Amicus Curiae Brief — Louisiana, Appellant v. Phillip Callais, et al.
Supreme Court briefDec 23, 2024
Ask Donna
What actually matters in this document.
Text
Nos. 24-109 and 24-110
In the Supreme Court of the United States
STATE OF LOUISIANA, APPELLANT
v.
PHILLIP CALLAIS, ET AL.
PRESS ROBINSON, ET AL., APPELLANTS
v.
PHILLIP CALLAIS, ET AL.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF LOUISIANA
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
IN SUPPORT OF NEITHER PARTY
ELIZABETH B. PRELOGAR
Solicitor General
Counsel of Record
KRISTEN CLARKE
Assistant Attorney General
BRIAN H. FLETCHER
Deputy Solicitor General
CAROLINE A. FLYNN
Assistant to the Solicitor
General
TOVAH R. CALDERON
NOAH B. BOKAT-LINDELL
Attorneys
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
QUESTIONS PRESENTED
In 2024, Louisiana redrew its congressional districts
in response to court decisions finding that its prior map
likely violated Section 2 of the Voting Rights Act of
1965, 52 U.S.C. 10301. This case involves a claim that
one of the redrawn districts, Congressional District 6,
was racially gerrymandered in violation of the Equal
Protection Clause. This brief addresses the following
questions:
1. Whether a State’s intentional creation of a majorityminority district to comply with Section 2, without more,
establishes racial predominance and requires the State
to satisfy strict scrutiny.
2. Whether the district court erred in holding that
Louisiana’s use of race in drawing Congressional District 6 was not narrowly tailored to achieve the compelling interest of complying with Section 2.
(I)
TABLE OF CONTENTS
Page
Interest of the United States....................................................... 1
Statement:
A. Legal background ............................................................. 2
B. Louisiana’s 2022 redistricting process and the
Robinson Section 2 litigation ........................................... 4
C. Louisiana’s 2024 redistricting process ............................ 8
D. Proceedings below ........................................................... 10
Summary of argument ............................................................... 12
Argument..................................................................................... 15
A. This Court need not address predominance, but
if it reaches the issue it should reiterate that the
intentional creation of a majority-minority district
does not necessarily establish that race
predominated ................................................................... 16
B. This Court should vacate and remand because
the district court applied incorrect legal standards
in holding that CD6 failed strict scrutiny ..................... 22
1. A State need only have a strong basis in
evidence to conclude that Section 2 requires
a remedial district ..................................................... 22
2. The district court applied the wrong legal
framework ................................................................. 27
Conclusion ................................................................................... 33
TABLE OF AUTHORITIES
Cases:
Abbott v. Perez, 585 U.S. 579 (2018) ............. 19, 20, 22-25, 28
Abrams v. Johnson, 521 U.S. 74 (1997) ......................... 22, 24
Alabama Legislative Black Caucus v. Alabama,
575 U.S. 254 (2015) ................................................... 4, 25, 31
Alexander v. South Carolina State Conference
of the NAACP, 602 U.S. 1 (2024) .............. 2-4, 12, 13, 17, 19
Allen v. Milligan, 599 U.S. 1 (2023) ...........2, 3, 13, 20, 23, 26
(III)
IV
Cases—Continued:
Page
Ardoin v. Robinson:
142 S. Ct. 2892 (2022) ........................................................ 7
143 S. Ct. 2654 (2023) ........................................................ 7
Bethune-Hill v. Virginia State Bd. of Elections,
580 U.S. 178 (2017)................................... 4, 19, 25, 28, 29, 31
Bush v. Vera, 517 U.S. 952 (1996) ..... 15, 18-20, 25, 26, 31, 33
Connor v. Finch, 431 U.S. 407 (1977) .................................. 24
Cooper v. Harris,
581 U.S. 285 (2017)............. 3, 4, 13, 15, 17, 22, 23, 25, 27, 31
Lawyer v. Department of Justice,
521 U.S. 567 (1997).............................................................. 24
League of United Latin Am. Citizens v. Perry,
548 U.S. 399 (2006)............................................ 14, 23, 26, 32
Miller v. Johnson,
515 U.S. 900 (1995)........................... 16, 17, 20, 21, 23, 24, 30
Perry v. Perez, 565 U.S. 388 (2012) ...................................... 24
Purcell v. Gonzalez, 549 U.S. 1 (2006) ................................. 12
Robinson v. Ardoin:
86 F.4th 574 (5th Cir. 2023) .........................7, 8, 24, 28, 30
37 F.4th 208 (5th Cir. 2022) .............................................. 6
605 F. Supp. 3d 759 (M.D. La. 2022) .......... 5, 6, 8, 20, 24,
28, 30
Shaw v. Hunt, 517 U.S. 899 (1996) ..... 3, 16, 20, 25, 26, 30-32
Shaw v. Reno, 509 U.S. 630 (1993) ................................... 3, 19
Thornburg v. Gingles, 478 U.S. 30 (1986) ................... 2, 3, 27
White v. Weiser, 412 U.S. 783 (1973) ................................... 24
Wisconsin Legislature v. Wisconsin Elections
Comm’n, 595 U.S. 398 (2022) ........................... 23, 28, 29, 31
Wise v. Lipscomb, 437 U.S. 535 (1978) ................................ 24
V
Constitution and statutes:
Page
U.S. Const.:
Art. III ........................................................................ 13, 30
Amend. XIV (Equal Protection Clause) ....2, 3, 19, 23, 25
Amend. XV ....................................................................... 23
Voting Rights Act of 1965, Pub. L. No. 89-110,
79 Stat. 437 (52 U.S.C. 10301).............................................. 1
§ 2, 79 Stat. 437 ................................... 1-7, 12-16, 18, 20-32
52 U.S.C. 10301(b) ............................................................. 2
52 U.S.C. 10308(d) ............................................................. 1
In the Supreme Court of the United States
No. 24-109
STATE OF LOUISIANA, APPELLANT
v.
PHILLIP CALLAIS, ET AL.
No. 24-110
PRESS ROBINSON, ET AL., APPELLANTS
v.
PHILLIP CALLAIS, ET AL.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF LOUISIANA
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
IN SUPPORT OF NEITHER PARTY
INTEREST OF THE UNITED STATES
This case is a challenge to the constitutionality of a
redistricting plan Louisiana adopted in response to
court decisions finding a likely violation of Section 2 of
the Voting Rights Act of 1965 (VRA), Pub. L. No. 89110, 79 Stat. 437 (52 U.S.C. 10301). The Department of
Justice enforces Section 2. 52 U.S.C. 10308(d). The
United States thus has a significant interest in the interpretation and application of the relevant constitutional and statutory provisions. In particular, the
United States has an interest in ensuring that States
(1)
2
have latitude to adopt districts that comply with both
Section 2 and the Equal Protection Clause.
STATEMENT
A. Legal Background
Redistricting is “a traditional domain of state legislative authority” that is subject to federal statutory and
constitutional requirements. Alexander v. South Carolina State Conference of the NAACP, 602 U.S. 1, 7 (2024).
This case concerns the requirements governing the consideration of race in districting.
1. Section 2 of the VRA prohibits districting plans
that “render[] a minority vote unequal to a vote by a
nonminority voter.” Allen v. Milligan, 599 U.S. 1, 25
(2023). Specifically, Section 2 bars voting practices that
result in members of a racial minority group “hav[ing]
less opportunity than other members of the electorate
to participate in the political process and to elect representatives of their choice.” 52 U.S.C. 10301(b).
In Thornburg v. Gingles, 478 U.S. 30 (1986), this
Court identified three “preconditions” for a claim alleging that a districting scheme violates Section 2. Id. at
50. First, the relevant minority group must be “sufficiently large and geographically compact to constitute
a majority in a single-member district.” Ibid. That typically requires plaintiffs to produce “illustrative maps”
showing that an additional majority-minority district
could be drawn while “comport[ing] with traditional districting criteria.” Allen, 599 U.S. at 20. Second, the minority group must be “politically cohesive.” Gingles,
478 U.S. at 51. Third, the “majority” must “vote[] sufficiently as a bloc” to allow it “usually to defeat the minority’s preferred candidate.” Ibid. If those preconditions are satisfied, the court must then determine
whether, in “the totality of the circumstances,” the dis-
3
tricting scheme leaves minority voters with “less opportunity than white voters to elect representatives of their
choice.” Id. at 80.
The usual remedy for a Section 2 violation is “drawing a majority-minority district.” Cooper v. Harris, 581
U.S. 285, 302 (2017); see Allen, 599 U.S. at 41. But that
does not mean a State must adopt one of the illustrative
districts the plaintiffs used to satisfy the first Gingles
precondition. To the contrary, “States retain broad discretion in drawing districts to comply with the mandate
of § 2,” Shaw v. Hunt, 517 U.S. 899, 917 n.9 (1996) (Shaw
II ), and a legislature is free to craft a remedial map that
cures the violation while also navigating other interests
implicated by the “inescapably political enterprise” of
districting, Alexander, 602 U.S. at 6.
2. The Equal Protection Clause of the Fourteenth
Amendment prohibits racial gerrymandering—that is,
the unjustified, predominant use of race in drawing districts. Shaw v. Reno, 509 U.S. 630, 642 (1993) (Shaw I ).
“But given ‘the complex interplay of forces that enter a
legislature’s redistricting calculus,’ ” this Court has “repeatedly emphasized that federal courts must ‘exercise
extraordinary caution in adjudicating claims that a
State has drawn district lines on the basis of race.’ ” Alexander, 602 U.S. at 7 (citation omitted).
A plaintiff bringing a racial-gerrymandering claim
accordingly must prove that race was the “dominant
and controlling” consideration in a legislature’s decision
“to place a significant number of voters within or without a particular district.” Shaw II, 517 U.S. at 905 (citation omitted). “To make that showing, a plaintiff must
prove that the State ‘subordinated’ race-neutral districting criteria” to “ ‘racial considerations.’ ” Alexander, 602 U.S. at 7 (citation omitted). If the plaintiff can
4
meet that high bar, the burden shifts to the State to
prove that its map “furthers a compelling governmental
interest” and is “ ‘narrowly tailored’ ” to achieve that interest. Ibid.
“This Court has long assumed that one compelling
interest is complying with operative provisions of the
[VRA],” including Section 2. Cooper, 581 U.S. at 292.
When a State invokes Section 2 to justify the predominant use of race in districting, however, it is not required to prove that Section 2 actually required the districts it drew. Instead, a State satisfies the “ narrow tailoring requirement” if it has “a ‘strong basis in evidence’
in support of the (race-based) choice that it has made.”
Alabama Legislative Black Caucus v. Alabama, 575
U.S. 254, 278 (2015) (ALBC ) (citation omitted). That
standard “gives States ‘breathing room’ to adopt reasonable compliance measures that may prove, in perfect
hindsight, not to have been needed.” Cooper, 581 U.S.
at 293 (quoting Bethune-Hill v. Virginia State Bd. of
Elections, 580 U.S. 178, 196 (2017)).
B. Louisiana’s 2022 Redistricting Process And The Robinson Section 2 Litigation
This case arose from Louisiana’s attempt to redraw
its congressional districts after a district court and the
Fifth Circuit held that Louisiana’s original plan likely
violated Section 2.
1. After the 2020 Census, Louisiana had to redraw
its six districts for the United States House of Representatives. J.S. App. 5a-6a.1 In March 2022, the Louisiana legislature enacted House Bill 1 (HB1). Id. at 6a.
HB1 contained only one majority-Black district, ConExcept as otherwise noted, references to “J.S. App.” refer to the
appendix in No. 24-109.
1
5
gressional District 2 (CD2), which encompassed New
Orleans and extended west and north to reach parts of
Baton Rouge. Id. at 7a; see J.A. 345 (HB1 map). Governor John Bel Edwards vetoed HB1, but the legislature overrode the veto. J.S. App. 7a.
2. Two sets of plaintiffs sued Louisiana’s Secretary
of State in the United States District Court for the Middle District of Louisiana. Robinson v. Ardoin, 605
F. Supp. 3d 759, 768 (M.D. La. 2022) (Robinson I ). The
plaintiffs alleged that HB1 violated Section 2 by “packing” some Black voters into CD2 while “cracking” others throughout the other five districts. Id. at 771. After
a five-day evidentiary hearing, the Robinson district
court granted the plaintiffs’ motion for a preliminary injunction barring the use of HB1 in the 2022 congressional election. Id. at 766, 769. In a detailed opinion,
the court held that the plaintiffs were likely to prevail
on their Section 2 claim and that the other preliminaryinjunction factors were met. Id. at 766-858.
With respect to the first Gingles precondition, the
Robinson district court found that the plaintiffs were
likely to succeed in proving that Black voters could constitute a majority in a second reasonably configured district. Robinson I, 605 F. Supp. 3d at 820-821; see id. at
778-797, 820-839. The court explained that the plaintiffs
had “put forth several illustrative maps which show that
two congressional districts with a [Black voting age
population (BVAP)] of greater than 50% are easily
achieved.” Id. at 821; see id. at 779-780, 785 (maps). The
court found that the illustrative maps outperformed
HB1 across multiple measures of compactness; better
respected political subdivisions; preserved communities
of interest; and avoided incumbent pairing. Id. at 827831. With respect to the second and third Gingles pre-
6
conditions, the court found that Black voters in Louisiana voted cohesively but were consistently overridden
by white-bloc voting. Id. at 797-806, 839-844. And the
court further found that under the totality of the circumstances, HB1 denied Black voters a meaningful opportunity to elect their candidates of choice. Id. at 807815, 844-851.
In response to the State’s argument that the Robinson plaintiffs’ illustrative maps were the product of racial gerrymandering, the district court found that “the
record does not support a finding that race predominated in the illustrative map-making.” Robinson I, 605
F. Supp. 3d at 838. The court explained that if the plaintiffs’ experts had “engaged in race-predominant map
drawing,” the resulting maps “would surely betray this
imbalanced approach by being significantly less compact, by disregarding communities of interest, or some
other flaw”—yet the illustrative maps “outperformed
the enacted plan on every relevant criteria.” Id. at 839.
Finally, the district court concluded that “[t]he appropriate remedy” for the Section 2 violation was “an
additional majority-Black congressional district.” Robinson I, 605 F. Supp. 3d at 766. In light of this Court’s
“instruct[ion]” that state legislatures “should have the
first opportunity” to choose a remedial plan, ibid., the
district court gave the Louisiana legislature a window
to enact “a new map that is compliant with Section 2,”
while noting that the court would have to impose its own
map if the legislature failed to act. Id. at 858; see id. at
852, 856-858.
3. The Robinson district court and the Fifth Circuit
declined to stay the injunction pending appeal. Robinson v. Ardoin, 37 F.4th 208, 215 (5th Cir. 2022) (per curiam) (Robinson II); see id. at 216-227 (finding that the
7
State was unlikely to succeed on appeal). This Court
then stayed the injunction, granted a writ of certiorari
before judgment, and held the case in abeyance pending
the Court’s decision in Allen, a similar Section 2 case
from Alabama. Ardoin v. Robinson, 142 S. Ct. 2892
(2022). But after issuing its decision in Allen, the Court
dismissed the writ as improvidently granted and returned the case to the Fifth Circuit. Ardoin v. Robinson, 143 S. Ct. 2654 (2023).
4. The Fifth Circuit unanimously upheld the district
court’s conclusion that the Robinson plaintiffs were
“likely to succeed on their claim that there was a violation of Section 2.” Robinson v. Ardoin, 86 F.4th 574,
583 (2023) (Robinson III ). The Fifth Circuit examined
the Gingles preconditions and the totality of the circumstances, finding no legal errors and no basis for disturbing the district court’s factual findings at either stage.
Id. at 589-599. In particular, the Fifth Circuit upheld
the district court’s finding that race did not predominate in the drawing of the Robinson plaintiffs’ illustrative maps, concluding that the plaintiffs’ experts considered the goal of creating a second majority-minority
district “alongside and subordinate to the other raceneutral traditional redistricting criteria.” Id. at 595.
The Fifth Circuit thus held that the preliminary injunction “was valid when it was issued.” Robinson III,
86 F.4th at 599. But because the 2022 election had
passed, the Fifth Circuit vacated the injunction and remanded with instructions to pause proceedings until
mid-January 2024 to allow the legislature to “create
new districts.” Id. at 600-601. The Fifth Circuit instructed that if the legislature failed to do so, the district court should proceed to a trial and (if necessary)
8
“adopt a different districting plan for the 2024 elections.” Id. at 602.
C. Louisiana’s 2024 Redistricting Process
On January 8, 2024, Governor Jeff Landry called the
Louisiana legislature into a special session to adopt a
new map. J.S. App. 11a. He explained that the State
“ha[d] labored with this issue for far too long” and
urged lawmakers to “heed the instructions of the
court,” while emphasizing the importance of the legislature, rather than “a non-elected judge,” holding “the
pen” on redistricting. Id. at 11a-12a (citation omitted).
During the special session, legislators repeatedly
recognized that they needed to draw “two [majorityminority] districts” to “comply with the order of both
the Fifth Circuit Court of Appeals and the district court.”
24-110 J.S. App. 176a (citation omitted); see, e.g., id. at
177a, 497a, 541a. In the words of Senator Glen Womack,
who sponsored the redistricting bill that ultimately
passed, the Robinson court “said, ‘Draw a map, or I’ll
draw a map.’ * * * So that’s what we’ve done.” Id. at
457a.
At the same time, legislators sought to achieve political goals, including protecting favored incumbents.
The legislature accordingly rejected a proposal, Senate
Bill 4 (SB4), that closely tracked the Robinson plaintiffs’ illustrative maps by drawing a new majority-Black
district that linked Baton Rouge with the Delta parishes
along the Mississippi River to the north. See Robinson I, 605 F. Supp. 3d at 779, 785 (illustrative maps);
24-110 J.S. App. 677a (SB4 map); Stay Appl. App. 10731076, Robinson v. Callais (No. 23A994) (letter from the
Robinson plaintiffs endorsing SB4). Such a map would
have placed Republican Congresswoman Julia Letlow,
who lives in the northeast corner of the State, in the new
9
majority-Black district. J.S. App. 115a (Stewart, J., dissenting). The governor and the Republican majority in
the legislature sought to avoid that outcome and supported a different proposal (SB8) that created a second
majority-Black district while preserving safe seats for
Congresswoman Letlow, House Speaker Mike Johnson,
and House Majority Leader Steve Scalise. Id. at 20a22a, 40a; id. at 108a-118a (Stewart, J., dissenting); see,
e.g., 24-110 J.S. App. 43a, 393a, 456a, 458a.
Under the final version of SB8, as under the original
2022 map, one majority-Black district, CD2, is centered
around New Orleans. 24-110 J.S. App. 394a; see J.S.
App. 7a, 16a. The new majority-Black district, CD6, incorporates the same core as the Robinson plaintiffs’ illustrative districts. Like those districts, CD6 starts in
East Baton Rouge and includes St. Landry, Pointe Coupee, and West Baton Rouge Parishes, as well as part of
Avoyelles Parish and part of the cities of Alexandria and
Lafayette. 24-110 J.S. App. 314a (SB8 map). But rather
than turning north to follow the Mississippi River, CD6
continues northwest up the Interstate 49 corridor
through Natchitoches and parts of DeSoto and Caddo
Parishes to Shreveport. Ibid.; see id. at 394a.
Senator Womack explained that SB8 was “a different
map than the plaintiffs in the [Robinson] litigation have
proposed,” but that it was “the only map” that “accomplished the political goals [he] believe[d] are important
for [his] district, for Louisiana, and for [his] country.”
24-110 J.S. App. 394a. Or as Senator Womack summed
it up later: “[ W ]e all know why we’re here. We were
ordered to—to draw a new Black district, and that’s what
I’ve done. At the same time, I tried to protect Speaker
Johnson, Minority Leader Scalise, and my representative, Congresswoman Letlow.” Id. at 531a-532a. The
10
legislature passed SB8 and Governor Landry signed the
map into law. J.S. App. 15a.
D. Proceedings Below
1. Appellees are “non-Black voter[s]” who reside in
each of Louisiana’s congressional districts. J.S. App.
17a (citation omitted). Appellees sued Louisiana’s Secretary of State, alleging that CD6 is an unconstitutional
racial gerrymander. Id. at 18a. The State and one set
of the plaintiffs from the Robinson litigation intervened
as defendants. Id. at 17a-18a. A three-judge district
court consolidated a preliminary-injunction hearing
with an expedited trial on the merits. Id. at 19a. Then,
in a divided decision, the court entered judgment for appellees and enjoined the use of SB8. Id. at 1a-146a.
a. The majority first held that race predominated in
the drawing of CD6. J.S. App. 39a-51a. It concluded
that CD6 “only encompasses the parts of [several] cities
that are inhabited by majority-Black voting populations, while excluding neighboring non-minority voting
populations.” Id. at 41a. The majority also relied on a
“heat map” showing concentrations of Black voters,
which it considered to be strong circumstantial evidence
that CD6 was drawn to “collect” Black voters. Id. at
44a. In addition, the majority relied on what it deemed
to be direct evidence of racial predominance. Id. at 46a50a. The majority acknowledged that it was “clear” and
“undisputed” that “political considerations—the protection of incumbents—played a role in how District 6 was
drawn.” Id. at 40a. But the majority concluded that
race played a “qualitatively” larger role. Id. at 49a (citation omitted).
b. The majority next held that CD6 could not survive
strict scrutiny. J.S. App. 51a-66a. It acknowledged that
when a State seeks to comply with the VRA, the narrow-
11
tailoring requirement demands only that the State have
“good reasons” to believe that compliance requires drawing race-based lines. Id. at 51a (citation omitted). But
the majority concluded that the State’s compelling interest in VRA compliance “does not support the creation of a district that does not comply with the factors
set forth in Gingles or traditional districting principles.” Id. at 53a.
Proceeding from that premise, the majority asked
whether CD6 satisfied the Gingles preconditions. J.S.
App. 54a-66a. Without acknowledging the Gingles analysis in the Robinson decisions, the majority determined
that the first Gingles precondition was absent because,
in its view, the State’s Black population was “dispersed”
“outside of southeast Louisiana,” id. at 58a, and CD6
did not sufficiently comply with traditional districting
principles such as compactness and respect for political
subdivisions, id. at 58a-66a.
c. Judge Stewart dissented. J.S. App. 69a-146a. He
would have found that race did not predominate in the
drawing of CD6, and he argued that the circumstantial
evidence on which the majority relied in finding predominance failed to account for the legislature’s nonracial political considerations. Id. at 78a-106a. Judge
Stewart also criticized the majority for “disregard[ing]”
direct evidence that the legislature’s political objectives
were the dominant consideration in determining CD6’s
ultimate shape. Id. at 106a; see id. at 108a-119a.
In the alternative, Judge Stewart would have held
that CD6 satisfies strict scrutiny. J.S. App. 131a-145a.
In his view, the Robinson decisions gave the State a
“strong basis in evidence” to believe that it was required
to draw a second majority-Black district. Id. at 136a.
Judge Stewart thus criticized the majority for running
12
its own Gingles analysis. Id. at 134a-138a; see id. at
142a-143a. Finally, Judge Stewart argued that CD6
“reasonably remedies” the Section 2 violation that the
Robinson courts had identified. Id. at 143a-145a.
2. In May 2024, this Court stayed the district court’s
injunction. 144 S. Ct. 1171 (citing Purcell v. Gonzalez,
549 U.S. 1 (2006) (per curiam)). As a result, the SB8
map was used for Louisiana’s 2024 congressional elections.
SUMMARY OF ARGUMENT
The analysis of a racial-gerrymandering claim has
two steps: The plaintiffs bear the burden to show that
race predominated in the drawing of district lines, and
the State must then establish that its use of race was
narrowly tailored to serve a compelling interest such as
compliance with Section 2 of the VRA. Here, this Court
need not decide whether the district court was correct
to find predominance because the court applied the
wrong legal framework at the second step.
A. The predominance standard requires plaintiffs to
show that race was the “predominant factor motivating
the legislature’s decision to place a significant number
of voters within or without a particular district.” Alexander v. South Carolina State Conference of the NAACP,
602 U.S. 1, 7 (2024) (citation omitted). The parties hotly
dispute how to apply that familiar standard to the unusual circumstances presented here. But rather than resolve that case-specific question, the Court should bypass the predominance inquiry and vacate the decision
below based on the district court’s failure to apply the
proper narrow-tailoring framework.
We do not take a position on the parties’ predominance dispute. But if the Court addresses that issue, it
should reiterate that a legislature’s intent to create a
13
majority-minority district does not by itself establish
racial predominance and is instead a “factor” to be considered “as part of ‘a holistic analysis.’ ” Allen v. Milligan, 599 U.S. 1, 32 (2023) (plurality opinion) (brackets
and citation omitted). That recognition is consistent
with the nature of the predominance inquiry, which demands a showing not just that the State pursued a raceconscious goal but that it did so by “subordinat[ing]”
race-neutral considerations. Alexander, 602 U.S. at 7
(citation omitted). Subjecting every attempt to create
or preserve a majority-minority district to strict scrutiny would impede VRA compliance, intrude on States’
traditional authority over districting, and inject the federal courts into even more redistricting disputes.
B. The district court adopted an improper approach
to strict scrutiny. The court correctly proceeded on the
understanding that Louisiana had a compelling interest
in complying with Section 2. But in addressing narrow
tailoring, the court ignored the Robinson courts’ VRA
determinations and instead required the State to show
that its chosen remedial district could have satisfied the
first Gingles precondition if the district had been used
as an illustrative map by a Section 2 plaintiff. That was
error.
At the outset, the narrow-tailoring standard does not
require a State to prove that Section 2 actually required
it to draw the challenged remedial district. Instead, a
State need only have “a strong basis in evidence” or
“good reasons” to believe that the VRA required its action. Cooper v. Harris, 581 U.S. 285, 292-293 (2017) (citation omitted). At least absent unusual circumstances,
a finding of likely Section 2 liability by an Article III
court will give a State good reason to believe that remedial action is necessary. And that standard was unques-
14
tionably satisfied here: The Robinson district court engaged in an exhaustive Section 2 analysis; the Fifth Circuit unanimously upheld the district court’s conclusions;
and the district court was poised to hold a trial and impose its own remedial map if the State had not taken the
opportunity to draw a new majority-minority district
before the 2024 election.
CD6 as ultimately enacted was different from—and
less compact than—the majority-minority districts in
the illustrative maps on which the Robinson courts relied in finding a likely Section 2 violation. But a State is
not required to adopt the map put forward by private
plaintiffs, nor the one that a court might have imposed.
Legislatures have broad authority to balance the many
competing considerations implicated by districting, and
they must have reasonable latitude to comply with Section 2 while also achieving their other legitimate goals.
The district court thus erred in requiring the State to
show that its chosen remedial district satisfied the Gingles preconditions.
Instead, the district court should have asked whether
CD6 as drawn “substantially addresses the § 2 violation” identified in Robinson. League of United Latin
Am. Citizens v. Perry, 548 U.S. 399, 431 (2006) (citation
omitted). This Court has made clear that a legislature
cannot remedy a Section 2 violation by drawing a
majority-minority district in an entirely different part
of the State or a district that includes only a small fraction of the voters whose votes were unlawfully diluted
under the prior plan. Ibid. But a remedial district is
sufficiently tailored if it substantially addresses a Section 2 violation and does not “subordinate traditional
districting principles to race substantially more than is
15
‘reasonably necessary.’ ” Bush v. Vera, 517 U.S. 952,
979 (1996) (plurality opinion).
Because the district court failed to apply that framework here, this Court should follow its usual practice
and remand to allow the district court to apply the correct standard in the first instance. We note, though,
that appellants’ briefs highlight record evidence suggesting that the State may well be able to carry its burden. Appellants explain, for example, that CD6 shares
the same core parishes as the Robinson illustrative districts and encompasses a substantial majority of the
Black voters who were found to have a Section 2 right.
There thus appears to be a far greater degree of overlap
than in prior cases where the Court has rejected remedial districts for not substantially addressing a potential
Section 2 violation.
ARGUMENT
This Court has previously considered equal-protection challenges to majority-minority districts that
States asserted were drawn to comply with the VRA.
The framework for assessing those challenges is now
well-settled: The plaintiffs bear the burden of demonstrating that race was the “predominant factor motivating the legislature’s decision to place a significant number of voters within or without a particular district.”
Cooper v. Harris, 581 U.S. 285, 291 (2017) (citation
omitted). If the plaintiffs carry that burden, strict scrutiny requires the State to “establish that it had ‘good
reasons’ to think that it would transgress the [VRA] if
it did not draw race-based district lines.” Id. at 293 (citation omitted).
This case is the Court’s first occasion to consider a
challenge to a district adopted based not on a State’s
own view about what Section 2 requires, but instead on
16
court orders finding a likely violation of the statute. At
least absent unusual circumstances, such judicial findings give a State good reasons to conclude that it had to
draw a majority-minority district to comply with the
VRA. Accordingly, the most straightforward way to resolve a case in this posture will often be to bypass the
sensitive, fact-intensive predominance inquiry and instead simply ask whether the State’s chosen remedial
district “substantially addresses the § 2 violation” identified in previous VRA litigation. Shaw v. Hunt, 517
U.S. 899, 918 (1996).
Rather than following that approach here, the district court first held that race predominated in the Louisiana legislature’s drawing of CD6 and then, at the
strict-scrutiny stage, conducted its own analysis of
whether the State’s chosen remedial district satisfied
the Gingles preconditions. In doing so, the district
court did not meaningfully consider the findings and orders of the Robinson courts in the prior Section 2 litigation. That approach to strict scrutiny was erroneous,
and this Court should therefore vacate and remand to
allow the district court to apply the correct legal standard in the first instance.
A. This Court Need Not Address Predominance, But If
It Reaches The Issue It Should Reiterate That The Intentional Creation Of A Majority-Minority District
Does Not Necessarily Establish That Race Predominated
1. “It is well settled that ‘reapportionment is primarily the duty and responsibility of the State.’ ” Miller
v. Johnson, 515 U.S. 900, 915 (1995) (citation omitted).
“Electoral districting is a most difficult subject for legislatures,” and this Court has thus emphasized that
“States must have discretion to exercise the political
17
judgment necessary to balance competing interests.”
Ibid. In light of those sensitivities, the Court has required plaintiffs bringing racial-gerrymandering claims
to satisfy the predominance standard in order to “untangle race from other permissible considerations” in
the districting process. Alexander v. South Carolina
State Conference of the NAACP, 602 U.S. 1, 7 (2024).
In defining what constitutes predominance, this Court
has emphasized that although legislatures will “almost
always be aware of racial demographics,” it “does not
follow that race predominates” merely because the
State engaged in race-conscious districting. Miller, 515
U.S. at 916. Instead, the inquiry is necessarily comparative: The question is whether “race” rather than “other
districting principles” was “the legislature’s dominant
and controlling rationale in drawing its district lines.”
Id. at 913. In other words, the plaintiffs must prove that
“the legislature ‘subordinated’ other factors”—such as
“compactness,” “respect for political subdivisions,” and
“partisan advantage”—“to ‘racial considerations.’ ”
Cooper, 581 U.S. at 291 (citation omitted).
The predominance standard “has a very substantial
legal component” defined by this Court’s precedents.
Alexander, 602 U.S. at 19. But the ultimate question
whether race predominated in the drawing of a particular district is a “finding[] of fact” reviewable only
for clear error. Cooper, 581 U.S. at 293. Accordingly,
although this Court “of course retain[s] full power to
correct a court’s errors of law,” ibid., it may not overturn a predominance finding unless the district court
applied an incorrect legal standard or this Court is “left
with the definite and firm conviction that a mistake has
been committed,” id. at 309 (citation omitted).
18
2. In this case, the district court acknowledged that
“[r]ace consciousness, on its own, does not make a district an unconstitutional racial gerrymander.” J.S. App.
39a. The court likewise observed that “districts may be
drawn for remedial purposes.” Ibid. And in finding that
race predominated in the drawing of CD6, the court relied on circumstantial evidence about the shape, geography, and demographics of the district, id. at 40a-46a,
to find that CD6 was designed to “collect” high-BVAP
areas in several municipalities, id. at 44a-45a. The court
thus concluded that the predominant role of race “is reflected in,” among other things, “the division of cities
and parishes along racial lines, the unusual shape of
[CD6], and the evidence that the contours of the district
were drawn to absorb sufficient numbers of Blackmajority neighborhoods.” Id. at 49a-50a.
Appellants contest the district court’s predominance
finding. The State argues (Br. 35-37) that the legislature’s undisputed “political imperatives,” 24-110 J.S.
App. 394a, were the dominant and controlling reasons
that led the legislature to reject the more compact maps
identified in the Robinson litigation in favor of CD6 as
ultimately drawn. The Robinson appellants similarly
argue (Br. 29-36) that specific lines in CD6 were the
product of the legislature’s political goals, not its effort
to comply with Section 2. Cf. Bush v. Vera, 517 U.S.
952, 967-968 (1996) (plurality opinion) (“In some circumstances, incumbency protection might explain as well as,
or better than, race a State’s decision to depart from
other traditional districting principles, such as compactness, in the drawing of bizarre district lines.”).
Resolving those disputes would require this Court to
make case-specific pronouncements and review factintensive determinations about the legislature’s reasons
19
for drawing particular district lines. Other racialgerrymandering challenges may require the Court to
undertake such inquiries, but this one does not. Whatever the merits of the district court’s predominance finding
—a question we do not address—the court’s separate
determination that CD6 fails strict scrutiny was predicated on the application of the wrong legal standards.
See pp. 22-33, infra. This Court may therefore bypass
predominance, focus on the district court’s holding that
CD6 flunks strict scrutiny, and vacate the decision below based on the court’s failure to apply the correct legal framework. Such a ruling would likely provide
greater clarity to States and courts navigating the
“competing hazards of liability” of the VRA and the
Equal Protection Clause, Abbott v. Perez, 585 U.S. 579,
587 (2018) (citation omitted), than a case-specific holding about whether race predominated under the particular (and unusual) circumstances presented here.
3. If the Court reaches the predominance issue,
however, it should reiterate that the mere intentional
creation of a majority-minority district, without more,
does not establish racial predominance. “[R]ace consciousness does not lead inevitably to impermissible
race discrimination.” Shaw v. Reno, 509 U.S. 630, 646
(1993); see Alexander, 602 U.S. at 19 n.6. In Vera, a
plurality of this Court thus explained that “[s]trict
scrutiny does not apply” to “all cases of intentional
creation of majority-minority districts.” 517 U.S. at 958.
In Bethune-Hill v. Virginia State Board of Elections,
580 U.S. 178 (2017), this Court was “unwilling to conclude that a State’s maps were produced in a racially
predominant manner” even though the legislature used
an express BVAP target; the Court instead remanded
for a “ ‘holistic analysis’ ” of predominance that could take
20
account of all considerations in addition to that target.
Allen v. Milligan, 599 U.S. 1, 32 (2023) (plurality opinion) (describing and quoting Bethune-Hill, 580 U.S. at
192-193). And just two Terms ago, in Allen, a plurality
rejected the argument that race necessarily predominated in illustrative maps drawn by an expert in a Section 2 case, even though the expert set out to draw
majority-minority districts. 599 U.S. at 30-33.
Thus, even though Section 2 compliance “demands
consideration of race,” Abbott, 585 U.S. at 587, the relevant line for equal-protection purposes is “between consciousness and predominance,” Allen, 599 U.S. at 33
(plurality opinion). The question is whether the need to
draw a majority-minority district is the legislature’s
“dominant and controlling rationale” in choosing the
boundaries it actually selects. Miller, 515 U.S. at 913;
see Shaw II, 517 U.S. at 905. For instance, a racial target may be probative of predominance where the target
highly constrains the legislature’s options. By contrast,
a racial threshold is less probative where it is not particularly constraining and is consequently less likely to
dictate the legislature’s specific line-drawing choices.
And a State’s effort to comply with Section 2 by creating
a majority-minority district does not constitute racial
predominance if the State relies on multiple criteria and
race does not overwhelm the line-selection process. Cf.
Robinson v. Ardoin, 605 F. Supp. 3d 759, 838-839 (M.D.
La. 2022) (finding that race did not predominate in the
creation of the Robinson plaintiffs’ illustrative maps, in
part because they outperformed the State’s original
map across multiple redistricting criteria).
That understanding reflects a longstanding position
of the United States that is important to preserving
States’ latitude to comply with the VRA while maintain-
21
ing their traditional authority over districting. As the
United States has explained, “[i]f every attempt” to
“avoid dilution under Section 2” or “otherwise to draw
majority-minority districts triggered strict scrutiny,
federal courts could become overly involved in redistricting, ‘representing a serious intrusion on the most
vital of local functions.’ ” U.S. Amicus Br. at 23, Virginia House of Delegates v. Bethune-Hill, 587 U.S. 658
(2019) (No. 18-281) (quoting Miller, 515 U.S. at 915)
(brackets omitted); see, e.g., U.S. Amicus Br. at 12,
Easley v. Cromartie, 532 U.S. 234 (2001) (No. 99-1864).
Courts hearing racial-gerrymandering challenges to
districts adopted to comply with Section 2 must therefore carefully evaluate the degree to which a racial
threshold actually dictated the legislature’s line-drawing
choices, rather than automatically equate the creation
of a majority-minority district with predominance.
Here, the district court’s predominance analysis relied on more than the mere fact that the Louisiana legislature sought to create a second majority-Black district. See p. 18, supra. Some statements in the opinion,
however, could be read to conflate the desire to create
a majority-minority district with racial predominance.
See J.S. App. 84a, 107a (Stewart, J., dissenting); Robinson Br. 26-29. The court emphasized, for example, legislators’ statements acknowledging the importance of
complying with the Robinson courts’ orders. J.S. App.
46a-48a. The court noted that the legislature “first
made the decision to create a majority-Black district”
before considering political goals. Id. at 49a. And the
court further reasoned that if the Republican-controlled
legislature had truly been motivated by political objectives, it would not have created a second majority-Black
district at all—effectively treating evidence of the leg-
22
islature’s VRA-compliance motivation as akin to a
smoking gun. Id. at 49a n.10; see id. at 50a (noting that
“the Legislature’s decision to increase the BVAP of District 6 to over 50 percent was not required to protect
incumbents”). To the extent this Court addresses the
predominance issue, it should make clear that more is
required to establish that a State subordinated other
considerations to race.
B. This Court Should Vacate And Remand Because The
District Court Applied Incorrect Legal Standards In
Holding That CD6 Failed Strict Scrutiny
In holding that CD6 failed strict scrutiny, the district
court committed significant legal errors. At the outset,
the court neglected to recognize that the Robinson
courts’ decisions gave the State a strong basis in evidence for concluding that it had to draw an additional
majority-Black district anchored in East Baton Rouge.
And as a result of that error, the court committed another: It subjected CD6 to a new Gingles analysis rather than asking whether the district substantially addressed the Section 2 violation that the Robinson courts
had already found.
1. A State need only have a strong basis in evidence to
conclude that Section 2 requires a remedial district
a. At the second step of the racial-gerrymandering
analysis, the burden shifts to the State to prove that its
use of race is narrowly tailored to serve a compelling
state interest. See Cooper, 581 U.S. at 292. “This Court
has long assumed that one compelling interest is complying with operative provisions of the [VRA].” Ibid.;
see, e.g., Abbott, 585 U.S. at 587; Abrams v. Johnson,
521 U.S. 74, 91 (1997). This case has been litigated on
23
the same assumption, and no party asks this Court to
revisit it.2
Based on that settled understanding, this Court’s
“precedents hold that a State can satisfy strict scrutiny
if it proves that its race-based sorting of voters is narrowly tailored to comply with the VRA.” Wisconsin
Legislature v. Wisconsin Elections Comm’n, 595 U.S.
398, 401 (2022) (per curiam). Narrow tailoring, in turn,
requires the State to demonstrate that it had “ ‘a strong
basis in evidence’ ” or “ ‘good reasons’ ” for “concluding
that the [VRA] required its action.” Cooper, 581 U.S. at
292 (citations omitted).
b. Although this Court has applied that standard in
several cases where a State invoked the VRA as a defense to an equal-protection claim, the Court has not yet
confronted a case where, as here, a State faces active
Section 2 litigation and courts have concluded that Section 2 likely requires an additional majority-minority
district. In applying strict scrutiny in such circumstances, three principles from this Court’s decisions are
especially salient.
First, this Court has long been emphatic that “reapportionment is primarily the duty and responsibility of
the State.” Miller, 515 U.S. at 915; see Abbott, 585 U.S.
With good reason: If Section 2 compliance “were not a compelling state interest, then a State could be placed in the impossible
position of having to choose” between complying with a valid federal
statute and complying with the Equal Protection Clause. League of
United Latin Am. Citizens v. Perry, 548 U.S. 399, 518 (2006) (Scalia,
J., concurring in the judgment in part and dissenting in part) (discussing VRA Section 5); see Allen, 599 U.S. at 41 (reaffirming that
Section 2, including its race-conscious remedies, is a valid exercise
of Congress’s authority to enforce the Fifteenth Amendment); see
also U.S. Amicus Br. at 15-16, Walen v. Burgum, No. 23-969 (Dec.
10, 2024).
2
24
at 603. Because “[f]ederal-court review of districting
legislation” is “a serious intrusion on the most vital of
local functions,” ibid., upon finding a legal violation, a
reviewing court should strive to allow the state legislature to cure the infirmity itself through the enactment
of a new remedial map, rather than imposing a judicially
crafted map as a first resort. See Lawyer v. Department of Justice, 521 U.S. 567, 576 (1997); White v.
Weiser, 412 U.S. 783, 795-796 (1973); Wise v. Lipscomb,
437 U.S. 535, 539-540 (1978) (opinion of White, J.). The
Robinson courts adhered to that principle here. See
Robinson I, 605 F. Supp. 3d at 857-858; Robinson v. Ardoin, 86 F.4th 574, 601 (5th Cir. 2023).
Legislatures should keep the pen whenever possible
because redistricting inevitably entails the exercise of
“political judgment,” Perry v. Perez, 565 U.S. 388, 393
(2012) (per curiam)—the kind of judgment that a federal court is ill-suited to replicate. See, e.g., Abrams,
521 U.S. at 101. As this Court explained in a related
context, “a state legislature is the institution that is by
far the best situated to identify and then reconcile traditional state policies” with the requirements of federal
law; “federal courts,” in contrast, “possess no distinctive mandate to compromise sometimes conflicting state
apportionment policies in the people’s name.” Connor
v. Finch, 431 U.S. 407, 414-415 (1977).
Second, and relatedly, this Court has emphasized
that even where Section 2 liability has been proven, a
State is not required to adopt one of the illustrative
maps proffered by Section 2 plaintiffs. “States retain
broad discretion in drawing districts to comply with the
mandate of § 2,” and even once a violation has been
shown, any given minority voter does not have a “right”
to be placed in the new remedial district that the State
25
is required to draw. Shaw II, 517 U.S. at 917 n.9. Nor
does a Section 2 remedial district “hav[e] to defeat rival
compact districts designed by plaintiffs’ experts in endless ‘beauty contests.’ ” Vera, 517 U.S. at 977 (plurality
opinion).
Third, this Court has repeatedly cautioned that even
under strict scrutiny, States must have “breathing room”
to navigate the competing imperatives of the VRA and
the Equal Protection Clause. Bethune-Hill, 580 U.S. at
196; see Cooper, 581 U.S. at 293. That breathing-room
principle extends to the State’s ex ante assessment of
whether a Section 2 violation exists at all; a State may
“adopt reasonable compliance measures that may
prove, in perfect hindsight, not to have been needed.”
Cooper, 581 U.S. at 293; see Alabama Legislative Black
Caucus v. Alabama, 575 U.S. 254, 278 (2015). It likewise extends to a State’s choice of remedy: As noted, a
State is not required to “draw ‘the precise compact district that a court would impose in a successful § 2 challenge.’ ” Vera, 517 U.S. at 978 (plurality opinion) (citation omitted). Thus, “deference is due” to a State’s “reasonable fears of, and to [its] reasonable efforts to avoid,
§ 2 liability.” Ibid.
c. The strong-basis-in-evidence standard, applied in
light of those principles, “harmonize[s]” the demands of
Section 2 and the Equal Protection Clause and enables
States to navigate “ ‘competing hazards of liability’ ”
while still maintaining their sovereign prerogatives.
Abbott, 585 U.S. at 587 (citation omitted). But that does
not mean that once a State has “good reasons” to believe
Section 2 requires a majority-minority district, it may
draw the district however and wherever it likes. Instead, this Court has held that to satisfy strict scrutiny,
a remedial district must “substantially address[] the § 2
26
violation.” League of United Latin Am. Citizens v.
Perry, 548 U.S. 399, 430 (2006) (LULAC ) (citation omitted); see Shaw II, 517 U.S. at 915.
Accordingly, a State cannot remedy the dilution of
minority votes in one part of the State by drawing a
majority-minority district in another part of the State,
see LULAC, 548 U.S. at 430, or by drawing a district
that encompasses only a small portion of the minority
voting population with a Section 2 right, see Shaw II,
517 U.S. at 917-918. But a remedial district is narrowly
tailored to achieve compliance with Section 2 if it “substantially addresses” a reasonably perceived statutory
violation, Vera, 517 U.S. at 977 (plurality opinion) (citation omitted), and does not “subordinate traditional districting principles to race substantially more than is
‘reasonably necessary’ to avoid” the violation, id. at 979
(citation omitted); see U.S. Amicus Br. at 34, ALBC, supra (No. 13-895) (advocating the same standard).
That standard does not, however, require a State’s
chosen remedial district to satisfy the same compactness requirements that the first Gingles precondition
imposes on Section 2 plaintiffs. The first Gingles precondition ensures that Section 2 does not require a
State to draw a noncompact district. See Allen, 599 U.S.
at 18. But “States are not prevented from taking into
account race-neutral factors in drawing permissible
majority-minority districts,” and “[d]istricts not drawn
for impermissible reasons or according to impermissible criteria may take any shape, even a bizarre one.”
Vera, 517 U.S. at 999 (Kennedy, J., concurring). The
shape of a State’s chosen remedial district is relevant at
the narrow-tailoring stage only insofar as it bears on
whether the district substantially addresses the perceived Section 2 violation and whether it does so without
27
subordinating other districting principles to race substantially more than is reasonably necessary to achieve
that compelling interest.
2. The district court applied the wrong legal framework
In holding that CD6 failed strict scrutiny, the district
court doubly erred. First, the court failed to recognize
that the Robinson courts’ finding of a likely Section 2
violation provided the State with a strong basis in evidence to believe that it needed to draw a second majorityminority district. Second, the court conducted its own
Gingles analysis and required the State to show that
CD6 satisfied the first Gingles precondition. Instead,
the court should have asked whether CD6 substantially
addresses the Section 2 violation that the Robinson
courts found.
a. The Robinson district court’s finding of a likely
Section 2 violation—which was upheld by the Fifth
Circuit—provided the State with a strong basis in evidence
to believe that it needed to draw a second majorityminority district. The strong-basis-in-evidence standard
is less demanding than the showing a plaintiff must make
to prevail in a Section 2 suit. Such a plaintiff must meet
all three Gingles preconditions and prove that, in the
totality of the circumstances, an existing map leaves minority voters with “less opportunity than white voters
to elect representatives of their choice.” Thornburg v.
Gingles, 478 U.S. 30, 80 (1986); see id. at 50-51. By contrast, “[i]f a State has good reason to think that all the
‘Gingles preconditions’ are met, then so too it has good
reason to believe that § 2 requires drawing a majorityminority district.” Cooper, 581 U.S. at 302. That lower
threshold allows States to preemptively seek to comply
with the VRA and gives them room “to make reasonable
28
mistakes” in doing so. Wisconsin Legislature, 595 U.S.
at 404.
At least absent unusual circumstances, a State will
have good reason to believe that Section 2 requires it to
draw a majority-minority district where, as here, a
court has actually found a likely violation of the statute.
To prove narrow tailoring, a State need not “show that
its action was ‘actually necessary’ to avoid a statutory
violation, so that, but for its use of race, the State would
have lost in court.” Bethune-Hill, 580 U.S. at 194 (citation and ellipses omitted). Where a State has lost in
court—when it has received decisions finding a Section
2 violation and faces the prospect of a courtimposed map if it fails to draw an additional majorityminority district—the State has more than carried its
burden.
Contrary to appellees’ contention (24-109 Mot. to
Dismiss or Affirm 29-30), that is true even when the relevant court order is a preliminary injunction. A court’s
evaluation of likelihood of success at the preliminaryinjunction stage can provide a State with good reasons
to believe that the Section 2 claim will ultimately prevail. Cf. Abbott, 585 U.S. at 610 (holding that a district
court’s “preliminary” approval of interim districting
plans “gave the Legislature a sound basis for thinking
that the interim plans satisfied all legal requirements”).
And that conclusion applies with particular force here,
where the district court’s order was entered after a fiveday hearing, was based on a detailed analysis of the
merits, and was unanimously upheld on appeal. See
Robinson I, 605 F. Supp. 3d at 818-851, Robinson III,
86 F.4th at 589-599.
Appellees emphasize that because the Robinson decisions were issued in a preliminary-injunction posture,
29
they did not determine what Section 2 “actually required.” 24-109 Mot. to Dismiss or Affirm 29. But
again, the question is not whether a remedial district
was “actually necessary.” Bethune-Hill, 580 U.S. at 194
(citation and ellipses omitted). Instead, it is whether,
“at the time of imposition” of the remedial district, the
State had good reason to conclude that a Section 2 remedy was required. Wisconsin Legislature, 595 U.S. at
404. That standard was amply satisfied here. Appellees’ contrary approach—which would apparently require a State to litigate a VRA suit to final judgment
(and perhaps appeal) before adopting a remedial district
—would exacerbate the timing challenges inherent in
redistricting disputes and create unjustified uncertainty for legislatures, candidates, and voters. Here, for
example, if the State had insisted on going to trial rather than enacting a remedial map, the district court
likely would have imposed its own map for the 2024 elections based on one of the Robinson plaintiffs’ illustrative maps, depriving the State of its sovereign authority
over districting and thwarting the legislature’s political
objectives. See pp. 6-8, 24-25, supra.
Similarly, appellees err in asserting (24-109 Mot. to
Dismiss or Affirm 24) that this Court’s decision in Wisconsin Legislature establishes that a district drawn to
respond to decisions in VRA litigation cannot survive
strict scrutiny unless the State subjectively agrees that
its original map violated Section 2. The Court’s decision
in Wisconsin Legislature simply reiterated that it is not
enough for the entity adopting a remedial district to believe that a majority-minority district “may be required.” 595 U.S. at 403-404 (citation omitted). But it
would “ask too much from state officials,” Bethune-Hill,
580 U.S. at 195, to require them, after a hard-fought
30
court battle, to profess their agreement with a finding
of illegality before they may comply with the court’s order.
Appellees are correct that this Court has “exercised
vigilance when States defend strict scrutiny based on
third-party litigation threats regarding the VRA.” 24-109
Mot. to Dismiss or Affirm 24. But there is a world of difference between a State’s acquiescence in the Department of Justice’s prelitigation assessment in an objection letter, see Miller, 515 U.S. at 921; Shaw II, 517 U.S.
at 906, and a legislature’s response after a VRA claim
has in fact been adjudicated by two Article III courts.
Appellees are also mistaken in contending (24-109 Mot.
to Dismiss or Affirm 29-30) that the State’s litigation
choices in Robinson mean that the resulting judicial decisions could not give the State good reasons to believe
that an additional majority-minority district was required. The State challenged the Robinson plaintiffs’
case under Gingles and the totality-of-the-circumstances
inquiry. See Robinson I, 605 F. Supp. 3d at 772-775, 821
n.248, 822, 826, 829-832, 840-841, 843, 845, 847, 849-851;
see also Robinson III, 86 F.4th at 587, 589-592. And
both the district court and the Fifth Circuit held the
Robinson plaintiffs to their burden of proof, examining
the record in detail. See Robinson I, 605 F. Supp. 3d at
776-851; Robinson III, 86 F.4th at 589-599.
b. Instead of recognizing that the Robinson decisions provided the State with a strong basis in evidence
to believe that Section 2 required a second majorityminority district, the district court ran the Gingles analysis anew. That was error. To be sure, when a State
draws a remedial district before facing any VRA litigation and invokes Section 2 as a justification, reviewing
courts must analyze the Gingles preconditions to deter-
31
mine whether the State had a sufficient basis to believe
that Section 2 required its action. See Wisconsin Legislature, 595 U.S. at 400, 403-406; Cooper, 581 U.S. at
301-306; Vera, 517 U.S. at 956-957, 978-979 (plurality
opinion); Shaw II, 517 U.S. at 914-917. But this case is
different. Here, the State acted based on a prior court
finding, upheld on appeal, that Section 2 likely required
a second majority-minority district. That finding, and
the evidence on which it was based, gave the State the
requisite “good reason” to believe that Section 2 required it to act, and there was no cause to require the
State to shoulder the burden of demonstrating the Gingles preconditions anew.
c. Rather than embarking on its own Gingles analysis, the district court should have asked whether CD6
substantially addresses the Section 2 violation identified in Robinson without subordinating other districting principles to race substantially more than was reasonably necessary to achieve that goal. See pp. 25-27,
supra. Because the district court did not undertake
that analysis, this Court should follow its usual practice
and remand to allow the district court to apply the correct standard in the first instance. See, e.g., Bethune-Hill,
580 U.S. at 193; ALBC, 575 U.S. at 275.
Appellants’ arguments before this Court indicate
that the State may well be able to show that CD6 satisfies strict scrutiny under the proper standard. Appellants note that SB8’s CD6 includes “the same seven core
parishes that anchored the new Black-majority districts
in the Robinson illustrative maps (as mirrored by District 5 in [SB4]).” Louisiana Br. 15 (emphasis omitted);
see id. at 15-17, 50; see also Robinson Br. 6-7, 11-12.
Appellants also explain that CD6 drew the “vast majority” of its voting age population and Black voting age
32
population from those seven parishes that overlap with
SB4 in whole or in part. Louisiana Br. 15, 50; see id. at
16 (chart listing CD6’s VAP and BVAP from those seven
parishes as 456,568 and 231,941, respectively); J.A. 336
(listing CD6’s total VAP and BVAP as 589,017 and
318,011, respectively); see also Robinson Br. 11 (noting
that the seven overlapping parishes “account for about
77.5% of CD6’s total [voter] population and about 73.0%
of its Black [voter] population”). Those figures suggest
that CD6 encompasses a substantial majority of the
Black voters who were found in Robinson to have a Section 2 right.
That indicates a far greater degree of overlap than
what was present in prior cases where this Court has
rejected remedial districts for not substantially addressing a potential Section 2 violation. In LULAC, for
example, the Court rejected a claim that Texas’s creation of a majority-Latino congressional district could
make up for the dismantling of an opportunity district
elsewhere in the State, because “the majority of Latinos” in the old district were left out of the new one. LULAC, 548 U.S. at 431. Similarly, in Shaw II the Court
rejected North Carolina’s purported remedial district
because the county containing a “concentration of minority voters that would have given rise to a § 2 claim”
constituted “not more than 20% of the [remedial] district.” 517 U.S. at 918.
Moreover, although the State chose to adopt a remedial district that was less compact than the illustrative
districts on which the Robinson courts relied, the record indicates that it did so in service of race-neutral
goals—in particular, a desire to protect incumbents and
accomplish other political aims. See pp. 8-9, supra.
That evidence suggests that CD6’s relative lack of com-
33
pactness was the result of the State’s effort to fulfill its
compelling interest in Section 2 compliance while also
protecting other legitimate interests—not “race-based
districting unjustified by a compelling interest,” such as
“gratuitous race-based districting” or the “use of race
as a proxy for other interests.” Vera, 517 U.S. at 999
(Kennedy, J., concurring).
Again, this Court need not and should not adjudicate
those questions in the first instance. But the evidence
suggesting that the State may well be able to satisfy the
proper legal standard provides further reason for this
Court to resolve this case by correcting the district
court’s legally erroneous approach to strict scrutiny and
remanding for further proceedings.
CONCLUSION
The judgment of the court of appeals should be vacated
and remanded for further proceedings.
Respectfully submitted.
ELIZABETH B. PRELOGAR
Solicitor General
K RISTEN CLARKE
Assistant Attorney General
BRIAN H. FLETCHER
Deputy Solicitor General
CAROLINE A. FLYNN
Assistant to the Solicitor
General
T OVAH R. CALDERON
NOAH B. BOKAT-LINDELL
Attorneys
DECEMBER 2024
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.