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Alabama Legislative Black Caucus, v. State

United States District Court, M.D. Alabama, Northern Division

January 20, 2017

ALABAMA LEGISLATIVE BLACK CAUCUS, et al., Plaintiffs,
v.
THE STATE OF ALABAMA, et al., Defendants. ALABAMA DEMOCRATIC CONFERENCE, et al., Plaintiffs,
v.
THE STATE OF ALABAMA, et al., Defendants. Senate District Overpop. () or Underpop. (-) of 2001 District Using 2010 Census Data (%) House District Overpop. () or Underpop. (-) of 2001 District Using 2010 Census Data (%) Senate District 2001 District Lines Using 2010 Census Data (%) (Doc. 263-2) Plan as Passed (%) (Doc. 263-2) Change in Percentage House District 2001 District Lines Using 2010 Census Data (%) (Doc. 30-37) Plan as Passed (%) (Doc. 30-36) Change in Percentage 2010 Pop. Under 2001 Lines (Doc. 263-2) Enacted Plan (Doc. 263-2) Sanders Plan (Common Ex.47) Reed-Buskey Plan (Common Ex. 48) New Black Caucus Plan(APSX 27) Black Caucus 1% Plan (APSX 470) Democratic Conference Plan A Doc. 287-2) House District 2010 Pop. Under 2001 Lines (Doc. 263-2) Enacted Plan (Doc. 263-2) McClammy Plan (Common Ex. 45) Reed-Buskey Plan 4 (Common Ex. 42) Knight Plan (Common Ex. 46) New Black Caucus Plan (APSX 36) Black Caucus 1% Plan (APSX 462) Democratic Conference Plan A (Doc. 287-1) Senate District Black Population Percentage in Hypothetical District Black Population Percentage in Enacted District Difference in Black Population Percentage House District Black Population Percentage in Hypothetical District Black Population Percentage in Enacted District Difference in Black Population Percentage Senate District 2001 District Lines (Doc. 30-41) Plan as Passed (Doc. 30-39) Change in Percentage Senate District 2001 District Lines (Doc. 30- 41) Plan as Passed (Doc. 30-39) Sanders Plan (Common Ex. 47) Reed-Buskey Plan (Common Ex. 48) New Black Caucus Plan (APSX 27A) Black Caucus 1% Plan (APSX 470) Democratic Conference Plan A (Doc. 287-2) 2010 Pop. Under 2001 Lines (Def. Ex. 406) Plan as Passed (Def. Ex. 403) McClammy Plan (Common Ex. 45) Reed-Buskey Plan 4 (Comm on Ex. 42) Knight Plan (Comm on Ex. 46) New Black Caucus Plan (APSX 36) Black Caucus 1% Plan (APSX 470) Democratic Conference Plan A (Docs. 287, 296) 2010 Pop. in House District 53 Under 2001 Lines (Def. Ex. 406) House District 53 as Passed (Def. Ex. 403) House District 19inALBC 1% Plan (APSX 470)* House District 53 in ALBC 1% Plan (APSX 470)** ADC Plan A (Docs. 287, 296) 2010 Pop. Under 2001 Lines (Def. Ex. 406) Plan as Passed (Def. Ex. 403) McClammy Plan (Common Ex. 45) Reed-Buskey Plan 4 (Comm on Ex. 42) Knight Plan (Commo n Ex. 46) New Black Caucus Plan (APSX 36) Black Caucus 1% Plan (APSX 470) Democratic Conference Plan A (Docs. 287, 296) House District Overpop. () or Underpop. (-) of 2001 District Using 2010 Census Data (%) (Def Ex. 406) Under 2001 District Lines (Def. Ex. 406) Plan as Passed (Def. Ex. 403) McClammy Plan (Common Ex. 45) Reed-Buskey Plan 4 (Common Ex. 42) Knight Plan (Common Ex. 46) New Black Caucus Plan (APSX 36) Black Caucus 1% Plan (Doc. 296-1) Democratic Conference Plan A (Doc. 296-1) Under 2001 District Lines (Def. Ex. 406) Plan as Passed (Def. Ex. 403) McClammy Plan (Common Ex. 45) Reed-Buskey Plan 4 (Common Ex. 42) Knight Plan (Common Ex. 46) New Black Caucus Plan (APSX 36) Black Caucus 1% Plan (Doc. 296-1) Democratic Conference Plan A (Doc. 296-1) Under 2001 District Lines (Def. Ex. 406) Plan as Passed (Def. Ex. 403) McClammy Plan (Common Ex. 45) Reed-Buskey Plan 4 (Common Ex. 42) Knight Plan (Common Ex. 46) New Black Caucus Plan (APSX 36) Black Caucus 1% Plan (Doc. 296-1) Democratic Conference Plan A (Doc. 296-1) House District Overpop. () or Underpop. (-) of 2001 District Using 2010 Census Data (%) House District Under 2001 District Lines (Def. Ex. 406) Plan as Passed (Def. Ex. 403) Change Under 2001 District Lines (Def. Ex. 406) Plan as Passed (Def. Ex. 403) McClammy Plan (Common Ex. 45) Reed-Buskey Plan 4 (Common Ex. 42) Knight Plan (Common Ex. 46) New Black Caucus Plan (APSX 36) Black Caucus 1% Plan (Doc. 296-1) Democratic Conference Plan A (Doc. 296-1) Total Population in District 71 Black Pop. Percentage in District 71 Adjoining District Total Population in Adjoining District Black Pop. Percentage in Adjoining District Under 2001 District Lines (Def. Ex. 406) Plan as Passed (Def. Ex. 403) McClammy Plan (Common Ex. 45) Reed-Buskey Plan 4 (Common Ex. 42) Knight Plan (Common Ex. 46) New Black Caucus Plan (APSX 36) Black Caucus 1% Plan (Doc. 296-1) Democratic Conference Plan A (Doc. 296- 1) Black Pop. Percentage in District 72 Portion of County Black Pop. Percentage in County Under 2001 District Lines (Def. Ex. 406) Plan as Passed (Def. Ex. 403) McClammy Plan (Common Ex. 45) Reed-Buskey Plan 4 (Common Ex. 42) Knight Plan (Common Ex. 46) New Black Caucus Plan (APSX 36) Black Caucus 1% Plan (Doc. 296-1) Democratic Conference Plan A (Doc. 296- 1) House District Overpop. () or Underpop. (-) of 2001 District Using 2010 Census Data (%) House District Under 2001 District Lines (Def. Ex. 406) Plan as Passed (Def. Ex. 403) Change House District Under 2001 District Lines (Def. Ex. 406) Plan as Passed (Def. Ex. 403) McClammy Plan (Common Ex. 45) Reed-Buskey Plan 4 (Common Ex. 42) Knight Plan (Common Ex. 46) New Black Caucus Plan (APSX 36) Black Caucus 1% Plan (Doc. 296-1) Democratic Conference Plan A (Doc. 296-1) House District Overpop. () or Underpop. (-) of 2001 District Using 2010 Census Data (%) Under 2001 District Lines (Def. Ex. 406) Plan as Passed (Def. Ex. 403) McClammy Plan (Common Ex. 45) Reed-Buskey Plan 4 (Common Ex. 42) Knight Plan (Common Ex. 46) New Black Caucus Plan (APSX 36) Black Caucus 1% Plan (Doc. 296-1) Democratic Conference Plan A (Doc. 296-1) House District Overpop. () or Underpop. (-) of 2001 District Using 2010 Census Data (%) House District Under 2001 District Lines (Def Ex. 406) Plan as Passed (Def. Ex. 403) Change House District Under 2001 District Lines (Def. Ex. 406) Plan as Passed (Def. Ex. 403) McClammy Plan (Common Ex. 45) Reed-Buskey Plan 4 (Common Ex. 42) Knight Plan (Common Ex. 46) New Black Caucus Plan (APSX 36) Black Caucus 1% Plan (Doc. 296-1) Democratic Conference Plan A (Doc. 296- 1) Under 2001 District Lines (Def. Ex. 406) Plan as Passed (Def. Ex. 403) McClammy Plan (Common Ex. 45) Reed-Buskey Plan 4 (Common Ex. 42) Knight Plan (Common Ex. 46) New Black Caucus Plan (APSX 36) Black Caucus 1% Plan (Doc. 296-1) Democratic Conference Plan A (Doc. 296-1) Under 2001 District Lines (Def. Ex. 406) Plan as Passed (Def. Ex. 403) McClammy Plan (Common Ex. 45) Reed-Buskey Plan 4 (Common Ex. 42) Knight Plan (Common Ex. 46) New Black Caucus Plan (APSX 36) Black Caucus 1% Plan (Doc. 296-1) Democratic Conference Plan A (Doc. 296-1) Under 2001 District Lines (Def. Ex. 406) Plan as Passed (Def. Ex. 403) McClammy Plan (Common Ex. 45) Reed-Buskey Plan 4 (Common Ex. 42) Knight Plan (Common Ex. 46) New Black Caucus Plan (APSX 36) Black Caucus 1% Plan (Doc. 296-1) Democratic Conference Plan A (Doc. 296-1) Under 2001 District Lines (Def. Ex. 406) Plan as Passed (Def. Ex. 403) McClammy Plan (Common Ex. 45) Reed-Buskey Plan 4 (Common Ex. 42) Knight Plan (Common Ex. 46) New Black Caucus Plan (APSX 36) Black Caucus 1% Plan (Doc. 296-1) Democratic Conference Plan A (Doc. 296-1)

          Before WILLIAM PRYOR, Circuit Judge, WATKINS, Chief District Judge, and THOMPSON, District Judge.

          MEMORANDUM OPINION AND ORDER

          WILLIAM PRYOR, Circuit Judge

         The Alabama Legislature faced a difficult task in 2012. The Fourteenth Amendment requires state legislative districts of roughly equal population and prohibits racial gerrymandering. But the Voting Rights Act required Alabama to avoid retrogressing the ability of black voters to elect candidates of their choice. In other words, the legislature had to draw districts of roughly equal population that were conscious enough of race to comply with the Voting Rights Act, but not so conscious of race that they violated the Fourteenth Amendment. In the process, the legislature had to resolve conflicts between traditional districting criteria and secure enough votes to pass both houses. And to further complicate matters, most of the existing majority-black districts were underpopulated by at least five percent.

         After the legislature enacted a plan, the Alabama Legislative Black Caucus and the Alabama Democratic Conference sued Alabama for violating the Fourteenth Amendment and the Voting Rights Act. We granted judgment for Alabama after a four-day bench trial. The Supreme Court vacated that judgment and remanded to allow the plaintiffs to reargue their claims of racial gerrymandering and present new evidence.

         The plaintiffs now challenge all thirty-five majority-black districts and House District 85 as racial gerrymanders. We accepted new evidence, ordered briefing, and held oral argument. At our request, the plaintiffs agreed to draw alternative plans that complied with federal and state law and to submit briefing on the plans. Alabama deposed the plaintiffs' experts and submitted its own briefing. We imposed no page limits on any of the briefing.

         We have readopted our earlier decisions resolving all claims that the Supreme Court did not address, (Doc. 242), and we now decide the claims of racial gerrymandering. To succeed on a claim of racial gerrymandering, the plaintiffs must prove that “race [was] the ‘dominant and controlling' or ‘predominant' consideration in deciding ‘to place a significant number of voters within or without a particular district.'” Ala. Legislative Black Caucus v. Alabama, 135 S.Ct. 1257, 1264 (2015) (quoting Miller v. Johnson, 515 U.S. 900, 913, 916 (1995)). Race predominated over traditional districting criteria if it “was the criterion that, in the State's view, could not be compromised.” Shaw v. Hunt, 517 U.S. 899, 907 (1996). If the plaintiffs prove that race predominated, then the defendants must prove that they had a “strong basis in evidence, ” Ala. Legislative Black Caucus, 135 S.Ct. at 1274, that the use of race was “narrowly tailored to serve a compelling state interest, ” Shaw, 517 U.S. at 907-08. A strong basis in evidence consists of “good reasons to believe such use is required, even if a court does not find that the actions were necessary for statutory compliance.” Ala. Legislative Black Caucus, 135 S.Ct. at 1274.

         The plaintiffs argue that race predominated when the drafters kept the black population percentage in a district the same as it was before redistricting, but more is necessary under Supreme Court caselaw. It is possible to hit a supposed target solely by considering traditional districting criteria, as the plaintiffs concede when their alternative plans match the previous black population percentage in a district. The plaintiffs instead must provide evidence of how the drafters subordinated traditional districting criteria to race. We consider all of the evidence offered by the parties on remand, and we have no mechanical formula or system of weights for considering this evidence.

         We find that race did not predominate in 22 of the 36 districts, and with respect to those districts, our inquiry ends there. We also find that race predominated in 14 of the 36 districts, and we must next decide whether those districts survive strict scrutiny.

         We conclude that Alabama has satisfied strict scrutiny in two of the districts where race predominated. Alabama asserts an interest in complying with the Voting Rights Act, and it relies primarily on statements by two incumbent members of the Black Caucus at public meetings of the redistricting committee. This evidence is sufficient in those members' districts. As we explain, the Supreme Court does not require that the legislature conduct studies. It instead requires only that the legislature had a strong basis in evidence for its use of race. The statement of Senator Hank Sanders in particular is detailed and based on his experience as an influential longtime incumbent. This kind of testimony constitutes a “strong basis in evidence.” And despite the plaintiffs' insistence to the contrary, the record does not establish that the drafters had an incorrect understanding of section 5 in these two districts.

         We GRANT judgment for the plaintiffs with respect to Senate District 20, Senate District 26, Senate District 28, House District 32, House District 53, House District 54, House District 70, House District 71, House District 77, House District 82, House District 85, and House District 99, and we ENJOIN the use of these districts in future elections. With respect to the other 24 districts, we GRANT judgment for the defendants.

         TABLE OF CONTENTS

         I. BACKGROUND ................................................................................................ 6

A. The Parties ................................................................................................. 6
B. Relevant Factual Background .................................................................... 7
C. Decision of the Supreme Court ................................................................. 20
D. Subsequent Proceedings ........................................................................... 22

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

A. Standing .................................................................................................... 27
B. Majority-Black Districts ........................................................................... 28
C. The Plaintiffs' Court-Ordered Alternative Plans ....................................... 29
D. Racial Predominance Generally ................................................................ 36
a. The ±1% Deviation Does Not Prove that Race Predominated. . .............. 37
b. Alabama Had a Statewide Policy of Racial Targets, but the Plaintiffs Still Must Prove that the Policy Caused Race to Predominate in Individual Districts ......................................................................................................... 38
c. The Dissent Misstates the Test for Racial Predominance. . ..................... 48
d. The Plaintiffs Must Prove that the Precinct Splits Cannot Be Explained by Traditional Districting Criteria. . ............................................................... 54
E. Strict Scrutiny Generally .......................................................................... 58
F. District-By-District Analysis of the Challenged Plan ................................ 66
a. Senate Districts 18, 19, and 20 (Birmingham) ....................................... 66
b. Senate District 23 (West Black Belt) ..................................................... 89
c. Senate District 24 (West Black Belt) ................................................... 130
d. Senate District 26 (Montgomery) ......................................................... 154
e. Senate District 28 (East Black Belt) ..................................................... 173
f. Senate District 33 (Mobile) .................................................................. 195
g. House Districts 19 and 53 (Madison County) ...................................... 204
h. House District 32 ................................................................................. 229
i. House Districts 52, 54, 55, 56, 57, 58, 59, and 60 (Jefferson County) .. 239
j. House Districts 67, 68, 69, 70, 71, and 72 (West Black Belt) ............... 281
k. House Districts 76, 77, and 78 (Montgomery) ..................................... 357
l. House Districts 82, 83, 84, and 85 (East Black Belt) ........................... 379
m. House Districts 97, 98, 99, and 103 (Mobile County) .......................... 410

         CONCLUSION .................................................................................................. 448

         APPENDIX ........................................................................................................ 449

         I. BACKGROUND

         We divide our discussion of the background in four parts. First, we identify the parties. Second, we explain the history of the redistricting process as it relates to the claims of racial gerrymandering. Third, we review the decision of the Supreme Court in Alabama Legislative Black Caucus v. Alabama, 135 S.Ct. 1257 (2015). Fourth, we discuss the proceedings that occurred after the decision of the Supreme Court.

         A. The Parties

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

         B. Relevant Factual Background

         This litigation has a deeply partisan backstory. After the 2000 Census, the Democrat-controlled legislature adopted redistricting plans that were expressly partisan. Montiel v. Davis, 215 F.Supp.2d 1279, 1283 (S.D. Ala. 2002) (“Plaintiffs have proffered no evidence to refute the abundant evidence . . . that [the redistricting plans] were the product of the Democratic Legislators' partisan political objective to design Senate and House plans that would preserve their respective Democratic majorities.”). The redistricting criteria in 2001 required that the population in a given district be within ±5% of the ideal population of a district. Id. Within that range, the 2001 redistricting plans systematically underpopulated Democratic districts, including majority-black districts. Out of the 26 majority-black House districts, 21 were underpopulated, and 11 were underpopulated by greater than 4 percent. (Doc. 30-42 at 3-4). Six of the eight majority-black Senate districts were underpopulated, and four of those districts were underpopulated by greater than four percent. (Doc. 30-44 at 2).

         The Democratic leaders boasted about their partisan strategy. They filed an amicus brief in the Supreme Court of the United States that described the districts as an example of a successful partisan gerrymander. See Brief for Leadership of the Alabama Senate and House of Representatives as Amici Curiae Supporting Appellees, Vieth v. Jubelirer, 541 U.S. 267 (2004) (No. 02-1580) (Def. Ex. 448). The brief explained that, during the redistricting process after the 2000 Census, “the Democratic leadership pursued a biracial strategy aimed at safeguarding its governing majorities in both houses of the Legislature.” Id. The brief pronounced that the partisan strategy had succeeded: “The 2002 general election returned Democratic candidates to 71% of the Senate seats and 60% of the House seats, with 52% of the statewide vote supporting Democrats in Senate races and 51% supporting Democrats in House races.” Id.

         Unsurprisingly, Republicans were not enthused. They challenged the 2001 districts as racial gerrymanders in federal court, but Alabama successfully defended the population deviations as “the product of the Democratic Legislators' partisan political objective to design Senate and House plans that would preserve their respective Democratic majorities.” Montiel, 215 F.Supp.2d at 1283. After the Republicans' complaint of racial gerrymandering failed, they filed another complaint that challenged the population deviations as an unlawful partisan gerrymander, but that complaint failed because it was barred by res judicata. Gustafson v. Johns, 434 F.Supp.2d 1246, 1255, 1267 (S.D. Ala. 2006).

         The 2010 Census revealed severe malapportionment of population among the districts, especially in the majority-black House districts that the Democrat-controlled legislature had drawn in 2001. In the 2010 Census, all of the 26 House districts that were majority-black in 2001 were underpopulated. (Doc. 30-37). Twenty-four of those districts were underpopulated by more than 5 percent, the maximum deviation allowed under the 2001 plans, and nine were underpopulated by more than 20 percent. (Id.). All eight of the Senate districts that were majority-black in 2001 were underpopulated, seven of them by more than 5 percent and two of them by more than 20 percent. (Doc. 30-41). Many of these malapportioned districts were located in the Black Belt, a south-central region of the State named for its black soil. Many black Alabamans reside there due to the region's history of agriculture and slavery. (Doc. 203 at 18). The following tables illustrate the severity of the underpopulation in the challenged districts:

         Population Deviation in Challenged Senate Districts

Senate District
Overpop. () or Underpop. (-) of 2001 District Using 2010 Census Data (%)
18
-17.64
19
-20.06
20
-21.37
23
-18.03
24
-12.98
26
-11.64
28
-3.80
33
-18.05

(Doc. 30-41).

         Population Deviation in Challenged House Districts

House District
Overpop. () or Underpop. (-) of 2001 District Using 2010 Census Data (%)
19
-6.90
32
-14.76
52
-5.19
53
-22.28
54
-23.32
55
-21.86
56
-9.79
57
-20.48
58
-17.75
59
-27.86
60
-19.37
67
-16.79
68
-20.40
69
-17.46
70
-13.77
71
-16.32
72
-13.42
76
-1.38
77
-23.12
78
-32.16
82
-4.68
83
-9.85
84*
-9.24
85*
-6.79
97
-22.22
98
-16.89
99
-12.59
103
-10.79

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

(Doc. 30-37).

         The 2001 partisan gerrymander failed to save the Democrats in 2010, when Republicans won supermajorities in both houses. Because the Alabama Constitution requires the Alabama Legislature to update its districts after each decennial census, see Ala. Const. Art. IX, §§ 199-200, the task of responding to the population malapportionment in the districts fell to the newly elected Republican-controlled legislature. The Alabama Code provides for a Permanent Legislative Committee on Reapportionment to address any problems of malapportionment that arise after a new census. See Ala. Code §§ 29-2-50, 29-2-51. The Committee is charged with developing new reapportionment plans for the state. See Id. § 29-2-50(2). Two Republicans, Senator Gerald Dial and Representative Jim McClendon, co-chaired the Committee, (Corr. Joint Stip. of Facts ¶ 3), which eventually produced the legislative redistricting plans that the plaintiffs now challenge: Act No. 2012-602 (House) and Act No. 2012-603 (Senate).

         The Republican-controlled legislature used the same criteria as previous legislatures, with one exception: they tightened the limit on population deviation to ±1%. Republicans in the legislature used the narrow deviation in part to avoid a judgment of liability under the Fourteenth Amendment as had occurred in Georgia in Larios v. Cox, 300 F.Supp.2d 1320 (N.D.Ga.), aff'd, 542 U.S. 947 (2004). (Doc. 217 at 205-06). They also benefited politically from a tighter deviation, as it would undo the partisan gerrymander that the Democrats had previously enacted. But in all other respects, the Republicans used the same guidelines as the previous plan and attempted to avoid change when possible. (Doc. 215 at 29-30; Doc. 134-4 at 25-26).

         Senator Dial and Representative McClendon worked with Randy Hinaman to draw the new districts for the legislature. (Doc. 125-10 at 2). Hinaman is a political consultant with experience working in Alabama. (Doc. 217 at 115). He drew the congressional districts in Alabama after the 2010 Census, (id. at 116); worked with Democrat leaders after the 2000 Census to draw the congressional districts that were adopted by the legislature and precleared by the United States Department of Justice, (id. at 115); and drew congressional districts that were adopted by a three-judge district court in 1992 and affirmed by the Supreme Court, see Wesch v. Hunt, 785 F.Supp. 1491, 1499 (S.D. Ala.), aff'd sub nom. Camp v. Wesch, 504 U.S. 902 (1992); (Doc. 217 at 114-15).

         Hinaman used a computer program called Maptitude to draw the plans. Maptitude allows the user to draw districts based on census data. (Doc. 134-4 at 15). It also allows the user to load additional data into the program to assist with the drawing of the districts. (Id.) Hinaman collected political data from the Republican National Committee for every election in Alabama between 2002 and 2010 and imported that data into Maptitude. (Id.). Hinaman also collected and imported information from the Reapportionment Office about the residences of incumbents. (Id. at 36). As he drew the districts, Hinaman had political data down to the precinct level and census data, including racial data, down to the census-block level. (Id. at 110-12).

         The Committee gave Hinaman written guidelines for drawing the new district lines, (Corr. Joint Stip. of Facts ¶ 3), which we attach as an appendix to this opinion. As already discussed, the Committee changed the allowable population deviation for the State Board of Education and the legislature from ±5%, which had been used in the 2001 plans, to ±1%. (Id. at 3; Doc. 30-4 at 2). The guidelines required the districts to be drawn in accordance with the Voting Rights Act, to be contiguous and reasonably compact, to be composed of as few counties as practicable, to avoid contests between incumbent members whenever possible, and to respect communities of interest. (Doc. 30-4 at 2-4). The guidelines defined a community of interest as “an area with recognized similarities of interest, including but not limited to racial, ethnic, geographic, governmental, regional, social, cultural, partisan, or historic interests; county, municipal, or voting precinct boundaries; and commonality of communications.” (Id. at 3-4). Finally, the guidelines acknowledged that not all of the redistricting goals could be accomplished and provided that, in cases of conflict, priority would be given to the requirements of one person, one vote and the Voting Rights Act. (Id. at 4).

         Section 2 of the Act prohibits any “standard, practice, or procedure” that “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” 52 U.S.C. § 10301(a). The Supreme Court has applied section 2 to redistricting. See Thornburg v. Gingles, 478 U.S. 30 (1986). To decide a claim under section 2, a court must first decide whether “(i) ‘[the racial minority] is sufficiently large and geographically compact to constitute a majority in a single-member district'; (ii) the group is ‘politically cohesive'; and (iii) ‘the white majority votes sufficiently as a bloc to enable it . . . usually to defeat the minority's preferred candidate.'” Reno v. Bossier Parish Sch. Bd., 520 U.S. 471, 479 (1997) (alteration in original) (quoting Gingles, 478 U.S. at 50-51). If these factors, known as the Gingles factors, are present in a district, a court then looks to whether “the totality of the circumstances supports a finding that the voting scheme is dilutive, ” id. at 480, which is to say that members of a protected minority group “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice, ” 52 U.S.C. § 10301(b).

         Section 5 of the Act requires a jurisdiction covered under section 4 to obtain preclearance of a new voting “standard, practice, or procedure” by either the Attorney General of the United States or the United States District Court for the District of Columbia. Id. § 10304. Such a change can have neither “the purpose nor . . . the effect of denying or abridging the right to vote on account of race or color.” Id. The Supreme Court has applied section 5 to redistricting, see, e.g., Beer v. United States, 425 U.S. 130, 133 (1976), and Alabama was a covered jurisdiction in 2012, see Shelby Cty. v. Holder, 133 S.Ct. 2612, 2621 (2013). “Whether a voting procedure change should be precleared depends on whether the change ‘would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise.'” Georgia v. Ashcroft, 539 U.S. 461, 466 (2003) (quoting Beer, 425 U.S. at 141). When the Attorney General evaluated whether the 2012 plan had a retrogressive effect, he compared the new districts with the old districts in the light of the updated census data. See Guidance Concerning Redistricting Under Section 5 of the Voting Rights Act, 76 Fed. Reg. 7471 (Feb. 9, 2011).

         The Committee co-chairs, Senator Dial and Representative McClendon, both believed that avoiding retrogression was a priority. Representative McClendon testified that a district “is retrogressed if the minorities in that district, whether by race or language, are worse off after redistricting than they were before redistricting.” (Doc. 217 at 221). Senator Dial testified that, as each majority-black district was repopulated, “to keep from regressing the district and increasing that population, we had to increase it percentagewise on the same number of minority votes that we had.” (Doc. 215 at 36). When asked whether “that included bringing the African American populations of those districts up to approximately equal as best you could with what it had been in 2001, ” Dial agreed. (Id. at 37). He was “committed not to regress” the “numbers that had been established under the last redistricting plan.” (Id. at 28-29). According to Dial, it was “fair” to say that he tried to “maintain” the black percentage in a given district relative to the 2010 Census population under the 2001 district lines. (Id. at 136). Dial was not concerned with creating higher percentages of black population within a district. (Id. at 56).

         Hinaman was also concerned with retrogression. He “look[ed] at [the] 2010 census as applied to 2001 lines, [and] whatever that number was, [he] tried to be as close to that as possible.” (Doc. 217 at 145-46). If he “was significantly below that, [he] was concerned about that being retrogression that would be looked upon unfavorably by the Justice Department under Section 5.” (Id.). Hinaman explained that this inquiry was “somewhat of a subjective thing, but . . . if you took a district that was somewhere in the 60 to 65 percent black majority district and you brought it down into the low 50s, ” he thought “people would be concerned whether that population would then have the opportunity to elect a candidate of their choice.” (Doc. 134-4 at 101-02). When asked about a hypothetical district “in the upper 70s” that was redrawn as 70 percent black, he answered that he “would be less concerned.” (Id.). Hinaman also explained that no one instructed him that such a reduction was forbidden. (Id.).

         At the beginning of the reapportionment process, the Committee conducted public hearings at 21 locations throughout Alabama. (Corr. Joint Stip. of Facts ¶ 3). Senator Dial and Representative McClendon attended all of the hearings. (Id. at 4). At the public hearing in Dallas County, Senator Hank Sanders-a black Democrat who represents majority-black Senate District 23-asked Dial to use 62 percent as a minimum for the majority-black districts because often the population statistics for a district do not reflect the actual voters in that district. (Doc. 30-28 at 6). At the public hearing in Clarke County, Representative Thomas Jackson-a black Democrat who represents majority-black District 68-explained that a majority-black district should be 62 percent to 65 percent black. (Doc. 30-23 at 8).

         When Hinaman began working on the plans, he drew the majority-black districts first. (Doc. 217 at 146-47). Because every majority-black district was underpopulated, he needed to add precincts to each district until it satisfied the ±1% deviation. (Id. at 142-43). Hinaman explained how he drew those districts:

[I]n toto, whatever I added to a various district, I would look to see what change that made to the overall black percentage in that district. And so in some districts I could add in anything I wanted, and it didn't matter because they were-you know, either they didn't need that much population, or the changes I added didn't matter.

(Id. at 143). Hinaman “tried to look at the additions en masse, not just a precinct.” (Id. at 144). He might “add a white precinct, a majority white precinct and a majority African American precinct; but if you look at the end number, if it did not retrogress the overall end number for that precinct, then they were added in.” (Id.) Hinaman would consider splitting precincts to increase black population percentage only when he was concerned that he had significantly reduced the black population percentage in a given district. (Id. at 144-46).

         Hinaman also tried to avoid putting incumbents in conflict with one another, (id. at 119), to accommodate the wishes of incumbents about their districts, (id. at 139), to maintain each district along similar lines, (id. at 162), and to comply with the guidelines set forth by the Committee, (id. at 139). According to Hinaman, “It was also a goal to change each district to some extent the least amount possible.” (Doc. 134-4 at 25-26). Some of these goals had higher priority than others. For example, counties were split in some instances to comply with requests from incumbent legislators, (Doc. 217 at 135-36), or because they were split similarly in previous plans, (Doc. 134-4 at 34). Although maintaining each district along similar lines to the previous plan was “a goal, ” it was “down on the list” from complying with the Constitution and “[s]eparating incumbents.” (Doc. 217 at 162).

         Significant portions of the plan were based on suggestions from incumbent legislators. Hinaman traveled to Alabama to meet in person with many of the Republican legislators. (Id. at 120-21). Although he did not meet with Democratic legislators before the plans were introduced in the legislature, he incorporated suggestions that Senator Dial and Representative McClendon received from Democratic legislators. (Doc. 217 at 121). Dial gave Hinaman a proposed map for the three majority-black Senate districts in Jefferson County that Senator Rodger Smitherman, a black Democrat from Jefferson County, had given him. (Doc. 134-4 at 43). Dial instructed Hinaman to incorporate those maps into the Senate plan to the extent possible because they represented the wishes of the three senators from those districts. (Id.) Hinaman drew the majority-black districts in Jefferson County to be substantially the same as the maps provided to him by Senator Dial. (Id.) McClendon gave Hinaman proposed maps for Montgomery County from Representative Thad McClammy, a black Democrat who represented that county. (Id. at 44-45). McClendon told Hinaman to adopt as many of McClammy's ideas as possible, and Hinaman followed that instruction. (Id. at 45-47).

         There were also alternative plans proposed in the legislature, including the McClammy Plan for the House, (Common Ex. 45), the Sanders Plan for the Senate, (Common Ex. 47), the Reed-Buskey Plans for the House and Senate, (Common Exs. 42, 48), and the Knight Plan for the House, (Common Ex. 46). None of them complied with the ±1% deviation, and at least some of the plans put numerous incumbents in conflict. For example, the Reed-Buskey Plan for the House put four Republicans and two Democrats in conflict, and the Knight Plan put 26 Republicans and six Democrats in conflict. (Def. Supp. Ex. 16). By contrast, the plans adopted by the legislature created only two incumbent conflicts. Two black incumbent Democrats, Representatives Juandalynn Givan and Demetrius Newton, lived in the new House District 60. But Hinaman had been told that Representative Newton planned to retire, (Doc. 134-4 at 132), and he has since died, (Doc. 203 at 52). Another black incumbent Democrat, Representative John Knight, and a white incumbent Democrat, Representative Joe Hubbard, were both placed in the new House District 77. (Def. Supp. Ex. 16).

         Some of the alternative plans also drastically reduced the black population percentage in certain districts. Senator Dial testified that he rejected two alternative plans for the Senate because they did not keep certain majority-black districts at or above 62 percent, as Senator Sanders had requested. Dial explained that he rejected Sanders's own Senate plan because “[i]t didn't even meet the requirements [he] had said would keep them 62 percent at least.” (Doc. 215 at 77). Dial likewise rejected the Reed-Buskey Senate Plan because it retrogressed some districts and fell short of 62 percent black population. (Id. at 126).

         The legislative plans that the plaintiffs now challenge, Act 2012-602 and Act 2012-603, were introduced, considered, and approved during a special session of the legislature. All of the proposed substitutes were defeated, and Governor Bentley signed the Acts into law on May 31, 2012. The votes to approve the plans fell largely along party lines. (NPX 314-15; Def. Supp. Exs. 21, 25).

         C. Decision of the Supreme Court

         In 2015, the Supreme Court vacated our previous final judgment upholding the districts and remanded the case. Ala. Legislative Black Caucus, 135 S.Ct. at 1262-63. The Supreme Court “focus[ed] upon four critical District Court determinations”: whether the plaintiffs could bring a statewide claim of racial gerrymandering, whether the Democratic Conference plaintiffs had standing, whether race predominated, and whether the districts survived strict scrutiny. Id. at 1264. We explain each issue in turn.

         First, the Supreme Court held that the plaintiffs' “undifferentiated statewide” claims of racial gerrymandering were “insufficient.” Id. at 1266. It remanded so that the plaintiffs could challenge individual districts as racial gerrymanders. Id. We were instructed to review each challenged district individually, but we were also instructed to consider “statewide evidence to prove that race predominated in the drawing of individual district lines.” Id. at 1267. The Supreme Court further stated that Alabama “expressly adopted and applied a policy of prioritizing mechanical racial targets above all other districting criteria (save one-person, one-vote)” and remanded for a determination of how that policy affected individual districts. Id. at 1267-68.

         Second, the Supreme Court remanded with instructions to “reconsider the [Democratic] Conference's standing by permitting the [Democratic] Conference to file its list of members and permitting the State to respond, as appropriate.” Id. at 1270.

         Third, the Supreme Court held that Alabama's “requirement that districts have approximately equal populations is a background rule against which redistricting takes place.” Id. at 1271. As a result, it “is not one factor among others to be weighed against the use of race to determine whether race ‘predominates.'” Id. at 1270. Instead, “it is part of the redistricting background, taken as a given, when determining whether race, or other factors, predominate in a legislator's determination as to how equal population objectives will be met.” Id. The Supreme Court suggested that had we “not taken a contrary view of the law, [our] ‘predominance' conclusions, including those concerning the four districts that the Democratic Conference specifically challenged, might well have been different.” Id. at 1271.

         Fourth, the Supreme Court clarified the test for strict scrutiny when a state asserts that it had a compelling interest in complying with the Voting Rights Act. The Supreme Court explained that a “mechanical interpretation of § 5 can raise serious constitutional concerns.” Id. at 1273. Instead of asking, “How can we maintain present minority percentages in majority-minority districts?” Alabama must ask, “To what extent must we preserve existing minority percentages in order to maintain the minority's present ability to elect the candidate of its choice?” Id. at 1274. Alabama must prove that it had “a ‘strong basis in evidence' in support of the (race-based) choice that it has made.” Id. (quoting Brief for the United States as Amicus Curiae Supporting Neither Party 29, Ala. Legislative Black Caucus, 135 S.Ct. 1257 (Nos. 13-895, 13-1138)). “[L]egislators ‘may have a strong basis in evidence to use racial classifications in order to comply with a statute when they have good reasons to believe such use is required, even if a court does not find that the actions were necessary for statutory compliance.'” Id. (quoting Brief for the United States as Amicus Curiae Supporting Neither Party 29).

         The Supreme Court also discussed Senate District 26 in detail. The Court found “strong, perhaps overwhelming, evidence that race did predominate as a factor when the legislature drew the boundaries of Senate District 26.” Id. at 1271. It observed that “[t]he legislators in charge of creating the redistricting plan believed, and told their technical adviser, that a primary redistricting goal was to maintain existing racial percentages in each majority-minority district, insofar as feasible.” Id. And it found “considerable evidence that this goal had a direct and significant impact on the drawing of at least some of District 26's boundaries.” Id. But it made no finding that race predominated in District 26 and instead remanded that issue to this Court. Id. at 1272.

         D. Subsequent Proceedings

         After we received the mandate from the Supreme Court, we directed the parties to provide us with several pieces of information. First, we directed the plaintiffs to identify the districts that they intended to challenge as racial gerrymanders. (Doc. 225 at 2). They challenged every district with a majority-black total population-House Districts 19, 32, 52-60, 67-72, 76-78, 82-85, 97-99, and 103, and Senate Districts 18-20, 23, 24, 26, 28, and 33. (Doc. 229 at 2). The Black Caucus plaintiffs later abandoned their challenge to House District 84. (Doc. 300-1 at 107).

         Second, we directed the Democratic Conference plaintiffs to file a list of members residing in the challenged districts. (Doc. 225 at 2). They did so, (Doc. 238), and Alabama did not file a response to that list.

         Third, we asked the parties to identify any new evidence that they hoped to introduce and to consider whether an evidentiary hearing would be beneficial. (Doc. 225 at 2). They submitted hundreds of supplemental exhibits based on evidence already introduced at trial. (Doc. 229 at 2-3). The plaintiffs also asked us to take judicial notice of census data, several legislative acts, and the preclearance submissions that Alabama sent to the Department of Justice regarding its 2001 redistricting plans. (Id.). All parties declined the opportunity for an evidentiary hearing. (Id.).

         We have readopted our earlier findings of fact and conclusions of law to the extent that the Supreme Court did not address them. We readopted our orders on one person, one vote; partisan gerrymandering; and the claim that the redistricting acts violated the Equal Protection Clause based on the interaction between the Acts and the local legislative system in Alabama. (Doc. 242 at 2 (readopting Docs. 53 and 174)). We also readopted those portions of our previous final judgment that decided the claim of vote dilution brought under section 2 and the claim of intentional discrimination brought under section 2, the Fourteenth Amendment, and the Fifteenth Amendment. (Id. (readopting parts of Doc. 203)). And we readopted our previous findings of fact on all claims other than racial gerrymandering, as well as our previous findings about historical fact and witness credibility. (Doc. 242 at 3). The Black Caucus plaintiffs moved for reconsideration of our previous orders in the light of Arizona State Legislature v. Arizona Independent Redistricting Commission, 135 S.Ct. 2652 (2015), and we denied that motion. (Docs. 261, 265).

         Finally, we received briefs in support of final judgment on liability. (Docs. 256, 258, 263, 271-72). Before oral argument, we requested additional information from the parties, (Doc. 275), which they provided, (Docs. 276-80). At oral argument, we asked the plaintiffs whether they would be willing to submit an alternative statewide plan that complies with federal law and the redistricting criteria adopted by Alabama. They agreed, and we ordered them to do so, (Doc. 283), over the objection of Alabama. The Black Caucus and Democratic Conference plaintiffs each filed a plan, along with explanatory briefs and several hundred more exhibits. (Docs. 285-87, 294). Alabama deposed both mapmakers and filed their depositions, and it submitted a response brief and eighteen exhibits. (Docs. 295-97). The plaintiffs then submitted reply briefs with more exhibits. (Docs. 298-301). We imposed no page limits on any briefs on remand.

         II. FINDINGS OF FACT AND CONCLUSIONS OF LAW

         The Democratic Conference plaintiffs allege that all of the districts that are majority-black by total population are the product of a racial gerrymander; the Black Caucus plaintiffs challenge the same districts, with the exception of House District 84. In the plaintiffs' view, the drafters maintained a policy of meeting racial targets or floors in each of the districts. According to the plaintiffs, the drafters attempted to replicate the percentage of black population that lived in each challenged district before redistricting. They argue that the use of these targets caused each of these districts to be a racial gerrymander.

         To make out a claim of racial gerrymandering, the burden is initially on the plaintiffs to prove that “race was the predominant factor motivating the legislature's decision to place a significant number of voters within or without a particular district.” Miller v. Johnson, 515 U.S. 900, 916 (1995). The Supreme Court has explained that the plaintiffs “must prove that the legislature subordinated traditional race-neutral districting principles . . . to racial considerations.” Ala. Legislative Black Caucus, 135 S.Ct. at 1270. Traditional considerations include factors such as protecting incumbents, respecting communities of interest, maintaining contiguity and compactness, conforming to political subdivisions, and sorting based on political affiliation. Id. Race predominates over these factors if “[r]ace was the criterion that, in the State's view, could not be compromised.” Shaw v. Hunt, 517 U.S. 899, 907 (1996). When the plaintiffs proceed with only indirect evidence that race predominated and the design of a district can be explained by traditional districting criteria, the plaintiffs have not satisfied their burden of proof.

         If the plaintiffs meet their burden, then the defendants must prove that the district satisfies strict scrutiny. “Strict scrutiny does not apply merely because redistricting is performed with consciousness of race. Nor does it apply to all cases of intentional creation of majority-minority districts.” Bush v. Vera, 517 U.S. 952, 958 (1996) (citation omitted). The elusive distinction between “being aware of racial considerations and being motivated by them . . ., together with the sensitive nature of redistricting and the presumption of good faith that must be accorded legislative enactment, requires [us] to exercise extraordinary caution.” Miller, 515 U.S. at 916. We “must be sensitive to the complex interplay of forces that enter a legislature's redistricting calculus.” Id. at 915-16. “[T]he Constitution does not place an affirmative obligation upon the legislature to avoid creating districts that turn out to be heavily, even majority, minority. It simply imposes an obligation not to create such districts for predominantly racial, as opposed to political or traditional, districting motivations.” Easley v. Cromartie, 532 U.S. 234, 249 (2001).

         We have already ruled, (Doc. 203 at 160), and the parties do not dispute, that compliance with federal election law, including sections 2 and 5 of the Voting Rights Act, was a compelling governmental interest at the time of redistricting. The Supreme Court has explained that a legislature must have a “strong basis in evidence” that its district is narrowly tailored to comply with the Act:

This standard . . . ‘does not demand that a State's actions actually be necessary to achieve a compelling state interest in order to be constitutionally valid.' And legislators ‘may have a strong basis in evidence to use racial classifications in order to comply with a statute when they have good reasons to believe such use is required, even if a court does not find that the actions were necessary for statutory compliance.”

Ala. Legislative Black Caucus, 135 S.Ct. at 1274 (citation omitted) (quoting Brief for United States as Amicus Curiae in Support of Neither Party 29). Put succinctly, this inquiry should not devolve into “a fight over the ‘best' racial quota.” Id. at 1281 (Thomas, J., dissenting).

         The plaintiffs have proved that race predominated in 14 of the 36 districts that they challenge: Senate District 20, Senate District 23, Senate District 26, Senate District 28, House District 32, House District 53, House District 54, House District 68, House District 70, House District 71, House District 77, House District 82, House District 85, and House District 99. Of those 14 districts, only Senate District 23 and House District 68 survive strict scrutiny. We explain our reasoning in the rest of this section, which we divide in six parts. First, we conclude that the Democratic Conference plaintiffs have standing. Second, we make findings about the number of majority-black districts in the challenged plan and the benchmark-the 2010 Census population in the 2001 districts. Third, we discuss the court-ordered alternative plans and the parties' arguments about them. Fourth, we address the general arguments and evidence about racial predominance. Fifth, we address the general arguments and evidence about strict scrutiny. Sixth, we examine each challenged district individually.

         A. Standing

         The Supreme Court remanded with instructions to “reconsider the Conference's standing by permitting the Conference to file its list of members and permitting the State to respond, as appropriate.” Id. at 1270 (majority opinion). In accordance with that mandate, we ordered the Democratic Conference to file its list of members, (Doc. 225 at 2), and the Democratic Conference complied, (Doc. 238). Alabama elected not to file a response to that list, although we gave it the opportunity to do so. (Doc. 237 at 2.) We find that this list establishes that the Democratic Conference has members who reside in all of the challenged districts, and we conclude that this list “is sufficient to meet the Conference's burden of establishing standing.” Ala. Legislative Black Caucus, 135 S.Ct. at 1269.

         B. Majority-Black Districts

         Throughout this litigation, the parties often have relied on total population statistics. We have used those statistics because the plaintiffs argued that they prove that race predominated. We will continue using those numbers in this opinion when the parties argue about racial predominance using total population statistics.

         But for purposes of the Voting Rights Act, the relevant statistic is voting-age population. See, e.g., 52 U.S.C. §§ 10301, 10304 (referring to the right to vote); Bartlett v. Strickland, 556 U.S. 1, 18 (2009) (opinion of Kennedy, J., joined by Roberts, C.J., and Alito, J.) (applying section 2); Georgia v. Ashcroft, 539 U.S. 461, 485-90 (2003) (applying section 5), abrogated on other grounds by 52 U.S.C. § 10304. To avoid confusion, we use “majority-black district” to refer to a district with a majority-black voting-age population, not a majority-black total population. When we refer to a district with a majority-black total population, we will add the words “total population.”

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

         C. The Plaintiffs' Court-Ordered Alternative Plans

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

         The plaintiffs' mapmakers came dangerously close to admitting that race predominated in at least some of the districts in their plans. The Black Caucus plaintiffs' expert, William Cooper, testified in his deposition that he intentionally increased the black population in Senate District 9 to create an influence district “because there was an interest that was expressed during that time period in 2012 when I was doing HB-or SB-5 to create a district in-a Senate District in north Alabama, specifically in Madison County, that would have at least some influence.” (Doc. 297-1 at 93-94). He reiterated later in his testimony that he “created an influence district consciously” in Senate District 9. (Id. at 126).

         Cooper's use of race in this manner was not limited to Senate District 9. The black population percentage in District 26 would be over 17 points lower in the 1% Plan than it was in 2010. (Doc. 30-41 at 1; Doc. 296-1 at 4). He explained that he “did consciously lower the black population percentage [in Senate District 26] by extending it out into Lowndes [County] and Autauga [County], ” (Doc. 297-1 at 129). And in District 32, he testified that he “chose to create” a majority-black district with a black voting-age population of 50 percent and split precincts to do so:

A: Well, according to the court order, I needed to create 27 majority-black districts, and [House District 32] is where I chose to create one of the ones. That, logically, is a little more difficult-
Q: And how did you know when you created a black district?
A: When I had more than 50 percent black voting age. Generally, I would stop at that point because I was working at the precinct level.
Q: Okay.
A: In this case though, precincts had to be split.

(Id. at 124).

         The Democratic Conference plaintiffs' mapmaker, Anthony Fairfax, testified that he also drew some district lines on the basis of race:

A: . . . There were certain circumstances where I felt that the districts had an exceedingly high [black population] percentage. . . . There were some that were 70 percent and higher, and so in that particular case, it bordered packing.
Q: Okay. And so if you came to a district that was 70 percent, would you look at the racial composition of the district as you were drawing it?
A: It was done probably on and off. Yeah, I would say at some times you would have to look at the racial composition. There's no other way to actually stop from packing if you don't look at the racial composition.
Q: Would you tend to look at it as you go, as you were adding precincts, or would you draw a district and then look back to see what the composition was?
A: Usually there [were] no racial indicators, but if I saw that we're getting to 75, 78, 80 percent or something thereabouts, then you have to look at the racial indicators for the voting districts.
Q: Okay. And as you looked at it, you know, what would you do if you get a district that was getting into the high 70s?
A: You would have to move into areas, neighborhoods, that were less black, less African-American, let's say.
Q: Okay. So let's say hypothetically you were drawing a district, and you noticed that it was getting to 75 percent or above. You would then start looking for precincts that had a lower percentage of African-American voters?
A: Areas, yes. You move into those areas, not necessarily specific precincts that you grab, but those areas that would actually offset that percentage. There really isn't any other way to do that.
. . .
Q: . . . Can you tell me now any Senate districts where you got to a high percentage and so you started looking for areas with a lower percentage of African-American voters?
A: There were. I can't tell you specifically which numbers because it's a process that you're working on. It's not necessarily just one.

(Id. at 73-76).

         He later testified that race may have dictated his redistricting choices in House District 68 as well:

Q: So you weren't looking for population on the borders to try to make sure [House District] 68 stayed above 50 percent [black]?
A: There could have been consideration to make sure that stayed majority minority. Yeah, there could have been consideration to do that.
Q: Are you saying you just don't remember one way or the other?
A: Right, right. And the reason why is, again, the process of collecting . . . the voting districts, there may have been some time where if I did and it dropped below 50, then I want to get it back up. If it dropped into the 40s, then I want to get back up.
Q: What would you do to get back up?
A: Well, I'd have to go into areas that would increase the African-American population.

(Doc. 296-7 at 191-92). But neither of the mapmakers admitted that race predominated over traditional districting criteria in any district.

         Moreover, neither of the plaintiffs proved that their alternative plans satisfied the Voting Rights Act. A cursory look at the black voting-age population percentages illustrates why we cannot assume that the alternative districts avoided retrogression and satisfied section 2. For example, the Black Caucus plaintiffs dropped Senate District 23 from 61.79 percent black in the benchmark to 51.06 percent black in the 1% Plan, and they dropped House District 32 from 56.62 percent black to 50.82 percent black. (Doc. 203 at 47-48; Doc. 295 at 18-19). The Democratic Conference plaintiffs took Senate District 26 from 70.87 percent black in the benchmark to 57.70 percent black in Plan A, and they took House District 19 from 67.70 percent black to 50.13 percent black. (Doc. 203 at 47-48; Doc. 295 at 18-19). These districts may in fact satisfy section 2 and section 5 of the Voting Rights Act, but the plaintiffs have failed to prove that they do. Although plaintiffs are not required to produce alternative plans, those plans cannot conclusively prove the unconstitutionality of the challenged plans when we are uncertain whether they violate federal law.

         The Black Caucus plaintiffs offer no arguments about how their 1% Plan complies with the Voting Rights Act. The Democratic Conference plaintiffs make several arguments, but they fail to persuade us. First, they cite Dr. Alan Lichtman's testimony at trial that a bare majority of black voters provides the ability to elect, as well as his testimony about Montgomery County and Madison County. (Doc. 287 at 22-23). We discredited his statewide testimony because “Lichtman did not conduct any statistical analysis to determine whether factors other than race were responsible for the voting pattern, ” such as “affluence, strength of a political campaign, or party loyalty.” (Doc. 203 at 79). He “also did not conduct any analysis of Democratic primaries between black and white candidates, which might have offered further evidence about whether white voters are more likely to support white Democrats and black voters are more likely to support black Democrats.” (Id.). The Democratic Conference plaintiffs' reliance on election returns in uncontested general elections does not remedy that problem. Although we credited the testimony about specific alternative districts in Madison and Montgomery Counties, Lichtman's testimony does not prove that this new plan-especially the districts in other parts of the state- satisfies the Voting Rights Act. The plaintiffs argue that the districts comply by dint of a coalition with Hispanics, but they fail to prove that Hispanics and blacks form a cohesive coalition.

         Second, the Democratic Conference plaintiffs argue for the first time in the brief that explains their plan that the correct statistical category is any-part black, not single-race black. (Doc. 287 at 24). They fail to explain why we should change our metric at this late date, after they provided us with single-race black statistics when attacking the enacted plan. More importantly, they fail to explain how the any-part black statistics would prove that Plan A avoids retrogression; if we use any-part black statistics for Plan A, then we would have to do so for the benchmark as well.

         Third, the Democratic Conference plaintiffs argue that, “[e]ven if small increases in black population were proven to be necessary, it would be a simple matter to increase those numbers slightly, consistent with traditional districting criteria.” (Id. at 19). They do not explain why we can be sure that they could raise the black population percentage without subordinating traditional districting principles to race, and their own expert warned of a potential “domino effect” across the state when the shape of one district changes. (Doc. 296-7 at 164, 202). We reject this argument as well.

         We also disagree with the argument made by Alabama that “where Plaintiffs' plans present districts with very similar lines or features to those in the Legislature's plans, these districts should be affirmed for that reason alone.” (Doc. 295 at 38). If an alternative district has identical lines, we take the plaintiffs' offering of that plan as a concession that race did not predominate in the enacted district. But where there are significant differences, we must review the record for evidence of racial gerrymandering in the enacted district.

         A district is constitutional even if the drafters were concerned about race, so long as race was not “the predominant factor motivating the legislature's decision to place a significant number of voters within or without a particular district.” Ala. Legislative Black Caucus, 135 S.Ct. at 1270 (quoting Miller, 515 U.S. at 916). That is, we must determine whether “the legislature subordinated traditional race-neutral districting principles . . . to racial considerations.” Id. (alteration in original) (quoting Miller, 515 U.S. at 916). The plaintiffs tell us that they did not subordinate traditional districting criteria to race, so if they made the same choices as the legislature in a district, it is strong evidence that the legislature did not subordinate traditional districting criteria to race. Alternative plans also can establish that a certain black population percentage was unavoidable based on demographics and traditional districting criteria.

         D. Racial Predominance Generally

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

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

         The Black Caucus plaintiffs once again challenge the population deviation.

         They contend that splitting counties is evidence of racial gerrymandering because the provision of the Alabama Constitution that requires counties to be kept whole, Ala. Const. Art. IX, § 200, is the “most important” districting principle in Alabama, (Doc. 256 at 12, 15-16), and Alabama split more counties than it would have with a looser population deviation. The Black Caucus plaintiffs argue that “[w]hether a strict ± 1% rule is an ‘appropriate[]' apportionment . . . depends on how it interacts with race and traditional districting principles.” (Id. at 17). Because a ±5% deviation is the bare minimum to satisfy federal law, the Black Caucus plaintiffs believe that the decision to better realize one person, one vote is evidence of racial gerrymandering.

         This argument is frivolous. Five percent is the constitutional floor, not a ceiling. The Constitution does not protect a right to less equal districts, and more equal districts are not proof of racial gerrymandering. Our opinion on this issue, (Doc. 53 at 4-10), and the decision of the Supreme Court in this case, 135 S.Ct. at 1263, have repeatedly explained that under federal law, Alabama is entitled to use a ±1% population deviation. One person, one vote is merely “part of the redistricting background, taken as a given, when determining whether race, or other factors, predominate in a legislator's determination as to how equal population objectives will be met.” Id. at 1270.

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

         The Supreme Court found that Alabama pursued a policy of keeping the black population in each majority-black district at or above the percentage in that district in 2010, but it remanded for this Court to determine whether the legislature subordinated traditional districting criteria to race in individual districts. See Id. at 1267. The plaintiffs argue that the targets were applied statewide in such a way that race predominated in every challenged district. The Democratic Conference plaintiffs also argue that Hinaman and Senator Dial explicitly subordinated the goals of maintaining communities of interest, preserving county boundaries and precinct lines, and avoiding changes in the districts.

         Without further district-specific inquiry, these arguments fail to prove that race necessarily predominated in the design of any challenged district. As the plaintiffs' own mapmakers explained on remand, there are “places where you just literally cannot avoid” a certain black population percentage. (Doc. 297-1 at 30). That is, the legislature might have matched certain percentages of black population because they followed traditional districting criteria.

         The testimony of McClendon, Dial, and Hinaman establishes that the drafters did not necessarily prioritize racial targets over all other traditional districting criteria in every single district. None of the three gave any indication that “[r]ace was [a] criterion that . . . could not be compromised.” Shaw, 517 U.S. at 907. Representative McClendon testified that a “district is retrogressed if the minorities in that district, whether by race or language, are worse off after redistricting than they were before redistricting.” (Doc. 217 at 221). This statement does not mean that he prioritized maintaining the black population percentage over all other criteria. Senator Dial testified that “to keep from regressing [a] district and increasing [its] population, we had to increase it percentagewise on the same number of minority votes that we had.” (Doc. 215 at 36). But his goal was “bringing the African American populations of those districts up to approximately equal as best [we] could with what it had been in 2001.” (Id. at 37). Senator Dial did not testify that he subordinated other districting criteria to a racial target.

         Hinaman testified that he “look[ed] at [the] 2010 census as applied to 2001 lines, [and] whatever that number was, [he] tried to be as close to that as possible. And if [he] was significantly below that, [he] was concerned about that being retrogression that would be looked upon unfavorably by the Justice Department under Section 5.” (Doc. 217 at 145-46). Hinaman explained that “if you took a district that was somewhere in the 60 to 65 percent black majority district and you brought it down into the low 50s, [he thought] people would be concerned whether that population would then have the opportunity to elect a candidate of their choice.” (Doc. 134-3 at 102). But if “a district that was in the upper 70s [was taken] down to 70 percent black” he “would be less concerned.” (Id.) No one instructed Hinaman that such a reduction would “be a matter of concern.” (Id.) This testimony, together with that of Dial and McClendon, means that statewide evidence alone cannot answer the question of racial predominance.

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

         To be sure, Senator Dial believed that compliance with the Voting Rights Act was a higher priority than maintaining communities of interest and preserving county boundaries. (Doc. 215 at 28). But he did not directly draft any of the districts, and he did not testify that he used an impermissible racial target in any particular district. Moreover, Dial was correct that compliance with federal law must be a higher priority.

         In any event, we know that the policy of racial targets was often disregarded because most of the districts did not match the previous black population percentage. Only 13 of the 28 challenged House districts and 3 of the 8 challenged Senate districts maintained a black population percentage within 1 point of the percentage in 2010. In the House, 11 of the 28 districts were at least 4 points away from their prior percentages; in the Senate, 4 of 8 were at least 4 points away from their prior percentages. In the House, the 2012 plans varied by as much as -8.54% to .76% from the target; in the Senate, they varied by as much as -14.58% to .91%. Moreover, if the drafters tried to maintain a policy of not reducing the black population percentage in any of the challenged districts, they failed spectacularly: in a quarter of the districts, the black population percentage decreased between 4 and 15 points. The following tables illustrate the extent to which the state repeatedly, and often badly, missed its alleged targets:

         Change in Total Black Population Percentage in Challenged Senate Districts Under Enacted Plans

Senate District
2001 District Lines Using 2010 Census Data (%) (Doc. 263-2)
Plan as Passed (%) (Doc. 263-2)
Change in Percentage
18
59.92
59.10
-0.82
19
71.59
65.31
-6.28
20
77.82
63.15
-14.67
23
64.76
64.84
.08
24
62.78
63.22
.44
26
72.69
75.13
.44
28
50.98
59.83
.85
33
64.85
71.64
.79

         Change in Total Black Population Percentage in Challenged House Districts Under Enacted Plans

House District
2001 District Lines Using 2010 Census Data (%) (Doc. 30-37)
Plan as Passed (%) (Doc. 30-36)
Change in Percentage
19
69.82
61.25
-8.57
32
59.34
60.05
.71
52
60.11
60.13
.02
53
55.70
55.83
.13
54
56.73
56.83
.10
55
73.55
73.55
-
56
62.13
62.14
.01
57
68.42
68.47
.05
58
77.86
72.76
-5.10
59
67.03
76.72
.69
60
67.41
67.68
.27
67
69.14
69.15
.01
68
62.55
64.56
.01
69
64.16
64.21
.05
70
61.83
62.03
.20
71
64.28
66.90
.62
72
60.20
64.60
.40
76
69.54
73.79
.25
77
73.52
67.04
-6.48
78
74.26
69.99
-4.27
82
57.13
62.14
.01
83
56.92
57.52
.60
84
50.61
52.35
.74
85
47.94
50.08
.14
97
60.66
60.66
-
98
65.22
60.02
-5.20
99
73.35
65.61
-7.74
103
69.64
65.06
-4.58

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

         Even the earlier alternative plans have similar black population percentages in many of the majority-black districts. The following tables show the black population percentages using data from the 2010 Census under the 2001 district lines, under the enacted districts, and under the alternative plans.

         Total Black Population Percentages of Challenged Senate Districts Across Plans

Senate District
2010 Pop. Under 2001 Lines (Doc. 263-2)
Enacted Plan (Doc. 263-2)
Sanders Plan (Common Ex.47)
Reed-Buskey Plan (Common Ex. 48)
New Black Caucus Plan(APSX 27)
Black Caucus 1% Plan (APSX 470)
Democratic Conference Plan A Doc. 287-2)
18
59.92
59.10
58.49
61.32
59.80
55.96
59.5
19
71.59
65.31
65.30
62.89
66.55
64.94
62.1
20
77.82
63.15
62.82
65.10
63.68
63.32
62.2
23
64.76
64.84
57.75
61.23
54.19
53.80
58.9
24
62.78
63.22
56.90
60.43
60.42
57.31
59.3
26
72.69
75.13
71.28
68.44
56.91
57.59
60.7
28
50.98
59.83
51.55
60.38
50.24
50.98
51.7
33
64.85
71.64
71.83
65.83
62.83
62.28
58.3

         Total Black Population Percentages of Challenged House Districts Across Plans

House District
2010 Pop. Under 2001 Lines (Doc. 263-2)
Enacted Plan (Doc. 263-2)
McClammy Plan (Common Ex. 45)
Reed-Buskey Plan 4 (Common Ex. 42)
Knight Plan (Common Ex. 46)
New Black Caucus Plan (APSX 36)
Black Caucus 1% Plan (APSX 462)
Democratic Conference Plan A (Doc. 287-1)
19
69.82
61.25
67.07
67.01
75.39
58.27
55.12*
52.5
32
59.34
60.05
58.40
56.68
21.65
52.35
52.52
55.0
52
60.11
60.13
62.27
61.34
54.07
57.42
55.64
57.9
53
55.70
55.83
62.00
56.61
55.86
41.60
53.60**
52.9
54
56.73
56.83
31.46
31.40
58.72
61.06
60.64
60.6
55
73.55
73.55
62.92
66.66
64.03
59.44
57.85
55.6
56
62.13
62.14
61.06
58.16
54.02
61.13
63.04
58.9
57
68.42
68.47
62.27
61.89
60.27
66.10
72.51
66.1
58
77.86
72.76
66.20
76.98
61.09
62.60
64.07
63.7
59
67.03
76.72
66.62
64.85
61.27
60.01
58.55
62.8
60
67.41
67.68
62.26
65.38
59.55
56.90
53.49
56.0
67
69.14
69.15
69.21
68.63
69.43
69.43
67.28
67.3
68
62.55
64.56
53.87
55.19
25.43
53.30
53.10
57.2
69
64.16
64.21
57.56
56.92
57.62
50.61
54.54
58.9
70
61.83
62.03
61.18
61.66
57.21
57.21
57.52
61.9
71
64.28
66.90
60.42
59.43
54.45
63.82
59.54
59.8
72
60.20
64.60
60.37
55.37
56.25
62.65
60.88
54.0
76
69.54
73.79
75.62
64.36
24.45
63.79
63.99
59.3
77
73.52
67.04
67.34
62.31
59.38
65.61
65.43
63.5
78
74.26
69.99
73.03
74.21
58.70
66.92
66.76
77.5
82
57.13
62.14
61.14
57.22
53.63
66.46
60.57
57.9
83
56.92
57.52
61.87
55.99
13.30
38.58
37.79
55.0
84
50.61
52.35
51.40
52.00
26.29
55.17
54.32
52.3
85
47.94
50.08
47.96
53.94
54.21
49.21
49.03
48.3
97
60.66
60.66
63.00
63.59
57.19
57.19
55.91
56.2
98
65.22
60.02
60.22
61.57
63.75
60.45
60.40
60.4
99
73.35
65.61
62.92
63.55
57.98
58.50
58.24
58.2
103
69.64
65.06
62.08
63.03
17.92
63.16
62.61
62.3

         (* = Statistic for House District 6) (** = Statistic for House District 19)

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

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

         Black Population Percentages in Alabama Counties in 2010 Census

(Image Omitted)

(U.S. Census Bureau, American FactFinder, http://factfinder.census.gov/faces/nav/jsf/ pages/communityfacts.xhtml).

         Within those counties, many cities and neighborhoods are racially concentrated. For instance, Birmingham, with a population of 212, 237, is 73.4 percent black, (id.), and small towns to the west of Birmingham have high concentrations of black population. Bessemer, southwest of Birmingham, is 71.2 percent black. (Id.) Fairfield, west of Birmingham, is 94.6 percent black. (Id.) Midfield, west of Birmingham, is 81 percent black. (Id.) Brighton, southwest of Birmingham, is 81 percent black. (Id.) In contrast, small towns and neighborhoods to the south and southeast of Birmingham are predominantly white. Mountain Brook, southeast of Birmingham, is 97.2 percent white. (Id.) Homewood, south of Birmingham, is 74.6 percent white. (Id.) Vestavia Hills, south of Birmingham, is 90.4 percent white. (Id.) And Hoover, south of Birmingham, is 75.1 percent white. (Id.). For these reasons, that a black population percentage is similar to the old map does not prove by itself that race predominated in every challenged district. The plaintiffs must prove district-by-district that race predominated, including with evidence about targets where appropriate.

         We also reject the related argument advanced by the plaintiffs that Alabama should bear the burden of proving that race did not predominate in each district because of the plaintiffs' evidence about a statewide policy of racial targets. This argument is another attempt by the plaintiffs to make out a statewide claim of racial gerrymandering. As the Supreme Court explained, a “racial gerrymandering claim . . . applies to the boundaries of individual districts. It applies district-by-district. It does not apply to a State considered as an undifferentiated ‘whole.'” Ala. Legislative Black Caucus, 135 S.Ct. at 1265 (citation omitted). A “plaintiff must show that ‘race was the predominant factor motivating the legislature's decision to place a significant number of voters within or without a particular district.'” Id. (quoting Miller, 515 U.S. at 916). The plaintiffs “can present statewide evidence in order to prove racial gerrymandering in a particular district, ” id., but this evidence does not transform the inquiry. The plaintiffs still must prove, in each district, that race predominated over traditional districting factors.

         c. The Dissent Misstates the Test for Racial Predominance.

         Our dissenting colleague misapplies Supreme Court precedent and, like the plaintiffs, uses a rebuttable presumption of racial predominance. The key to the dissent's test is whether the legislature hit the alleged racial target in a particular district. (Dissent at 60-61, 89, 91). If the alleged target was met, our colleague infers that race predominated. (Id. at 78, 85). This inference makes the dissent's task easy. (Id. at 131). Once the inference is applied, our colleague asks whether any district-specific drafting choices corroborate the inference that race predominated and, if so, presumes that it did. (Id. at 62-63, 91-92). Only then--after inferring that race predominates and confirming that inference with circumstantial evidence--does our colleague engage in the inquiry required by the Supreme Court: whether race-neutral factors predominated over racial considerations in the “overall design of the district.” (Id. at 91-92). But, tellingly, our colleague comes to this required inquiry with his mind made up, because “evidence that the drafters hit, within one percentage point, their admitted target of maintaining existing racial percentages paints a clear picture that the racial percentage in each district was specifically intended.” (Id. at 93 (emphasis added)). This test manifests two errors--it effectively flips the burden of proof, and it excludes evidence that we must consider.

         By starting with this inference of racial predominance, the dissent gets the test exactly backwards. The plaintiffs have the burden of proving racial predominance, and they “must prove that the legislature subordinated traditional race-neutral districting principles . . . to racial considerations.” Ala. Legislative Black Caucus, 135 S.Ct. at 1265 (alteration in original) (emphasis omitted) (quoting Miller, 515 U.S. at 916). To be sure, the Supreme Court explained “[t]hat Alabama expressly adopted and applied a policy of prioritizing mechanical racial targets above all other districting criteria (save one-person, one-vote), ” but that Alabama did so only “provides evidence that race motivated the drawing of particular lines in multiple districts in the State.” Id. at 1267 (emphasis added). That is, we weigh Alabama's policy in our analysis, but our consideration of this significant evidence does not end our inquiry as it effectively does the inquiry of our colleague. (See Dissent at 107 (stating that the achievement of an alleged racial quota “creates a strong inference of intent”)). Instead, we follow the approach of the Supreme Court and ask whether the plaintiffs have introduced additional evidence “that this goal had a direct and significant impact on the drawing of at least some of” the boundaries of a district, or whether “‘traditional' factors” offer a better explanation. Ala. Legislative Black Caucus, 135 S.Ct. at 1271.

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

         In addition, the district court decisions that the dissent relies on do not support its view of racial predominance. (Dissent at 68-69). In Bethune-Hill, the majority opinion rejected a test for racial predominance that is similar to the dissent's inflexible test. 141 F.Supp.3d at 528 (rejecting the test of the dissent that “views the 55% [black voting age population] floor as a ‘filter through which all line-drawing decisions had to pass'” (citation omitted)). In Covington v. North Carolina, 316 F.R.D. 117 (M.D. N.C. 2016), the district court emphasized that a “racial gerrymandering claim ‘applie[d] district-by-district, ' and not to the state ‘as an undifferentiated whole.'” Id. at 140 (quoting Alabama Legislative Black Caucus, 135 S.Ct. at 1265)). The analysis of the district court therefore weighed “district-specific evidence” together with statewide evidence of racial predominance. Id. And in Harris v. McCrory, 159 F.Supp.3d 600 (M.D. N.C. 2016), the district court found that statewide evidence of a racial quota proved that race predominated because the drafter of the redistricting plan at issue expressly testified that he subordinated race to traditional districting criteria. Id. at 612. Such direct evidence is absent from the record before us.

         By inferring that the drafters acted in bad faith if they hit their alleged target, contra Miller, 515 U.S. at 915 (“[T]he good faith of a state legislature must be presumed.”), our dissenting colleague ignores evidence that the legislature did not subordinate race-neutral districting criteria to racial considerations. For example, our dissenting colleague would have us disregard the alternative plans produced by the plaintiffs. (Dissent at 71-77). Our consideration of the alternative plans, according to our dissenting colleague, is an attempt to hunt down after-the-fact justifications for the drafting decisions of the defendants, (id. at 72), but we disagree. We consider the alternative plans because the plaintiffs urged us to consider them over the strong objection of the defendants, (Doc. 284 at 9-10, 12-13, 35-38), and the plaintiffs bear the burden of proving racial predominance. Ala. Legislative Black Caucus, 135 S.Ct. at 1265.

         Our colleague would also have us cast every race-neutral drafting choice in a district that hit its alleged target as evidence that race predominated. (Dissent at 78). Once again, this assertion is the result of presuming the unconstitutionality of the majority-minority districts in which the drafters hit their alleged target. The Supreme Court, by contrast, commands us to weigh evidence that the drafters met a racial target against other factors. Ala. Legislative Black Caucus, 135 S.Ct. at 1271.

         Finally, the dissent argues that we take a “categorical[]” approach to racial predominance because we refuse to rule that race predominated when the evidence establishes that race-neutral factors offer the best explanation for the composition of a district. (Dissent at 54, 57-58). Our colleague asserts that we “insist[] that race predominates only when a district contains direct evidence of race-based decisionmaking or explanations based on traditional districting criteria are impossible.” (Id. at 58). Not true. We, unlike our dissenting colleague, hold the plaintiffs to their burden of proof. Although the dissent's inquiry effectively begins and ends with evidence that the drafters met their racial target, we weigh all the evidence the parties presented. And if race-neutral districting factors offer a better explanation for the drafting of a district, we find that race did not predominate. Our approach comports with the longstanding recognition by the Supreme Court of “the sensitive nature of redistricting and the presumption of good faith that must be accorded legislative enactments.” Miller, 515 U.S. at 916. Specifically, we exercise the “extraordinary caution in adjudicating claims that a State has drawn district lines on the basis of race” commanded by the Supreme Court. Id.

         We follow the instruction of the Supreme Court to consider the evidence presented by the parties on remand. As part of the totality of that evidence, we consider the black population percentage in the challenged districts. And although our dissenting colleague would have us consider this evidence to the exclusion or diminution of other evidence produced by the parties, we cannot do so. Were it as simple as seeing whether Alabama hit its alleged target, there would have been no need for remand in this case.

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

         We agree with Alabama that the plaintiffs must prove that individual precincts, which are a community of interest in Alabama, were split on the basis of race and not some other traditional districting criterion. We also agree, with respect to most of the splits, that the plaintiffs have failed to do so. Because these arguments are made about many districts, we address them now.

         That the legislature split a precinct does not necessarily prove that race predominated. The plaintiffs present no direct evidence that any precinct was split because of racial considerations. In fact, the Democratic Conference plaintiffs admitted on remand that the presence of split precincts in the majority-black districts is not probative, (Doc. 258 at 28-29), because many precincts were split between majority-white districts as well. When they tried to draw an alternative plan, the Black Caucus plaintiffs conceded that not all precinct splits are suspicious. (See, e.g., Doc. 301 at 11). And Hinaman testified that communities of interest may cross the lines of political subdivisions. (Doc. 217 at 210).

         Further, we cannot infer that race predominated in a district simply because the legislature put a higher percentage of black population into one district or the other. (See Doc. 256 at 31; Doc. 258 at 26). Many of the differences are negligible. (See, e.g., Def. Ex. 405 (Second Mount Zion Ch precinct, placing population that was 72.9 percent black into majority-black House District 68 and population that was 71.4 percent black into majority-white House District 90)). Several of the precinct splits placed a higher black population percentage in a majority-white district than a majority-black district. (See, e.g., Def. Ex. 405 (Westlawn Mid. Sch precinct, placing population that was 18.6 percent black in majority-black House District 53 and population that was 24.5 percent black in majority-white House District 6)). And several of the precincts give so little population to a district that the split can hardly be called evidence of anything. Moreover, in many of the splits where the majority of the population is black on one side and white on the other side, the drafters could have chosen to distribute census blocks on more racially polarized lines but did not do so. (See, e.g., APSX 55 (placing majority-white census blocks along the border into House District 72)).

         Racial disparities in the precinct splits may also be the result of geography. For example, if a majority-white district abuts a majority-black district, a precinct that connects the two may naturally have more white population on one side and more black population on the other. A sensible line between the two districts would unavoidably have disparate racial percentages. Only a racial gerrymander could do otherwise. As Fairfax testified, racial disparities in precinct splits can be “just natural, unfortunately, population patterns, demographical population patterns.” (Doc. 296-7 143-44).

         For these reasons, the plaintiffs have failed to prove that race predominated because the legislature split precincts. We also observe that Alabama submitted an exhibit in which it redrew each district with only whole precincts and, where possible, a population within the ±1% deviation. Of the 33 hypothetical districts that could comply with the ±1% deviation, 18 had a black population percentage within two points of the corresponding enacted district. In fact, some of the hypothetical districts came closer to the percentage for the 2010 Census population under the 2001 lines than the enacted district did. The following tables compare the figures for the hypothetical and enacted districts:

         Black Population Percentages in Hypothetical Senate Districts with No Split Precincts

Senate District
Black Population Percentage in Hypothetical District
Black Population Percentage in Enacted District
Difference in Black Population Percentage
18
59.4
59.1
.3
19
64.8
65.3
-0.5
20
61.9
63.1
-1.2
23
63.6
64.8
-1.2
24
62.4
63.2
-0.8
26
73.1
75.1
-2.0
28
54.8
59.8
-5.0
33
70.8
71.6
-0.8

         Black Population Percentages in Hypothetical House Districts with No Split Precincts

House District
Black Population Percentage in Hypothetical District
Black Population Percentage in Enacted District
Difference in Black Population Percentage
19
59.9
61.2
-1.3
32
53.4
60.0
-6.6
52
64.5
60.1
.4
53
55.9
55.8
.1
54
62.4
56.8
.6
55*
73.5
73.6
-0.1
56
61.3
62.1
-0.8
57
66.6
68.5
-1.9
58
71.3
72.8
-1.5
59
77.6
76.7
.9
60
72.5
67.7
.8
67*
68.9
69.1
-0.2
68
57.9
64.6
-6.7
69
66.7
64.2
.5
70
63.1
62.0
1.1
71
67.5
66.9
.6
72
62.6
64.6
-2.1
76*
79.0
73.8
.2
77
67.9
67.0
.9
78
69.0
69.9
-0.9
82*
63.9
62.1
1.8
83
49.8
57.5
-7.7
84
52.3
52.3
0.0
85
35.8
50.1
-14.3
97
64.8
60.7
.1
98
64.9
60.0
.9
99
69.0
65.6
.4
103
68.3
65.1
.2

         (For districts marked with an asterisk, there was no combination of precincts that complied with the ±1% deviation.) (Def. Ex. 3, Doc. 263-3).

         Although the plaintiffs do not object to the method used in this exercise, we make no findings about individual districts based solely on this exercise because the state redrew each district individually and some precincts are included in more than one district. (See Doc. 263-3 (House Districts 70 and 71)). We also observe that four districts do not comply with the population deviation, and unsplitting some of precincts could cause incumbent conflicts.

         E. Strict Scrutiny Generally

         The parties do not dispute that, for each district where racial considerations predominated over traditional districting criteria, Alabama must establish that the district was narrowly tailored to achieve a compelling governmental interest. See Vera, 517 U.S. at 976. Here, the only asserted interest is complying with the Voting Rights Act. Alabama must have a “strong basis in evidence” that its race-based choice was necessary to achieve that compelling interest. Ala. Legislative Black Caucus, 135 S.Ct. at 1274.

         As an initial matter, Alabama had a compelling governmental interest in complying with sections 2 and 5 of the Voting Rights Act. We previously ruled that it did, (Doc. 203 at 160), and the Supreme Court has not held otherwise. No party disputes that, at the time of redistricting, section 5 required Alabama at least to maintain the overall number of majority-black districts. Nor does any party dispute that section 5 required Alabama to avoid a “discriminatory purpose” in redistricting. 52 U.S.C. § 10304. The plaintiffs initially argued that the requirements of section 5 are irrelevant to the constitutionality of the 2012 redistricting because the Supreme Court held the preclearance formula in section 4 unconstitutional in 2013, see Shelby County, 133 S.Ct. 2612, but the plaintiffs have since abandoned this argument and the Supreme Court rejected it as applied to a different state in Harris v. Ariz. Indep. Redistricting Comm'n, No. 14-232, slip op. at 10-11 (U.S. Apr. 20, 2016). Although the Democratic Conference plaintiffs argue that the Legislature did not understand the requirements of section 5, that argument relates to narrow tailoring.

         Under section 5, the legislature must “preserve existing minority percentages” to the extent necessary “to maintain the minority's present ability to elect the candidate of its choice.” Ala. Legislative Black Caucus, 135 S.Ct. at 1274. The legislature need not “guess precisely what percentage reduction a court or the Justice Department might eventually find to be retrogressive, ” id. at 1273, but it must have a “strong basis in evidence” for its use of race, id. at 1274. “[L]egislators ‘may have a strong basis in evidence to use racial classifications in order to comply with a statute when they have good reasons to believe such use is required, even if a court does not find that the actions were necessary for statutory compliance.'” Id. (quoting Brief of United States as Amicus Curiae 29).

         Section 2 of the Voting Rights Act overlaps in some ways with section 5. Under section 2, Alabama must avoid diluting the voting strength of a racial minority where that “racial group is sufficiently large and geographically compact to constitute a majority in a single-member district, ” “the group is politically cohesive, ” and the white population “votes sufficiently as a bloc to enable it . . . usually to defeat the minority's preferred candidate, ” Bossier Parish, 520 U.S. at 479 (quoting Gingles, 478 U.S. at 50-51). If these factors, known as the Gingles factors, are present in a district, a court looks to whether “the totality of the circumstances supports a finding that the voting scheme is dilutive.” Id. at 480.

         Alabama makes three arguments about why the districts are narrowly tailored to comply with section 5, but none of them prove that every challenged district survives strict scrutiny. First, Alabama argues that the districts with a total black population percentage of 62 to 65 percent are narrowly tailored because that was the percentage that two black legislators told the Committee was necessary to maintain black voters' ability to elect their preferred candidates. At the public hearing in Thomasville, Representative Thomas Jackson-a member of the Black Caucus- explained that majority-black districts in his area should be “sixty-two percent or sixty-five percent.” (Doc. 30-23 at 8). At the public hearing in Selma, Senator Sanders-also a member of the Black Caucus-told Senator Dial that none of the majority-black districts should be less than 62 percent black. (Doc. 30-28 at 6). Senator Sanders explained why he thought this minimum was necessary:

Sometimes a lot of people don't vote. Sometimes a lot of people can't vote. They might be in prisons or other kinds of institutions. Sometimes a lot of folks are discouraged for one reason or another. So I would hope that 62 percent is a minimal [percentage] for the majority African-American district[s].

(Id.). Senator Dial testified that, if he had told the black leadership in the Senate that it could have no more than 55 percent black population, and that this lower number was better for their communities, “Senator Sanders and my other good friends in the Senate . . . would simply have glazed over and asked me when I was going to the mental institute.” (Doc. 215 at 44-45).

         The Democratic Conference plaintiffs are correct that the use of the 65 percent threshold was not narrowly tailored for every district. The drafters relied on the statements of black legislators in rural districts in the western Black Belt. Because they had no evidence about other districts, especially urban areas or districts outside of the western Black Belt, Alabama cannot use 65 percent across the entire state without any further inquiry.

         Second, Alabama argues that caselaw from the Supreme Court and multiple circuits establishes that 65 percent is a reasonable threshold for minority voting percentages. In United Jewish Organizations of Williamsburgh, Inc. v. Carey, 430 U.S. 144 (1977), the Supreme Court explained that “it was reasonable for the Attorney General to conclude in this case that a substantial nonwhite population majority in the vicinity of 65% would be required to achieve a nonwhite majority of eligible voters.” Id. at 164. The Seventh Circuit has explained that “a guideline of 65% of total population (or its equivalent) has achieved general acceptance in redistricting jurisprudence.” Ketchum v. Byrne, 740 F.2d 1398, 1415 (7th Cir. 1984); see also Latino Political Action Comm., Inc. v. City of Boston, 784 F.2d 409, 414 (1st Cir. 1986) (“Where voting is highly polarized, a 65 percent figure is a generally accepted threshold which has been used by the Department of Justice and reapportionment experts.”). The Eighth Circuit also has concluded that “either 60% of the voting age population or 65% of the total population is reasonably sufficient to provide black voters with an effective majority.” African Am. Voting Rights Legal Def. Fund, Inc. v. Villa, 54 F.3d 1345, 1348 n.4 (8th Cir. 1995).

         But as the Democratic Conference plaintiffs argue, this rule of thumb must yield to specific evidence. Alabama asserted in its 2001 submissions to the Department of Justice for preclearance that 55 percent black voting-age population was sufficient to avoid retrogression, and Alabama submitted a study by Professor Richard L. Engstrom that concluded “a black voting age population of about 55% provides African-Americans with a reasonable opportunity to elect the representative of their choice.” (ADC Supp. Ex. 1 at 7; accord ADC Supp. Ex. 2 at 9). None of the cases that Alabama cites in its brief were decided about Alabama after this submission, so none can provide a strong basis in evidence for the legislature to use a higher percentage in 2012.

         Third, Alabama argues that the enacted plans are the only plans in the record that satisfy section 2, section 5, and the Committee guidelines with regard to every majority-black district. We put no weight on the argument of Alabama that its plans satisfy strict scrutiny because the plaintiffs have not offered any alternative plans that comply with the Committee guidelines. Alabama has the burden to prove that its plans are narrowly tailored. See Miller, 515 U.S. at 920. To be sure, the absence of a better alternative is evidence that Alabama narrowly tailored its plan. But the lack of a workable alternative is not dispositive. In some instances, we do not need to see an alternative plan to conclude that a district fails strict scrutiny.

         Our dissenting colleague distorts the evidentiary burden of Alabama to prove narrow tailoring. Although our colleague uses the terms “narrow tailoring” and “strong basis in evidence, ” he looks to affirmative action caselaw--not caselaw about claims of racial gerrymandering--to define those terms. (Dissent at 9-10, 12-13, 30, 33, 37, 51). Because this error transforms the burden of Alabama from one of proving “good reasons” into a burden of proving actual necessity, Alabama Legislative Black Caucus, 135 S.Ct. at 1274 (citation omitted), we respectfully disagree.

         In the context of a racial gerrymandering claim, the Supreme Court has long held that the requirement of narrow tailoring gives states “leeway, ” although to a “limited degree, ” to comply with the Voting Rights Act. Bush v. Vera, 517 U.S. 952, 977 (1996). This flexible approach to narrow tailoring is unique to the racial gerrymandering context because the Supreme Court “adhere[s] to [a] longstanding recognition of the importance in our federal system of each State's sovereign interest in implementing its redistricting plan.” Id. at 978. Against this interest weighs compliance with the Voting Rights Act. To balance these interests, and to avoid placing “state actors . . . [in a] trap[] between . . . competing hazards of liability' by the imposition of unattainable requirements under the rubric of strict scrutiny, ” the Court instructs that we take a “flexib[le]” approach to narrow tailoring. Id. at 977-78 (quoting Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 291 (1986) (O'Connor, J. concurring in part and concurring in the judgment)).

         The Supreme Court emphasized on remand that we were to adhere to this longstanding standard of narrow tailoring:

[W]e do not insist that a legislature guess precisely what percentage reduction a court or the Justice Department might eventually find to be retrogressive. The law cannot insist that a state legislature, when redistricting, determine precisely what percent minority population § 5 demands. The standards of § 5 are complex; they often require evaluation of controverted claims about voting behavior; the evidence may be unclear; and, with respect to any particular district, judges may disagree about the proper outcome. The law cannot lay a trap for an unwary legislature, condemning its redistricting plan as either (1) unconstitutional racial gerrymandering should the legislature place a few too many minority voters in a district or (2) retrogressive under § 5 should the legislature place a few too few.

Alabama Legislative Black Caucus, 135 S.Ct. at 1273-74 (citations omitted). The distinctions that the Court drew in this passage make clear that narrow tailoring does not require an exact connection between the means and ends of redistricting. Instead, as we have explained, narrow tailoring requires that the legislature had a “strong basis in evidence, ” which in turn means that the legislators had “good reasons” to draft a district in which race predominated over traditional districting criteria. Id. at 1274.

         Our dissenting colleague argues that this standard is the same standard that the Supreme Court “applie[s] . . . [in the] racial-preference context[].” (Dissent at 11). To support this argument, our colleague latches onto a citation in Alabama Legislative Black Caucus to an amicus brief of the United States that in turn cited Ricci v. DeStefano, 557 U.S. 557 (2009), and several citations in other racial-gerrymandering decisions. (Dissent at 11, 14). But this argument misconstrues the decisions of the Supreme Court.

         The Supreme Court prescribes different approaches to narrow tailoring depending upon the context. In the context of affirmative action, the Court asks whether the “race-based action is necessary to further a compelling governmental interest.” Grutter v. Bollinger, 539 U.S. 306, 327 (2003) (emphasis added); see also Ricci, 557 U.S. at 582 (explaining that race-based remedies for past discrimination “are constitutional only where there is a ‘strong basis in evidence' that the remedial actions were necessary” (emphasis added) (quoting Richmond v. J.A. Croson Co., 488 U.S. 469, 500 (1989))). In the context of voting rights, by contrast, narrow tailoring “does not demand that a State's actions actually be necessary to achieve a compelling state interest in order to be constitutionally valid.” Ala. Legislative Black Caucus, 135 S.Ct. at 1274 (emphasis added). In other words, the standard of proof is different in the voting rights context. And this difference makes sense because a state must navigate the Scylla and Charybdis of compliance with the Voting Rights Act, on one hand, and the demands of the Equal Protection Clause, on the other. See Id. at 1273-74 (“The law cannot lay a trap for an unwary legislature . . . .”).

         Finally, contrary to the dissent, (Dissent at 37-38, 46-47), the Supreme Court has never required particular studies. Cf. Shaw v. Hunt, 517 U.S. 899, 915 (1996) (“[W]e have not always provided precise guidance on how closely the means (the racial classification) must serve the end (the justification or compelling interest).”). All the Court “insist[s]” upon is “a ‘strong basis in evidence.'” Ala. Legislative Black Caucus, 135 S.Ct. at 1274 (quoting Brief for United States as Amicus Curiae 29). We evaluate the proposed districts in which race predominated based on this standard.

         F. District-By-District Analysis of the Challenged Plan

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

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

         We find that race did not predominate over traditional districting criteria in the design of Senate Districts 18 and 19, but we find that race predominated in the design of District 20. All three districts were severely underpopulated in 2010-by 17.64, 20.06, and 21.37 percentage points, respectively. (Doc. 1 at 10). Senator Smitherman, a black Democrat who represents District 18, provided the drafters with a one-page map that Hinaman “endeavored to duplicate.” (Doc. 203 at 31-32; Doc. 217 at 121).

         The drafters maintained the core of each district, echoing their stated policy of minimizing change, (Doc. 134-4 at 25-26), and each district has grown to expand in population:

(Image Omitted)

(Ala. Reapportionment Office, Alabama Legislative Policymaker's Dashboard, http:// policymaker.alabama.gov/Districts.aspx.)

         The total black population percentages decreased in each of these districts, undermining the plaintiffs' claim that race predominated over traditional districting factors because of a policy of racial targets. In Districts 19 and 20, the black population percentage dropped significantly. The following table shows the change for each district:

         Total Black Population Percentage in 2010 Census

Senate District
2001 District Lines (Doc. 30-41)
Plan as Passed (Doc. 30-39)
Change in Percentage
18
59.92
59.10
-0.82
19
71.59
65.31
-6.28
20
77.82
63.15
-14.67

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

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

(Image Omitted)

(Doc. 287-20 at 1). Plan A District 18 trades the northern and southern additions of the enacted district for a western addition, and Plan A District 19 pushes west to rural Jefferson County and the county line. Plan A District 20 reaches into territory that Act 603 gave to District 18, as well as farther north. The Democratic Conference plaintiffs did not draw significantly more compact or regular districts, and they did not explain why their choices were required by traditional districting criteria. They provided us with quantitative measurements of the compactness of their alternative districts, but they did not provide measurements for each enacted district, so we cannot make any findings based on the measurements they have provided. That said, the Democratic Conference plaintiffs split fewer precincts in these districts. Plan A provides little evidence overall that race predominated in the design of Districts 18, 19, or 20.

         The Black Caucus plaintiffs drew a different configuration of the three districts. They shifted District 18 westward in an odd hook that follows precinct lines, moved District 19 slightly northward, and kept District 20 largely in the same place but with different irregular lines that follow precinct boundaries. The following maps superimpose the Black Caucus 1% Plan (shaded colors and numbers in black boxes) on the enacted plan (purple lines and numbers in purple circles), with 2012 incumbent locations marked by a blue star:

(Image Omitted)

(APSX 536). As with Democratic Conference Plan A, the shape and compactness of these districts do not establish that race predominated in the design of Act 603. The plaintiffs fail to explain why their choices were required by traditional districting criteria other than precinct splits, which we discuss later. We cannot say that this plan tends to establish that race predominated.

         The plaintiffs argue that, although there “were not enough black residents to maintain the existing super-majorities, ” the drafters came as “close[]” as they could to hitting their “targets.” (Doc. 258 at 43; see also Doc. 256 at 145). This argument fails because the plaintiffs present no evidence to support their assertion. The shapes of the districts are not so bizarre as to give rise to an inference of gerrymandering, nor are they noticeably more bizarre than the alternative plans or the 2001 plan. And the total black population percentages in the final alternative plans are not so different from the enacted plan that we can infer that race predominated. In the Black Caucus 1% Plan, the black population was 3.14 percentage points lower in District 18, a mere 0.37 points lower in District 19, and 0.17 points higher in District 20. (Doc. 296-1 at 4). In Democratic Conference Plan A, District 18 was 0.4 points higher, District 19 was 3.2 points lower, and District 20 was 0.9 points lower. (Id.). In fact, the black population percentages in these districts are similar across every alternative plan, even the ones that ignore the Committee guidelines:

         2010 Census Total Black Population Percentages Under Various Plans

Senate District
2001 District Lines (Doc. 30- 41)
Plan as Passed (Doc. 30-39)
Sanders Plan (Common Ex. 47)
Reed-Buskey Plan (Common Ex. 48)
New Black Caucus Plan (APSX 27A)
Black Caucus 1% Plan (APSX 470)
Democratic Conference Plan A (Doc. 287-2)
18
59.92
59.10
58.49
61.32
59.80
55.96
59.5
19
71.59
65.31
65.30
62.89
66.55
64.94
62.1
20
77.82
63.15
62.82
65.10
63.68
63.32
62.2

         On this record, we find that the black population percentages in the enacted plan were the result of demographics and race-neutral choices, not the unsuccessful pursuit of numerical targets.

         The plaintiffs also argued initially on remand that the “hook” in the northwestern part of District 20 is proof that race predominated, but their own evidence suggests otherwise. Both plaintiffs' maps establish that the “hook” takes in majority-white population as well as majority-black population. (ADC Supp. Ex. 36H; APSX 319). And both Plan A and the 1% Plan put substantial portions of the hook in District 20. (APSX 533B; Doc. 287-20 at 1).

         The absence of county splits in the enacted districts has prompted odd and contradictory arguments that do not persuade us that race predominated. The Black Caucus plaintiffs argue on remand that the drafters were forced to split county boundaries in the adjoining majority-white districts so that the majority-black districts could meet their “targets.” (Doc. 256 at 146). But Senator Dial testified that it was also the avoidance of incumbent conflicts that required the splitting of counties in the majority-white districts. (Doc. 125-3 at 14). And the plaintiffs' argument is at odds with Supreme Court precedent. The Supreme Court has made clear that a plaintiff has standing to challenge only his own district as a racial gerrymander. See United States v. Hays, 515 U.S. 737, 745 (1995) (“Even assuming (without deciding) that [the Act] causes injury sufficient to invoke strict scrutiny[, ] . . . appellees have pointed to no evidence tending to show that they have suffered that injury.”); see also Sinkfield v. Kelley, 531 U.S. 28 (2000). Whether the challenged districts are viable does not depend on the borders of other districts.

         The Democratic Conference plaintiffs suggest that the drafters should have crossed county lines with the majority-black districts in Birmingham. They contended initially on remand that “there is no explanation for the decision that the black-majority districts alone had to be confined to [Jefferson] County and could not be extended into adjacent counties.” (Doc. 258 at 42 n.20). They evidently changed their minds when they drew Plan A because they kept the majority-black Senate districts in Jefferson County entirely within county lines. The plaintiffs cannot have it both ways: splitting county lines and not splitting county lines cannot both be evidence of racial predominance, at least without more explanation than they provide.

         Finally, the plaintiffs point to the number and characteristics of the precinct splits. Both plaintiffs split fewer precincts than the state did, (Doc. 300-1 at 84-90). In Districts 18 and 19, these splits do not provide any evidence that race predominated. In District 20, they do. We discuss each district in turn.

         In District 18, the drafters split six precincts, five of which are not suspicious. In Birmingham Botanical Gardens precinct, the drafters split the precinct along a smooth line and an area of zero-population blocks.

         Birmingham Botanical Gardens Precinct in Act 603

(Image Omitted)

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

         Mountain Brook City Hall Precinct in Act 603

(Image Omitted)

(APSX 324). The split put 927 people in District 18, 6 percent of whom were black, and 3, 975 people in District 15, 0.2 percent of whom were black. (Def. Ex. 475). In three other precincts-Muscoda Community Center precinct, (APSX 326), Pleasant Hill United Methodist Church precinct, (APSX 328), and Robinson Elementary School precinct, (APSX 329)- the drafters split the precinct with another majority-black block, and the plaintiffs fail to explain the significance of these splits.

         The sixth split, of Homewood Public Library precinct, is insufficient to prove that race predominated. The legislature put 963 people in District 18, 41 percent of whom were black, and 6, 327 people in District 18, 3 percent of whom were black. (Def. Ex. 475).

         Homewood Public Library Precinct in Act 603

(Image Omitted)

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

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

         Valley Creek Baptist Church Precinct in Act 603

(Image Omitted)

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

         Johns Community Center Precinct in Act 603

(Image Omitted)

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

         Hillview Fire Station #1 Precinct in Act 603

(Image Omitted)

(APSX 320). And in Pleasant Hill United Methodist Church precinct, (APSX 328), and Muscoda Community Center precinct, (APSX 326), the drafters split the precinct between two majority-black districts with no racial pattern.

         The final split, of Maurice L West Community Center precinct, does not prove that race predominated in the placement of a significant number of people. The drafters used a suspicious line to put 1, 579 people in District 19, 31 percent of whom were black, and 581 people in District 17, 5 percent of whom were black. (Def. Ex. 475).

         Maurice L West Community Center Precinct

(Image Omitted)

(APSX 323). But the black people placed in District 19 from this split amount to less than half of a percent of the population of the district. If we include the entire precinct, which would keep the precinct within the ±1 percent population deviation, the black population percentage decreases negligibly from 65.39 percent to 65.05 percent, still missing the alleged target of 71.65 percent by over six points. If we remove the entire precinct, which would underpopulate the district, the black population percentage increases negligibly to 65.72 percent, still about six points under the supposed target. We find that race did not predominate in the design of District 19.

         In District 20, we find that one precinct split is not suspicious. The drafters split Robinson Elementary School between two majority-black districts, (APSX 329), and the plaintiffs fail to explain how this split proves that race predominated.

         But on the basis of the other six precinct splits in District 20, we find that race predominated. In Trussville Baptist Church precinct, the drafters used a suspicious line to put 796 people in District 20, 44 percent of whom were black, and 9, 300 people in majority-white District 17, 4 percent of whom were black.

         Trussville First Baptist Church Precinct in Act 603

(Image Omitted)

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

         Mountain View Baptist Church Precinct in Act 603

(Image Omitted)

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

         Gardendale Civic Center Precinct in Act 603

(Image Omitted)

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

         Pinson United Methodist Church Precinct in Act 603

(Image Omitted)

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

         Fultondale First Baptist Church Precinct in Act 603

(Image Omitted)

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

         Hillview Fire Station #1 Precinct in Act 603

(Image Omitted)

(APSX 320). On the basis of these precinct splits, we find that race predominated in the design of District 20.

         We further conclude that District 20 does not survive strict scrutiny. Alabama makes no district-specific arguments about why this district was narrowly tailored to achieve its interest in complying with the Voting Rights Act. It makes a statewide argument based on the comments of Senator Sanders and Representative Jackson, but these statements do not provide a strong basis in evidence in District 20. Sanders and Jackson would be familiar with their own districts in the west Black Belt, but Senate District 20 is in Jefferson County. District 20 is also more urban than Sanders's and Jackson's districts-51 percent of the district lives in Birmingham. (Def. Supp. Ex. 6). Because the state has not provided a strong basis in evidence for its use of race, we must enjoin the use of Senate District 20 in future elections.

         b. Senate District 23 (West Black Belt)

         Although we view it to be a close question, we find that race predominated over traditional districting criteria in the design of Senate District 23. We base this finding primarily on the increased number of counties in the district and the way in which irregular lines include areas with high percentages of black population, especially through the use of precinct splits.

         The district lines are not so irregular on their face that we find that race predominated. District 23 was severely underpopulated before redistricting, and it bordered the severely underpopulated District 24 and the residence of the incumbent of District 22. As compared with the 2001 lines, the borders of Senate District 23 are cleaner along the northern and eastern sides, and slightly more irregular to the southwest:

(Image Omitted)

(Ala. Reapportionment Office, Alabama Policymaker's Dashboard, supra).

         The Democratic Conference plaintiffs did not draw a significantly more regular or compact district. The following map shades areas only in Plan A in yellow, areas only in Act 603 in red, and areas of overlap in orange:

         Senate District 23 in Conference Plan A and Act 603

(Image Omitted)

(Doc. 287-24 at 1).

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

         Senate District 23 in the Black Caucus 1% Plan and Act 603

(Image Omitted)

(APSX 537).

         The plaintiffs have more success with their evidence about counties. The 2001 plan included all or part of nine counties, two of them whole (Dallas and Wilcox) and seven of them split (Autauga, Clarke, Conecuh, Lowndes, Marengo, Monroe, and Perry). (Doc. 30-44 at 11). Act 603 increased the total number of counties to ten, five of them whole (Butler, Dallas, Lowndes, Perry, and Wilcox) and five of them split (Clarke, Conecuh, Marengo, Monroe, and Washington). (Doc. 30-40 at 8). Both plaintiffs drew a district with no more than eight counties overall and no more than two split counties, raising the possibility that race trumped the Committee guideline about counties in District 23. The Democratic Conference plaintiffs drew a district with eight counties overall and one split by filling out Conecuh and Monroe; removing Clarke, Marengo, and Washington; and adding part of Autauga. (Doc. 300-1 at 93; Doc. 287-19 at 2). Although we do not put much weight on the Black Caucus plaintiffs' unseemly design, they drew a district with six counties overall and two splits by filling out Conecuh and Monroe, and removing Lowndes, Marengo, Perry, and Wilcox. (APSX 537). Even in a district with eight (Plan A), nine (2001), or ten (Act 603) counties, a difference of two counties is substantial.

         We now discuss each of the counties. We find no evidence that race predominated in Butler, Dallas, Lowndes, Perry, or Wilcox Counties. Butler County was whole in District 30 in the 2001 plan, (Doc. 30-44 at 12), and is whole in District 23 in Act 603, Plan A, and the 1% Plan. Dallas County is whole in District 23 in all four plans. (Id.). Lowndes County was partially in District 23 in the 2001 plan, (id.), and is entirely in District 23 in Act 603 and Plan A. Perry County was partially in District 23 in the 2001 plan, (id.), and is entirely in District 23 in Act 603 and Plan A. Wilcox County is whole in District 23 in all four plans.

         But the evidence about Clarke County suggests that race predominated. The drafters kept the core of the Clarke County portion of the district and pushed to the border of Washington County. They then split Washington County, instead of taking more of Clarke County. They gave no explanation about why this suspicious choice was the result of traditional districting criteria. Moreover, Clarke County has a much lower black population percentage overall (43.88 percent) than the District 23 portion of Clarke County does (70.67 percent). (Def. Ex. 475; Doc. 297-4 at 6). We acknowledge that the District 23 portion of Clarke County was 77.69 percent black in 2001, (Doc. 30-44 at 11), but the legislature drew new lines in 2012 that must be evaluated on their own merit.

         The drafters split six precincts in Clarke County, and five of them are evidence that race predominated. First, in Thomasville National Guard Armory precinct, District 23 uses an irregular line to take all of the majority-black blocks along the border and none of the majority-white blocks.

         Thomasville National Guard Precinct in Act 603

(Image Omitted)

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

         Fulton City Hall Precinct in Act 603

(Image Omitted)

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

         Jackson City Hall Precinct in Act 603

(Image Omitted)

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

         Overstreet Grocery Precinct in Act 603

(Image Omitted)

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

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

(Image Omitted)

(APSX 299A).

         The sixth precinct split in Clarke County has no clear racial pattern. In Old Engineers Building-Antioch Fire Station-Hellwestern Fire Dept-Grove City Hall- Old Engineers precinct, the legislature drew an irregular shape that put 539 people in District 23, 55 percent of them black, and 3, 067 people in District 22, only 25 percent of them black. (Def. Ex. 475). But the incursions sometimes pick up majority-black blocks and sometimes pick up majority-white blocks with no apparent pattern. (APSX 297).

         Old Engineers Building-Antioch Fire Station-Hellwestern Fire Dept-Grove City Hall-Old Engineers in Act 603

(Image Omitted)

(Id.).

         After splitting Clarke County to reach the border with Washington County, the drafters put an 82 percent black population in District 23 from Washington County, which was only 25 percent black overall. (Def. Ex. 475; Doc. 297-4 at 6). District 23 did not enter Washington County in the 2001 plan, and the Democratic Conference plaintiffs did not include Washington County in their alternative plan. The defendants offered no specific explanation about why they entered and split Washington County.

         The drafters also split five precincts in this county, and three of them are evidence that race predominated. In Carson-Preswick precinct, the drafters put almost exclusively majority-white blocks from two non-contiguous areas into District 22. The border is composed of majority-black blocks and zero-population blocks on the District 23 side and majority-white blocks and zero-population blocks on the District 22 side.

         Carson-Preswick Precinct in Act 603

(Image Omitted)

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

         Cortelyou Precinct in Act 603

(Image Omitted)

(APSX 373). The drafters placed 412 people in District 23, 66 percent of them black, and 86 people in District 22, none of them black. (Def. Ex. 475). In McIntosh Voting House Voting District precinct, the drafters carved a bent leg into the southeast portion of the precinct that picked up every majority-black block in the area and only three majority-white blocks.

         McIntosh Voting House Voting District Precinct in Act 603

(Image Omitted)

(APSX 376). The split placed 523 people in District 23, 73 percent of them black, and 1, 435 people in District 22, 4 percent of them black. (Def. Ex. 475).

         In the other two split precincts, there was no apparent pattern of racial sorting. In Malcolm Voting House Voting District precinct, the drafters carved off a mostly unpopulated corner of the irregularly shaped precinct.

         Malcolm Voting House Voting District Precinct in Act 603

(Image Omitted)

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

         Zoom of McIntosh Community Center Voting District Precinct in Act 603

(Image Omitted)

(APSX 375A). We are at a loss as to why the drafters made this choice, but race could not have been the reason.

         In Conecuh County, we find weak evidence that race predominated. The legislature kept the core of the Conecuh County portion of the district but changed the shape slightly. This design put a slightly higher black population percentage in the district (60 percent) than the county had as a whole (46 percent). (Def. Ex. 475; Doc. 297-4 at 6).

         The drafters split five precincts in Conecuh County, and the splits give us only mixed evidence. First, in Bermuda Community House precinct, the drafters opted for an irregular line instead of a straight line and placed all of the majority-black blocks in District 23.

         Bermuda Community House Precinct in Act 603

(Image Omitted)

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

         Castleberry Fire Dept.-1 Precinct in Act 603

(Image Omitted)

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

         Herbert FD Precinct in Act 603

(Image Omitted)

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

         Paul Fire Dept. Precinct in Act 603

(Image Omitted)

(APSX 305). The drafters assigned 137 people to District 23, 58 percent of them black, and 122 people to District 22, only 2 percent of them black. (Def. Ex. 475).

         The choices in Marengo County provide almost no evidence that race predominated. The drafters preserved the core of the district in Marengo County and smoothed out the line between Districts 23 and 24, as compared to 2001. The portion of Marengo County in District 23 barely had a higher black population percentage (56 percent) than the county as a whole (52 percent). (Def. Ex. 475; Doc. 297-4 at 7). The drafters split only one precinct, Cornerstone Church, and they split it with another majority-black district using no racial pattern. (APSX 337).

         The choices in Monroe County more clearly reflect the predominance of race. The district noticeably retreated in 2012, ceding territory to overpopulated District 22-a counterintuitive choice.

         Monroe County in 2001Monroe County in 2012

(Image Omitted)

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

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

         Mexia Fire Station Precinct in Act 603

(Image Omitted)

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

         Monroe Beulah Church Precinct in Act 603

(Image Omitted)

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

         Monroeville Armory Precinct in Act 603

(Image Omitted)

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

         Perdue Hill Masonic Lodge Precinct in Act 603

(Image Omitted)

(APSX 350).

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

         Bethel Bapt House Precinct in Act 603

(Image Omitted)

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

         Chrysler-Eliska-McGill Precinct in Act 603

(Image Omitted)

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

         Days Inn-Ollie Precinct in Act 603

(Image Omitted)

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

         Monroeville Housing Auth Precinct in Act 603

(Image Omitted)

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

         Purdue Hill Precinct in Act 603

(Image Omitted)

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

         Shiloh-Grimes Precinct in Act 603

(Image Omitted)

(APSX 352).

         The drafters removed Autauga County in 2012, but the Democratic Conference plaintiffs kept part of the county in Plan A. (Doc. 287-19 at 2). The plaintiffs have not explained why keeping Autauga County was required by traditional districting criteria, and there is reason to think that removing this county, which is not part of the Black Belt, creates a stronger community of interest in the district.

         The plaintiffs argue with some force that, given the extent of the changes to the districts, the only way the drafters could have maintained black population percentages as close as they did was through a policy of racial targets. The enacted district had a black population percentage of 64.84 percent, almost the same as the 64.76 percent black population in the benchmark. (Doc. 30-39 at 2; Doc. 30-41 at 1). In the hypothetical district with no precinct splits submitted by Alabama, the black population percentage would be 1.2 points lower, causing the district to miss the purported target. (Doc. 263-3 at 2). The Democratic Conference plan, which contained fewer counties and fewer split counties, had a total black population percentage of only 58.9 percent, nearly six points lower. (Doc. 296-1 at 4). Alabama has not explained why the Democratic Conference district violates the Committee guidelines or federal law, and that plan suggests that some of the county and precinct splits may have been race-based.

         Whether race predominated in the design of District 23 is a close question. The shape is not bizarre. The legislature added one county overall, bringing the total to ten, in a district where it needed to add population. In the process, it also decreased the number of split counties. Some of the choices about particular counties are not suspicious, and neither are some of the precinct splits. But there are also suspicious split counties and suspicious split precincts. The legislature managed to meet its target almost exactly, which it would not have accomplished without the precinct splits. And the Democratic Conference plaintiffs managed to draw a sensibly shaped district with fewer county splits, two fewer counties overall, and a significantly lower black population percentage. We find that race predominated in the design of District 23.

         Because we find that race predominated, we must decide whether District 23 survives strict scrutiny. We conclude that the district satisfies strict scrutiny because the state had a strong basis in evidence to believe that ability to elect for purposes of the Voting Rights Act required black population percentages of 62 to 65 percent in this area. The drafters drew a district in that range.

         Senator Sanders, the longtime incumbent in District 23, urged the Committee to maintain at least 62 to 65 percent black majorities in the majority-black districts. He gave clear testimony with several reasons for his conclusion:

One of many concerns is we are not to have any less African-American-the majority African-American districts than you have, and that those districts ought not be less than 62 percent. And I just want to say why 62 percent, ought not to be less than 62 percent. Many times a population of a district is not reflective of the voters at all in that district. Sometimes a lot of people don't vote. Sometimes a lot of people can't vote. They might be in prison or other kinds of institutions. Sometimes a lot of folks are discouraged for one reason or another. So I would hope that 62 percent is a minimal for the majority African-American district.

(Doc. 30-28 at 6). Representative Thomas Jackson, whose House district in the western Black Belt overlaps with Senate District 23, likewise told the Committee that the district should be “sixty-two percent or sixty-five percent.” (Doc. 30-23 at 8). Senator Dial testified that, if he had told the black leadership in the Senate that it could have no more than 55 percent black population percentage, “Senator Sanders and my other good friends in the Senate . . . would simply have glazed over and asked me when I was going to the mental institute.” (Doc. 215 at 44-45). The legislature could reasonably treat Senator Sanders and Representative Jackson as informed about voting patterns in their home districts.

         The plaintiffs' evidence at trial and the testimony of one of their experts in 2000 confirmed what Sanders and Jackson told the Committee. Dr. Joe Reed testified that a majority-black district needs to be at least 60 percent black to allow minority voters to elect the candidate of their choice. (Doc. 216 at 159-60). And in 2000, Dr. Theodore Arrington, an expert witness for the plaintiffs in this litigation, testified that a 61 percent majority in nearby Dallas County did not guarantee black voters the ability to elect a candidate of their choice for county commission. (Doc. 203 at 84; Doc. 217 at 80-81). See Wilson v. Jones, 130 F.Supp.2d 1315, 1326 (S.D. Ala.) (“Dr. Arrington's position [is] that at least a 62% black voting age population was needed to assure blacks' an opportunity to elect their choices in a district.”), aff'd sub nom. Wilson v. Minor, 220 F.3d 1297 (11th Cir. 2000). Although we agree with our dissenting colleague that the legislature did not use this evidence as its basis for District 23, (Dissent at 34-35 n.9), it does confirm the reliability of the district-specific evidence that it did have.

         The Supreme Court has explained that “the narrow tailoring requirement insists only that the legislature have a ‘strong basis in evidence' in support of the (race-based) choice that it has made.” Ala. Legislative Black Caucus, 135 S.Ct. at 1274 (quoting Brief of the United States as Amicus Curiae 29). A strong basis in evidence consists of “good reasons to believe such use [of race] is required, ” but it need not “actually be necessary to achieve a compelling state interest.” Id. (quoting Brief of the United States as Amicus Curiae 29). If the detailed comments of an influential longtime incumbent in the district and a consistent statement by the incumbent in an overlapping House district, provided to the Committee at a hearing for the purpose of gathering input, do not fit this description, then the burden of proving “good reasons” has been transformed into a burden of proving actual necessity.

         We reject our dissenting colleague's argument that the comments of Senator Sanders and Representative Jackson are “exactly the type of stereotyping about black voting behavior that strict scrutiny is intended to prohibit.” (Dissent at 50). Our colleague makes this charge repeatedly. (Id. at 8-9, 16-17, 30, 37-39, 50). Although we agree that strict scrutiny forbids the use of racial stereotypes, it denies reality to suggest, as the dissent does, that the drafters relied on racial stereotypes instead of “demographic[]” support, (id. at 50), when they followed the suggestions of Senator Sanders and Representative Jackson. The drafters relied on these comments, as they were urged to do, because Sanders and Jackson possessed intimate knowledge of the concerns of the constituents of District 23.

         In their public comments for this redistricting, both Sanders and Jackson, as members of the Alabama Legislative Black Caucus, complained that the legislature had failed to listen to their concerns about redistricting in the last cycle. At a public hearing about redistricting, Representative Jackson protested the drafters' disregard for his constituents' interests during the previous redistricting effort and his hope that this time around the drafters would listen to his constituents: “You know, during the last reapportionment hearing, . . . [y]ou . . . made Montgomery County three different districts and you brought the school board all the way down to Mobile. We fought that. And I'm asking today, . . . are we going to be heard?” (Doc. 30-23 at 7). He later observed, “[n]obody listens too well to us.” (Id. at 8). Similarly, Senator Sanders voiced his “concerns” that the drafters would not heed the interests of his constituents and would instead either retrogress or pack his district. (Doc. 30-28 at 6- 7).

         As already explained, Senator Dial, one of the Republican leaders of the redistricting process, testified that he worried that his colleagues would react with disdain--they “would simply have glazed over”--if he refused to follow their advice and imposed a lower black population percentage on their districts. (Doc. 215 at 44- 45). But the dissent suggests that the Republican leaders of the reapportionment hearings should have retorted to Jackson and Sanders: “We appreciate our colleagues' concern, but your comments are ‘generic and conclusory'; they ‘lack[] precise recommendations'; and ‘they constitute exactly the type of stereotyping about black voting behavior that strict scrutiny is intended to prohibit.'” (Dissent at 19, 50).

         The dissent's contention that the drafters were wrong to rely on this evidence and, worse, that they engaged in pernicious racial discrimination by doing so highlights the predicament of the drafters. Either the drafters could have adhered to the suggestions and, under the view of the dissent, engage in racial stereotyping, or the drafters could have disregarded these comments and then faced accusation of not “listen[ing] too well.” (Doc 30-23 at 8).

         The dissent faults Senator Sanders in particular for imprecision in his use of “sometimes, ” “could be, ” and other figures of speech, (Dissent at 7-8, 19-20, 50), but Sanders's testimony was powerful, concise, on point, and given by an expert in the politics of the Black Belt and Senate District 23. Sanders, a Harvard-educated lawyer, has served in the Alabama Senate for 34 years; his district includes parts of ten counties, and has in the past included part of one other; he has had an active trial practice throughout the region for many years, e.g. Sellers v. Lowndes Cty. Bd. of Educ., 550 So.2d 1021, 1021 (Ala. Civ. App. 1989) (listing “Hank Sanders” of the law firm “Chestnut, Sanders, Sanders, Turner, Williams & Pettaway” as attorney for the appellee), including in this court; and during his decades of public service, Senator Sanders has spoken at countless meetings on topics of public concern. (See Doc. 30-28). Nor is he a redistricting neophyte. He has participated in redistricting after the 1990, 2000, and now 2010 censuses. E.g., Gustafson v. Johns, 434 F.Supp.2d 1246, 1251 (S.D. Ala. 2006) (explaining that “Senator Hank Sanders” was a “[d]efendant-[i]ntervenor” in an earlier action that challenged a 2001 redistricting plan). As Senator Dial testified at trial, Senator Sanders is a highly respected senator in the State of Alabama. (Doc. 215 at 37-38).

         The Legislature had strong reasons for relying on Senator Sanders' testimony. Senator Sanders had no need for demographic studies to form his political opinions, and he did not require exact voting behavior on a precinct level. And we reject the dissent's contention that Senator Sanders engaged in racial stereotyping. (Dissent at 8-9, 16-17, 30, 37-39, 50).

         The dissent also argues that the public comments are a litigating positon concocted by Alabama after the fact, (Dissent at 35-36), but the evidence proves otherwise. Senator Sanders and Representative Jackson gave public statements at an information-gathering hearing held by the redistricting committee. (See Docs. 30-23, 30-28). Senator Dial testified at trial that he considered Senator Sanders's opinion:

Q. Do you remember the hearing in Selma?
A. Yes.
Q. Okay. And did Senator Hank Sanders attend that hearing?
A. Yes.
Q. Did he at any time give you any instructions about his district or about African American districts in general?
A. He did both. I had talked to Senator Sanders. He realized his district had to grow. . . . So he gave me some instructions on how he thought his district should grow. He also told me, and it's public record, that he felt like that the minority districts should be at a minimum 62 percent minorities.

(Doc. 215 at 37). Senator Dial also testified that he considered Senator Sanders a credible source: “I've worked with Senator Sanders for years. We've been together on issues and opposed on issues, and I consider him a viable member of the Alabama Senate and basically a spokesman for the minorities in the state of Alabama.” (Id.). The defendants rely on this testimony about Senator Sanders's credibility, and the plaintiffs fail to rebut it.

         Nor are the dissent's other objections to Senator Sanders's and Representative Jackson's testimony persuasive. The dissent argues that Senator Sanders's “comments were not geographically specific, ” (Dissent at 29), but Senator Sanders was the longtime incumbent in District 23--a specific geographic area--and he testified at the hearing in that capacity. (Doc. 30-28 at 1). Indeed, he made specific geographic suggestions about his district to the drafters. (Id. at 13). The dissent also asserts that Senator Sanders and Representative Jackson proposed “imprecise remedies.” (Dissent at 30). But Jackson's and Sanders's comments were specific--they proposed percentages they thought necessary to prevent retrogression.

         The Democratic Conference plaintiffs reply to Alabama's evidence in several other ways, all of them unpersuasive. First, they argue that a bizarrely shaped district cannot be narrowly tailored, (Doc. 272 at 28-29), but District 23 is not bizarrely shaped. Second, they argue that Alabama is estopped from arguing for a higher black population percentage than it argued for in 2001. (Doc. 272 at 30). But with time comes new data, including recent election trends of which the two incumbents in this area would be aware. Third, the Democratic Conference plaintiffs offer evidence that a lower black population percentage would have been sufficient. (Id. at 30-31). But this evidence fails to prove that the legislature lacked a strong basis in evidence in the form of Senator Sanders's testimony, and it instead proves only that the plaintiffs may have had a strong basis in evidence for a different percentage. The plaintiffs assert that we credited Alan Lichtman's testimony that a bare majority provides a sufficient ability to elect, (Id. at 38; Doc. 287 at 19-20), but we actually discredited Lichtman's methodology:

[W]e do not credit Lichtman's opinion that race is the motivating factor for this voting pattern in Alabama. Lichtman did not conduct any statistical analysis to determine whether factors other than race were responsible for the voting patterns. He did not consider affluence, strength of a political campaign, or party loyalty. Instead, he asserted repeatedly that the resulting voter patterns were similar, which suggests that race is the motivating factor. Lichtman also did not conduct any analysis of Democratic primaries between black and white candidates, which might have offered further evidence about whether white voters are more likely to support white Democrats and black voters are more likely to support black Democrats.

(Doc. 203 at 78-79 (citations omitted)). The plaintiffs still have not provided evidence of this sort. They rely heavily on the number of uncontested elections, but that fact does not prove anything about contested elections. Fifth, they point to the testimony of other legislators proposing different percentages, (Doc. 272 at 38), but that legislators from other areas wanted lower percentages does not disturb the strong basis in evidence provided by the comments of two incumbents from the area.

         The Democratic Conference plaintiffs also mount new attacks in their briefs explaining Plan A. They observe that both Sanders and Jackson, near the end of the special session, voted for plans with lower black population percentages. (Doc. 301 at 19). But legislators may vote for a bill for varied reasons, and those choices alone do not impeach the legislators' earlier comments to the Committee. The fact remains that the legislature had these public statements from the influential incumbent of the district and from the incumbent of an overlapping house district, and there is evidence that they relied on that testimony. The Democratic Conference plaintiffs also argue that the Committee ignored other public comments, (Doc. 301 at 19), but it would be impossible to heed every comment.

         In addition, the dissent argues that Senator Sanders submitted a map that did not comply with his own advice and that our dismissal of his alternative plan is our attempt to bolster his credibility. (Dissent at 32-34). But the dissent misunderstands our analysis. The question is not whether we choose to credit Senator Sanders's comments at the public hearing over his alternative plans, but whether the legislature was justified in making that choice. After the legislature chose to gather input about its redistricting effort through public hearings, the legislature was entitled to rely on testimony from those hearings.

         Nor are the district court decisions cited by the dissent dispositive here. In Page v. Va. State Bd. of Elections, No. 3:13-CV-678, 2015 WL 3604029 (E.D. Va. June 5, 2015), the district court struck down a redistricting plan that employed a racial target because the drafters presented no supporting evidence that the target was necessary to comply with the Voting Rights Act. Id. at *18. And in Smith v. Beasley, 946 F.Supp. 1174 (D.S.C. 1996), the court invalidated a similar redistricting plan that employed a racial target without supporting evidence. Id. at 1210. By contrast, the testimony of the longtime incumbent of Senate District 23 provided a strong basis in evidence for the choices of the drafters.

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

         c. Senate District 24 (West Black Belt)

         Although it is another close call, we find that race did not predominate in the design of Senate District 24. The plaintiffs drew an alternative plan with one fewer county, but we cannot say that this map-or any other evidence submitted by the plaintiffs-proves that race predominated in the assignment of a significant number of residents. The plaintiffs have failed to prove that the shape of the district, the black population percentage, the precinct splits, the choices of which counties to include, the choices about how to split counties, or the choice to include Clarke County were the result of race predominating over traditional districting criteria.

         District 24 was underpopulated in 2012 and constrained by Mississippi to the west and District 23, also underpopulated, to the east. (Doc. 1 at 10). These constraints explain why the drafters had to move 70, 988 people to repopulate this district. Hinaman “took it down further into Choctaw [County] and Clark[e] [County]” to the south and into Pickens County to the north. (Doc. 217 at 123). He also added a “little bit more” population in the Tuscaloosa area. (Id.)

         We cannot say that the shape of District 24 is so bizarre that it is proof that race predominated. The borders of District 24 are no less regular or compact than they were in 2001:

(Image Omitted)

(Ala. Reapportionment Office, supra).

         Nor are they any more unusual than the alternatives proposed by the plaintiffs. The southern border of the Democratic Conference plaintiffs' district is no less irregular than the southern border in Act 603, and the Democratic Conference plaintiffs' district appears no more compact.

         Senate District 24 in Democratic Conference Plan A and Act 602

(Image Omitted)

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

         Senate District 24 in Black Caucus 1% Plan and Act 603

(Image Omitted)

(APSX 538).

         Looking at the district as a whole, the black population percentage is not suspicious. The enacted district had a total black population percentage of 63.22 percent, (Doc. 30-39 at 2), just meeting its purported target of 62.78 percent, (Doc. 30-41 at 1). Plan A and the 1% Plan had slightly lower percentages of 59.3 and 57.31 percent, respectively. (Doc. 287-2 at 1; APSX 470). These percentages are not different enough to be strong evidence of racial predominance.

         The dissent argues that the black population percentage combined with the testimony of Senator Dial and Senator Keahey provides direct evidence that the state “intended” for race to predominate in the drafting of District 24, (Dissent at 131-32, 137-38), but the testimony is at best equivocal. Senator Dial testified at trial that District 24 “had to grow” because of massive underpopulation in the Black Belt districts. (Doc. 215 at 48). The dissent also plucks Dial's testimony that District 24 “had to have more minorities” from the record, (id.), but this testimony is not direct evidence of racial predominance. All the statement suggests is that Dial considered race in the drafting of the district, which is permitted.

         Senator Keahey's testimony supports this view. At trial, Keahey testified that Dial would consider amendments to the proposed districts if the affected senators were “in support of” the amendment, and the amendment did not retrogress “minority districts.” (Id. at 192). When asked what he thought Dial meant by retrogression, Keahey responded that it meant that the enacted plan should “not dilute the minority population.” (Id.). Keahey then clarified his answer that Dial thought preventing retrogression meant precluding a reduction in the population of black voters. (Id.). At most this evidence shows that the drafters considered race among other factors--which is permitted--not that race was the predominant factor in the drafting of Senate District 24.

         Both alternative plans improve on the enacted district by reducing the number of counties from eight to seven and the number of split counties from six to two, (Doc. 300-1 at 95-96), but this improvement is insufficient on its own. District 24 has the same number of counties (eight) and the same number of split counties (six) in both the 2001 and 2012 plans. (Doc. 30-40 at 8-9; Doc. 30-44 at 12). And a difference of one county is not suspicious by itself, especially in a district that even the plaintiffs concede should have seven counties. Moreover, it was sensible to take population from overpopulated District 22 in Clarke County, as the enacted plan does, instead of severely underpopulated District 23 in Marengo and Hale Counties, as the alternative plans do. (Doc. 1 at 10).

         Several counties remain exactly or generally the same. Sumter and Greene Counties stayed whole, and Tuscaloosa County kept its hook. The Democratic Conference plaintiffs' own map establishes that the extension into Tuscaloosa County brought in-and failed to include-both white and black areas.

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

(Image Omitted)

(ADC Supp. Ex. 38E.) And the black population percentage of the Tuscaloosa County portion of the district is almost identical to what it was in the 2001 plan: it changed from 58.9 percent black to 60.9 percent black. (Def. Ex. 408 at 708; Doc. 30-40 at 9). The plaintiffs made much of this “contorted, bizarrely-shaped hook, ” (Doc. 258 at 35), until they included a hook in their own plans. Forced to defend that choice, the Democratic Conference plaintiffs' expert testified that he could “look at [the hook] as a core of [the] district.” (Doc. 296-7 at 136). The plaintiffs also informed us that the hook “has been a fixture since at least . . . 1983.” (Doc. 287 at 17). We agree that the hook is not suspicious, and the portions of District 24 in Tuscaloosa, Greene, and Sumter counties provide no evidence that race predominated.

         Several other counties in District 24 saw changes. The drafters added a portion of Pickens County along the western border of the state, extended the district in the northeastern part of Hale County, smoothed out the existing line down the middle of Marengo County, pushed the district slightly into Clarke County, and stretched the district farther south in Choctaw County. We discuss these counties one by one.

         We find no evidence in Pickens County that race predominated. The Democratic Conference plaintiffs included all of Pickens County, and the Black Caucus plaintiffs failed to articulate a reason why they did not enter the county, so we find that entering Pickens County does not prove that race predominated. The plaintiffs and the dissent also have failed to prove that the decision to split Pickens County instead of keeping it whole was the result of race predominating over traditional criteria. Act 603 put a 74 percent black population in the district from a county that was only 42 percent black, (Def. Ex. 475; Doc. 263 at 85), but the shape sensibly anchors to the western border of the state and has a relatively smooth line to the border with Greene County. And, while we agree with our dissenting colleague that Senator Dial and the drafters considered race when they drafted District 24, (Dissent at 133-34), the Supreme Court permits the consideration of race.

         Act 603 split one precinct in Pickens County, Carrollton 4 Service Center, and we find that race did not predominate. The split put 770 people in District 24, 78 percent of whom were black, and 889 people in District 21, 28 percent of whom were black. (Def. Ex. 475). But the split made the district line more regular, and it placed majority-black blocks along the border in majority-white District 22 and majority-white blocks along the border in District 24.

         Carrollton 4 Service Center Precinct in Act 603

(Image Omitted)

(APSX 360). As best we can tell, any racial disparity is the result of demographics.

         The split of Marengo County also provides no evidence that race predominated. The drafters preserved the core of the district by drawing a line in roughly the same place through the middle of the county. They also placed a lower black population percentage into the district than the county had as a whole, 50 percent to 52 percent. (Def. Ex. 475; Doc. 263). If the legislature had made Marengo County whole, as both plaintiffs did, it would have raised the black population percentage. And the only split precinct in Marengo County, Cornerstone Church, is split with District 23, another majority-black district. The plaintiffs do not explain how this split with a majority-black district along smooth lines proves that race predominated.

         Cornerstone Church Precinct in Act 603

(Image Omitted)

(APSX 337).

         We find no evidence in the split of Clarke County that race predominated. Neither plaintiff included Clarke County in their alternative districts, and District 24 did not include Clarke County in 2001. The split placed a 61 percent black population in the district, higher than the 44 percent black population in the county as a whole. (Def. Ex. 475; Doc. 263 at 85). Traditional districting criteria might dictate taking new territory in counties that the district would have included anyway, but it seems equally consistent with traditional districting criteria to take population from overpopulated District 22 in Clarke County instead of underpopulated District 23 in Marengo or Hale Counties, as both plaintiffs did. (Doc. 1 at 10). In addition, the line in the enacted plan is not particularly suspicious and splits only three precincts with majority-white District 22, none of which proves that race predominated. In the Bashi Methodist Church and Thomasville National Guard Armory precincts, the drafters dealt with irregularly shaped precincts. They pushed south into both precincts to reach a large cluster of majority-black blocks and stopped before reaching majority-white blocks.

         Bashi Methodist Church and Thomasville National Guard Precincts in Act 603

(Image Omitted)

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

         City of Thomasville in Act 603

(Image Omitted)

(U.S. Census Bureau, State Legislative District Reference Map: State Senate District 24 (Alabama), http://www2.census.gov/geo/maps/dc10map/SLDRefMap/upper/ st01al/sldu01024/DC10SLDU01024006.pdf). The third split, of Fulton City precinct, sensibly placed populated areas in the northeastern part of the precinct with adjacent populated areas in District 24 instead of zero-population and sparsely populated areas in District 22. The line also smoothed out the irregular shape of the precinct.

         Fulton City Precinct in Act 603

(Image Omitted)

(APSX 294).

         In Choctaw County, we find insufficient evidence that race predominated. The drafters preserved the core of the district in Choctaw County. They added territory along the Mississippi border and the southern county line, presumably to repopulate the district. Both plaintiffs also included Choctaw County in the district, so the choice to include it was not suspicious. The Democratic Conference plaintiffs also split the county. The line that the drafters used, although different from the line in Plan A, is not suspicious. The drafters included only a moderately higher percentage of black population from Choctaw County than the county had overall, 54 percent to 44 percent, (Def. Ex. 475; Doc. 263 at 85), and the Democratic Conference plaintiffs actually put a higher percentage of black population, 63 percent, in the district. (Doc. 297-4 at 7).

         The drafters split seven precincts in Choctaw County, but we do not find a racial pattern in five of the splits. First, in Bogueloosa precinct, the most irregular part of the split is between majority-white blocks, and the drafters placed two majority-black blocks in District 22 that they could have placed in District 24:

         Bogueloosa Precinct in Act 603

(Image Omitted)

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

         Branch-Bladon Springs-Cullomburg Precinct in Act 603 Butler-Lacava-Mt. Sterling Voting District in Act 603

(Image Omitted)

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

         Silas-Souwilpa-Isney-Toomey Voting District

(Image Omitted)

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

         Riderwood-Rock Springs Precinct in Act 603

(Image Omitted)

(APSX 290). The record does not establish that race predominated in the split of this precinct.

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

         Lusk-Pleasant Valley-Ararat Voting District in Act 603

(Image Omitted)

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

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

(Image Omitted)

(APSX 292). We cannot draw any strong inferences from this mixed pattern.

         We find at most slight evidence in Hale County that race predominated. The drafters reduced the concavity of the split, and they preserved the bulk of the district in this county. The black population percentage from Hale County in District 24 (67 percent) is only slightly higher than the percentage in the county overall (59 percent). (Def. Ex. 475; Doc. 263 at 85). The line is sensible in overall shape, and it split only three precincts, all of them sparsely populated. First, the drafters split the irregularly shaped Havanna A precinct along a straight line.

         Havanna A Precinct in Act 603

(Image Omitted)

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

         Valley B Precinct in Act 603

(Image Omitted)

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

         Valley C Precinct in Act 603

(Image Omitted)

(APSX 308). The split put only 22 people in District 24, 64 percent of them black, and only 57 people in District 14, 23 percent of them black. In all, the precinct splits added 202 people to a district with 137, 724 people, or 0.15 percent of the population. (Def. Ex. 475).

         There is also one county, Washington, that the Black Caucus plaintiffs added and the legislature did not. But the Black Caucus plaintiffs did not explain why this choice was required by traditional districting criteria, and no reason is apparent to us from the record.

         The Black Caucus plaintiffs make one other argument on remand, that a desire to maintain racial targets in Senate District 24 led Senator Dial to “drastically” change Senate District 22, Senate District 1, and other districts. (Doc. 256 at 155). But the plaintiffs have not challenged those districts, and a plaintiff has standing to challenge only his own district as a racial gerrymander. See Hays, 515 U.S. 737; Sinkfield, 531 U.S. 28. Senator Dial testified that the need to repopulate Senate Districts 23 and 24 had effects on other districts, (Doc. 215 at 45-46, 48-50), but the Black Caucus plaintiffs do not explain how these changes prove that race predominated over traditional districting criteria in the challenged districts. Further, both districts needed to gain population by growing and that growth would have affected other districts in any plan.

         We have weighed the evidence and arguments presented by the plaintiffs. Everything except four precinct splits is clearly consistent with traditional districting criteria, and we cannot say that race predominated even if we give the benefit of the doubt to the plaintiffs on all four ambiguous splits. The splits-Lusk-Pleasant Valley-Ararat Voting District, Toxey-Gilbertown-Melvin-Hurricane Voting District, Valley B, and Valley C-assign only 433 black people to District 24, which is less than half a percent of the total population of the district. If we unsplit these four according to our method that assigns the entire precinct to the district that took the majority of it, the black population would decrease by only 0.17 percent and still meet the purported target. If we remove all four precincts entirely, the black population percentage increases by only 0.11 percent. Based on the totality of the evidence, we find that race did not predominate in the design of District 24.

         d. Senate District 26 (Montgomery)

         The Supreme Court expressed particular concern about Senate District 26. See Ala. Legislative Black Caucus, 135 S.Ct. at 1271. The overall shape of the district does not establish that race predominated, but the exhibits submitted on remand make clear that a significant number of people were assigned on the basis of race in five of the split precincts. Based on these new exhibits, we find that race predominated in the design of this district. Because the district also fails strict scrutiny, we must enjoin its use in future elections.

         District 26 was underpopulated by 11.64 percent in 2010, (Doc. 1 at 10), so Hinaman removed the large, rural portion of southern Montgomery County from District 26 and added more population from the city of Montgomery. (Doc. 217 at 129-30). The following map shows District 26 in the center in green and District 30 to the north and west in gray:

(Image Omitted)

(Ala. Reapportionment Office, supra).

         The removal of the large rural portion made sense for two reasons. First, Senate District 25 needed a land bridge to Crenshaw County to fix Senate District 30. (Doc. 217 at 129-30). Second, District 26 is primarily an urban district, and communities of interest were better served by making a more compact, urban district.

         The Democratic Conference plaintiffs also drew a district centered on the city of Montgomery and wholly contained within Montgomery County. Fairfax defended this choice at his deposition:

Q: Okay. So you've got no problem with the small, compact Senate District 26 focusing around the city limits and having Senate District 25 take the rural areas of Montgomery County and going into other counties to make up whatever-to grab the population it needs?
A: Correct. Whole counties, yes.
Q: That concept makes sense to you.
A: It is. It's logical. Not necessarily in every case, but in this case, it made sense.

(Doc. 296-7 at 97).

         But the Democratic Conference plaintiffs made two different choices. First, they removed outlying precincts along the southern half of the district and filled in the “lagoon” in the eastern part of the district. Second, they split the “crab claw” precinct in the southern part of the district, which has been the subject of much attention in this litigation.

         Senate District 26 in Conference Plan A and Act 603

(Image Omitted)

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

Q: So what makes you a better decider of which one you do than the Legislature?
A: I don't necessarily believe that I'm a better judgment [sic] for that. I made the judgment at that time that I thought was best.
Q: Okay. If someone made a different judgment that says I would rather have a whole precinct even if it's slightly irregular, that's not always a wrong choice; correct?
A: That could be done, definitely.

(Doc. 296-7 at 100-01).

         The Black Caucus plaintiffs drew a very different district, straddling three counties and pairing part of the city of Montgomery with rural counties. The following map shows the 1% Plan district shaded in light purple:

         Senate District 26 in Black Caucus 1% Plan and Act 603

(Image Omitted)

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

         The shape of District 26 in Act 603 does not establish that race predominated. The Supreme Court questioned the change “from rectangular to irregular, ” Ala. Legislative Black Caucus, 135 S.Ct. at 1271, but the current district is more compact than the previous one and centers more on the city of Montgomery. The district includes 136, 451 people, 96 percent of whom live in the city of Montgomery, (Def. Supp. Ex. 6), up from 86 percent under the previous lines, (Doc. 30-44 at 38). Concentrating the district within city lines was a reasonable decision that furthered a traditional districting criterion. See Bush, 517 U.S. at 963.

         We have no concerns about either the claw or the lagoon. The supplemental exhibits proved that the incumbent lives in the claw, (Def. Supp. Ex. 5), and the claw follows precinct lines, (APSX 539). The lagoon is roughly similar to the same area under the 2001 plan:

(Image Omitted)

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

         Senate District 26 and Montgomery County Commission Districts

(Image Omitted)

(Def. Supp. Ex. 13). Because more than one session of the Alabama Legislature and more than one state entity have considered this area to be a community of interest, the shape of the lagoon does not help the plaintiffs prove that race predominated in the design of District 26.

         We also reject the plaintiffs' arguments about the land bridge to District 30. The plaintiffs assert that the drafters should have added Crenshaw County to District 26, (Doc. 258 at 37-38), but they provide no race-neutral reason for doing so, never explain how to solve the ensuing underpopulation of District 25, and do not follow their own advice in Plan A or the 1% Plan. (Doc. 287-22; APSX 539). The Democratic Conference plaintiffs further argue that the drafters did not consider District 25 when they drew District 26 because they “redrew the black majority districts first, ” (Doc. 272 at 58), but there is no evidence that the drafters drew the majority-black districts while ignoring the rest of the districts. Hinaman was aware of the other districts even as he began with the majority-black districts.

         We also do not consider the black population percentage in this district suspicious. The percentage increased by less than 3 points, from 72.69 to 75.13 percent black. (Doc. 263-2). The earlier alternative plans, Sanders and Reed-Buskey, had very high black population percentages, but the plans on remand had significantly lower percentages.

         2010 Census Total Black Population Percentages in Senate District 26 Across Alternative Plans

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

Enacted Plan (Doc. 263-2)

Sanders Plan (Comm on Ex. 47)

Reed- Buskey Plan (Common Ex. 48)

New Black Caucus Plan (APSX 27)

Black Caucus 1% Plan (APSX 470)

Democratic Conference Plan A Doc. 287-2)

72.69

75.13

71.28

68.44

56.91

57.59

60.7

         The fact that District 26 could have a lower black population percentage does not convince us that the actual percentage is suspicious, especially because some of the alternative plans had similarly high percentages of black population.

         Nor does the argument made by the Democratic Conference plaintiffs that their alternative district better matches the black population percentage of the city of Montgomery, 56 percent, persuade us. (Doc. 287 at 18). The city of Montgomery is too large for a single district. Because the state needed to split Montgomery, the plaintiffs must explain how the enacted district splits the city in a way that does not respect smaller communities of interest within the city. They have not done so.

         Finally, we are not persuaded by the plaintiffs' argument about racial predominance that the net population added to District 26 included 14, 806 black people but only 36 white people. (See, e.g., Doc. 256 at 172). The net population statistic that the plaintiffs cite is misleading. And the Supreme Court may have been misled when it stated, “Alabama's plan added 15, 785 new individuals, and only 36 of those newly added individuals were white.” Ala. Black Legislative Caucus v. Alabama, 135 S.Ct. 1257, 1263 (2015). The Court later repeated that misleading statistic. Id. at 1271 (explaining that the addition of “just 36” white people to District 26 is “a remarkable feat given the local demographics.”). This representation of the evidence gives the false impression that the Alabama legislature sought out 15, 739 black individuals and 36 white individuals to add to the existing population of District 26.

         The evidence before us establishes that 11, 966 white people and 6, 858 black people were removed from Senate District 26; 12, 002 white people (not a mere 36) and 21, 664 black people were added to the district. Afterward, 14, 613 white individuals and 80, 856 black individuals remained in the district. In the end, a net total of 52, 490 people, black and white, were moved into and out of District 26. 36 white individuals were added to District 26. In other words, post-redistricting, District 26 had 36 more white people than it had before redistricting. To us, that a large number of individuals--white and black--were swept in and out of the district is the significant fact, not that District 26 had a net gain of 36 white people. Although we find that race predominated in the drafting of District 26, and that it fails strict scrutiny, our conclusion does not follow from the supposed “remarkable feat” of the drafters.

         But the supplemental exhibits on the precinct splits provide persuasive evidence that race predominated in District 26. Two of the precinct splits are not suspicious. In 3F Goodwyn Community Center Voting District, the drafters split the precinct along U.S. Route 231 and an unpopulated area. This choice respects traditional districting criteria by following a major road and keeping populated areas together. (See Doc. 217 at 184 (testimony of Hinaman explaining that precinct lines “don't necessarily follow roads and boundaries”)).

         3F Goodwyn Community Center Voting District

(Image Omitted)

(APSX 357).

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

(Image Omitted)

(U.S. Census Bureau, State Legislative District Reference Map: State Senate District 26, (Alabama), http://www2.census.gov/geo/maps/dc10map/SLDRefMap/upper/ st01al/sldu01026/DC10SLDU01026001.pdf). In 5M Bell Road YMCA Voting District, the split follows County Road 43, another choice that respects traditional districting criteria.

         5M Bell Road YMCA Voting District Precinct in Act 603

(Image Omitted)

(APSX 359).

         Census Bureau Map in the Vicinity of County Road 43

(Image Omitted)

(U.S. Census Bureau, TigerWEB, http://tigerweb.geo.census.gov/tigerweb/).

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

         Senate District 26 in Act 603

(Image Omitted)

(Def. Supp. Ex. 59 (precinct labels added by the Court)). The splits tend to put a higher percentage of black people in District 26 than District 25, with the effect of increasing the black population percentage in District 26 and keeping the black population percentage in District 25 below 25 percent. As drawn, District 26 is 75.13 percent black. (Doc. 263-2 at 2). If we unsplit the precincts using our method, the black population percentage in District 26 drops to 72.05 percent. If we put all of the suspicious precincts entirely in District 25, the black population percentage in District 26 drops to 71.19 percent. And if we put all of the suspicious precincts entirely in District 26, the black population percentage in District 26 drops to 69.47 percent.

         We discuss each split in turn. First, the legislature pushed District 26 into two corners of 1A Cloverdale Community Center Voting District precinct. In the southwest corner, the district took only majority-black blocks in stepwise fashion and left no accessible majority-black blocks in District 25. In the north, District 26 absorbed several majority-white blocks in an irregular shape, but it left behind no adjacent majority-black blocks.

         1A Cloverdale Community Center Voting District Precinct in Act 603

(Image Omitted)

(APSX 353). The split placed 1, 011 people in District 26, 68 percent of them black, and 6, 739 people in District 25, only 16 percent of them black. (Def. Ex. 475).

         Second, District 26 absorbed two parts of 1B Vaughn Park Church of Christ precinct, both parts comprised of mostly majority-black blocks. In the northwest, the district could have reached more majority-black blocks, but did not do so. In the east, the split left behind no majority-black blocks.

         1B Vaughn Park Church of Christ Voting District Precinct in Act 603

(Image Omitted)

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

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

         1C Montgomery Museum of Fine Arts Voting District Precinct in Act 603

         (APSX 355). But again, the racial pattern is clear: the split put 3, 829 people in District 26, 69 percent of them black, and 3, 599 people in District 25, only 37 percent of them black. (Def. Ex. 475).

         The same is true of 1D Whitfield Memorial United Methodist Church. The drafters reached almost all of the majority-black blocks in the precinct, although they excluded some accessible majority-black blocks and included some majority-white blocks that they could have left behind.

         1D Whitfield Memorial United Methodist Church Precinct in Act 603

(Image Omitted)

(APSX 356). The split put 4, 564 people in District 26, 67 percent of them black, and 1, 781 people in District 25, only 18 percent of them black. (Def. Ex. 475).

         Fifth, in 3G Alcazar Shrine Temple Voting District precinct, the legislature put populous majority-black blocks and no majority-white blocks in District 26, although they again left behind an accessible majority-black block.

         3G Alcazar Shrine Temple Voting District Precinct in Act 603

(Image Omitted)

(APSX 358). The split put 2, 203 people in District 26, 80 percent of them black, and 1, 411 people in District 25, only 43 percent of them black. (Def. Ex. 475).

         These five splits put 17, 583 people in District 26, 58 percent of them black. (Id.). In contrast, the splits put 17, 425 people in District 25, 25 percent of them black. (Id.). On the basis of the evidence about these five precinct splits, we find that race predominated in the design of Senate District 26.

         We further conclude that District 26 does not survive strict scrutiny. Alabama makes no arguments about strict scrutiny that are specific to this district. It cannot rely on the testimony of Sanders and Jackson in this district because District 26 has a black population percentage above 65 percent. Based on the expanded record on remand, we must enjoin the use of Senate District 26 in future elections.

         e. Senate District 28 (East Black Belt)

         We find that race predominated over traditional districting criteria in the design of Senate District 28, which was underpopulated by 3.8 percent in 2010. (Doc. 1 at 11). The district contains all or part of seven counties (Barbour, Bullock, Henry, Houston, Lee, Macon, and Russell), and the black population percentage rose over eight points in the enacted plan to 59.83 percent. (Doc. 30-41 at 2; Doc. 30-39 at 3).

         The biggest changes to the district were the addition of a claw that reaches into Houston County to take in population from the city of Dothan and several protrusions into Lee County on the northern border of the district:

         2001 District Lines2012 District Lines

(Image Omitted)

(Alabama Policymaker's Dashboard, supra).

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

         Senate District 28 in Democratic Conference Plan A and Act 603

(Image Omitted)

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

         Senate District 28 in Black Caucus 1% Plan and Act 603

(Image Omitted)

(APSX 540).

         The drafters far exceeded any target of preserving a black population of 51.05 percent, (Doc. 263-3 at 2), but the expansion of the borders splits precincts in a race-driven fashion. We find it suspicious that the black population percentage increased by eight points as a result of redistricting. Neither Democratic Conference Plan A (51.7 percent black) nor the Black Caucus 1% Plan (50.98 percent ...


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