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DEFENDANTS' BRIEF on REMAND Dorman Walker Balch & Bingham LLP Post Office Box 78 Montgomery, AL 36101-0078 Telephone: 334

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DEFENDANTS' BRIEF on REMAND Dorman Walker Balch & Bingham LLP Post Office Box 78 Montgomery, AL 36101-0078 Telephone: 334 Case 2:12-cv-00691-WKW-MHT-WHP Document 263 Filed 07/24/15 Page 1 of 178 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION ALABAMA LEGISLATIVE BLACK ) CAUCUS, et al., ) ) Plaintiffs, ) CASE NO. 2:12-CV-691 v. ) (Three-Judge Court) ) THE STATE OF ALABAMA, et al., ) ) Defendants. ) ___________________________________________ ALABAMA DEMOCRATIC ) CONFERENCE, et al., ) ) Plaintiffs, ) CASE NO. 2:12-CV-1081 v. ) (Three-Judge Court) ) THE STATE OF ALABAMA, et al., ) ) Defendants. ) DEFENDANTS’ BRIEF ON REMAND Dorman Walker LUTHER STRANGE Balch & Bingham LLP Attorney General of Alabama Post Office Box 78 Montgomery, AL 36101-0078 Andrew L. Brasher Telephone: 334-834-6500 Solicitor General [email protected] Megan Kirkpatrick Counsel for Defendants-Intervenors, Jim Deputy Solicitor General McClendon, Gerald Dial and Randy Davis James W. Davis Misty Fairbanks Messick John J. Park, Jr. Assistant Attorneys General Deputy Attorney General Office of the Attorney General Strickland Brockington Lewis LLP State of Alabama 1170 Peachtree Street NE, Ste 2200 Post Office Box 300152 Atlanta, GA 30309 Montgomery, AL 36130-0152 Telephone: 678-347-2200 Telephone: 334-242-7300 [email protected] [email protected] Counsel for the State Defendants [email protected] [email protected] [email protected] Counsel for State Defendants Case 2:12-cv-00691-WKW-MHT-WHP Document 263 Filed 07/24/15 Page 2 of 178 David B. Byrne, Jr. Office of the Governor 600 Dexter Avenue, Suite NB-05 Montgomery, AL 36130 Telephone: 334-242-7120 [email protected] Algert S. Agricola, Jr. Ryals, Donaldson & Agricola, P.C. 60 Commerce Street, Suite 1400 Montgomery, AL 36104 Telephone: 334-834-5290 [email protected] Counsel for Governor Bentley Case 2:12-cv-00691-WKW-MHT-WHP Document 263 Filed 07/24/15 Page 3 of 178 TABLE OF CONTENTS Table of Authorities ...................................................................................................... vi Introduction ................................................................................................................... 1 Summary of Argument .................................................................................................. 2 I. Racial Predominance .......................................................................................... 2 II. Strict Scrutiny ..................................................................................................... 4 III. Senate Districts ................................................................................................... 6 IV. House Districts .................................................................................................... 8 Argument: Racial Predominance ................................................................................ 11 I. The plaintiffs must prove that the Legislature placed a substantial number of persons in a district because of their race, even though race- neutral districting principles would require that they be placed elsewhere ........................................................................................................... 11 II. The plaintiffs fail to establish racial predominance as a general matter ....... 16 A. The plaintiffs have not produced a map of all districts or any districts that complies with the drafters’ race-neutral districting criteria and creates greater racial balance ........................................... 17 B. The Legislature’s decision to adopt a maximum population deviation of ±1% was a permissible, race-neutral, “background” decision, not evidence of a racial gerrymander ..................................... 23 C. County splitting, in general, is not evidence of a racial gerrymander ........................................................................................... 27 D. The percentage of black population of each district does not establish a racial gerrymander .............................................................. 30 1. As a factual matter, the percentage target was not applied “mechanically” in derogation of other redistricting criteria ...... 31 2. The percentage of black population in a district can just as well be explained by race-neutral criteria ............................. 33 E. Precinct splitting is not evidence of a racial gerrymander ................... 36 i Case 2:12-cv-00691-WKW-MHT-WHP Document 263 Filed 07/24/15 Page 4 of 178 1. There are good reasons to split precincts that have nothing to do with race ................................................................ 36 2. There is no pattern that raises an inference that race is the reason for precinct splits as a general matter ...................... 37 3. Unsplitting precincts shows that precinct splits have a negligible effect on a district’s racial composition ...................... 40 Argument: Strict Scrutiny ........................................................................................... 45 I. The State has a compelling interest in complying with Section 2 and Section 5 of the Voting Rights Act .................................................................... 45 II. The State’s districts are narrowly tailored ...................................................... 48 A. There is no alternative proposal to meet the undisputed requirements of the Voting Rights Act .................................................. 48 B. 65% black districts are reasonably necessary to comply with the Voting Rights Act ................................................................................... 53 1. The record shows that black political leaders supported districts that are approximately 65% black ............................... 54 2. Courts have concluded that 65% percent is an appropriate threshold to maintain the ability to elect ................................... 56 3. Other States and local governments have been sued under Section 2 for reducing majority-black districts below 70% black ............................................................................................. 59 4. The plaintiffs’ own expert has opined that majority-black districts in Alabama should be at least 62% black to give black voters an equal opportunity to elect under Section 2 ....... 61 Argument: Individual Districts ................................................................................... 63 I. Senate Districts ................................................................................................. 63 A. Birmingham (SDs 18, 19, and 20) ......................................................... 63 1. The incumbent senators drew the Birmingham Senate districts. ....................................................................................... 64 2. The evidence does not establish that the drafters subordinated race-neutral criteria to hit a “target.” ................. 65 ii Case 2:12-cv-00691-WKW-MHT-WHP Document 263 Filed 07/24/15 Page 5 of 178 3. The evidence does not establish that the drafters split precincts on the basis of race or that, if they did, such splitting was (1) inconsistent with race-neutral criteria or (2) affected a substantial number of voters ............................... 68 4. SD18, SD19, and SD20 satisfy strict scrutiny............................ 69 B. West Black Belt (SD 23 and SD24) ....................................................... 70 1. These districts were underpopulated, and geography and incumbent wishes limited the drafters’ options for adding population .................................................................................... 70 2. The evidence does not establish that the drafters subordinated race-neutral criteria to hit a “target.” .................. 72 3. The evidence does not establish that the drafters split counties on the basis of race ........................................................ 74 4. The evidence does not establish that the drafters split precincts in contravention of race-neutral principles ................ 76 5. SD23 and SD24 satisfy strict scrutiny........................................ 77 C. Montgomery (SD 26) .............................................................................. 78 1. SD26’s shape and population percentages result from the application of race-neutral criteria ............................................. 78 2. The black population percentage of SD26 results from Montgomery’s demographics and does not support plaintiffs’ racial gerrymandering claim ...................................... 83 3. Additional evidence submitted on remand confirms that the drafters did not subordinate race-neutral considerations. ............................................................................. 86 4. Precinct splits do not show that race predominated .................. 88 5. SD26 satisfies strict scrutiny ...................................................... 88 D. East Black Belt (SD 28) ......................................................................... 90 1. The drafters made only a few changes to SD28, in cooperation with the incumbent.................................................. 90 iii Case 2:12-cv-00691-WKW-MHT-WHP Document 263 Filed 07/24/15 Page 6 of 178 2. The black population percentage has remained constant over the years and is consistent across alternative plans, reflecting the demographics of the area ..................................... 93 3. Unsplitting precincts does not significantly change the black population percentage ......................................................
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