Amicus Curiae Brief — Wes Allen, Alabama Secretary of State, et al., Appellants v. Evan Milligan, et al.

Supreme Court briefJul 18, 2022

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No. 21-1086

In the Supreme Court of the United States

JOHN H. MERRILL, Alabama Secretary of State, et al.,

Appellants

EVAN MILLIGAN, et al.,

Appellees

On Appeal from the United States District Court

for the Northern District Of Alabama

AMICUS BRIEF FOR PRESS ROBINSON, EDGAR

CAGE, DOROTHY NAIRNE, ALICE WASHINGTON,

CLEE EARNEST LOWE, DAVANTE LEWIS, MARTHA DAVIS, AMBROSE SIMS, NAACP LOUISIANA

STATE CONFERENCE, AND POWER COALITION

FOR EQUITY AND JUSTICE IN SUPPORT OF

APPELLEES/RESPONDENTS

ALLISON RIGGS

MITCHELL BROWN

SOUTHERN COALITION FOR

SOCIAL JUSTICE

1415 West Highway 54,

Ste. 101

Durham, NC 27707

ROBERT A. ATKINS

YAHONNES CLEARY

JONATHAN H. HURWITZ

Counsel of Record

AMITAV CHAKRABORTY

ADAM P. SAVITT

EMILY GLAVIN

ARIELLE MCTOOTLE

PAUL, WEISS, RIFKIND,

WHARTON & GARRISON LLP

1285 Avenue Of The Americas,

New York, NY 10019

(212) 373-3000

jhurwitz@paulweiss.com

TABLE OF CONTENTS

INTEREST OF AMICI CURIAE ........................................ 1

SUMMARY OF ARGUMENT ............................................. 2

ARGUMENT ........................................................................ 6

I. Louisiana’s Persistent Efforts to Suppress and Dilute

Black Votes Illustrate the Continuing Importance of

the Voting Rights Act, Including Its Application to

Redistricting. ................................................................. 6

A. Louisiana Has a Long History of Disenfranchising

Black Voters ............................................................. 6

B. Louisiana’s Efforts to Disenfranchise Black Voters

and Dilute Their Votes Continued After the Voting

Rights Act Was Enacted ........................................ 10

II. Even Today, Black Voters in Louisiana Cannot

Participate in the Political Process on an Equal Basis

with White Voters. ....................................................... 13

III. Louisiana Elected Officials Are Not Responsive to the

Needs of Black Louisianans. ....................................... 18

IV. The 2021–22 Redistricting Cycle in Louisiana Confirms

the Continued Necessity of the Voting Rights Act. ... 26

CONCLUSION .................................................................. 36

TABLE OF AUTHORITIES

Cases:

Ardoin v. Robinson,

No. 21A814 (June 28, 2022) ................................... 2

Georgia v. Ashcroft,

539 U.S. 461 (2003) .............................................. 10

Bartlett v. Strickland,

556 U.S. 1 (2009) (plurality opinion) ..................... 3

(II)

Cases—continued:

Chisom v. Edwards,

659 F. Supp. 183 (E.D. La. 1987) ........................ 12

Chisom v. Edwards,

690 F. Supp. 1524 (E.D. La.), vacated

sub nom. Chisom v. Roemer, 853

F.2d 1186 (5th Cir. 1988) ....................................... 9

Guinn v. United States,

238 U.S. 347 (1915) ................................................ 7

Major v. Treen,

574 F. Supp. 325 (E.D. La. 1983) ........................ 12

State ex rel. Plaia v. Louisiana State

Bd. of Health,

296 So. 2d 809 (1974) ........................................... 10

Plessy v. Ferguson,

163 U.S. 537 (1896) ................................................ 6

Ramos v. Louisiana,

140 S. Ct. 1390 (2020) .......................................... 16

Reynolds v. Sims,

377 U.S. 533 (1964) ................................................ 2

Robinson v. Ardoin,

2022 WL 2012389 (M.D. La. June 6,

2022) ................................................................... 2, 5

Robinson v. Ardoin,

37 F.4th 208 (5th Cir. 2022) .................................. 2

(III)

Terrebonne Par. Branch NAACP v.

Jindal,

274 F. Supp. 3d 395 (M.D. La. 2017),

rev’d sub nom. Fusilier v. Landry,

963 F.3d 447 (5th Cir. 2020) ................................ 11

Thornburg v. Gingles,

478 U.S. 30 (1986) .................................................. 5

Louisiana v. United States,

380 U.S. 145 (1965) ................................................ 8

Constitution, statutes, and rules:

Build Back Better Act, H.R. 5376 ............................. 25

Constitution of the United States and

amendments ..................................................... 8, 10

Joint Rule 21 ....................................................... 32, 33

La. Const. 1974, Art. 1, § 10 ..................................... 14

Louisiana 1973 Constitution .................................... 16

S. Ct. R. 37.6 ................................................................ 1

Voting Rights Act of 1965 Section 2, 52

U.S.C. § 10301 .............................................. passim

Miscellaneous:

A Brief History of the Louisiana Supreme Court .......................................................... 17

(IV)

ACLU’s Justice Lab Campaign Sues 25

Louisiana Police Departments For

Racist Misconduct, ACLU Louisiana

(Dec. 21, 2021), ..................................................... 21

Addressing Disparities in Maternal and

Child Health Outcomes for African

Americans, Louisiana Department of

Health (Sept. 2019), ............................................. 23

Allison Stevens and Jarvis Deberry,

House Democrats and 3 Republicans

pass George Floyd Justice in Policing

Act, Louisiana Illuminator (June 27,

2020 10:14 AM), ................................................... 22

The Build Back Better Framework Will

Deliver for Louisiana, The White

House .................................................................... 26

Catherine Coleman Flowers, Hurricane

Ida shows the one-two punch of

poverty and climate change ................................. 25

Family of Alton Sterling Has Accepted

$4.5 Million For His Killing By

Police, NPR (June 14, 2021, 10:34

AM) ....................................................................... 19

Greg Larose, Louisiana’s second redistricting session reveals the emperor

has no clothes, Louisiana Illuminator

(June 20, 2022), Louisiana

Illuminator (June 20, 2022), ................................ 35

(V)

Jim Mustian and Jake Bleiberg,

Beatings, Buried Videos A Pattern At

Louisiana State Police, AP News

(Sep. 9, 2021) ........................................................ 19

Jim Mustian and Jake Breiberg, 3

Louisiana State Troopers Are

Charged In The Beating Of A Black

Motorist, NPR (May 12, 2022, 3:58

PM) ..................................................................19-20

Justice Department Announces

Investigation of the Louisiana State

Police, U.S. Dep’t of Justice (June 9,

2022) ..................................................................... 20

Louisiana Advisory Committee for the

United States Commission on Civil

Rights, “Barriers to Voting in Louisiana” (June 2018) .......................................... 6, 7, 14

Mark Ballard, Louisiana Republicans

Reject Infrastructure Bill Negotiated

By GOP Senator Bill Cassidy that

Passed Congress, The Advocate, Nov.

6, 2021, ................................................................. 26

Melinda DeSlatte, Louisiana Senators

Refuse to Limit Police Officer

Immunity, AP News (June 1, 2021), ................... 22

Nick Valencia, et al., Nearly 3 Years

After Ronald Greene’s Death, Family

Members And Some Lawmakers Say

Police Have Avoided Accountability,

CNN (Apr. 15, 2022, 8:53 PM), ........................... 19

(VI)

Sean McMinn et al., Across The South,

COVID-19 Vaccine Sites Missing

From Black And Hispanic

Neighborhoods, NPR (Feb. 5, 2021), ................... 24

SW La. group urging support for George

Floyd Justice in Policing Act,

American Press (Apr. 26, 2021 1:14

AM), ...................................................................... 21

Terry L. Jones, After 39 Years, Baton

Rouge Released From Federal

Consent Decree On Racial, Gender

Hiring Disparities, The Advocate,

(June 4, 2019) ....................................................... 20

Will Sentell, Despite a judge’s order,

lawmakers end session without

adding 2nd majority-Black district,

The Advocate (June 18, 2022) ............................. 35

In the Supreme Court of the United States

No. 21-1086

JOHN H. MERRILL, Alabama Secretary of State,

et al.,

Appellants

EVAN MILLIGAN, et al.,

Appellees

ON APPEAL FROM THE

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF ALABAMA

AMICUS BRIEF FOR PRESS ROBINSON, EDGAR CAGE, DOROTHY NAIRNE, ALICE WASHINGTON, CLEE EARNEST LOWE, DAVANTE

LEWIS, MARTHA DAVIS, AMBROSE SIMS,

NAACP LOUISIANA STATE CONFERENCE,

AND POWER COALITION FOR EQUITY AND

JUSTICE

INTEREST OF AMICI CURIAE

Amici Curiae are eight Black voters in Louisiana

and two nonprofit organizations that work to further

the voting rights of Louisiana’s Black citizens. Amici

Press Robinson, Edgar Cage, Dorothy Nairne, Alice

Washington, Clee Earnest Lowe, Davante Lewis,

Martha Davis, and Ambrose Sims have been denied

an equal opportunity to elect candidates of their

choice because the congressional map enacted by the

Louisiana Legislature dilutes their votes relative to

those of white voters. Amici National Association for

the Advancement of Colored People (“NAACP”) Louisiana State Conference and Power Coalition for Equity and Justice are organizations focused on empowering Black Louisianans, including through efforts to

discriminatory impacts of the Louisiana congressional

district plan.1 NAACP Louisiana State Conference

also has members who are registered voters and live

in each of the six congressional districts in Louisiana’s

congressional redistricting plan and have therefore

been denied an equal opportunity to elect a candidate

of their choice.

Amici have a direct stake in the outcome of this

appeal. On March 30, 2022, amici filed suit against

Kyle Ardoin, the Secretary of State of Louisiana and,

as such, its chief elections officer, in the Middle

1 Pursuant to Rule 37.6, amici affirm that no counsel for a

party authored this brief in whole or in part, and no person other

than amici curiae or their counsel made a monetary contribution

to fund its preparation or submission. The parties have given

blanket consents to the filing of any amicus brief. See Merrill v.

Milligan, 21-1086 (March 30, 31, 2022 Blanket Consents).

District of Louisiana, alleging that the State’s congressional redistricting plan violates Section 2 of the

Voting Rights Act, 52 U.S.C. § 10301. After a five-day

evidentiary hearing, the district court granted a preliminary injunction enjoining the use of the enacted

map in the upcoming 2022 elections and giving the

Legislature an opportunity to enact a new map that

complies with Section 2 of the Voting Rights Act. Robinson v. Ardoin, 2022 WL 2012389 (M.D. La. June 6,

2022). A motion panel of the Fifth Circuit denied a

motion by Defendant and Intervenor Defendants for a

stay pending appeal. Robinson v. Ardoin, 37 F.4th

208 (5th Cir. 2022). On June 28, 2022, this Court issued a stay pending appeal and granted a writ certiorari before judgment, and held the case in abeyance

pending the Court’s decision in the present matter.

Ardoin v. Robinson, No. 21A814 (June 28, 2022).

SUMMARY OF ARGUMENT

Voting is “a fundamental political right, because [it

is] preservative of all rights.” Reynolds v. Sims, 377

U.S. 533, 562 (1964). For much of the Republic’s history, all rights—including the right to exercise the

franchise—were denied to enslaved persons. Even after emancipation and well into the twentieth century,

racialized violence and discriminatory voting laws

were used to prevent people of color from engaging in

civic life.

The passage of the Voting Rights Act in 1965 represented a historic step in the Nation’s effort to curb

the disenfranchisement of minorities and give full effect to the Fourteenth and Fifteenth Amendments.

The problems that the Voting Rights Act is needed to

address are “not ancient history. Much remains to be

done to ensure that citizens of all races have equal opportunity to share and participate in our democratic

processes[.]” Bartlett v. Strickland, 556 U.S. 1, 25

(2009) (plurality opinion).

Few states better demonstrate the continued necessity of providing minority voters with an effective

remedy under Section 2 of the Voting Rights Act than

Louisiana. Since the Civil War, Louisiana has repeatedly enacted laws expressly targeted at impeding

Black political participation and hampering the ability of its Black citizens to exercise political power.

Discriminatory laws such as these remained in effect

well into the twentieth century.

Although the Voting Rights Act has served as an

essential tool for the federal government and Louisiana voters to challenge discriminatory voting policies,

efforts by the State and local jurisdictions to suppress

Black voting power continue, and amici and other

Black Louisianans still face severe obstacles to full political participation. The State consistently has

drawn electoral maps—including congressional district maps—that restrict the ability of Black Louisianans to participate in elections on an equal footing with

white Louisianans and to have an equal opportunity

to elect candidates of their choice. Although Black citizens represent one-third of the State’s population,

Louisiana has never (except briefly in the 1990s) had

more than one majority-Black congressional district

(out of what are now six total districts). Black voters

lack equal access to polling sites and early voting locations and are disproportionately disenfranchised by

the State’s criminal justice system. These and other

obstacles to effective exercise of voting power by Black

Louisianans, together with stark racial polarization in

voting,

have

resulted

persistent

underrepresentation across all levels of political office

in the State. No Black candidate has won a Statewide election in Louisiana since Reconstruction. No

majority-white district has ever elected a Black candidate to Congress. In short, Black voters do not have a

fair and equal say in deciding who should represent

them.

The impact of Black voters’ diluted political power

is predictable: Louisiana’s elected officials have consistently failed to respond to the needs of the State’s

Black communities. Black Louisianans experience

disproportionately harsh and often violent policing

practices and worse health outcomes compared to the

State’s white citizens. The evidentiary record at the

preliminary injunction hearing in Robinson shows the

lack of responsiveness by Louisiana’s State and federal officials to the interests of Black voters.

The Louisiana Legislature has persistently refused to remedy the gross racial disparities in political

power in the State. Most recently, during the 2021–

22 redistricting cycle, the Legislature refused to adopt

a congressional district map with two districts in

which Black voters have an opportunity to elect their

candidates of choice. Citizen testimony during the

public hearings (called “roadshows”) and subsequent

legislative sessions demonstrated the acute need for—

and the viability of—a second congressional district in

which Black voters would have an equal opportunity

to elect the candidates of their choice. Those pleas

went unheeded, and multiple proposed maps containing two majority-Black congressional districts were

rejected on grounds the district court found to be tenuous. Instead, the State enacted a map that continues

to dilute Black voting strength by “packing” large

Black voting-age populations into a single majority-

Black congressional district and “cracking” Black voters among the State’s five remaining districts, which

contain 91.5% of the white voting-age population.2

Even after the district court held that the enacted redistricting plan likely violated the Voting Rights Act

and gave the Legislature an opportunity to enact a

map that complied with the Act, the Legislature chose

not to do so.

The Voting Rights Act, and the continued application of Section 2 pursuant to this Court’s ruling in

Thornburg v. Gingles, 478 U.S. 30 (1986), therefore

remain critical to afford the Black citizens of Louisiana and the rest of the Nation an equal opportunity to

exercise political power. Appellants invite this Court

to replace the Gingles test with one that ignores the

continuing impact of Louisiana’s centuries’-old racist

practices and the remnants of those practices in the

present day. Accepting Appellants’ invitation would

contravene this Court’s precedent, blunt the promise

of the Voting Rights Act, and curtail the ability of voters of color to preserve their rights in Louisiana and

throughout the Nation.

ECF.43 21; Prelim. Inj. Hr’g Tr. May 9, 2022 90:10-13,

ECF.212. All citations to ECF Docket Numbers refers to Robinson et al. v. Ardoin, No. 22-cv-0211, 2022 WL 2012389 (M.D. La.

June 6, 2022)

ARGUMENT

I. Louisiana’s Persistent Efforts to Suppress

and Dilute Black Votes Illustrate the Continuing Importance of the Voting Rights Act, Including Its Application to Redistricting.

A. Louisiana Has a Long History of Disenfranchising Black Voters

Black Louisianans have long faced violence, discrimination, and disenfranchisement intended to hinder their exercise of political power. These practices

have not been abandoned, and the impact of this history persists to the present day.

Soon after the adoption of the Fourteenth and Fifteenth Amendments guaranteeing Black citizens the

right to vote, public and private “efforts to render the

guarantee meaningless” became pervasive throughout Louisiana.3 White gangs organized to use “revolutionary methods” including “stuffing ballot boxes,

committing perjury, and here and there in the state

carrying the elections by fraud and violence” with the

express goal of “preserv[ing] the ascendency of white

people.”4 The most infamous example of these efforts

to prevent Black citizens from exercising voting

power, the 1873 Colfax massacre, a white mob massacred between 60 and 250 Black residents of Colfax,

3 ECF.41-3 65 (citing Louisiana Advisory Committee for the

United States Commission on Civil Rights, “Barriers to Voting

in Louisiana” (June 2018)).

4 ECF.41-3 71 (Judge Chrisman, quoted in James G. Hollands-

worth, Portrait of a Scientific Racist: Alfred Holt Stone of Mississippi (Baton Rouge, LA: LSU, 2008), 57).

Louisiana after demonstrations following a close gubernatorial race.5

Louisiana repeatedly codified into law devices to

stifle Black participation in politics and public life.

Louisiana laws requiring railroad cars to be segregated by race were approved by this Court in its infamous decision in Plessy v. Ferguson, 163 U.S. 537

(1896). Two years after Plessy was decided, Louisiana

convened a constitutional convention with the express

purpose of “establish[ing] the supremacy of the white

race.”6 The so-called Grandfather Clause, which imposed strict restrictions on voting rights related to

registration, education, and property ownership, but

exempted citizens—virtually all of whom were

white—whose fathers or grandfathers were registered

to vote before 1867, helped accomplish this goal.7 Describing the success of the Constitutional Convention,

its president proclaimed: “Doesn’t it let the white man

vote . . . and doesn’t it stop the negro from voting, and

isn’t that what we came here for?”8 The new constitution achieved its purpose: The number of Black registered voters in Louisiana plummeted, from 130,334 in

1890 to 5,320 in 1900.9

As a 2018 U.S. Commission on Civil Rights report

explained, “[w]hen one form of voting discrimination

was identified and prohibited” in Louisiana, “another

5 ECF.41-3 70.

6 ECF. 48 10.

7 Ibid.

8 ECF.41-3 75 (emphasis added).

9 Ibid.

sprang up in its place.”10 For example, after this

Court invalidated Grandfather Clauses in Guinn v.

United States, 238 U.S. 347 (1915), Louisiana’s 1921

Constitutional Convention replaced it with the socalled “Understanding Clause,” which required a registration applicant to “‘give a reasonable interpretation’ of any clause in the Louisiana Constitution or the

Constitution of the United States,” leaving “the voting

fate of a citizen to the passing whim or impulse of an

individual registrar.” Louisiana v. United States, 380

U.S. 145, 148 (1965). Louisiana’s Understanding

Clause remained in force for more than four decades

until invalidated by this Court. Id. at 152–54.

Other flagrant restrictions on the voting rights of

Black Louisianans remained in place well into the

twentieth century. State law denied voter registration to Black Louisianans who “could not count the

number of jellybeans in a jar that was at the polling

station.”11 White officials regularly rejected Black

registrants who could not pass arcane “literacy” tests

while permitting illiterate whites to register.12

These and other discriminatory policies worked in

tandem well into the twentieth century to prevent or

significantly curtail political participation by Black

Louisianans. From 1910 until 1941, less than 1% of

eligible Black Louisianans were registered to vote.13

Between 1956 and 1962, State registration officials

10 Louisiana Advisory Committee for the United States Com-

mission on Civil Rights, “Barriers to Voting in Louisiana,” June

2018.

11 Prelim. Inj. Hr’g Tr. May 10, 2022 179:13-19, ECF.213.

12 ECF.41-3 78; ECF.48 11.

13 ECF.41-3 78.

rejected 64% of Black voter registration applications,

but accepted 98% of white applications.14 By the time

the Voting Rights Act was enacted in 1965, only onethird of eligible Black voters were registered, compared to the overwhelming majority of the white voting-age population.15

Louisiana also adopted a wide range of other devices to suppress or dilute the exercise of political

power by Black voters. From 1923 to 1941, Louisiana

authorized an all-white Democratic primary, which

denied Black voters the ability to select party candidates.16 Louisiana enacted poll taxes, registration

purges, and bans on single-shot voting (which would

permit minority voters to concentrate their vote and

elect a preferred candidate in at-large elections).17

Efforts to exclude Blacks from meaningfully participating in the political system and “preserv[e] the

ascendency of white people” were supported by Louisiana’s formal racial categorization system—a system

maintained until the end of the twentieth Century. As

Michael McClanahan, the President of the Louisiana

State Conference of the NAACP, testified at the preliminary injunction hearing in Robinson, “I remember

when I was in school . . . in northwest Louisiana and

we were taught if we had one drop of black blood—no

matter what you look like on the outside—you are

14 ECF.41-3 79.

15 ECF.48 11-12.

16 ECF.41-3 78.

17 Ibid.

See also Chisom v. Edwards, 690 F. Supp. 1524, 1534

(E.D. La. 1998), vacated sub nom. Chisom v. Roemer, 853 F.2d

1186 (5th Cir. 1988).

considered black.”18 In 1970, the Louisiana Legislature altered its racial classification system so that

1/32 “Negro blood” resulted in classification as Black,

i.e., if one great-great-great grandparent was Black, a

Louisianan was classified as Black. In 1974, the

State’s supreme court rejected a Fourteenth Amendment challenge to the law. State ex rel. Plaia v. Louisiana State Bd. of Health, 296 So. 2d 809, 811 (1974).19

B. Louisiana’s Efforts to Disenfranchise

Black Voters and Dilute Their Votes Continued After the Voting Rights Act Was

Enacted

While the Voting Rights Act “eliminated literacy

tests and other legal mechanisms that had been used

18 ECF.212 20:25-21:4.

19 Ironically, those seeking to suppress the Black vote, e.g., the

defendants in the Robinson litigation—the Secretary of State,

Attorney General, and legislative-intervenors—now take the opposite approach, urging a narrow definition of “Black” under

which Louisiana citizens who identified to the census as both

Black and another minority race or ethnicity would not be

counted as Black. ECF.173 85-87. The defendants advocate for

stripping these voters of their racial identity so as to argue that

plaintiffs could not establish, as required by Gingles, that the

State’s Black population was sufficiently large and concentrated

to enable a second majority-Black congressional district to be

drawn. In an effort to repeat history, the defendants seek to have

the identity of Black citizens determined by those seeking to rob

Blacks of their voting power. The district court refused “to turn

a blind eye to Louisiana’s long and well-documented expansive

view of ‘Blackness’ in favor of a definition on the opposite end of

the spectrum,” and rejected the defendants’ argument as inconsistent with this Court’s decision in Georgia v. Ashcroft, 539 U.S.

461, 474 (2003). ECF.173 87.

to prevent black southerners from registering,”20 “discriminatory election laws . . . continue to be a serious

problem in Louisiana.”21 Because of its historical discrimination in voting and low registration rates of

Black voters, Section 5 of the Voting Rights Act required Louisiana to preclear any voting changes with

federal authorities to determine before implementation whether that proposed change would have the

purpose or effect of racial discrimination. Louisiana

“consistently ignored its preclearance requirements

under Section 5.” Terrebonne Par. Branch NAACP v.

Jindal, 274 F. Supp. 3d 395, 423 (M.D. La. 2017), rev’d

sub nom. Fusilier v. Landry, 963 F.3d 447 (5th Cir.

2020). Moreover, from 1965 to 1989, the U.S. Attorney General issued 66 objections to over 200 proposed

changes to voting practices in Louisiana at the State

and local levels. See also Terrebonne Par. Branch

NAACP v. Jindal, 274 F. Supp. 3d at 440’. From 1990

until this Court’s decision in Shelby County v. Holder,

570 U.S. 529 (2013), which resulted in Louisiana no

longer being subject to preclearance requirement, an

additional 79 objection letters were issued, under both

Republican and Democratic administrations.

As just one example, in July 1968, after marked

increases in Black voter registration, Louisiana

passed new laws authorizing at-large elections for

parish councils and parish school boards.22 In its objection letter, the Justice Department recognized that

at-large elections undermine the ability of minority

groups to elect candidates of their choice and that the

20 ECF.41-3 82-83.

21 ECF.41-3 82.

22 ECF.48 12.

authorization of at-large voting was motivated by the

increasing enfranchisement of Black citizens.23 The

Department objected on similar grounds to Louisiana’s attempt in 1969 to implement at-large elections

statewide, finding that this change would “have the

effect of discriminating against Negro voters.”24

Nearly two decades later, Black voters in Orleans Parish filed a challenge under the Voting Rights Act to

the at-large election system for the Louisiana supreme court in four parishes.25 In 1992, those cases

settled with the creation of what remains the only majority-Black state supreme court district and the only

district to ever elect a Black supreme court justice.26

State and local redistricting plans that manipulate

electoral district boundaries by “cracking” (dispersing

voters across many districts) or “packing” (concentrating voters in one district) reflect more recent discriminatory practices to dilute the power of Black voters in

Louisiana. After the 1981 redistricting cycle, a federal

court held that Louisiana’s congressional district

plan—which included no majority-Black districts—violated Section 2 of the Voting Rights Act, leading to

the creation of what remains the State’s single majority-Black congressional district. See Major v. Treen,

574 F. Supp. 325, 339–41 (E.D. La. 1983). Ten years

later, the Justice Department objected to Louisiana’s

state legislative redistricting plan, stating that “[i]n

23 Ibid.

24 Ibid. (citing Adegbile, “Voting Rights in Louisiana,” pp. 440-

441; Jerris Leonard, Assistant Attorney General to Jack P. P.

Gremillion, Attorney General of Louisiana, 26 June 1969).

25 See, e.g., Chisom v. Edwards, 659 F. Supp. 183 (E.D. La.

1987).

26 ECF.41-3 82.

seven areas . . . the proposed configuration of district

boundary lines appears to minimize black voting

strength, given the particular demography of those areas.”27

II. Even Today, Black Voters in Louisiana Cannot Participate in the Political Process on an

Equal Basis with White Voters.

The Black population in Louisiana continues to

face substantial obstacles that prevent them from

fully participating in the political process in the State,

including unequal access to polling locations and inequitable felony disenfranchisement rules, as just two

examples. The impact of these obstacles is magnified

by a persistent stark pattern of racially polarized voting throughout the State. As a result, Black voters

are routinely unable to elect their candidates of choice

in majority-white districts, and Black citizens are

grossly underrepresented in elected office.

1. Black Louisianans lack equal access to polling

places. The state provides areas with a higher proportion of Black residents fewer polling locations per

1,000 voters than areas with fewer Black residents.28

The four most populated parishes—Baton Rouge, Jefferson, Orleans, and Caddo—contain one-third of the

State’s population and 45% of its minority population,

but only 14% of its polling places.29 Densely populated

parishes with disproportionately large Black populations also have fewer locations for early voting. For

example, as of June 2018, Caddo Parish, the State’s

27 ECF.169-224 2.

28 ECF.48 15-16.

29 Ibid.

fourth most populated parish, with a Black population

of over 50%, “has only one [early-voting] location for

260,000 residents.”30 In short, Louisiana provides its

Black voters with fewer options to participate in democracy makes it more difficult for them to cast their

votes than their white counterparts.

2. Louisiana’s felony disenfranchisement laws

place a disproportionate burden on the voting rights

of Black Louisianans. The Louisiana constitution permits suspension of the right to vote for persons “under

an order of imprisonment for conviction of a felony.”31

State law also extends disenfranchisement to individuals under parole or probation.32 Louisiana’s incarceration rate is the highest in the country,33 and the

State’s prison population is disproportionately Black.

Approximately two-thirds of the State’s prison population is Black, twice the level of the State’s Black population.34

Black

Louisianans also are

30 ECF.48 16 (citing Louisiana Advisory Committee of the

United States Commission on Civil Rights, “Barriers to Voting

in Louisiana,” June 2018, p. 12,

https://www.usccr.gov/pubs/2018/08-20-LA-Voting-Barriers.pdf).

31 La. Const. 1974, Art. 1, § 10.

32 ECF.48 17. Today, the law in Louisiana makes individuals

on parole or probation eligible to vote after a five-year period.

Ibid. But even then, there is no automatic notification of eligibility, and those seeking reinstatement have the burden to

demonstrate eligibility.

33 ECF.41-3 128.

34 Ibid.

disproportionately on probation, parole, and under

community supervision after they are released from

prison.35

Felony disenfranchisement has a disproportionately negative impact on the voting power of Louisiana’s Black citizens. In 2016, over 100,000 Louisianans were not permitted to vote because of felony convictions; 63% were Black.36 This amounts to a staggering 6% of the entire adult Black population in Louisiana.37 An estimated 4.41% of the Black voting age

population in Louisiana cannot vote due to a felony

conviction compared with only 2.23% of the State’s total population.38

3. State prosecutorial practices and the laws governing jury convictions also result in disproportionate

convictions and disenfranchisement of Black citizens.

A recent study of criminal jury trials in Caddo Parish

found that state prosecutors request peremptory

strikes against Black potential jurors at three times

the rate of non-Black potential jurors. The racial composition of the resulting juries has been shown to be

directly related to the conviction rate for Black defendants: “[N]ot one defendant was acquitted in a trial

where there were two or fewer black jurors.”39 By

35 ECF.48 20 (citing Ursula Noye, “Black Strike: A Study of the

Racially Disparate Use of Peremptory Challenges by the Caddo

Parish District Attorney’s Office,” Reprieve Australia, August

2015,

pp.

7-11,

https://blackstrikes.com/resources/Blackstrikes_Caddo_Parish_August_2015.pdf).

36 ECF.48 17.

37 Ibid.

38 ECF.41-3 129.

39 ECF.48 20.

contrast, “[t]he acquittal rate in the 49 trials where

the number of black jurors was three or more, was

12%.”40

Until 2018, Louisiana further facilitated disproportionate convictions and disenfranchisement of

Black citizens by permitting split-jury verdicts—

where a nonunanimous jury could secure a criminal

conviction. This practice that was in existence until

just four years ago was a vestige of Louisiana’s Jim

Crow laws. It had the effect of frustrating or silencing

Black juror votes by allowing groups of white jurors to

regularly outvote Black jurors in favor of conviction.

The unsurprising result was a starkly higher conviction rate for Black defendants versus white defendants.41

4. As the district court in Robinson found based

on substantially undisputed evidence, voting in Louisiana is characterized by extreme racial polarization.42 One expert, whose testimony the district court

credited, found that, in the fifteen statewide elections

she studied, an average of 83.8% of Black voters supported the Black preferred candidate, while an average of only 11.7% of white voters supported that candidate.43 Thus, as the district court concluded, white

voters in Louisiana voting as a bloc are usually able

40 Ibid.

41 Ibid. Louisiana’s 1973 Constitution reaffirmed split-jury

verdicts, and the practice continued until a state constitutional

amendment passed in 2018 to require unanimous jury verdicts,

and this Court held that split-jury verdicts in state criminal proceedings were unconstitutional. See Ramos v. Louisiana, 140 S.

Ct. 1390 (2020).

42 ECF.173 119-120.

43 ECF.173 57, 123.

to defeat Black-preferred candidates in statewide

elections and in elections in majority-white districts.44

These outcomes are not simply a reflection of partisan

polarization. Rather, as the district court found,

Black voters support candidates “who are aligned on

issues connected to race” and scholarly studies show

that “the racial attitudes of the parties . . . drive[] support for a particular party.”45

5. Black voters continue to be dramatically underrepresented in elected office. Since Reconstruction, no Black candidate ever has been elected to any

Statewide office.46 Nor has any Black person been

elected to Congress from outside a majority-Black congressional district.47 Similarly, today, every Black

representative in the State legislature was elected

from majority-Black districts.48

Black Louisianans are also underrepresented in

the state judiciary. Until a 1992 consent decree creating a Black-majority district, no Black Louisianan

had ever served on the Louisiana supreme court.49 To

date, the supreme court has never had more than one

sitting Black justice, and each time, the sole Black

44 ECF.173 123-127.

45 ECF.173 129.

46 ECF.48 47-48.

47 ECF.48 48.

48 ECF.48 48-49.

49 “A Brief History of the Louisiana Supreme Court,” Louisiana

Supreme Court, https://www.lasc.org/Bicentennial/lasc_history.html (accessed July 17, 2022).

justice has always been elected from the Black-majority district.50

III. Louisiana Elected Officials Are Not Responsive to the Needs of Black Louisianans.

Louisiana’s discrimination against and disenfranchisement of Black voters, and the lack of representation of Black Louisianans in state and federal government, have contributed to the persistent neglect of the

needs of Black Louisianans. As amicus Dr. Dorothy

Nairne, a small business owner living in Assumption

Parish, explained:

I have contacted my Congressman on

issues I care deeply about. But I do not

believe that my Congressman advocates for my community’s needs. As is,

I have yet to see my Congressman campaign in my community.51

Similarly, amicus Clee Lowe, a pastor residing in

Baton Rouge, stated:

My congressional representative . . .

has not been responsive to the concerns

in the Black community in our district.

He has not visited Black institutions,

such as churches and businesses. I feel

50 ECF.41-3 134.

51 ECF.41-3 187.

that he does not respond to our community’s concerns.52

The lack of responsiveness on the part of Louisiana’s elected officials to the interests of Black voters

is reflected in the State’s longstanding failure to address gross racial disparities in policing and

healthcare, to take just two examples.53

1. Policing. Black communities in Louisiana face

disparate and disproportionately violent treatment by

state and local police, and the criminal justice system

more generally. Black Louisianans are more likely to

be arrested and convicted.54 For example, a 2018

study demonstrated that although “federal survey

data show that white and black people use marijuana

at similar rates,” in Louisiana, “in 2016, black people

were 2.9 times more likely than white people to be arrested for marijuana possession.” 55

Black citizens repeatedly have been victims of excessive force by police in Louisiana. In 2019, Ronald

Greene was beaten to death in police custody. Multiple troopers later came forward to testify about an

ECF.41-3 202; see also ECF.41-3 197; ECF.41-3 229;

ECF.41-4 192.

53 A lack of responsiveness on the part of Louisiana’s elected

officials has resulted in and exacerbated disparities in numerous

other areas as well, including housing, infrastructure, and education. See ECF.41-3 134.

54 ECF.48 19.

55 Id. at 18 (citing Southern Poverty Law Center, Racial Pro-

filing in Louisiana: Unconstitutional and Counterproductive at 8

(Sept. 18, 2018), https://www.splcenter.org/20180918/racial-profiling-louisiana-unconstitutional-andcounterproductive).

internal cover-up of the incident by the State Police.56

The 2015 killing of Alton Sterling in Baton Rouge,

which drew national attention, resulted in no charges

against the officer responsible.57 Press and governmental investigations revealed a pattern of violence

and efforts at concealment, including officers intentionally deactivating body cameras.58 Most of those

who were beaten by police were Black, and the State

Police’s own tally confirmed that 67% of its uses of

force targeted Black people.59

State and local police departments consistently

have been found to engage in discrimination and civil

rights violations. For nearly forty years until 2019,

the Baton Rouge police and fire departments were

subject to a consent decree aimed at decreasing discrimination against Black and female applicants.60

56 Nick Valencia, et al., Nearly 3 Years After Ronald Greene’s

Death, Family Members And Some Lawmakers Say Police Have

Avoided

Accountability,

CNN

(Apr.

15,

2022),

https://www.cnn.com/2022/04/15/us/ronald-greene-death-accountability/index.html.

57 Family of Alton Sterling Has Accepted $4.5 Million For His

Killing

Police,

NPR

(June

14,

2021),

https://www.npr.org/2021/06/14/1006216612/family-of-altonsterling-has-accepted-4-5-million-for-his-killing-by-police.

58 Jim Mustian and Jake Bleiberg, Beatings, Buried Videos A

Pattern At Louisiana State Police, AP News (Sep. 9, 2021),

https://apnews.com/article/police-beatings-louisiana-video91168d2848b10df739d73cc35b0c02f8; 3 Louisiana State Troopers Are Charged In The Beating Of A Black Motorist, NPR (May

12, 2022), https://www.npr.org/2022/05/12/1098564547/louisiana-troopers-charged-beating-black-man.

59 Mustian and Bleiberg, supra n.59.

60 Terry L. Jones, After 39 Years, Baton Rouge Released From

Federal Consent Decree On Racial, Gender Hiring Disparities,

The New Orleans Police Department since 2012 has

operated under a consent decree intended to address

a longstanding pattern of civil rights violations.61

Just last month, the United States Justice Department announced an investigation into the Louisiana

State Police’s use of excessive force and discriminatory policing practices.62 These actions to expose discriminatory policing are the tip of the iceberg. The

American Civil Liberties Union alone has sued 25 police departments across 15 parishes in recent years,

with allegations ranging from excessive use of force

and assault to wrongful death.63

Louisianans of all races are well aware of the pervasive nature of police use of excessive force against

the State’s Black residents. As a speaker at the New

Orleans roadshow stated:

The Advocate, June 4, 2019,

https://www.theadvocate.com/baton_rouge/news/crime_police/article_d014e42e-8704-11e9-a75edbb2d8387744.html#:~:text=The%20consent%20decree%20prohibited%20the,black%20police%20and%20fire%20recruits.

61 New Orleans Police Department Consent Decree, City of New

Orleans, https://www.nola.gov/nopd/nopd-consent-decree/ (last

accessed July 16, 2022).

62 Justice Department Announces Investigation of the Louisi-

ana State Police, U.S. Dep’t of Justice (June 9, 2022),

https://www.justice.gov/opa/pr/justice-department-announcesinvestigation-louisiana-state-police.

63 ACLU’s Justice Lab Campaign Sues 25 Louisiana Police De-

partments For Racist Misconduct, ACLU Louisiana (Dec. 21,

2021),

https://www.laaclu.org/en/press-releases/aclus-justicelab-campaign-sues-25-louisiana-police-departments-racist-misconduct.

My hardest lesson came . . . listening to

an African American friend tell [ ] me

she’s terrified her son will be killed by

police if he doesn’t get treatment for his

mental health condition because he

sometimes stands on the corner and

paces.64

Louisiana’s elected officials have repeatedly rejected legislation supported by Black communities

that would address racial disparities in policing.65 For

example, in 2020, every Louisiana congressperson except for the one representing the only majority-Black

district voted against the George Floyd Justice in Policing Act, which included a host of reforms aimed at

improving policing practices.66 In 2021, the state senate judiciary committee rejected a bill to limit police

officers’ broad qualified immunity from civil lawsuits;

the four white committee members voted against the

bill while the two black committee members voted for

it.67

64 New Orleans Roadshow Tr. 57:20-58:4, ECF.169-185.

65 See, e.g., SW La. group urging support for George Floyd Justice in Policing Act, American Press (Apr. 26, 2021),

https://www.americanpress.com/2021/04/26/sw-la-group-urgingsupport-for-george-floyd-justice-in-policing-act/.

66 Allison Stevens and Jarvis Deberry, House Democrats and 3

Republicans pass George Floyd Justice in Policing Act, Louisiana

Illuminator

(June

27,

2020),

https://lailluminator.com/2020/06/27/house-democrats-and-3-republicans-passgeorge-floyd-justice-in-policing-act-with/.

67 Melinda DeSlatte, Louisiana Senators Refuse to Limit Police

Officer Immunity, AP News (June 1, 2021), https://apnews.com/article/louisiana-police-government-and-politics17e06976acab34fff0f91366348a5a48.

2. Health. Black Louisianans have materially

worse health outcomes than white Louisianans. As

shown in the chart below, Black Louisianans die from

diabetes, cardiovascular disease, and invasive cancers

at higher rates than white Louisianans.68

These health disparities translate into dramatic

differences in mortality. On average, white men live

over seven years longer than Black men in the State,

while white women live over five years longer than

Black women.69 Black women are four times more

likely than white women to die from complications

arising from pregnancy.70 Infant and child mortality

68ECF.41-3 124 (citing statistics from the Center for Disease

Control and Prevention).

69 Id. at 125.

70 Addressing Disparities in Maternal and Child Health Out-

comes for African Americans, Louisiana Department of Health,

at 2 (Sept. 2019), https://ldh.la.gov/assets/docs/LegisReports/SR240HR294RS201992019.pdf.

rates among Black children are approximately double

those of white children.71

These racial disparities in health and mortality

are explained, in part, by disparities in access to

healthcare. Black Louisianans are more likely than

white Louisianans to be uninsured, and more likely to

forego seeing a doctor because of cost.72

Even when they can afford care, Black Louisianans often face a lack of access to healthcare clinics in

their neighborhoods. As stated by Vance Alexander

Price at the Monroe redistricting roadshow:

“We don’t have any healthcare clinics,

after care clinics, or surgical clinics,

and . . . our senior citizens [ ] don’t have

easily accessible transportation.”73

Compared with white neighborhoods, parts of the

State with high concentrations of Black residents

have had access to fewer vaccination sites for COVID19.74 As Mr. McClanahan testified at the preliminary

injunction hearing in Robinson:

We realized when COVID first came on

there was an inordinate number of

71 ECF.41-3 125.

72 Id. (citing a 2020 Kaiser Family Foundation survey).

73 Monroe Roadshow Tr. 88:11-15, ECF.169-178.

74 Sean McMinn et al., Across The South, COVID-19 Vaccine

Sites Missing From Black And Hispanic Neighborhoods, NPR

(Feb. 5, 2021),

https://www.npr.org/2021/02/05/962946721/across-the-southcovid-19-vaccine-sites-missing-from-black-and-hispanic-neighbor.

Blacks dying. We said, ‘Everybody

catches COVID, looks like. Why are so

many of us dying?’ Because it was

found out access to quality healthcare

was limited in the Black communities.75

Louisiana’s infamous “Cancer Alley” illustrates

the State’s disregard for the health of its Black citizens. That area, a stretch of heavily Black residential

neighborhoods between New Orleans and Baton

Rouge, is home to a large number of chemical plants

and refineries.76 Black residents in these areas, who

must live with the pollutants from those facilities, suffer from increased rates of cancer, asthma, and other

illnesses.77 For example, in St. James Parish, cancer

risks in the Black-populated areas of the parish are

approximately 1.7 times higher than those of white

areas.78 As Dr. Nairne testified at the preliminary injunction hearing:

Looking at [] my neighbors across the

street, next to me, even my own mother

who had a tumor the size of a soccer

ball in her belly. And so, you know, just

cancer is everywhere. And, you know,

75 ECF.162-1 29:15-19.

76 ECF.41-3 126.

77 Id.

78 Catherine Coleman Flowers, Hurricane Ida shows the one-

two punch of poverty and climate change, Nature (Sept. 21, 2021),

https://www.nature.com/articles/d41586-021-02520-8.

if it’s in my own house, then is it in me

too?79

In part because of the lack of fair and equal representation for Black communities, Louisiana’s State

government and congressional delegation have done

little to address these persistent health disparities.

For instance, the Build Back Better Act included provisions to improve maternal health and provide

health insurance coverage to tens of thousands of Louisianans.80 All but one Louisiana congressperson (the

representative of its sole majority-Black district)

voted against the bill.81

IV.The 2021–22 Redistricting Cycle in Louisiana

Confirms the Continued Necessity of the Voting Rights Act.

The 2021–22 redistricting cycle in Louisiana exemplifies the State’s lack of responsiveness to its Black

citizens and the crucial need for a meaningful cause of

action under the Voting Rights Act to remedy redistricting plans that fail to provide minority voters with

an equitable opportunity to elect their candidates of

choice. At each step of the legislative redistricting

79 ECF.213 68:22-69:1.

80 The Build Back Better Framework Will Deliver for Louisi-

ana, The White House (accessed July 12, 2022),

https://www.whitehouse.gov/wp-content/uploads/2021/10/Louisiana_BBB-State-Fact-Sheet.pdf.

81 Mark Ballard, Louisiana Republicans Reject Infrastructure

Bill Negotiated By GOP Senator Bill Cassidy that Passed Congress, The Advocate, Nov. 6, 2021, https://www.theadvocate.com/baton_rouge/news/politics/article_d663dab8-3f28-11ecbd87-bb48a3b7c437.html.

process, Black Louisianans tried to persuade the Legislature to enact a congressional map with two districts in which Black voters would have a meaningful

opportunity—despite extreme racially polarized voting—to elect their candidates of choice. Testimony by

Black Louisianans spanned the recent and continued

impacts of Louisiana’s racist history, the disenfranchisement Black Louisianans experience, and the

deep, pervasive inequalities Black Louisianans face

across numerous metrics. And at every turn, state

legislators resisted these calls. The Legislature’s flagrant disregard for the pleas of Black Louisianans for

fair representation reinforces the need for an effective

judicial remedy under Section 2 of the Voting Rights

Act to safeguard the right of Black Louisianans to participate equally in the political process.

1. In advance of the congressional redistricting

session, Louisiana’s Joint House and Senate Governmental Affairs Committees conducted a series of public hearings or “roadshows,” across the State, to solicit

public comment and testimony about redistricting.

Citizens participating in the roadshows were assured

from the outset that their input was “absolutely vital

to this process,”82 that their input “matter[ed],” and

that legislators would “use it [to] begin the process of

drafting redistricting plans.”83

Throughout the roadshow hearings, thousands of

speakers from across the State provided extensive testimony about the continued disparities experienced by

Black Louisianans and the need for greater political

representation to remedy the State’s longstanding

82 ECF.173 4; ECF.169-178 3:15-16.

83 ECF.169-178 3:16-19.

history of racial discrimination.84 At the Baton Rouge

roadshow, for instance, Frankie Robertson, founder of

a maternal health advocacy firm, testified that maternal health disparities disproportionately affect Black

Louisianans and the importance of fair redistricting

to begin to address those disparities. She stated:

[T]here is genuine interest about why

black women are having disproportionate health outcomes in our state . . . It’s

the systems and the policies and the infrastructure that’s in place that are creating inequitable outcomes that are

bearing on the shoulders of black

women who then are of child bearing

age to give birth. . . What you are about

to embark upon and what you’ve already began to embark upon with

drawing equitable maps across our

state. Those types of actions impact the

overall lives of the constituency.85

Other witnesses testified about disparate access to

broadband internet among Black Louisianans compared to white Louisianans, and how this disparity reflects “that one community has a louder voice than

others when it comes to getting the resources we

need.”86

Witnesses also urged the Legislature to consider

the State’s long history of racial discrimination and

voter suppression. One witness testified that “for far

84 ECF.162-2 248:2-18.

85 Baton Rouge Roadshow Tr. 105:10-24, ECF.169-182.

86 Shreveport Roadshow Tr. at 83:14-17, ECF.169-179.

too long, minorities have been deprived of a fair opportunity to participate in developing the laws and

policies that affect them . . . Let’s not continue [this]

disenfranchisement . . . It’s time to change. The only

fair maps will create two majority-minority [congressional] districts.”87 Another witness testified about

the ways in which “communities of color in particular

suffered under Jim Crow rules, corruption, hatred,

discrimination, and racism.” As a result, “over the

years, [these communities] have struggled to receive

basic public services from their government. Their

voices did not have the power to be properly represented” and “basic services” like “access to public water [and] dependable electricity” were “denied to

them.”88 That witness urged the Legislature to adopt

a congressional map with two majority-Black districts

“so that the specific interest of our communities of

color are heard and we, too, have access to the laws

and privileges as citizens” of Louisiana.89

In all, nearly two-thirds of the written comments

that expressed an opinion on the topic supported

drawing a second majority-Black district.90 A coalition of advocates and social justice organizations—including several of the plaintiffs in Robinson—submitted to the Committees seven congressional maps with

two majority-Black districts illustrating that the creation of such a map was both feasible and fair.91

87 ECF.169-185 93:1-4, 94:1-44, .

88 Thibodaux Roadshow Tr. 47:3-11, ECF.169-186.

89 Id. at 48:1-4.

90 ECF.41-3 136.

91 Oct. 8, 2021 Submission from NAACP, Appendix 1, ECF.

169-23.

This public testimony went largely unheeded.

Ashley Shelton, the President of amicus Power Coalition for Equity and Justice, testified that she witnessed legislators “doodling, not looking up” while

“people [were] telling their story of [] generations” of

work “to ensure that they had the right to vote . . .

folks [were] looking down and not paying attention.”92

2. Following the roadshows, the Legislature convened on February 1, 2022 to begin the redistricting

process, and on February 18, 2022, adopted a congressional plan with one single majority-Black district and

five districts with large white voting-age majorities.93

Numerous maps with two majority-Black congressional districts—fourteen in total—were introduced

during the legislative session.94 Not one of those bills

made it out of committee for an open, transparent, and

responsive debate on the House or Senate floors.95

Bills with only one majority-Black district, by contrast, were rushed through committee with insufficient time for debate and public comment.96

Louisiana citizens continued to urge the Legislature to adopt a congressional map with two districts

92 ECF.213 198:2-9.

93 ECF.173 4.

94 Senate Bill (“S.B.”) 2, ECF.169-52; S.B. 4, ECF.169-53; S.B.

6, ECF.169-54; S.B. 9, ECF.169-55; SB 10, ECF.169-56; S.B. 11,

ECF.169-57; S.B. 18, ECF.169-60; House Bill (“H.B.”) 4,

ECF.169-63; H.B. 5 ECF.169-64; H.B. 7, ECF.169-65; H.B. 8,

ECF.169-66; H.B. 9, ECF.169-67; H.B. 12, ECF.169-68; H.B. 19,

ECF.169-69.

95 See generally, 2022 House and Senate First Special Legisla-

tive Session Hr’g Trs. ECF.192-218.

96 See, e.g., Feb. 4, 2022 HGA Committee Hr’g Tr. 30:4-32:12,

ECF.162-196.

in which Black Louisianans would be able to elect

their candidates of choice. Betty Ward Cooper testified at the Senate Governmental Affairs hearing on

February 2 that there “should be another minority

district” because Black voices in Louisiana were “not

being heard.”97 Amicus Davante Lewis appealed to

legislators to afford Black Louisianans an equal opportunity to participate in the political process by enacting a map with a second majority-Black congressional district. Mr. Lewis testified at the House Governmental Affairs hearing:

I’ve been to almost every committee

hearing, and I constantly hear a cry

from people, let my voice be heard,

equal representation . . . I’ve heard

Black people say, give me an opportunity and they haven’t been heard.

And so, all I’m asking is that this committee gives Black people . . . the same

privilege that we give [white Louisianans]. . . I want to know why his voice is

more powerful than mine. Why do we

value the interest of that community

more than we value the interest of

Black and brown people of this state?98

As Mr. McClanahan testified at the preliminary

injunction hearing, the map enacted by the Legislature was “not responsive to the pleas of Black Louisianans—it did not reflect the data, the testimony of the

97 Feb. 2, 2022 SGA Committee Hr’g Tr. 66:13-16, ECF.169-

192.

98 ECF.169-196 137:5-24.

public, or the issues raised in the legislative hearings.”99 Legislators disregarded the overwhelming

support for a second majority-Black district and instead enacted a map that many citizens believed did

not provide Black Louisianans with an equal opportunity to be heard and participate in the political process.

3. Throughout the legislative process, legislators

offered shifting and tenuous justifications for enacting

a map with only one majority-Black district.100

Months before the roadshows began, the Legislature

adopted Joint Rule 21, which outlined the traditional

redistricting principles that the Legislature sought to

prioritize. Joint Rule 21 included, among other criteria, equal population, respect for political subdivisions, and respect for communities of interest.101 Legislators consistently rejected maps with two majorityBlack districts even where the proposed maps adhered more closely to Joint Rule 21 than the enacted

map. The Robinson district court found that the reasons proffered by the Legislature in favor of the enacted plan “lacked empirical support, were vague or

contradictory, or were based on misunderstandings.”102

For instance, several members cited population

equality as one of their foremost priorities for the enacted map.103 Yet, when one State senator presented

a congressional plan with lower population deviation

99 ECF.173 74; see also ECF.212 22:20-23:4.

100 ECF.173 139-140.

101 Joint Rule 21, ECF.169-219.

102 ECF.173 139 (citing ECF.41-3 138).

103 ECF. 173 139.

and a second majority-Black district, a legislative

leader retreated from this justification, claiming—

without evidence—that she did not believe the difference in population deviation between the two maps

was “significant in terms of the law.”104 Likewise, legislators supporting the enacted plan also purported to

prioritize keeping voting precincts and parishes

whole.105 But they offered no rationale for refusing to

consider maps with two majority-Black districts, no

split precincts, and fewer split parishes.106

The State’s justifications for its enacted plan continued to shift throughout the legislative process and

in the Robinson litigation.107 During the legislative

process and the court proceedings, the defendants

sought to justify the enacted plan on the ground that

it did the “best job” of “preserving the cores of our current district[s].”108 But the legislature’s own stated

redistricting policies, adopted as Joint Rule 21, expressly exclude retention of existing district cores as a

criterion for congressional redistricting.

3. After the Legislature submitted to the Governor redistricting bills containing a single majorityBlack district, the Governor vetoed them with a message that they violated Section 2 of the Voting Rights

Act.109 When the Legislature voted to override the

104 ECF.173 139; ECF.41-3 138; Feb. 8, 2022 Senate Floor De-

bate Tr. 103:23-24, ECF.169-211.

105 ECF.169-211 89:10-11.

106 ECF.41-3 142.

107 ECF.173.

108 ECF.169-211 129:5-6.

109 Veto Letter From Governor Edwards to Rep. Schexnayder,

ECF.169-222.

Governor’s veto, legislators high-fived and cheered to

celebrate the override—a disheartening display for

many Black Louisianans who faithfully engaged in

the redistricting process to advocate for greater political representation.110

4. Immediately after the enacted congressional redistricting plan became law, amici and other Black

Louisiana voters commenced litigation seeking judicial relief under Section 2 of the Voting Rights Act.

After an extensive briefing and a five-day evidentiary

hearing, the U.S. District Court for the Middle District of Louisiana issued a 152-page opinion concluding, under the standards established in Gingles, that

the enacted plan diluted the votes of Black Louisianans in violation of Section 2. The court preliminarily

enjoined the use of the enacted map in any future elections, including the congressional elections in November 2022, and gave the Legislature the opportunity to

draw a map that complies with the Voting Rights Act.

5. The Governor called an emergency special session for the Legislature to comply with the district

court’s order, but the Legislature continued to delay

and obstruct. Despite assurances to the district court

that “the Legislature intend[ed] to make a good-faith

effort. . . to enact a plan that satisfies the principles

the Court articulated,”111 the Legislature took no

meaningful steps to propose or consider a new map.

Rather than take any steps to engage in a “good faith

effort,” the Legislature instead requested that the district court extend the time allotted to pass a compliant

map. The district court, after hearing testimony from

110 ECF.212 26:3-10; ECF.213 199:5-14.

111 Legislative Intervenors’ Mot. For Extension of Time to En-

act Plan 2, ECF.188-1.

the leaders of each house of the Legislature, denied

the request, finding that in multiple instances the

Legislature had previously passed laws, including redistricting plans, in substantially the same time the

district court allotted. After the denial of the extension, the State Senate adjourned its special session

without enacting a map, and a full three days early.

Similarly, the State House devoted only 90 minutes to

discussion of the remedial maps on the first day of the

special session.112 On the final day of the session, a

House committee rejected three bills that would have

added a second majority-Black district, with a majority of the Legislature “display[ing] a flippant attitude

toward the court’s order.”113 Most Republican members of the House left the session early.114 Representative Edmond Jordan, flanked by fellow members

of the Louisiana Legislative Black Caucus, spoke to a

largely empty room about his frustration over the lack

of progress during the special session. The State

House online streaming feed inexplicably cut out for

the duration of his speech. It was restored just before

the House adjourned without a map.115

112 Hr’g Tr. for Mot. For Extension of Time 12:13-18, ECF.208.

113 Will Sentell, Despite a judge’s order, lawmakers end session

without adding 2nd majority-Black district, The Advocate (June

18, 2022), https://www.theadvocate.com/baton_rouge/news/politics/legislature/article_db98946e-eeab-11ec-a31da73215f1f9f2.html.

114 Greg Larose, “Louisiana’s second redistricting session re-

veals the emperor has no clothes,” Louisiana Illuminator (June

20, 2022), https://lailluminator.com/2022/06/20/louisianas-second-redistricting-session-reveals-the-emperor-has-no-clothes/.

115 Id.

6. The Legislature’s disregard of the testimony of

Black citizens throughout the redistricting process is

a continuation of a long and unfortunate history of

persistent efforts to suppress and dilute the power of

Black voters in Louisiana, and pervasive indifference

to the basic needs of Black citizens in the State. This

stark history of discrimination, and its contemporary

manifestations, illustrate the need for a Section 2

framework, such as the one outlined in Gingles, that

accounts for the myriad ways in which states such as

Louisiana historically have suppressed, and continue

to suppress, the political participation of Black citizens.

CONCLUSION

The judgment of the district court should be affirmed.

Respectfully submitted.