Reply Brief — Kyle Ardoin, Secretary of State of Louisiana, et al., Applicants v. Press Robinson, et al.

Supreme Court briefJun 24, 2022

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No. 21A814

In the Supreme Court of the United States

KYLE ARDOIN,

IN HIS CAPACITY AS THE

LOUISIANA SECRETARY OF STATE, ET AL.,

Applicants,

PRESS ROBINSON, ET AL.,

Respondents.

REPLY BRIEF IN SUPPORT OF

EMERGENCY APPLICATION FOR ADMINISTRATIVE STAY,

STAY PENDING APPEAL, AND

PETITION FOR WRIT OF CERTIORARI BEFORE JUDGMENT

JASON TORCHINSKY

PHILLIP M. GORDON

EDWARD M. WENGER

HOLTZMAN VOGEL JOSEFIAK

TORCHINSKY PLLC

15405 John Marshall Highway

Haymarket, VA 20169

Telephone: (540) 341-8808

Facsimile: (540) 341-8809

NELSON MULLINS RILEY &

SCARBOROUGH LLP

PHILLIP J. STRACH

THOMAS A. FARR

ALYSSA M. RIGGINS

4140 Parklake Avenue, Suite 200

Raleigh, NC 27612

Telephone: (919) 329-3800

JEFF LANDRY

Louisiana Attorney General

ELIZABETH B. MURRILL*

Solicitor General

*Counsel of Record

SHAE MCPHEE

Deputy Solicitor General

ANGELIQUE DUHON FREEL

CAREY TOM JONES

JEFFREY M. WALE

Assistant Attorneys General

LOUISIANA DEPARTMENT OF

JUSTICE

1885 N. Third St.

Baton Rouge, LA 70802

(225) 326-6766 phone

murrille@ag.louisiana.gov

Counsel for Applicants

TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................................................................... ii

REPLY ............................................................................................................................ 1

CERTIORARI BEFORE JUDGMENT IS WARRANTED BECAUSE REVERSAL OF THE

PRELIMINARY INJUNCTION IS LIKELY. .................................................................... 4

A. Because Black-preferred candidates can prevail without Section 2 relief

here, Plaintiffs cannot satisfy the third Gingles precondition. ....................... 6

B. Section 2 does not give the district court license to order a racial

gerrymander. .................................................................................................... 8

C. The district court’s Gingles precondition 1 legal errors justify a stay and

certiorari before judgment. ............................................................................. 12

II. THE EQUITIES TILT DRAMATICALLY IN FAVOR OF GRANTING A STAY...................... 14

CONCLUSION............................................................................................................. 17

TABLE OF AUTHORITIES

Cases

Abbott v. Perez,

138 S. Ct. 2305 (2018) ................................................................................................ 5

Ala. Legis. Black Caucus v. Alabama,

575 U.S. 254 (2015) .................................................................................................... 5

Baird v. Consol. City of Indianapolis,

976 F.2d 357 (7th Cir. 1992) ...................................................................................... 7

Bartlett v. Strickland,

556 U.S. 1 (2009) .................................................................................................... 5, 6

Bethune-Hill v. Va. State Bd. of Elections,

137 S. Ct. 788 (2017) ............................................................................................ 5, 14

Cooper v. Harris,

137 S. Ct. 1455 (2017) ............................................................................ 3, 5, 9, 10, 12

Covington v. North Carolina,

316 F.R.D. 117 (M.D.N.C. 2016), aff’d, 137 S. Ct. 2211 (2017)............. 5, 6, 9, 10, 12

Gordon v. Holder,

721 F.3d 638 (D.C. Cir. 2013)................................................................................ i, 17

Hays v. Louisiana,

839 F. Supp. 1188 (W.D. La. 1993), vacated, 512 U.S. 1230 (1994), order on

remand, 862 F. Supp 119 (W.D. La. 1994) ................................................................ 1

Hays v. Louisiana,

936 F. Supp. 360 (W.D. La. 1996) .............................................................................. 1

Hirabayashi v. United States,

320 U.S. 81 (1943) .................................................................................................. 4, 8

League of United Latin Am. Citizens, Council No. 4434 v. Clements,

999 F.2d 831 (5th Cir. 1993) ...................................................................................... 7

League of United Latin American Citizens v. Perry,

548 U.S. 399 (2006) .................................................................................................. 12

Merrill v. Caster,

No. 21-1087 (U.S.) (2022) ....................................................................................... 1, 2

Merrill v. Milligan,

142 S. Ct. 879 (2022) .................................................................................................. 2

Merrill v. Milligan,

No. 21-1086 (U.S.) (May 2, 2022) ............................................................................... 3

Miller v. Johnson,

515 U.S. 900 (1995) .......................................................................................... 8, 9, 14

Plessy v. Ferguson,

163 U.S. 537 (1896) .................................................................................................... 3

Shaw v. Reno,

509 U.S. 630 (1993) ...................................................................................... 3, 4, 8, 10

Singleton v. Merrill,

No. 2:21-cv-1291-AMM, 2022 U.S. Dist. LEXIS 17362

(N.D. Ala. Jan. 24, 2022) .......................................................................................... 16

Thornburg v. Gingles,

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

Voinovich v. Quilter,

507 U.S. 146 (1993) ................................................................................................ 5, 6

Wis. Leg. v. Wis. Elections Comm’n,

142 S. Ct. 1245 (2022) .......................................................................................... 5, 10

Other Authorities

52 U.S.C. § 10301 ........................................................................................................... 1

52 U.S.C. § 10301 (a) ..................................................................................................... 7

U.S. Const. amend. XIV ............................................................................................... 11

iii

The thicket currently engulfing Louisiana and crying out for this Court’s action

is reducible to a simple point. When Louisiana tried to include two majority-Black

districts after the 1990 Decennial Census, the federal courts told the State it couldn’t

without violating the Fourteenth Amendment’s Equal Protection Clause.1 Now—with

no meaningful change in the State’s demographics since 1990—a federal court says

Louisiana must include two majority-Black, or it will violate Section 2 of the Voting

Rights Act. As said best by the Western District of Louisiana, the State “share[s] the

frustration of the Australian who went bonkers trying to throw away his old

boomerang.” Hays v. Louisiana, 936 F. Supp. 360, 365 (W.D. La. 1996).

Standing alone, the district court’s decision to lodge Louisiana between a

constitutional rock and a statutory hard place warrants an administrative stay and

certiorari before judgment. The pendency of this Court’s decision in Merrill v. Caster,

a case presenting the same legal question at issue in this case,2 renders (at best)

imprudent the lower courts’ refusals to yield and await this Court’s Section 2

directive. And the wreck that the district court has continued to impose upon both

the State’s legislative and executive branches (which includes threatening a State

legislative leader with contempt after the State asked for an extension of time, see

1 See Hays v. Louisiana, 839 F. Supp. 1188, 1191 (W.D. La. 1993), vacated, 512

U.S. 1230 (1994), order on remand, 862 F. Supp 119 (W.D. La. 1994).

2 See Merrill v. Caster, No. 21-1087 (U.S.) (2022) (amending question presented as

follows: “Whether the State of Alabama’s 2021 redistricting plan for its seven seats

in the United States House of Representatives violated section 2 of the Voting Rights

Act, 52 U.S.C. § 10301”).

App. 456) elides all doubt that stopping this case now is essential.

In the absence of a stay, the district court is barreling forward toward enforcing

a mass equal protection violation, denying the State an orderly trial on the merits or

even an orderly trial on the remedial phase of the preliminary injunctions. So even if

the Fifth Circuit expedites its ultimate decision, it still will not arrive fast enough to

prevent irreparable harm to the State. Nor will Applicants be able to secure relief

from this Court after the Fifth Circuit issues its order—by then, it is likely that at

least a month, and probably more, will have slipped away with qualifying less than a

month away. Unless this Court acts now, it is unlikely that the State will be able to

manage the 2022 election cycle without “significant cost, confusion, or hardship.”

Merrill v. Milligan, 142 S. Ct. 879, 881 (2022) (Kavanaugh, J., concurring).

This Court will hear a case addressing the precise legal issues raised by the

Applicants, and it will do so on the second day of the next term. Merrill has teed up

the question of how to distinguish between racial “predominance” and racial

“awareness” for purposes of navigating between the Equal Protection Clause and

Section 2 of the Voting Rights Act. See Appl. for Stay or Injunctive Relief Pending

Appeal (21A376) at 28, Merrill v. Caster, No. 21-1087 (U.S.) (Jan. 28, 2022). It blinks

reality to assume that Merrill will not affect the legal standards governing this case—

which Justice Kavanaugh and Chief Justice Roberts agree are subject to

“considerable disagreement and uncertainty.” Merrill, 142 S. Ct. at 883 (Roberts,

C.J., dissenting). Staying this case and/or consolidating it with Merrill is the only

path forward that makes sense. Cf. Merrill v. Caster, No. 21-1087 (U.S.)

(consolidating case with No. 21-1086 for briefing and oral argument); see also Brief

for the States of Louisiana, et al., as Amici Curiae at 1, Merrill v. Milligan, No. 211086 (U.S.) (May 2, 2022) (noting concerns with confusion in this Court’s

jurisprudence interpreting Section 2 and that a district court’s misinterpretation of

this Court’s precedents only adds to the confusion).

Lest anyone doubt the stakes, the remedy to be ordered by the district court is

irreducibly and plainly “segregat[ion]” of “the races for purposes of voting.” Shaw v.

Reno, 509 U.S. 630, 642 (1993). Unless race ascends to the sole “non-negotiable”

district-drawing variable, see Cooper v. Harris, 137 S. Ct. 1455, 1470, 1480 (2017),

neither the State nor Plaintiffs' experts can draw Louisiana’s congressional maps

with two majority-Black districts.

Because “[t]he law regards man as man,” it must “take[] no account of his

surroundings or of his color.” Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J.,

dissenting). And despite the admirable goals of the Voting Rights Act, racial

gerrymandering of the ilk required by the district court remains antithetical to the

United States Constitution.

Nothing either set of Plaintiffs offers, or could offer, can change these

conclusions. Both focus almost entirely on the district court’s factual findings while

glossing over the legal errors pervading its analysis. Both try to contrive daylight

between this case and Merrill where none exists. And even if some daylight did exist

between the claims brought in Merrill and here, none whatsoever exists with this

case and Castor, which was consolidated with Merrill.

The Purcell doctrine here is being weaponized. But it’s not simply an

arithmetic exercise that gauges how temporally close to an election a federal court

may interfere with a state’s voting infrastructure. Instead, Purcell cautions federal

courts to not tamper with a state’s election apparatus in any way that will hinder the

“enormous advance preparations” that “state and local officials” must undertake to

make sure that elections run smoothly. Merrill, 142 S. Ct. at 880 (Kavanaugh, J.,

concurring). In the best of times, elections “pose significant logistical challenges.” Id.

For that reason, Purcell exists as a shield for election workers, not a sword for courts

to wield when they want to rush an otherwise immensely challenging redistricting

process.

CERTIORARI BEFORE JUDGMENT IS WARRANTED BECAUSE REVERSAL OF THE

PRELIMINARY INJUNCTION IS LIKELY.

Despite the numerous fact-bound mistakes the district court committed (and

the Fifth Circuit has thus far sanctioned), the errors justifying an emergency stay are

all legal and fundamental. When the district court insisted that the Louisiana

legislature draw two majority-Black districts it was necessarily requiring the State

to prioritize race (or else it would take on the task of prioritizing race itself). The

court flouted decades of this Court’s jurisprudence holding that “[c]lassifications of

citizens solely on the basis of race ‘are by their very nature odious to a free people

whose institutions are founded upon the doctrine of equality.’” Shaw, 509 U.S. at 643

(quoting Hirabayashi v. United States, 320 U.S. 81, 100 (1943)). So too, did it legally

misconstrue this Court’s Gingles precondition 3 pronouncement that “in the absence

of significant white bloc voting it cannot be said that the ability of minority voters to

elect their chosen representatives is inferior to that of white voters.” Voinovich v.

Quilter, 507 U.S. 146, 158 (1993) (quoting Gingles, 478 U.S. at 49 n.15). And, for good

measure, it ran afoul of this Court’s legal pronouncement that “uncritical majorityminority district maximization” does not satisfy Gingles precondition 1. Wis. Leg. v.

Wis. Elections Comm’n, 142 S. Ct. 1245, 1249 (2022) (per curiam).

Try as Plaintiffs might to construe this stay request as a plea for fact-bound

error correction, the legal errors permeating the lower courts’ opinions are stark,

acute, and entitled to no deference.3 As such, there is no good reason to waste judicial

resources allowing this case to proceed before the Fifth Circuit, which might (or might

not) resolve these issues several weeks (or more) from now. If the legal errors at the

heart of this case remain intact, they will transgress (at an absolute minimum)

Bethune-Hill, Shaw, North Carolina v. Covington, Cooper v. Harris, and Bartlett v.

Strickland, and they will reverberate throughout Louisiana’s 2022 election cycle and

beyond—all flowing from an injunction where the likelihood of success is concededly

not “entirely watertight.” See App. 199. A stay of the district court’s preliminary

3 See Thornburg v. Gingles, 478 U.S. 30, 79 (1986) (nothing “inhibits” the Court

from “correct[ing] errors of law,” and legal errors that “infect a so-called mixed finding

of law and fact” and even factfindings “predicated on a misunderstanding of the

governing rule of law” are reversible without deference to the district court. (internal

quotation marks omitted)); see also, e.g., Abbott v. Perez, 138 S. Ct. 2305, 2326 (2018)

(“While a district court’s finding of fact on the question of discriminatory intent is

reviewed for clear error, . . . whether the court applied the correct burden of proof is

a question subject to plenary review.” (citations omitted)); Bethune-Hill v. Va. State

Bd. of Elections, 137 S. Ct. 788, 797 (2017) (considering whether “the District Court

misapplied controlling law”); Ala. Legis. Black Caucus v. Alabama, 575 U.S. 254, 262

(2015) (“[E]ach of these determinations reflects an error about relevant law[, a]nd

each error likely affected the District Court’s conclusions.”).

injunction, a grant of certiorari before judgment, and (ultimately) a reversal of the

district court’s ill-conceived order are all warranted.

Because Black-preferred candidates can prevail without

Section 2 relief here, Plaintiffs cannot satisfy the third Gingles

precondition.

This Court spoke with clarity when it held that Gingles step 3 requires

evidence of “legally significant racially polarized voting.” Gingles, 478 U.S. at 55

(emphasis added). Legally sufficient racially polarized voting occurs when “less than

50% of white voters cast a ballot for the black candidate.” It is not the same as when

“black voters and white voters would have elected different candidates if they had

voted separately.” App. 328. The former is a correct statement of the law, as

emphasized in Gingles,4 as well as Bartlett v. Strickland, 556 U.S. 1, 24 (2009),5

Covington v. North Carolina, 316 F.R.D. 117, 168 (M.D.N.C. 2016), aff’d, 137 S. Ct.

2211 (2017),6 and Voinovich, 507 U.S. at 158.7 The latter is the erroneous definition

offered by Plaintiffs’ experts, accepted by the district court, and then blessed thus far

4 See Gingles, 478 U.S. at 56 (citations omitted) (plaintiffs must show that the

“amount of white bloc voting . . . can generally ‘minimize or cancel’ black voters’

ability to elect representatives of their choice” to satisfy Gingles precondition 1).

5 See 556 U.S. at 24

(“In areas with substantial crossover voting it is unlikely that

the plaintiffs would be able to establish the third Gingles precondition—bloc voting

by majority voters

6 See 316 F.R.D. at 168, aff’d, 137 S. Ct. 2211 (2017) (Gingles precondition 3 not

satisfied unless “majority bloc voting exist[s] at such a level that the candidate of

choice of African-American voters would usually be defeated without a VRA remedy”).

7 See Voinovich, 507 U.S. at 158 (“‘[I]n the absence of significant white bloc voting

it cannot be said that the ability of minority voters to elect their chosen

representatives is inferior to that of white voters.’” (quoting Gingles, 478 U.S. at 49,

n. 15)).

by the Fifth Circuit.

The way in which the Fifth Circuit strained to salvage the district court’s

finding on this point bears emphasis. In the Circuit Court’s view, it sufficed that the

issue of white “‘crossover voting,’” which defeats a claim of white bloc voting, “‘was

inherently included in’ the plaintiffs’ experts’ analysis.” App. 186 (emphasis omitted).

But the question whether white crossover voting reaches “legal[] significan[ce],”

Gingles, 478 U.S. at 31 (emphasis added), remains the fundamental legal question

for purposes of Gingles precondition 3, and the district court’s failure to analyze this

question according to the correct legal standard cannot be rendered harmless because

Plaintiffs’ witnesses addressed it “inherently,” App. 126.

Because Section 2 only prohibits vote dilution “on account of race or color,” 52

U.S.C. § 10301 (a), if something other than “race or color” “best explains” electoral

outcomes then Section 2 provides no remedy. More specifically, where, as here,

“partisan affiliation, not race, best explains the divergent voting patterns among

minority and white citizens,” League of United Latin Am. Citizens, Council No. 4434

v. Clements, 999 F.2d 831, 850 (5th Cir. 1993),8 a Section 2 plaintiff cannot carry his

burden of satisfying Gingles precondition 3. By ignoring this point, both the district

court and the Fifth Circuit committed legal error.

Despite spilling heaps of ink emphasizing the district court’s (erroneous)

8 See also Baird v. Consol. City of Indianapolis, 976 F.2d 357, 361 (7th Cir. 1992)

(Easterbrook, J.) (“The Voting Rights Act does not guarantee that nominees of the

Democratic Party will be elected, even if black voters are likely to favor that party’s

candidates.”).

factual findings, neither set of Plaintiffs has anything meaningful to say about the

district court’s legally flawed amalgamation of racially polarized and politically

polarized voting. The district court made no attempt to disentangle the two. The Fifth

Circuit did not mention this question at all. This series of legal errors justifies the

relief sought by Applicants.

Section 2 does not give the district court license to order a racial

gerrymander.

If the Fourteenth Amendment’s Equal Protection Clause stands for anything,

it is that “[c]lassifications of citizens solely on the basis of race ‘are by their very

nature odious to a free people whose institutions are founded upon the doctrine of

equality.’” Shaw, 509 U.S. at 643 (quoting Hirabayashi, 320 U.S. at 100). If “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), then a racial gerrymander exists. No direct evidence was offered as

to intent. Indeed, the Legislature endeavored to carefully navigate traditional

redistricting principles, as applied in numerous decisions by this Court, and do so

against a significant legal backdrop specific to Louisiana. And if ten-thousand

simulated Louisiana congressional maps using race-neutral criteria results in no

majority-Black districts,9 then, quite obviously, drawing Louisiana congressional

maps with two majority-Black districts requires “racial predominance,” and not just

9 That the district court thought that the Applicants’ simulation expert was a

“novice” cannot change the plain fact that cutting out race as a consideration results

in no majority-Black districts, and two majority-Black districts only emerge when

map drawers are instructed that they must draw two majority-Black districts.

racial “awareness.” Id.

Reaching this conclusion does not require “a comprehensive review of the

expert testimony.” Galmon Opp. 18. It turns on one indisputable fact. Plaintiffs’

experts were expressly instructed to only draw maps with two majority-Black

districts, App. 300-301, even though removing race as a consideration would not have

resulted in any map with even one majority-Black district. In other words, race was,

for Plaintiffs, the “non-negotiable” district-drawing variable, see Cooper, 137 S. Ct. at

1470. Notwithstanding the record-based haze that both sets of Plaintiffs try to kick

up, the upshot is unmistakable—prioritizing race, as a matter of basic English, means

that “race was the predominant factor.” Miller, 515 U.S. at 916. That, in turn,

translates into a constitutionally anathema racial gerrymander.

This case is indistinguishable from Covington. Indeed, the Galmon Plaintiffs

set this out quite nicely:



According to the Galmon Plaintiffs, in Covington, “race-neutral

districting criteria were subordinated to race-based goals.”

Galmon Opp. at 18 (quoting Covington, 316 F.R.D. at 137-40). By

instructing their experts to draw only two-majority-Black-district

maps, even though ten-thousand race-neutral simulations would

not produce even one majority-Black district, Plaintiffs did the

same here.



According to the Galmon Plaintiffs, in Covington, “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.” Galmon Opp. at

19 (quoting Covington, 316 F.R.D. at 316 F.R.D. at 137-38, 14346). As discussed below, see infra at 12-14, Plaintiffs’ illustrative

maps split numerous communities, cities, and precincts, and

cannot be considered compact in any sense of the word.



According to the Galmon Plaintiffs, in Covington, “the mapdrawer 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.’” Galmon Opp. at 19 (quoting Covington, 316

F.R.D. at 132). How this is any different than what Plaintiffs

instructed their experts to do remains a mystery known only to

them.



According to the Galmon Plaintiffs, in Covington, “the overriding

priority of the redistricting plan was to draw a predetermined

race-based number of districts, each defined by race.” Galmon

Opp. at 19 (quoting Covington, 316 F.R.D. at 135). At the risk of

redundancy, Plaintiffs’ expert testified that he “was specifically

asked to draw two” majority-Black districts “by the plaintiffs.”

App. 300-01.



And according to the Galmon Plaintiffs, in Covington, “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 Gingles factor in any potential VRA district.’”

Galmon Opp. at 19-20 (quoting Covington, 316 F.R.D. at 167). As

noted above, see supra at 7-8, the district court committed this

precise error, and the Fifth Circuit contorted its own precedents

to try and salvage it.

It matters not that “the plaintiffs’ illustrative maps are consistent with neutral

districting criteria.” Galmon Opp. at 21 (emphasis added). What matters is that

Plaintiffs’ illustrative maps prioritized race over neutral districting criteria when

they were required to draw their districts “without a focus on race,” Cooper, 137 S. Ct.

at 1471. That Plaintiffs’ experts spruced up their maps with traditional redistricting

criteria after they ensured a third of Louisiana’s congressional districts were

majority-Black cannot mutate their racial gerrymander into something less

invidious. Their illustrative maps remain “by [their] very nature odious.” Wis. Leg.,

142 S. Ct. at 1248 (quoting Shaw, 509 U. S. at 643). As noted below, the remedial

map they now ask the district court to adopt repeats the same constitutional

transgression.

While the Galmon Plaintiffs opted for a specious opposition, the Robinson

Plaintiffs chose an irrational one. In their view, it matters not that their illustrative

maps rankly violate the Fourteenth Amendment because “private citizens, are not

governed by the Equal Protection Clause.” Robinson Opp. at 32.10 But their

illustrative maps served one purpose—demonstrating what the State can do

consistent with its constitutional responsibility to refrain from “deny[ing] to any

person within its jurisdiction the equal protection of the laws.” U.S. Const. amend.

XIV. It makes no sense whatsoever to use constitutionally violative maps as an

“illustrative” example of what the State of Louisiana, a sovereign indisputably subject

to the United States Constitution, should adopt. Relieving them of this constraint

renders their evidence irrelevant to this entire endeavor. That the Robinson Plaintiffs

would offer this argument reveals their awareness that their experts prioritized race

and, accordingly, their illustrative maps constitute constitutionally odious racial

gerrymanders.

Louisiana cannot have two majority-Black congressional districts unless race

is elevated as the only essential districting factor with all other districting

considerations merely an afterthought. This commonsensical point does not require

the deep dive into all the expert testimony that Plaintiffs suggest. It arises from the

10 Plaintiffs’ assertion that “the district court has not ordered any remedial map

at all, much less a ‘racial gerrymander,’” Robinson Opp. at 32, is flatly incorrect.

Before they filed their opposition, Plaintiffs filed their court-ordered remedial map

with the district court. Robinson, et al. v. Ardoin, et al., No. 3:22-cv-211 (M.D. La.)

(ECF No. 225) (hereinafter, Robinson).

observation that if a map drawer is “instructed [] to draw enough VRA districts to

provide [Louisiana’s] African American citizens with a” second majority-Black

district, Covington, 316 F.R.D. at 132, then race is the “non-negotiable” districtdrawing variable, see Cooper, 137 S. Ct. at 1470.11 For these reasons, the relief

requested by Applicants is plainly warranted.

The district court’s Gingles precondition 1 legal errors justify a

stay and certiorari before judgment.

Finally, legal errors permeate the lower courts’ analyses regarding Gingles

precondition 1, which requires Plaintiffs to show that Louisiana’s Black population is

“sufficiently large” and “geographically compact.” Gingles, 478 U.S. at 50-51; see also

Cooper, 137 S. Ct. at 1470 (quoting Gingles, 478 U.S. at 50). Racial gerrymanders, as

a matter of law, cannot satisfy this requirement, which means Plaintiffs have failed

to satisfy this precondition for all the reasons discussed above. See supra at 10-11.

And now that Plaintiffs have submitted proposed remedial maps to the district court,

the way in which they suggest “reach[ing] out to grab small and apparently isolated

minority communities,” League of United Latin American Citizens v. Perry, 548 U.S.

399, 433 (2006) (LULAC), at the expense of all other traditional districting criteria,

has become even more obvious, as shown in the following picture:

11 This point is also accentuated by Plaintiffs’ decision to use the most expansive

definition of “Black” for calculating the Black Voting Age Population, which is yet

another independent legal error warranting this Court’s intervention.

Each of the areas circled in red dice apart parishes, cities, and communities of interest

that traditional districting criteria would otherwise leave intact.12 The only reason

why these abnormally drawn boundary lines exist are to pick up just enough Black

population to ensure that CD5 remains majority Black. And plaintiffs never even

bother to explain what Monroe’s Black population has in common with Baton Rouge’s

or Lafayette’s other than race. This failure compels the conclusion that Plaintiffs have

12 It bears noting that the municipalities and parishes split by Plaintiffs’ remedial

map are both legally and self-evidently communities of interest that should remain

intact. These areas have, among other things, their own elected leadership, police,

and schools. That Plaintiffs do not hesitate to carve them apart, at bottom resegregating them for the sole purpose of creating a second majority-Black district,

speaks volumes.

not, and cannot, satisfy Gingles precondition 1.

II.

THE EQUITIES TILT DRAMATICALLY IN FAVOR OF GRANTING A STAY.

Even setting aside every one of the errors discussed above, the stay requested

by Applicants is warranted by Purcell. The Purcell error committed by the district

court, affirmed by the Fifth Circuit, and perpetuated by both the Robinson and

Galmon Plaintiffs here is concluding that Purcell is a reason to expedite redistricting,

“‘a most difficult subject for legislatures,’” one “requiring a delicate balancing of

competing considerations.” Bethune-Hill, 137 S. Ct. at 797 (quoting Miller, 515 U.S.

at 915). That, however, flips one-hundred-eighty degrees the reason why the Court

created—and has since repeatedly applied—the Purcell doctrine. Purcell is not a

sword that a district court may unsheathe to, for instance, force a State to call an

extraordinarily short Extraordinary Session and then suggest (during that session)

that legislative officials suspend State legislative rules after tossing away months of

state legislative work. App. 437-38. Purcell is supposed to prevent unnecessary

breaches of federal/state comity and principles of federalism and avoid the kind of

pandemonium the district court has, and continues to, thrust upon Louisiana.

The infliction of this chaos is real and ongoing. After filing their emergency

application for a stay with this Court, the Applicants asked the district court to

extend its remedial phase deadlines until after this Court acts on the application. The

district court rejected this request in an excoriating order. It noted that “[t]he

Attorney General submit[ted] that an ‘extension,’ which is in reality a request for

stay, is required to allow ‘full discovery’ and argues that the Court’s order was unclear

on the parameters of discovery during the remedial phase.” Robinson (ECF No. 223

at 2) (scare quotes in original). In its view, however, “[t]he cry for ‘full discovery’ and

the invocation of due process is a red herring for a delay.” Id. at 3 (scare quotes in

original). In other words, the district court has resolved to plow ahead, no matter the

difficulties it is foisting upon several branches of Louisiana’s government and without

regard to the difficulties inherent in arriving at congressional districts in the midst

of an election year where qualifying is less than three weeks away from the court’s

rushed remedy trial.

Both sets of Plaintiffs largely ignore that Purcell involves far more than

counting the days between a federal-court injunction and an election. “[S]tate and

local election officials need substantial time to plan for elections,” Merrill, 142 S. Ct.

at 880 (Kavanaugh, J., concurring) (emphasis added), and that planning needs to

occur now. Moving any of Louisiana’s election deadlines necessarily compresses

others, adding immense stress to the State’s election apparatus during a time at

which it must accomplish innumerable other tasks. See Application at 30-39.

Because Purcell involves balancing of harms, it does not suffice to simply count

days and compare the delta between an injunction and an election with the delta in

other cases. For that reason, the Court’s decision not to apply Purcell in Wisconsin

Legislature v. Wisconsin Elections Commission has no bearing whatsoever on

whether the Court should apply Purcell here. Wisconsin’s state-court redistricting

processes have no conceivable relation to legislative-based processes that Louisiana

prefers, and neither set of Plaintiffs make any attempt to compare the election

preparations between the two States.

That the Fifth Circuit set argument for July 8, 2022, does nothing to change

how Purcell operates for purposes of this case. July 8, 2022, is also the court-extended

deadline for candidates to file by nominating petition; candidate qualifying closes on

July 22, 2022. There can be no doubt that more deadline disruption is to come. State

law affords citizens just one week to object to the candidacy of any person running for

election, which means they must do so by July 29, 2022. There is no conceivable way

the Fifth Circuit can resolve this case in enough time to prevent the rapidly

approaching cascade of electoral turmoil that will ensue if this Court declines to act.

In other words, allowing this case to proceed before the Fifth Circuit will result

in nothing other than a colossal waste of state and judicial resources. After Merrill,

the parties and the courts will almost certainly need to start this process from scratch

to ensure Merrill is correctly applied. And between now and when the Court decides

Merrill, Louisiana is suffering and will continue to suffer electoral havoc, while its

citizens labor under the specter of a statewide Equal Protection violation.

It bears noting, also, that there is no daylight between the timing this Court

found problematic in Merrill and the timing here. Justice Kavanaugh’s concurrence

looked to Alabama’s election dates; in that case, the district court entered an

injunction in late January 2022—four months before the next in-person voting date

and two months before mail-in voting was set to commence. See Singleton v. Merrill,

No. 2:21-cv-1291-AMM, 2022 U.S. Dist. LEXIS 17362, at *256-57 (N.D. Ala. Jan. 24,

2022). In this case, the district court issued an injunction in June—five months before

in-person voting begins on November 8; two-and-a-half months before the federally

mandated date (September 24) for the State to issue ballots to overseas voters; and

weeks before candidates may start qualifying by petition (which forced the district

court to start extending statutory deadlines). Plaintiffs’ suggestion that “Merrill

is . . . readily distinguishable,” then, is flat wrong. Robinson Opp. at 35.

CONCLUSION

For all these reasons, the Applicants request that the Court (1) immediately

enter an administrative stay, (2) enter a stay pending appeal, and (3) construe this

stay application as a petition for writ of certiorari before judgment, grant it, expedite

it and consolidate it, or alternatively grant it and hold in abeyance pending the

Court’s decision in Merrill.

Respectfully submitted,