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

Filing 317

THOMPSON, District Judge, concurring in part and dissenting in part: re 316 Memorandum Opinion and Order; respectfully dissenting from the majority's conclusion that an additional 12 districts (Senate Districts 23 and 24 and House Districts 52, 55, 56, 57, 60, 67, 68, 69, 83, and 97) are constitutional, as further set out. Signed by Honorable Judge Myron H. Thompson on 1/20/17. (djy, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

ALABAMA LEGISLATIVE BLACK
CAUCUS, et al.
Plaintiffs,
v.
THE STATE OF ALABAMA,
et al.
Defendants.

ALABAMA DEMOCRATIC
CONFERENCE, et al.
Plaintiffs,
v.
THE STATE OF ALABAMA,
et al.
Defendants.
THOMPSON, District
dissenting in part:

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Judge,

CIVIL ACTION NO.
2:12cv691
(Three-Judge Court)
(WO)

CIVIL ACTION NO.
2:12cv1081
(Three-Judge Court)
(WO)

concurring

in

part

and

I concur with the majority that 12 of the districts
at

issue

do

not

pass

constitutional

muster:

Senate

Districts 20, 26, and 28 and House Districts 32, 53,
54, 70, 71, 77, 82, 85, and 99.

I also concur that 12

districts are constitutional: Senate Districts 18, 19,
and 33 and House Districts 19, 58, 59, 72, 76, 78, 84,
98, and 103.
However,
respectfully
that

an

for

the

dissent

additional

reasons

from
12

the

given

majority’s

districts

are

below,

I

conclusion

constitutional:

Senate Districts 23 and 24 and House Districts 52, 55,
56,

57,

60,

67,

68,

69,

83,

and

97.

Two

of

the

districts for which the majority concluded that race
predominated, SD 23 and HD 68, cannot survive strict
scrutiny.

In the other ten districts, for which the

majority held that race did not predominate, I conclude
that race predominated and they cannot survive strict
scrutiny.

2

In this case, involving the constitutionality of
Alabama’s

2012

House

and

Senate

plans,

the

Supreme

Court vacated the judgment previously adopted by the
majority and remanded it back to our three-judge panel
to

consider

individual

racial-gerrymandering

districts

for

the

with

purposes

plaintiffs’ equal-protection claim.

respect
of

to

resolving

Ala. Legislative

Black Caucus v. Alabama, 135 S. Ct. 1257, 1274 (2015).
That opinion provided us guidance about the importance
of direct evidence demonstrating the State’s policy of
using

“mechanical

racial

targets”

and

a

roadmap

assessing the districts challenged by plaintiffs.
at

1267,

1271.

predominance,

the

Specifically,
Court

provided

a

as

to

roadmap

for
Id.

racial
for

our

district-specific analysis, instructing us to examine
evidence

indicating

the

State’s

policy

of

achieving

racial targets had an impact on “at least some of [a
district’s] boundaries,” such as through the district’s
shape, the racial composition of the population added
3

to the district, or the preservation of the percentage
of the population that was black.

Id. at 1271.

The

Court also directed our attention to split precincts,
especially where the population was “clearly divided on
racial lines.”
certain

Id.

factors

race-neutral
including

Finally, the Court instructed that

could

factors

the

State’s

not

be

considered

overcoming

the

traditional

use

equal-population

of

race,

objective

and

factors “not mentioned in the legislative redistricting
guidelines.”

Id.

at

1271-72.

To

survive

strict

scrutiny, the Court instructed that the State must have
a

“‘strong

basis

in

evidence’

in

support

(race-based) choice that it has made.”

of

the

Id. at 1274.

The Court further concluded that the State “expressly
adopted and applied a policy of prioritizing mechanical
racial

targets

above

(save

one-person,

all

other

one-vote),”

districting
id.

at

criteria

1267,

and

described that approach as asking “the wrong question
with respect to narrow tailoring.”
4

Id. at 1274.

Because the majority does not adhere to all of the
Court’s guidance in its analysis of the strict-scrutiny
and

racial-predominance

prongs

of

plaintiffs’

equal-protection claim, I cannot accept the majority’s
analysis.

Our disagreement is not merely a question of

evidentiary disputes; the majority commits clear legal
errors in its analysis of both the two districts where
it

found

districts

strict
where

scrutiny
I

satisfied

disagree

with

and
the

the

ten

majority’s

conclusions as to racial predominance.

I. Two Additional Districts
Because I partially agree with the majority as to
SD 23 and HD 68, I will begin with them.

The majority

correctly concludes that race predominates with respect
to these two districts.

But I do not agree that the

State has met its burden to demonstrate that its use of
race survives strict scrutiny.

5

SD 23 and HD 68 are drawn in the largely rural West
Black Belt region of Alabama.

Each district consists

of a majority-black population that was represented by
a black legislator during redistricting.

In each, the

State hit its racial target--based on preserving the
same percentage of the black percentage when applying
the 2010 census to the 2001 district lines--almost to a
tee:

in SD 23, the drafters took a district that had

been 64.76 % black under the old lines and drew it with
a 64.84 % black population in the new plan; in HD 68,
the

drafters

took

a

district

that

black and left it 64.56 % black.

had

been

62.55 %

The State met its

targets despite adding significant new population to
each

district

to

achieve

its

equal-population

objective.
For

evidentiary

support

on

the

strict-scrutiny

prong, the majority relies principally on comments made
by incumbent legislators during public hearings in the
redistricting

process.

But
6

these

comments

are

inadequate to provide a strong basis in evidence.
the

first

incumbent

comment,
for

HD

Representative

68,

while

Thomas

expressing

In

Jackson,

concern

about

packing too many blacks into majority-black districts,
stated that instead Alabama’s majority-black districts
“could

be

black.

sixty-two

percent

or

sixty-five

percent”

Reapportionment Comm. Oct. 13, 2011 Hrg. Tr.

(doc. no. 30-23) at 8 (emphasis added).

And that is

it: Jackson offered no demographic support whatsoever
for

his

comment.

A

few

days

later,

Senator

Henry

Sanders, incumbent for SD 23, while expressing concern
about

drawing

majority-black

districts

with

too

few

blacks, suggested they “ought not to be less than 62
percent” black.

Reapportionment Comm. Oct. 18, 2011

Hrg. Tr. (doc. no. 30-28) at 6 (emphasis added).

The

only

his

demographic

support

Sanders

offered

for

comment is this: “Sometimes a lot of people don’t vote.
Sometimes a lot of people can’t vote. ... Sometimes a
lot

of

folks

are

discouraged
7

for

one

reason

or

another.”

Id.

unequivocally

(emphasis
directed

added).
his

Moreover,

comments

at

Sanders

“majority

African-American districts,” id. (emphasis added); that
is, in the plural and thus generally.
As

I

generic

will

and

comments

explain

later

conclusory

provide

and

“could

inadequate

in

be”

detail,

and

these

“sometimes”

evidentiary

support

for

government action based on race under strict scrutiny.
Strict

scrutiny

declaring

a

is

designed

State’s

use

of

to

ensure

race

that,

before

constitutional,

the

court must be reasonably confident that, as I believe
the

United

States

recently

filed

“relied

on

aptly

with

put

the

Supreme

information

about

characteristics--localized
knowledge

of

stereotypes.”

actual

it

in

an

amicus

Court,

the

brief
State

district-specific

assessments
constituents,

drawn

from

rather

than

Brief for United States as Amicus Curiae

at 32, Bethune-Hill v. Va. State Bd. of Elections (U.S.
2016) (No. 15-680), 2016 WL 4916822, at *32.
8

Because

the record is insufficient for this court to determine,
one way or the other, that Alabama did not rely on
stereotypes
districts

about
cannot

black

voting

survive

behavior,

the

two

scrutiny

and

the

strict

majority’s conclusion otherwise is clearly erroneous.

A. Strict-Scrutiny Standard
Where a court concludes that race predominated in
the

design

determine

of
if

a

district,

that

the

district

court
can

must

further

survive

strict

scrutiny--that is, “whether the [district] is narrowly
tailored

to

interest.”
(1993).
claims

further

a

compelling

governmental

Shaw v. Reno (“Shaw I”), 509 U.S. 630, 658
Shaw

in

I

the

strict-scrutiny

adopted,

for

redistricting

prongs

from

racial-gerrymandering
context,

ordinary

the

two

equal-protection

analysis: first, “any racial classification ‘must be
justified by a compelling governmental interest,’” and,
second, “the means chosen by the State to effectuate
9

its

purpose

must

be

‘narrowly

tailored

to

the

achievement of that goal.’” Wygant v. Jackson Board of
Education, 476 U.S. 267, 274 (1986) (plurality opinion)
(citations omitted).
As to the first prong, the parties do not dispute
that the State held a compelling interest in compliance
with

a

correct

interpretation

of

Rights Act, 42 U.S.C. § 1973c.
centers

on

the

second

§ 5

of

the

Voting

Accordingly, my review

prong--the

narrow-tailoring

requirement.
To

satisfy

the

narrow-tailoring

prong

here,

the

State must show that it had a strong basis in evidence
for the way it used race in the design of a district.
Ala.

Legislative

Elaborating

on

Black
the

Caucus,
standard,

135
the

S.

Ct.

at

Supreme

1274.
Court

explained that the State “may have a strong basis in
evidence to use racial classifications to comply with a
statute when [it] ha[s] good reasons to believe such
use is required, even if a court does not find that the
10

actions were necessary for statutory compliance.”

Id.

(quoting Brief for the United States as Amicus Curiae
29).

Put differently, while the State need not show

that a compelling interest actually required it to use
racial classifications, the State must show a strong
basis

in

evidence

for

believing

that

the

racial

classification it used was required.
In adopting the strong-basis-in-evidence standard
to

satisfy

the

narrow-tailoring

prong,

the

Supreme

Court directed us to the standard for strict scrutiny
that has been applied in both the voting-rights and
racial-preference contexts.

See Ala. Legislative Black

Caucus, 135 S. Ct. at 1274 (“[W]e agree with the United
States that a court's analysis of the narrow tailoring
requirement insists only that the legislature have a
‘strong

basis

in

evidence’

in

support

of

the

(race-based) choice that it has made.” (citing Brief
for United States as Amicus Curiae 29 and Ricci v.
DeStefano, 557 U.S. 557, 585 (2009)).
11

In

Ricci,

an

affirmative-action

case

that

confronted a race-discrimination claim under Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et
seq.,

the

strict

Supreme

scrutiny,

Court
the

concluded

government

that,

needed

to
more

survive
than

a

“good-faith belief” that its racial preferences were
necessary

for

581-82.

Even

statutory
though

compliance.
the

557

government

U.S.

reached

at
its

decision on the recommendation of an industry expert,
that

expert’s

“few

stray

(and

contradictory) ... statements” could not qualify as a
strong basis in evidence, especially because he had not
“studied the [issue] at length or in detail” and had
not seen relevant data.

Id. at 591 (quotations and

internal alterations omitted).
Beyond
standard

the
in

Court’s
Ricci,

recent
the

application

of

the

strong-basis-in-evidence

standard originally derived from equal-protection cases
in

the

racial-preference

context.
12

The

plurality

opinion in Wygant explained that a governmental actor
using

racial

must

have

classifications

“a

strong

for

basis

a

in

remedial

evidence

purpose
for

its

conclusion that remedial action was necessary,” which,
in turn, required that government actors proceed with
“extraordinary care” and assemble “convincing evidence”
before taking such action.

476 U.S. at 277.

The same standard was applied in City of Richmond
v.

J.A.

Croson

Co.,

488

U.S.

469

(1989),

which

determined that a race-based measure, supported by the
testimony

of

geographically

government

officials

specific

nor

that

was

neither

accompanied

by

an

explanation of the basis of their opinions, could not
pass

strict

conclusionary”
the

rigor

evidence.
The

scrutiny,
and

because

“generalized

necessary

to

such

“highly

assertion[s]”

establish

a

strong

lacked

basis

in

Id. at 500.
majority

asserts

that

the

strict-scrutiny

standard developed in racial preference cases has no
13

application
Supreme

to

this

Court’s

context.

decision

But
in

well

before
case,

this

the
the

strong-basis-in-evidence standard was imported into the
racial-gerrymandering context.
656

(citing

and

applying

See Shaw I, 509 U.S. at
strong-basis-in-evidence

standard from Wygant and Croson).

Similarly, in Bush

v. Vera, Justice O’Connor, who authored the plurality
opinion,

explained

in

a

separate

concurrence

that

a

State’s “‘strong basis in evidence’ need not take any
particular form,” but made clear that it “[could not]
simply rely on generalized assumptions” about voting
behavior,

such

as

voting.”

517

U.S.

concurring).
on

a

952,

prevalence
994

of

(1996)

racial

(O’Connor,

bloc
J.,

She concluded that the State’s reliance

recent

extensive,

“the

federal

court

geographically

ruling

specific

that
factual

had

made

findings

about voting behavior and was corroborated by expert

14

testimony provided a strong basis in evidence.

Id. at

994-95 (O’Connor, J., concurring).1
In

Shaw

v.

Hunt

(“Shaw

II”),

the

Supreme

Court

concluded that the State’s evidentiary burden on strict
scrutiny can be met only by using evidence it actually
considered at the time of redistricting; after-the-fact
justification does not count.

517 U.S. 899, 908 n.4

(1996) (stating that strong-basis-in-evidence standard
requires

interrogation

purpose,”

not

motivated’”
State’s

it).

proffer

of

a

“speculation
The
of

Court

legislature’s
about

what

refused

historical

and

to

“actual

‘may
credit

social

have
the

science

reports, generated only after the challenged districts
had been drawn, to prove that it had a strong basis in

1.
Justice O’Connor and the other members of the
plurality
ultimately
concluded
that
the
new
majority-black district was not narrowly tailored
because it was not compact and was oddly shaped. Bush,
517 U.S. at 979, 995.
15

evidence

for

districts.

its

creation

of

two

majority-black

Id. at 910.

Shaw II also required a district at issue to be
designed

in

a

manner

tailored

to

the

evidence

justifying it.

The Supreme Court held that, although

North

had

Carolina

evidence

to

draw

a

established
remedial

a

strong

district

basis

based

on

in
its

failure to give effect to minority voting strength in
one

region

of

the

State,

that

evidence

did

not

establish a broad license to draw a remedial district
elsewhere in the State.

Id. at 917.

The majority observes that strict scrutiny does not
require

that

a

State

engaged

in

redistricting

must

precisely guess what the Voting Rights Act demands; the
State

is

entitled

to

“a

Bush, 517 U.S. at 977.

limited

degree

I fully agree.

of

leeway.”

But here the

question put is simply whether the record is adequate
to

determine

race-conscious

that

the

decision

State
based
16

has
on

not

made

stereotypes

its
about

black

voting

decision

behavior
on

and

instead

localized,

has

based

its

district-specific

characteristics.
Stated simply, while the strong-basis-in-evidence
standard adopted by the Supreme Court in this case,
Ala.

Legislative

Black

Caucus,

135

S.

Ct.

at

1274,

“need not take any particular form,” Bush, 517 U.S. at
994

(O’Connor,

J.,

concurring),

it

does

require

the

State to point to concrete and specific evidence, which
it actually relied upon before reaching its decision
and which is sufficient for the court to interrogate
the

basis

race-based

for

the

decision

State’s
must

approach.
be

narrowly

Further,
tailored

the
to

address the harm to citizens in the district at issue,
and it must be fully supported by the evidence.
State

cannot

consistent

establish
with

a

strong

these

basis

standards,

in

If the
evidence

redistricting

undertaken with race as the predominant consideration

17

is

not

narrowly

tailored

and

cannot

survive

strict

scrutiny.

B.

SD 23 and HD 68

The majority’s strict-scrutiny conclusion for SD 23
and HD 68 rested primarily on the suggestions made by
the

districts’

Jackson

and

incumbent

Senator

legislators,

Sanders,

Representative

which,

the

majority

believes, gave the State a strong basis in evidence to
draw

majority-black

districts

62 % to 65 % black population.

within

the

range

of

a

The majority correctly

recognizes the legislators’ comments cannot provide a
strong basis in evidence for majority-black districts
across

the

Nonetheless,

entire
the

State,

as

majority,

the

State

relying

had

on

argued.

those

same

legislators’ suggestions, resuscitated the legislators’
two

districts,

transforming

the

State’s

statewide

argument into one specifically about SD 23 and HD 68

18

solely by virtue of the fact that Jackson and Sanders
served as incumbents in those districts.
For the reasons discussed below, this approach is
profoundly
which

mistaken.

the

majority

“extraordinary
analysis.
face,

relies

care”

betray

precise

percentage
percent

legislators’
do

demanded

of

or

that

even

in

the

population

sixty-five

percent”

exhibit

on
the

strict-scrutiny
Instead, on their

speakers

themselves

the

appropriate

recommendations:

black

comments

not

Wygant, 476 U.S. at 277.

they

lacked

The

“could

be

sixty-two

black,

according

to

Representative Jackson, the incumbent for HD 68; the
percentage in all majority-black districts “ought not
to

be

less

Sanders,

the

than

62

percent,”

incumbent

for

SD

according
23.

to

Senator

Reapportionment

Comm. Oct. 13, 2011 Hrg. Tr. (doc. no. 30-23) at 8;
Reapportionment Comm. Oct. 18, 2011 Hrg. Tr. (doc. no.
30-28) at 6 (emphases added).
all

majority-black

districts
19

But Sanders referred to
in

Alabama--so

we

know

that his recommendation was not tailored for SD 23 and
HD

68.

Jackson’s

suggested

“could

be”

percentages

provide neither a precise suggestion nor a reason to
think his passing comment was tailored to the districts
at issue.

Sanders’s 62 % minimum sets a bright-line

rule for all majority-black districts based on things
that happen, by his own words, only “sometimes”: he
went on to explain that, “Sometimes a lot of people
don’t vote.

Sometimes a lot of people can’t vote. ...

Sometimes a lot of folks are discouraged for one reason
or another.”

In the districts where, “sometimes,” a

high proportion of the black population exercises its
right

to

approach

vote,
to

population.

one

adopt

would
a

Sanders

expect

lower

did

not

a

more

percentage
tell

us

tailored
of

whether

black
those

conditions exist in his district, and the record does
not disclose it.
“could

be”

“sometimes”;

What Jackson and Sanders told us

relevant
but

to

without

the

districts

district-specific
20

at

issue

evidence,

the record gives us no way to know.

These comments do

not provide a strong basis in evidence sufficient to
satisfy strict scrutiny.

i.

Background

In October 2011, before draft redistricting maps
were available, the Permanent Legislative Committee on
Reapportionment

held

21

public

hearings

across

the

State to solicit public input.

At one such hearing, on

October

Representative

13

in

Thomasville,

Jackson

cautioned against packing: “I know they’ve compacted
those

districts,

put

the

minorities

in

one

district

they could put them in, but we didn’t feel that was
fair.”

Reapportionment Comm. Oct. 13, 2011 Hrg. Tr.

(doc. no. 30-23) at 8.
apparently

derived

redistricting

Jackson’s concern about packing
from

process

school-board districts.

the
for

recently

completed

Congressional

and

Suggesting that the drafters

had not taken into account statements he had made at
21

public hearings during that process, Jackson asked if
the

public

solicit

hearings

input:

“[I]s

reflected
this

a

genuine

something

that

attempt
we’re

to

just

going around getting people to come out and say you’re
doing this to make us feel good?

Because when it’s to

come for these -- the vote for this stuff ... you-all
had your minds all made up and you did what you was
going to do.”

Id. at 7-8.

Jackson then urged the drafters not to pack too
many black people into a single district:
“REPRESENTATIVE JACKSON: ... You know,
and having a minority district over
there, it’s got to be ninety-nine
percent minority.
“HEARING OFFICER:

Right.

“REPRESENTATIVE JACKSON:
It could be
sixty-two
percent
or
sixty-five
percent.
That’s what we’re trying to
tell our good friends before on that.
Nobody listens too well to us.”
Id. at 8 (emphasis added).

22

At another public hearing on October 18, 2011 in
Selma, Senator Sanders urged the drafters not to place
too few black people into majority-black districts:
“One of many concerns is we are not to
have any less African-American--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.”
Reapportionment Comm. Oct. 18, 2011 Hrg. Tr. (doc. no.
30-28)

at

expressed
tactic

6

(emphasis

concern

that

added).

about

involves

In

cracking,

spreading

the

essence,
a

Sanders

gerrymandering

population

of

a

voting bloc among many districts to deny its members a
sufficiently large population to elect the candidate of

23

their choice in any particular district.

Sanders also

expressed a procedural concern, requesting a further
hearing

after

the

drafters

had

proposed

a

concrete

redistricting plan because he did not believe a hearing
absent one held much value: “Whenever you are talking
in the abstract, it really doesn’t mean anything.
just doesn’t mean anything.”
a

draft

senators,

redistricting
Sanders

Id.

plan

proposed

In June 2012, after

had

an

It

been

shared

alternative

plan

with
that

included a 57.75 % black population in his district, SD
23.

Sanders

alternative

Senate

plan

Plan,

suggests

C-47,
he

did

at

5.

not

Sanders’s
believe

the

“sometimes” conditions applied in his district.
The State presented no evidence that the drafters
of the redistricting plan relied upon the legislators’
statements

in

drafting

SD

23

or

HD

68.

At

his

deposition, Representative Jim McClendon, the principal

24

legislative architect of the House districts,2 attested
that

he

did

not

remember

testimony

at

the

public

hearings about packing, and did not otherwise testify
about

Jackson

Senator

or

Gerald

Sanders’s
Dial,

statements.3

the

principal

At

trial,

legislative

architect of the Senate districts, recalled Sanders’s
statement

about

a

62 %

minimum

black

population

for

majority-black districts,4 but did not instruct Hinaman

2. McClendon worked on House districts while
Senator Gerald Dial worked on Senate districts.
Tr.
Vol. III (doc. no. 217) at 256:18-21; Affidavit of
Gerald Dial, APX 63 (doc. no. 76-4) ¶ 8.
3.
McClendon was asked if “any of the legislators
or any of the folks speaking at the public hearings
express [sic] any concerns that the plan that was being
proposed was going to result in pulling blacks from
certain
districts
and
concentrating
them
in
black-majority districts?”
McClendon testified that
“if that came up, it was not a constant theme by any
means” and it “wasn’t a high priority issue that I
recall these folks talking about that.” McClendon Dep.
(doc. no. 125-4) at 110:4-15. He could not “remember a
specific conversation on that.” Id. at 111:9-14.
4.
The majority suggests that Dial “considered”
Sanders’s opinion, see ante, at 126, but Dial merely
(continued...)
25

to incorporate that advice.5
alternative

plans

for

Dial did reject certain

Senate

districts,

including

Sanders’s own plan, because “[i]t didn’t even meet the
requirements

[Sanders]

had

said

keep

[the

majority-black districts] 62 percent at least.”

Tr.

Vol. I (doc. no. 215) at 77:14-15.
evidence

that

Dial

actually

would

But there is no

considered

Sanders’s

statement when constructing the enacted majority-black

testified that he remembered hearing it.
Tr. Vol. I
(doc. no. 215) at 37:9-25 – 38:1 (Dial recalling that
Sanders “felt like that the minority districts should
be at a minimum 62 percent minorities”). Even if Dial
actually
‘considered’
Sanders’s
statement,
consideration remains at least one step removed from
reliance.
5.
When
Dial
was
asked
to
identify
the
instructions he gave Hinaman, the suggestions of
Jackson and Sanders were not among them.
Tr. Vol. I
(doc. no. 215) at 67:20 – 68:1, 69:16–25.
Dial
testified that he instructed Hinaman about “fill[ing]
in the number of minorities to insure that we did not
regress the minority districts,” but he also testified
that his approach to doing so consisted of maintaining
the black percentage of the population in each
district. Id. at 67:23-25 – 68:1, 136:8-14.

26

Senate

districts;

ultimately-enacted

to

plans

the

also

contrary,

included

the

majority-black

districts below Sanders’s suggested 62 %.6
For his part, Hinaman testified that he discussed
with Dial and McClendon information they learned from
meetings with black legislators, but the nature of the
advice

consisted

of

geographic-specific

incorporate or exclude specific areas.
(doc. no. 217) at 151:4-16.
took

“some”

comments

from

requests

to

Tr. Vol. III

Hinaman testified that he
public

hearings

into

consideration in his initial plan and “tried to get an
overall feel for them as a group of all the hearings,”
but that “[i]t’s not something you could implement all
of their comments.”

See Tr. Vol. III (doc. no. 217) at

148:23-25; Hinaman Dep., APX 75 (doc. no. 134-4) at
70:20-25.

6.
SD 18 (59.10 % black) and SD 28 (59.83 %
black). District Statistics Report, Def. Ex. 400 (doc.
no. 30-39) at 2, 3.
27

In short, the statements relied on by the majority
to conclude that strict scrutiny has been met consist
of imprecise statements made by legislators addressing
different

topics

at

public

hearings

that

neither

legislator viewed as a serious forum for input.
of

that,

the

State

presented

no

evidence

On top

that

the

drafters actually incorporated Sanders’s or Jackson’s
guidance into the design of the relevant districts.

ii.

Analysis

As stated, the majority holds that the Jackson and
Sanders comments provided the State a strong basis in
evidence to conclude that it should draw both SD 23 and
HD 68 within a range of 62 to 65 % black.
121

(“We

scrutiny

conclude
because

that

the

[SD

state

23]

had

a

See ante, at

satisfies
strong

strict

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.
28

The

drafters drew a district in that range.”); id. at 304
(applying same approach to HD 68).

With this holding,

the majority errs in at least eight ways.
First,
specific.
60,

the

were

not

geographically

As the majority acknowledges, see ante, at

neither

specific

comments

to

Sanders
the

nor

Jackson

conditions

in

offered
SD

23

a

and

proposal
HD

68.7

Conclusory, geographically imprecise descriptions have
“little probative value” in equal-protection analysis.
Croson,

488

U.S.

at

500-01

(rejecting

reliance

on

7. As the majority acknowledges, Sanders referred
to all majority-black districts in the State, and,
consistently, Dial understood Sanders’s 62 % statement
as applicable to “all districts,” in contrast to other
instructions Sanders provided that were specific to SD
23. Tr. Vol. I (doc. no. 215) at 37:13-25 - 38:1. As
for Jackson’s comments, the State argued he addressed
“that part of the State” (without defining “that
part”), Def. Remand Br. (doc. no. 263) at 54, and the
majority understood him to refer to “his area.”
See
ante, at 60.
For my part, I have been unable to
discern Jackson’s intentions, given his various vague
and nonspecific references to “these House and Senate
districts,”
“those
districts,”
and
“a
minority
district.”
Reapportionment Comm. Oct. 13, 2011 Hrg.
Tr. (doc. no. 30-23) at 8.
29

legislator’s

statement

that

racial

discrimination

existed “in this area, and the State, and around the
nation” because it was not specific to the relevant
city); accord Shaw II, 517 U.S. at 902 (concluding that
remedy tailored to one region of the State could not
justify

remedy

State).

applied

to

a

different

area

of

the

Indeed, without district-specific demographic

evidence,

there

districts

are

is

not

no

way

based

to

on

be

sure

that

stereotypes

the

about

two

black

voting behavior.
Second,
remedies.

the

legislators

proposed

imprecise

Because Jackson was concerned about packing,

his suggestion that a majority-black district “could be
sixty-two percent or sixty-five percent”--in contrast
to

his

earlier

reference

to

a

hypothetical

district

that is 99 % black--is most logically read as a casual
reference to theoretically possible lower percentages
that

would

contrast,

sustain
Sanders

majority-black
proposed
30

a

flat

districts.
62

%

In
floor,

suggesting

that,

“sometimes,”

a

higher

or

lower

percentage of total black population would be necessary
to achieve a district-specific tailored approach.
Third, the majority fails to recognize that Jackson
and Sanders made proposals that, on their face, do not
address
about

the

racial

spreading

what

question:

packing

the

districts.
“To

precise

and

black

Jackson

Sanders

population

about
too

was

concerned

cracking,
thin

or

across

Neither focused on the relevant question:
extent

must

we

preserve

existing

minority

percentages in order to maintain the minority’s present
ability to elect the candidate of its choice?”
Legislative Black Caucus, 135 S. Ct. at 1274.

Ala.

Without

underlying demographics, we do not know if they would
have reached the same result if they had provided an
answer to the relevant question.
Fourth, and relatedly, there is no evidence that
the

remedy

proposed

by

Sanders

was

tailored

to

the

State’s compelling interest in achieving § 5 compliance
31

instead

of

a

different

goal,

self-interest in re-election.8

such

as

a

legitimate

As Dial testified, “I

never had a senator [in a majority-minority district]
tell me to not put too many minorities in his or her
district.”

Tr. Vol. I (doc. no. 215) at 96:14-15.

The

narrow tailoring requirement demands a fit between the
means and the particular end justifying the State’s use
of race--not some altogether different end.
Fifth, that Sanders felt comfortable proposing a
noticeably lower percentage (57.75 %) in his own Senate
district just months after recommending a 62 % floor in
all majority-black districts, see Sanders Senate Plan,

8. Because
Jackson
focused
on
reducing
the
percentage of black voters, I assume that he was not
motivated by incumbency protection.
To this end, I
take
judicial
notice
that
Jackson--who
expressed
concern about placing too many blacks within a
district--has never faced a general election opponent,
but Sanders--who expressed concern about establishing a
minimum floor of black would-be supporters--usually has
faced general election competition. See Alabama Votes,
Elections
Division
Data,
https://www.alabamavotes.gov/ElectionsData.aspx.
32

C-47, at 5, suggests one of two things: either his
original recommendation was never intended to apply to
his own district, or it was not based on a “reasoned,
principled explanation.”
Austin,

136

omitted).

S.

Ct.

Fisher v. Univ. of Texas at
2198,

2208

(2016)

(citation

The majority insists that the legislature

was “entitled” to rely on Sanders’s oral public hearing
comments

instead

legislature

of

chose

his

plan

gather

to

written

because

“the

input

about

its

redistricting effort through public hearings.”
at 129.

Ante,

But without underlying data or analysis, it is

impossible to determine whether it was reasonable to
rely on either proposal.
Moreover,
legislature’s
alternative

the

majority’s

unreasoned
plan

belies

Sanders’s credibility.

acceptance

dismissal
its

attempt

of

of

the

Sanders’s
to

bolster

The majority declares Sanders

“an expert in the politics of the Black Belt and Senate
District 23” and recites a litany of his experience.
33

See ante at 125.
Sanders

is

so

legislature’s

But if the majority truly believes
qualified,

unexplained

why

does

it

rejection

written plan for his own district?

accept

of

the

Sanders’s

Sanders’s knowledge

and credibility is not disputed; rather, I question the
court’s

ability

to

evaluate,

rigorous

strict-scrutiny

purported

reliance

on

while

applying

standard,

one

of

his

the

the

State’s

suggestions

but

dismissal of the other, without evidence in the record
adequately explaining the basis of that choice.
ante

at

19

(citing

Dial’s

testimony

that

the

See
State

rejected Sanders’s own Senate plan solely because it
did not comply with Sanders’s public hearing comments).
Indeed, that Sanders himself said that abstract public
hearing

testimony

“doesn’t

mean

anything,”

Reapportionment Comm. Oct. 18, 2011 Hrg. Tr. (doc. no.
30-28) at 6, should at least give a court applying
strict

scrutiny

pause

about

preference.
34

the

State’s

supposed

Sixth,
actually

the

State

relied

on

presented
the

no

evidence

legislators’

designing the relevant districts.9

that

comments

it

when

The State can hold a

strong basis in evidence only if that evidence reflects
its “actual purpose,” and not mere “speculation about
what ‘may have motivated’” it.

Shaw II, 517 U.S. at

908 n.4.
Seventh, in the absence of evidence of whether and
how

the

drafters

actually

used

the

legislators’

9. For the same reason, trial testimony from
Alabama Democratic Conference member Dr. Joe Reed and
prior testimony from plaintiffs’ expert Dr. Theodore
Arrington relating to recommendations for total black
percentage in majority-black districts may not play any
role in the strict-scrutiny analysis. Compare ante, at
122 (stating that Reed and Arrington testimony “confirm
the reliability” of statements made by Jackson and
Sanders). Because there is no evidence that the State
relied on this testimony to craft district lines for SD
23 and HD 68--and, of course, it could not possibly
have relied on after-the-fact trial testimony--it
cannot establish a strong basis in evidence. See Bush,
517 U.S. at 971 n. * (finding that legislature’s
purported reliance on 1992 election results cannot
justify challenged redistricting where those results
“were not before the legislature when it drew the
district lines.”).
35

comments,

the

majority

assumes

that

the

drafters

determined that Sanders’s statement set a 62 % floor
and Jackson’s passing reference set a 65 % ceiling, and
the majority apparently finds this range applicable to
both Senate and House majority-black districts in the
West Black Belt.

See ante, at 121, 307, 345-46, 379.

But there is no evidence the State ever applied, or
even contemplated, that range.

Nor is there evidence

that the State understood the comments as applicable
solely to the West Black Belt region; in fact, Dial
said

the

comments
across

exact
applied

the

opposite:
to

State.

37:13-25 - 38:1.

“all
Tr.

he

understood

Sanders’s

[majority-black]

districts”

Vol.

I

(doc.

no.

215)

at

The final redistricting plans provide

ample evidence that, despite Dial’s understanding, the
drafters did not adhere to this imagined range: five of
eight majority-black Senate districts10 and 18 of 28

10. Two majority-black Senate districts fell below
(continued...)
36

majority-black House districts, including two of the
West Black Belt’s six House districts, fell outside the
range.11
Eighth,

and

finally,

the

comments

were

not

“sufficiently measurable to permit judicial scrutiny of
the policies adopted to reach them,” Fisher, 136 S. Ct.
at 2211, so that the court can reasonably assure itself
that

the

State

did

not

rely

on

racial

stereotypes.

Sanders’s 62 % minimum:
SD 18 (59.10 % black) and SD
28 (59.83 % black).
Three fell above Jackson’s 65 %
suggestion:
SD 19 (65.31 % black), SD 26 (75.13 %
black), and SD 33 (71.64 % black).
See District
Statistics Report, Def. Ex. 400 (doc. no. 30-39).
11.
Seven majority-black House districts fell
below Sanders’s 62 % minimum: HD 19 (61.25 % black), HD
32 (60.05 % black), HD 52 (60.13 % black), HD 53
(55.83 % black), HD 54 (56.83 % black), HD 97 (60.66 %
black),
and
HD
98
(60.02 %
black).
Eleven
majority-black House districts fell above Jackson’s
65 % suggestion: HD 55 (73.55 % black), HD 57 (68.47 %
black), HD 58 (72.76 % black), HD 59 (76.72 % black),
HD 60 (67.68 % black), HD 67 (69.15 % black), HD 71
(66.90 % black), HD 76 (73.79 % black), HD 77 (67.04 %
black), HD 78 (69.99 % black), and HD 103 (65.06 %
black).
See District Statistics Report, Def. Ex. 403
(doc. no. 30-36).
37

This

is,

after

all,

strict

scrutiny.

The

record

reflects no data, studies, or even anecdotal accounts
relied

on

by

suggestions.12

Jackson

or

Sanders

to

formulate

their

We must be able to ask: How did the

legislators formulate their ideas?

What time period

and geographic scope did they address?

What data did

they rely upon as the basis for their comments?

How

did the State understand and implement the suggestions?
Here, with only a “few stray ... statements” plucked
from a voluminous hearing record, we are left with only
guesses.

Ricci, 557 U.S. at 591.

(I suspect that, if

answers to these questions were in the record, Sanders
and

Jackson

might

have

admitted

that

their

opinions

were formed less by careful analysis and more by an
off-the-cuff invocation of the now-discarded rule of
12. The majority’s reliance on testimony from Dr.
Reed suffers from the same problems as the comments of
Jackson and Sanders; that is, Dr. Reed offered only
generalizations about the appropriate percentage of
black population in all majority-black districts,
without offering district-specific evidence.
38

thumb

which

population

had

long

necessary

considered
for

black

candidate of their choice.

a

65 %

voters

total

to

black

elect

the

See, e.g., Barnett v. City

of Chicago, 141 F.3d 699, 702–03 (7th Cir. 1998) (“[I]t
is a rule of thumb that blacks must be at least 65
percent of the total population of a district in order
to be able to elect a black.”).

To say the least,

their comments come suspiciously quite close to, if not
coincide

with,

this

racially

stereotypical

rule,

a

circumstance which should raise a red flag and warrant
our

inquiry

into

the

underlying

district-specific

demographic bases, if any, for the comments before we
can rely on them.)

C.

Racial Targets

While I have observed that the comments of Sanders
and Jackson are inadequate to assess whether the State
used

impermissible

behavior,

it

cannot

stereotyping
be

about

overlooked
39

black

that

voting

affirmative

evidence

in

the

record

stereotyping did occur.

demonstrates

that

racial

The record makes abundantly

clear that, in redrawing the majority-black districts
at

issue

achieve

here,

the

mechanical

State

of

racial

Alabama
targets

attempted
based

on

to
a

thoughtless repetition of the black percentage of each
district’s population under district lines as drawn in
2001.

Since that approach is profoundly inconsistent

with the State’s burden to demonstrate that its use of
race

in

each

district

was

carefully

considered,

narrowly tailored, and supported by a strong basis in
evidence, it serves as an important complement to the
district-specific strict-scrutiny analysis.13

13. It is an open question whether direct evidence
of
a
statewide
redistricting
approach
that
is
incompatible with a narrowly tailored approach to the
use of race could alone be sufficient to conclude that
the State has failed to meet strict scrutiny in a
particular district.
The Supreme Court remanded for
this panel to conduct a district-specific analysis with
respect to racial predominance, but made no such
statement as to strict scrutiny.
Ala. Legislative
(continued...)
40

An assessment of narrow tailoring first requires a
precise

understanding

interest.
compelling

To

of

narrowly

interest

the

tailor
in

State’s
its

compelling

approach

compliance

to

with

a
the

retrogression requirement of § 5 of the Voting Rights
Act, the State’s approach should have been “reasonably
necessary” under § 5.
921

(1995)

Miller v. Johnson, 515 U.S. 900,

(“[C]ompliance

antidiscrimination

laws

districting

the

where

cannot
challenged

with

federal

justify

race-based

district

was

not

reasonably necessary under a constitutional reading and
application of those laws.”); accord Shaw II, 517 U.S.
Black Caucus, 135 S. Ct. at 1266.
In fact, in its
strict-scrutiny analysis, the Supreme Court concluded
that both “the District Court and the legislature asked
the wrong question with respect to narrow tailoring,”
which “may well have led to the wrong answer.” Id. at
1274 (emphasis added). As strict scrutiny requires the
court to interrogate the legislature’s actions leading
up to its race-based decision, one could conclude that
this wrong approach may well have been fatal. However,
because the State has failed to establish it had a
strong basis in evidence for the particular districts
at issue, I need not reach that conclusion here.
41

at

911

(holding

additional

that

State’s

majority-black

remedy,

district,

was

creating
not

an

narrowly

tailored because it was “not required under a correct
reading of § 5”).

Although the State’s approach need

not have been “actually necessary” to comply with § 5,
the

State

must

still

have

held

a

“strong

basis

in

evidence” to “believe” its use of race was required.
Ala. Legislative Black Caucus, 135 S. Ct. at 1274.
Here, the State’s interest in § 5 compliance “does
not

require

particular

a

covered

numerical

jurisdiction

percentage.

to
It

maintain
requires

a
the

jurisdiction to maintain a minority’s ability to elect
a

preferred

candidate

of

choice.”

Ala.

Legislative

Black Caucus, 135 S. Ct. at 1272 (citing 52 U.S.C.
§ 10304(b)).

The State should have known the correct

requirement

during

drafting:

Guidelines

provided

that

Department
its

§ 5

of

Justice

preclearance

determinations are not based “on any predetermined or
fixed

demographic

percentages....
42

Rather,

in

the

Department’s

view,

this

determination

requires

a

functional analysis of the electoral behavior within
the

particular

jurisdiction

or

election

district....

[C]ensus data alone may not provide sufficient indicia
of

electoral

behavior

determination.”

Id.

to

make

(quoting

the

requisite

Guidance

Concerning

Redistricting Under Section 5 of the Voting Rights Act,
76 Fed. Reg. 7471 (2011)).

In simple terms, the State

should

“To

have

preserve

asked

existing

itself:
minority

what

extent

percentages

we

order

in

must

to

maintain the minority’s present ability to elect its
candidate of choice?”

Ala. Legislative Black Caucus,

135 S. Ct. at 1274.
By any measure, the approach actually taken by the
State

was

woefully

misguided:

the

drafters

applied

“mechanical racial targets,” id. at 1267, even though
information about black electoral behavior, which would
have

furthered

functional,

the

State’s

district-specific
43

ability

to

analysis

conduct
of

a

black

citizens’

ability

to

elect

the

candidates

choice, was readily available.

of

their

See Ala. Legislative

Black Caucus, 989 F. Supp. 2d at 1345 (Thompson, J.,
dissenting)
readily

(describing

available

drafters’

political

failure

data);

to

accord

consult

Bush,

517

U.S. at 967 (plurality opinion) (concluding that it was
“evidentially

significant

that

at

the

time

of

the

redistricting, the State had compiled detailed racial
data for use in redistricting, but made no apparent
attempt to compile, and did not refer specifically to,
equivalent data regarding communities of interest.”).
Randy Hinaman, the State’s technical adviser, explained
that he instead “tried to draw those [majority-black]
districts as close to the [black percentage] numbers as
possible and practicable as they were in the 2001 plan
to

avoid

problems

preclearance.”
Senator

Gerald

examine

the

with

potential

Section

5

Tr. Vol. III (doc. no. 217) at 164:4-7.
Dial

voting

acknowledged
behavior
44

of

that

he

individual

did

not

districts

when guiding the drafting of Senate districts.
Vol. I (doc. no. 215) at 136:8-14.
mechanically

maintained

majority-black
recognized
question

that

with

“the

respect

Because the State

minority

districts,

the

to

percentages

Court

legislature
narrow

Tr.

has

asked

in

already

the

wrong

tailoring.”

Ala.

Legislative Black Caucus, 135 S. Ct. at 1274.
District-specific
State’s

misguided

districts

at

evidence

approach

issue

corroborates
extended

here.

Hinaman

that

the

the

two

touted

his

to

achievement of drawing an SD 23 that was “very close to
getting back to the identical numbers that [it was] 10
years ago,” by which he meant that the resulting “total
black percentage” was identical.

Tr. Vol. III (doc.

no.

Although

217)

at

186:19-25 – 187:1.

the

State

added a net 23,399 people to SD 23, Hinaman managed to
maintain almost identically the black percentage, from
64.76 % under the old lines to 64.84 % under the new
ones.

Senate Districts Pop. Changes from 2010 to 2012,
45

ADC

Supp.

(doc.

Ex.

no.

5;

Comparison

263-2)

acknowledges

that,

at

of

4.

“The

Minority

Indeed,

plaintiffs

Percentages

the

argue

majority
with

some

force that, given the extent of the changes to the
districts,

the

maintained

black

they

did

was

only

way

the

population

through

a

drafters

percentages

policy

of

could
as

racial

have

close

as

targets.”

Ante, at 119-20 (emphasis added).
Under-populated

HD

68

similarly

reflects

application of a mechanical racial target.
managed

to

percentage

keep

the

black

population

points--increasing

it

The State

to

from

the

within

two

62.55 %

to

64.56 %--even though the State added a net 8,835 people
to address substantial under-population.

Comparison of

Minority

at

Percentages

(doc.

no.

263-2)

2;

House

Districts Pop. Changes from 2010 to 2012, ADC Supp. Ex.
4.
total

Stated differently, the State increased HD 68’s
population

by

24 %

while

maintaining

percentage within just 2 % of the prior plan.
46

a

black

With its mistaken conception of § 5 compliance, the
State reduced the likelihood that it would reach the
right result--in other words, that it would tailor its
race-based

action

circumstances.
Legislative

as

narrowly

as

possible

under

the

But asking the “wrong question,” Ala.

Black

Caucus,

135

S.

Ct.

at

1274,

also

meant that the information the State actually reviewed
and

the

analysis

race-based

it

approach

conducted

had

little,

when
if

tailoring

any,

its

correlation

with the approach “reasonably necessary” for statutory
compliance.
our

This leaves the court--required to conduct

analysis

position.

using

strict

scrutiny--in

a

difficult

We have no demographic evidence before us

specific to SD 23 or HD 68 about black voting behavior,
past

election

results,

necessary

for

citizens’

ability

choice

in

considered

those
that

or

determining
to

elect

other
how

to

the

candidate

districts--because
kind

of

relevant
preserve

the

information.
47

factors
black

of

their

State

never

We

have

no

evidence

about

how

the

State

information--because it did not.
about

how

the

State

weighed

We have no evidence

considered

approaches--because it did not.

that

alternative

In other words, the

types of evidence the State would need to establish a
strong basis in evidence are simply absent from the
record

because

decision-making

they
in

the

were
first

absent

from
Under

instance.

its
these

circumstances, I cannot conceive how the majority could
conclude that the State had a strong basis in evidence
and the State’s approach was narrowly tailored.
Similarly, other courts have made short work of the
State’s

narrow-tailoring

arguments

where

the

State

failed to make even the barest showing that it has
conducted

an

appropriate

inquiry.

Reviewing

a

redistricting plan adopted by the Virginia legislature,
it was easy for a three-judge court to conclude that
the

plan

legislature

was
used

not
“a

narrowly
[black
48

tailored
voting-age

where

the

population]

threshold, as opposed to a more sophisticated analysis
of

racial

boundaries.

voting

patterns,”

to

draw

district

Page v. Virginia State Bd. of Elections,

No. 3:13-cv-678, 2015 WL 3604029, at *18 (E.D. Va. June
5,

2015).

Likewise,

legislature

mechanically

district

with

a

when

the

drafted

55 %

black

South

each

Carolina

majority-black

population,

another

three-judge court found that the legislature’s approach
was not narrowly tailored and could not survive strict
scrutiny.
(D.S.C.

Smith v. Beasley, 946 F. Supp. 1174, 1210
1996).

That

court

recognized

that

consideration of the relevant facts “was not done in
the present cases because of the insistence that all
majority-minority districts have at least 55 % [black
voting-age

population]

with

no

evidence

as

to

registration or voter turnout,” facts that “should be
considered

when

district

lines

district to be narrowly tailored.

49

are
Id.

drawn”

for

a

Because the State of Alabama did not conduct an
even

minimally

“reasonably
compliance,

sufficient

necessary”
this

analysis

for

court’s

it

ability

about

to

what

was

achieve

to

§

scrutinize

5
the

State’s use of race has been severely, if not fatally,
hampered.
Moreover,
because

it

Sanders’s

could
and

be

reasonably

Jackson’s

argued

“could

that,

be”

and

“sometimes” comments were generic and conclusory and
were not supported by district-specific demographics,
they constitute exactly the type of stereotyping about
black voting behavior that strict scrutiny is intended
to prohibit.

***

The

point

is

not

that

Sanders,

Jackson,

State of Alabama reached the wrong result.

or

the

It might be

the case that a range of 62 to 65 % is appropriate to
50

maintain

black

voters’

opportunity

to

elect

the

candidate of their choice in SD 23 and HD 68, and thus
a design of those districts within that range could
theoretically be narrowly tailored to meet the State’s
interest in § 5 nonretrogression.

Nor does it follow

from my conclusion that the legislature was obligated
to reject the suggestions of Sanders and Jackson, as
the majority suggests.

See ante, at 124-25.

Rather,

the State, having opted to utilize race in drawing the
boundaries of SD 23 and HD 68, needed to do so with
sufficient support to satisfy strict scrutiny.
State

has

not

presented--and

the

record

But the
does

not

otherwise contain--sufficient evidence to conclude that
the State’s approach was narrowly tailored.

Absent an

adequate record, this court cannot evaluate the State’s
use of race in drawing SD 23 and HD 68.

And that

inability is fatal, for “blind judicial deference to
legislative

or

executive

pronouncements

51

of

necessity

has no place in equal protection analysis.”

Croson,

488 U.S. at 501.
Because

the

demonstrating

State

that

has

its

not

use

met

of

its

race

burden

was

of

narrowly

tailored, I cannot give these districts my imprimatur.

II. Ten Additional Districts
I now turn to ten additional districts for which
the

majority

concluded

predominate.
plaintiff

must

In

the

“show,

mistakenly

that

race

racial-predominance
either

through

did

not

inquiry,

a

circumstantial

evidence of a district’s shape and demographics or more
direct evidence going to legislative purpose, that race
was the predominant factor motivating the legislature’s
decision to place a significant number of voters within
or without a particular district.”

Ala. Legislative

Black Caucus, 135 S. Ct. at 1267 (quoting Miller, 515
U.S. at 916) (emphasis added).

As the standard’s name

suggests, the use of race must be not merely present,
52

but predominant; the drafters’ mere “consciousness of
race”

does

not

suffice.

(plurality opinion).

Bush,

517

U.S.

at

958

Race predominates when “race for

its own sake, and not other districting principles, was
a legislature’s dominant and controlling rationale in
drawing district lines.”
use

of

racial

targets

Miller, 515 U.S. at 913.
“provides

evidence”

The

that

race

predominated, but must be accompanied by a showing that
the

use

impact

of
on

district’s]

a
the

target

“had

drawing

of

boundaries.”

a

direct
at

and

least

Ala.

significant
some

of

Legislative

Caucus, 135 S. Ct. at 1267, 1271.

[a

Black

When determining

whether race or race-neutral factors predominated, a
court should take a holistic approach, reviewing the
entirety of the drafters’ decisions that resulted in
the district’s boundaries.
While

the

racial-predominance

standard

is

rightfully demanding, the majority’s application of it
errs in several ways, causing it to conclude mistakenly
53

that race did not predominate in ten districts.

First,

I will explain several significant legal errors that
led

to

significant

analysis.

Then,

factual

errors

will

explain

I

in
why

the

majority’s

the

evidence

supports a racial-predominance finding in each of those
ten districts.

A.
i.
First,

Racial-Predominance Standard
Race-Neutral Districting Criteria
the

majority

goes

astray

when

it

categorically states: “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.”

Ante, at 25.

The majority

erroneously finds dispositive the mere possibility that
traditional

race-neutral

district’s boundaries.

criteria

could

explain

a

This categorical approach does

not comport with the Supreme Court’s guidance.
54

The injury underlying a racial gerrymandering claim
stems from the racial classification itself, not the
classification’s outward manifestations.
U.S.

at

state

913

(observing

action,

not

that

its

the

stark

constitutional violation”).

Miller, 515

“racial

purpose

manifestation”

is

of

“the

The harms stemming from a

racial gerrymander “include being personally subjected
to

a

racial

classification,

as

well

as

being

represented by a legislator who believes his primary
obligation

is

particular

racial

Caucus,

135

citations,
Therefore,

S.
and

if

predominantly
lines,

a

to

represent
group.”
Ct.

at

cognizable

on

can

race

injury

members

Legislative

(brackets,

quotation

plaintiff

relied

the

Ala.
1265

internal
a

only

prove
when
exists

marks
that
drawing
even

of

a

Black

ellipses,
omitted).
the

State

district
if

that

classification did not distort the district’s shape or
otherwise violate traditional redistricting principles.
Miller, 515 U.S. at 910-914.
55

Race

predominates

when

race

dwarfs

other

considerations and functions as an overriding factor
determining the placement of district lines.

See Shaw

II, 517 U.S. at 906-907 (rejecting the argument that
predominance cannot occur “where a State respects or
complies

with

traditional

districting

principles,”

because the legislature’s ability to “address[] these
interests does not in any way refute the fact that race
was

the

legislature’s

(brackets,

citation,

predominant

and

internal

consideration”)
quotation

marks

omitted).
Indeed,

race

sometimes

strongly

correlates

with

race-neutral criteria, such as partisan politics and
communities

of

interest,

including

“shared

broadcast

and print media, public transport infrastructure, and
institutions such as schools and churches.”

Bush, 517

U.S. at 964 (plurality opinion).

In other words, a

boundary

race-based

line

actually

drawn

for

reasons

could easily be explained after-the-fact by pointing
56

instead to party affiliation or a railroad boundary.
Were

our

analysis

‘race-neutral

focused

merely

on

identifying

for

a

district’s

justifications’

boundaries, we would frequently be able to find them,
even

in

the

most

egregious

circumstances

where

race

served as the one and only factor actually motivating
the drafters.
Moreover,
evidence”

the

when

majority’s

“the

design

requirement
of

a

of

district

“direct
can

be

explained by traditional districting criteria” cannot
be reconciled with the thrust of the Supreme Court's
decisions in Miller or this case.
stated

that

a

plaintiff

may

In Miller, the Court
establish

racial

predominance “either through circumstantial evidence of
a

district’s

shape

and

demographics

or

evidence going to legislative purpose.”
U.S. at 916 (emphasis added).
rely

heavily

on

more

direct

Miller, 515

The Court proceeded to

circumstantial

evidence

of

the

district’s shape and its use of land bridges, together
57

with the relevant racial demographics, in reaching its
conclusion

the

race

predominated,

offered

“various

alternative

district

State

that

based

principles.

on

even

though

the

explanations”

for

traditional

Id. at 918-19.

districting

In our case, the Court

reiterated the principle that circumstantial evidence
alone may be enough to establish predominance.

Ala.

Legislative Black Caucus, 135 S. Ct. at 1267.

This

analysis forecloses the majority’s insistence that race
predominates

only

when

a

district

contains

direct

evidence of race-based decisionmaking or explanations
based

on

traditional

districting

criteria

are

impossible.
As an analytical matter, direct evidence is not an
inherent
essential

aspect
element

of
of

the
a

constitutional
racial

harm

gerrymandering

or

an

claim.

Circumstantial evidence of racial intent can be just as
potent

as

direct

evidence,

and

the

mere

fact

that

traditional race-neutral districting principles ‘might’
58

explain what the legislature did does not mean that the
legislature

in

principles.

fact

predominantly

utilized

those

For example, if the evidence shows the

jurisdiction set a particularly high racial target and
the

drafter

states

that

he

moved

large

numbers

of

voters in and out of the district to reach that target,
with those moved in being almost all black and those
moved

out

being

almost

all

white,

a

court

could

conclude from this circumstantial evidence that race
predominated,
compact

even

and

if

the

consistent

redistricting principles.
Caucus,

135

district

S.

Ct.

at

with

were

other

relatively
traditional

See Ala. Legislative Black
1263

(indicating

that

stark

demographic evidence is significant when observing that
the legislature sought to maintain a black population
of 72.75 % in a challenged district that added 15,785
new individuals, only 36 of whom were white).
Similarly, a showing that the legislature relied on
racial data and did not consider non-racial information
59

that might otherwise explain the challenged district’s
lines could establish predominance even in the absence
of direct evidence based on the drawing of district
lines.

See, e.g., Bush, 517 U.S. at 966-967 (plurality

opinion)
racial

(emphasizing

data

that

available

but

the
not

State
other

had

data

detailed
concerning

traditional districting principles).
Accordingly,
involve

a

legislature

racial-predominance

holistic

analysis

determination

subordinated

should

whether

traditional

“the

race-neutral

districting principles ... to racial considerations.”
Ala.

Legislative

Black

Caucus,

135

S.

Ct.

at

1270

(quoting Miller, 515 U.S. at 916).

The key word here

is

say,

“subordinated.”

That

is

to

because

the

statewide evidence establishes that the legislature’s
approach prioritized race, see, e.g., Tr. Vol. I (doc.
no. 215) at 63:4-9, 124:16-22 (Dial describing avoiding
retrogression

as

the

“ultimate

goal”

and

“first

priority”), then so long as there is some evidence,
60

direct or circumstantial, corroborating the application
of

that

overarching

appropriate

to

race-neutral

approach

find

that

criteria.

race-neutral

factors

to
race
A

might

also

a

district,

it

predominated
demonstration
explain

some

is

over
that
of

a

district’s boundaries does not necessarily negate that
conclusion.
The majority’s analysis of SD 24 demonstrates its
error:

It

credits

the

State’s

argument

that

the

district’s expansion into a portion of Pickens County
that was 74 % black and exclusion of a portion of the
county that was 75 % white did not count as evidence of
racial

predominance

because

the

State

did

smooth lines that hugged the state border.
at 136.

so

using

See ante,

But that use of valid race-neutral criteria

does not end the analysis.

Instead, we must consider

evidence of the State’s application of its policy to
the district and its role in the overall design of the
district;

in

SD

24,

the

plaintiffs
61

pointed

to

both

preservation

of

the

racial

target--exceeded

by

just

+0.44 %--and testimony from two legislators that the
State was keenly aware of its mechanical targets when
drawing

at

least

some

See infra at 131-34.

of

the

district’s

boundaries.

Indeed, Dial frankly admitted

that SD 24 expanded into Pickens County because the
district “had to have more minorities.”
(doc. no. 215) at 48:19-25.

Tr. Vol. I

Viewed as a whole, the

evidence clearly establishes racial predominance even
though the State’s use of valid race-neutral criteria
also affected some of the district’s boundaries.
Instead of halting the predominance analysis where
traditional race-neutral criteria can explain some of a
district’s boundaries, I would consider whether there
is

evidence,

affected
determine

some

direct

or

of

district’s

the

whether

race

circumstantial,

or

boundaries

race-neutral

that
and

race
then

criteria

predominated over those criteria when looking at the
district as a whole.

In equal-protection analysis, we
62

must ask why the drafters actually made the choices
they did--that is, what was their motive--regardless of
the

range

of

other

possible

explanations;

that

a

drafter could have drawn a boundary in a particular way
to achieve ends other than race does not prove that
racial considerations did not in reality predominate
over race-neutral ones in the State’s ultimate design
of the district.
that

strict

Shaw II, 517 U.S. at 908 n.4 (stating

scrutiny

requires

interrogation

of

a

legislature’s “actual purpose,” not “speculation about
what ‘may have motivated’” it).

Where two possible

explanations exist, those possibilities must be viewed
in the context of the State’s policy of meeting racial
targets

if

the

evidence

reflects

that

it

had

an

overarching role in the design of the district.

ii.

State’s Policy of Meeting Racial Targets

Moreover,
application

in

the
its

majority’s
district
63

statement
analyses

and

that

repeated
“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,”
overlooks, or at least places too little weight, on the
State’s express policy of meeting racial targets.

In

other

is

words,

insufficient

while
direct

this

policy,

evidence

to

by

itself,

establish

racial

predominance, it is still important evidence in making
a determination as to whether race predominated as to
any district.
As the Supreme Court found, when drawing the 2012
House and Senate plans, the State employed a policy of
attempting to draw majority-black districts in such a
way that the percentage of black population in the new
districts matched the percentage under the district’s
old lines.
at 1267.

Ala. Legislative Black Caucus, 135 S. Ct.
The State prioritized that policy “above all

64

other

districting

one-vote).”

criteria

(save

one-person,

Id.

To be sure, as stated, the existence of a racial
target does not, by itself, establish predominance.

A

racial target may end up playing little or no role in
how

a

particular

constructed.

district’s

lines

are

actually

And even when a racial target is one

motivating factor in the drawing of some lines, race
may still not predominate over other non-racial factors
in the design of the district as a whole.
Nevertheless, the existence of a racial target does
not

drop

out

of

the

picture

in

a

court’s

analysis

whether the racial-predominance standard is met.

It

“provides evidence,” Ala. Legislative Black Caucus, 135
S.

Ct.

at

1267--and

sometimes

very

evidence--of the State’s use of race.
targets should not be treated equally.

compelling

But all racial
They may vary

in nature, the circumstances of their creation, and the
circumstances of their application.
65

A legislature might use a racial target to preserve
(not too many and not too few) the same percentage of
minority voters in a district.
a

racial

target

as

a

floor

A legislature might use
that

could

be

low

(for

example, at or slightly above 50 % minority) or high
(for

example,

above

60 %

minority).

A

legislature

might use a racial target as a general guide or range
or it might insist on mathematical precision such that
the

target

becomes

a

district’s boundaries.

driving

force

behind

the

Each of these factors impacts

the evidentiary weight to be given the existence and
use of a racial target.
Here, the targets were set at high percentages of
minority population; they were most constraining (not
too many and not too few); and reflected a rigorous
intent

to

possible.
direct

reach

as

many

majority-black

districts

as

Ample testimony from the drafters provides

evidence

that

the

State

had

a

policy

of

maintaining, to the extent practical, black percentages
66

in every majority-black district.

Hinaman explained

that he “tried to draw those [majority-black] districts
as close to the [black percentage] numbers as possible
and practicable as they were in the 2001 plan.”
Vol.

III

(doc.

no.

217)

at

164:4-7.

Senator

Tr.
Dial

testified that avoiding retrogression was the “ultimate
goal” and “first priority.”
at 63:4-9, 124:16-22.

Tr. Vol. I (doc. no. 215)

Dial instructed Hinaman that,

“We didn’t want to regress any of the [majority-black]
districts”

and,

“We

wanted

to

make

sure

the

[majority-black] districts stayed as they were and we
did not do away with any and that the population, as
they grew, that they grew into the same proportion of
minorities that they originally had or as close to it
as we could get it.”
125-3)

at

17:7-22

Dial Dep., APX 66 (doc. no.

(emphasis

McClendon

explained

districts:

“[W]e

the

tried

added).

Representative

same

to

approach

look

at

the

for
2010

House
census,

overlay it on the districts, and try not to change the
67

percentages of the citizens, the black citizens, in a
district any more than we had to.

Tried to keep them

in about the same proportion as they were.”
III (doc. no. 217) at 222:8-12.
focus

on

maintaining

the

Tr. Vol.

Hinaman explained his

black

percentage

in

each

district, which superceded the race-neutral criterion
of

keeping

precinct,

a

precincts
majority

whole:
white

He

“may

precinct

add

and

a

a

white

majority

African American precinct; but if you look at the end
number, if it did not retrogress the overall end number
[in that district], then they were added in.
some

reason

they

retrogressed

[he] would split precincts.”

that

number,

If for
then

...

Tr. Vol. III (doc. no.

217) at 144:2-7.
Indeed, where other three-judge panels have applied
Ala. Legislative Black Caucus to Shaw claims, they have
each recognized that racial targets deserve significant
weight.
117,

See Covington v. North Carolina, 316 F.R.D.
140

(M.D.N.C.

2016)
68

(three-judge

court)

(concluding,

after

describing

legislative

purpose

to

achieve racial target of 50 % plus 1 in majority-black
districts, that “[f]or all the challenged districts,
the overwhelming statewide evidence provides decisive
proof

that

race

predominated.”

(emphasis

added));

Harris v. McCrory, 159 F. Supp. 3d 600, 610 (M.D.N.C.
Feb. 5, 2016) (three-judge court), prob. juris. noted,
136

S.

Ct.

2512

(2016)

(concluding

that

race

predominated where “overwhelming evidence in this case
shows that a BVAP [black voting age population]-floor,
or a racial quota, was established in [the challenged
districts]”);

Bethune-Hill

v.

Va.

State

Bd.

of

Elections, 141 F. Supp. 3d 505, 524 (E.D. Va. 2015)
(three-judge

court),

prob.

juris.

noted,

136

S.

Ct.

2406 (2016) (“[Ala. Legislative Black Caucus] could not
be clearer that use of racial BVAP floors constitutes

69

evidence--albeit

significant

evidence--of

predominance.”).14
Moreover, one must also not lose sight of the big
picture presented by circumstantial evidence.

Here,

the

three

drafters

hit

their

racial

target

within

percent in 21 of 36 majority-black districts, and even
more precisely within one percent of the target in 16
of

those

which

I

districts,
conclude

majority does not.

including
that

all

race

ten

districts

predominated

but

for
the

If something happens once, it could

be a coincidence; if it happens again and again and
again--indeed, most of the time--that is unmistakable
evidence

of

intent.

The

fact

that,

over

and

over

14.
Although each panel recognized that racial
targets
deserved
significant
evidentiary
weight,
factors specific to each State’s application of the
targets impacted the ultimate predominance conclusions.
For example, in Bethune-Hill, the 55 % BVAP target was
relatively low and the panel found only that the target
was “used in structuring the districts,” not that the
legislature mechanically applied it.
141 F. Supp. 3d
at 519.
70

again, the drafters hit their racial target provides
very compelling circumstantial evidence that it is what
they intended to do.
Finally, my approach--which considers the nature of
the racial target, the circumstances of its creation,
and

the

circumstances

of

its

application--does

not

result in a “per se” finding of racial predominance or
a “rebuttable presumption,” ante at 48, 247, as I agree
with the majority that race did not predominate in 12
districts

in

large

part

because

this

circumstantial

evidence does not apply in those districts.

Indeed, I

am not saying that my approach compels a finding of
racial predominance; I just think the evidence should
not be ignored.

iii. Alternative Plans
The

majority

states

that,

“If

an

alternative

district has identical lines, we take the plaintiffs’
offering of that plan as a concession that race did not
71

predominate in the enacted district.”

Ante, at 35.

The majority overstates its case.
In

racial-discrimination

defendant

intentionally

information
decision.

the

cases,

whether

discriminated

defendant

considered

the

turns

on

before

its

Thus, in McKennon v. Nashville Banner Pub.

Co., 513 U.S. 352 (1995), the Supreme Court rejected an
after-the-fact justification for the challenged action
because “[t]he employer could not have been motivated
by the knowledge it did not have and it cannot now
claim

that

the

nondiscriminatory

employee
reason.”

was
Id.

at

fired

for

the

360.

While

the

inquiry is more challenging when a Shaw claim depends
on circumstantial evidence of legislative intent, the
same

equal-protection

principle

applies:

what

ultimately matters is the State’s intent at the time it
drew district lines.

See, e.g., Shaw II, 517 U.S. at

910 (refusing to credit State’s reliance on historical
and social science reports to justify its race-based
72

approach because reports were created after districts
had been drawn).
the

enacted

Alternative maps generated only after

districts

have

been

drawn

do

not

necessarily preclude a finding that race predominated
where

the

plaintiff

has

otherwise

met

its

burden.

Because, as I have indicated previously, application of
race-neutral

criteria

can

sometimes

create

the

same

result as racial ones, see supra at 56-57, alternative
plans do not always dispositively establish that race
did not predominate, especially in the face of clear
evidence,

direct

or

circumstantial,

of

the

U.S.

234

legislature’s intent.
Relying
(2001),
show

at

achieved

the

on

Easley

State

the

least

its

v.

argues
that

Cromartie,
that

the

legitimate

the

532

plaintiffs

legislature

political

“‘must

could

have

objectives

in

alternative ways that are comparably consistent with
traditional

districting

districting

alternatives

principles’
would
73

and

have

‘that

those

brought

about

significantly greater racial balance.’”

Def. Remand

Br. (doc. no. 263) at 19 (quoting Easley, 532 U.S. at
258).

The

evidentiary

State’s
rule,

racial-predominance

argument

distorts

applicable
inquiry

Easley’s

where

depends

entirely

the
on

circumstantial evidence, and transforms it into a legal
element of all Shaw claims, including those with direct
evidence of racial purpose.
This case is quite different from Easley, a case in
which the State defended a racial-predominance claim
with persuasive evidence that political gerrymandering,
rather than race, was the predominant motive of the
legislature, and had also demonstrated that race and
political party closely correlated.
North

Carolina

Congressional

Easley concerned a

district

that

had

been

redrawn after a finding that race unconstitutionally
predominated in Shaw II.

The primary issue was whether

the legislature was predominately motivated by race or
partisan politics when it redrew the district.
74

The

district

court’s

conclusion

that

race

predominated

depended on an exhaustive examination of circumstantial
evidence, including precinct splits, voter registration
data, and alternative decisions the State could have
made,

to

parse

whether

the

legislature

was

predominately motivated by race or by creating a safe
partisan
factual

district.
findings,

“[c]aution
because

is

“the

Reviewing

the

Supreme

Court

the

especially
State

district

emphasized

appropriate

ha[d]

court’s

in

articulated

a

this

that
case”

legitimate

political explanation for its districting decision, and
the

voting

population

is

one

in

which

political affiliation are highly correlated.”
532 U.S. at 242.

race

and

Easley,

In those circumstances, plaintiffs

“must show at the least that the legislature could have
achieved

its

legitimate

political

objective

in

alternative ways that are comparably consistent with
traditional districting principles.
also

show

that

those

districting
75

That party must
alternatives

would

have

brought

balance.”

about

significantly

greater

racial

Id. at 258.

Easley does not apply to a case, like this one,
where direct evidence of legislative intent indicates
that the State “expressly adopted and applied a policy
of

prioritizing

mechanical

racial

targets,”

Ala.

Legislative Black Caucus, 135 S. Ct. at 1267, rather
than

pursuing

politics.

a

policy

that

prioritized

partisan

While the State now attempts to justify its

actions on political grounds, it previously relied on
evidence

of

legislative

intent

which

reflected

prioritization of compliance with its understanding of
§ 5 nonretrogression.
evidence

that

political
highlighted

the

Indeed, instead of presenting

legislature

gerrymander,
evidence

the

showing

pursued

State
that

has
the

a

legitimate

consistently
Republican-led

drafters accommodated the requests of Democrats.

See

Def. Remand Br. (doc. no. 263) at 19 n. 1 (cataloguing
testimony

that

drafters

incorporated
76

requests

of

incumbent Democrats).

The Supreme Court recognized as

much in our case, citing Easley only as a contrast to
the

relevant

predominance

standard

of

Miller,

and

noting that Easley explained “the plaintiff’s burden in
cases, unlike these, in which the State argues that
politics, not race, was its predominant motive.”

Ala.

Legislative Black Caucus, 135 S. Ct. at 1267 (emphasis
added).

Three-judge

does

apply

not

here.

in

panels

have

circumstances

agreed

that

comparable

Easley

to

those

See, e.g., Covington, 316 F.R.D. at 139 n.21

(three-judge

court)

(citing

evidence

that

State

defended partisan results of redistricting on grounds
of

Voting

Rights

Act

compliance

as

“easily

distinguish[ing] this case from the Cromartie cases,
where there was substantial direct evidence supporting
the State’s ‘legitimate political explanation for its
districting

decision’”

(quoting

242)).

77

Easley,

532

U.S.

at

iv.
The

District-Specific Evidence

majority

incorrectly

disregards

district-specific circumstantial evidence that reflects
actions

that

reduced

the

proportion

inconsistently allocated, black residents.

of,

or

Rather than

looking for corroboration that the State brought its
racial target to bear in a particular district, the
majority treats the plaintiffs’ claim as if it were
based

on

drafters

a

packing

took

to

concept,
reduce

citing

the

any

black

actions

the

population

to

repeatedly conclude that race did not predominate in a
particular
about

district.

packing,

but

But

because

rather

is

this
about

case

is

not

preserving

majority-black population percentages (not too many and
not too few), the majority’s approach is wrong.
For example, despite committee guidelines to keep
precincts whole, the majority considers precinct splits
78

suspicious

only

majority-black

if

the

and

precinct

is

majority-white

split

district

between
where

a

the

majority-black district received a greater percentage
of black people.

See ante, at 55 (concluding that

precinct splits alone do not create inference of racial
predominance, in part because several splits “placed a
higher black population percentage in a majority-white
district than a majority-black district”).
however,

where

the

State

achieved

a

Frequently,

racial

target

exactly, its calculation of the racial makeup of that
district without split precincts demonstrates that it
would not have been able to hit its target without
splits.

For example, in HD 52, the State accomplished

its racial target (60.11 %) almost exactly (60.13 %);
without the use of six split precincts, the State would
have
black

exceeded

its

percentage

Analysis

(doc.

majority

accorded

target
to

no.

significantly,

64.50 %.
263-3)

no

at

weight
79

Def.
5.

to

the

raising

Precinct

Split

Nonetheless,
precinct

the

the

splits

because

they

did

not

demonstrate

a

“clear

pattern.”

See ante, at 246.

Although the splits reduced the

black

the

percentage

of

population,

they

ultimately

helped the drafters reach their target; the precinct
splits

therefore

predominated

provide

when

viewed

evidence
in

the

that

context

race
of

the

statewide policy.
The crucial problem with the drafters’ approach is
not that they used non-traditional districting criteria
to create improperly majority-minority districts, but
that they disregarded traditional race-neutral criteria
to

achieve

racial

targets

in

their

existing majority-minority districts.
a

district-specific

that

statewide

Circumstantial

analysis

goal
evidence

of

must
that

maintenance

When conducting

racial

guide
the

of

predominance,

our
State

approach.
ignored

traditional race-neutral districting criteria to inch
closer toward its racial target--even if it lowered the
percentage of black population in the district--serves
80

as powerful evidence that the State’s racial target was
brought to bear in a district.
Historically, the Court has identified evidence of
racial

predominance

legislature’s

in

disregard

a
of

Shaw

claim

traditional

where

a

race-neutral

criteria placed more minority than white citizens in a
challenged

district.

But,

in

each

prior

case,

the

racial-gerrymandering claim involved a challenge to the
creation

of

a

majority-minority

district,

which

necessarily involves efforts to add high percentages of
minority population.
(citing

evidence

See Shaw I, 509 U.S. at 635-636

that

district

“winds

in

snakelike

fashion through tobacco country, financial centers, and
manufacturing areas until it gobbles in enough enclaves
of black neighborhoods” (internal quotation marks and
citation omitted)); Miller, 515 U.S. at 917 (affirming
racial-predominance

conclusion

based

in

part

on

evidence “of narrow land bridges to incorporate within
the district outlying appendages containing nearly 80 %
81

of the district’s total black population”); Bush, 517
U.S. at 973 (plurality opinion) (relying on evidence
that

district’s

“many

narrow

corridors,

wings,

or

fingers ... reach out to enclose black voters, while
excluding

nearby

Hispanic

residents.”

(internal

citation and quotation marks omitted)).
In

our

case,

in
theory

racial-predominance

contrast,
rests

the

on

plaintiffs’

direct

evidence

concerning the drafters’ method of maintaining (not too
many

and

not

too

few)

majority-minority
precise
could

ways.
be

applied
precise

a

drafters

Here,

race-based
allocation

needed

percentage

districts

supported

majority-black

the

a

by

evidence

approach
of

add

blacks

that

to

In
large

the

achieve

residents
some
amounts

in

mathematically

racial-predominance

districts.
to

using

of

in

finding
drafters

a

racially
existing

districts,
of

new

the
black

population to achieve that goal; but to achieve that
goal in other districts, the drafters needed to add new
82

white

population

so

they

could

reduce

the

black

population percentage, or they needed to sweep in and
out large amounts of populations of both races.
other

words,

evidence

that

the

State

swooped

In
large

amounts of black population into a district is not the
only

type

of

evidence

that

supports

a

racial-predominance finding here.
To

be

sure,

the

Supreme

Court’s

model

analysis

based on SD 26 also looked to the exceptionally high
percentages of black population added to the district
using non-traditional districting criteria.

The Court

described the drafters’ “remarkable feat” of adding a
mere

36

white

individuals

to

the

district

adding a total population of 15,785.
Black Caucus, 135 S. Ct. at 1271.
that

precincts

split

between

a

despite

Ala. Legislative

The Court also noted
majority-black

and

a

majority-white district were “clearly divided on racial
lines,” with heavily black portions of the precincts
added

to

majority-black

SD
83

26

and

heavily

white

portions of the precincts added to majority-white SD
25.

Id.
But the Court also recognized the importance of the

drafters’

approach

to

composition

of

The

approvingly

Court

conclusion
percentage

existing

that
of

the

the

determining

the

majority-minority
cited

the

districts.

majority’s

legislature

population

racial

prior

“‘preserved’
was

that

‘the
Ala.

black,’”

Legislative Black Caucus, 135 S. Ct. at 1271 (quoting
Ala.

Legislative

1306).

SD

26

Black
had

a

Caucus,

989

remarkably

F.

high

Supp.

2d

75.13 %

at

black

population, the district with the second highest black
percentage of any majority-black district in Alabama.
See District Statistics Report, Def. Ex. 400 (doc. no.
30-39) at 3.
black

As such, in that district, preserving the

percentage

of

the

population

required

obvious

disregard of race-neutral criteria to add sufficient
black population.

But preserving a black percentage

with mechanical precision does not only require adding
84

black

population;

it

requires

achieving

a

racial

balancing that sometimes involved the use of precinct
or

county

splits,

irregular

appendages,

and

land

bridges to discard ‘excess’ black population that would
have otherwise left the State too far afield of its
target.

Where a district’s shape is “unexplainable on

grounds other than the racial quotas established for
those

districts,”

traditional

evidence

redistricting

of

“utter

criteria”

disregard

provides

for

strong

evidence that race predominated--regardless of whether
that

evidence

effect

on

the

reflects

an

minority

additive

population

in

or

subtractive

that

district.

Bush, 517 U.S. at 976 (plurality opinion) (citation and
quotation marks omitted).
By

any

measure,

the

State

routinely

disregarded

race-neutral districting criteria to achieve a racial
target,

even

criteria

if

reduced

its
the

failure

to

minority

district.
85

apply

race-neutral

percentage

in

the

v.

“Significant Number of Voters”

Finally,

the

majority
its

used

numerical

minimum

in

establish

racial

predominance,

an

predominance
the

overly

rigid

analysis.

plaintiffs

To
“must

show that ‘race was the predominant factor motivating
the

legislature’s

number

of

decision

voters

district.”

within

to
or

place
without

a

significant

a

particular

Ala. Legislative Black Caucus, 135 S. Ct.

at 1270 (quoting Miller, 515 U.S. at 916) (emphasis
added).

The

Supreme

Court

has

“significant number of voters.”
has

relied

on

dramatic

racial-predominance
but

provides

clarity

quantified

a

Frequently, the Court

statistics

conclusion

little

never

obvious
for

that
in

made

that

three-judge

a

case,
panels

required to navigate “the complex interplay of forces
that

enter

a

legislature’s

Miller, 515 U.S. at 915-16.
86

redistricting

calculus.”

For example, in Miller,

the Court approvingly cited the panel’s conclusion that
the use of a narrow land bridge to incorporate 80 % of
a

district’s

“exceedingly
used race.

total

black

obvious”

that

Id. at 917.

population

the

drafters

made

it

deliberately

In Bush, the plurality found

“utter disregard of ... local election precincts” where
60 % of the challenged districts’ residents lived in
split precincts.

517 U.S. at 974.

In our case, the Court likewise did not clarify the
statistical
Court’s

minimum

model

extent

of

analysis

racial

impact.

concluding

that

The
race

predominated in SD 26 relied on seven precinct splits,
“with the population in those precincts clearly divided
on racial lines,” without quantification of that racial
division.
1271.
new

Ala. Legislative Black Caucus, 135 S. Ct. at

The Court also cited the relative proportion of
population,

individuals

out

“remarkable feat.”

noting
of

that

15,785

Id.
87

adding
total

just

36

residents

white
was

a

Other three-judge panels have concluded that race
predominated

in

districts

where

race

explained

the

placement of only a small percentage of a district’s
population.
incumbent
because

In

fact,

legislator
of

her

possibility

that

facing
was

race,
this

evidence

excluded

the
alone

panel
was

that

from

a

a

white

district

contemplated

enough

for

the

race

to

predominate: “It is not clear whether the addition or
removal of one person on the basis of race could be
sufficient to establish that race predominated in the
drawing of a district.”
n.28

(three-judge

concluded

that

a

Covington, 316 F.R.D. at 149

court).

Nonetheless,

“significant

number

of

the

panel

voters”

had

been excluded where direct evidence established that
the

legislature

arbitrarily

increased

a

recommended

minority percentage by less than one percentage point
(0.58

%).

Id.

Another

panel

in

that

district

described a 6.89 % increase in the black voting age
population as “whopping,” and, where it corroborated
88

direct

evidence

racial

of

quota,

legislative

sufficient

predominance.

Harris,

159

intent

to

to

achieve

establish

F.

Supp.

a

racial

3d

at

618

(three-judge court).
Sometimes,

my

racial-predominance

analysis

considers the number or proportion of voters in a given
district

that

district

because

ignored.

But the degree the drafters hit their racial

target

were

also

placed

within

race-neutral

matters

here.

or

without

criteria

The

had

the
been

Supreme

Court

approvingly cited, as evidence of racial predominance,
the majority’s previous finding that SD 26 “preserved”
its

percentage

of

minority

population,

where

the

district had a 72.69 % black population and was redrawn
with

a

75.13

%

black

population.

Black Caucus, 135 S. Ct. at 1271.
Court
target

agreed

that

provided

predominance.

coming

within

circumstantial
In

each

of
89

the

Ala.

Legislative

In other words, the
2.44 %

of

evidence
districts

a
of
I

racial
racial
discuss

below, the State came within less than 1 % of hitting
its racial target.
Although

the

Court

and

prior

panels

offer

statistical guideposts for the predominance analysis, I
proceed not with unwavering reliance on a calculator
and

statistically

adherence

to

precise

first

determinations,

principles.

but

with

Race-conscious

redistricting that separates a “significant number of
voters”

or

“preserves”

the

minority

percentage

in

a

district obtains constitutional significance because it
signals state-sponsored endorsement of the idea that
voters may be identified and sorted principally based
upon

race.

In

Shaw

I,

the

Supreme

Court

applied

equal-protection principles to redistricting because it
recognized

that

legislative

action

that

classifies

citizens based on race is inconsistent with principles
of

equality

and

stigmatizes

individuals

solely

reason of their membership in a racial group.
at

643.

A

district
90

warrants

a

by

509 U.S.
racial

predominance-finding

where

race

had

a

significant

enough impact to realize these harms.

B.

Application of Racial-Predominance Standard

Having

laid

out

my

disagreements

with

the

majority’s approach to racial predominance, I will now
turn

to

Supreme

the

individual

Court’s

districts

guidance

in

and,

this

applying

and

past

the

cases,

explain why I would reach different conclusions from
the majority’s on a number of the challenged districts.
In

assessing

each

district,

I

will

follow

the

three-step approach the Supreme Court used in assessing
SD 26: First, I start with direct evidence reflecting
the “primary redistricting goal [] to maintain existing
racial percentages in each majority-minority district,
insofar as feasible”; second, I look at circumstantial
evidence in the record to see whether “this goal had a
direct

and

significant

impact

on

the

drawing

of

at

least some of [the district’s] boundaries”; and, third,
91

I look for evidence of race-neutral factors actually
considered by the drafters and determine whether those
factors, or race-conscious decisions, predominated in
the overall design of the district.

Ala. Legislative

Black Caucus, 135 S. Ct. at 1271.
In

the

follows,

discussion

of

focus

particular

I

in

individual

districts

on

the

that

following

corroborating circumstantial evidence: (1) how closely
the

drafters

population

hit

in

the

each

prior

district;

percentage
(2)

the

of

black

frequency

of

county and precinct splits, and the comparative racial
composition of those splits; (3) the ratio of blacks to
whites added to the district; and (4) the shape of the
district.
Ct.

at

1271

majority,
relative
words,

See Ala. Legislative Black Caucus, 135 S.

I

I
to

(assessing
also
the

examine

each

weigh
level

the

of

whether

factor).
net

Like

population

under-population--in
the

92

State

the

change
other

reshuffled

the

district’s

inhabitants

significantly

more

than

its

districts

for

equal-population objectives required.
Moreover,

with

regard

to

the

ten

which I conclude that race predominated, it must be
kept

in

mind

that

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.

As

previously

stated,

if

something happens once it may be coincidence, but, if
it

happens

again

and

again

and

again,

that

is

unmistakable evidence that it was intended.

i.

Jefferson County (HDs 52, 55, 56, 57, and 60)

I conclude that race predominated in five Jefferson
County House Districts:

HDs 52, 55, 56, 57, and 60.

At the heart of assessing the drafters’ approach to
race

in

State--was

Jefferson
the

County--and

decision

to
93

indeed,

extract

a

across

the

majority-black

House district from the County (HD 53) and move it far
north to create a new majority-black district composed
entirely

of

Madison

County

residents.

Although

the

majority and I agree that race predominated in HD 53,
the

majority

specific
County.
testimony

to

bases
the

its

decision

district’s

new

solely

on

factors

location

in

Madison

In doing so, the majority fails to account for
from

evidence

that

decision

to

the

drafters
played

race

that

central

a

unnecessarily

serves

as

role

reshuffle

direct

in

their

residents

of

Jefferson County House districts based on an incorrect
interpretation of § 5 compliance.

Under the 2001 map,

HD 52, 55, and 60 were each contiguous to HD 53 and, as
a

result,

experienced

substantial

unnecessary

population change under the new plan as each inherited
black population from HD 53.

HD 56 and 57, although

located

in

southwest

separated
substantial

from

of
it

HD
by

population

53
HD

52,

change
94

the

2001

also
because

map

and

experienced
of

the

significant

reshuffling

of

Jefferson

County’s

black

population.
Beyond

this

direct

evidence,

significant

corroborating evidence that race predominated in the
drafters’

approach

may

be

found

in

each

district:

precise matches of racial targets; substantial reliance
on split precincts, without which those targets would
not have been achievable; the movement of significantly
more

population

in

and

out

of

the

district

than

necessary; and sometimes irregularly shaped districts.
These

factors

contribute

to

my

conclusion

that

race

predominated in five Jefferson County House districts
not recognized by the majority.

a.

Impact of Racial Predominance in HD 53
on Surrounding Districts

Although, as stated, I agree with the majority that
race predominated in the drawing of HD 53, I reach that
conclusion

on

different

grounds.

95

Race

played

a

significant role in the drafters’ decision to move HD
53 from Jefferson County.
House

districts

That transfer, which enabled

within

Jefferson

County

to

achieve

mathematically precise racial targets, should be given
significant weight in the predominance analysis of its
surrounding districts.
As I previously explained, the drafters created for
themselves
specific

an

enormous

(but

challenge

incorrect)

through

understanding

their

very

of

§

5

compliance, combined with a no-greater-than-2 % ideal
population-size deviation.
Caucus,

989

F.

dissenting).
committee’s

Supp.

2d

See Ala. Legislative Black
at

Because
decision

to

1314-17

of

the

tighten

(Thompson,

J.,

reapportionment
significantly

the

deviation, many majority-black districts required the
addition

of

significant

black

population

to

avoid

‘under-population.’
Nowhere
challenge

was

felt

the
more

effect
acutely
96

of
than

that

unnecessary

Jefferson

County,

where compliance with the drafters’ approach required
the addition of approximately 70,000 black people to
the

county’s

existing

districts--the

equivalent

Tr.

(doc.

Vol.

III

no.

majority-black

of

a

217)

district
at

House

and

132:22-25

a
–

half.
133:1.

Because Hinaman “knew that most of the--if not all of
the

minority

those

neighborhoods

districts,”

he

were

already

concluded

included
“trying

that

in
to

repopulate them to get them back to deviation was going
to

retrogress

133:1-5;
125-4)

see

at

most
also

if

not

McClendon

100:12-14

all

of

Dep.,

(testifying

them.”
APX

that

districts--Jefferson

County

minority

underpopulated,

we

to

somewhere”).

and
To

had

get

overcome

challenge,

Hinaman

recommended

ultimately

adopted

a

plan

that

67

(doc.

“[a]ll

of

districts
the

that
and

Id.

people

at
no.
the

were
from

self-inflicted
the

moved

legislature
HD

53

from

Jefferson County to Madison County, reducing by one the
number of majority-black House districts in Jefferson
97

County.

Hinaman then used the black Jefferson County

residents living within former HD 53 to add population
to the remaining majority-black districts in the area.
The majority concludes that the relocation of HD 53
“provides no evidence that race predominated,” although
it finds that race still predominated in the drawing of
the district because of five suspicious precinct splits
specific

to

the

district’s

new

location

County.

See ante, at 206, 223-28.

in

Madison

For the majority,

HD 53’s move can be explained solely on the ground of
“massive

underpopulation.”

Id.

at

238.

To

the

drafters, however, the tight deviation that resulted in
such dramatic under-population in Jefferson County was
inseparable

from

their

mechanical

view

of

retrogression.
The drafters’ incorrect approach to retrogression
meant

that

even

Jefferson

County’s

majority-black

districts with a population well-above 50 % black, such
as HD 55 (73.55 % black) and HD 57 (68.42 % black),
98

required a massive influx of black population to avoid
even the slightest reduction in the percentage of black
population.

The

drafters

appeared

to

be

completely

oblivious to the ripple effects caused by unnecessarily
high

requirements

district--and
black

black

completely

population

voters’

for

oblivious

actually

candidates

of

population
to

necessary

choice.

in

any

the

to

When

given

level

elect

of

black

Representative

McClendon was asked if he had been advised that certain
percentages

of

minority

population

in

specific

districts would be too high and could raise concerns
about

packing,

McClendon

Dep.

McClendon
(doc.

testified

no.

125-4)

that
at

he

had

106:10-18

not.
(“I

haven’t been advised that if you go over a certain
number [of minorities out of the total population in a
district], you’re in trouble.”).
testified

that

he

“did

not

Senator Dial likewise
consider

any

[black

percentage] too high,” and agreed that his objective
was

to

construct

“guaranteed
99

black

safe

districts,”

without any apparent concern about packing.

Tr. Vol. I

(doc. no. 215) at 56:5-12, 18-21.

Jefferson County House Districts, 2001 Map, showing HD 53 at its
center. Def. Ex. 480 at 2 (excerpt).

100

Jefferson County House Districts after redistricting, reflecting
departure of HD 53. Def. Ex. 479 at 2 (excerpt).

District-specific
drafters’
districts

intent
with

new

to

evidence
flood

black

corroborates

Jefferson

population

to

County

the
House

preserve

the

existing percentages: six of the eight majority-black
Jefferson

County

House

districts
101

reached

a

black

percentage

of

the

population

within

one

percentage

point of the target, reflecting an unmistakable pattern
that stretches credulity to view as a coincidence.15
Despite

these

efforts

to

achieve

mathematical

precision, the record reflects not even a modest effort
by

the

drafters

to

determine

the

actual

percentage

necessary for black voters in Jefferson County to have
the

opportunity

to

elect

their

See 52 U.S.C. § 10304(b).
this

analysis,

they

candidate

of

choice.

Had the drafters undertaken

would

have

concluded

that

black

voters in Jefferson County districts would have safely
maintained the opportunity to elect their candidate of
choice with a lower percentage of black population, in
part

because

whites

for

of

the

support
preferred

from

other

candidate

of

minorities
black

and

voters.

Lichtman Witness Summary (doc. no. 168-1) ¶ 25 & Table
15. HD 52 (+.02 %); HD 54 (+.10 %); HD 55
(identical match); HD 56 (+.01 %); HD 57 (+.05 %); HD
60 (+.27 %). Comparison of Minority Percentages (doc.
no. 263-2) at 2.
102

7

(concluding,

districts,

as

that

to

55.7 %

illustrative

black

alternative

population

would

have

maintained safe black opportunity to elect in Jefferson
County).16
attempt

Further,
to

the

preserve

majority-black

all

districts

high black percentages.
Plan

demonstrates

drafters’
of

by

approach

Jefferson

eliminating

made

no

County’s

unnecessarily

The ALBC plaintiffs’ 1 % House

that

doing

so

was

possible:

it

preserved all nine majority-black House districts in
Jefferson

County,

including

HD

53,

by

reducing

the

percentages of black population in certain districts.
See

ALBC

Plfs.

Comparison

Deviations, APSX 492.

of

Black

Percentages

and

For example, the plan drew HD 52

with a 56.64 % black population (instead of 60.13 % in
the

State’s

plan);

HD

55

with

a

57.85 %

black

population (instead of 73.55 % in the State’s plan);

16. The majority previously credited Lichtman’s
testimony on this subject. See Ala. Legislative Black
Caucus, 989 F. Supp. 2d at 1271.

103

and HD 60 with a 53.49 % black population (instead of
67.68 % in the State’s plan).

Id.

Because “race was the predominant factor motivating
the

legislature’s

decision

to

place

a

significant

number of voters ... without” HD 53, it was also the
predominant

factor

motivating

the

decision

to

place

those same voters “within” the remaining majority-black
districts of Jefferson County.

Ala. Legislative Black

Caucus, 135 S. Ct. at 1270 (quoting Miller, 515 U.S. at
916) (emphasis added).

b.
The

State’s

HD 52 (Central Birmingham)
devotion

to

a

racial

convincingly demonstrated in HD 52.

target

is

The State matched

the percentage of black population nearly identically:
from 60.11 % black in 2001 to 60.13 % in 2012.

That

feat is extraordinary in and of itself, but takes on
added significance given the extent of the changes to
the

district.

Although
104

the

district

was

under-populated by a relatively modest 2,362 people,
see District Statistics Report, Def. Ex. 406 (doc. no.
30-37)

at

4--the

majority-black
nonetheless

least

Jefferson

moved

19,284

under-populated

of

County

district--the

people

in

and

out

any
State

of

the

district and still achieved virtually the exact same
racial proportion.

House Districts Pop. Changes from

2010 to 2012, ADC Supp. Ex. 4.

In other words, the

drafters moved eight times more people than necessary
to address under-population, and shifted a population
43 % of the size of the district’s total population
(45,083)

to

District

Statistics

30-36) at 4.

accomplish

its

Report,

racial
Def.

target.

Ex.

403

(doc.

Id.;
no.

The State’s quota required an additional

1,157 black people; the drafters added a net total of
1,134.

House Districts Pop. Changes from 2010 to 2012,

ADC Supp. Ex. 4.
down
would

to
be

the

This feat “represents racial sifting

finest

admirable

level,
in

its
105

a

racial
skill

exactitude
if

it

were

that
not

illegal.”

Ala. Legislative Black Caucus, 989 F. Supp.

2d at 1330 (Thompson, J., dissenting).
Nonetheless,
percentage

the

match

majority

was

not

concludes

the

because

“suspicious”

that

the

alternative plans were close enough to the same racial
percentage, and two proposals even reflected a higher
percentage of black population than the enacted plan.
See

ante,

distinction

at

243-44.

between

a

But
district

there
with

is
a

a

crucial

55.64 %

black

population under the ALBC 1 % Plan or 57.90 % black
population under the Democratic Conference Plan and the
ultimately

enacted

population.

Beyond

plan
the

with
principle

a

60.13 %
that

black

alternative

plans created after the challenged redistricting shed
little light on the drafters’ intent, the difference in
percentages in the alternative plans--compared to the
near-identical

black

percentage

plan--belies this argument.
only

0.02 %

removed

from

in

the

enacted

While the enacted plan was
the

106

targeted

percentage

of

black

population,

achieving

that

creates

strong

a

a

mathematical

inference

of

precision

intent,

the

plaintiffs’ post-remand plans were 4.47 % and 2.21 %
away

from

demographic

the

target,

realities

in

which

suggests

Jefferson

only

County

led

that
to

a

result in the same ballpark.
The State also used six split precincts in HD 52 to
achieve the nearly identical racial percentage.

The

majority concludes that split precincts in HD 52 “prove
nothing with respect to race,” explaining that the two
precincts

split

majority-white

between

districts

majority-black

contain

nearly

and

identical

percentages of black population, while the remaining
precincts

divided

between

display no clear pattern.

majority-black
Ante, at 246.

districts

But the six

precinct splits incorporated into HD 52 are notable not
because the State used them to pack black people into
existing
disregard

majority-black
for

this

districts--as

evidence
107

the

assumes--but

majority’s
because,

without them, the State would have been too far afield
of

its

racial

target.

The

State

reports

that

unsplitting all of the split precincts in HD 52 would
increase the black percentage in HD 52 from 60.13 % to
64.50 %.
at

Def. Precinct Split Analysis (doc. no. 263-3)

5.

As

another
make

the

majority

district,

the

has

precinct

difference

itself

splits

between

concluded

that

hitting

and

as

to

“appear[]

to

missing

the

target” contribute to a finding of racial predominance.
See ante, at 247 (explaining basis for finding racial
predominance as to HD 54).

Because the drafters were

not concerned if majority-black districts were packed
with too many black people, see supra, at 99-100, the
only logical inference to explain their use of split
precincts to lower the black population percentage is
that

the

committee
whole

were

race-neutral
guidelines

districting

that

subordinated

required

to

drafters’ racial target.
108

the

principle

keeping

goal

of

and

precincts

meeting

the

As HD 52 demonstrates, the crucial improper feature
of

the

drafters’

non-traditional
significantly
districts

approach

is

districting

more

black

(although

it

that

criteria

people

may

not

well

it

used

to

place

into

majority-black

have

done

that

in

certain districts), but that it used non-traditional
criteria

to

achieve

racial

targets.

Because

the

majority weighs evidence of the former but not evidence
of the latter in its predominance analysis, it fails to
identify clear examples of racial predominance.
measure,

that

criteria

to

latter

achieve

approach--using
a

racial

By any

non-traditional

target--was

brought

to

bear in the drawing of HD 52.

c.
The

story

HD 55 (Northwest Birmingham)
is

similar

in

HD

55.

The

drafters

inherited a district that was 73.55 % black, and they
spit out a district that remained exactly 73.55 % black
See Minority Percentages Comparison (doc. no. 236-2) at
109

2.

Even though the district borders HD 52 (which has a

black population more than 13 % lower than HD 55), and
even though HD 55 experienced substantial geographic
and

population

change,

residents did not.

its

proportion

of

black

The State managed to accomplish its

racial target to a tee even though HD 55 was among the
most

under-populated

21.86 %)

short

of

districts,

the

ideal

9,949

people

population.

(or

District

Statistics Report, Def. Ex. 406 (doc. no. 30-37) at 5.
The State moved in and out 28,143 people to reach its
target, with a net total of 6,967 blacks (73 %) and 730
whites

(8 %)

Percentages

added

Comparison

to

the

(doc.

district.

no.

236-2)

Minority
at

2;

House

Districts Pop. Changes from 2010 to 2012, ADC Supp. Ex.
4.

110

HD 55 (2001). Map, Def. Ex. 480
at 2 (excerpt).

Geographically,

the

HD 55 (2012). Map, Def. Ex. 479
at 2 (excerpt).

new

district

became

substantially more irregular, transformed into a thin,
snake-like band that runs primarily north-south except
for the addition of a portion of former HD 53 in its
new southeastern corner.

Map, Def. Ex. 479, at 2.

HD

55 includes four precincts that had been encompassed by
the

former

Jefferson
Street

HD

53

County

Middle

and

are

now

majority-black

School,

Glen

111

Iris

shared

with

other

districts:

Center

Elementary

School,

Legion Field Lobby, and Ramsey Alternative High School.
2001 House District Precinct Splits, Def. Ex. 413, at
31; 2012 House District Precinct Splits, Def. Ex. 405,
at 106-07.
The State attributes the high black percentage in
HD

55

to

black

population

growth

portion” of Jefferson County.
no. 263) at 120.

specific

to

“this

Def. Remand Br. (doc.

But the State overlooks that the new

HD 55 is substantially different geographically under
the 2012 plan than it was in 2001.
previously

extended

further

west

While the district
along

the

natural

boundary of Birmingport Road (State Highway 269), the
district’s western stretches were engulfed by HD 16 and
HD

57.

In

addition,

the

southern

portion

of

the

district now extends further east into what had been HD
53.

Compare 2014 Map, Def. Ex. 479, to 2001 Map, Def.

Ex. 480.

Of the 19 precincts that comprise the new HD

55, 12 precincts were not within the district in 2001.
2012 House District Precinct Splits, Def. Ex. 405, at
112

106-07; 2001 House District Precinct Splits, Def. Ex.
413,

at

32-33.

The

State’s

attempt

to

justify

a

race-neutral approach, like the lines of HD 55, rests
on shaky ground.
Because it is impossible to explain the State’s
preservation of the identical racial percentage in HD
55 for reasons other than the State’s laser focus on
race

and

because

applying

that

percentage

target

significantly affected the district’s lines, I conclude
that

race

predominated

over

traditional

race-neutral

factors in the drawing of HD 55.

d.

HD 56 (Southwest Birmingham)

Once again, the drafters hit their racial quota
nearly

spot

redistricting

on:

HD

56

was

and

62.14 %

under

62.13 %
the

black

new

plan.

before
The

drafters drew a district just four black people removed
from its target.
entered

or

exited

In light of the 14,241 people that
the

district,
113

that

mathematical

precision qualifies as stunning circumstantial evidence
that the statewide policy was brought to bear in HD 56.
The drafters shifted substantial residents in and out
of

the

district

despite

its

relatively

manageable

under-population of 4,457 people--movement of more than
three times the population size necessary to cure its
under-population.

While doing so, the State added a

net total of 2,489 blacks to the district compared to
just

906

whites:

62.12 %

of

its

new

population

was

black, matching the district’s 62.13 % racial target
almost exactly.

House Districts Pop. Changes from 2010

to 2012, ADC Supp. Ex. 4.
Like

other

districts,

the

Jefferson

legislature

County
placed

many

majority-black
black

people

“within” HD 56 because of the transfer of HD 53 to
Madison County.
S.

Ct.

at

1270

See Ala. Legislative Black Caucus, 135
(quoting

Miller,

515

U.S.

at

916).

Although HD 56 was not contiguous to the former HD 53
and thus its new boundaries did not encompass any of
114

that transferred district’s residents, HD 56 swallowed
many precincts from neighboring HD 52, which in turn
replenished its supply from the previously contiguous,
transferred HD 53.

See 2012 House District Precinct

Splits, Def. Ex. 405, at 99-101, 108-09; 2001 House
District Precinct Splits, Def. Ex. 413, at 31; 2001
Map, APX 40 (doc. no. 60-26); 2012 Map, APX 41 (doc.
no. 60-27).
The

majority

alternative

makes

plans

drawn

much
by

the

of

the

fact

plaintiffs

that

appeared

geographically similar to the enacted HD 56, while the
proposed black percentages fell within four points of
the enacted plan.
some

weight

to

See ante, at 260-61.
the

alternative

Even according

plans,

there

is

a

difference at the magnitude of 100 between the enacted
plan, which falls 0.01 % away from the target, and the
alternative plans, with even the tightest fit falling
1 %

away

from

the

target.

One

plan

and

one

plan

only--the State’s--demonstrates remarkable proximity to
115

a racial target; the alternative plans, even if in the
same

ballpark,

are

not

so

precise

“unexplainable other than by race.”

that

they

are

Miller, 515 U.S.

at 917.
The

majority

and

I

agree

that

the

compactness of HD 56 are not suspicious.

shape

and

We also agree

that the manmade boundaries apparently used to split
the Hunter Street Baptist Church precinct, see Precinct
Map,

APSX

likewise

114,

relied

demonstrate

on

by

the

another

ALBC

valid

plaintiffs,
race-neutral

criterion that defines at least some of the district’s
boundaries.

See Katherine Inglis Butler, Redistricting

in a Post-Shaw Era: A Small Treatise Accompanied by
Districting Guidelines for Legislators, Litigants, and
Courts,

36

Univ.

Rich.

L.

Rev.

137,

218

(2002)

(“[P]recinct boundaries generally correspond to known
landmarks and encompass reasonably compact geographic
areas.”).

Nonetheless, HD 56’s four split precincts

allowed the district to hit its racial target:
116

without

doing so, the district would have been 61.34 % black,
or

0.79 %

above

the

target.

Def.

Analysis (doc. no. 263-3) at 9.

Precinct

Split

Splitting precincts

allowed the drafters to minimize that discrepancy to an
almost unnoticeable 0.01 %.
The

plaintiffs

have

established

that

the

State

matched its target racial percentage while addressing
significant under-population, in the process shifting
many more people within and without the district than
necessary.

This provides sufficient evidence that race

had a “direct and significant impact” on the drawing of
HD 56’s boundaries.

Ala. Legislative Black Caucus, 135

S. Ct. at 1271.

e.
HD

57

HD 57 (West Birmingham)

provides

yet

further

evidence

of

the

drafters’ success at reaching their racial target in
Jefferson County following the transfer of HD 53.

With

a racial target of 68.42 %, the State managed to enact
117

a plan with a 68.47 % black population in the district,
leaving it just 20 black people over an exact match.
District

Statistics

Report,

Def.

Ex.

406

(doc.

no.

30-37) at 5; District Statistics Report, Def. Ex. 403
(doc. no. 30-36) at 5.
under-population

of

population,

20.48 %

District

or

Statistics

30-37) at 5.

The drafters did so despite

9,322

people
of

Report,

the
Def.

below
entire
Ex.

406

the

ideal

district.
(doc.

no.

To accomplish those goals, the drafters

moved 21,590 people in and out of the district.

House

Districts Pop. Changes from 2010 to 2012, ADC Supp. Ex.
4.

118

HD 57 (2001). Def. Ex. 480 at 2
(excerpt).

HD 57 (2012). Def. Ex. 479
(excerpt).

Geographically, HD 57 had been compact under the
old

plan,

but

the

drafters

constructed

an

elongated

district that runs north and south adjacent to and to
the west of HD 55.

See Map, Def. Ex. 479.

the

district

appears

occurring

landmass

new

naturally

something
of

the

In shape,

akin
United

to

the

Kingdom,

with southwestern portions alternately jutting into and
away

from

majority-white

HD

15

(instead

of

toward

Ireland), and a southeastern tip that extends so far
119

east it might have obviated the need for the Channel
Tunnel.

I do not agree with the majority that its

shape remains “compact” and is “not suspicious,” see
ante,

at

266-67,

a

criterion

required

under

the

guidelines.

Reapportionment Comm. Guidelines (doc. no.

30-4)

3

at

Constitution,

(requiring,
that

pursuant

“[e]very

to

district

Alabama

should

be

compact.”).
The
weight

majority
to

the

percentage,

notes
“almost

focusing

but

accords

little,

unchanged”
its

black

attention

if

any,

population

instead

on

alternative plans that purportedly prove the resulting
percentage

is

not

suspicious.

Were

my

analysis

to

focus on alternative plans, I would reach the opposite
conclusion: the State’s plan (at 68.47 % black) met its
target

(68.42 %)

so

precisely

while

the

alternative

plans fell several percentage points away (72.51 % and
66.1

%),

providing

strong

evidence

predominated in the State’s plan.
120

that

race

Comparison of New

Plans with 2012 Plans, Def. Supp. Ex. 64 (doc. no.
296-1) at 2.
The
used

majority

to

discounts

construct

Pleasant

Grove

HD

57,

First

the

including

Baptist

majority-white HD 15.

five

precinct
a

Church

splits

split

of

precinct

the
with

Through this split, the drafters

placed a 51 % black population in majority-black HD 57
and a 22 % black population in majority-white HD 15,
but

the

majority

non-problematic

found

because

that

the

racial

split

was

allocation
accomplished

through a “relatively smooth J-shaped line.”
269.

Ante, at

The reapportionment committee’s guidelines do not

support that result: valid criteria include respecting
“voting

precinct

boundaries,”

Reapportionment

Comm.

Guidelines (doc. no. 30-4) at 3-4, but does not include
an exception if those boundaries can be split through
smooth

lines.

although

Accordingly,

race-neutral,

legislative

was

redistricting

because
“not

this

mentioned

guidelines,”
121

criterion,

it

in

the

may

not

factor into our analysis.
Caucus,

135

S.

Ct.

at

See Ala. Legislative Black
1271-72.

In

any

event,

regardless of whether the split was “smooth” or not,
the

State’s

neglect

of

a

race-neutral

criterion

(keeping precincts whole) had a sizeable effect on the
racial composition of the district.

Further, had the

State not split any precincts, HD 57 would have been
66.59 % black, almost two percentage points below its
goal.

Def. Precinct Split Analysis (doc. no. 263-3) at

10.

Although

dispositive,

these

they

precinct

provide

splits

further

are

not

circumstantial

evidence of the drafters’ racial intentions.
The State’s only attempt to offer a race-neutral
explanation

for

HD

57

pointed

to

a

map

of

the

district’s 2001 lines in McClendon’s notebook, which
includes hand-drawn lines sweeping two new areas into
the district.
125.

See McClendon Notebook, Def. Ex. 459, at

According

notebook

to

generally,

McClendon’s
the

testimony

hand-drawn
122

about

additions

his

could

reflect input from incumbents.17

The State, noting that

the

a

resulting

percentage

of

district
black

had

“slightly

population

than

higher”

“Hinaman’s

so-called target,” Def. Remand Br. (doc. no. 263) at
122, apparently suggests that Hinaman would have met a
racial

target

exactly

but

feedback from legislators.

for

the

interjection

of

That the State’s technical

adviser would have hit the racial target precisely by
default

only

from--the

central

formulation
because

further

of

the

role

the
final

demonstrates--not
that

district’s
district

race

played

lines.

At

population

detracts
in
any

the
rate,

fell

a

statistically insignificant 20 black people above its
target,

this

justification

is

unconvincing.

17.
McClendon Dep. (doc. no. 125-4) at 78:2-16
(testifying that his notebook contained drawings made
by incumbent legislators reflecting requested changes
to districts). McClendon did not testify specifically
about the drawing for HD 57.

123

Accordingly, I conclude that race predominated in the
drawing of HD 57.

f.
HD

60

HD 60 (North Birmingham)

provides

further

proof

that

Hinaman’s

transfer of HD 53 out of Jefferson County allowed the
State to meet its racial targets in Jefferson County.
The State drafted a district approximately one-quarter
percentage
that

had

point
been

over

67.41 %

black (+0.27 %).

its

target,

black

and

taking
leaving

a
it

district
67.68 %

Especially when considered in light

of the drafters’ need to add 8,817 people to meet its
ideal population target (19.37 % of the total district
population),

this

feat

is

impressive.

District

Statistics Report, Def. Ex. 406 (doc. no. 30-37) at 5.
This
otherwise

district

is

an

outlier

inefficient

under-population

dilemma:

in

resolution
it

efficiently

the

State’s

of
moved

its
only

9,170 people in or out of the district despite adding
124

8,380

people

to

address

under-population.

House

Districts Pop. Changes from 2010 to 2012, ADC Supp. Ex.
4.

But that apparently aberrational approach can be

explained because the drafters quite simply tacked on a
southeastern tip to the district that had previously
belonged to HD 53, resulting in an irregularly shaped
district

that

population.
previously

snakes

south

to

encompass

See Map, Def. Ex. 480.
discussed,

the

more

black

For the reasons

displacement

of

former

residents of HD 53 to meet the State’s incorrect view
of § 5 retrogression provides substantial evidence that
race predominated in the surrounding Jefferson County
districts, including HD 60.

125

HD 60 (2001). Def. Ex. 480 at
2 (excerpt).

Although

the

HD 60 (2012), reflecting new
southeastern tip from former HD
53. Def. Ex. 479 at 2
(excerpt).

drafters

split

11

precincts

to

construct HD 60, the majority analyzes only the two
precincts split between the district and majority-white
districts, ignoring the nine precincts split between
majority-black
analysis
separately,

districts.

considers
it

Because

those

concludes

126

two
that

the

majority’s

precinct
the

splits

effect

was

negligible.

See

ante,

indicated,

however,

precincts,

HD

60

at

that

would

277-78.

had
have

it

not

been

than 5 % above its racial target.
Analysis

(doc.

no.

Gardendale

Civic

troubling:

the

263-3)

Center

at

The

72.5 %

any

has

split

black--more

Def. Precinct Split
13.

The

precinct

drafters

used

State

placed

is
a

split

of

particularly
47.3 %

black

population in majority-black HD 60 but only a 6.1 %
black population in majority-white HD 51, carving out a
small sliver at the southern end of the precinct to
include in HD 60.

2012 House District Precinct Splits,

Def. Ex. 405, at 98, 116; Map, APSX 108.
split

precincts,

including

those

split

The use of
with

other

majority-black districts, contributes to an inference
that race predominated in HD 60.

127

Gardendale Civic Center Precinct, reflecting small sliver added
to HD 60 in orange. Map, APSX 108.

The State suggests that HD 60 passes constitutional
muster

because

it

preserved

the

core

district and protected its incumbent.
(doc. no. 263) at 125.

of

the

old

Def. Remand Br.

The first justification, core

preservation, “is not directly relevant to the origin
of

the

new

district

inhabitants,”
128

Ala.

Legislative

Black

Caucus,

preclude

a

protecting

135

S.

Ct.

predominance
the

at

1271,

and

finding.

district’s

core

thus

cannot

any

rate,

At

cannot

explain

the

addition of an irregularly shaped southeastern tip with
heavily-black census blocks from the former HD 53, see
Maps, ADC Supp. Ex. 16B & 16C, which resulted from the
State’s decision to shift population among Jefferson
County

majority-black

House

districts

to

meet

its

equal-population goals consistently with its approach
to retrogression.
As

to

the

State’s

asserted

race-neutral

justification of incumbency protection, the evidence in
the record gives no indication that anything about that
goal

was

unique

approach to HD 60.

or

predominated

in

the

drafters’

The incumbent’s residence in the

mid-central portion of the district, a portion of the
district
cannot

which

explain

remained

constant

HD

precise

60’s

from
match

the
to

2001
the

map,

racial

target, the use of 11 precinct splits, or the addition
129

of

an

irregularly

shaped

from the former HD 53.

southeastern

tip

swallowed

See House Addresses, Def. Supp.

Ex. 1; 2014 House Districts Map, Def. Supp. Ex. 2.
Because

the

plaintiffs

have

advanced

sufficient

evidence suggesting racial predominance that cannot be
explained

on

race-neutral

grounds,

I

find

that

race

predominated in the drawing of HD 60.

ii.

West Black Belt (SD 24 and HDs 67 and 69)

Direct

evidence
Belt

specific

Western

Black

equated

under-population

to

establishes
in

districts
that

the

majority-black

in

the

drafters
districts

with the need to add heavily-black population to the
districts.

Beyond direct evidence, the majority fails

to place appropriate weight on circumstantial evidence
that the State’s racial policy was brought to bear in
these

districts,

mathematical

meeting

precision

and

racial

targets

unnecessarily

with

splitting

counties and precincts in search of new heavily-black
130

population to add to the district.
I

conclude

that

race

predominated

For these reasons,
in

the

drafters’

approach to SD 24, HD 67, and HD 69.

a.

SD 24 (Choctaw, Clarke, Green, Hale, Marengo,
Pickens, Suffolk, and Tuscaloosa Counties)

Overwhelming

direct

and

circumstantial

evidence

reflects the State’s use of race to draw SD 24: the
drafters said they were targeting a racial percentage
for the district, and they in fact met that target.
light

of

majority’s

this

direct

analysis

evidence,
that

the

I

disagree

with

the

racial-predominance

inquiry in this district requires a “close call.”
ante, at 130.

In

See

In fact, the State’s direct evidence has

made our job quite easy.

See Shaw II, 517 U.S. at 906

(placing substantial weight on “direct evidence of the
legislature’s objective”).
Discussing SD 24’s under-population, Dial testified
that it “had to have more minorities.”

131

Tr. Vol. I

(doc.

no.

215)

at

48:19-23.

Just

like

Hinaman’s

decision to move HD 53 from Jefferson County because of
his conclusion that under-population in majority-black
districts could only be remedied by adding more black
population,
that

he

racial

Dial’s

also

testimony

correlated

composition

of

serves

as

an

under-population
the

residents

admission
with

the

purportedly

required to address the under-population.18
In addition, Senator Marc Keahey, the incumbent for
neighboring

SD

22,

offered

uncontroverted

testimony

that Dial’s mechanical view of retrogression limited
the

options

for

drawing

SD

24’s

boundaries.19

Dial

18.
No such automatic correlation was necessary.
Had the drafters addressed SD 24’s under-population
without adding a single black person to the district,
it would have remained a majority-black district at
54.63 % black. ADC Remand Br., Table 1 (doc. no. 258)
at 21.
19. Keahey’s testimony was previously credited by
the majority.
See Ala. Legislative Black Caucus, 989
F. Supp. 2d at 1260.

132

would consider any amendments proposed by Keahey under
two criteria: first, affected incumbent senators agreed
to the amendment, and, second, the amendment would not
retrogress

the

understood

minority

Dial

to

mean

population,
lowering

by

by

which

any

Keahey

amount

the

percentage of black population in the district from the
level of the 2000 census used to draft the 2001 lines.20
Tr.

Vol.

proposed,

I

(doc.

among

no.

215)

other

at

192:2-24.

amendments,

Keahey

smoothing

the

southern boundary of SD 24 at the Marengo County border
so that it did not extend into a portion of Clarke
County--a

recommendation

consistent

with

the

committee’s guidelines of keeping counties whole.

Id.

at

for

199:24-25

–

200:1-4.

The

incumbent

senator

affected SD 24 agreed to the amendment, meeting the

20. As other testimony established, the drafters’
concept of retrogression looked at 2010 census data
applied to the 2001 lines.
See, e.g., Tr. Vol. III
(doc. no. 217) at 222:8-12.

133

first of Dial’s two stated criteria for approval, but
Dial rejected it because of race: he stated that it
would

retrogress

198:2-5,

majority-black

200:7-8.

Keahey

later

districts.
learned

Id.

that

at

Dial’s

understanding of retrogression measured a reduction in
the black population using 2010 census data applied to
the 2001 lines, consistent with overwhelming evidence
of the statewide policy.
Dial

rejected

the

Id. at 198:8-15.
proposal

understanding

now-discredited

incumbent’s

of

Because

based

on

his

retrogression,

Keahey’s testimony provides direct evidence that the
statewide policy was brought to bear in SD 24.
The majority agrees that the testimony of Dial and
Keahey shows that the drafters “considered race in the
drafting
that

of

the

the

district”

evidence

predominance.
“considered
significantly

but

falls

short

Ante, at 133.
race”

when

more

black

nonetheless
of

concludes

establishing

But because the drafters
solving

people
134

under-population,
were

added

to

the

district than white people (23,241 compared to 19,606),
while significantly more white people were removed from
the district compared to black people (14,099 compared
to 10,828).
motivated

Because the drafters’ admitted use of race

the

movement

of

“a

significant

number

of

voters within or without” the district, the testimony
strongly

supports

a

predominance

conclusion.

Ala.

Legislative Black Caucus, 135 S. Ct. at 1267 (quoting
Miller, 515 U.S. at 916).
By

the

time

redistricting,
goal:

SD

24,

the

the

legislature

drafters

which

had

had
been

had

completed

accomplished
62.78 %

their

black

when

applying the 2010 census to the old lines, stood at
63.22 %

black,

just

0.44 %

above

the

target.

Comparison of Minority Percentages (doc. no. 263-2) at
4.

At trial, Hinaman boasted that, although SD 24 had

been severely under-populated, it was ultimately “very
close to getting back to the identical numbers that [it
was] 10 years ago,” by which he meant identical “[b]y
135

total black percentage.”

Tr. Vol. III (doc. no. 217)

at 186:19-25 – 187:1.

SD 24 and its eight counties, six of which were split.
Map, Def. Supp. Ex. 5.

By adding a northern portion of Clarke County and a
southwestern portion of Pickens County to SD 24, the
drafters violated the traditional districting criterion
of

keeping

counties

whole.

Although

the

State

maintains that changes to the district lines “largely
resulted from the wishes of incumbent senators in the
136

area,” Def. Remand Br. (doc. no. 263) at 70, it offered
no

evidence

disputing

Keahey’s

testimony

about

rejected request pertaining to Clarke County.21

his
The

State argued merely that it needed to add slivers of
Clarke and Pickens Counties because of under-population
and

geographically

mandated

limitations,

since

the

district faced Mississippi on its western border and
under-populated SD 23 on its eastern border.
Merely addressing under-population does not explain
the substantial racial disparities in those portions of
the counties added to SD 24.

In Pickens County, which

had previously belonged wholly to majority-white SD 21,
the

State

added

7,303

people,

of

whom

74.01 %

were

21. Although
the
State
maintained
that
the
drafters’ approach to Clarke County was constrained by
an incumbent residing on the boundary of SD 22 and SD
23, the incumbent’s residence was swallowed up by SD 23
in a southern portion of the State far removed from the
portion of the county added to SD 24. 2014 Senate Map,
Def. Supp. Ex 5; Map, Def. Ex. 476.
Thus, the
incumbent’s
location
had
no
effect
on
SD
24’s
boundaries.
137

black, to SD 24.

District Splits, Def. Ex. 401 (doc.

no. 30-40) at 8.

It kept the northern and eastern

portions of Pickens County--which just so happened to
contain a 75.00 % white population--in majority-white
SD 21.

Id. at 7.

The majority dismisses this racial

division because the shape of the SD 24 portion of
Pickens County is tied to the western border of the
State and has a “relatively smooth line” to the Greene
County border, ante, at 136, but the State did not
describe these race-neutral explanations as its “actual
purpose,” see Shaw II, 517 U.S. at 908 n.4.

Instead,

the evidence shows that the State specifically intended
to add black population: Dial testified that SD 24 “had
to have more minorities, and so [it] had to grow as
well,”

so

it

“grew

up

into

referring to Pickens County.
at 48:19-25.
line’

creates

overcome

the

the

north

district,”

Tr. Vol. I (doc. no. 215)

To the extent that creating a ‘smooth
a

race-neutral
plaintiffs’
138

inference,
direct

it

evidence

cannot
that

traditional districting factors were “subordinated to
racial objectives.”
In

Clarke

Miller, 515 U.S. at 919.

County,

which

had

previously

belonged

solely to majority-white SD 22, the drafters added a
61.13 % black northern slice to SD 24 and a 70.67 %
black

southeastern

section

to

majority-black

SD

23

while preserving in majority-white SD 22 a portion of
the

county

that

was

only

22.02 %

black.

District

Splits, Def. Ex. 401 (doc. no. 30-40) at 7-9.
State’s

addition

of

heavily

black

portions

of

The
split

counties to majority-black SD 24 without a race-neutral
explanation provides further substantial evidence that
race

predominated

over

traditional

districting

Precinct splits tell a similar story.

Although the

criteria.

21 precinct splits in SD 24 do not in and of themselves
demonstrate that race predominated, several are quite
striking.

In

particular,

in

two

Choctaw

County

precinct splits with majority-white SD 22, the State
139

placed hundreds of the precinct’s black residents in SD
24 but not a single one in SD 22.

See District Splits,

Def. Ex. 475, at 88, 109; Precinct Map, APSX 291 (split
of Silas-Souwilpa-Isney-Toomey precinct with 850 blacks
and 818 whites placed in SD 24, but no blacks and 237
whites in SD 22); Precinct Map, APSX 290 (split of
Riderwood-Rock Springs precinct with 335 blacks and 339
whites placed in SD 24, but no blacks and 43 whites in
majority-white SD 22).

The majority concludes without

explanation that it could find “no racial pattern” in
the Silas precinct split, ante, at 145, but splitting a
precinct by placing black people on only one side of
the line seems an obvious racial pattern to me.

140

Silas-Souwilpa-Isney-Toomey precinct, which added significant
black population to SD 24 but no black people in the
irregularly-shaped portion drawn in majority-white SD 22.
Precinct Map, APSX 291.

Moreover, these stark racial divisions cannot be
explained

solely

attempts to do.

by

under-population,

as

the

State

SD 24 was 17,732 people short of the

ideal population target; in redistricting, the State
moved 70,988 people in and out of the district--four
times

the

number

of

people
141

necessary

to

address

under-population.

Pop. Summary Report, Def. Ex. 402

(doc. no. 30-41) at 1; Senate District Pop. Changes
from 2010 to 2012, ADC Supp. Ex. 5.

Combined with the

stark racial divisions in the new geographical areas
added

to

address

explanation

under-population,

cannot

overcome

a

this

race-neutral

finding

that

race

predominated in drawing SD 24.
b.

HD 67 (Dallas and Perry Counties)

I agree with much of the majority’s conclusions as
to HD 67, but not the ultimate one.

I find that race

predominated in the State’s drawing of this district
because of sufficient circumstantial evidence that the
State’s

racial

target

“motivate[d]

the

legislature’s

decision to place a significant number of voters within
or

without”

the

district.

Ala.

Legislative

Black

Caucus, 135 S. Ct. at 1267 (quoting Miller, 515 U.S. at
916).

The district was 69.14 % black after the 2010

census; by adding just the right amount of Perry County

142

that would address both under-population and its racial
target,

the

69.15 %

black.

factor
drafters

State

alone
hit

achieved

Race
[that]
HD

67’s

is

a

the

explains
target

new

district

“[o]ne
the
so

that

was

and

one

that”

the

factor
fact

precisely,

and

is

sufficient to establish that race predominated.

Ala.

Legislative

1325

Black

Caucus,

989

F.

Supp.

2d

at

(Thompson, J., dissenting).

HD 67 (2001). Map, Def. Ex.
480 at 1 (excerpt).

HD 67 (2012). Map, Def. Ex.
479 at 1 (excerpt).

As the majority explains, HD 67 fit entirely within
Dallas County under the old lines.
143

Most of Dallas

County belonged to HD 67, with approximately 13 % of
the county’s population in neighboring, majority-black
HD 69.

2001 District Splits, Def. Ex. 412, at 7.

The

drafters moved all Dallas County residents to HD 67,
serving
county

the

race-neutral

whole.

population

principle

Nonetheless,

guidelines,

the

with

district

of

keeping

the

the

new

ideal

remained

1,701

people short of the ideal population target.

District

Statistics Report, Def. Ex. 403 (doc. no. 30-36) at 6;
County District Splits, Def. Ex. 404, at 15.

Needing

to move beyond Dallas County’s borders, the drafters
added

1,258

residents

from

Perry

County

(59.54 %

of

whom were black), a rural Black Belt county that had
previously been encompassed entirely by majority-black
HD 72.

County District Splits, Def. Ex. 404, at 16.

To do so, the drafters added six precincts from Perry
County, four of which were split.
Precinct

Splits,

Def.

Ex.

405,

2012 House District
at

135-36.

The

drafters’ final HD 67 remained 443 people short of its
144

equal-population

target

(but

within

the

-1.00 %

allowable deviation), but just three black people above
an

exact

match

to

its

racial

target.

District

Statistics Report, Def. Ex. 403 (doc. no. 30-36) at 6.
That

uncanny

match

provides

strong

circumstantial

evidence that race predominated in the drafters’ exact
placement of the Perry County boundary of HD 67.
The

majority

criticizes

my

reliance

here

on

circumstantial evidence that the State met its racial
target,

see

misreads

the

ante,

at

Supreme

285-86;

however,

Court’s

the

majority

instruction

that

a

statewide policy of racial targets “provides evidence”
that race motivated the drawing of a district’s lines,
Ala. Legislative Black Caucus, 135 S. Ct. at 1267, as a
prohibition on finding racial predominance where there
is direct evidence that the State set a racial target
and

circumstantial

precisely

in

a

evidence

particular

that

it

district.

met

the
As

target
I

have

explained, where the State sets a high racial target
145

(here,

a

69.14 %

black

population),

applies

it

with

strict constraints (there must not be too many black
people above the target, nor too few black people below
the target), and does so as part of a rigorous intent
to reach as many majority-black districts as possible
(this is one of the 16 districts for which the drafters
hit

their

racial

target

within

one

percent),

that

qualifies as strong evidence of racial predominance.
Nevertheless, I agree with the majority that race did
not predominate in 12 districts in large part because
this circumstantial evidence does not apply in those
districts.
I

agree

with

the

majority

that

race-neutral

criteria explain some of HD 67’s boundaries, but not so
much to negate the conclusion that race predominated
over traditional districting criteria in the district
as a whole.
to

use

The State had valid, race-neutral reasons

Perry

contiguous

County

as

majority-white

opposed
county,
146

to

a
as

portion
some

of

of

a

the

plaintiffs’
could

alternative

conjoin

two

plans

Black

proposed,

Belt

counties,

so

that

a

it

coherent

community of interest, into a single district.22
Nonetheless,
unexplainable

several

on

line-drawing

race-neutral

decisions

grounds.

Maps

are

at

the

precinct level along the border with HD 72 demonstrate
that the State could have made boundary choices that
would

have

resulted

Precinct

Map,

Precinct

Map,

Similarly,
drawn

with

the

in

APSX

245

APSX247
new

several

smoother

lines.

(National

(UCH

uneven

majority-black populations.

Guard

Airport

territory

from

See,

Armory

Perry

tentacles

that

e.g.,

Armory);
split).

County
swept

was
in

Map, ADC Suppl. Ex. 17C.

The State could have drawn an equally compact district
with more or less of Perry County, but it instead drew

22. The
analysis
might
be
different
if
the
plaintiffs had a § 2 claim based on packing too many
black residents into HD 67, but such a claim is not
currently before the court.
147

the line to match its racial target exactly.

This

satisfies the racial-predominance standard.

c.

HD 69 (Autauga County, Lowndes County, Montgomery
County, and Wilcox County)
Once again, I find that race predominated primarily

based

on

evidence

a
of

“negligible”

disagreement
racial

suspicious,

targets.

increase

population--from

with

of

64.16 %

apparently

the
To

the
to

the

the

about

majority,

percentage
64.21 %

because

majority

of

black

black--is

drafters

the

not

did

not

place a noticeably higher percentage of black people
within

the

Percentages

district.
(doc.

no.

Comparison
263-2)

at

2.

of
But

Minority
the

State

unquestionably used race to place people “within” the
district according to a target, and that supports the
plaintiffs’ showing of racial predominance.
515

U.S.

evidence

at
of

916.
hitting

As
a

I

previously

racial

148

target

Miller,

observed,
is

this

particularly

convincing

not

district,

but

only

because

because

challenged districts.

it

it

happened

occurred

in

in

21

this

of

the

This obvious pattern provides

clear evidence that race predominated.
In

HD

69,

under-population

although
to

the

remedy

State

(7,949

had

substantial

people),

it

swept

with a much broader brush than necessary, moving in and
out

24,373

people--more

population.

than

half

of

the

district’s

District Statistics Report, Def. Ex. 406

(doc. no. 30-37) at 6; House Districts Pop. Changes
from 2010 to 2012, ADC Supp. Ex. 4.

Most notably, the

State’s shuffling removed heavily white rural precincts
and added majority-black urban districts.

The State

removed several Autauga County precincts, even though
this county was already split, and added portions of
heavily-black Montgomery County.
Autauga

County’s

Billingsley

The drafters removed

Government

Center

and

White City Fire Station precincts from HD 69, a total
of

2,161

people

that

were
149

only

14.48 %

black,

and

placed them in majority-white HD 42, which was already
6.19 %

over-populated.

ADC

Ex.

W,

C-41

(doc.

no.

140-2) at 84-85; 2001 House District Precinct Splits,
Def. Ex. 413, at 43; District Statistics Report, Def.
Ex.

406

(doc.

no.

30-37)

at

4.

To

fill

HD

69’s

population gap, the drafters added 15,190 people from
urban Montgomery County, 60.45 % of whom were black, to
this

otherwise

demonstrates

rural

that

district.

the

State

Direct

merely

evidence

assumed

that

re-population of a majority-black district required the
addition
black.
to

of

new

that

was

also

majority

Hinaman testified that “it would have been hard

[repopulate

County]

population

HD

without

69

without

eliminating

going

another

into

Montgomery

black

district,”

Tr. Vol. III (doc. no. 217) at 160:4-5, but then said
he

did

not

population
district.

know

from

what

other

prevented
counties

Id. at 161:4-6.

150

to

him

from

re-populate

using
the

Nor

could

the

State

demonstrate

that

the

ADC

plaintiffs’ alternative, which would have repopulated
HD

69

with

rural

population

from

the

less

heavily

majority-black Butler County, was unworkable.

Tr. Vol.

III

(Hinaman

(doc.

no.

217)

at

160:12-25 - 161:1-6

stating “[t]here may be no impediment to [using Butler
County], but I don’t know that--I did not do--you know,
I don’t know if those numbers work out or not.”).
State

suggests

that

it

needed

to

use

The

Montgomery

County’s heavily-black population to re-populate HD 69
or else it risked losing a majority-black district, but
in

contiguous

HD

90,

Butler

County’s

heavily-black

population was drawn into majority-white HD 90.
State’s

generalized

assertion

that

it

had

The

limited

options in its pursuit of population for HD 69 because
of

rural

under-population

throughout

the

Black

Belt

districts carries little weight when it cannot explain
its failure to use specifically proposed alternatives.

151

The drafters’ extension of HD 69 into Montgomery
County also relied on a land bridge accomplished with
precinct splits that even the majority acknowledges is
“suspicious.”

Ante at 320.

The Snowdoun Womens Club

precinct splits HD 69 and majority-white HD 75.
Precinct

Map,

APSX

239.

If

one

were

to

See

look

at

precinct-specific demographics alone, the split seems
race-neutral: it resulted in 51 whites and three blacks
in majority-black HD 69, no whites and three blacks in
majority-black HD 76, and 202 blacks and 493 whites in
majority-white

HD

Splits,

Ex.

Def.

75.
405,

2012
at

House
145,

District
158,

Precinct

160.

More

consequentially, the split precinct map shows that the
split--along

with

a

further

Fitzpatrick

Elementary

split

School

in

the

contiguous

precinct--allowed

the

drafters to append a highly-irregular land bridge to
the easternmost end of HD 69, which facilitated the
inclusion of significant black census blocks from the
urban Peter Crump School precinct.
152

Precinct Map, APSX

239.

By doing so, the drafters were able to add an

additional 1,701 people to HD 69, nearly all (95.47 %)
of whom were black.
at 146.

ADC Ex. W, C-41 (doc. no. 140-2)

This serves as “quite compelling” evidence

that the borders of HD 69 are “unexplainable other than
by

race.”

Miller,

515

U.S.

at

917

(holding

that

“drawing of narrow land bridges to incorporate within
the

district

outlying

appendages

...

considered

in

conjunction with its racial and population densities”
provides evidence of racial gerrymandering).23

23. Although the majority suggests the large hook
extending into Montgomery County, which encompassed
this land bridge, was required to avoid the HD 78
incumbent’s Montgomery residence, it cannot explain the
drafters’ need to add a small but concentrated pocket
of black people from Montgomery County to HD 69. Only
race can do that.
The additional 1,701 mostly black
people gained from the Crump precinct is very close to
the 2,161 mostly white people the State extracted from
the Autauga County precincts.
In other words, if the
State did not unexplainably remove predominantly-white
population from HD 69, it would not have needed to use
a suspicious land bridge into Montgomery County at all.
153

Precinct splits used to build land bridge to scoop
majority-black census blocks from the Peter Crump School
precinct into HD 69. Precinct Map, APSX 239.

Because

the

drafters

met

a

racial

target

while

disregarding race-neutral criteria, I find that race
predominated in drawing HD 69.

154

iii. HD 83 (East Black Belt: Lee and Russell Counties)
Race predominated in the drawing of HD 83 because
the State shifted a significant number of voters in and
out

of

the

incorporate

district,
the

split

majority

vast

used

of

precincts
the

to

district’s

residents and exclude portions of precincts with high
percentages
target.

of

white

population,

and

met

its

racial

With a 56.92 % black target, the State drew a

district 57.52 % black (+0.60 %), just 277 black people
short of an exact match.

To accomplish that, the State

moved 18,466 people in and out of the district, even
though the district was only under-populated by 4,482
people.

House

Districts

Pop.

Changes

from

2010

to

2012, ADC Supp. Ex. 4.
The majority acknowledges that two precinct splits
appear “suspicious,” but disregards them because they
“do not account for the assignment of a significant
number

of

people.”

Ante,

at

396.

The

majority

assesses the affected population as “less than half of
155

a percent of the total population of the district,” but
it counted only black people within one of the splits,
the Ladonia Fire Department precinct, see ante, at 398.
Because

the

precinct

splits

also

facilitated

the

placement of a significant white population “without”
HD 83, that population must be taken into account as
well.

Miller, 515 U.S. at 916.

Specifically, the

Ladonia Fire Department precinct placed an 85.9 % black
population
population

into
into

HD

83

but

only

majority-white

HD

a

80,

12.5 %
while

black

the

Old

Salem School precinct added a 42.3 % black population
to

HD

83

but

majority-white
Splits,

Def.

only
HD

Ex.

an

38.
405,

8.9 %
2012

at

black

House

78,

166,

population

District
172.

to

Precinct
The

high

proportion of black population added to HD 83 appears
particularly
previously
districts.

suspicious

been

wholly

because

both

encompassed

by

precincts

had

majority-white

2001 House District Precinct Splits, Def.

Ex. 413, at 24, 49.

Combined, the two precinct splits
156

allowed

the

State

to

place

an

additional

204

black

people into majority-black HD 83 while retaining 7,541
white people in majority-white districts, equivalent to
16 % of HD 83’s total population.

2012 House District

Precinct

at

Splits,

Def.

Ex.

405,

172-73.

That

population rises to the level of a “significant number
of voters” placed without the district on account of
race.

See Miller, 515 U.S. at 916.

Indeed, another

three-judge panel concluded that 0.58 % of a district
qualified
sufficient

as

a
to

“significant
establish

number
racial

of

voters”

predominance.

Covington, 316 F.R.D. at 149 n.28 (three-judge court).
Similarly, the split of Opelika B precinct allowed
the

State

to

place

a

large,

overwhelmingly

black

population in HD 83 and a large, overwhelmingly white
population

in

majority-white

HDs

38

and

79.

The

drafters placed 18,201 people into HD 83, 58.81 % of
whom were black, and 9,598 people into majority-white
districts, only 10.58 % of whom were black.
157

2012 House

District Precinct Splits, Def. Ex. 405, at 78, 165,
172.
into

The
HD

placement
83

of

accounts

majority-black
for

the

northwestern limb of the district.

odd

census
shape

blocks
of

the

Precinct Maps, APSX

140 & ADC Supp. Ex. 27F.

Opelika B precinct split between majority-black HDs 82 and 83
and majority-white HDs 38 and 79. Census blocks with a
majority-black population are shaded in green. Precinct Map,
APSX 140 (excerpt).

158

The

State

pattern

in

showing

suggests

that

population

the

Opelika

a

was

that

large

B

an

inconsistent

precinct

proportion

allocated

split

of

according

the

to

racial

negates

a

precinct’s

race,

but

the

supposed inconsistencies are in fact consistent with
the drafters’ statewide approach to racial targets.

In

contrast to the heavily black population added to HD
83, the drafters placed a largely white portion of the
precinct into majority-black HD 82 (2,140 people total,
only 19.44 % of whom were black).

2012 House District

Precinct Splits, Def. Ex. 405, at 171.

But extending

HD 82 to the majority-black census blocks of that part
of the precinct--not contiguous to the majority-black
census blocks of the precinct included in HD 83--would
have

placed

population

HD

82

target.

well

over

Id.;

the

Precinct

+/Map,

1 %
APSX

ideal
140.

Unlike many of the other majority-black districts, the
drafters had already exceeded the ideal population of
159

HD 82 with a deviation 0.74 % above ideal.

District

Statistics Report, Def. Ex. 403 (doc. no. 30-36) at 7.
A

racial-predominance

showing

that

finding

the

does

drafters

not

require

utilized

a

racial

considerations to the maximum extent possible; it only
requires a showing that race predominated over other,
race-neutral criteria.24
In

addition

to

the

three

already

mentioned

precincts, the drafters split eight other precincts in
HD 83.

In all, a substantial 75.7 % of the district’s

population

resides

in

split

precincts.

2012

District Precinct Splits, Def. Ex. 405, at 172-73.
district

also

shares

its

two

counties

with

House
The

numerous

24. Further, because the predominance inquiry must
focus on the drafters’ intentions when drawing district
lines, I place little weight, unlike the majority, on
the somewhat similar district boundary reflected in the
ADC’s plan. ADC Alternative Plan Map (doc. no. 287-18)
at 9.
The record provides no indication that the
alternative plan, which reflects some variation from
the State plan, had any effect on the racial split in
the heavily populated Opelika B Voting Precinct.
160

other

districts,

ignoring

the

guideline

to

keep

counties whole; it shares parts of both Lee and Russell
Counties with three other districts.
The

State

contends

that

HD

83

was

drawn

in

a

race-neutral manner because it “preserves the core of
the former district” and “is compact.”
(doc.

no.

envision

at

this

comprising
various

263)

five

153.

While

odd-shaped
different

irregular

it

Def. Remand Br.
is

district,
‘legs’

points,

as

that

compact,

difficult

to

essentially
jut

out

the

at

State

accurately notes that the shape, driven by the need to
join the population centers of Opelika and Phenix City,
does not vary significantly from its 2001 lines.

With

that said, the plaintiffs have established that where
the drafters needed to add population, they did so in a
race-conscious

manner,

selectively

extending

the

boundaries of the district to include majority-black
census blocks.

For example, in a north-central limb,

the drafters extended the length of the limb further
161

north

into

Lee

County

by

drawing

boundaries

closely

tailored to several majority-black census blocks.
Precinct Maps, ADC Supp. Ex. 27C & 27D.

HD 83.

Map, Def. Ex. 479 (excerpt).

New north-central limb of HD 83 reflecting addition of
heavily-black census blocks. Map, ADC Supp. Ex. 27C.

162

See

For all of these reasons, I must conclude that race
predominated in the design of HD 83.

iv.

HD 97 (Mobile County)

The drafters hit their racial target on the head in
Mobile County’s HD 97, retaining the previous 60.66 %
black

population

Percentages

(doc.

exactly.

Comparison

no.

at

263-2)

2.

of

Minority

Tellingly,

the

State accomplished this feat despite adding a net total
of 9,665 people, addressing a district that had been
22.22 % under-populated.

District Statistics Report,

Def. Ex. 403 (doc. no. 30-36) at 8; District Statistics
Report, Def. Ex. 406 (doc. no. 30-37) at 8.

The State

offers no explanation for achieving this exact racial
match

using

race-neutral

methods,

and

the

majority

apparently does not take this precision into account.25

25. The State argued that “all [majority-black
Mobile County House districts] have a lesser percentage
of black population than Hinaman’s alleged target.”
(continued...)
163

The exact racial match provides strong circumstantial
evidence that the drafters pursued the statewide policy
in HD 97.
The plaintiffs have demonstrated, and the State has
not rebutted, that race, and not an equal-population
objective, drove the drafters to meet HD 97’s racial
target.

For

example,

under-populated
State’s

by

allowable

the

0.99 %,

redrawn
just

HD

97

barely

minus-one-percent

remained

meeting

total

the

population

deviation.

District Statistics Report, Def. Ex. 403

(doc.

30-36)

no.

at

8.

Neighboring

HD

96,

a

majority-white district, was over-populated by 0.99 %,
just

barely

total

meeting

population

the

allowable

deviation.

Id.

plus-one-percent
Nonetheless,

the

northernmost tip of HD 97--referred to by the majority
as

the

“bishop’s

mitre”--was

drawn

in

a

highly

irregular shape through a racially divided split of the
Def. Remand Br. (doc. no. 263) at 159.
course, incorrect as to HD 97.
164

This is, of

Saraland Civic Center Precinct, avoiding majority-white
census blocks that were instead drawn into HD 96.

Had

the State prioritized compactness, it could have added
additional majority-white census blocks from HD 96 into
HD 97 to smooth out the district’s shape and bring both
districts closer to the ideal population target.
Precinct Map, APSX 197.

See

Of course, had the State added

additional majority-white census blocks to HD 97, it
would

not

have

hit

the

racial

target.

The

State

offered no explanation for its apparent prioritization
of

a

racial

target

above

regularly-shaped

lines and its ideal population target.

district

Instead, it

noted only that the Saraland precinct split added more
whites than blacks to the district.

Def. Remand Br.

(doc. no. 263) at 160-61.

But where the resulting

district

exact

has

achieved

an

racial

match,

a

suspicious precinct split provides evidence of racial
predominance

even

if

it

allocated

blacks to a majority-black district.
165

more

whites

than

Saraland Civic Center precinct split.

Map, APSX 197.

The same principle holds true for the district as a
whole.

The State’s unsplitting exercise demonstrates

that, had it not included a single precinct split in HD
97, its majority-black population would have increased
to 64.8 % of the total population.

Def. Precinct Split

Analysis (doc. no. 263-3) at 28.

Given the testimony

of the principal architect for the House districts that
he had not “been advised that if you go over a certain
166

[percentage

of

minority

population]”

it

would

be

a

problem, see McClendon Dep. (doc. no. 125-4) 106:10-18,
the use of precinct splits to reduce the percentage to
a result identical to the racial target strengthens the
conclusion
districting

that

race

predominated

principles,

over

including

traditional

keeping

precincts

whole.
Because

the

plaintiffs

demonstrated

that

the

drafters applied a racial target to the drawing of HD
97 and disregarded race-neutral criteria to do so, I
conclude that race predominated.

C.

Strict Scrutiny

As I have concluded that race predominated over
traditional districting criteria when the State drafted
ten additional districts, I must also determine whether
the districts would survive strict scrutiny.
my

racial-predominance

analysis

determined

Because
that

the

drafters applied a statewide policy of reaching racial
167

targets for each of the ten identified districts, I
also conclude, for the reasons explained above, that
the State did not narrowly tailor its use of race in
these districts.

See supra at 39-50.

Moreover, the

State has not submitted evidence or arguments specific
to

the

burden

identified
of

tailored.

districts

showing

that

sufficient

its

approach

to

carry

was

its

narrowly

Accordingly, I conclude that, although the

State had a compelling interest in complying with § 5
of the Voting Rights Act, its approach to SD 24 and HDs
52, 55, 56, 57, 60, 67, 69, 83, and 97 was not narrowly
tailored to meet that interest and therefore could not
survive strict scrutiny.

III. Twelve Remaining Districts
In

addition

unconstitutional
and

the

to
racial

additional

plaintiffs

have

12

the

12

districts

gerrymanders
I

sought

deem
to
168

by

the

deemed
majority

unconstitutional,
establish

that

the
race

predominated in the State’s drawing of an additional 12
majority-black

districts.

districts,

I

agree

plaintiffs

have

demonstrate

As

with

not

to

the

these

remaining

12

majority

that

the

their

burden

to

satisfied

district-specific

proof

of

racial

predominance in the remaining districts: SDs 18, 19,
and 33 and HDs 19, 58, 59, 72, 76, 78, 84, 98, and 103.

IV. Conclusion
For the above reasons, I concur with the majority
that 12 of the districts (Senate Districts 20, 26, and
28 and House Districts 32, 53, 54, 70, 71, 77, 82, 85,
and 99) do not pass constitutional muster and that 12
districts (Senate Districts 18, 19, and 33 and House
Districts 19, 58, 59, 72, 76, 78, 84, 98, and 103) do
pass constitutional muster.
I

respectfully

conclusion

that

an

dissent

from

additional

12

169

the

majority’s

districts

(Senate

Districts 23 and 24 and House Districts 52, 55, 56, 57,
60, 67, 68, 69, 83, and 97) are constitutional.
DONE, this the 20th day of January, 2017.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE