Amicus Curiae Brief — Louisiana, Appellant v. Phillip Callais, et al.

Nos. 24-109, 24-110

In the

Supreme Court of the United States

──────────────────────────

STATE OF LOUISIANA,

Appellant,

v.

PHILLIP CALLAIS, et al.,

Appellees.

──────────────────────────

PRESS ROBINSON, et al.,

Appellants,

v.

PHILLIP CALLAIS, et al.,

Appellees.

──────────────────────────

On Appeal from the United States District Court

for the Western District of Louisiana

──────────────────────────

BRIEF OF ALABAMA AND 12 OTHER STATES AS

AMICI CURIAE IN SUPPORT OF NO PARTY

──────────────────────────

OFFICE OF THE ALABAMA

ATTORNEY GENERAL

501 Washington Avenue

Montgomery, AL 36130

(334) 242-7300

Edmund.LaCour@

AlabamaAG.gov

September 3, 2024

STEVE MARSHALL

Attorney General

EDMUND G. LACOUR JR.

Solicitor General

Counsel of Record

SOREN GEIGER

Assistant Solicitor General

Counsel for Amicus Curiae

State of Alabama

TABLE OF CONTENTS

TABLE OF CONTENTS ............................................. i

TABLE OF AUTHORITIES....................................... ii

INTERESTS OF AMICI CURIAE ..............................1

SUMMARY OF ARGUMENT .....................................2

ARGUMENT ...............................................................3

I.

“The Courts Made Us Do It” Is No Excuse

To Racially Gerrymander. .............................3

II.

The Robinson Decisions Adopted An

Atextual Approach To §2. ..............................6

A. Unequal Opportunity to Participate

in the Political Process is a

Necessary Element of a §2 Vote

Dilution Claim. .........................................8

B. The

Robinson

Courts’

Interpretation of Section 2 is

Hopelessly Indeterminate. ..................... 13

C. The Gingles Preconditions Alone

Cannot

Justify

a

Racial

Gerrymander. ......................................... 15

III. The States Need Clarity. ............................. 17

IV. If The Text Does Not Control, Then Either

§2 Claims Are Nonjusticiable Or §2 Is

Unconstitutional. ......................................... 21

CONCLUSION .......................................................... 24

ii

TABLE OF AUTHORITIES

Cases

Abbott v. Perez,

585 U.S. 579 (2018) ............................................ 1, 7

Abrams v. Johnson,

521 U.S. 74 (1997) ................................................ 20

Alexander v. S.C. NAACP,

144 S.Ct. 1221, (2024) .................................. 4, 5, 20

Allen v. Milligan,

599 U.S. 1, 28 (2023) .................................. 7, 16, 23

Alpha Phi Alpha v. Raffensperger,

700 F. Supp. 3d 1136 (N.D. Ga. 2023) ........... 18, 19

Baird v. Consol. City of Indianapolis,

1991 WL 557613 (S.D. Ind. Apr. 25, 1991) ......... 13

Chisom v. Roemer,

501 U.S. 380 (1991) ...................................... 8, 9, 17

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

488 U.S. 469 (1989) .............................................. 23

Coates v. City of Cincinnati,

402 U.S. 611 (1971) .............................................. 15

Cooper v. Harris,

581 U.S. 285 (2017) ................................ 7, 8, 16, 17

iii

Daker v. Comm’r, Ga. Dep’t of Corr.,

820 F.3d 1278 (11th Cir. 2016) ..............................1

Edwards v. Aguillard,

482 U.S. 578 (1987) ................................................4

Ga. NAACP v. Fayette Cnty. Bd. of Commr’s,

775 F.3d 1336 (11th Cir. 2015) ............................ 16

Gomillion v. Lightfoot,

364 U.S. 339 (1960) ............................................ 4, 5

Grutter v. Bollinger,

539 U.S. 306 (2003) .............................................. 22

Hunter v. Underwood,

471 U.S. 222 (1985) ................................................4

Johnson v. De Grandy,

512 U.S. 997 (1994) ...................................... 8, 9, 17

Johnson v. United States,

576 U.S. 591 (2015) ........................................ 14, 15

Lanzetta v. New Jersey,

306 U.S. 451 (1939) ................................................2

LULAC v. Clements,

999 F.2d 831 (5th Cir. 1993) .......................... 13, 17

McBoyle v. United States,

283 U.S. 25 (1931) ................................................ 15

iv

McCleskey v. Kemp,

481 U.S. 279 (1987) ................................................4

McDonnell v. United States,

579 U.S. 550 (2016) .............................................. 15

Merrill v. Milligan,

142 S.Ct. 879 (2022) ......................................... 1, 18

Miller v. Johnson,

515 U.S. 900 (1995) .................................5-8, 14, 20

Miss. NAACP v. Bd. of Election Comm’rs,

2024 WL 3275965 (S.D. Miss. July 2, 2024) . 19, 20

NAACP v. Fordice,

252 F.3d 361 (5th Cir. 2001) ................................ 20

Nairne v. Ardoin,

2024 WL 492688 (M.D. La. Feb. 8, 2024)............ 20

Petteway v. Galveston County,

No. 23-40582, 2024 WL 3617145

(5th Cir. Aug. 1, 2024) ......................................... 23

Plessy v. Ferguson,

163 U.S. 537 (1896) ............................................ 6, 7

Robinson v. Ardoin,

605 F. Supp. 3d 759 (M.D. La. 2022)........ 2, 3, 5-8,

12-16, 18, 21-23

v

Rucho v. Common Cause,

588 U.S. 684 (2019) .................................. 14, 19, 21

Sackett v. Env’t Prot. Agency,

598 U.S. 651 (2023) ........................................ 14, 15

SFFA v. President & Fellows of Harvard Coll.,

600 U.S. 181 (2023) ........................................ 21-23

Shaw v. Reno,

509 U.S. 630 (1993) ................................................ 6

Shaw v. Hunt,

517 U.S. 899 (1996) ...................................... 5, 6, 23

Shelby County v. Holder,

570 U.S. 529 (2013) .............................................. 23

Taggart v. Lorenzen,

139 S.Ct. 1795 (2019) .............................................9

Thornburg v. Gingles,

478 U.S. 30 (1986) ......................................... 2, 8, 9,

12, 16, 17, 21

Turtle Mtn. Band of Chippewa Indians v. Howe,

2023 WL 8004576 (D.N.D. Nov. 17, 2023) .......... 18

United States ex rel. Martin v. Hathaway,

63 F.4th 1043 (6th Cir. 2023) .............................. 14

Vieth v. Jubelirer,

541 U.S. 267 (2004) .............................................. 21

vi

Walen v. Burgum,

700 F. Supp. 3d 759, 774 (D.N.D. 2023) .............. 18

Whitcomb v. Chavis,

403 U.S. 124 (1971) ................. 1, 2, 9-11, 13, 20, 21

White v. Regester,

412 U.S. 755 (1973) .......................1, 2, 9, 11-13, 21

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

595 U.S. 398 (2022) .................................... 7, 15, 17

Wygant v. Jackson Bd. of Educ.,

476 U.S. 267 (1986) .............................................. 23

Statutes

18 U.S.C. §924(e)(2)(B) .............................................. 15

52 U.S.C. §10301(b) ............................... 1-3, 7-9, 12-23

52 U.S.C. §10308(a) ................................................... 14

Constitutional Provisions

U.S. CONST. amend XIV ........................ 1, 6, 17, 21, 22

INTERESTS OF AMICI CURIAE

The States of Alabama, Georgia, Idaho, Indiana,

Iowa, Mississippi, Montana, Nebraska, South

Carolina, Tennessee, Texas, Utah, and West Virginia

respectfully submit this brief as amici curiae in

support of no party.1

This Court has recognized that “[r]edistricting is

never easy.” Abbott v. Perez, 585 U.S. 579, 585 (2018).

And for many States, litigation-free redistricting is

now impossible. Louisiana’s case perfectly exemplifies

the utter indeterminacy States face. Louisiana was

first enjoined in 2022 under Section 2 of the Voting

Rights Act for not enacting a congressional plan with

two majority-black districts, then enjoined in 2024 for

violating the Equal Protection Clause for enacting

just such a plan. What Louisiana told this Court two

years ago “with some justification” is even more

justified today: “‘States need clarity.’” Merrill v.

Milligan, 142 S.Ct. 879, 881 (2022) (Kavanaugh, J.,

concurring) (quoting Brief for State of Louisiana et al.

as Amici Curiae 25).

To provide that clarity, this Court should remind

lower courts to interpret §2 like any other law,

following “Justice Frankfurter’s three-part test: ‘(1)

Read the statute; (2) read the statute; (3) read the

statute!’” Daker v. Comm’r, Ga. Dep’t of Corr., 820

F.3d 1278, 1283 (11th Cir. 2016). The text of §2 is

drawn from this Court’s precedents in Whitcomb v.

Chavis and White v. Regester. And those decisions

make clear that there is equal “opportunity” “to

participate in the political process” (and thus no §2

violation) if voters are “allowed to register,”

“vote,” “choose the political party they desire[] to

1 Per Rule 37, Amici provided timely notice to counsel of record.

2

support,” and “participate in its affairs.” Whitcomb v.

Chavis, 403 U.S. 124, 149 (1971).

But the district court that preliminarily enjoined

Louisiana from using its 2022 plan, see Robinson v.

Ardoin, 605 F. Supp. 3d 759 (M.D. La. 2022), relied on

§2 without seriously considering its text. The result

was an increasingly common and unconstitutional

expansion of the VRA that lacks any discernible

standard. Under that freewheeling approach, §2 is

rendered “so vague that men of common intelligence

must necessarily guess at its meaning and differ as to

its application,” which “violates the first essential of

due process of law.” Lanzetta v. New Jersey, 306 U.S.

451, 453 (1939). Now is the time for this Court to make

clear that §2 should be interpreted like any other

statute.

SUMMARY OF ARGUMENT

In 1982, Congress amended Section 2 of the Voting

Rights Act, codifying the test for vote dilution employed by this Court in Whitcomb v. Chavis and White

v. Regester. This test has two key elements: members

of the minority group must have less opportunity than

other voters to (1) elect representatives of their choice,

and (2) participate in the political process. Proof of

both is required to establish liability.

The three preconditions to a vote dilution claim established in Thornburg v. Gingles weed out particularly weak vote dilution claims and primarily concern

the first element in §2’s text: opportunity to elect.

Plaintiffs who clear these hurdles still must show less

opportunity to participate in the political process.

That element is articulated in Whitcomb and White

3

and codified in §2. It requires evidence that members

of the minority group are not allowed to register, vote,

choose a preferred party, or participate in its affairs.

Evidence that black Louisianans have less opportunity to participate in the political process is absent

from the record, as the Robinson district court expressly acknowledged. Still, the court held that §2 requires Louisiana to sort voters by race. That betrays

an atextual and standardless approach to §2 that this

Court should squarely reject in this appeal. There is

no §2 violation in present-day Louisiana and thus no

§2 basis for racially sorting Louisianans.

And even if the Robinson court’s interpretation of

§2 is correct as a statutory matter, it is flawed as a

constitutional matter. The court’s endlessly malleable

approach to §2 cannot justify race-based remedies and

will demand race-based redistricting in perpetuity.

Thus, unless this Court holds that these sorts of redistricting challenges are nonjusticiable, the Court

should affirm the judgment below. Whatever the

Court holds, it should put an end to these decennial

guessing games and articulate a standard that provides States fair notice regarding how to lawfully

draft redistricting laws.

ARGUMENT

I. “The Courts Made Us Do It” Is No Excuse To

Racially Gerrymander.

Amici States sympathize with Louisiana, whose

saga proves how impossible it has become, now almost

sixty years after the passage of the Voting Rights Act,

to comply simultaneously with our color-blind Constitution and increasingly expansive interpretations of

4

Section 2. Nevertheless, Louisiana’s attempt to do the

impossible cannot be condoned by this Court.

To be sure, “discerning the subjective motivation of

those enacting [a] statute is … almost always an impossible task.” Edwards v. Aguillard, 482 U.S. 578,

636 (1987) (Scalia, J., dissenting). The presumption of

legislative good faith can be overcome only with the

clearest proof, such as when the State’s conceded

“aim” is to “disenfranchis[e] practically all of” one racial group, Hunter v. Underwood, 471 U.S. 222, 230

(1985), or in “rare cases in which a statistical pattern

of discriminatory impact” is so stark as to be “‘tantamount for all practical purposes to a mathematical

demonstration’ that the State acted with a discriminatory purpose.” McCleskey v. Kemp, 481 U.S. 279,

294 n.12 (1987) (quoting Gomillion v. Lightfoot, 364

U.S. 339, 341 (1960)).

This is one of those rare cases. The record contains

an abundance of both direct and circumstantial evidence that the law at issue was driven by racial goals.

The legislative transcripts, for example, are saturated with “express acknowledgement[s]” “that race

played a role in the drawing of district lines.” Alexander v. S.C. NAACP, 144 S. Ct. 1221, 1234 (2024); see,

e.g.; La.JS.48a, 52a-53a; La. Stay App.49-54, 58-61.

That “direct evidence,” which “amounts to a confession of error,” accompanies “extraordinarily powerful

circumstantial evidence” akin to “the ‘strangely irregular’ … district lines in Gomillion v. Lightfoot.” Alexander, 144 S.Ct. at 1234, 1250 (quoting Gomillion,

5

364 U.S. 399, 341 (1960)); see, e.g., La. Stay App.6167.2

To explain all this away, Louisiana seeks to shift

the blame to the Robinson courts. See, e.g., La.JS.18

(“All considerations of race … stem from the federal

court decisions … not the Legislature.”). Similar arguments of deflection didn’t work for North Carolina in

Shaw v. Hunt or Georgia in Miller v. Johnson. “Just

following orders” is no excuse for violating citizens’

constitutional rights.

In Shaw v. Hunt, for example, the Department of

Justice had “[d]uly chastened” North Carolina “for not

creating a second majority-minority [congressional]

district.” 517 U.S. 899, 902 (1996). When revising “its

districting scheme,” the State “expressly acknowledged” that the “overriding purpose” of the new plan

“was to comply with the dictates” of DOJ. Id. at 902,

906. Rather than absolve North Carolina of wrongdoing in light of federal “dictates,” this Court affirmed

2 Citing Alexander, Robinson Appellants fault the District Court

for not making Appellees present an “alternative map showing

that the State could have both created a second Black-opportunity district and accomplished the Legislature’s political priorities in a more compact plan.” Robinson.JS.13. That makes no

sense. An express racial target (like two majority-black districts)

is proof of a gerrymandering claim, not a defense against one.

And even if an alternative map were needed, the 2022 Plan

would do. It was more compact than the 2024 Plan, which had to

stretch to make race-based “adjustments to heed the instructions

of the court.” Robinson.JS.138a, 153a. And “it is not credible that

Louisiana’s majority-Republican Legislature would choose to

draw a map that eliminated a Republican-performing district for

predominantly political purposes.” Robinson.JS.173a n.10.

6

that race predominated and went on to reject the

State’s §2 defense. Id. at 906, 914-17.

That same redistricting cycle, the Georgia “General Assembly set out to create three majority-minority districts to gain preclearance” for its congressional

redistricting plan after having been “twice spurned”

by DOJ. Miller v. Johnson, 515 U.S. 900, 907 (1995).

“The State admitted that” it would not have engaged

in racial sorting in District 11 “but for the need to offset the loss of black population caused by the shift of

predominantly black portions” in District 2, “which occurred in response to the Department of Justice’s …

objection letter.” Miller, 515 U.S. at 918. Compare id.,

with La.JS.21 (“But for the Robinson decisions, the

Legislature never would have … enacted S.B. 8.”). The

district court found the evidence “of the General Assembly’s intent to racially gerrymander” “overwhelming.” Miller, 515 U.S. at 910.

Thus, Louisiana is not the first State forced to defend a gerrymander before this Court due to a federal

actor’s “maximization demands.” Id. at 918. But the

2024 Plan remains Louisiana’s. The mere prospect

that a federal court might adopt an atextual (see Part

II) and unconstitutional (see Part IV) reading of §2

does not allow States to deny their citizens the guarantees of the Equal Protection Clause.

II. The Robinson Decisions Adopted An Atextual

Approach To §2.

Under our Constitution, race-based classifications

“are by their very nature odious,” Shaw v. Reno,

509 U.S. 630, 643 (1993), “offensive,” Miller, 515 U.S.

at 912, “demeaning,” id., and “inconsistent ... with

7

that equality of rights which pertains to citizenship”

and “the personal liberty enjoyed by every one within

the United States,” Plessy v. Ferguson, 163 U.S. 537,

555 (1896) (Harlan, J., dissenting).

Nevertheless, Section 2 of the VRA “demands consideration of race,” “often insist[ing] that districts be

created precisely because of race.” Abbott, 585 U.S. at

586-87. Recognizing these “competing hazards of liability,” id. at 587, the Court has “assumed”3 “that complying with” §2 can justify “narrowly tailored” “racebased sorting of voters,” Wis. Legislature v. Wis. Elections Comm’n, 595 U.S. 398, 401 (2022) (per curiam).

To survive “strict scrutiny,” the State “must

show … that it had a strong basis in evidence for concluding that the statute required” “race-based districting.” Id. at 402 (quoting Cooper v. Harris, 581 U.S.

285, 292 (2017)). While this standard gives the States

a little “‘breathing room’ to make reasonable mistakes” of fact, it “does not allow a State to adopt a racial gerrymander that the State does not, at the time

of imposition, ‘judge reasonably necessary under a

proper interpretation of the VRA.’” Id. at 505 (quoting

Cooper, 581 U.S. at 292, 306). A reading of the VRA is

not proper unless it is “a constitutional reading and

application of” the law. Miller, 515 U.S. at 921.

The Robinson courts found vote dilution under a

plainly improper interpretation of §2. Their approach

was oblivious to the statute’s text, rendering §2

3 The Court has “never applied this assumption to uphold a dis-

tricting plan that would otherwise violate the Constitution”—the

result sought by Appellants here. Allen v. Milligan, 599 U.S. 1,

79 (2023) (Thomas, J., dissenting).

8

utterly unpredictable for any legislature trying to determine whether race-based districting is required or

whether race-neutral districting will do. Those flawed

decisions cannot provide the strong basis in evidence

to justify the Louisiana Legislature’s racial sorting.

A. Unequal Opportunity to Participate in

the Political Process is a Necessary Element of a §2 Vote Dilution Claim.

To prove that a voting “standard, practice, or procedure” dilutes minority voting strength in violation

of §2, a plaintiff must show that members of a minority group “have less opportunity than other members

of the electorate [1] to participate in the political process and [2] to elect representatives of their choice.”

52 U.S.C. §10301(b) (emphasis added). In Chisom v.

Roemer, the Court clarified that proving only less opportunity to elect “is not sufficient to establish a violation unless, under the totality of the circumstances,

it can also be said that the members of the protected

class have less opportunity to participate in the political process.” 501 U.S. 380, 397 (1991). A few years

earlier, in Thornburg v. Gingles, the Court established

a threshold showing every §2 plaintiff must overcome.

478 U.S. 30, 50-51 (1986). These three prerequisites,

known as the Gingles preconditions, speak primarily

to electoral opportunity. See Johnson v. De Grandy,

512 U.S. 997, 1011-13 (1994). But “courts must also

examine … the extent of the opportunities minority

voters enjoy to participate in the political processes.”

Id. at 1011-12.

To determine if all Louisiana’s citizens today enjoy

an equal “opportunity … to participate in the political

9

process,” it is of first importance to determine what

that statutory phrase means. Chisom again points to

the answer. The 1982 amendments to “§ 2 [were] intended to ‘codify’ the results test employed in Whitcomb v. Chavis, 403 U.S. 124 (1971), and White v.

Regester, 412 U.S. 755 (1973).” Chisom, 501 U.S. at

394 n.21 (quoting Gingles, 478 U.S. at 83-84 (O’Connor, J., concurring in the judgment)). Those two decisions supplied §2’s key language. And because the

phrase “is obviously transplanted from another legal

source,” standard rules of statutory interpretation

mandate that “it brings the old soil with it.” Taggart

v. Lorenzen, 139 S.Ct. 1795, 1801 (2019) (cleaned up).

Thus, “it is to Whitcomb and White that [courts]

should look in the first instance in determining how

great an impairment of minority voting strength is required to establish vote dilution in violation of § 2.”

Gingles, 478 U.S. at 97 (O’Connor, J., concurring in

the judgment).

1. Whitcomb makes clear what is not enough to establish a “vote dilution” claim. The plaintiffs there

challenged the use of a multimember districting

scheme in Marion County, Indiana, to elect the

county’s “eight senators and 15 members of the

house,” alleging the system diluted the voting

strength of a heavily black and poor part of the county

“termed ‘the ghetto area.’” 403 U.S. at 128-29. For “the

period 1960 through 1968,” that area made up “17.8%

of the population” of Marion County but was home to

only “4.75% of the senators and 5.97% of the representatives.” Id. at 133. The voters there “voted heavily

Democratic,” but “the Republican Party won four of

the five elections from 1960 to 1968.” Id. at 150. The

10

district court found vote dilution and ordered singlemember districting. Id. at 129.

This Court reversed, emphasizing the absence of

“evidence and findings that [black] residents had less”

“opportunity to participate in and influence the selection of candidates and legislators.” Id. at 149, 153. The

Court made clear what these words meant by describing what plaintiffs failed to prove:

We have discovered nothing in the record

or in the court’s findings indicating that

poor [blacks] were not allowed [1] to register or vote, [2] to choose the political

party they desired to support, [3] to participate in its affairs or [4] to be equally

represented on those occasions when legislative candidates were chosen. Nor did

the evidence purport to show or the court

find that inhabitants of the ghetto were

[5] regularly excluded from the slates of

both major parties, thus denying them

the chance of occupying legislative seats.

Id. at 149-50.

This is what equal “opportunity … to participate in

the political process” means. One has “opportunity” if

he is “allowed” to register and vote, choose his preferred party, and participate in its affairs. “Strong differences” in socioeconomic indicators did not control.

Id. at 132. And it made no difference that the Democratic Party in Marion County had lost all 23 legislative seats in “four of the five elections from 1960 to

1968.” Id. at 150. The record suggested that “had the

Democrats won all of the elections or even most of

11

them,” plaintiffs “would have had no justifiable complaints about representation.” Id. at 152. That the

area did not “have legislative seats in proportion to its

populations emerge[d] more as a function of losing

elections,” not built-in racial bias. Id. at 153. The

plaintiffs’ alleged denial of equal opportunity was “a

mere euphemism for political defeat at the polls.” Id.

White v. Regester shows what is enough to prove

vote dilution. There, black voters of Dallas County,

Texas, also favored the Democratic Party, but at-large

elections and “a white-dominated organization that

[was] in effective control of Democratic Party candidate slating” combined to stymie political participation by black voters. 412 U.S. at 766-67. The

Democratic Party “did not need the support of the

[black] community to win elections in the county, and

it did not therefore exhibit good-faith concern for the

political and other needs and aspirations of the [black]

community.” Id. at 767. Because “the black community” was “effectively excluded from participation in

the Democratic primary selection process,” it “was

therefore generally not permitted to enter into the political process in a reliable and meaningful manner.”

Id. Similarly, the “poll tax” and “restrictive voter registration procedures” kept Mexican-American residents of Bexar County, Texas, from accessing the

political process on an equal footing with their white

neighbors. Id. at 768-69. This evidence was sufficient

to establish illegal vote dilution.

2. All three minority groups—black voters in Dallas County, Mexican-American voters in Bexar

County, and black voters in Marion County—experienced socioeconomic hardship and persistent political

12

defeat. All three would likely have been able to satisfy

the Gingles preconditions. But the political process

was closed to two and open to one. The key difference

was that black residents of Marion County had access

to those traditional means of political participation

like registering, voting, and engaging with their preferred party, while their Texas counterparts did not.

This was the type and quantum of evidence Congress

had in mind when it amended §2 in 1982 to require

proof of unequal opportunity to participate in the political process.

Thus, when the Robinson plaintiffs brought their

§2 claim against Louisiana’s 2022 congressional plan,

they needed to show that black Louisianans face more

inequality in terms of those traditional methods of political participation than did black Indianians in

1960s Marion County. But there was no finding by the

district court or Fifth Circuit that black Louisianans

today are denied the opportunity to register to vote,

cast a ballot, choose the political party they desire to

support, or participate equally in its affairs. To the

contrary, the district court noted the lack of “specific

evidence” of disparities in “political participation outcomes” regarding “levels of black voter registration, …

turnout among black voters, or any other factor tending to show that past discrimination has affected their

ability to participate in the political process.” Robinson v. Ardoin, 605 F. Supp. 3d 759, 849 (M.D. La.

2022). Further, the court could identify no evidence

that Louisiana’s elected officials are unresponsive to

the needs of black Louisianans. Id. at 850.

Nowhere did the district court ask whether black

voters in Louisiana “would have … justifiable

13

complaints about representation” “had the Democrats

won all of the elections or even most of them.” Whitcomb, 403 U.S. at 152. But under Whitcomb, White,

and thus §2, losing in the political process is not the

same as being excluded from it. The Robinson court’s

contrary approach of identifying a history of discrimination, racially polarized voting, and elections that

didn’t go the “right” way “enough” proves nothing

about whether black Louisianans today have an equal

“opportunity … to participate in the political process.”

Indeed, it’s not clear what the Robinson court’s test

proves at all, much less how it could justify race-based

remedies. The finding of vote dilution on this record

“becomes plausible only if Whitcomb is purged from …

voting rights jurisprudence.” LULAC v. Clements,

999 F.2d 831, 862 (5th Cir. 1993) (en banc).

B. The Robinson Courts’ Interpretation of

Section 2 is Hopelessly Indeterminate.

The Robinson decisions reveal that once vote dilution claims are severed from the text of §2, they can

sweep broadly and unpredictability. These critical

problems trigger several interpretative principles

that point toward adopting the textualist approach to

§2 outlined above rather than the elastic approach

embraced by the Robinson courts.

First, federalism requires a more disciplined reading of §2. “Federal-court review of districting legislation represents a serious intrusion on the most vital of

local functions.” Miller, 515 U.S. at 915. In “such circumstances,” courts must “act only in accord with especially clear standards,” lest they “risk assuming

political, not legal, responsibility for a process that

14

often produces ill will and distrust.” Rucho v. Common

Cause, 588 U.S. 684, 704 (2019). And the Constitution

“requires Congress to enact exceedingly clear language if it wishes to significantly alter the balance between federal and state power.” Sackett v. Env’t Prot.

Agency, 598 U.S. 651, 679 (2023) (cleaned up). Congress has not spoken so clearly as to greenlight what

happened in Robinson—federal intrusion into redistricting where no “specific evidence” exists of disparities in “political participation outcomes.” Robinson,

605 F. Supp. 3d at 849.

Second, it must not be forgotten that §12 of the

VRA authorizes criminal penalties for §2 violations.

See 52 U.S.C. §10308(a) (“Whoever shall deprive or attempt to deprive any person of any right secured by

section 2 … shall be fined … or imprisoned.”). In other

words, the “same language creates civil and criminal

liability.” United States ex rel. Martin v. Hathaway, 63

F.4th 1043, 1050 (6th Cir. 2023). This is an additional

reason why state and local government officials are

owed “fair warning … of what the law intends to do if

a certain line is passed.” McBoyle v. United States,

283 U.S. 25, 27 (1931). The Robinson courts’ interpretation of §2 falls far short of providing “sufficient definiteness” such “that ordinary people can understand

what conduct is prohibited” and “in a manner that

does not encourage arbitrary and discriminatory enforcement.” Sackett, 598 U.S. at 680-81 (quoting

McDonnell v. United States, 579 U.S. 550, 576 (2016)).

Recall that in Johnson v. United States, 576 U.S.

591 (2015), the Court considered the Armed Career

Criminal Act’s sentencing enhancement for prior convictions for a felony that “involves conduct that

15

presents a serious potential risk of physical injury to

another.” 18 U.S.C. §924(e)(2)(B). The Court deemed

the enhancement unconstitutional because of “the indeterminacy of the wide-ranging inquiry required by”

that clause. 576 U.S. at 597. And to be sure, it was a

daunting task for a defendant to predict whether the

“ordinary burglar” or “typical extortionist” was engaged in conduct that creates a “serious potential risk

of physical injury.” Id. at 597-98. But that’s a cakewalk compared to trying to guess how the Robinson

courts’ view of §2 will cash out. You might think that

“no evidence of Black voters being denied the right to

vote” matters in a Voting Rights Act case, but you’d be

wrong. Robinson, 605 F. Supp. 3d at 847. In the Robinson district court’s view, such evidence is “irrelevant” because “[t]his case presents claims of vote

dilution.” Id. at 847.

That view of §2 is “shapeless.” Johnson, 576 U.S.

at 602. Like the law that criminalized being “annoying” while on a sidewalk, Robinson renders §2 “vague,

not in the sense that it requires” state and local officials “to conform [their] conduct to an imprecise but

comprehensible normative standard, but rather in the

sense that no standard of conduct is specified at all.”

Coates v. City of Cincinnati, 402 U.S. 611, 614 (1971).

That approach cannot provide “good reasons” for

thinking §2 demands race-based districting. Wis. Legislature, 595 U.S. at 404.

C. The Gingles Preconditions Alone Cannot

Justify a Racial Gerrymander.

The further the meaning of §2 drifts from its text,

the more emphasis is placed upon the judicially

16

created, atextual Gingles preconditions. Both Louisiana and the Robinson Appellants argue that the Robinson courts’ Gingles findings suffice to justify the

2024 Plan’s racial sorting. La.JS.31-32; Robinson.JS.24-26. This does not track §2’s text and misapprehends the purpose served by the preconditions—to

weed out particularly weak claims. The prerequisites

further respect the States’ sovereign authority over

reapportionment by ensuring that Ҥ 2 never requires

adoption of districts that violate traditional redistricting principles.” Allen v. Milligan, 599 U.S. 1, 28, 30

(2023). But they do not answer whether minority voters are allowed to register, vote, or participate in the

party of their choosing. Courts have declared that “it

will be only the very unusual case in which the plaintiffs can establish the existence of the three Gingles

factors but still have failed to establish a violation of

§ 2 under the totality of circumstances,” Robinson, 605

F. Supp. 3d at 844 (quoting Ga. NAACP v. Fayette

Cnty. Bd. of Commr’s, 775 F.3d 1336, 1342 (11th Cir.

2015)), but they have not explained why that would be

so.

Appellants rely on a line, plucked out of context,

from Cooper v. Harris, where the Court remarked: “If

a State has good reason to think that all the Gingles

preconditions are met, then so too it has good reason

to believe that § 2 requires drawing a majority-minority district.” 581 U.S. at 302. This line, read alone, appears to condone Appellants’ tunnel vision. But that

statement must be understood in context and in light

of this Court’s §2 precedents.

Earlier in the Cooper opinion, the Court set the

stage by declaring in no uncertain terms that a State

17

could avoid a constitutional violation when sorting

voters by race only if “it had ‘good reasons’ to think

that it would transgress the Act if it did not draw racebased district lines.” 581 U.S. at 293; see also id. at

282 (repeating that the State must reasonably believe

“the statute required its action”). “The Act” requires a

plaintiff to prove, under the totality of circumstances,

(1) less opportunity to elect and (2) less opportunity to

participate in the political process. As noted earlier,

the Gingles preconditions speak primarily to the former. See De Grandy, 512 U.S. at 1011-12. Their presence alone is “not sufficient to establish a violation.”

Chisom, 501 U.S. at 397.

Ultimately, a State wishing to avoid liability under

the Equal Protection Clause must conduct the full “totality-of-circumstances analysis,” Wis. Legislature,

595 U.S. at 405, which includes an inquiry into

whether “members of the protected class have less opportunity to participate in the political process,” Chisom, 501 U.S. at 397. Here, Louisiana threw up its

hands in understandable exasperation and sorted voters by race even though the record reveals that the

State’s political processes are equally open to all.

III. The States Need Clarity.

Robinson and several other recent decisions from

lower courts demonstrate that vote dilution jurisprudence is becoming increasingly “unclear and confusing” with time. Merrill, 142 S.Ct. at 881 (Kavanaugh,

J., concurring). This paradox is the result of the VRA’s

past successes. “Relatively clear lines of legality and

morality have become more difficult to locate as demands for outcomes have followed the cutting away of

18

obstacles to full participation.” Clements, 999 F.2d at

837. In other words, courts have enabled statutory

mission creep. But §2’s successes are no reason to extend the law or deny legislators a fair chance of complying with §2 and the Constitution. The decisions

discussed below underscore that legislators lack a

clear rule and that the Court should provide it now.

1. Begin in the Great Plains. Within nine days of

each other, two sets of private plaintiffs challenged

North Dakota’s 2021 State Legislative Plan. One alleged that the State racially gerrymandered by subdividing two districts. The district court held that North

Dakota could racially gerrymander in order to comply

with §2. Walen v. Burgum, 700 F. Supp. 3d 759, 774

(D.N.D. 2023), appeal docketed (U.S. Mar. 6, 2024).

Weeks later, another district court determined that

the same districting law violated §2 because the Legislative Assembly’s race-based efforts “did not go far

enough.” Turtle Mtn. Band of Chippewa Indians v.

Howe, 2023 WL 8004576, at *1, 17 (D.N.D. Nov. 17,

2023). More racial line-drawing was needed. “How

much is too much?” Rucho, 588 U.S. at 707. The court

didn’t say.

2. Turning south, a federal court recently decided

that Georgia’s congressional and state legislative

plans violated §2. Alpha Phi Alpha v. Raffensperger,

700 F. Supp. 3d 1136, 1380 (N.D. Ga. 2023). This notwithstanding the fact that 98% of all eligible voters in

Georgia are registered, both major party nominees for

the last U.S. Senate race were black, the State’s congressional delegation includes five black Democrats

despite having only two majority-black districts, and

19

black Georgians enjoy proportional representation in

Congress. See id. at 1190-91, 1283, 1288, 1360, 1365.

What should have tipped off the Georgia Legislature that it was required to engage in race-based districting? In the district court’s view, it was recent

“official discrimination in the state” that included several voting laws “determined in prior decisions … to

not be illegal under federal law.” Id. at *59, 62. For

example, one law that the same judge had deemed not

to violate §2 was transmuted into evidence that Georgia’s redistricting laws did violate §2 because, among

the tiny number of people affected by the VRA-compliant law, a higher percentage were black. Id. at *63.

But the most telling “evidence” was the district

court’s reliance on the 1990 congressional redistricting cycle. Without any apparent irony, the court identified DOJ’s objection letters as evidence of “Georgia’s

history of discrimination against Black voters.” Id. at

*60. What the court omitted, however, was that DOJ

was misusing §5 to demand a flagrantly gerrymandered “‘max-black’ plan.” Abrams v. Johnson, 521 U.S.

74, 80 (1997). When Georgia finally acquiesced to the

“Justice Department’s maximization policy,” this

Court held that Georgia’s map was unconstitutional.

Miller, 515 U.S. at 926. Thus, in the district court’s

upside-down view, Georgia’s repeated refusal to racially discriminate was evidence of racial discrimination. It is hard to fathom how the Georgia Legislature

could have seen this coming.

3. Likewise, a three-judge court just held that Mississippi’s House and Senate plans violate §2. Miss.

NAACP v. Bd. of Election Comm’rs, 2024 WL 3275965

20

(S.D. Miss. July 2, 2024). In the court’s view, even if

no racial gap in turnout existed, the disparities flowing from “the nature of black poverty” would be

enough to support a finding of vote dilution. Id. at *36,

49. That holding is neither predictable nor reconcilable with Whitcomb, where neither poverty nor its natural effects sufficed to demonstrate that members of

the minority group were “denied access to the political

system,” 403 U.S. at 155; see also Alexander, 144 S.Ct.

at 1264 (Thomas, J., concurring) (recounting recent

case of court-ordered racial stereotyping in Washington State).

4. This cross-country trek naturally ends in Louisiana. The topsy-turvy tale of Louisiana’s congressional redistricting efforts needs no more exposition.

But when it rains in Louisiana, it pours. Louisiana

received word in February that its state legislative

plans also violate §2 due, in part, to the “subliminal

message of the Sheriff’s Office being housed on the

same floor as [a] Registrar of Voter’s Office.” Nairne v.

Ardoin, 2024 WL 492688, at *41 n.461 (M.D. La. Feb.

8, 2024). And because walls can’t talk, legislators had

no way to know that this allocation of government real

estate would doom their redistricting plan. States deserve greater respect and clarity than provided by this

ever-expanding, whack-a-mole approach to §2.

*

*

*

The way out of this morass is to read §2 like any

other statute. The text, drawn from Whitcomb and

White, shows that the Voting Rights Act is concerned

with the right to register, vote, and participate in politics—win or lose—not on subliminal messages from

21

parish buildings. But whatever the statute means, the

Court should tell the States.

IV. If The Text Does Not Control, Then Either §2

Claims Are Nonjusticiable Or §2 Is

Unconstitutional.

The Robinson court required Louisiana to sort voters by race notwithstanding the fact that black voters

have an equal “ability to participate in the political

process.” 605 F. Supp. 3d at 849. Both sets of Appellants argue that a State may engage in race-based districting without offending the Constitution whenever

it reasonably believes the Gingles preconditions require it. And Louisiana, for its part, insists that when

a federal court orders an additional majority-minority

district, race cannot, by definition, predominate in the

resulting plan.

“It is vital” when intervening in “the legislative

process of apportionment” that courts “act only with

especially clear standards.” Rucho, 588 U.S. at 70304. These “must be ‘principled, rational, and based

upon reasoned distinctions’ found in the Constitution

or laws.” Id. at 718 (quoting Vieth v. Jubelirer,

541 U.S. 267, 296 (2004)). But if §2 requires some

race-based districting, rather than barring it, there is

no principled answer to the question “How much

[race] is too much?” Id. at 707. The standards of §2

liability employed by the Robinson courts and offered

by Appellants are anything but “manageable.” Id. at

696. If §2 means what the Robinson court thinks it

means, claims of vote dilution under §2 are not justiciable. Id. at 703.

22

Moreover, if these interpretations are right, then

there is “no end is in sight” to §2’s race-based demands, and §2 “must … be invalidated under the

Equal Protection Clause of the Fourteenth Amendment.” SFFA v. President & Fellows of Harvard Coll.,

600 U.S. 181, 213 (2023). Every racial classification by

the government is either unconstitutional or on its

way to that end. Those that are not outright prohibited are allowed only to the degree “necessary” “to further compelling governmental interests.” Id. at 207.

That is because even the race-based actions our Constitution permits are “dangerous,” Grutter v. Bollinger, 539 U.S. 306, 342 (2003), and “the deviation

from the norm of equal treatment”; as such, they must

be limited “in scope and duration.” City of Richmond

v. J.A. Croson Co., 488 U.S. 469, 498, 510 (1989) (plurality opinion).

Even if the VRA has required race-based districting since §2 was amended in 1982, in the intervening

decades, “things have changed dramatically” in the

South. Shelby County v. Holder, 570 U.S. 529, 547

(2013). “By any measure, the [Voting Rights] Act has

accomplished its original purposes with great success.” Petteway v. Galveston County, No. 23-40582,

2024 WL 3617145, at *12 (5th Cir. Aug. 1, 2024) (en

banc). For example, when the VRA was enacted, black

voter registration in Louisiana sat at a meager 31.6%

compared to a white registration rate of 80.5%—a 49%

gap. Shelby County, 570 U.S. at 546. As of 2004, that

gap had narrowed to just 4% (75.5% white to 71.1%

black). Id. And today, as recognized by the Robinson

court, there is “no evidence of Black voters being denied the right to vote” or “that past discrimination has

23

affected their ability to participate in the political process.” Robinson, 605 F. Supp. 3d at 847, 849.

Absent “particularized findings” that members of

the minority group are excluded from effective political participation, the “racial classifications” condoned

by the Robinson court and relied on by Appellants will

be “ageless in their reach into the past, and timeless

in their ability to affect the future.” Wygant v. Jackson

Bd. of Educ., 476 U.S. 267, 276 (1986). A so-called

“Senate Factors” expert will always be able to identity

at least some “race-based gaps … with respect to the

health, wealth, [or] well-being of American citizens.”

SFFA, 600 U.S. at 384 (Jackson, J., dissenting). This

will allow §2 to function as “an affirmative-action program” for race-based districting in perpetuity. Shaw

v. Hunt, 517 U.S. 899, 910 (1996).

But “this Court’s precedents make clear that” even

“narrowly tailored race-based affirmative action in

higher education” may not “extend indefinitely into

the future.” SFFA, 600 U.S. at 316 (Kavanaugh, J.,

concurring). Likewise, “even if Congress in 1982 could

constitutionally authorize race-based redistricting

under § 2 for some period of time, the authority to conduct race-based redistricting cannot extend indefinitely into the future.” Allen, 599 U.S. at 45

(Kavanaugh, J., concurring). If §2 allows courts to

“pick[] winners and losers based on the color of their

skin,” SFFA, 600 U.S. at 229, it is time to get out of

that business.

24

In sum, this Court should grant and affirm, clarifying that the meaning of §2 is married to its text. But

if the Court grants and reverses, it should reverse only

upon holding that §2 vote-dilution claims are nonjusticiable.

CONCLUSION

The Court should note probable jurisdiction.

Respectfully submitted,

STEVE MARSHALL

Attorney General

EDMUND G. LACOUR JR.

Solicitor General

Counsel of Record

SOREN GEIGER

Assistant Solicitor General

OFFICE OF ALA. ATT’Y GEN.

501 Washington Avenue

Montgomery, AL 36130

(334) 242-7300

Edmund.LaCour@

AlabamaAG.gov

September 3, 2024

(additional counsel listed below)

ADDITIONAL COUNSEL

CHRIS CARR

Attorney General

State of Georgia

MICHAEL T. HILGERS

Attorney General

State of Nebraska

RAÚL R. LABRADOR

Attorney General

State of Idaho

ALAN WILSON

Attorney General

State of South Carolina

THEODORE E. ROKITA

Attorney General

State of Indiana

JONATHAN SKRMETTI

Attorney General

State of Tennessee

BRENNA BIRD

Attorney General

State of Iowa

KEN PAXTON

Attorney General

State of Texas

LYNN FITCH

Attorney General

State of Mississippi

SEAN D. REYES

Attorney General

State of Utah

AUSTIN KNUDSEN

Attorney General

State of Montana

PATRICK MORRISEY

Attorney General

State of West Virginia