Singleton v. Merrill

• Decision Date: 24 January 2022
• Docket Number: Case No.: 2:21-cv-1291-AMM, Case No.: 2:21-cv-1530-AMM
• Citation: 582 F.Supp.3d 924
• Parties: Bobby SINGLETON, et al., Plaintiffs, v. John H. MERRILL, in his official capacity as Alabama Secretary of State, et al., Defendants. Evan Milligan, et al., Plaintiffs, v. John H. Merrill, in his official capacity as Secretary of State of Alabama, et al., Defendants.
• Court: U.S. District Court — Northern District of Alabama

582 F.Supp.3d 924

Bobby SINGLETON, et al., Plaintiffs,

v.John H. MERRILL, in his official capacity as Alabama Secretary of State, et al., Defendants.

Evan Milligan, et al., Plaintiffs,

v.John H. Merrill, in his official capacity as Secretary of State of Alabama, et al., Defendants.

Case No.: 2:21-cv-1291-AMM

Case No.: 2:21-cv-1530-AMM

United States District Court, N.D. Alabama, Southern Division.

Signed January 24, 2022

Diandra "Fu" S. Debrosse Zimmermann, James Uriah Blacksher, Dicello Levitt Gutzler, James Sturgeon Christie, Jr., Sirote Dentons, PC, Joe R. Whatley, Jr., Eli Joseph Hare, DiCello Levitt Gutzler LLC, W. Tucker Brown, Whatley Kallas LLP, Birmingham, AL, Henry C. Quillen, Whatley Kallas LLP, Portsmouth, NH, Myron C. Penn, Penn & Seaborn LLC, Union Springs, AL, for Plaintiffs in 2:21-cv-1291-AMM.

Anna Kathryn Barnes, Pro Hac Vice, Anthony Ashton, NAACP, Baltimore, MD, Blayne R. Thompson, Pro Hac Vice, Hogan Lovells US LLP, Houston, TX, Brittany Carter, Pro Hac Vice, Leah C. Aden, Stuart Naifeh, Kathryn Carden Sadasivan, NAACP Legal Defense and Educational Fund, Inc., David Dunn, Pro Hac Vice, Hogan Lovells US LLP, Davin Rosborough, Julie A. Ebenstein, American Civil Liberties Union Foundation, New York, NY, Deuel Ross, NAACP Legal Defense and Educational Fund Inc., Jessica L. Ellsworth, Pro Hac Vice, Hogan Lovells US LLP, Washington, DC, Harmony R. Gbe, Pro Hac Vice, Michael Lovejoy Turrill, Pro Hac Vice, Hogan Lovells US LLP, Los Angeles, CA, Kaitlin Welborn, LaTisha Gotell Faulks, ACLU of Alabama Foundation, Montgomery, AL, Nicki Leili Lawsen, Sidney Monroe Jackson, Wiggins, Childs, Pantazis, Fisher & Goldfarb, LLC, Birmingham, AL, Shelita M. Stewart, Pro Hac Vice, Hogan Lovells US LLP, Washinton, DC, for Plaintiffs Evan Milligan in 2:21-cv-1530-AMM, Shalela Dowdy in 2:21-cv-1530-AMM, Letetia Jackson in 2:21-cv-1530-AMM, Khadidah Stone in 2:21-cv-1530-AMM, Greater Birmingham Ministries in 2:21-cv-1530-AMM, Alabama State Conference of the NAACP in 2:21-cv-1530-AMM.

Brenton Merrill Smith, Edmund Gerard LaCour, Jr., James W. Davis, Andrew Reid Harris, Misty Shawn Fairbanks Messick, Alexander Barrett Bowdre, Benjamin Matthew Seiss, Thomas Alexander Wilson, Office of the Attorney General for the State of Alabama, Montgomery, AL, for Defendant John H. Merrill.

Christina M. Rossi, Balch & Bingham LLP, Birmingham, AL, J. Dorman Walker, Balch & Bingham LLP, Montgomery, AL, for Defendants Jim McClendon, Chris Pringle.

Before MARCUS, Circuit Judge, MANASCO and MOORER, District Judges.

PRELIMINARY INJUNCTION MEMORANDUM OPINION AND ORDER

PER CURIAM:

These redistricting cases, which have been consolidated for the limited purpose of expedited preliminary injunction proceedings, are two of four cases currently pending in the Northern District of Alabama that allege that Alabama's electoral maps are racially gerrymandered in violation of the United States Constitution and/or dilute the votes of Black Alabamians in violation of the Voting Rights Act of 1965, 52 U.S.C. § 10301 : Singleton v. Merrill , Case No. 2:21-cv-1291-AMM (challenges the congressional map on constitutional grounds only), Milligan v. Merrill , Case No. 2:21-cv-1530-AMM (challenges the congressional map on constitutional and statutory grounds), Thomas v. Merrill , Case No. 2:21-cv-1531-AMM (challenges the state legislative map on constitutional grounds only), and Caster v. Merrill , Case No. 2:21-cv-1536-AMM (challenges the congressional map on statutory grounds only).

Singleton and Milligan are before this three-judge court, and Caster is before Judge Manasco sitting alone, on separate motions for preliminary injunctive relief. Although each set of plaintiffs asserts a different theory of liability and requests a different remedy, all plaintiffs request a preliminary injunction barring one of the Defendants, Alabama Secretary of State John H. Merrill, from conducting congressional elections according to Alabama's 2021 redistricting plan for its seven seats in the United States House of Representatives ("the Plan," or "HB1").

The Plan includes one majority-Black congressional district, District 7, which has been represented by a Black Democrat since its inception as a majority-Black district in 1992: first Congressman Earl Hilliard, then Congressman Artur Davis, and now Congresswoman Terri Sewell. District 7 became a majority-Black district when a three-judge federal court drew it that way in a ruling that was summarily affirmed by the Supreme Court of the United States. Wesch v. Hunt , 785 F. Supp. 1491, 1497–1500 (S.D. Ala. 1992), aff'd sub nom. Camp v. Wesch , 504 U.S. 902, 112 S.Ct. 1926, 118 L.Ed.2d 535 (1992), and aff'd sub nom. Figures v. Hunt , 507 U.S. 901, 113 S.Ct. 1233, 122 L.Ed.2d 640 (1993).

The Milligan and Caster plaintiffs now request a declaration that the Plan violates federal law; a preliminary injunction barring Secretary Merrill from conducting any elections pursuant to the Plan; and a preliminary injunction under the Voting Rights Act ordering Secretary Merrill to conduct Alabama's congressional elections according to a map that includes either two majority-Black districts, or two districts in which Black voters otherwise have an opportunity to elect a representative of their choice, or a combination of two such districts. Milligan Doc. 1 ¶ 211; Milligan Doc. 69 at 36; Milligan Doc. 103 ¶¶ 576–84; Caster Doc. 3 at 30–31; Caster Doc. 56 at 8, 40; Caster Doc. 97 ¶¶ 493–97.

The preliminary injunction proceedings are highly time-sensitive because of state-law deadlines applicable to Alabama's next congressional election. The Plan became law on November 4, 2021, and Alabama Code Section 17-13-5(a) effectively establishes a deadline of January 28, 2022 for candidates to qualify with major political parties to participate in the 2022 primary election for the United States House of Representatives and Senate. Alabama Code Section 17-13-3(a) establishes the date of that election as May 24, 2022. The general election will occur on November 8, 2022, approximately one year after these lawsuits were commenced.

The parties and their counsel have developed an extremely extensive record on an extremely expedited basis. The court has had the benefit of a seven-day preliminary injunction hearing that covered Singleton , Milligan , and Caster and included live testimony from seventeen witnesses (eleven experts and six other fact witnesses); more than 400 pages of prehearing briefing and 600 pages of post-hearing briefing; reports and rebuttal reports from every expert witness; more than 350 hearing exhibits; joint stipulations of fact that span seventy-five pages; and able argument by the forty-three lawyers who have appeared in the litigation. The transcript of the preliminary injunction hearing spans nearly 2,000 pages.

Based on the findings of fact and conclusions of law explained below, including our assessments of the credibility of expert witnesses, we conclude that the Milligan plaintiffs are substantially likely to establish that the Plan violates Section Two of the Voting Rights Act. More particularly, we conclude that the Milligan plaintiffs are substantially likely to establish each part of the controlling Supreme Court test, including: (1) that Black Alabamians are sufficiently numerous to constitute a voting-age majority in a second congressional district (Black Alabamians comprise approximately 27% of the State's population, and Alabama has seven congressional seats); (2) that Alabama's Black population in the challenged districts is sufficiently geographically compact to constitute a voting-age majority in a second reasonably configured district (the Milligan plaintiffs and the Caster plaintiffs submitted many illustrative plans that include a second majority-Black district and respect Alabama's traditional redistricting principles); (3) that voting in the challenged districts is intensely racially polarized (this is not genuinely in dispute); and (4) that under the totality of the circumstances, including the factors that the Supreme Court has instructed us to consider, Black voters have less opportunity than other Alabamians to elect candidates of their choice to Congress.

Because we also conclude that the Milligan plaintiffs have established the other requirements for preliminary injunctive relief, we GRANT IN PART the Milligan plaintiffs’ motion for a preliminary injunction, and under Federal Rule of Civil Procedure 65(d) we PRELIMINARILY ENJOIN Secretary Merrill from conducting any congressional elections according to the Plan.

Because the Milligan plaintiffs are substantially likely to prevail on their claim under the Voting Rights Act, under the statutory framework, Supreme Court precedent, and Eleventh Circuit precedent, the appropriate remedy is a congressional redistricting plan that includes either an additional majority-Black congressional district, or an additional district in which Black voters otherwise have an opportunity to elect a representative of their choice. See, e.g., Bartlett v. Strickland , 556 U.S. 1, 24, 129 S.Ct. 1231, 173 L.Ed.2d 173 (2009) ; Cooper v. Harris , ––– U.S. ––––, 137 S. Ct. 1455, 1470, 1472, 197 L.Ed.2d 837 (2017). Supreme Court precedent also dictates that the Alabama Legislature ("the Legislature") should have the first opportunity to draw that plan. See, e.g., North Carolina v. Covington , ––– U.S. ––––, 138 S. Ct. 2548, 2554, 201 L.Ed.2d 993 (2018) ; White v. Weiser , 412 U.S. 783, 794–95, 93 S.Ct. 2348, 37 L.Ed.2d 335 (1973).

The Legislature enjoys broad discretion 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 preliminary injunction proceedings, that any remedial plan will need to include two districts in which Black voters either comprise a voting-age majority or something quite close to it.

We STAY the January 28,...