Response to application from respondent Galmon — Kyle Ardoin, Secretary of State of Louisiana, et al., Applicants v. Press Robinson, et al.
Supreme Court briefJun 23, 2022
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No. 21A814
IN THE SUPREME COURT OF THE UNITED STATES
KYLE ARDOIN, IN HIS OFFICIAL CAPACITY AS THE LOUISIANA
SECRETARY OF S TATE, et al.,
Applicants,
v.
PRESS ROBINSON et al.,
Respondents.
GALMON RESPONDENTS’ RESPONSE IN OPPOSITION
TO EMERGENCY APPLICATION FOR
ADMINISTRATIVE STAY, STAY PENDING APPEAL,
AND PETITION FOR WRIT OF CERTIORARI BEFORE
JUDGMENT
Darrel J. Papillion
Renee C. Crasto
Jennifer Wise Moroux
WALTERS, PAPILLION, THOMAS,
CULLENS, LLC
12345 Perkins Road,
Building One
Baton Rouge, Louisiana 70810
(225) 236-3636
Abha Khanna
Counsel of Record
Jonathan P. Hawley
ELIAS LAW GROUP LLP
1700 Seventh Avenue,
Suite 2100
Seattle, Washington 98101
(206) 656-0177
AKhanna@elias.law
Lalitha D. Madduri
Olivia N. Sedwick
Jacob D. Shelly
ELIAS LAW GROUP LLP
10 G Street NE,
Suite 600
Washington, D.C. 20002
(202) 968-4490
Counsel for the Galmon Respondents
TABLE OF CONTENTS
TABLE OF AUTHORITIES ......................................................................................... iii
INTRODUCTION .......................................................................................................... 1
BACKGROUND AND PROCEDURAL HISTORY....................................................... 2
I.
Louisiana’s new congressional map contains a single Black-opportunity
district. ...................................................................................................... 2
II.
The district court concluded that the plaintiffs were likely to succeed
on their Section 2 claims and preliminarily enjoined HB 1. .................. 3
III.
The Fifth Circuit denied the defendants’ motions for a stay.................. 5
IV.
The district court declined to extend the remedial deadline after
hearing testimony from legislative leaders. ............................................ 6
REASONS TO DENY THE APPLICATION ................................................................ 7
I.
The defendants fail to make a strong showing of likelihood of success
in this appeal. ........................................................................................... 8
A.
The courts below correctly analyzed white bloc voting and the
third Gingles precondition........................................................... 10
1.
The defendants mischaracterize the relevance of white
crossover voting................................................................. 11
2.
The defendants mischaracterize the meaning of “legally
significant racially polarized voting.” .............................. 12
3.
Neither Covington nor Harris supports the defendants’
misunderstanding of the third Gingles precondition. ..... 14
4.
The evidentiary record indicates—and the district court
found—that polarized voting is attributable to race. ...... 15
B.
The courts below correctly rejected the defendants’ charges of
racial gerrymandering. ................................................................ 17
C.
The courts below correctly analyzed numerosity, compactness,
and the first Gingles precondition. ............................................. 22
1.
Any-part BVAP is the proper metric in this case. ........... 23
i
D.
II.
2.
The illustrative maps satisfy the numerosity requirement.
........................................................................................... 24
3.
The illustrative districts are sufficiently compact. .......... 25
a.
The illustrative districts satisfy traditional
redistricting principles. .......................................... 25
b.
The defendants’ experts did not meaningfully
contest the compactness of the illustrative districts.
................................................................................. 29
The courts below applied the correct legal standard. ................ 31
The balance of the equities weighs conclusively against a stay. .......... 33
A.
B.
The Purcell principle does not require a stay. ............................ 33
1.
The defendants’ position is inconsistent with their prior
representations. ................................................................ 33
2.
The preliminary injunction was not issued in the period
close to an election. ........................................................... 35
3.
A new congressional map can be feasibly implemented.. 37
This Court’s stay in Merrill does not warrant a stay here. ....... 40
CONCLUSION............................................................................................................. 40
ii
TABLE OF AUTHORITIES
Page(s)
Cases
Alabama Legislative Black Caucus v. Alabama,
575 U.S. 254 (2015) ................................................................................................ 21
Alpha Phi Alpha Fraternity Inc. v. Raffensperger,
Nos. 1:21-CV-5337-SCJ, 1:21-CV-5339-SCJ, 1:22-CV-122-SCJ, 2022
WL 633312 (N.D. Ga. Feb. 28, 2022) ..................................................................... 16
Anderson v. City of Bessemer,
470 U.S. 564 (1985) .................................................................................................. 9
Bartlett v. Strickland,
556 U.S. 1 (2009) ........................................................................................ 11, 14, 24
Bethune-Hill v. Virginia State Board of Elections,
137 S. Ct. 788 (2017) .............................................................................................. 21
Bush v. Vera,
517 U.S. 952 (1996) ................................................................................................ 26
Clark v. Calhoun County,
88 F.3d 1393 (5th Cir. 1996) .................................................................................. 21
Cooper v. Harris,
137 S. Ct. 1455 (2017) ........................................................................................ 9, 14
Cooter & Gell v. Hartmarx Corp.,
496 U.S. 384 (1990) .................................................................................................. 9
Covington v. North Carolina,
316 F.R.D. 117 (M.D.N.C. 2016), aff’d, 137 S. Ct. 2211 (2017) .....................passim
Davis v. Chiles,
139 F.3d 1414 (11th Cir. 1998) .............................................................................. 21
Doe v. Gonzales,
546 U.S. 1301 (2005) ............................................................................................ 7, 8
Fargo Women’s Health Organization v. Schafer,
507 U.S. 1013 (1993) ................................................................................................ 7
iii
Garcia-Mir v. Smith,
469 U.S. 1311 (1985) ................................................................................................ 7
Georgia v. Ashcroft,
539 U.S. 461 (2003) ................................................................................................ 24
Gonzales v. O Centro Espirita Beneficente Uniao,
546 U.S. 418 (2006) .................................................................................................. 9
Heckler v. Redbud Hospital District,
473 U.S. 1308 (1985) ................................................................................................ 8
Johnson v. De Grandy,
512 U.S. 997 (1994) ................................................................................................ 19
Johnson v. Wisconsin Elections Commission,
972 N.W.2d 559 (Wis. 2022) ................................................................................... 36
LULAC v. Perry,
548 U.S. 399 (2006) .......................................................................................... 19, 25
McLane Co. v. EEOC,
137 S. Ct. 1159 (2017) .............................................................................................. 7
Merrill v. Milligan,
142 S. Ct. 879 (2022) .................................................................................. 33, 36, 37
Miller v. Johnson,
515 U.S. 900 (1995) .........................................................................................passim
Packwood v. Senate Select Committee on Ethics,
510 U.S. 1319 (1994) ...................................................................................... 7, 8, 40
Purcell v. Gonzalez,
549 U.S. 1 (2006) (per curiam) ............................................................................... 35
Reynolds v. Sims,
377 U.S. 533 (1964) .................................................................................................. 1
Shaw v. Reno,
509 U.S. 630 (1993) ................................................................................................ 21
Thornburg v. Gingles,
478 U.S. 30 (1986) ...........................................................................................passim
Wisconsin Legislature v. Wisconsin Elections Commission,
142 S. Ct. 1245 (2022) (per curiam) ....................................................................... 36
iv
Wise v. Lipscomb,
437 U.S. 535 (1978) ................................................................................................ 32
v
INTRODUCTION
“[O]nce a State’s [] apportionment scheme has been found to be [unlawful], it
would be the unusual case in which a court would be justified in not taking
appropriate action to insure that no further elections are conducted under the invalid
plan.” Reynolds v. Sims, 377 U.S. 533, 585 (1964). This is not an unusual case.
Following a five-day evidentiary hearing—and having considered two sets of
preliminary-injunction briefing, the testimonies of 21 expert and fact witnesses, and
hundreds of pages of proposed findings of fact and conclusions of law—the district
court applied governing precedent and concluded that Louisiana’s new congressional
map dilutes the electoral strength of Black voters in violation of Section 2 of the
Voting Rights Act. After hearing from state officials and considering the
representations made by the same defendants in prior litigation, the district court
further found that a remedial map can be feasibly implemented ahead of Louisiana’s
November 2022 primary. A motions panel of the U.S. Court of Appeals for the Fifth
Circuit agreed: Considering and rejecting the same arguments that the defendants
again advance here, the Fifth Circuit denied a stay and expedited their appeal.
In response to 185 pages of meticulous factual findings and carefully reasoned
legal analysis from four federal judges, the defendants now suggest that they could
have won a different case—a case with different evidence, different legal standards,
and different election deadlines. They distort the Gingles preconditions beyond
recognition, disregarding decades of Section 2 precedent. They baselessly
mischaracterize the plaintiffs’ illustrative maps as “racial gerrymanders,” even
though the district court concluded that the maps comply with neutral districting
1
criteria and that race did not predominate. And their perfunctory recitation of Purcell
ignores Louisiana’s uniquely late election calendar, the testimony offered by state
officials, and their own representations in state court.
The defendants can neither rewrite the law nor relitigate the factual record.
Their arguments are no more persuasive now than when the district court and Fifth
Circuit rejected them, and they certainly do not warrant the extraordinary relief of
an emergency stay or cert before judgment.
The defendants’ application should be expeditiously denied.
BACKGROUND AND PROCEDURAL HISTORY
I.
Louisiana’s new congressional
opportunity district.
map
contains
a
single
Black-
Since 2011, Black Louisianians have had the opportunity to elect their
preferred congressional candidates in only one of the state’s six districts,
Congressional District (“CD”) 2. But Louisiana’s Black population has continually
increased: The 2020 census showed that the state’s population growth over the
previous decade was driven entirely by minority Louisianians, with nearly half
attributable to the Black community. App. 21–22. Louisiana’s white population, by
contrast, decreased by over 5%, an enduring trend since the 1990s. Ibid.
Throughout the redistricting process that followed the 2020 census, Black
Louisianians, community leaders, and civil-rights groups called for the enactment of
a second congressional district in which Black voters could elect their candidates of
choice. Ignoring this chorus—and maps featuring two majority-Black districts that
were introduced during the legislative process—the Legislature passed House Bill 1
2
(“HB 1”) during a special legislative session in February 2022. App. 4, 148. HB 1
largely mirrors the 2011 congressional plan and preserves Louisiana’s lone majorityBlack congressional district, CD 2. Governor John Bel Edwards vetoed the proposed
map for its failure to include two majority-Black congressional districts, which he
viewed as a violation of the Voting Rights Act. Id. at 5, 80. Rather than heed this
warning and draw a new congressional plan that complies with Section 2, the
Legislature overrode Governor Edwards’s veto of HB 1 on March 30, 2022. Id. at 5.
Louisiana’s new congressional map packs Black voters into CD 2 and cracks
others among districts that extend into the predominantly white reaches of the state.
CD 2 achieves its 58.65% Black voting-age population (“BVAP”) by snaking through
New Orleans and Baton Rouge to collect minority voters. App. 24–25. Meanwhile,
three of the state’s five parishes with the highest Black populations—East Carroll
Parish (70.68%), Madison Parish (63.52%), and Tensas Parish (55.75%)—are located
in the predominantly white CD 5. Suppl. App. 41–42.
II.
The district court concluded that the plaintiffs were likely to succeed
on their Section 2 claims and preliminarily enjoined HB 1.
Within hours of the Legislature’s veto override, two sets of plaintiffs filed
complaints alleging that the new congressional map violates Section 2 by diluting the
votes of Black Louisianians. App. 5. Preliminary-injunction motions followed soon
after and, after delaying the proceedings at the defendants’ request, the district court
adopted an expeditious scheduling order. Id. at 126 n.350.
On May 9, 2022, the district court convened a hearing on the preliminaryinjunction motions. Over five days, the court heard testimony from 21 witnesses and
3
admitted 232 exhibits—including several hundred pages of reports from 14 experts—
into the record. The plaintiffs presented evidence on each element of their claims,
including the expert testimonies of:
•
William Cooper and Anthony Fairfax, who prepared multiple
illustrative plans that included an additional majority-Black congressional district
consistent with traditional redistricting principles, App. 22–24, 30–32;
•
Drs. Maxwell Palmer and Lisa Handley, who proved through ecological-
inference analysis that Black Louisianians vote cohesively and that white bloc voting
serves to defeat Black-preferred candidates in the area where the plaintiffs have
proposed an additional Black-opportunity district, id. at 51–60; and
•
Drs. Allan Lichtman, Traci Burch, and R. Blakeslee Gilpin, who
demonstrated that the totality-of-circumstances analysis supports a finding of vote
dilution, id. at 64–73.
The plaintiffs also offered extensive fact-witness testimony demonstrating the
common historic, economic, and cultural interests shared by Black voters in Baton
Rouge, the Delta Parishes along the Mississippi border, and St. Landry Parish—the
area comprising the plaintiffs’ illustrative majority-Black districts. App. 37–40.
On June 6, 2022, the district court issued a thorough, 152-page order granting
the preliminary-injunction motions. App. 1–152. Notably, the district court credited
the testimonies of the plaintiffs’ witnesses, including their mapping experts, whose
opinions the district court found “qualitatively superior and more persuasive on the
requirements of numerosity and compactness” when compared to the defendants’
4
mapping experts. Id. at 97. In fact, the district court concluded that none of the
defendants’ seven experts rebutted the plaintiffs’ evidence as to the Gingles
preconditions or the Senate Factors. Id. at 92–97, 120–22, 125–27.
Among its extensive factual findings, the district court concluded that, “[g]iven
the timing of Louisiana’s election and election deadlines, the representations made
by Defendants in related litigation, and the lack of evidence demonstrating that it
would be administratively impossible to do so, . . . the State has sufficient time to
implement a new congressional map without risk of chaos.” App. 149.
Based on its findings of fact and conclusions of law, the district court
preliminarily enjoined “Secretary Ardoin from conducting any congressional elections
under the map enacted by the Louisiana Legislature” and gave the Legislature the
opportunity to enact a remedial plan by June 20, 2022. App. 2. In addition, the district
court extended the deadline for candidates to qualify by nominating petition in lieu
of filing fees—a process that, the State’s elections commissioner testified, has not
been used by any congressional candidate in recent memory, id. at 145, 194—by about
two weeks, until July 8, id. at 2–3. The district court emphasized that “[t]he candidate
qualifying period set for July 20–22, 2022 and all other related deadlines are
unaffected . . . and shall proceed as scheduled.” Id. at 3.
III.
The Fifth Circuit denied the defendants’ motions for a stay.
Shortly after the district court issued its preliminary-injunction order, the
defendants filed a joint motion to stay the order pending appeal with the district court
and—after that request was denied, App. 161–63—three separate emergency motions
with the Fifth Circuit. In a 33-page per curiam opinion, the Fifth Circuit motions
5
panel denied the defendants’ motions. Id. at 167–99. The Fifth Circuit rejected the
defendants’ four contentions of legal error, id. at 171–90, and confirmed the district
court’s conclusion that sufficient time remains to adopt a remedial map in advance of
the state’s November primary elections, id. at 190–96. The Fifth Circuit further
expedited the defendants’ appeal of the preliminary injunction, id. at 199, and
eventually scheduled oral argument for July 8, 2022.
IV.
The district court declined to extend the remedial deadline after
hearing testimony from legislative leaders.
On June 16, 2022, the district court heard live testimony from the Speaker of
the Louisiana House of Representatives and President of the Louisiana Senate
regarding their motion to extend the time for the Legislature to enact a remedial
plan—which was filed a week after the district court’s injunction and only after the
Fifth Circuit denied the defendants’ stay motions. App. 384–85. The district court
credited testimony from the Senate President that the June 20 deadline provided
sufficient time to enact a remedial map and that legislators could refer to public
comments on congressional redistricting that were offered during the Legislature’s
map-drawing process earlier this year. Id. at 467–68. The district court further found
that the House’s efforts at producing a remedial map had been dilatory and
“disingenuous”: Committee hearings had not been promptly scheduled, and the
chamber adjourned after meeting for only 90 minutes. Id. at 468–69. Consistent with
the Fifth Circuit’s recognition that the Legislature was given sufficient opportunity
to adopt a remedial map, id. at 198, the district court denied the motion for an
extension, id. at 469.
6
Five days after the Fifth Circuit’s stay denial, this “emergency” application
followed.
REASONS TO DENY THE APPLICATION
An applicant asking this Court for a stay in a matter “pending before [a federal]
Court of Appeals,” in which “the Court of Appeals [has] denied [a] motion for a stay,”
faces “an especially heavy burden.” Packwood v. Senate Select Comm. on Ethics, 510
U.S. 1319, 1320 (1994) (Rehnquist, C.J., in chambers). The Fifth Circuit has the
responsibility “to review the District Court’s decision . . . . in the first instance,”
McLane Co. v. EEOC, 137 S. Ct. 1159, 1170 (2017), and its previous stay denial “is
entitled to great deference from this Court because the court of appeals ordinarily has
a greater familiarity with the facts and issues in a given case,” Garcia-Mir v. Smith,
469 U.S. 1311, 1313 (1985) (Rehnquist, J., in chambers). Moreover, “[r]espect for the
assessment of the Court of Appeals is especially warranted when that court is
proceeding to adjudication on the merits with due expedition.” Doe v. Gonzales, 546
U.S. 1301, 1308 (2005) (Ginsburg, J., in chambers); see also Fargo Women’s Health
Org. v. Schafer, 507 U.S. 1013, 1014 (1993) (O’Connor, J., concurring) (concurring in
denial of stay application where courts below denied stay motions and Eighth Circuit
expedited appeal, explaining that “[w]hen a matter is pending before a court of
appeals, it long has been the practice of members of this Court to grant stay
applications only upon the weightiest considerations” (cleaned up)). Ultimately, “a
stay application to a Circuit Justice on a matter before a court of appeals is rarely
granted,” especially where the court of appeals “itself has refused to issue the stay.”
7
Heckler v. Redbud Hosp. Dist., 473 U.S. 1308, 1312 (1985) (Rehnquist, C.J., in
chambers) (cleaned up).
To obtain the extraordinary relief they seek, the defendants “must
demonstrate: (1) a reasonable probability that four Justices would vote to grant
certiorari; (2) a significant possibility that the Court would reverse the judgment
below; and (3) a likelihood of irreparable harm, assuming the correctness of the
[defendants’] position, if the judgment is not stayed.” Packwood, 510 U.S. at 1319.
The defendants cannot meet any element of this heavy burden, particularly since the
Fifth Circuit has already denied a stay and expedited the appeal (and will hear oral
argument in just two weeks). As that court concluded—after properly deferring to the
district court’s extensive factual findings—“the defendants have not met their burden
of making a ‘strong showing’ of likely success on the merits,” nor should “the
cautionary principle from Purcell v. Gonzalez prevent[] the ordered remedy from
taking effect.” App. 168 (citation omitted). Nothing in the defendants’ application has
shown any compelling reason to second-guess the courts below—let alone “shown
cause so extraordinary as to justify this Court’s intervention in advance of the
expeditious determination of the merits toward which the [Fifth] Circuit is swiftly
proceeding.” Gonzales, 546 U.S. at 1309.
I.
The defendants fail to make a strong showing of likelihood of success
in this appeal.
The Fifth Circuit already rejected the defendants’ arguments as inconsistent
with both the district court’s factual findings and longstanding Section 2 precedent.
This Court should do the same.
8
Notably, the defendants must overcome the significant deference afforded to
the district court’s findings. Because Section 2’s vote-dilution inquiry is “peculiarly
dependent upon the facts of each case” and “requires an intensely local appraisal of
the design and impact of the contested electoral mechanisms,” this Court applies “the
clearly-erroneous test of Rule 52(a).” Thornburg v. Gingles, 478 U.S. 30, 79 (1986)
(cleaned up). Application of this standard “preserves the benefit of the trial court’s
particular familiarity with the indigenous political reality without endangering the
rule of law,” ibid., and is consistent with the “singular deference” this Court gives to
a district court’s credibility determinations, Cooper v. Harris, 137 S. Ct. 1455, 1474
(2017); see also Anderson v. City of Bessemer, 470 U.S. 564, 575–76 (1985) (holding
that “[w]hen findings are based on determinations regarding the credibility of
witnesses, Rule 52(a) demands even greater deference to the trial court’s findings,”
which “can virtually never be clear error”). The district court’s finding that HB 1
violates Section 2 can be reversed only if, “on the entire evidence,” this Court “is left
with the definite and firm conviction that a mistake has been committed.” Anderson,
470 U.S. at 573 (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
The district court’s decision to grant a preliminary injunction is reviewed only
for abuse of discretion. See Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal,
546 U.S. 418, 428 (2006). Under this standard, the Court should neither “reweigh[]
evidence” nor “reconsider[] facts already weighed and considered by the district court.”
Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 404 (1990).
9
A.
The courts below correctly analyzed white bloc voting and the
third Gingles precondition.
Contrary to the defendants’ primary merits argument, the plaintiffs satisfied
the third Gingles precondition in this case because “whites vote sufficiently as a bloc
usually to defeat the minority’s preferred candidates” in the area encompassed by the
plaintiffs’ illustrative districts. 478 U.S. at 56.
This is a straightforward inquiry; as the Fifth Circuit explained, “the question
posed by the third Gingles precondition is concrete: If the state’s districting plan takes
effect, will the voting behavior of the white majority cause the relevant minority
group’s preferred candidate ‘usually to be defeated’?” App. 185 (quoting Covington v.
North Carolina, 316 F.R.D. 117, 171 (M.D.N.C. 2016) (three-judge court), aff’d, 137
S. Ct. 2211 (2017)). The district court’s factual findings confirm that the answer to
that question is a resounding yes. See id. at 185–86 (“The district court concluded
that, without a new majority-minority district, white bloc voting would prevent black
voters who satisfy the first and second Gingles preconditions from electing their
preferred candidates.”). Specifically, the district court found that the plaintiffs’
racially polarized voting experts independently “examined this issue, amassed
detailed data, and arrived at the same conclusion: that White voters consistently bloc
vote to defeat the candidates of choice of Black voters.” Id. at 123–24. The Fifth
Circuit noted that “the district court relied on the experts’ analysis to answer the
right question: whether black voters’ preferred candidates could win the proposed
district under the enacted maps. And the plaintiffs’ experts tailored their analysis to
that question.” Id. at 187 (citation omitted).
10
The defendants offered nothing to rebut this evidence; to the contrary, one of
their own racially polarized voting experts agreed that white-preferred candidates
usually defeat Black-preferred candidates in Louisiana. See Suppl. App. 65. Nor do
they actually dispute the district court’s finding now. They simply ignore it altogether
and attempt to turn the third Gingles precondition on its head, crafting a new test
wholly divorced from this Court’s precedent.
1.
The defendants mischaracterize the relevance of white
crossover voting.
First, the defendants completely misunderstand the relevance of white
crossover voting in the Gingles inquiry. Misreading Bartlett v. Strickland, 556 U.S. 1
(2009) (plurality opinion), they suggest that, “‘[i]n areas with substantial crossover
voting,’ . . . this third precondition remains unsatisfied.” Appl. 12–13 (quoting Bartlett,
556 U.S. at 24). But Bartlett merely noted that “[i]n areas with substantial crossover
voting it is unlikely that the plaintiffs would be able to establish the third Gingles
precondition.” 556 U.S. at 24 (emphasis added). This was just a logical application of
Gingles—after all, if enough white voters support a Black-preferred candidate, then
they would not vote as a bloc to defeat that candidate, the third precondition would
go unsatisfied, and a Section 2 remedy would not be justified. (Indeed, that is precisely
the takeaway from Harris and Covington. See infra at 14–15.)
Levels of crossover voting insufficient to overcome white bloc voting—like the
level observed where the plaintiffs drew their illustrative districts—do not negate the
third precondition. To the contrary, Gingles explicitly noted that “a white bloc vote
that normally will defeat the combined strength of minority support plus white
11
‘crossover’ votes rises to the level of legally significant white bloc voting.” 478 U.S. at
56 (emphasis added). Accordingly, as the Fifth Circuit explained, “the proportion of
these so-called ‘crossover’ votes is not directly relevant. Instead, white crossover
voting is indirectly relevant because it influences the outcome of elections and,
therefore, what really matters for the third Gingles precondition: whether minoritypreferred candidates would usually lose under the challenged plan.” App. 185; see
also id. at 126 (“White crossover voting was inherently included in the analysis
performed by Dr. Palmer and Dr. Handley[.]”).
The
defendants
suggest—without
citation—that
the
plaintiffs
must
demonstrate “extreme white bloc voting.” Appl. 13. That is simply untrue; all that is
required is sufficient white bloc voting to usually defeat Black-preferred candidates.
Because the undisputed factual record shows that this is the case here, there is legally
significant white bloc voting, and the third precondition is satisfied. 1
2.
The defendants mischaracterize the meaning of “legally
significant racially polarized voting.”
The defendants also mischaracterize “legally significant racially polarized
voting,” suggesting that it exists only where “a district with a black VAP in excess of
50% is necessary in order to give black voters an opportunity to elect their candidates
of choice.” Appl. 13–15 & n.4. This definition finds no basis in precedent, which
1 Undeterred,
the defendants suggest that this well-settled standard “converts []
Section 2’s protection into electoral guarantees through the reconfiguration of district
lines any time a slim majority of white voters supports a candidate that a minority
group disfavors.” Appl. 13–14. Not so: This inquiry is merely one among three
preconditions, which must also be considered along with the totality of circumstances.
Satisfaction of the third Gingles precondition does not alone prove Section 2 liability.
12
defines the term as “majority bloc voting at such a level that it enables the majority
group ‘usually to defeat the minority’s preferred candidates.’” Covington, 316 F.R.D.
at 167 (quoting Gingles, 478 U.S. at 56). In other words, legally significant racially
polarized voting exists where the third Gingles precondition is satisfied.
Rejecting this simple (and binding) definition, the defendants have concocted
a new test based on the hypothetical performance requirements of illustrative
districts. See Appl. 14–15. 2 But the Fifth Circuit already explained why the
defendants’ proposed definition entirely misses the mark: “The plaintiffs must show
that [legally significant] bloc voting would be present in the challenged districting
plan.” App. 185. Accordingly, “the defendants’ observation that a hypothetical district
could elect black-preferred candidates with as little as 40% BVAP” is just not
“relevant.” Id. at 188. Nor would this approach make any sense, since “it would be
bizarre if a state could satisfy its VRA obligations merely by pointing out that it could
have—but did not—give minority voters an opportunity to elect candidates of their
choice without creating a majority-minority district.” Ibid. The defendants’ obsession
with the BVAP required to elect Black-preferred candidates in the illustrative
districts is wholly misplaced—they have merely “generated a theoretical factual issue”
that has no bearing on the Gingles analysis. Id. at 126.
2 Curiously, the first third of the defendants’ footnote 4 accurately cites controlling
caselaw and seemingly acknowledges the proper definition. See Appl. 13–14 n.4. But
the footnote then wildly diverges from precedent, spinning an unsupported tangent
that bears no relation to the actual legal standard. Notably, their legal citations end
with the first third of that footnote—the remaining two-thirds are pure invention.
13
3.
Neither Covington nor Harris supports the defendants’
misunderstanding of the third Gingles precondition.
The defendants completely misconstrue Covington and Harris as endorsing
their invented definition of legally significant racially polarized voting. Neither case
stated anything of the sort.
Both Covington and Harris involved attempted defenses under the Voting
Rights Act, not affirmative Section 2 claims. In both, racial gerrymandering
challenges were lodged against districts that the legislature argued were required by
Section 2. This proffered justification was rejected because the legislature failed to
establish in the benchmark plan the existence of “racial bloc voting that, absent some
remedy, would enable the majority usually to defeat the minority group’s candidate
of choice.” Covington, 316 F.R.D. at 167–68. Indeed, as Harris explained, “electoral
history provided no evidence that a § 2 plaintiff could demonstrate the third Gingles
prerequisite” because Black-preferred candidates already prevailed in the benchmark
districts. 137 S. Ct. at 1460. These conclusions were consistent with Bartlett—and
the third precondition’s focus on the electoral success of minority-preferred
candidates in existing maps, not illustrative maps—where this Court observed that
“majority-minority districts would not be required in the first place” in areas with
crossover voting substantial enough to overcome white bloc voting. 556 U.S. at 24.
That would demonstrate that white bloc voting does not defeat minority-preferred
candidates and thus foreclose the third precondition. And because “the third
precondition is a sine qua non of a Gingles claim,” no Section 2 remedy is required
where “a minority group can already elect its preferred candidates”—regardless of
14
“whether that ability accrues in a majority-minority or a performing crossover
district.” App. 189.
Here, unlike in Covington and Harris, the plaintiffs did demonstrate that,
under the state’s new congressional plan, white bloc voting usually defeats Blackpreferred candidates in the area encompassed by their illustrative majority-Black
districts. See App. 188–89 (distinguishing Harris from this case). Black-preferred
candidates will not prevail in this area “without a VRA remedy,” Covington, 316
F.R.D. at 168—and the plaintiffs have thus satisfied the third Gingles precondition.
4.
The evidentiary record indicates—and the district court
found—that polarized voting is attributable to race.
Finally, the defendants claim that “[t]he preliminary-injunction record shows
that ‘partisan affiliation, not race, best explains the divergent voting patterns among
minority and white citizens.’” Appl. 15 (quoting App. 330). But proving the cause of
racially polarized voting is not the plaintiffs’ burden. See Gingles, 478 U.S. at 73 (“All
that matters under § 2 and under a functional theory of vote dilution is voter behavior,
not its explanations.”). At any rate, the defendants’ argument relies on a blatant
mischaracterization of the record. Indeed, although they suggest that “[e]vidence of
partisan-motivated racially polarized voting permeates the record,” they cite only one
source: the testimony of Dr. John Alford. Appl. 15–16. But the district court “d[id] not
credit [his] opinion as helpful,” noting that he “merely looked at the results reported
by Dr. Palmer and Dr. Handley and opined that polarized voting” is not caused by the
race of the candidate—a conclusion at once unsupported (Dr. Alford conceded that he
“does not know exactly why voting is polarized”) and contradicted by Dr. Palmer, who
15
“demonstrated that the race of the candidate does have an effect; he found that Black
voters support Black candidates more often in a statistically observable way.” App.
120–21. In short, the district court properly discounted Dr. Alford’s underbaked
analysis—a determination to which deference is entitled. 3
Moreover, both the district court’s factual findings and the expert testimony
on which it relied demonstrate that race is “[t]he driving mechanism” behind
Louisiana’s polarized voting. Suppl. App. 58. The district court concluded that “the
evidence of the historical realignment of Black voters from voting Republican to
voting Democrat undercuts the argument that the vote is polarized along party lines
and not racial lines” and that “Black voters [vote] cohesively for candidates who are
aligned on issues connected to race.” App. 128. This conclusion was bolstered by the
analyses of Drs. Lichtman, Gilpin, Burch, and Handley—each of whom testified to
the ways in which “the racial attitudes of the parties, and their positions on racerelated issues, are what drives support for a particular party”—and the testimony of
a fact witness “who testified that in her lived experience, Black voters in Louisiana
prefer Democratic candidates, not because of the party label, but because Democrats
are more likely to discuss the issues that matter to Black voters.” Id. at 129.
Ultimately, as Dr. Lichtman testified, “[p]arty by itself doesn’t explain
anything. . . . [B]lacks are voting Democratic in Louisiana, whites are voting
3 Notably, the district court is not the first to discount Dr. Alford’s analysis based on
shortcomings in his analysis—including his mere “speculation [] that partisanship is
the cause of [] racial polarization.” Alpha Phi Alpha Fraternity Inc. v. Raffensperger,
Nos. 1:21-CV-5337-SCJ, 1:21-CV-5339-SCJ, 1:22-CV-122-SCJ, 2022 WL 633312, at
*57–58 (N.D. Ga. Feb. 28, 2022) (collecting cases).
16
Republican. . . . Not in spite of race but because of race. Race is at the center of all of
this.” Suppl. App. 58; see also id. at 66 (Dr. Alford’s testimony acknowledging that
party affiliation can be motivated by race). The credited expert evidence that
polarization is attributable to race and not partisanship went effectively unrebutted
by the defendants—and serves to refute their baseless claim that Louisiana’s
polarized voting is attributable only to party. Accordingly, this argument does not
move the needle as to the third precondition or any other facet of the Section 2 inquiry.
B.
The courts below correctly rejected the defendants’ charges of
racial gerrymandering.
As the Fifth Circuit observed, rather than contest whether the plaintiffs’
illustrative maps are sufficiently compact for purposes of the first Gingles
precondition, see infra at 25–31, the defendants “put all their eggs in the basket of
racial gerrymandering,” App. 173. That court rejected this argument as meritless,
reiterating that “racial consciousness in the drawing of illustrative maps does not
defeat a Gingles claim,” and “even if it did, the defendants have not shown that the
plaintiffs’ maps prioritized race so highly as to commit racial gerrymandering.” Id. at
181. Neither this conclusion nor the district court’s findings underpinning it should
be disturbed.
This Court has explained that a racial-gerrymandering claim requires a
showing “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) (emphasis added). “It does not follow that race
predominates in the redistricting process” from mere “aware[ness] of racial
17
demographics.” Ibid. Here, the district court “credit[ed] Cooper’s testimony” that,
although “he was aware of race during the map drawing process,” “race was not a
predominant consideration in his analysis,” as he “considered all of the relevant
principles in a balanced manner.” App. 98 (emphasis added); see also id. at 98–99
(crediting Mr. Fairfax’s testimony “that race did not predominate in his mapping
process”). These factual findings were based on the district court’s comprehensive
review of the expert testimony, see, e.g., id. at 92–95, 97 (rejecting defendants’ expert
testimony regarding racial predominance), and a detailed assessment of the
witnesses’ credibility, compare id. at 98–99, 116–17 (finding Mr. Cooper and Mr.
Fairfax credible), with id. at 92 (declining to exclude Mr. Bryan but finding “his
methodology to be poorly supported”), and id. at 94 (finding that Dr. “Blunt has no
experience, skill, training or specialized knowledge”).
Remarkably, the defendants’ racial-gerrymandering arguments fail to even
acknowledge, let alone refute, the district court’s findings on racial predominance.
Instead, by cherry-picking evidence from the record, they claim that “[t]he facts to
which the district court lent its imprimatur are indistinguishable from those in
Covington.” Appl. 18. Far from being “indistinguishable,” the racially motivated mapdrawing in Covington was found to be unlawful based on factors not present here:
•
There, race-neutral districting criteria were subordinated to race-based
goals, Covington, 316 F.R.D. at 137–40, whereas here, the plaintiffs’ mapping experts
“explicitly and credibly testified that they did not allow race to predominate over
traditional districting principles as they developed their illustrative plans,” App. 116;
18
•
There, the challenged maps “split a high number of precincts,” were less
compact than the benchmark maps on most compactness measures, and contained
“bizarre” and “oddly shaped” districts, Covington, 316 F.R.D. at 137–38, 143–46,
whereas here, the district court “found that [the illustrative] plans outperformed the
enacted plan on every relevant criteria,” App. 118; see also infra at 25–29;
•
There, the map-drawer was “instructed [] to draw enough VRA districts
to provide North Carolina’s African American citizens with a substantially
proportional and equal opportunity to elect their preferred candidates of choice,”
Covington, 316 F.R.D. at 132 (cleaned up), whereas here, proportionality was merely
one factor considered as part of the totality-of-circumstances analysis, see App. 140; 4
•
There, “the overriding priority of the redistricting plan was to draw a
predetermined race-based number of districts, each defined by race,” Covington, 316
F.R.D. at 135, whereas here, the plaintiffs’ mappers were asked whether it was
possible to draw a second majority-Black congressional district consistent with
neutral criteria and concluded that it was, App. 117–18; and
•
There, the legislature “erred in drawing each of the challenged districts
by failing to evaluate whether there was a strong basis in evidence for the third
4 The defendants’ repeated claims to the contrary notwithstanding, see Appl. 2, 8, 18,
at no point have the plaintiffs contended that Section 2 confers a proportionality
requirement. Rather, both they and the district court properly treated proportionality
as just one piece of “evidence of whether ‘the political processes leading to nomination
or election in the State or political subdivision are not equally open to participation’”
by Black Louisianians. LULAC v. Perry, 548 U.S. 399, 437 (2006) (plurality opinion)
(quoting 52 U.S.C. § 10301(b)); see also Johnson v. De Grandy, 512 U.S. 997, 1012
(1994).
19
Gingles factor in any potential VRA district,” Covington, 316 F.R.D. at 167, whereas
here, that precondition was demonstrated by unrebutted evidence, see supra at 10–
11.
This case is therefore readily distinguishable from Covington. In a vain
attempt to make the analogy stick, the defendants point to testimony indicating that
the plaintiffs’ mapping experts considered race when drawing their illustrative maps,
see Appl. 18—as the first Gingles precondition requires. The district court effectively
dispatched this argument in its preliminary-injunction order:
This is not the “gotcha” moment that Defendants make it out to be. It is
well-established that in a vote dilution case, the method by which a
plaintiff can prove numerosity to satisfy Gingles I is the production of
illustrative maps demonstrating that it is possible to draw an additional
50% + majority-minority district. So, the fact that Plaintiffs asked
Cooper to draw such a map is no surprise. And, while Cooper did testify
that Plaintiffs asked him to draw two majority-Black districts, he also
testified that he “did not have a goal to under all circumstances create
two majority-Black districts” because “when developing a plan you have
to follow traditional redistricting principles.” And Fairfax’s testimony
established how he considered socioeconomic data extensively in
deciding where to draw his lines. Overall, the Court . . . credits their
testimony that race did not predominate in their drawing as sincere.
App. 117 (footnote omitted) (quoting ECF No. 164 at 40). 5 Indeed, the defendants’
suggestion that any consideration of race as part of the Gingles inquiry constitutes
an unlawful racial gerrymander is wholly at odds with precedent. As this Court has
observed, “redistricting differs from other kinds of state decisionmaking in that the
legislature always is aware of race when it draws district lines . . . . That sort of race
5 “ECF No.” citations refer to entries on the district court docket. See Robinson v.
Ardoin, Nos. 3:22-cv-00211-SDD-SDJ (M.D. La.).
20
consciousness does not lead inevitably to impermissible race discrimination.” Shaw
v. Reno, 509 U.S. 630, 646 (1993). And because courts “require plaintiffs to show that
it is possible to draw majority-minority voting districts,” “[t]o penalize [the
plaintiffs] . . . for attempting to make the very showing that Gingles[ and its progeny]
demand would be to make it impossible, as a matter of law, for any plaintiff to bring
a successful Section Two action.” Davis v. Chiles, 139 F.3d 1414, 1425–26 (11th Cir.
1998). Consideration is not the same as predominance, and nothing in the defendants’
application—and certainly none of their evidence in the record—indicates that race
predominated in the plaintiffs’ illustrative districts. 6
Moreover, the plaintiffs’ illustrative maps are consistent with neutral
districting criteria, see infra at 25–29, which “serve[s] to defeat a claim that a district
has been gerrymandered on racial lines,” Shaw, 509 U.S. at 647; see also App. 182–
6 Even if it had—and even if courts had not sensibly rejected the cavalier application
of the racial-gerrymandering doctrine to the Gingles inquiry, see, e.g., Davis, 139 F.3d
at 1425; Clark v. Calhoun County, 88 F.3d 1393, 1406–07 (5th Cir. 1996)—a district
drawn to comply with Section 2 that uses race as the predominant factor can survive
strict scrutiny. See Miller, 515 U.S. at 916, 920 (applying strict scrutiny to racialgerrymandering claims and requiring that such maps be “narrowly tailored to achieve
a compelling interest”); Bethune-Hill v. Va. State Bd. of Elections, 137 S. Ct. 788, 801
(2017) (“As in previous cases . . . the Court assumes, without deciding, that the State’s
interest in complying with the Voting Rights Act was compelling.”). Here, the sum
total of the plaintiffs’ evidence and the district court’s findings, along with the
numerous maps rejected during the legislative process and Governor Edwards’s veto,
provide indisputably “good reasons” to believe that a second Black-opportunity
district is required under the Voting Rights Act. Ala. Legis. Black Caucus v. Alabama,
575 U.S. 254, 278 (2015) (cleaned up). The plaintiffs’ illustrative plans would thus
satisfy the requirements of strict scrutiny against a hypothetical racialgerrymandering claim. And, as the Fifth Circuit noted, “even if the plaintiffs had
engaged in racial gerrymandering as they drew their hypothetical maps, it would not
follow that the Legislature is required to do the same to comply with the district
court’s order. Illustrative maps are just that—illustrative.” App. 183.
21
83 (“[F]actual findings by the district court, based on expert and lay testimony
presented by the plaintiffs, indicate that the boundaries of the illustrative maps have
at least some basis in traditional districting principles[.]”). Adherence to neutral
criteria further undermines the defendants’ feverish claims of racial gerrymandering.
Absent any evidence of racial predominance in the illustrative maps, the
defendants repeatedly raise the specter of Hays, suggesting that a second majorityBlack congressional district in the Bayou State is necessarily foreclosed by litigation
that occurred almost 30 years ago. See Appl. 2, 6–7, 26 n.8. The district court correctly
dismissed this argument as “a red herring,” explaining that the “assertion that Hays
automatically vitiates the validity of Plaintiffs’ illustrative plans is refutable by a
cursory visual inspection of the Hays maps”—which in no way resemble the plaintiffs’
illustrative plans, compare App. 22–23, 30 (plaintiffs’ illustrative maps), with id. at
107, 109 (Hays maps)—and because “the Black population in Louisiana has increased
significantly since the 1990 census that informed the Hays map,” id. at 106–10.
Because “Hays is distinguishable and inapplicable,” id. at 110, it does not support the
defendants’ racial-gerrymandering claims.
In short, as the Fifth Circuit concluded, “the unchallenged findings of the
district court foreclose the defendants’ contention that the plaintiffs’ illustrative maps
are racial gerrymanders.” App. 183.
C.
The courts below correctly analyzed numerosity, compactness,
and the first Gingles precondition.
The defendants claim that the plaintiffs’ did not satisfy the first Gingles
precondition because “the illustrative plans [the plaintiffs] produced are irrefutably
22
racially gerrymandered” and that “the minority community they have identified is
not compact, reasonably or in any other application of the concept.” Appl. 20. Neither
argument is persuasive.
For the reasons discussed above, see supra at 17–22, the plaintiffs’ illustrative
maps are not racial gerrymanders. Although the defendants suggest that “common
sense and the record irrefutably show that [these maps] were fabricated to ‘segregate
the races for purposes of voting,’” Appl. 21 (quoting Shaw, 509 U.S. at 642), both the
district court and Fifth Circuit concluded otherwise. “Racial gerrymandering” is not
a mystical incantation that automatically forecloses a Section 2 claim. It is an
independent constitutional claim subject to a “demanding” evidentiary standard.
Miller, 515 U.S. at 928 (O’Connor, J., concurring). Mere repetition of the term cannot
erase the extensive evidentiary record that clearly refutes the defendants’ baseless
claims of racial gerrymandering. Simply put, race did not predominate in the drawing
of the plaintiffs’ illustrative maps. The defendants’ additional racial-gerrymandering
arguments are no more compelling.
1.
Any-part BVAP is the proper metric in this case.
The defendants’ claims to the contrary notwithstanding, see Appl. 21–22, the
district court and Fifth Circuit properly used the any-part BVAP metric when
considering whether the plaintiffs satisfied the first Gingles precondition, see App.
85–90, 171–72. As both courts noted, use of the any-part BVAP metric in this case is
compelled by this Court’s precedent: Where, as here, “the case involves an
examination of only one minority group’s effective exercise of the electoral
franchise . . . . it is proper to look at all individuals who identify themselves as black.”
23
Georgia v. Ashcroft, 539 U.S. 461, 473 n.1 (2003), superseded by statute on other
grounds as recognized in Ala. Legis. Black Caucus v. Alabama, 575 U.S. 254 (2015).
The Fifth Circuit recognized that the defendants provided “no reason to part from
that holding,” App. 172, and their only argument now appears to be an aggressive
misreading of the critical Ashcroft footnote, see Appl. 21.
Departing from use of the any-part BVAP metric in this case would be
inconsistent not only with the Court’s precedent but also with the state’s historical
racial categorization; as the district court observed, “[i]t would be paradoxical, to say
the least, 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” that
“gatekeeps Blackness in the context of this Voting Rights case.” App. 87. Neither the
plaintiffs’ nor the courts’ use of the any-part BVAP metric in this case was an attempt
“to load the dice in favor of triggering Section 2.” Appl. 21–22. Instead, it was a proper
application of precedent.
2.
The illustrative maps satisfy the numerosity requirement.
The defendants similarly disregard controlling precedent when they fault the
plaintiffs for “offer[ing] exemplar maps with districts that exceeded the 50 percent
BVAP threshold by [] razor-thin margins.” Appl. 22. Bartlett established an “objective,
numerical test: Do minorities make up more than 50 percent of the voting-age
population in the relevant geographic area?” 556 U.S. at 18. The purpose of this
bright-line rule was to “provide[] straightforward guidance to courts and to those
officials charged with drawing district lines to comply with § 2,” ibid., and in neither
that case nor any other opinion of this Court has a numerosity threshold beyond 50%
24
been imposed. The plaintiffs can hardly be faulted for satisfying the first Gingles
precondition as this Court has defined it.
3.
The illustrative districts are sufficiently compact.
The defendants’ remaining arguments revolve around the issue of compactness,
an “inquiry [that] take[s] into account ‘traditional districting principles such as
maintaining communities of interest and traditional boundaries.’” LULAC v. Perry,
548 U.S. 399, 433 (2006) (plurality opinion) (quoting Abrams v. Johnson, 521 U.S. 74,
92 (1997)). The district court found, based on the extensive factual record before it,
that the “[p]laintiffs demonstrated that they are substantially likely to prove that
Black voters are sufficiently ‘geographically compact’ to constitute a majority in a
second congressional district.” App. 90 (footnote omitted) (quoting Harris, 137 S. Ct.
at 1470). As the courts below noted, “the ‘[d]efendants did not meaningfully refute or
challenge Plaintiffs’ evidence on compactness,’” a “tactical choice [that] has
consequences” because “[i]t leaves the plaintiffs’ evidence of compactness largely
uncontested.” Id. at 173 (first alteration in original) (quoting App. 92).
a.
The illustrative districts
redistricting principles.
satisfy
traditional
Disregarding the factual record and the conclusions of both the district court
and the Fifth Circuit, the defendants claim that the plaintiffs “undeniably
subordinated all traditional redistricting criteria while elevating race to the apex
position.” Appl. 22. Without citing to anything concrete in the factual record, they
maintain that “[t]he illustrative maps often split cities, counties, and communities of
interest while merging far flung and distinct areas with nothing in common but-for
25
their common racial makeup.” Ibid. This is just plain false. As both the Fifth Circuit
and the district court agreed, the plaintiffs’ illustrative majority-Black districts—
CD 5 in each illustrative map—are sufficiently compact along a range of traditional
metrics and consistent with neutral districting criteria.
First, the plaintiffs’ “illustrative CD 5 appears geographically compact upon a
visual inspection.” App. 174; see also Bush v. Vera, 517 U.S. 952, 980–81 (1996)
(plurality opinion) (explaining that “bizarre shape and noncompactness” constitute
“[s]ignificant deviations from traditional districting principles”). Indeed, the district
court concluded not only that “the districts proposed in the illustrative maps are
regularly shaped,” but also that, “[c]ompared to the shape of CD 2 and the
wraparound shape of CD 6 in the enacted plan, the illustrative plans are visually
more compact.” App. 99 (emphasis added). 7 The plaintiffs’ mapping experts also
“demonstrated, without dispute, that in terms of the objective measures of
compactness, the congressional districts in the illustrative plans are demonstrably
superior to the enacted plan.” Id. at 92. The defendants still do not dispute this
finding, suggesting only that “[v]isual compactness of a district . . . does not
automatically translate into a conclusion that the minority population within that
district is itself compact,” Appl. 25—an argument without relevance, given that the
compactness finding was not based solely on a visual inspection.
7 Reproductions of the enacted congressional map and the plaintiffs’ illustrative maps
can be found in the district court’s order. See App. 4, 22–23, 30.
26
Second, the plaintiffs’ illustrative districts “respect traditional redistricting
criteria.” App. 175. As the Fifth Circuit summarized, Messrs. Cooper and Fairfax
testified that they took criteria such as “political subdivision lines,
contiguity” and “the Legislature’s Joint Rule 21” into account when
drawing their maps. Fairfax also said he grouped populations with
similar economic demographics together and attempted to keep census
designated places together when possible. And Cooper stated that he
had declined to draw maps for plaintiffs in the past when doing so would
require him to violate traditional redistricting criteria. . . . [T]heir
testimony indicates that the districts they drew—including CD 5—are
likely consistent with traditional redistricting criteria. Accordingly, the
population of black voters in those districts is likely to be reasonably
compact as well.
Id. at 175–76 (citations omitted) (quoting App. 23). 8 Though the defendants contend
that “[t]he Fifth Circuit . . . concluded that Plaintiffs’ illustrative maps ‘respect
traditional redistricting criteria’ because, essentially, Plaintiffs’ map-drawers said so,”
Appl. 26 (quoting App. 175), they offered nothing to impugn the credibility of the
plaintiffs’ mapping experts, see App. 117, and they conspicuously fail to acknowledge
the unrebutted, objective evidence provided by the plaintiffs’ experts that
demonstrates compliance with these criteria. Specifically, the district court found
that the illustrative plans “are contiguous and equalize population across districts”;
“respect political subdivision boundaries as much or more so than the enacted plan
with regard to parish splits”; and “respect political subdivision boundaries with
regard to precinct splits.” Id. at 99–100. 9 Without “either [] circumstantial evidence
8 Joint Rule No. 21 enumerated the Legislature’s redistricting criteria. See App. 3.
The defendants claim that the plaintiffs’ experts “erred by examining the
compactness of the district rather than the compactness of the relevant minority
population.” Appl. 25. But as the Fifth Circuit noted, this is a distinction without a
9
27
of a district’s shape and demographics or more direct evidence going to [the mapping
experts’] purpose,” Miller, 515 U.S. at 916, the defendants’ assertions of racial
predominance are based on nothing more than their own say-so.
Third, “the illustrative CD 5 preserves communities of interest.” App. 176. The
district court found that the “[p]laintiffs made a strong showing that their maps
respect [communities of interest] and even unite communities of interest that are not
drawn together in the enacted map,” which the defendants did “not meaningfully
dispute[].” Id. at 103. In addition to their mapping experts, who “employed different
approaches to identifying communities of interests and considering them in their
illustrative maps,” id. at 34–36, 101, the “[p]laintiffs also presented several lay
witnesses who spoke to the shared interests, history, and connections between East
Baton Rouge Parish and two areas included together with it in [their] illustrative CD
5.” Id. at 37. One described “the strong historical connection between East Baton
Rouge and the Delta parishes,” including the “pattern of migration from the
Mississippi Delta to Baton Rouge” and “educational ties between the Delta parishes
and Baton Rouge.” Id. at 37–38. Another testified that “St. Landry and Baton Rouge
share common policy concerns” stemming from educational and economic ties. Id. at
38–40. The defendants, by striking contrast, “did not call any witnesses to testify
about communities of interest”—“a glaring omission, given that [the Legislature’s
difference—“the geographic compactness of a district is a reasonable proxy for the
geographic compactness of the minority population within that district.” App. 180 n.4.
28
own] Joint Rule 21 requires communities of interest to be prioritized over and above
preservation of political subdivisions.” Id. at 101 (emphasis added).
In short, the defendants do not meaningfully dispute the plaintiffs’ satisfaction
of any of the traditional redistricting principles that together led to a finding of
sufficient compactness—let alone give any reason to question the district court’s
thorough factual finding and the Fifth Circuit’s endorsement of its legal conclusions. 10
b.
The defendants’ experts did not meaningfully
contest the compactness of the illustrative districts.
In the words of the Fifth Circuit, “actions speak louder than words, and the
defendants mention very little of what they introduced before the district court in
connection with the compactness inquiry in their motion[] for a stay.” App. 177.
Indeed, the defendants only briefly acknowledge the evidence provided by their
mapping experts, see Appl. 22–23—and they ignore the district court’s conclusion that
these experts contributed nothing of merit.
First, the defendants reference the testimony of demographer Thomas Bryan.
See Appl. 22–23. The district court “found his methodology to be poorly supported”
and that his “analysis lacked rigor and thoroughness.” App. 92–93. His “misallocation”
10 The amicus brief filed by the National Republican Redistricting Trust chides the
district court’s dismissal of core retention as a relevant criterion. But, as the Fifth
Circuit noted, “the defendants have not explained why Louisiana’s previous
districting should be used as a measuring stick for compactness.” App. 178. Indeed,
the Legislature’s own redistricting guidelines did not include core retention as an
enumerated criterion. Id. at 105. Ultimately, “[c]ore retention is not and cannot be
central to Gingles I, because making it so would upend the entire intent of Section 2,
allowing states to forever enshrine the status quo regardless of shifting
demographics.” Ibid.
29
analysis—which aimed to show how the illustrative plans split geography based on
race—was not only based on assumptions that, “he admitted, are not supported by
the evidence in this case,” but also disregarded the neutral criteria that guided the
plaintiffs’ mapping experts. Id. at 42, 93. It is no surprise that Mr. Bryan’s analysis—
which looked at race to the exclusion of all else—saw racial predominance where none
actually existed. Notwithstanding these methodological flaws, the defendants cite Mr.
Bryan’s analysis as proof that the plaintiffs’ “map-drawers intentionally segregated
cities by race.” Appl. 22. But, as the Fifth Circuit noted, Mr. Bryan’s testimony at
most demonstrates that the plaintiffs’ illustrative maps “split[] Baton Rouge and
Lafayette between congressional districts such that the black neighborhoods were
included in CD 5”—and “evidence of a minor departure in one area of the district has
only limited probative value with respect to the compliance of the district with
traditional redistricting criteria on the whole” and “is outweighed by the plaintiffs’
direct testimony that the black populations in CD 5 are culturally compact.” App. 177.
Second, the defendants reference Dr. Alan Murray, see Appl. 23, whose
opinions the district court found “unhelpful and unilluminating” when compared to
“[t]he time-tested, generally accepted statistical measures of compactness used by
other experts in this case.” App. 97. The defendants nevertheless rely on his “mileage
chart that showed the distance between the center of the Black populations in
communities across Louisiana.” Appl. 23–24. But they never explain why distance is
a proxy for dissimilarity or “why those distances are too great—especially for rural
regions such as the delta parishes included in CD 5. Indeed, it is not unusual for
30
districts in rural parts of Louisiana to span such distances.” App. 179. Dr. Murray’s
statewide analysis thus “has limited probative value with respect to the compactness
of the black voting population that would reside in plaintiffs’ proposed district—
especially in light of the plaintiffs’ direct evidence supporting compactness.” Ibid.
Third, the defendants briefly rely on the simulations analysis performed by Dr.
Christopher Blunt as proof of racial gerrymandering. See Appl. 3, 27. But the district
court found not only that “Dr. Blunt’s simulation analysis experience is best described
as novice,” but also that “the simulations he ran did not incorporate the traditional
principles of redistricting required by law”—including “minimizing precinct splits,
respecting communities of interest, incumbency protection, [and] even the criterion
considered paramount by Defendants, core retention”—and accordingly “merit little
weight.” App. 94–95. “In accord with that finding of fact,” the Fifth Circuit similarly
“discount[ed] his opinion as well for whatever purpose it could serve in showing the
compactness (or lack thereof) among the black voting population.” Id. at 178. In sum,
Dr. Blunt’s simulated plans demonstrate nothing of consequence—least of all that
the plaintiffs’ illustrative maps are unlawful racial gerrymanders.
The district court considered the credibility and contributions of the
defendants’ experts and concluded that their testimonies were neither helpful nor
illuminating—and the Fifth Circuit agreed. These factual determinations are entitled
to deference; the defendants have no meaningful evidence on the first precondition.
D.
The courts below applied the correct legal standard.
As a last-ditch merits argument, the defendants suggest that the plaintiffs
must establish more than a substantial likelihood of success on the merits to obtain
31
a preliminary injunction—even though this is precisely the standard the Secretary of
State urged below. See ECF No. 101 at 7. The defendants now suggest that a
“heightened” standard was required because the plaintiffs sought a mandatory
injunction. That is wrong twice over: The defendants offer no citation for a heightened
standard from this Court, and the plaintiffs sought a prohibitory injunction barring
the use of Louisiana’s enacted congressional plan—which is precisely what the
district court ordered. See App. 2. That the district court gave the Legislature an
opportunity to craft a remedial map—as this Court’s precedent generally requires,
see, e.g., Wise v. Lipscomb, 437 U.S. 535, 540 (1978) (plurality opinion)—does not
transform the prohibitory injunction into a mandatory injunction.
And importantly, the burden is flipped on appeal. As the Fifth Circuit correctly
noted, to obtain a stay, the defendants must make “a strong showing that [they are]
likely to succeed on the merits.” App. 170. They failed to do so, as shown by the Fifth
Circuit’s methodical refutation of each of their contentions of error. See id. at 171–90.
The Fifth Circuit’s observation that the plaintiffs’ entitlement to preliminary relief
does not guarantee permanent relief merely reflected the court’s careful attention to
the case’s posture. And the defendants do not—and cannot—cite to any material flaw
that the Fifth Circuit identified in the district court’s analysis.
Finally, the defendants fault the courts below for not reviewing whether the
underlying merits were “entirely clearcut” in the plaintiffs’ favor. Appl. 28 (quoting
Merrill v. Milligan, 142 S. Ct. 879, 881 (2022) (Kavanaugh, J., concurring)). But this
proposed standard is not binding law, and even if it were, (1) it would apply only in
32
the period “close to an election,” Merrill, 142 S. Ct. at 881 (Kavanaugh, J., concurring),
which is not the case here, see infra at 35–37; and (2) the standard is satisfied in any
event given that the defendants have identified no credible shortcomings in the
plaintiffs’ case or the district court’s order.
Ultimately, the conclusions of the courts below are based on the
straightforward application of well-established law to the undisputed record. The
defendants try to muddy the waters by insisting on legal standards unsupported by
caselaw and factual assertions unsupported by the record—a gambit that falls far
short of establishing their burden for the extraordinary relief they seek here.
II.
The balance of the equities weighs conclusively against a stay.
Like their merits arguments, the defendants’ equities arguments rely on
hyperbole and a seemingly pathological disregard for the factual record. Both the
district court and the Fifth Circuit were correct: A remedial plan can be feasibly
implemented ahead of the midterm elections, and a stay is not otherwise justified.
A.
The Purcell principle does not require a stay.
Notwithstanding their new argument that chaos will ensue if a remedial map
is now implemented, the defendants previously insisted that a redistricting plan for
the state’s 2022 congressional elections was not urgently needed—a position
ultimately supported by the factual record in this case.
1.
The defendants’ position is inconsistent with their prior
representations.
During state-court litigation in March of this year, Louisiana’s legislative
leaders made on-the-record representations about how the state’s unique election
33
calendar permits redistricting to occur during the summer—or even the autumn—of
an election year. As the district court recounted, the legislative leaders
asserted that: “the candidate qualification period could be moved back,
if necessary, as other states have done this cycle, without impacting
voters.” They further represented that: “[t]he election deadlines that
actually impact voters do not occur until October 2022. . . Therefore,
there remains several months on Louisiana’s election calendar to
complete the process.” There was no rush, they assured the court,
because Louisiana’s “election calendar is one of the latest in the nation.”
App. 146 (alterations in original) (emphasis added) (footnotes omitted) (quoting Suppl.
App. 47, 50). Despite opportunities to do so in three federal courts, the defendants
have not persuasively explained their extraordinary about-face.
Moreover, the defendants’ newfound insistence that a congressional map is
urgently needed is further belied by their persistent—and baseless—attempts to
delay this litigation. See, e.g., ECF No. 129 (legislative intervenors’ motion to restart
proceedings before three-judge court due to new claim purportedly asserted in
footnote of reply brief); ECF No. 131 (State’s motion to stay proceedings on eve of
preliminary-injunction hearing); ECF No. 200 (State’s proposal to delay remedial
hearing); ECF No. 201 (legislative intervenors’ proposal to delay remedial hearing by
nearly a month, until week of July 25, 2022); ECF No. 202 (Secretary of State’s
submission endorsing legislative intervenors’ proposed remedial timeline); ECF No.
223 at 3 (order denying State’s motion for extension as “a red herring for a delay”).
The district court has refused the many invitations to slow-walk these proceedings
and remains on pace to adopt an interim map well in advance of the July 20–22
candidate-qualifying period, and several months before the start of early voting on
October 25. See ECF No. 206 (ordering remedial hearing to be held on June 29, 2022).
34
After three months of asking both state and federal courts to slow down, the
defendants now have the temerity to suggest that time has run out. But while their
litigation tactics have apparently changed, the election calendar remains the same:
The October deadlines they cited in March remain October deadlines today. And the
Legislature could postpone the candidate-qualifying period now just as it could have
months ago—though that will not even be necessary. See App. 3.
2.
The preliminary injunction was not issued in the period
close to an election.
Neither Purcell v. Gonzalez, 549 U.S. 1 (2006) (per curiam), nor Merrill alters
this analysis. Purcell vacated an appellate order that reversed a district court and
suspended voter-identification rules mere weeks before an election. Id. at 4. This
Court faulted the court of appeals for failing “to give deference to the discretion of the
District Court” and explained that the risk of disenfranchisement created by the
challenged rules had to be weighed against the risk that the appellate decision itself
could “result in voter confusion and consequent incentive to remain away from the
polls.” Id. at 4–5. Like Purcell admonished, the district court’s factual findings here
are due considerable deference. But that is where the parallels end; the defendants
cannot seriously suggest that voters will avoid the polls in November due to confusion
over a new congressional map adopted in July.
Merrill is also readily distinguishable. Because the stay in that case was not
accompanied by any opinion for the Court, the defendants rely on Justice
Kavanaugh’s concurrence, which suggested that an election-related injunction may
be appropriate even “in the period close to an election” where, as relevant here, “the
35
changes in question are at least feasible before the election without significant cost,
confusion, or hardship.” Merrill, 142 S. Ct. at 881 (Kavanaugh, J., concurring). 11
Although Justice Kavanaugh did not define what constitutes “the period close to an
election,” it clearly does not encompass the period here—where the injunction was
issued 155 days before Louisiana’s primary elections—because after Merrill this
Court held that “sufficient time” remained for Wisconsin’s high court “to take
additional evidence” and adopt new state legislative maps 139 days before that state’s
primary elections. Wis. Legislature v. Wis. Elections Comm’n, 142 S. Ct. 1245, 1248,
1251 (2022) (per curiam). Every method of calculating the relevant period before the
election confirms that more time remains in this case than existed in the Wisconsin
litigation, and there is much more time here than the truncated period that concerned
the Court in Merrill. After this Court’s remand, final districts in Wisconsin were not
adopted until April 15, 116 days before the August 9 primary. See Johnson v. Wis.
Elections Comm’n, 972 N.W.2d 559, 586 (Wis. 2022). The parallel date for Louisiana’s
November 8 primary is July 15—well after the deadline the district court ordered for
final maps here. In Merrill, this Court’s order issued on February 7, 106 days before
Alabama’s May 24 primary. The parallel date in Louisiana is July 25. Similarly,
11 Justice
Kavanaugh would also consider the underlying merits, the irreparable
harm suffered by plaintiffs absent the injunction, and whether plaintiffs unduly
delayed in bringing suit. See Merrill, 142 S. Ct. at 881 (Kavanaugh, J., concurring).
Each of these considerations weighs in favor of the plaintiffs: Both the district court
and the Fifth Circuit have determined that the plaintiffs are likely to succeed on the
merits, see supra at 8–33; the defendants do not dispute that a stay will irreparably
harm the plaintiffs and other Black Louisianians; and the plaintiffs filed their
underlying complaints on the same day the challenged map was enacted.
36
Justice Kavanaugh noted that early voting would commence seven weeks from his
concurrence. Merrill, 142 S. Ct. at 879 (Kavanaugh, J., concurring). The parallel date
before early voting begins in Louisiana is not until September 4—11 weeks away.
The efficiency of Louisiana’s remedial process compares favorably to
Wisconsin’s in other respects. Whereas Wisconsin’s legislative maps include more
than 100 districts, Louisiana is apportioned only six congressional seats. And while
this Court faulted the Wisconsin Supreme Court for citing insufficient evidence to
justify the application of Section 2 in a malapportionment challenge, the district court
here held a week-long hearing and issued a 152-page opinion replete with the
necessary factual findings. No reopening of the evidentiary record is necessary. 12
3.
A new congressional map can be feasibly implemented.
Because Louisiana is not in the “period close to an election,” there is no need
to further analyze whether remedying the Section 2 violation is “feasible” without
“significant cost, confusion, or hardship.” Merrill, 142 S. Ct. at 881 (Kavanaugh, J.,
concurring). But that proposed test is satisfied in any event.
Defendants rely exclusively on the testimony of Sherri Hadskey, Louisiana’s
Commissioner of Elections, but nothing in her testimony indicates that
implementation of a new congressional map at this juncture would be unduly
burdensome or otherwise infeasible. Ms. Hadskey claimed that the adoption of a
12 The defendants also claim that Louisiana’s administrative obligations are more
burdensome than North Carolina’s, see Appl. 37–38, but North Carolina had to
geocode new voter assignments for congressional, state legislative, and local elections,
see State Respondents’ Appendix at 3, Moore v. Harper, No. 21A455 (U.S. Mar. 2,
2022). In Louisiana, most state and local elections are not held until 2023.
37
remedial redistricting map would require her to redo a few tasks and otherwise
prepare for the congressional primary elections in addition to her other duties. See
Appl. 32–35. For a 30-year veteran of election administration, see App. 173, these
routine assignments do not amount to “heroic efforts,” Appl. 5 (quoting Merrill, 142
S. Ct. at 880 (Kavanaugh, J., concurring)). As the district court and Fifth Circuit both
recognized, a recitation of administrative redistricting tasks resolves nothing—the
operative question is whether there is time for the usual duties to be completed, and
Ms. Hadskey’s testimony does not suggest otherwise. See App. 144–49, 191–96. Nor
do the defendants’ arguments in their application.
The defendants first note that “[a]ssigning voters to their districts is
complicated, time-consuming work.” Appl. 32. That might be so, but the defendants
cite no evidence for how much time that work will require, let alone how it could lead
to voter confusion. See App. 144, 193–94. Next, they report that the candidatequalifying period runs from July 20–22. Appl. 32–33. But the district court remains
on track to adopt a remedial map without disturbing this or any subsequent deadlines.
The defendants further assert, without citation, that “[b]allot programing must begin
no later than August 1, 2022.” Appl. 33. In fact, Ms. Hadskey testified that August 1
is the relevant date for receiving absentee-ballot envelopes, due to Louisiana’s unique
affidavit flap. See Suppl. App. 70–71. Envelope purchases have nothing to do with
redistricting. See App. 145 (questioning “how paper usage is affected by the shape of
Louisiana’s congressional districts”). Finally, the defendants flag that “voter
registration week begins on September 26, 2022,” followed by registration deadlines
38
and the start of early voting in October. Appl. 34. Here, the plaintiffs agree: These are
the relevant deadlines, and there is no risk that the remedial process will disrupt
them.
The district court credited the testimony of Matthew Block, Governor
Edwards’s executive counsel, who explained that Louisiana has a responsive elections
apparatus that is not only capable of implementing last-minute adjustments to
election dates and deadlines, but has done so several times in just the past decade.
See App. 79. “He stated that he was unaware of any electoral chaos that ensued, and
that he has heard nothing to dispute that the Secretary of State was able to
successfully administer these elections.” Ibid. The district court thus found,
consistent with the evidence presented, that “the implementation of a remedial
congressional map is realistically attainable well before the [] November elections.”
Id. at 142. There is no basis to second-guess this well-reasoned, record-based finding.
Ultimately, this Court should not allow gamesmanship to circumvent the
requirements imposed by federal law, nor should it allow a State to evade its legal
obligations by invoking Purcell without providing any supporting evidence. In
contrast to the defendants’ unjustified attempts at delay, the plaintiffs filed their
complaints mere hours after the Legislature enacted HB 1 and have diligently
pressed their case. The district court adopted a remedial schedule on the same
timeline that the defendants previously proposed in state-court litigation. Whatever
factors might weigh against the plaintiffs, the equities are certainly not among them.
39
B.
This Court’s stay in Merrill does not warrant a stay here.
The stay in Merrill did not strike Section 2 from the U.S. Code—Gingles and
its progeny remain good law, and four federal judges below have dutifully applied
binding precedent to the facts of this case and unanimously concluded that no stay is
warranted. The defendants speculate that this Court might refine the vote-dilution
inquiry next term, but, as the Fifth Circuit noted, “any decision likely will come long
after the 2022 elections, which are the subject of this appeal, have taken place. In
that context, staying these proceedings would not promote judicial economy, and the
defendants do not explain how a stay would serve the parties’ interests.” App. 197.
And unlike in Merrill, where this Court’s review of the three-judge district court’s
entry of a preliminary injunction was mandatory and exclusive, the defendants here
are already assured appellate review of the district court’s injunction in the coming
weeks. The defendants have not satisfied their “especially heavy burden” to stay the
injunction and bypass the Fifth Circuit’s review. Packwood, 510 U.S. at 1320.
CONCLUSION
The defendants ask this Court to “return both sensibility and the rule of law
to Louisiana’s redistricting process.” Appl. 11. But by weighing the evidence and
properly applying governing law, the district court already did that. The Fifth Circuit
has expedited the defendants’ appeal and will be able to rule on the merits in a timely
manner. The normal course of federal litigation should be allowed to proceed. This
Court’s extraordinary intervention is neither needed nor warranted, and the
defendants’ application should be denied.
40
Respectfully submitted,
/s/ Abha Khanna
Abha Khanna
Counsel of Record
Jonathan P. Hawley
ELIAS LAW GROUP LLP
1700 Seventh Avenue,
Suite 2100
Seattle, Washington 98101
(206) 656-0177
AKhanna@elias.law
Darrel J. Papillion
Renee C. Crasto
Jennifer Wise Moroux
WALTERS, PAPILLION, THOMAS,
CULLENS, LLC
12345 Perkins Road,
Building One
Baton Rouge, Louisiana 70810
(225) 236-3636
Lalitha D. Madduri
Olivia N. Sedwick
Jacob D. Shelly
ELIAS LAW GROUP LLP
10 G Street NE,
Suite 600
Washington, D.C. 20002
(202) 968-4490
June 23, 2022
41
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.