Case 2:21-cv-01531-AMM Document 274 Filed 08/22/25 Page 1 of 261 FILED

2025 Aug-22 AM 10:43

U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

ALABAMA STATE )
CONFERENCE OF THE NAACP, )
et al., )
)
Plaintiffs, )
)
v. ) Case No.: 2:21-cv-1531-AMM
)
WES ALLEN, in his official )
capacity as Alabama Secretary of )
State, )
)
Defendant. )

INJUNCTION AND ORDER

FINDINGS OF FACT AND CONCLUSIONS OF LAW

In this redistricting case, the plaintiffs allege that Alabama’s districting plan

for the Alabama Senate dilutes the votes of Black Alabamians in the Huntsville and

Montgomery areas in violation of Section Two of the Voting Rights Act of 1965, 52

U.S.C. § 10301 (“Section Two”). This case is one of four cases currently pending in

the Northern District of Alabama that allege that Alabama’s electoral maps dilute

the votes of Black Alabamians in violation of Section Two: Singleton v. Allen, No.

2:21-cv-1291-AMM, Milligan v. Allen, No. 2:21-cv-1530-AMM, and Caster v.

Allen, No. 2:21-cv-1536-AMM, challenge Alabama’s congressional districting map.

Final judgment in those cases recently entered after a bench trial; it held that

Alabama’s congressional districting plan violated both Section Two and the
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Fourteenth Amendment to the United State Constitution. Those cases are now on a

third appeal to the Supreme Court of the United States, and this one is ripe for

decision.

These plaintiffs request an injunction barring Alabama Secretary of State Wes

Allen from conducting elections for the 35-member Senate according to the plan the

Alabama Legislature enacted in 2021 (“the Plan” or “the Enacted Plan”). That Plan

has eight majority-Black districts. The districting plan for the Alabama Senate has

included eight majority-Black districts since the 1990 census cycle. See Montiel v.

Davis, 215 F. Supp. 2d 1279, 1281–82 (S.D. Ala. 2002).

Currently, all seven Black Senators were elected from majority-Black

districts, and every Black Representative in the Alabama House except one was

elected from a majority-Black district. Doc. 230 ¶ 117. There are no Black statewide

elected officials in Alabama, Doc. 230 ¶ 93, and “[o]nly one Black person has ever

been elected to statewide office in a contested election in Alabama[,]” and that

person was elected after first being appointed, Doc. 230 ¶ 94.

Because the plaintiffs did not seek preliminary injunctive relief, Alabama

Senators serve four-year terms, and Alabama law prohibits mid-decade redistricting

for state legislative seats, the Secretary administered the 2022 Senate elections

according to the Plan, and the plaintiffs seek relief for the 2026 and 2030 elections.

See Ala. Const. art. IV, § 46, art. IX, § 200.

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The parties have developed an extensive record. The Court has the benefit of

an eight-day trial, live testimony from twenty witnesses (including ten experts),

designated deposition testimony from three lay witnesses, reports and rebuttal

reports from every expert, joint stipulations of fact that span twenty-seven pages,

proposed findings of fact and conclusions of law that span more than 400 pages, and

able argument by the forty-eight lawyers who have appeared in the litigation.

Based on the findings of fact and conclusions of law explained below,

including the Court’s assessments of the credibility of expert witnesses, the Court

concludes that the plaintiffs have failed to establish a Section Two violation in the

Huntsville area, and they have established a Section Two violation in the

Montgomery area.

The record about the plaintiffs’ Huntsville-area claim does not satisfy the

applicable legal test for Section Two because it does not establish that as a group,

Black voters are sufficiently numerous and geographically compact there to

constitute a voting-age majority in an additional reasonably configured district. The

plaintiffs offer only one Huntsville-area illustrative district in which Black voters

comprise a voting-age majority, and the shape of that district, together with its

compactness scores and its failure to serve traditional districting principles, foreclose

a finding that it is reasonably configured.

On the other hand, the record about the plaintiffs’ Montgomery-area claim

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satisfies the applicable legal test for Section Two relief. The parties agree that Black

voters comprise a voting-age majority in plaintiffs’ Montgomery-area illustrative

district. The shape of that district, together with its compactness scores and its

adherence to county lines and other traditional districting principles, support a

finding that it is reasonably configured. Further, the parties agree (as they must) that

patterns of racially polarized voting are apparent in Alabama elections.

The Secretary nevertheless resists relief in the Montgomery area primarily on

two grounds, and the Court rejects both arguments. There is no evidence (not even

the Secretary’s own expert witness) to support the Secretary’s contention that

considerations of race predominated in the plaintiffs’ map-drawing process for their

Montgomery-area illustrative district. Indeed, all the evidence probative of this issue

establishes that race did not predominate in that process. Likewise, the evidence does

not support the Secretary’s contention that patterns of racially polarized voting are

attributable only to voters’ political party affiliations, divorced from considerations

of race.

For these reasons, and because the evidence establishes that the totality of the

circumstances supports Section Two relief, the Court finds a Section Two violation

in the Montgomery area and ENJOINS Secretary Allen and his successors in office

from conducting any Senate elections according to the Plan.

Under the statutory framework, Supreme Court precedent, and Eleventh

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Circuit precedent, the appropriate remedy is a redistricting plan that includes either

an additional majority-Black Senate district in the Montgomery area, or an additional

district there in which Black voters otherwise have an opportunity to elect a Senator

of their choice. See, e.g., Bartlett v. Strickland, 556 U.S. 1, 24 (2009). Supreme Court

precedent dictates that the Legislature should have the first opportunity to draw that

plan. See, e.g., North Carolina v. Covington, 585 U.S. 969, 979 (2018); White v.

Weiser, 412 U.S. 783, 794–95 (1973). The Legislature enjoys broad discretion

(broader than the Court’s) and may consider a wide range of remedial plans.

As the Legislature considers such plans, it should be mindful of the practical

reality, based on the ample evidence of intensely racially polarized voting adduced

during the trial, that any remedial plan will need to include an additional district in

the Montgomery area in which Black voters either comprise a voting-age majority

or something quite close to it.

For the reasons set forth below, the Secretary’s motion for judgment as a

matter of law is DENIED. To facilitate timely remedial proceedings, a status

conference is SET for AUGUST 28, 2025, at 10:00 AM in the Third Floor

Courtroom, Robert S. Vance Federal Building and United States Courthouse, 1800

5th Avenue North Birmingham, Alabama 35203. The parties are ORDERED to file

a joint status report with the parties’ proposals for moving the case forward at or

before noon Central Daylight Time on AUGUST 27, 2025.

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TABLE OF CONTENTS

I. BACKGROUND .................................................................................................4
A. Procedural Posture ............................................................................................4
B. Legal Background.............................................................................................5
C. Factual Background ........................................................................................13
D. Claims and Defenses ......................................................................................19
1. Huntsville – Senate Districts 2, 7, and 8 .....................................................19
2. Montgomery – Senate Districts 25 and 26 ..................................................20
II. STANDARD OF REVIEW ...............................................................................21
III. APPLICABLE LAW ......................................................................................21
IV. ANALYSIS ....................................................................................................31
A. Plaintiffs’ Arguments .....................................................................................31
1. Gingles I – Numerosity and Reasonable Compactness ..............................31
a. Mr. Anthony Fairfax ................................................................................35
i. Montgomery – Senate Districts 25 and 26 ..........................................41
a. Numerosity ...........................................................................................43
b. Reasonable Configuration ....................................................................43
ii. Huntsville – Senate Districts 2, 7, and 8 .............................................43
a. Numerosity ...........................................................................................46
b. Reasonable Configuration ....................................................................53
b. Dr. Kassra Oskooii .....................................................................................55
2. Gingles II and III – Racially Polarized Voting (Dr. Liu) ............................61
3. The Senate Factors and Proportionality ......................................................70
a. Stipulations ...............................................................................................72
a. The Plaintiffs’ Expert Witness Testimony ...............................................73
i. Dr. Joseph Bagley ....................................................................................73
ii. Dr. Traci Burch .......................................................................................82
b. The Plaintiffs’ Lay Witness Testimony At Trial .....................................87
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c. Designated Deposition Testimony ...........................................................92

B. Secretary Allen’s Arguments .........................................................................96
1. Gingles I – Numerosity and Reasonable Compactness ..............................96
a. Montgomery – Senate Districts 25 and 26 ...............................................98
i. Numerosity ..........................................................................................98
ii. Reasonable Configuration ...................................................................98
b. Huntsville – Senate Districts 2, 7, and 8 ................................................100
i. Numerosity ........................................................................................100
ii. Reasonable Configuration .................................................................105
2. Gingles II and III – Racially Polarized Voting .........................................112
3. The Senate Factors ....................................................................................114
a. The Secretary’s Expert Witness Testimony ...........................................114
i. Dr. Christopher Bonneau...................................................................114
ii. Dr. Wilfred Reilly..............................................................................119
iii. Dr. M.V. Hood, III ............................................................................125
iv. Dr. Adam Carrington.........................................................................129
b. The Secretary’s Lay Witness Testimony ...............................................135
4. Legal Challenges to Section Two..............................................................146
V. FINDINGS OF FACT AND CONCLUSIONS OF LAW ..............................146
A. Gingles I – Numerosity ................................................................................146
1. Illustrative Plans 1 and 2A – How to Measure the Black Population .......146
2. Illustrative Plan 3.......................................................................................151
B. Gingles I – Reasonable Configuration .........................................................151
1. Expert Credibility Determinations ............................................................152
2. Huntsville ..................................................................................................154
a. Visual Assessment and Traditional Districting Principles.....................154
b. Geographic Compactness Scores ...........................................................162
3. Montgomery ..............................................................................................165
a. Visual Assessment..................................................................................165
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b. Geographic Compactness Scores ...........................................................165

c. Traditional Districting Principles ...........................................................166
C. Gingles II and III – Racially Polarized Voting ............................................171
1. Expert Credibility Determinations ............................................................172
2. Patterns of Racially Polarized Voting .......................................................173
3. Arguments About Legally Significant Racially Polarized Voting and Dr.
Trende’s Effectiveness Analysis .....................................................................175
4. Arguments About Party Politics ................................................................177
D. The Senate Factors........................................................................................179
1. Credibility Determinations ........................................................................179
2. Senate Factor 2 ..........................................................................................187
3. Senate Factor 7 ..........................................................................................197
4. Senate Factors 1, 3, and 5 ..........................................................................199
5. Senate Factor 6 ..........................................................................................212
6. Senate Factor 8 ..........................................................................................214
7. Senate Factor 9 and 4 ................................................................................215
E. Section Two is privately enforceable. ..........................................................216
1. Text of Section Two ..................................................................................218
2. Section Two Precedents ............................................................................233
a. Relevant Precedent .................................................................................233
b. Congressional Ratification .....................................................................239
c. Statutory Stare Decisis ...........................................................................241
F. The plaintiffs have standing. ........................................................................243
VI. REMEDY .....................................................................................................246
VII. EVIDENTIARY RULINGS.........................................................................248
VIII. THE SECRETARY’S MOTION FOR JUDGMENT AS A MATTER OF
LAW.......................................................................................................................248
APPENDIX A – COMMITTEE GUIDELINES ...................................................250

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I. BACKGROUND

A. Procedural Posture

On November 4, 2021, Governor Kay Ivey signed into law Senate Bill 1,

which provided a redistricting plan for Alabama Senate elections based on data from

the 2020 census. Doc. 206-1.1 On November 16, 2021, a group of plaintiffs sued the

former Secretary (John Merrill)2 and the co-chairs of the Legislature’s Permanent

Legislative Committee on Reapportionment (“the Committee”) (Representative

Chris Pringle, and Senator Jim McLendon, collectively “the Legislators”), alleging

that the Plan violated both Section Two and the Fourteenth Amendment to the

United States Constitution. Doc. 1 at 1 & ¶ 5. The Chief Judge of the United States

Court of Appeals for the Eleventh Circuit convened a three-judge court. Doc. 5.

On December 6, 2023, the plaintiffs filed the operative complaint against

Secretary Allen, Representative Pringle, and Senator Steve Livingston.3 Doc. 126.

In that complaint, the plaintiffs asserted a Section Two claim but no constitutional

claims. Id. ¶¶ 170–76. The three-judge court thus dissolved itself, and the case

1
Page number pincites are to the CM/ECF page number that appears in the top right-
hand corner of each page. Citations to the trial transcript are identified by page
number. That transcript may be found at Docs. 254–55, 257–60, 264–65.
2
On January 16, 2023, Wes Allen became the Secretary. Pursuant to Federal Rule
of Civil Procedure 25(d), Secretary Allen was substituted for former Secretary
Merrill as defendant in this case. Doc. 76.
3
Senator Livingston replaced Senator McClendon as the Senate co-chair of the
Committee. See Doc. 230 ¶¶ 12, 15.
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returned to the undersigned sitting alone as the originally assigned judge. Doc. 127.

Before trial, the Court dismissed the claim against Senator Livingston on

legislative immunity grounds, Doc. 143, the Secretary moved for partial summary

judgment, Doc. 166, and Representative Pringle moved for summary judgment, Doc.

168. The Court dismissed the claim against Representative Pringle on the plaintiffs’

motion under Federal Rule of Civil Procedure 41(a)(2). Docs. 169, 170. The Court

denied the Secretary’s motion for partial summary judgment and denied as moot

Representative Pringle’s motion for summary judgment. Doc. 191.

The parties then stipulated the dismissal of plaintiffs Khadidah Stone and

Laquisha Chandler. Doc. 204. The remaining plaintiffs are the Alabama State

Conference of the NAACP (“the State Conference”) and Greater Birmingham

Ministries—two organizational plaintiffs suing on behalf of their members—and

Evan Milligan, a Black registered voter residing in Montgomery. Doc. 230 at 1–3.

Trial commenced on November 12, 2024, and ended on November 21, 2024.

After trial, the parties submitted proposed findings of fact and conclusions of law.

Docs. 250, 251. The Secretary moved for judgment as a matter of law, Doc. 247, and

that motion is fully briefed, Docs. 252, 261.

B. Legal Background

The Alabama Constitution requires the Legislature to divide the state’s

legislative seats into districts after each decennial census. Ala. Const. art. IX, §§

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199–200. Redistricting “is primarily the duty and responsibility of the State[].” Allen

v. Milligan, 599 U.S. 1, 29 (2023) (quoting Abbott v. Perez, 585 U.S. 579, 588

(2018)). “[F]ederal-court review of districting legislation represents a serious

intrusion on the most vital of local functions,” and when “assessing the sufficiency

of a challenge to a districting plan, a court must be sensitive to the complex interplay

of forces that enter a legislature’s redistricting calculus.” Abbott, 585 U.S. at 603

(quoting Miller v. Johnson, 515 U.S. 900, 915–16 (1995)) (internal quotation marks

omitted).

Redistricting must comply with federal constitutional and statutory

requirements. Bartlett v. Strickland, 556 U.S. 1, 7 (2009); Reynolds v. Sims, 377 U.S.

533, 554–60 (1964); Wesberry v. Sanders, 376 U.S. 1, 6 (1964); see Allen, 599 U.S.

at 17–18, 30–31. As relevant here, “federal law impose[s] complex and delicately

balanced requirements regarding the consideration of race” in redistricting. Abbott,

585 U.S. at 585. On the one hand, the Equal Protection Clause “restrict[s] the use of

race in making districting decisions.” Id. On the other hand, Section Two “often

insists that districts be created precisely because of race.” Id. at 586.

Section Two provides:

(a) No voting qualification or prerequisite to voting or standard,

practice, or procedure shall be imposed or applied by any State or
political subdivision in a manner which results in a denial or abridgment
of the right of any citizen of the United States to vote on account of race
or color, or in contravention of the guarantees set forth in section
10303(f)(2) of this title, as provided in subsection (b).
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(b) A violation of subsection (a) is established if, based on the totality

of circumstances, it is shown that the political processes leading to
nomination or election in the State or political subdivision are not
equally open to participation by members of a class of citizens protected
by subsection (a) in that its members have less opportunity than other
members of the electorate to participate in the political process and to
elect representatives of their choice. The extent to which members of a
protected class have been elected to office in the State or political
subdivision is one circumstance which may be considered: Provided,
That nothing in this section establishes a right to have members of a
protected class elected in numbers equal to their proportion in the
population.

52 U.S.C. § 10301.

“The essence of a [Section Two] claim . . . is that a certain electoral law,

practice, or structure interacts with social and historical conditions to cause an

inequality in the opportunities enjoyed by [B]lack and [W]hite voters.” Allen, 599

U.S. at 17 (quoting Thornburg v. Gingles, 478 U.S. 30, 47 (1986)). That occurs

“when a State’s electoral structure operates in a manner that ‘minimize[s] or

cancel[s] out the[ir] voting strength,’” rendering “an individual . . . disabled from

‘enter[ing] into the political process in a reliable and meaningful manner’ ‘in the

light of past and present reality, political and otherwise.’” Id. at 25 (first quoting

Gingles, 478 U.S. at 47 and then White v. Regester, 412 U.S. 755, 767 (1973))

(alterations in original). “A district is not equally open, in other words, when

minority voters face—unlike their majority peers—bloc voting along racial lines,

arising against the backdrop of substantial racial discrimination within the State, that

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renders a minority vote unequal to a vote by a nonminority voter.” Id.

“[A] plaintiff may allege a [Section Two] violation in a single-member district

if the manipulation of districting lines fragments [cracks] politically cohesive

minority voters among several districts or packs them into one district or a small

number of districts, and thereby dilutes the voting strength of members of the

minority population.” Shaw v. Hunt (“Shaw II”), 517 U.S. 899, 914 (1996).

Intent is not an element of a Section Two violation, and “proof that a contested

electoral practice or mechanism was adopted or maintained with the intent to

discriminate against minority voters[] is not required under Section [Two].” City of

Carrollton Branch of NAACP v. Stallings, 829 F.2d 1547, 1553 (11th Cir. 1987).

A basic history of state legislative redistricting in Alabama is helpful for a

complete understanding of the claims raised in this action. In 1962, a federal district

court struck down Alabama’s state Senate districting plans after the Legislature

failed to redraw the districts following the decennial census for approximately fifty

years. See Sims v. Frink, 208 F. Supp. 431 (M.D. Ala. 1962). The Supreme Court

affirmed. See Reynolds v. Sims, 377 U.S. 533 (1964).

On remand, that district court gave the Legislature the opportunity to draw a

new map. Sims v. Baggett, 247 F. Supp. 96, 99 (M.D. Ala. 1965). Later, that court

concluded that the multi-member Senate districts the Legislature adopted were

constitutional, id. at 107, but found that the House districts “intentionally aggregated

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predominantly [Black] counties with predominantly [W]hite counties for the sole

purpose of preventing the election of [Blacks] to [state] House membership,” id. at

109. The district court ordered the state to use a court-drawn plan for those House

districts until the 1970 census was completed. See id. at 108–09; Sims v. Amos, 336

F. Supp. 924, 928 n.4, 931 (M.D. Ala. 1972). Under that plan, Fred Gray and Thomas

Reed became the first Black members of the Alabama House of Representatives

since Reconstruction.

The Legislature again failed to redistrict itself after the 1970 census, so the

district court drew new single-member Senate and House districts. See Sims, 336 F.

Supp. at 932, 936, 940. Under that plan, Richmond Pearson and U.W. Clemon

became the first Black members of the Alabama Senate since Reconstruction.

Meanwhile, Congress had passed the Voting Rights Act of 1965, which

required (among other things) Alabama to receive preclearance from either the

Attorney General of the United States or a three-judge federal court before changing

its voting procedures. See Shelby Cnty. v. Holder, 570 U.S. 529, 537 (2013).

After the 1980 census, the Legislature passed two state legislative redistricting

plans that did not receive preclearance, and then passed a constitutional plan. Burton

v. Hobbie, 561 F. Supp. 1029, 1032–35 (M.D. Ala. 1983). Circuit Judge Frank M.

Johnson Jr. described the Legislature’s previous failure to enact a plan that complied

with federal court orders and the “invidious discrimination existing in both houses

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of the Legislature.” See id. at 1030–32. He explained that after decades of judicial

intervention, the Legislature, for “the first time in Alabama’s history,” “provided an

apportionment plan that is fair to all the people of Alabama.” Id. at 1030.

After the 1990 census, federal courts again invalidated the Legislature’s

redistricting plan, and new state legislative districting plans were adopted in a state

court consent judgment. See Brooks v. Hobbie, 631 So. 2d 883, 884 (Ala. 1993).

That districting scheme, known as the Reed-Buskey Plan, included eight majority-

Black Senate districts. Montiel v. Davis, 215 F. Supp. 2d 1279, 1281–82 (S.D. Ala.

2002). The United States Supreme Court upheld the Reed-Buskey Plan. See Sinkfield

v. Kelley, 531 U.S. 28, 30–31 (2000). After the 2000 census, the Legislature

redistricted and maintained the eight majority-Black state Senate districts. Montiel,

215 F. Supp. 2d at 1281–82.

After the 2010 census, the Legislature again redistricted. Since 2010, a

supermajority of Republican members have controlled the Legislature. See Doc. 230

¶ 120; see also Doc. 206-19 at 12. Many of the majority-Black districts, including

all eight majority-Black Senate districts, were underpopulated for purposes of the

requirement that districts contain nearly equal numbers of voting-age persons. Ala.

Legis. Black Caucus v. Alabama, 231 F. Supp. 3d 1026, 1035–36 (M.D. Ala. 2017).

A three-judge district court found that the Legislature’s plans did not violate Section

Two and were not racial gerrymanders in violation of the Fourteenth Amendment.

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Ala. Legis. Black Caucus v. Alabama, 989 F. Supp. 2d 1227, 1280–87, (M.D. 2013),

vacated, 575 U.S. 254 (2015). The Supreme Court vacated on the ground that the

district court misapplied the law to the racial gerrymandering claim. Ala. Legis.

Black Caucus v. Alabama, 575 U.S. 254, 279 (2015).

During the pendency of that litigation, the Supreme Court ruled in another

case that the preclearance requirement in Section Five of the Voting Rights Act was

unconstitutional, and Alabama was no longer required to receive preclearance for its

redistricting plans. Shelby Cnty., 570 U.S. at 556–57.

On remand, the district court determined that twelve state legislative districts,

including Senate District 26 in the Montgomery area, were unconstitutional racial

gerrymanders. Ala. Legis. Black Caucus, 231 F. Supp. 3d at 1140, 1348–49. The

Legislature then passed remedial districting plans. See 2017 Ala. Laws Act. No.

2017-347; 2017 Ala. Laws Act. No. 2017-348.

After the 2020 census, lawsuits were filed to challenge both the state

legislative districting map (this action) and the congressional districting map (the

Singleton, Milligan, and Caster actions). After the congressional redistricting plan

(which included only one majority-Black district) was preliminarily enjoined on the

ground that it likely violated Section Two, the Secretary and Legislators appealed,

and the Supreme Court affirmed. See Allen, 599 U.S. 1.

The district court afforded the Legislature an opportunity to enact a new plan

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that contains two majority-Black districts or two districts in which Black voters

otherwise have an opportunity to elect a representative of their choice. See Singleton

v. Allen, 690 F. Supp. 3d 1226, 1238 (N.D. Ala. 2023). But the Legislature again

passed a plan that “include[d] only one majority-Black district” and did not include

an additional Black-opportunity district. See id. The district court preliminarily

enjoined the use of that plan, see id., and the Secretary (but not the Legislators) again

appealed to the Supreme Court and sought a stay, Milligan Docs. 274, 275, 276,

281.4 The district court denied a stay, Milligan Doc. 289 at 5, and the Secretary

sought a stay from the Supreme Court, which summarily denied the request with no

noted dissents, see Allen v. Milligan, 144 S. Ct. 476 (2023) (mem.). The district court

then ordered the Secretary to administer Alabama’s 2024 congressional elections

according to a court-ordered plan. See Singleton v. Allen, No. 2:21-cv-1291-AMM

& No. 2:21-cv-1530-AMM, 2023 WL 6567895 (N.D. Ala. Oct. 5, 2023).

The congressional case proceeded to an eleven-day bench trial (in which the

plaintiffs and the State presented much of the same evidence that was presented in

this case, including ten of the same expert witnesses who opined on overlapping

issues). After trial, the district court again concluded that the plaintiffs established a

Section Two violation. Singleton v. Allen, Case No. 2:21-cv-1291-AMM & Case

4
Citations to documents in the current round of congressional redistricting litigation
in the district court are to the documents in the Milligan action.
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No. 2:21-cv-1530-AMM, 2025 WL 1342947, at *125–71 (N.D. Ala. May 8, 2025).

It also found that the Legislature intentionally discriminated against Black

Alabamians in violation of the Fourteenth Amendment when it deliberately enacted

a districting plan that it admitted did not contain the second opportunity district that

the Supreme Court and the district court said was required. Id. at *194–213.

C. Factual Background

The 2020 cycle for state legislative redistricting began when the Committee—

the body in charge of creating, proposing, and evaluating redistricting plans for the

state, see Ala. Code § 29-2-52—passed redistricting guidelines (“the Legislature’s

redistricting guidelines”). Doc. 230 ¶ 17. The Legislature’s redistricting guidelines

applied to both state and congressional redistricting. See App. A.

The guidelines cover (among other things) how the Committee considered

traditional districting criteria. See id. The guidelines “prioritized population equality,

contiguity, compactness, and avoiding dilution of minority voting strength,” and

“encouraged, as a secondary matter, avoiding incumbent pairings, respecting

communities of interest, minimizing the number of counties in each district, and

preserving cores of existing districts.” Allen, 599 U.S. at 15.

The Legislature’s redistricting guidelines are reproduced in relevant part

below and attached in full to this Order as Appendix A.

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Doc. 190-21.

After the 2020 census data was released in August 2021, the Committee began

developing new Senate districts. Doc. 230 ¶¶ 25–26. The Committee’s expert

cartographer was Randy Hinaman, Doc. 235-2 at 15–16, who has drawn Alabama’s

districting maps for many years, see Allen, 599 U.S. at 15. Mr. Hinaman testified

that he began drawing the 2021 Plan by using the 2017 Senate plan that was enacted

after the Alabama Black Legislative Caucus litigation. Doc. 235-2 at 30. He testified

that he prioritized preserving the cores of the existing districts, id. at 33, and that he

drew the map “race blind,” only reviewing the racial makeup of the districts after

the Plan was completed, id. at 46–47. He testified that when he evaluated the

population of each district, he considered only the voting-age population (“VAP”)

and did not consider the citizen voting-age population (“CVAP”). Id. at 47–48.

“BVAP” refers to the Black share of the voting-age population within a

district. Tr. 358; see id. at 946. The BVAP is derived from decennial census data, id.

at 356, 943–44, and is based on a “full numeration”—a count—of the population,

Doc. 189-7 at 10; see Doc. 206-6 at 6, 15; Doc. 206-14 at 6; Tr. 236–37, 361, 944.

“CVAP” refers to the citizen voting-age population within a district. Tr. 358,

946. Because there is no citizenship question on the decennial census, id. at 356,

946; Doc. 189-7 at 9, CVAP is an estimate derived from monthly surveys of a sample

of the population conducted by the American Community Survey, a subset of the

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Census Bureau, see Tr. 236–37, 360, 946–47; Doc. 206-6 at 6; Doc. 189-7 at 7, 11;

Doc. 206-14 at 6–7. The American Community Surveys are a “rolling survey” of

sample data that reflect estimates, not counts. Tr. 236, 310, 946–47.

The Senate plan Mr. Hinaman prepared passed the Committee, although all

Black members of the Committee voted against it. Doc. 230 ¶¶ 44–45. Governor

Ivey called a Special Legislative Session on redistricting to begin in October 2021.

Id. 230 ¶ 33. The Legislature passed the Plan, and Governor Ivey signed it into law

on November 4, 2021. Id. ¶¶ 47–48. The Plan appears below.

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Doc. 195-19.

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D. Claims and Defenses

The plaintiffs allege that the Plan “denies Black Alabamians an equal

opportunity to participate in the political process and elect candidates of their

choice” by cracking Black voters across Districts 2, 7, and 8 in the Huntsville area

and packing Black voters into District 26 in the Montgomery area. Doc. 126 ¶¶ 2–4.

The Secretary denies that the Plan cracks or packs Black voters and argues

that the totality of the circumstances do not support a finding of vote dilution. Id. at

28, ¶¶ 14, 18–19. He particularly argues that the totality of the circumstances do not

support a finding of race-based vote dilution because vote choice in Alabama is

driven by party, not race. See Tr. 1667.

1. Huntsville – Senate Districts 2, 7, and 8

The plaintiffs allege that the Plan “unnecessarily cracks Black voters in State

Senate Districts 2, 7, and 8 in Huntsville, thereby preserving three districts where

candidates preferred by [W]hite voters reliably win.” Doc. 126 ¶ 4. They assert that

District 7 “split[s] the City of Huntsville and the Black community there into three

parts.” Id. ¶ 84. According to the plaintiffs, District 7 “cuts through Huntsville’s

Black community and splits communities of interest, taking a sharp eastern turn to

capture heavily [W]hite communities rather than additional Black communities in

Huntsville, which instead lie in the adjacent Senate Districts 2 and 8, to the west and

east, respectively.” Id. The plaintiffs provide three illustrative plans (“Illustrative

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Plans 1, 2A, and 3”) that they contend demonstrate that a remedial district

(illustrative District 7) can be drawn in the Huntsville area. Doc. 206-6 at 31; Doc.

206-8 at 25; Doc. 206-10 at 2–3.

The Secretary denies that the Plan cracks Black voters into Districts 2, 7, and

8. Doc. 147 at 1, ¶ 4. He argues that District 7 in two of the plaintiffs’ illustrative

plans (Illustrative Plans 1 and 2A) does not meet the numerosity threshold the law

requires and that Illustrative Plans 1, 2A, and 3 each propose a remedial District 7

that is not reasonably compact and does not comply with traditional districting

criteria. Tr. 1657–60; Doc. 166 at 31–38. He also argues that the illustrative plans

were impermissibly drawn on the basis of race. Tr. 1657–60; Doc. 166 at 31–38.

2. Montgomery – Senate Districts 25 and 26

The plaintiffs allege that that the Plan “unnecessarily packs Black voters in

Montgomery into [Senate] District 26, and surgically extracts communities with

higher percentages of [W]hite [voting-age populations] from the core of

Montgomery into [Senate] District 25.” Doc. 126 ¶ 83. The plaintiffs provide one

illustrative plan for a remedial district (illustrative District 25) in the Montgomery

area. See Doc. 206-6 at 31, 36–37. District 25 remains the same in all three

illustrative plans, see Tr. 266, 272, so the court refers to it as “Proposed District 25.”

They argue that Proposed District 25 is reasonably compact and “includes more of

the city of Montgomery than before while maintaining the district’s tie to the . . .

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Black Belt.” Id. at 1641.

The Secretary denies that Black voters are packed into Senate District 26. Doc.

147 at 1, ¶ 3. He contends that Proposed District 25 is not reasonably compact and

does not comply with traditional districting criteria. See Tr. 1660. He also argues

that it was impermissibly drawn on the basis of race. See id.

II. STANDARD OF REVIEW

“The usual standard of proof in civil litigation is preponderance of the

evidence,” E.M.D. Sales, Inc. v. Carrera, 604 U.S. 45, 47 (2025), and redistricting

cases do not require a higher threshold, see, e.g., Cooper v. Harris, 581 U.S. 285,

319 n.15 (2017). The Court thus considers whether the plaintiffs have proven their

claims by a preponderance of the evidence.

III. APPLICABLE LAW

“For the past forty years, [federal courts] have evaluated claims brought under

[Section Two] using the three-part framework developed in [the Supreme Court]

decision Thornburg v. Gingles.” Allen, 599 U.S. at 17 (citation omitted). “Gingles

has governed . . . Voting Rights Act jurisprudence since it was decided 37 years ago”

and the Supreme Court “ha[s] applied Gingles in one [Section Two] case after

another, to different kinds of electoral systems and to different jurisdictions in States

all over the country.” Id. at 19.

“Congress has never disturbed [the] understanding of [Section Two] as

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Gingles construed it.” Id.; see also id. at 42 (Kavanaugh, J., concurring in part) (“In

the past 37 years, . . . Congress and the President have not disturbed Gingles, even

as they have made other changes to the Voting Rights Act.”).

Gingles requires district courts to conduct a two-step analysis when

considering redistricting challenges under Section Two. In the first step, the Court

must consider whether the plaintiffs have established the three Gingles preconditions

that: (1) as a group, Black voters in Alabama are “sufficiently large and

[geographically] compact” to constitute a majority in an additional “reasonably

configured district”; (2) Black voters are “politically cohesive”; and (3) each

challenged district’s “[W]hite majority votes sufficiently as a bloc to enable it . . . to

defeat the [Black] preferred candidate.” Id. at 18 (majority opinion) (internal

quotation marks and citations omitted).

“Each Gingles precondition serves a different purpose.” Id. “The

‘geographically compact majority’ and ‘minority political cohesion’ showings are

needed to establish that the minority has the potential to elect a representative of its

own choice in some single-member district.” Growe v. Emison, 507 U.S. 25, 40

(1993) (citations omitted). The minority political cohesion showing is needed to

establish “that a representative of its choice would in fact be elected,” and the racially

polarized voting showing “‘establish[es] that the challenged districting thwarts a

distinctive minority vote’ at least plausibly on account of race.’” Allen, 599 U.S. at

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19 (alteration in original) (quoting Growe, 507 U.S. at 40).

“Unless these points are established, there neither has been a wrong nor can

be a remedy.” Growe, 507 U.S. at 40–41. Accordingly, if the plaintiffs fail to

establish any one of these three preconditions, the Court need not consider the other

two. See Voinovich v. Quilter, 507 U.S. 146, 158 (1993).

As to the first Gingles precondition, “a party asserting [Section Two] liability

must show by a preponderance of the evidence that the minority population in the

potential election district is greater than 50 percent.” Bartlett, 556 U.S. at 19–20. As

the Supreme Court has explained, “it is a special wrong when a minority group has

50 percent or more of the voting population and could constitute a compact voting

majority but, despite racially polarized bloc voting, that group is not put into a

district.” Id. at 19.

Citizenship data may be relevant in a numerosity analysis. “[W]here there is

reliable information indicating a significant difference in citizenship rates between

majority and minority populations,” the unit of analysis is “voting age population as

refined by citizenship” data. Negron v. City of Miami Beach, 113 F.3d 1563, 1569

(11th Cir. 1997). “[S]uch a disparity is unlikely except in areas where the population

includes a substantial number of immigrants.” Id. The disparity in citizenship rates

is important—because only citizens can vote, a district with a majority-minority

VAP is “hollow” if the district does not have a majority-minority CVAP. See League

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of United Latin Am. Citizens v. Perry (“LULAC”), 548 U.S. 399, 429 (2006)

(plurality opinion in part); Negron, 113 F.3d at 1568.

Even if a group is sufficiently large, the majority-minority district must also

be reasonably configured. See Allen, 599 U.S. at 18. “A district will be reasonably

configured . . . if it comports with traditional districting criteria, such as being

contiguous and reasonably compact.” Allen, 599 U.S. at 18, 30 (“[Section Two]

never require[s] adoption of districts that violate traditional redistricting principles.”)

(second alteration in original) (internal quotation marks omitted). Because the injury

in a Section Two claim is vote dilution, the compactness analysis “refers to the

compactness of the minority population, not to the compactness of the contested

district.” LULAC, 548 U.S. at 433 (quoting Bush v. Vera, 517 U.S. 952, 997 (1996)

(Kennedy, J., concurring)). “If, because of the dispersion of the minority population,

a reasonably compact majority-minority district cannot be created, [Section Two]

does not require a majority-minority district . . . .” Vera, 517 U.S. at 979.

Compactness “is critical to advancing the ultimate purposes of [Section Two],

ensuring minority groups equal ‘opportunity . . . to participate in the political process

and to elect representatives of their choice.’” LULAC, 548 U.S. at 434 (alteration in

original) (quoting 42 U.S.C. § 1973(b)). A “minority group [that] is spread evenly

throughout” the relevant geographic area (i.e., “substantially integrated throughout”

that area) is not compact enough to “maintain that they would have been able to elect

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representatives of their choice” in a single district. Gingles, 478 U.S. at 50 n.17.

“While no precise rule has emerged governing [Section Two] compactness,

the inquiry should take into account traditional districting principles such as

maintaining communities of interest and traditional boundaries.” LULAC, 548 U.S.

at 433 (internal quotation marks omitted) (quoting Abrams v. Johnson, 521 U.S. 74,

92 (1997)); see also Ala. Legis. Black Caucus, 575 U.S. at 272 (noting that traditional

redistricting principles “includ[e] compactness, contiguity, . . . respect for political

subdivisions or communities defined by actual shared interests, incumbency

protection, and political affiliation”) (internal citation and quotation marks omitted).

“A district that reaches out to grab small and apparently isolated minority

communities is not reasonably compact.” LULAC, 548 U.S. at 433 (internal

quotation marks omitted) (quoting Vera, 517 U.S. at 979). “[B]izarre shaping of” a

district that, for example, “cut[s] across pre-existing precinct lines and other natural

or traditional divisions,” suggests “a level of racial manipulation that exceeds what

[Section Two] could justify.” Vera, 517 U.S. at 980–81.

“When it comes to considering race in the context of districting, [the Supreme

Court] ha[s] made clear that there is a difference ‘between being aware of racial

considerations and being motivated by them.’” Allen, 599 U.S. at 30 (quoting Miller,

515 U.S. at 916). Because the Voting Rights Act in itself “demands consideration of

race,” Abbott, 581 U.S. at 587, map drawers in Section Two cases will “be aware of

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racial demographics,” Allen, 599 U.S. at 30 (internal quotation marks omitted)

(quoting Miller, 515 U.S. at 916). But “such race consciousness does not lead

inevitably to impermissible race discrimination.” Id. (internal quotation marks

omitted) (quoting Shaw v. Reno, 509 U.S. 630, 646 (1993)). “The question whether

additional majority-minority districts can be drawn, after all, involves a

quintessentially race-conscious calculus.” Id. at 31 (internal quotation marks and

emphasis omitted) (quoting Johnson v. De Grandy, 512 U.S. 997, 1020 (1994)).

While race consciousness is permissible, “race may not be the predominant

factor in drawing district lines unless [there is] a compelling reason.” Id. (alteration

in original) (internal quotation marks omitted) (quoting Cooper, 581 U.S. at 291).

“Race predominates in the drawing of district lines . . . when race-neutral

considerations [come] into play only after the race-based decision had been made.”

Id. (second alteration in original) (internal quotation marks omitted) (quoting

Bethune-Hill v. Va. State Bd. of Elections, 580 U.S. 178, 189 (2017)).

“[T]he first Gingles condition requires the possibility of creating more than

the existing number of reasonably compact districts with a sufficiently large

minority population to elect candidates of its choice.” De Grandy, 512 U.S. at 1008.

This requirement “relates to the availability of a remedy,” Nipper v. Smith, 39 F.3d

1494, 1526 (11th Cir. 1994), and the plaintiffs must “demonstrate the existence of a

proper remedy,” Burton v. City of Belle Glade, 178 F.3d 1175, 1199 (11th Cir. 1999)

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(collecting cases).

To determine whether the plaintiffs satisfy this requirement, the Court

compares the Plan with each illustrative plan provided by the plaintiffs. See LULAC,

548 U.S. at 430 (quoting De Grandy, 512 U.S. at 1008) (stating requirement of “a

comparison between a challenger’s proposal and the ‘existing number of reasonably

compact districts’”). Further comparisons are not required; a Section Two “district

that is reasonably compact and regular, taking into account traditional districting

principles,” need not also “defeat [a] rival compact district[]” in a “beauty contest[].”

Vera, 517 U.S. at 977 (internal quotation marks and emphasis omitted).

The second and third Gingles preconditions rise and fall on whether the

plaintiffs establish that voting in the challenged districts is racially polarized. See,

e.g., LULAC, 548 U.S. at 427. As the Supreme Court has explained, “in the absence

of significant [W]hite bloc voting it cannot be said that the ability of minority voters

to elect their chosen representatives is inferior to that of [W]hite voters.” Voinovich,

507 U.S. at 158 (quoting Gingles, 478 U.S. at 49 n.15).

If the plaintiffs establish all three Gingles requirements, the Court then must

proceed to the second step of the Section Two analysis. In this step, the Court

considers whether, “under the ‘totality of circumstances,’ . . . the political process is

not ‘equally open’ to minority voters.” Allen, 599 U.S. at 18 (quoting Gingles, 478

U.S. at 45–46); see Bartlett, 556 U.S. at 11–12. This “inquiry recognizes that

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application of the Gingles factors is ‘peculiarly dependent upon the facts of each

case’” and requires the Court to “conduct ‘an intensely local appraisal’ of the

electoral mechanism at issue, as well as a ‘searching practical evaluation of the past

and present reality.’” Allen, 599 U.S. at 19 (some quotation marks omitted) (quoting

Gingles, 478 U.S. at 79).

“[I]t will be only the very unusual case in which the plaintiffs can establish

the existence of the three Gingles factors but still have failed to establish a violation

of [Section Two] under the totality of circumstances.” Ga. State Conf. of NAACP v.

Fayette Cnty. Bd. of Comm’rs, 775 F.3d 1336, 1342 (11th Cir. 2015) (quoting

Jenkins v. Red Clay Consol. Sch. Dist. Bd. of Educ., 4 F.3d 1103, 1135 (3d Cir.

1993)).

In this step, the court considers the Senate Factors, which include:

the history of voting-related discrimination in the State or political

subdivision; the extent to which voting in the elections of the State or
political subdivision is racially polarized; the extent to which the State
or political subdivision has used voting practices or procedures that
tend to enhance the opportunity for discrimination against the minority
group, such as unusually large election districts, majority vote
requirements, and prohibitions against bullet voting; the exclusion of
members of the minority group from candidate slating processes; the
extent to which minority group members bear the effects of past
discrimination in areas such as education, employment, and health,
which hinder their ability to participate effectively in the political
process; the use of overt or subtle racial appeals in political campaigns;
and the extent to which members of the minority group have been
elected to public office in the jurisdiction.

De Grandy, 512 U.S. at 1010 n.9 (quoting Gingles, 478 U.S. at 44–45). “[E]vidence
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demonstrating that elected officials are unresponsive to the particularized needs of

the members of the minority group and that the policy underlying the State’s or the

political subdivision’s use of the contested practice or structure is tenuous may have

probative value.” Id. (quoting Gingles, 478 U.S. at 45).

The Senate Factors are not exhaustive. Under controlling Supreme Court

precedent, the Court may also consider whether the number of Black-majority

districts in the map is roughly proportional to the Black share of the population in

Alabama. See LULAC, 548 U.S. at 426; accord De Grandy, 512 U.S. at 1000. The

Supreme Court has held that “whether the number of districts in which the minority

group forms an effective majority is roughly proportional to its share of the

population in the relevant area” is a “relevant consideration” in the totality-of-the-

circumstances analysis. LULAC, 548 U.S. at 426; accord De Grandy, 512 U.S. at

1000. “[P]roportionality . . . is obviously an indication that minority voters have an

equal opportunity, in spite of racial polarization to participate in the political process

and to elect representatives of their choice . . . .” De Grandy, 512 U.S. at 1020

(internal quotation marks omitted) (quoting 42 U.S.C. § 1973(b)); accord Ala.

Legislative Black Caucus, 989 F. Supp. 2d at 1286–87 (concluding that the totality

of the circumstances weighed against a finding that the state legislative map violated

Section Two in part because the number of majority-Black districts in the Legislature

is “roughly proportional to the [B]lack voting-age population”), vacated on other

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grounds, 575 U.S. 254 (2015).

But the proportionality evaluation is not dispositive. Section Two expressly

provides that “nothing in this section establishes a right to have members of a

protected class elected in numbers equal to their proportion in the population,” 52

U.S.C. § 10301(b), and “[f]orcing proportional representation is unlawful and

inconsistent with [the Supreme Court’s] approach to implementing [Section Two],”

Allen, 599 U.S. at 28.

“[T]he Gingles framework itself imposes meaningful constraints on

proportionality,” as “[i]ts exacting requirements” “limit judicial intervention to

‘those instances of intensive racial politics’ where the ‘excessive role [of race] in the

electoral process . . . den[ies] minority voters equal opportunity to participate.’”

Allen, 599 U.S. at 26, 30 (some alterations in original) (quoting S. Rep. No. 97-417

at 33–34 (1982)).

The Court may also consider “any circumstance that has a logical bearing on

whether” the challenged structure and its interaction with local social and historical

conditions “affords equal ‘opportunity.’” Brnovich v. Democratic Nat’l Comm., 594

U.S. 647, 668–69 (2021); see also District of Columbia v. Wesby, 583 U.S. 48, 60–

61 (2018) (observing that a “totality of the circumstances” test “requires courts to

consider the whole picture” and “recognize[s] that the whole is often greater than

the sum of its parts” and “precludes [a] sort of divide-and-conquer analysis” in which

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each factor is “viewed in isolation”) (internal quotation marks omitted) (quoting

United States v. Cortez, 449 U.S. 411, 417 (1981)).

The Section Two analysis “assess[es] the impact of the contested structure or

practice on minority electoral opportunities on the basis of objective factors.”

Gingles, 478 U.S. at 44 (internal quotation marks omitted). Section Two protects

against “electoral changes that are discriminatory in effect.” Allen, 599 U.S. at 41

(internal quotation marks omitted). “[F]or the last four decades, [federal courts] have

repeatedly applied the effects test of [Section Two] as interpreted in Gingles and,

under certain circumstances, have authorized race-based redistricting as a remedy

for state districting maps that violate [Section Two].” Id.

If the Court determines that the Plan violates Section Two, that would not be

a determination that the plaintiffs are entitled to a plan of their choice, or to one of

the illustrative plans submitted to satisfy Gingles; those maps are illustrative maps

submitted for the purposes of establishing liability under Section Two.

IV. ANALYSIS

A. Plaintiffs’ Arguments

The plaintiffs argue that they satisfy each Gingles precondition and prevail on

an analysis of the totality of the circumstances.

1. Gingles I – Numerosity and Reasonable Compactness

To satisfy the first Gingles precondition, the plaintiffs must establish that

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Black voters as a group are “sufficiently large and [geographically] compact to

constitute a majority in a reasonably configured district.” Allen, 599 U.S. at 18

(internal quotation marks omitted) (quoting Wis. Legislature v. Wis. Elections

Comm’n, 595 U.S. 398, 402 (2022)); accord Growe, 507 U.S. at 40.

The plaintiffs argue that they have established these requirements because

their illustrative plans contain examples of remedial majority-Black districts in the

Huntsville and Montgomery areas that are reasonably compact (three examples of a

remedial district in Huntsville and one example of a remedial district in

Montgomery). See Tr. 1641–43. The plaintiffs argue that their illustrative plans unite

communities of interests and more predominantly Black portions of each of the

metropolitan areas. See id. at 1641, 1643. To establish these assertions, the plaintiffs

rely on the testimony of expert witnesses Anthony Fairfax and Dr. Kassra Oskooii.

The court already has explained BVAP and BCVAP. See supra Part I.C.

BCVAP becomes relevant to redistricting “where there is reliable information

indicating a significant difference in citizenship rates between majority and minority

populations.” Negron, 113 F.3d at 1569. For instance, where the citizenship rate of

the minority population at issue in a district was 50.16 percent, and the non-minority

citizenship rate was 88.18 percent, the Eleventh Circuit held that “the minority

population include[d] a substantial number of immigrants” and that “refin[ing]”

VAP data with CVAP data was appropriate to ensure a remedial district included a

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meaningful majority of the minority population. Id. at 1567–69.

The Census Bureau provides data at various geographic levels. See Doc. 189-

7 at 9. The smallest level is a “census block.” Tr. 237, 362–63. Together, groups of

census blocks form “block groups.” Doc. 189-7 at 9; Tr. 237–38, 362, 965. In turn,

block groups form “census tracts,” and tracts form counties. Doc. 189-7 at 9; Tr.

238, 965. The Census Bureau reports decennial census data down to the census block

level. See Tr. 949, 965. The American Community Survey reports CVAP data down

to the block group level. See id. at 255, 362, 948–49.

A redistricting map-drawer may have to split block groups between districts.

See id. at 368, 948–49; Doc. 189-7 at 10, 16, 19. In that circumstance, the map-

drawer is required to “estimate the racial makeup of the portion of the block group

that is contained within [each] district.” Doc. 189-7 at 16, 19; see Tr. 368, 948. This

process is completed by using a “disaggregation” technique. Doc. 206-6 at 7; Doc.

189-7 at 22; Tr. 255; see Tr. 972.

Because the parties dispute the statistical reliability of CVAP data, the court

defines statistical terms used by the parties. The best estimate, or most likely

outcome, of survey data is referred to as the “point estimate.” Tr. 75, 969–70. It is

the “best approximation” based on the survey data. Id. at 376; see id. at 969–70.

Because the American Community Survey surveys a sample of the

population, the point estimate comes with a “sampling error,” which “means that

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estimates derived from the [surveys] will likely differ from the values that would

have been obtained if the entire population had been included in the survey, as well

as from values that would have been obtained had a different set of sample units

been selected for the survey.” Doc. 189-7 at 12 (internal quotation marks and

citations omitted); see Tr. 407–08, 957, 960.

The American Community Survey reports data from monthly surveys in one-

year, three-year, and five-year estimates. Doc. 189-7 at 8; Tr. 236, 360. The five-

year estimates are cumulative—that is, they are based upon the aggregation of data

from the previous five years. Tr. 363, 947; see Doc. 206-14 at 9; Doc. 189-7 at 17.

The point estimate is often reported with a confidence interval. A confidence

interval “is a range above and below the point estimate that the true unknown value

likely falls in within a certain degree of probability.” Id. at 376; see id. at 70

(explaining that a ninety-five percent confidence interval means that “95 out of 100

times” the true value is contained within that identified range). Sometimes the parties

refer to this range as the “margin of error” or “error margin.” See, e.g., Tr. 377–78;

Doc. 189-7 at 12–13.5

5
Dr. Trende explained in his report that “[s]tatistics, which can be thought of as the
mathematical study of uncertainty, allows us to quantify our uncertainty and express
it through error margins.” Doc. 189-7 at 12. To that end, “polls are accompanied by
error margins, which are typically reported at a 95% degree of confidence.” Id. So,
“[i]f the error margin for [a] poll were +/- 4%, that would tell us that 95 out of every
100 polls conducted will have the ‘true’ population value within 4 points in either
direction of the reported estimate [also known as the point estimate].” Id.
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Inherent in this estimation is the possibility that the true value (based on a full

enumeration of the population rather than a sample) falls outside of the confidence

interval. See id. at 438, 962–63. For example, if a point estimate is reported with a

2.5-unit margin of error at a ninety percent confidence interval, the researcher

estimates that ninety out of 100 times, the true value lies within a ±2.5-unit range of

the point estimate. See id. at 70. There is a ten percent possibility that the true value

lies outside of that margin. Id. at 437–38.

a. Mr. Anthony Fairfax

Mr. Fairfax earned a Bachelor of Science in Electrical Engineering from

Virginia Tech University and a Master of Geospatial Information Science and

Technology from North Carolina State University. Doc. 206-6 at 4; Tr. 226. Mr.

Fairfax has worked on redistricting issues for thirty years, Tr. 226–28, qualified as

an expert in numerous redistricting lawsuits, see Doc. 206-6 at 5; Doc. 206-7 at 8–

10, and developed approximately one thousand redistricting plans for states and

municipalities, Tr. 228; Doc. 206-6 at 4. Approximately half of Mr. Fairfax’s

redistricting work has involved state legislative plans, and forty-to-sixty percent of

his redistricting work has involved Section Two. Tr. 228–29.

At trial, Mr. Fairfax was admitted without objection “as an expert in map

drawing, demographics, and the use of census data for redistricting.” Id. at 230.

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The plaintiffs asked Mr. Fairfax “to determine whether an illustrative plan

could be developed that satisfied the first precondition of Gingles and adhere[d] to

federal and state redistricting criteria for Alabama State Senate districts.” Id. at 230–

31. Mr. Fairfax opined that it is possible to draw two additional, reasonably

configured majority-Black Senate districts that comply with traditional redistricting

criteria—one each in the Montgomery and Huntsville areas. Doc. 206-6 at 7; Doc.

206-8 at 38.

In his original report, Mr. Fairfax observed that the 2020 census revealed that

Alabama’s BVAP increased to 25.9 percent of the state’s voting-age population and

White VAP decreased to 65.47 percent. See Doc. 206-6 at 49. He also reported that

according to the 2022 one-year American Community Survey data, Alabama had a

BCVAP of 25.6 percent and a White CVAP of 67.7 percent. Id.

Also in his reports, Mr. Fairfax offered three illustrative plans (the

“Illustrative Plans”). Doc. 206-6 at 31; Doc. 206-8 at 14, 25; Doc. 206-10 at 2. Mr.

Fairfax used 2022 one-year and 2021 five-year CVAP estimates and 2020 decennial

census data to draw Illustrative Plan 1. See Doc. 206-6 at 6. Mr. Fairfax observed

that the 2021 five-year CVAP estimates “would have been available for the

Legislature” at the time it drew the Enacted Plan. Tr. 264. He used 2022 five-year

CVAP estimates to draw Illustrative Plans 2 and 3. Doc. 206-8 at 6. The illustrative

plans appear below:

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Mr. Fairfax later supplemented his report because he “noticed that [he] had

inadvertently and erroneously provided incorrect versions of the map” for

Illustrative Plan 2, “even though all of the statistics included [for Illustrative Plan 2]

reflected the correct and intended Illustrative Plan 2[A].” Doc. 206-10 at 2. Mr.

Fairfax submitted a new plan (“Illustrative Plan 2A”) that amended the lines of

District 7 in Illustrative Plan 2. Id. The changes to Illustrative Plan 2 are “minimal,”

id., and at trial, Mr. Fairfax testified that Illustrative Plans 2 and 2A are “[v]ery

similar,” Tr. 321. Illustrative Plan 2A appears below:

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Doc. 207-23 at 2.

The differences in Illustrative Plan 2 and 2A are visible only by zooming in:

Doc. 206-10 at 3. Mr. Fairfax explained that “[t]he background color represents

Illustrative Plan 2 while Illustrative Plan 2A is depicted using the black boundary

lines, with bold red boundary lines reflecting the differences.” Id.

At trial, Mr. Fairfax testified that he offered “[e]ssentially three” plans for the

Court’s consideration, Tr. 233, and on direct examination, he testified about only

Illustrative Plans 1, 2A, and 3, see id. at 247–74. The plaintiffs draw no distinction

between Illustrative Plan 2 and Illustrative Plan 2A other than what the Court has

already described, and they offer no reason why the testimony about Illustrative Plan

2 does not also apply to Illustrative Plan 2A. Therefore, the Court considers all

testimony about Illustrative Plan 2 applicable to Illustrative Plan 2A, and vice versa.

At trial, Mr. Fairfax testified about how he developed the Illustrative Plans.

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He testified that he used the Enacted Plan as a starting point because “many times

you want to leave as many districts as [possible] intact.” Id. at 240; see id. at 264–

65, 270, 277. Mr. Fairfax testified that he followed five traditional redistricting

criteria when drawing the plans—equal population, respecting political

subdivisions, compactness, contiguity, and preserving communities of interest. Id.

at 244. He testified that he also attempted to follow other criteria found in the

Legislature’s redistricting guidelines. Id. at 245. He testified that “[t]here are always

tradeoffs” when drawing a map, and that he “balance[d]” the criteria in an effort to

create the “best plan” possible. Id. at 246–47.

Mr. Fairfax testified that he reviewed race at the beginning of the process to

see “where the minority community exists” but then “turn[ed] it off.” Id. at 242; see

id. at 277–79. He acknowledged that he checked the minority BVAP and BCVAP

periodically “to see if [he] me[]t th[e] sufficiently large component.” Id. at 280–81.

He testified that he “tend[s] to not consider race as much as the other [redistricting]

criteria” and “always use[s] the other criteria labels more than race.” Id. at 241–42.

Mr. Fairfax testified that he evaluated whether the proposed remedial districts

in the Illustrative Plans are reasonably configured in part by reference to three

statistical measures of compactness commonly used in redistricting: the Reock

score, the Polsby-Popper score, and the Convex Hull score. Doc. 206-6 at 36, 44–

47; Doc. 206-8 at 22; Tr. 258.

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Mr. Fairfax defined each metric. He explained that the Reock score measures

“the area of the district and divides into it the . . . smallest circle that fits around the

district,” and that “a finger or an arm sticking out makes the circle larger,” which

decreases the compactness measure. Tr. 242. He explained that the Polsby-Popper

metric “is a perimeter measure.” Id. This metric takes the “district boundaries and

stretche[s] [them] out to a circle,” which is “divided into the area of the district.” Id.

at 243. Mr. Fairfax explained that the Convex Hull metric is a “much more

forgiving” measure that is described as “taking a rubber band and wrapping it around

the district.” Id. The polygon shape that is created is referred to as the convex hull.

Id. The Convex Hull score is measured by “tak[ing] the area of that convex hull and

divid[ing] [it] into the district.” Id. Each metric “indicates a more compact district

as the value moves closer to 1.” Doc. 206-6 at 44–45.

Mr. Fairfax opined that the “measures are the standard that experts use to

determine [the] compactness [of] . . . a district.” Tr. 260. He testified that comparing

compactness scores for an illustrative plan to a previously enacted plan is the

“desirable” way to determine if a plan is sufficiently compact. Doc. 206-6 at 44–45;

see Tr. 257. This is so because a comparison allows a mapmaker “to get a sense of

what[] [is] acceptable.” Tr. 328. He thus compared compactness scores of Illustrative

Plans 1, 2A, and 3 to the compactness scores for the Enacted Plan. Id. at 257.

i. Montgomery – Senate Districts 25 and 26

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Mr. Fairfax offered Proposed District 25 to demonstrate that it is possible to

draw an additional reasonably configured remedial district in the Montgomery area.

Mr. Fairfax did not change the boundary lines of Proposed District 25 in Illustrative

Plans 1, 2A, or 3. Proposed District 25 appears in green below:

Doc. 206-6 at 37.

The boundaries of Proposed District 25 largely follow county lines. They keep

Crenshaw County whole by following its boundary lines, and they keep a majority

of Montgomery County whole by following its entire southern boundary line and

much of its eastern and western boundary lines. See id.

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a. Numerosity

Senate Districts 25 and 26 are majority-Black on a BVAP metric. Id. at 40.

Mr. Fairfax testified that he did not rely on BCVAP in the Montgomery area because

“there[] [was] no need to” since “the majority-[B]lack status is already there.” Tr.

290.

b. Reasonable Configuration

Mr. Fairfax opined that Proposed District 25 is reasonably configured. First,

he opined that Proposed District 25 is more compact than districts in the Plan using

the Reock, Polsby-Popper, and Convex Hull metrics of compactness. Tr. 258. Mr.

Fairfax also opined that Proposed District 25 “outperforms” the Plan on the number

of counties contained within the district by splitting only two counties (District 25

in the Plan splits three). Doc. 206-6 at 36; Tr. 256. He observed that in Proposed

District 25, “[a]lmost half (49.69%) of the [C]ity of Montgomery is contained within

. . . [District] 25” and that, unlike the Plan, “the town of Pike Road is made whole”

in Proposed District 25. Doc. 206-6 at 36. He conceded that Proposed District 25

creates a new split in the City of Prattville. Tr. 299.

ii. Huntsville – Senate Districts 2, 7, and 8

Mr. Fairfax offered three illustrative versions of District 7—one each in

Illustrative Plans 1, 2A, and 3—to demonstrate that it is possible to draw a remedial

district in the Huntsville area (the first such district in that area) without violating

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traditional redistricting principles. Four versions of illustrative District 7 appear

below. The first image is from Mr. Fairfax’s original report and reflects what the

parties denominate as Illustrative Plan 1:

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Doc. 206-6 at 34; Doc. 206-8 at 16, 27; Doc. 207-23 at 3.

a. Numerosity

In his report, Mr. Fairfax opined that the Black population in the Huntsville

area is sufficiently large to constitute a majority in a district. Doc. 206-6 at 7. He

used BCVAP and noncitizen data from the American Community Survey and BVAP

data from the 2020 decennial census. Id. at 6; Doc. 206-8 at 4–5.

Mr. Fairfax used different metrics to evaluate the numerosity of the Black

population in the Huntsville area in Illustrative Plans 1 and 2A than he used in

Illustrative Plan 3. For Illustrative Plans 1 and 2A, Mr. Fairfax opined in his report

that District 7 is majority-Black on a BCVAP metric, but not a BVAP metric. Doc.

206-6 at 43; Doc. 206-8 at 21; see Doc. 206-10 at 2; Tr. 283–85. Mr. Fairfax testified

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that he “believe[d]” that he “probably [had] not” relied solely on CVAP to establish

numerosity in any of his Gingles I work in other cases. Tr. 343.

Mr. Fairfax opined that because the Huntsville area contains a significant

number of noncitizens, BCVAP is a more accurate and more appropriate estimate

for Black eligible voters in that district. Doc. 206-6 at 40–42; see Doc. 206-8 at 21;

Tr. 252–54, 284. He testified at trial that three counties in the Huntsville area—

Madison, Morgan, and Limestone—have some of the highest noncitizenship rates in

Alabama. See Tr. 253–54. He provided the following chart in his report to compare

the noncitizenship rates of those counties to other counties in Alabama:

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Doc. 207-10 at 3.

He testified that Madison, Morgan, and Limestone have a non-Black

noncitizen population of five percent or less of the total VAP in those counties. See
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Tr. 253–54. Mr. Fairfax offered in his report the following charts reflecting the

breakdown of citizenship rates by race in Madison, Morgan, and Limestone

Counties:

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Doc. 207-10 at 5–7.

Mr. Fairfax testified at trial that because of the “low percentage of [B]lack

noncitizens compared to the relatively high percentage of non-[B]lack noncitizens,

specifically the Latino and Asian population, the CVAP data is the more appropriate

dataset to use when it comes to the sufficiently large component of Gingles I.” Tr.

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254.

Mr. Fairfax explained that he considered the noncitizen population in the

Huntsville area significant because “Huntsville had the leading . . . population of

non-citizens in the state” and “Decatur had the sixth.” Id. at 288. Mr. Fairfax

conceded that Montgomery has the second largest noncitizen population in the state.

Id. at 289; Doc. 207-10 at 9. He testified that he did not use BCVAP data when

drawing the illustrative district in that area because “there[] [was] no need to.” Tr.

289–90.

Mr. Fairfax testified that CVAP data is reliable and is frequently used in

redistricting litigation. Id. at 254–55. He explained that he uses a disaggregation

technique to estimate the CVAP and BCVAP at the district level because CVAP data

is provided down to the block group level. See id. at 255. He testified that Illustrative

Plans 1 and 2A had a majority BCVAP in District 7 using four different

disaggregation methods, including the method used by the Secretary’s expert. See

id. at 345–46.

Mr. Fairfax acknowledged that CVAP data come with a margin of error, id.

at 311–12, and conceded that, when accounting for the margin of error, his estimated

BCVAP in District 7 in Illustrative Plan 2A—the only Illustrative Plan for which

Mr. Fairfax calculated a margin of error—includes values below and above a

majority, id. at 312, 321–22. He further testified that the margin of error is not

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“commonly used” in redistricting. Id. at 311–12.

At trial, Mr. Fairfax also responded to a criticism by the Secretary’s Gingles

I expert, Dr. Sean Trende, that he did not account for members of the CVAP who

are ineligible to vote for various reasons, such as a felony conviction. See id. at 320.

Mr. Fairfax testified that accounting for such disqualifications is “not normally

done” by experts in redistricting litigation. Id. at 321.

Illustrative Plan 3 is the only Illustrative Plan in which District 7 “satisfies

majority Black status using both BVAP . . . and BCVAP.” Doc. 206-8 at 6 (footnotes

omitted); see Tr. 270, 272.

b. Reasonable Configuration

Mr. Fairfax opined and testified that District 7 is reasonably configured in

Illustrative Plans 1, 2A, and 3. See Doc. 206-6 at 7; Doc. 206-8 at 5; Tr. 258, 267,

273. Mr. Fairfax explained that the district boundaries in all three illustrative plans

bring together portions of the city of Decatur with portions of Huntsville that have

“similar socioeconomic makeup[s].” See Doc. 206-6 at 35; Doc. 206-8 at 17, 28. He

also explained that District 7 in Illustrative Plans 1, 2, and 3 wholly contain Alabama

A&M University, an historically Black university that Mr. Fairfax considers a

community of interest, and include it with the urban areas of Huntsville. Doc. 206-

6 at 35; Doc. 206-8 at 17–18, 29. By contrast, the Plan includes most of Alabama

A&M University in District 8, which Mr. Fairfax opined “is a more rural district and

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has less communities in common than the more urban areas of [District] 7.” Doc.

206-6 at 35; Doc. 206-8 at 18.

Mr. Fairfax testified that on the measures of geographic compactness that he

used, District 7 in Illustrative Plans 1, 2A, and 3 performed better than the lowest-

scoring district in the Plan. Tr. 258, 267, 273. He testified at trial that Illustrative

Plans 1 and 2A, which rely on BCVAP to satisfy Gingles I, were the “best” plans,

id. at 290, and that using BCVAP data allowed him to create a more compact plan,

id. at 285–86.

At trial, Mr. Fairfax acknowledged that he had to diminish the compactness

of District 7 in Illustrative Plan 3 to reach majority-BVAP status, but opined that

District 7 in that plan remains reasonably compact. Id. at 273–74, 335–36. He also

acknowledged that District 7 in Illustrative Plan 3 splits more counties than does

District 7 in the Plan, id. at 274, and splits more voting districts, id. at 333–34. He

also acknowledged that the district includes thirty-two of the thirty-five highest-

BVAP precincts in the four counties included in the district. Id. at 336. He testified

that “it’s not uncommon for . . . a majority-[B]lack district to have majority-[B]lack

precincts.” Id. at 338.

Mr. Fairfax also testified about Dr. Trende’s use of dot density maps to

evaluate the compactness of the Black population in the Huntsville area. See id. at

260–62. He criticized the maps as “misleading” because an area with “very little

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population” will “show[] up as . . . a little amount of dots.” Id. at 261. He testified

that dot density maps are not a standard method to evaluate the compactness of a

minority population and criticized Dr. Trende’s conclusion that the maps reflected a

non-compact Black population because “majority-[B]lack districts are mostly made

up of areas that may have different concentrations of [B]lack population.” Id. at 261–

62. Mr. Fairfax made the same point about the Montgomery area. See id. at 260–62.

b. Dr. Kassra Oskooii

To establish the first Gingles precondition in the Huntsville area, the plaintiffs

also rely on the testimony of Dr. Kassra Oskooii. Dr. Oskooii earned a Master of

Science and Doctor of Philosophy in political science from the University of

Washington and a political methodology field certificate from the Center for

Statistics & the Social Sciences. Doc. 206-14 at 2–3; see Tr. 349. He works as a

tenured professor at the University of Delaware, where he researches and teaches

about political methodology, voting rights, and redistricting. Doc. 206-14 at 2; Tr.

348–49. He has published several papers on “ecological inference methods as it

pertains to racially polarized voting analysis.” Doc. 206-14 at 4; see Tr. 350. His

research has been published in approximately twenty-two peer-reviewed journals.

Tr. 350. He also co-developed a software package called “eiCompare,” which he

describes as “a reproducible code that quantifies, compares, and represents racially

polarized voting data.” Doc. 206-14 at 5. Dr. Oskooii has qualified as an expert

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witness in various redistricting cases. Tr. 353.

Dr. Oskooii was admitted at trial without objection as “an expert in map

drawings, statistical analysis, and U.S. census data including the American

Community Survey and the decennial census.” Id. at 353–54.

The plaintiffs asked Dr. Oskooii to evaluate Dr. Trende’s opinion about the

reliability of CVAP data. Doc. 206-14 at 5; see Tr. 348. Dr. Oskooii evaluated only

Illustrative Plan 1 and opined that CVAP data is an appropriate measure of the

eligible voting population. Tr. 355–56; Doc. 206-14 at 14.

Dr. Oskooii opined in his report that CVAP data is “regularly used to estimate

the proportion of eligible voters by race and ethnicity across electoral districts” and

has two advantages over the use of decennial census data: (1) CVAP estimates are

more recent data than census counts and (2) CVAP estimates provide estimates of

data not included in decennial census data, such as CVAP estimates by race. Doc.

206-14 at 9–10.

At trial, Dr. Oskooii testified that the citizenship rates among Black and White

voting-age populations in the Huntsville area are around ninety-five percent each,

which he opined is “very high.” Tr. 358. Dr. Oskooii testified that the citizenship

rate “for [the] Hispanic population is below [fifty] percent” in the Huntsville area

and that Hispanic people comprise approximately ten percent of the voting-age

population in the Huntsville area. Id. at 401. Dr. Oskooii opined that the disparity in

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Hispanic citizenship rates and Black and White citizenship rates renders the use of

VAP an inaccurate metric for the populations by race in the Huntsville area. See id.

at 359. He testified that using VAP to estimate a particular minority population in

an area that has another minority population with a high noncitizenship rate can

“underestimat[e]” the particular minority population at issue. Id. at 357.

Dr. Oskooii testified extensively about the reliability of CVAP data. See id. at

360–62. He testified that the American Community Survey receives an “incredibly

high response rate” and surveys approximately one in every thirty-eight households

each year. Id. at 361–62. He acknowledged the potential for American Community

Survey data to inflate the CVAP of a region, which sometimes results in the CVAP

of a block group exceeding the total VAP of that block group. Id. at 373. Dr. Oskooii

testified that the issue of CVAP exceeding VAP does not appear when calculating

the population of larger geographic units, such as an electoral district. Id. at 373–74.

He further testified that the CVAP “certainly” does not exceed the total VAP in

District 7 in Illustrative Plan 1. Id. at 364, 373.

Dr. Oskooii pointed out that Dr. Trende has relied on CVAP data in other

redistricting litigation on the ground that it is a “useful metric for assessing a

district’s actual electorate.” Doc. 206-14 at 11 (internal quotation marks omitted);

see Tr. 357. He also testified that, in previous litigation, Dr. Trende relied on the

CVAP point estimate at the block group level without raising issues about

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confidence intervals or margins of error. Tr. 381–82; Doc. 206-14 at 12. He

conceded at trial that three of the five years of data in the 2021 five-year American

Community Survey are from before the 2020 census. See Tr. 398.

Dr. Oskooii testified about the techniques for disaggregating data to the

district level when a block group is split between two districts. See id. at 365. Dr.

Oskooii acknowledged that there are different disaggregation techniques, and he

testified that he does not perform his own disaggregation calculation. See id. Instead,

he relies on a program called the Redistricting Data Hub, which uses Dr. Oskooii’s

preferred disaggregation technique. Id. This technique involves configuring a

“block-to-block group BVAP ratio” by taking the BVAP of a census block and

dividing it by the BVAP of the block group. Id. The resulting percentage is

multiplied by the BCVAP of the block group “to allocate the BCVAP accurately to

the block level.” Id.

Dr. Oskooii acknowledged that different disaggregation techniques result in

different CVAP point estimates. Id. at 434–35. For example, Dr. Oskooii calculated

a 50.11 percent BCVAP point estimate for District 7 in Illustrative Plan 1, which is

different from Mr. Fairfax’s BCVAP 50.16 percent point estimate, because the

experts used different disaggregation methods. Id. at 433. When asked how to select

a disaggregation method, Dr. Oskooii testified that one should look at the “logic

behind the disaggregation and how it’s implemented.” Id. at 436.

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On cross examination, Dr. Oskooii was asked how redistricting jurisdictions

should determine when to use CVAP instead of VAP. Dr. Oskooii testified that it

“depends on what the jurisdiction is looking for.” Id. at 399. He testified that he

would suggest CVAP as the appropriate data when a jurisdiction has a high

noncitizen population, although there is “no bright line rule” for determining when

a noncitizen population is high. See id. at 399–401. He testified that that the

citizenship rate is relevant when “the results are impacted” by noncitizenship rates.

Id. at 401.

Dr. Oskooii acknowledged that because CVAP data is sample data, it comes

with a margin of error. Tr. 406; see Doc. 206-14 at 13. Part of the uncertainty arises

out of “item non-response,” which occurs when an individual fills out a survey but

leaves a question blank, Tr. 407–08. Dr. Oskooii conceded that the American

Community Survey handles item non-response by imputing data—including

citizenship data—based on other information in the survey. Id. at 408–10. He

acknowledged that there is uncertainty about the imputation process and that it can

generate error. See id. at 410–11.

Dr. Oskooii did not offer an estimated margin of error for District 7 in

Illustrative Plan 1. See id. at 415. He testified that “[t]here[] [is] no good or sensible

. . . calculation” of that margin of error and did not try to calculate it because “it’s

not relevant in describing the composition of the CVAP composition of this district.”

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Id. He testified that in his view a point estimate is sufficient to satisfy the numerosity

requirement of Gingles I. Id. at 449.

Dr. Oskooii also testified about Dr. Trende’s assertion that an illustrative plan

drawn on the basis of CVAP should also consider those who are ineligible to vote

based on felony convictions or other disqualifications and that, considering the rates

of disenfranchised felons supplied by one of the plaintiffs’ experts, Illustrative Plan

1 did not contain a majority-Black population in District 7. Id. at 382–83; see Doc.

189-7 at 23. Dr. Oskooii criticized Dr. Trende for using an “unverified statewide

citizenship rate” that came “from a percentage that another expert [Dr. Burch] in

another report has supplied.” Tr. 383. He stated that the data was “not verified or

detailed enough” for Dr. Trende to make these estimations for District 7 in

Illustrative Plan 1. Id. at 384.

Dr. Oskooii also criticized Dr. Trende’s use of dot density maps to “show

population concentration in different regions.” Id. Dr. Oskooii testified that by

placing the markers that reflect the Black population on top of the markers that

reflect the White population, Dr. Trende is “effectively hiding the concentration of

White VAP in th[e] district.” Id. Dr. Oskooii explained that this “superimposi[tion]”

of the Black markers on top of the White markers is problematic because it may lead

the reader to assume that areas with Black markers are all “really high concentrated

areas,” when actually they may be “areas that also have equal amounts or similar

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amounts of [W]hite people in them.” Id. at 384–85.

2. Gingles II and III – Racially Polarized Voting (Dr. Liu)

To establish the second and third Gingles requirements—that Black voters are

“politically cohesive” and that each challenged district’s White majority votes

“sufficiently as a bloc to enable it . . . to defeat the minority’s preferred candidate,”

Allen, 599 U.S. at 18 (internal quotation marks omitted) (quoting Gingles, 478 U.S.

at 51)—the plaintiffs rely on stipulated facts and the expert testimony of Dr.

Baodong Liu.

The plaintiffs rely on stipulated facts to argue that Black members of the

Legislature have been elected because of majority-Black districts created to satisfy

federal law. Doc. 250 ¶ 519. These stipulated facts are: (1) “There are currently no

Black statewide elected officials in Alabama regardless of political party[,]” Doc.

230 ¶ 93; Doc. 250 ¶ 521; (2) “Only one Black person has ever been elected to

statewide office in a contested election in Alabama[,]” and that person was elected

after first being appointed, Doc. 230 ¶ 94; Doc. 250 ¶ 525; (3) “In 2024, . . . [a]ll

Black Senators are elected from majority-Black districts[,]” Doc. 230 ¶ 117; Doc.

250 ¶ 522; and (4) currently, all Black Representatives in the Alabama House except

one are elected from majority-Black districts, Doc. 230 ¶ 117. The plaintiffs also

point out that no Black Senators represent the districts in the Huntsville area. Doc.

250 ¶ 523.

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Dr. Liu works as a tenured professor of political science at the University of

Utah, where he focuses on the “relationship between election systems and the ability

of minority voters to participate fully in the political process and to elect

representatives of their choice.” Doc. 206-16 at 2; see Tr. 14, 17. Dr. Liu holds a

doctoral degree in political science from the University of New Orleans, a graduate

degree in political science from Oklahoma State University, and an undergraduate

degree in law from East China University. Doc. 206-17 at 2; Tr. 16. Dr. Liu has

written or edited nine books and published articles in many peer-reviewed journals.

Doc. 206-16 at 2; Doc. 206-17 at 2–8; see Tr. 18. He has served as an expert witness

in vote dilution cases in eight states, and has advised the United States Department

of Justice on methodological issues concerning racially polarized voting. Tr. 19;

Doc. 206-16 at 2–3; Doc. 206-17 at 18. Dr. Liu has been compensated at a rate of

$300 per hour for his work on this case and his compensation does not depend on

the substance of his testimony. Doc. 260-16 at 2.

At trial, Dr. Liu was qualified without objection “as an expert in racial

polarization analysis, voter behavior, and Ecological Inference.” Tr. 19–20. The

plaintiffs asked Dr. Liu to (1) conduct a racial polarization analysis in the Huntsville

and Montgomery regions and (2) analyze the effectiveness of the Illustrative Plans

in allowing Black voters an opportunity to elect a candidate of their choice in state

Senate elections. Doc. 206-16 at 1–2; Tr. 20.

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Dr. Liu concluded that there is a “significant” pattern of “racially[ ]polarized

voting between [B]lack voters and [W]hite voters in both elections involved in the

State Senate electoral offices.” Tr. 21. He explained that he used a two-step approach

to conduct a racial polarization analysis. Id. at 23. He first evaluated “the

cohesiveness of [B]lack voters” by considering whether “the majority of [B]lack

voters voted for the same candidate” in biracial elections. Id. He then considered

whether “the same candidate preferred by the majority [of] [B]lack voters is also

shared by the majority [of] voters from the [W]hite voting group.” Id.

Dr. Liu analyzed only biracial elections, which are “elections that involve both

[B]lack and [W]hite candidates.” Id. at 29; see id. at 65. He testified that his “role is

to show to the Court” the “true preference” of Black voters when “given a choice

between a [B]lack candidate and [W]hite candidate” and that Gingles requires him

to consider the race of the candidate when evaluating racially polarized voting. Id.

at 29; see id. at 67–68. At trial, Dr. Liu denied that examining biracial elections

assumed that Black voters always preferred Black candidates. Id. at 114–15. He

testified that Black voters could have expressed a preference for White candidates

in the biracial elections he analyzed, but they did not. Id. at 114–17.

Dr. Liu first examined three biracial endogenous elections (elections for the

offices at issue in this litigation) in the Huntsville area, including the 2022 Senate

District 2 election, the 2022 Senate District 7 election, and the 2018 Senate District

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7 election. Doc. 206-16 at 6; see Tr. 26–27. He did not analyze any endogenous

elections in Montgomery. Tr. 73. He also considered eleven biracial exogenous

elections (elections not for the district in dispute, Doc. 206-16 at 6, which in this

case are almost all elections for statewide offices, Tr. 26–27).

Dr. Liu evaluated racially polarized voting in these fourteen elections by using

a statistical procedure known as ecological inference, which he opined “has been

widely used as the most-advanced and reliable statistical procedure for [racially

polarized voting] estimates in not only academic research but also voting rights cases

in the last two decades.” Doc. 206-16 at 4; see Tr. 25. Dr. Liu explained that

ecological inference uses two sources of data: (1) “the election outcome aggregated

at [the] precinct level” and (2) “the demographic data provided by the U.S. census.”

Tr. 25. He testified that one benefit of ecological inference is that he can check the

reliability of his estimations. Id. at 26. Dr. Liu testified that in each biracial election

evaluated in his initial report, every Black candidate ran as a Democrat and every

White candidate ran as a Republican. Id. at 92–93, 117.

Dr. Liu opined that all three endogenous elections were racially polarized, and

that the Black candidates in all three elections were defeated “as a result of the high

level” of racially polarized voting. Doc. 206-16 at 7; Tr. 31. He offered the following

table to demonstrate his findings:

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Doc. 206-16 at 7.

Dr. Liu’s analysis of the eleven exogenous elections generated similar results.

In these races, no Black-preferred candidate in Huntsville won, and the Black-

preferred candidate lost seven out of the eleven elections in Montgomery. Id. at 9–

10; see Tr. 32–33. Dr. Liu observed a “strong pattern of racially[ ]polarized voting”

in all eleven elections. Tr. 32.

Dr. Liu thus concluded that all fourteen elections showed a “high level” of

racially polarized voting in the Montgomery and Huntsville areas. See Doc. 206-16

at 8, 10. He observed that “there is overwhelming Black unity in voting” but that

only ten to twenty percent of White voters vote for Black candidates in biracial

elections in the Huntsville area, and less than ten percent of White voters vote for

Black candidates in the Montgomery area. Id. at 11. He testified that “voting in

Greater Huntsville and Montgomery regions of Alabama during the last [ten] years

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is ‘racially polarized’ in that Black voters have expressed a clear preference for the

same candidate,” that “in the elections analyzed[,] the preferred candidate by Black

voters was a Black candidate,” and that “this preference was not shared by the

[W]hite voters who were the majority of the electorate.” Id. at 6.

Dr. Liu also performed an effectiveness analysis, which “is a comparative

study of two or more redistricting plans” that “reports the different opportunities for

racial minority voters (in this case, Black voters) to elect the candidates of their

choice, given how the different redistricting plans have determined the racial

configuration of a certain jurisdiction under legal dispute.” Id. at 10. It also shows

“the extent to which [racially polarized voting] has affected the election outcomes

in the given jurisdiction.” Id.

At trial, Dr. Liu explained that he used a two step “effective[ness] analysis,”

which involves (1) “compar[ing] the racial configuration of one map versus the

racial configuration of another” and (2) evaluating “how voters voted in the

particular configuration.” Tr. 34. He stated that by comparing the results of an

illustrative plan with the results of the Plan, he can “make [a] conclusion about

whether or not one particular configuration has [a] better opportunity for the [B]lack-

preferred candidates to win.” Id.

Dr. Liu opined that Illustrative Plan 1 is “a much more effective plan at

providing Black voters an opportunity to elect candidates of their choice than was

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the Enacted Plan,” Doc. 206-16 at 12, and “provides Black voters a realistic chance

to elect candidate of their choice in two more State Senate districts (SD7 and SD25),

in addition to SD 26,” id. at 15; see Tr. 35–37.

Dr. Liu did not conduct an effectiveness analysis for Illustrative Plans 2 and

3. He provided the following tables to support his findings for Illustrative Plan 1:

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Doc. 206-16 at 13–14.

Dr. Liu also responded to the reports of four of the Secretary’s experts: Dr.

Trende, Dr. Wilfred Reilly, Dr. Chris Bonneau, and Dr. M.V. Hood III. Doc. 206-

18; Tr. 22. First, Dr. Liu addressed the opinion of Dr. Trende that a Black-preferred

candidate “would win regularly in District 7” in Illustrative Plan 1 even if the BVAP

in that district were only twenty-five percent. Doc. 206-18 at 9–10 (internal

quotation marks omitted). Dr. Liu opined that Dr. Trende “unrealistic[ally]”

assumed that Black voters would unanimously support a Black-preferred candidate

and that one-third of White voters would support the Black-preferred candidate,

which is not supported by the data. See id. at 10; Tr. 38–39. He also testified that his

calculations did not support Dr. Trende’s assertion. See Tr. 39; Doc. 206-18 at 10.

Second, Dr. Liu addressed the opinions of Dr. Reilly and Dr. Bonneau that the

voting patterns in Alabama are attributable to political party, not race. Doc. 206-18

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at 3–7; Tr. 40–46. He testified that the Secretary’s experts did “not object [to] the

findings of [his] report of [the existence of] racially[ ]polarized voting,” Tr. 22–23,

and criticized them for failing to conduct a racial polarization analysis, which he

opined is necessary to determine whether the second and third Gingles requirements

are satisfied, id. at 96, 98. Dr. Liu testified that he was not concerned with voters’

motivations for selecting candidates, only whether the voting patterns were racially

polarized. Id. at 42–43; see id. at 74. He criticized Dr. Bonneau for using county-

level data, which results in erroneous calculations, id. at 43–45, as well as Dr.

Bonneau’s analysis of straight-ticket voting, which is “not based on [an] actual racial

breakdown” of the voters, id. at 56.

To address the role of political party, Dr. Liu evaluated several biracial, non-

partisan, mayoral elections in the Montgomery and Huntsville areas in 2019, 2020,

and 2023. Doc. 206-18 at 8–9. He testified that these elections demonstrated racially

polarized voting even when party is not at issue. See Tr. 51–52. He explained that

“[t]he [B]lack candidates received much less support from the [W]hite voting group

and much more support from the [B]lack group. So it’s racially polarized.” Id. at 53.

Third, Dr. Liu addressed the opinion of Dr. Hood that racial bloc voting does

not occur in Alabama based on a “cross-state analysis.” Doc. 206-18 at 2. Dr. Liu

criticized Dr. Hood for comparing “the voting patterns of Black voters in [twenty]

other states to that of Alabama” without “provid[ing] any reason why he chose

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th[ose] states”—particularly where he selected “states with at least [ten percent] of

[a] Black population, despite the fact that Alabama’s Black population share is . . .

above the [twenty-five percent] level.” Id. Dr. Liu also criticized Dr. Hood for

“focus[ing] on the Black voter choices” without “look[ing] at the [W]hite voter

choices for the same elections based on the same polls.” Id. And he pointed out that

“Dr. Hood did not perform any RPV analysis when purporting to analyze the

existence or extent of racial bloc voting” in contradiction “to his own professional

recommendation when it comes to empirical analysis of vote dilution claims.” Id.

Dr. Liu also criticized Dr. Hood for failing to analyze Alabama Senate

elections, instead relying on the success of one Black Representative (Kenneth

Paschal) in a majority-White Alabama House of Representatives district. See id. at

3. Dr. Liu opined that Representative Pashcal’s election did not occur in the

Montgomery or Huntsville region and did not involve Senate districts. Id. He also

opined that the voter turnout for that primary election was “extremely low,” and that

recent elections in the challenged areas show that White bloc voting occurs against

Black candidates. Id.

3. The Senate Factors and Proportionality

The plaintiffs next turn to the totality of the circumstances. They rely on

stipulations of fact and testimony from two experts and several fact witnesses to

support their arguments. The Court first discusses the stipulations and experts, and

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then discusses the fact witnesses in the next sections.

Recall that the nine Senate Factors are:

(1) “the extent of any history of official discrimination in the state or

political subdivision that touched the right of the members of the
minority group to register, to vote, or otherwise to participate in the
democratic process”;

(2) “the extent to which voting in the elections of the state or political
subdivision is racially polarized”;

(3) “the extent to which the state or political subdivision has used
unusually large election districts, majority vote requirements, anti-
single shot provisions, or other voting practices or procedures that
may enhance the opportunity for discrimination against the minority
group”;

(4) “if there is a candidate slating process, whether the members of the
minority group have been denied access to that process”;

(5) “the extent to which members of the minority group in the state or
political subdivision bear the effects of discrimination in such areas
as education, employment and health, which hinder their ability to
participate effectively in the political process”;

(6) “whether political campaigns have been characterized by overt or

subtle racial appeals”;

(7) “the extent to which members of the minority group have been
elected to public office in the jurisdiction”;

(8) “whether there is a significant lack of responsiveness on the part of

elected officials to the particularized needs of the members of the
minority group”; and

(9) “whether the policy underlying the state or political subdivision’s

use of such voting qualification, prerequisite to voting, or standard,
practice or procedure is tenuous.”

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Gingles, 478 U.S. at 36–37 (quoting S. Rep. No. 97-417 at 28–29).

a. Stipulations

The parties stipulated to several facts about the totality of the circumstances

in Alabama today. They stipulated that twenty percent of state Senate seats and

24.8% of state House seats are held by Black legislators, and that all but one Black

Representative and all Black Senators are elected from majority-Black districts. Doc.

230 ¶ 117. They also stipulated that “[o]nly one Black person has ever been elected

to statewide office in a contested election in Alabama.” Id. ¶¶ 93–94.

The parties also stipulated that multiple Black candidates ran in Republican

primaries in recent congressional and state legislative elections, but all of them

finished behind multiple White candidates. See id ¶¶ 106–07. For example, they

stipulated, “In the 2024 Republican primary election for Alabama’s U.S.

Congressional District 2, the four Black candidates in the race . . . finished [fifth],

[sixth], [seventh], and [eighth] places out of [eight] candidates, respectively, behind

four [W]hite candidates and together received 6.2% of the total vote.”; “In the 2024

special Republican primary election for Alabama State House District 27, Black

candidate Billy Ray Todd finished fifth of six, behind four [W]hite candidates,

receiving 8.7% of the vote.”; “In the 2022 Alabama Republican U.S. Senate primary,

Black candidate Karla DuPriest finished fifth behind four [W]hite candidates,

receiving 0.9% of the vote.” Id. ¶¶ 106, 109, 111.

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a. The Plaintiffs’ Expert Witness Testimony

i. Dr. Joseph Bagley

The plaintiffs also rely on the expert testimony of Dr. Joseph Bagley about

the Senate Factors. Dr. Bagley holds graduate degrees in history from Auburn

University and Georgia State University. Doc. 206-19 at 1; Doc. 206-20 at 1; Tr.

525. He works as an Assistant Professor of History at Georgia State University,

where he focuses on “United States constitutional and legal history, politics, and race

relations, with a focus on the Deep South.” Doc. 206-19 at 1; see Tr. 525. He has

published a book, numerous articles, and been accepted as an expert in other

Alabama voting rights cases. See Doc. 206-19 at 1–2; Doc. 206-20 at 1–2; Tr. 526–

28. Dr. Bagley was compensated at a rate of $150 per hour for his work and his

compensation did not depend on the substance of his testimony. Doc. 206-19 at 2.

At trial, Dr. Bagley was qualified without objection “as an expert in Alabama

political history, political analysis, race relations, and historical analysis.” Tr. 528.

The plaintiffs asked Dr. Bagley to analyze the Senate Factors, which he did

according to “standards of historiography.” Doc. 206-19 at 2. He opined that “Senate

Factors 1, 3, 5, 6, 7, and 8 are present in Alabama in ways that substantially limit

equal access to the political process for Black voters.” Id.; see Tr. 531–32. Dr.

Bagley testified that he did not evaluate Senate Factor 2 or conduct a racially

polarized voting analysis, but he is aware that federal courts have found that racially

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polarized voting exists in Alabama. Tr. 532. At trial, Dr. Bagley explained his

understanding of the Senate Factors and the methods and sources he used in his

analysis. Id. at 529–31. Based on his research, he testified that “the political process

is not equitably open to [B]lack citizens of Alabama.” Id. at 532.

As to Senate Factor 1, Dr. Bagley opined that “Alabama’s recent history of

discrimination against Black citizens continues to the present day.” Doc. 206-19 at

4. Dr. Bagley traced the extensive history of federal judicial involvement in and

supervision of Alabama redistricting efforts from the 1960s—“the first decade that

the state was forced to reapportion the State Legislature for the first time”—to the

present. Tr. 533; see Doc. 206-19 at 5–14. He testified that in each decade, he

observed “a failure on the part of the Legislature to pass equitable plans.” Tr. 533.

Dr. Bagley testified that the 1990s were a particularly “pivotal point” in Alabama

because Black citizens were gaining seats in the state and federal legislatures due to

voting rights lawsuits and many White voters began switching their affiliation and

votes from the Democratic Party to the Republican Party. Id. at 536–38.

Dr. Bagley also testified about what he described as other instances of official

discrimination, such as Alabama’s closure of several driver license offices, which he

opined was done to serve political purposes and affected voters because of

Alabama’s requirement for voter identification. See id. at 541–42. He cited a finding

by the United States Department of Transportation “that the state’s closure of certain

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driver’s license offices had a discriminatory effect on [B]lack citizens in Alabama

in violation of Title VI of the Civil Rights Act.” Id. at 541–42; Doc. 206-19 at 15.

On cross examination, Dr. Bagley conceded (1) that the Department’s investigation

concluded with an agreement in which Alabama agreed to reopen closed offices but

did not admit liability, (2) that no court found that Alabama discriminated as part of

the license center closures, and (3) that he had no evidence that the state intentionally

closed license centers in areas with a heavy Black population. Tr. 592–93.

Dr. Bagley opined in his report that the Legislature’s redistricting plans “were

drawn behind the scenes by familiar characters including consultant Randy Hinaman

and noted ‘gerrymander whiz’ Thomas Hofeller.” Doc. 206-19 at 13. On cross

examination, Dr. Bagley conceded that he did not have evidence that Mr. Hofeller

drew the map but stated that “[h]e was just part of the process.” Tr. 589.

Dr. Bagley also opined in his report that Alabama “was forced to comply with

the National Voter Registration Act and jettison its practice of requiring

documentary proof-of-citizenship in order to register to vote.” Doc. 206-19 at 15

(citing League of Women Voters v. Newby, 838 F.3d 1 (D.C. Cir. 2016)); see Tr.

541–42. On cross examination, Dr. Bagley conceded that Alabama was not a party

to the lawsuit he cited in support of that proposition and that the court did not

determine that Alabama failed to comply with the National Voter Registration Act

or order Alabama to perform any remedial act. Tr. 595.

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As to Senate Factor 3, Dr. Bagley opined that Alabama has historically used

“the kinds of enhancing devices targeted under” this Senate Factor. Doc. 206-19 at

16. He evaluated Alabama’s use of at-large voting systems, anti-single-shot

provisions, and other voting laws and concluded that those practices made it more

difficult for Black citizens to vote or win election seats. See id. at 16–21; Tr. 542–

44. He testified that municipalities in Alabama have been compelled to get rid of at-

large voting schemes as recently as the 1980s. Tr. 543–44.

As to Senate Factor 5, Dr. Bagley opined that the Black population in

Huntsville and Montgomery are “more likely to live in poverty,” “more likely to be

unemployed,” “more likely to rely on food assistance benefits,” “less likely to have

broadband Internet service or any Internet access,” and “less likely to have health

insurance” than White Alabamians living in those areas. Tr. 546; see Doc. 206-19 at

21. He testified that similar racial disparities exist in the criminal justice system,

public transportation, and housing. Tr. 553–54. Dr. Bagley testified that there is no

way to account for these disparities “other than the state’s history of discrimination.”

Id. at 554.

Dr. Bagley also opined that there are racial disparities in education in the

Huntsville and Montgomery areas that are a result of the state’s history of

discrimination. Id. at 547. He opined in his report that thirteen of the schools listed

on the Alabama Department of Education’s “‘Failing Schools List’ for three (3) out

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of the past five (5) years” are predominantly Black public schools in the

Montgomery and Huntsville areas. Doc. 206-19 at 25. Of the 206 Alabama public

schools in 2023 deemed “priority” (a new designation for formerly-classified

“failing” schools), “181 were majority[-]Black student population,” and twenty-four

of those schools are Montgomery County Schools and eleven are Huntsville City

Schools. Id. A trial, he testified that Madison County (in the Huntsville area) is still

under a desegregation order and that the Decatur public school system remained

under a desegregation order until 2019. See Tr. 549; see also Doc. 206-19 at 23.

Dr. Bagley also opined about the town of Pike Road, which is just east of

Montgomery. Dr. Bagley opined that Pike Road was founded by citizens who

wanted to remove their children from integrated public schools in Montgomery and

is a “[W]hite flight community.” Id. at 611; Doc. 206-19 at 26. Dr. Bagley opined

that Pike Road’s acquisition of Georgia Washington Middle School from the City of

Montgomery was evidence of discrimination. See Doc. 206-19 at 27. Dr. Bagley

included in his report a quote from an article written by Patty Payne, a “city booster,”

which stated that leadership of Pike Road “sought to ‘preserve and protect what they

saw as their preferred way of life’ in the face of ‘encroachment’ from the City of

Montgomery.” Id. at 26. He opined that this sentiment demonstrates that “[W]hite

boosters wanted to establish a public school system that was not only majority-

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[W]hite in its student population, but also under majority-[W]hite, if not all-[W]hite,

leadership.” Id. at 26–27.

He also opined that Pike Road grew by annexing wealthy, predominantly

White neighborhoods. Id. at 26; see Tr. 616. At trial, he testified that he would

assume that Pike Road has also incorporated majority-Black neighborhoods “given

the growth in the [B]lack population” in the town. Tr. 616. And he conceded that the

Black and White share of the population is “pretty close” in Pike Road. Id. at 615.

As to Senate Factor 6, Dr. Bagley opined that racial appeals are present in

campaigns by Alabama lawmakers in the Montgomery and Huntsville areas. Doc.

206-19 at 4. He defined a “racial appeal” as “an appeal that would only be directed

at one race.” Tr. 554. He testified that “racial appeals drive racially-polarized

voting.” Id.

Dr. Bagley opined that political campaigns between the 1960s and 1990s

featured “thinly coded racial appeals” that have, “very recently, trended back

towards more overt racial appeals,” Doc. 206-19 at 30, that are expressed in “color

masked language,” Tr. 555. Dr. Bagley gave in his report examples of racial appeals

from current and former elected officials in Alabama: (1) Senator Tommy

Tuberville’s “repeatedly stated” “belief that [W]hite nationalists are not racist” and

that “‘inner-city’ teachers are lazy and unqualified”; (2) former Congressman Mo

Brooks’s complaints about “what he called a ‘war on [W]hites’”; (3) former

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Representative Will Dismukes’s lobbying efforts “to maintain state funding for a

Confederate memorial park,” “beseech[ing] members to channel anger over the

removal of Confederate monuments into ‘something constructive . . . our ancestors

did by rebuilding their homes and lives during the hateful years of Reconstruction,”

repeated use of “the phrase ‘Deo vindice,’ or ‘God will vindicate [the South],’” and

refusal to apologize for using that phrase because “it’s time for people to . . . take a

stand before our country is Gone with the Wind”; (4) former Alabama Supreme

Court Chief Justice Roy Moore’s 2017 acclamation of the antebellum period in the

South as “‘great at the time when families were united – even though we had slavery.

They cared for one another. People were strong in the families. Our families were

strong. Our country had a direction.’”; (5) former Senator Doug Jones’s 2017

“mailers to Black voters” arguing that his opponent, Roy “Moore, like George

Wallace, had fought to preserve segregation and had ties to hate groups like ku klux

klan” and was “‘not on our side’”; and (6) former Alabama Supreme Court Chief

Justice Tom Parker’s ad “boast[ing] about having ‘taken on and beaten the Southern

Poverty Law Center,’ a well-known Montgomery-based race advocacy

organization.” Doc. 206-19 at 30–33, 31 n.105; Tr. 555–61.

On cross examination, Dr. Bagley conceded that many of the racial appeals

he cited were not made in the course of a political campaign, but testified that he

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believed the Senate Factors allowed him to consider a politician’s comments made

at any time. See Tr. 618–20.

As to Senate Factor 7, Dr. Bagley opined in his report that “Black citizens of

Alabama currently hold no statewide offices[,]”6 and that “[o]nly three Black

candidates have held statewide office, and one of those was appointed.” Doc. 206-

19 at 33. He asserted that the Black candidates who have been elected to the

Legislature have won their seats only because of the intervention of federal courts

and the enforcement of voting rights laws. Id. at 4, 33; Tr. 561. He conceded on cross

examination that there are no Democrats currently holding statewide office in

Alabama, Tr. 621, and testified that White Democrats have held elected offices in

the last decade, id. at 634–35. He testified that there are no Black Senators serving

in the Huntsville area and there are two serving in the Montgomery area—both of

whom represent majority-Black districts. See Doc. 206-19 at 34; Tr. 561.

As to Senate Factor 8, Dr. Bagley opined that “[t]he most glaring example”

of the Legislature’s lack of responsiveness to Black citizens’ particular needs is the

Legislature’s recent refusal to draw a second majority-Black congressional district

in 2023 as required by a federal court order in the Alabama congressional districting

6
Dr. Bagley issued his report before Governor Ivey appointed Judge Lewis to the
Alabama Court of Civil Appeals. After trial, Governor Ivey appointed Judge Lewis
to serve as an Associate Justice on the Alabama Supreme Court, and he continues in
that service.
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litigation. Tr. 562; Doc. 206-19 at 34. He also opined that Alabama’s failure to

expand Medicaid, particularly in response to the COVID-19 pandemic, demonstrates

a lack of responsiveness to the needs of the Black community. Doc. 206-19 at 34–

35; see Tr. 562.

In his rebuttal report, Dr. Bagley responded to the reports of three defense

experts: Dr. Bonneau, Dr. Reilly, and Dr. Adam Carrington. Tr. 563; see generally

Doc. 206-21. Dr. Bagley addressed Dr. Bonneau’s opinion that polarized voting is

present in Alabama based primarily on political party, not race. See infra Part IV.B.3.

Dr. Bagley attacked Dr. Bonneau’s assertion that “all Democrats have a difficult

time winning elections in Alabama” as incorrect because Democrats do not have a

difficult time winning in majority-Black districts drawn in compliance with the

Voting Rights Act. Doc. 206-21 at 17. Dr. Bagley also opined that other races for

Alabama state offices—including the races of five White Democrats who won

elections during a twenty-four-year period when no Black candidate was elected to

statewide office—demonstrate that race is a significant factor in Alabamians’ voting

patterns. See id. at 16–17.

Next, Dr. Bagley addressed Dr. Reilly’s assertion that because the

overrepresentation of Black Alabamians in the prison system is no different than the

overrepresentation across the nation, overrepresentation is not a consequence of

racial discrimination. See infra Part IV.B.3. Dr. Bagley described Dr. Reilly’s

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assertion as “what-aboutism.” Tr. 565. Dr. Bagley also testified that evaluation of

the Senate Factors is “jurisdictionally focused” and does not involve other states. Id.

at 566.

Finally, Dr. Bagley addressed Dr. Carrington’s assertion that the partisan

realignment from majority-Democrat to majority-Republican in Alabama occurred

due to a variety of factors, such as economic or foreign policies, and not primarily

racial issues. See infra Part IV.B.3. Dr. Bagley opined that Dr. Carrington’s report

may offer insight on the “party realignment nationally” but does not “explain party

realignment specifically in Alabama,” Tr. 563, and that Dr. Carrington relied on

dated and national sources rather than contemporary sources relating to Alabama,

Doc. 201-21 at 5–6. Dr. Bagley testified that most scholars acknowledge that “race

has been the primary driving factor” behind party realignment even if they

acknowledge that it was not the only factor. Tr. 564.

Dr. Bagley also cited statistics demonstrating that a “substantial number” of

Black Alabamians support traditionally Republican stances on issues like abortion,

LGBTQ rights, and same-sex marriage, but these voters identify with the

Democratic Party, not the Republican Party. Id. at 564–65. He opined that “race” is

“what[] [is] left [a]s an explanatory factor.” Id. at 565.

ii. Dr. Traci Burch

The plaintiffs also rely on the testimony of Dr. Traci Burch about the totality

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of the circumstances. Dr. Burch earned a doctoral degree in Government and Social

Policy from Harvard University. Doc. 206-11 at 1; Tr. 662. She works as a professor

of political science at Northwestern University, where she has taught for seventeen

years, and is a research professor for the American Bar Foundation. Tr. 662–63; Doc.

206-11 at 1; see Doc. 206-12 at 1. Dr. Burch was compensated at a rate of $400 per

hour for her work in this case and her compensation did not depend on the substance

of her testimony. Doc. 206-11 at 2.

Dr. Burch has published books, chapters, and peer-reviewed articles on race,

political participation, and voter turnout. Id. at 1; Tr. 664–65. She has “served as a

peer-reviewer for several journals in political science” and is currently the editor-in-

chief of the Law and Social Inquiry journal. Tr. 661–65. At trial, she was qualified

without objection “as an expert witness in political and social science and political

behavior.” Id. at 667.

Dr. Burch testified principally about Senate Factor 5. See id. at 669. Dr. Burch

opined that socioeconomic disparities exist between Black and White Alabamians,

id., and the “large gaps in socioeconomic wellbeing” in Alabama “has been shown

to affect voting, such that people who are worse off on those factors tend to vote less

than people who are better off,” id. at 695–96.

The plaintiffs asked Dr. Burch to “analyze whether and to what extent there

are disparities in socioeconomic status between Black and White Alabamians that

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might affect voter registration and turnout” statewide and in Crenshaw, Elmore,

Limestone, Madison, Montgomery, and Morgan Counties. Doc. 206-11 at 1; Tr.

668–69. She found racial disparities in educational attainment, income,

unemployment, healthcare, access to transportation, access to internet, and

interaction with the criminal justice system, all of which she opined affect voting

participation. See Doc. 206-11 at 8–9, 12–13, 17–18, 22–23.

Dr. Burch opined that on average, Black Alabamians have a lower educational

attainment than White Alabamians and that the educational disparities “are caused,

in part, by historical and contemporary discrimination in education that make Black

Alabamians less likely to have graduated from high school and college relative to

White Alabamians.” Doc. 206-11 at 9; see Tr. 672, 674–78. She opined that

educational attainment is “the most important predictor of voting,” Tr. 670, and that

“the relationship between education and voting is a causal one,” Doc. 206-11 at 9.

Dr. Burch testified that Alabama’s history of segregated public schools still

impacts voting participation today. See Tr. 676. She observed that “in the 2020

general election, 38.6 percent of votes . . . were cast by people age 60 and older,

people who were at least school age in 1965, which means they were partially

educated during a time when Alabama still had segregated public schools.” Id.

Dr. Burch opined that lower educational attainment impacts other

socioeconomic factors that also affect voting rates for Black Alabamians. See id. at

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671. She observed that “[u]nemployment rates across all the counties [analyzed] and

statewide are higher . . . for [B]lack people in Alabama than for [W]hite people.” Id.

at 680. Similarly, she testified that the median household income in Black

households is lower than White households statewide and in every county she

analyzed. Doc. 206-11 at 12; Tr. 679. Data from the American Community Survey

shows that “the median household income for Black Alabama households is

$36,104, compared with $62,545 for White Alabama households.” Doc. 206-11 at

12. She opined that this disparity contributes to the racial disparities in family

poverty, access to internet, and access to transportation, Doc. 206-11 at 13; see Tr.

680–81, 684–85, which hampers voting participation due to an inability to vote

absentee, locate voting information, or travel to polling locations, see Tr. 684–87,

723.

Dr. Burch testified that in Alabama, “Black family poverty is nearly three

times as high as White family poverty,” Doc. 206-11 at 12, and that in Montgomery,

“family poverty rates are six times as high for [B]lack families than for [W]hite

families.” Tr. 681. Dr. Burch also noted that “a higher percentage of Black

households than White households receive SNAP benefits.” Doc. 206-11 at 13.

Dr. Burch testified that “statewide, Black Alabama households are more than

twice as likely to lack access to a vehicle at home than White households,” Doc.

206-11 at 13, and that in Montgomery, almost three times more Black households

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“don’t have access to a car” than White households, Tr. 685. She testified that access

to transportation affects voting participation. See id. at 685–86.

Dr. Burch also testified that Black Alabamians are in demonstrably worse

health than White Alabamians, and she gave as examples that (1) the infant mortality

rate for Black infants is nearly three times higher than the rate for White infants, and

(2) Black Alabamians have a shorter life expectancy rate than White Alabamians.

Tr. 682–83; Doc. 206-11 at 17. She testified that Black Alabamians are more likely

to be uninsured than White Alabamians statewide and in most counties she analyzed.

Tr. 682. She testified that “poor health can lead to lower voter turnout.” Tr. 683.

Dr. Burch also observed racial disparities in conviction and sentencing rates

in Alabama independent of “factors such as crimes severity, criminal history, and

demographic context.” Id. at 687–88; see id. at 690–91. She testified that racial

disparities in the criminal justice system directly affect voter turnout and that “14.7%

of otherwise-eligible Black people in Alabama cannot vote due to a recent felony

conviction.” Doc. 206-11 at 18; Tr. 690.

Dr. Burch also responded to the expert reports of two of the Secretary’s

experts, Dr. Reilly and Dr. Carrington. See Tr. 697. Dr. Burch addressed Dr. Reilly’s

opinion that “racial disparities between [B]lack and [W]hite Alabamians are the

result of cultural practices of [B]lack people rather than systemic discrimination.”

Id. She criticized Dr. Reilly for, among other things, failing to support his assertions

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with peer-reviewed evidence or address contrary literature. Id. at 697, 702–06.

Dr. Burch also addressed Dr. Carrington’s assertion that “racial gaps in

partisanship are shaped by preferences on economic policy, foreign policy, and

social issues,” not race. Id. at 707. Dr. Burch criticized Dr. Carrington for relying on

national data, and testified that the “scholarly consensus is that race is very important

to parties and partisanship and vote choice.” Id. at 707–08. She testified that her

research demonstrated that “race [was] very important for explaining th[e] shift[]

away from the Democratic party to the Republican party and the realignment in the

South,” Id. at 709; twice, she testified that race was the only factor driving that party

realignment, id. at 761–62, 773–74. She opined that voting patterns on other factors

identified by Dr. Carrington are “not disconnected from the movement of the parties

on racial attitudes.” Id. at 763. She opined that, for instance, “economic anxiety” and

how people experience it are “a function of race and racial attitudes” and “the racial

context in which [a person] live[s].” Id. at 764–65.

b. The Plaintiffs’ Lay Witness Testimony At Trial

The plaintiffs also offered the testimony of several lay witnesses about the

totality of the circumstances: Evan Milligan, Scott Douglas, Benard Simelton, Tari

Williams, and Mary Peoples.

Plaintiff Evan Milligan is a forty-three-year-old registered voter in District 26

in Montgomery. Tr. 453–54. Mr. Milligan grew up in Alabama and spent much of

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his childhood in the Montgomery area. See id. at 453–54. He testified about his

experiences seeing political rallies in Montgomery—some of which were

“inspiring” and some of which were “frightening.” Id. at 459. He recounted his

experience witnessing “a protest march for Ku Klux Klan chapters in” Alabama and

testified that he “actually s[aw] the hooded robes and . . . s[aw] some of the symbols

that [he] had heard some stories about from the elders in [his] family.” Id.

Mr. Milligan testified that District 26 in the Enacted Plan, the majority-Black

district in the Montgomery area, “includes most of the predominantly [B]lack

communities in Montgomery”—“southern, central, southwest, west side, and north

of Montgomery.” Id. at 472. He testified that the part of Montgomery included in

District 25 in the Enacted Plan “is basically the most predominantly [W]hite

neighborhoods in the eastern part of the city.” Id.

Mr. Milligan testified about racial disparities in the Montgomery area in

access to transportation and health care. See id. at 469–71. He also testified that the

Legislature is not responsive to the needs of the Black community, and described

how only Black legislators engaged with the social advocacy groups with which he

was involved. See id. at 460–62. Mr. Milligan testified that “political representation

gives . . . the [B]lack communities of Montgomery more access to leadership and to

people that want to bring . . . new investment to communities that have been under[

]resourced.” Id. 473.

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Scott Douglas works as the Executive Director of Greater Birmingham

Ministries. Id. at 485. Mr. Douglas testified that Greater Birmingham Ministries has

two forms of membership: (1) organizational membership, which primarily includes

churches, and (2) individual membership. Id. at 488. He identified members in

Montgomery County who are Black registered voters. Id. at 491; id. at 506–07. He

did not identify any individual members in Huntsville. Id. at 502. Mr. Douglas

testified that Greater Birmingham Ministries is participating in this litigation to

achieve “a more responsive State Senate.” Id. at 493.

Benard Simelton is a Black registered voter in Harvest, a city near Huntsville

located in Limestone County, where he has resided since 2002. Id. at 152–53. Mr.

Simelton is the president of the State Conference. Id. at 154. He testified that the

State Conference is a “suborganization” of the national NAACP and that

membership dues are shared by the local, state, and national NAACP. Id. at 156,

158. Mr. Simelton testified that within the State Conference, there are NAACP

college chapters, branches, and youth councils, id. at 156, and that every member of

a branch, chapter, or youth council in Alabama is a member of the State Conference

“by association,” id. at 158–59, 184–86. He explained that there is no way for a

person to join the State Conference without joining a local unit. Id. at 184–86. Mr.

Simelton testified that the State Conference has individual members who are Black

registered voters in the Huntsville and Montgomery areas. See id. at 161, 163, 174.

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Mr. Simelton also testified about the connection between the Huntsville and

Decatur. He testified that members of the Huntsville and Decatur NAACP branches

invite members of each other’s branches to events because the two units “share a

common interest of . . . ensuring . . . political and economic and social rights are

protected.” Id. at 164. Mr. Simelton also testified that he travels from Huntsville to

Decatur around three or four times a year. Id. at 165–66. He observed that there is

frequently heavy traffic between the cities, that Huntsville and Decatur share some

economic interests and industries, and that the local Huntsville news reports on

things happening in Decatur. Id. at 168–73.

Mr. Simelton testified that Black members of the Legislature have attended

NAACP Huntsville events to discuss issues relating to the expansion of Medicaid

and access to health care for Black Alabamians, but that he has not seen any White

legislators at those events. See id. at 165. He testified that the only elected officials

who have met with the NAACP about civil rights issues are Black Representatives.

Id. at 180.

During the course of Mr. Simelton’s testimony, counsel raised various

privilege objections to questions about the NAACP’s decision not to file a lawsuit

in connection with previous decennial census data. See id. at 204–08, 210–13. In this

ruling, the Court does not rely on any privileged information except in the limited

instances where privilege was waived at a deposition.

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Tari Williams works as the organizing director at Greater Birmingham

Ministries. Id. at 638. In that position, she works to restore voting rights to

Alabamians across the state. Id. at 639. She testified that Greater Birmingham

Ministries disproportionately serves Black men to restore voting rights. Id. at 640–

41. She testified that Greater Birmingham Ministries also offers workshops for

individuals with literacy issues and that the majority of individuals attending those

workshops are Black. Id. at 646. Ms. Williams testified that she has observed racial

disparities in Alabama in areas such as educational opportunities, transportation,

lack of access to internet, and ability to purchase food, clothing, or medications. Id.

at 647–48, 650–52. She testified that, in her opinion, the Legislature has not been

responsive to the needs of Black Alabamians. See id. at 649–50.

Mary Peoples is a Black voter in District 7 in Huntsville. Id. at 119–21, 147.

Ms. Peoples has resided in Huntsville “[b]asically all [of her] life.” Id. at 120. Ms.

Peoples attended a segregated elementary and high school. Id. at 122. She testified

that both of her children attended “[p]redominantly [B]lack” high schools in

Huntsville. Id. at 127.

Ms. Peoples attended Alabama A&M University, an historically Black

university. Id. at 122–23. She testified that the university is located on the north side

of Huntsville in a predominantly Black neighborhood. Id. at 129–30. She testified

that this area does not have “very much in common with Jackson County,” the

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county east of Huntsville, in terms of “educational level, educational opportunities

offered, job opportunities offered, [and the] skill set of the people that are there in

the community.” Id. at 130.

Ms. Peoples also testified about the connection between Huntsville and

Decatur. She testified that she traveled to Decatur for shopping, id. at 131, but stated

that she could not recall making the trip since 2020, id. at 148. She testified that the

local news in Huntsville reported on news in all cities surrounding Huntsville,

including Decatur, Athens, Arab, and Scottsboro and that it was not uncommon for

residents of those surrounding cities to commute to Huntsville to work at Redstone

Arsenal. Id. at 131.

c. Designated Deposition Testimony

The plaintiffs offered deposition testimony from two witnesses: Senator Jim

McClendon and Randy Hinaman.

Mr. Hinaman is the cartographer who drew the Enacted Plan, and he has

drawn Alabama’s districting plans for many years. See Doc. 235-2 at 15–16. He

drew the Plan based on 2020 census data. See id. at 21. He testified that “there was

a general agreement” that the two Committee chairs, Representative Pringle and

Senator McClendon, would divide the task of overseeing state legislative

redistricting. See id. at 24–25. “Senator McClendon would focus on the [state]

[S]enate map” and “Representative Pringle would focus on the state [H]ouse map.”

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Id. at 24–25.

Mr. Hinaman testified that he used Maptitude software to draw the Plan. Id.

at 29. He used as a starting point the state Senate map that was passed by the

Legislature as a remedial plan in 2017. Id. at 30. He met with various state Senators

and adjusted the maps based on population and other concerns. See id. at 31–32.

Mr. Hinaman testified that he balanced the Legislature’s redistricting

guidelines and did not prioritize any guideline over another. See id. at 58. He testified

that he did not “have race on the computer screen” and “drew the [Plan] race blind.”

Id. at 46. After he drew the Plan, he reviewed the racial data of the districts—that is,

the BVAP of the districts—to “mak[e] sure that they still looked like they would

function as a majority[-B]lack district.” Id. at 46–49. Mr. Hinaman did not review

CVAP data. Id. at 47–48.

Mr. Hinaman testified that no majority-Black districts were added in the Plan:

“if they were a majority[-B]lack district in 2017, the senate map, I think they were

[a] majority[-B]lack district in the 2021 map. I don’t think there were any . . .

additions.” Id. at 49. Mr. Hinaman made no changes to the Plan after reviewing data

related to race. Id. at 51, 55–56.

Mr. Hinaman testified that he believed all of the districts in the Plan are

reasonably compact. Id. at 59. He testified about changes he made to districts in the

Huntsville area based on either the Legislature’s redistricting criteria or

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conversations with Senators. Id. at 67–71. For example, he testified that he removed

a county split in District 1 so that it no longer encompassed portions of Madison

County, and that those portions of Madison County were mostly picked up by

District 7. Id. at 66–67.

Mr. Hinaman also testified about the districts in the Montgomery area. He

testified that the Plan places all majority-Black precincts except two into the

majority-Black District 26. Id. at 79. He testified that District 25 in the Plan extends

into the center of Montgomery to include two predominantly White precincts and a

portion of a third. Id. at 80–81. He testified that he drew District 25 “based on

discussions” with Senators. Id. at 81. But he testified that “when [he was] drawing

this map, [he] did not have race on, so [he] didn’t have the benefit of” the BVAP

data and did not consider race at any time when he was drawing the district lines. Id.

at 86–88.

Mr. Hinaman did not have a final version of the Plan until twenty-four hours

before the Committee’s meeting to vote on it. Id. at 40. He explained that the

deadline was tight because “the census data was six months late.” Id. To his

knowledge, no further changes to the Plan were made. Id. at 43.

Senator McClendon testified that when drawing the Plan, the Committee

started with the 2017 Plan. Doc. 235-1 at 22. He testified that they balanced all of

the criteria in the Legislature’s redistricting guidelines and that he did not instruct

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Mr. Hinaman to prioritize any criteria over another. Id. at 24. He testified that neither

race nor party was displayed on screen when Mr. Hinaman drew the Plan, and that

“[r]ace was not considered” in the process of drawing the districts. Id. at 28–29. He

also testified that he and Mr. Hinaman met with other Senators in part so that they

could tell Mr. Hinaman about communities of interest that they preferred to preserve

in their respective districts, although he did not recall specific discussions. See id. at

84–85.

Senator McClendon testified about the changes made to the districts in the

Huntsville area. He testified that the changes were made because of “an increase in

population” and “getting the Senators, the incumbents, happy with what they had to

deal with.” Id. at 68–69.

Senator McClendon testified about the racial makeup of districts in

Montgomery. He testified that they did not examine racial data when drawing the

Plan, but when he was asked if he had “any understanding of why . . . more than

twice in proportion percentage of [W]hite Montgomery residents are in District 25

as opposed to [B]lack residents,” Senator McClendon testified that he would

consider whether “the district is similar in shape, location, and the lines are similar

to where it was before” and “the way it has been historically.” Id. at 58–60.

Senator McClendon testified that he considered all of the districts in the Plan

reasonably compact. Id. at 60–61. With respect to the shape and compactness of

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some districts compared to others, he testified that “it’s really easy to draw very

handsome districts if you could just disregard the rest of the state.” Id. at 64.

Senator McClendon testified that many Alabamians were raised in a racist

political and social culture as evidenced by his attendance at an all-White segregated

high school. Id. at 81–82. He testified that based on his experience, Black voters in

Alabama tend to vote for Black candidates. Id. at 78. He testified that Black and

White voters in Alabama have differing opinions on racial issues in the state. See id.

at 79–80.

B. Secretary Allen’s Arguments

The Secretary’s position is that the plaintiffs did not demonstrate that the

Black population in the Huntsville and Montgomery areas is sufficiently large and

geographically compact to constitute a majority in additional Senate districts. See

Tr. 1654. He also argues that Proposed District 25 and District 7 in Illustrative Plan

3 were impermissibly drawn on the basis of race. See Tr. 1654, 1657–58; Doc. 251

¶¶ 113–57. The Secretary concedes that Black voters are “politically cohesive” and

that White Alabamians tend to vote as a bloc, but he argues that these voting patterns

are attributable to party politics, not race. Tr. 1661. The Secretary contends that the

Senate Factors do not support a finding of racially polarized voting and do not

support a Section Two violation. See id. at 1662–74.

1. Gingles I – Numerosity and Reasonable Compactness

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The Secretary asserts that the Illustrative Plans do not satisfy the first Gingles

precondition. He argues that Proposed District 25 is not reasonably configured, does

not comport with traditional districting criteria, and was drawn on the basis of race.

See Tr. 1660. He argues that District 7 in Illustrative Plans 1, 2, and 2A does not

satisfy the numerosity requirement because (1) CVAP data is unreliable, (2)

Eleventh Circuit precedent does not support a reliance on BCVAP to establish

numerosity, particularly when the BVAP is below fifty percent, and (3) Alabama

law does not permit the Legislature “to use anything other than census data.” See id.

at 1653–57. He acknowledges that District 7 in Illustrative Plan 3 is majority-Black

according to a BVAP measure but argues that the district is not reasonably

configured, does not comport with traditional districting criteria, and was

impermissibly drawn on the basis of race. See id. at 1657–60.

The Secretary relies on Dr. Sean Trende as his Gingles I expert. Dr. Trende

earned a Juris Doctor and a Master of Arts in political science from Duke University,

a Master of Applied Statistics from The Ohio State University, and a Doctor of

Philosophy in political science from The Ohio State University. Doc. 189-7 at 5, 33;

Tr. 934–35. Dr. Trende works as a visiting scholar at the American Enterprise

Institute, a lecturer at The Ohio State University, and a Senior Elections Analyst for

Real Clear Politics, which is a company that “provides online content, aggregating

polls.” Tr. 934; see Doc. 189-7 at 3. He has taught several courses at higher education

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universities, including a course on “Political Participation and Voting Behavior” that

“spent several weeks covering all facets of redistricting.” Doc. 189-7 at 5. Dr. Trende

has served as a party expert as well as a court-appointed expert in redistricting

litigation, see id. at 5–6; Tr. 939–40, although his testimony was found unreliable in

a few of those cases, see Tr. 1055–56, 1068.

At trial, Dr. Trende was admitted without objection “as an expert in

redistricting, political methodology, and survey methods.” Tr. 940–41.

a. Montgomery – Senate Districts 25 and 26

i. Numerosity

Dr. Trende did not contest that Proposed District 25 contains a majority BVAP

and offered only limited comments in his report on the compactness and

effectiveness of the district. Doc. 189-7 at 28–29. At trial, the Secretary conceded

he does not contest numerosity for that illustrative district. Tr. 1660; accord Doc.

251 ¶¶ 54–112 (addressing numerosity only for Senate District 7 in Illustrative Plans

1 and 2A).

ii. Reasonable Configuration

Dr. Trende did not analyze the compactness of Proposed District 25, Tr. 1079–

80, and he did not opine about the Reock, Polsby-Popper, or Convex Hull score of

Proposed District 25. Instead, he testified that Mr. Fairfax “ha[d] to pick up isolated

Black populations throughout the countryside” for Proposed District 25 to reach

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majority-Black status. Doc. 189-7 at 29; see Tr. 1021. And the Secretary argues that

Proposed District 25 is not reasonably configured because (1) it creates a new city

split in Prattville, and (2) it connects central Montgomery with portions of Elmore

and Crenshaw Counties without sufficient evidence that the district connects

communities of interest. Tr. 1660.

Dr. Trende provided the following dot density map to demonstrate the racial

demographics of the population in Proposed District 25:

Doc. 189-7 at 29.

Dr. Trende opined that “there is a heavily concentrated Black population in

Montgomery[, b]ut to achieve 50% +1 status, the district has to pick up isolated
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Black populations throughout the countryside.” Id. As for effectiveness, he testified

that Proposed District 25 would “perform at less than 50% BVAP.” Id.

b. Huntsville – Senate Districts 2, 7, and 8

Dr. Trende provided opinions on Illustrative Plans 1, 2, and 3. Dr. Trende did

not evaluate Illustrative Plan 2A in his reports but evaluated it “minimally” before

trial. Tr. 942–43. He testified that the changes to the proposed District 7 in

Illustrative Plan 2 and Illustrative Plan 2A were “minimal” and did not impact his

analysis of the compactness of the proposed District 7 in Illustrative Plan 2. See id.

at 943. Dr. Trende attacked Mr. Fairfax’s use of BCVAP data to draw District 7 in

Illustrative Plans 1 and 2, see id. at 950, and he opined that District 7 in Illustrative

Plan 3 is not reasonably compact and Mr. Fairfax “sacrifice[d] traditional

redistricting principles” to draw it, Doc. 189-8 at 33.

i. Numerosity

First, Dr. Trende opined that CVAP data does not establish that the versions

of District 7 that appear in Illustrative Plans 1, 2, and 2A are majority-minority

districts. See Tr. 1003–04; accord Doc. 189-7 at 7–8; Doc. 189-8 at 5. He testified

that in his experience, CVAP has been used only to “double check” the relevant

VAP, Tr. 951, and has never been used alone to establish numerosity, id. at 946, 951.

At trial, Dr. Trende acknowledged that he has relied on CVAP data in his

expert opinions in other redistricting cases, id. at 952–55, and that he previously

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opined that it could be a “useful metric for assessing a district’s actual electorate,”

id. at 1043. But Dr. Trende testified that he has never relied on CVAP data to

evaluate Gingles I and never where there was “a specific threshold that [needed] to

[be] cross[ed].” Id. at 953–55; see id. at 1043. He testified that his use of CVAP in

other cases is not inconsistent with his opinions in this case. Id. at 955.

At trial, Dr. Trende was careful to isolate his attack on CVAP data to a Gingles

I analysis. He testified that he was not opining that the American Community Survey

“is a bad source of information,” but that data from the Survey come with error

margins that must be taken into account if that data is used for a Gingles I analysis.

Id. at 956. Dr. Trende testified that CVAP point estimates cannot be divorced from

margins of error or confidence intervals, id. at 960, particularly when the point

estimate of a population is “very close to the [fifty] percent threshold, and that [fifty]

percent threshold is very important,” id. at 950; see Doc. 189-7 at 12. He testified

that “the accuracy of a poll will decline quickly as you examine smaller and smaller

census groups,” Doc. 189-7 at 13, and that CVAP estimates are based on a “fairly

small sample”—approximately ten people in each block group are surveyed each

year on average, Tr. 948.

Dr. Trende further testified about the uncertainty inherent in Mr. Fairfax’s

decision to split block groups between districts while relying on CVAP data to

estimate the BCVAP of his illustrative districts. Dr. Trende opined that the necessity

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of relying on a disaggregation method to draw an inference when splitting block

groups “can be consequential” and can be dispositive on whether District 7 in

Illustrative Plan 1 is a majority-Black district. Doc. 189-7 at 19–20; see Tr. 971. He

testified that Mr. Fairfax split approximately thirty block groups in District 7 on

average in the Illustrative Plans, Tr. 983, which required a disaggregation technique

to estimate how many members of the BCVAP are within the portion of the block

group located within the proposed remedial district, see id. at 972. Dr. Trende opined

that there is “no obviously correct” way to allocate portions of the BCVAP when a

block group is split, Doc. 189-7 at 21; Tr. 972, and that each method relies on

“untestable assumptions,” Tr. 978; Doc. 189-7 at 21. He testified that “[t]here[] [is]

no known way to calculate the error margin” for data that has been disaggregated.

Tr. 977. He also opined that relying on a point estimate from disaggregated CVAP

data requires “piling inference on top of inference” because the researcher is required

to disaggregate a quantity that is unknown because it is based on a sample estimate.

Doc. 189-7 at 18 (emphasis omitted); see Tr. 983–84. He further testified that this

uncertainty renders the use of the American Community Survey data—and thus

CVAP data—uncertain for Gingles I purposes. See Doc. 189-7 at 11–14.

To emphasize his point, Dr. Trende identified instances where the CVAP

point estimates were higher than the actual voting-age population. Tr. 976; Doc. 189-

7 at 18. He testified that “citizens of voting age . . . should be a subset of the Voting[-

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]Age Population,” Tr. 976, but he found that the CVAP point estimates for District

7 in Illustrative Plan 1 exceed the total voting-age population in ten block groups

using 2020 data, twelve block groups using 2021 data, and nine block groups using

2022 data, Doc. 189-7 at 17. Dr. Trende opined that these statistics demonstrate that

the data on which Mr. Fairfax relies is “wrong.” Doc. 189-7 at 17.

Dr. Trende opined that his “closest approximations” of the error margin of

American Community Survey data is “around 3%,” although he cannot “know

exactly what that error margin is.” Id. at 24. Dr. Trende acknowledged an error in

the code he used to calculate the error margin, which would change the result of his

calculation. Tr. 1059–60. But he testified that the error would not inflate the error

margin. Id. at 1060. He explained that a three percent error margin would bring the

BCVAP in Senate District 7 for Illustrative Plan 1 to “50% and values below.” Doc.

189-7 at 24; see Tr. 989–90. He concluded similarly for District 7 in Illustrative Plan

2. See Doc. 189-8 at 6.

Dr. Trende testified that the error margins associated with Mr. Fairfax’s and

Dr. Oskooii’s point estimates included estimates of fifty percent BCVAP and that

he had not seen “any estimate of an error margin that suggests that the confidence

interval would ever not include 50 percent plus 1 or would not include 50 percent.”

Tr. 980, 983. For example, he testified that Mr. Fairfax’s point estimate of 50.16

percent BCVAP for Illustrative Plan 1 is inadequate to establish numerosity because

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the confidence interval of this point estimate includes values “between [forty-eight]

percent and [fifty-two] percent” and within those numbers, “the confidence interval

does[] [not] give you any information about whether [the point estimate] is 48.1

percent or whether its 51.5 percent.” Id. at 988–89. He testified that the error margins

do not permit “meeting in the middle” of the confidence interval, id. at 989, and that

the margins are important in this case because the point estimate is so close to fifty

percent, meaning there is not a basis to confidently conclude that District 7 in

Illustrative Plans 1 and 2 include a majority BCVAP, id. at 989–90.

In his report, Dr. Trende opined that because Mr. Fairfax justified his use of

CVAP data based on a meaningful number of noncitizens present in the Huntsville

area, Mr. Fairfax should consider all data related to persons ineligible to vote,

including felony convictions. Doc. 189-7 at 23; Tr. 1001–02. Dr. Trende testified

that he had not removed individuals disqualified from voting based on a felony

conviction from the CVAP or VAP of an illustrative district. Tr. 1045. But he opined

that the consideration of other evidence about disenfranchisement could affect the

Gingles I consideration. See id. at 1002. For instance, Dr. Trende applied the

statewide statistic offered by Dr. Burch—that 14.7 percent of Alabama’s Black

population could not vote due to a felony conviction—to District 7 in Illustrative

Plan 1 and concluded that based on that statistic, the share of Black citizens eligible

to vote would drop below a majority. Doc. 189-7 at 23; Tr. 1002.

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ii. Reasonable Configuration

Dr. Trende opined that District 7 in Illustrative Plans 2 and 3 is not reasonably

configured. Doc. 189-8 at 8, 17; Tr. 1006, 1020–21. Dr. Trende did not challenge

the compactness of District 7 in Illustrative Plan 1. Tr. 1079. Dr. Trende testified

that he “tr[ied] to avoid testifying to the ultimate conclusion” on compactness

because that determination is in “the province of the courts.” Id. at 1006. Instead,

Dr. Trende testified that he opined on factors that “support a conclusion.” Id.

Dr. Trende testified that in evaluating compactness, he did not consider every

traditional redistricting principle. Id. at 1070–72, 1077–80. For instance, he did not

consider whether Huntsville, Decatur, and the Redstone Arsenal shared communities

of interest, id. at 1070, and explained his belief that such evidence is for the court’s

consideration, id. at 1072.

Dr. Trende testified that adherence to certain traditional redistricting

principles is required (such as equal population), and that “[s]ometimes a map is so

distorted that . . . the other things [do not] matter” and that “at a certain point, . . .

something becomes so badly compact that it becomes hard whatever other its virtues

to justify it as reasonably configured.” Id. at 1008. He testified that the fact finder is

the appropriate arbiter of whether the other traditional redistricting criteria tradeoffs

are permissible. Id.

Dr. Trende testified that, to a certain degree, his compactness analysis was

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based on “an eyeball test.” Id. at 1021; see id. at 1067. He testified that courts have

endorsed eyeball tests in a Gingles I analysis, and in any event, statistical

compactness measures, like the Reock score, require subjective analysis because

social scientists have not “established the bounds” of the statistic that include a

compact score. Id. at 1021–22; see id. at 1067–68.

Nevertheless, Dr. Trende evaluated statistical compactness measures in his

report. He opined that the version of District 7 in Illustrative Plans 2 and 3 are less

compact than District 7 in the Enacted Plan using the Reock score, Polsby-Popper

score, and cut edges score. Doc. 189-8 at 12–15, 24–26; see Tr. 1023–30. Dr. Trende

explained that the cut edges score is “a newer metric” where “all the census blocks

in a map can be thought of as being connected by lines or edges,” and the district is

conceptualized “as removing those edges until there are no edges connecting one

group to the rest.” Id. at 1027–28. He explained that “the fewer edges that [are]

remove[d], the more compact a map is thought to be.” Id. at 1028. Dr. Trende

testified that he used this metric because it was used in the Alabama congressional

districting litigation. See id.

Dr. Trende opined that for the districts in North Alabama that Mr. Fairfax

changed in the Illustrative Plans, the difference in the Enacted Plan scores and the

Illustrative Plans is “more pronounced.” Id. at 1023; see id. at 1027. He testified that

the “regional mean” is the more relevant metric because a mapmaker may “change

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radically” a district “and make its Reock score much worse,” but that the change

may be “covered up by [twenty] districts that do[] [not] get changed.” Id. at 1024.

For instance, he testified that District 7 in Illustrative Plan 1 “is made .03 points

more compact under the Reock score” but that District 3 “goes from a Reock score

of .59 to . . . .23, which is a substantial difference.” Id. at 1024–25.

Dr. Trende asserted in his report that Illustrative Maps 1, 2, and 3 rely on

irregular shapes to capture larger components of the Black population in District 7

and avoid areas with a higher White population. See Doc. 189-7 at 26; Doc. 189-8

at 3, 17–24. At trial, he testified that race predominated when Mr. Fairfax drew

District 7 in Illustrative Plans 2 and 3. Tr. 1031–33, 1039.

With respect to Illustrative Plan 3, Dr. Trende testified that “District 7 has

become very non-compact” and is one of the least compact districts statewide. Id. at

1028–29; see Doc. 189-8 at 25–26. He described District 7 in Illustrative Plan 3 as

resembling “a baby dragon with an overbite in flight.” Tr. 1011; Doc. 189-8 at 18.

The Secretary offered the following visual illustration of Dr. Trende’s description:

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Doc. 166 at 33.

Dr. Trende provided two maps that he opines when read together can

demonstrate a lack of compactness and the presence of race predominance. See Tr.

1013–14. First, Dr. Trende provided choropleth maps that reflect the percentage of

the Black population in an area. See id. at 1014. In the choropleth maps, Dr. Trende

shaded each precinct, or voting tabulation district (a census unit that generally aligns

with precinct lines, Doc. 189-7 at 10), by BVAP. See Tr. 1014, 1032. Dr. Trende

testified that choropleth maps do not illustrate the compactness of a district per se,

but rather reflect the “distinct groupings” of the Black population in the relevant

area. Id. at 1015. Dr. Trende offered the following choropleth map of District 7 in

Illustrative Plan 3:

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Doc. 189-8 at 27. Dr. Trende testified at trial that this map demonstrates that District

7 in Illustrative Plan 3 “extend[s] over into Lawrence County to take in most of the

[B]lack population there.” Tr. 1033. He testified that it “takes in every precinct with

a BVAP over [thirty] percent in the three counites before and almost every precinct

with a BVAP above [thirty] percent in Lawrence County.” Id. at 1033.

Dr. Trende took care to acknowledge the limitations of a choropleth map. One

limitation is that the map only shows percentages, which can be misleading if, for

instance, an area only has one resident but is reflected as one hundred percent White.

Id. at 1017.

Because of these limitations, Dr. Trende also provided dot density maps that

reflect “the distribution of individuals within the district.” Id. at 1014. One of the
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maps reflected the Black population around District 7 in Illustrative Plan 3:

Doc. 189-8 at 22. This map does not reflect the White population in the Huntsville

area; Dr. Trende acknowledged at trial that he “adjusted some of the maps that [he]

drew in response to some of the critiques that were made.” Tr. 942.

Dr. Trende testified that there are “at best” two or three Black populations

“stitched together” in the Huntsville area. Id. at 1020. He testified that District 7 in

Illustrative Plan 3 contains “multiple populations” in the Huntsville area “that are

sometimes separated by completely unpopulated areas or by some heavily [W]hite

areas in between.” Id. at 1021; see Doc. 189-8 at 20.

Dr. Trende testified that District 7 in Illustrative Plan 3 includes “every

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precinct with a BVAP over [thirty] percent” in Morgan, Limestone, and Madison

Counties and “almost every precinct with a BVAP above [thirty] percent in

Lawrence County.” Id. at 1033. He testified that if any of the precincts Mr. Fairfax

split when drawing District 7 in Illustrative Plan 3 are made whole, “the BVAP for

the district falls below [fifty] percent.” Id. at 1034. He opined that the areas with a

high Black population were “surgical[ly] cut[] out” and that “heavily [W]hite

precincts” were avoided. Id.

Dr. Trende also opined that Illustrative Plan 3 disregards traditional

redistricting criteria. He opined that the proposed District 7 increases the number of

county splits from nineteen in the Enacted Plan to twenty-one in Illustrative Plan 3,

and that four of those county splits are in District 7. Doc. 189-8 at 31–32. He also

testified that District 7 in Illustrative Plan 3 does not include any whole counties

within it. Tr. 1038. He opined that “the fourth county split is clearly driven by race”

and that he is “skeptical” that a majority-minority district can be drawn without

splitting the fourth county unless the mapdrawer is “overwhelming[ly] rel[ying] on

race.” Doc. 189-8 at 32.

Dr. Trende opined that District 7 in Illustrative Plan 3 “is one of only a handful

of configurations in the area that will get a mapdrawer to 50% +1 BVAP,” which,

he asserted, is indicative that race predominated Mr. Fairfax’s considerations when

drawing the district. Id. at 26–27; see Tr. 1035.

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2. Gingles II and III – Racially Polarized Voting

The Secretary concedes that “a majority of [W]hite voters . . . tend to support

Republicans, [and] a majority of [B]lack voters tend to support Democrats.” Tr.

1695; see Doc. 251 ¶ 159. He also concedes that “[i]f that is all it takes for there to

be racially[ ]polarized voting to satisfy Gingles 2 and 3, the[] [plaintiffs] have met”

their burden. Tr. 1695.

The Secretary “question[s]” the presence of White bloc voting in the

Huntsville and Montgomery areas because an effectiveness analysis performed by

Dr. Trende suggests that both Proposed District 25 and the three versions of the

proposed District 7 in the Illustrative Plans would elect a Black-preferred candidate

with a less-than-majority-BVAP. See Tr. 1695; Doc. 251 ¶¶ 171, 173–80; Doc. 189-

7 at 27–29; Doc. 189-8 at 17, 32.

Dr. Trende examined the effectiveness of District 7 in Illustrative Plans 1, 2,

and 3 in providing Black voters an opportunity to elect candidates of their choice.

Doc. 189-7 at 27–28; Doc. 189-8 at 17, 32. Dr. Trende opined that all three

Illustrative Plans would provide Black citizens an opportunity to elect candidates of

their choice at a very low BVAP given the “substantial amount of crossover voting”

in the specific area at issue. Doc. 189-7 at 27; see Doc. 189-8 at 17, 32; Tr. 1038–

39. Although he did not perform an effectiveness analysis for District 7 in Illustrative

Plan 2A, he testified that his opinions applied to that plan. See Tr. 1045–46. He

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acknowledged that lowering the BVAP in the proposed remedial district would

change the demographics of the district, and that he thus analyzed the effectiveness

of “a different district.” Id. at 1047.

With respect to Proposed District 25, Dr. Trende offered three sentences in

his report: “I also recalculated the effectiveness analysis for District 25. Here,

crossover voting is not as commonplace. Nevertheless, the district will still perform

at less than 50% BVAP.” Doc. 189-7 at 29. He also offered the following chart:

Doc. 189-7 at 29–30. At trial, he conceded that he did not evaluate whether the

current District 25, which has a twenty-nine percent BVAP, “has been performing

for [B]lack voters.” Tr. 1048.

The Secretary’s other experts conceded that racially polarized voting exists in

Alabama, but disputed the reasons for it. See, e.g., id. at 1476, 1541, 1544 (Dr.
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Bonneau); id. at 789–90 (Dr. Reilly); Doc. 189-5 at 5 (Dr. Hood); Tr. 1185 (Dr.

Carrington). The Court turns to those arguments in its discussion of the Secretary’s

position about the totality of the circumstances.

3. The Senate Factors

The Secretary also contends that the totality of the circumstances does not

support a finding of vote dilution. Doc. 147 at 28, ¶ 19. The Secretary argues that

what appears to be racially polarized voting may simply be partisan politics reflected

in the voting behavior of a particular racial group. See Tr. 1661–63. The Secretary

argues that “the record shows that party is more important than race,” id. at 1696, and

he relies on the expert opinions of Dr. Christopher Bonneau, Dr. Wilfred Reilly, Dr.

M.V. Hood, III, and Dr. Adam Carrington. He also relies on the testimony of several

lay witnesses to dispute assertions in Dr. Bagley’s report about the totality of the

circumstances.

a. The Secretary’s Expert Witness Testimony

i. Dr. Christopher Bonneau

Dr. Bonneau earned graduate degrees in political science from Ball State

University and Michigan State University and works as a professor of political

science at the University of Pittsburgh. Doc. 189-1 at 2; Doc. 189-2 at 1; Tr. 1395–

96. He has co-authored or -edited three books and several chapters and articles on

judicial elections. Doc. 189-1 at 2; see Tr. 1398. He has qualified as an expert witness

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in three other redistricting cases, Doc. 189-1 at 1–2; Tr. 1399–1400, although this

trial was his first time testifying as an expert in a legislative redistricting case, Tr.

1473. He was compensated at a rate of $350 per hour in this case and his

compensation did not depend on the substance of his testimony. Doc. 189-1 at 1. At

trial, Dr. Bonneau was admitted without objection as an expert in “American

political science, election analysis, and political research methodology.” Tr. 1401.

The Secretary asked Dr. Bonneau to (1) “ascertain whether Black candidates

in elections in Alabama perform worse than [W]hite candidates on account of their

race,” and (2) respond to the opinions of Dr. Liu and Dr. Burch. Doc. 189-1 at 1. On

the first task, Dr. Bonneau testified that he limited his analysis and opinions to the

question whether the race of the candidate matters to their success, and he did not

consider the race of the voter. Tr. 1529. When he explained his conclusions in this

case, Dr. Bonneau testified that it can be difficult to reach conclusions with a small

number of elections, but that “[y]ou have got to go to war with the data you have

got, not the data you want.” Id. at 1513.

In his report, Dr. Bonneau opined that voting in Alabama is primarily based

on political party, not race. See Doc. 189-1 at 4–5, 10–12, 17. Dr. Bonneau examined

statewide judicial and legislative elections and observed that approximately two-

thirds of Alabamians vote by “straight-ticket.” Id. at 4–5. He opined that “[t]he

prevalence of straight ticket voting means that most voters are voting for a political

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party, not a candidate.” Id. at 4; see Tr. 1424–26. At trial, he testified that this

evidence shows a “high degree” of Alabama voters vote for “teams, not players.” Tr.

1426.

Dr. Bonneau conceded that he did not consider straight-ticket voting patterns

by race of the voter, see id. at 1488, but opined that based on the relationship between

Black voting patterns in favor of Democratic candidates and “the high number of

Democratic votes that are cast via straight ticket, it would be likely that straight-

ticket voting is being used by both [W]hites and African-Americans,” id. at 1467–

68.

Dr. Bonneau also evaluated several state House of Representatives elections:

one when a White candidate (Philip Ensler) defeated a Black candidate (Malcolm

Calhoun) in the Democratic primary in a majority-Black district in 2022, and another

when a Black candidate (Kenneth Paschal) defeated a White candidate in a majority-

White district in 2021. Doc. 189-1 at 10–11; see Tr. 1419, 1421–22. He opined that

these elections “indicat[e] that race is not the driving force behind vote choice” and

that voters “make selections based on the candidate’s positions as well as their

political party affiliation.” Doc. 189-1 at 10–11.

Dr. Bonneau conceded on cross examination that these results are “rare.” Tr.

1519–21. And he acknowledged that Representative Paschal was “the first [B]lack

Republican to win election to the State House since Reconstruction.” Id. at 1421.

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Dr. Bonneau also testified about the success of a Black Republican: then-

Judge Bill Lewis, who was appointed to serve as a state circuit court judge by

Governor Robert Bentley and won re-election to that judicial seat unopposed. See

Doc. 189-1 at 11; Tr. 1422–23. He opined that the lack of opposition for then-Judge

Lewis’s re-election “suggest[s] that his race was not a factor in the election.” Doc.

189-1 at 11. On cross examination, Dr. Bonneau conceded that he did not draw any

conclusions about voting patterns from Justice Lewis’s judicial career because he

was first appointed and ran unopposed for the only seat in which he was elected. Tr.

1523.

Dr. Bonneau also opined about Alabama Supreme Court elections between

the 1980s and 2000. Id. at 1402–03; Doc. 189-1 at 3. He testified that both Black

candidates and Democratic candidates enjoyed little success in Alabama judicial

elections after the state became majority-Republican. See Doc. 189-1 at 3; Tr. 1408–

09, 1416. And he attributed the lack of success for those candidates in part to lower

campaign spending, see Tr. 1411–12; Doc. 189-1 at 7, which he believes is an

“important factor” in election outcomes, Tr. 1411.

In his report, Dr. Bonneau opined that “[i]n a multivariate regression model

including both the percentage of the registered [B]lack population and whether the

losing [Alabama] state supreme court candidate was [B]lack as independent

variables,” Black candidates “perform 4.3 percentage points better than White

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candidates.” Doc. 189-1 at 9. At trial, Dr. Bonneau admitted a coding error in his

data on this point (he coded certain uncontested elections as contested). See Tr. 1413.

He testified that when he corrected this error, his results flipped: the data indicated

greater success (as defined by vote share) for White Democrats than Black

Democrats. Id. at 1517. Dr. Bonneau testified that after the correction, only one

Black candidate would remain in the dataset for contested elections, and he would

not have done this kind of analysis “[b]ecause when you are looking at whether or

not the candidate was [B]lack as an independent variable, it’s basically a case study

of one person.” Id. at 1413–14.

Dr. Bonneau also criticized Dr. Liu for examining only biracial elections; Dr.

Bonneau argued that approach “assumes that there are differences based on the race

of the candidate” and fails to account for the role of political party. See Doc. 189-1

at 13, Tr. 1459–60, 1543. Dr. Bonneau testified that based on his review of the data,

“the explanation for the results in Alabama are far more consistent with political

party” than the race of the candidate. Tr. 1460, 1543; see Doc. 189-1 at 17.

Dr. Bonneau also criticized Dr. Liu for failing to analyze an election in his

initial report that controlled for race or party. Tr. 1420. He testified that Dr. Liu’s

analysis of nonpartisan elections may not effectively control for party because voters

can know the partisan affiliation of a candidate even when the candidate does not

run on a party platform. See id. at 1469. Dr. Bonneau testified that he did not evaluate

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whether the candidates in the mayoral races Dr. Liu evaluated were correlated to a

party. See id. at 1504–05.

Finally, Dr. Bonneau testified that ecological inference “techniques are widely

used by courts” for a racially polarized voting analysis, although “they have some

significant limitations.” Doc. 189-1 at 11. He testified that he was unaware of any

empirical methods that would better estimate racially polarized voting than

ecological inference. Tr. 1474.

ii. Dr. Wilfred Reilly

Dr. Reilly holds a law degree from the University of Illinois College of Law

and a doctoral degree in political science from Southern Illinois University. Doc. 189-

9 at 1, 27; Tr. 776. He works as a professor of political science at Kentucky State

University, where he has taught for approximately nine years. Tr. 776; Doc. 189-9 at

1. His research focuses on race relations, public law, political theory, and the

statistical examination of gaps between racial groups. See Doc. 189-9 at 1–2; Tr. 777–

79. He has published four books, four book chapters, and numerous articles. Doc.

189-9 at 1–2, 28–34; see Tr. 778.

Dr. Reilly’s only experience as an expert witness other than this case is the

testimony he offered in the Alabama congressional redistricting litigation. Tr. 817. In

that litigation, the three-judge district court “assign[ed] very little weight to Dr.

Reilly’s testimony” because (1) his “opinions [did] not focus on and [were] not about

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Alabama,” (2) he “repeatedly offered opinion testimony without support,” and (3) his

“demeanor at trial” was “dogmatic, defensive, and deliberately confrontational” and

“left [the district court] with the impression that his goal was to be evocative . . . rather

than reliable and persuasive.” Singleton, 2025 WL 1342947, at *151.

Dr. Reilly was compensated at a rate of $500 per hour for his work in this case

and his compensation did not depend on the substance of his testimony. Doc. 189-9

at 2. At trial, Dr. Reilly was admitted without objection “as an expert in political

science, statistics, race relations, and a study of the impact of racial discrimination on

socioeconomic gaps.” Tr. 779–80.

Dr. Reilly opined in his report that the assertion that Alabama “is experiencing

racially polarized voting . . . due to Alabama-specific past or contemporary racism”

is “incorrect.” Doc. 189-9 at 3. Dr. Reilly agreed that Black and White Alabamians

vote differently, but testified that “if Alabama is racially polarized than so is every

other large state in the [United States].” Id. at 7; Tr. 830. He acknowledged Dr. Liu’s

observation that “[W]hites almost never vot[e] for ‘Black[-]preferred candidates . . .’

and Blacks almost never vot[e] for ‘[W]hite preferred candidates[,]’” but stated such

an outcome can be explained by party affiliation. Doc. 189-9 at 4. Dr. Reilly opined

that “race [is] totally non-predictive in a simple regression which incorporates

candidate partisanship.” Id.

At trial, he testified that Black voters demonstrated a “[m]assive preference for

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Democrats” in the elections analyzed by Dr. Liu and that White voters preferred

Republicans. Tr. 789. He also opined that this trend is consistent across the country.

See id. at 791.

Dr. Reilly offered opinions on socioeconomic disparities in Alabama based on

national data. See Doc. 189-9 at 7–25; Tr. 824. He testified that he classifies the causes

of disparities into three schools of thought: (1) “culturalism,” which considers various

cultural factors as the cause of disparities, (2) “hereditarianism,” or “[g]enetic

determinism,” which considers genetics as the cause of disparities, and (3) “racialist,”

which considers racism as “the only possible cause[]” of disparities. Tr. 780–81. Dr.

Reilly testified that he adheres to the “culturalist” school of thought and believes that

“multiple variables influence performance” on socioeconomic measures. Id. at 782.

Dr. Reilly conceded that socioeconomic disparities exist between Black and

White Alabamians, id. at 822, but opined that many of the socioeconomic gaps in, for

example, “voter turnout, test scoring, partisan voting by race, and incarceration . . .

can be observed literally everywhere in the country, correlate little if at all with current

or past rates of bias, and seem to be smaller/better in Alabama than in most other

places.” Doc. 189-9 at 25.

Dr. Reilly observed that “[W]hite students perform better educationally than

Black students in every single state” and that “the size of contemporary group gaps in

SAT scoring and college attendance correlates only slightly with documented levels

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of historical racism.” Id. at 9; see Tr. 795, 825. He observed that Asian American

students outperformed White students on average in his evaluation of 2019 SAT

scores. Tr. 797–98; Doc. 189-9 at 10. Dr. Reilly testified that “Nigerian Americans”

are “the best-educated group in the United States.” Tr. 827. He conceded that he was

“[n]ot sure” that the source supporting this opinion was included in his report and that

the article cited for the proposition in his report—a 2008 news article—was not peer-

reviewed, Tr. 827–28; see Doc. 189-9 at 13 n.22, but stated that “[t]he performance

of Nigerian Americans . . . in the USA is undisputed,” Tr. 844.

Dr. Reilly clarified that he does not believe that disparities in education rates

are a result of genetic traits, Tr. 798; see id. at 781–82, but, in accordance with his

“culturalist” view, believes they could be caused by cultural factors like “[r]eading

books,” “study time,” “parental expectations,” income, and whether the individual is

an athlete. Id. at 798–99, 801.

Dr. Reilly testified that there is a racial disparity in voter turnout and

registration rates in Alabama, id. at 822, but opined that it is not a “statistically

significant” gap, Doc. 189-9 at 15. He also opined that the disparity is not the result

of racial discrimination, and he attributed it to age, fatherlessness, and felon

disenfranchisement. See Doc. 189-9 at 7–15; Tr. 802–05. He testified “the modal

average age for a [W]hite American is 58, [and] [B]lack American is 27,” that “there

are very significant differences in voting by age,” and that a racial group that has, on

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average, a lower modal age, “[i]t would tend to suggest that” the group would have a

lower turnout. Tr. 803–04. He also testified that “[f]atherlessness, to put [it] bluntly,

correlates very highly with crime, with . . . civic non-participation, with dropping out

of school, with most negative variables.” Id. at 804. And he testified that individuals

with certain felony convictions cannot vote, and that “African-Americans” are more

likely to have such convictions “than [W]hites, [W]hites more than Asians.” Id. at

805.

Dr. Reilly also conceded that Black Alabamians are overrepresented in

Alabama prisons, but opined that “there is no reason to think that” the difference

between non-Black Alabama citizens and Black citizens who cannot vote due to a

felony conviction “is due to bigotry or racism.” Doc. 189-9 at 14. He observed that

the “reported [Black] violent crime rate, across Alabama and the rest of the United

States, is at least 2.4 times the [W]hite [rate].” Id. at 14–15. He also testified that racial

disparities in incarceration rates “do not track with the measures of historic rac[ism].”

Tr. 807. He testified that a 2021 survey showed that Alabama had the second smallest

gap in incarceration rates between White and Black citizens nationwide. See id. at

809.

Dr. Reilly acknowledged that disparities in education levels could be caused by

racism, but he opined that this “God-of-the-gaps” theory is a “fallacy in debate”

because the argument could “go on indefinitely.” Id. at 794–95. He also stated that

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the voter registration gap does not “trend in the temporal direction which one would

expect were racism a primary proximate cause here” as “the smallest registration gap

on recent record was documented in the year ‘closest to the past (2018).’” Doc. 189-

9 at 15.

On cross examination, Dr. Reilly conceded that he is “not a professional expert

on Southern politics” and that his academic work did not focus on Alabama politics.

Tr. 817–18. He testified that he is “not a historian” or “an expert on Alabama history.”

Id. at 817. And he testified that he did not evaluate Alabama-specific data to form his

opinions. See id. at 824–27.

Dr. Reilly also testified to various matters concerning his credibility. For

instance, he confirmed that he posted on his social media accounts that “many/most

people are banal idiots,” id. at 839, and that “every prominent Black Lives Matter

martyr was a scumbag criminal,” id. at 840.

Dr. Reilly also confirmed that he posted that “humans still have the exact same

taste and drives that we did when we were raping and eating Neanderthals,” and that

“people in the hood in particular understand these tastes and drives.” Id. at 839–40.

He testified that this characterization was based on the lack of “formal training in

gentleese” in the “hood” and that it was not “genetic or anything like this.” Id. at 839–

40. He also testified he did not mean the term “hood” in “an entirely racial sense” but

considered it to be “[a] lower income formerly red line neighborhood.” Id. at 847. Dr.

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Reilly appeared surprised that the plaintiffs “pa[id] a lot of attention to [his] social

media” and said his social media account does not constitute “peer-reviewed

research.” Id. at 840–41.

iii. Dr. M.V. Hood, III

Dr. Hood earned graduate degrees in political science from Baylor University

and Texas Tech University. Doc. 189-6 at 1; Tr. 1215. He works as professor of

political science at the University of Georgia, where he has served on the faculty for

more than twenty years, Doc. 189-5 at 2, and directs the Survey Research Center at

the School of Public and International Affairs there, Tr. 1216; Doc. 189-6 at 1. His

work focuses on electoral politics, racial politics, election administration, and

Southern politics. Doc. 189-5 at 2; see Tr. 1216. He has co-authored two books and

published numerous articles in peer-reviewed journals. See Doc. 189-6 at 1–6. Dr.

Hood has qualified as an expert in numerous redistricting cases, including in

Alabama. Tr. 1217–18. He was compensated at a rate of $400 an hour for his work

and his compensation did not depend on the substance of his testimony. Doc. 189-5

at 2.

At trial, Dr. Hood was admitted without objection as an expert in “electoral

politics, racial politics, election administration, and southern politics, . . . empirical

social science research, and for the matters discussed in his report.” Tr. 1218.

First, Dr. Hood testified about Black voting patterns. See id. at 1219; Doc. 189-

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5 at 2. Dr. Hood compared Black voting patterns in Alabama to those of twenty other

states with a Black population of ten percent or more. Doc. 189-5 at 3. Dr. Hood

selected states with that percentage of a Black population because “if a state had less

than [ten] percent African-American population, . . . [he] would be concerned that

[there] would [be] too few African-American respondents in the survey data to be

able to draw any kind of conclusive inferences.” Tr. 1219.

Dr. Hood opined in his report that on average, Black support for Democratic

candidates—in Alabama and the twenty other states considered—exceeds ninety

percent. Doc. 189-5 at 3, 5. He testified that “[t]his pattern transcends both geographic

region (South versus non-South) as well as [political] party control (Democratic

versus Republican) at the state-level[,]” id. at 5; see Tr. 1225, and that Black voters’

support of Democratic candidates is “monolithic,” Tr. 1225. Dr. Hood did not

evaluate the White electorate in any national or Alabama election, Tr. 1241–42, and

did not perform a racially polarized voting analysis, id. at 1226. He opined that “the

primary explanatory factor [in Alabama voting patterns] appears to be ideological

congruence between the voter and the candidate.” Doc. 189-5 at 21. Dr. Hood

acknowledged that he did not perform a racially polarized voting analysis. See Tr.

1226.

Second, Dr. Hood considered racial disparities on various sociodemographic

factors. See id. He “analyze[d] racial disparity rates between [W]hite and [B]lack

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residents in Alabama” and compared Alabama’s rates with twenty other states. Doc.

189-5 at 7; see Tr. 1226. He testified that racial disparities exist in Alabama and the

twenty comparison states on factors such as education, healthcare, poverty, Internet

access, and incarceration. See Tr. 1227–31; Doc. 189-5 at 7, 17–20. Dr. Hood opined

that “[f]or ten of the thirteen measures analyzed ([seventy-seven percent]), the

disparity rate for Alabama is below the average disparity rate calculated for the

comparison states” and never “constitute[d] the maximum value among the states

analyzed.” Doc. 189-5 at 20. He did not evaluate the racial disparities specific to the

Huntsville and Montgomery areas. Tr. 1251.

Third, Dr. Hood considered Dr. Ben Carson’s presidential campaign. Doc. 189-

5 at 20. He testified that Alabama provided Dr. Carson the second highest level of

support that he received in the 2016 election. Tr. 1233; see Doc. 189-5 at 20. Dr. Hood

conceded that he did not consider the racial demographics of the voters in that

presidential election and that he did not evaluate the support for Dr. Carson specific

to the Huntsville and Montgomery areas. Tr. 1252.

Fourth, Dr. Hood considered White support for minority Republican

candidates. Doc. 189-5 at 21. He testified that, based on national data, “[W]hite

conservatives were more than willing to support minority Republican candidates.” Tr.

1234; see id. at 1253–54. He opined that “ideology trumps race in the case of [W]hite

Republicans and their support for minority GOP nominees.” Doc. 189-5 at 21.

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To examine these findings in Alabama, Dr. Hood discussed the election of

Representative Paschal, a Black Republican, from a majority-White district. Doc.

189-5 at 21; Tr. 1235. On cross examination, Dr. Hood conceded that Representative

Paschal was the first Black Republican elected to the Legislature since

Reconstruction; that his district is in Shelby County, which does not overlap with

the districts at issue in this litigation; and that Representative Paschal’s election is

“[t]he only example of [W]hite voters electing a [B]lack Republican candidate in

Alabama” included in his report. Tr. 1254–56. He also conceded that he did not

analyze White support for minority candidates in the Huntsville or Montgomery

areas. Id. at 1256.

Fifth, Dr. Hood examined whether Black political metrics have changed over

time in Alabama. He studied the number of Black elected officials from the passage

of the Voting Rights Act in 1965 to the present day. See Tr. 1236; Doc. 189-5 at 22.

He testified that there were no Black members of the Legislature in 1965, three Black

Senators and thirteen Black Representatives in 1981, and there are currently seven

Black Senators and twenty-six Black Representatives. Doc. 189-5 at 22; see Tr. 1237.

Dr. Hood also studied Black voter registration rates. He observed that in 1965,

23.5 percent of eligible Black voters were registered to vote, and the number of

eligible Black voters who were registered to vote increased to 95.2 percent in 2024.

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Doc. 189-5 at 23; Tr. 1237. He thus opined that “there have been significant gains for

[B]lack Alabamians across the last six decades.” Doc. 189-5 at 23; Tr. 1238.

On cross examination, Dr. Hood agreed that of the thirty-three Black Alabama

legislators, thirty-two are from majority-Black districts (with Representative Paschal

as the sole exception). See Tr. 1258–59. And Dr. Hood acknowledged that “[a]t least

some of the changes in [B]lack representation in Alabama over the last few decades”

are due to “[l]itigation that created majority-[B]lack districts.” Id. at 1259–60.

iv. Dr. Adam Carrington

Dr. Carrington earned graduate degrees in political science from Baylor

University and now works as an associate professor of political science at Ashland

University (formerly, he worked at Hillsdale College for ten years). Doc. 189-4 at 1;

Tr. 1128–29. His research focuses on “American political institutions in their

historical context, including the judiciary, the presidency, and political parties” and

he has published a book, book chapters, and articles. Doc. 189-3 at 1; Doc. 189-4 at

1–3; see Tr. 1129–30.

This case was Dr. Carrington’s first time testifying as an expert witness. Tr.

1131. He later testified at the trial in the Alabama congressional districting cases. See

Singleton, 2025 WL 1342947, at *118–20. The three-judge district court “assign[ed]

no weight” to his testimony in those cases because Dr. Carrington had “limited

familiarity with Alabama history and politics” and he made “little to no effort to learn

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about Alabama before opining about party affiliations here.” Id. at *151. Dr.

Carrington was compensated at a rate of $300 per hour for his work in this case and

his compensation did not depend on the substance of his testimony. Doc. 189-3 at 1.

The Secretary offered Dr. Carrington “as an expert in political science, political

parties[,] and the partisan shift in the American South.” Tr. 1133–34. At trial, the

plaintiffs re-raised the arguments presented in their motion in limine to preclude Dr.

Carrington’s testimony. See id. at 1134. In that motion, the plaintiffs argued that Dr.

Carrington was unqualified to offer expert opinions on “any subject relevant to this

case.” Doc. 183 at 5. They argued that he is unqualified to testify about “the historical

and political development” of “the racial realignment of Alabama voters in the mid-

to-late [Twentieth] [C]entury” because his “expertise lies in [Nineteenth] Century

political institutions.” Id. at 3–5; see Tr. 1134–35.

The plaintiffs also argued that Dr. Carrington’s testimony is not helpful. See

Tr. 1134–35; Doc. 183 at 8–13. They argued that Dr. Carrington “fail[ed] to perform

any localized analysis” that would help the Court evaluate “whether Black voters in

the Huntsville and Montgomery regions have less opportunity to participate in the

political process.” Doc. 183 at 10–13. The Court heard argument on the motion

pretrial and carried it with the case.

Dr. Carrington acknowledged at trial that none of his written work has focused

on Alabama in the twentieth century. Tr. 1132. He also acknowledged that he is not

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an expert in Alabama politics or history, but testified to his belief that he did not need

to be such an expert to provide the opinions he offered in this case. Id. at 1132–33.

The Secretary argued that Dr. Carrington has “a deep expertise in the American

institution of political parties,” Doc. 203 at 8, and that his study of political parties

qualifies him “to reach conclusions about whether the causes for the partisanship in

Alabama parallel in important respects the causes for the partisan shift in the South

more broadly,” Tr. 1135; see Doc. 203 at 13–14.

At trial, the Court admitted Dr. Carrington’s testimony over the plaintiffs’

renewed objections because Dr. Carrington was “candid about his limitations” as an

Alabama-specific expert. Tr. 1135; see Doc. 203 at 13–14.

Dr. Carrington “sought to provide a fuller context for how Alabamians in 2024

come to identify with and vote for one of the two major political parties.” Doc. 189-

3 at 29. Dr. Carrington testified that the campaigns of former Alabama Governor

George Wallace show the diminishing power of race in Alabama politics as early as

1971. See Tr. 1197–98. Dr. Carrington testified that in 1968, Wallace’s “anti-

integration viewpoint helped him attract supporters among [W]hite voters in Alabama

when he ran for president,” and that “at his 1971 inauguration,” he declared “that the

government of Alabama is for all people, [W]hite and [B]lack.” Id. at 1197–98. Dr.

Carrington acknowledged that Wallace might have been “faking that,” but said that

nevertheless, those statements show that “he already starts to moderate on those

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questions as early as the early ’70s.” Id. at 1198.

Dr. Carrington testified that he does not dispute the existence of racially

polarized voting in Alabama, only the reasons why voting is racially polarized. Id. at

1185. He testified that he did not deny “that race continues . . . to be a factor of some

degree,” but stated that it “is an oversimplified story to say that it is the dominant or

overwhelming [factor] . . . behind all the other views.” Tr. 1160–62; see Doc. 189-3

at 30.

At trial, Dr. Carrington testified about the history of the realignment of the

South from majority-Democrat to majority-Republican. See Tr. 1136–56. He testified

that the shift was not solely or primarily caused by race, but instead was caused by

differences in factors such as economics, foreign policy, and social issues like

religious ideology or abortion. Id. at 1136–37; id. at 1160–62; see generally Doc. 189-

3. In making these determinations, Dr. Carrington analyzed factors that influenced

Southern White voting patterns, Tr. 1157; id. at 1188, and did not analyze Black

voting patterns, id. at 1190. He testified that Alabama patterns aligned with Southern

patterns, but he did not study Alabama elections. See id. at 1189–90, 1212.

Dr. Carrington also testified about shifts in Southern voters who identify as

religious; he testified that, although both parties have voters who identify as religious,

the Democratic Party is “seen as a more natural home to the more secular voters,” and

that the Republican Party would therefore seem more attractive to religious Alabama

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voters. Id. at 1152. He opined that race does not trump religion among Alabama

voters, opining instead that voters’ positions on social issues, such as abortion or

LGBTQ issues, are the driving factors behind party affiliation. See id. at 1153–55.

On cross examination, Dr. Carrington conceded that he did not evaluate the

religious beliefs or observance of Black voters or its effect on Black citizens’ voting

patterns. Id. at 1207. He acknowledged that a large percentage of Black Alabamians

identify as Christian and that between forty-seven and forty-eight percent of Black

Alabamians oppose abortion in most cases. Id. at 1207–08. He did not evaluate the

views of Black Alabamians who identify as Christian on matters relating to LGBTQ

issues, id. at 1208, or the differences in the voting patterns of Black and White

Christians even when those voters share similar views on these issues, see id. at 1209.

Dr. Carrington also testified about racial appeals in several national campaigns.

See id. at 1178. On cross examination, he conceded that, aside from his responses to

statements in Dr. Bagley’s report, he did not evaluate any recent campaign

advertisements of Alabama politicians and did not reach any conclusions regarding

whether Alabama campaigns are characterized by racial appeals. See id. at 1176–77.

Dr. Carrington conceded that former Congressman Brooks’s reference to a “war on

[W]hites” may have been an “attempt[] to appeal to [W]hite voters.” Id. at 1182–83.

On cross examination, Dr. Carrington also testified about matters going to his

credibility and the reliability of his opinions. Dr. Carrington was asked about two

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Alabamians with nationally prominent roles in the civil rights movement, Judge

Robert S. Vance and attorney Fred Gray. See id. at 1192, 1203. In both instances, Dr.

Carrington first claimed that he knew who they were, but then admitted that he could

not offer any information about the relevant person or their work. See id. at 1192,

1203.7

Dr. Carrington also testified about an opinion piece he published that

commented on legal issues in this case—the piece addressed the Supreme Court’s

decision in the congressional redistricting litigation, in which that Court affirmed the

finding of the three-judge court that Alabama’s congressional districting plan likely

violated Section Two. See id. at 1209–10. Dr. Carrington called the Supreme Court’s

affirmance a “missed opportunity” for the Supreme Court to follow pre-1982 Voting

Rights Act precedents. Id. at 1210–11.

7
For the reader’s background information, Mr. Gray was one of Alabama’s
first Black state legislators and is a Montgomery civil rights lawyer known for major
civil rights litigation, including his representation of Rosa Parks, Martin Luther
King, Jr., and the victims of the Tuskegee Syphilis Study. See Barclay Key, Fred
Gray, Encyclopedia of Alabama (Apr. 15, 2008),
https://encyclopediaofalabama.org/article/fred-gray/.
Judge Vance served on the United States Court of Appeals for the Eleventh
Circuit and was the last federal judge assassinated in connection with his judicial
service. See Michael Megelsh, Robert Smith Vance, Encyclopedia of Alabama
(February 13, 2024), https://encyclopediaofalabama.org/article/vance-robert-smith/.
He too participated in major civil rights litigation as a lawyer. The federal courthouse
where the trial of this case was held is named for him, and a bust and portrait of him
appear in the lobby.
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b. The Secretary’s Lay Witness Testimony

The Secretary also offered the testimony of several lay witnesses to dispute

various assertions in Dr. Bagley’s report about the totality of the circumstances:

Colonel Jonathan Archer, Dr. Karen Landers, Ms. Susan Copeland, Mr. Doyle Fuller,

Dr. Patricia Payne, and Mr. Joshua Roberts.

Colonel Jonathan Archer serves as the Director of the Department of Public

Safety at the Alabama Law Enforcement Agency (“ALEA”). Id. at 889. Colonel

Archer previously served as the Chief of the Driver’s License Division of ALEA,

which is the agency “tasked with credentialing and examining applicants for

Alabama driving privileges.” Id. at 891.

Colonel Archer testified about Dr. Bagley’s assertion that the closures of

certain driver’s license offices in 2015 was a recent act of official discrimination.

See Doc. 206-19 at 15. Col. Archer testified that certain driver’s license “field

offices” were closed at that time due to financial and staffing concerns. Tr. 898. He

testified that ALEA decided that “it would be better to suspend operations in those

offices so th[e] examiners [at those locations] could remain at the district offices to

serve more customers.” Id. The suspension lasted for thirty days. Id. at 904. Colonel

Archer stated that the closed offices affected 2.1 percent of total transactions

(including the transactions of the county partner offices) and 4.43 percent of ALEA

transactions. Id. at 901–02. He conceded that ALEA reopened the offices as part of

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a memorandum of understanding with the United States Department of

Transportation that did not admit liability for discriminating against Black

Alabamians. Id. at 906, 920.

Dr. Karen Landers works as the Chief Medical Officer of the Alabama

Department of Public Health (“the Department”), and she testified about the medical

services offered to minority populations in Alabama. Id. at 1267, 1271–76, 1287–88,

1297. Dr. Landers has worked as a medical doctor in private practice since 1980 and

has worked for the Department since 1982. Id. at 1267. She became the Chief Medical

Officer of the Department in 2022. Id.

Dr. Landers testified about the Department’s response during the COVID-19

pandemic. She testified that the Department engaged in outreach efforts to the

minority community during the pandemic, id. at 1278, offered medical testing and

care in sixty-six out of sixty-seven counties at the beginning of the pandemic, id. at

1279–80, and engaged in outreach programs in minority communities when the

vaccine became available, see id. at 1283–84.

On cross examination, Dr. Landers acknowledged that Black Alabamians were

disproportionately hospitalized with and died from COVID-19, id. at 1289–90; Black

Alabamians are at a higher risk for underlying chronic health problems, such as

diabetes or hypertension than White Alabamians, id. at 1290–91; and Black

Alabamians have less access to health care than White Alabamians, id. at 1291. She

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testified that racial disparities in health care “result from barriers like a lack of access

to education and information” and that the Department is working to improve those

disparities. Id. at 1298, 1305–06.

Dr. Landers testified about Dr. Bagley’s assertion that the United States

Department of Justice “found abundant evidence that [Alabama] had been

discriminating against Black residents of Lowndes County.” Doc. 206-19 at 28. She

testified that that the Department entered a resolution agreement with the United

States related to the residents in Lowndes County without adequate sewage disposal

options, and that “no fault was found with the state of Alabama related to any

discriminatory practices.” Tr. 1294, 1301; see id. at 1307. She testified that progress

has been made in sewage disposal in Lowndes County. Id. at 1301.

The Secretary offered the testimony of Susan Copeland and, through a

deposition designation, Mr. Doyle Fuller, two attorneys who represent the town of

Pike Road. Mr. Fuller is the attorney who incorporated Pike Road, Doc. 236–1 at

20, and Ms. Copeland began representing Pike Road with Mr. Fuller shortly after

the town was incorporated, Tr. 1548. Mr. Fuller and Ms. Copeland assisted Pike

Road in annexing property, establishing the Pike Road school system, and

purchasing the Georgia Washington Middle School facility from the City of

Montgomery. Tr. 1549; see Doc. 236-1 at 17, 30.

Mr. Fuller testified that Pike Road was created because its residents wanted

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to preserve their rural lifestyle, including maintaining privacy in their backyards,

having land, or having pets. Doc. 236-1 at 88–91. He testified that the town grew in

part by annexing both White and Black communities. See id. at 27–28. Ms. Copeland

testified that Pike Road annexed land for residents of all races and granted many

Black landowners’ petitions for Pike Road to annex their land. Tr. 1560.

Mr. Fuller and Ms. Copeland testified that Dr. Bagley’s report did not

accurately describe Pike Road. See id. at 1550; Doc. 236-1 at 40–41. Ms. Copeland

testified that, unlike Montgomery, Pike Road is a small, rural town. Tr. 1551–52.

Ms. Copeland testified that approximately forty percent of Pike Road residents were

Black at the time of its incorporation. Id. at 1553. Ms. Copeland testified that

although there are currently no Black members of the town council, id. at 1554; id.

at 1572, a Black resident of Pike Road was elected to the council at-large from the

time of its incorporation until 2020, id. at 1555–56; see Doc. 236-1 at 55. Mr. Fuller

criticized Dr. Bagley for either “intentionally” omitting information about the

annexation of predominantly Black neighborhoods into Pike Road in addition to

predominantly White neighborhoods, or failing to “do his homework.” Doc. 236-1

at 82.

The attorneys also testified about the formation of the Pike Road School

System. They disputed Dr. Bagley’s assertion that Pike Road residents had racial

motives to create a separate school system. Tr. 1561–62; Doc. 236-1 at 48–49. Ms.

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Copeland testified that students in the Pike Road area attended Montgomery County

schools before Pike Road created its own school system, and that none of the county

public schools were within Pike Road city limits. Tr. 1563. She testified that Pike

Road intended to have its own school system from its incorporation. Id. at 1562. Mr.

Fuller testified that “[a] significant number of the people who were involved in the

formation of Pike Road were [B]lack” citizens and that “[t]hey were just as interested

in establishing a decent school system as anybody else in Pike Road was.” Doc. 236-

1 at 49.

Ms. Copeland and Mr. Fuller testified about Pike Road’s acquisition of the

Georgia Washington Middle School facility. They testified that the town council and

the mayor decided to purchase the school because Pike Road needed a high school.

See Tr. 1564, 1575; Doc. 236-1 at 31, 59. Ms. Copeland explained that Georgia

Washington Middle School was attractive to Pike Road because it was closing and

was the closest facility to the Pike Road city limits. Tr. 1564. She testified that she

believes the State of Alabama forced the Montgomery County school board to sell

the facility to Pike Road over the school board’s opposition. Id. at 1578. They

testified that Montgomery and Pike Road agreed that Pike Road could purchase the

property as long as it maintained the name of Georgia Washington, a former

enslaved person who started the school. See Tr. 1567; Doc. 236-1 at 38–39. The

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current name of the school is “Pike Road High School[ ]Georgia Washington

Campus.” Tr. 1577; see Doc. 236-1 at 32, 83.

Dr. Patricia Payne is a resident of Pike Road, Tr. 1582, who co-wrote an article

that was quoted in Dr. Bagley’s report, see Doc. 206-19 at 26. Dr. Payne previously

worked part-time for the town and now volunteers as the director of the Pike Road

Arts Center. See Tr. 1585–86. Dr. Payne testified about the creation of the Pike Road

school system. She testified that students who lived in Pike Road were attending “at

least [twenty-eight] different schools,” and the residents of Pike Road wanted to

“control the education of [Pike Road] citizens,” id. at 1587. She also testified that

the Montgomery County schools were “failing” and “not safe.” Id. at 1598; see id.

at 1605. Dr. Payne testified that there was no racial motivation behind the creation

of the Pike Road school system, id. at 1587, and that there are Black students in the

Pike Road school system, id. at 1618. Dr. Payne testified that Dr. Bagley’s assertion

that the residents of Pike Road had a racial motivation in creating the school system

was “laughable” because there were “[B]lack members on [the] council and on [the]

education committee.” Id. at 1599–1600.

Dr. Payne also disputed portions of Dr. Bagley’s report about a newspaper

article she helped to write called “Pike Road Dispute Centers Around Choice.” See

id. at 1589. In the article, Dr. Payne stated that Pike Road’s “leadership sought to

‘preserve and protect what they saw as their preferred way of life’ in the face of

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‘encroachment’ from the City of Montgomery.” Doc. 206-19 at 26. At trial, Dr.

Payne testified that she was opining on the residents of Pike Road’s frustration that

they “had no voice” in the development of their town. Tr. 1594. Dr. Payne disputed

Dr. Bagley’s assertion that she was using “color-masked” language. Tr. 1599.

In the article, Dr. Payne stated that Pike Road and Montgomery had “distinct”

histories because Pike Road residents “had lived off the land.” Tr. 1598; see Doc.

206-19 at 26. She testified that she was referring to Pike Road residents’ use of land

to farm or raise livestock. See Tr. 1598. Dr. Payne testified that Dr. Bagley painted

an unfair picture of Pike Road. Tr. 1620–21. She testified that he did not discuss that

there were Black members of Pike Road’s first town council, that the town council

“met in a [B]lack church,” or that Black residents “were part of [the] planning

committees for [Pike Road] education committees.” Id. at 1620–21.

Joshua Roberts works as the President of Alabama Christian Academy in

Montgomery. Id. at 1089. Mr. Roberts testified that the “Capital City Conference”

schools—a conference that includes five private schools in the Montgomery area, id.

at 1092—market to and include a diverse student body. See id. at 1100. Mr. Roberts

disputed Dr. Bagley’s assertion that private schools in Montgomery are segregation

academies and testified that the Capital City Conference schools have “a very specific

campus unity policy” against discrimination. Id. at 1100–02. He testified that

Alabama Christian Academy has a twenty-five to thirty-five percent Black student

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population, id. at 1102, and had a Black homecoming queen and a Black student body

president in 2024, id. at 1100–01. He also stated that all five Capital City Conference

schools offer need-based scholarship opportunities for those unable to pay private

school tuition and that the Alabama Accountability Act provides additional

scholarship opportunities. Id. at 1105–07; id. at 1124.

The Secretary also offered the testimony of three Black Republicans: Valerie

Branyon, Bill McCollum, and Cedric Coley. See id. at 849–51, 1309, 1319, 1354–56.

Ms. Branyon is a Black registered voter who recently won a seat as a County

Commissioner in Fayette County in a district that is approximately half White and

half Black. Id. at 849–50, 853, 869. Ms. Branyon ran as a Republican in that election.

Id. at 850–51. Ms. Branyon previously ran for County Commissioner as a Republican

in 2020. Id. at 861. In that election, she defeated a White Republican in the primary,

but lost to a Democrat in the general election. Id. at 861–62.

Ms. Branyon explained that she joined the Republican Party due to its stances

on issues like abortion and same-sex marriage rights. Id. at 851. She testified that she

received support from the local and state Republican Party and that the party helped

her engage in campaign efforts like door knocking and advertising. See id. at 857–61.

She testified that the state Republican Party also invited her to a training on how to

successfully run for office. Id. at 861; see id. at 869.

Bill McCollum is a Black registered voter in Fayette County. Id. at 1353–54,

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1368. Mr. McCollum testified that he joined the Republican Party because he “did[]

[not] like a lot of the policies” advocated by the Democratic Party and preferred

conservative values that align with the Republican Party. Id. at 1355–56. He currently

serves as the vice-chairman of the Fayette County Republican Party and was

nominated and elected to that position by party members fifteen years ago. See id. at

1356–57. He testified that he has been encouraged to run for the Chair of the Fayette

County Republican Party but has “never had an interest in it.” Id. at 1357. Mr.

McCollum has been a member of the Alabama Republican Party State Executive

Committee, the governing body for the state party, for more than fifteen years. Id. at

1358.

Mr. McCollum testified about his experiences running for office in five

elections. He testified that he experienced resistance to his qualification as a candidate

in the first election he entered in the 1970s. See id. at 1364–65, 1373. When he first

ran for sheriff, the county administrator told him that “he didn’t know if . . . he could

register” Mr. McCollum to qualify as a candidate and made him wait in the courthouse

for approximately three hours before returning to say that he could qualify. Id. at

1363–64. Mr. McCollum was the first Black candidate to qualify for an election in

Fayette County. Id. at 1364. Mr. McCollum testified that he received financial and

volunteer support from the Fayette County Republican Party and Alabama

Republican Party duringhis most recent campaign in 2024. See id. at 1360–62.

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Mr. McCollum also testified about discrimination that he has personally

experienced. He testified that when he was originally hired as a police officer for the

Fayette County Police Department, “the other officers said they [were not] going to

work with [him]. . . . And said they’d quit before they’d work with a [B]lack and

things of that nature.” Id. at 1363. Mr. McCollum was also once asked to leave a

restaurant because “it did not serve [B]lack people.” Id. at 1374.

Cedric Coley is a Black Republican voter in Montgomery. Id. at 1308–09,

1311, 1318. Mr. Coley testified about his experience in the Republican Party. He

testified that he joined the Republican Party around 2016 and that members of the

Republican party were “welcoming.” Id. at 1319–20; see id. at 1336. Mr. Coley is a

member of the Montgomery County Republican Executive Committee and has been

elected and appointed to various positions in the Montgomery County Republican

Party. See id. at 1320–22; 1324. Mr. Coley is also involved in the Alabama

Republican Party. He testified that he was appointed as regional director of the

Alabama Outreach Coalition for the state Republican Party, served as co-chair for

Mo Brooks’s United States Senate campaign in Montgomery County, and “served

as a field representative helping to consult candidates for State Legislature in the

State Senate.” Id. at 1322–23. As a field representative, the state party paid Mr.

Coley to advise several Black and White Republican candidates running in an

election. Id. at 1324–25. Mr. Coley testified that he is also a member of the Alabama

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Minority GOP, which is a group that “specialize[s] in being a launch pad for minority

Alabamians.” Id. at 1323.

Mr. Coley testified that he is an “America First conservative” who believes

there is a “globalist network of international cartels that are deliberately destroying

our nation.” Id. at 1345. He testified that he believes that these cartels are working

through the American education system, economy, and “sections of the judicial

system and some sections of intelligence agencies.” Id. He testified that he believes

the COVID-19 pandemic was a “plandemic” and a bioweapon created by China. Id.

at 1344–45.

Mr. Coley testified that he does not believe that Republican candidates use

racial appeals to attract voters. Id. at 1346–47. On cross examination, he was asked

about his social media post of an image that depicted two hand gestures. On one side

of the image, a White hand gesture, which Mr. Coley acknowledged has been

described by the FBI as indicating White supremacy, appeared above the text “Jobs,

vote for civility, vote for prosperity, vote for unity, vote for patriotism, vote

Republican.” Id. at 1349–50. On the other side of the image appeared a gray fist,

which Mr. Coley acknowledged has been associated with communism, uprisings,

and “[B]lack power,” with text that read “Not mobs. . . . Walk away from violence,

walk away from hypocrisy, walk away from globalist Democrats.” Id. at 1348–49.

At trial, Mr. Coley testified that he never intended to advocate for White supremacy.

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Id. at 1352.

4. Legal Challenges to Section Two

The Secretary argues that “Congress has not expressly authorized private

persons to sue under Section 2,” and whether Section 2 contains an implied private

right of action is an “open” question unresolved by the courts. Doc. 131 at 28–29.

The Secretary reasons that “Congress does not confer substantive rights when

enforcing the provisions of the Fourteenth and Fifteenth Amendments,” and the

Voting Rights Act “created new remedies, . . . not new rights” that are privately

enforceable. Id. at 13–14. It asserts that “Section 2 protects the right of any citizen

to vote free from discrimination,” which “was enshrined more than 150 years ago in

the Fifteenth Amendment,” and “[p]rotecting an existing right is not creating a new

one.” Id. at 22.

V. FINDINGS OF FACT AND CONCLUSIONS OF LAW

A. Gingles I – Numerosity

1. Illustrative Plans 1 and 2A – How to Measure the Black

Population

Gingles requires the plaintiffs to establish that the Black population is

sufficiently numerous in the Huntsville and Montgomery areas such that an

additional remedial district may be drawn in each area. See Allen, 599 U.S. at 18.

The plaintiffs rely on Illustrative Plans 1, 2A, and 3 to establish this numerosity

requirement. See Doc. 250 ¶ 118. The Secretary argues that the proposed District 7
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in Illustrative Plans 1 and 2A do not establish numerosity in Huntsville because those

districts are not majority Black. Doc. 251 ¶¶ 51–112; Tr. 1654–57.

The plaintiffs acknowledge that neither district is majority BVAP. It is

undisputed that the BVAP of District 7 in Illustrative Plan 1 is 46.82 percent, Doc.

207-9 at 8; Doc. 251 ¶ 55, and the BVAP of District 7 in Illustrative Plan 2A is 48.38

percent, Doc. 164-12 at 13; Doc. 251 ¶ 55. The plaintiffs contend that District 7 in

Illustrative Plans 1 and 2A nevertheless establish numerosity because they are

majority BCVAP. Doc. 250 ¶ 167; see Tr. 1639–41. They assert that the point

estimate of the BCVAP for District 7 in Illustrative Plan 1 is 50.16 percent based on

Mr. Fairfax’s calculation, Doc. 250 ¶¶ 144, 176, and 50.11 percent based on Dr.

Oskooii’s calculation, id. ¶¶ 143, 176. They assert that the point estimate of the

BCVAP for District 7 in Illustrative Plan 2A is 50.19 percent. Id. ¶ 177.

Under both federal and Alabama law, the default rule is to use census data for

redistricting. See Negron, 113 F.3d at 1569; Ala. Const. art. IX, §§ 199–200

(providing that the Legislature should rely on “the decennial census of the United

States” in dividing the state into legislative districts).

“Whether citizenship should be taken into account for the first Gingles

precondition is a question of law.” Negron, 113 F.3d at 1570 (emphasis omitted).

Under binding precedent, a minority’s share of the voting-age population may be

“refined by citizenship” data to establish the first Gingles precondition “where there

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is reliable information indicating a significant difference in citizenship rates between

the majority and minority populations.” Id. at 1569. When a difference in citizenship

rates is relevant, it is important—because only citizens can vote, a remedial district

with a majority-minority VAP may be “hollow” if the district does not have a

majority-minority CVAP. LULAC, 548 U.S. at 429; see Negron, 113 F.3d at 1568–

69 (explaining that Section Two plaintiffs must “establish that the minority group

constitutes an effective voting majority in a single-member district”) (internal

quotation marks omitted) (quoting Romero v. City of Pomona, 883 F.2d 1418, 1425

(9th Cir. 1989)).

The Eleventh Circuit has not established a numerical threshold for the

disparity in citizen and noncitizen populations that constitutes a “significant

difference” in citizenship rates. In Negron, a group of Hispanic plaintiffs who lived

in Miami Beach alleged that the election system for the city’s governing commission

violated Section Two. 113 F.3d at 1565. To establish numerosity, they offered three

illustrative districts with a majority-Hispanic voting-age population. Id. at 1567. The

district court considered the citizenship rate of the Hispanic population in Miami

Beach—where “only 50.16[ percent] of the Hispanic residents . . . [were] citizens,

while 88.18[ percent] of the non-Hispanic residents [were] citizens”—and found that

the plaintiffs’ illustrative districts did not satisfy the numerosity requirement. Id. at

1565, 1567.

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On appeal, the Eleventh Circuit held that the district court appropriately

considered citizenship data in determining whether the plaintiffs presented a

majority-Hispanic illustrative district because of the “significant disparity between

Hispanic and non-Hispanic citizenship rates” in Miami Beach. Id. at 1567. The

Eleventh Circuit reasoned that when such a significant disparity is present, “the

proper statistic for deciding whether a minority group is sufficiently large and

geographically compact is voting[-]age population as refined by citizenship.” Id. at

1569. The Eleventh Circuit concluded that the plaintiffs did not satisfy the first

Gingles precondition because “when citizenship is taken into account, there is no

Hispanic majority in any of the [proposed] districts.” Id. at 1568.

The Eleventh Circuit limited the “refinement” of VAP with CVAP to cases

where a “significant disparity” is present, and has made clear that this circumstance

is rare. See id. at 1568–69. Indeed, “such a disparity is unlikely except in areas where

the population includes a substantial number of immigrants.” Id. at 1569.

Here, the plaintiffs urge this Court to ignore the BVAP of District 7 in

Illustrative Plans 1 and 2A, which is below fifty percent, and rely only on the point

estimate of the BCVAP of that district, which is more than fifty percent. Doc. 250

¶¶ 176–78, 587. The Secretary argues (and this Court’s independent review

confirms) that if this Court took that approach, it would be the first district court in

the nation to do so. See Tr. 1655; Doc. 251 ¶¶ 71–72, 79. Even Mr. Fairfax testified

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that he “believe[d]” that he “probably [had] not” relied solely on CVAP to establish

numerosity in any of his Gingles I work in other cases. Tr. 343.

The plaintiffs have not established a significant disparity in the citizenship

rates of the Black and White populations in their proposed District 7. See Tr. 252–

54; Doc. 207-10 at 3–7. The plaintiffs’ argument about noncitizens in District 7 is

about the Hispanic and Asian noncitizen populations—not the Black population,

which is the minority population at issue. See Doc. 250 ¶ 120; Tr. 1639. The

plaintiffs have cited, and the Court has found, no authority for relying on the

citizenship rate of a minority population other than the one at issue in the litigation,

for a numerosity analysis under Gingles. Where, as here, there is “no indication” that

there is a “significant difference” between Black and White citizenship rates, the

Court need not “refine” BVAP data with BCVAP data, nor rely on BCVAP data

exclusively. See Negron, 113 F.3d at 1568.

Separately, Mr. Fairfax’s admission that his reliance on CVAP data is

selective deepens the Court’s concern about relying on BCVAP to evaluate

numerosity in the Huntsville area. Mr. Fairfax conceded that Montgomery has the

second highest noncitizen population in Alabama, but testified that he did not rely

on CVAP data there because he “didn’t have to” rely on CVAP to draw his proposed

District 25 because “the majority-[B]lack status is already there.” Tr. 289–90; see

Doc. 250 at 38 n.3. The Court cannot rely on BCVAP data merely where it serves

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the plaintiffs’ desired purposes.

Accordingly, the Court finds that Illustrative Plans 1 and 2A do not establish

that the Black population in the Huntsville area is sufficiently large to satisfy the

first Gingles I precondition, and the Court does not analyze those plans further as a

basis for Section Two relief.

2. Illustrative Plan 3

It is undisputed that Illustrative Plan 3 includes two majority-Black illustrative

districts (Districts 25 and 7). See Tr. 1638–39, 1657, 1660; Doc. 189-7 at 28; Doc.

189-8 at 19. The BVAP of Proposed District 25 is 51.59 percent and the BVAP of

District 7 in Illustrative Plan 3 is 50.04 percent. Doc. 206-8 at 32; Doc. 189-8 at 19.

Accordingly, the Court finds that the plaintiffs have established that the Black

population in the Huntsville and Montgomery areas is “sufficiently large” to

accommodate an additional remedial district in those areas and turns to the question

whether the proposed remedial districts in Illustrative Plan 3 are reasonably

configured. See Allen, 599 U.S. at 18.

B. Gingles I – Reasonable Configuration

The Court proceeds in three steps: first, the Court makes its credibility

determinations about the testimony of the parties’ Gingles I expert witnesses. If the

Court will not rely on an expert’s testimony, the Court does not make a credibility

determination for that expert. Second, the Court considers the configuration of the

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plaintiffs’ proposed District 7 in the Huntsville area. Third, the Court considers the

configuration of the plaintiffs’ Proposed District 25 in the Montgomery area.

1. Expert Credibility Determinations

First, the Court finds Mr. Fairfax’s testimony credible. The parties do not

dispute his qualification as an expert, see Tr. 230, and he explained his methods and

work clearly and consistently, see, e.g., Doc. 206-6 at 8–14; Tr. 240–47. He

answered cross-examination questions with care not to overstate his conclusions,

see, e.g., Tr. 281–82, 287–88, and the Court found his testimony both reliable and

helpful.

Second, the Court finds Dr. Trende’s testimony credible. The parties do not

dispute his qualification as an expert, see Tr. 941, and he explained his methods and

work clearly and consistently. The Court carefully observed Dr. Trende’s demeanor

during trial and found him to be candid. For instance, when Dr. Trende was

confronted with an error in one of his calculations, he acknowledged it and testified

that it would change, but not inflate, the resulting margin of error. See id. at 1059–

60.

Dr. Trende took care to limit his testimony to his expertise and not to overstate

his conclusions. For example, he testified that CVAP is not a “bad source of

information,” and opined only that it should not be relied upon exclusively to

establish numerosity when the BVAP is below fifty percent and the BCVAP point

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estimate is close to fifty percent. Id. at 956. In his testimony about disaggregation

techniques, he acknowledged that there are “different ways” to disaggregate data,

and did not opine that one method was better than the other. See id. at 977–80.

Instead, he testified that all techniques rely on “untestable assumptions” that should

be considered by the Court in its numerosity assessment. Id. at 978.

Dr. Trende offers only limited opinions on the reasonable configuration of the

proposed remedial districts in Illustrative Plan 3. He did not analyze whether that

plan respects political subdivisions, observes natural boundaries, preserves the cores

of districts, or pairs incumbents. Id. at 1077–79.

When he was asked how he could testify that a district was not reasonably

configured without considering all traditional districting principles, Dr. Trende

responded that he had considered all the evidence, including the “progression” of

District 7 in Illustrative Plans 1, 2, and 3, and the “increasingly distended” shape of

District 7 in each plan. Id. at 1009–10. For example, he testified, “If you are going

to justify it from a communities of interest point of view, . . . the question is, well,

why didn’t you include those communities of interest in the district in the first go

around?” Id. at 1009.

The Court acknowledges that other courts have excluded Dr. Trende’s

testimony, found it unhelpful, or assigned it limited weight. See Tr. 1055–56, 1068;

Singleton v. Allen, No. 2:21-cv-1291-AMM & No. 2:21-cv-1530-AMM, 2025 WL

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1342947, at *101 (N.D. Ala. May 8, 2025). But Dr. Trende explained that the

circumstances that precipitated those findings are not present here, see Tr. 1055–56,

1068, and the Court agrees. And Dr. Trende offers only a limited opinion in this case

in any event. Accordingly, the Court finds Dr. Trende’s testimony reliable and

assigns it the appropriate weight.

2. Huntsville

a. Visual Assessment and Traditional Districting

Principles
The Court begins its reasonableness analysis of District 7 in Illustrative Plan

3 with a visual assessment. As Dr. Trende testified, “to a certain degree,” the

compactness analysis “is an eyeball test.” Id. at 1021. Federal courts regularly use

visual assessments to evaluate compactness. See, e.g., Vera, 517 U.S. at 960;

Singleton v. Merrill, 582 F. Supp. 3d 924, 1010–11 (N.D. Ala. 2022); Singleton,

2025 WL 1342947, at *130; Ala. State Conf. of NAACP v. Alabama, 612 F. Supp.

3d 1232, 1265 (M.D. Ala. 2020). After all, a court cannot evaluate whether a district

is reasonably configured without looking at it.

A bizarrely shaped illustrative remedial district can be a powerful indicator

that the minority population is too dispersed to create a reasonably configured

majority-minority district, in which case Section Two does not require a remedial

district. Vera, 517 U.S. at 980. That is, a “bizarrely shaped” district may reflect an

attempt to “reach[] out to grab small and apparently isolated minority communities,”
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id. at 979, and a district with tentacles, appendages, or fingers may reflect an attempt

to “combine[] two farflung segments of a racial group with disparate interests,”

LULAC, 548 U.S. at 433.

The Secretary makes two intertwined arguments about the configuration of

District 7 in Illustrative Plan 3: one about the geographic dispersion of the Black

population in Huntsville, Doc. 251 ¶¶ 117, 139, and one about the irregular shape of

the remedial district that the plaintiffs propose, id. ¶¶ 118, 128, 144; Tr. 1657. First,

he argues that the illustrative district “reaches out and grabs at least five isolated

clusters of [B]lack residents in Lawrence, Limestone, Madison, and Morgan

counties.” Doc. 251 ¶ 117 (internal quotation marks and brackets omitted). Dr.

Trende testified that his dot density map (pictured below) demonstrates that there is

not a compact Black population in the Huntsville area and that, at best, there are

multiple Black populations “stitched together.” Tr. 1020–21.

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Doc. 189-8 at 22.

Second, Dr. Trende described District 7 in Illustrative Plan 3 as “a baby

dragon with an overbite in flight.” Tr. 1011; Doc. 189-8 at 18. In his illustration, the

Secretary added an eye and mouth to Mr. Fairfax’s illustrative map:

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Doc. 166 at 33. The Secretary described the dragon district as having “hindquarters”

that “twist away from Madison to capture the Redstone Arsenal and Huntsville

International Airport,” “wings” that “span from Athens in the [n]orth to Decatur in

the [s]outh (carefully covering only portions of both cities),” and a “head and neck”

that “protrude into the rural precincts west of Decatur.” Doc. 251 ¶ 118.

In the Court’s visual assessment, it sees the same bizarre shapes and

appendages—themselves evidence of a noncompact minority population—that Dr.

Trende does. Once the dragon shape is seen, it is hard to unsee, and it forecloses a

description of the district as free from appendages.

The plaintiffs offer three responses to the Secretary’s visual assessment. First,

the plaintiffs assert that Dr. Trende’s dot density map does not accurately reflect the

dispersion of the Black population in the Huntsville area. Doc. 250 ¶¶ 219–21.

Second, the plaintiffs assert that the “critique of” the “visual appearance” of District

7 in Illustrative Plan 3 “fails to rebut the conclusion that [it] is reasonably compact”

because the district respects traditional districting criteria and Section Two does not

require them to win a “beauty contest.” Id. ¶¶ 631–32; Tr. 1641. And third, the

plaintiffs assert that District 7 in Illustrative Plan 3 is “certainly not less visually

compact than several districts enacted by the state,” including District 7 in the

Enacted Plan. Doc. 250 ¶ 637. In short, although the plaintiffs do not dispute that

District 7 in Illustrative Plan 3 physically resembles a dragon, they argue that it is

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reasonably compact despite its shape.

The Court discusses each response in turn. First, the Court rejects the attack

on Dr. Trende’s dot density maps. The plaintiffs argue that Dr. Trende’s dot density

maps “include rounding, so that if there are anywhere between [five] and [fourteen]

Black VAP within a census block, the maps will portray one dot for that population.”

Doc. 250 ¶ 220. The Court is mindful of the limitations of Dr. Trende’s dot density

maps. But many maps require the use of some rounding or range as a unit of

measurement, and the use of such metrics does not render the maps useless.

Second, the Court rejects the plaintiffs’ argument about the shape of District

7 in Illustrative Plan 3. The plaintiffs argue that the shape of an illustrative district

is not dispositive of compactness. Id. ¶ 635. They point out that “a district’s shape

can be affected by many acceptable considerations, such as following ‘existing

census block lines’ or other boundaries, which can ‘lend themselves to irregular

shapes’ and cause a district to ‘look ragged in places.’” Id. (quoting Houston v.

Lafayette Cnty., 56 F.3d 606, 610, 611 & n.4 (11th Cir. 1995)).

More particularly, the plaintiffs attempt to explain some aspects of the shape

of the district by reference to various traditional districting principles. They justify

the shape of the dragon’s head, core, and the district’s crossing of the Tennessee

River on the ground that Mr. Fairfax joined communities of interests by (1)

combining Huntsville and Decatur and (2) including Alabama A&M University and

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the entirety of Redstone Arsenal in the same district. See id. ¶¶ 241–42. And Mr.

Fairfax attempted to justify the inclusion of Courtland and North Courtland—which

are in the head of the dragon—based on various socioeconomic data. See Tr. 272.

Even assuming arguendo the validity of these explanations, they are only

partial: the plaintiffs offer no justification for the dragon’s wing, which extends into

Athens, or its tail, which extends into Harvest. See, e.g., id. at 271. And other

evidence about traditional districting principles indicates that they cannot justify the

shape of the district: Dr. Trende opined (and the plaintiffs do not dispute) that the

proposed District 7 increases the number of county splits from nineteen in the

Enacted Plan to twenty-one in Illustrative Plan 3, and that four of those county splits

are in District 7. Doc. 189-8 at 31–32. Dr. Trende also testified that District 7 in

Illustrative Plan 3 does not include any whole counties within it. Tr. 1038. The

plaintiffs cannot rely on traditional districting principles to explain why four of the

twenty-one county splits in Illustrative Plan 3 appear in only one of the thirty-five

Senate districts.

Third, the Court rejects the plaintiffs’ comparison between District 7 in

Illustrative Plan 3 and District 7 in the Enacted Plan. The plaintiffs argue that District

7 in Illustrative Plan 3 is at least as “visually compact” as other districts included in

the Enacted Plan, including District 7. Doc. 250 ¶ 637. But the Enacted Plan appears

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below, and the plaintiffs did not identify (and the Court does not see) any district in

it that can be fairly described as a flying dragon:

Doc. 195-19.

Furthermore, a close-up of District 7 in the Enacted Plan appears below, and

although it is not perfectly regular, it cannot fairly be described as having bizarre

shapes or concerning appendages:

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Doc. 195-8.

In any event, although the Court must “perform a comparable compactness

inquiry for” District 7 in the Enacted Plan and District 7 in Illustrative Plan 3, see

LULAC, 548 U.S. at 430, the Enacted Plan is not subject to a Gingles analysis—only

the plaintiffs have the burden to establish the preconditions, which are focused on

their illustrative remedial district, see Allen, 599 U.S. at 18. The shape of District 7

in the Enacted Plan does not alleviate the Court’s concerns about the dragon-like

shape of District 7 in Illustrative Plan 3.

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And at its core, the plaintiffs’ comparative argument does not overcome the

foundational issue that the Black population in the area of District 7 is geographically

dispersed and non-compact. Indeed, for all their criticism of Dr. Trende’s dot-density

map that displays the dispersion of the Black population there, the plaintiffs have

not presented evidence that reveals a fundamentally different dispersion.

Ultimately, the result of the Court’s visual assessment is not merely about

aesthetics. The evidence supports findings that (1) the shape of District 7 in

Illustrative Plan 3, both on its own and compared to the shape of District 7 in the

Enacted Plan, is bizarre and does not serve traditional districting principles; and (2)

the shape of District 7 in Illustrative Plan 3, when combined with evidence of the

dispersion of the Black population in the area, demonstrates that the Black

population there is too scattered to form a voting-age majority in an additional

reasonably configured district. Accordingly, the Court cannot find that its visual

assessment of District 7 in Illustrative Plan 3 indicates that there is a sufficiently

compact minority population there to constitute a voting-age majority in an

additional reasonably configured district.

b. Geographic Compactness Scores

The Court next considers industry-standard geographic compactness scores

for District 7 in Illustrative Plan 3. After an exhaustive analysis, the Court finds that

these scores do not alter the conclusions drawn from the visual assessment.

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Dr. Trende opined that Illustrative Plan 3 “decreases the compactness of the

districts relative to those in the Enacted [Plan].” Doc. 189-8 at 24. Mr. Fairfax

conceded that the mean scores of the Enacted Plan were “slightly better” than the

mean scores of Illustrative Plan 3, Tr. 273, but he opined that those scores were “very

close,” Doc. 206-8 at 33. He opined that “[t]he difference between the means for

[Illustrative Plan 3 and the Enacted Plan] is either .01 for the Polsby-Popper and

Convex Hull measures and .02 for the Reock measure.” Doc. 206-8 at 33.

But Gingles focuses the Court’s attention on the compactness of the minority

population in the proposed remedial district, not on the overall compactness of an

entire plan. 478 U.S. at 50; see Allen, 599 U.S. at 18. The critical question is whether

a remedial district can be reasonably configured in the challenged area. See Allen,

599 U.S. at 18.

So the Court turns to the compactness scores for District 7 in Illustrative Plan

3. Mr. Fairfax testified that based on his analysis of the scores, District 7 in

Illustrative Plan 3 “performed better than the [E]nacted [P]lan’s minimal or least

compact” district. See id. at 273–74. The Secretary does not dispute Mr. Fairfax’s

conclusion that the scores for District 7 in Illustrative Plan 3 are better than the least

compact district in the Enacted Plan; the Secretary simply points out that the

compactness scores of District 7 “are near the bottom of the pile in [Illustrative] Plan

3.” Doc. 251 ¶ 135.

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The Court assigns no weight to the argument that District 7 in Illustrative Plan

3 earns better compactness scores than the least compact district in the Enacted Plan.

That point compares the illustrative District 7 to some other district, which may have

different geographic and population factors that explain its boundaries but have no

relevance to District 7 and that, in any event, the Court has not considered. The

plaintiffs cannot defend the configuration of their illustrative remedial district by

referring to another district entirely, without some analysis of why that district is

configured as it is and why that configuration provides an apt comparison.

The Secretary relies on Dr. Trende’s testimony that District 7 in Illustrative

Plan 3 performed worse on the Reock and Polsby-Popper scores than did District 7

in the Enacted Plan. See Doc. 189-8 at 25–26. Dr. Trende testified that the district’s

“tail,” “wing,” and “head” increased the perimeter of the district, making it “more

narrow, less stocky, and with more appendages, and all those things are punished by

the metrics.” Tr. 1029.

Mr. Fairfax does not dispute this analysis. He conceded that District 7 in the

Enacted Plan received “slightly better” compactness scores than District 7 in

Illustrative Plan 3, but he said he considered the scores to be “[s]imilar.” Tr. 273.

The Court cannot reconcile Mr. Fairfax’s assertion of similarity with the

obvious physical differences in the shape of the districts. Compactness scores are

one tool for the Court to consider in its reasonableness analysis, and Mr. Fairfax’s

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assertion of similarity illustrates the peril of evaluating scores in a vacuum or

assigning them dispositive weight.

Ultimately, the Court’s comparative analysis of the compactness scores

confirms the finding that the visual assessment indicated: that the Black population

in the area of District 7 is too geographically dispersed to form a voting-age majority

in an additional reasonably configured district. Accordingly, the Court finds that the

plaintiffs have not demonstrated a Section Two violation in the Huntsville area.

3. Montgomery

a. Visual Assessment

The Secretary does not argue that Proposed District 25 contains bizarre

shapes, appendages, or fingers. The Court’s independent visual assessment of

Proposed District 25 confirms that it does not include such irregularities. The reality

that Proposed District 25 adheres to the boundary lines of Crenshaw County in their

entirety, adheres to the entire southern boundary line of Montgomery County, and

adheres to much of the eastern and western boundary lines of Montgomery County,

forecloses a finding that Proposed District 25 is bizarrely shaped.

b. Geographic Compactness Scores

The Court has the benefit of expert testimony from only Mr. Fairfax about the

geographic compactness scores of District 25. Mr. Fairfax opined that Proposed

District 25 received better compactness scores on the Reock, Polsby-Popper, and

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Convex Hull metrics than did District 25 in the Enacted Plan. Tr. 258; Doc. 206-6

at 46. Dr. Trende did not evaluate the compactness scores of Proposed District 25,

see Tr. 1078, and the Secretary did not dispute Mr. Fairfax’s calculations, nor his

conclusion that Proposed District 25 outperforms District 25 in the Enacted Plan on

these metrics.

c. Traditional Districting Principles

The Secretary’s sole argument about the configuration of Proposed District

25 is that the illustrative district is not reasonably configured because it

“subordinates traditional districting principles to racial considerations.” Doc. 251 ¶

145–57; see Tr. 1660. To support his argument that race predominated when Mr.

Fairfax drew Proposed District 25, see Doc. 251 ¶¶ 145–57; Tr. 1660, the Secretary

relies on Dr. Trende’s assessment of the “shape of the district and how it[ is] carved

out,” Tr. 1031, and maintains that Proposed District 25 “contains a heavily

concentrated [B]lack population in the north,” but must “extend southward to pick

up isolated rural [B]lack populations throughout the countryside” to reach a

majority-Black status, Doc. 251 ¶ 156.

As the Supreme Court explained, “Section [Two] itself ‘demands

consideration of race.’” Allen, 599 U.S. at 30–31 (quoting Abbott, 581 U.S. at 587).

Indeed, “[t]he question whether additional majority-minority districts can be drawn,

after all, involves a ‘quintessentially race-conscious calculus.’” Id. at 31 (quoting De

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Grandy, 512 U.S. at 1020) (emphasis omitted)). Race predominates “when ‘race-

neutral considerations [come] into play only after the race-based decision had been

made.’” Id. (quoting Bethune-Hill v. Virginia St. Bd. of Elections, 580 U.S. 178, 189

(2017)). To demonstrate that race predominated when drawing district lines,

“challengers will often need to show that the . . . map conflicts with traditional

redistricting criteria.” Alexander v. South Carolina State Conf. of the NAACP, 602

U.S. 1, 8 (2024).

Three categories of evidence establish that race did not predominate in the

preparation of Proposed District 25: (1) evidence about Mr. Fairfax’s map-drawing

process; (2) the configuration of Proposed District 25; and (3) Dr. Trende’s opinion

testimony. The Court discusses each category in turn.

First, the evidence about Mr. Fairfax’s map-drawing process establishes that

race did not predominate in his design of Proposed District 25. Mr. Fairfax testified

that when he drew the plaintiffs’ illustrative plans, he used the Enacted Plan as a

starting point because “many times you want to leave as many districts as [possible]

intact.” Id. at 240; see id. at 264–65, 270, 277.

Further, Mr. Fairfax testified that he followed five traditional redistricting

criteria when drawing the plans—equal population, respecting political

subdivisions, compactness, contiguity, and preserving communities of interest. Id.

at 244. He testified that he also attempted to follow other criteria found in the

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Legislature’s redistricting guidelines. Id. at 245. He testified that “[t]here are always

tradeoffs” when drawing a map, and that he “balance[d]” the criteria in effort to

create the “best plan” possible. Id. at 246–47.

Mr. Fairfax testified that he reviewed race at the beginning of the process to

see “where the minority community exists” but then “turn[ed] it off.” Id. at 242; see

id. at 277–79. He acknowledged that he later checked the minority BVAP and

BCVAP periodically “to see if [he] me[]t th[e] sufficiently large component.” Id. at

280–81.

Further, Mr. Fairfax testified that he “tend[s] to not consider race as much as

the other [redistricting] criteria” and “always use[s] the other criteria labels more

than race.” Id. at 241–42. Mr. Fairfax testified that when he prepared the illustrative

plans he was not “toggling race and compactness” only, but “look[ed] at all of the

criteria and trading off those,” id. at 295, and he considered race only to see “where

the minority community exists.” Id. at 241–42.

Additionally, Mr. Fairfax unequivocally testified that he did not prioritize race

over other factors when drawing the illustrative plans. See id. at 301. Having

observed his manner of testifying, the Court credits this testimony, which is

consistent with his other testimony about how he balanced traditional districting

criteria.

Accordingly, nothing in Mr. Fairfax’s explanation of his map-drawing process

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causes the Court concern that he considered race-neutral criteria only after he made

race-based decisions. Rather, his testimony about his order of operations supports a

finding that his map-making process was race-aware to the degree the law allows.

Second, other evidence about Proposed District 25 confirms that race did not

predominate in Mr. Fairfax’s design of Proposed District 25. In drawing Proposed

District 25, Mr. Fairfax created a new city split in Prattville in Senate District 26 (the

existing majority-Black district in the Montgomery area), id. at 299, but he made the

town of Pike Road whole in Proposed District 25, id. at 256; Doc. 206-6 at 36. And

the Secretary contends that Proposed District 25 connects urban portions of

Montgomery with rural areas in Crenshaw County, Tr. 1660, but Mr. Fairfax actually

removed a county split by excluding portions of Elmore County that are included in

District 25 in the Enacted Plan, see Doc. 206-6 at 36. In each of these ways, the

configuration of Proposed District 25 reflects that Mr. Fairfax deferred to the

Legislature’s priorities of avoiding city and county splits. See Doc. 171–1. Indeed,

as far as county splits go, Mr. Fairfax’s map outperforms the Legislature’s Enacted

Plan.

Additionally, the boundaries of Proposed District 25 largely follow county

lines. Proposed District 25 keeps Crenshaw County whole by following its boundary

lines. It also keeps a majority of Montgomery County whole by following its entire

southern boundary line and much of its eastern and western boundary lines. The

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Court cannot square this level of adherence to county lines with the Secretary’s

suggestion that race predominated in the drawing of Proposed District 25.

The Secretary asserts that Mr. Fairfax’s decision to connect Black Alabamians

in west Montgomery with portions of Elmore County was “to achieve the racial goal

of keeping [Senate District] 26 majority-[B]lack after moving [s]outheast

Montgomery into [Senate District] 25.” Doc. 251 ¶ 152. But the Secretary did not

rebut Mr. Fairfax’s race-neutral explanation for that decision. Mr. Fairfax testified

that District “26 had to be expanded because it lost population, so [he] expanded it

[in]to Elmore,” Tr. 294, because District 26 “is somewhat landlocked,” and that he

“d[id] not want to cross over an additional county boundary,” so his “logical choice”

was “to move into Elmore” County, Tr. 297–98. Here again, the Court cannot square

this adherence to county lines with the Secretary’s insistence that race predominated

in Mr. Fairfax’s process.

Finally, the Court rejects the Secretary’s assertion that race predominated in

the preparation of Proposed District 25 because Dr. Trende’s testimony does not

support it. Dr. Trende did not opine that race predominated in Proposed District 25,

and instead opined only that Mr. Fairfax “ha[d] to pick up isolated Black populations

throughout the countryside.” Doc. 189-7 at 29. And Dr. Trende did not address the

race-neutral reasons for Mr. Fairfax’s map-drawing decisions, such as removing a

county split. This is in stark contrast to the extensive opinion testimony Dr. Trende

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offered in support of the Secretary’s attacks on District 7 in Illustrative Plan 3.

Accordingly, the Court finds that the Secretary did not adduce any evidence, let

alone sufficient evidence, that race predominated in the preparation of Proposed

District 25.

Because all the evidence probative of the issue of race predominance

establishes that Mr. Fairfax did not allow race to predominate when drawing

Proposed District 25, the Court finds that Mr. Fairfax did not allow considerations

of race to predominate in his preparation of Proposed District 25. The Court further

finds that Mr. Fairfax’s map-making decisions (1) respected traditional districting

principles and (2) were consistent with the trade-offs of those principles that are

permitted to create an illustrative, reasonably configured majority-minority district

to satisfy Gingles I.

Accordingly, the Court finds that the plaintiffs have established the first

Gingles precondition for their claim of vote dilution in the Montgomery area, and

the Court proceeds to analyze the second and third preconditions in that area.

C. Gingles II and III – Racially Polarized Voting

As explained below, there is no serious dispute that Black voters are

“politically cohesive,” nor that the challenged districts’ White majority votes

“sufficiently as a bloc to usually defeat [Black voters’] preferred candidate.” Allen,

599 U.S. at 18.

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1. Expert Credibility Determinations

Dr. Liu

As an initial matter, the Court credits Dr. Liu’s testimony. The parties do not

dispute that Dr. Liu’s training and experience qualify him to testify as an expert. See

Tr. 19–20. His professional and academic work has focused on voting patterns and

“political methodology that allows scholars to study voting by using data collected

at [the] aggregate level,” id. at 16–17, and he has published extensively on the

relationship between race and voting patterns, see Doc. 206-16 at 2; Doc. 206-17 at

2–8; Tr. 18–19. At trial, Dr. Liu consistently explained the work he performed in

this case and the conclusions that he reached. He employed commonly accepted

methodologies, and the Court discerns no reason to question his methods or

conclusions. None of the Secretary’s experts conducted a racial polarization analysis

to contradict Dr. Liu’s findings, and as explained below, many of his conclusions

are not disputed. Accordingly, the Court finds Dr. Liu’s opinions credible, reliable,

and helpful.

The Secretary’s Experts

Although the Court recites concessions by the Secretary’s experts in its

analysis of the second and third Gingles preconditions, because their testimony

focuses on the Senate Factors, the Court defers its credibility determination until that

discussion.

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2. Patterns of Racially Polarized Voting

The only expert to conduct a racially polarization analysis—Dr. Liu—found

a “high level” of racially polarized voting in the Montgomery area. Doc. 206-16 at

8, 10; see Tr. 31–33. The Court credits Dr. Liu’s testimony that has consistently

emphasized the clarity and extremity of the pattern of racially polarized voting he

observed in Alabama. Based on the exogenous elections he analyzed, he testified

that “[B]lack candidates typically lost their elections” in Montgomery because of

“the consistent and highly racially[]polarized voting pattern” there, and that when a

Black-preferred candidate won an election in that area, “they tend to win the . . .

supermajority [B]lack district[]” there—District 26. Tr. 33.

As he must, the Secretary concedes that “in general elections most [B]lack

voters prefer Democratic candidates, and most [W]hite voters in both the challenged

areas prefer Republicans,” and that “Plaintiffs’ evidence shows that [B]lack

Alabamians in the . . . Montgomery area[] are politically cohesive.” Id. at 1661; Doc.

251 ¶ 159.

In addition, the Secretary’s experts acknowledge that Black voters tend to vote

cohesively. See, e.g., Doc. 189-9 at 4–6 (Dr. Reilly); Doc. 189-5 at 5–6 (Dr. Hood).

Dr. Bonneau testified at trial that he does not dispute Dr. Liu’s racially polarized

voting findings, Tr. 1476, 1541, 1544, and Dr. Carrington testified that he did not

dispute the existence of racially polarized voting in Alabama, id. at 1185.

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In closing arguments, the Secretary conceded “[t]hat a majority of [W]hite

voters . . . tend to support Republicans, a majority of [B]lack voters tend to support

Democrats,” and “[i]f that is all it takes for there to be racially[ ]polarized voting” in

a district, the plaintiffs’ have met their burden. Id. at 1695. He also conceded in post-

trial briefing that “[p]laintiffs’ evidence shows that [B]lack Alabamians in the

Huntsville and Montgomery areas are politically cohesive” and that “[B]lack citizens

in Alabama overwhelmingly support the Democratic Party.” Doc. 251 ¶ 159.

The stipulated facts supply the only missing piece: that the candidates

cohesively preferred by Black voters consistently (nearly invariably) are defeated by

the White majority. See Doc. 230 ¶¶ 93, 94, 117; Doc. 250 ¶¶ 521, 522, 525. In his

post-trial briefing, the Secretary attempts to dispute this reality, suggesting in

passing that “in the absence of significant” White bloc voting, “it cannot be said that

the ability of minority voters to elect their chosen representative is inferior to that of

[W]hite voters.” Doc. 251 ¶ 161 (quoting Gingles). Outside of Black-opportunity

districts, Black Alabamians have nearly zero opportunity to elect candidates of their

choice.

The Court thus finds from an overwhelming preponderance of the evidence

that Black voters in Alabama are “politically cohesive,” and that Montgomery’s

“[W]hite majority votes sufficiently as a bloc to enable it . . . to defeat the [Black]

preferred candidate.” Allen, 599 U.S. at 18.

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Accordingly, the Court cannot accept the Secretary’s assertion that when Dr.

Liu conducted his ecological inference analysis, his decision to analyze only biracial

elections “leads to selection bias and potentially erroneous conclusions.” Doc. 251

¶ 261 (internal quotation marks omitted). The consensus of the evidence and parties

on the critical patterns (and the absence of a rebuttal expert from the Secretary)

obviates any basis for the Court to address or accept methodological quibbles about

how the ecological inference analysis would best be conducted.

Nor does the Court doubt the ecological inference method. Dr. Liu opined that

ecological inference “has been widely used as the most[ ]advanced and reliable

statistical procedure for [racially polarized voting] estimates in not only academic

research but also voting rights cases in the last two decades.” Doc. 206-16 at 4. Dr.

Bonneau conceded that “ecological inference techniques are widely used and

accepted by courts for [racially polarized voting] analysis,” and that he did not know

of another method that would better estimate racially polarized voting estimates. Tr.

1474. And in any event, the decision to analyze only biracial elections was not

unique to Dr. Liu—Dr. Bonneau’s analysis of voting patterns (discussed in

connection with the Senate Factors, see infra Part V.D.2) is similarly focused on the

race of the candidate, not the race of the voter. See Tr. 1529, 1542–43.

3. Arguments About Legally Significant Racially Polarized

Voting and Dr. Trende’s Effectiveness Analysis

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The Secretary makes a novel legal argument that “White bloc voting in the . .

. Montgomery area[] is not ‘legally significant.’” Doc. 251 at 45 (emphasis omitted).

Citing Pierce v. North Carolina State Board of Elections, 97 F.4th 194 (4th Cir.

2024), the Secretary asserts that “White bloc voting in the . . . Montgomery area[] is

not ‘legally significant’ on this evidentiary record because there appears to be

enough [W]hite crossover voting to obviate the need for court-ordered majority-

minority districts.” Id. ¶ 171. He argues that “[s]o long as additional majority-

minority districts are not ‘necessary for [B]lack-preferred candidates to win,’ legally

significant [W]hite bloc voting is absent.” Id. ¶ 179 (cleaned up).

To support this argument, the Secretary relies on Dr. Trende’s effectiveness

analysis in which he concluded, without explanation, that “crossover voting is not

as commonplace” in Montgomery but that Proposed District 25 would nevertheless

“perform at less than [fifty percent] BVAP.” Doc. 189-7 at 29.

Dr. Trende’s effectiveness analysis of Proposed District 25 in his report is

scant, consisting of only three sentences and a chart. See id. at 29–30. At trial, he

offered little testimony to explain his analysis, methodology, or findings about the

BVAP below which the Black-preferred candidate would not routinely win in

District 25. See Tr. 1045–48. Dr. Trende admitted at trial that he did not analyze

whether District 25 in the Enacted Plan has been performing for Black voters. Id. at

1048.

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On the other hand, Dr. Liu explained that Dr. Trende “unrealistic[ally]”

assumed that Black voters would unanimously support a Black-preferred candidate

and that one-third of White voters would support the Black-preferred candidate,

which is not supported by the data. See Doc. 206-18 at 10; Tr. 38–39. And Dr. Liu

conducted an effectiveness analysis by comparing election results in eleven

statewide elections in District 25 in the Enacted Plan with Proposed District 25. See

Doc. 206-16 at 10–12. Dr. Liu found that, in all eleven elections, the Black-preferred

candidate lost in District 25 in the Enacted Plan but won in Proposed District 25. See

id. at 12; id. at 14 (Table 9).

Accordingly, the Court finds that Dr. Trende’s effectiveness analysis does not

overcome the reality that racially polarized voting exists in the Montgomery area.

Alabama’s patterns of racially polarized voting are stark, and Black candidates’

nearly universal losing streak in statewide elections and legislative elections in

Alabama (outside majority-Black or very nearly majority-Black districts) is long. In

some jurisdictions, evidence may establish that statistically observable differences

in Black and White voting patterns are of little practical or legal significance. Not in

Alabama.

4. Arguments About Party Politics

Finally, the Court turns to the Secretary’s argument that patterns of racially

polarized voting in Alabama are attributable more to political party affiliations than

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to race. The Secretary relies on Dr. Bonneau to support this argument, but Dr.

Bonneau conceded at trial that he does not dispute Dr. Liu’s racial polarization

findings. See Tr. 1476, 1541, 1544. Likewise, the Secretary relies on Dr. Hood, who

opined that Black Alabamians vote cohesively. See Doc. 189-5 at 5–6.

Under controlling precedent, see Allen, 599 U.S. at 18, the second and third

Gingles preconditions do not require that the Court disentangle party and race. They

direct the Court to assess only whether Black voters in Alabama are “politically

cohesive,” and whether each challenged district’s “[W]hite majority votes

sufficiently as a bloc to enable it . . . to defeat the [Black] preferred candidate.” Id.

(quoting Gingles, 478 U.S. at 51). The Court sees those patterns clearly from the

evidence and stipulations, a consensus of experts agrees that the patterns are present,

and that concludes the Gingles analysis.

The Court considers causation in its analysis of the totality of the

circumstances (particularly Senate Factor 2). See infra Part V.D.2. And the Court

understands that the Secretary agrees with this approach. See Doc. 251 ¶ 217 (State’s

proposed order, explaining that Senate Factor 2 is not “redundant with the second

and third Gingles preconditions” because “[t]here, the inquiry focused solely on how

[B]lack and [W]hite voters voted. The focus . . . at the totality-of-circumstances stage

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. . . is on evidence of causation . . . .’”) (quoting Ala. State Conf. of NAACP, 612 F.

Supp. 3d at 1291).8

D. The Senate Factors

The Court begins its analysis of the totality of the circumstances aware that

“it will be only the very unusual case in which the plaintiffs can establish the

existence of the three Gingles factors but still have failed to establish a violation of

[Section] 2 under the totality of the circumstances.” Ga. State Conf. of NAACP, 775

F.3d at 1342 (internal quotation marks omitted). Consistent with this reality and for

the reasons explained below, the Court finds that the plaintiffs have established that

on balance, the totality of the circumstances weighs in favor of their request for relief

in the Montgomery area.

The Court begins with its credibility determinations and then analyzes the

Senate Factors. The plaintiffs have not raised a proportionality argument, and the

Court rests no part of its analysis on a proportionality assessment.

1. Credibility Determinations

Dr. Bagley

8
See also, e.g., Pierce, 97 F. 4th at 223; United States v. Charleston Cnty., S.C., 365
F.3d 341, 347–49 (4th Cir. 2004); Solomon v. Liberty Cnty. Comm’rs, 221 F.3d
1218, 1225 (11th Cir. 2000); Lewis v. Alamance County, 99 F. 3d 600, 615 n.12 (4th
Cir. 1996); Nipper, 39 F.3d at 1536.
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The Court credits much of Dr. Bagley’s testimony. The parties do not dispute

that Dr. Bagley’s training and experience qualify him to testify as an expert. See Tr.

528. Dr. Bagley’s credentials and familiarity with Alabama qualify him to opine on

Alabama-specific matters. See id. at 525–28; Doc. 206-19 at 1; Doc. 206-20 at 1–2.

Much of his research and writing have focused on Alabama, and he has experience

testifying as an expert witness in voting rights cases, including in Alabama. See Tr.

525–28; Doc. 206-20 at 1–2.

At trial, Dr. Bagley walked back several overstatements in his report. See, e.g.,

Tr. 589, 595, 615–16. These do not cause the Court to regard his testimony as

unreliable or assign it little weight. In general, the Court found Dr. Bagley’s opinions

well-supported, and he was able to explain the basis for his conclusions. When he

was confronted with an imprecise or overbroad statement, he responded candidly

and fairly rather than dogmatically. See, e.g., id. at 595. The Court has not relied on

any opinion identified as an overstatement and finds each statement it relies on

credible and helpful.

Dr. Burch

Likewise, the Court credits much of Dr. Burch’s testimony. The parties do not

dispute that her training and experience qualify her as an expert. Id. at 667. Dr.

Burch’s opinions and testimony were thorough, consistent, and generally well-

supported with applicable social science literature and Alabama-specific data.

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Throughout her testimony, including cross-examination, she had no difficulty

articulating the basis for her opinions. Although the parties dispute the inferences

the Court should draw from her data, her data are not in dispute. See, e.g., id. at 819–

20 (Dr. Reilly).

As with Dr. Bagley, the Court does not adopt or make findings about all of

Dr. Burch’s testimony because the Court need not accept all of it to make findings

and draw conclusions. The Court finds all the statements it relies on credible and

helpful.

Dr. Hood

The parties do not dispute that Dr. Hood’s training and experience qualify him

to testify as an expert. See Tr. 1218. His extensive published scholarship focuses on

“electoral politics, racial politics, election administration, and Southern politics,”

Doc. 189-5 at 2, and he has qualified as an expert in multiple redistricting cases,

including in Alabama, Doc. 189-5 at 2; see Tr. 1216–18.

But in three of those cases, Dr. Hood was impeached with his own academic

publications, which stated that race was and is a driving force behind party politics

in the South, directly contradicting his litigation opinion that voting patterns in

Alabama are driven by party more than by race. See Singleton, 2025 WL 1342947,

at *149–50. In this case, as in those cases, it is difficult to reconcile Dr. Hood’s

testimony with his published scholarship. At trial, Dr. Hood testified that “Alabama

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was included” in the data he used in his 2015 article about White support for minority

Republican candidates (“True Colors”). Tr. 1253–55. But at the trial in the Alabama

congressional districting cases (which occurred after the trial in this case), Dr. Hood

conceded that True Colors “did not consider any Alabama races” and “make[s] no

specific findings as to [W]hite voter support for Black Republican candidates.”

Singleton, 2025 WL 1342947, at *149. And he conceded in those cases “that the

article concludes that ‘[a]t a minimum, the level of [ideological] polarization in

American politics masks racially prejudiced voting behavior and, at a maximum, it

renders it inoperable because White conservatives view recent minority Republican

nominees as at least as conservative as White GOP nominees, and their level of

support reflects this.’” Id.

Nevertheless, out of an abundance of caution, the Court gives Dr. Hood every

benefit of the doubt in this case. The impeachment evidence from the Alabama

congressional redistricting litigation is not in the record in this case. Accordingly,

the Court credits some aspects of Dr. Hood’s testimony as specified below.

Ultimately, it cannot credit his testimony about the impact of party and race on

voting patterns in Alabama because (1) his findings improperly draw broad

conclusions from very limited, atypical data, and (2) the Court cannot reconcile this

testimony with the reality of election results in the state as stipulated by the parties.

Dr. Hood’s findings are based in large part on one election in one district in

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an area of the state not at issue in this case: the election of Representative Paschal, a

Black Republican, from a majority-White district in Shelby County. See Tr. 1254–

55; Doc. 189-5 at 21. But it is a gross understatement to say that this election is

atypical—Dr. Hood conceded that Representative Paschal was the first Black

Republican elected to the Legislature since Reconstruction, Tr. 1255, and

Representative Paschal remains the only Black Republican in the Legislature.

Accordingly, although the Court does not diminish the importance of Representative

Paschal’s election, that election does not support a finding that voting in Alabama,

particularly in the Montgomery area at issue, is more about party than race.

Further, Dr. Hood’s testimony does not match reality in Alabama. It is

undisputed that no elected Black officials serve in a statewide office, Black

Republican candidates in many 2024 primary elections garnered less than ten

percent of the vote, and the only Black Alabamians elected to Congress since the

start of the twentieth century were elected by Black-opportunity districts. See Doc.

230 ¶¶ 93, 107, 109, 111. It is also undisputed that in 2025, all Black Senators and

all but one Black Representative (Representative Paschal) were elected by majority-

Black districts. Id. ¶ 117. Dr. Hood’s testimony does not align with these statistics

and does little to account for them. Accordingly, the Court cannot credit Dr. Hood’s

opinion that voting in Alabama is driven by party and not race.

Dr. Bonneau

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The Court credits Dr. Bonneau’s testimony. The parties do not dispute that his

training and experience qualify him to testify as an expert. See Tr. 1401. His opinions

were clear and consistent throughout his testimony, and (unlike some of the

Secretary’s other experts) he relied on Alabama-specific data. Doc. 189-1 at 1. The

Court observed Dr. Bonneau’s demeanor as he testified, he was careful not to

overstate his opinions, and he acknowledged that the small number of elections he

studied limited them. Tr. 1513 (“You have got to go to war with the data you have

got, not the data you want.”). When confronted with an error in his report, he

acknowledged it and testified candidly about its effects on his conclusions. See, e.g.,

id. at 1413–14; 1532–33. And when he used data only for a limited purpose, he

explained that. See id. 1499–1500, 1534–35. Accordingly, the Court finds his

testimony reliable and helpful.

Dr. Reilly

The Court assigns very little weight to Dr. Reilly’s testimony for three

reasons. First, most of Dr. Reilly’s opinions do not focus on and are not about

Alabama. Dr. Reilly admitted at trial that his expertise and academic research are

not focused on Alabama, id. at 817–18, and that in his report about racial

socioeconomic gaps, he chose not to examine Alabama-specific data, see id. at 824–

27.

Second, Dr. Reilly repeatedly offered opinion testimony without support. The

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Court distinguishes these opinions from overstatements because their underlying

support was unreliable or completely absent. For at least one assertion in his report,

he cited only websites (Wikipedia, Quora, and Reddit) with no scholarship or peer-

reviewed backup. Doc. 189-9 at 11 n.19. When asked whether a source for an

opinion was included in his report, he stated that he was “[n]ot sure” and relied on a

non-peer reviewed article that “cites some research on that point.” Tr. 827–28.

Standing alone, Dr. Reilly’s refusal to limit himself to well-founded opinions

forecloses the Court’s reliance on his testimony.

And third, the Court observed Dr. Reilly’s demeanor at trial, particularly

when he was cross-examined, and found that it was dogmatic, defensive, and

deliberately confrontational. His manner of testifying left the court with the

impression that his goal was to be evocative rather than reliable.

Dr. Reilly testified about some of his social media posts, and that testimony

confirms this impression. For example, he posted that “people in the hood”

understand the “same taste[s] and drives” as Neanderthal rapists, and tried to qualify

the post by stating that he did not mean the term “hood” in “an entirely racial sense.”

Id. at 838–40, 847. And Dr. Reilly’s apparent surprise that the plaintiffs’ “pa[id] a

lot of attention” to his social media posts and overall credibility further diminishes

the Court’s willingness to credit his testimony and assign it great weight. Id. at 840.

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For these reasons, the Court does not find Dr. Reilly’s methods or conclusions

reliable or helpful.

Dr. Carrington

The Court assigns no weight to Dr. Carrington’s testimony. Dr. Carrington

offered opinions about “the historical development of party affiliations among

Alabama voters from comprising the core of the Democratic ‘Solid South’ to

becoming a dependably Republican state.” Doc. 189-3 at 1; see Tr. 1131–32. But he

conceded that his education “did not have a particular focus on the American South,”

he has never taught courses relating to Alabama politics or history, and he is not an

expert in Alabama politics or history. Tr. 1132–33, 1172. He has published two

articles relating to Alabama in the nineteenth century, but no other work about

Alabama. Id. at 1132.

At the outset, Dr. Carrington’s very limited familiarity with Alabama history

and politics greatly reduced the potential value of his testimony in the Court’s

“intensely local appraisal of the electoral mechanism[s]” in Alabama. Allen, 599

U.S. at 19 (internal quotation marks omitted) (quoting Gingles, 478 U.S. at 79). He

exacerbated this limitation by making little to no effort to learn about Alabama

before opining about party affiliations here.

Dr. Carrington admitted that he did not conduct an Alabama-specific analysis

of state elections for his report. See Tr. 1133, 1189–90. Nor did he study how any of

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the factors that he identified as contributing to party realignment in the South

impacted the party realignment in Alabama. See id. 1188–89. He opined about “the

sixth [Senate] factor, which confronts the question of whether or not . . . political

campaigns have been characterized by overt or subtle racial appeals,” Doc. 189-3 at

2 (internal quotation marks omitted), but he conceded that he did not evaluate any

Alabama campaign materials aside from those Dr. Bagley identified, Tr. 1176–77.

Dr. Carrington put forth so little effort to learn about Alabama that he opined about

segregationist viewpoints and party affiliations, but with no knowledge of numerous

relevant prominent civil rights figures from Alabama. See id. at 1192, 1203.

Dr. Carrington’s willingness to opine about Alabama without first learning

about Alabama extends beyond the courtroom. Before he was retained as an expert

in this case, he authored an opinion piece calling the Supreme Court’s ruling in the

Alabama congressional redistricting litigation a “missed opportunity.” Id. at 1209–

11. On cross-examination about the piece, he distinguished his work as an op-ed

columnist from his scholarly work. Id. at 1211.

Dr. Carrington’s lack of relevant expertise, together with his carelessness,

forecloses the Court’s reliance on his testimony.

2. Senate Factor 2

“[T]he extent to which voting in the elections of the state or political subdivision
is racially polarized.” Gingles, 478 U.S. at 37.

The Court has already found that voting in the challenged districts is starkly

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and intensely racially polarized, and that finding is based on substantial evidence,

concessions, and the material agreement of the Secretary’s experts. See supra Part

V.C. In his Senate Factor 2 argument, the Secretary urges this Court to examine the

cause of that pattern and find that it is attributable to party politics, not racial causes.

See Tr. 1667; Doc. 251 ¶ 219. The Secretary draws on case law warning courts that

patterns do not tell the whole story of how voters vote because “what appears to be

bloc voting on account of race may, instead, be the result of political or personal

affiliation of different racial groups with different candidates.” Solomon, 221 F.3d

at 1225; see Doc. 251 ¶ 219.

But when the Court looks past the pattern in this case, it sees no evidence that

only party politics are at work. First, the Secretary offers Dr. Hood’s testimony to

suggest that “[r]acial polarization in Alabama is a product of political partisanship,

not racial bias.” Doc. 251 at 60 (emphasis omitted); see id. ¶¶ 226–27, 244–46. The

Court has already explained that the basis for Dr. Hood’s testimony is quite limited.

See supra Part V.D.1.

Second, the Secretary offers the testimony of Dr. Bonneau that based on his

review of the evidence, “the explanation for the results in Alabama are far more

consistent with political party” than race. Tr. 1460, 1543; see Doc. 189-1 at 17. Dr.

Bonneau examined certain elections and straight-ticket voting. See generally Doc.

189-1.

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But the Court finds Dr. Bonneau’s evidence limited and the Secretary’s

arguments from it overdrawn. Dr. Bonneau’s selected data included certain judicial

elections in the state (which he has studied before, and which analysis contained an

error that reversed his conclusions, see Tr. 56–57, 1413, 1517), two rounds of state

legislative elections in 2022 (one of which was flagged by counsel, id. at 1520, and

with a focus on the election of Representative Paschal, whose success Dr. Bonneau

acknowledged as “rare,” id. at 1521), and the 2018 election of Bill Lewis to a circuit

judgeship in Alabama state court (which was flagged for him by counsel and which

he acknowledged as “unusual,” id. at 1523–24). See Doc. 189-1. Between limitations

and flaws, the Court does not see that this limited subset of data has the potential to

tell the Court very much about how to view the relative influence of race and party

in modern Alabama legislative elections.

The Court also sees significant limitations on Dr. Bonneau’s opinions about

straight-ticket voting—that approximately two-thirds of Alabamians vote by

“straight ticket,” and “[t]he prevalence of straight ticket voting means that most

voters are voting for a political party, not a candidate.” Doc. 189-1 at 4; see Tr.

1424–26. As Dr. Liu pointed out, “Dr. Bonneau does not explain whether he has any

knowledge of these voters directly, nor the racial identities of these straight-ticket

voters nor localities/precincts the[] voters resided in.” Doc. 206-18 at 4; see Tr. 56.

And even Dr. Bonneau acknowledged that he could not rule out that Black

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candidates were penalized at the polls on account of race. See Tr. 1530. Ultimately,

Dr. Bonneau’s limited evidence simply does not support the Secretary’s assertion

that it has “presented substantial evidence that a majority of [W]hite voters in

Alabama vote against minority-preferred candidates not for racial reasons, but for

partisan and ideological ones.” Doc. 251 ¶ 223.

Third, in connection with the Secretary’s reliance on Dr. Bonneau, the

Secretary relies on a recent case involving a Section Two challenge to Alabama’s

at-large process for electing appellate judges: Alabama State Conference of the

NAACP v. Alabama, 612 F. Supp. 3d 1232 (M.D. Ala. 2020). That court found that

Alabama is a “ruby red” state, which has made it “virtually impossible for Democrats

– of any race – to win statewide in Alabama in the past two decades.” Id. at 1291.

But that finding was based on an evidentiary record that is absent here. And read in

context, that finding does not stand for the broad proposition that racially polarized

voting in Alabama is always simply party politics; rather, it supports the more

limited proposition that in that case, “the notion that African-American candidates

lose solely because of their skin color [wa]s not supported by the evidence.” Id. at

1293.

Further, the Court is not looking at a record about two decades’ worth of

racially polarized voting in selected judicial elections. This record demonstrates a

near-total absence of Black Alabamians in statewide office and legislative office

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(outside of Black-opportunity districts) that dates all the way back to Reconstruction.

Accordingly, the Court cannot reach the same conclusion that the Alabama State

Conference of the NAACP court reached, and it cannot assign the weight to its

conclusion that the Secretary urges us to assign.

Fourth, the Secretary relies on the recent election of Representative Paschal

from a majority-White Alabama House district and the success of other Black

Republicans in the state. See, e.g., Doc. 251 ¶¶ 243–45 (Representative Paschal); id.

¶ 247 (then-Judge Bill Lewis); id. ¶ 248 (Bill McCollum); id. ¶ 249 (Valerie

Branyon). The Court does not diminish the inherent significance of Representative

Paschal’s unusual election, but one election of one Black Republican from one

majority-White district in 150 years is hardly a sufficient basis for the Court to find

that patterns of racially polarized voting are caused by party more than race. Dr.

Bonneau cannot help but agree. Tr. 1521–22.

The Secretary also relies on lay witness testimony of three Black Republicans,

but this evidence is similarly limited. Doc. 251 ¶¶ 248–52. Only one of those

individuals, Cedric Coley, lived and voted in the Montgomery area. Further, Mr.

Colely was unsuccessful in his campaign as a Republican and received only

approximately nineteen percent of the vote in the primary election. See Tr. 1330.

Both Mr. McCollum and Ms. Branyon have been successful in either primary

or general elections as Republican candidates in Fayette County, see id. at 1367 (Mr.

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McCollum); id. at 850–51 (Ms. Branyon), but the Secretary offers no evidence for

the Court to draw a larger inference that these two Black Republicans—neither of

whom live or were elected in the Montgomery area—are evidence of a larger pattern

of a lack of political cohesion among Black Alabamians. This absence of evidence

makes sense—even Ms. Branyon testified that Black voters encouraged her to run

for office as a Democrat. Id. at 876–77.

Dr. Bonneau also testified about the victory of Philip Ensler, a White

Democrat, over a Malcolm Calhoun, a Black Democrat, in a majority-Black district

in the 2022 House of Representative election. See id. at 1519–21; Doc. 189-1 at 10.

Dr. Bonneau testified that this election is “[a]nother indication that race is not the

driving force behind vote choice” in Alabama. Doc. 189-1 at 10. But he again

conceded on cross examination that this election result is a “rare.” Tr. 1520.

The Court cannot reconcile the Secretary’s assertion that White voters are

willing to support minority candidates in large numbers with political reality. If the

Secretary were right about this, Representative Paschal, then-Judge Lewis, Mr.

McCollum, Ms. Branyon, and Representative Ensler would not be rare, and they or

someone similarly situated would have a role and presence in the area of the

challenged district in this case.

Ultimately, the rarity of Black electoral success in Alabama tells the Court

that the Secretary may be substantially overstating White voters’ willingness to

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support minority candidates, particularly in Montgomery. This inference is

consistent with record evidence in several respects. First, Dr. Liu testified about two

Montgomery-area elections that provide insight about White support for Black

candidates in both political parties—the 2024 Republican primary for the

Montgomery County Commission District 3 and in congressional District 2. See

Doc. 206-18 at 3. In the 2024 Republican primary for the Montgomery County

Commission, “Justin Castanza, a [W]hite candidate, ran against Cedric Coley, a

Black candidate” and “Castanza won the Republican nomination with 80.38% of the

votes cast.” Id. In the 2024 Republican primary in congressional District 2, Dr. Liu

explained that the four Black candidates finished behind the four White candidates,

and the four Black candidates “together received only 6.2% of the total vote,” which

suggests that White Republicans are not willing to support minority candidates in

large numbers. Id.

Second, several stipulated facts are to the same effect: (1) “In the 2024

Republican primary election for Alabama’s U.S. Congressional District 3, Black

candidate Barron Rae Bevels finished in third place behind two [W]hite candidates,

receiving 5.6% of the vote.”; (2) “In the 2024 special Republican primary election

for Alabama State House District 27, Black candidate Billy Ray Todd finished fifth

of six[th], behind four [W]hite candidates, receiving 8.7% of the vote.”; (3) “In the

2022 Alabama Republican U.S. Senate primate, Black candidate Karla DuPriest

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finished fifth behind four [W]hite candidates, receiving 0.9% of the vote.” Doc. 230

¶¶ 107, 109, 111.

Third, the Court heard substantial evidence suggesting that race is a driving

factor in Black Alabamians’ party affiliations and voting patterns. More particularly,

this evidence concerned the high percentage of Black Alabamians’ who agree with

traditionally Republican stances on social issues like abortion or same-sex marriage,

but who nevertheless vote overwhelmingly for Democratic candidates. For instance,

Dr. Bagley testified that “roughly half of Alabama’s [B]lack citizens oppose abortion

in nearly all cases” and that “a substantial number of [B]lack Alabamians oppose

same-sex marriage.” Tr. 564. He testified that if such social issues were the primary

factors driving voting, “we would expect to see a concomitant number of [B]lack

voters in Alabama voting Republican. And we don’t.” Id. at 564–65; see Doc. 206-

21 at 14. The Secretary’s expert on this issue, Dr. Carrington, acknowledged but

could not explain this phenomenon. See Tr. 1152–62.

Notably, lay witnesses for the Secretary, Ms. Branyon and Mr. McCollum,

testified that they align with the Republican party because of their values. See id. at

851–52 (Ms. Branyon’s testimony that she identifies as a Republican in part because

of her religion and beliefs about abortion and same-sex marriage); id. at 1356 (Mr.

McCollum’s testimony that he aligns with the Republican party because of

“conservative values”). But as explained above, there is no evidence that Mr.

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McCollum and Ms. Branyon are examples of a broader trend of Black participation

in the Republican party in Alabama, much less in Montgomery.

The Secretary urges the Court to focus on the voting patterns of White

Alabamians. He argues that “White voters are the appropriate focus because it is

their voting behavior, as that of the majority group, that allegedly causes [B]lack-

preferred candidates to lose elections.” Doc. 251 ¶ 267. The Secretary relies on Dr.

Carrington’s testimony about the party shift in the South that, he says, occurred

because of “respective positions on non-racial issues—namely, economics, foreign

policy, religion, abortion, and LGBTQ rights.” Id. ¶ 271 (citing Doc. 189-3 at 21–

29). But as explained above, the Court assigns no weight to Dr. Carrington’s

testimony. See supra Part V.D.1.

Further, the Secretary cannot have it both ways. The Court cannot consider

the Secretary’s argument that Black-preferred candidates do not enjoy success in

Alabama elections because they run as Democrats without also considering the

reasons why Black Alabamians are overwhelmingly politically cohesive in their

affiliation with the Democratic party. In any event, the evidence described above

simply does not support a finding that White voters vote for Black-preferred

candidates or Black candidates, particularly in the Montgomery area, where the

Court conducts its “intensely local appraisal.” Allen, 599 U.S. at 19 (quoting

Gingles, 478 U.S. at 79).

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Finally, acknowledging that race plays a key role in party attachments keeps

the controlling legal standard honest and workable. It would be deeply contradictory

for that standard to demand political cohesion in a minority group for the second and

third Gingles preconditions, then deny Section Two relief based on that same

cohesion because party politics tilt Senate Factor 2 against the minority group. Put

differently, the Court’s analysis is not confounded by partisanship based on race. As

the Court understands it, Gingles accounts for partisanship based on race in its

demand for political cohesion among the minority group, which will be absent in

times or places where party affiliations are driven primarily by something other than

race.

The Court understands the statutory command about the totality of the

circumstances as an instruction to look at the whole picture, not as permission (let

alone a requirement) to carve it up into parts and examine each part in isolation from

the others. When the Court considers the whole picture, it cannot understand the

patterns it sees as mere party politics. It acknowledges the well-known reality that

party affiliations drive voting patterns, but it understands this evidentiary record as

indicating that the Court cannot separate voters’ racial considerations from their

party affiliations, and that it must not ignore the role that voters’ race plays in their

partisan attachments. Accordingly, the Court finds that when it looks at racial

cleavages in voting patterns in Alabama, what it sees is appropriately described as

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racially polarized voting, and Senate Factor 2 weighs in favor of the plaintiffs.

3. Senate Factor 7

“The extent to which members of the minority group have been elected to
public office in the jurisdiction.” Gingles, 478 U.S. at 37.

The Court has little difficulty finding that Senate Factor 7 weighs heavily in

favor of the plaintiffs.

Four jointly stipulated facts do most of the heavy lifting here:

93. There are currently no Black statewide elected officials in Alabama

regardless of political party. Judge Lewis is a Black statewide official,
but he was appointed to his position in 2024 and has not run in any
election for that office.

94. Only one Black person has ever been elected to statewide office in
a contested election in Alabama. In 1982 and 1988, the late Justice
Oscar W. Adams, Jr. was elected in contested elections to two
consecutive terms, after first being appointed. In 1994, Justice Ralph D.
Cook won an unopposed statewide election, after first being appointed.

117. In 2024, 20.0% of State Senate seats and 24.8% of State House
seats in Alabama are held by Black legislators. All but one of these
Black House members are elected from majority-Black districts. All
Black Senators are elected from majority-Black districts.

102. Since the start of the Twentieth century, Alabamians have never
elected a Black person to Congress outside of the majority-Black
district 7, and only since 1992 when a court order first established
district 7 as a majority-Black district.

Doc. 230 ¶¶ 93–94, 102, 117. Since the time that the parties filed their jointly

stipulated facts, a Black Alabamian won a seat in the United States House of

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Representatives in District 2—a Black-opportunity district that was the result of

Section Two litigation in the Alabama congressional districting cases.

The Secretary does not dispute that “Blacks have not been winning statewide

elections in Alabama,” but argues that this phenomenon is “because they have

tended to run as Democrats,” Tr. 1671—an argument that this Court has already

rejected. See supra Part V.C.4. The Secretary does not (because he cannot) rebut the

reality that Black Alabamians enjoy zero success in statewide elections, and near-

zero success in legislative elections outside of Black-opportunity districts protected

by federal law.

To be sure, Black Alabamians have made progress in electoral success. Dr.

Hood reported that there were no Black Senators or Representatives in the

Legislature in 1965, there were three Black Senators and thirteen Black

Representatives in 1981, and there are currently seven Black Senators and twenty-

six Black Representatives. Doc 251 ¶ 375 (citing Doc. 189-5 at 22).

But just as the Court refused to evaluate Black voters’ partisan affiliations in

a vacuum, it refuses to evaluate their electoral gains in a vacuum. Every gain in

congressional elections has come as a result of federal law (primarily Section Two),

and even Dr. Hood acknowledges that the reality is much the same for the gains in

state legislative elections. See Tr. 1258–60. Accordingly, the Court rejects the

Secretary’s argument that Senate Factor 7 “has at best limited applicability to this

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case.” Doc. 251 ¶ 371. Senate Factor 7 weighs decidedly in favor of the Plaintiffs.

4. Senate Factors 1, 3, and 5

Senate Factor 1: “The extent of any history of official discrimination in the state
. . . that touched the right of the members of the minority group to register, to
vote, or otherwise participate in the democratic process.” Gingles, 478 U.S. at
36–37.

Senate Factor 3: “The extent to which the state . . . has used . . . voting practices
or procedures that may enhance the opportunity for discrimination against the
minority group.” Id. at 37.

Senate Factor 5: “The extent to which members of the minority group in the
state . . . bear the effects of discrimination in such areas as education,
employment, and health, which hinder their ability to participate effectively in
the political process.” Id.

The Court analyzes these three Senate Factors together because much of the

evidence that is probative of one of them is probative of more than one of them.

Alabama’s history of racial and voting-related discrimination is undeniable and well

documented. The Secretary argues that Alabama has come a long way, but the

question before the Court is more pointed: has it come far enough for these factors

to be neutral or to weigh in favor of the Secretary?

The Court is keenly aware of the instruction that “past discrimination cannot,

in the manner of original sin, condemn governmental action that is not itself

unlawful.” Abbott, 585 U.S. at 603 (internal quotation marks omitted). It should be

apparent that the Court does not assign Alabama’s shameful history dispositive

weight, and it does not grant Section Two relief simply because it condemns past

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discrimination. The Court has carefully considered an extensive record about both

past and present discrimination, and a wealth of expert analysis of recent data about

Black Alabamians’ lives and voting patterns, along with other evidence.

All the evidence about Senate Factors 1, 3, and 5 tells the same story: official

discrimination on the basis of race has affected Black Alabamians’ lives and political

participation for a long time, and it continues to affect Black Alabamians’ lives and

political participation today. The Court first discusses the parties’ stipulated facts

that bear on these Senate Factors, then considers relevant Alabama litigation history,

then considers the lay testimony that offered firsthand recollections about official

discrimination, and then considers the expert testimony about socioeconomic

disparities and their impact on political participation.

Stipulations

The parties’ stipulated description of at least two instances of official

discrimination that bear on Senate Factors 1 and 3: (1) “After the 2010 census, Black

voters and legislators successfully challenged [twelve] state legislative districts as

unconstitutional racial gerrymanders. See Ala. Legis. Black Caucus v. Alabama, 231

F. Supp. 3d 1026, 1348–49 (M.D. Ala. 2017)[,]” Doc. 230 ¶ 70; and (2) “More

recently, a three-judge panel preliminarily enjoined two different congressional

districting plans that had been adopted by the Alabama Legislature following the

2020 census. The three-judge court found that both the Legislature’s 2021 plan and

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2023 plan likely violate the Voting Rights Act, see Milligan v. Merrill, 582 F. Supp.

3d 924 (N.D. Ala. 2022), and Milligan v. Allen, 690 F. Supp. 3d 1226 (N.D. Ala.

2023)[,]” Doc. 230 ¶ 71. The parties jointly acknowledge that “[t]he former decision

was upheld in full by the U.S. Supreme Court, see Allen v. Milligan, 599 U.S. 1, 22

(2023), and the latter was left in place after the Court declined to stay the injunction,

see Allen v. Milligan, 144 S. Ct. 476 (2023).” Doc. 230 ¶ 71.

More recently, the three-judge court found that the Legislature’s 2023 plan

violated Section Two and that the Legislature intentionally discriminated against

Black Alabamians by refusing to enact a plan with an additional Black opportunity

district that the district court and the Supreme Court said was required. See

Singleton, 2025 WL 1342947, at *125–71, 194–213.

Alabama’s Litigation History

The Court next makes findings based on judicial precedents in Alabama:

• Prior to 1960, the Legislature failed to reapportion for 50 years. As a result,

Alabama’s entire legislative apportionment scheme was struck down for
violating the principle of one person, one vote. Reynolds, 377 U.S. at 568. On
remand, a three-judge court found that, in devising remedial maps to correct
the malapportionment, the “Legislature intentionally aggregated
predominantly Negro counties with predominantly [W]hite counties for the
sole purpose of preventing the election of Negroes to [State] House
membership.” Sims, 247 F. Supp. at 109.

• Following Reynolds and the 1970 Census, the Legislature again failed to
redistrict and a three-judge federal court was forced to draw new district lines.
Sims, 336 F. Supp. at 940. The court rejected the Alabama Secretary of State’s
proposed map because of its racially “discriminatory effect” on Black voters.
Id. at 936.
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• In the 1980s, the United States Attorney General denied preclearance under
the Voting Rights Act to maps drawn by the Legislature to redistrict State
House and Senate maps because of their discriminatory effect on Black voters
in Jefferson County and the Black Belt. Letter from Wm. Bradford Reynolds,
Assistant Att’y Gen., C.R. Div., U.S. Dep’t of Just., Hon. Charles A.
Graddick, Ala. Att’y Gen. (May 6, 1982),
https://www.justice.gov/sites/default/files/crt/legacy/2014/05/30/AL-
1520.pdf. Shortly thereafter, a three-judge court rejected Alabama’s proposed
interim remedial state maps in part because Alabama’s maps “had the effect
of reducing the number of ‘safe’ [B]lack districts” in and near Jefferson
County. Burton v. Hobbie, 543 F. Supp. 235, 237 (M.D. Ala. 1982).

• After the 1990 census, the State entered a consent decree to resolve a Voting
Rights Act lawsuit filed on behalf of Black voters. See Brooks, 631 So. 2d at
884.
• In 1986, a federal court found that the state laws requiring numbered posts for
nearly every at-large voting system in Alabama had been intentionally enacted
to dilute Black voting strength, and that numbered posts had the effect of
diluting Black voting strength in at-large elections. Dillard v. Crenshaw
County, 640 F. Supp. 1347, 1357 (M.D. Ala. 1986). The court also found that
from the late 1800s to the 1980s, Alabama had purposefully manipulated the
method of electing local governments as needed to prevent Black citizens
from electing their preferred candidates. See id.

• Federal courts recently ruled against or altered local at-large voting systems
with numbered posts created by the Legislature to address their alleged racially
discriminatory purpose or effect. See, e.g., Jones v. Jefferson Cnty. Bd. of
Educ., No. 19-CV-01821, 2019 WL 7500528, at *2, *4, 2019 U.S. Dist.
LEXIS 223556, at *9 (N.D. Ala. Dec. 16, 2019); Ala. State Conf. of the
NAACP v. City of Pleasant Grove, No. 18-cv-02056, 2019 WL 5172371, at
*1, 2019 U.S. Dist. LEXIS 179206 (N.D. Ala. Oct. 11, 2019).

• The Supreme Court struck down Alabama’s discriminatory misdemeanant

disfranchisement law, Hunter v. Underwood, 471 U.S. 222, 225 (1985), and
a state law permitting certain discriminatory annexations, City of Pleasant
Grove v. United States, 479 U.S. 462, 466–67, 472 (1987).
• Since the decision in Shelby County v. Holder, federal courts have ordered
more than one political subdivision in Alabama to be bailed back into
preclearance review under Section 3(c) of the Voting Rights Act. See Jones,

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2019 WL 7500528, at *4–5, 2019 U.S. Dist. LEXIS 223556, at *12; Allen v.
City of Evergreen, No. 13-0107, 2014 WL 12607819, at *2, 2014 U.S. Dist.
LEXIS 191739, at *3–4 (S.D. Ala. Jan. 13, 2014).

• In 2018, in a case challenging the attempt by the City of Gardendale, which is

85% White, to form a school district separate from Jefferson County’s more
racially diverse district, the Eleventh Circuit affirmed a finding that “race was
a motivating factor” in the city’s effort. Stout ex rel. Stout v. Jefferson Cnty.
Bd. of Educ., 882 F.3d 988, 1000, 1009 (11th Cir. 2018).

• Alabama was subjected to a statewide injunction prohibiting the state from

failing to disestablish its racially dual school system. Lee v. Macon Cnty. Bd.
of Educ., 267 F. Supp. 458, 480 (M.D. Ala. 1967) (per curiam), aff’d sub nom.
Wallace v. United States, 389 U.S. 215 (1967). The order resulted from the
court’s finding that the State Board of Education, through Governor George
Wallace, had previously wielded its powers to maintain segregation across the
state. Id. at 462. A trial court found that for decades, state officials ignored
their duties under the statewide desegregation order. See Lee v. Lee Cnty. Bd.
of Educ., 963 F. Supp. 1122, 1128–30 (M.D. Ala. 1997). A court also found
that the state did not satisfy its obligations to remedy the vestiges of
segregation under this order until as late as 2007. Lee v. Lee Cnty. Bd. of Educ.,
476 F. Supp. 2d 1356, 1367–68 (M.D. Ala. 2007).

• In 1991, a trial court in Knight v. Alabama, 787 F. Supp. 1030 (N.D. Ala.
1991), found that Alabama had failed to eliminate the lingering and continued
effects of segregation and discrimination in the University of Alabama and
Auburn University, and at the state’s public Historically Black Colleges and
Universities. See id. at 1377–78. In 1995, the trial court issued a remedial
decree analogous to the statewide injunction issued in Lee v. Macon, and the
court oversaw implementation of that order for over a decade. Knight v.
Alabama, 900 F. Supp. 272, 349–73 (N.D. Ala. 1995). Alabama did not satisfy
its obligations under that order until 2006. Knight v. Alabama, 469 F. Supp.
2d 1016, 1039 (N.D. Ala. 2006).

• After the 2010 census, Black voters and legislators successfully challenged
twelve state legislative districts as unconstitutional racial gerrymanders. See
Ala. Legis. Black Caucus, 231 F. Supp. 3d at 1348–49.
• In United States v. McGregor, 824 F. Supp. 2d 1339, 1345–47 (M.D. Ala.
2011), a federal court found that Alabama State Senators conspired to depress
Black voter turnout by keeping a referendum issue popular among Black

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voters (whom the Senators called “Aborigines”) off the ballot.

Singleton, 2025 WL 1342947, at *158–59.

These judicial precedents illuminate a pervasive and protracted history of

official discrimination in voting rights in Alabama. This history spans numerous

electoral contexts, census cycles, and jurisdictions. In multiple cases it has run well

into the present era: several of the decisions recited above were issued in the last ten

years and by federal judges who remain in service today. Against that backdrop, the

Court turns to the evidentiary record in the case before it.

Lay Testimony About Firsthand Experiences of Official Discrimination

The Court heard at trial compelling testimony from Black Alabamians who

personally experienced official discrimination, including several who attended

segregated public schools. They described their experiences in detail:

• Evan Milligan, a Black Alabamian who was forty-three years old at the time
of trial, testified about witnessing demonstrations by the Ku Klux Klan while
growing up in Montgomery. Tr. 453, 459.

• Mary Peoples attended a segregated elementary and high school in Alabama.

Id. at 122. She testified that both of her children attended “[p]redominantly
[B]lack” high schools in Huntsville. Id. at 127.

• Senator McClendon testified that he attended a segregated, all White high

school. Doc. 235-1 at 82.

• Bill McCollum testified that when he was originally hired as a police officer
for the Fayette County Police Department, “the other officers said they [were
not] going to work with [him]. . . . And said they’d quit before they’d work
with a [B]lack and things of that nature.” Tr. 1363. Mr. McCollum was also
once asked to leave a restaurant because “it did not serve [B]lack people.” Id.
at 1374.
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• When Mr. McCollum first ran for sheriff, the county administrator told him
that “he didn’t know if . . . he could register” Mr. McCollum to qualify as a
candidate and made him wait in the courthouse for approximately three hours
before returning to say that he could qualify. Id. at 1363–64. Mr. McCollum
was the first Black candidate to qualify for an election in Fayette County. Id.
at 1364.

The Secretary does not dispute these firsthand recollections. Instead, he

asserts that this evidence cuts in his favor—that the “[p]laintiffs did not present a

witness whose political participation was hampered by past discrimination” because

the witnesses who are “old enough to have attended segregated schools . . . are all

extremely politically active.” Doc. 251 ¶ 338.

The Court emphatically rejects this assertion. It does not see political activism

as evidence that these witnesses were not adversely affected by the official

discrimination they experienced. It sees that they are politically active both despite

that discrimination and because they experienced its harmful effects. Additionally,

the Court refuses to give punitive effect to the political participation of Black

Alabamians who have personally suffered the ill effects of official discrimination

and responded with civic engagement in the democracy that discriminated against

them.

Expert Testimony

The Court also has the benefit of expert testimony from both parties about

these Senate Factors—from Dr. Bagley and Dr. Burch for the plaintiffs and Dr.

Hood, Dr. Reilly, and Dr. Carrington for the Secretary. As an initial matter, the Court
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repeats its findings that both Dr. Bagley and Dr. Burch are credible experts (even

though it does not adopt or rely on every aspect of their testimony), and that the

Court assigns less or no weight to the testimony of Dr. Reilly and Dr. Carrington.

See supra at Part V.D.1. As explained below, the Court credits Dr. Hood’s limited

testimony about these Senate Factors and finds it irrelevant.

Dr. Bagley opined at length about Alabama’s history of official

discrimination, particularly with respect to voting rights and redistricting. See Docs.

206-19, 206-21. The Court already made findings about that history based on

extensive judicial precedents, see supra Part V.D.4, and it regards those precedents

as generally sufficient to establish the history. But Dr. Bagley did give the Court one

additional detail about the history that illuminates its scope and recency: that school

desegregation litigation in Huntsville and Madison County remains ongoing in

federal courts to this day. Doc. 206-19 at 23.

Dr. Bagley and Dr. Burch both opined about socioeconomic disparities

between Black Alabamians and White Alabamians on numerous dimensions:

education, economics, housing, and health, among others. See Docs. 206-19, 206-

11. The Court finds that many of these disparities are substantial and undeniable.

As one example, Dr. Bagley testified that the Black population in Huntsville

and Montgomery are “more likely to live in poverty,” “more likely to be

unemployed,” “more likely to rely on food assistance benefits,” “less likely to have

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broadband Internet service or any Internet access,” and “less likely to have health

insurance.” Tr. 546; see Doc. 206-19 at 21. As another example, he testified that

eleven of the schools labeled by the state as “‘[f]ailing’” were predominantly Black

public schools in Montgomery. Doc. 206-19 at 25.

Dr. Burch also identified substantial disparities, but from a systematic,

statistical perspective. She testified that the unemployment rate for Black workers in

Alabama is nearly twice that of White workers; the family poverty rate for Black

Alabamians is nearly triple the rate for White Alabamians (and in Montgomery

specifically, six times as high); the infant mortality rate for Black infants in Alabama

is nearly three times higher than the rate for White infants in Alabama; and Black

Alabama households are more than twice as likely to lack access to a vehicle at home

than White Alabama households (and in Montgomery specifically, almost three

times more likely). See Doc. 206-11 at 12–13, 15–17; Tr. 680–82, 685.

The Court also credits Dr. Burch’s testimony that Black Alabamians have

significantly lower educational attainment than White Alabamians. She reported that

“[s]tatewide and at the county level, Black adult Alabamians were less likely to have

graduated from high school or to have attained a bachelor’s degree than White

Alabama adults.” Doc. 206-11 at 3. She also reported data establishing stark

disparities among school-aged children. See id. at 9 n.31; Tr. 675.

Dr. Bagley and Dr. Burch both opined that these disparities are inseparable

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from (and in large part the result of) the state’s history of official discrimination. Dr.

Bagley explained that from an historian’s perspective, there is no way to account for

these disparities “other than the state’s history of discrimination.” Tr. 554. And Dr.

Burch explained that Black Alabamians’ lower educational attainment in particular

is “caused, in part, by historical and contemporary discrimination in education,”

including “separate-but-unequal” education. Doc. 206-11 at 9; see Tr. 675–78. And

Dr. Burch linked educational attainment with “income, poverty, and employment,”

meaning that Black Alabamians’ lower educational attainment in turn drives other

socioeconomic disparities. Doc. 206-11 at 12.

The Court credits these explanations and accepts the experts’ consensus that

Black Alabamians’ lower educational attainment is traceable to segregated public

schools and dilapidated schools in predominantly-Black areas. Likewise, it seems

near-obvious that communities with lower educational attainment are at greater risk

for widespread unemployment and poverty than communities with higher

educational attainment.

Dr. Bagley and Dr. Burch also opined that many of these disparities hinder

Black Alabamians’ opportunity to participate in the political process. Dr. Bagley

reiterated his earlier explanation (1) that “[b]ecause [W]hite Alabamians tend to

have more education and therefore higher income than Black Alabamians,” White

Alabamians “tend to be better able than Black Alabamians to afford a car, internet

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service, a personal computer, or a smart phone; . . . take time off from work; . . .

afford to contribute to political campaigns; . . . afford to run for office; . . . [and to]

have access to better healthcare, and (2) that [e]ducation has repeatedly been found

to correlate with income [and] independently affects citizens’ ability to engage

politically.” Doc. 206-19 at 21 (internal quotation marks omitted).

Dr. Burch relied on a well-established scholarly consensus linking critical

disparities to political participation. She testified that educational attainment is “very

strongly associated with voting,” Tr. 672, “[t]he powerful relationship between

education and voter turnout is arguably the most well-documented and robust

finding in American survey research,” and “the relationship between education and

voting is a causal one,” Doc. 206-11 at 8–9 (internal quotation marks and citation

omitted).

Dr. Burch specifically explained how Alabama’s history of segregated public

schools still impacts voting participation today: “In 2020 . . . 38.6 percent of votes

in [the Alabama] general election were cast by people age 60 and older, people who

were at least school age in 1965, which means they were partially educated during a

time when Alabama still had segregated public schools.” Tr. 676.

Dr. Burch further explained that lower educational attainment impacts other

socioeconomic factors that also affect voting rates for Black Alabamians. She

explained how racial disparities in family poverty, internet access, and access to

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transportation hamper voting participation due to an inability to learn about

candidates, absentee vote, locate voting information, and travel to polls. See id. 678,

684–86.

The Court credits this testimony, which is not disputed, and the Court says

again that these are dynamics that strike the Court as near-obvious. That said, the

Court does not make findings about all of Dr. Bagley’s testimony, nor all of Dr.

Burch’s. It does not make findings about every instance of alleged official

discrimination that was discussed in expert reports or at trial, nor every disparity that

was discussed. For example, the Court makes no findings about racial disparities in

interactions with the criminal justice system. Further, it makes no findings about the

idea that Dr. Burch testified about, sometimes labeled as “structural racism,” that

attributes most or all socioeconomic disparities or other differences in the lives of

Black Alabamians and White Alabamians to discrimination. The Court makes only

those findings necessary to reach a conclusion about these Senate Factors, and no

more.

In that regard, the Court says simply that the record reflects (without

meaningful dispute) stark racial socioeconomic disparities that (1) are clearly

traceable to Alabama’s lengthy history of official discrimination, and (2)

unsurprisingly hinder Black Alabamians’ political participation.

The Court rejects the Secretary’s argument, based on the testimony of Dr.

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Hood and Dr. Reilly, that these kinds of racial disparities are everywhere in the

United States, such that if they are assigned substantial weight, they will invariably

drive a finding that the totality of the circumstances supports a Section Two plaintiff.

Doc. 251 ¶¶ 307–13. This is for two reasons. First, the Secretary’s assertion is

overwrought: the Court does not consider socioeconomic disparities, nor their causes

or effects, nor any other Senate Factor, in a vacuum. And the Court does not grant

Section Two relief simply because Black Alabamians are worse off than White

Alabamians on various metrics—the Court has analyzed substantial other evidence.

Federal law makes crystal clear that this is the legal standard, as it has for forty

years, so the Court harbors no concern that any other federal court will grant Section

Two relief simply because of socioeconomic disparities across races. For example,

when racially polarized voting is absent, socioeconomic disparities alone will not

support Section Two relief. Likewise, as evidenced by the Huntsville-area claim in

this case, when a reasonably configured remedial district cannot be drawn because

the minority population is too geographically dispersed, socioeconomic disparities

alone will not support Section Two relief.

Second, the Secretary’s assertion is too narrowly focused. The Court must do

more than simply crunch numbers to analyze these Senate Factors properly. The bare

fact of a statistical disparity is important, but insufficient, to generate a clear

understanding of the presence or absence of the Factors.

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5. Senate Factor 6

“Whether political campaigns have been characterized by overt or subtle

racial appeals.” Gingles, 478 U.S. at 37.

The Court finds that Senate Factor 6 weights in favor of the plaintiffs, but to

a lesser degree than do Senate Factors 2, 7, 1, 3, and 5. Dr. Bagley offered several

examples of racial campaign appeals in his expert report, see Doc. 206-19 at 30–33,

some of which he testified about at trial. The Court need not decide whether every

example reflected a racial appeal, but at least three of them did.

Dr. Bagley testified about the 2017 United States Senate campaign between

former Chief Justice of the Alabama Supreme Court Roy Moore and former United

States Senator Doug Jones, and he testified that “both candidates in that campaign

relied on racial appeals.” Tr. 555. Roy Moore, who is White, acclaimed the

antebellum period in the South as “‘great at the time when families were united –

even though we had slavery. They cared for one another. People were strong in the

families. Our families were strong. Our country had a direction.’” Doc. 206-19 at

32–33; see Tr. 556. Doug Jones, who is White, “sent mailers to Black voters

indicating that Moore . . . had fought to preserve segregation and had ties to hate

groups like Ku Klux Klan” and “argued that Moore was thus ‘not on our side,’ in an

apparent reference to racial ‘sides.’” Doc. 206-19 at 33; see Tr. 558. Another mailer

“featured the skeptical face of a [B]lack man with the appeal: ‘Think if a [B]lack

man went after high school girls [as Moore was alleged to have done] anyone would
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try to make him a senator?’” Doc. 206-19 at 33; see Tr. 558–59.

The Secretary argues that Senator Jones’s mailers cannot be evidence of vote

dilution because the ads were designed “to pull [B]lack voters into the process.” Tr.

1671; see Doc. 251 ¶¶ 365–67. But he does not dispute that they targeted Black

voters, and Senate Factor 6 does not limit racial appeals in political campaigns to

those that target White voters.

As another example, former Alabama Supreme Court Chief Justice Tom

Parker stated that he had “‘taken on and beaten the Southern Poverty Law Center,’”

which is “a well-known Montgomery-based race advocacy organization,” in an

advertisement showing “images of an African-American Democratic

congresswoman from California.” Doc 206-19 at 33 (some internal quotation marks

omitted) (quoting Ala. State Conf. of NAACP, 612 F. Supp. at 1309).

The Secretary argues that even if this campaign ad may be construed as a

racial appeal, it “‘do[es] not demonstrate a pattern, practice, or routine of racial

appeals across the election landscape.’” Doc. 251 ¶ 368 (quoting Ala. State Conf. of

NAACP, 612 F. Supp. at 1311); see Tr. 1670. There is no dispute that the statement

was made as part of a campaign, nor that it is a racial appeal.

Based on this evidence, the Court finds that there is some evidence of racial

appeals in Alabama campaigns, and Senate Factor 6 tilts in favor of the plaintiffs.

At the same time, the Court cannot find that this factor weighs as heavily in favor of

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the plaintiffs as the other factors that have already been discussed. Although the

examples described above are prominent and recent, the record does not contain any

systematic or statistical evaluation of the extent to which political campaigns are

characterized by racial appeals, so the Court cannot determine whether these

examples indicate that racial appeals occur frequently, regularly, occasionally, or

rarely.

6. Senate Factor 8

“Whether there is a significant lack of responsiveness on the part of elected

officials to the particularized needs of the members of the minority group.”
Gingles, 478 U.S. at 37.

The parties dispute whether the decisions that form the basis for their

arguments about this factor are political or race-based. The Court declines to make

a broad finding about the many public policy arguments the plaintiffs raise.

But evidence of a recent and significant occurrence tilts this factor in favor of

the plaintiffs: the Legislature’s refusal to draw an additional remedial district in its

2023 congressional districting plan after a three-judge district court and the Supreme

Court determined that the congressional districting plan likely violated Section Two.

In spite of these rulings, the Legislature convened, enacted new districting criteria

that made the additional remedial district impossible to draw, and passed a new map

that it admitted did not contain the additional remedial district. See Singleton, 2025

WL 1342947, at *18. After a trial, that three-judge court found not only that the

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Legislature failed to respond to the particularized needs of Black Alabamians, see

id. at *169–70, but also that the Legislature intentional discriminated against them,

see id. at *197–213. Those findings are on appeal to the Supreme Court.

The Secretary argues that the Legislature’s decision to pass the 2023

congressional plan does not demonstrate a lack of responsiveness to the needs of

Black Alabamians in Montgomery. See Doc. 251 ¶¶ 379–82. He contends that the

Legislature’s decision to enact the 2023 plan based on its view of “what [Section

Two] requires . . . does not necessarily communicate a purpose of discriminating

against [B]lack Alabamians or refusing to respond to their needs.” Id. ¶ 380. And he

suggests that the Legislature’s decision was driven by its “desire to avoid racial

gerrymandering liability.” Id. ¶ 381.

The Court cannot ignore that when the Legislature was faced with federal

court orders finding likely vote dilution based on race, the Legislature responded

with a plan that it admitted did not provide the required remedy for that dilution. The

Court thus finds that Senate Factor 8 tilts in favor of the plaintiffs.

7. Senate Factor 9 and 4

Senate Factor 9: Whether the policy underlying the Plan is “tenuous.” Gingles,
478 U.S. at 37.

Senate Factor 4: “[I]f there is a candidate slating process, whether the members
of the minority group have been denied access to that process[.]” Id.

The Court makes no findings about Senate Factors 4 and 9.

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***

Ultimately, the Court finds that every Senate Factor that it was able to make

a finding about weighs in favor of the plaintiffs, and that no Senate Factors or other

circumstances considered at this stage weigh in favor of the Secretary. The Court

thus finds that the plaintiffs have established every element of a violation of Section

Two in the Montgomery area, including that: (1) as a group, Black Alabamians are

sufficiently numerous and geographically compact to constitute a voting-age

majority in an additional reasonably configured Senate district in the Montgomery

area; (2) voting in the challenged district is intensely racially polarized, such that

Black voters are (nearly always) politically cohesive; (3) White voters ordinarily

(nearly invariably) vote as a bloc to defeat Black-preferred candidates; and (4) under

the totality of the circumstances in Alabama today, including all the relevant Senate

Factors that the Court must consider, Black voters have less opportunity than other

Alabamians to elect candidates of their choice to the Alabama Senate.

The Court turns to the Secretary’s legal arguments.

E. Section Two is privately enforceable.

In the congressional districting litigation, the three-judge court (of which the

undersigned was a member) rejected the assertion that Section Two is not privately

enforceable. See Singleton, 2025 WL 1342947, at *171-81; see also Caster, No.

2:21-cv-1536-AMM, Doc. 401 at 446–73. The arguments about this issue in that

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litigation were nearly identical to the arguments about this issue in this case.

Accordingly, the Court adopts as its own, adapts as appropriate, and recites the

relevant analysis of the three-judge court, as follows:

Since the passage of the Voting Rights Act, federal courts across the country,

including both the Supreme Court and the Eleventh Circuit, have considered

numerous Section Two cases brought by private plaintiffs. See, e.g., Allen, 599 U.S.

1; Brnovich, 594 U.S. 647; Bartlett, 556 U.S. 1; LULAC, 548 U.S. 399; Voinovich,

507 U.S. 146; Chisom v. Roemer, 501 U.S. 380 (1991); Hous. Laws.’ Ass’n v. Att’y

Gen. of Tex., 501 U.S. 419 (1991); Gingles, 478 U.S. 30; Wright, 979 F.3d 1282.

And on the other side of the scale, only one federal appellate court—the United

States Court of Appeals for the Eighth Circuit—has held that private parties may not

sue to enforce Section Two. See generally Ark. State Conf. NAACP v. Ark. Bd. of

Apportionment, 86 F.4th 1204 (8th Cir. 2023).

Accordingly, if the Court were to accept the Secretary’s argument that private

parties may not enforce Section Two, it would seriously disrupt longstanding and

consistent federal law on this issue. The Court is not inclined to take that step.

The Court already rejected the Secretary’s argument that Section Two is not

privately enforceable in its order denying his motion to dismiss. See Doc. 143 at 17–

20. Because the Secretary repeated the argument, Doc. 247; Doc. 229 at 6, the Court

addresses it again.

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1. Text of Section Two

Federal law supplies two potential vehicles for private plaintiffs to sue under

Section Two: either by way of a private right of action contained in Section Two

itself, or pursuant to 42 U.S.C. § 1983 (“Section 1983”). Section Two contains no

express private right of action, so the dispositive question is whether one is implied.

To establish an implied private right of action, plaintiffs must show that Section Two

confers both a private right and a private remedy. Alexander v. Sandoval, 532 U.S.

275, 286 (2001). If there is a private right, then private plaintiffs can presumptively

sue under Section 1983, unless defendants show that Congress shut the door to a

Section 1983 suit. Gonzaga Univ. v. Doe, 536 U.S. 273, 284 & n.4 (2002). Then–

Chief Justice Rehnquist, writing for the majority in Gonzaga, reasoned this way:

Plaintiffs suing under § 1983 do not have the burden of showing an

intent to create a private remedy because § 1983 generally supplies a
remedy for the vindication of rights secured by federal statutes. Once a
plaintiff demonstrates that a statute confers an individual right, the right
is presumptively enforceable by § 1983.

Id. at 284 (internal citation omitted). And then, the Secretary must “demonstrate that

Congress shut the door to private enforcement.” Id. at 284 n.4.

The Secretary concedes that Section Two created “new remedies,” but

contends those remedies were only public, not private. See Doc. 131 at 14–21. And

the Secretary has not given any reasons why he believes Section Two did not create

a private remedy separate and apart from the reasons why he asserts Section Two

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did not create a private right. See Doc. 131 at 12–31.

The plaintiffs have availed themselves of Section 1983, Doc. 126 ¶¶ 170–76,

and the Secretary does not assert that Congress has shut the door to a remedy under

Section 1983, see Doc. 131 at 12–31, 20 n. 3. Accordingly, the essential question

before the Court is whether Section Two creates a private right. If the Court

concludes that it does, there is no basis to accept the Secretary’s argument that

Section Two is not privately enforceable.

Although the task of determining whether Section Two contains a private right

is the Court’s, the creation of that right (if it exists) is an exclusively legislative

authority. “Like substantive federal law itself, private rights of action to enforce

federal law must be created by Congress. The judicial task is to interpret the statute

Congress has passed to determine whether it displays an intent to create not just a

private right but also a private remedy.” Sandoval, 532 U.S. at 286 (internal citation

omitted). Accordingly, the Court examines at the threshold “whether Congress

intended to create a federal right.” Gonzaga, 536 U.S. at 283.

A statute confers a private right “where the provision in question is phrased

in terms of the persons benefitted and contains rights-creating, individual-centric

language with an unmistakable focus on the benefited class.” Health & Hosp. Corp.

of Marion Cnty. v. Talevski, 599 U.S. 166, 183 (2023) (internal quotation marks

omitted) (quoting Gonzaga, 536 U.S. at 284, 287). A statute does not confer a private

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right when it contains no rights-creating language or focuses on persons or entities

other than the benefited class. See, e.g., Sandoval, 532 U.S. at 288–89.

The most recent binding Supreme Court precedent about rights-creating

language is Health & Hospital Corporation of Marion County, 599 U.S. 166 (2023),

a case concerning two statutory provisions about the rights of nursing home

residents. Id. at 171. The Court applies here the same methodology the Supreme

Court used to decide that case, which can be summarized in this way:

• First, the Court began its analysis by observing that the statutory provisions at
issue “reside in” a statutory section that “expressly concerns ‘[r]equirements
relating to residents’ rights.’” Id. at 184 (emphasis omitted) (quoting 42
U.S.C. § 1396r(c)). In assigning weight to this observation, the Supreme
Court relied on (1) the rule that “statutory provisions ‘must be read in their
context,’” and (2) the recognition in Gonzaga that “[t]his framing is indicative
of an individual ‘rights-creating’ focus.” Id. (first quoting West Virginia v.
EPA, 597 U.S. 697, 721 (2022); and then quoting Gonzaga, 536 U.S. at 284).

• Next, the Court reviewed each statutory provision at issue and found that each
one (1) discussed a specific right held by residents, with (2) a repeated focus
on residents. See id. at 184–85.

• Then, the Court observed that the statutory provisions also discussed nursing
homes, but found that this discussion did not undermine the focus of the
provisions on residents’ rights. The Court reasoned that “it would be strange
to hold that a statutory provision fails to secure rights simply because it
considers, alongside the rights bearers, the actors that might threaten those
rights.” Id. at 185.

• Finally, the Court distinguished the statutory provisions from the provisions
in Gonzaga, which “lacked ‘rights-creating language,’ primarily directed the
Federal Government’s distribution of public funds, and had an aggregate, not
individual, focus.” Id. at 185–86 (quoting Gonzaga, 536 U.S. at 290).
Like the provisions at issue in Health & Hospital Corporation of Marion

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County, Section Two resides in a statutory section that expressly concerns rights—

in this case, voting rights for members of a class protected from discrimination based

on race or color. The title of Section Two is “[d]enial or abridgement of right to vote

on account of race or color through voting qualifications or prerequisites;

establishment of violation.” 52 U.S.C. § 10301. Following the Supreme Court’s lead,

the Court takes this context and framing as “indicative of an individual ‘rights-

creating’ focus.” Health & Hosp. Corp. of Marion Cnty., 599 U.S. at 184 (quoting

Gonzaga, 536 U.S. at 284).

Further, subsection (a) of Section Two expressly discusses “the right of any

citizen of the United States to vote,” and it expressly prohibits voting practices that

abridge voting rights based on race, color, or language-minority status. 52 U.S.C.

§ 10301(a) (incorporating by reference 52 U.S.C. § 10303(f)(2)). And subsection (b)

expressly discusses the voting rights of persons who are “members of a class of

citizens protected by subsection (a).” Id. § 10301(b). In the next sentence, subsection

(b) refers twice to “members of a protected class.” Id. Together, these subsections

protect citizens in the enumerated class from voting practices with discriminatory

results, not just voting practices based on discriminatory intent (which the Fifteenth

Amendment forbids based on race or color). See Reno v. Bossier Par. Sch. Bd., 520

U.S. 471, 482 (1997); U.S. Const. amend. XV. Because Section Two is comprised

only of a title and three sentences of text, the upshot of the foregoing analysis is that

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every sentence of Section Two either refers to rights of the benefited class, contains

rights-creating language that creates new rights for that specific class, or expressly

focuses on the benefited class.

This precise and repetitive focus on the benefitted class distinguishes Section

Two from the statutes at issue in Sandoval and Gonzaga, which the Supreme Court

concluded did not confer implied private rights of action. In Sandoval, the statute at

issue—Section 602 of Title VI of the Civil Rights Act, 42 U.S.C. § 2000d-1—did

not even mention the benefited class: it said merely that “[e]ach Federal department

and agency . . . is authorized and directed to effectuate the provisions of

[Section 601].” 532 U.S. at 288–89 (quoting 42 U.S.C. § 2000d-1). Thus, the Court

found that “the focus of § 602 is twice removed from the individuals who will

ultimately benefit from Title VI’s protection” because it “focuses neither on the

individuals protected nor even on the funding recipients being regulated, but on the

agencies that will do the regulating.” Id. at 289.

Likewise, Gonzaga considered provisions of the Family Educational Rights

and Privacy Act of 1974, 20 U.S.C. § 1232g (“FERPA”). Gonzaga, 536 U.S. at 278.

One such provision stated that: “No funds shall be made available under any

applicable program to any educational agency or institution which has a policy or

practice of permitting the release of education records . . . of students without the

written consent of their parents . . . ,” id. at 279 (quoting 20 U.S.C. § 1232g(b)(1)),

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while another “direct[ed] the Secretary of Education to enforce this and other of the

Act’s spending conditions,” id. (citing 20 U.S.C. § 1232g(f)). The Court found that

the focus of these provisions was also “two steps removed from the interests of” the

benefited class because they “speak only to” the regulating agency. Id. at 287. The

Court concluded that the provisions at issue did not imply a private right because

they “contain no rights-creating language, they have an aggregate, not individual,

focus, and they serve primarily to direct the [regulating agency’s] distribution of

public funds to educational institutions.” Id. at 290.

Unlike the statutes in Sandoval and Gonzaga, the language of Section Two

“focuses . . . on the individuals protected.” Sandoval, 532 U.S. at 289. It explicitly

protects “the right of any citizen of the United States to vote” without being

discriminated against, and then refers repeatedly to “members of a protected class,”

or some variation of that phrase. See 52 U.S.C. § 10301. It “serve[s] primarily” to

protect citizens’ rights and to prevent states from interfering with those rights. See

Gonzaga, 536 U.S. at 290. If all of this is not rights-creating language with an

“unmistakable focus on the benefited class,” Cannon v. Univ. of Chi., 441 U.S. 677,

691 (1979), it is difficult to imagine what is.

Indeed, Section Fourteen of the Voting Rights Act reinforces the idea that

Congress contemplated suits by private parties when it enacted Section Two. Section

14(e) provides: “In any action or proceeding to enforce the voting guarantees of the

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fourteenth or fifteenth amendment, the court, in its discretion, may allow the

prevailing party, other than the United States, a reasonable attorney’s fee, reasonable

expert fees, and other reasonable litigation expenses as part of the costs.” 52 U.S.C.

§ 10310(e). “[A]ny action or proceeding to enforce the voting guarantees of the

fourteenth or fifteenth amendment” means all such actions or proceedings, because

where Congress uses the word “any” and “‘did not add any language limiting the

breadth of that word,’ . . . ‘any’ means all.” Merritt v. Dillard Paper Co., 120 F.3d

1181, 1186 (11th Cir. 1997) (quoting United States v. Gonzales, 520 U.S. 1, 5

(1997))); see also Deroy v. Carnival Corp., 963 F.3d 1302, 1316 (11th Cir. 2020)

(recognizing that, in a statute, “‘any’ means ‘every’ or ‘all’” (citing United States v.

Castro, 837 F.2d 441, 445 (11th Cir. 1988))). And Section Two is unambiguously

an action or proceeding to “enforce the voting guarantees of the . . . fifteenth

amendment.” 52 U.S.C. § 10310(e); see Brnovich, 594 U.S. at 656. Section Fourteen

therefore anticipates that private litigants will sue to “enforce the guarantees of the

. . . fifteenth amendment” alongside the United States. 52 U.S.C. § 10310(e).

The Eighth Circuit says, however, that the term “prevailing party” here refers

only to defendants. Ark. State Conf. NAACP, 86 F.4th at 1213 n.4. As the Court sees

it, that offers too strained a reading of the statute. Congress specified that a

“prevailing party, other than the United States” should receive attorneys’ fees, not

that a “defendant” should receive attorneys’ fees—which would have been a much

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simpler and more direct way to prescribe that outcome, if that is what Congress had

intended. In fact, the Supreme Court has construed identical language found in the

attorney-fee provision of Title II of the Civil Rights Act of 1964, 42 U.S.C. § 2000a-

3(a) (“CRA”),9 to refer to private plaintiffs. See Newman v. Piggie Park Enters.,

Inc., 390 U.S. 400, 401 n.1, 402 (1968) (per curiam) (holding that the term

“prevailing party, other than the United States” in Title II’s attorney-fee provision

refers to private plaintiffs); see also id. at 402 (“Congress . . . enacted the provision

for counsel fees [in Title II of the CRA] . . . to encourage individuals injured by

racial discrimination to seek judicial relief under Title II.”). Moreover, Congress has

specifically stated that it intended private parties to be able to recover attorneys’ fees

if they prevailed on Section Two claims: Congress explained that “[f]ee awards are

a necessary means of enabling private citizens to vindicate these Federal rights.” See

S. Rep. No. 94-295, at 40 (1975) (emphasis added); see also H. Rep. No. 97-227, at

32 (1981) (“It is intended that citizens have a private cause of action to enforce their

rights under Section 2. . . . If they prevail they are entitled to attorneys’ fees under

[Section 14(e)] and [42 U.S.C. §] 1988.”).

“[T]he words of a statute must be read in their context and with a view to their

9
The CRA’s attorney-fee provision reads as follows: “In any action commenced
pursuant to this subchapter, the court, in its discretion, may allow the prevailing
party, other than the United States, a reasonable attorney’s fee as part of the costs,
and the United States shall be liable for costs the same as a private person.” 42 U.S.C.
§ 2000a-3(b).
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place in the overall statutory scheme.” West Virginia, 597 U.S. at 721. Thus, the

reference in Section Fourteen of the Voting Rights Act to private plaintiffs suing to

enforce their voting rights supports the determination that Section Two contains a

private right of action. Viewing Section Two along with Section Fourteen reinforces

Congress’s intention to allow private parties to sue to enforce their right to vote free

from discrimination. See Morse v. Republican Party of Va., 517 U.S. 186, 234 (1996)

(reasoning that the language referring to a “prevailing party, other than the United

States” in Section Fourteen indicates “the existence of a private right of action under

§ 10”).

As far as the Court can tell, no court has held under the first step of the analysis

that Section Two does not create a private right. Rather, the one circuit court that has

concluded that Section Two does not confer a private right of action, the Eighth

Circuit, rested its decision on the second step of the analysis—a determination that

Section Two does not create a private remedy. See Ark. State Conf. NAACP, 86 F.4th

at 1216. Notably, the Eighth Circuit did not address the question whether private

plaintiffs may sue under Section 1983 to enforce Section Two because the plaintiffs

had not raised the issue. Id. at 1218.

The Eighth Circuit viewed the question whether Section Two creates a private

right as an open one because, in addition to the rights-creating language the Court

has described, Section Two also contains language that refers to states, and the court

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was unsure “what to do when a statute focuses on both.” Id. at 1209–10. But the

Supreme Court has provided an unambiguous answer to that question that the Eighth

Circuit did not consider.10 In Health & Hospital Corporation of Marion County, the

statutes at issue (like Section Two) referred to the rights of the benefitted class, but

also directed requirements at “actors that might threaten those rights,” and the

Supreme Court still held that the statutes created private rights. 599 U.S. at 185. That

a statutory provision discussing the rights of a benefitted class “also establish[es]

who it is that must respect and honor these statutory rights,” the Court explained, “is

not a material diversion from the necessary focus on the [rights-holders].” Id. The

Court further reasoned that “[t]he Fourteenth Amendment hardly fails to secure

§ 1983-enforceable rights because it directs state actors not to deny equal

protection.” Id. at 185 n.12.

Based on case precedent and the text of Section Two, the Court sees a clear

answer to the question whether Section Two creates a private right: it does.

Nevertheless, the Secretary urged us in its earlier motion to hold that Section Two

does not confer a private right for four reasons. The Court discusses each in turn.

First, the Secretary argued in its earlier motion that for Section Two to create

10
The Supreme Court issued Health & Hospital Corporation of Marion County after
the Eighth Circuit heard oral argument but before the Eighth Circuit issued its
decision. See Health and Hosp. Corp. of Marion Cnty., 599 U.S. at 166; Ark. State
Conf. NAACP, 86 F.4th at 1204.
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a private right of action, it must create a new right not found elsewhere in federal

law. See Doc. 131 at 14–23, 25. The Secretary claims that Section Two cannot do

this because it was passed pursuant to Congress’s power under Section Two of the

Fifteenth Amendment, which gives Congress the power to enforce the rights

guaranteed in the Fifteenth Amendment, but not the power to create new rights. See

U.S. Const. amend. XV; Brnovich, 594 U.S. at 656; Doc. 131 at 14–15.11

The Secretary is wrong that to create a private right of action, Section Two

must create a new right not found elsewhere in federal law. That premise runs

headlong into controlling precedent. For example, in Morse, 517 U.S. 186, the Court

found an implied private right of action in Section Ten of the Voting Rights Act,

which, on the Secretary’s logic, would also merely be protecting preexisting

Fifteenth Amendment rights. See id. at 233 (holding that § 10 “established a right to

vote without paying a fee”). And in Allen v. State Board of Elections, 393 U.S. 544

(1969), abrogated by Ziglar v. Abbasi, 582 U.S. 120, 132 (2017), the Supreme Court

found an implied private right of action in Section Five of the Voting Rights Act.

See id. at 557; cf. Schwier v. Cox, 340 F.3d 1284, 1297 (11th Cir. 2003) (finding an

implied private right of action in the materiality provision of a similar statute passed

under congressional Fifteenth Amendment enforcement power).

11
The Supreme Court already has rejected, in this very case, the argument that
Section Two exceeds congressional authority under the Fifteenth Amendment. See
Allen, 599 U.S. at 41.
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It is unsurprising, then, that the Secretary has cited no precedent holding that

Congress cannot imply a private right of action to enforce an existing federal right.

He relies on language found in Sandoval (quoted later in Gonzaga) referring to “new

rights,” but that language did not hold (or even suggest, in the context of those cases),

that the protected right must be completely novel and found nowhere else in federal

law. In Sandoval, the Court used the term “new rights” to explain that rights-creating

language in one section of a statute did not necessarily imply a private right of action

to enforce another section of the same statute. See 532 U.S. at 289 (cleaving a

difference between Sections 601 and 602 of Title VI of the Civil Rights Act of 1964).

Sandoval did not address the question whether Congress may grant a private right of

action to enforce an existing federal right. Nor did Gonzaga, which merely quoted

the sentence from Sandoval referring to “new rights” when explicating the general

background principles for discovering congressional intent. See Gonzaga, 536 U.S.

at 286–87. There was no discussion in Gonzaga of whether the rights referred to in

the statute at issue were new or not. See id.

Second, the Secretary argued in its earlier motion that Section Two does not

unambiguously confer individual rights because there is ambiguity about its focus,

which the Secretary says one court has held is “unclear” because it includes both the

conduct prohibited and the party regulated. See Doc. 131 at 24–27. But like the

Eighth Circuit, the Secretary does not account for the instructions found in Health

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& Hospital Corporation of Marion County. See 599 U.S. at 185. As the Court has

already explained, if the statutory text at issue in that case created private rights while

also mentioning actors and conduct that could threaten those rights, then the Court

can discern no principled basis to conclude that Section Two does not likewise create

private rights.

Third, the Secretary argued it is earlier motion that the mere use of the term

“rights” is not enough to create a private cause of action, citing Pennhurst State

School & Hospital v. Halderman, 451 U.S. 1 (1981). See Doc. 131 at 24–25. But the

Court’s analysis doesn’t rest exclusively on the use of the word “rights.” See supra

Part V.E.1; infra Part V.E.2. In any event, Pennhurst State does not help the

Secretary. There, the Supreme Court declined to find an implied right in a statute

that provided that mentally handicapped persons “have a right to appropriate

treatment, services, and habilitation” in “the setting that is least restrictive of . . .

personal liberty.” Pennhurst State, 451 U.S. at 13 (quoting 42 U.S.C. § 6010). The

Court held that the reference to “a right” was precatory because it was found only in

a “bill of rights” provision of the statute, while the enabling provisions of the statute

were funding-related, and the bill of rights provision lacked “any language

suggesting that [it] is a ‘condition’ for the receipt of federal funding” under the

statute. Id. To the contrary, the Court reasoned, the language and structure of the

statute “demonstrate[d] that it is a mere federal-state funding statute.” Id. at 18.

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Pennhurst State thus cautions that “[i]n expounding a statute, [the Court] must not

be guided by a single sentence or member of a sentence, but look to the provisions

of the whole law, and to its object and policy.” Id.

The Court has not looked at the word “rights” in a vacuum; rather, it has

considered the word within the statutory provision and the statute taken as a whole,

in order to see whether the statutory provision is using “rights-creating language.”

Sandoval, 532 U.S. at 288 (quotation marks and citation omitted). And it is not

merely the presence of the term “rights” in Section Two, but rather the entire

provision’s focus on the rights of “members of a protected class” and its place within

the Voting Rights Act—a statute created, after all, for the sole purpose of enforcing

a citizen’s right to vote free from discrimination.

Fourth, the Secretary asserted in its earlier motion that the “federal review

mechanism” in the Voting Rights Act indicates that Congress did not mean to imply

a private right of action in Section Two. See Doc. 131 at 19–20. The Secretary relies

on Gonzaga to argue that “where a statute provides a federal review mechanism, the

Supreme Court has been less willing to identify individually enforceable private

rights.” Id. at 19–20 (internal quotation marks omitted) (quoting Gonzaga, 536 U.S.

at 289–90).

This argument fails at the gate because FERPA, the statute at issue in

Gonzaga, is fundamentally unlike Section Two. In Gonzaga, the Supreme Court

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observed that its “conclusion that FERPA’s nondisclosure provisions fail to confer

enforceable rights [wa]s buttressed by the mechanism that Congress chose to provide

for enforcing those provisions.” 536 U.S. at 289. FERPA “expressly authorized the

Secretary of Education to ‘deal with violations’ of the Act,” and the Secretary did so

by creating an office to field complaints from individuals and then initiate

investigations, request a response from the institution subject to the complaint, find

violations, and mandate steps to resolve them. Id. at 289–90 (emphasis omitted)

(quoting 20 U.S.C. § 1232(g)(f)). But Congress chose no such extensive

administrative procedures for Section Two, and they differ in kind from the Attorney

General’s prosecutorial discretion to bring Section Two lawsuits in court. Allowing

the Attorney General to elect to bring a lawsuit is not the kind of detailed alternative

“federal review mechanism” Congress created to enforce FERPA, which the

Gonzaga Court was discussing. See id. at 290.

Even if the Attorney General’s power to sue were like the elaborate federal

review mechanism described in Gonzaga (and it is not), Gonzaga clarifies that the

likeness is not “an independent basis for precluding private enforcement.” Id. at 290

n.8. This fits with other jurisprudence allowing both private and public lawsuits to

enforce federal rights. See, e.g., Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246,

255 (2009) (finding a private right of action in Title IX of the Civil Rights Act

despite it having an “express enforcement mechanism” in the form of “an

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administrative procedure”). Put simply, the reality that the Attorney General may

bring a lawsuit in federal court does not compel, or even suggest, the conclusion that

Congress meant to imply no right of action for private individuals also to bring

enforcement actions pursuant to Section Two of the Voting Rights Act.

2. Section Two Precedents

Standing alone, the Court’s conclusion that the text of Section Two implies a

private right of action is a sufficient reason to hold the statute privately enforceable.

But there is more. Relevant precedent also supports the Court’s conclusion,

including in particular two Supreme Court cases: Morse and Allen. And principles

of congressional ratification and statutory stare decisis reinforce that result.

a. Relevant Precedent

As the three-judge Court explained in the Alabama congressional districting

cases, “[a] ruling that Section Two does not provide a private right of action would

badly undermine the rationale offered by the Court in Morse.” Singleton, 582 F.

Supp. 3d 924, 1031 (N.D. Ala. 2022). In Morse, the Supreme Court held that Section

10 of the Voting Rights Act contained a private right of action, reasoning that:

Although § 2, like § 5, provides no right to sue on its face, “the existence

of the private right of action under Section 2 . . . has been clearly
intended by Congress since 1965.” S. Rep. No. 97–417, at 30. We, in
turn, have entertained cases brought by private litigants to enforce § 2.
It would be anomalous, to say the least, to hold that both § 2 and § 5
are enforceable by private action but § 10 is not, when all lack the same
express authorizing language.

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517 U.S. at 232 (opinion of Stevens, J., with Ginsburg, J. joining) (some internal

citations omitted); see id. at 240 (opinion of Breyer, J., with O’Connor, J. and Souter,

J. joining) (agreeing that Section Ten confers a private right of action because

Sections Two and Five do).

The Court’s conclusion that Section Ten affords a private right of action turns

in no small measure on its foundational observation that Section Two, like Section

Five, is indeed enforceable by private right of action. See id. at 232. And the Court

saw no reason for treating Section Ten any differently. Id. The very rationale for the

Supreme Court’s determination that Section Two affords a private right of action is

that Congress has “clearly intended” that since 1965. Id. (quoting S. Rep. No. 97–

417, at 30); see also Singleton, 582 F. Supp. 3d at 1031 (“[T]he understanding [in

Morse] that Section Two provides a private right of action was necessary to reach

the judgment that Section Ten provides a private right of action.”).12

“When an opinion issues for the Court, it is not only the result but also those

portions of the opinion necessary to that result by which we are bound.” Seminole

12
In addition to observing that Sections Two and Five conferred private rights of
action, the Court in Morse supported its conclusion that Section Ten confers a private
right of action by reasoning that: the achievement of the Voting Rights Act’s goals
would be severely hampered if only the Attorney General could sue to enforce
Section Ten; the Attorney General had urged the Court to find a private right of
action; and other sections of the Voting Rights Act (specifically, Sections Three and
Fourteen) contain language recognizing that private persons can sue to enforce their
rights under the Voting Rights Act. See Morse, 517 U.S. at 231–34.
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Tribe of Fla. v. Florida, 517 U.S. 44, 67 (1996); see also Dana’s R.R. Supply v. Att’y

Gen., 807 F.3d 1235, 1240 n.3 (11th Cir. 2015) (noting that a statement is dicta only

if it “could have been deleted without seriously impairing the analytical foundations

of the holding” (quoting Denno v. Sch. Bd. of Volusia Cnty., 218 F.3d 1267, 1283

(11th Cir. 2000) (Forrester, J., concurring in part))); United States v. Crawley, 837

F.2d 291, 292 (7th Cir. 1988) (Posner, J.) (same). This holds true for any analysis

that the court “explicat[es] and appl[ies],” even where the court “could have decided

the case on other grounds.” United States v. Kaley, 579 F.3d 1246, 1253 n.10 (11th

Cir. 2009).

However, even if the Court were to treat Morse’s statements as dicta, the

Court is “obligated to respect [them].” Henderson v. McMurray, 987 F.3d 997, 1006

(11th Cir. 2021) (Pryor, C.J.). “[T]here is dicta and then there is dicta, and then there

is Supreme Court dicta.” Schwab v. Crosby, 451 F.3d 1308, 1325 (11th Cir. 2006).

As far as the Court sees it, at the very least, this is Supreme Court dicta with the

support of five justices; and if it is a holding, plainly it would be controlling, despite

the fractured votes. See Marks v. United States, 430 U.S. 188, 193 (1977). The Court

will not upend it.

In the 117-page proposed order the Secretary submitted after trial and in his

motion for judgment as a matter of law, he did not mention Morse. See Doc. 247 at

1; Doc. 251. In his earlier motion, the Secretary urged the Court to ignore the Morse

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language on the ground that it is gravely wounded by Sandoval. See Doc. 92 at 23–

24. The Supreme Court has spurned some private-right-of-action cases that were

decided before Sandoval, describing them as part of an “ancien regime” in which

“the Court assumed it to be a proper judicial function to provide such remedies as

are necessary to make effective a statute’s purpose.” Ziglar, 582 U.S. at 131–32

(internal quotation marks and citation omitted). But Morse is not even mentioned in

Sandoval and it is not part of the ancien regime that Sandoval criticized. As the

Supreme Court explained in Sandoval, the headline case for abandoning the ancien

regime was Cort v. Ash, 422 U.S. 66 (1975). See Sandoval, 532 U.S. at 287. Morse

was decided twenty-one years after Cort. As an inferior federal court, the Court is

required to “leav[e] to [the Supreme Court] the prerogative of overruling its own

decisions.” Agostini v. Felton, 521 U.S. 203, 237 (1997) (citation omitted); see also

United States v. Gibson, 434 F.3d 1234, 1246 (11th Cir. 2006) (“It is not given to us

to overrule the decisions of the Supreme Court.”).

Furthermore, Shelby County v. Holder also suggested, albeit in dicta, that

Section Two implies a private right of action, and Shelby County postdates Sandoval.

In Shelby County, the Supreme Court invalidated Section Five’s preclearance regime

as unconstitutional. 570 U.S. at 537–38. In describing the statutory scheme, the

Court explained that “[b]oth the Federal Government and individuals have sued to

enforce § 2, and injunctive relief is available in appropriate cases to block voting

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laws from going into effect.” Id. at 537 (citations omitted). And in the final paragraph

of the opinion, the Court ruled that its decision about Section Five “in no way affects

the permanent, nationwide ban on racial discrimination in voting found in § 2.” Id.

at 557. The Secretary’s earlier argument about Sandoval did not account for Shelby

County either. See Doc. 92 at 23–24.

Other federal circuits apparently share the Court’s understanding of Supreme

Court jurisprudence, including the Eleventh Circuit. See Ala. State Conf. NAACP v.

Alabama, 949 F.3d 647, 649 (11th Cir. 2020), vacated on other grounds sub nom.

Alabama v. Ala. State Conf. NAACP, 141 S. Ct. 2618 (2021); see also Robinson v.

Ardoin, 86 F.4th 574, 587–88 (5th Cir. 2023) (“We conclude that . . . there is a right

for these [private] Plaintiffs to bring these [Section Two] claims.”); Mixon v. Ohio,

193 F.3d 389, 406 (6th Cir. 1999) (“An individual may bring a private cause of

action under Section 2 of the Voting Rights Act.”).13

In 2020, the Eleventh Circuit explained the history of private enforcement of

Section Two this way:

The Voting Rights Act (VRA) is widely considered to be among the

most effective civil rights statutes ever passed by Congress. Its success
is largely due to the work of private litigants. For more than fifty years,
private parties have sued states and localities under the VRA to enforce
13
Most recently, a three-judge district court in the Southern District of Mississippi
has followed Robinson and relevant Supreme Court precedent in holding that
Section Two confers a private cause of action. See Miss. State Conf. NAACP v. State
Bd. of Election Comm’rs., No. 3:22-cv-00734-DPJ-HSO-LHS (July 2, 2024) (per
curiam).
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the substantive guarantees of the Civil War Amendments. Today,

private parties remain the primary enforcers of § 2 of the VRA.
Ala. State Conf. NAACP, 949 F.3d at 649 (footnotes omitted). The Eleventh Circuit

went on to observe that “[t]he Department of Justice has filed only 4 of the 61

enforcement actions under § 2 since 2013.” Id. n.2.14 And the Circuit held that “[t]he

VRA, as amended, clearly expresses an intent to allow private parties to sue the

States. The language of § 2 and § 3, read together, imposes direct liability on States

for discrimination in voting and explicitly provides remedies to private parties to

address violations under the statute.” Id. at 652. Although the Court is not bound by

this Circuit precedent because it was vacated on mootness grounds, the analysis is

persuasive.

The Court next turns to the Supreme Court’s decision in the Alabama

congressional districting cases. Although Allen did not resolve the specific question

whether Section Two provides a private right of action, it is nevertheless instructive.

In Allen, the Supreme Court recognized that “[b]y 1981, . . . only sixteen years[]

[after the VRA was passed in 1965], many considered the VRA ‘the most successful

14
Indeed, the Department of Justice has previously observed that private plaintiffs
have brought over 400 Section Two cases resulting in judicial decisions since 1982,
while the Department of Justice itself has brought just 44 cases. See Brief of United
States as Amicus Curiae at 1–2, Turtle Mountain Band of Chippewa Indians v.
Howe, No. 23-3655, 2024 WL 1417744 (8th Cir. Mar. 25, 2024) (citing Ellen D.
Katz et al., To Participate and Elect: Section 2 of the Voting Rights Act 40, Univ.
Mich. L. Sch. Voting Rts. Initiative (2024), https://voting.law.umich.edu; Voting
Section Litigation, U.S. Dep’t of Just. (2024), https://perma.cc/V5XK-Z7L8).
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civil rights statute in the history of the Nation.’” Allen, 599 U.S. at 10 (quoting S.

Rep. No. 97–417, at 111 (1982)). “The Act ‘create[d] stringent new remedies for

voting discrimination,’ attempting to forever ‘banish the blight of racial

discrimination in voting.’” Id. (quoting South Carolina v. Katzenbach, 383 U.S. 301,

308 (1966)). The Court described important amendments to Section Two enacted in

1982, and observed that since then, “[f]or the past forty years, [the Court has]

evaluated claims brought under § 2 using the three-part framework developed in [its]

decision in Thornburg v. Gingles, 478 U.S. 30 . . . (1986).” Allen, 599 U.S. at 17.

That jurisprudence includes legions of Section Two claims asserted by private

plaintiffs and adjudicated by the Supreme Court: Gingles, 478 U.S. 30; Voinovich,

507 U.S. 146; Growe, 507 U.S. 25; De Grandy, 512 U.S. 997; Holder v. Hall, 512

U.S. 874 (1994); Vera, 517 U.S. 952; Shaw II, 517 U.S. 89; Abrams, 521 U.S. 74;

LULAC, 548 U.S. 399; Cooper, 581 U.S. 285; Abbott, 585 U.S. 579; Brnovich, 594

U.S. 647; Wis. Legislature, 595 U.S. 398; Allen, 599 U.S. 1.

b. Congressional Ratification

As the Allen Court explained repeatedly in the context of other attacks on

Section Two, this long history of private plaintiffs bringing Section Two challenges

means that Congress is “undoubtedly aware of [the Court’s] constru[ction of] § 2,”

and “Congress has never disturbed [the Court’s] understanding of § 2 as Gingles

construed it.” 599 U.S. at 19, 39. And Congress “can change that if it likes.” Id.

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It has long been the rule that “Congress is presumed to be aware of an

administrative or judicial interpretation of a statute and to adopt that interpretation

when it re-enacts a statute without change.” Forest Grove Sch. Dist. v. T.A., 557 U.S.

230, 239–40 (2009) (citation omitted). In none of its amendments to the Voting

Rights Act has Congress ever questioned the then-unanimous view of the courts that

Section Two was privately enforceable. See generally Pub. L. No. 91-285, 84 Stat.

314 (1970); Pub. L. No. 94-73, 89 Stat. 400 (1975); Pub. L. No. 97-205, 96 Stat. 131

(1982); Pub. L. No. 109-246, 120 Stat. 577 (2006). In its most recent amendment, in

2006, Congress expressly noted “the continued filing of section 2 cases that

originated in covered jurisdictions” as “[e]vidence of continued discrimination” that

supported the need to strengthen certain provisions of the Voting Rights Act. Pub.

L. No. 109-246, 120 Stat. 577 (2006).

Indeed, the Senate Report to the 1982 amendment, which the Supreme Court

has called the “authoritative source for legislative intent” behind Section Two,

Gingles, 478 U.S. at 43 n.7, said that it “reiterates the existence of the private right

of action under Section 2, as has been clearly intended by Congress since 1965,” S.

Rep. No. 97-417, at 30 (citing Allen, 393 U.S. 544). The House Report to the 1982

amendment echoes precisely the same congressional intent. See H. Rep. No. 97-227,

at 32 (1981) (“It is intended that citizens have a private cause of action to enforce

their rights under Section 2.”). And the Senate Report to the 1975 amendment

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explains that fee awards under Section Fourteen of the Voting Rights Act “are a

necessary means of enabling private citizens to vindicate these Federal rights.” S.

Rep. No. 94-295, at 40 (1975) (emphasis added). Congress has not only ratified the

federal courts’ longstanding interpretation that Section Two may be enforced by

private plaintiffs through inaction by failing to change the law, but these reports also

explicitly state agreement with this interpretation.

The point is simple: if courts have consistently misunderstood a congressional

enactment in case after case, court after court, decade after decade, surely Congress

would have said so by now. Nearly forty years after Gingles—and nearly sixty years

after the passage of the Voting Rights Act—it is appropriate to assign some degree

of legal significance to this reality, even if only as a data point that confirms the

Court’s reading of the text.

c. Statutory Stare Decisis

In addition, statutory stare decisis principles counsel that the Court should

stay the course in allowing private plaintiffs to sue under Section Two. “[S]tare

decisis carries enhanced force when a decision . . . interprets a statute” because

“unlike in a constitutional case, critics of [the Court’s] ruling can take their

objections” to Congress, which “can correct any mistake it sees.” Kimble v. Marvel

Ent., LLC, 576 U.S. 446, 456 (2015); see also Bryan A. Garner et al., The Law of

Judicial Precedent 333 (2016) (“Stare decisis applies with special force to questions

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of statutory construction. Although courts have power to overrule their decisions and

change their interpretations, they do so only for the most compelling reasons—but

almost never when the previous decision has been repeatedly followed, has long

been acquiesced in, or has become a rule of property.”). The Court is guided by

decades of unbroken controlling precedent suggesting that Section Two implies a

private right of action, and it sees no congressional effort to course correct.

Accordingly, the Court thinks “statutory stare decisis counsels [its] staying the

course.” Allen, 599 U.S. at 39.

The Supreme Court has “identified several factors to consider in deciding

whether to overrule a past decision, including . . . the workability of the rule it

established . . . and reliance on the decision.” Knick v. Twp. of Scott, 588 U.S. 180,

203 (2019) (internal quotation marks omitted) (quoting Janus v. State, Cnty., & Mun.

Emps., 585 U.S. 878, 917 (2018)). Allowing private plaintiffs to bring Section Two

claims has proven to be a workable rule—having gone unquestioned for decades in

multiple Supreme Court decisions. In fact, the ability of private parties to bring

Section Two claims has become “the sort of stable background rule that fosters

meaningful reliance.” Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2272

(2024) (internal quotation marks and citation omitted). There has been no

“tinkering” with the ability of private parties to bring Section Two claims by the

Supreme Court, lower courts (with one, lone exception), or Congress. Id. And

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because “Congress has spurned multiple opportunities to reverse” the Supreme

Court’s and lower courts’ treatment of private-plaintiff Section Two actions, “a

superspecial justification” would be necessary to reverse course, and the Court sees

none here. Kimble, 576 U.S. at 456, 458.

The federal courts (including the Supreme Court) have consistently and

uniformly allowed private plaintiffs to enforce a high-profile congressional

enactment for nearly sixty years, and the Court sees no indication in any

congressional record that Congress believes all of that (or any of it) was mistaken.

***

In the Court’s view, the text of Section Two compels the conclusion that

private plaintiffs may enforce it, either through an implied private right of action,

Section 1983, or both. And other doctrines confirm this understanding of the text. It

is difficult in the extreme for the Court to believe that for nearly sixty years, federal

courts have consistently misunderstood one of the most important sections of one of

the most important civil rights statutes in American history, and that Congress has

steadfastly refused to correct the apparent error.

F. The plaintiffs have standing.

The Secretary has argued that the plaintiffs lack standing to challenge the

Senate districting plan in the Huntsville area. See Doc. 229 at 7; Doc. 173 at 3–5.

The Court has rejected that argument once already. See Doc. 191 at 4–8. But because

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the Court “is obligated, as a jurisdictional matter, to confirm the Plaintiffs’ standing

to bring this case,” Greater Birmingham Ministries v. Sec’y of State, 992 F.3d 1299,

1316 (11th Cir. 2021), it has re-evaluated the issue after trial and has satisfied again

itself that the plaintiffs have standing.

“Article III of the Constitution limits the subject-matter jurisdiction of federal

courts to ‘Cases’ and ‘Controversies.’” Jacobson v. Fla. Sec’y of State, 974 F.3d

1236, 1245 (11th Cir. 2020) (quoting U.S. Const. art. III, § 2). To satisfy the “case”

or “controversy” requirement, an organization may demonstrate standing in two

ways: (1) “associational standing based on the injuries of [its] members” or (2)

“organizational standing based on [its] own injuries.” Id. at 1248–49. To assert

associational standing, an organization must show that “(a) its members would

otherwise have standing to sue in their own right; (b) the interests it seeks to protect

are germane to the organization’s purpose; and (c) neither the claim asserted nor the

relief requested requires the participation of individual members in the lawsuit.” Am.

All. for Equal Rts. v. Fearless Fund Mgmt., LLC, 103 F.4th 765, 771 (11th Cir. 2024)

(quoting Students for Fair Admissions, Inc. v. President & Fellows of Harv. Coll.,

600 U.S. 181, 199–200 (2023)).

An organization asserting associational standing must “make specific

allegations establishing that at least one identified member ha[s] suffered or [will]

suffer harm.” Ga. Republican Party v. Sec. & Exch. Comm’n, 888 F.3d 1198, 1203

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(11th Cir. 2018) (quoting Summers v. Earth Island Inst., 555 U.S. 488, 498 (2009)).

Further, “in response to a summary judgment motion, the plaintiff can no longer rest

on . . . mere allegations, but must set forth by affidavit or other evidence specific

facts” establishing standing. Id. at 1201 (internal quotation marks omitted) (quoting

Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992)).

The State Conference has established that it has members affected by the

districting map in Huntsville. The State Conference has identified several members

in the Huntsville area who are Black registered voters. See Doc. 248-1. Mr. Simelton,

the president of the State Conference, testified at trial that the State Conference is a

“suborganization” of the national NAACP and that membership dues are shared by

the local, state, and national NAACP. Tr. 156, 158. And he testified at his deposition

that “[e]very member that serves in the State Conference is a member of a branch or

a college chapter within the State Conference” who has been “elected to serve as a

member of the State Conference.” Doc. 171-2 at 12. Put simply, the members of the

State Conference are members because they have been elected to that status.

The reality that membership in the State Conference is by election from the

local chapters does not diminish the ability of the State Conference to establish

associational standing. Controlling Eleventh Circuit precedent confirms this

analysis. See, e.g, Greater Birmingham Ministries, 992 F.3d at 1316 (holding that

the State Conference “ha[s] members (minority voters in Alabama)” for standing

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purposes); see also Fla. State Conf. of N.A.A.C.P. v. Browning, 522 F.3d 1153, 1164

(11th Cir. 2008) (concluding that the Florida State Conference of the NAACP “ha[d]

standing to sue on behalf of [its] members”). Because the State Conference has

identified at least one member who is registered to vote in Huntsville, Doc. 171-4 at

5, the Court concludes that the State Conference has associational standing.

Because the State Conference has associational standing, the Court need not

decide whether Greater Birmingham Ministries has standing to challenge the

districting map in that area. See Florida v. U.S. Dept. of Health & Hum. Servs., 648

F.3d 1235, 1243 (11th Cir. 2011), rev’d on other grounds sub nom. Nat’l Fed’n of

Indep. Bus. v. Sebelius, 567 U.S. 519 (2012) (“The law is abundantly clear that so

long as one plaintiff has standing to raise each claim[,] … [a federal court] need not

address whether the remaining plaintiffs have standing.”).

VI. REMEDY

“Federal-court review of districting legislation represents a serious intrusion

on the most vital of local functions. It is well settled that ‘reapportionment is

primarily the duty and responsibility of the State.” Miller, 515 U.S. at 915 (quoting

Chapman v. Meier, 420 U.S. 1, 27 (1975)).

Even when a federal court finds that a redistricting plan violates federal law,

the Supreme Court “has repeatedly held that redistricting and reapportioning

legislative bodies is a legislative task which the federal courts should make every

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effort not to pre-empt.” Wise, 437 U.S. at 539–40 (opinion of White, J.) (collecting

cases). Upon such a finding, “it is therefore, appropriate, whenever practicable, to

afford a reasonable opportunity for the legislature to meet constitutional

requirements by adopting a substitute measure rather than for the federal court to

devise and order into effect its own plan.” Id. at 540. “The new legislative plan, if

forthcoming, will then be the governing law unless it, too, is challenged and found

to violate the Constitution.” Id.

Following a determination that a redistricting plan violates Section Two,

“[s]tates retain broad discretion in drawing districts to comply with the mandate of

§ 2.” Shaw II, 517 U.S. at 917 n.9. A state may rely on a Section Two plaintiff’s

remedial plan, but is not required to do so, nor to “draw the precise compact district

that a court would impose in a successful § 2 challenge.” Vera, 517 U.S. at 978

(internal quotation marks omitted). Instead, “the States retain a flexibility that

federal courts enforcing § 2 lack, both insofar as they may avoid strict scrutiny

altogether by respecting their own traditional districting principles, and insofar as

deference is due to their reasonable fears of, and to their reasonable efforts to avoid,

§ 2 liability.” Id.

If—and only if—the state legislature cannot or will not adopt a remedial map

that complies with federal law in time for use in an upcoming election does the job

of drawing an interim map fall to the courts. “Legislative bodies should not leave

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their reapportionment tasks to the federal courts; but when those with legislative

responsibilities do not respond, or the imminence of a state election makes it

impractical for them to do so, it becomes the unwelcome obligation of the federal

court to devise and impose a reapportionment plan pending later legislative action.”

Wise, 437 U.S. at 540 (opinion of White, J.) (internal quotation marks and citation

omitted); accord Growe, 507 U.S. at 36–37.

To facilitate timely remedial proceedings, a status conference is SET for

AUGUST 28, 2025, at 10:00 AM in the Third Floor Courtroom, Robert S. Vance

Federal Building and United States Courthouse, 1800 5th Avenue North

Birmingham, Alabama 35203. The parties are ORDERED to file a joint status report

with the parties’ proposals for moving the case forward at or before noon on

AUGUST 27, 2025.

VII. EVIDENTIARY RULINGS

During the bench trial, the Court accepted into evidence the overwhelming

majority of the exhibits that the parties offered; most were stipulated, and the Court

ruled on some evidentiary objections and reserved ruling on others. All pending

objections are SUSTAINED.

VIII. THE SECRETARY’S MOTION FOR JUDGMENT AS A MATTER OF

LAW

After trial, the Secretary moved for judgment as a matter of law as a “‘belt

and suspenders’ approach to preservation” of his legal arguments. See Doc. 247 at
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1. He re-raises his arguments that (1) Section Two does not provide a private right

of action and (2) the plaintiffs failed to satisfy the first Gingles precondition with

their illustrative districts in the Huntsville area. Doc. 247 at 1–2. For the reasons

stated above, see supra Part V.E, the Secretary’s motion for judgment as a matter of

law with respect to the enforceability of Section Two as a private right of action is

DENIED. Because the court concluded that the plaintiffs did not establish

numerosity in the Huntsville area, see supra Part V.A.–V.B.2, the Secretary’s

motion for judgment as a matter of law with respect to that argument is DENIED

AS MOOT.

DONE and ORDERED this 22nd day of August, 2025.

_________________________________
ANNA M. MANASCO
UNITED STATES DISTRICT JUDGE

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APPENDIX A – COMMITTEE GUIDELINES

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Doc. 190-21.

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