Motion to Dismiss or Affirm — Louisiana, Appellant v. Phillip Callais, et al.

Supreme Court briefSep 3, 2024

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No. 24-109

In the

Supreme Court of the United States

LOUISIANA,

Appellant,

PHILLIP CALLAIS, et al.,

Appellees.

On A ppeal from the United States District Court

for the Western District of Louisiana

MOTION TO DISMISS OR AFFIRM

Paul Loy Hurd

Paul Loy Hurd, APLC

1896 Hudson Circle,

Suite 5

Monroe, LA 71201

Edward D. Greim

Counsel of Record

Graves Garrett Greim LLC

1100 Main Street, Suite 2700

Kansas City, MO 64105

edgreim@gravesgarrett.com

(816) 256-3181

Counsel for Appellees

331841

(800) 274-3321 • (800) 359-6859

QUESTIONS PRESENTED

1. Did the district court properly find that race

predominated when the Louisiana Legislature

openly admitted it was using a quota of two

Black-controlled districts to draw SB8, and

then drew a 250-mile-long district that

duplicated a previously invalidated racial

gerrymander,

splitting

municipalities,

parishes, and communities, linking parts of

four urban areas, and tracing the boundaries of

Black and white-majority precincts?

2. Did the district court properly find that SB8

failed to satisfy strict scrutiny based on alleged

attempts to comply with the VRA where the

Legislature never conducted a VRA analysis on

SB8, where the Attorney General told the

Legislature that it was defending the prior map

and didn’t believe the VRA required a second

Black district, and where the Attorney General

admitted in court that SB8 was part of a

litigating strategy?

3. Should this Court rework Equal Protection

jurisprudence

declaring

racial

gerrymandering claims non-justiciable, or

alternatively by holding that states satisfy

strict scrutiny merely by citing a third-party’s

opinion regarding a racial seat quota and

without undertaking any pre-enactment

analysis or litigation showing of a strong basis

in evidence for drawing a given district under

the VRA?

PARTIES TO THE PROCEEDING

Appellees are Philip Callais, Lloyd Price, Bruce

Odell, Elizabeth Ersoff, Albert Caissie, Daniel Weir,

Joyce LaCour, Candy Carroll Peavy, Tanya Whitney,

Mike Johnson, Grover Joseph Rees, and Rolfe

McCollister. Appellees were plaintiffs below.

Appellant is the State of Louisiana,

represented by Louisiana Attorney General Elizabeth

B. Murrill. The State was an intervenor-defendant

below.

Defendant below is Nancy Landry, in her

official capacity as the Louisiana Secretary of State.

Intervenor-defendants below are Alice Washington,

Clee Earnest Lowe, Power Coalition for Equity and

Justice, Ambrose Sims, Davante Lewis, Dorothy

Nairne, Martha Davis, Edwin Rene Soule, Press

Robinson, Edgar Cage, and the National Association

for the Advancement of Colored People Louisiana

State Conference (the “Robinsons”). And amici in the

liability phase and intervenor-defendants in the

remedial phase below are Edward Galmon, Sr., Ciara

Hart, Norris Henderson, Tramelle Howard, and Ross

Williams (the “Galmons”).

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED

PARTIES TO THE PROCEEDING

TABLE OF CONTENTS

iii

TABLE OF AUTHORITIES

INTRODUCTION

STATEMENT OF THE CASE

Louisiana Enacts SB8.

a. Attorney General Murrill’s

Statements to the Legislature

b. Legislators’ Statements

II.

Louisiana Voters Challenge the

Constitutionality of SB8.

III.

The Three-Judge Court Holds the

First Trial.

IV.

The Three-Judge Court Enjoins SB8

as Unconstitutional Before Proceeding

to the Remedial Phase of the Trial. 15

ARGUMENT

II.

The District Court Correctly

Determined Race Predominated

in the Legislature’s Enactment

of SB8 Based on Shaw and its

Progeny.

a. Direct Evidence in the Record

Proves Racial Predominance.

b. Direct Evidence Lies in the

State’s Brief

c. Circumstantial Evidence also

Proves Racial Predominance.

d. The State’s Attacks Fail to

Disprove This Conclusion.

The District Court Properly

Determined SB8 Could not

Survive Strict Scrutiny Based

on Shaw and its Progeny.

a. The State Provided No Compelling

Interest on This Record.

b. The State’s Race-Based Decision

Was Not Narrowly Tailored.

The District Court

Applied the Correct

Legal Standard.

ii.

III.

The Record Shows that

the State Failed

to Show its Decision

was Narrowly

Tailored.

This Record Does Not Present the

Titanic Legal Struggle the State

Originally Sold this Court.

IV.

Appellees’ Claims Are Justiciable.

The Court Should Allow the

Remedial Phase to Continue.

CONCLUSION

TABLE OF AUTHORITIES

Cases

Page(s)

Abbott v. Perez,

585 U.S. 579 (2018)

26, 28

Abrams v. Johnson,

521 U.S. 74 (1997)

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

144 S. Ct. 1221 (2024)

16, 17, 19, 21, 23, 25, 33, 34

Allen v. Milligan,

599 U.S. 1 (2023)

3, 4, 7, 27, 30

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

580 U.S. 178 (2017)

18, 19, 24

Bush v. Vera,

517 U.S. 952 (1996)

Cooper v. Harris,

581 U.S. 285 (2017)

Gomillion v. Lightfoot,

364 U.S. 339 (1960)

18, 19, 21, 26, 27, 32

10, 18, 19, 24, 27, 30, 32

Hays v. Louisiana,

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

6, 21, 22, 27, 28

vii

In re Landry,

83 F.4th 300 (5th Cir. 2023)

7, 8

Korematsu v. United States,

323 U.S. 214 (1944)

Loving v. Virginia,

388 U.S. 1 (1967)

LULAC v. Perry,

548 U.S. 399 (2006)

Miller v. Johnson,

515 U.S. 900 (1995)

26, 27

17, 20-22, 25, 27, 28, 32, 33

North Carolina v. Covington,

585 U.S. 969 (2018)

Purcell v. Gonzalez,

549 U.S. 1 (2006)

34, 35

Regents of Univ. of Cal. v. Bakke,

438 U.S. 265 (1978)

Richmond v. J.A. Croson Co.,

488 U.S. 469 (1989)

Robinson v. Ardoin,

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

7, 8, 29

Robinson v. Ardoin,

86 F.4th 574 (5th Cir. 2023)

6, 7, 8, 29

viii

Robinson v. Ardoin,

605 F. Supp. 3d 759 (M.D. La. 2022)

6, 29

Robinson v. Ardoin,

No. 3:22-cv-00211-SDD-SDJ

(M.D. La., filed Apr. 25, 2024)

3, 24

Shaw v. Hunt,

517 U.S. 899 (1996)

16, 18, 19, 21, 26-28, 30, 32

Shaw v. Reno,

509 U.S. 630 (1993)

1, 9

Students for Fair Admissions, Inc. v. President

& Fellows of Harvard College,

600 U.S. 181 (2023)

25, 33, 34

Thornburg v. Gingles,

478 U.S. 30 (1986)

3, 7, 15, 26, 27, 31, 32

United States v. Hays,

515 U.S. 737 (1995)

Wis. Legislature v. Wis. Elections Comm’n,

595 U.S. 398 (2022)

24- 27

Other Authorities

28 U.S.C. § 2284

Regulations

Sup. Ct. R. 12.7, 18.11

INTRODUCTION

The State of Louisiana should be ashamed.

Under no compulsion, it used racial identity to sift

Appellees and thousands of other voters into U.S.

House districts for the 2024 election. Not only does

this odious classification reinforce racial stereotypes,

it resurrects a second Black-controlled congressional

district that, when it last surfaced in the 1990s, was

invalidated under the authority of Shaw v. Reno, 509

U.S. 630 (1993), as a brutal, bizarrely-shaped racial

gerrymander unjustifiable under the Voting Rights

Act (“VRA”) despite the U.S. Department of Justice’s

(“DOJ”) demand for a second Black district. This

gerrymander’s 2024 incarnation is far worse. It

remains unjustifiable under the VRA, but now

overrepresents Black voters in two Black-majority

districts (out of six total). Nor can political calculation

explain it. Republicans are surrendering a vital seat

in Congress that could well squander their narrow

majority, yet both the previous map and Appellees’

alternative proposal in the district court protected all

five Republican incumbents.

This Court should grant dismissal or summary

affirmance. This is a standard Shaw case. The

Legislature, and even the Attorney General at trial,

admitted a racial quota of two Black-majority seats

was Louisiana’s prime and uncompromisable

criterion. Factual and expert evidence clearly

established Louisiana’s meticulous manipulation of

BVAP data to lock in 82% of the Black population of

Louisiana’s invalidated 1990s district 1 while

Dkt.185, 308:5-9. Given the extensive record supporting

Appellees’ position, Appellees reference documents on the

district court docket as “Dkt.” followed by the docket and page

excluding everyone else. Louisiana tempted fate by

purposely retracing the sinuous 250-mile-long district

which it well knew federal courts had already

excoriated as unconstitutional. The district court

easily identified Louisiana’s racial gerrymander and

found it unjustified even with “breathing room” for

legitimate VRA compliance efforts. The court’s VRA

holding flowed from the State and Robinson

Intervenors’ failure to fill their trial time, proffering

not a single expert or exhibit to prove Louisiana had a

strong basis in evidence to believe the VRA required

SB8’s sinuous second Black-majority district, “SB8-6.”

In early May 2024, the district court was poised

to order a remedial map by June 4, five months before

Louisiana’s primary. In one unified analysis, it would

have adjudicated the Equal Protection and any VRA

interests at stake (allowing parties to prove some

other remedial two-Black-majority-district map was

required by the VRA). That process remains

unfinished today only because the State and Robinson

Intervenors

packed

factual

and

legal

misrepresentations into rapid-fire emergency docket

filings. 2 Uncovering those misrepresentations reveals

number(s). Sup. Ct. R. 12.7, 18.11. Appellees refer to the State

Jurisdictional Statement by name followed by page number(s).

2 In just four days, this Court was effectively forced to choose

Louisiana’s 2024 congressional map—impacting not only

Appellees’ right to vote in non-gerrymandered districts, but also,

potentially, partisan control of the next Congress. The State’s

decision to seek a stay based on its representations was unfair

both to the parties and this Court. Ryan Autullo & Chris Marr,

Kavanaugh, Thomas Raise Concerns Over Shadow Docket

Pressure

(2),

Bloomberg

Law

(May

10,

2024),

https://news.bloomberglaw.com/litigation/kavanaugh-lamentspressure-shadow-docket-puts-on-supreme-court.

this is not the titanic jurisprudential clash they

promised this Court.

First, the State and Robinsons at trial

primarily defended SB8-6 not as a Black-majority

district required by the VRA but as motivated by

incumbent protection over race. Only now, after a stay

has ensured the gerrymander’s use in 2024, does

Louisiana find it safe to admit its racial target came

first, and “only then” did it choose which Republican

would be sacrificed for race. State Jurisdictional

Statement 23.

Second, the State’s sole VRA “defense” was to

scoff that experts were unnecessary to “predict how

the Courts might view” SB8-6 (Dkt.184, at 25) since it

had “a factfinder who had already made her views

abundantly clear” (Dkt.192, at 15). The State cynically

replaced the objective analysis of SB8-6 under the

VRA’s elements with legal realism, prognosticating

the proclivities of the Robinson v. Ardoin, No. 3:22-cv00211-SDD-SDJ (M.D. La.), district judge. It thus

mounted no fact or expert-based VRA defense below.

When this district court invited the State to prove the

relevance of specific facts in the Robinson record

(Dkt.185, at 103-09) to the new SB8-6, the State never

even

tried.

The

Robinsons

pushed

their

gamesmanship even further, seeking to exclude any

evidence or argument regarding the VRA or reference

to the Thornburg v. Gingles, 478 U.S. 30 (1986),

factors. Dkt.144; Dkt.144-1.

The State’s refusal to litigate the VRA began in

Robinson. There, the U.S. Court of Appeals for the

Fifth Circuit repeatedly emphasized the State’s

decision to float novel legal defenses rather than

directly attack the plaintiffs’ VRA evidence. Later,

after this Court’s decision in Allen v. Milligan, 599

U.S. 1 (2023), effectively foreclosed this strategy,

Louisiana refused to retool. Instead, it pretended its

hastily cobbled defense for an expedited preliminary

injunction hearing back in 2022, pre-Milligan,

remained its best and final effort. Why? Its Attorney

General questioned the fairness and reliability of the

proceedings, and the Fifth Circuit granted rare

mandamus relief when the district court acted “ultra

vires” in attempting to rush to a remedial hearing

while the preliminary injunction was still on appeal.

Perhaps cowed by its perceptions of the single-judge

district court and worried no appeal could provide

relief in time for the 2024 elections, Louisiana

surrendered. It never took the VRA case to trial on the

merits. It never raised core VRA defenses to the

Robinson original proposals.

Its course set, Louisiana’s Legislature

attempted no VRA analysis of SB8-6. Stunningly,

Louisiana maintained its position (which it still has

not abandoned) that the original map challenged by

VRA plaintiffs in the Robinson litigation—HB1—was

lawful and complied with the VRA. It even said the

quiet part out loud, conceding SB8 was merely a play

to front-run the Robinson single-judge district court’s

expected adverse ruling at trial—which never came to

pass—and “appease” the VRA plaintiffs by giving

them a second majority-minority district. No matter

that SB8-6 bore zero resemblance to the Robinson

plaintiffs’ proposed alternatives, had no basis in

Robinson’s evidentiary record, and actually excluded

many original Robinson plaintiffs. On this record,

Louisiana’s purported “VRA defense” may be the

weakest this Court has ever encountered.

Third, given the State’s and Robinsons’ VRA

dodge, the district court confined its analysis to SB8-

6 and never reached the question of whether any twoBlack-majority map could be drawn. True, Appellees’

rebuttal expert would have proved that not even the

Robinson illustrative maps can reliably elect Blackpreferred candidates (yet another VRA defense the

State neglected in Robinson), but it was unneeded

because the State and Robinsons offered no VRA

performance evidence to rebut. Dkt.184, at 11:2-8. The

May 2024 remedial phase would have necessarily

reached this issue, forcing the State and Intervenors

to finally present evidence that the VRA required

some other two-Black-majority-district map in place

of SB8. If and when these parties rise to the challenge,

Appellees remain prepared to show a second Blackmajority district can’t be drawn.

Fourth, the State falsely argues that a

suggestion that an additional majority-minority

district can be created in one part of a State allows the

creation of a different majority-minority district

elsewhere. This has never been the law, and in almost

every major Shaw case, starting with Shaw itself, this

defense has failed. Even if the Robinson court had

finally ordered something like the Robinsons’

proposed majority-minority districts, it could provide

no legal basis for SB8-6.

This ping-pong can end. It results from the

Robinsons’ gambit of trying to force resolution of VRA

and Equal Protection interests in a single-judge court,

and the State’s equally cynical litigation responses.

But if these appeals are promptly dismissed, the

three-judge district court—where combined claims

and defenses under the Equal Protection Clause and

VRA truly belong—can order a remedy on a full

record, not quite developed below due to the stay, that

finally and fully considers both legal principles. The

facts will likely show that any proposed remedy with

a second Black-majority district is not required under

the VRA, advancing the State’s supposed interests in

incumbent protection by restoring five Republican

seats and disappointing only the Intervenors by

rejecting their invalid VRA claims. There this matter

will end.

STATEMENT OF THE CASE

After the 2020 census, the Louisiana

Legislature

enacted

HB1,

congressional

redistricting law that divided the State into its six

congressional districts. Dkt.165-1. HB1 followed the

traditional boundaries of Louisiana congressional

districts. Like Louisiana’s 2011 congressional map,

and all others since a second majority-Black district

was struck down as an unconstitutional gerrymander

in Hays v. Louisiana, 936 F. Supp. 360 (W.D. La.

1996), HB1 had one majority-Black district in

southeastern Louisiana. Dkt.165-5; Dkt.185, at 57-60,

92; Dkt.198, at 6.

Just before HB1 passed, several groups filed

complaints in the Middle District of Louisiana,

alleging HB1 violated Section 2 of the Voting Rights

Act (“VRA”). See Robinson v. Ardoin, 605 F. Supp. 3d

759, 766, 768 (M.D. La. 2022), vacated, 86 F.4th 574

(5th Cir. 2023) (“Robinson I”). By early January 2024,

that case was finally on track for trial.

Louisiana Enacts SB8.

Claiming concern that the State would

ultimately lose at trial, Governor Landry called a

special legislative redistricting session on January 15,

2024, to repeal HB1 and impose a new map with two

majority-Black districts. Dkt.165-9; Dkt.165-10; State

Jurisdictional Statement 1-2.

a. Attorney

General

Murrill’s

Statements to the Legislature

On January 15, 2024, just before redistricting

plans were introduced, Attorney General Murrill

testified before the House and Governmental Affairs

Committee. As the State’s counsel, she advised the

Legislature on the Robinson litigation. Dkt.182-31, at

In Robinson, a VRA case before a single district

judge, Louisiana suffered a “hasty and tentative”

decision after a May 2022 expedited preliminary

injunction hearing. In re Landry, 83 F.4th 300, 306

(5th Cir. 2023) (citation omitted). As Robinson

resumed after a stay pending this Court’s decision in

the Alabama redistricting case, Allen v. Milligan, the

Fifth Circuit observed, “[t]hat the state lacked a full

opportunity to mount a defense on the merits is likely

accurate.” Id. at 305. It recognized “the need for

further development of factual and legal aspects,”

particularly because “the state put all its eggs in one

basket, litigating essentially that only with racepredominant considerations could the plaintiffs

justify” the proposed second Black-controlled districts.

Id. at 306 & n.6 (citation omitted). The Fifth Circuit’s

merits panel emphasized Milligan “largely rejected”

this “initial approach” and the State had failed to

provide evidence or meaningfully refute the plaintiffs’

evidence. Robinson v. Ardoin, 86 F.4th 574, 592 (5th

Cir. 2023) (“Robinson III”). An earlier panel of the

Fifth Circuit also pointed out the district court had

erred at Gingles prong 1 in its compactness analysis.

Robinson v. Ardoin, 37 F.4th 208, 222 (5th Cir. 2022)

(“Robinson II”). Though the merits panel ultimately

did not reject the district court’s conclusions, it

vacated the preliminary injunction for equitable

reasons, emphasizing it was only applying clear error

review to a situation where the State had not focused

on the evidence. Robinson III, 86 F.4th at 592, 601-02.

The merits panel, along with other Fifth Circuit

panels, encouraged the State that its failure to

address the VRA issues during the preliminary

injunction stage did not bind the State in subsequent

proceedings and at trial. See id. at 592; Robinson II,

37 F.4th at 217; In re Landry, 83 F.4th at 306 n.6. And

at no point did the Fifth Circuit order or approve a

second Black-majority district.

Fresh from this Fifth Circuit guidance, Murrill

never told legislators the State believed the VRA

required two majority-Black districts. Dkt.184, at 83.

In fact, she professed the opposite, claiming HB1

remained defensible and not unlawful. Dkt.181-1, at

11 (“I am defending that map, and so you won’t hear

me say that I believe that that map violated the

redistricting criteria.”); id. at 13 (“I am defending it

now.”); id. at 14 (“I am defending what I believe to

have been a -- a defensible map.”), id. at 15 (“I’m

defending the map.”). The preliminary findings in the

Robinson litigation, she said, had not led to a fair or

reliable result. Id. at 17-18. She testified there had yet

to be a trial on the merits; there was still an

opportunity to try the case; and any preliminary order

from the Middle District had been vacated. Id. at 1314, 18-19.

Nonetheless, Murrill urged the Legislature to

draw a map with two majority-Black districts—not to

comply with the VRA, but to avoid trial before the

single-judge district court. Id. at 14; id. at 19 (“[I]f you

don’t draw a map, then we will be back in front of her

for the trial on the merits in very short order and that

– that case will continue. If you do draw a map, then

the plaintiffs will have to decide whether they wish to

challenge that map, whether they accept that map.

And if they accept that map, then – then the whole

case should be over.”).

After her summary of the law and explanation

of the purpose of the special session to draw a map

with two majority-Black districts, Representative

Farnum asked her: “Isn’t [race] the only reason we’re

here right now . . . isn’t that the predominant reason?”

Id. at 15. The Attorney General admitted, “we’re here

because of . . . the court’s telling us we have to be here.

I mean, I – I think that’s part of it. You know, the – I

mean, I’m defending the map.” Id.

b. Legislators’ Statements

The same day, Senator Womack introduced

SB8, a bill that repealed HB1 and answered the

Attorney General’s call to intentionally create two

majority-Black districts. Dkt.165-5, at 2, 7; Dkt.16510; Dkt.165-15, at 1, 3. Unlike the traditional districts

in HB1 and other recently enacted maps in Louisiana,

SB8 created a second majority-Black district that

stretched 250 miles in a jagged slash mark from the

State’s high Black population in southeastern Baton

Rouge, north to high BVAP precincts in Alexandria,

southwest to high BVAP precincts in Lafayette, then

back northwest to Natchitoches, and then north to

high BVAP precincts in Shreveport, carefully splitting

and dissecting four major metropolitan areas to carve

in pockets of Black voters along the way. Dkt.182-10;

Dkt.182-11; Dkt.182-12; Dkt. 182-13; Dkt.185, at 5658; Dkt.198, at 13, 39. This slash district resembles

the unconstitutional slash districts seen by this Court

three decades ago in the seminal case Shaw v. Reno,

509 U.S. 630 (1993) (“Shaw I”), and in Louisiana’s own

prior failed attempt to create two majority-Black

districts in United States v. Hays, 515 U.S. 737 (1995).

Dkt.182-17; Dkt.182-18; Dkt.185, at 57-60; Dkt.198,

at 2-5, 14. 3 As a result, District 6’s BVAP shot up 30%

from 23.861% in HB1 to 53.990% in SB8, 4 and District

2’s BVAP decreased from 58.650% to a bare majority

at 51.007%. Dkt.165-5, at 2, 7; Dkt.165-15, at 1, 3.

Senator Womack conceded in multiple public

legislative hearings that the two majority-Black

districts in SB8 could not be compromised. He stated,

“we had to draw two minority districts.” Dkt.181-3, at

5; id. at 4 (“we must have two majority voting-age

population districts”); id. at 4 (“we had to draw two

districts”); id. (emphasizing Districts 2 and 6 “are over

50 percent voting – Black voting age population”). He

professed: “[W]e all know why we’re here. We were

ordered to draw a new black district, and that’s what

I’ve done.” Dkt.181-4, at 32. He repeatedly admitted:

Given the state’s current demographics,

there is not enough high Black

population in the southeast portion of

Louisiana to create two majority Black

districts, and to also comply with the US

Constitution one person, one vote

requirement. That is the reason why

District 2 is drawn around the Orleans

Parish and why District 6 includes the

Since Hays, Louisiana’s BVAP percentage has remained

relatively stagnant, Black voters have become more dispersed

and more integrated, and Louisiana has lost a congressional seat.

Dkt.185, at 60, 91-92; Dkt.198, at 58. Even under the Census

“any part black” statistic, controversial but the highest possible,

BVAP remains just 31.249%. Dkt. 165-6; 165-15 at 3.

4 This is four times greater than the “sizable jump” of under 7%

observed by this Court in Cooper v. Harris, 581 U.S. 285, 310

(2017).

Black population of East Baton Rouge

Parish and travels up I-49 corridor to

include Black population in Shreveport.

Dkt.181-3, at 4 (emphasis added); see also Dkt.181-4,

at 4. SB8 sponsor Representative Beaullieu repeated

Senator Womack’s statement on the House floor.

Dkt.181-6, at 4. When Representative Beaullieu was

asked during his presentation of SB8 by

Representative Amedee, “Is this bill intended to

create another Black district?” Rep Beaullieu

responded, “Yes, ma’am, and to comply with the

judge’s order.” Id.

Others echoed these racial motivations. SB8

supporter Representative Carlson admitted, “the

overarching argument that I’ve heard from nearly

everyone over the last four days has been race first”

and “race seems to be, at least based on the

conversations, the driving force” behind the

redistricting plan. Dkt.181-4, at 26. Representative

Carlson acknowledged integration made drawing a

second majority-Black district difficult. Id. at 26-27.

Representative Lyons, Vice Chairman of the House

and Governmental Affairs Committee, stated the

“mission that we have here is that we have to create

two majority-Black districts.” Id. at 21. Senator

Pressly noted the lines were “based purely on race.”

Dkt.181-3, at 8. Senator Morris said “[i]t looks to me

we primarily considered race.” Dkt.181-7, at 4.

Senator Carter pointed out “no sort of performance

analysis had been conducted to determine whether or

not District Two continues to consistently perform as

an African American district.” Dkt.181-3, at 6. He

nonetheless expressed his support for SB8 precisely

because it created a second district. Id. He read a

statement from Congressman Troy Carter on the

Senate floor, reiterating the necessity of the twodistrict quota at all costs: “I am not married to any one

map. I have worked tirelessly to help create two

majority-minority districts that perform. . . . However,

the Womack map creates two majority-minority

districts, and therefore I am supportive of it.” Id.

Legislators pushed proportional representation

for Black population at the cost of other criteria in

their support for SB8—Dkt.181-1, at 13, Dkt.181-4, at

27 (Marcelle); Dkt.181-4, at 24 (Newell); Dkt.181-1, at

16 (Boyd), Dkt.181-3, at 7 (Duplessis)—even though

SB8 resulted in super-proportionate representation

for Black voters (Dkt.165-6; Dkt.165-15) and Attorney

General Murrill cautioned against this unlawful

purely “proportionate dividing” (Dkt.181-1, at 13).

Legislators supporting SB8 disavowed that

politics

predominated.

Dkt.181-4,

23-24

(Beaullieu); id. at 24 (Newell); id. at 26-27 (Carlson: “I

can assure you of this: that we are not – that we’re not

here today because we’re caving to any kind of

political pressure.”). Instead, the Legislature first set

out to draw a second Black-majority seat, and then,

after the unavoidable resulting loss of an expected

Republican seat, the Legislature then considered

which incumbents to protect. Dkt.184, at 72, 79. The

Legislature decided to protect Speaker of the House

Mike Johnson, Majority Leader Steve Scalise, and

Representative Julia Letlow in Districts 4, 1, and 5,

respectively. Dkt.181-3, at 3. The Legislature did not

espouse any political goals for SB8-6.

The final version of SB8 barely reached that

promised 50% BVAP threshold for Districts 2 and 6.

Dkt.165-15. Both the House and Senate passed SB8

by majority votes, and the Governor signed it into law

on January 22, 2024. Dkt.165-10.

II.

Louisiana

Voters

Challenge

the

Constitutionality of SB8.

A group of Louisiana voters (“Appellees”) filed

this lawsuit challenging SB8 against the Louisiana

Secretary of State on January 31, 2024. Dkt.1.

Appellees claimed SB8 impermissibly sifted them by

race in violation of the Fourteenth and Fifteenth

Amendments of the U.S. Constitution. Dkt.1.

Specifically, they contended SB8-6, the new majorityBlack district where several Appellees resided, was an

unconstitutional racial gerrymander. Dkt.1, at 1-2.

Appellees requested and received a three-judge

district court under 28 U.S.C. § 2284. Dkt.198, at 16.

Appellees moved for preliminary injunction. Dkt.17.

The court bifurcated trial: first to determine SB8’s

constitutionality (“liability phase”), and second to

determine any remedy (“remedial phase”). On

February 21, 2024, the court set trial for April 8, 2024,

consolidating the preliminary injunction hearing with

trial on the liability phase. Dkt.63, at 1.

The State of Louisiana, represented by

Attorney General Murrill, intervened as a defendant

on February 26, 2024. Dkt.79; Dkt.156, at 2. Two

groups of Louisiana voters, civil rights organizations,

and plaintiffs in Robinson moved to intervene as

defendants. Dkt.79, at 1; Dkt.156, at 2-3. The district

court allowed the Robinsons to intervene permissively

in the liability phase on March 15, 2024, Dkt.114, and

the Galmons to intervene permissively in the remedial

phase on May 3, 2024, Dkt.205.

III. The Three-Judge Court Holds the First

Trial.

The trial’s liability phase spanned April 8,

2024, to April 10, 2024. Dkt.198, at 17. The parties

introduced 13 witnesses and 110 exhibits, including

the entire legislative record. Dkt.198, at 11, 17. Each

side had eight hours for their case. Dkt.130.

Appellees presented overwhelming evidence of

racial predominance in addition to the legislative

excerpts. Multiple legislators testified to SB8’s racebased purpose, and expert witnesses provided

corroborating circumstantial evidence. Appellees

presented an alternative map and other evidence

showing the Legislature could have protected

incumbents without violating traditional redistricting

principles or racially gerrymandering. Dkt.182-14;

Dkt.182-16; Dkt.184, 108-11, 140; Dkt.185, at 24-25,

27-28, 54-55; Dkt.198, at 44-45.

Defendants did not use all their allotted time.

The Secretary presented no evidence. Dkt.186, at 91.

The State only presented video excerpts from the

public legislative session entered as joint exhibits by

the parties. Dkt.186, at 85-91. Beyond the stipulated

legislative record, only the Robinsons presented fact

and expert witnesses and submitted reports; they

tried and failed to admit Robinson’s preliminary

hearing record en masse. Dkt.185, at 103-18; Dkt.186,

at 85-91. The State, ceding its time, let these private

voters defend its law.

At closing, the State admitted its only goal was

to stay one step ahead of the federal court’s predicted

course in drawing maps—not to comply with the VRA.

Dkt.186, at 123-24. The State admitted it did not

think it needed to repeal HB1 or adopt a second

majority-Black district to comply with the VRA.

Dkt.184, 26-27; Dkt.186, at 121-22.

The State conceded it conducted no preenactment VRA analysis of SB8. Dkt.184, 25-26;

Dkt.186, at 123-24. The State neither hired nor

consulted experts. Dkt.184, 25-26; Dkt.186, at 124.

Instead, the State merely referenced Robinson’s

preliminary findings, despite (i) admitting those

preliminary decisions never evaluated the lawfulness

of SB8 or any similar map; (ii) recognizing Robinson

“did not squarely hold that the failure to draw a

second majority black district would violate the VRA;”

and (iii) never admitting any Robinson evidence, even

its own experts who’d found no VRA violation.

Dkt.184, 22-23; Dkt.186, at 85-91, 123-24.

No party presented a VRA claim or evidence

that the VRA required a second majority-Black

district. The Robinsons even moved in limine to

exclude any evidence or argument on the VRA or

Gingles factors, Dkt.144; Dkt.144-1. Thus, the district

court did “not decide on the record before [it] whether

it is feasible to create a second majority-Black district

in Louisiana that would comply with the Equal

Protection Clause of the Fourteenth Amendment,”

and reserved the issue for additional record

development in the remedial phase of the trial.

Dkt.198, at 58-59.

IV.

The Three-Judge Court Enjoins SB8 as

Unconstitutional Before Proceeding to

the Remedial Phase of the Trial.

On April 30, 2024, in a 60-page opinion

analyzing the law and comprehensive record, the

district court concluded SB8 was an unconstitutional

racial gerrymander and prohibited the State “from

using SB8’s map of congressional districts for any

election.” Dkt.198, at 59. But the district court

recognized its task was not complete and trial was not

over. It set a status conference to “discuss the

remedial stage of this trial.” Dkt.198, at 60.

On May 7, 2024, after the conference, the

district court issued an order scheduling the trial’s

remedial phase. Dkt.219. The court determined it

would only order an interim map on June 4, 2024, if

the Legislature failed to exercise “its ‘sovereign

interest’ [to enact] a legally compliant map” by then.

Dkt.219, at 2-3. It noted the Legislature was in session

until June 3, 2024, and had ample time to do so.

Dkt.219, at 3.

The district court allowed briefing to proceed

concurrently and permitted “[e]ach party, intervenor

and amici” to submit one proposed map with

unlimited evidentiary support and respond to other

parties’ maps. Dkt.219, at 3. The order did not limit

the parties to briefing on the Fourteenth Amendment;

parties were encouraged to raise any VRA issues.

Dkt.219.

The State filed an emergency application for

stay in the district court, which was denied, and then

in this Court. On May 15, 2024, this Court stayed the

district court proceedings pending appeal. On July 30,

the State filed its jurisdictional statement.

ARGUMENT

The

District

Court

Correctly

Determined Race Predominated in the

Legislature’s Enactment of SB8 Based

on Shaw and Its Progeny.

“Racial considerations predominate when

‘[r]ace was the criterion that, in the State’s view, could

not be compromised’ in the drawing of district lines.”

Alexander v. S.C. State Conf. of the NAACP, 144 S. Ct.

1221, 1234 (2024) (quoting Shaw v. Hunt, 517 U.S.

899, 907 (1996) (“Shaw II”)) (footnote omitted). States

can’t escape strict scrutiny by relying on a court case

or purported goodwill. “Racial gerrymandering, even

for remedial purposes” is still subject to strict

scrutiny. Shaw I, 509 U.S. at 657. Challengers can

show racial predominance through direct or

circumstantial evidence, or as here, both. Id.

Appellees presented “overwhelming” evidence of the

sort “practically stipulated” as proving racial

predominance in prior cases. Miller v. Johnson, 515

U.S. 900, 910 (1995) (quotation omitted).

a. Direct Evidence in the Record

Proves Racial Predominance.

First, direct evidence abounds in Attorney

General Murrill’s statements to the Legislature

(Dkt.181-1, at 11, 13-15, 17-19; Dkt.198, at 13) and in

the confessions of her office during trial (Dkt.184, at

19-27; Dkt.186, at 121-25). Alexander, 144 S. Ct. at

1234 (“Direct evidence often comes in the form of a

relevant state actor’s express acknowledgment that

race played a role in the drawing of district lines.”).

This evidence was not “smoked out over the course of

litigation”; it was blatantly admitted. Id. “[D]irect

evidence of this sort amounts to a confession of error,”

and the Court need not look further. Id.

The State’s claim that SB8 was motivated by

VRA litigation in Robinson that would purportedly

lead to a two-Black-majority seat mandate, at least

pre-appeal, also provides conclusive direct evidence.

Id. (finding this type of direct evidence “not

uncommon because States often admit to considering

race for the purpose of satisfying our precedent

interpreting the Voting Rights Act of 1965”). Thus,

race predominated.

Direct evidence also saturates the legislative

record. Dkt.198, at 11-13, 17-20, 41-45. Legislative

session transcripts and trial testimony demonstrate

the Legislature established an unlawful racial target,

the Legislature would not compromise it, and the

Legislature subordinated traditional criteria to reach

it.

The Legislature’s purposeful racial quota of two

Black seats demonstrates racial predominance.

Cooper v. Harris, 581 U.S. 285, 299-301 (2017); Bush

v. Vera, 517 U.S. 952, 962, 976 (1996) (plurality). SB8

author Senator Womack, sponsor Representative

Beaullieu, and other legislators “repeatedly told their

colleagues that [two districts] had to be majorityminority.” Cooper, 581 U.S. at 299. They repeatedly

cited and used a “50%-plus racial target.” Id. at 300;

Dkt.181-3, at 4 (Womack); Dkt.181-4, at 4 (same);

Dkt.181-6, at 4 (Beaullieu).

Not only did the Legislature create a racial

target, it relentlessly hewed to it as the overriding,

nonnegotiable criterion for SB8. See, e.g., Dkt.184, at

47-50, 68-69, 79-80. Senator Womack and others

repeatedly declared the State “must” reach a certain

BVAP in two districts and “had to draw two districts”

with a majority BVAP. Dkt.181-3, at 4; Dkt.181-4, at

4, 5, 21; Dkt.181-6, at 4. That was “the only reason”

the Legislature was drawing new maps. Dkt.184, at

47-48; see also Dkt.181-3, at 8; Dkt.181-4, at 26, 32.

These statements prove racial predominance. Cooper,

581 U.S. at 300; Bethune-Hill v. Va. State Bd. of

Elections, 580 U.S. 178, 189 (2017); Shaw II, 517 U.S.

at 906-07.

Finally, while a violation of traditional

redistricting criteria is unnecessary to show racial

predominance, Bethune-Hill, 580 U.S. at 190, ample

direct evidence establishes that the Legislature

sacrificed traditional redistricting criteria in its

mission to create two majority-Black districts,

Dkt.181-3, at 4, 8; Dkt.181-7, at 3-5; Dkt.184, at 7274. The Legislature believed it “needed to have two

majority-minority

districts,

and

any

other

redistricting guidelines were secondary to that.”

Dkt.184, at 68; id. at 69 (“Certainly the racial

component in making sure that we had two

performing African American districts was the

fundamental tenet that we were looking at.

Everything else was secondary to that discussion.”). It

believed it had to “draw a second majority-minority

district prior to any other consideration.” Id. at 80.

All this evidence shows the State intentionally

established unlawful “racial quotas.” Bush, 517 U.S.

at 976 (quotation omitted); see also Bethune-Hill, 580

U.S. at 187, 189, 191-92; Cooper, 581 U.S. at 299-301.

And it shows “‘[r]ace was the criterion that, in the

State’s view, could not be compromised’ in the drawing

of district lines.” Alexander, 144 S. Ct. at 1234

(quoting Shaw II, 517 U.S. at 907) (footnote omitted).

Any “race-neutral considerations ‘came into play only

after the race-based decision had been made.’”

Bethune-Hill, 580 U.S. at 189 (quoting Shaw II, 517

U.S. at 907).

b. Direct Evidence Lies in the State’s

Brief.

But the Court need not even look to the record.

The State concedes the point on appeal, recognizing

“virtually every legislator (and the Governor and the

Attorney General) proceed from that court-imposed

baseline: Two majority-Black districts are mandated

by the VRA.” State Jurisdictional Statement 18-19.

That uncompromisable racial quota underlying SB8

proves predominance. Alexander, 144 S. Ct. at 1234.

c. Circumstantial

Evidence

Also

Proves Racial Predominance.

Appellees supplemented this direct evidence

with extensive circumstantial evidence of racial

predominance from credible experts. Dkt.198, at 2231. The district court engaged in a sensitive inquiry of

the record, expert testimony, and demographic maps

and determined “District 6 slashes across the state of

Louisiana and includes portions of four disparate

metropolitan areas but only encompasses the parts of

those cities that are inhabited by majority-Black

voting populations, while excluding neighboring nonminority voting populations.” Dkt.198, at 36

(quotation omitted). It further determined based on

the same “outside of the New Orleans and East Baton

Rouge areas, the state’s Black population is highly

dispersed across the state,” id. at 39, and “the unusual

shape of [SB8-6] reflects an effort to incorporate as

much of the dispersed Black population as was

necessary to create a majority-Black district,” id. at

41. The record confirms the district court’s findings. 5

SB8 sacrificed traditional redistricting criteria,

including compactness, preservation of core districts,

communities of interest, and political subdivisions, to

reach this racial quota for SB8-6. 6 Like the offending

districts in Miller and Hays, SB8-6 narrowly winds

250 miles from the northwest to southeast corners of

the State and across culturally and economically

divergent areas to selectively pick up pockets of Black

5 Dkt.165-17; Dkt.182-10; Dkt.182-11; Dkt.182-12; Dkt.182-13;

Dkt.182-20; Dkt.182-21; Dkt.184, at 93-96; Dkt.185, at 24, 32-33,

35-43.

6 Dkt.182-12; Dkt.182-13; Dkt.182-15; Dkt.182-22; Dkt.182-23;

Dkt.182-24; Dkt.184, at 94-107; Dkt.185, at 35-37, 45-51, 54-55,

57, 63-68, 73-74.

voters and leave four major metropolitan areas

segregated in its wake. Miller, 515 U.S. at 908-09

(noting a district “centered around four discrete,

widely spaced urban centers that ha[d] absolutely

nothing to do with each other, and stretch[ed] the

district hundreds of miles across rural counties and

narrow swamp corridors” was a geographic

“monstrosity” (quotation omitted)); Hays, 936 F. Supp.

at 370. SB8-6’s 250-mile-long zigzag shape splitting

municipalities, parishes, and traditional communities

of interest and connecting the State’s dispersed Black

voters to increase its BVAP by 30% makes it

“exceedingly obvious” that this “was a deliberate

attempt to bring black populations into the district.”

Miller, 515 U.S. at 917 (quotation omitted); see also

Alexander, 144 S. Ct. at 1234.

In sum, Appellees put on “persuasive

circumstantial evidence that race for its own sake, and

not other districting principles, was the legislature’s

dominant and controlling rationale in drawing” SB86’s lines. Miller, 515 U.S. at 912-13; see also Shaw II,

517 U.S. at 910-16; Bush, 517 U.S. 952.

d. The State’s Attacks Fail to Disprove

This Conclusion.

The State first claims race did not predominate

because it relied on a preliminary, vacated decision of

the Middle District of Louisiana that the VRA likely

required a second majority-minority district. This is

backwards: at Shaw step 1, this is precisely what

proves racial predominance. Indeed, alleged VRA

compliance efforts are how States usually trigger a

finding of racial predominance under the Shaw line.

Alexander, 144 S. Ct. at 1234; Shaw II, 517 U.S. at

911-12; Miller, 515 U.S. at 906-08, 917, 921; Abrams

v. Johnson, 521 U.S. 74, 80-81 (1997). Louisiana

knows this: its 1990s claim that DOJ required a

nearly identical copy of SB8-6 is exactly what

triggered a finding of racial gerrymandering. Hays,

936 F. Supp. at 368-69. At any rate, the State’s

independent legislative action renders it responsible,

regardless of whether its motive was remedial,

strategic, or nefarious. Miller, 515 U.S. at 912.

Second, the Legislature’s alleged political

considerations are irrelevant on this record.

Legislators espoused political goals of protecting four

Republican incumbents. Dkt.181-3, at 3. But in a

major reversal of its trial posture, the State now

concedes the obvious: politics came only after the racebased decision to create another Black-majority

district, forcing Louisiana to lose one of its five

Republican seats:

The Legislature did not eliminate a

Republican-performing district merely

for political purposes; it did so because

the courts forced the Legislature to

create a second majority-Black district.

It was only then, in carrying out that

directive, that the Legislature heavily

weighted its political goals to draw the

S.B. 8 map.

State Jurisdictional Statement 23. Nor would one

expect the Republican Legislature to draw District 6

to forfeit a Republican seat—an outcome they

expressly opposed. Dkt.181-4, at 23-24, 26-27; Dkt.

184, at 48-49, 70-72. The district court did not clearly

err in finding it “not credible that Louisiana’s

majority-Republican Legislature would choose to

draw a map that eliminated a Republican-performing

district for predominantly political purposes.”

Dkt.198, at 44 n.10.

Finally, even though the racial decision

preceded (and was not entangled with) any political

consideration, Appellees submitted an “alternative

map showing that a rational legislature sincerely

driven by its professed partisan goals would have

drawn a different map with greater racial balance.”

Alexander, 144 S. Ct. at 1235. Expert testimony and

simulations, Appellees’ illustrative map, and HB1

itself show the Legislature could have protected five

(and certainly four) Republican incumbents while

avoiding racial gerrymanders and adhering to

traditional redistricting criteria. Dkt.182-16; Dkt.184,

at 108-111, 140; Dkt.185, at 24-25, 27-28; Dkt.198, at

44-45. As the district court reasoned: “[T]he record

reflects that the State could have achieved its political

goals in ways other than by carving up and sorting by

race the citizens of Baton Rouge, Lafayette,

Alexandria, and Shreveport. Put another way, the

Legislature’s decision to increase the BVAP of District

6 to over 50 percent was not required to protect

incumbents . . . .” Dkt.198, at 45. The district court did

not clearly err in weighing this evidence to conclude

race predominated.

II.

The

District

Court

Properly

Determined SB8 Could Not Survive

Strict Scrutiny Based on Shaw and Its

Progeny.

Since Appellees have satisfied their burden, the

“burden shifts to the State to prove that the map can

overcome the daunting requirements of strict

scrutiny.” Alexander, 144 S. Ct. at 1236.

a. The State Provided No Compelling

Interest on This Record.

The State must first show its “decision to sort

voters on the basis of race furthers a compelling

government interest.” Id. (citing Cooper, 581 U.S. at

292). The Court has assumed without deciding that

the VRA is one such interest. Bethune-Hill, 580 U.S.

at 193. But even with some breathing room for error,

the State must still believe the racial gerrymander is

“necessary under a proper interpretation of the VRA.”

Wis. Legislature v. Wis. Elecs. Comm’n, 595 U.S. 398,

403 (2022) (per curiam) (quoting Cooper, 581 U.S. at

306).

Here, the State fails that threshold inquiry: it

repeatedly conceded it did not actually rely on the

VRA or believe the VRA required it to draw a second

majority-Black district. Dkt.184, at 24-27; Dkt.186, at

122-24. Instead, Louisiana’s real “interest” was

strategic: disposing of the Robinson litigation so it

could draw its own gerrymander, a goal it achieved

through the enactment of SB8. Ruling, Robinson v.

Ardoin, No. 3:22-cv-00211-SDD-SDJ (M.D. La., filed

Apr. 25, 2024). This sort of litigation strategy provides

no compelling interest to justify “odious” racial

sorting. Shaw I, 509 U.S. at 657 (quoting Hirabayashi

v. United States, 320 U.S. 81, 100 (1943)) (citing

Loving v. Virginia, 388 U.S. 1, 11 (1967)).

Indeed, this tactic is not new, and this Court

has long exercised vigilance when States defend strict

scrutiny based on third-party litigation threats

regarding the VRA, rather than asserting their own

interest under the VRA itself. Thus, when Georgia

claimed to satisfy strict scrutiny because it had

acceded to repeated, aggressive DOJ preclearance

demands, this Court instantly recognized “the State’s

true interest in designing the Eleventh District was

creating a third majority-black district to satisfy the

Justice Department’s preclearance demands.” Miller,

515 U.S. at 921. That alone, however, did not suffice:

“We do not accept the contention that the State has a

compelling interest in complying with whatever

preclearance mandates the Justice Department

issues.” Id. at 922. So too here: Louisiana has no

compelling interest in appeasing litigants or frontrunning allegedly hostile district courts.

b. The State’s Race-Based Decision

Was Not Narrowly Tailored.

Even if the State proves it truly intended to

comply with the VRA, rather than jumping ahead of a

worrisome district court, its task has just begun. The

Court must “then determine whether the State’s use

of race is ‘narrowly tailored’—i.e., ‘necessary’—to

achieve that interest. This standard is extraordinarily

onerous because the Fourteenth Amendment was

designed to eradicate race-based state action.”

Alexander, 144 S. Ct. at 1236 (citing Students for Fair

Admissions, Inc. v. President & Fellows of Harv. Coll.,

600 U.S. 181, 206 (2023)).

i. The District Court Applied the

Correct Legal Standard.

The State must present a “strong basis in

evidence” that the VRA “required” or “demanded”

such racial sorting. Wis. Legislature, 595 U.S. at 404

(quotation omitted). Mere belief that “the VRA might

support race-based districting—not that the statute

required it” is insufficient. Id. at 403 (citation

omitted).

But even a strong basis to believe a VRA

violation necessitates two majority-Black districts

does not alone satisfy narrow tailoring. Shaw II, 517

U.S. at 915. That is because a VRA violation

somewhere (assuming even that there was a fully

litigated decision so holding, which did not happen

here) does not permit the State to draw a majorityBlack district just anywhere. LULAC v. Perry, 548

U.S. 399, 431 (2006); Bush, 517 U.S. at 979; Shaw II,

517 U.S. at 916-17 (rejecting that “once a legislature

has a strong basis in evidence for concluding that a § 2

violation exists in the State, it may draw a majorityminority district anywhere, even if the district is in no

way coincident with the compact Gingles district”

(citation omitted)).

Rather, an intentionally created majorityBlack district must remedy the alleged wrong in the

particular area. Shaw II, 517 U.S. at 916-17. This

requires at a minimum a “strong showing of a preenactment analysis with justifiable conclusions.”

Abbott v. Perez, 585 U.S. 579, 621 (2018); Wis.

Legislature, 595 U.S. at 404 (noting that a State “must

have a ‘strong basis in evidence’ to conclude that

remedial action was necessary, ‘before it embarks on

an affirmative-action program’” (quoting Shaw II, 517

U.S. at 910)).

Specifically, before enactment, the State must

“carefully

evaluate”

whether

the

Gingles

preconditions are met based on “evidence at the

district level.” Wis. Legislature, 595 U.S. at 404-05.

The State may not “improperly rel[y] on

generalizations” but must instead answer the “local”

question—i.e. “whether the preconditions would be

satisfied as to each district.” Id. at 404 (quotation

omitted). A remedial district that does not contain a

“geographically compact” population cannot satisfy

Gingles 1 or strict scrutiny. Shaw II, 517 U.S. at 916;

LULAC, 548 U.S. at 430-31.

Analysis and independent review are the

State’s responsibilities. The State cannot outsource

this inquiry by relying on third party analyses,

whether non-final judicial factfinding at an expedited

hearing or a well-supported letter after months of

analysis by experts at DOJ. Shaw II, 517 U.S. at 91112, 918; Miller, 515 U.S. at 921-24; Hays, 936 F. Supp.

at 369-71.

Finally, traditional redistricting principles

matter here too. A state legislature must always

satisfy traditional redistricting principles to comply

with the VRA. Milligan, 599 U.S. at 30; LULAC, 548

U.S. at 431; Bush, 517 U.S. at 979. Thus, some earlier

law’s purported VRA noncompliance cannot justify a

new, non-compact district. Shaw II, 517 U.S. at 91517; Bush, 517 U.S. at 979. The “leeway” afforded

States only allows for “reasonable compliance

measures” once the State meets each of these

requirements. Wis. Legislature, 595 U.S. at 404;

Cooper, 581 U.S. at 293. It never permits them to

forego analysis altogether.

In keeping with these requirements, the

district court gave the State ample breathing room

and properly concluded the State could not satisfy

strict scrutiny based on the record.

ii. The Record Shows the State

Failed to Show Its Decision

Was Narrowly Tailored.

The State failed to satisfy its onerous burden to

show that race-based sorting was necessary to remedy

a VRA violation. It conceded at trial it conducted no

pre-enactment analysis of whether the VRA required

its race-based steps or whether SB8 remedied any

VRA violation. Dkt.184, at 24-26; Dkt.186, at 123-25.

On strict scrutiny, this alone dooms the State. Abbott,

585 U.S. at 621.

The State’s complete reliance on the allegedly

ominous presence of the Robinson district court fails

for four reasons.

First, the State did not admit any evidence from

the Robinson litigation in the district court to satisfy

its burden of showing a strong basis in evidence—

assuming such facts exist in a case considering maps

nothing like SB8. Instead, it relied on videos from the

Attorney General referencing the litigation writ large.

Second, the State disavowed reliance on any

Robinson expert reports. Dkt.186, at 124 (“[I]t was

also not necessary for the legislators to parse the

nuances of the expert reports themselves.”); cf. Shaw

II, 517 U.S. at 910. Instead, it argued preliminary

“rulings,” which “did not squarely hold that the failure

to draw a second majority black district would violate

the VRA,” could alone “supply the strong basis in

evidence.” Dkt.186, at 123-25.

But third, reliance on preliminary opinions

from Robinson to provide a strong basis in evidence is

misguided. This Court has repeatedly insisted that

States cannot simply cite pressure from threatened or

ongoing litigation (from DOJ or otherwise) to

establish a VRA defense. Shaw II, 517 U.S. at 911-14,

918; Miller, 515 U.S. at 921-24; Hays, 936 F. Supp. at

369-71 (Louisiana failed to show a strong basis in

evidence that the VRA required a district nearly

identical to SB8-6, despite DOJ’s repeated refusal to

preclear maps without two Black-majority districts

out of seven).

Fourth, the Robinson opinions involved

dissimilar voters and areas, and the State never

frontally attacked the plaintiffs’ VRA showings,

leaving key arguments unaddressed. The Middle

District’s findings were based entirely on those

plaintiffs’ illustrative plans, none of which created

majority-Black districts in northwest Louisiana. They

instead “connect[ed] the Baton Rouge area to the

Delta Parishes along the Louisiana-Mississippi

border.” Robinson I, 605 F. Supp. 3d at 785 (quotation

and footnote omitted). The court repeatedly

emphasized the State’s failure to contest, challenge, or

even present evidence in response to plaintiffs’

evidence. Id. at 823. It decided based on this limited

record plaintiffs would “likely” prevail; it did not

decide what the VRA actually required. Id. at 766.

The Fifth Circuit, reviewing for clear error,

cautioned that plaintiffs had yet to prove their case:

“The Plaintiffs have prevailed at this preliminary

stage given the record as the parties have developed it

and the arguments presented (and not presented). But

they have much to prove when the merits are

ultimately decided.” Robinson II, 37 F.4th at 215

(emphasis added). It also emphasized the State “put

all their eggs” in one basket, a strategic misstep. Id.

at 217. The Fifth Circuit reiterated its wariness after

concluding the district court had erred in its

compactness analysis. Id. at 222.

The Fifth Circuit merits panel again focused

solely on the illustrative maps—each of which

“connect[ed] the Baton Rouge area and St. Landry

Parish with the Delta Parishes far to the north along

the Mississippi River”—without analyzing other parts

of the State. Robinson III, 86 F.4th at 590. The court

stressed the limited nature of clear error review and

the lack of a merits trial. Id. at 592. It emphasized the

State failed to provide evidence or meaningfully refute

or challenge plaintiffs’ evidence and the Supreme

Court’s decision in Allen v. Milligan “largely rejected”

the “State’s initial approach.” Id. The Fifth Circuit

encouraged the State that its failure to address the

VRA issues during the preliminary injunction stage

did not bind the State in subsequent proceedings and

at trial. Id. The Fifth Circuit never ordered the State

to create two majority-Black districts, and it vacated

any order from the Middle District. Id. at 602. There

was no court order or mandate to enact SB8 or repeal

HB1 in January 2024.

The State cannot claim these opinions, which

“did not squarely hold that the failure to draw a

second majority black district would violate the VRA,”

gave it unfettered license or “breathing room” to enact

this unconstitutional scheme, Dkt.186, at 123, when

that scheme fell squarely outside the scope, reasoning,

maps, and case or controversy in Robinson. Even an

established duty to draw another VRA district in a

particular area does not allow the State to draw a

different majority-minority district elsewhere. Shaw

II, 517 U.S. at 916-17. The State’s reliance is nothing

more than a “pure error of law” that cannot satisfy

strict scrutiny. Cooper, 581 U.S. at 306 (citation

omitted).

III. This Record Does Not Present the

Titanic Legal Struggle the State

Originally Sold this Court.

Louisiana, perhaps realizing this standard

Shaw case is remarkable only for its own serial

failures to mount any true VRA defense and thereby

present the grand conflict it promised, asks the Court

to rewrite Equal Protection law. But even if the

frontiers between the Fourteenth Amendment and

VRA need revision, one could hardly imagine a worse

vehicle.

First, as explained above, there is no tension to

resolve between the Robinson litigation and the

district court’s decision below. Robinson was nonfinal, is moot, and involved proof of an allegedly

suppressed majority-minority district in another part

of the State. The State and Robinsons failed to

include—and at times, vociferously opposed

including—that evidence in the record below.

Dkt.144-1; Dkt.185, at 103-18; Dkt.185, at 33-35.

Instead, they wanted only to import as an established

fact the Middle District’s preliminary decision—

vacated for procedural reasons—that Louisiana

required a second district. That is not how the VRA

works: the law doesn’t fix a quota of majority-Black

districts for each State, which is then free to draw

them wherever it pleases. Supra Part II.b. Having

done zero VRA analysis on SB8 before it passed, and

presenting zero VRA evidence on SB8 at trial, the

State lost.

Second, this case has not developed any conflict

between the requirements of the VRA and Equal

Protection Clause. The State and its Intervenors had

a full opportunity to demonstrate a strong basis for

believing the VRA required SB8-6—a showing that

could have demonstrated tension between Gingles and

the Equal Protection Clause. They never made that

showing. Perhaps the Appellants prefer a different

racial gerrymander, such as the Intervenors’ proposed

Robinson maps. The remedial phase before the

district court can provide the opportunity to show that

in place of SB8, the VRA requires a different twoBlack-majority district map; it will likewise provide

Appellees a chance to directly attack any such VRA

showing and also demonstrate whether the proposed

remedy is a racial gerrymander. By seeking a stay, the

State stunted the development of the record, and now

this lies in the future. There is simply no record on

which to explore any issues this combined Equal

Protection-VRA analysis might uncover.

Starved of facts, the State’s efforts to

completely rework redistricting law—misguided

already—are even less attractive. Thus, the State

incorrectly urges that the strong basis in evidence

inquiry should not consider the Gingles factors—

contradicting this Court’s numerous contrary

holdings in Wisconsin Legislature v. Wisconsin

Elections Commission, Cooper v. Harris, Bush v. Vera,

and Shaw II—because “this case presents markedly

different facts that warrant a markedly different

approach.” State Jurisdictional Statement 31. As

Appellees show in their response to Robinsons’

Jurisdictional Statement before this Court, it would

eviscerate the Fourteenth Amendment to subject

“odious” racial gerrymandering to anything less than

strict scrutiny. Shaw I, 509 U.S. at 657 (quotation

omitted).

IV.

Appellees’ Claims Are Justiciable.

The State argues for the first time that

“constitutional racial-gerrymandering and votedilution

claims

are

non-justiciable.”

State

Jurisdictional Statement 32-33. But these challenges

are plainly justiciable under this Court’s precedent

and the Fourteenth Amendment. See, e.g., Gomillion

v. Lightfoot, 364 U.S. 339 (1960). “Shaw’s basic

objective” is to make “extreme instances of

gerrymandering subject to meaningful judicial

review.” Miller, 515 U.S. at 929 (O’Connor, J.,

concurring). The “particular dangers” of “[r]acial

classifications with respect to voting”—even “for

remedial purposes”—have led this Court to reaffirm

that “race-based districting by our state legislatures

demands close judicial scrutiny.” Id. at 912 (quoting

Shaw I, 509 U.S. at 657); see also Richmond v. J.A.

Croson Co., 488 U.S. 469, 501 (1989) (“The history of

racial classifications in this country suggests that

blind judicial deference to legislative or executive

pronouncements of necessity has no place in equal

protection analysis.” (citing Korematsu v. United

States, 323 U.S. 214, 235-40 (1944) (Murphy, J.,

dissenting))); Regents of Univ. of Cal. v. Bakke, 438

U.S. 265, 291 (1978) (opinion of Powell, J.) (“Racial

and ethnic distinctions of any sort are inherently

suspect and thus call for the most exacting judicial

examination.”). In fact, the Fourteenth Amendment’s

“central mandate” of “racial neutrality” demands the

Court engage in this very inquiry. Miller, 515 U.S. at

904; Shaw I, 509 U.S. at 642 (“Laws that explicitly

distinguish between individuals on racial grounds fall

within the core of [the Equal Protection Clause’s]

prohibition.”); Students for Fair Admissions, 600 U.S.

at 229-30; Alexander, 144 S. Ct. at 1262 (Thomas, J.,

concurring).

That’s especially true in this case where there

is not mere “smoking-gun evidence” of unlawful racial

classifications and race was not merely the

“predominant factor” motivating the decision to

segregate voters into particular districts. Alexander,

144 S. Ct. at 1254 (Thomas, J., concurring) (quotation

omitted). Rather, the evidence overwhelmingly shows

race was the sole reason the State sorted voters inside

and outside of SB8-6. Such egregious racial

classification is plainly inconsistent “with our

colorblind Constitution.” Id. at 1263 (Thomas, J.,

concurring); see also Students for Fair Admissions,

600 U.S. at 217-20, 229-30. Regardless of whether

strict scrutiny is triggered by any sort of racial

classification, racial predominance, or race as the sole

reason behind the State action, Alexander, 144 S. Ct.

at 1262 (Thomas, J., concurring), the overwhelming

evidence from this race-based State action satisfies

any standard. As a result, there is no lack of judicially

manageable standards, and the Court can summarily

affirm without revisiting the appropriate trigger for

strict scrutiny.

The Court Should Allow the Remedial

Phase to Continue.

The district court decided, in its proximity to

the record and events, to conduct a remedial trial. Cf.

North Carolina v. Covington, 585 U.S. 969, 977 (2018)

(per curiam) (holding “District Court had its own duty

to cure illegally gerrymandered districts through an

orderly process in advance of elections” under Purcell,

and did not abuse discretion when it determined

“providing the General Assembly with a second bite at

the apple risked further drawing out these

proceedings and potentially interfering with the 2018

election cycle” and drew remedial districts (citation

omitted)). It noted, however, the State could repeal

the legislation at any time and enact a new law in

regular course. Dkt.219. The State remains free to do

so. But with the ever-encroaching 2026 election, the

threat of another Purcell v. Gonzalez, 549 U.S. 1

(2006), problem, and the realized irreparable harm to

voters for the 2024 election, the Court should not stay

the district court’s remedial phase so the State can

enact its third map in this districting cycle.

This Purcell problem is especially concerning

because the Louisiana Secretary of State, while

represented by the same counsel, in a matter of

months provided different federal courts with

different final deadlines for redistricting maps for the

2024 election. Dkt.219, at 2-3. The State has already

irreparably deprived Appellees of their constitutional

rights for the 2024 election. The potential recurrence

of shifting deadlines or an even earlier deadline for the

2026 election foretells the same fate. Accordingly,

Appellees respectfully ask this Court to summarily

affirm and remand the case so the district court can

proceed with the remedial phase of the trial and

ensure a map is in place for the 2026 election. Such an

order would not prevent the State from repealing the

old law and enacting a new one, as it did during the

Robinson litigation.

CONCLUSION

For

the

foregoing

reasons

Appellees

respectfully ask the Court to summarily affirm or

dismiss and remand the case for remedial proceedings

to continue.

EDWARD D. GREIM

Counsel of Record

GRAVES GARRETT GREIM LLC

1100 Main Street, Suite 2700

Kansas City, Missouri 64105

edgreim@gravesgarrett.com

(816) 256-3181

PAUL LOY HURD

PAUL LOY HURD, APLC

1896 Hudson Circle, Suite 5

Monroe, LA 71201

Counsel for Appellees

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.