Amicus Curiae Brief — Nancy Landry, Secretary of State of Louisiana, et al., Applicants v. Phillip Callais, et al.

NOS. 23A994, 23A1002

IN THE SUPREME COURT OF THE UNITED STATES

PRESS ROBINSON, ET AL.

Applicants,

v.

PHILLIP CALLAIS, ET AL.

Respondents.

NANCY LANDRY, SECRETARY OF STATE OF LOUISIANA, ET AL.

Applicants,

v.

PHILLIP CALLAIS, ET AL.

Respondents.

On Emergency Application for Stay Pending Appeal from the

United States District Court, Western District of Louisiana

Brief for Edward Galmon, Sr., Cierra Hart, Norris

Henderson, and Tramelle Howard (“Galmon Amici”) as

Amici Curiae in Support of Applicants

Lalitha D. Madduri

Jacob D. Shelly

Daniel Cohen

Qizhou Ge

ELIAS LAW GROUP LLP

250 Massachusetts Ave, NW

Suite 400

Washington, D.C. 20001

(202) 968-4490

Abha Khanna

Counsel of Record

ELIAS LAW GROUP LLP

1700 Seventh Avenue,

Suite 2100

Seattle, Washington 98101

(206) 656-0177

AKhanna@elias.law

Counsel for Galmon Amici

TABLE OF CONTENTS

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

INTRODUCTION AND SUMMARY OF THE ARGUMENT................................. 1

BACKGROUND ........................................................................................................... 3

I.

Galmon Amici successfully litigated their Section 2 challenge

to Louisiana’s congressional districting plan. ................................................. 3

II.

The Western District of Louisiana enjoined the Legislature’s

remedial map. ................................................................................................... 8

ARGUMENT ............................................................................................................... 11

I.

A stay is appropriate because this Court is presently adjudicating

similar issues. ................................................................................................. 12

II.

A stay is appropriate because the decision below threatens to

completely stymie Section 2 relief. ................................................................ 13

III. A stay is appropriate because the decision below was infected

with procedural error. .................................................................................... 17

CONCLUSION ........................................................................................................... 19

i

TABLE OF AUTHORITIES

Cases

Page(s)

Alexander v. South Carolina State Conference of the NAACP,

No. 22-807 (U.S. argued Oct. 11, 2023) ............................................................. 3, 12

Allen v. Milligan,

599 U.S. 1 (2023) ...................................................................................................... 6

Ardoin v. Robinson,

142 S. Ct. 2892 (2022) .................................................................................... 2, 6, 12

Ardoin v. Robinson,

143 S. Ct. 2654 (2023) .......................................................................................... 2, 6

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

580 U.S. 178 (2017) .......................................................................................... 14, 17

Dep’t of Homeland Sec. v. New York,

140 S. Ct. 599 (2020) .............................................................................................. 17

Hays v. Louisiana,

18 F.3d 1319 (5th Cir. 1994) .................................................................................. 10

Hollingsworth v. Perry,

558 U.S. 183 (2010) ................................................................................................ 11

In re Landry,

83 F.4th 300 (5th Cir. 2023), stay denied sub nom.,

Robinson v. Ardoin, 144 S. Ct. 6 (2023) ..................................................... 2, 6, 7, 17

Robinson v. Ardoin,

144 S. Ct. 6 (2023) .................................................................................................... 7

Robinson v. Ardoin,

37 F.4th 208 (5th Cir. 2022) ................................................................................. 5, 6

Robinson v. Ardoin,

605 F. Supp. 3d 759 (M.D. La. 2022), preliminary injunction vacated,

86 F.4th 574 (5th Cir. 2023) ......................................................................... 2, 3, 4, 5

Robinson v. Ardoin,

86 F.4th 574 (5th Cir. 2023), reh’g en banc denied

No. 22-30333 (5th Cir. Dec. 15, 2023) ...................................................................... 7

ii

Rostker v. Goldberg,

448 U.S. 1306 (1980) .............................................................................................. 11

Order, S.C. State Conf. of the NAACP v. Alexander,

No. 3:21-cv-03302-MGL-TJH-RMG (D.S.C. Feb. 4, 2023) .............................. 12, 13

Order, S.C. State Conf. of the NAACP v. Alexander,

No. 3:21-cv-03302-MGL-TJH-RMG (D.S.C. Mar. 28, 2024) ................................. 12

Wise v. Lipscomb,

437 U.S. 535 (1978) ................................................................................................ 13

Rules

Fed. R. Civ. P. 24(a) ..................................................................................................... 19

Supreme Court Rule 37.6 .............................................................................................. 1

iii

INTEREST OF AMICI CURIAE 1

Galmon Amici are four Black Louisiana voters whose successful Voting

Rights Act litigation in related proceedings resulted in the enactment of the

congressional districting map that the court below permanently enjoined. Galmon

Amici file this brief to highlight the equitable factors favoring a stay of the lower

court’s injunction. Their own experiences, representative of hundreds of thousands

of similarly situated Black Louisianians, demonstrate the several threats to the

public interest if a stay is not issued. Galmon Amici have an interest in the

integrity of the civil litigation system, such that rights vindicated in one court are

not immediately revoked by another court in rushed proceedings without their

participation. And they have an interest in their right to an undiluted vote—a right

denied in the 2022 elections and now under assault once more.

INTRODUCTION AND SUMMARY OF THE ARGUMENT

For over two years, Galmon Amici have been litigating to secure what Section

2 of the Voting Rights Act promises them: a second congressional district where

Black Louisianians like themselves have an equal opportunity to elect their

candidates of choice. Yet every time they have been on the cusp of achieving

meaningful relief, they have been stymied.

1 In accordance with Rule 37.6, no counsel for a party authored this brief in whole or

in part, and no counsel or party made a monetary contribution intended to fund the

preparation or submission of this brief. The National Redistricting Foundation

made a monetary contribution to fund the preparation and submission of this brief.

1

Galmon Amici won a preliminary injunction on June 6, 2022, when the

Middle District of Louisiana determined that they and other consolidated plaintiffs

were substantially likely to prevail on the merits of their claims, see Robinson v.

Ardoin, 605 F. Supp. 3d 759, 766 (M.D. La. 2022) (“Robinson I”), preliminary

injunction vacated, 86 F.4th 574 (5th Cir. 2023), but they were denied relief for the

2022 elections when—in a posture mirroring this one—this Court stayed the

preliminary injunction while it considered the appeal of another Section 2 case

raising similar issues. Ardoin v. Robinson, 142 S. Ct. 2892 (2022) (mem.). This

Court later vacated that stay and dismissed the writ of certiorari as improvidently

granted after it resolved the related appeal. Ardoin v. Robinson, 143 S. Ct. 2654

(2023) (mem). Galmon Amici subsequently litigated toward an October 3, 2023,

remedial hearing to effectuate the injunction they had won, but the State

Defendants sought a writ of mandamus from the Fifth Circuit, which responded by

further postponing any remedy by requiring additional time for Louisiana’s

Legislature to consider enacting a new map, In re Landry, 83 F.4th 300, 303–04

(5th Cir. 2023), stay denied sub nom., Robinson v. Ardoin, 144 S. Ct. 6 (2023) (mem.).

The Legislature never requested such relief, but it utilized that time to enact

Senate Bill 8 (“S.B. 8”), which cured the Section 2 violation. Then, on April 30, 2024,

another district court (the court below) permanently enjoined that map after a

rushed trial, from which Galmon Amici—despite their best efforts—were excluded

entirely.

2

The district court’s injunction was not rooted in a concern that Louisiana

failed to comply with its Section 2 obligations—the principal defect plaguing

Louisiana’s congressional plan for the last several years. Rather, the court faulted

Louisiana for intentionally creating the second Black-opportunity district that

Section 2 requires. By enjoining S.B. 8 in this circumstance, the court below

threatens to destroy the rights of Section 2 litigants like Galmon Amici, who can no

longer count on a total victory and full remedy sticking for more than a few

meaningless months because of gamesmanship, corner-cutting, and legal error.

Permitting the injunction to stand would be particularly inequitable in these

circumstances given this Court’s previous encounter with Louisiana redistricting

proceedings. Just as this Court stayed the Section 2 injunction of Louisiana’s

districting plan that Galmon Amici secured in 2022 because similar legal issues

were under consideration in another case, the present racial gerrymandering

injunction raises issues parallel to those in Alexander v. South Carolina State

Conference of the NAACP, No. 22-807 (U.S. argued Oct. 11, 2023), which is currently

awaiting a merits decision from this Court. The same principles that warranted a

stay in 2022 warrant a stay now.

BACKGROUND

I.

Galmon Amici successfully litigated their Section 2 challenge to

Louisiana’s congressional districting plan.

After the U.S. Census Bureau delivered the 2020 census results, the

Louisiana Legislature enacted a new congressional districting plan, over the

Governor’s veto, on March 30, 2022. Robinson I, 605 F. Supp. 3d at 767–68. That

3

same day, Galmon Amici filed a complaint in the Middle District of Louisiana

alleging that Louisiana’s new congressional map, H.B. 1, violated Section 2 of the

Voting Rights Act because it failed to include a second district where Black

Louisianians would have an opportunity to elect their candidates of choice.

Complaint, Galmon v. Ardoin, No. 3:22-cv-00214-BAJ-RLB (M.D. La. Mar. 30, 2022),

ECF No. 1. That action was joined with a parallel suit brought by other Black voters

and civic organizations (Robinson Applicants), and on April 15, 2022, the plaintiffs

in both cases separately moved to preliminarily enjoin the use of the enacted

congressional map. After legislative leaders and the State of Louisiana intervened

to defend the map, Robinson I, 605 F. Supp. 3d at 768, the Middle District held a

five-day evidentiary hearing in May 2022, where the court considered 244 exhibits

and heard testimony from 22 witnesses, including 15 expert and 7 fact witnesses.

On June 6, 2022, the Middle District issued a 152-page ruling and order

finding that Galmon Amici were substantially likely to prevail on their Section 2

claim. See id. at 766. The Middle District made several careful and critical

determinations in reaching its conclusion. First, it found that the plaintiffs had

established all three Gingles preconditions. Id. at 831, 840–42. Next, after analyzing

the Senate Factors, it concluded that the totality of the circumstances weighed in

favor of the plaintiffs and found that they “are substantially likely to prevail on the

merits of their vote dilution claim.” Id. at 851. Additionally, the Middle District

evaluated and thoroughly rejected defendants’ contentions that any Louisiana

congressional “map with two majority-Black districts” is a “racial gerrymander[] as

4

a matter of law,” id. at 831–32, and that race predominated in plaintiffs’ illustrative

maps because their mapdrawers intentionally sought to draw two majority-Black

districts, id. at 834–35; see also id. at 838 (“Race consciousness does not lead

inevitably to impermissible race discrimination.” (quoting Shaw v. Reno, 509 U.S.

630, 646 (1993))). The Middle District preliminarily enjoined H.B. 1 and “provide[d]

the Legislature an opportunity to enact a new map that is compliant with Section 2

of the Voting Rights Act.” Id. at 858.

Defendants immediately appealed to and sought a stay of the injunction in

the Fifth Circuit, arguing primarily that “Plaintiffs’ illustrative plans are racial

gerrymanders which cannot satisfy the first (or any other) Gingles condition.” Sec’y

of State’s Emergency Mot. for Stay Pending Appeal at 1, Robinson v. Ardoin, No. 2230333 (5th Cir. June 10, 2022), ECF No. 45. On June 12, 2022, the Fifth Circuit

denied a stay pending appeal, recognizing that defendants had not shown they were

likely to succeed on the merits of their appeal. Robinson v. Ardoin, 37 F.4th 208,

218 (5th Cir. 2022). In so doing, the Fifth Circuit specifically rejected defendants’

racial gerrymandering defense, holding that “racial gerrymandering is far from

inevitable” in drawing a second majority-Black district in Louisiana and that the

“doctrine presents no obstacle to orders like the one issued by the [Middle District].”

Id. at 224. It further noted that in adopting a remedy to the likely Section 2

violation, the “Legislature will be free to consider” any number of maps from the

legal and legislative record “or come up with new ones and [] weigh whatever factors

it chooses alongside the requirements of Gingles,” a “difficult” task but one from

5

which “the Legislature will benefit from a strong presumption that it acts in good

faith.” Id. at 223–24.

Defendants then applied for a stay from this Court. On the eve of the

remedial hearing set for June 29, 2022, this Court treated that application as a

petition for certiorari, granted the petition, and ordered the action “held in abeyance

pending this Court’s decision in [Allen v. Milligan, 599 U.S. 1 (2023)],” a Section 2

appeal out of Alabama. Ardoin, 142 S. Ct. at 2892. Thus, Galmon Amici and every

other Louisiana elector voted in the 2022 congressional election under a map that

lacked the second Black-opportunity district that Galmon Amici had demonstrated

Section 2 likely requires. A year later, this Court reaffirmed the Section 2 precedent

applied by the district courts in Alabama and Louisiana, see Allen, 599 U.S. at 42,

and shortly thereafter—over the objections of defendants, who continued to press

racial gerrymandering arguments, see Letter of La. Att’y Gen. & Sec’y of State,

Ardoin v. Robinson, No. 21-1596 (U.S. June 8, 2023)—vacated the Louisiana stay

and dismissed the writ of certiorari as improvidently granted, Ardoin, 143 S. Ct. at

2654.

After proceedings resumed in the district court and approached a remedial

hearing for a second time, defendants won a writ of mandamus from the Fifth

Circuit, vacating the remedial hearing again. In re Landry, 83 F.4th at 303. While

the mandamus panel refrained from criticizing the district court’s injunction on the

merits and ignored each of the reasons that defendants offered for a writ of

mandamus, the panel nonetheless determined that the Legislature was entitled to

6

additional time to attempt its own remedy of the Section 2 violation. Id. at 306–07.

The panel emphasized that “section 2 must be vindicated,” but it recognized that

judicial remedies are disfavored because map-selection “necessarily involves the

exercise of discretion by federal courts whose judgments will interfere with a

primary constitutional structural device of self-government: making decennial

districting choices about representation in legislative bodies.” Id. at 307–08; see also

id. at 308 (courts should “accomodat[e] to the greatest extent the legislatures’

ability to confect their own remedial plans”). 2

A few months later, a separate Fifth Circuit panel affirmed the district

court’s analysis on the merits, finding that Galmon Amici were indeed likely to

succeed on their Section 2 claim. Nonetheless, it vacated the preliminary injunction

because at the time of its November 10, 2023 order, the next election was no longer

sufficiently imminent to warrant interim relief. Robinson v. Ardoin, 86 F.4th 574,

583 (5th Cir. 2023), reh’g en banc denied No. 22-30333 (5th Cir. Dec. 15, 2023). The

Fifth Circuit provided the Legislature another “opportunity to consider a new map

now that we have affirmed the district court’s conclusion that the Plaintiffs have a

likelihood of success on the merits,” and expressed its intention that a lawful map

would be in place for the 2024 elections. Id. at 601–02.

2 In concurring in the denial of the application to stay this order, Justice Jackson

noted that “as [the Court has] previously emphasized, this litigation should be

resolved ‘in advance of the 2024 congressional elections in Louisiana.’” Robinson,

144 S. Ct. at 6 (mem.) (Jackson, J., concurring) (quoting Ardoin, 143 S. Ct. at 2654).

7

Having failed to rebut their Section 2 obligations before the Middle District,

Fifth Circuit stay panel, Fifth Circuit mandamus panel, Fifth Circuit merits panel,

Fifth Circuit en banc, and this Court, Louisiana’s political branches accepted their

responsibility to craft a congressional districting plan with the requisite second

Black-opportunity district and enacted S.B. 8. See Robinson App. to Emergency

Appl. for Stay of Inj. 430–31, Robinson v. Callais, No. 23A994 (U.S. May 8, 2024)

(“Robinson App.”) (collecting statements from legislators that the special legislative

session was called in response to decisions by the Middle District, Fifth Circuit, and

this Court making clear that Section 2 required an additional Black-opportunity

district, and that the Legislature had to act to preempt a judicial remedy that might

not reflect the Legislature’s policy preferences). Satisfied that S.B. 8 remedied

Galmon Amici’s claims, the Middle District dismissed their complaint on April 25,

2024. Ruling Granting Defendants’ Mot. to Dismiss at 13–14, Robinson v. Landry,

No. 3:22-cv-211-SDD-SDJ (M.D. La. Apr. 25, 2024), ECF No. 371. 3

II.

The Western District of Louisiana enjoined the Legislature’s

remedial map.

Shortly after S.B. 8’s enactment, twelve voters (“Callais Plaintiffs”)

challenged the new map in the Western District of Louisiana as a racial

gerrymander. By agreement of Callais Plaintiffs and Defendant Secretary of

State—who had spent the previous two years seeking to delay litigation in the

3 Now that S.B. 8 is enjoined

and thus no longer relieves their Section 2 injury,

Galmon Amici moved for reconsideration of the court’s dismissal on May 1, 2024.

See Robinson, No. 22-cv-211-SDD-SDJ (M.D. La. May 1, 2024), ECF No. 372. That

motion is awaiting decision.

8

Middle District—the proceedings advanced at lightning speed. See Unopposed Mot.

for Case Mgmt. Conf. & Expedited Scheduling, Callais v. Landry, No. 3:24-cv00122-DCJ-CES-RRS (W.D. La. Feb. 19, 2024), ECF No. 43 (requesting expedited

schedule); Elec. Order Granting Mot. to Set Expedited Br. Schedule, Callais, No.

3:24-cv-00122-DCJ-CES-RRS (Feb. 21, 2024), ECF No. 62 (granting expedited

schedule). The complaint was filed on January 31 and served on February 8. See

Robinson App. 1–33; Executed Summons, Callais, No. 3:24-cv-00122-DCJ-CES-RRS

(W.D. La. Feb. 8, 2024), ECF No. 29. Exactly 60 days later, on April 8, the threejudge district court commenced a 2.5-day preliminary injunction hearing

consolidated with trial on the merits. Robinson App. 164–66.

Galmon Amici’s efforts to participate in this trial were thwarted at every

turn. See id. at 167–75 (denying intervention to Galmon Amici); id. at 255–58

(denying Galmon Amici’s motion to reconsider denial of intervention); Order,

Callais v. Landry, No. 24-30177 (5th Cir. Mar. 26, 2024), ECF No. 40-2 (denying

Galmon Amici’s motion to expedite the appeal of their denial of intervention). Even

though Galmon Amici moved to intervene before any other party entered an

appearance, and even though the district court credited that Galmon Amici had

significant interests that could be impaired by the action, the court determined that

Galmon Amici did not satisfy the requirements for intervention because their

9

interests were adequately represented by later-moving intervenors. 4 Robinson App.

172–74.

As liability proceedings raced toward the trial date, discovery was

significantly truncated despite the heavily fact-intensive nature of Callais Plaintiffs’

racial gerrymandering claim. See id. at 271–72 (recounting minimal depositions and

expert preparation). At trial, the Robinson Applicants—whose intervention was

granted only 15 business days earlier on a motion to reconsider a previous denial of

their motion to intervene, id. at 255–58—supplied the primary defense of S.B. 8.

The Secretary of State and State of Louisiana both declined to take any depositions,

submit any expert reports, or call any witnesses. The Secretary did not contribute

any substantive defense of S.B. 8, and the State presented a decidedly weak defense,

presenting, in total, approximately ten minutes of video excerpts from the

legislative record before resting its case. Robinson App. 699–703; Minutes of Court:

4 Recognizing the error of this exclusion much too late, the district court sua sponte

reconsidered its denial of intervention on May 3, 2024—weeks after trial had

concluded, and only after Galmon Amici had filed their opening brief on appeal of

the intervention denial in the Fifth Circuit, Galmon Movants-Appellants’ Opening

Br., Callais, No. 24-30177 (5th Cir. Mar. 25, 2024), ECF No. 22, and their motion for

reconsideration of the Middle District’s dismissal order in light of the injunction of

S.B. 8, supra n.3—limiting Galmon Amici’s participation to any forthcoming

remedial proceedings. See Order on Recons. of Mot. to Intervene, Callais, No. 3:24cv-00122-DCJ-CES-RRS (W.D. La. May. 3, 2024), ECF No. 205. Galmon Amici

intend to transfer their pending appeal of their exclusion from the liability phase,

currently pending before the Fifth Circuit, to this Court. See Hays v. Louisiana, 18

F.3d 1319, 1320–21 (5th Cir. 1994) (determining that jurisdiction to decide

interlocutory appeal of denial of intervention transferred from court of appeals to

Supreme Court once the Supreme Court accepted an appeal from a three-judge

court’s ruling on the merits).

10

Bench Trial – Day 3, Callais, No. 3:24-cv-00122-DCJ-CES-RRS (W.D. La. Apr. 10,

2024), ECF No. 178.

On April 30, 2024—12 weeks after the initial complaint was filed—the

Western District determined that S.B. 8 is unconstitutional and permanently

enjoined the State of Louisiana from using “S.B. 8’s map of congressional districts

for any election.” Robinson App. 443. After the district court declined to stay its

injunction, see id. at 553–54, the Robinson Applicants’ request for stay from this

Court quickly followed. The State of Louisiana and Secretary of State also jointly

requested a stay from this Court earlier this morning, emphasizing that insufficient

time remains to implement a congressional districting map other than S.B. 8—

which the court below enjoined—or H.B. 1—the previously enacted map that

Galmon Amici had established was likely to violate Section 2. State of Louisiana’s

Emergency Appl. for Stay Pending Appeal 5, 6 n.1, Landry v. Callais, No. 23A1002

(U.S. May 10, 2024) (“State’s Stay Appl.”).

ARGUMENT

A stay pending appeal is appropriate where the legal issues satisfy the

Court’s certiorari standards, where there is “a fair prospect” that the Court will

reverse the judgment below, and where irreparable harm will likely result from the

denial of a stay. Hollingsworth v. Perry, 558 U.S. 183, 190 (2010) (per curiam). In

close cases, the Court “explore[s] the relative harms to applicant and respondent, as

well as the interests of the public at large.” Rostker v. Goldberg, 448 U.S. 1306, 1308

(1980) (Brennan, J., in chambers) (collecting cases). Galmon Amici share Robinson

11

Applicants’ views of the merits and write separately to underscore the severe threat

of irreparable harm that they and the public will suffer absent a stay.

I.

A stay is appropriate because

adjudicating similar issues.

this

Court

is

presently

Just like in 2022, when this Court stayed an injunction of Louisiana’s

congressional map pending its adjudication of similar legal issues, Ardoin, 142 S. Ct.

at 2892, a stay is appropriate now. In Alexander v. South Carolina State Conference

of the NAACP, this Court is actively considering questions mirroring those here,

including whether a finding of racial gerrymandering is appropriate where the

district court (according to appellants) failed to presume the legislature’s good faith,

failed to disentangle race from politics, and failed to consider whether the

challenged congressional district inflicts a discriminatory effect. Compare Questions

Presented, Alexander, No. 22-807 (U.S. argued Oct. 11, 2023), with Robinson App.

451 (Stewart, J., dissenting) (highlighting presumption of good faith, which was

missing from majority’s analysis); id. at 464 (“The legislative record in this case is

inundated with both direct and circumstantial evidence that political considerations

predominated in the drafting and passing of S.B. 8.”); id. at 445 n.1 (“Notably, none

of the plaintiffs in this case demonstrated that S.B. 8 had a discriminatory effect on

them based on their race.”). And whereas the three-judge Alexander panel

postponed remedial proceedings pending resolution of the appeal, Order, S.C. State

Conf. of the NAACP v. Alexander, No. 3:21-cv-03302-MGL-TJH-RMG (D.S.C. Feb. 4,

2023), ECF No. 501; see also Order, S.C. State Conf. of the NAACP, No. 3:21-cv03302-MGL-TJH-RMG (D.S.C. Mar. 28, 2024), ECF No. 523 (postponing injunction

12

to commence after the 2024 election), here the district court is bulldozing ahead, see

Robinson App. 553–54; id. at 1079–82. 5

Having stayed an injunction that promised to afford Black Louisianians relief

in one election cycle, it would be inconsistent with equitable principles and contrary

to the public interest to decline in the very next election cycle to stay a subsequent

injunction that robbed Black Louisianians of that same relief.

II.

A stay is appropriate because the decision below threatens to

completely stymie Section 2 relief.

The district court’s approach is inconsistent with the well-established judicial

recognition that legislative remedies to redistricting issues should be preferred, see

Wise v. Lipscomb, 437 U.S. 535, 540 (1978), because it would apply a negative

presumption—that will often prove to be fatal—wherever a legislature seeks to

remedy a Section 2 violation while pursuing lawful political interests other than

traditional districting criteria. This reasoning would consign Section 2 plaintiffs to

an impossible position. A strong Section 2 case makes it more likely that a

legislature will adopt a new map, both because a remedial map is likely to be

required and because the legislature would forfeit important prerogatives if it

abdicated the remedial process to the judiciary. A legislative remedy, however,

makes it more likely that the remedial map will reflect partisan- and incumbentdriven interests, which, according to the court below, makes it more likely that the

5 Should this Court reverse in Alexander or otherwise clarify the standard for racial

gerrymandering claims, then this Court should vacate the injunction below and

remand for consideration in light of Alexander.

13

map will be enjoined. That is bad law, and it is extremely prejudicial to Louisiana

voters who have already suffered one election under unlawful maps and who—

despite doing everything by the book to remedy their Section 2 injury—are running

out of time to avoid a repeat of that irreparable harm.

The court below never mentioned the presumption of good faith due to

legislatures, let alone applied it in any meaningful way. That presumption is critical

in this case, where the Legislature made clear time and again that its creation of a

second Black-opportunity district was motivated not by any invidious intention to

sort its citizens by race, but rather by an earnest desire to comply with legal

obligations that had been thoroughly litigated and unambiguously confirmed. As

the court below summarized,

The record includes audio and video recordings, as well as transcripts,

of statements made by key political figures such as the Governor of

Louisiana, the Louisiana Attorney General, and Louisiana legislators,

all of whom expressed that the primary purpose guiding SB8 was to

create a second majority-Black district due to the Robinson litigation.

Robinson App. 425; see also id. at 426–27 (compiling representative record evidence).

Far from crediting this extensive evidence of the Legislature’s efforts to comply with

federal law as indicia of good faith, however, the district court recast the statements

as “direct evidence” of unconstitutional intent. See id. at 425. Putting aside the

several ways this makes a hash of redistricting law, see Bethune-Hill v. Va. State Bd.

of Elections, 580 U.S. 178, 196 (2017) (recognizing states may consider race in

redistricting where they have “good reasons” for believing the VRA requires it), the

district court’s approach puts litigants like Galmon Amici in an impossible position.

14

For two years, Galmon Amici have gone from courthouse to courthouse,

winning their injunction and then withstanding every appeal, demonstrating with

reams of evidence and analysis their right to the second opportunity district that

Section 2 guarantees to Black Louisianians. And for two years the State resisted,

finally acquiescing only once it was clear that resistance could no longer be

sustained in good faith. See, e.g., Robinson App. 394 (citing Governor Landry’s

statement that the State had “exhausted all legal remedies” and had “labored with

this issue for far too long”). Yet it was the very strength of Galmon Amici’s case,

according to the district court’s up-is-down logic, that doomed the remedial map.

Had Galmon Amici not presented such comprehensive evidence of Section 2’s

requirements at the preliminary injunction hearing—resulting in a decision that

was left undisturbed on the merits by no less than five courts to consider the issue,

including this Court and the Fifth Circuit Court of Appeals—perhaps the State

would have pursued the Middle District litigation through trial and further appeals.

It was only because the inevitable conclusion of protracted litigation—the judicial

adoption of a remedial map—was so apparent that the Legislature accepted the

preliminary injunction findings and acted to ensure its own interests would be

reflected in the new map. See id. at 430–31 (cataloging evidence of this motivation).

The Legislature’s interests, like those offered in defense of the map at issue

in Alexander, were fundamentally political. See id. at 419 (acknowledging “[i]t is

clear from the record and undisputed that political considerations – the protection

of incumbents – played a role in how [the challenged district] was drawn”); see also

15

id. at 759 (bill sponsor Senator Womack stating, “[I]t was strictly politics [that]

drove this map.”). A legislature’s decision to avoid an apolitical judicial remedy by

enacting a Section 2-compliant districting map that attempts to protect favored

incumbents and national party leaders, see id. at 401–02 (recounting evidence),

even at the expense of other traditional districting criteria, cannot operate to

deprive Section 2 plaintiffs of the fruits of their victory.

If a State’s creation of an additional Black-opportunity district may be

permanently enjoined wherever a legislature accedes to a judicial edict requiring

that district and pursues political interests while doing so, then every Section 2

victory could prove ephemeral. Under the district court’s logic, if a legislature

sincerely desires to remedy a Section 2 violation proved in court, evidence of that

sincere motivation will subject any legislative remedy to strict scrutiny, and the

legislative remedy will fail strict scrutiny if the political branches’ remedial map

features legitimate interests other than maximizing compactness and minimizing

political boundary splits.

Because the only reason for a legislature to take the districting pen back from

the judiciary after the finding of a Section 2 violation is precisely to advance

interests other than the traditional criteria that a court will be obligated to

prioritize, the decision below would set every Section 2 action on a doom loop. If a

State wants to provide a good-faith remedy for a well-founded Section 2 violation, it

will intentionally create an additional minority-opportunity district that reflects

political leaders’ own parochial interests—dooming the map. And if a State wants to

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stymie any meaningful Section 2 relief, it needs only to intentionally create an

additional minority-opportunity district that reflects political leaders’ own parochial

interests. Thus, by failing to credit legislative good faith, the court below

incentivizes and rewards bad faith. Here, the presumption of good faith, and the

substantial “breathing room” that legislatures in this situation must be afforded,

Bethune-Hill, 580 U.S. at 196, should have fully inoculated S.B. 8 from Callais

Plaintiffs’ attack.

III.

A stay is appropriate because the decision below was infected with

procedural error.

The court below was in such a hurry to enter final judgment that it never

meaningfully grappled with the distortions that it was creating. “[R]ushed, highstakes, low-information decisions” like these inevitably make for bad law. Dep’t of

Homeland Sec. v. New York, 140 S. Ct. 599, 600 (2020) (Gorsuch, J., concurring in

grant of stay). Each of these perils is present here.

First, the hypersonic sprint from service of the complaint to a final merits

decision after trial—less than 12 weeks in all—is, to Galmon Amici’s knowledge,

unprecedented for a racial gerrymandering case. Cf. In re Landry, 83 F.4th at 305

(warning “the district court’s unique rush to remedy” 16 months after preliminary

injunction threatened an “outcome [that] would embarrass the federal judiciary and

thwart rational procedures,” requiring writ of mandamus).

Second, the stakes are grave, as the voting rights of hundreds of thousands of

Black Louisianians hang in the balance. The consequences of the district court’s

injunction are especially severe given representations to this Court by the State and

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the Secretary warning that, if the injunction is not stayed, they will have no choice

but to administer a second consecutive election under H.B. 1—the map that was

repealed over four months ago—because the Secretary did nothing to update its

computer system with enacted S.B. 8. State’s Stay Appl. 5, 6 n.1. Galmon Amici had

finally succeeded in replacing H.B. 1 after one prejudicial election, two years of

litigation, and decisions from three courts (the Middle District, the Fifth Circuit

motions panel, and the Fifth Circuit merits panel) confirming that H.B. 1 likely

violates Section 2. It simply cannot be the case that, like Sisyphus, Galmon Amici

can never truly achieve relief, no matter how close they seem to get.

Third, the district court’s decision was decidedly low-information. It was

made on an incomplete record, as full discovery was never completed, see Robinson

App. 271–72 (schedule did not allow for any depositions of legislators in legislative

intent case, or for full depositions of Callais Plaintiffs’ experts), and the court

excluded all evidence from the two-year Section 2 proceedings, Trial Tr. Vol II at

351:79–357:10, 357:25–362:11, 417:3–423:1, Callais, No. 3:24-cv-00122-DCJ-CESRRS (W.D. La. Apr. 9, 2024). It also lacked full adversity, as the rushed schedule

was proposed by Plaintiffs and the Secretary of State—who expressly took no

position on the merits in the litigation—before intervention was granted to any

party defending S.B. 8. See Unopposed Mot. for Case Mgmt. Conf. & Expedited

Scheduling, Callais, No. 3:24-cv-00122-DCJ-CES-RRS, (W.D. La. Feb. 19, 2024),

ECF No. 43. Finally, it excluded key stakeholders, as intervention was denied to

Galmon Amici despite findings sufficient to establish intervention as of right. See

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Robinson App. 167–75 (finding Galmon Amici’s motion to intervene was timely and

identified significant interests that could be impaired by the litigation, but denying

intervention because interests were adequately represented); id. at 255–58 (finding

Galmon Amici’s interests were not adequately represented by parties existing at the

time Galmon Amici moved to intervene, but denying reconsideration of denial of

intervention); Fed. R. Civ. P. 24(a).

This Court should stay the injunction below while it reviews these and other

significant errors in full.

CONCLUSION

Galmon Amici respectfully request that the Court stay the district court’s

injunction until this appeal is resolved.

Respectfully submitted,

Lalitha D. Madduri

Jacob D. Shelly

Daniel Cohen

Qizhou Ge

ELIAS LAW GROUP LLP

250 Massachusetts Ave, NW

Suite 400

Washington, D.C. 20001

(202) 968-4490

/s/ Abha Khanna

Abha Khanna

Counsel of Record

ELIAS LAW GROUP LLP

1700 Seventh Avenue,

Suite 2100

Seattle, Washington 98101

(206) 656-0177

AKhanna@elias.law

Counsel for Galmon Amici

DATED: May 10, 2024

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