Reply Brief — Press Robinson, et al., Applicants v. Phillip Callais, et al.
Supreme Court briefMay 14, 2024
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No. 23A994
In the Supreme Court of the United States
PRESS ROBINSON, et al.,
Applicants,
v.
PHILLIP CALLAIS, et al.,
Respondents.
On Appeal from the
United States District Court for the
Western District of Louisiana
REPLY IN SUPPORT OF APPLICATION FOR STAY
JANAI NELSON
SAMUEL SPITAL
STUART NAIFEH
Counsel of Record
KATHRYN SADASIVAN
VICTORIA WENGER
COLIN BURKE
NAACP LEGAL DEFENSE AND
EDUCATIONAL FUND, INC.
40 Rector Street, 5th Floor
New York, NY 10006
Tel: (212) 965-2200
snaifeh@naacpldf.org
ROBERT A. ATKINS
YAHONNES CLEARY
JONATHAN H. HURWITZ
AMITAV CHAKRABORTY
ADAM P. SAVITT
ARIELLE B. MCTOOTLE
ROBERT KLEIN
NEIL CHITRAO
PAUL, WEISS, RIFKIND,
WHARTON & GARRISON LLP
1285 Avenue of the Americas
New York, NY 10019
TRACIE WASHINGTON
LOUISIANA JUSTICE INSTITUTE
Suite 132
3157 Gentilly Blvd.
New Orleans LA, 70122
DEUEL ROSS
R. JARED EVANS
I. SARA ROHANI
NAACP LEGAL DEFENSE AND
EDUCATIONAL FUND, INC.
700 14th Street N.W. Ste. 600
Washington, DC 20005
JOHN ADCOCK
ADCOCK LAW LLC
3110 Canal Street
New Orleans, LA 70119
NORA AHMED
STEPHANIE WILLIS
ACLU FOUNDATION OF LOUISIANA
1340 Poydras St., Ste. 2160
New Orleans, LA 70112
SOPHIA LIN LAKIN
GARRETT MUSCATEL
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
125 Broad Street, 18th Floor
New York, NY 10004
SARAH BRANNON
MEGAN C. KEENAN
ADRIEL I. CEPEDA DERIEUX
DAVID D. COLE
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
915 15th St., NW
Washington, DC 20005
CECILLIA D. WANG
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
39 Drumm Street
San Francisco, CA 94102
T. ALORA THOMAS-LUNDBORG
DANIEL HESSEL
ELECTION LAW CLINIC
HARVARD LAW SCHOOL
6 Everett Street, Ste. 4105
Cambridge, MA 02138
TABLE OF CONTENTS
Page
INTRODUCTION................................................................................................................ 1
ARGUMENT ........................................................................................................................ 4
I.
Applicants Have Standing to Appeal..................................................................... 4
II.
The District Court Violated Applicants’ Due Process Rights by Rushing
to a Final Judgment and Failing to Allow Applicants to Develop a
Complete Factual Record. ....................................................................................... 7
III.
Applicants Are Likely to Succeed in Their Appeal ............................................ 10
IV.
A.
Respondents Inappropriately Demand that States Litigate
Every VRA Case to Judgment to Avoid Fourteenth Amendment
Liability........................................................................................................ 10
B.
No Additional Pre-enactment Analysis Was Required Where the
Robinson Court Had Already Found the Gingles Standard
Satisfied. ...................................................................................................... 14
C.
The District Court Applied an Incorrect Legal Standard in
Assessing Racial Predominance................................................................ 17
The Equities Favor a Stay .................................................................................... 18
CONCLUSION .................................................................................................................. 21
i
TABLE OF AUTHORITIES
Page(s)
Cases
Abbott v. Perez,
585 U.S. 579 (2018) ..................................................................................................... 13
Abrams v. Johnson,
521 U.S. 74 (1997) ......................................................................................................... 5
Ala. Legis. Black Caucus v. Alabama,
575 U.S. 254 (2015) ..................................................................................................... 13
Allen v. Milligan,
599 U.S. 1 (2023).................................................................................................... 14, 18
Ardoin v. Robinson,
142 S. Ct. 2892 (2022) ................................................................................................. 18
Ardoin v. Robinson,
143 S. Ct. 2654 (2023) ................................................................................................... 6
Bethune-Hill v. Va. State Bd. of Elections,
580 U.S. 178 (2017) ..................................................................................................... 13
Bush v. Vera,
517 U.S. 952 (1996) ............................................................................................... 16, 17
Cooper v. Harris,
581 U.S. 285 (2017) ..................................................................................................... 14
DeWitt v. Wilson,
856 F. Supp. 1409 (E.D. Cal. 1994), aff’d 515 U.S. 1170 (1995)............................. 17
Easley v. Cromartie,
532 U.S. 234 (2001) ..................................................................................................... 17
Hollingsworth v. Perry,
570 U.S. 693 (2013) ................................................................................................... 4, 6
LULAC v. Perry,
548 U.S. 399 (2006) ..................................................................................................... 16
McAllen Grace Brethren Church v. Salazar,
764 F.3d 465 (5th Cir. 2014)......................................................................................... 4
TABLE OF AUTHORITIES
(Continued)
Page(s)
Merrill v. Milligan,
142 S. Ct. 879 (2022) ................................................................................................... 18
Robinson v. Ardoin,
605 F. Supp. 3d 759 (M.D. La. 2022) ............................................................... 5, 12, 15
Robinson v. Ardoin,
86 F.4th 574 (5th Cir. 2023) ....................................................................................... 12
Robinson v. Ardoin,
No. 3:22-cv-211-SDD-SDJ (M.D. La. Apr. 19, 2022), ECF No. 63 ........................... 9
Va. House of Delegates v. Bethune-Hill,
139 S. Ct. 1945 (2019) ................................................................................................... 5
Wis. Legislature v. Wis. Elections Comm’n,
595 U.S. 398 (2022) ..................................................................................................... 16
i
TO THE HONORABLE SAMUEL ALITO, ASSOCIATE JUSTICE OF THE SUPREME COURT
OF THE U NITED STATES AND CIRCUIT JUSTICE FOR THE FIFTH CIRCUIT.
INTRODUCTION
Like the Defendant-Intervenor voters (“Applicants” here), the State of
Louisiana and the State and the Secretary of State, in their separate application,
throw into stark relief the reasons a stay is critical to protecting Applicants’ right to
vote in 2024 under a congressional redistricting plan that does not dilute their votes
in violation of Section 2 of the Voting Rights Act of 1965 (“VRA”). According to the
State’s stay application, if the District Court’s injunction is not stayed by May 15,
2024, allowing the map struck down by the District Court as a purported racial
gerrymander (“SB8”) to go into effect, the only alternative map that can feasibly be
implemented for the upcoming election is the State’s prior map (“HB1”). HB1—which
was repealed unconditionally by SB8 and for that reason alone cannot and should not
be used in 2024—is, of course, the very map found to violate Section 2 by the district
court and the Fifth Circuit in the Robinson litigation. Applicants were already
compelled to vote under that unlawful map in 2022. It was solely because that
irreparable harm had already occurred that the Fifth Circuit vacated the Robinson
preliminary injunction. In light of Applicants’ strong showing that they are likely to
succeed on appeal because the District Court applied the wrong legal standard, this
Court must not allow that irreparable harm to be repeated in 2024. The Court should
grant the Application and issue a stay of the District Court’s injunction.
In their response to the application for a stay, as they did in their trial
presentation, Respondents attempt to wish away the legal and political contexts in
1
which SB8 was enacted. Respondents first seek to minimize the significance of the
Robinson litigation, which they and the District Court concede provided the rationale
for the State of Louisiana to redraw its congressional districts in January 2024. Their
response suggests that the State just threw in the towel on the day the Robinson
litigation was filed. But it did no such thing. Rather, it vigorously litigated for two
years—through appeals, certiorari petitions, and a writ of mandamus—to prevent,
first, a preliminary injunction striking down HB1 as a likely violation of the VRA,
and second, the imposition of a remedial map with a second majority-Black
congressional district. The District Court here also failed to give due account to the
Robinson rulings. Rather than see Robinson as providing a strong justification for the
State’s remedial redistricting, the court treated legislators’ acknowledgement of the
Robinson litigation as evidence of unlawful racial gerrymandering. But under this
Court’s precedents, a factual finding by a federal court based on a comprehensive
evidentiary record that the State’s redistricting plan is dilutive in violation of Section
2—a finding affirmed by a court of appeals—provides the strongest basis in evidence
for the Legislature’s creation of a new opportunity district for Black voters. The
Respondents’ argument boils down to the proposition that the decision to create a
new majority-Black district necessarily amounts to racial predominance, a position
squarely at odds with this Court’s precedent.
Respondents also barely acknowledge the political motivations of the
Louisiana Legislature in choosing SB8 over more compact alternatives. They dismiss
political considerations as accounting for SB8’s unusual configuration because,
2
insisting that the State could have accomplished those political goals in a more
compact plan if it had simply ignored the Robinson decisions and declined to create a
new majority-Black district. See Resp. at 19; App. 427-28. That, of course, would have
led to the Robinson court stepping in and doing exactly what the State sought to
avoid—imposing a map that contained the majority-Black district Section 2 requires
without any consideration for the Legislature’s political goals. Respondents’ willful
disregard of these facts and their failure to meaningfully engage with the applicable
legal standards cannot overcome Applicants’ showing that a stay is warranted.
Whether the Court treats May 15 or early June as the date by which a map
must be in place for the 2024 election, the Court should, as it has in similar situations,
stay the underlying judicial order and permit the State to proceed with the 2024
election under SB8. Without the 2024 election looming over remedial proceedings,
the court below and this Court will have sufficient time to settle on a final resolution
of the State’s congressional map for subsequent elections. But at this point, for this
Court to remain true to its prior rulings in similar circumstances, it should stay
judicial intervention with respect to the map to be used in the 2024 election, and allow
that election to proceed under the status quo map—SB8.
3
ARGUMENT
I.
Applicants Have Standing to Appeal
Applicants have standing to appeal the District Court’s injunction. 1 The ruling
directly impairs their right to an undiluted vote and threatens to force them, once
again, to vote for their congressional representatives under a map that violates
Section 2 of the Voting Rights Act. Respondents, relying principally on Hollingsworth
v. Perry, 570 U.S. 693 (2013), erroneously contend that Applicants lack standing to
appeal. 2 Resp. at 11-13. Respondents are wrong for three reasons.
First, in this appeal, Applicants assert their own interests in an undiluted vote,
not the State’s separate interest in upholding the constitutional validity of its
legislative enactment. Specifically, Applicants seek to ensure that their votes are not
diluted as a result of the invalidation of SB8, which was adopted to remedy a violation
of Applicants’ rights under Section 2 as a direct result of the Robinson litigation. See
App. 88 (“Any changes to the SB8 map that may result from decisions in this case
would directly implicate the relief Movants have sought and secured in Robinson.”).
1
The Court need not resolve Applicants’ standing to seek a stay. That is because even if Applicants
lacked standing to seek this stay on their own, the State also seeks a stay, and Respondents do not
dispute that the State has standing to do so. Where any party has standing, this Court has Article
III jurisdiction to decide the appeal. Cf., e.g., McAllen Grace Brethren Church v. Salazar, 764 F.3d
465, 471 (5th Cir. 2014) (“It is well settled that once we determine that at least one plaintiff has
standing, we need not consider whether the remaining plaintiffs have standing to maintain the
suit.”).
2
Respondents also suggest that Applicants’ status as permissive intervenors is somehow relevant to
the standing question, but they cite no authority for that notion. Even if it were relevant,
Respondents and the District Court are wrong that Applicants remained permissive intervenors
after the court’s reconsideration of its initial intervention order. In the initial order, the court found
that Applicants had satisfied three of the four requirements for intervention as of right, but that
their interests were adequately represented by the existing parties at the liability phase. App. 17072. Upon reconsideration, the court found that Applicants had established inadequate
representation on the liability issues the court allowed intervention on. App. 256. Thus, on the basis
of the court’s findings, Applicants were entitled to intervene as of right.
4
In Robinson, the district court found that the VRA demands a map with a second
Black-opportunity district and that failure to provide that district dilutes Applicants’
votes. Robinson v. Ardoin, 605 F. Supp. 3d 759, 766 (M.D. La. 2022) (“Robinson I”).
Yet the court below struck down the map that the Legislature adopted to remedy that
identified and particularized vote dilution, and Respondents have not been coy about
their true goal—not to vindicate their right to be free from racial gerrymandering,
but to prevent any map that would create a second district in which Black
Louisianians have an opportunity to elect candidates of their choice. See Resp. at 6365; App. 76 (“Plaintiffs urge this Court to adopt Illustrative Plan 1[,]” a plan with
only one majority-Black district).
Additionally, the District Court conceded that at least one Applicant, Davante
Lewis, resides in CD6, the district that was struck down as a racial gerrymander in
the court’s injunction and that, if upheld on appeal, would provide him and other
Black voters their VRA-guaranteed equal opportunity to elect candidates of choice to
Congress. App. 406. In such circumstances, private intervenor-defendants have been
permitted to pursue an appeal, even when the state has chosen not to. E.g., Abrams
v. Johnson, 521 U.S. 74, 78 (1997). This case is unlike Virginia House of Delegates v.
Bethune-Hill, where a single house of the state legislature sought to represent the
state in an appeal that the state itself was not a party to. 139 S. Ct. 1945 (2019).
Applicants seek to represent their own interests; they do not seek to represent the
State, which has simultaneously sought a stay, and therefore, Va. House of Delegates
has no applicability here.
5
Second, Applicants assert a particularized injury to themselves—dilution of
their votes—caused by the District Court’s injunction, and not an abstract preference
for a generally applicable law. Respondents’ heavy reliance on Hollingsworth v. Perry
is therefore misplaced. In Hollingsworth, this Court found that proponents of a ballot
initiative defining marriage to exclude same-sex unions lacked standing to appeal a
decision invalidating the initiative after it was codified into the state constitution.
570 U.S. at 707. The proponents identified no particularized injury to themselves
from the appealed judgement other than the invalidation of the constitutional
provision they had worked to enact. Id. at 706-07. But once the initiative was codified,
the proponents’ interest in upholding its validity constituted a generalized grievance
no different from that of any Californian. Id. at 707. Here, in contrast, the injury to
Applicants is not the invalidation of SB8 per se, but the imminent threat that their
own votes will be diluted as a result of the invalidation of SB8.
Third, the injury to Applicants is not speculative because the risk of vote
dilution is substantial. Applicants were already forced, in 2022, to vote under a map
that the Robinson district court and the Fifth Circuit had found likely violated Section
2 by diluting their votes. After this Court remanded the case to the lower courts for
resolution “in advance of the 2024 congressional elections,” the Legislature adopted
SB8 as a direct response. Ardoin v. Robinson, 143 S. Ct. 2654 (2023). Now that SB8
has been invalidated, there is an imminent risk that Applicants will again be forced
to undergo an election under a congressional redistricting plan that illegally dilutes
their votes. Indeed, the State has contended that if the District Court’s injunction is
6
not stayed, the only map that can feasibly be implemented in 2024 is HB1, the very
map that was found likely to violate Section 2 in Robinson. Even were the District
Court to order a different map and were the State feasibly able to implement it
without disruption, any decision on a remedy will come too late for Applicants. Should
the remedial map fail to remedy the Section 2 violation identified in Robinson, any
appeal would not be resolved before 2024 elections.
Applicants have standing to bring this appeal.
II.
The District Court Violated Applicants’ Due Process Rights by
Rushing to a Final Judgment and Failing to Allow Applicants to
Develop a Complete Factual Record.
Respondents ask this Court to deny a stay based on what they say they will
show in coming remedial proceedings—but failed to show at trial—to rebut the
State’s strong basis in evidence that it needed to comply with Section 2. Resp. at 41
(“[T]he record will show … Plaintiffs will make the showing…”) (emphasis added).
Specifically, Respondents assert their intention to ask the District Court to find—in
direct conflict with the findings of the Robinson courts—that a second majority-Black
district cannot be drawn. Id. At the same time, they argue that the District Court
should be deprived of the benefit of the extensive evidentiary record in Robinson
because none of the four legislators who testified at trial—out of the 144 members of
the State Legislature—claimed that it informed their decision-making on what the
VRA required, and on that basis, the District Court excluded it. Id. at 38. All of this
only serves to highlight the inadequacy of the District Court’s process to develop a
sufficient factual record on which to strike down a map when no one disputes that
the impetus to create that new map with a second majority-Black district was based
7
on multiple rulings—from a total of seven federal judges from the Middle District of
Louisiana and the Fifth Circuit—finding that HB1 likely violated the VRA.
At the behest of the Respondents, and with no opposition from the Secretary of
State, App. 266-67—who was the only defendant in the case at the time and who has
steadfastly declined to defend SB8, or even implement it after it was enacted into
law—the District Court advanced the trial on the merits and consolidated it with the
hearing on Respondents’ preliminary injunction. Id. at 164. The court took this
extraordinary step without input from the Applicants, despite the pendency of
Applicants’ motion to intervene. Id. at 266-67. The court then denied Applicants’
motion to deconsolidate the trial from the preliminary injunction despite
Respondents’ failure to oppose the motion. 3 Id. at 289.
The District Court then proceeded to conduct a trial less than a month after it
belatedly granted Applicants’ motion to intervene. In marked contrast to the
Robinson proceedings—which, on a motion for a preliminary injunction, unfolded
over a five-day hearing involving 21 witnesses and over 200 exhibits, and culminated
in a 165-page decision—the District Court here compressed an entire trial into less
than three days and on a limited evidentiary record issued a permanent injunction.
See generally id. at 385-444. It has now set a schedule for briefing on remedy and has
invited the parties to submit additional evidence but has declined to allow for
3
Applicants have appealed these rulings and will fully brief them at the merits phase of this appeal.
Respondents opposed Applicants’ request to continue the trial to allow adequate discovery and trial
time consistent with due process but mounted no opposition to Applicants’ alternative request to
decouple the trial from the preliminary injunction proceedings. Nevertheless, the District Court
denied both requests.
8
discovery or an evidentiary hearing, id. at 1081-82, despite conceding that the trial
record was insufficient for it to make findings on the requirements of Section 2. Id. at
442-43. And Respondents have indicated they intend to offer new evidence on new
contested issues in those remedial proceedings—issues that were not litigated below
or in the Robinson proceedings. Resp. at 41. Even if there were time for adequate
remedial proceedings—and there is not—the process adopted by the court below—
again in stark contrast to the Robinson court, which at several junctures prior to the
enactment of SB8 allowed for robust remedial discovery ahead of an evidentiary
remedial hearing, see, e.g., Scheduling Order, Robinson v. Ardoin, No. 3:22-cv-211SDD-SDJ (M.D. La. Apr. 19, 2022), ECF No. 63—is wholly inadequate to ensure the
interests of all stakeholders are taken into account and that it can reach an informed
conclusion that respects the voting rights not only of Applicants but of Black voters
across the state. In light of the stakes of this case, these procedural failings, and the
doubt they cast on the soundness of the District Court’s decision, Applicants support
staying the injunction to ensure that Applicants and others in Louisiana are not twice
subjected to an election under a map that unlawfully dilutes their votes and denies
them the equal opportunity mandated by the VRA. Granting a stay will ensure that
the 2024 election, like the 2022 election, proceeds under the map the Legislature
chose where there is insufficient time to conduct proceedings consistent with
Applicants’ due process rights before the coming election.
9
III.
Applicants Are Likely to Succeed in Their Appeal
A.
Respondents Inappropriately Demand that States Litigate Every VRA
Case to Judgment to Avoid Fourteenth Amendment Liability.
Respondents expend much of their brief looking for a difference between the
State’s “desire to avoid litigation in Robinson” and its need to “ensure compliance
with the VRA”—ignoring that the State did not, in fact, avoid litigation in Robinson.
Resp. at 23. On the contrary, in Robinson, the State opposed a preliminary injunction
motion and when it lost, filed a motion for a stay pending appeal, then successfully
pursued a stay from this Court, and on remand, litigated its appeal on the merits at
the Fifth Circuit, delayed remedial proceedings through a petition for writ of
mandamus, and after losing its appeal, unsuccessfully sought en banc rehearing. See
Stay Appl. at 11-14 (detailing the Robinson litigation’s history). It was only after two
years of hard-fought litigation, which resulted in multiple rulings telling the State
exactly what it needed to do to “ensure compliance with the VRA” that the State chose
voluntary compliance with federal law over continued litigation. The State then
sought to resolve the Robinson litigation and its likely Section 2 violation by enacting
a map that accomplished what courts in Robinson had told them Section 2 required
while also pursuing its own political goals of protecting the seats of certain favored
incumbents. Id. at 14-17. In other words, the State’s desire to avoid further litigation
in Robinson was not distinct from its obligation to adhere to Section 2; they were one
and the same.
But according to Respondents, because the State continued to maintain that
HB1 was lawful, it forfeited any breathing room in seeking to comply with what two
10
federal courts had said it must do to avoid a likely VRA violation. Resp. at 23 (“The
State’s avid defense of HB1 as VRA compliant [means] [a]ny breathing room . . . was
abandoned long ago.”). In other words, according to Respondents, unless legislators
or their legal advisors subjectively agree with the conclusions of the federal courts
that rule against them, they do not have a strong basis in evidence to believe that
remedial action is required to avoid VRA liability. Id. (“There is no evidence that the
Legislature found that there was a VRA violation . . . .”). Because the State insisted
that HB1 was lawful even after the Robinson rulings—as is common in negotiated
resolutions of litigation—Respondents fault it for “shirk[ing] the chance” “to put on a
full, actual defense of HB1.” Id. at 26. Merely to state this argument is to refute it;
defendants can, and often do, insist they did nothing wrong and simultaneously take
action to remedy a violation of law. The District Court found, and Respondents
concede, that the Legislature drew SB8 to comply with the Robinson court’s ruling.
App. 425-26; Resp. at 3-4. Whether they agreed with it or not is immaterial. They
were required to comply or face a trial they would likely lose. They chose to comply.
Respondents also argue that because the Fifth Circuit had “emphasized that
‘the State put all their eggs’ in one basket” and had “determined that the Supreme
Court’s decision in Allen v. Milligan ‘largely rejected’ the ‘State’s initial approach,’”
Resp. at 25 (citing Robinson v. Ardoin, 37 F.4th 208, 217 (5th Cir. 2022) (“Robinson
II”) and Robinson v. Ardoin, 86 F.4th 574, 592 (5th Cir. 2023) (“Robinson III”)), the
State was obligated, before taking action to comply with Section 2, to put its eggs in
a different basket and to try a new approach at a trial. But litigation strategy has
11
nothing to do with whether the state has a strong basis to believe a Section 2 remedy
is required. And entirely missing from the Respondents selective quotation of
Robinson is that the basket in which the State put all its eggs in Robinson was the
“racial gerrymandering” basket and the approach rejected in Milligan was the State’s
argument that complying with Section 2 would necessarily require racial
gerrymandering. Robinson III, 86 F.4th at 592. Both the district court and the Fifth
Circuit merits panel rejected that argument, concluding that a reasonably configured
additional majority-Black district could be drawn without race predominating and
that, in any event, the VRA provided a compelling interest justifying race-based
remedial districting. Robinson I, 605 F. Supp. 3d 759, 839 (M.D. La. 2022); Robinson
III, 86 F.4th at 593-95. And because it had no other basket, the State conceded and
chose compliance with the VRA over continuing to press racial gerrymandering
arguments that had been rejected.
Respondents further contend that because the rulings in Robinson were on a
preliminary injunction, where the district court found—based on the robust
evidentiary record from the preliminary injunction hearing 4 and under the applicable
preliminary injunction standard—that the Robinson plaintiffs had satisfied the
Gingles standard and were “likely” to succeed on the merits of their Section 2 claim,
the Legislature was not entitled to rely on the court’s findings. Resp. at 24-25. That
4
Respondents characterize the Western District’s 60-page opinion as “lengthy” and “exhaustive[,]”
Resp. at 20, and based on a “comprehensive” record, id. at 5-6, where the court considered thirteen
witnesses and 110 exhibits. The Chief Judge of the Middle District wrote a 152-page Ruling and
Order after a five-day evidentiary hearing involving twenty-one witnesses and over 200 exhibits.
See generally Robinson I, 605 F. Supp. 3d at 768-69; see also App. 338.
12
assertion, unsupported by any legal authority, rings hollow. Nothing in this Court’s
jurisprudence requires a state to fight to the bitter end before taking remedial action
in the face of a likely Section 2 violation. Nor has this Court ever held that a state
faced with an adverse judicial finding of VRA liability must conduct its own
independent analysis of whether the court was correct. Indeed, this Court has
recognized a State’s strong basis in evidence to draw Section 2 districts without any
litigation at all. The strong basis in evidence standard “does not demand that a State’s
actions actually be necessary to achieve a compelling state interest in order to be
constitutionally valid,” and states may have good reason to consider race to remedy a
VRA violation “even if a court does not find that the actions were necessary for
statutory compliance.” Alabama Legislative Black Caucus v. Alabama, 575 U.S. 254,
278 (2015) (cleaned up). In Bethune-Hill, for example, the Court found a sufficiently
strong basis in evidence for drawing a district with a 55 percent Black voting age
population based on demographic data, election results, and the legislature’s
“informed bipartisan consensus” that such a district was required to avoid VRA
liability. Bethune-Hill v. Va. State Bd. of Elections, 580 U.S. 178, 194-95 (2017). And
when litigation has occurred, this Court has not required the state to await a final
judgment before taking remedial action. See, e.g., Abbott v. Perez, 585 U.S. 579, 594603 (2018). These precedents allow states to make a good faith effort based on
reasonably available information—whether derived from the “preliminary” findings
of a court or its own inquiry—to determine what the VRA requires without thereby
being liable for racial gerrymandering.
13
The demand Respondents place on the Louisiana Legislature—that it
subjectively find, based on its own full-blown statistical, demographic, and social and
historical analysis, that the VRA requires it to engage in race-conscious districting or
that it be compelled by a final judgment from a federal court to do so—would require
expert consultants to be involved in every redistricting decision, magnifying the
burden on states (not to mention local jurisdictions) of an already complex process,
and yet would do little to reduce the likelihood of redistricting decisions to be resolved
through litigation. Throwing out the “good reasons” standard and further enmeshing
the federal courts in redistricting matters will do little to advance the goal of reducing
“the role of race in the electoral process.” Allen v. Milligan, 599 U.S. 1, 30 (2023). This
Court should decline Respondents’ efforts to remake the law.
B.
No Additional Pre-enactment Analysis Was Required Where the
Robinson Court Had Already Found the Gingles Standard Satisfied.
Respondents next contend that the District Court’s injunction was proper
because the State—faced with the ruling in Robinson, upheld on appeal, finding that
the plaintiffs had satisfied the Gingles preconditions and proven likely vote dilution
in the totality of the circumstances—failed to perform its own redundant “preenactment analysis of the Gingles factors” before enacting a remedial redistricting
plan. Resp. at 27-30. Here, unlike in Cooper, on which Respondents rely for this
proposition, the State had good reason to believe that “a [§ 2] plaintiff could establish
the Gingles preconditions” in a Louisiana congressional plan with only a single
majority-Black district, Cooper v. Harris, 581 U.S. 285, 304 (2017)—because a § 2
plaintiff had already done so in Robinson. In such circumstances, no purpose would
14
be served by requiring the state to conduct its own analysis based on the same
demographic data and voting patterns to prove to itself what had already been proven
in court. 5
Respondents next turn to LULAC to argue that while the Robinson plaintiffs
may have presented sufficient evidence to establish vote dilution in the area
connecting Baton Rouge to Louisiana’s Delta Parishes, that did not justify the State’s
creation of a remedial district connecting Baton Rouge to Natchitoches and
Shreveport. Resp. at 28-29 (citing LULAC v. Perry, 548 U.S. 399 (2006)), 33-34. There
are two problems with this argument. First, Respondents are simply incorrect about
what the record in Robinson showed. The evidence in Robinson demonstrated racially
polarized voting patterns in Northwest Louisiana as well as the Delta. The Robinson
plaintiffs’ expert, Dr. Lisa Handley, analyzed voting patterns and Black candidate
success rates in Congressional Districts 4, 5, and 6, which cover the territory included
in SB8’s District 6, and found voting to be highly polarized with the result that Blackpreferred candidates in all of those districts were universally defeated. See Robinson
I, 605 F. Supp. 3d at 800-04. In addition, as Applicants demonstrated below, a
compact map that connected these regions had been introduced in the legislative
session in which HB1 was enacted, but it paired two of the incumbents the
5
Puzzlingly, Respondents assert that VRA compliance was a “post hoc justification” for SB8, Resp.
at 26—as if the Robinson litigation had never happened and the Legislature, out of the blue, chose
to engage in congressional districting for the second time in two years to create a new majorityBlack district, and only after the fact concocted a VRA-compliance story to justify its actions. But
that narrative is inconsistent with the facts and inconsistent with the evidence on which the District
Court based its racial predominance findings—which showed that legislators were acting in direct
response to the losses in Robinson. App. 425-26.
15
Legislature sought to protect in SB8. 4/9 Tr. 403:23-404:21, ECF No. 185. Together,
that evidence provided the State with a basis for concluding that there was vote
dilution in Northwest Louisiana.
Second, although the State had evidence of vote dilution in both the Delta and
Northwest Louisiana, there was no evidence that two majority-Black districts could
be created that would accommodate voters in both regions. “[W]hen the racial group
in each area had a § 2 right and both could not be accommodated,” the VRA allows
“the State to use one majority-minority district to compensate for the absence of
another.” LULAC, 548 U.S. at 429; id. at 429-30 (if the inclusion of one group of voters
in a majority-minority district would necessitate the exclusion of others, “then the
State cannot be faulted for its choice”).
Thus, the State did not draw SB8 based on “generalizations,” Resp. at 30, but
based on the record in Robinson and the Attorney General’s advice that it was
unlikely to be overcome at trial. Robinson had already found each of the Gingles
preconditions satisfied and found that in the totality of the circumstances, Black
Louisianians did not have an equal opportunity to participate in the political process
and elect candidates of their choice. Unlike Wis. Legislature v. Wis. Elections Comm’n,
595 U.S. 398 (2022), where neither the state nor any court had found a likely VRA
violation, here, the Robinson court already had. The State thus had a strong basis to
conclude that § 2 required remedial action, and it was permissible to choose SB8 over
other more compact options to accomplish its political goals. See Bush v. Vera, 517
U.S. 952, 994 (1996) (plurality) (state’s “districting plan will be deemed narrowly
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tailored” if it creates “a district that substantially addresses the potential liability
and does not deviate substantially from a hypothetical court-drawn § 2 district for
predominantly racial reasons”) (emphasis added); id. at 999 (Kennedy, J., concurring)
(“States are not prevented from taking into account race-neutral factors in drawing
permissible majority-minority districts,” and “[d]istricts not drawn for impermissible
reasons or according to impermissible criteria may take any shape, even a bizarre
one.”).
C.
The District Court Applied an Incorrect Legal Standard in Assessing
Racial Predominance.
Respondents spend much of their opposition reciting the evidence and arguing
that this Court must defer to the District Court’s factual findings. See, e.g., Resp. at
13-14 (arguing that this Court may not disturb the District Court’s findings on racial
predominance as long as those findings are plausible). But errors of law are subject
to de novo review, and Applicants’ principal argument is that the District Court erred
as a matter of law when it assumed that evidence that the Legislature intentionally
created a majority-Black district to comply with the VRA, without more, was
sufficient to establish racial predominance. As this Court has made clear, it is not.
See Easley v. Cromartie, 532 U.S. 234, 241-42 (2001); Vera, 517 U.S. at 958, 962. That
erroneous understanding of the law infected the District Court’s view of all of the
evidence of racial predominance it considered, both direct and indirect.
Respondents do not argue the contrary nor do they even address this Court’s
precedent on the topic. See, e.g., Vera, 517 U.S. at 962 (“the decision to create a
majority-minority district” is not “objectionable in and of itself”); see also DeWitt v.
17
Wilson, 856 F. Supp. 1409 (E.D. Cal. 1994), aff’d 515 U.S. 1170 (1995) (declining to
apply strict scrutiny to an intentionally created majority-minority district absent
evidence of racial predominance). Rather, they simply offer the generalized
observation that “race neutrality is the driving force of the Equal Protection Clause.”
Resp. at 20 (citing Bartlett v. Strickland, 556 U.S. 1, 21-22 (2009) (plurality)). But as
this Court made clear as recently as 2023, intentionally creating a majority-minority
district to satisfy Section 2 does not automatically lead to unlawful racial
gerrymandering. See Milligan, 599 U.S. at 34-35 & n.7. The District Court’s
conclusion that race predominated in SB8 based on its application of a contrary rule
constituted an error of law warranting reversal and a stay.
IV.
The Equities Favor a Stay
Beyond the merits, a stay is required here for a more fundamental reason,
which is that there simply is not time for fair consideration of these issues and to
have a remedial process with initial appellate review that will ensure Black voters
rights are not again violated in the 2024 elections. Respondents have failed to show
that the merits are “entirely clearcut in [their] favor,” Merrill v. Milligan, 142 S. Ct.
879, 881 (2022) (Kavanaugh, J., concurring) (granting stay prior to commencement of
remedial proceedings), and consistency of judicial decision making requires a stay
here just as stays were granted in numerous other cases where voters challenged
discriminatory maps and courts issued rulings within months of the next election.
See Ardoin v. Robinson, 142 S. Ct. 2892 (2022) (granting stay amid ongoing remedial
proceedings); Order, S.C. State Conf. of the NAACP v. Alexander, No. 3:21-cv-03302MGL-TJH-RMG (D.S.C. Mar. 28, 2024), ECF No. 523 (postponing injunction to
18
commence after the 2024 election). It cannot be that successful redistricting
challenges brought by Black voters must be stayed while courts ensure the law and
the facts have been faithfully applied, even where that means an unlawful map
remains in place through an election, but in redistricting challenges brought by “nonAfrican American” voters, federal courts can impose dramatic last minute changes to
congressional maps created by the state legislature without an adequate opportunity
for this Court’s review.
In this case, the Secretary of State has said that she needs a congressional map
by May 15, 2024, to ensure a “disruption-free” election. App. 1089-90. To be clear,
there will be no congressional map available to the Secretary by that date other than
SB8 or HB1. The Legislature cannot adopt a new map by that deadline, see App. 108485 (showing that the Louisiana constitution requires certain procedures to be
followed for bills to be introduced in regular session and arguing that introducing a
congressional redistricting challenge would lead to legal liability for the Legislature),
or interrupt other legislative priorities, see id. at 1085-86 (outlining the proposed
constitutional convention which would be necessarily disrupted for any congressional
map to be proposed, debated, and enacted by the deadline), and the District Court
will not impose a new map before June 4, 2024.
Accordingly, ignoring the Secretary’s May 15 deadline risks imperiling
Applicants’ right to vote in the upcoming congressional elections under a map that
does not unlawfully dilute their votes. If the Secretary is correct that the only feasible
option after May 15 is HB1, then, absent a stay, Applicants will be forced to vote
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under the same map that diluted their votes in 2022 and that both the Middle District
and Fifth Circuit agreed likely violated Section 2. And even if the Secretary is wrong,
and there is some additional latitude to implement a map ordered on June 4, that
timeline will not permit pre-implementation appellate review of the map should it
fail to include the second Black-opportunity district the Robinson rulings have found
to be required, and that the Legislature sought to provide in SB8. Respondents have
made clear their intention to seek a map that does not include such a district and to
oppose any that do. See Resp. at 1-2, 41. And the District Court has shown a
willingness to disregard the decisions of the Robinson courts without evidentiary
basis. There is thus a substantial risk that a court-ordered remedial map will conflict
with the findings of another federal district court, twice approved by the Fifth Circuit.
In these circumstances, ensuring sufficient time for appellate review of any map
ordered by the District Court is critical to ensure that a split decision of the court
below does not override the unanimous view of seven federal judges in Robinson.
Respondents contend that the harm of voting under a map the panel majority
found to be a racial gerrymander outweighs Robinson Applicants’ harm of voting
under a map that seven judges in Robinson found likely unlawfully diluted their
votes. See Resp. at 59. But if SB8 was necessary to remedy a Section 2 violation, it
doesn’t violate anyone’s rights, because strict scrutiny would be satisfied. In any
event, this Court at this stage need not resolve whose harm is greater. The fact that
Applicants have already suffered irreparable harm in one election under an unlawful
map and that there is insufficient time to resolve any tension between the VRA and
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the Equal Protection Clause here before the 2024 election, are reason enough to
prevent further irreparable harm to Applicants here. What’s sauce for the goose is
sauce for the gander. Just as this Court deemed a stay necessary to maintain the
legislative status quo in 2022, despite findings of a likely Section 2 violation, so a stay
is necessary here to maintain the legislative status quo in 2024, despite findings of
an Equal Protection violation. In both instances, the dispute over Louisiana’s map is
not likely to be resolved in time for the next election, and a stay is therefore
warranted.
Moreover, in contrast to Applicants, who have testified both as plaintiffs in the
Robinson proceedings and as intervenors below about the real and concrete harms
they suffer from having unresponsive political representation, not a single
Respondent testified at trial or sat for a deposition. Respondents can point to nothing
in the record about the impact of the racial gerrymandering harm they allegedly
suffer, because they did not bother to show up at their own trial. Indeed, although
the import of their legal claim is that they were assigned to districts on the basis of
race, they have declined to reveal their own racial identities. The abstract and
undelineated harms asserted by Respondents pale in comparison to the real and
concrete harms that the Applicants have already suffered and will continue to suffer
if the injunction is not stayed.
CONCLUSION
For the foregoing reasons, Robinson Applicants’ request for a stay of the
District Court’s injunction pending resolution of their appeal should be granted.
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DATED: May 14, 2024
Respectfully submitted,
By: /s/ Stuart Naifeh
Stuart Naifeh
Counsel of Record
NAACP Legal Defense and
Educational Fund, Inc.
40 Rector Street, 5th Floor
New York, NY 10006
Tel: (212) 965-2200
snaifeh@naacpldf.org
Counsel for the Applicants
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Janai Nelson
Samuel Spital
Kathryn Sadasivan
Victoria Wenger
Colin Burke
NAACP Legal Defense and
Educational Fund, Inc.
40 Rector Street, 5th Floor
New York, NY 10006
Tel: (212) 965-2200
jnelson@naacpldf.org
sspital@naacpldf.org
ksadasivan@naacpldf.org
vwenger@naacpldf.org
cburke@naacpldf.org
Robert A. Atkins
Yahonnes Cleary
Jonathan H. Hurwitz
Amitav Chakraborty
Adam P. Savitt
Arielle B. McTootle
Robert Klein
Neil Chitrao
Paul, Weiss, Rifkind, Wharton
& Garrison LLP
1285 Avenue of the Americas
New York, NY 10019
Tel.: (212) 373-3000
Fax: (212) 757-3990
ratkins@paulweiss.com
ycleary@paulweiss.com
jhurwitz@paulweiss.com
achakraborty@paulweiss.com
asavitt@paulweiss.com
amctootle@paulweiss.com
rklein@paulweiss.com
nchitrao@paulweiss.com
Tracie L. Washington
Louisiana Justice Institute
8004 Belfast Street
New Orleans, LA 70125
Tel: (504) 872-9134
tracie.washington.esq@gmail.com
Deuel Ross
R. Jared Evans
I. Sara Rohani
NAACP Legal Defense and
Educational Fund, Inc.
700 14th Street N.W. Ste. 600
Washington, DC 20005
Tel: (202) 682-1300
dross@naacpldf.org
jevans@naacpldf.org
srohani@naacpldf.org
Sophia Lin Lakin
Garrett Muscatel
Dayton Campbell-Harris
American Civil Liberties Union Foundation
125 Broad Street, 18th Floor
New York, NY 10004
slakin@aclu.org
gmuscatel@aclu.org
dcampbell-harris@aclu.org
T. Alora Thomas-Lundborg
Daniel Hessel
David Cole
Election Law Clinic
Sarah Brannon
Harvard Law School
Megan C. Keenan
6 Everett Street, Ste. 4105
American Civil Liberties Union Foundation Cambridge, MA 02138
915 15th St., NW
(617) 495-5202
Washington, DC 20005
tthomaslundborg@law.harvard.edu
dcole@aclu.org
dhessel@law.harvard.edu
sbrannon@aclu.org
mkeenan@aclu.org
23
Nora Ahmed
ACLU Foundation of Louisiana
1340 Poydras St, Ste. 2160
New Orleans, LA 70112
Tel: (504) 522-0628
nahmed@laaclu.org
John Adcock
Adcock Law LLC
3110 Canal Street
New Orleans, LA 70119
Tel: (504) 233-3125
jnadcock@gmail.com
Additional counsel for the Applicants
24
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.