked
population to Madison County that had lots of population, lots of
growth, you could go along with that.

A.

That seemed logical to me.

Q.

Okay. Okay. So—

240

A.

In this particular case.

(Doc. 296-7 at 152–53). We also observe that the Democratic Conference
plaintiffs made the same choice in Plan A, and they assert that race did not
predominate in their plan.
The plaintiffs fail to prove that the legislature could have maintained nine
majority-black districts in Birmingham while complying with the Voting Rights Act.
Plan A has three majority-black House districts in Jefferson County with black votingage populations under 55 percent and one under 51 percent. The 1% Plan has three
majority-black House districts in Jefferson County under 55 percent and one under 52
percent. (Doc. 296-2). Neither group of plaintiffs have established that these districts
provide an equal opportunity to participate in the political process (for purposes of
section 2) or avoid retrogression (for purposes of section 5), and the earlier plans do
not comply with the ±1% population deviation. In sum, none of the alternative plans
prove that the legislature could have kept nine majority-black House districts in
Jefferson County.
Finally, the evidence about the decision to move District 53 to Madison County
establishes that the drafters were concerned about traditional districting principles.
They moved District 53 because the incumbent in District 53 was retiring. (Doc. 1344 at 132). This choice minimized the effect of the move on the incumbent legislators.
Even if the choice was political—the incumbent was a Democrat—it is neither
surprising nor racially motivated that a Republican-controlled legislature would
241

choose to inconvenience a Democratic legislator. Moreover, that the “core” of
District 53 could not be preserved points to the difficulty of districting, not racial
gerrymandering. Almost no traditional criterion can be maintained without exception
in a statewide plan. That the drafters on one occasion had to move a single district to
respond to massive underpopulation is not evidence of an overriding racial purpose.
The only other district that the drafters moved was House District 73. House District
73 was not a majority-black district, but it was a Democratic district, and it was also
moved to respond to severe underpopulation of surrounding districts. If the drafters
had not moved District 53, the resulting Birmingham districts might have had to
change dramatically. It is consistent with traditional districting criteria to sacrifice the
core of one district to maintain the least amount of change among the remaining
districts. At the very least, the plaintiffs fail to prove otherwise.
The plaintiffs next argue that race predominated over traditional criteria in each
of the Birmingham districts because six of the eight districts maintained black
population percentages similar to their previous percentages. Only if race
predominated over ordinary criteria, they argue, could the drafters achieve such
precision in black population percentages. The plaintiffs point to numerous split
precincts as evidence of the subordination of traditional districting principles. A close
analysis of each district reveals that the plaintiffs have failed to prove their case with
respect to all but one of the districts.

242

House District 52, which kept a nearly unchanged black population percentage
of 60.13 percent, ceded its southwestern corner to District 56, also a majority-black
district.
2001 District Lines

2012 District Lines

(Ala. Reapportionment Office, supra). The enacted district is not noticeably odder
than the old district.
The black population percentage is not suspicious either. All of the alternative
plans proposed black population percentages within 4.5 points of the enacted plan,
and two plans met and exceeded the supposed target.
2010 Census Black Total Population Percentages in House District 52 Under
Various Plans
Under
2001
District
Lines
(Def.
Ex. 406)

60.11

Plan as
Passed
(Def.
Ex. 403)

McClammy
Plan
(Common
Ex. 45)

ReedBuskey
Plan 4
(Common
Ex. 42)

Knight
Plan
(Common
Ex. 46)

60.13

62.27

61.34

54.07

243

New
Black
Caucus
Plan
(APSX
36)

57.42

Black
Caucus
1% Plan
(Doc.
296-1)

Democratic
Conference
Plan A (Doc.
296-1)

55.64

57.9

The Democratic Conference plaintiffs insist that race did not predominate in the
design of their alternative district, and we find it to be evidence that a black
population percentage in the low 60s is not evidence that race predominated.
Our dissenting colleague would disregard the alternative plans because the
enacted district was closer to the alleged target than the alternative plans. (Dissent at
106). But our colleague premises this argument on his test for racial predominance,
which infers that race predominated if the legislature came close to its alleged target.
The test of the Supreme Court, by contrast, demands that we presume that the
legislature acted in good faith until that presumption is overcome. Miller, 515 U.S. at
915. That the enacted plan and the alternative plans drafted a district with similar
black percentages suggests to us that the racial percentage is not enough to prove
racial predominance. As the dissent acknowledges “demographic realities in Jefferson
County” required drafting a district with a similar black percentage to the 2001 plan.
(Dissent at 107). These demographic realities also justify the decision of the drafters
to move 19,284 people in and out of the district.
The plaintiffs drew the districts differently than the legislature did, but we find
that they are no more regular or compact than the enacted district. As the following
maps illustrate, both groups of plaintiffs drew District 52 with more of a north-south
orientation:

244

House District 52 in Democratic Conference Plan A and Act 602

(Doc. 287-14 at 9).
House District 52 in Black Caucus 1% Plan and Act 602

(Ex. APSX 508 (Black Caucus district shaded in blue)). The plaintiffs fail to explain
why these particular boundaries were required by traditional districting criteria other

245

than precinct splits, and we find that they are no more regular or compact than the
enacted districts.
The split precincts prove nothing with respect to race. District 52 split only two
precincts with a majority-white district. From Shades Cahaba Elementary School, the
legislature placed 1,198 people in District 52 and 2,741 people in District 46. (Def. Ex.
405 at 91, 101). Six percent of the people placed in District 52 were black, and so were
4 percent of the people placed in District 46. (Id. at 91, 100). From Birmingham
Botanical Garden, the legislature placed 389 people in District 52, 1 percent of them
black, and 609 people in District 46, 1 percent of them black. (Def. Ex. 405 at 91,
101). We find no evidence of racial predominance in these splits.
District 52 also splits five precincts with other majority-black districts, and the
Black Caucus plaintiffs argue that “the lack of any clear pattern” in these splits “only
shows how black and white populations were being shaved between majority-black
districts to hit their arbitrary target percentages.” (Doc. 256 at 47–48). They do not
provide evidence that these splits were the result of the subordination of traditional
districting criteria, and it is not apparent how the lack of any clear pattern could be
proof of racial gerrymandering.
Our dissenting colleague disagrees. The precinct splits, according to the dissent,
“are notable not because the State used them to pack black people into existing
majority-black districts . . . but because, without them, the State would have been too
far afield of its racial target.” (Dissent at 107–08). But race is not the primary
246

explanation for the black population percentage, meaning the precinct splits cannot
“corroborat[e]” this rebuttable presumption of racial predominance. (Id. at 61). Our
response is becoming a refrain. The existence of an alleged racial target is not per se
evidence of racial predominance. Because the alternative plans proposed districts with
similar black populations and the precinct splits are explainable on grounds other than
race, we find that race did not predominate in the design of House District 52.
We find that race predominated in the design of House District 54. The district
is irregularly shaped, hits its alleged target, and contains a suspicious precinct split that
appears to make the difference between hitting and missing the target. At the same
time, the district was drawn in part by the incumbent of this and neighboring districts,
the plaintiffs also drew irregularly shaped districts, and all of the alternative plans with
a majority-black District 54 also hit the target. We find that the plaintiffs satisfied their
burden of proof.
District 54, which maintained a nearly unchanged black population percentage
of 56.83 percent, is possibly the most irregular of the Birmingham districts. (Def. Ex.
403, 406). The district has a thin bottleneck that connects two otherwise normally
shaped halves:

247

2001 District Lines

2012 District Lines

(Ala. Reapportionment Office, supra).
Representative Patricia Todd, the white incumbent Democrat, helped design
the district with the two black incumbent Democrats from Districts 58 and 59. (Doc.
217 at 136–37, 231–32). The incumbent in District 58 proposed a “solution” that
would “make everybody happy.” (Id. at 231–32). After testifying about other areas in
which incumbents proposed district lines, Representative McClendon testified about
the role played by the Democratic incumbents in Districts 54, 58, and 59:
And Representative [Oliver] Robinson came to me and he said that he
had a solution; that he could make everybody happy. And I called
[Representative Mary] Moore. . . . [A]nd I told her that Representative
Robinson was there and that he had made this proposal and I wanted to
make sure she was happy. And we all met up in the reapportionment
office, and we got one of the ladies that worked up there to help us work
on the lines. And Ms. Todd, Representative Todd, joined us and got
involved in the process.
But once again, we had contiguous districts, and they were essentially
trading folks, keeping the deviation in line and making changes that
didn’t affect anybody on the outside, and I thought that was fine.

248

(Doc. 217 at 231–32). Hinaman testified similarly at trial:
Q.

. . . What involvement did you have with the plan after it was
produced and in the hands of Mr. McClendon and Senator Dial?

A.

I was here during the session, and when there were changes that
were made to the map, I would—I didn’t do all of them, but I sat
down with some of the legislators who had changes that they
wanted made and remade them.

Q.

Like who did you sit down with?

A.

I sat down with Oliver Robinson; Patricia Todd; Mary Moore was
on the phone with Oliver Robinson when I did that.

(Id. at 136). That the legislature adopted the compromise of three incumbents and no
one alleges that the incumbents drew the districts on the basis of race is strong, but
not dispositive, evidence that race did not predominate.
The plaintiffs drew more regular-looking districts in their alternative plans,
although they moved the district significantly and rejected the incumbents’ plan. The
Democratic Conference plaintiffs kept only the western part of the district and
expanded it farther north.

249

House District 54 in Democratic Conference Plan A and Act 602

(Doc. 287-14 at 10). The Black Caucus plaintiffs shifted the district to the north but
kept a similar orientation. The alternative district is shaded in lavender, and the
enacted district is marked by a purple line and the number 54 in a purple circle:
House District 54 in Black Caucus 1% Plan and Act 602

250

(APSX 510).
Notably, the alternative plans either draw District 54 with a black population
percentage that exceeds the target by a greater margin or with no black majority at all.
The 1% Plan increased the total black population percentage to 60.64 percent, and
Democratic Conference Plan A increased it to 60.6 percent. (Doc. 296-1). Two of the
plans that made no effort to comply with the Commission guidelines also had black
population percentages that exceeded the supposed target—58.72 percent in the
Knight Plan and 61.06 percent in the New Black Caucus Plan. (Common Ex. 46;
APSX 36). The other two alternative plans, McClammy and Reed-Buskey, gutted the
black population to repopulate the surrounding majority-black districts. (Common
Exs. 45, 42).
2010 Census Black Total Population Percentages in House District 52 Under
Various Plans
Under
2001
District
Lines
(Def.
Ex. 406)

56.73

Plan as
Passed
(Def.
Ex. 403)

McClammy
Plan
(Common
Ex. 45)

ReedBuskey
Plan 4
(Common
Ex. 42)

Knight
Plan
(Common
Ex. 46)

56.83

31.46

31.40

58.72

New
Black
Caucus
Plan
(APSX
36)

61.06

Black
Caucus
1% Plan
(Doc.
296-1)

Democratic
Conference
Plan A (Doc.
296-1)

60.64

60.6

These alternative plans might have threatened Representative Todd’s ability to win
reelection because drastically decreasing the black population percentage would
probably reduce the number of reliable Democratic voters, based on the plaintiffs’
own evidence, (Doc. 203 at 78–79). It is likely that Representative Todd helped to

251

draw her district in a partisan fashion to avoid that outcome, and the plaintiffs fail to
prove otherwise.
We nevertheless find strong evidence that race predominated in the split of
Clearview Baptist Church precinct. The following map shows majority-white District
44 (in blue), majority-black District 54 (in purple), and majority-black District 58 (in
green):
Clearview Baptist Church Precinct in Act 602

252

(APSX 104). The legislature put all of the easily accessible majority-black blocks in
District 54 and no unnecessary majority-white blocks. The split put 561 people in
District 54, 71 percent of them black; 4,437 people in District 44, 18 percent of them
black; and 738 people in District 58, 31 percent of them black. (Def. Ex. 405). Finally,
if we remove this precinct from District 54, the black population percentage drops
below the alleged target.
That said, none of the other precinct splits prove that race predominated. The
following map shows the split of Mountain View Baptist Church precinct, which has
no discernible racial pattern:

253

Mountain View Baptist Church Precinct in Act 602

(APSX 119). Second, the legislature split Irondale Senior Citizens Building precinct in
three parts. The division between Districts 44 and 54 followed a smooth line of zeropopulation blocks that may be a major road, and the division between Districts 45 and
54 has no discernible racial pattern.

254

Irondale Senior Citizens Building Precinct in Act 602

(APSX 115). There is also no discernible pattern in the split of Birmingham Fire
Station #31 precinct.

255

Birmingham Fire Station #31 Precinct in Act 602

(APSX 98). The other precinct splits are between or among majority-black districts,
and the plaintiffs fail to offer a theory of how those splits prove that race
predominated. But on the basis of the shape and the split of Clearview Baptist Church
precinct, we find that race predominated in the design of House District 54.
We conclude that District 54 does not survive strict scrutiny. As in several
other districts, Alabama makes no district-specific arguments. The comments of
Sanders and Jackson do not provide a strong basis in evidence in District 54 because
the district has a black population percentage of 56.83 percent, shy of their minimum
of 62 percent minimum. Alabama has not proved that District 54 was narrowly
tailored to comply with the Voting Rights Act.
256

We find that race did not predominate in the design of House District 55.
District 55, which maintained a black population percentage of 73.55 percent, (Doc.
263-2 at 2), is an elongated district stretching from the center of Birmingham to the
northwest.
2001 District Lines

2012 District Lines

(Ala. Reapportionment Office, supra). It splits no precincts with majority-white
districts. (Doc. 256 at 55; Doc. 258 at 59). District 55 borders majority-black District
57 to the west, majority-black District 52 to the south, and majority-black District 60
to the east. The oddest portion of the district is the northwest border with majoritywhite District 16, but those lines follow precinct lines without interruption. Our
dissenting colleague’s characterization of District 55 to the contrary, (Dissent at 111),
this design is no odder than the old lines.
The plaintiffs again drew the district differently than the legislature did, but
they fail to explain why their choices were required by traditional districting criteria.
The Democratic Conference district has little overlap with the enacted district because
it moves out to rural Jefferson County:

257

House District 55 in Democratic Conference Plan A and Act 602

(Doc. 287-16 at 11). The Black Caucus plaintiffs shifted the district, shaded green in
the following map, to the west:
House District 55 in Black Caucus 1% Plan and Act 602

(APSX 511). Without further explanation, these maps do not prove that race
predominated in the design of District 55.

258

The plaintiffs argue that the drafters split precincts between House District 55
and other majority-black districts to maintain their racial targets, but all of the splits
are with other majority-black districts, and the plaintiffs fail to explain how these splits
are evidence that race predominated. Moreover, in its unsplitting exercise, Alabama
could not find a combination of whole precincts that satisfied the ±1% deviation in
this district. (Doc. 263-3). A visual examination of the splits between District 55 and
other majority-black districts reveals no outrageous lines or bizarre contortions; if
anything, the district lines smooth out oddities in the precinct lines and connect
communities of interest. (APSX 91, 92, 103, 110, 111, 116, 125, 127, 129).
The dissent makes several mathematical observations, but none of them prove
that race predominated in this district. The drafters hit their alleged target nearly
exactly, (Dissent at 109–10), but the plaintiffs and the dissent fail to point to a single
choice from which we can infer that the drafters subordinated traditional districting
criteria to race. The drafters also moved 28,143 people in and out of the district to
remedy an underpopulation of 9,949, (id.), but as in other districts in the Birmingham
area, this kind of turnover is unsurprising in an area that was redrawn to cure severe
underpopulation. We find that race did not predominate in the design of House
District 55.
We also find that race did not predominate in the design of House District 56.
District 56, which has almost the same black population percentage (62.14 percent) as

259

in 2010 (62.13 percent), (Doc. 263-2 at 2), is a compact district reaching west from
central Birmingham. It is noticeably more compact than it was in the previous plan:
2001 District Lines

2012 District Lines

(Ala. Reapportionment Office, supra).
In their court-ordered alternative plans, both plaintiffs drew a District 56 that
was similar to the enacted district:
House District 56 in Democratic Conference Plan A and Act 602

(Doc. 287-14 at 12).

260

House District 56 in Black Caucus 1% Plan and Act 602

(APSX 512 (Black Caucus district shaded in yellow)).
The black population percentages in this district are similar across all of the
alternative plans. Those plans—with the exception of the radically different Knight
Plan—proposed black population percentages within four points of the enacted plan:
2010 Census Total Black Population Percentages in House District 56 Under
Various Plans
Under
2001
District
Lines
(Def. Ex.
406)

62.13

Plan as
Passed
(Def.
Ex.
403)

McClammy
Plan
(Common
Ex. 45)

ReedBuskey
Plan 4
(Common
Ex. 42)

Knight
Plan
(Common
Ex. 46)

62.14

61.06

58.16

54.02

New
Black
Caucus
Plan
(APSX
36)

61.13

Black
Caucus
1%
Plan
(Doc.
296-1)

63.04

Democratic
Conference
Plan A
(Doc. 2961)

58.19

Most notably, the 1% Plan—which the Black Caucus plaintiffs aver is race-neutral—
hits the target and exceeds it by only 0.91 percentage points. The alternative districts

261

defeat any inference of racial predominance in the enacted district based solely on its
black population percentage.
District 56 has four precinct splits, none of which are persuasive evidence that
race predominated. The plaintiffs fail to explain how the two precincts split with other
majority-black districts prove that race predominated, and no patterns are obvious to
us. In the third split, the drafters divided Canaan Baptist Church precinct with District
15. (APSX 101, 114).

262

Canaan Baptist Church in Act 602

(APSX 101). The split put 1,426 people in District 56, 12 percent of them black, and
3,652 people in District 15, 21 percent of them black. (Def. Exs. 479, 556). That is,
the drafters put a lower black population percentage in the majority-black district.
In the fourth split, the drafters divided Hunter Street Baptist Church precinct
with majority-white Districts 15 and 46.

263

Hunter Street Baptist Church Precinct in Act 602

(APSX 114). This split follows I-459 and the Louisville and Nashville Railroad:
Census Bureau Map in Vicinity of Hunter Street Baptist Church Precinct

264

(U.S. Census Bureau, State Legislative District Reference Map: State House District 56
(Alabama), http://www2.census.gov/geo/maps/dc10map/SLD_RefMap/lower/
st01_al/sldl01056/DC10SLDL01056_001.pdf). The split put 1,685 people in District
56, 20 percent of them black; 7,733 people in District 15, 10 percent of them black;
and 1,705 people in District 46, 5 percent of them black. (Def. Ex. 405 at 479, 538,
556). These similar percentages in a split that followed manmade boundaries do not
support a finding of racial predominance.
Although our dissenting colleague agrees “that the shape and compactness of
[House District] 56 are not suspicious” and that the “boundaries apparently used to
split the Hunter Street Baptist Church precinct . . . demonstrate . . . valid race-neutral
criterion,” he would find that race predominated because the drafters came within .01
percent of their alleged target and they moved a large number of people in and out of
the district to do so. (Dissent at 116–17). Our colleague’s analysis of House District
56––and racial predominance, generally––could have been accomplished with the
answer to one question: did the drafters come close to meeting their alleged target? If
the answer to that question was “yes,” then he would find that race predominated so
long as some other evidence corroborates that view. This approach is not the
approach of the Supreme Court. Ala. Legislative Black Caucus, 135 S. Ct. at 1267
(explaining that the use of racial targets only “provides evidence” that race
predominated). The Court did not say that evidence of the application of an alleged
target was conclusive evidence or even presumptive evidence of racial predominance.
265

The dissent also argues that race predominated because the drafters moved
House District 53, which affected the black population of House District 52, which in
turn allowed the drafters to hit their alleged target in House District 56. (Dissent at
114–15). But this connection is attenuated at best. The drafters moved House District
53 because the Birmingham districts were underpopulated. And it is unclear how that
move proves that race predominated in House District 56, which as the dissent
acknowledges was not contiguous to former House District 53. (Id. at 114). We find
that race did not predominate in the design of House District 56.
We also find that race did not predominate in the design of House District 57.
District 57, with a total black population percentage that remained almost unchanged
at 68.49 percent, (Doc. 263-2 at 2), is a compact district that has the same
northwestern orientation as District 55:
2012 District Lines

2001 District Lines

(Ala. Reapportionment Office, supra). The dissent asserts that the new district is not
compact because it resembles the “landmass of the United Kingdom,” but offers no

266

reason why this resemblance makes the district non-compact. (Dissent at 119). As
with the overall shape of District 55, the overall shape of District 57 is not suspicious.
The plaintiffs again drew districts that are not necessarily better than the district
drawn by the legislature, and again they do not persuade us that race predominated in
District 57. The Democratic Conference plaintiffs drew a district running from east to
west instead of north to south:
House District 57 in Democratic Conference Plan A and Act 602

(Doc. 287-14 at 13). The Black Caucus plaintiffs drew a District 57, shaded in pink in
the following map, that made only minor changes:

267

House District 57 in Black Caucus 1% Plan and Act 602

(APSX 513). These alternative plans do not prove that race predominated.
The black population percentages of the alternative plans convince us that the
black population percentage in the enacted district is not suspicious. Both the 1%
Plan and Plan A have total black population percentages that are similar to the 68.47
percent in Act 602—72.51 percent in the 1% Plan and 66.1 percent in Plan A. (Doc.
296-1 at 2). Moreover, they deviate in opposite directions, making the enacted plan
the median of the three options.
Our dissenting colleague makes several arguments, but none of them are
persuasive. Our dissenting colleague argues that the percentages of the alternative
plans support the opposite conclusion because Alabama’s plan came closer to the
alleged target than the alternative plans did. (Dissent at 120). But our colleague’s
misbegotten rule that race predominated if the legislature met its alleged racial target,

268

compels his conclusion. This approach is contrary to the approach of the Supreme
Court. In addition, the dissent is correct that the drafters moved a large number of
people in and out of the district, (Dissent at 118), but, as repeatedly noted, this kind of
turnover is unsurprising in an area that was redrawn to cure underpopulation.
The precinct splits are also unpersuasive. The enacted district split five
precincts, including Pleasant Grove First Baptist Church. That split placed a higher
percentage of black population into District 57, but a visual examination of the map
shows that the split is produced by a relatively smooth J-shaped line:
Pleasant Grove First Baptist Church Precinct in Act 602

269

(APSX 124). The legislature put 6,679 people in District 57, 51 percent of them black,
and 2,927 people in District 15, 22 percent of them black. (Def. Ex. 405 at 479, 558).
We observe majority-black and majority-white blocks along both sides of the district
line, and we are not persuaded that this precinct is evidence that race predominated.
Our dissenting colleague contends that the reapportionment guidelines do not include
exceptions for precinct splits based upon “smooth lines.” (Dissent at 121). But the
dissent’s analysis of House District 67 faults Alabama because it “could have made
boundary choices that would have resulted in smoother lines.” (Id. at 147). In
addition, the Supreme Court commands us to consider a “district’s shape,” Miller, 515
U.S. at 916, which includes consideration of a district’s “boundary lines.” Shaw, 509
U.S. at 646. We find that race did not predominate in the design of House District 57.
We also find that race did not predominate in House Districts 58 and 59.
District 58, which decreased in black population from 77.86 to 72.76 percent, is
sandwiched between Districts 59 and 54, northeast of downtown Birmingham. (Doc.
263-2 at 2). District 59, which increased in black population percentage from 67.03 to
76.72 percent, (id.), borders District 54 to the south and District 58 to the east. The
incumbents in these districts worked together with Representative Todd to draw the
districts. Both Districts 58 and 59 maintain their cores, and they extend northeast to
pick up population from District 44.

270

2001 District Lines

2012 District Lines

(Ala. Reapportionment Office, supra).
The plaintiffs’ alternative plans do not persuade us that race predominated in
the design of Districts 58 and 59. The Democratic Conference plaintiffs drew a
similar District 58 and fail to convince us that their minor changes were compelled by
traditional districting criteria:
House District 58 in Democratic Conference Plan A and Act 602

(Doc. 287-14 at 14). The same is true of Districts 58 and 59 in the 1% Plan. Those
districts are shaded in olive green and light blue, respectively, in the following maps:
271

House District 58 in Black Caucus 1% Plan and Act 602

(APSX 514).
House District 59 in Black Caucus 1% Plan and Act 602

(APSX 515). In contrast, the Democratic Conference plaintiffs drew a different
District 59, but they have not explained how that their changes prove that race
predominated.

272

House District 59 in Democratic Conference Plan A and Act 602

(Doc. 287-14 at 15).
The plaintiffs argue that the legislature split Pinson United Methodist Church
precinct with majority-white District 44 along racial lines, (Doc. 256 at 61–62), but
their argument fails. As an initial matter, the Democratic Conference plaintiffs split
the same precinct in Plan A. They did so along different lines, but they placed a higher
black population percentage in District 58 than in District 44. (Doc. 296-6 at 2). To
split the precinct without placing a higher black population percentage in District 58
than District 44 would have required bizarre lines. The majority of the white
population lives on the east side of the precinct, contiguous with District 44, and the
majority of the black population lives on the west side, contiguous with Districts 58
and 59. For Districts 58 and 59 to reach the white population in the precinct, they

273

would have had to reach around the contiguous black population in a bizarre fashion,
and the plaintiffs offer no legitimate reason why the drafters should have done so.
Pinson United Methodist Church Precinct in Act 602

(APSX 123). As Fairfax said about a different racially unbalanced precinct split, it was
“just natural, unfortunately, population patterns, demographical population patterns.”
(Doc. 296-7 at 143–44).
Nor do any of the other precinct splits in Districts 58 or 59 strike us as visually
or statistically suspicious. If any two districts dispel the notion that the drafters
pursued a mechanical goal of racial targets in every district, it is these two districts.
274

District 58 fell short of its purported target by about 5 percentage points, and District
59 overshot its target by about nine percentage points. These two districts are directly
beside each other. If the drafters had intended to meet a racial target, all they needed
to do was transfer black population from District 59 to District 58. The drafters could
have reached at least one of their targets and come substantially closer to hitting their
other target. But the drafters declined to do so because they did not have an
overriding policy of mechanical racial targets in the design of either district. We find
that race did not predominate in the design of House Districts 58 or 59.
Finally, we find that race did not predominate in the design of House District
60. The district, which barely increased in black population from 67.41 percent to
67.68 percent, is similar to its former iteration.
2001 District Lines

2012 District Lines

(Ala. Reapportionment Office, supra). The new district includes 80 percent of the
same people as the old district. (ADC Supp. Ex 4). It reaches slightly farther southeast

275

into central Birmingham, and it reaches slightly farther northeast to take population
from District 51.
We find no evidence of racial predominance in the black population percentage
or the number of people moved relative to the underpopulation of the district.
Although most of the alternative plans drew District 60 with a lower black population
percentage, the Reed-Buskey Plan came within 2.03 percentage points of the previous
percentage, (Def. Ex. 406; CE 42), making it less suspicious that the enacted district is
close to the previous percentage. And in a district that was underpopulated by 8,817
people, we do not find it suspicious that the drafters moved 9,170 people. Even our
dissenting colleague acknowledges that this change is about as minimal as it gets in the
thorny process of redistricting. (Dissent at 124–25).
District 60 split only two precincts with a majority-white district, and neither
split proves that race predominated. Fultondale Senior Citizen’s Center precinct is
overwhelmingly white, and the drafters did not place an abnormal number of whites
or blacks into either district or draw a suspicious line between them.

276

Fultondale Senior Citizen’s Center Precinct in Act 602

(APSX 107). The drafters placed 858 people into District 60, 16 percent of whom are
black, and 3,933 people into District 51, 8 percent of whom are black. (Def. Ex. 405
at 547, 565). In Gardendale Civic Center precinct, the drafters placed only three
populated census blocks in District 60.

277

Gardendale Civic Center Precinct in Act 602

(APSX 108). They placed 624 people in District 60, 47 percent of them black, and
13,739 people in District 51, 6 percent of them black. (Def. Ex. 405 at 546, 564). But
the black population in this incursion accounts for less than two-thirds of a percent of
the total population of this district, and removing the small incursions into this
precinct by District 60 would cause the black population in District 60 to change
negligibly from 67.68 to 67.97 percent. The plaintiffs and the dissent have not proven
that the drafters split these precincts for predominantly racial purposes.

278

The Democratic Conference plaintiffs drew a district that was different from
the 2012 plan (and by extension the 2001 plan).
District 60 in Plan A and Act 602

District 60 in Plan A and 2001 Plan

(Doc. 287-14 at 16; Doc. 287-26 at 15). The Black Caucus plaintiffs drew the district
differently than both the legislature and the Democratic Conference plaintiffs. The
following map shows House District 60 in the 1% Plan district in orange:
House District 60 in Black Caucus 1% Plan and Act 602

279

(APSX 516). Neither group of plaintiffs explained why their choices were required by
traditional districting criteria other than precinct splits, and any improvements are not
obvious to us.
Our dissenting colleague makes several arguments, but none of them persuade
us that race predominated. First, our dissenting colleague considers the black
percentage in the enacted district to be “impressive” evidence of racial predominance.
(Dissent at 124). But, as repeatedly noted, this evidence is not conclusive of racial
predominance and it is hardly suspicious in the light of the similar percentage under
the Reed Buskey Plan. Second, our colleague reiterates his argument that the move of
House District 53 was motivated by racial considerations and that move affected the
drafting of House District 60. (Id. at 124–25). We disagree, because the decision of the
drafters to move House District 53 was motivated by massive under population in the
Birmingham area. Third, our colleague argues that the enacted district is “irregularly
shaped.” (Id. at 125). But the shape of the enacted district is no more irregular than
the district under the Black Caucus Plan or Plan A.
Fourth, our dissenting colleague argues that we have ignored evidence of
precinct splits between House District 60 and other majority black districts. (Id. at
126–27). He argues “that had [the defendants] not used any split precincts, [House
District] 60 would have been 72.5% black––more than [five percent] above its racial
target.” (Id. at 127). Beyond the false premise that race predominated because the
drafters hit their alleged racial target, this argument highlights the predicament of the
280

drafters. On one hand, if they drafted the district without precinct splits, which would
have increased the black population, the plan would have been susceptible to attack as
an attempt at packing. On the other hand, if the drafters split precincts to avoid
retrogression, their plan was susceptible to attack as a racial gerrymander. The
dissent’s mechanical view of racial predominance only exacerbates this dilemma. We
find that race did not predominate in the design of House District 60.
j.

House Districts 67, 68, 69, 70, 71, and 72 (West Black Belt)

We find that race did not predominate over traditional districting criteria in the
design of House Districts 67, 69, and 72, but we find that race predominated in the
design of House Districts 68, 70, and 71. Each of these districts is located in the rural
Black Belt of south-central Alabama, and each was severely underpopulated:
House District
67
68
69
70
71
72

Overpop. (+) or Underpop. (–) of 2001
District Using 2010 Census Data (%)
–16.79
–20.40
–17.46
–13.77
–16.32
–13.42

These districts are contained in and surrounded by rural counties with high black
population percentages. Pickens, Choctaw, Clarke, Monroe, Conecuh, and Butler
counties are over 40 percent black; Hale and Marengo counties are over 50 percent
black; Dallas and Perry counties are over 60 percent black; Wilcox, Sumter, and
Lowndes counties are over 70 percent black; and Greene County is over 80 percent

281

black. (U.S. Census Bureau, American Factfinder, supra). Unsurprisingly, as the districts
expanded to gain more population, their racial composition did not change much.
2010 Census Total Black Population Percentage in Districts 67–72
House
District
67
68
69
70
71
72

Under 2001 District Lines
(Def. Ex. 406)
69.14
62.55
64.16
61.83
64.28
60.20

Plan as Passed
(Def. Ex. 403)
69.15
64.56
64.21
62.03
66.90
64.60

Change
+0.01
+2.01
+0.05
+0.20
+2.62
+4.40

Nevertheless, even in a rural area with majority-black population, only three of the
districts matched the previous black population percentage with any precision.
District 67, which barely changed in racial composition, is a compact, sensible
district. In the 2001 plan, it fell entirely within Dallas County. Because Dallas County
does not have enough population to comply with the ±1% deviation, the drafters
filled out all of Dallas County and stretched the district north into Perry County to
gain the remaining necessary population.
2001 District Lines

2012 District Lines

282

(Ala. Reapportionment Office, supra). This district is compact and largely the same as
the previous plan.
Both the Democratic Conference and Black Caucus plaintiffs traded Perry
County for Chilton County, a choice that they do not adequately explain.
District 67 in Plan A and Act 602

District 67 in 1% Plan and Act 602

(Doc. 287-18 at 2; APSX 517). The alternative districts are no more compact, and the
plaintiffs do not explain why their choice was required by traditional districting criteria
other than precinct splits, which we address below. Chilton County, unlike Perry
County, is not considered part of the Black Belt, which all parties have recognized as a
community of interest. (Doc. 295 at 40). Alabama argues that the plaintiffs had race in
mind, (id.), to which the plaintiffs reply that they split Chilton County because of
population considerations and because Chilton County was already split, (Doc. 301 at
10). This skirmish is irrelevant because Alabama has identified a legitimate districting
criterion that it followed when it drew District 67 differently than the plaintiffs did.
And the design in Perry County is not suspicious on its own merits—the District 67
283

portion of Perry County is 60 percent black and the rest of Perry County is 70 percent
black. (Def. Ex. 405 at 584, 601). The alternative plans do nothing to persuade us that
race predominated in the design of District 67.
The plaintiffs have made two unpersuasive arguments about the overall design
of this district. First, both sets of plaintiffs complained about the ±1% population
deviation, but these attacks are futile for the reasons we discussed earlier. Second,
both sets of plaintiffs argue that the drafters should not have extended the district
outside of Dallas County, (Doc. 256 at 67–68; Doc. 258 at 63–64), but they now
admit that Dallas County does not have enough population for a district within the
deviation and their court-ordered alternative plans both extend the district outside of
Dallas County. An equally good choice is not proof that race predominated.
In the six alternative plans, District 67 consistently had a black population
percentage close to the percentage in the enacted plan. The New Black Caucus Plan,
the McClammy Plan, and the Knight Plan even came within half a percentage point.
2010 Census Total Black Population Percentages for District 67 Under Various
Plans
Under
2001
District
Lines
(Def.
Ex. 406)

69.14

Plan as
Passed
(Def.
Ex.
403)

McClammy
Plan
(Common
Ex. 45)

ReedBuskey
Plan 4
(Common
Ex. 42)

Knight
Plan
(Common
Ex. 46)

69.15

69.21

68.63

69.43

284

New
Black
Caucus
Plan
(APSX
36)

69.43

Black
Caucus
1% Plan
(Doc.
296-1)

Democratic
Conference
Plan A (Doc.
296-1)

67.28

67.3

When all of the alternative plans are so similar to the old district and the enacted
district, it is unreasonable to infer that race predominated based on the bare fact that
the enacted district matches the percentage of the old district.
The plaintiffs also argue that the drafters unnecessarily split precincts, but their
argument fails. The district splits four precincts, all of them with majority-black
District 72, (Def. Ex. 405 at 583–84, 600–01), and the plaintiffs fail to explain how
these splits prove that race predominated. Overall the splits placed roughly equal
percentages of black population in the two districts—656 people in District 67, 68
percent of them black, and 6,319 people in District 72, 70 percent of them black. (Id.).
Not every precinct split is evidence of racial gerrymandering, and the plaintiffs fail to
explain how the splits prove that race predominated.
The dissent agrees with us that race-neutral districting criteria explain the
addition of portions of Perry County to the district, but nevertheless finds that race
predominated because the drafters came within “three black people” of their alleged
target. (Dissent at 145). To find, as the dissent would have us, that race predominated
because the alleged target was met defies the instructions of Supreme Court to
presume that the legislature acted in good faith, Miller, 515 U.S. at 915, and that
Alabama’s policy only “provides evidence,” of racial predominance. Ala. Legislative
Black Caucus, 135 S. Ct. at 1267. In addition, that every other factor is indicative of
race-neutral drafting choices suggests that the Dissent’s approach fails to consider the

285

totality of the evidence. Because we must follow the approach of the Supreme Court,
we find that race did not predominate in the design of District 67.
Based on the way that District 68 splits counties and precincts, we find that
race predominated in its design. The district, which increased in black population
percentage from 62.55 percent to 64.56 percent, (Doc. 263-2), was difficult to
repopulate because it was surrounded by severely underpopulated districts. To the
north were Districts 69, 71, and 72; to the west were District 65 and Mississippi; to
the south was District 64; and to the east was District 90. (Def. Ex. 406). Moreover,
Districts 65 and 71 could not grow west into Mississippi (visible in black on these
maps).
2001 District Lines

2012 District Lines

(Ala. Reapportionment Office, supra). The incumbents in these districts, marked by
green dots, further limited the directions that District 68 could grow:

286

2012 District Lines with Incumbent Locations

(Def. Supp. Ex. 3). In response, the drafters took an irregular district from 2001 and
made it irregular in different ways.
Both Plan A and the 1% Plan include fewer counties in District 68, suggesting
that the drafters might have subordinated this part of the Committee guidelines to
race. The Democratic Conference plaintiffs drew their own irregular District 68, but it
entered two fewer counties.

287

House District 68 in Democratic Conference Plan A and Act 602

(Doc. 287-18 at 3). District 68 in the 1% Plan also enters two fewer counties.
House District 68 in Black Caucus 1% Plan and Act 602

(APSX 518).

288

The county splits raise further concerns. In all six splits, District 68 took a
population with a higher percentage of black residents than the adjacent district or
districts in that county. The part of the population of Baldwin County in District 68 is
78 percent black, but the part in District 64 is 15 percent black. (Def. Ex. 405 at 573,
584). The part of Clarke County in District 68 is 67 percent black, but the part in
District 65 is 24 percent black. (Id. at 577, 586). The part of Conecuh County in
District 68 is 61 percent black, but the part in District 90 is 22 percent black. (Id. at
587, 629). The part of Marengo County in District 68 is 72 percent black and the part
in District 72 is 70 percent black, but the part in District 65 is 32.50 percent black and
the part in District 71 is 31 percent black. (Id. at 578, 588, 596, 600). The part of
Monroe County in District 68 is 59 percent black, but the part in District 64 is 8
percent black. (Id. at 574, 590). And the part of Washington County in District 68 is
82 percent black, but the part in District 65 is 17 percent black. (Id. at 580, 591).
The inference that race predominated over the guideline on the number of
counties is strengthened by the difference in the overall black population percentage
in the alternative districts. District 68 in the 1% Plan is 53 percent black, and District
68 in Plan A is 57 percent black. (Doc. 296-1). Moreover, none of the earlier
alternative plans had a total black population percentage above 55 percent. (Common
Ex. 46). In short, the black population percentage in District 68 is suspiciously high.
The district also split 30 precincts, many along racial lines. Some of the precinct
splits have legitimate explanations. For instance, the split of Bashi Methodist Church
289

precinct, which creates one of the knobs along the northwestern border of the
district, keeps the residence of the incumbent in the district. (APSX 66; Def. Supp.
Ex. 2). In addition, the Black Caucus plaintiffs also split this district in their 1% Plan.
(APSX 633 at 5).
But it is apparent that the drafters split other precincts to find black population.
(See, e.g., APSX 71; APSX 71A). Alabama admits that splitting the precincts raised the
black population percentage in the district by almost seven percentage points, meeting
the alleged target almost exactly. We discuss the suspicious splits individually in the
following paragraphs.
In Baldwin County, the drafters placed two clusters of majority-white blocks
from Tensaw Volunteer Fire Dept precinct in District 64 and placed the intervening
majority-black blocks in District 68.

290

Tensaw Volunteer Fire Dept Precinct in Act 602

(APSX 52). But this split placed only 12 people in District 64. (Def. Ex. 405 at 572).
In Vaughn Community Center precinct, District 64 follows a body of water until
doing so would require putting large majority-black blocks into majority-white District
64, at which point it deviates and traces a line between the majority-white and
majority-black blocks.

291

Vaughn Community Center Precinct in Act 602

(APSX 53). It put 501 people in District 58, 79 percent of them black, and 304 people
in District 64, 14 percent of them black. (Def. Ex. 405 at 584, 572).
In Clarke County, majority-white District 65 takes a small part of the majoritywhite blocks in Jackson City Hall precinct and leaves all of the adjoining majorityblack blocks in District 68.

292

Zoom of Jackson City Hall and Skipper Fire Station–Jackson National Guard–
Jackson Fire Dept. Precincts in Act 602

(APSX 71A). On the other side of the precinct border in Skipper Fire Station–Jackson
National Guard–Jackson Fire Dept., the drafters put a tiny portion of the precinct in
District 68, but out of the 295 people included, 61 percent were black. (APSX 71;
Def. Ex. 405 at 585). The drafters put 3,943 people from this precinct in District 65,
of whom only 20 percent were black. (Def. Ex. 475 at 576). Although including a
small population is sometimes not strong evidence that race predominated, in this
case we find that the split is part of a pattern of racial fine-tuning. In Overstreet
Grocery precinct, the split between Districts 65 and 68 forms a somewhat regular line,
but all of the majority-black blocks were put in District 68.
293

Overstreet Grocery Precinct in Act 602

(APSX 70). The split put 368 people in District 68, 80 percent of them black, and 286
people in District 65, 17 percent of them black. (Def. Ex. 405 at 584, 576). District 68
also crosses into Fulton City Hall precinct at three points to pick up majority-black
blocks.

294

Fulton City Hall Precinct in Act 602

(APSX 67). Although it left some majority-black blocks in majority-white District 65
and moved only 73 people, it put a 62-percent black population in District 68,
compared with a 5-percent black population in District 65. (Def. Ex. 405 at 586).
Taken together, these precinct splits are evidence that race predominated in District
68.
The two precinct splits in Conecuh County do not provide strong evidence that
race predominated. First, the drafters split Brownville Fire Dept by putting a 55
percent black block of 40 people in District 68. (APSX 73; Def. Ex. 405 at 586). This
split is only slight evidence of racial predominance because it forms a straight line with

295

part of the precinct border and leaves majority-black blocks in majority-white District
90.
Brownville Fire Dept. Precinct in Act 602

(APSX 73). Second, the drafters split Nazarene Baptist Church precinct by putting
most of the majority-black blocks in District 68, but they also put majority-white
blocks in District 68 and majority-black blocks in majority-white District 90.

296

Nazarene Baptist Church Precinct in Act 602

(APSX 76). This split is not evidence that race predominated.
The precinct splits in Marengo County provide mixed evidence. First, in
Cornerstone Church precinct, the drafters drew an irregular arm that put mostly
majority-black blocks in District 68.

297

Cornerstone Church Precinct in Act 602

(APSX 165). The split put 699 people in District 68, 87 percent of whom were black,
and 1,121 people into majority-white District 65, 27 percent of whom were black.
(Def. Ex. 405 at 577, 587). Although the drafters left several accessible majority-black
blocks in District 65, this split provides some evidence that race predominated.
Second, in Thomaston precinct, the drafters split the precinct along a relatively
smooth line.

298

Thomaston Precinct in Act 602

(APSX 172). Because the drafters did not snake around looking for black population,
we find that this split is not evidence of racial predominance. Third, the drafters split
Dixon’s Mill precinct into three parts, putting the mostly black section in District 68
and the mostly white sections in District 65.

299

Dixon’s Mill Precinct in Act 602

(APSX 167). The resulting split placed 1,377 people in District 68, of whom 89
percent were black, and 234 people in District 65, of whom 7 percent were black.
(Def. Ex. 405 at 588, 577). This split brought in majority-black blocks with an
irregular shape while avoiding majority-white blocks, and it is evidence that race
predominated. Finally, in Octagon precinct, the drafters put two majority-black blocks
from opposite corners of the precinct in District 68.

300

Octagon Precinct in Act 602

(APSX 169). Of the 33 people put in District 68, 91 percent were black, compared
with the 218 people put in District 65, 22 percent of whom were black. (Def. Ex. 405
at 577, 588). This split is evidence of racial sorting.
In Monroe County, three split precincts contribute to our finding that race
predominated. First, in Shiloh/Grimes precinct, the drafters placed all four of the
majority-black blocks in District 68 using a suspicious indentation.

301

Shiloh/Grimes Precinct in Act 602

(APSX 219). The split placed 87 people in District 68, 76 percent of them black, and
26 people in District 64, 4 percent of them black. (Def. Ex. 405 at 590, 574). Second,
in Frisco City FD precinct, the drafters created a narrow protrusion into District 64
with two irregular bumps to reach majority-black blocks.

302

Frisco City FD Precinct in Act 602

(APSX 211). The drafters put 1,319 people from the precinct in District 68, 49
percent of whom were black, and 110 people in District 64, none of whom were
black. (Def. Ex. 405 at 590, 574). Third, in Excel-Coleman precinct, the drafters put a
mostly black row of census blocks in District 68. The only majority-white blocks in
the district were necessary to reach majority-black blocks, and the drafters missed no
easily accessible majority-black blocks.

303

Excel-Coleman Precinct in Act 602

(APSX 210). In the split, District 68 took 173 people, 48 percent of whom were black,
and District 64 took 3,379 people, 8 percent of whom were black. (Def. Ex. 405 at
590, 574).
Finally, we find that two splits in Washington County are evidence that race
predominated. In McIntosh Voting House Voting District precinct, District 68
invaded in a winding fashion to reach almost every reasonably accessible majorityblack block.

304

McIntosh Voting House Voting District Precinct in Act 602

(APSX 286). The drafters put 467 people into District 68, 77 percent of whom were
black, and 1,491 people in District 65, 5 percent of whom were black. (Def. Ex. 405 at
590, 579). In Carson/Preswick precinct, the drafters zigged and zagged to put almost
every majority-black block in District 68 and almost every majority-white block in
District 65.

305

Carson/Preswick Precinct in Act 602

(APSX 283). They assigned 241 people to District 68, of whom 86 percent were black,
and 329 people to District 65, of whom 17 percent were black. (Def. Ex. 405 at 590,
580). Overall, the irregularity of the district and the precinct splits convince us that
race predominated in the design of District 68.
We further conclude that District 68 satisfies strict scrutiny. The legislature had
a strong basis in evidence that a black population percentage of 62 to 65 percent was
necessary in District 68 to comply with the Voting Rights Act, and the drafters drew a
district within this range (64.56 percent). District 68 is Representative Jackson’s
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district, and he made clear at a public hearing of the Committee that the district
should be “sixty-two or sixty-five percent.” (Doc. 30-23 at 8). House District 68 is
contained mostly within Senate District 23, and the longtime incumbent in Senate
District 23, Hank Sanders, testified at even greater length about why majority-black
districts needed a black population percentage of at least 62 percent:
One of many concerns is we are not to have any less AfricanAmerican—the majority African-American districts than you have, and
that those districts ought not be less than 62 percent. And I just want to
say why 62 percent, ought not to be less than 62 percent. Many times a
population of a district is not reflective of the voters at all in that district.
Sometimes a lot of people don’t vote. Sometimes a lot of people can’t
vote. They might be in prison or other kinds of institutions. Sometimes a
lot of folks are discouraged for one reason or another. So I would hope
that 62 percent is a minimal for the majority African-American district.
(Doc. 30-28 at 6). The specific statements of the incumbents in the area, given to the
Committee, provided the drafters with a strong basis in evidence to believe that a
black population percentage of 62 to 65 percent was necessary in this area.
The plaintiffs’ evidence at trial confirmed what Sanders and Jackson told the
Committee. Dr. Reed testified that a majority-black district needs to be at least 60
percent black to allow minority voters to elect the candidate of their choice. (Doc. 216
at 159–60; Doc. 203 at 69–70). In addition, Dr. Theodore Arrington, an expert
witness for the plaintiffs in this litigation, testified in 2001 that a 61 percent black
population percentage in nearby Dallas County did not guarantee black voters the
ability to elect a county-commission candidate of their choice. (Doc. 217 at 80–81).
See also Wilson v. Jones, 130 F. Supp. 2d 1315, 1326 (S.D. Ala.) (“Dr. Arrington’s
307

position [is] that at least a 62% black voting age population was needed to assure
blacks an opportunity to elect their choices in a district . . . .”), aff’d sub nom. Wilson v.
Minor, 220 F.3d 1297 (11th Cir. 2000). The legislature may not have relied on this
testimony, but it confirms that even the plaintiffs’ experts would agree with the
evidence on which Alabama did rely.
The plaintiffs argue that the legislature also would have had a strong basis in
evidence for a lower percentage, but even if it did, it would not prove that Alabama
lacked a strong basis in evidence for the percentage it chose. The standard of a strong
basis in evidence “does not demand that a State’s actions actually be necessary to
achieve a compelling state interest in order to be constitutionally valid.” Ala. Legislative
Black Caucus, 135 S. Ct. at 1274 (quoting Brief for the United States as Amicus Curiae
29). “[L]egislators ‘may have a strong basis in evidence to use racial classifications 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.’” Id.
(quoting Brief for the United States as Amicus Curiae 29). Legislators might have a
strong basis in evidence for several different percentages.
The dissent makes several arguments of its own, but none of them defeat
Alabama’s strong basis in evidence. First, the dissent asserts that there is no evidence
that the legislature “ever applied,” “contemplated,” or “actually relied” on the
testimony of Senator Sanders or Representative Jackson. (Dissent at 34–36). But the
evidence before us proves that they did. At the public hearing in Thomasville,
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Representative Jackson—a member of the Black Caucus—explained that majorityblack districts in his area should be “sixty-two percent or sixty-five percent.” (Doc.
30-23 at 8). At the public hearing in Selma, Senator Sanders—also a member of the
Black Caucus—told Senator Dial that none of the majority-black districts should be
less than 62 percent black. (Doc. 30-28 at 6). Senator Sanders explained why he
thought this minimum was necessary—low turnout, incarceration rates, and voter
apathy. (Id.) And Senator Dial testified that he considered Senator Sanders’s opinion
credible. (Doc. 215 at 37). Reliance on Representative Jackson’s and Senator Sanders’s
testimony is not a mere litigating position.
Second, the dissent argues that “the comments were not ‘sufficiently
measurable to permit judicial scrutiny of the policies adopted to reach them.’”
(Dissent at 37 (quoting Fisher v. Univ. of Tex., 136 S. Ct. 2198, 2211 (2016)). But the
Supreme Court has never required that a state rely on studies to justify the drafting of
a voting district in which race predominated. Cf. Shaw, 517 U.S. at 915 (“[W]e have
not always provided precise guidance on how closely the means (the racial
classification) must serve the end (the justification or compelling interest.”). Indeed,
the Supreme Court admonished us that narrow tailoring does not “insist that a
legislature guess precisely what percentage reduction a court . . . might eventually find
to be retrogressive.” Ala. Legislative Black Caucus, 135 S. Ct. at 1273. More
fundamentally, the comments of Senator Sanders and Representative Jackson are
capable of being scrutinized. For instance, we know that Representative Jackson
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formulated his opinion as the incumbent of District 68, and he spoke as the
representative of that specific geographic area. If detailed comments of an incumbent
legislator do not provide a strong basis in evidence the burden of proving good
reasons has been transformed into a burden of proving actual necessity.
Third, the dissent asserts that Senator Sanders and Representative Jackson
“proposed imprecise remedies” that do not address the “precise question,” whether
“the remedy proposed . . . was tailored to . . . achieving [section] 5 compliance.”
(Dissent at 30–32). But Senator Sanders and Representative Jackson proposed precise
remedies––indeed, exact percentages––to ensure compliance with the Voting Rights
Act. Representative Jackson said a majority-minority district should be 62 percent to
65 percent African American, (Doc. 30-23 at 8), and Senator Sanders said a district
should not fall below 62 percent. (Doc. 30-28 at 6).
Fourth, the dissent argues that other “three-judge court[s]” have found it “easy
. . . to conclude” that the use of a racial target cannot satisfy strict scrutiny, (Dissent at
48–49), but, as noted above, the decisions the dissent cites are distinguishable. In Page
v. Va. State Bd. of Elections, No. 3:13-CV-678, 2015 WL 3604029 (E.D. Va. June 5,
2015), the district court struck down a redistricting plan that relied on a racial target
because the drafters presented no evidence that it was necessary to comply with the
Voting Rights Act. Id. at *18. And in Smith v. Beasley, 946 F. Supp. 1174 (D.S.C. 1996),
the court struck down a similar redistricting plan that employed a racial target without

310

supporting evidence. Id. at 1210. Here, by contrast, the testimony of incumbent
legislators provided the basis for the choices of the drafters.
Fifth, the dissent suggests that the comments of Representative Jackson and
Senator Sanders are “exactly the type of stereotyping about black voting behavior that
strict scrutiny is intended to prohibit,” (Dissent at 50), and he repeatedly recites this
charge. (Id. at 8–9, 16–17, 30, 37–39, 50). As already explained, it is hard to conceive
how the suggestions of two longtime incumbent legislators based on, in the words of
Representative Jackson, their “f[i]ght,” (Doc. 30-23 at 7), against problematic
redistricting plans in the past is not a strong basis in evidence, but instead pernicious
racial stereotyping. This evidence is just the kind of evidence––rooted in knowledge
of the redistricting process and representative of the interests of black voters––that
provides a district-specific, strong basis in evidence. Representative Jackson pleaded
that the voters of House District 68 “be heard,” (id.), and the drafters listened.
The defendants have established good reasons for their design of District 68
based on Senator Sanders’s and Representative Jackson’s statements and the plaintiffs
fail to rebut this strong basis in evidence. We will not enjoin the use of House District
68.
Next, we find that race did not predominate in the design of House District 69.
The district, which increased negligibly in black population from 64.11 to 64.21
percent, changed very little. It contains all of Wilcox and Lowndes Counties and parts
of Autauga and Montgomery Counties. In the 2001 plan, the district contained part of
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Dallas County instead of part of Montgomery County. The legislature put all of Dallas
County in District 67, which forced it to move District 69 east to find population. The
district could not easily move south or west, because all of the adjacent districts were
already underpopulated, so District 69 instead reached into Montgomery County:
2001 District Lines

2012 District Lines

(Ala. Reapportionment Office, supra). The design of the district is not bizarre. The
shape of the new district is similar to the old district and no odder.
Neither of the court-ordered alternative plans establishes that race
predominated in the design of District 69. The enacted district is at least as regular
and compact as the alternative in Plan A, and it is more regular and compact than the
alternative in the 1% Plan.

312

Overlay of Democratic Conference Plan A District 69

(Doc. 287-18 at 4).
Overlay of Black Caucus 1% Plan District 69

313

(APSX 519). In fact, both alternative districts increased the number of counties in the
district. Neither plaintiff explains why the extra county is required by traditional
districting criteria.
The only slightly odd feature of the enacted district, the hook that wraps
around into Montgomery County, avoids incumbent conflicts. To reach that
population, District 69 (in light blue) had to wrap around District 78 to avoid the
residence of the incumbent there:
Incumbent Locations in and Near District 69

(Def. Supp. Ex. 2). Because neither plaintiff extended this district into Montgomery
County, they did not show that it was possible to draw this portion of the district in a
better way.

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The plaintiffs also argue that the drafters split precincts to increase the black
population, but their argument is unconvincing. In Montgomery County, they cite the
split in Ramer Library precinct, where the drafters placed a 97 percent black
population in District 69. (Doc. 256 at 87; Doc. 258 at 66). This percentage is high,
but the lines follow a railroad and a state road. The following map puts the precinct
side-by-side with a Census Bureau map of District 69 (orange line):
5D Ramer Library Voting District
Precinct in Act 602

Census Bureau Map of Standard Coast
Line RR and Alabama SR-94

(APSX 240; U.S. Census Bureau, State Legislative District Reference Map: State House
District 69 (Alabama), http://www2.census.gov/geo/maps/dc10map/SLD_RefMap/
lower/st01_al/sldl01069/DC10SLDL01069_001.pdf). Moreover, the drafters placed
only 61 people from this precinct in District 69, and the Democratic Conference
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plaintiffs’ map establishes that the drafters could have reached for even more black
population in this area. (ADC Supp. Ex. 19C).
Almost all of the other precinct splits in District 69 fail to establish that race
predominated. Several of them—1F Al. Industrial Development Training, 2F Fire
Station No. 14 Voting District, 2G Hayneville Road Community Center Voting
District, 5E Fitzpatrick Elementary School Voting District, and 5N Peter Crump
School Voting District precincts—are split between or among majority-black districts,
and the plaintiffs fail to identify any racial pattern. (APSX 223, 226, 227, 239, 241,
244). The legislature split 2D Montgomery Boys Club Voting District precinct along
unpopulated blocks, which is a race-neutral choice that keeps the southwestern corner
of the precinct with contiguous populated blocks.
2D Montgomery Boys Club Voting District Precinct in Act 602

316

(APSX 225). We cannot find a racial pattern in the split of 2I Southlawn Elementary
School Voting District precinct, which improved on the shape of the precinct.
2I Southlawn Elementary School Voting District Precinct in Act 602

(APSX 229). The split of 5A Seth Johnson Elementary School Voting District placed
no population in District 69. (Def. Ex. 405 at 593). And the split of Booth Volunteer
Fire Station precinct in Autauga County mostly divided majority-white blocks
between Districts 42 and 69, placing 808 people in District 69, 28 percent of them
black, and 781 people in majority-white District 42, 17 percent of them black. (Id. at
591, 532).
317

Booth Volunteer Fire Department Precinct in Act 602

(APSX 50).
According to our dissenting colleague, the drafters split 5B Snowdoun Womens
Club Voting District to create a “suspicious land bridge” that allowed them to meet
their alleged target. (Dissent at 153 n.23).

318

5B Snowdoun Womens Club Voting District Precinct in Act 602

(APSX 239). While we agree with our colleague that this split allowed the drafters to
draw population from 5N Peter Crump School Voting District and 5E Fitzpatrick
Elementary School Voting District into District 69, we disagree that the only
explanation of the split is race. (Dissent at 152–53 and n. 23). One of the drafters’
stated goals was incumbent protection and this split allowed the drafters to avoid an
incumbent’s residence and add additional majority-white population from Snowdoun
and majority-black population from Peter Crump and Fitzpatrick to the
underpopulated District 69. (Def. Ex. 405 at 145). And even if the drafters split the
precinct to create a land bridge, they did not add a number of majority-black census

319

blocks in 5N Peter Crump that would have allowed them to hit their alleged target. At
best, this split is suspicious, but it is not conclusive that race predominated.
There is one suspicious precinct split in Autauga County, but the population
placed within or without the district on the basis of race is insignificant. In Safe
Harbor Ministries precinct, the drafters appear to have followed Alabama SR-14 and a
horizontal line for most of the split, except for a stepwise deviation in the eastern
corner that put exclusively majority-black blocks in District 69 and exclusively
majority-white blocks in District 42.
Safe Harbor Ministries Precinct in Act
602

Census Bureau Map of Vicinity of
Safe Harbor Ministries Precinct

(APSX 51; U.S. Census Bureau, State Legislative District Reference Map: State House District
69, http:// www2.census.gov/geo/maps/dc10map/SLD_RefMap/lower/st01_al/
320

sldl01069/DC10SLDL01069_001.pdf). But this deviation placed only 68 people in
District 69, and we cannot say that race predominated on the basis of that number. If
we remove this precinct from the district entirely, the black population percentage
stands almost unchanged at 64.39 percent.
The dissent is correct about several statistics in this district, but it
misunderstands their significance. We agree that the legislature drew a district with a
64.21 percent black population, which is above the supposed target of 64.16 percent.
(Dissent at 148). But this percentage, without evidence about what choices reflect the
subordination of traditional districting criteria to race, is insufficient to satisfy the
plaintiffs’ burden of proof. We also agree that the drafters moved 24,373 people in a
district that was underpopulated by 7,949, (id. at 149), but it is unsurprising that the
drafters had to move a lot of people to draw a sensible district with enough
population in an area with several underpopulated districts. As with the black
population percentage, we cannot find that race predominated without evidence of
how the drafters subordinated traditional districting criteria to race. For the reasons
discussed above, the plaintiffs have failed to prove that race predominated in the
design of House District 69.
We find that race predominated in the design of House District 70, which is an
urban district centered on the city of Tuscaloosa. The black population percentage in
this district increased slightly from 61.83 to 62.03 percent. (Def. Ex. 406 at 657; Def.
Ex. 405 at 594). The plaintiffs argue that the drafters split precincts and violated
321

principles of compactness to create the northeastern portion, shaped like the mouth
of a “roaring tiger,” (Doc. 272 at 83). Their argument is persuasive.
In 2012, the legislature moved the district to the east and added the tiger’s
mouth in Tuscaloosa:
2001 District Lines

2012 District Lines

(Ala. Reapportionment Office, supra). The design shifted black population from
District 70 to District 71, a majority-black district constrained by Mississippi to its
west and by underpopulated districts on most of its other borders. The legislature
then reached into the city of Tuscaloosa with the tiger’s mouth to pick up black
population.
The only explanation for the bizarre northeastern portion of the district is race.
Maps of Holt Armory and Peterson Methodist Church precincts make this pattern
clear:

322

Holt Armory Precinct in Act 602

(APSX 274). The split of Holt Armory put 3,809 people in District 70, of whom 65
percent were black, and 2,032 people in District 62, of whom 17 percent were black.
(Def. Ex. 405 at 594, 569). The mouth of the tiger also reaches into neighboring
Peterson Methodist Church precinct for accessible majority-black blocks.

323

Peterson Methodist Church Precinct in Act 602

(APSX 279). This split put 328 people in District 70, 92 percent of whom were black,
and 2,274 people in District 62, 7 percent of whom were black. (Def. Ex. 405 at 594,
569).
We find that several other precinct splits are also suspicious. In McFaland Mall
precinct, the drafters used irregular lines to place 13,374 people into District 70, 53
percent of them black; 2,925 people into District 62, 21 percent of them black; and
134 people into District 63, 10 percent of them black. (Id. at 570, 571, 594).

324

McFaland Mall Precinct in Act 602

(APSX 277). In Bama Mall precinct, the drafters used straight lines along zeropopulation areas to divide majority-black District 71 from District 70, but they also
created irregular incursions in the north by majority-white District 63 that placed 497
people in District 63, only 5 percent of them black, compared with 5,907 people in
District 70, 59 percent of them black.

325

Bama Mall Precinct in Act 602

(APSX 271).
Alabama argues that it could draw a District 70—in isolation—with no split
precincts and a higher black population percentage. (Doc. 263-3 at 2). But Alabama
placed all of Stillman College precinct in the hypothetical District 70, adding 6,002
people, 94.07 percent of them black. (Def. Ex. 405 at 593, 598). It also placed all of
Stillman College precinct in its hypothetical District 71. (Doc. 263-3). This choice
both undermines the probative value of the exercise and masks racial gerrymandering
in the other splits.

326

Both plaintiffs drew a majority-black District 70 without the tiger’s mouth. The
Democratic Conference plaintiffs managed to draw a district with a black population
percentage of 61.9 percent, only 0.1 point lower than the enacted plan.
House District 70 in Democratic Conference Plan A and Act 602

(Doc. 287-18 at 5; Doc. 296-1 at 2). This alternative district split only one precinct.
(Doc. 296-6 at 2). The Black Caucus plaintiffs drew a district that eliminated the
mouth of the tiger and had a significantly lower black population percentage of 57.52
percent. (Doc. 296-1 at 2).

327

House District 70 in Black Caucus 1% Plan and Act 602

(APSX 520). This alternative district split no precincts. (Doc. 300-1 at 49). The
alternative plans in this district are evidence that race predominated. We find that race
predominated in the design of District 70.
We also conclude that Alabama failed to prove that District 70 satisfies strict
scrutiny. Alabama makes no district-specific arguments that this district survives strict
scrutiny. The comments of Senator Sanders and Representative Jackson do not
provide a strong basis in evidence for this district because of differences between
District 70 and their districts. District 70 is in a different part of the state than the
districts that Sanders and Jackson represent, and District 70 is more urban than those
districts—87 percent of the population lived in the urbanized area of Tuscaloosa in
2010. (Def. Supp. Ex. 3 at 53). The state also fails to prove that Plan A does not
comply with federal law or the Committee guidelines, and District 70 in Plan A is just
shy of 62 percent black and involves less consideration of race. We recognize the

328

difficulties facing the drafters in this region, but the defendants failed to satisfy their
burden under strict scrutiny. We must enjoin the use of District 70 in future elections.
We also find that race predominated in the design of House District 71. The
black population increased from 64.3 to 66.9 percent, (Def. Ex. 406 at 657; Def. Ex.
403 at 422), despite severe underpopulation problems and the challenge of keeping
underpopulated District 70 as a majority-black district. The legislature drew a district
that split six counties and contained none of them wholly within it, which is two more
counties than the Democratic Conference plaintiffs included in Plan A. Moreover,
one of the county splits placed a higher black population percentage in District 71
than in the adjacent district and did so using an irregular shape with suspicious
precinct splits.
District 71 was severely underpopulated, and it bordered Mississippi to the
west, underpopulated districts to the south and east, and mostly underpopulated
districts to the north. The only adjacent district with excess population was District 62
to the northeast, which explains why District 71 grew to the northeast. As discussed
already, District 71 also grew into District 70, which then shifted east to take
population from District 62:

329

2001 District Lines

2012 District Lines

(Ala. Reapportionment Office, supra). The growth of District 71 to the northeast was
limited by two other incumbents in the Tuscaloosa area, which partially explains the
wraparound at the convergence of Districts 62, 70, and 71.
Location of Incumbents in Districts 61, 62, and 70

(See Def. Supp. Ex. 2).
Both plaintiffs split fewer counties in their alternative plans. The Democratic
Conference plaintiffs did not enter Pickens or Choctaw Counties, instead making
Sumter and Marengo Counties whole and filling out more of other counties:

330

House District 71 in Conference Plan A and Act 602

(Doc. 287-18 at 6). The Black Caucus plaintiffs drew a different district with all of
Marengo County and parts of Pickens, Sumter, and Wilcox Counties. The following
map shades District 71 in yellow:
House District 71 in Black Caucus 1% Plan and Act 602

331

(APSX 521). These alternative plans are evidence that the drafters used race to the
detriment of the Committee guideline on counties.
Several county splits are not suspicious. The percentages in Greene, Marengo,
and Sumter Counties are relatively close to the percentages in the adjoining districts.
Black Population Percentages in Greene, Marengo, and Sumter Counties by
House District
Total
Population
in District
71

Black Pop.
Percentage
in District
71

Adjoining
District

Total
Population
in Adjoining
District

Greene

4,159

83.75%

Marengo
Sumter

4,552
9,268

30.65%
79.68%

72
61
65
72

4,874
12
5,673
4,495

Black Pop.
Percentage
in
Adjoining
District
79.73%
8.33%
32.50%
65.21%

(Def. Ex. 405 at 595–98, 578, 566). Only in Greene County does the split strike us as
odd, but Hinaman testified at trial that Representative Harper requested that part of
Greene County because he “had a house or a cabin on that property in Greene
County and was thinking of potentially moving there.” (Doc. 217 at 151). This
explanation is a race-neutral reason for the county split.
Only one precinct split in these counties is suspicious, but it is not significant.
In Marengo County, the legislature split Jefferson precinct along racial lines:

332

Jefferson Precinct in Act 602

(APSX 168). The legislature put 79 people in District 65, 4 percent of them black, and
637 people in District 71, 85 percent of them black. But this split does not affect a
significant number of people by itself.
We also find no evidence in Tuscaloosa County that race predominated. The
splits with Districts 61, 62, and 63 are suspicious at first glance, but the Democratic
Conference plaintiffs drew an alternative district with a similar shape in Tuscaloosa
County. The following map marks their District 71 with a black line and shades the
enacted plan in orange and red:
333

Democratic Conference District 71 in Tuscaloosa County

(Doc. 287-18 at 6). Fairfax also testified that county splits are not always the result of
racial considerations:
Q.

Okay. So is this true, that if you look at a county that’s split three
ways and one section is 60–65 percent black, the other section’s
20 percent, the other section’s 15 percent black, that’s not enough
to tell you whether there was something hinky going on, is there?
There might be other reasons—

A.

Right, absolutely. That’s just one piece.

(Doc. 296-7 at 137). And the southern border is explained by a state highway, an
interstate highway, and a body of water, while the odd mouth around District 62 has
to do with the residences of incumbents.

334

Census Bureau Map of House District 71

(U.S. Census Bureau, State Legislative District Reference Map: State House District 71
(Alabama), https://www.census.gov/geo/maps-data/maps/sldl/st01_al.html).
Location of Incumbents in Districts 62 and 70

(Def. Supp. Ex. 2)
Most of the precinct splits in Tuscaloosa County are not suspicious.
Northport Community Center precinct appears suspicious at first, but it follows a
regular line of mostly zero-population blocks.

335

Northport Community Center Precinct in Act 602

(APSX 278). This precinct split provides no evidence that race predominated in
District 71.
The split of Pickens County follows traditional districting criteria.

336

Census Bureau Map of House District 71 in Pickens County

(U.S. Census Bureau, State Legislative District Reference Map: State House District 71
(Alabama), http:// www2.census.gov/geo/maps/dc10map/SLD_RefMap/lower/
st01_al/sldl01071/DC10SLDL01071_001.pdf; see also U.S. Census Bureau, TigerWEB,
http:// tigerweb.geo.census.gov/tigerweb/). The district begins in the northwest at
the Mississippi border along a precinct line just north of Pickensville. It follows
precinct lines to the northeast along Coal Fire Creek until it reaches County Road 26.
It then splits Carrollton 4 Service Center precinct along County Road 26 to the

337

intersection with State Route 86, at which point it splits the precinct along County
Road 26, then follows the precinct boundary, which is also State Route 17.
Carrollton 4 Service Center Precinct in Act 602

(APSX 250). From the city of Carrollton, the drafters assigned a 45 percent black
population to District 71 and a 41 percent black population to District 61. (Def. Supp.
Ex. 3). The district then splits Aliceville 2 Nat’l Guard Armory precinct with no
apparent racial pattern, putting a 78 percent black population in majority-white
District 61 and an 82 percent black population in District 71. (Def. Ex. 405 at 596,
567). Finally, the district reaches precinct lines and exits the county. The split of the
338

city of Aliceville provides no evidence that race predominated; the legislature put an
86 percent black population in District 71 and a 71 percent black population in
District 61, both of which are higher percentages of black population than District 71
has as a whole. (Def. Supp. Ex. 3).
Aliceville 2 Nat’l Guard Armory Precinct in Act 602

(APSX 249). We find that the split of Pickens County does not prove that race
predominated.

339

But the design of the district in Choctaw County is evidence that race
predominated. The following map of the portion of District 71 in Choctaw County
shows District 71 in gray, District 65 in yellow, and precinct lines in blue:
Close-Up of District 71 in Choctaw County in Act 602
YantleyCromwell

CrossroadsIntersectionHalsell

PenningtonPelham

LismanPushmataha

Riderwood-Rock
Springs

Butler-Lacava-Mt.
Sterling

(Def. Supp. Ex. 38 (precinct and county labels added by the Court)). Along the border
with Mississippi, the district includes both Yantley-Cromwell precinct and part of
Lisman-Pushmataha precinct. The split of Lisman-Pushmataha precinct put a 56
percent black population into a majority-white district and an 89 percent black
population into District 71. The line does not wind around suspiciously, but it does
increase the black population percentage for the district as a whole.

340

Lisman-Pushmataha Precinct in Act 602

(APSX 64). The district line took an 87 percent black portion of Riderwood–Rock
Springs precinct, leaving a 35 percent black portion in District 65. (Def. Supp. Ex. 405
at 595, 576).

341

Riderwood–Rock Springs Precinct in Act 602

(APSX 65). Again, the split does not wind around, but it did increase the black
population percentage of District 71. The district then cuts east across Butler–
Lacava–Mt. Sterling Voting District, avoiding the majority-white town of Butler, (Def.
Supp. Ex. 3), and several majority-white blocks along the border in District 65.

342

Butler–Lacava–Mt. Sterling Voting District Precinct in Act 602

(APSX 62). The split put a 92 percent black population in District 71 and a 33 percent
black population in District 65. (Def. Supp. Ex. 405 at 595, 575). From there, the
district heads north to split Crossroads-Intersection-Halsell Voting District precinct.

343

Crossroads-Intersection-Halsell Voting District Precinct in Act 602

(APSX 63). This split put 581 people in District 71, 81 percent of them black, and 15
people in District 65, none of them black. (Def. Supp. Ex. 405). From there, the
district splits no more precincts in the county. But the design in Choctaw County
exhibits a pattern of racial sorting. It placed 3,461 people in District 71, 81 percent of
whom were black, (Def. Ex. 405 at 595), and excluded 3,719 in precinct splits, only 34
percent of whom were black.
The percentage of black population in District 71 provides further evidence
that race predominated. All of the alternative plans had a lower percentage.

344

2010 Census Total Black Population Percentages in District 71 Under Various
Plans
Under
2001
District
Lines
(Def. Ex.
406)

64.28

Plan as
Passed
(Def.
Ex. 403)

McClammy
Plan
(Common
Ex. 45)

ReedBuskey
Plan 4
(Common
Ex. 42)

Knight
Plan
(Common
Ex. 46)

66.90

60.42

59.43

54.45

New
Black
Caucus
Plan
(APSX
36)

63.82

Black
Caucus
1%
Plan
(Doc.
296-1)

59.54

Democratic
Conference
Plan A
(Doc. 2961)

59.8

Although not dispositive, this disparity is significant.
We are convinced by the exhibits about Choctaw County and the court-ordered
alternative plans that race predominated in the design of District 71. In the enacted
plan, District 71 is 67 percent black, but in the court-ordered alternative plans it
would be 60 percent black. District 71 did not previously contain Choctaw County,
and the Democratic Conference plaintiffs drew District 71 without it. District 71
includes 3,461 people from Choctaw County, 81 percent of them black, (Def. Ex. 405
at 595), and District 65 includes 10,398 people from Choctaw County, only 31 percent
of them black. (Id. at 576). In Choctaw County, District 71 follows irregular lines with
four split precincts out of six overall. In those four split precincts, the drafters
included 1,791 people, 86 percent of them black, (id. at 594–95), and excluded 1,254
people, 34 percent of them black, (id. at 575–76). Based on this evidence about
Choctaw County and the alternative plans, we find that race predominated in the
design of District 71.
We next conclude that District 71 does not satisfy strict scrutiny. Alabama
cannot rely on the comments of Senator Sanders and Representative Jackson because
345

District 71 exceeded the 62 to 65 percent range by nearly two points. The state
provided no evidence that a higher percentage was necessary to comply with either
section 2 or section 5 in District 71. We must enjoin the use of House District 71 in
future elections.
We do not find that race predominated in House District 72. The black
population increased from 60.12 to 64.60 percent, (Def. Ex. 406 at 657; Def. Ex. 403
at 422), and the district suffered from the same pressures as the other districts in this
area. It was severely underpopulated and surrounded almost entirely by other severely
underpopulated districts. The drafters expanded west into Greene and Sumter
Counties, but gave most of the population of Marengo County to Districts 65 and 68.
District 72 also gave part of its Perry County population to District 67, which needed
a small number of people to reach the ±1% population deviation.
District 72 is about as compact and regular as it was under the 2001 plan, and it
maintains the same core.
2001 District Lines

2012 District Lines

346

(Ala. Reapportionment Office, supra). The edges of the district reach out just far
enough to take in parts of several small cities: Eutaw in the northwest, Livingston in
the southwest, Marion in the southeast, Brent in the northeast, and Centerville in the
northeast. (U.S. Census Bureau, State Legislative District Reference Map: State House District
72 (Alabama), http://www2.census.gov/geo/maps/dc10map/SLD_RefMap/lower/
st01_al/sldl01072/DC10SLDL01072_001.pdf).
Both plaintiffs eliminated at least one county in their alternative plans, but this
difference is not conclusive evidence that race predominated. The Democratic
Conference plaintiffs eliminated two partial counties, Greene and Sumter.
House District 72 in Democratic Conference Plan A and Act 602

(Doc. 287-18 at 7). District 72 in Plan A has a black population percentage of 54.0
percent (Doc. 296-1 at 2), 6.2 points lower than the 2010 Census population under
347

the 2001 lines and 10.6 points lower than the 2010 Census population under the 2012
lines. (Def. Ex. 406 at 657; Def. Ex. 403 at 422). The Black Caucus plaintiffs
eliminated only Sumter County.
House District 72 in Black Caucus 1% Plan and Act 602

(APSX 522). The black population percentage in District 72 in the 1% Plan is 60.88
percent (Doc. 296-1 at 2), which more closely met the previous percentage of 60.12
percent.
The additional counties in the enacted plan are not evidence that race
predominated because the black population in both of those counties was lower in
District 72 than in the county as a whole:

Bibb
Greene
Hale
Marengo

Black Pop. Percentage in
District 72 Portion of County
54.9%
79.7%
59.0%
69.5%
348

Black Pop. Percentage in
County
22.0%
81.5%
59.0%
51.7%

Perry
Sumter

69.9%
65.2%

68.7%
75.0%

(Def. Ex. 405 at 599–601; U.S. Census Bureau, American FactFinder, supra).
Whatever the drafters might have been doing by adding those counties, they were not
attempting to increase the black population by adding portions of Greene and Sumter
Counties, which is all that the plaintiffs have argued. And unlike in some other
districts, the overall picture of county splits does not suggest that race predominated:
the black population percentages in the Bibb County and Marengo County portions
of District 72 are significantly higher than in those counties as a whole, but the
portions in Greene and Sumter Counties are lower and the portion in Perry County is
less than one percentage point away from the county as a whole. The Democratic
Conference plaintiffs initially argued on remand that each new county split brought a
majority-black population into the district, (Doc. 258 at 73), but when they drew a
plan attempting to comply with the Committee guidelines, they also put a majorityblack population from Marengo County in the district while averring that race did not
predominate in their plan.
The Democratic Conference plaintiffs also argue for the first time in their reply
brief that the splits of the cities of Brent and Centreville prove that race
predominated. This argument is not persuasive because of the history of District 72.
We recognize that these cities border each other, the legislature split both of them,
and the black population from each city is higher in District 72 than in District 49.
349

But the Democratic Conference plaintiffs neglect to mention—and Alabama did not
have a chance to point out—that the 2001 plan also split both cities. The plaintiffs do
not argue that the old district is a racial gerrymander, so the mere fact that these cities
were split is not evidence that race predominated.
The shape of the splits—which the Democratic Conference plaintiffs neglect to
discuss—also is not evidence that race predominated. As an initial matter, the drafters
preserved the basic shape from 2001 by taking population from the south in both
cities. It is not unusual that the shape of the split would change in a district that
needed to grow, and we do not find the current shape to be bizarre. The following
maps compare the old and new lines, with the district line in red, the city limits in
gray, and highways in yellow and blue:
2001 District Lines

2012 District Lines

(Ala. Reapportionment Office, supra). The small square protrusion to the north in
Centreville was present in the 2001 lines. In Brent (the western city), the only new
irregularity is a peak that follows one highway and a valley that follows another
highway. In Centreville (the eastern city), the district takes a coherent portion of this
350

L-shaped city. The following map from the Census Bureau makes both of these
choices clear:
Census Bureau Map of Centreville and Brent

(U.S. Census Bureau, State Legislative District Reference Map: State House District 72
(Alabama), http:// www2.census.gov/geo/maps/dc10map/SLD_RefMap/lower/
st01_al/sldl01072/DC10SLDL01072_001.pdf).
The Democratic Conference plaintiffs rely on the fact that District 72 takes a
higher black population percentage from both cities than District 49 does, but we do
not find any evidence that race predominated. In the enacted plan, District 72 has
3,903 people from Brent, 64 percent of them black, and District 49 has 1,044 people
from Brent, 16 percent of them black. (Def. Supp. Ex. 3). But in 2001—the parties

351

have not provided us with data on the splits of cities in 2010—District 72 had 3,631
people from Brent, 53 percent of them black, and District 49 had 663 people from
Brent, 13 percent of them black. (Def. Ex. 411 at 810, 822). The difference is similar
(48 percent in 2012 and 40 percent in 2001), and the black population in the city
increased between the 2000 Census and 2010 Census from 47 percent to 53 percent.
The numbers in Centreville may seem more suspicious at first: 128 people in District
72 in 2001 (0 percent black), 2,338 people in District 49 in 2001 (19 percent black),
749 people in District 72 in Act 602 (47 percent black), and 2,029 people in District
49 in Act 602 (15 percent black). (Def. Supp. Ex. 3; Def. Ex. 411 at 811, 822). But
Centreville changed between 2000 and 2010: it grew from 2,446 people in 2000 to
2,778 people in 2010, and it went from 18 percent black in 2001 to 24 percent black in
2010. (Def. Supp. Ex. 3; Def. Ex. 411 at 811, 822). The drafters put a black
population percentage from Centreville in District 49 that is almost the same as the
overall percentage in the city. On this record, the plaintiffs’ last-minute argument
about Brent and Centreville fails to convince us that race predominated.
Of course, the plaintiffs could still prove that race predominated because the
drafters split precincts on the basis of race, but they fail to do so. In Bibb County, the
legislature split Brent City Hall-13 precinct.

352

Brent City Hall-13 Precinct in Act 602

(APSX 54). The split put 67 people into District 49, 6 percent of them black, and
3,569 people in District 72, 68 percent of them black. (Def. Ex. 405 at 543, 599). If we
include those 67 people in the district, the black population percentage remains
almost unchanged at 64.51 percent, instead of 64.60. We find that this split does not
prove that race predominated.
The remaining precinct splits in Bibb County are not at all suspicious. First, in
Eoline Fire Dept-3 precinct, the legislature put 408 people in District 72, 2 percent of
them black, and 90 people in District 49, none of them black. (Id. at 542, 599).
353

Second, in Rock Building-5, the legislature put 436 people in District 72, 19 percent of
them black, and 1,445 people in District 49, 8 percent of them black. (Id.). There is
nothing visually suspicious about the split, which smooths out the district line.
Rock Building-5 Precinct in Act 602

(APSX 59). Third, in Brent National Guard Armory precinct, the legislature put 697
people in District 72, 41 percent of them black, and 2,436 people in District 49, 17
percent of them black. (Def. Ex. 405 at 542, 599). But again, the split is not visually
suspicious.

354

Brent National Guard Armory Precinct in Act 602

(APSX 59). Fourth, in Eoline Fire Dept.-12 precinct, the legislature put 189 people in
District 72, 46 percent of them black, and 754 people in District 49, 7 percent of them
black. But there is nothing visually suspicious about this split either.

355

Eoline Fire Dept.-12 Precinct in Act 602

(APSX 56).
Finally, the black population percentage in District 72 does not prove that race
predominated. District 72 exceeds its target by 4.4 points, but three alternative plans,
including the 1% Plan, also exceed the target:

356

2010 Census Total Black Population Percentages in District 72 Under Various
Plans
Under
2001
District
Lines
(Def. Ex.
406)

60.20

Plan as
Passed
(Def. Ex.
403)

McClammy
Plan
(Common
Ex. 45)

ReedBuskey
Plan 4
(Common
Ex. 42)

Knight
Plan
(Common
Ex. 46)

64.60

60.37

55.37

56.25

New
Black
Caucus
Plan
(APSX
36)

62.65

Black
Caucus
1%
Plan
(Doc.
296-1)

60.88

Democratic
Conference
Plan A
(Doc. 2961)

54.0

Whether the theory is that the legislature sought to meet the previous percentage as
closely as possible or that the legislature sought to meet or exceed the previous
percentage, the alternative plans are yet again proof that demographics and legitimate
districting criteria dictated the design of the district. We find that race did not
predominate in the design of House District 72.
k.

House Districts 76, 77, and 78 (Montgomery)

We find that race did not predominate over traditional districting criteria in the
design of House Districts 76 and 78, but that race predominated in the design of
House District 77. All three districts, located in the city of Montgomery, were
underpopulated in 2010, two of them severely:
House District
76
77
78

Overpop. (+) or Underpop. (–) of 2001 District Using
2010 Census Data (%)
–1.38
–23.12
–32.16

(Def. Ex. 406 at 657). To solve the underpopulation problem, Representative
McClammy, a black Democrat and the incumbent in House District 76, proposed that
the drafters move District 73—a district in the Montgomery area that had been
357

majority-white but had become plurality-black, and was represented by a white
Democrat—to Shelby County. (Doc. 217 at 134–35, 229–30). This move solved both
the underpopulation in Montgomery and the overpopulation in Shelby County. (Id. at
133–34).
The plaintiffs argue that the decision to move District 73 proves that race
predominated over traditional districting criteria, but they made the same decision in
the New Black Caucus Plan and Democratic Conference Plan A. Even if the plaintiffs
had not made the same decision, their challenge would still fail. We previously found
that “Hinaman moved House District 73 . . . to avoid retrogression of the majorityblack House districts in Montgomery County.” (Doc. 203 at 33). He also moved the
district to solve the underpopulation of the districts in Montgomery County and the
overpopulation of the districts in Shelby County. Hinaman testified that Shelby
County “was the fastest growing county in the state,” that “every district whole or
part that was in Shelby County was overpopulated,” and that House District 41 “was
dramatically overpopulated.” (Doc. 217 at 134). “[I]t made sense to move [House
District 73] to a much faster growing area.” (Id.) The Shelby County House districts
were all overpopulated by as much as 60 percent. (Def. Ex. 411 (Districts 41–43, 48–
50)). Moving District 73 into Shelby County was a change from the previous plan, but
it was reasonably calculated to be less disruptive than evening out every district in
Shelby County. The move also solved the problem of the underpopulation of the

358

majority-black districts in Montgomery, and the Republican majority made a
legitimate partisan choice to move a Democratic district instead of a Republican one.
The 2012 districts bear little resemblance to the size or shape of the 2001
districts, although the drafters kept District 77 to the north of District 76 and District
78 to the west of both:
2001 District Lines

2012 District Lines

Zoom of 2012 District Lines

(Ala. Reapportionment Office, supra). The districts are not noticeably less regular or
compact than in the 2001 plan.

359

The Democratic Conference plaintiffs drew a different configuration, but we
cannot say that it proves that race predominated. In Plan A District 76, the only
overlap with the enacted district is the incumbent’s home precinct.
House District 76 in Democratic Conference Plan A and Act 602

(Doc. 287-16 at 4). In District 77, the Democratic Conference plaintiffs drew a district
farther to the south.
House District 77 in Conference Plan A and Act 602

(Id. at 5). And in District 78, they drew a district farther to the west and south.

360

House District 78 in Democratic Conference Plan A and Act 602

(Id. at 6).
The Black Caucus 1% Plan suffers from the same shortcomings. The Black
Caucus plaintiffs moved District 76 southward.
House District 76 in Black Caucus 1% Plan and Act 602

(APSX 523). In District 77, they made choices similar to the Democratic Conference
plaintiffs.

361

House District 77 in Black Caucus 1% Plan and Act 602

(APSX 524 (Black Caucus District 77 in pink)). And in District 78, they again made
choices similar to the Democratic Conference plaintiffs.
House District 78 in Black Caucus 1% Plan and Act 602

362

(APSX 525 (Black Caucus District 78 in gray)). The plaintiffs never explain why their
choices were required by traditional districting criteria other than avoiding precinct
splits, an argument we reject later.
None of the three enacted districts came particularly close to matching the
prior black population percentage, which undermines the plaintiffs’ arguments about
mechanical targets in these districts.
2010 Census Total Black Population Percentages Under Various Plans
House District
76
77
78

Under 2001 District
Lines (Def. Ex. 406)
69.56
73.52
74.26

Plan as Passed
(Def. Ex. 403)
73.79
67.04
69.99

Change
+4.25
–6.48
–4.27

Moreover, as with House Districts 58 and 59 in Birmingham, the drafters put “too
much” black population in one district and “too little” in adjoining ones, instead of
smoothing out the racial percentages to meet the supposed targets. It is implausible
that they were mechanically pursuing a target here.
There is also nothing abnormal about the high percentage of black population
in these districts. In fact, several of the alternative plans surpass the black population
percentages in the enacted districts:

363

2010 Census Total Black Population Percentages of Majority-Black Districts in
Montgomery County Under Various Plans
House
District

76
77
78

Under
2001
District
Lines
(Def. Ex.
406)

69.54
73.52
74.26

Plan as
Passed
(Def.
Ex.
403)

McClammy
Plan
(Common
Ex. 45)

ReedBuskey
Plan 4
(Common
Ex. 42)

Knight
Plan
(Common
Ex. 46)

73.79
67.04
69.99

75.62
67.34
73.03

64.36
62.31
74.21

*83.58
59.38
58.70

New
Black
Caucus
Plan
(APSX
36)

63.79
65.61
66.92

Black
Caucus
1%
Plan
(Doc.
296-1)

63.99
65.43
66.76

Democratic
Conference
Plan A
(Doc. 296-1)

59.3
63.5
77.5

* The Knight plan moves House District 76 out of Montgomery County and leaves House District
73 in the county, so this table lists the black population percentage for Knight Plan House District
73.

As the table shows, the earlier alternative plans had black populations as high as 83.6
percent. When the plaintiffs drew court-ordered plans attempting to comply with the
Committee guidelines, they again drew districts with strong black majorities. In the
1% Plan, District 76 is 9.8 points lower, but District 77 is only 1.61 points lower and
District 78 is 3.23 points lower. In Plan A, District 76 is 14.49 points lower, but
District 77 is 3.54 points lower and District 78 is 7.51 points higher. No plaintiff drew a
map with less than a black supermajority in any of the three districts, at least without
creating a 77 percent black population percentage elsewhere in the county, as Plan A
would do. And to the extent that the plaintiffs’ alternative districts had a lower black
population percentage, they failed to explain why their choices were required by
traditional districting criteria.
We find no suspicious precinct splits in District 76. In 1A Cloverdale
Community Center Voting District, 1E Aldersgate United Methodist Church Voting
District, 2B Beulah Baptist Church Voting District, and 2H Harrison Elementary
364

School Voting District precincts, the drafters split the precinct with one or more
other majority-black districts. (APSX 220, 222, 224, 228; Def. Ex. 405 at 611, 613).
There is no apparent pattern in the splits, and the plaintiffs identify none. We also
observe that the Democratic Conference plaintiffs split 1A Cloverdale Community
Center precinct in their Plan A. (Doc. 296-6 at 3). In 1F Al. Industrial Development
Training precinct, the drafters extended a straight line from the two adjacent precincts
and moved only four people into District 69.
1F AL Industrial Development Training Precinct in Act 602

365

(APSX 223). In 5A Seth Johnson Elementary School Voting District precinct, the
drafters split off unpopulated areas. (APSX 238). In 5B Snowdoun Womens Club
Voting District precinct, the drafters drew a straight line that put a majority-white
block with three people and several zero-population blocks in District 76, keeping
those areas connected to populated blocks in adjacent precincts.
5B Snowdoun Womens Club Voting District Precinct in Act 602

(APSX 239). In 5E Fitzpatrick Elementary School Voting District precinct, the
drafters placed 2,784 people in neighboring District 69, 82 percent of them black, and
6,568 people in District 76, 65 percent of them black. (Def. Ex. 405 at 593, 608). The
366

Democratic Conference plaintiffs also split 5E Fitzpatrick Elementary School and put
a 75 percent black population in District 77 and a 54 percent black population in
District 90. (Doc. 296-6 at 3).
5E Fitzpatrick Elementary School Voting District Precinct in Act 602

(APSX 241). In 5M Bell Road YMCA Voting District precinct, the drafters drew
smooth lines that deviated only to pick up majority-white blocks.

367

5M Bell Road YMCA Voting District Precinct in Act 602

(APSX 243). And in 5N Peter Crump School Voting District precinct, the drafters
drew a straight line across the middle of the district, splitting majority-black blocks on
both sides.

368

5N Peter Crump School Voting District Precinct in Act 602

(APSX 244). We find that race did not predominate in the design of District 76.
We find no suspicious precinct splits in District 78 either. The plaintiffs again
offer no explanation about racial predominance in the splits between and among
majority-black districts, and we see no evidence in the maps and statistics. As for the
other splits, 2D Montgomery Boys Club Voting District precinct the drafters followed
a smooth line of zero-population blocks.

369

2D Montgomery Boys Club Voting District Precinct in Act 602

(APSX 225). In 2I Southlawn Elementary School Voting District, 2F Fire Station No.
14 Voting District, and 2G Hayneville Road Community Center Voting District
precincts, the drafters split predominantly majority-black blocks with no apparent
pattern.

370

2I Southlawn Elementary School Voting District Precinct

(APSX 229).

371

2F Fire Station No. 14 Voting District Precinct in Act 602

(APSX 226).

372

2G Hayneville Road Community Center Voting District Precinct in Act 602

(APSX 227). In 5K Lakeview Baptist Church Voting Center precinct, they split
predominantly majority-white blocks with no apparent pattern.

373

5K Lakeview Baptist Church Voting Center Precinct in Act 602

(APSX 242). In 3F Goodwyn Community Center Voting District, they split the
precinct along a railroad near unpopulated areas, both legitimate explanations for the
split.

374

3F Goodwyn Community Center Voting District in Act 602

(APSX 231).

375

Census Bureau Map in the Vicinity of 3F Goodwyn Community Center Voting
District Precinct

(U.S. Census Bureau, State Legislative District Reference Map: State House District 74
(Alabama), http://www2.census.gov/geo/maps/dc10map/SLD_RefMap/lower/
st01_al/sldl01078/DC10SLDL01078_001.pdf). And in 4K Chisholm Community
Center Voting District precinct, the drafters put ten people in District 74. If we add
those people to the district, the black population changes by about one-hundredth of
a point, decreasing to 69.98. (APSX 235). We find that race did not predominate in
the design of District 78.
In District 77, most of the precinct splits provide no evidence that race
predominated. The plaintiffs offer no argument about—and we can find no sign of—
racial predominance in precinct splits between District 77 and majority-black districts.

376

(APSX 220, 222, 224, 232, 233, 234, 236; Def. Ex. 405 at 607, 609–13). The split of
4N Highland Avenue Baptist Church precinct extended a straight line from the
precinct to the north, smoothing out the district shape and putting a majority-white
block of six people in District 74.
4N Highland Avenue Baptist Church Precinct in Act 602

(APSX 237). There is no evidence of racial predominance in these precincts.
But In 1B Vaughn Park Church of Christ Voting District precinct, the drafters
drew an irregular line that put almost all of the majority-black blocks in District 77.

377

1B Vaughn Park Church of Christ Voting District Precinct in Act 602

(APSX 221). The split placed 6,719 people in District 77, 57 percent of them black,
and 3,152 people in District 74, 16 percent of them black. (Def. Ex. 405 at 603, 609).
This precinct is split along almost identical lines in Senate District 26, (see APSX 354),
and we find that a similar phenomenon occurred in both districts: the drafters split
this precinct along racial lines to place a higher percentage of black population in
District 77 and keep the overall black population percentage in majority-white District
74 under 25 percent. When Alabama drew a hypothetical district with no split
precincts for purposes of litigation, the black population percentage in District 77
increased by only 0.9 points. (Doc. 263-2 at 2). But when we unsplit the precinct
according to our method that tracks the plaintiffs’ arguments, the black population

378

percentage in District 77 drops significantly to 63.8 percent instead of 67.04 percent.
(Def. Ex. 405 at 609–11). On the basis of all of the evidence about this split precinct,
we find that race predominated in the design of District 77.
We further conclude that District 77 fails strict scrutiny. Alabama makes no
arguments about why District 77 in particular survives strict scrutiny, and the black
population percentage of 67.04 percent exceeds the range recommended by Senator
Sanders and Representative Jackson. We must enjoin the use of District 77 in future
elections.
l.

House Districts 82, 83, 84, and 85 (East Black Belt)

We find that race did not predominate over traditional districting criteria in the
design of House Districts 83 and 84, but that race did predominate in the design of
House Districts 82 and 85. Each of these districts are located in the eastern portion of
the Black Belt, and each was underpopulated:
House District
82
83
84
85

Overpop. (+) or Underpop. (–) of
2001 District Using 2010 Census
Data (%)
–4.68
–9.85
–9.24
–6.79

(Def. Ex. 406 at 658).
House District 82, which saw its black population increase from 57.18 to 62.14
percent, (Doc. 263-2 at 3), includes all of Macon County in the old and new plans.
Macon County is 83 percent black. (U.S. Census Bureau, American FactFinder, supra). In
379

the 2001 plan, the district extended south into Bullock County, which was over 70
percent black in the 2010 Census, (id.), and northeast into Lee County. The district
now extends into Tallapoosa County instead of Bullock County; it gave up its Bullock
County population to District 84, which was also underpopulated. (Def. Ex. 406 at
658). District 82 extends further into Lee County in the east, and it extends north of
U.S. Route 280 into Tallapoosa County to take in population from Camp Hill and
Dadeville. (U.S. Census Bureau, Alabama State Legislative District Reference Map: State
House District 82 (Alabama), http:// www2.census.gov/geo/maps/dc10map/
SLD_RefMap/lower/st01_al/sldl01082/DC10SLDL01082_001.pdf).
2001 District Lines

2012 District Lines

(Ala. Reapportionment Office, supra).
The black population percentage of District 82 does not provide much
evidence one way or another. The drafters exceeded their supposed target by nearly
five percentage points. (Def. Ex. 403 at 423; Def. Ex. 406 at 658). Both Plan A and
the 1% Plan come closer to matching the previous percentage than Act 602 did. (Doc.
296-1 at 3). Even assuming that exceeding the target is evidence that race
380

predominated, the enacted district is still similar to the alternative plans. The enacted
district has a total black population of 62 percent, (Def. Ex. 403 at 423); the Black
Caucus plans on remand had similar populations that were 66 percent black, (APSX
36 at 2), and 61 percent black, (Doc. 296-1 at 3); the McClammy Plan had a black
population percentage of 61.14 percent (Common Ex. 45 at 4); and the Democratic
Conference Plan A and Reed-Buskey Plan had somewhat lower populations that were
57.9 percent black and 57.22 percent black, respectively, (Doc. 296-1 at 3; Common
Ex. 42 at 4).
The Democratic Conference plaintiffs eliminated one of the antennae in
Tallapoosa County and smoothed out the border in Lee County:
House District 82 in Democratic Conference Plan A and Act 602

(Doc. 287-18 at 8).

381

The 1% Plan is less probative because it is in a different location and because
the plaintiffs do not explain why their decision to remove Lee and Tallapoosa
Counties was required by traditional districting criteria. The following map shows
District 82 in the 1% Plan in gray and District 82 in Act 602 with a purple line marked
by “82” in a purple circle:
House District 82 in Black Caucus 1% Plan and Act 602

(APSX 526). Because it crosses the same number of county boundaries, has a roughly
similar percentage of black population, and does not prove that it is possible to draw a
better shape in Lee County, the 1% Plan does not provide much evidence that race
predominated in the design of District 82.
The racial pattern of the county splits provides strong evidence that race
predominated. The drafters used irregular lines to put 19,043 people from Lee County
in District 82, 37 percent of whom were black; 28,644 people in neighboring District

382

38, 13 percent of whom were black; and 45,972 in neighboring District 79, 12 percent
of whom were black. (Def. Ex. 405 at 619, 527, 614). The drafters also used antennae
to put 5,363 people from Tallapoosa County in District 82, 68 percent of whom were
black, and 36,253 people in neighboring District 81, only 21 percent of whom were
black. (Id. at 620, 618).
The plaintiffs also are correct that the precinct splits in Tallapoosa County and
the city of Auburn establish that race predominated. The drafters placed a
concentrated black population in District 82 while avoiding areas with white
population. (APSX 136, 268). The remainder of the district is smooth and compact,
but Alabama has offered no reason why the drafters extended two thin antennae that
pick up black population and split precincts to do so.
We begin with Auburn precinct because of its size. The drafters pushed
District 82 eastward to reach the major areas of black population.

383

Auburn Precinct in Act 602

(APSX 136). They put 9,149 people in District 82, 42 percent of whom were black,
and 44,728 people in majority-white District 79, 12 percent of whom were black.
(Def. Ex. 405 at 619, 614). The Democratic Conference plaintiffs also split Auburn
precinct—which they had to do because this precinct alone would have exceeded the
±1% deviation—but they smoothed out the shape. (Doc. 297-9 at 119, 123).
In Dadeville National Guard Armory precinct, the drafters drew a seesaw that
put most of the majority-black blocks in District 82:

384

Dadeville National Guard Armory Precinct in Act 602

(APSX 268). The split put a population that was 61 percent black in District 82 and a
population that was 15 percent black in District 81. (Def. Ex. 405 at 619, 616).
Finally, in Mary’s Cross Road Voting House precinct, the drafters drew a
reasonable line that put a higher black population percentage in District 82 (65
percent) than in District 81 (45 percent). (Id. at 619, 618). But even without this
precinct split, we find that race predominated in the design of District 82.
Alabama argues that its unsplitting exercise increased the black population
percentage, (Doc. 296-6 at 24), but this exercise is too flawed to be conclusive. The
385

fact that Alabama could have drawn a district with a slightly higher black population
percentage and no precinct splits does not mean that a significant number of people
were not assigned to the enacted district on the basis of race. Alabama has failed to
explain these suspicious precinct splits, and we find that race predominated in the
design of District 82.
We conclude that Alabama failed to establish that District 82 satisfies strict
scrutiny. The black population percentage of the district increased by almost five
points, and Alabama has not offered any district-specific evidence that such an
increase was required by section 2 or section 5. Alabama makes no district-specific
arguments, and we cannot assume that Senator Sanders and Representative Jackson
have the same expertise about the eastern Black Belt that they have about their own
districts in the western Black Belt. District 82 is also more urban (over 40 percent)
than either Senate District 23 or House District 68, and it contains significant
population from the large city of Auburn. (Def. Supp. Ex. 3; U.S. Census Bureau,
Urbanized Areas and Urban Clusters: 2010, http://www2.census.gov/geo/pdfs/mapsdata/maps/reference/2010UAUC_List.pdf).
It is not even obvious that the black populations of Auburn, Camp Hill, and
Dadeville, along with the core of Macon County, form a “geographically compact”
minority population for purposes of section 2. The first Gingles factor is that the
“racial group is sufficiently large and geographically compact to constitute a majority

386

in a single-member district.” Bossier Parish Sch. Bd., 520 U.S. at 479. But as this map
shows, they are some distance apart:
Zoom of Dadeville, Camp Hill, and Auburn in District 82

(U.S. Census Bureau, State Legislative District Reference Map: State House District 82
(Alabama), http:// www2.census.gov/geo/maps/dc10map/SLD_RefMap/lower/
st01_al/sldl01082/DC10SLDL01082_001.pdf). The state has failed to establish that
House District 82 survives strict scrutiny, and we must enjoin the use of this district in
future elections.
387

We find that race did not predominate in the design of House District 83. The
district, which increased in black population percentage from 56.92 to 57.52 percent,
(Doc. 296-2 at 3), is irregularly shaped. But as the Democratic Conference plaintiffs
admit, it was irregular under the 2001 district lines as well, (Doc. 258 at 81):
2001 District Lines

2012 District Lines

(Ala. Reapportionment Office, supra). It takes up parts of Lee and Russell Counties
under both the 2001 and 2012 lines, but it shifted north in the new plan so that
District 84, also underpopulated in 2010, could take more of Russell County.
The dissent argues that drafters extended the “north-central limb [of the
district] . . . . further north into Lee County” to include majority black census blocks.
(Dissent at 161–62). But the Democratic Conference Plan A makes a similar
incursion:

388

House District 83 in Democratic Conference Plan A and Act 602

(Doc. 287-18 at 9). Because the Democratic Conference plaintiffs argue that their
district is race-neutral and because of the similarity of the enacted district to their
alternative (and the old district), we do not find that the shape is evidence of racial
predominance.
This similarity also alleviates any concern we otherwise might have about the
number of people moved (18,646) relative to the underpopulation (4,482). The
Democratic Conference plaintiffs do not tell us how many people they moved in the
creation of their alternative district, but the similarity of the two districts leads us to
infer that they moved a similar number of people in their assertedly race-neutral
district.
Nor is the black population percentage in District 83 suspicious. All three of
the alternative plans that draw a majority-black District 83, including Plan A, have

389

black population percentages that are similar to the enacted district. The McClammy
Plan meets and exceeds the target, and the Reed-Buskey Plan and Plan A come within
2.03 points of the plan as passed.
2010 Census Total Black Population Percentages in District 83 Under Various
Plans
Under
2001
District
Lines
(Def. Ex.
406)

57.03

Plan as
Passed
(Def.
Ex. 403)

McClammy
Plan
(Common Ex.
45)

ReedBuskey
Plan 4
(Common
Ex. 42)

Knight
Plan
(Common
Ex. 46)

57.52

61.87

55.99

n/a

New
Black
Caucus
Plan
(APSX
36)

n/a

Black
Caucus
1%
Plan
(Doc.
296-1)

n/a

Democratic
Conference
Plan A
(Doc. 2961)

55.0

These similarities are once again evidence that the black population percentage in
District 83 was the result of legitimate districting choices, not a racial target.
The plaintiffs argue that precincts were split along racial lines, but they again
fail to prove that race was the predominant reason. In Beuaregard School precinct,
Smiths Station Sr. Center Voting District precinct, Crawford Fire Dept. precinct, and
Austin Sumbry Park Voting District precinct, the drafters put roughly equal black
population percentages within and without the district. (Def. Supp. Ex. 405 at 526,
614–15, 619–20). The legislature split Seale Courthouse Voting District precinct
between two majority-black districts, (APSX 256), and the plaintiffs fail to explain
how this split is evidence of racial predominance.
In Opelika B Voting District precinct, the drafters used an irregular line to put
18,201 people in District 83, 59 percent of them black, and 11,738 people in other
districts, 12 percent of them black. (Doc. 405 at 78, 165, 171–72).
390

Opelika B Voting District Precinct in Act 602

(APSX 140). We agree with our dissenting colleague that the precinct split creates an
“odd shape,” (Dissent at 158), but the Democratic Conference plaintiffs, who insist
that race did not predominate in Plan A, drew essentially the same line that put a 58
percent black population in District 83. (Doc. 297-9 at 124).

391

Close-Up of Opelika B Voting District Precinct in ADC Plan A and Act 602

(Doc. 287-18 at 9). Because of the similarity between Plan A and Act 602 in this
precinct, we find that this precinct split is not evidence that race predominated.
In Lee County Snacks Voting District precinct, the legislature and the
Democratic Conference plaintiffs made similar choices. The first map shows the split
in the enacted district, and the second map compares the enacted district (orange and
red) with the Plan A district (orange and yellow).

392

Lee County Snacks Voting District Precinct in Act 602

(APSX 138).
Lee County Snacks Voting District Precinct in Plan A and Act 602

393

(Doc. 287-18 at 9). The legislature put 1,998 people in District 83, 32 percent of them
black, and 107 people in District 38, 3 percent of them black. (Def. Ex. 405 at 526,
620). The Democratic Conference plaintiffs put 1,706 people in District 83, an even
higher 37 percent of them black. (Doc. 297-9 at 124). Because the Democratic
Conference plaintiffs insist that race did not predominate in Plan A, we find that this
split is not evidence that race predominated in the enacted district.
The legislature and the Democratic Conference plaintiffs also split National
Guard Armory Voting District along similar lines. The legislature put 4,151 people in
District 83, 66 percent of them black. (Def. Ex. 405 at 621). The Democratic
Conference plaintiffs put 4,367 people in District 83 in Plan A, 65 percent of them
black. (Doc. 297-9 at 125).

394

National Guard Armory Voting District Precinct in Act 602

(APSX 255).
National Guard Armory Voting District Precinct in Plan A and Act 602

395

(Doc. 287-18 at 9). The Black Caucus plaintiffs split this precinct along different lines
and put it in District 84 instead of District 83, but they put an even higher percentage
of black population—74.4 percent—in that majority-black district. (APSX 633 at 7).
Because the plaintiffs maintain that race did not predominate in their alternative plans,
we find that this precinct split does not provide evidence that race predominated in
the enacted plan.
In CVCC Voting District precinct, the legislature made an odd choice to put
only 27 people in another district, but we cannot say that this split proves that race
predominated. The drafters put 2,665 people in District 83, 64 percent of them black,
and a mere 27 people in District 80, 33 percent of them black. (Def. Ex. 405 at 615,
621). If we put the 27 people in District 83, the black population percentage in
District 83 from this precinct would still be 64 percent. We cannot say that this
negligible number of people constitutes proof that race predominated in the
placement of a significant number of people.
Two precincts are more suspicious, but they do not account for the assignment
of a significant number of people. In Old Salem School precinct, the drafters drew a
line with no obvious explanation that put 338 people in District 83, 42 percent of
them black, and 1,602 people in majority-white District 38, 9 percent of them black.
(Def. Ex. 405 at 526, 620).

396

Old Salem School Precinct in Act 602

(APSX 139). In Ladonia Fire Dept precinct, the drafters drew a line that put no
majority-white blocks in District 83.

397

Ladonia Fire Dept Precinct in Act 602

(APSX 254). But the black people assigned to District 83 in this split account for less
than half of a percent of the total population of the district, and if we remove both
precincts from the district entirely, the black population percentage remains almost
unchanged at 57.61 percent. Our dissenting colleague argues that the precinct splits
demonstrate racial predominance because the splits allowed the drafters to place “a
significant white population ‘without’ [House District] 83,” allowing the drafters to hit
their alleged target. (Dissent at 156 (quoting Miller, 515 U.S. at 916)). But, as noted,
had the drafters not split the precincts the black population would have barely
398

decreased and the white population would have still been “without” the district. We
find that race did not predominate in the design of District 83.
We also find that race did not predominate in the design of House District 84.
District 84, which increased from 50.67 percent to 52.34 percent black, is a compact
district that includes all of Bullock and Barbour counties, as well as part of Russell
County. In their zeal to attack as many districts as possible, the plaintiffs appear to
have challenged House District 84 by mistake. Indeed, the Black Caucus plaintiffs
abandoned their challenge to the district in their final reply brief. (Doc. 300-1 at 107).
This district meets all of the plaintiffs’ criteria for a district, and the 2012 design made
it more compact and split fewer counties:
2001 District Lines

2012 District Lines

(Alabama Policymaker’s Dashboard, supra).
The Democratic Conference plaintiffs drew an alternative District 84 that was
identical to the enacted District 84, except that it eliminated the sole precinct split in
the enacted District 84.

399

House District 84 in Democratic Conference Plan A and Act 602

(Doc. 287-18 at 10). That split put a total of 28 people into District 84. (Def. Ex. 405
at 622). If we added all of that precinct to District 84 or removed it all, it would have
an effect of less than 0.2 points on the black population percentage of District 84.
This miniscule effect is all the more negligible because District 84 already exceeds the
previous percentage by 1.7 points. (Def. Ex. 406 at 658; Def. Ex. 403 at 423). The
Democratic Conference plaintiffs’ challenge to District 84 is frivolous.
We find that race predominated in the design of House District 85, which
increased in total black population percentage from 47.94 to 50.08 percent. District 85
is a new majority-black district by total population, but it is not majority-black by
voting-age population. (Def. Ex. 406 at 658; Def. Ex. 405 at 623; Doc. 35-2 at 3).
In its basic concept, District 85 has changed very little. It includes all of Henry
County, and it extends south into the Houston County part of Dothan. But the
extension into Houston County has changed significantly. Under the 2001 district
lines, the extension was a rounded, sensible protrusion. Now, the extension is a

400

bizarre bootspur that manages to pick up black population while avoiding white
population at almost every turn:
2001 District Lines

2012 District Lines

(Ala. Reapportionment Office, supra). From Dothan, the drafters put a population
that was 63 percent black in District 85 and one that was 12 percent black in Districts
86, 87, and 93. (Def. Supp. Ex. 3 at 63–65, 69). The district also split nine precincts in
Houston County. Alabama concedes that in its own exercise, unsplitting the split
precincts decreased the black population percentage by over 14 points, taking it well
below 50 percent black (Doc. 263-3 at 2).
We also find evidence in Kinsey, Wiregrass Park, and Westgate Recreational
Center precincts that race predominated in the design of the district, although we
observe that the Democratic Conference plaintiffs also split these same precincts.
(Doc. 296-6 at 3). First, in Kinsey precinct, the drafters drew three separate incursions
that reached all of the majority-black blocks in the precinct and then stopped.

401

Kinsey Precinct in Act 602

(APSX 85). The split put 1,352 people in District 85, 68 percent of whom were black,
and 886 people in majority-white District 86, 10 percent of whom were black. (Def.
Ex. 405 at 622–23). Second, in Wiregrass Park precinct, the drafters drew three fingers
from the north that captured all but one majority-black block, which was isolated
much farther south in the precinct.

402

Wiregrass Park Precinct in Act 602

(APSX 90). The split put 7,311 people in District 85, 57 percent of whom were black,
and 3,293 people in District 86, only 15 percent of whom were black. (Def. Ex. 405 at
623–24). Third, in Westgate Recreational Center precinct, the drafters put a majorityblack block of 33 people in District 85.

403

Westgate Recreational Center Precinct in Act 602

(APSX 89). These three precincts together are strong evidence that race predominated
in the design of the district.
We also find weaker evidence of racial predominance in the splits of Johnson
Homes and Library precincts, even though they appear to have taken majority-white
blocks that were not necessary to reach majority-black blocks. In Johnson Homes
precinct, the drafters drew two fingers that reached all of the majority-black blocks in
the precinct.

404

Johnson Homes Precinct in Act 602

(APSX 84). The split put 4,838 people in District 85, of whom 91 percent were black,
and 139 people in District 86, of whom 6 percent were black. (Def. Ex. 405 at 622,
623). In Library precinct, the drafters zigged and zagged to place every majority-black
block in the precinct into District 85.

405

Library Precinct in Act 602

(APSX 86). The split put 4,154 people in District 85, 68 percent of whom were black,
and 3,666 people in District 86, only 7 percent of whom were black. (Def. Ex. 405 at
623, 624). Based on the maps and statistics, we find that the only sensible
understanding of District 85 is that it was designed based on race, and Alabama has
not offered any other explanation.
Both plaintiffs also drew a similar plurality-black District 85, but with a
smoother protrusion into Houston County. The following map shows the version in
Plan A:
406

House District 85 in Democratic Conference Plan A and Act 602

(Docs. 294-2 at 2). The population of this district is 48.3 percent black by total
population and 45.6 percent black by voting-age population. (Doc. 296-2 at 3). The
Black Caucus plaintiffs also made the extension into Houston County more regular:
House District 85 in Black Caucus 1% Plan and Act 602

407

(APSX 529). Their district is 49.0 percent black by total population and 46.3 percent
black by voting-age population. (Doc. 296-2 at 3). Both sets of plaintiffs split fewer
precincts and drew a district with a lower black population percentage, confirming our
finding that race predominated in the design of District 85.
District 85 does not satisfy strict scrutiny. The enacted district cannot be
narrowly tailored to comply with the Voting Rights Act because the district is not
majority-black by voting-age population. Section 2 “provides a cause of action for
protected minority groups that can establish, based on the totality of the
circumstances, ‘that [their] members have less opportunity than other members of the
electorate to participate in the political process and to elect representatives of their
choice.’” Dillard v. Baldwin Cty. Comm’rs, 376 F.3d 1260, 1265 (11th Cir. 2004)
(alteration in original) (quoting 52 U.S.C. § 10301(b)). Under section 2, Alabama must
avoid diluting the voting strength of a racial minority where “(i) ‘[the racial group] is
sufficiently large and geographically compact to constitute a majority in a singlemember district’; (ii) the group is ‘politically cohesive’; and (iii) ‘the white majority
votes sufficiently as a bloc to enable it . . . usually to defeat the minority’s preferred
candidate.’” Bossier Parish Sch. Bd., 520 U.S. at 479 (alteration in original) (quoting
Gingles, 478 U.S. at 50–51). If the Gingles factors are present in a district, the court
looks to whether “the totality of the circumstances supports a finding that the voting
scheme is dilutive.” Id. at 479.

408

The first Gingles factor was not satisfied here because the minority group in
District 85 does not constitute a majority of the voting-age population. In Bartlett v.
Strickland, three Justices explained that “[o]nly when a geographically compact group
of minority voters could form a majority in a single-member district has the first
Gingles requirement been met.” 556 U.S. at 26 (opinion of Kennedy, J.). The relevant
population, they explained, is the “voting-age population.” Id. at 18. That opinion
binds us under Marks v. United States, 430 U.S. 188, 193 (1977). Because the black
voting-age population percentage in District 85 is 47.23 percent, (Doc. 35-2 at 3),
Alabama cannot claim that its district is narrowly tailored to achieve compliance with
section 2.
Nor can Alabama claim that District 85 is narrowly tailored to comply with
section 5 of the Voting Rights Act. The parties do not dispute that section 5 required
Alabama to maintain at least the same number of majority-black districts under the
2012 plan as under the 2001 plan. (See Doc. 263 at 57). The 2001 plan had 27
majority-black House districts, and without District 85, the 2012 plan has 27 majorityblack House districts: Districts 19, 32, 52, 53, 54, 55, 56, 57, 58, 59, 60, 67, 68, 69, 70,
71, 72, 76, 77, 78, 82, 83, 84, 97, 98, 99, and 103. Alabama has not explained why
section 5 required it to draw an additional majority-black district by total population
or an influence district by voting-age population. Nor has it identified any other
compelling interest for drawing District 85 the way that it did. We must enjoin the use
of District 85 in future elections.
409

m.

House Districts 97, 98, 99, and 103 (Mobile County)

We find that race did not predominate over traditional districting criteria in the
design of House Districts 97, 98, or 103, but we find that race did predominate in the
design of District 99. Each of these districts is located in or near the city of Mobile,
and each was severely underpopulated:
House District Overpop. (+) or
Underpop. (–) of 2001
District Using 2010
Census Data (%)
97
–22.22
98
–16.89
99
–12.59
103
–10.79
(Def. Ex. 406 at 659). In three of the four districts, the drafters missed the previous
black population percentage by a significant margin.
2010 Census Total Black Population Percentages Under 2001 Lines and
Enacted Plan
House
District
97
98
99
103

Under 2001
District Lines
(Def. Ex. 406)
60.66
65.2
73.35
69.64

Plan as
Passed (Def.
Ex. 403)
60.66
60.02
65.61
65.06

Change
0
–5.2
–7.74
–4.58

And the percentages of black population in the alternative plans are mostly similar to
the enacted districts, so we infer that demographics and legitimate districting criteria
explain the percentages.

410

2010 Census Total Black Population Percentages Under Various Plans
House
District

97
98
99
103

Under
2001
District
Lines
(Def. Ex.
406)

60.66
65.22
73.35
69.64

Plan as
Passed
(Def.
Ex.
403)

McClammy
Plan
(Common
Ex. 45)

ReedBuskey
Plan 4
(Common
Ex. 42)

Knight
Plan
(Common
Ex. 46)

60.66
60.02
65.61
65.06

63.00
60.22
62.92
62.08

63.59
61.57
63.55
63.03

57.19
63.75
57.98
17.92

New
Black
Caucus
Plan
(APSX
36)

57.19
60.45
58.50
63.16

Black
Caucus
1%
Plan
(Doc.
296-1)

55.91
60.40
58.24
62.61

Democratic
Conference
Plan A
(Doc. 2961)

56.2
60.4
58.2
62.3

The Democratic Conference plaintiffs asserted on remand that Hinaman began
with House District 97 and reached the racial target for that district. (Doc. 258 at 84–
85). After he achieved his target in District 97, they reason, he could no longer
achieve his racial targets in the other districts. (Id. at 85) But the Democratic
Conference plaintiffs fail to prove this version of events. Hinaman’s only testimony at
trial about these districts was that the black population percentage was reduced, and
that “[s]ometimes there’s no way to avoid it.” (Doc. 217 at 163). This testimony does
not support the Democratic Conference plaintiffs’ speculation, and the plaintiffs offer
no further proof.
We find that race did not predominate in House District 97, which is a
compact district that runs along the western border of Mobile Bay. Its shape changed
only a little, mainly through the addition of a “bishop’s mitre” (which the plaintiffs
inaccurately call a bishop’s head) in the northwest

411

2001 District Lines

2012 District Lines

(Ala. Reapportionment Office, supra). The Democratic Conference plaintiffs argue
that the mitre reaches up for majority-black population––and the dissent agrees,
(Dissent at 164–65)––but their own map shows that the mitre takes in mostly
majority-white areas (marked by lighter colors in the map below):
District 97 Bishop’s Mitre

(ADC Supp. Ex. 30B). The Black Caucus plaintiffs concede that “the split between
HD 96 and HD 97 may have been intended to fair the boundary between these two
districts.” (Doc. 256 at 131). We agree. We also note that some of the western border
is explained by the residence of the incumbent in District 99:

412

Mobile County House Incumbents in 2012

(Def. Supp. Ex. 2). The overall shape of the district does not lead us to find that race
predominated.
Nor do the alternative plans produced by the plaintiffs. The Democratic
Conference plaintiffs drew a district farther to the north and east, but they did not
explain why their choice was required by traditional districting criteria other than
precinct splits, which we address later.
House District 97 in Democratic Conference Plan A and Act 602

413

(Doc. 287-17 at 2). The Black Caucus plaintiffs made similar changes to the district,
again unexplained by anything but precinct splits:
House District 97 in Black Caucus 1% Plan and Act 602

(APSX 530).
The black population percentage in this district provides no evidence that race
predominated. The enacted plan matches the previous plan exactly, but the
McClammy Plan and Reed-Buskey Plans are slightly higher; the Knight Plan, New
Black Caucus Plan, and 1% Plan are within four percentage points of the previous
plan; and Plan A is within five percentage points.

414

2010 Census Total Black Population Percentages in District 83 Under Various
Plans
Under
2001
District
Lines
(Def.
Ex. 406)

60.66

Plan as
Passed
(Def.
Ex.
403)

McClammy
Plan
(Common
Ex. 45)

Reed-Buskey
Plan 4
(Common Ex.
42)

Knight
Plan
(Common
Ex. 46)

60.66

63.00

63.59

57.19

New
Black
Caucus
Plan
(APSX
36)

57.19

Black
Caucus
1% Plan
(Doc.
296-1)

Democratic
Conference
Plan A
(Doc. 2961)

55.91

56.2

The enacted district is in the heart of the range of alternative districts.
The plaintiffs argue that precincts were split in District 97 along racial lines, but
they cannot identify any racially suspicious precincts. The plaintiffs first argue that
there were racially motivated splits between District 97 and majority-white districts,
but the plaintiffs disagree about which precinct splits are suspicious. The Democratic
Conference plaintiffs argue that the bishop’s mitre was extended to reach black
population. (Doc. 258 at 86–87). But as already discussed, the Democratic Conference
plaintiffs’ own maps—as well as those of their coplaintiffs—contradict this argument.
The Democratic Conference plaintiffs’ map, (ADC Supp. Ex. 30B), proves that the
drafters pushed the boundaries past the majority-black blocks to take in majority-white
population as well. And the Black Caucus plaintiffs admit that the split of Chickasaw
Auditorium precinct in this area “may have been intended to fair the boundary”
between House Districts 97 and 96. (Doc. 256 at 131). They are correct: the bishop’s
mitre is not obviously drawn with race in mind. (APSX 179).
The Black Caucus plaintiffs and the dissent assert that Saraland Civic Center
precinct was split along racial lines, but the map and statistics prove otherwise. The
415

split placed very few people into District 97—306 people, only 33 percent of them
black. (Def. Ex. 405 at 638). The vast majority of the precinct was split between
District 98 and District 96. District 98 received 118 black people out of 1,430 total,
and District 96 received 237 black people out of 2,332 total. (Id. at 640, 637).
Moreover, the borders of the split are smooth.
Saraland Civic Center Precinct in Act 602

(APSX 197). This precinct has barely any black population, and the black population
is roughly equal in the three districts.

416

We have also examined the other precinct splits in this district and find no
evidence that race predominated. In Vigor High School, 100 Black Men of Greater
Mobile, Figures Recreation Center, Murphy High School Library, Augusta Evans
School, and Rock of Faith Baptist Church precincts, District 97 split the precincts
with another majority-black district according to no apparent pattern. (APSX 174,
175, 182, 194, 196, 202, 207). The plaintiffs make no argument to the contrary. In
Bishop St. Community College, the drafters split the precinct along the Mobile River
and put the zero-population blocks on the other side of the river in District 96.
(APSX 178). Likewise, the drafters put only unpopulated blocks on one side of the
split in Whitley School precinct. (APSX 208). And in St. Andrews Episcopal Church
precinct, (APSX 202), the drafters divided majority-white blocks in a straight line that
improved the shape of the district.
The dissent asserts that race predominated because the drafters did not
consider it a “problem” if a district had a high black population percentage, but they
nevertheless split precincts, which reduced the black population in the district.
(Dissent at 166–67). But Representative McClendon, whose deposition testimony the
dissent cites, did not testify that he was not concerned about high black population
percentages. He testified that a black population increase of five percent did not
constitute packing. (Doc. 125-4 at 106, 109–10). We find that race did not
predominate in the design of House District 97.

417

We also find that race did not predominate in House District 98, which
decreased in black population percentage from 65.22 percent to 60.02 percent. (Def.
Ex. 406 at 659; Def. Ex. 403 at 424). District 98 is centered on the towns of Prichard
and Saraland. It extends north along waterways to gain population from small towns
up to and including Mount Vernon. (See U.S. Census Bureau, State Legislative District
Reference Map: State House District 98 (Alabama), http://www2.census.gov/geo/maps/
dc10map/SLD_RefMap/lower/st01_al/sldl01098/DC10SLDL01098_001.pdf). The
northern extension transfers population from overpopulated District 102 to
underpopulated District 98. We also know that some portions of Districts 98 and 102
were exchanged at the request of the incumbents, whose motivations the plaintiffs do
not challenge. Their wishes provide a race-neutral explanation for the northern part of
the shape. (Doc. 217 at 225–26).
The alternative plans do not convince us that race predominated in the design
of District 98. Both plaintiffs moved west instead of north to reach more population:

418

House District 98 in Democratic Conference Plan A and Act 602

(Doc. 287-17 at 3).
House District 98 in Black Caucus 1% Plan and Act 602

(APSX 531 (Black Caucus district shaded purple)). Both districts are more compact
and regular, but the plaintiffs do not explain how their choices prove that race

419

predominated in the enacted district, other than the arguments about precinct splits
that we address below.
The black population percentages in District 98 are nearly identical across the
various plans. No plan had a District 98 with a black population of less than 60
percent, and several of the earlier plans—which did not even follow the ±1%
population deviation—came closer to the previous percentage than the state did.
2010 Census Total Black Population Percentages in District 98 Under Various
Plans
Under 2001
District Lines
(Def. Ex.
406)

Plan as
Passed
(Def.
Ex.
403)

McClammy
Plan
(Common
Ex. 45)

ReedBuskey
Plan 4
(Common
Ex. 42)

Knight
Plan
(Common
Ex. 46)

New Black
Caucus
Plan
(APSX 36)

65.22

60.02

60.22

61.57

63.75

60.45

Black
Caucus
1%
Plan
(Doc.
296-1)

60.40

Democratic
Conference
Plan A (Doc.
296-1)

60.4

From these statistics, we infer that demographics and legitimate districting criteria
explain the black population percentage in District 98.
The plaintiffs again argue that the drafters split precincts to increase the black
population percentage, but their argument again fails to prove that race predominated.
First, in Mt. Vernon Civic Center precinct, the drafters split the precinct along zeropopulation blocks and between majority-white blocks on either side of the border. We
can find no racial pattern:

420

Close-Up of Mt. Vernon Civic Center Precinct

(APSX 193). Second, in the split of Turnerville Community precinct between District
98 and majority-white District 102, the drafters put similar black population
percentages in each district—seven percent in District 98 and three percent in District
102. (Def. Ex. 405 at 640, 646). Third, in First Baptist Church of Axis precinct, the
split followed zero-population blocks except where District 98 absorbed majoritywhite blocks.

421

First Baptist Church of Axis Precinct in Act 602

(APSX 183). Fourth, in Havenwood Baptist Church precinct, the split smoothed out
an irregular precinct boundary by placing majority-white blocks in District 98.

422

Zoom of Havenwood Baptist Church Precinct in Act 602

(APSX 186). Fifth, the legislature split both College Park Baptist Church and
Chickasaw Auditorium precincts in three, but District 98 borders only another
majority-black district in each precinct, and the plaintiffs do not identify any pattern
of racial predominance in those splits. (APSX 179, 180). Sixth, we cannot find a racial
pattern in the split of Shelton Beach Rd. Baptist Church precinct, which sorts almost
exclusively majority-white and zero-population blocks along the border and places
only a 20 percent black population in District 98.

423

Shelton Beach Rd. Baptist Church Precinct in Act 602

(APSX 200). Moreover, both Plan A and the 1% Plan split this precinct with a 15.6
percent black population in District 98. (Doc. 296-6; APSX 633). Seventh, the
legislature split Saraland Civic Center precinct among Districts 96, 97, and 98. The
plaintiffs identify no pattern of racial predominance in the split between majorityblack Districts 97 and 98, and the split between Districts 96 and 98 placed roughly
equal black population percentages in each district—8 percent in District 98 and 10
percent in District 96. (Def. Ex. 405 at 637, 640). Lastly, in the splits of Little
Welcome Baptist Church, Joseph Dotch Comm. Center, Vigor High School, Whitley
School, and 100 Black Men of Greater Mobile precincts, House District 98 borders

424

other majority-black districts, and the plaintiffs identify no racial pattern. (APSX 174,
188, 190, 207, 208). None of these precinct splits establish that race predominated.
The split of Satsuma City Hall precinct is mildly suspicious, but it is insufficient
to prove that race predominated. We observe that the shape is irregular along part of
the border and tends to put majority-black blocks in District 98 and majority-white
blocks in District 96.
Satsuma City Hall Precinct in Act 602

(APSX 198). We also observe that the split placed 796 people in District 98, 51
percent of whom were black, and 3,431 people in District 96, 5 percent of whom
425

were black. (Def. Ex. 405 at 637). But part of the border is formed by a majoritywhite block on the District 98 side opposite a majority-black block on the District 102
side, which suggests that race did not dictate the shape of this split. The black
population from this precinct in District 98 amounts to less than a percent of the total
population of the district, and if we remove the precinct entirely, the black population
percentage increases negligibly from 60.02 to 60.19. We find that race did not
predominate in the design of House District 98.
We find that race predominated in the design of House District 99, which is
based in northern Mobile, on the basis of three precinct splits and the shape of the
district. The black population decreased from 73.35 percent to 65.61 percent, (Def.
Ex. 406 at 659; Def Ex. 403 at 424), and the shape is not outrageous. It extends to the
northwest to pick up population from overpopulated District 102, likely because every
other direction was blocked. The districts to the northeast, east, and southeast were
underpopulated, and the residence of the incumbent in District 101 prevented
significant expansion to the south. (Def. Supp. Ex. 2). District 99 maintains the same
core as under the 2001 plan, although it is not quite as compact as its predecessor and
contains a bottleneck in the middle.

426

2001 District Lines

2012 District Lines

(Ala. Reapportionment Office, supra).
Nor is the black population percentage in the district evidence of racial
predominance. Some of the alternative plans had comparable proposed black
population percentages, and some had lower percentages.
2010 Census Total Black Population Percentages in District 99 Under Various
Plans
Under
2001
District
Lines
(Def. Ex.
406)

73.35

Plan as
Passed
(Def. Ex.
403)

McClammy
Plan
(Common
Ex. 45)

ReedBuskey
Plan 4
(Common
Ex. 42)

Knight
Plan
(Common
Ex. 46)

65.61

62.92

63.55

57.98

New
Black
Caucus
Plan
(APSX
36)

58.50

Black
Caucus
1%
Plan
(Doc.
296-1)

58.24

Democratic
Conference
Plan A
(Doc. 2961)

58.2

But the drafters badly missed any supposed target by nearly eight percentage points.
Without further evidence, that some of the plans had lower black population
percentages is insufficient to prove that race predominated.
With their alternative plans, the plaintiffs established that District 99 could be
drawn more compactly and regularly, but these plans do not prove that race
predominated in the enacted district.
427

House District 99 in Democratic Conference Plan A and Act 602

(Docs. 287-17 at 4).
House District 99 in Black Caucus 1% Plan and Act 603

(APSX 532).
Most of the precinct splits are not suspicious. In the splits of Joseph Dotch
Comm. Center, Figures Recreation Center, Murphy High School Library, Augusta

428

Evans School, and Pleasant Valley Methodist Church precincts, District 99 borders
another majority-black district with no racial pattern. (APSX 175, 182, 188, 194, 195).
In St. John United Methodist Church precinct, the drafters put two majority-black
blocks along the border in majority-white District 101 and three majority-white blocks
along the border in District 99.
St. John United Methodist Church Precinct in Act 602

(APSX 203). The drafters split College Park Baptist Church precinct three ways. The
split with majority-black District 98 has no apparent racial pattern, and the split with
majority-white District 102 divided an area of majority-white blocks to put 157 people
in District 102. (Doc. 30-41 at 646). None of those 157 people were black, but this
split is not visually bizarre and at best provides slight evidence that race
predominated.

429

College Park Baptist Church Precinct in Act 602

(APSX 180). In Azalea City Church of Christ, the drafters put 46 percent black
population on the District 99 side and 15 percent black population on the District 102
side. But they did so using a straight line.

430

Azalea City Church of Christ Precinct in Act 602

(APSX 176).
In Moffett Road Assembly of God precinct, the drafters split the precinct
along a large, sparsely populated block of two people.

431

Moffett Road Assembly of God Precinct in Act 602

(APSX 192). Although the division is not quite along a zero-population block, it
might as well be. This split does not provide evidence that race predominated.
Finally, in Friendship Missionary Baptist Church precinct, the drafters divided
the precinct along another natural break in population. They put 1,798 people in
District 99, 46 percent of whom were black, and 178 people in District 101, 4 percent
of whom were black. (Def. Ex. 405 at 643, 645). But the split divides a densely
populated area in the southwest from a densely populated area in the east of the
precinct.

432

Friendship Missionary Baptist Church Precinct in Act 602

(APSX 185). A map from the Census Bureau confirms that most of the roads in the
district are in the east or the southwest, with relatively few near the split.

433

Census Bureau Map in the Vicinity of Friendship Missionary Baptist Church
Precinct

(U.S. Census Bureau, State Legislative District Reference Map: State House District 99
(Alabama), http:// www2.census.gov/geo/maps/dc10map/SLD_RefMap/lower/
st01_al/sldl01099/DC10SLDL01099_001.pdf). The Black Caucus plaintiffs also split
this district in an even more racial fashion, putting a population that was 93 percent
black in District 99 and a population that was 36 percent black in majority-white
District 100. (APSX 633). Yet the Black Caucus plaintiffs maintain that race did not
predominate in their plan. This split is not evidence that race predominated.
Three split precincts—Semmes First Baptist, University City Church of Christ,
and Little Welcome Baptist Church—exhibit clear patterns of racial sorting, and
Alabama offers no explanation for these patterns. The split of Semmes First Baptist
Church precinct placed 870 people in District 99, 50 percent of them black, and 6,332
people in District 102, 12 percent of them black. (Def. Ex. 405 at 641, 646).
434

Close-Up of Semmes First Baptist Church Precinct in Act 602

(ASPX 199). The split of University Church of Christ precinct put 1,485 people in
District 99, 62 percent of them black, and 2,081 people in District 101, 29 percent of
them black. (Def. Ex. 405 at 642, 645).

435

University Church of Christ Precinct in Act 602

(APSX 203). And the split of Little Welcome Baptist Church precinct put 3,432
people in District 99, 66 percent of them black; 1,440 people in District 98, 86 percent
of them black; and 115 people in District 101, 17 percent of them black. (Def. Ex.
405 at 641–42, 644).

436

Close-Up of Little Welcome Baptist Church Precinct in Act 603

(APSX 190). These three precinct splits place a significant number of black people in
District 99 on the basis of race. On the basis of these precinct splits and the shape of
the district, we find that race predominated in the design of House District 99.
We further conclude that District 99 does not survive strict scrutiny. Once
again, the only argument that Alabama makes is based on the comments of Senator
Sanders and Representative Jackson. And once again, these comments do not provide
a strong basis in evidence because this district is located in a different part of the state.
They also do not provide a strong basis in evidence because the district is more
urban—93 percent of the population lives in the city of Mobile. (Def. Supp. Ex. 3).

437

Because the state has not provided a strong basis in evidence for its use of race, we
must enjoin the use of District 99 in future elections.
Finally, we find that race did not predominate in House District 103. The
district, which decreased from 69.64 percent black to 65.06 percent black, (Def. Ex.
406 at 659; Def. Ex. 403 at 424), kept the core of its shape.
2001 District Lines

2012 District Lines

(Ala. Reapportionment Office, supra). The district now extends farther to the
northwest and the south.
The black population percentages in the alternative plans are similar to the
percentage in the enacted plan. Of the plans with a majority-black District 103, none
438

have a black population more than three percentage points lower than the enacted
district.
2010 Census Total Black Population Percentages in District 103 Under Various
Plans
Under
2001
District
Lines
(Def. Ex.
406)

69.64

Plan as
Passed
(Def. Ex.
403)

McClammy
Plan
(Common Ex.
45)

ReedBuskey
Plan 4
(Common
Ex. 42)

Knight
Plan
(Common
Ex. 46)

65.06

62.08

63.03

Not
majorityblack

New
Black
Caucus
Plan
(APSX
36)

63.16

Black
Caucus
1%
Plan
(Doc.
296-1)

62.61

Democratic
Conference
Plan A
(Doc. 2961)

62.3

This similarity is evidence that legitimate districting choices and demographics
produced the black population percentage in District 103.
At most, the alternative plans prove that the drafters could have drawn the
district without splitting as many precincts. The plaintiffs both drew significantly
different districts, and they do not explain why the overall decisions were compelled
by traditional districting criteria other than precinct splits.

439

House District 103 in Democratic Conference Plan A and Act 602

(Doc. 287-17 at 8).
House District 103 in Black Caucus 1% Plan and Act 602

(APSX 533).
The precinct splits do not prove that race predominated. The legislature split
Pleasant Valley Methodist Church, Rock of Faith Baptist Church, and St. Andrews
440

Episcopal Church precincts with another majority-black district using no racial
pattern. (APSX 195–96, 202). We observe that the 1% Plan split Rock of Faith Baptist
Church precinct as well. (APSX 196).
Three splits with majority-white districts also are not suspicious. First, in Bay of
the Holy Spirit Church precinct, the legislature drew a border between Districts 101
and 103 along a smooth line of zero-population blocks. The only deviation places a
majority-black block in the majority-white district, even though the majority-black
district missed its supposed target.
Bay of the Holy Spirit Church Precinct in Act 602

441

(APSX 177). Without further explanation, this split does not establish that race
predominated. Second, in Hollingers Island School precinct, the legislature used a
straight line to divide majority-white blocks between Districts 103 and 105.
Hollingers Island School Precinct

(APSX 187). The split placed a roughly equal percentage of black population in
District 103 (6 percent) and District 105 (4 percent). (Def. Ex. 405 at 648, 650). Third,
in Dodge School precinct, the legislature placed a small cluster of majority-black and
zero-population blocks in District 103. The split put only 100 people in District 103,
84 percent of them black, and 4,377 people in District 101, 31 percent of them black.
(Id. at 645, 647). We find no evidence in this precinct that race predominated because
the split follows a road that forms the precinct boundary in The Mug Cafe precinct to
the north. As this map illustrates, the split smooths out irregular precinct lines and
improves the shape of the district.

442

Dodge School Precinct in Act 602

(APSX 181).

443

Census Bureau Map in the Vicinity of Dodge School Precinct

(U.S. Census Bureau, State Legislative District Reference Map: State House District 103
(Alabama), http:// www2.census.gov/geo/maps/dc10map/SLD_RefMap/lower/
st01_al/sldl01103/DC10SLDL01103_001.pdf).

444

The Mug Cafe Precinct in Act 602

(APSX 204).
Three other precinct splits in District 103 provide some evidence that race
predominated. In The Mug Cafe precinct, pictured above, the legislature drew an
irregular line to place a cluster of majority-black and zero-population blocks in
District 103. The split put 100 people in District 103, 84 percent of them black, and
4,337 people in District 101, 31 percent of them black. (Def. Ex. 405 at 645, 647).
Second, in Kate Shepard School precinct, the drafters brought populated blocks into
District 103 in two areas.
445

Kate Shepard School Precinct in Act 602

(APSX 189). Although the drafters added an unnecessary majority-white block of 271
people the split placed 659 people in District 103, 46 percent of them black, and 2,315
people in District 104, only 8 percent of them black. (Def. Ex. 405 at 648–49). Third,
in First Independent Methodist Church precinct, the drafters used irregular lines to
place most of the majority-black blocks in District 103.

446

First Independent Methodist Church Precinct in Act 602

(APSX 184). The split placed 121 people in District 103, 98 percent of them black,
and 5,150 people in District 104, only 22 percent of them black. (Def. Ex. 405 at 648–
49). Alabama offers no explanations for these splits.
We find that these splits are not enough to prove that race predominated. The
number of black people that they put in District 103 amounts to less than 2 percent of
the total population of the district, and if we remove the precincts entirely, the black
population percentage of the district would remain almost unchanged at 65.21
percent. This change is all the more negligible because District 103 fell more than four
447

points short of the previous black population percentage. We find that race did not
predominate in the design of House District 103.
CONCLUSION
We GRANT judgment for the plaintiffs with respect to Senate District 20,
Senate District 26, Senate District 28, House District 32, House District 53, House
District 54, House District 70, House District 71, House District 77, House District
82, House District 85, and House District 99, and we ENJOIN the use of these
twelve districts in future elections. We GRANT judgment for the defendants with
respect to the other 24 challenged districts. A separate order setting a status
conference will follow.

448

APPENDIX

449

Permanent Legislative Committee on Reapportionment
Page 1 of 8
Case 2:12-cv-00691-WKW-MHT-WHP Document 30-4 Filed 10/26/12 Page 1 of 8

THE ALABAMA LEGISLATURE
STATE OF ALABAMA
REAPPORTIONMENT COMMITTEE GUIDELINES
FOR CONGRESSIONAL, LEGISLATIVE, AND STATE BOARD OF EDUCATION
REDISTRICTING
May 2011
Pursuant to the Constitution of the United States and the Constitution of the State of Alabama,
the Alabama State Legislature is required to review 2010 Federal Decennial Census data
provided by the U.S. Bureau of the Census to determine if it is necessary redistrict Alabama's
congressional, legislative, and State Board of Education districts because of population
changes since the 2000 Census. Accordingly, the following guidelines for congressional,
legislative, and State Board of Education redistricting have been established by the
Legislature's Permanent Joint Legislative Committee on Reapportionment, (hereinafter
referred to as the "Reapportionment Committee”).
I. POPULATION
The total Alabama resident state population of 4,779,736 persons, and the population of
defined subunits thereof, as reported by the 2010 Census, shall be the permissible data
base used for the development, evaluation, and analysis of proposed redistricting plans.
It is the intention of this provision to exclude from use any census data, for the purpose of
determining compliance with the one person, one vote requirement, other than that
provided by the United States Census Bureau.
II. EQUAL POPULATION REQUIREMENT: ONE PERSON-ONE VOTE
The goal of redistricting is equality of population of congressional, legislative, and State
Board of Education districts as defined below.
1. Congressional Districts
The Apportionment Clause of Article I, Section 2, of the United States Constitution
requires that the population of a state’s congressional districts in a state be "as
nearly equal in population as practicable." Accordingly, Congressional redistricting
plans must be as mathematically equal in population as is possible.

http://www.legislature.state.al.us/reapportionment/Guidelines.html

6/29/2011

Permanent Legislative Committee on Reapportionment
Page 2 of 8
Case 2:12-cv-00691-WKW-MHT-WHP Document 30-4 Filed 10/26/12 Page 2 of 8
2. Legislative And State Board of Education Districts
In accordance with the Equal Protection Clause of the Fourteenth Amendment to
the United States Constitution, legislative and State Board of Education districts will
be drawn to achieve "substantial equality of population among the various districts.”
a. Any redistricting plan considered by the Reapportionment Committee will
comply with all relevant case law regarding the one person, one vote principle
of the equal protection clause of the 14th Amendment of the United States
Constitution, including but not limited to the cases of Larios v. Cox, 300 F.
Supp. 2d 1320 (N.D. Ga. 2004) aff'd sub nom Cox v. Larios, 542 U.S. 947
(2004), and White v. Regester, 412 U.S. 755 (1973). When presenting plans
to the Reapportionment Committee, proponents should justify deviations from
the ideal district population either as a result of the limitations of census
geography, or as a result of the promotion of a consistently applied rational
state policy.
b. In keeping with subpart a, above, a high priority of every legislative and
State Board of Education redistricting plan must be minimizing population
deviations among districts. In order to ensure compliance with the most
recent case law in this area and to eliminate the possibility of an invidious
discriminatory effect caused by population deviations in a final legislative or
State Board of Education redistricting plan, in every redistricting plan
submitted to the Reapportionment Committee, individual district populations
should not exceed a 2% overall range of population deviation. The
Reapportionment Committee will not approve a redistricting plan that does not
comply with this requirement.
III. VOTING RIGHTS ACT
1. Districts shall be drawn in accordance with the laws of the United States and the
State of Alabama, including compliance with protections against the unwarranted
retrogression or dilution of racial or ethnic minority voting strength. Nothing in these
guidelines shall be construed to require or permit any districting policy or action that
is contrary to the United States Constitution or the Voting Rights Act of 1965.
2. Redistricting plans are subject to the preclearance process established in
Section 5 of the Voting Rights Act.
IV. CRITERIA FOR CONGRESSIONAL, LEGISLATIVE, AND STATE BOARD OF
EDUCATION DISTRICTS
1. All congressional, legislative, and State Board of Education districts will be
single-member districts that comply with the population-equality standards
discussed above.
2. A redistricting plan will not have either the purpose or the effect of diluting
minority voting strength, shall not be retrogressive, and shall otherwise comply with
Sections 2 and 5 of the Voting Rights Act and the Fourteenth and Fifteenth
Amendments to the Constitution.

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3. No district will be drawn in a manner that subordinates race-neutral districting
criteria to considerations that stereotype voters on the basis of race, color, or
membership in a language-minority group.
4. All legislative and congressional districts will be composed of contiguous and
reasonably compact geography.
5. The following legislative redistricting requirements prescribed by the Alabama
Constitution shall be complied with:
a. Sovereignty resides in the people of Alabama, and all districts should be
drawn to reflect the democratic will of all the people concerning how their
governments should be restructured.
b. House and Senate districts shall be drawn on the basis of total population.
c. The number of Senate districts is set by statute at 35 and, under the
Alabama Constitution, may not exceed 35.
d. The number of Senate districts shall be not less than one-fourth or more
than one-third of the number of House districts.
e. The number of House districts is set by statute at 105 and, under the
Alabama Constitution, may not exceed 106.
f. The number of House districts shall not be less than 67.
6. The following redistricting policies contained in the Alabama Constitution shall be
observed to the extent that they do not violate or conflict with requirements
prescribed by the Constitution and laws of the United States:
a. Each House and Senate district should be composed of as few counties as
practicable.
b. Every part of every district shall be contiguous with every other part of the
district. Contiguity by water is allowed, but point-to-point contiguity and long-lasso
contiguity is not.
c. Every district should be compact.
7. The following redistricting policies are embedded in the political values,
traditions, customs, and usages of the State of Alabama and shall be observed to
the extent that they do not violate or subordinate the foregoing policies prescribed
by the Constitution and laws of the United States and of the State of Alabama:
a. Contests between incumbent members of Congress, the Legislature, and
the State Board of Education will be avoided when ever possible.
b. The integrity of communities of interest shall be respected. For purposes of
these Guidelines, a community of interest is defined as an area with
recognized similarities of interests, including but not limited to racial, ethnic,
geographic, governmental, regional, social, cultural, partisan, or historic

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interests; county, municipal, or voting precinct boundaries; and commonality
of communications. Public comment will be received by the Reapportionment
Committee regarding the existence and importance of various communities of
interest. The Reapportionment Committee will attempt to accommodate
communities of interest identified by people in a specific location. It is
inevitable, however, that some interests will be advanced more than others by
the choice of particular district configurations. The discernment, weighing, and
balancing of the varied factors that contribute to communities of interest is an
intensely political process best carried out by elected representatives of the
people.
c. Local community and political leaders and organizations and the entire
citizenry shall be consulted about new district lines.
d. In establishing congressional and legislative districts, the Reapportionment
Committee shall give due consideration to all the criteria herein. However,
priority is to be given to the compelling state interests requiring equality of
population among districts and the Voting Rights Act of 1965, as amended,
should the requirements of those criteria conflict with any other criteria.
V. PLANS PRODUCED BY LEGISLATORS
1. The confidentiality of any Legislator developing plans or portions thereof will be
respected. The Reapportionment Office staff will not release any information on any
Legislator's work without written permission of the Legislator developing the plan,
subject to paragraph two below.
2. A proposed redistricting plan will become public information upon its introduction
as a bill in the legislative process, or upon presentation for consideration by the
Reapportionment Committee.
3. Access to the Legislative Reapportionment Office Computer System, census
population data, and redistricting work maps will be available to all members of the
Legislature upon request. Reapportionment Office staff will provide technical
assistance to all Legislators who wish to develop proposals.
4. In accordance with Rule 23 of the Joint Rules of the Alabama Legislature (2011)
all amendments or revisions to redistricting plans, following introduction as a bill,
shall be drafted by the Reapportionment Office.
5. Drafts of all redistricting plans which are presented for introduction at any
session of the Legislature, and which are not prepared by the Reapportionment
Office, must be presented to the Reapportionment Office for review of proper form
and for entry into the Legislative Data Bank.
VI. REAPPORTIONMENT COMMITTEE MEETINGS AND PUBLIC HEARINGS
1. All meetings of the Reapportionment Committee and its sub-committees will be
open to the public and all plans presented at committee meetings will be made
available to the public.

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2. Minutes of all Reapportionment Committee meetings shall be taken and
maintained as part of the public record. Copies of all minutes shall be made
available to the public.
3. Transcripts of all public hearings shall be made and maintained as part of the
public record, and shall be available to the public.
4. The Reapportionment Committee will hold public hearings at different locations
throughout the State in order to actively seek public participation and public input.
5. All interested persons are encouraged to appear before the Reapportionment
Committee and to give their comments and input regarding congressional,
legislative, and State Board of Education redistricting. Reasonable opportunity will
be given to such persons, consistent with the criteria herein established, to present
plans or amendments redistricting plans to the Reapportionment Committee, if
desired, unless such plans or amendments fail to meet the minimal criteria herein
established.
6. Notices of all Reapportionment Committee meetings will be posted on the fifth,
sixth, seventh, and eighth floors of the Alabama State House, the Reapportionment
Committee's website, and on the Secretary of State’s website. Individual notice of
Reapportionment Committee meetings will be sent by email to any citizen or
organization who requests individual notice and provides the necessary information
to the Reapportionment Committee staff. Persons or organizations who want to
receive this information should contact the Reapportionment Office.
VII. PUBLIC ACCESS
1. The Reapportionment Committee seeks active and informed public participation
in all activities of the Committee and the widest range of public information and
citizen input into its deliberations. Public access to the Reapportionment Office
computer system is available every Friday from 8:30 a.m. to 4:30 p.m. Please
contact the Reapportionment Office to schedule an appointment.
2. A redistricting plan may be presented to the Reapportionment Committee by any
individual citizen or organization by written presentation at a public meeting or by
submission in writing to the Committee. All plans submitted to the Reapportionment
Committee will be made part of the public record and made available in the same
manner as other public records of the Committee.
3. Any proposed redistricting plan drafted into legislation must be offered by a
member of the Legislature for introduction into the legislative process.
4. A redistricting plan developed outside the Legislature or a redistricting plan
developed without Reapportionment Office assistance which is to be presented for
consideration by the Reapportionment Committee must:
a. Be clearly depicted on maps which follow 2010 Census geographic
boundaries;
b. Be accompanied by a statistical sheet listing total population and minority

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population for each district and listing the census geography making up each
proposed district;
c. Stand as a complete statewide plan for redistricting, or, if presenting a
partial plan, fit back into the plan which is being modified, so that the proposal
can be evaluated in the context of a statewide plan (i.e., all places of
geography must be accounted for in some district);
d. Comply with the guidelines adopted by the Reapportionment Committee.
5. Electronic Submissions
a. Electronic submissions of redistricting plans will be accepted by the
Reapportionment Committee.
b. Plans submitted electronically must also be accompanied by the paper
materials referenced in this section.
c. See the Appendix for the technical documentation for the electronic
submission of redistricting plans.
6. Census Data And Redistricting Materials
a. Census population data and census maps will be made available through
the Reapportionment Office at a cost determined by the Permanent
Legislative Committee on Reapportionment.
b. Summary population data at the precinct level and a statewide work maps
will be made available to the public through the Reapportionment Office at a
cost determined by the Permanent Legislative Committee on
Reapportionment.
c. All such fees shall be deposited in the state treasury to the credit of the
general fund and shall be used to cover the expenses of the legislature.
Appendix.
ELECTRONIC SUBMISSION OF REDISTRICTING PLANS
REAPPORTIONMENT COMMITTEE - STATE OF ALABAMA
The Legislative Reapportionment Computer System supports the electronic submission
of redistricting plans. The electronic submission of these plans must be on either a flash
drive or CD ROM. The software used by the Reapportionment Office is the Esri
Redistricting Online (RO) Solution.
The electronic file should be in DOJ format (Block, district # or district #, Block). This
should be a two column, comma delimited file containing the FIPS code for each block,
and the district number. The Esri RO Solution has an automated plan import that creates
a new plan from the block/district assignment list.

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Web services that can be accessed directly with a URL and ArcView Shapefiles can be
viewed as overlays. A new plan would have to be built using this overlay as a guide to
assign units into a blank RO Solution plan. In order to analyze the plans with our attribute
data, edit, and report on, a new plan will have to be built in the RO Solution.
In order for plans to be analyzed with our attribute data, to be able to edit, report on, and
produce maps in the most efficient, accurate and time saving procedure, electronic
submissions are REQUIRED to be in DOJ format.
Example (DOJ FORMAT BLOCK, DISTRICT #)
SSCCCTTTTTTBBBB,D
SS

is the 2 digit state FIPS code

CCC

is the 3 digit county FIPS code

TTTTTT is the 6 digit census tract code
BBBB

is the 4 digit census block code

,

a comma goes before the district number

DDDD

is the district number

(The above format is also acceptable with a blank space in place of the comma).
Contact Information:
Legislative Reapportionment Office
Room 811, State House
11 South Union Street
Montgomery, Alabama 36130
[phone]
For questions relating to reapportionment and redistricting, please contact:
Ms. Bonnie Shanholtzer
Supervisor
Legislative Reapportionment Office
[e-mail]
Please Note: The above e-mail address is to be used only for the purposes of obtaining
information regarding redistricting. Political messages, including those relative to specific
legislation or other political matters, cannot be answered or disseminated to members of
the Legislature. Members of the Permanent Legislative Committee On Reapportionment
may be contacted through information contained on their Member pages of the Official
Website of the Alabama Legislature.

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