Statement as to jurisdiction — Charles Walen, et al., Appellants v. Doug Burgum, Governor of North Dakota, et al.

Supreme Court briefMar 4, 2024

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No._______

In The

Supreme Court of the United States

CHARLES WALEN AND PAUL HENDERSON,

Plaintiffs-Appellants,

DOUG BURGUM, in his official capacity as

Governor of the State of North Dakota; MICHAEL HOWE,

in his official capacity as Secretary of State of North Dakota,

Defendants-Appellees,

The MANDAN, HIDATSA, and ARIKARA NATION;

CESAR ALVAREZ; and LISA DEVILLE,

Defendant-Intervenors/Appellees.

On Appeal from the United States District Court

for the District of North Dakota

JURISDICTIONAL STATEMENT

Dalton L. Oldham

Dalton L. Oldham LLC

137 Edgewater Lane

Lexington, SC 29072

Telephone: 803-772-7729

Robert Harms

The Harms Group

Box 2732

Williston, ND 58802

Telephone: 701-471-0959

Bryan P. Tyson*

Bryan F. Jacoutot

Diane F. LaRoss

The Election Law Group

1600 Parkwood Cir.

Suite 200

Atlanta, GA 30339

Telephone: 678-336-7249

*Counsel of Record

Counsel for Appellants Charles Walen and Paul Henderson

LANTAGNE LEGAL PRINTING

1108 East Main Street Suite 1201 Richmond VA 23219 (800) 847-0477

QUESTIONS PRESENTED

After North Dakota adopted a new legislative

redistricting plan in 2021, Appellants challenged the

creation of two new majority-Native-American

subdistricts as drawn primarily based on race in

violation of the Equal Protection Clause of the

Fourteenth Amendment. At summary judgment, the

three-judge district court assumed race

predominated in the creation of the subdistricts, but

still granted judgment in favor of Defendants. The

district court relied on the racial makeup of the

subdistricts and testimony to the legislature,

inappropriately weighing and ignoring evidence

about whether the districts were needed to comply

with the Voting Rights Act (VRA).

The questions presented are:

1. Whether the district court erred by

applying the incorrect legal standard when

deciding that the legislature had good

reasons and a strong basis to believe the

subdistricts were required by the VRA.

2. Whether the district court erred by

improperly weighing the evidence and

granting inferences in favor of the moving

party at summary judgment instead of

setting the case for trial.

3. Whether the district court erred when it

found that the legislature’s attempted

compliance with Section 2 of the VRA can

justify racial sorting of voters into districts.

PARTIES TO THE PROCEEDING

The following were parties in the Court below:

Plaintiffs/Appellants: Charles Walen and Paul

Henderson.

Defendants: Doug Burgum, in his official

capacity; Michael Howe in his official capacity.

Defendant-Intervenors: The Mandan, Hidatsa,

and Arikara Nation; Cesar Alvarez; and Lisa Deville.

iii

TABLE OF CONTENTS

Page

Questions Presented .................................................... i

Parties to the Proceeding ............................................ ii

Table of Authorities ................................................... vi

Introduction ................................................................. 1

Opinion Below ............................................................. 2

Jurisdiction.................................................................. 3

Constitutional Provisions Involved ............................ 3

Statement of the Case ................................................. 3

A. The North Dakota 2021 redistricting plan. ... 3

B. The challenge to the subdistricts. .................. 6

Reasons for Summarily Reversing or Noting

Probable Jurisdiction............................................ 8

The district court erred in concluding that

there was sufficient evidence to determine

the subdistricts were required to comply with

the Voting Rights Act. .................................. 11

A. The district court applied the wrong legal

standard when it reviewed the

legislature’s decision-making. ............... 11

1. The district court’s analytical

process.............................................. 13

2. Factors the district court failed to

consider. ........................................... 15

B. The district court erred by finding all the

Gingles factors were met, ignoring

evidence of racial makeup and past

candidate success. .................................. 18

C. The district court did not correctly apply

the required totality-of-thecircumstances review. ............................ 22

1. The district court failed to review the

totality of the circumstances at all. 23

2. The district court failed to consider

the impact of proportionality as to

District 4. ......................................... 25

II. The district court improperly resolved this

racial-gerrymandering case on summary

judgment. ...................................................... 28

A. The district court’s decision on racial

predominance was wrong. ..................... 29

B. The district court erred in granting

summary judgment to Defendants

because reaching that result required

weighing the evidence and drawing

inferences of favor of the moving party. . 30

III. The district court erred in determining that

compliance with the Voting Rights Act

justifies this racial gerrymander. ................ 35

IV. Summary reversal is the correct remedy in

this case. ....................................................... 37

Conclusion ................................................................. 38

Appendix:

Order of the United States District Court for the

District of North Dakota on Motions for Summary

Judgment, filed November 2, 2023 .......................... A1

Notice of Appeal to the United States Supreme

Court, filed January 2, 2024 .................................. A29

TABLE OF AUTHORITIES

Cases

Abbott v. Perez, 138 S. Ct. 2305 (2018)........ 12, 13, 25

Ala. Legislative Black Caucus v. Alabama, 135 S. Ct.

1257 (2015) .............................................8, 12, 24, 36

Allen v. State Bd. of Elections, 393 U.S. 544 (1969) 21

Alpha Phi Alpha Fraternity v. Raffensperger, 587 F.

Supp. 3d 1222 (N.D. Ga. 2022) ............................. 11

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)

......................................................................... 28, 32

Bethune-Hill v. Va. State Bd. of Elections, 141 F.

Supp. 3d 505 (E.D. Va. 2015) ............................... 16

Bethune-Hill v. Va. State Bd. of Elections, 326 F.

Supp. 3d 128 (E.D. Va. 2018) ......................... 17, 25

Bethune-Hill v. Va. State Bd. of Elections, 580 U.S.

178 (2017) .............................................16, 17, 29, 36

Brnovich v. Dem. Nat’l Comm., 141 S. Ct. 2321

(2021) ............................................................... 15, 23

Burton ex rel. Republican Party v. Sheheen, 793 F.

Supp. 1329 (D.S.C. 1992) ...................................... 37

Bush v. Vera, 517 U.S. 952 (1996) ..................... 11, 36

Celotex Corp. v. Catrett, 477 U.S. 317 (1986) .......... 28

City of Mobile v. Bolden, 446 U.S. 55 (1980) ........... 21

vii

Cooper v. Harris, 581 U.S. 285

(2017) ..............................................13, 15, 23, 29, 36

Cousin v. McWherter, 46 F.3d 568 (6th Cir. 1995).. 24

Ga. State Conference of the NAACP v. Fayette Cty.

Bd. of Comm’rs, 775 F.3d 1336 (11th Cir. 2015) . 24

Hunt v. Cromartie, 526 U.S. 541 (1999) ...... 28, 31, 33

Johnson v. De Grandy, 512 U.S. 997

(1994) ..............................................22, 23, 24, 26, 27

Johnson v. Wis. Elections Comm’n, 2022 WI 14, 400

Wis. 2d 626 (Wis. March 1, 2022) ......................... 15

League of United Latin Am. Citizens v. Perry, 548

U.S. 399 (2006) ................................................ 14, 22

McIntosh Cnty. Branch of the NAACP v. City of

Darien, 605 F.2d 753 (5th Cir. 1979) ................... 24

Miller v. Johnson, 515 U.S. 900

(1995) .................................... 8, 12, 13, 15, 29, 35, 36

Monroe v. City of Woodville, 688 F. Supp. 255 (S.D.

Miss. 1988), vacated on other grounds by 493 U.S.

915 (1989) .............................................................. 20

Page v. Bartels, 248 F. 3d 175 (3d Cir. 2001) .......... 21

Shaw v. Hunt, 517 U.S. 899 (1996) ......................... 22

Shaw v. Reno, 509 U.S. 630 (1993)................ 8, 12, 35

Singleton v. Merrill, 582 F. Supp. 3d 924 (N.D. Ala.

2022) ...................................................................... 11

viii

Solomon v. Liberty County Comm’rs, 221 F.3d 1218

(11th Cir. 2000) ..................................................... 15

Statewide Reapportionment Advisory Comm. v.

Beasley, 99 F.3d 134 (4th Cir. 1996) .................... 37

Statewide Reapportionment Advisory Comm. v.

Theodore, 508 U.S. 968 (1993) ........................ 10, 37

Students for Fair Admissions, Inc. v. President &

Fellows of Harvard Coll., 600 U.S. 181 (2023) .... 27

Thornburg v. Gingles, 478 U.S. 30 (1986) ..... 8, 14, 19

Turtle Mt. Band of Chippewa Indians v. Howe, No.

3:22-cv-22, 2023 U.S. Dist. LEXIS 206894 (D.N.D.

Nov. 17, 2023) ...................... 5, 19, 20, 21, 22, 32, 34

Wis. Legis. v. Wis. Elections Comm’n, 142 S. Ct. 1245

(2022) ................................................................. 8, 12

Statutes

28 U.S.C. § 1253 .......................................................... 4

28 U.S.C. § 2284 .......................................................... 8

52 U.S.C. § 10301 ............................................ 2, 16, 38

N.D. Const. art. IV, § 2 ........................................... 4, 5

U.S. Const. amend. XV, § 2 ....................................... 38

INTRODUCTION

North Dakota legislators drew two new

majority-Native-American subdistricts on their 2021

legislative plan primarily based on race without

conducting any sort of analysis of whether the

subdistricts were actually required by Section 2 of

the Voting Rights Act, 52 U.S.C. § 10301 (“VRA”). In

this racial-gerrymandering lawsuit challenging the

legislature’s decision to create those subdistricts, the

district court assumed race guided the design of the

districts, but found strict scrutiny was satisfied

without conducting a trial.

In granting summary judgment to Defendants,

the three-judge district court ignored evidence that

District 9 was already majority-Native-American

and electing a tribe member without subdistricting.

It also failed to consider whether District 4, which

had also previously elected a tribal member without

subdistricting, resulted in more districts for Native

Americans than their proportion of the population.

The district court also weighed the evidence,

reviewing the application of some of the Gingles

preconditions and failed to examine the totality of

the circumstances while drawing inferences in favor

of the moving party, instead of Appellants.

Defendants, when attempting to carry their

burden of showing compliance with the VRA as a

defense, only presented conclusory statements

professing a belief that racially focused districts

were required. The district court then uncritically

accepted this evidence. But shortly after the district

court granted summary judgment to Defendants, a

different single-judge district court determined that

one of the challenged districts actually violated the

VRA.

Given the contrary evidence and lack of trial to

test the facts, even if the district court was right on

the law, it relied on facts construed against the nonmoving party at summary judgment. In any event,

this case should have been set for trial, not

dismissed at summary judgment.

This Court should summarily reverse the

district court and require it to set the case for trial to

review the legislature’s decision to create

subdistricts based on race on a full evidentiary

record. Or this Court should set the case for briefing

and argument.

OPINION BELOW

The district court’s opinion is available at 2023

US Dist. LEXIS 198167 and is reproduced at App.

A1-A28.

JURISDICTION

This Court has jurisdiction over this direct

appeal under 28 U.S.C. § 1253. The district court

issued its judgment on November 2, 2023.

Appellants filed their notice of appeal on January 2,

2024. App. A29-A30.

CONSTITUTIONAL PROVISIONS

INVOLVED

The relevant Constitutional provision is the

Equal Protection Clause of the Fourteenth

Amendment to the United States Constitution.

STATEMENT OF THE CASE

A. The North Dakota 2021 redistricting

plan.

The North Dakota Constitution requires the

Legislative Assembly to develop a legislative

redistricting plan following each decennial Census.

N.D. Const. art. IV, § 2. Following the 2020 Census

results, a Redistricting Committee developed a plan

to present to the Legislative Assembly with the goal

of implementing it in time for North Dakota’s 2022

primary and subsequent general elections. App. A4;

ECF 109-5, 20, 29.

North Dakota uses a “nested” system for

legislative districts, with the population contained in

each Senate district electing one Senator and two

House members “at large or from subdistricts from

those districts.” N.D. Const. art. IV, § 2, App. A3. In

certain circumstances, the legislature may create

“subdistricts” for the election of House members by

dividing the Senate district into two parts with each

subdistrict electing one House member. Id. In the

2021 plan, the legislature created subdistricts for the

first time in Districts 4 and 9. ECF 104-17.

From the outset of the 2021 redistricting

process, the Redistricting Committee took the

position that the Voting Rights Act required the

creation of subdistricts for the two Native American

reservations (in Districts 4 and 9) but did little to

establish the basis for that belief. As became

apparent, the legislature chose to gerrymander

Districts 4 and 9 to achieve its racial goals

elsewhere.

At preliminary meetings in the summer of

2021, discussion of the subdistricts focused primarily

on the threat of litigation under the VRA if the

legislature did not draw the subdistricts on the plan.

ECF 100-1, 38:10-14, 127:8-11, 128:13-14. The

Redistricting Committee also heard testimony on the

need for statistical analysis of North Dakota’s

elections before determining whether the updated

population demographics required racially

gerrymandered districts under the VRA. ECF 100-1,

39:9-40:18, 43:1-21. Despite the testimony the

Committee heard, it never hired any experts or even

casually considered the kind of statistical data

traditionally analyzed when looking at the potential

for racially polarized voting in a given area. ECF

100-8, 40:11-16, 44:1-7, 45:6-16.

Instead, the legislators singularly focused on

the numerical ability to draw the Native-American

districts, which they believed justified drawing the

subdistricts, based on the configuration the Senate

districts. ECF 100-6, 23:14-18. The committee chair

explained in the floor debate that the legislature had

“no choice under federal law and the constitution,”

but to subdivide Districts 4 and 9. ECF 100-9, 22:217; ECF 100-8, 18:5-23.

While the North Dakota constitution authorizes

subdistricts, N.D. Const. art. IV, § 2, Districts 4 and

9 were the only districts that were subdivided on the

plan. ECF 104-17, p. 1. All of the remaining districts

elect House members at-large. Id.

The reasons to subdivide—beyond the fact the

subdistricts simply could be drawn—are not clear.

District 9 was drawn as barely majority-NativeAmerican as a whole and had elected Senator

Marcellais, a tribal member and former chair of the

Turtle Mountain Tribe in a district with a greater

majority of Native voters before the changes.

Senator Marcellais offered an amendment to

eliminate the subdistricts completely. ECF 100-9,

10:1-11:9. In so doing, he voiced his concern that the

plan for subdistricts 9A and 9B “show 81 percent

Native American” in one of the subdistricts, which

he said “would be packing.”1 Id. The subdividing of

District 9 resulted in Native American voters only

1 Indeed, as discussed below, a single-judge district court later

determined that District 9 as drawn was packed in violation

of Section 2. Turtle Mt. Band of Chippewa Indians v. Howe,

No. 3:22-cv-22, 2023 U.S. Dist. LEXIS 206894, at *53 (D.N.D.

Nov. 17, 2023).

having a majority for one representative instead of

two. ECF 100-9, 28:4-15.

District 4 had also elected a tribal member in

the past without being subdivided.2 See Biography of

Dawn Charging, available at

https://ndlegis.gov/biography/dawn-marie-charging

None of this mattered to the legislature, which

ignored concerns that the Gingles preconditions were

not satisfied and the racial design of the districts.

ECF 100-7, 35:7-11; ECF 100-9, 28:4-15, 31:17-25,

37:24-38:15. The House and Senate narrowly voted

to approve the creation of subdistricts in Districts 4

and 9 and then to approve the 2021 Plan in its

entirety. ECF 100-8, 2:2-3:15, 62:19-22; ECF 100-9,

45:7-20.

Subdistrict 4A was drawn along the exact

boundaries of the Fort Berthold Reservation. App.

A6. District 9A closely followed the boundaries of the

Turtle Mountain Reservation. App. A7. After the

legislature approved the plan, Governor Burgum

signed the 2021 Plan into law. App. A8.

B. The challenge to the subdistricts.

Appellants challenged the North Dakota

Legislature’s creation of subdistricts 4A, 4B, 9A, and

9B—the only subdistricts in the plan—as racially

gerrymandered districts in violation of the Equal

2 This Court can take judicial notice of past election results and

the individuals elected because they are not subject to

reasonable dispute. F.R.E. 201.

Protection Clause of the Fourteenth Amendment.

App. A11 fn.2. Pursuant to 28 U.S.C. § 2284, a threejudge panel convened to hear the case.

After discovery, Appellants and Defendants

filed competing motions for summary judgment. The

district court ruled that there were disputed issues

of material fact as to whether race predominated in

the legislature’s decision to create the two Native

American subdistricts. App. A15. But it nevertheless

proceeded to assume that race predominated the

decision and analyzed whether the legislature had

“good reason” and there was “strong evidence” that

“the subdistricts are narrowly tailored to the State’s

compelling interest in complying with the VRA.”

App. A16-A17.

In so doing, the district court never considered

past election returns, statistics about the districts

prior to subdistricting, racially polarized voting

analyses, the impact of partisanship on voting

patterns, avoidance of packing, or other types of

analyses this Court has found necessary to assert a

VRA defense to racial gerrymandering.

The district court ultimately denied Appellants’

motion for summary judgment and granted the

motions filed by Defendants and DefendantIntervenors, upholding the legislature’s decision to

racially subdivide Districts 4 and 9 as a matter of

law. App. A27. This appeal followed.

REASONS FOR SUMMARILY

REVERSING OR NOTING PROBABLE

JURISDICTION

States frequently raise compliance with the

Voting Rights Act (VRA) as a defense to a racialgerrymandering claim. But determining whether the

VRA required the racial sorting on the challenged

plan involves an “intensely local appraisal” of the

facts that apply to that district. Thornburg v.

Gingles, 478 U.S. 30, 79 (1986). Accordingly, mere

references to population changes and general

concerns about future litigation cannot provide

sufficient justification for racial gerrymandering—

this Court’s precedents require more.

Federal courts cannot simply take a state’s

word that a racially drawn district was necessary to

comply with the VRA. See, e.g., Shaw v. Reno, 509

U.S. 630, 638 (1993); Miller v. Johnson, 515 U.S.

900, 921 (1995); Ala. Legislative Black Caucus v.

Alabama, 135 S. Ct. 1257, 1272 (2015); Wis. Legis. v.

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

But that is what the district court did in this case.

The district court short-circuited the analytical

process for the State’s VRA defense by assuming the

districts were drawn primarily based on race, then

moved directly to the question of strict scrutiny.

That approach led to at least three errors.

First, the district court engaged in no

independent analysis into whether the VRA required

the challenged districts based on the totality of the

circumstances. Instead, it relied on the legislature’s

awareness of population demographics suggesting

the districts could be drawn, and did not conduct any

sort of local appraisal—intense or otherwise.

Instead, it cherrypicked conclusory legislative

statements and public comments, taking them at

face value and finding them dispositive to the

defense of the plan. The district court ignored

evidence that the districts were already electing

tribal members. It ignored evidence that District 9

was majority-Native-American before subdistricting,

including tribal members being elected for decades.

It ignored evidence that subdividing led to a superproportional result for Native Americans in District

4. Defendants’ VRA defense requires far more than

relying on mere legislative beliefs and requires

affirmative evidence. The district court’s analytical

process also collapsed the analysis regarding the

totality of the circumstances into a single factor—

guaranteeing the success of Native Americanpreferred candidates of the Democratic Party—

which is insufficient to show the VRA requires

drawing districts based on race.

Second, instead of deciding this case at trial,

the district court construed the evidence before it

against the non-moving party (Appellants) when

granting Defendants’ motions for summary

judgment. Not only do Defendants carry the burden

when asserting Section 2 as a defense, but finding a

potential violation of Section 2 requires a developed

factual record and weighing facts. The district court

cannot ignore evidence favoring Appellants at

summary judgment and was required to draw

inferences in favor of Appellants, not against them.

Third, the district court found that compliance

with the VRA justifies, as a matter of law, the racial

sorting it assumed took place in the creation of the

subdistricts. While this Court has always assumed,

without deciding, that compliance with Section 2 is

enough to meet strict scrutiny, the district court took

a shortcut without sufficient evidence. On these

facts, compliance with Section 2 of the VRA cannot

justify prohibited racial sorting.

The district court applied the wrong legal

standard at the wrong stage of the case. Rather than

resolve this case—riddled with contested facts—at

summary judgment, the district court should have

set the case for trial where it could properly weigh

the facts and judge the credibility of witnesses before

it. In addition, the district court applied the wrong

legal standard with respect to its VRA analysis,

giving far too much weight to the legislature’s

purported goal of compliance and finding as a matter

of law that the few cursory steps taken by the

legislature wholly justifies districts drawn primarily

based on race. This Court should summarily reverse

the decision of the district court, see Statewide

Reapportionment Advisory Comm. v. Theodore, 508

U.S. 968 (1993) (summarily reversing three-judge

panel decision in redistricting case), and require the

case to proceed to trial.

The district court erred in concluding that

there was sufficient evidence to determine

the subdistricts were required to comply

with the Voting Rights Act.

The district court applied the

wrong legal standard when it

reviewed the legislature’s decisionmaking.

The district court assumed that race

predominated in the creation of the subdistricts but

then concluded in fewer than five pages of analysis

(one that was simply reprinting a legislative report)

that this racial sorting was allowed by the

Constitution because the VRA required it.3 But the

district court failed to consider that “[s]trict scrutiny

remains, nonetheless, strict.” Bush v. Vera, 517 U.S.

952, 978 (1996). Instead, it took a shortcut, finding

that, because the legislature seemed to believe some

of the Gingles preconditions existed for the

subdistricts, that was enough to allow it to racially

gerrymander. But the legislature was required to

conduct some kind of analysis to support its claim of

VRA compliance as a compelling government

interest. Or, at minimum, the district court should

have conducted that analysis. But no one in this case

3 The district court’s approach here is in sharp contrast to other

district courts considering Section 2 claims against legislative

plans. See e.g., Alpha Phi Alpha Fraternity v. Raffensperger,

587 F. Supp. 3d 1222, 1326 (N.D. Ga. 2022) (over 100 reported

pages of analysis on preliminary injunction related to Section

2); Singleton v. Merrill, 582 F. Supp. 3d 924, 1035 (N.D. Ala.

2022) (same).

did. And when another district court undertook such

an analysis, it found District 9 violated the VRA.

North Dakota’s claim that it was just trying to

follow the VRA when it drew districts based on race

is not unusual. Jurisdictions facing lawsuits about

racial predominance in drawing district plans

regularly point to the VRA as justification. See, e.g.,

Shaw, 509 U.S. at 638 (“the State’s purpose here was

to comply with the Voting Rights Act”); Miller, 515

U.S. at 921 (“the State’s true interest in designing

the Eleventh District was creating a third majorityblack district to satisfy the Justice Department[]”);

Ala. Legislative Black Caucus, 135 S. Ct. at 1272

(State claimed that “insofar as [its] redistricting

embodied racial considerations, it did so in order to

meet this §5 [of the VRA] requirement”); Wis. Legis.,

142 S. Ct. at 1249 (Governor “claim[ed] that the VRA

required the seven majority-black districts that he

drew”).

It makes sense that jurisdictions would attempt

to rely on the VRA to justify race-based districting

because while “the Equal Protection Clause restricts

consideration of race . . . the VRA demands

consideration of race.” Abbott v. Perez, 138 S. Ct.

2305, 2315 (2018). But merely asserting the

conclusory justification that a state believes a

particular racially sorted district is necessary for

compliance with the VRA is not enough. Nor is this

belief—however earnest—sufficient to demonstrate

the necessary “strong basis in evidence” before

concluding the VRA requires a particular district.

Even if Defendants stood on better evidentiary

footing in this regard, the district court must also

determine if the VRA actually requires such a racepredominant district configuration in the first place

because the district must be “necessary under a

proper interpretation of the VRA.” Cooper v. Harris,

581 U.S. 285, 306 (2017) (emphasis added); see also

Miller, 515 U.S. at 921.4

The district court’s analytical

process.

The district court completely failed in its

obligation to determine if Defendants’ interpretation

of the VRA was proper. Instead, it cited largely lay

commentary from just five non-expert members of

the public5 discussing the growth of Native

American populations and various elements of the

Gingles preconditions. App. A21-A22. It also cited

the final report of the Redistricting Committee,

which focused primarily on whether the legislature

had the numerical ability to draw a majority-NativeAmerican subdistrict in Districts 4 and 9. App. A22A25). Besides this loose consideration of the Gingles

preconditions, the only additional factor referenced

was the success of Native-American-preferred

candidates who are Democrats. App. A26. The

4 On previous occasions when this Court considered defenses

from jurisdictions that claimed they were following Section 2,

it has consistently found those claims were not based on a

correct interpretation of Section 2. See, e.g., Vera, 517 U.S. at

979 (Gingles prong 1); Cooper, 581 U.S. at 306 (Gingles prong

3); Wis. Legis., 142 S. Ct. at 1250 (Gingles 1 and totality);

Abbott, 138 S. Ct. at 2334-35 (lack of sufficient inquiry).

5 None of the witnesses provided any statistical analyses relied

on by the legislature.

district court then concluded that “the Redistricting

Committee considered possible voter dilution claims

under Section 2 by Native American voters and

whether Native American voters would be able to

satisfy the Gingles preconditions without the

subdistricts.” App. A25 (emphasis added).

The district court never considered past

election returns, statistics about the districts prior to

subdistricting, racially polarized voting analyses, the

impact of partisanship on voting patterns, avoidance

of packing, or other types of analyses this Court has

found necessary to assert a VRA defense to racial

gerrymandering. Instead, it relied on the fact that

the districts could be drawn.

But even if the legislature conducted a

searching inquiry or functional analysis into the

Gingles preconditions—and there is no evidence in

the record to suggest it did—this is not enough as a

matter of law. Section 2 requires an “intensely local

appraisal” of the conditions in the jurisdiction.

League of United Latin Am. Citizens v. Perry, 548

U.S. 399, 437 (2006) (“LULAC”) (quoting Gingles,

478 U.S. at 79); see also Wis. Legis., 142 S. Ct. at

1251. This intensely local appraisal is required by

the statute to determine if the vote dilution the

legislature and district court believed was present

without subdistricting was “on account of race or

color,” 52 U.S.C. § 10301(a), or was caused by some

other factor, which was Defendants’ burden when

asserting a VRA defense to racial gerrymandering.6

Factors the district court failed

to consider.

The anemic analyses undertaken by both the

legislature and the district court into what the VRA

requires were significantly less robust than what

this Court has found insufficient in past cases. For

example, the Wisconsin Supreme Court performed a

comparatively detailed analysis of Section 2

compliance before being reversed by this Court. That

analysis included (1) a detailed review of racially

polarized voting statistical evidence and electoral

history going back 30 years, Johnson v. Wis.

Elections Comm’n, 2022 WI 14, ¶45, 400 Wis. 2d 626,

656 (Wis. March 1, 2022); (2) population growth

trends, id. at ¶48, 400 Wis. 2d at 658; (3) avoidance

of packing, id. at ¶49, 400 Wis. 2d at 658-59. But

this Court found even that level of analysis

6 This matters in the context of considering the preconditions

because “what appears to be bloc voting on account of race

may, instead, be the result of political or personal affiliation

of different racial groups with different candidates.” Solomon

v. Liberty County Comm’rs, 221 F.3d 1218, 1225 (11th Cir.

2000). And “partisan motives are not the same as racial

motives.” Brnovich v. Dem. Nat’l Comm., 141 S. Ct. 2321,

2349 (2021); see also Cooper, 581 U.S. at 335 (Alito, J.,

concurring in the judgment in part and dissenting in part)

(without “extraordinary caution” courts will invite “losers in

the redistricting process to seek to obtain in court what they

could not achieve in the political arena.”) (quoting Miller, 515

U.S. at 916). These are the exact issues that should be

weighed out at trial, not at summary judgment as a matter of

law.

insufficient, Wis. Legis. 142 S. Ct. at 1250. The

district court’s analysis here was nowhere near as

comprehensive as the Wisconsin Supreme Court’s.

The district court’s approach here is also in

sharp contrast to the processes followed in BethuneHill. For example, in Bethune-Hill, the district court

originally upheld all 12 challenged districts, but

found that District 75 was the only one that

constituted a racial gerrymander. Bethune-Hill v.

Va. State Bd. of Elections, 580 U.S. 178, 182 (2017).

The remaining districts were found not to have an

actual conflict with the state’s traditional

redistricting principles.7 Id. at 185.

The district court still upheld District 75

because it concluded it was drawn to comply with

the VRA after reviewing evidence establishing (1)

the pre-existing nature of the ability-to-elect district;

(2) that the legislature conducted a functional

analysis that included turnout rates, prison

populations, and contested electoral history results;

and (3) statistical evidence of racially polarized

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

141 F. Supp. 3d 505, 558-59 (E.D. Va. 2015).

When this Court upheld the decision regarding

District 75, it relied on exactly these facts. First,

District 75 was already an existing ability-to-elect

district, unlike the brand-new subdistricts created

7 As discussed below, the district court found disputes of fact

regarding racial predominance when—unlike De Grandy—

there was a direct conflict with North Dakota’s traditional

redistricting principle of not subdividing districts.

for the first time here. Bethune-Hill, 580 U.S. at 195.

Second, the functional analysis that supported the

Black voting-age population included in District 75

was comprehensive, including turnout rates, a study

of contested elections going back more than a decade,

and a “careful assessment of local conditions and

structures.” Id. at 196-97. All of those facts

undergirded the conclusion that a majority-Black

district was required to elect candidates of choice. Id.

But that kind of comprehensive analysis is entirely

absent in this case, where the evidence before the

district court only showed—at most—that the

legislature relied on the fact a majority-NativeAmerican subdistrict could be drawn based on

population. The district court in this case cites no

basis to conclude that Native American candidates of

choice were not being elected from existing districts,

which was critical to the finding in Bethune-Hill, and

it could not. Both Districts 4 and 9 had elected or

were electing Native American candidates without

being subdivided. ECF 100-10, p. 4; Dawn Charging,

available at https://ndlegis.gov/biography/dawnmarie-charging

The district court also cites no analysis of any

local conditions before reaching its conclusions.8 This

8 When Bethune-Hill was returned to that district court for

trial, it found the 11 remaining districts were drawn

primarily based on race and that the legislature did not

engage “in an analysis of any kind to determine the

percentage of black voters necessary to comply with Section 5”

of the VRA in those districts. Bethune-Hill v. Va. State Bd. of

Elections, 326 F. Supp. 3d 128, 176 (E.D. Va. 2018). In this

case, unlike Bethune-Hill on remand, the district court

failure of proof demonstrates the incorrect legal

standard the district court applied.

The district court in this case erred from the

outset because it simply took Defendants’ asserted

positions regarding compliance with Section 2 of the

VRA at face value. It never actually considered what

the legislature did and, more importantly, what the

legislature did not do. The cursory analyses

undertaken by the legislature and then the district

court fail to reach even the modest levels this Court

found insufficient in Wis. Legis. And this Court

should reverse for this lack of evidence alone.

The district court erred by finding

all the Gingles factors were met,

ignoring evidence of racial makeup

and past candidate success.

The district court also ignored evidence plainly

in the record demonstrating the enacted maps were

not “narrowly tailored” to comply with the VRA.

The legislature subdivided only two districts on

the entire 2021 plan, both of which created majorityNative-American subdistricts for the first time. ECF

104-17, p. 1. District 9 was already majority-NativeAmerican before subdistricting and had been

electing a Native-American candidate. ECF 100-10,

p. 4.

ratified the decision of the legislature to select a level of

Native American support “without evidentiary foundation.”

Id. at 179.

Senator Marcellais, who is Native American

and a former tribal chairman of the Turtle Mountain

Tribe, won election multiple times across the entirety

of District 9. Likewise, District 4 had elected Dawn

Charging in past elections.

With these elections, the district court was

required at summary judgment to assume tribal

members were the preferred candidate of Native

American voters because there is evidence in the

record (provided by Defendants’ own expert) that the

election of Native Americans occurs only “because

they have sufficient support among Native voters to

overcome their Anglo opponents.” ECF 108, Ex. 18 at

69.9 At minimum, this provides strong

circumstantial evidence that the third Gingles

precondition cannot be met. Because Native

Americans have regularly been able to elect their

candidate of choice in districtwide elections, there is

no indication that “a white majority votes

sufficiently as a bloc usually to defeat the candidates

chosen by [Native Americans].” Gingles, 478 U.S. at

63. But in the face of this evidence, the district court

somehow found the State had “good reasons” for

slicing up both districts despite failing to analyze the

issue when it should have drawn this inference in

Appellants’ favor.

Further, the record shows that legislators

warned about possible packing as a result of the

9 But see Turtle Mt. Band of Chippewa Indians, 2023 U.S. Dist.

LEXIS 206894, at *38 (“District 9 at-large presents a much

closer call” on the third Gingles precondition). If anything,

this disagreement emphasizes the need for a trial.

subdistricting. ECF 100-9, 11:3-9. The district court

ignored this evidence even though it was also part of

the analysis of one of Defendants’ own experts.10 Dr.

Hood explained in his report that an undivided

District 9 was already a majority-Native-American

district because it “is comprised of 51.7% Native

American voting age population.” ECF 100-10, p. 4.

Thus, according to Dr. Hood, District 9 “under

Section 2 of the Voting Rights Act . . . would be

described as a minority, opportunity-to-elect

district.” Id.

Whether District 9 must be kept whole to avoid

violating the VRA is not the question to be answered

here. But it is notable that Defendants’ expert found

that subdividing District 9 effectively sacrificed a

district in which Native Americans formed the

majority of the electorate in a district that elects two

House members at-large—and one where a Native

American candidate was already succeeding—in

favor of a subdistrict in which Native Americans

form the majority in a district that elects just one

House member. See, e.g., Monroe v. City of Woodville,

688 F. Supp. 255, 264 (S.D. Miss. 1988), vacated on

other grounds by 493 U.S. 915 (1989) (vote-dilution

claim failed when city was already majorityminority); see also Monroe v. City of Woodville, 881

F.2d 1327, 1334 (5th Cir. 1989) (“visceral response”

10 Dr. Hood was not an expert who provided information to the

legislature but was only retained once this lawsuit was filed.

He is also testified in the single-judge VRA case that the

Gingles preconditions were not present in District 9. Turtle

Mt. Band of Chippewa Indians, 2023 U.S. Dist. LEXIS

206894, at *20-21. This would obviously be a topic of crossexamination in a trial in this case if a trial had been held.

that majority-Black city was not electing Black

candidates must violate Section 2 was incorrect).11

Yet when a single-judge district court12

undertook its Section 2 analysis of the same plan, it

determined that District 9 violated the VRA. Turtle

Mt. Band of Chippewa Indians, 2023 U.S. Dist.

LEXIS 206894 at *53-54. Not only does this

undercut the district court’s findings in this case, but

it also supports Appellants’ argument that the

legislature engaged in the exact racial

gerrymandering without properly considering the

requirements of the VRA. But the legislature “may

not trade off the rights of some members of a racial

group against the rights of other members of that

11 The district court’s failure to construe this evidence in favor

of Appellants again highlights how the district court

incorrectly weighed evidence at summary judgment, which is

discussed in more detail below.

12 Because 28 U.S.C. § 2284(a) requires a three-judge panel

whenever a federal “action is filed challenging… the

apportionment of any statewide legislative body,” the case

should have been heard by a three-judge district court. Allen

v. State Bd. of Elections, 393 U.S. 544, 562 (1969) (applying

Section 5 of the VRA); Page v. Bartels, 248 F. 3d 175, 190 (3d

Cir. 2001); see also Garcia v. Hobbs, S. Ct. Dkt. 23-467

(vacating and remanding). That is especially true when

Section 2 is legislation that implements the Fourteenth and

Fifteenth Amendments. City of Mobile v. Bolden, 446 U.S. 55,

61 (1980). At the very least, a three-judge panel in the VRA

case could have addressed the apparent inconsistency

between the racial-gerrymandering ruling on appeal here and

the VRA case before a single judge. In the meantime, the

single-judge district court decision is on appeal to the Eighth

Circuit, which has recently found there is no private right of

action under Section 2. Turtle Mt. Band of Chippewa Indians

v. Howe, Appeal Nos. 23-3697, 24-1171 (8th Cir.).

group.” LULAC, 548 U.S. at 437; Shaw v. Hunt, 517

U.S. 899, 916–18 (1996) (“Shaw II”). In other words,

the legislature could not reduce the Native-American

population of District 9 and then “fix” that reduction

by creating the subdistricts. The legislature instead

should have drawn Section-2-compliant Senate

districts with two House seats instead of a racial

gerrymander. But the district court instead

determined that this racial gerrymander was

appropriate based on the VRA. A trial on the merits

could have addressed the interplay of these issues at

the very least.

Ultimately, it cannot be the case that using

subdistricting to reduce the number of legislative

seats in which Native Americans are the majority

and were already succeeding in electing Native

American candidates is somehow “narrowly tailored”

to comply with the requirements of the Voting

Rights Act, as the Turtle Mt. Band of Chippewa

Indians later found. That is precisely why an

intensely local appraisal is required under Section 2.

The district court did not correctly

apply the required totality-of-thecircumstances review.

Further, while the Gingles preconditions are

necessary to a showing of liability under Section 2,

they are not sufficient because “courts must also

examine other evidence in the totality of

circumstances.” Johnson v. De Grandy, 512 U.S. 997,

1011 (1994); accord Wis. Legis., 142 S. Ct. at 1249.

This is because “equal openness remains the

touchstone” of a Section 2 claim. Brnovich, 141 S. Ct.

at 2338. And while the legislature need not prove a

Section 2 violation before embarking on a racial

gerrymander, “a strong basis” in the evidence cannot

be reasonably inferred at any stage of litigation

(especially not at summary judgment) in the absence

of a more robust analysis into the Senate Factors

than was undertaken here.

The district court failed to

review the totality of the

circumstances at all.

The question the district court should have

answered is not merely whether a mechanical

application of the three (or any) Gingles

preconditions could be met. Instead, it should have

determined whether the legislature had “good

reasons” for thinking “the Act demanded” the racebased districts. Cooper, 581 U.S. at 301 (emphasis

added); see also Wis. Legis., 142 S. Ct. at 1249. While

that standard may fall short of pre-enactment proof

of a Section 2 violation, it requires more than the lip

service the district court paid to the totality-ofcircumstances analysis here. Indeed, courts cannot

reduce that searching analysis to a single factor, as

the district court did here by relying solely on the

Gingles preconditions plus one additional factor. Wis.

Legis., 142 S. Ct. at 1250; De Grandy, 512 U.S. at

1020-21.13

13 Further, the Circuits that have reached this issue have found

that finding vote dilution should be based on the totality of

the circumstances of evidence weighed at trial with detailed

In fact, the district court relied on a statement

from the Tribal and State Relations Committee that

the “population base” of Native Americans existed in

those two districts as a key reason for drawing

them—almost identical to the claims the Governor

made in Wis. Legis., 142 S. Ct. at 1249. The focus on

“population base” may go to establishing the first

Gingles precondition of a sufficiently numerous

minority population, but it is not sufficient to show

Section 2 required the district in question. Id.

This is a situation where “the [district court]

asked the wrong question with respect to narrow

tailoring.” Ala. Legislative Black Caucus, 575 U.S. at

279. Instead of focusing on equal openness, De

Grandy, 512 U.S. at 1014, which is the textual basis

for a Section 2 claim, the district court instead—

under the most generous interpretation—focused

only on a mechanical application of some of the three

Gingles preconditions while ignoring the totality of

the circumstances.14 The district court’s reliance on

factual findings, not at summary judgment. Ga. State

Conference of the NAACP v. Fayette Cty. Bd. of Comm’rs, 775

F.3d 1336, 1343 (11th Cir. 2015) (“Normally, claims brought

under § 2 of the VRA are resolved pursuant to a bench trial,

with judgment issued under Federal Rule of Civil Procedure

52.”); see also Cousin v. McWherter, 46 F.3d 568, 575 (6th Cir.

1995) (requiring more detailed factual findings even after a

trial); McIntosh Cnty. Branch of the NAACP v. City of Darien,

605 F.2d 753, 757, 759 (5th Cir. 1979) (same).

14 Even if only the Gingles preconditions applied, evidence

before the district court at the very least raised questions

about the nature of partisanship. Dr. Hood’s report found an

almost perfect overlap of partisanship and race, leading to

questions that required the weighing of evidence—specifically

Abbott illustrates this error.15 App. A19. Abbott did

not reach the question of a full analysis under

Section 2 because Texas could not even point to any

“‘legislative inquiry’ that would establish the need

for its manipulation of the racial makeup of the

district.” Abbott, 138 S. Ct. at 2335. Thus, Abbott

does not stand for the proposition that a mere

cursory legislative inquiry into Section 2 liability can

justify a racially drawn district. Rather, it

emphasizes that the failure to undertake any such

inquiry is fatal to using Section 2 as a defense, which

is also exactly what the district court found in

Bethune-Hill on remand. 326 F. Supp. 3d at 179-80.

This is precisely what the legislature failed to do in

this case and is a legally insufficient basis for

judgment in their favor as a matter of law.

The district court failed to

consider the impact of

proportionality as to District 4.

Unlike District 9, which was already majorityNative-American, District 4 contains 31.0% Native

American voting age population as a whole. ECF

100-10, p. 8. That means the decision to subdistrict

ensures that Native Americans will now hold the

majority in 50% of the total seats in the House from

District 4. Because Native Americans will be the

majority in a proportion of districts greater than

their population, the district court also failed to

that the polarized voting in question was racial in nature.

ECF 100-10, pp. 5-7, 9-10.

15 Abbott was also decided after “multiple trials,” 138 S. Ct. at

2317, not at summary judgment.

consider the impact of proportionality on whether

Section 2 required the district. Proportionality is

generally measured from a relevant area as opposed

to a statewide basis. De Grandy, 512 U.S. at 102223.

Whatever Section 2 required of the legislature

in District 4, it does not mean that a “failure to

maximize” the number of Native-American-majority

districts violates the statute.16 Id. at 1016. In De

Grandy, this Court reversed a decision about House

districts based on the population of Dade County,

which was approximately 50% Latino voting age.

The challenged plan provided Latino supermajorities

in 9 of the 18 districts that were located primarily in

the county. Id. at 1014. When it looked at all

districts located in Dade County,17 Latino voting age

population again nearly mirrored the percentage

where Latino voters were a majority. Id. That

resulted in this Court concluding that the districts

did not violate Section 2 because they provided equal

political opportunity. Id. at 1020. But the same

provisions could not result in super-proportionality,

where Latino voters obtain more seats than they

16 Defendant-Intervenors claimed in their Motion for Summary

Judgment to have enough evidence that at-large elections in

District 4 would have violated the VRA. ECF 108. But the

district court did not indicate any consideration of this in its

opinion. As discussed below, it would have been inappropriate

for the district court to consider the analysis offered by

Defendant-Intervenors at summary judgment.

17 Even with these districts, the total Latino-majority districts

would have been less than proportional statewide. De Grandy,

512 U.S. at 1014, 1021.

would otherwise be entitled to as a portion of the

population. Id. at 1016-17.

That is exactly what happened here. The

district court should have looked at the relevant area

of review of District 4, which is the “smaller

geographical scale” where any Section 2 claim would

be litigated. Id. at 1022. And in that review area,

despite being only 31% of the population of District

4, the district court upheld a plan—as necessary to

avoid liability under the VRA—where Native

American voters receive 50% of the House districts.18

Using the logic from De Grandy, the legislature here

provided Native American voters with effective

political power that is more than 60% above their

numerical strength, claiming that was required by

Section 2. Compare ECF 100-10, p. 8 with De

Grandy, 512 U.S. at 1017 n.13.

This is another part of the totality of the

circumstances that the district court completely

failed to consider. In order for the district court to

correctly decide this case, whether at summary

judgment or at trial, it must conduct a more detailed

analysis of the basis for its conclusions about vote

dilution. It failed to do so here and must be reversed.

18 This Court has made clear that racial classifications of any

kind must be temporary. Students for Fair Admissions, Inc. v.

President & Fellows of Harvard Coll., 600 U.S. 181, 212

(2023) (“SFFA”). But under the district court’s interpretation,

Section 2 will continue to require or allow states to racially

sort voters beyond proportionality with “no end … in sight.”

Id. at 213.

II.

The district court improperly resolved

this racial-gerrymandering case on

summary judgment.

Even if this Court were to agree that the

cursory analysis conducted by the district court and

legislature could be enough to justify a racial

gerrymander, it falls well short of satisfying

Defendants’ burden of proof at summary judgment.

Summary judgment is warranted only “if the movant

shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment

as a matter of law.” Fed. R. Civ. P. 56(c). In other

words, there must be “a complete failure of proof

concerning an essential element of the nonmoving

party’s case [that] necessarily renders all other facts

immaterial.” Celotex Corp. v. Catrett, 477 U.S. 317,

323 (1986). Critically, “[t]he evidence of the nonmovant is to be believed, and all justifiable

inferences are to be drawn in his favor.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

In the equal-protection context, this is a

particularly exacting standard because racial

gerrymandering cases generally require “a developed

record” and are usually decided “after the respective

District Courts ha[ve] made findings of fact.” Hunt v.

Cromartie, 526 U.S. 541, 552 n.8 (1999) (collecting

cases). Here, the district court erred in granting

summary judgment to Defendants on the thin record

before it, which denied Appellants the opportunity to

cross-examine witnesses, probe their testimony, and

further develop evidence for the finder of fact.

Although the district court accurately identified

the summary-judgment standard described above, it

thoroughly misapplied it to the record. An Equal

Protection claim challenging districts involves

applying a two-prong test with shifting burdens.

First, the plaintiff must prove that “race was the

predominant factor motivating the legislature’s

decision to place a significant number of voters

within or without a particular district.” Miller, 515

U.S. at 916. If a plaintiff can make this showing,

“[t]he burden then shifts to the state to prove that its

race-based sorting of voters serves a ‘compelling

interest’ and is ‘narrowly tailored’ to that end.” App.

A13 (quoting Cooper, 581 U.S. at 291).

The district court’s decision on

racial predominance was wrong.

As to the first prong, the district court found

that “conflicting views of the evidence present a fact

question as to whether race was the predominant

motivating factor for the Legislative Assembly’s

decision to draw subdistricts in districts 4 and 9.”

App. A15 (emphasis in original). But with the reality

that Districts 4 and 9 were the only subdistricts on

the plan, the decision to subdistrict created an actual

conflict with the state’s otherwise-consistent

application of its traditional practice of not

subdistricting in other districts. While an actual

conflict between race and those principles is not

required, Bethune-Hill, 580 U.S. at 188, the conflict

here shows there was no dispute—these subdistricts

were drawn primarily based on race.

Nevertheless, the district court proceeded to

“[a]ssum[e] without deciding that race was the

predominate motivating factor,” and moved

immediately to the second prong. App. A15. After a

perfunctory declaration that a legislature’s mere

assertion of compliance with the VRA constitutes a

compelling state interest, the district court

proceeded to consider whether the legislature’s racebased subdistricting was “narrowly tailored” to that

end.

The district court erred in

granting summary judgment to

Defendants because reaching that

result required weighing the

evidence and drawing inferences

in favor of the moving party.

Turning to the second prong, the district court

correctly flagged that a state can prove its actions

are “narrowly tailored,” by showing it had “a strong

basis in evidence” and “good reasons” to think the

VRA required the “race-based district lines.” App.

A20 (quoting Wis. Legis., 142 S. Ct. at 1250). But, in

ruling for Defendants at summary judgment, the

district court converted this “breathing room” into a

blank check. The fact that a state is obligated to

prove its actions are the product of “good reasons”

prevents granting summary judgment on the

question, because reaching that conclusion requires

weighing evidence. And this Court has overturned

lower courts that improperly applied strict scrutiny

at the summary-judgment phase of racial

gerrymandering cases.

In a similar case before this Court on appeal

from a summary-judgment ruling finding racial

predominance, the district court had ruled in favor of

the plaintiffs because the purportedly

“uncontroverted material facts” proved the

legislature “used criteria with respect to [the

challenged district] that are facially race driven.”

Cromartie, 526 U.S. at 545. But this Court

disagreed. Despite finding that the evidence in the

record before it “tend[ed] to support an inference

that the State drew its district lines with an

impermissible racial motive,” id., at 548-49, it

concluded the district court erred when it granted

summary judgment because the record contained

enough contradictory evidence that the motive of the

legislature was grounded in partisanship, not race.

Id. at 549-50. Thus, “[a]ccepting appellants’ political

motivation explanation as true, as the District Court

was required to do in ruling on appellees’ motion for

summary judgment… appellees were not entitled to

judgment as a matter of law.” Id. at 551 (emphasis

added). Here, the district court committed the same

error.

While all parties agree for purposes of

summary judgment about the facts surrounding how

the legislature passed the maps, what those facts

mean—or what can be inferred from them—is very

much at issue. For example, Appellants moved for

summary judgment relying on the same floor

speeches and committee testimony as Defendants.

See generally, ECF 98, 101, 107, 111. 113 114, 115.

And the district court highlighted some of these

exact facts in its order to support its ruling in favor

of Defendants. See App. A4-A8; A21-A27. But doing

so was the opposite of what was required: “The

evidence of the non-movant is to be believed, and all

justifiable inferences are to be drawn in his favor.”

Anderson, 477 U.S. at 255.

Appellants have already shown a number of

shortcomings in the legislature’s inquiry into what

Section 2 requires, many of which are underscored

by Turtle Mt. Band of Chippewa Indians, 2023 U.S.

Dist. LEXIS 206894. Not only is the legislature and

district court’s back-of-the-napkin analysis related to

Gingles dispositive, but Appellants also provided

evidence demonstrating the legislature was aware

the proposed subdistricts could violate Section 2. In

addition to examples of this evidence already

discussed above in Section I(B)(2), Appellants

highlighted further evidence in their Motion for

Summary Judgment. This included the discussion

among redistricting committee members concerning

racial concentrations produced by subdistricting in

District 9, and the fear that the new districts will

cause minority residents on the reservation to “only

be able to have one representative.” ECF 98 at 14.

Indeed, apart from receiving testimony from a few

lawyers and a handful of stakeholders (some with a

personal interest in the creation of racially

gerrymandered subdistricts) the record reveals the

legislature’s failure to grapple with whether the

VRA actually “demanded” the creation of

subdistricts, as legislators assumed.

Instead of inferring from the evidence that the

legislature did not adequately consider the issue of

VRA compliance, “as the District Court [is] required

to do in ruling on appellees’ motion for summary

judgment,” Cromartie, 526 U.S. at 551, the district

court did the opposite. Ruling in favor of Defendants,

the district court highlighted contrary evidence it

thought was sufficient to conclude that the

legislature satisfied strict scrutiny. But this is not

appropriate at summary judgment—and the fact

that the district court found some testimony from

the public persuasive is a weighing of evidence that

is not allowed at summary judgment before

witnesses can be cross-examined.

For example, the district court noted that the

“Redistricting Committee heard from the leaders of

[Native American tribes].” App. A21. It highlighted

testimony from the “Chairman of the Standing Rock

Sioux Tribe” that covered compliance with the VRA

even though the subdistricts in Districts 4 and 9 did

not apply to that particular tribe.19 Id. And it

reproduced a large portion of the Redistricting

Committee’s final report to the Legislative

Assembly, which summarized other oral and written

testimony received by the committee and discussions

the committee had while in session, as well as some

recent Census figures. App. A22-A25. While these

figures could be useful and the testimony of voters

and lawyers was sincere, it is insufficient to

19 The district court also failed to consider whether relying on

the testimony of a Native-American individual from another

tribe was appropriate, given that the relevant minority it

reviewed was the particular tribes. The district court

apparently assumed all Native Americans should be treated as

the relevant minority, yet this evidence is insufficient to prove

that all Native American tribes vote cohesively.

establish the “good reasons” needed to survive strict

scrutiny. And this is particularly true at summary

judgment, where the district court is not yet

permitted to weigh the competing evidence.

Nevertheless, the district court summarily

concluded that “[t]his is sufficient pre-enactment

analysis to establish it had good reasons to believe

the subdistricts were required by the VRA.” App.

A25. But even if that legal standard is correct, this is

the kind of judgment that is appropriate only after a

trial. That is the stage where witnesses can be

subject to cross-examination and the district court

can appropriately weigh the evidence and make

credibility determinations. That is the stage where

the contrary evidence presented by the State in the

single-judge Section 2 case can be weighed with the

claims of Defendants in this case. See, e.g., Turtle

Mt. Band of Chippewa Indians, 2023 U.S. Dist.

LEXIS 206894, at *21 (Dr. Hood testifying at trial

that Gingles 3 was not met in District 9). Further,

Defendants’ arguments on the appeal of the Turtle

Mt. Band of Chippewa Indians decision claiming a

lack of statistical evidence of a VRA violation could

be tested. Appellants’ Brief, Appeal No. 23-3655, pp.

53-55 (8th Cir.), filed January 30, 2024.

The district court should have tried this case.

And if its ruling on summary judgment is upheld,

state legislatures will have acquired far more than

“breathing room” to navigate the often-conflicting

mandates of the VRA and the Equal Protection

Clause—they will have found a statutory shield to

racially gerrymander. Wis. Legis., 142 S. Ct. at 1250.

This Court can and must correct that misadventure.

The evidence put forth here by Defendants is not

enough for a court to bless a racial gerrymander as a

matter of law at summary judgment. This Court

should reverse the district court.

III. The district court erred in determining

that compliance with the Voting Rights

Act justifies this racial gerrymander.

The district court also introduced another

danger into federal-court review of redistricting

plans. This Court has been crystal clear about the

dangers of using race to justify legislative decision

making in the absence of exceedingly compelling

circumstances that demand it, especially in the

context of voting because “Racial gerrymandering,

even for remedial purposes, may balkanize us into

competing racial factions; it threatens to carry us

further from the goal of a political system in which

race no longer matters.” Shaw, 509 U.S. at 657

(emphasis added). This is because “[w]hen the State

assigns voters on the basis of race, it engages in the

offensive and demeaning assumption that voters of a

particular race, because of their race, ‘think alike,

share the same political interests, and will prefer the

same candidates at the polls.’” Miller, 515 U.S. at

911-12 (quoting Shaw, 509 U.S. at 647).

In spite of this background, the district court

incorrectly determined that this Court “has long held

that compliance with the VRA is a compelling

government interest.” App. A13. But this is not only

wrong as a matter of fact, it is wrong a matter of law

because it subordinates the Constitution to the VRA,

especially in the context of relying on such a thin

record of a potential Section 2 violation.

In a series of racial-gerrymandering cases, this

Court has assumed, without deciding, that

compliance with the VRA could be a compelling

government interest. Miller, 515 U.S. at 921 (leaving

open the question); Shaw II, 517 U.S. at 911 (“again

we do not reach that question”); Vera, 517 U.S. at

977 (“we assume without deciding that compliance

with the results test, as interpreted by our

precedents, . . . can be a compelling state interest”);

Cooper, 581 U.S. at 301 (“we have long assumed that

complying with the VRA is a compelling interest”);

Alabama Legis. Black Caucus, 575 U.S. at 275-79;

Bethune-Hill, 580 U.S. at 193 (compliance with

Section 5).

In every case involving compliance with Section

2 as a defense to a racial gerrymandering case, the

Court has struck down the plan at issue. The only

apparent case where this Court has ever reached the

question of whether the VRA constituted a

compelling interest for purposes of strict scrutiny

was highly fact intensive and related solely to

Section 5, not Section 2. See Bethune-Hill, 580 U.S.

at 193.

This case, coming to the Court in this

procedural posture, represents an exceptionally poor

vehicle for this Court to find that Section 2 justifies

race-predominant redistricting for the first time—

especially when the exact map has been found to

violate Section 2. Race-based district must at least

be required by “a constitutional reading and

application of those laws.” Miller, 515 U.S. at 921

(emphasis added). Thus, this Court should also reject

the district court’s approach because Section 2

cannot justify the districts at issue here.

IV. Summary reversal is the correct remedy

in this case.

This Court has previously summarily reversed

a three-judge district court that improperly applied a

Section 2 analysis on a far-more-developed record. In

Burton ex rel. Republican Party v. Sheheen, the

district court conducted an exhaustive analysis of

South Carolina’s redistricting plans under the

Voting Rights Act. 793 F. Supp. 1329 (D.S.C. 1992).

That analysis took place after a full trial on the

merits. Id. at 1339. That district court “rejected

redistricting plans submitted by all parties and

adopted its own plan.” Statewide Reapportionment

Advisory Comm. v. Beasley, 99 F.3d 134, 135 (4th

Cir. 1996).

After adoption of the district court’s plan, both

parties directly appealed to this Court, which

summarily reversed in a one-sentence order: “The

judgment is vacated and the cases are remanded to

the United States District Court for the District of

South Carolina for further consideration in light of

the position presented by the Acting Solicitor

General in his brief of the United States filed May 7,

1993.” Theodore, 508 U.S. at 968. No other

information or reasoning was provided by this Court,

but the briefing filed by “the Solicitor General had

maintained that the three-judge court had failed to

apply a proper § 2 analysis to the plans.” Beasley, 99

F.3d at 135. Unlike that case, this appeal is even

easier.

Sheheen involved a developed evidentiary

record, analysis of expert reports, and an appraisal

of the facts and circumstances over the course of a

trial. In contrast, the record here is sparse. The

district court opinion is abbreviated and contains

almost no substantive analysis related to Section 2.

This case must be sent back to the district for

further development of a proper record, and with the

benefit of the appropriate Section 2 analysis.

CONCLUSION

This Court should summarily reverse, vacate

and remand for trial, or note probable jurisdiction.

Respectfully submitted this 4th day of March, 2024.