Memorandum — Charles Walen, et al., Appellants v. Doug Burgum, Governor of North Dakota, et al.

No. 23-969

In the

Supreme Court of the United States

__________________________________________

CHARLES WALEN, et al.,

Appellants,

v.

DOUG BURGUM, Governor of North Dakota, et al.,

Appellees.

__________________________________________

On Appeal From the

United States District Court

for the District of North Dakota

__________________________________________

MEMORANDUM IN RESPONSE

TO JURISDICTIONAL STATEMENT

__________________________________________

DAVID H. THOMPSON

BRIAN W. BARNES

JOHN D. OHLENDORF

SPECIAL ASSISTANT

ATTORNEYS GENERAL

1523 New Hampshire

Avenue, N.W.

Washington, D.C. 20036

(202) 220-9600

dthompson@cooperkirk.com

PHILIP AXT

Counsel of Record

SOLICITOR GENERAL

600 E. Boulevard Ave.,

Dept. 125

Bismarck, ND 58505

(701) 328-3625

pjaxt@nd.gov

DAVID R. PHILLIPS

SPECIAL ASSISTANT

ATTORNEY GENERAL

300 W. Century Ave.,

P.O. Box 4247

Bismark, ND 58502

dphillips@bgattorneys.com

Counsel for Appellees

i

QUESTIONS PRESENTED

1. Whether a state legislature’s attempted compliance with Section 2 of the VRA can justify the enactment of election maps that predominately consider

race in contravention of the Fourteenth Amendment’s

Equal Protection Clause.

2. Whether the district court applied the correct

legal standard in determining whether the state legislature in this case had good reasons and a strong basis

to believe that the challenged election map was required by Section 2 of the VRA.

3. Whether the district court clearly erred in finding that the state legislature in this case had good reasons and a strong basis to believe the challenged election map was required by Section 2 of the VRA.

ii

PARTIES TO THE PROCEEDING

Because this brief could be construed as drawing

into question the constitutionality of a potential

application of an Act of Congress, 28 U.S.C. § 2403(a)

may apply, and Appellees have served a copy of the

brief on the Solicitor General of the United States.

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ........................................ i

PARTIES TO THE PROCEEDING ............................ ii

TABLE OF AUTHORITIES ........................................ v

INTRODUCTION ........................................................ 1

ARGUMENT ................................................................ 4

I.

Attempting to Comply with the Voting Rights

Act Cannot Be a Compelling Interest

Justifying Racial Discrimination in Violation

of the Fourteenth Amendment ........................... 4

A. Attempting to Comply with a Statute

Cannot Justify Violating the Constitution’s Equal Protection Clause ..................... 7

B. Even if Attempting to Comply with a

Statute Could Justify Violating the Equal

Protection Clause, Sorting Voters

Predominately Based on Race Is Neither

Congruent nor Proportional to the

Fourteenth Amendment. ............................ 11

C. This Court Should Vacate the District

Court’s Decision and Remand for Further

Proceedings. ................................................ 15

II. If the Court Does Not Revisit the “Assumption” that Attempting to Comply with the

VRA Could Be a Compelling Justification for

Making Race Predominate in Districting, It

Should Summarily Affirm. ................................ 16

iv

A. The District Court Correctly Applied the

“Good Reasons” Standard. ......................... 17

B. The District Court’s Findings Implementing the “Good Reasons” Standard

Are Not Clearly Erroneous ........................ 21

C. Summary Judgment Was Appropriate. ..... 23

CONCLUSION .......................................................... 25

v

TABLE OF AUTHORITIES

Page

CASES

Abbott v. Perez,

585 U.S. 579 (2018) ........................................... 1

Allen v. Milligan,

599 U.S. 1 (2023) .............................. 1, 2, 3, 5, 6,

8, 10, 11,

12, 13, 14

Bayard v. Singleton,

1 N.C. 5 (1787) .............................................. 4, 5

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

580 U.S. 178 (2017) ......................... 1, 2, 4, 5, 18

Boumediene v. Bush,

553 U.S. 723 (2008) ......................................... 11

Califano v. Westcott,

443 U.S. 76 (1979) ......................................... 8, 9

City of Boerne v. Flores,

521 U.S. 507 (1997) ................................... 12, 15

City of Richmond v. J.A. Croson Co.,

488 U.S. 469 (1989) ......................................... 13

Cooper v. Harris,

581 U.S. 285 (2017) .............................. 1, 3, 4, 6,

8, 16, 17,

19, 20, 21,

22

Edelman v. Jordan,

415 U.S. 651 (1974) ........................................... 9

vi

Graham v. Richardson,

403 U.S. 365 (1971) ..................................... 9, 10

Grutter v. Bollinger,

539 U.S. 306 (2003) ............................... 6, 13, 14

League of United Latin Am. Citizens v. Perry,

548 U.S. 399 (2006) ................................... 11, 13

Loving v. Virginia,

388 U.S. 1 (1967) ............................................. 10

Marbury v. Madison,

1 Cranch (5 U.S.) 137 (1803) .......... 3, 4, 5, 6, 11

Miller v. Johnson,

515 U.S. 900 (1995) ............................. 1, 2, 3, 15

Saenz v. Roe,

526 U.S. 489 (1999) ................................. 8, 9, 10

Seminole Tribe of Fla. v. Florida,

517 U.S. 44 (1996) ........................................... 10

Shapiro v. Thompson,

394 U.S. 618 (1969) ........................................... 9

Shaw v. Hunt,

517 U.S. 899 (1996) ................................... 1, 2, 8

Shaw v. Miller,

509 U.S. 630 (1993) ................................... 1, 5, 7

Shelby Cnty., Ala. v. Holder,

570 U.S. 529 (2013) ......................................... 14

South Carolina v. Katzenbach,

383 U.S. 301 (1966) ................................... 10, 12

Students for Fair Admissions, Inc. v. President &

Fellows of Harvard College,

600 U.S. 181 (2023) ......................... 7, 12, 13, 14

vii

Turtle Mountain Band of Chippewa Indians v. Howe,

2023 WL 8004576

(D. N.D. Nov. 17, 2023) ............................. 22, 23

Wisconsin Legislature v. Wisconsin Elections

Comm’n,

595 U. S. 398 (2022) .......................... 1, 8, 12, 21

1

Appellees Doug Burgum, in his official capacity

as Governor of North Dakota, and Michael Howe, in

his official capacity as North Dakota Secretary of

State (the “State”), respectfully submit the following

memorandum in response to the Appellants’

Jurisdictional Statement.

INTRODUCTION

“Under the Equal Protection Clause, districting

maps that sort voters on the basis of race ‘are by their

very nature odious.’ ” Wisconsin Legislature v.

Wisconsin Elections Comm’n, 595 U. S. 398, 401

(2022) (quoting Shaw v. Miller, 509 U.S. 630, 643

(1993) (“Shaw I”)). But “race consciousness does not

lead inevitably to impermissible race discrimination,”

Allen v. Milligan, 599 U.S. 1, 30 (2023) (quoting Shaw

I, 509 U.S. at 646), as redistricting legislatures “will

almost always be aware of racial demographics.”

Miller v. Johnson, 515 U.S. 900, 916 (1995). Instead,

the line this Court has “long drawn is between [race]

consciousness and [race] predominance.” Id. at 33.

And when race is the predominate reason for a map’s

design, it runs into the Fourteenth Amendment’s

prohibition on racial discrimination. Id. at 30–31.

Yet in a series of decisions over the last three

decades, the Court has repeatedly “assumed,” without

deciding, that a state’s attempt to comply with the

Voting Rights Act (VRA) could be a “compelling

interest” capable of justifying a state’s decision to

make race the predominate consideration when

drawing an election map. E.g., Wisconsin Legislature,

595 U.S. at 401; Abbott v. Perez, 585 U.S. 579, 587

(2018); Cooper v. Harris, 581 U.S. 285, 292 (2017);

Bethune-Hill v. Virginia State Bd. of Elections, 580

2

U.S. 178, 193 (2017); Shaw v. Hunt, 517 U.S. 899, 915

(1996) (“Shaw II”); Miller, 515 U.S. at 921.

Before the three-judge court in this case, the

State’s primary response to Appellants’ allegation of

racial gerrymandering was that race was not the

predominate factor in the design of the challenged

map. D. Ct. Doc. 102, 22-30 (02/28/23). But in the

alternative, relying upon this Court’s “assumption,”

the State also argued that even if race had been the

predominate consideration it would have been

justified by the State’s attempt to comply with Section

2 of the VRA. Id. at 30–38. The three-judge court

granted summary judgment to the State on that

alternate basis, holding that even if race was the

State’s predominate reason for drawing the

challenged subdistricts, “the State had good reasons

and strong evidence to believe the subdistricts were

required by the VRA.” J.S.App.A27. On direct appeal

to this Court, Appellants question the validity of that

“assumption.” See J.S.35–37.

As a matter of first principles, the State is unable

to defend the basis upon which it was granted

summary judgment. The State cannot defend this

Court’s “assumption” that attempted compliance with

the VRA (or any statute) would justify racial

discrimination in violation of the Fourteenth

Amendment. Simply stated: “if complying with a

federal statute would require a State to engage in

unconstitutional racial discrimination, the proper

conclusion is not that the statute excuses the State’s

discrimination, but that the statute is invalid.”

Milligan, 599 U.S. at 79 (Thomas, J., dissenting).

For the reasons that follow, the State requests

that the Court reexamine the foundation for its

3

“assumption” (either summarily or after briefing and

argument limited to the issue), vacate the decision

below, make clear that a state’s attempted compliance

with Section 2 of the VRA cannot provide a compelling

justification for making race the predominate

consideration in the design of an election map, and

remand for further proceedings where the State

intends to prove race was not the predominate

consideration in drawing the challenged election map.

“[T]he line between racial predominance and

racial consciousness can be difficult to discern.”

Milligan, 599 U.S. at 31. But at least the effort to draw

that line has a defensible constitutional foundation.

The “assumption” that race cannot be the

predominant reason for drawing an election map

except for when a state has “good reasons” to think the

VRA requires making race predominate is a

jurisprudential edifice lacking a first-principles

foundation, and it has added significant confusion to

an already unpredictable area of the law. That

“assumption” also “threatens to carry us further from

the goal of a political system in which race no longer

matters—a goal that the Fourteenth and Fifteenth

Amendments embody.” Miller, 515 U.S. at 912. The

Court should use this case to make clear that

attempting to comply with a statute, even a statute as

important as the VRA, cannot be a compelling

justification to engage in racial gerrymandering

prohibited by the Fourteenth Amendment.

In the alternative, if the Court does not revisit

the “assumption” that a State’s attempted compliance

with the VRA can justify an Equal Protection

violation, the Court should summarily affirm.

4

The three-judge court faithfully applied decisions

from this Court holding that, when implementing the

“assumption,” courts need not undertake the same

full-fledged analysis that would be necessary to strike

down a state’s election map under Section 2 of the

VRA. Instead, those cases apply a “strong basis” (or

“good reasons” or “breathing room”) standard that is

satisfied when “a State has good reason to think that

all the ‘Gingles preconditions’ are met.” Cooper, 581

U.S. at 293, 302. “The standard does not require the

State to show that its action was ‘actually necessary’

to avoid a statutory violation.” Bethune-Hill, 580 U.S.

194 (quoting Alabama Legislative Black Caucus v.

Alabama, 575 U.S. 254, 278 (2015)). And here, the

district court did not err—let alone clearly err—in its

finding that the State would have had “good reasons

and strong evidence to believe the [challenged]

subdistricts were required by the VRA.” J.S.App.A27.

Nor did Appellants proffer any evidence below

creating a genuine dispute of material fact that would

have made summary judgment improper.

ARGUMENT

I.

Attempting to Comply with the Voting

Rights Act Cannot Be a Compelling Interest

Justifying

Racial

Discrimination

in

Violation of the Fourteenth Amendment

Since Marbury and before, our system of

government has operated under a basic structural

premise “essential to all written constitutions”: “a law

repugnant to the constitution is void.” Marbury v.

Madison, 1 Cranch (5 U.S.) 137, 180 (1803). Where the

application of a statute conflicts with the

Constitution, the “act must of course, in that instance,

stand as abrogated and without any effect.” Bayard v.

5

Singleton, 1 N.C. 5, 3 (1787). The contrary

conclusion—that “an act of the legislature, repugnant

to the constitution, . . . though it be not law, does . . .

constitute a rule as operative as if it was a law”—has

long been recognized as “an absurdity too gross to be

insisted on.” Marbury, 1 Cranch (5. U.S.) at 176.

Stated in more modern terms: “[I]f complying

with a federal statute would require a State to engage

in unconstitutional racial discrimination, the proper

conclusion is not that the statute excuses the State’s

discrimination, but that the statute is invalid.”

Milligan, 599 U.S. at 79 (Thomas, J., dissenting).

Yet for nearly three decades, this Court has

entertained an “assumption” that relies upon that

very absurdity: the idea that a state’s effort to comply

with the VRA could somehow excuse racial

gerrymandering in the drawing of election maps,

which would otherwise violate the Constitution.

The Court has been clear that drawing election

maps in a way that “explicitly distinguish[es] between

individuals on racial grounds fall[s] within the core

. . . prohibition” of the Fourteenth Amendment’s

Equal Protection Clause. Shaw I, 509 U.S. at 642. And

the Court has also been clear that the constitutional

dividing line is between a state being aware of racial

considerations and a state being predominately

motived by them; “[t]he former is permissible; the

latter is usually not.” Milligan, 599 U.S. at 30. But

despite drawing a line that is clear (in concept, if not

always in practice), the Court has blurred that line by

repeatedly “assum[ing], without deciding,” BethuneHill, 580 U.S. at 193, that a state could have a

“compelling interest” to make the consideration of

race predominate if it had “good reasons” to believe

6

doing so was necessary to comply with the VRA.

Cooper, 581 U.S. at 285.

That assumption cannot be defended for the

simple but fundamental reason that “[t]he

Constitution is supreme over statutes, not vice versa.”

Milligan, 599 U.S. at 79 (Thomas, J., dissenting)

(citing Marbury, 1 Cranch at 178).

Moreover, even if attempted compliance with a

statute could be a “compelling interest” for violating

the Equal Protection Clause, the “assumption” that

the VRA authorizes states to predominately consider

race when drawing election maps is neither congruent

nor proportional to the requirements of the

Fourteenth

Amendment.

To

the

contrary,

redistricting based predominately on racial goals is

“radically inconsistent with the [Reconstruction]

Amendments’ command that government treat

citizens as individuals and their goal of a political

system in which race no longer matters.” Milligan,

599 U.S. at 82 (Thomas, J., dissenting) (cleaned up).

Moreover, “all governmental use of race must have a

logical end point.” Grutter v. Bollinger, 539 U.S. 306,

342 (2003). Yet, the Court’s “assumption” appears

premised on the idea that the states’ “authority to

conduct race-based redistricting” under the VRA

“extend[s] indefinitely into the future.” Milligan, 599

U.S. at 45 (Kavanaugh, J., concurring).

In short, attempted compliance with the VRA

cannot justify violating the Equal Protection Clause

when drawing an election map, and, even if it could,

there would need to be a temporal limitation on the

predominant consideration of race.

7

A.

Attempting to Comply with a Statute

Cannot Justify Violating the Constitution’s Equal Protection Clause

The Equal Protection Clause of the Fourteenth

Amendment represents “a foundational principle”:

that “[t]he Constitution . . . ‘should not permit any

distinctions of law based on race or color.’ ” Students

for Fair Admissions, Inc. v. President & Fellows of

Harvard College, 600 U.S. 181, 202 (2023) (“SFFA”)

(quoting Supp. Brief for United States on Reargument

in Brown v. Board of Education, O. T. 1953, No. 1 etc.,

p. 41). This mandate of racial nondiscrimination “is

universal in its application,” id. at 206 (cleaned up),

and it bars any “effort to separate voters into different

districts on the basis of race,” Shaw I, 509 U.S. at 649.

Under this Court’s precedent, “[a]ny exception to the

Constitution’s demand for equal protection must

survive a daunting two-step examination known in

our cases as ‘strict scrutiny,’ ”—a test the state can

meet only if it shows, first, that “the racial

classification is used to further compelling

governmental interests,” and second, that its “use of

race is ‘narrowly tailored’—meaning ‘necessary’—to

achieve that interest.” SFFA, 600 U.S. at 206–07

(cleaned up).

Outside of affirmative action in higher education,

this Court has “identified only two compelling

interests that permit resort to race-based government

action. One is remediating specific, identified

instances of past discrimination that violated the

Constitution or a statute. The second is avoiding

imminent and serious risks to human safety in

prisons, such as a race riot.” Id. at 207 (citations

omitted).

8

Yet while the Court has never affirmatively held

that a state’s attempted compliance with the VRA

would constitute a compelling interest capable of

justifying redistricting decisions made predominately

based on race, it has repeatedly “assumed”—without

deciding—that it could. E.g., Wisconsin Legislature,

595 U.S. at 401; Cooper, 581 U.S. at 292; Bethune-Hill,

580 U.S. at 193; Shaw II, 517 U.S. at 915. But “the

slightest reflection on first principles should make

clear” that assumption is untenable. Milligan, 599

U.S. at 79 (Thomas, J., dissenting).

That conclusion necessarily follows from the

basic logic of our constitutional structure. “The

Constitution is supreme over statutes, not vice versa.

Therefore, if complying with a federal statute would

require a State to engage in unconstitutional racial

discrimination, the proper conclusion is not that the

statute excuses the State’s discrimination, but that

the statute is invalid.” Id. at 79 (Thomas, J.,

dissenting) (citation omitted).

The

constitutional

prohibition

on

race

discrimination applies at every level. Congress is

barred by the Fifth Amendment from engaging in race

discrimination. The States are barred from engaging

in such conduct by the Fourteenth Amendment. And

“Congress has no affirmative power to authorize the

States to violate the Fourteenth Amendment and is

implicitly prohibited from passing legislation that

purports to validate any such violation.” Saenz v. Roe,

526 U.S. 489, 508 (1999).

Thus, when Califano v. Westcott struck down

Massachusetts’s denial of unemployment benefits to

families of unemployed mothers as unconstitutional

sex-based discrimination, it did not find that

9

discrimination justified because the State was

attempting to comply with the federal Aid to Families

with Defendant Children statute, which mandated

sex-based denial of benefits. 443 U.S. 76, 78–79

(1979). Instead, it found the federal statute itself

unconstitutional. Id. at 89.

Similarly, in a series of cases dealing with

residency requirements for state-administered federal

grant programs, the Court “ha[s] consistently held

that Congress may not authorize the States to violate

the Fourteenth Amendment.” Saenz, 526 U.S. at 507.

In Saenz, it struck down California’s one-year

residency requirement as contrary to the right to

travel, and it rejected the state’s defense relying on

the “1996 amendment to the Social Security Act” by

explaining that “neither Congress nor a State can

validate a law that denies the rights guaranteed by

the Fourteenth Amendment.” Id. at 507, 508 (quoting

Mississippi Univ. for Women v. Hogan, 458 U.S. 718,

732–733 (1982)). Likewise, in Shapiro v. Thompson,

the Court held that various state residency

requirements were unconstitutional even if “Congress

expressly approved the imposition of the

requirement,” because such a “provision . . . would be

unconstitutional.” 394 U.S. 618, 638, 641

(1969), overruled on other grounds by Edelman v.

Jordan, 415 U.S. 651 (1974). And in Graham v.

Richardson, the Court held that state denials of

various federally-funded welfare benefits to certain

immigrants violated the Equal Protection Clause,

rejecting the argument that the denial was

“authorized by federal law,” because “Congress does

not have the power to authorize the individual States

10

to violate the Equal Protection Clause.” 403 U.S. 365,

380, 382 (1971).

To be sure, the Reconstruction Amendments

altered our constitutional order in important respects:

they decreed an end to “all official state sources of

invidious racial discrimination,” Loving v. Virginia,

388 U.S. 1, 10 (1967), they “expand[ed] federal power

at the expense of state autonomy,” Seminole Tribe of

Fla. v. Florida, 517 U.S. 44, 59 (1996), and they

“enlarged” Congress’s ability to exercise “remedial

powers to effectuate the constitutional prohibition

against racial discrimination,” South Carolina v.

Katzenbach, 383 U.S. 301, 326 (1966). But they did not

change the fundamental premise of our constitutional

system: that “[t]he Constitution is supreme over

statutes, not vice versa.” Milligan, 599 U.S. at 79

(Thomas, J., dissenting).

It ineluctably follows from that foundational

principle that a state’s attempt to comply with the

VRA—an important statute, but a statute

nonetheless—cannot provide a “compelling interest”

capable of excusing what would otherwise amount to

unconstitutional race discrimination.

If complying with Section 2 of the VRA

authorizes the states to predominately consider race

when drawing election maps, and if predominately

considering race violates the Equal Protection Clause,

then the necessary conclusion is that such an

application of Section 2 is unconstitutional under both

the Fifth Amendment’s Equal Protection component

and the Fourteenth Amendment’s “implicit[ ]

prohibit[ion]” of congressional “legislation that

purports to validate [a state’s Fourteenth

Amendment] violation.” Saenz, 526 U.S. at 508. To

11

avoid construing Section 2 of the VRA as

unconstitutional, the Court should clarify that it does

not authorize states to predominantly consider race

during the redistricting process. Cf. Boumediene v.

Bush, 553 U.S. 723, 787 (2008) (“[W]e are obligated to

construe the statute to avoid constitutional problems

if it is fairly possible to do so.”) (cleaned up).

Moreover, rejecting the “assumption” would not

place States “in the impossible position of having to

choose between compliance with [the VRA] and

compliance with the Equal Protection Clause.” League

of United Latin Am. Citizens v. Perry, 548 U.S. 399,

518 (2006) (“LULAC”) (Scalia, J., concurring in part

and dissenting in part). Under our constitutional

structure, that choice is not impossible, it is easy: “a

legislative act contrary to the constitution is not law,”

Marbury, 1 Cranch (5 U.S.) at 177, and so a state faced

with the choice can only choose “compliance with the

Equal Protection Clause,” LULAC, 548 U.S. at 518

(Scalia, J., concurring in part and dissenting in part).

B.

Even if Attempting to Comply with a

Statute Could Justify Violating the

Equal Protection Clause, Sorting

Voters Predominately Based on Race Is

Neither Congruent nor Proportional to

the Fourteenth Amendment.

Even if it were possible for attempted compliance

with a federal statute to justify state conduct that

would otherwise violate the Constitution, applying

Section 2 of the VRA to authorize or require the

sorting of voters based predominately on race could

only possibly be defended “under Congress’ power to

enact reasonably prophylactic legislation [under the

Reconstruction Amendments] to deter constitutional

12

harm.” Milligan, 599 U.S. at 80 (Thomas, J.,

dissenting) (cleaned up). It cannot be so defended.

“Legislation

which

deters

or

remedies

constitutional violations can fall within the sweep of

Congress’ enforcement power even if in the process it

prohibits conduct which is not itself unconstitutional.”

City of Boerne v. Flores, 521 U.S. 507, 518 (1997). But

Congress’s

enforcement

power

under

the

Reconstruction Amendments “is not unlimited.” Id.

Congress has no “power to decree the substance” of the

underlying constitutional amendments via statute.

Id. at 519; see also Katzenbach, 383 U.S. at 326

(Congress cannot use its enforcement power to

“attack[ ] evils not comprehended by the Fifteenth

Amendment”). And “[w]hile preventive rules are

sometimes appropriate remedial measures,” there

“must be a congruence and proportionality between

the injury to be prevented or remedied and the means

adopted to that end.” City of Boerne, 521 U.S. at 520,

530. If Section 2 of the VRA is applied to authorize or

require States to draw district lines based

predominately on considerations of race, it would not

be “congruent and proportional to any provisions of

the Reconstruction Amendments.” Milligan, 599 U.S.

at 81 (Thomas, J., dissenting).

Reading Section 2 of the VRA as authorizing or

requiring states to draw district lines based

predominately on the races of voters living therein is

fundamentally at odds with the principles codified by

the Reconstruction Amendments. “Under the Equal

Protection Clause, districting maps that sort voters on

the basis of race are by their very nature odious.”

Wisconsin Legislature, 595 U.S. at 401. The beating

heart of the Reconstruction Amendments is that “[t]he

13

Constitution . . . should not permit any distinctions of

law based on race or color,” SFFA, 600 U.S. at 202

(cleaned up), and the “sordid business” of “divvying us

up by race” must come to a close, LULAC, 548 U.S. at

511 (Roberts, C.J., concurring in part and dissenting

in part). Reading Section 2 of the VRA to authorize

States to segregate voters based predominately on

their race is thus “not merely foreign to the

Amendments. Rather, [it is] radically inconsistent

with the Amendments’ command that government

treat citizens as individuals and their goal of a

political system in which race no longer matters.”

Milligan, 599 U.S. at 82 (Thomas, J., dissenting).

Moreover, even in the limited situations where

this Court has permitted race-based state actions, it

has insisted that “at some point . . . they must end.”

SFFA, 600 U.S. at 213. Race-based distinctions

designed to remedy specific past violations of equal

treatment, for instance, must be accompanied by

“findings [that] serve to assure all citizens that the

deviation from the norm of equal treatment of all

racial and ethnic groups is a temporary matter.” City

of Richmond v. J.A. Croson Co., 488 U.S. 469, 510

(1989). Likewise, while the Court in Grutter allowed

the use of race in college admissions to continue

temporarily, it insisted that “all governmental use of

race must have a logical end point.” 539 U.S. at 342.

And in SFFA, the Court held that race-based college

admissions were no longer constitutional, given that

no end was in sight. 600 U.S. at 230–31. “The

requirement of a time limit ‘reflects that racial

classifications, however compelling their goals, are

potentially so dangerous that they may be employed

no more broadly than the interest demands.

14

Enshrining a permanent justification for racial

preferences would offend this fundamental equal

protection principle.” Id. at 313–14 (Kavanaugh, J.,

concurring) (quoting Grutter, 539 U.S. at 342).

Whether or not the VRA could justify the sorting

of voters based predominately on considerations of

race in the “exceptional conditions” of 1965,

Katzenbach, 383 U.S. at 309, or when Section 2 was

amended in 1982, the continued use of such an

extraordinary measure “must be justified by current

needs,” Shelby Cnty., Ala. v. Holder, 570 U.S. 529, 536

(2013); see also SFFA, 600 U.S. at 260 (Thomas, J.,

concurring) (consideration of race to remedy past

discrimination must have a “close remedial fit” that is

“concrete and traceable to the de jure segregated

system”). And given the requirement that “all

governmental use of race must have a logical end

point,” Grutter, 539 U.S. at 342, any “authority to

conduct race-based redistricting cannot extend

indefinitely into the future,” Milligan, 599 U.S. at 45

(Kavanaugh, J., concurring).

Yet, this Court’s “assumption” that a state’s

attempted compliance with Section 2 of the VRA could

justify making race the predominate consideration in

the design of election maps has no logical end point,

nor any other “salutary limiting principles; it is

unbounded in time, place, and subject matter.” Id. at

88 (Thomas, J., dissenting). That temporally

unbounded mandate for states to engage in race

discrimination “offend[s] th[e] fundamental equal

protection principle” that “racial classifications, even

when otherwise permissible, must be a temporary

matter, and must be limited in time.” SFFA, 600 U.S.

at 313–14 (Kavanaugh, J., concurring). The lack of an

15

endpoint for state action that violates the Fourteenth

Amendment’s prohibition on racial discrimination

means that this Court’s “assumption” is therefore not

“proportionate to ends legitimate.” City of Boerne, 521

U.S. at 533.

Accordingly, even if a state’s attempt to comply

with a statute could be a “compelling interest” capable

of justifying a state’s violation of the Fourteenth

Amendment, a state’s belief that sorting voters based

predominately on race is necessary under Section 2 of

the VRA would still not justify such race

discrimination, since applying Section 2 to require

such conduct is not congruent and proportional to the

purposes of the Reconstruction Amendments and is

thus not “a constitutional reading and application of

[the VRA],” Miller, 515 U.S. at 921.

C.

This Court Should Vacate the District

Court’s Decision and Remand for

Further Proceedings.

For the reasons above, the State cannot, as a

matter of first principles, defend one of the underlying

bases for the three-judge district court’s decision to

grant summary judgment to the State. The

“assumption” that attempting to comply with Section

2 of the VRA could provide a “compelling interest”

capable of justifying otherwise unconstitutional race

discrimination lacks constitutional grounding and

should be revisited by this Court. Cf. J.S.App.A27.

The State therefore asks this Court to vacate the

decision in its favor. In doing so, the State asks the

Court to make clear that predominately considering

race in the creation of an election map violates the

Fourteenth Amendment, and that the “assumption”

16

that a state may have a “compelling interest” for

making race predominate when it has “good reasons”

to believe doing so is necessary to comply with the

VRA cannot withstand scrutiny. Cf., e.g., Cooper, 581

U.S. at 292. After rejecting that “assumption” and

clarifying the governing law, the Court should remand

for further proceedings, where the State intends to

prove race was not the predominant factor in the

creation of the challenged subdistricts.

Given the clarity of the constitutional principles

set forth above, this Court could summarily reverse

and vacate the three-judge district court’s decision

through a brief opinion rejecting the “assumption”

that attempted compliance with the VRA can justify

predominantly considering race in violation of the

Equal Protection Clause, and providing any necessary

guidance to the district court concerning how to

proceed on remand. See Supreme Court Rule 18.12.

Alternatively, if the Court concludes that examining

the basis for that “assumption” requires further

consideration, it could note probable jurisdiction and

set the case for briefing and argument limited to that

issue. If no other party is prepared to defend the

assumption that a state’s attempted compliance with

the VRA could justify otherwise unconstitutional

racial gerrymandering, the Court could appoint an

amicus curiae to defend that position.

II.

If the Court Does Not Revisit the “Assumption” that Attempting to Comply with the

VRA Could Be a Compelling Justification

for

Making

Race

Predominate

in

Districting, It Should Summarily Affirm.

As addressed supra, the Court should reconsider

and reject its “assumption” that a state’s attempt to

17

comply with Section 2 of the VRA could be a

compelling reason to make race predominate in

redistricting. It should either summarily reverse on

that point or grant merits briefing limited to that

point. However, if the Court does not reconsider that

“assumption,” the Court should summarily affirm.

Faithfully following precedent from this Court

instructing how to implement the “assumption,” the

three-judge court correctly applied the “strong basis”

(or “good reasons” or “breathing room”) standard

articulated by this Court to find that the State would

have had good reasons to believe the creation of

challenged subdistricts was required by Section 2 of

the VRA. The district court’s findings in that regard

were well supported in the record and were not

erroneous, let alone clearly erroneous. See Cooper, 581

U.S. at 285 (“A district court's factual findings made

in the course of this two-step inquiry are reviewed

only for clear error.”). And Appellants did not proffer

any evidence capable of creating a genuine dispute of

fact that would have precluded summary judgment.

Consequently, if the Court does not revisit the

underlying “assumption” addressed supra, the threejudge court correctly granted summary judgment to

the State based on the undisputed record evidence

and summary affirmance would be warranted.

A.

The District Court Correctly Applied

the “Good Reasons” Standard.

When States predominately consider race during

redistricting in an attempt to comply with the VRA

(assuming the Court does not revisit the assumption

discussed above), they are left in a precarious

position—“‘trapped between the competing hazards of

18

liability’ under the Voting Rights Act and the Equal

Protection Clause.” Bethune-Hill, 580 U.S. at 196

(quoting Bush v. Vera, 517 U.S. 952, 977 (1996)).

Recognizing that states need “breathing room” to

navigate the tensions of the VRA and the Equal

Protection Clause in this context, this Court has held

that “[w]hen a State justifies the predominant use of

race in redistricting on the basis of the need to comply

with the Voting Rights Act,” the State is not required

“to show that its action was ‘actually . . . necessary’ to

avoid a statutory violation, so that, but for its use of

race, the State would have lost in court.” Id. at 194–

96 (quoting Alabama Legislative Black Caucus, 575

U.S. at 278).

Instead, the Court applies a lower standard,

under which “the requisite strong basis in evidence

exists when the legislature has ‘good reasons to

believe’ it must use race in order to satisfy the Voting

Rights Act.” Id. at 194 (quoting Alabama Legislative

Black Caucus, 575 U.S. at 278). “Th[e] ‘strong basis’

(or ‘good reasons’) standard gives States ‘breathing

room’ to adopt reasonable compliance measures that

may prove, in perfect hindsight, not to have been

needed.” Cooper, 581 U.S. at 293 (quoting BethuneHill, 580 U.S. at 194).

Applying that standard, the district court in this

case thoroughly reviewed the relevant legislative

history and concluded the State performed “a

contemplative and thorough pre-enactment analysis

as to whether the subdistricts were required by the

VRA.” J.S.App.A26. That included “ ‘carefully

examin[ing]’ potential Section 2 claims” and

“reviewing testimony and presentations as to the

Gingles preconditions.” Id. And based upon that

19

analysis, the three-judge court found that the State

would have had “good reasons to believe the

subdistricts were required by the VRA.” Id. at A.25

(emphasis added). Under this Court’s precedent, the

court was not required to undertake an exhaustive

analysis to find that the State would in fact have been

subject to Section 2 liability if it did not enact the

challenged map.

On direct appeal to this Court, Appellants argue

that the three-judge court’s analysis was “anemic” and

failed to conduct a “searching inquiry or functional

analysis” to establish the State would have been liable

under Section 2 of the VRA if it did not enact the

challenged map. See J.S.11–18.

But this case does not involve a Section 2

challenge to the State’s election map. Rather, this case

involves a Section 2 defense of the State’s election

map, where the question is whether the State would

have had “good reasons” to believe that complying

with the VRA required enacting the challenged map.

The demands of Section 2 are thus being used to

defend a state’s map, rather than to challenge it. In

this context, requiring the State to affirmatively

establish that Section 2 required enacting the

challenged map, as Appellants suggest, would nullify

the “breathing room” expressly provided by this

Court’s precedents. Cooper, 581 U.S. at 293. This

Court’s case law adopts a “good reasons” standard; it

does not require states to establish that “the VRA

actually requires” the election map it adopts. Contra

J.S.13 (emphasis added).

Appellants and Amici States similarly argue that

the three-judge court erred because it focused its

“good reasons” analysis on the Gingles preconditions

20

without additionally undertaking an exhaustive

analysis of the totality of circumstances and whether

Native Americans have an unequal opportunity to

participate in the political process. See J.S.22–27;

Brief of Amici Curiae Alabama et al. at 3–16 (Apr. 5,

2024) (“States’ Amicus Br.”). The State agrees that

those additional Section 2 factors beyond the Gingles

preconditions—totality of the circumstances and

unequal opportunity to participate—would indeed be

necessary elements if this case involved a challenge to

a state’s redistricting plan under Section 2 of the VRA.

But again, this case does not involve such a challenge:

it involves a State’s Section 2 defense of its election

map against a challenge under the Equal Protection

Clause.

Under this Court’s precedent, in cases where

attempted compliance with Section 2 is used as a

defense of the state’s map, courts need not undertake

the type of full-fledged Section 2 analysis that would

be necessary if the statute was being used to challenge

the state’s map. Instead, this Court has directed lower

courts assessing such a defense to focus on the Gingles

factors. As the Court described the analysis in Cooper,

“[i]f a State has good reason to think that all the

‘Gingles preconditions’ are met, then so too it has good

reason to believe that § 2 requires drawing a majorityminority district.” 581 U.S. 302 (citing Vera, 517 U.S.

at 978) (emphasis added). The Court is of course free

to provide further guidance concerning the role of the

unequal opportunity to participate inquiry in

affirmative Section 2 claims in an appropriate case,

see States’ Amicus Br. at 14–16, 20–24, but the district

court here cannot be faulted for adhering to this

21

Court’s direction that such an inquiry is not necessary

when assessing a state’s Section 2 defense.

And if the Court’s “assumption” that attempted

compliance with Section 2 can provide a compelling

interest to predominantly consider race remains

intact, it makes sense to set a lower defensive bar for

determining whether a state had “good reason” to

believe its actions were necessary to comply with the

VRA. As implementing that “assumption” makes it

necessary to give the States “‘breathing room’ to make

reasonable mistakes” and adopt “compliance

measures [that] may prove, in perfect hindsight, not

to have been needed.” Wisconsin Legislature, 595 U.S.

at 404 (quoting Cooper, 581 U.S. at 293).

In short, the three-judge district court faithfully

followed this Court’s “good reasons” standard for

implementing the “assumption” that attempted

compliance with the VRA can be a defense to

unconstitutional racial gerrymandering. If that

“assumption” is not revisited, Appellants’ challenge on

this basis should be summarily rejected.

B.

The District Court’s Findings Implementing the “Good Reasons” Standard

Are Not Clearly Erroneous

A substantial part of Appellants’ argument on

direct appeal to this Court challenges the three-judge

court’s findings under the “Good Reasons” standard.

See J.S.18–22, 29–30. The Court should also

summarily reject these arguments.

A three-judge district court’s assessment of a

districting plan under the “good reasons” standard

“warrants significant deference on appeal to this

Court.” Cooper, 581 U.S. at 293. And the three-judge

22

court’s findings “are subject to review only for clear

error.” Id. (citing Fed. R. Civ. Proc. 52(a)(6); Easley v.

Cromartie, 532 U.S. 234, 242 (2001)). “Under that

standard, we may not reverse just because we ‘would

have decided the [matter] differently.’ A finding that

is ‘plausible’ in light of the full record—even if another

is equally or more so—must govern.” Cooper, 581 U.S.

285 at 293 (quoting Anderson v. Bessemer City, 470

U.S. 564, 573–74 (1985)).

The three-judge court cited extensive witness

testimony, statements of legislators, and a legislative

committee report in support of its finding that the

State would have had good reasons and a strong basis

to believe the challenged subdistricts were required

by the VRA. J.S.App.A21-27. And the State’s preenactment analysis was further bolstered by the

experts disclosed in this case. The State disclosed an

expert who performed a functionality analysis of

Districts 4 and 9 and concluded that the Gingles

preconditions were met, potentially subjecting the

State to Section 2 claims if the challenged subdistricts

were not created. D. Ct. Doc. 100-10 (02/28/23). The

Intervenors also disclosed an expert who likewise

opined that the Gingles preconditions would have

been met had the State not created the challenged

subdistrict in District 4. D. Ct. Doc. 106-3 (02/28/23).

The expert reports submitted by the State and

Intervenors in this case were entirely unrebutted, as

Appellants did not disclose any experts of their own

and chose not to take any expert depositions.

The district court’s finding was consequently

“ ‘plausible’ in light of the full record.” Cooper, 581

U.S. at 293. And the fact that one of the districts

containing a challenged subdistrict was subsequently

23

invalidated by the decision of a single judge, see Turtle

Mountain Band of Chippewa Indians v. Howe, 2023

WL 8004576 (D. N.D. Nov. 17, 2023), appeal filed (8th

Cir. No. 23-3655), has no bearing on the question

presented here, contra J.S.22–23. Whether the State

could have been liable under Section 2 for not

subdividing one of its as-enacted districts is a

separate question from whether the State could be

liable for not drawing that as-enacted district with an

entirely different shape to begin with. The answer to

one question has little to do with the other.

In short, after reviewing the record evidence

submitted in this case, the three-judge court more

than plausibly found that the State “had good reasons

to believe the [challenged] subdistricts were required

by the VRA.” J.S.App.A25. That Appellants would

have attached different legal significance to certain

parts of the record and arrived at different

conclusions—see J.S.18–22, 28–30—does not make

the court’s findings implausible or clearly erroneous.

See Cooper, 581 U.S. 285 at 293.

C.

Summary Judgment Was Appropriate.

Finally, Appellants argue that the three-judge

court improperly resolved this case at summary

judgment “on the thin record before it,” rather than

after a bench trial. See J.S.28–29, 30–35. Appellants

assert that they were “denied . . . the opportunity to

cross-examine witnesses, probe their testimony, and

further develop evidence for the finder of fact.” Id. at

28. This argument should also be summarily rejected.

The relevant facts in this case were undisputed;

indeed, Appellants themselves moved (unsuccessfully)

for summary judgment based on the same record,

24

apparently also believing that the relevant record

facts were not in dispute. D. Ct. Doc. 99 (02/28/23).

As the three-judge court explained, its “good

reason” inquiry examined the “undisputed legislative

record to assess the State’s pre-enactment analysis.”

J.S.App.A21. The entire legislative record of the

State’s 2021 redistricting process (including all public

legislative documents and transcripts of all legislative

hearings) was produced by the State in discovery and

thus was available to all parties during the summaryjudgment briefing. Much of that legislative record was

submitted to the court through the summary

judgment cross-motions. D. Ct. Docs. 100-1 through

100-10 (02/28/23); D. Ct. Docs. 103-1 through 106-4

(02/28/23); D. Ct. Docs. 109-1 through 109-23

(02/28/23). Appellants did not dispute any of those

materials, nor did they introduce any factual evidence

in this case outside of the legislative record. By the

close of discovery, Appellants had noticed no

depositions, disclosed no expert witnesses, and

produced no affidavits from fact witnesses in relation

to the summary judgment motions. Appellants’ belief

that the three-judge court should have attributed

different legal importance to particular facts in the

undisputed record, see J.S.31–33, does not mean that

summary judgment was inappropriate.

In short, the record was undisputed in this case,

as were the opinions of the State’s and Intervenors’

experts. That undisputed record evidence supports

the district court’s conclusion that the State would

have had good reasons to believe Section 2 required

creation of the challenged subdistricts. As Appellants

themselves stated when filing their own motion

urging that the same undisputed facts be given

25

different legal effect, “[s]ummary judgment

appropriate.” D. Ct. Doc. 99, 32 (02/28/23).

is

CONCLUSION

For the foregoing reasons, the Court should

vacate the three-judge district court’s decision, make

clear that a state’s attempted compliance with the

VRA cannot excuse otherwise unconstitutional race

discrimination, and remand for further proceedings.

In the alternative, if the Court declines to

reconsider its assumption that a state’s attempted

compliance with the VRA could provide a compelling

justification for a state using race as the predominate

consideration in drawing election districts, it should

summarily affirm.

May 6, 2024

Respectfully submitted,

PHILIP AXT

DAVID H. THOMPSON

Counsel of Record

BRIAN W. BARNES

S

OLICITOR

GENERAL

JOHN D. OHLENDORF

600 E. Boulevard Ave.,

SPECIAL ASSISTANT

Dept. 125

ATTORNEYS GENERAL

Bismarck, ND 58505

1523 New Hampshire

(701) 328-3625

Avenue, N.W.

pjaxt@nd.gov

Washington, D.C. 20036

(202) 220-9600

dthompson@cooperkirk.com DAVID R. PHILLIPS

SPECIAL ASSISTANT

ATTORNEY GENERAL

300 W. Century Ave.,

P.O. Box 4247

Bismark, ND 58502

dphillips@bgattorneys.com

Counsel for Appellees