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

Nos. 24-109, 24-110

In the Supreme Court of the United States

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 AMICI CURIAE INDEPENDENT STATE

REDISTRICTING COMMISSIONERS

IN SUPPORT OF NEITHER PARTY

JUSTIN LEVITT

919 Albany St.

Los Angeles, CA 90015

(213) 736-7417

JOHN A. FREEDMAN

Counsel of Record

NANCY L. PERKINS

ARNOLD & PORTER

KAYE SCHOLER LLP

601 Massachusetts Avenue, NW

Washington, DC 20001

(202) 942-5000

john.freedman@arnoldporter.com

TABLE OF CONTENTS

Page

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

INTRODUCTION AND SUMMARY OF

ARGUMENT ................................................................. 5

ARGUMENT ....................................................................... 6

I. MAPMAKERS CAN AND ROUTINELY DO

COMPLY WITH THE VOTING RIGHTS

ACT WITHOUT RACE PREDOMINATING

IN THE REDISTRICTING PROCESS .................. 6

II. MAPS CAN HAVE ODD-SHAPED

DISTRICTS FOR A MYRIAD OF

REASONS, AND SUCH SHAPES DO NOT

DEMONSTRATE THAT RACE

PREDOMINATED IN DETERMINING

THE DISTRICTS’ BORDERS ................................ 15

CONCLUSION .................................................................. 21

(i)

TABLE OF AUTHORITIES

Cases

Page(s)

Abbott v. Perez,

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

Abrams v. Johnson,

521 U.S. 74 (1997) .............................................................. 8

Ala. Legis. Black Caucus v. Alabama,

575 U.S. 254 (2015) ........................................................ 7, 8

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

602 U.S. 1 (2024) ........................................................ 6, 7, 8

Allen v. Milligan,

599 U.S 1 (2023) ................................................. 6-7, 8,9, 11

Ariz. Min. Coalition for Fair Redistricting v.

Ariz. Ind. Redistricting Comm’n,

121 P.3d 843 (Ariz. Ct. App. 2005) ................................. 17

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

580 U.S. 178 (2017) ...................................................... 8, 15

Bush v. Vera,

517 U.S. 952 (1996) ............................................................ 7

Cooper v. Harris,

581 U.S. 285 (2017) ...................................................... 8, 15

Fletcher v. Lamone,

831 F.Supp.2d 887 (D. Md. 2011) ................................... 20

Fletcher v. Lamone,

567 U.S. 930 (2012) .......................................................... 20

League of Women Voters v. Commonwealth,

178 A.3d 737 (Pa. 2018) ................................................... 19

Miller v. Johnson,

515 U.S. 900 (1995) .................................................... 6, 7, 8

North Carolina v. Covington,

585 U.S. 969 (2018) ............................................................ 7

(ii)

iii

Cases—Continued

Page(s)

Ohio A. Philip Randolph Inst. v. Householder,

373 F. Supp. 3d 978 (S.D. Ohio 2019) ....................... 20-21

Ohio A. Philip Randolph Inst. v. Householder,

140 S. Ct. 102 (2019) ................................................... 20-21

Rucho v. Common Cause,

588 U.S. 684 (2019) ............................................................ 8

Shaw v. Hunt,

517 U.S. 899 (1996) ............................................................ 8

Shaw v. Reno,

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

Thornburg v. Gingles,

478 U.S. 30 (1986) ...................................................... 6, 8, 9

White v. Regester,

412 U.S. 755 (1973) ............................................................ 7

Constitutional Provisions and Statutes

U.S. Const. amend XIV ....................................... 6, 7, 13, 14

Voting Rights Act,

52 U.S.C. § § 10301 et seq. .................... 2-11, 13-15, 18, 21

Ala. Code 1975 § 17-14-70.1(2) (2023) ................................. 8

Ariz. Const. art. IV, part 2, § 1(14)(A) ............................... 2

Ariz. Const. art. IV, part 2, § 1(14)(B) ............................... 2

Ariz. Const. art. IV, part 2, § 1(14)(C) ............................... 2

Ariz. Const. art. IV, part 2, § 1(14)(D) ............................... 2

Ariz. Const. art. IV, part 2, § 1(14)(E) ............................... 2

Ariz. Const. art. IV, part 2, § 1(14)(F) ............................... 2

Ariz. Const. art. IV, part 2, § 1(15) ..................................... 2

Cal. Const. art. XXI ............................................................. 3

Cal. Const. art. XXI, § 2(d) ................................................. 3

Cal. Const. art. XXI, § 2(e) .................................................. 3

Col. Const. art. V, § 44.3 ...................................................... 4

iv

Statutes—Continued

Page(s)

Col. Const. art. V, § 48.1 ...................................................... 4

Mich. Const., art. IV, § 6(13) ............................................... 8

Mo. Const., art. III, § 3(b)(2) .............................................. 8

N.C. G.S.A. § 120-30.9A (1985) ........................................... 8

Utah Code § 20A-20-302(4) ................................................. 8

Va. Const., art. II, § 6 ....................................................... 8-9

Va. Code § 24.2-304.04(2) ..................................................... 9

Other Authorities

2020 California Citizens Redistricting

Commission’s Report on Final Maps

(Dec. 26, 2021) ................................................ 10, 11, 16, 17

2021-2030 Arizona Independent Redistricting

Commission Overview of Decennial

Redistricting Process and Maps (Jan. 2022) .......... 10, 12

Final Legislative Redistricting Plan,

In re Colo. Indep. Legis. Redistricting

Comm’n, No. 21-SA-305, Ex. 4

(Colo. Oct. 15, 2021) ......................................................... 18

Joint Rule No. 21, 2021 Leg. Reg. Sess.

(La. 2021) ............................................................................ 9

Justin Levitt, “Race, Redistricting, and the

Manufactured Conundrum,”

50 Loy. L. A. L. Rev. 555 (2017) ............................... 13-14

INTERESTS OF AMICI CURIAE1

Amici are current and former Commissioners of

state independent redistricting commissions, affiliated

with the Republican Party, the Democratic Party, and with

neither. As some of the parties ask this Court to

recalibrate the legal landscape facing redistricting bodies,

amici write to share their experience in drawing lawful

district lines subject to state and federal constraints.

From amici’s perspective, the redistricting process may

be challenging but does not present an insuperable set of

legal obstacles. Our experience shows that there are

multiple ways to draw legally compliant districts without

allowing race to predominate; in choosing from among

these options, our experience also demonstrates that the

final lawful maps in states with independent redistricting

commissions will tend to look different from those in

states where mapmakers can prioritize partisan or

incumbency interests.

Arizona Commissioner Colleen Mathis served in the

2010 redistricting cycle as the Chair of the Arizona

Independent Redistricting Commission (“Arizona

Commission”). The Arizona Commission, which was

established in 2000 pursuant to Proposition 106, is

charged with the redrawing of legislative and

congressional district lines following each decennial

census. The Arizona Commission is composed of five

members, of whom no more than two may belong to the

same political party, with a fifth member serving as chair

who is not affiliated with the same party as any other

Commissioner.

No counsel for a party authored this brief in whole or in part, and

no party or counsel for a party made a monetary contribution

intended to fund the preparation of or submission of this brief. No

one other than the amici curiae or their counsel made a monetary

contribution to the preparation or submission of this brief.

1

(1)

2

As required by the Arizona and U.S. Constitutions,

the Arizona Commission must draw districts of very

nearly equal population. In so doing, pursuant to the

Arizona Constitution, the Arizona Commission must

consider a broad array of non-partisan criteria, including:

compactness and contiguity; respect for communities of

interest; incorporation of visible geographic features and

city, town, and county boundaries, as well as undivided

census tracts; and, where there is no significant detriment

to other goals, creation of politically competitive districts.

Ariz. Const., art. IV, part 2, § 1(14)(B)-(F). The Arizona

Constitution also requires that districts comply with the

U.S. Constitution and the federal Voting Rights Act. Ariz.

Const., art. IV, part 2, § 1(14)(A). The Commission is

limited in its use of political party registration and voting

history data, and may not use residences of incumbents

and other candidates to create district maps. Ariz. Const.,

art. IV, part 2, § 1(15). Once the Arizona Commission

drafts the new maps, it must publish the drafts and invite

comments from the public for at least 30 days. Either or

both bodies of the legislature may act within this period to

make recommendations to the Arizona Commission,

which the Commission must consider before establishing

final district boundaries.

California Commissioners Isra Ahmad, Linda

Akutagawa, Vincent Barabba, Maria Blanco, Cynthia Dai,

Michelle DiGuilio, Alicia Fernández, Jodie Filkins, Ray

Kennedy, Gil Ontai, Stanley R. Forbes, Neal Fornaciari,

Sara Sadhwani, Connie Archbold Robinson, Pedro Toledo,

Trena Turner, and Russell Yee are serving in the 2020

redistricting cycle or served in the 2010 redistricting cycle

as members of the California Citizens Redistricting

Commission (“California Commission”). The California

Commission is authorized, pursuant to initiatives passed

by California voters in 2008 and 2010, to draw new district

lines for Congress, the state legislature, and the state

3

Board of Equalization following each decennial census.

The California Commission is composed of 14 members:

five Republicans, five Democrats and four commissioners

who are not affiliated with either party. Pursuant to the

California Constitution, the California Commission must

draw lines in conformity with strictly non-partisan rules

designed to create districts of relatively equal populations

to provide fair representation for all California voters.

The California Constitution sets forth the specific

criteria the California Commission must use when

redrawing district lines. Cal. Const., art XXI. The criteria,

ranked by priority, include a broad array of non-partisan

factors: population equality, contiguity, geographic

integrity of cities or census-designated areas, geographic

integrity of local neighborhoods or local communities of

interest, and compactness. Id. The California

Constitution also requires compliance with the federal

Voting Rights Act and the U.S. Constitution. Cal. Const.,

art. XXI, § 2(d). And the California Constitution expressly

states that “[t]he place of residence of any incumbent or

political candidate shall not be considered in the creation

of a map [, and d]istricts shall not be drawn for the

purpose of favoring or discriminating against an

incumbent, political candidate, or political party.” Cal.

Const., art XXI, § 2(e). In the course of redrawing district

lines, the California Commission conducts an intensive

process to ensure public awareness, input into, and

acceptance of the ultimately adopted maps. For example,

during the redistricting cycle in 2021, the California

Commission held 196 public meetings, received 3,870

verbal comments, and received 32,410 written comments,

all of which it considered in finalizing the new district

maps.

Colorado Commissioners Samuel Greenidge, Amber

McReynolds and Carlos Perez are members of the

Colorado

Independent

Legislative

Redistricting

4

Commission charged with redrawing the lines for the

state legislative districts (together with the Colorado

Independent Congressional Redistricting Commission,

charged with redrawing the lines for congressional

districts, collectively, “Colorado Commissions”). The

Colorado Commissions were established in 2018 pursuant

to Amendments Y and Z to the Colorado Constitution,

which transferred the responsibility for redrawing

congressional and legislative districts from the Colorado

legislature and the Reapportionment Commission to the

newly created independent Commissions. Each

Commission is composed of four Democrats, four

Republicans, and four commissioners unaffiliated with

either major party.

Under the Colorado Constitution, congressional and

state legislative district lines must be drawn to protect

fair and effective representation of constituents using

politically neutral criteria. The specific criteria set forth

in the Colorado Constitution include: population equality,

geographic integrity of local communities of interest and

political subdivisions, compactness, and political

competitiveness. Col. Const., art. V, §§ 44.3(1)-(3), 48.1(1)(3). The Colorado Constitution also requires the Colorado

Commissions to comply with the federal Voting Rights Act

of 1965. Col. Const., art. V, §§ 44.3(1)(b), 48.1(1-3). The

Colorado Constitution further provides that no map may

be approved if it “has been drawn for the purpose of

protecting” one or more incumbent members or declared

candidates, or any political party. Col. Const., art. V, §§

44.3(4), 48.1(4). Once the Colorado Commissions and their

staffs have drafted maps, the Commissioners request

alternate maps or amendments to the maps in a public

meeting open to all Colorado voters. Members of the

public can also submit maps and written comments, and

can testify in person or remotely before the Colorado

Commissions.

5

INTRODUCTION AND SUMMARY OF ARGUMENT

The process of drawing district lines to foster

equitable representation of community members requires

mapmakers to consider and reconcile several different

criteria. Inevitably, mapmakers familiar with underlying

political geography will be aware of the demographics of

particular communities, including race and ethnicity.

Sometimes, under specific local conditions subject to

rigorous factual proof, laws like the Voting Rights Act will

require consideration of race or ethnicity to dismantle

discrimination in discrete and limited ways, alongside

other state and federal constraints.

Balancing all of the considerations and legal

conditions placed on the redistricting process can

certainly be challenging, but the process does not amount

to an impossible Catch-22 for those who sincerely attempt

to achieve compliance. This is as true in the consideration

of race pursuant to the Voting Rights Act as in any other

aspect of the process. Redistricting bodies often have

multiple options for drawing maps that comply with

legitimate state and federal legal requirements —

including the Voting Rights Act — and can achieve

compliance without allowing race to predominate.

In choosing from among those options, amici note

that mapmakers in states with independent redistricting

bodies will tend to make different choices from

mapmakers permitted or incentivized to protect partisan

or incumbent interests. And amici also note that, in their

experience, because the contours of a district depend on

numerous factors, it is not possible to conclude what

motivations resulted in the contours of any particular

district, including an irregularly shaped district, simply

by superficial observation of its shape.

6

ARGUMENT

I.

MAPMAKERS CAN AND ROUTINELY DO COMPLY

WITH THE VOTING RIGHTS ACT WITHOUT RACE

PREDOMINATING IN THE REDISTRICTING PROCESS

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 v. S.C. State Conf. of

NAACP, 602 U.S. 1, 7 (2024) (quoting Miller v. Johnson,

515 U.S. 900, 915–916 (1995)). This is due, in part, to the

fact that redistricting is about representation.

To draw districts that foster meaningful

representation, mapmakers must be familiar with the

communities in the state. That includes familiarity with

the racial and ethnic composition of those communities,

regardless of whether localized facts in a particular region

present the potential for liability under the Voting Rights

Act. See Thornburg v. Gingles, 478 U.S. 30, 47 (1986); see

also Shaw v. Reno, 509 U.S. 630, 646 (1993) (Shaw I);

Miller, 515 U.S. at 916 (“Redistricting legislatures will …

almost always be aware of racial demographics; but it

does not follow that race predominates in the redistricting

process.”).

Thus, it is well established that the redistricting

process may and frequently does, consistent with the

Fourteenth Amendment, take race into account, i.e., the

process does not have to be race-blind. See Shaw I, 509

U.S. at 646; see also Miller, 515 U.S. at 916. For example,

in its seminal decision in Shaw v. Reno, the Court

recognized that “the legislature always is aware of race

when it draws district lines, just as it is aware of age,

economic status, religious and political persuasion, and a

variety of other demographic factors. That sort of race

consciousness does not lead inevitably to impermissible

race discrimination.” 509 U.S. at 646, 658. The Court

reemphasized this principle in Allen v. Milligan, 599 U.S.

7

1 (2023), stating that “we have made clear that there is a

difference ‘between being aware of racial considerations

and being motivated by them.’” Milligan, 599 U.S. at 30

(citing Miller, 515 U.S. at 916); see also North Carolina v.

Covington, 585 U.S. 969, 978 (2018). This Court has

repeatedly held that mapmakers may take race into

account in the redistricting process without violating the

U.S. Constitution. See Milligan, 599 U.S. at 30; Bush v.

Vera, 517 U.S. 952, 958 (1996) (“Strict scrutiny does not

apply merely because redistricting is performed with

consciousness of race.”); Abbott v. Perez, 585 U.S. 579, 587

(2018) (noting the Court’s consistent assumption that

even when race may predominate, narrowly tailored

compliance with the Voting Rights Act satisfies strict

scrutiny). Indeed, to dismantle existing discriminatory

dilution, sometimes mapmakers must consider race. See

White v. Regester, 412 U.S. 755, 765-70 (1973). And the

Milligan Court confirmed that “the contention that

mapmakers must be entirely ‘blind’ to race has no footing

in our § 2 case law. The line that we have long drawn is

between consciousness and predominance.” Milligan, 599

U.S. at 33.

That is, racial awareness is a concern of constitutional

significance, provoking strict scrutiny, when mapmakers

subordinate traditional redistricting criteria to racial

considerations: when race is the “dominant and

controlling” consideration in deciding to place a

significant number of particular voters “within or without

a particular district.” Ala. Legis. Black Caucus v.

Alabama, 575 U.S. 254, 260 (2015); see also Alexander,

602 U.S. at 7. Stated differently, so long as mapmakers do

not subordinate traditional race-neutral districting

principles, consideration of race without invidious intent

— pursuant to the Voting Rights Act or otherwise — is

perfectly proper and consistent with the Fourteenth

Amendment, and need not provoke heightened scrutiny.

8

Miller, 515 U.S. at 913; see also Shaw v. Hunt, 517 U.S.

899, 905 (1996); Abrams v. Johnson, 521 U.S. 74, 81 (1997);

Ala. Legis. Black Caucus, 575 U.S. at 260, 272; Cooper v.

Harris, 581 U.S. 285, 291–92 (2017); Rucho v. Common

Cause, 588 U.S. 684, 711 (2019); Alexander, 602 U.S. at 4.

To upend this consistent precedent would either require

mapmakers to unlearn the demographics of their own

States, or subject every district in the country — federal,

state, and local — to heightened constitutional review and

potential revision by federal courts.

As this Court has recognized, “districting involves

myriad considerations,” Milligan, 599 U.S. at 35, that a

mapmaker “must balance as part of its redistricting

efforts….” Alexander, 602 U.S. at 24. Drawing district

lines requires “a delicate balancing of competing

considerations.” Bethune-Hill v. Va. State Bd. of

Elections, 580 U.S. 178, 187 (2017) (cleaned up). The

Voting Rights Act is a familiar and appropriate part of this

balance. See Gingles, 478 U.S. at 47. Indeed, the

constitutions of amici’s respective States expressly

require compliance with the Voting Rights Act.2 And even

Similar requirements are found in other states’ laws and

guidelines. See, e.g., Ala. Code 1975 § 17-14-70.1(2) (2023) (“The

Legislature’s intent in adopting the congressional plan in Act 2023563 is to comply with federal law, including the U.S. Constitution

and the Voting Rights Act of 1965, as amended.”); North Carolina

G.S.A. § 120-30.9A (1985) (“The purpose of this Article is to ensure

compliance with … the Voting Rights Act of 1965 ….”); Mich. Const.,

art. IV, § 6(13) ("Districts … shall comply with the voting rights act

and other federal laws."); Mo. Const., art. III, § 3(b)(2) ("Districts

shall be established in a manner so as to comply with all

requirements of … applicable federal laws, including, but not

limited to, the Voting Rights Act of 1965 (as amended)."); Utah Code

§ 20A-20-302(4) ("The commission shall ensure that … each map

recommended by the commission … complies with … all applicable

federal laws, including Section 2 of the Voting Rights Act …."); Va.

Const., art. II, § 6 ("Every electoral district shall be drawn in

2

9

when States have not expressly codified a mandate for

compliance with the Voting Rights Act, it is clear that

Section 2 of the Voting Rights Act applies nationwide. See

Milligan, 599 U.S. at 19 (“[W]e have applied Gingles in

one § 2 case after another, to different kinds of electoral

systems and to different jurisdictions in States all over the

country.”) As is most relevant here, in 2021, the Louisiana

House and Senate passed Joint Rule No. 21, requiring

that each redistricting plan submitted for consideration

must “comply with … Section 2 of the Voting Rights Act

of 1965, as amended; and all other applicable federal and

state laws.” Joint Rule No. 21, 2021 Leg. Reg. Sess. (La.

2021).

Amici have personal experience integrating the

Voting Rights Act into the mix of their work. In deciding

whether to place specific voters “within or without”

particular districts in their respective States, each of the

amici’s commissions indeed do consider a myriad of

factors in addition to compliance with the Voting Rights

Act. For example, the California Commission considers

population equality, contiguity, geographic integrity of

cities or census-designated places, geographic integrity of

local neighborhoods or local communities of interest, and

compactness as well as compliance with the Voting Rights

Act. The Arizona Commission considers equal population,

compactness, contiguity, respect for communities of

interest, incorporation of visible geographic features and

municipal boundaries, and political competitiveness in

addition to compliance with the Voting Rights Act. And

the Colorado Commission considers population equality,

geographic integrity of local communities of interest and

political subdivisions, compactness, and political

accordance with the requirements of federal and state laws that

address racial and ethnic fairness, including … provisions of the

Voting Rights Act of 1965, as amended, and judicial decisions

interpreting such laws."); Va. Code § 24.2-304.04(2) (same).

10

competitiveness, in addition to compliance with the Voting

Rights Act. These are not merely theoretical guardrails:

in amici’s work as Commissioners, we work to reconcile

these distinct priorities and distinct evidence pointing in

different directions with respect to each priority,

necessarily considering multiple factors in concert in

designing the districts we draw.

When we have considered race, we have done so

based on localized facts, data, and history rather than

stereotype, and integrated with other considerations that

yield the effective representation of local communities of

interest. Amici and their Commissions’ staff are “aware

of and sensitive to the Census data and demographics of

the areas under review — particularly in areas with

sizeable minority populations, evidence of racially

polarized voting, and a history of discrimination.” 2020

California Citizens Redistricting Commission’s Report on

Final Maps (Dec. 26, 2021) (“CCRC Report”) at 32. These

data and demographics contribute to the Commissions’

work as part of a “district-specific, functional analysis” to

ensure, where the Voting Rights Act indicates particular

need, that minority voters also have an equitable

opportunity to elect candidates of choice “without

unnecessarily packing the district or violating

redistricting criteria such as consideration for political

subdivision boundaries and compactness.” 2021-2030

Arizona

Independent

Redistricting

Commission

Overview of Decennial Redistricting Process and Maps

(Jan. 2022) (“AIRC Report”) at 30–31.

That is, amici weigh these factors along with “a host

of traditional, race-neutral redistricting criteria, including

balancing population, maintaining the geographic

integrity of cities, counties, neighborhoods, and

communities of interest, and considering natural

topography, ecological zones, transportation corridors,

and

industrial/economic

interests

that

define

11

communities.” CCRC Report at 32. In adhering to their

respective States’ redistricting principles, including

respecting the requirements of the Voting Rights Act,

amici follow a careful process that involves an analysis of

voting patterns in areas with sufficiently sizable minority

populations and an understanding of historical and

present context. Where local factual conditions

demonstrate that existing districts work in discriminatory

fashion and create a responsibility under the Voting

Rights Act to ensure equal opportunity to participate in

the political process as defined by this Court, Milligan,

599 U.S. at 25, we have endeavored to provide that

opportunity — not alone, not in predominant fashion, but

while also considering other criteria in arriving at the

ultimate shape of a district that necessarily furthers

multiple goals. This is apparent in amici’s own maps,

which satisfy multiple race-neutral criteria while

complying with the Voting Rights Act.

For example, while redrawing California’s

Congressional District Twenty-One in 2021 (see map

below), the California Commission noted that this district

was located in areas where “there are obligations under

Section 2 of the Voting Rights Act.” CCRC Report at 81.

But the Commission also noted that, together with

meeting those obligations, it was the Commission’s

responsibility to address “communities of interest,”

including “the Valley’s major transportation corridors”

and common interests in “agriculture, water [and] air

quality.” Id.

12

[CA Congressional District 21 (2021)]

While redrawing Arizona’s Congressional Districts in

2022, the Arizona Commission understood that

Congressional District Three (pictured below) would

allow minority voters facing a legacy of discrimination to

have the opportunity to elect their candidates of choice in

compliance with the federal Voting Rights Act. But the

Commission also drew the district in a manner fulfilling

the Arizona Constitution’s redistricting goals of keeping

communities of interest together and creating

competitive districts. AIRC Report app. A at 1, 11.

[AZ Congressional District 3 (2022)]

13

Nothing in the United States Constitution or in this

Court’s previous holdings make these types of

consideration unconstitutional or impermissible.

To be clear, neither compliance with the Voting Rights

Act nor awareness of race means that the amici’s

commissions allow race to be the predominating factor in

their redistricting decisions. Additionally, and notably,

even when considering race in the context of the Voting

Rights Act, amici do not consider race as a stereotype, or

for its own sake. That is, our proper consideration of race

in the context of the Voting Rights Act would satisfy strict

scrutiny even if we allowed it to predominate. In amici’s

experience, compliance with the Voting Rights Act is

necessarily and relentlessly localized and data-driven; the

federal statute requires the consideration of race in the

final design of districts only in the context of a history of

discrimination connected to present conditions, and only

when specific electoral evidence demonstrates that the

state would otherwise be perpetuating discriminatory

maps.

In short, in amici’s experience, consideration of race

in conjunction with compliance with the Voting Rights Act

is compatible and consistent with the Fourteenth

Amendment. As emphasized above, the primary relevant

question in reviewing district lines for purposes of the

Fourteenth Amendment, and the necessary threshold to

constitutional concern and therefore heightened scrutiny,

is whether race predominated over other equally

legitimate and appropriate factors in deciding to place

certain individuals within or without particular district

lines. Some amici have found it helpful to think of such

predominance by reference to how the operator of a motor

vehicle manages the multiple factors involved with driving

a car:

It is certainly possible for a driver to obsess over her

speed, subordinating all other inputs — and likely

14

leading to a crash. But most careful drivers monitor a

sizable set of factors at once, including the directions

to get to a destination, the location of other vehicles,

weather conditions, potential hazards, fuel volume,

vehicle performance, signage, lane designators,

signaling responsibilities, passenger activity, internal

temperature, road trip soundtrack — and also speed.

The fact that the driver may glance down from time

to time to check that her speed is still within an

acceptable range does not mean that speed has

predominated, subordinating all other factors in

determining how the car proceeds from point A to

point B. And that remains true even if the driver has

a specific target speed firmly in mind, and even if it

remains an extremely high priority to avoid a ticket

for speeding. So too with the consideration of race.

Justin Levitt, “Race, Redistricting, and the Manufactured

Conundrum,” 50 Loy. L. A. L. Rev. 555, 568 (2017).

By analogy, amici understand that mapmakers’

efforts to comply with the Voting Rights Act do not imply

that the resulting maps reflect a subordination of all other

relevant factors to race. A mapmaker can be aware of race

while still evaluating the multitude of other factors that

must be considered. By taking race into account in order

to comply with the Voting Rights Act while considering an

array of districting criteria unrelated to race, mapmakers

strike the “delicate” balance this Court requires.

Therefore, consideration of race in the context of ensuring

compliance with the Voting Rights Act is entirely

compatible and consistent with the Fourteenth

Amendment.

15

II.

MAPS CAN HAVE ODD-SHAPED DISTRICTS FOR A

MYRIAD OF REASONS, AND SUCH SHAPES DO NOT

DEMONSTRATE THAT RACE PREDOMINATED IN

DETERMINING THE DISTRICTS’ BORDERS

Amici are familiar with the editorial-page disdain

that the shape of a particular district in the abstract may

engender. But as this Court has repeatedly emphasized,

external appearances can be misleading. It is impossible

to conclude that a district has violated federal law simply

by looking at a map. Redistricting principles are

“numerous and malleable.” Bethune-Hill, 580 U.S. at 190.

Therefore, it is unsurprising that districts may come in a

variety of shapes and sizes based on the numerous factors

a mapmaker must consider. As this Court has found, a

“highly irregular” shape of a district is not sufficient to

determine whether a district is the product of racial

predominance because “a bizarre shape … can arise from

a ‘political motivation’ as well as a racial one” and “political

and racial reasons are capable of yielding similar oddities

in a district’s boundaries.” Cooper, 581 U.S. at 308.

Indeed, whether as a result of considering race in

constitutional ways — for example, in choosing among

different ways to satisfy the Voting Rights Act — or by

virtue of consideration of the sort of community or

geographic criteria that amici pay attention to, or the sort

of partisan or incumbent-protective criteria that other

mapmakers may prioritize, district maps may end up

looking oddly shaped (even “bizarre”).

This reality is reflected in amici’s own maps. In

general, compliance with the Voting Rights Act will not

require drawing a “bizarre” district shape. But whether

or not compliance with the Voting Rights Act is a key

factor of consideration, amici have occasionally produced

district maps that might, to some eyes, appear

geometrically unusual when lifted out of context, not

because race predominates, but because the districts

16

attend to distinct communities or geographic and

municipal bounds, as they are required to do.

For example, consider California’s Twentieth

Congressional District in the 2021 cycle:

[IMAGE CA District 20 (2021)]

In drawing this district, the California Commission

emphasized that “Communities within this district share

common socio-economic characteristics and are primarily

rural and suburban… and share environmental concerns

related to water, air quality, and public lands.” CCRC

Report at 81.

Similarly,

consider

California’s

Forty-First

Congressional District in the 2021 cycle:

[IMAGE CA District 41 (2021)]

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In drawing this district, the California Commission

noted that the “district is characterized by common

interests and issues related to tourism, tribal lands, low

desert geography, and housing [and communities] are

connected by Interstate 15 and State Route 74.” CCRC

Report at 85.

Similarly, consider Arizona’s Second Congressional

District in the 2000 cycle:

[IMAGE AZ Congressional District 2

(2000)]

In drawing the district, the Arizona Commission

sought to accommodate the request of one community of

interest to be in a congressional district distinct from

another with “historical and present-day, opposing federal

interests”: the Hopi Tribe asked to be in a different

district than the majority of Navajo Nation residents.

Ariz. Min. Coalition for Fair Redistricting v. Ariz. Ind.

Redistricting Comm’n, 121 P.3d 843, 866-68 (Ariz. Ct.

App. 2005). The Commission accommodated this request

by using visible geographic features, as required by state

law, like the Colorado River. Id. at 869.

Also similarly, Colorado’s Thirty-Third State House

Districts in the 2021 cycle:

18

[IMAGE CO State House District 33 (2021)]

In drawing the district, the Colorado Commissions

emphasized that the district encompassed Broomfield

County — the state’s newest county — as well as a portion

of Thorton, in the neighboring county. In re Colo. Indep.

Legis. Redistricting Comm’n, No. 21-SA-305, Ex. 4 at 5

(Colo. Oct. 15, 2021) (Final Legislative Redistricting

Plan). Broomfield County itself contains an area in the

southwest that is contiguous with the rest of the county

only at one point; that county boundary is reflected in the

State House district’s shape as well.

The commissions on which amici have served do not

draw districts for partisan or incumbent-protective

purposes. But amici understand that when mapmakers

do draw for such purposes, it is not unusual to expect some

of the districts to take on shapes that are more unusual

still. Those shapes may reflect partisan or incumbentprotective choices among different options to comply with

the Voting Rights Act, or partisan or incumbentprotective choices that have nothing to do with Voting

Rights Act considerations. As indicated by the graphic

examples below, many maps that may be described as

having a “bizarre” shape were largely based on partisan

politics — not predominately racial considerations.

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For example, Pennsylvania’s Seventh Congressional

District from 2012-2017:

[IMAGE PA Congressional District 7

(2012-2017)]

The Pennsylvania Supreme Court wrote that this

district — “referred to as resembling ‘Goofy kicking

Donald Duck’” — reflected “the starkest example … of

the [Pennsylvania legislature’s] subordinat[ion of]

traditional redistricting criteria in the service of partisan

advantage.” League of Women Voters v. Commonwealth,

178 A.3d 737, 818–19 (Pa. 2018).

Similarly, Maryland’s Third Congressional District

drafted in 2011:

[IMAGE MD Congressional District 3

(2022)]

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In describing this district, a three-judge panel noted

it was a “Rorschach-like eyesore … almost impossible to

describe. It includes a snippet of Baltimore City, portions

of Baltimore County, a small segment of Montgomery

County, a large chunk of Anne Arundel County, and an

isolated snippet that includes Annapolis that is detached

from the rest of the district and can only be reached by

water” and reflected that “the incumbent Congressman

lives in Baltimore County, but still wanted to continue to

represent the capital city Annapolis.” Fletcher v. Lamone,

831 F.Supp.2d 887, 906 (D. Md. 2011) (three-judge court)

(opinion of Titus, D.J.) (internal punctuation omitted),

aff ’d 567 U.S. 930 (2012).

Also similarly, Ohio’s Ninth Congressional District

drafted in 2011:

[IMAGE OH Congressional District 9 (2011)]

In evaluating the legality of this proposed district, a

three-judge panel observed it is “a thin strip along the

southern coast of Lake Erie, stretching from Toledo in

Lucas County in the west to Cleveland in Cuyahoga

County in the east [and] has earned it the nickname ‘the

Snake on the Lake’ [and reflects] that the map drawers

intentionally packed Democratic voters into District 9,

splitting up communities of interest along the way….”

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Ohio A. Philip Randolph Inst. v. Householder, 373 F.

Supp. 3d 978, 1122-23 (S.D. Ohio 2019) (three-judge

court), vacated 140 S. Ct. 102 (2019).

As these examples indicate and as this Court has

repeatedly understood, the pull of partisan or incumbentprotective motivation can readily distort the shape of

districts that might otherwise be drawn in conformity

with traditional redistricting principles, even beyond the

natural twists and turns of communities or geographic

features. That observation is entirely consistent with

amici’s experience.

*****

CONCLUSION

Amici take no position on the merits of the instant

dispute. But amici urge this Court to decide this matter

consistent with three key principles this Court has

repeatedly emphasized and which amici and other

mapmakers regularly incorporate in their own work.

First, mapmakers must practically take race into account.

Second, mapmakers may take race into account

without provoking strict scrutiny under the U.S.

Constitution. Amici’s commissions comply with the

Voting Rights Act every redistricting cycle without race

predominating in the process.

Third, districts may look as they do, including

appearing to have “distorted” shapes, for a variety of

reasons that reflect particular goals, such as heeding

community or geographic boundaries, or (for other

mapmakers) protecting partisan or incumbent interests.

These considerations may drive the shape of districts that

are also drawn to comply with the Voting Rights Act; it is

not possible to conclude from the shape of a district alone

that the mapmakers who drew that shape threatened,

much less transgressed, constitutional imperatives.

22

Respectfully submitted.

JUSTIN LEVITT

919 Albany Street

Los Angeles, CA 90015

(213) 736-7417

JOHN A. FREEDMAN

Counsel of Record

NANCY L. PERKINS

ARNOLD & PORTER

KAYE SCHOLER LLP

601 Massachusetts Avenue, NW

Washington, DC 20001

(202) 942-5000

john.freedman@arnoldporter.com

DECEMBER 2024