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

Supreme Court briefJan 27, 2025

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Nos. 24-109, 24-110

In the Supreme Court of the United States

__________

LOUISIANA, Appellant,

PHILLIP CALLAIS, ET AL., Appellees.

____________________

PRESS ROBINSON, ET AL., Appellants,

PHILLIP CALLAIS, ET AL., Appellees.

____________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF LOUISIANA

_______________

BRIEF FOR PROJECT ON FAIR

REPRESENTATION AS AMICUS CURIAE

IN SUPPORT OF APPELLEES

__________

CHRISTOPHER E. MILLS

Counsel of Record

Spero Law LLC

557 East Bay Street

#22251

Charleston, SC 29413

(843) 606-0640

cmills@spero.law

TABLE OF CONTENTS

Page

Table of Authorities .....................................................ii

Interest of Amicus Curiae ........................................... 1

Summary of the Argument ......................................... 2

Argument ..................................................................... 5

I. S.B. 8 does not reflect the realities of

Louisiana’s multi-racial neighborhoods. ........... 5

A. Proportional representation is not the norm

in single-member districts. ........................... 6

B. Forcing proportional representation results

in racial discrimination. ............................... 9

II. Fears about trial court feelings cannot excuse

racial discrimination. ....................................... 12

A. The State did not believe S.B. 8 was needed

to comply with the VRA. ............................. 14

B. Statutory compliance cannot justify a

constitutional violation. .............................. 19

1. The VRA is subject to the

Constitution. ........................................... 20

2. The Reconstruction Amendments give

Congress power to stop States’

discrimination—they do not give

States power to keep discriminating...... 25

Conclusion.................................................................. 29

TABLE OF AUTHORITIES

Page(s)

CASES

Allen v. Milligan, 599 U.S. 1 (2023).......... 9, 10, 14, 20

Barr v. Am. Ass’n of Pol. Consultants, Inc.,

591 U.S. 610 (2020) ................................................ 23

Bartlett v. Strickland, 556 U.S. 1 (2009) .................. 29

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

580 U.S. 178 (2017) .......................................... 18, 22

Bush v. Vera, 517 U.S. 952 (1996) ............ 5, 10, 27, 28

Califano v. Westcott, 443 U.S. 76 (1979) ................... 24

City of Boerne v. Flores, 521 U.S. 507 (1997) ........... 27

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

488 U.S. 469 (1989) .......................................... 11, 29

Cooper v. Harris, 581 U.S. 285 (2017) ...................... 18

Doran v. Salem Inn, Inc., 422 U.S. 922 (1975) ......... 16

Easley v. Cromartie, 532 U.S. 234 (2001) ................. 24

Fullilove v. Klutznick, 448 U.S. 448 (1980) .............. 29

Gomillion v. Lightfoot, 364 U.S. 339 (1960) ............... 4

Graham v. Richardson, 403 U.S. 365 (1971) ............ 25

Hays v. Louisiana, 862 F. Supp. 119

(W.D. La. 1994) ........................................................ 9

Hirabayashi v. United States, 320 U.S. 81 (1943) ... 10

Holder v. Hall, 512 U.S. 874 (1994) .......................... 12

In re Landry, 83 F.4th 300 (CA5 2023)............... 16, 17

iii

Johnson v. De Grandy, 512 U.S. 997 (1994) ............. 11

Korematsu v. United States, 323 U.S. 214 (1944) .... 29

League of United Latin Am. Citizens v. Perry,

548 U.S. 399 (2006) .................................... 10, 22, 23

Marbury v. Madison, 5 U.S. 137 (1803).............. 20, 23

Massachusetts v. Mellon, 262 U.S. 447 (1923) ......... 23

McDonald v. City of Chicago,

561 U.S. 742 (2010) .......................................... 26, 27

Miller v. Johnson,

515 U.S. 900 (1995) ........................ 10, 11, 21, 23, 24

N.J. Thoroughbred Horsemen’s Ass’n v. Nat’l

Collegiate Athletic Ass’n, 584 U.S. 453 (2018) ...... 23

Oregon v. Mitchell, 400 U.S. 112 (1970) ................... 21

Parents Involved in Cmty. Sch. v. Seattle Sch.

Dist. No. 1, 551 U.S. 701 (2007) ...................... 21, 29

Plessy v. Ferguson, 163 U.S. 537 (1896) ................... 10

Robinson v. Ardoin, 37 F.4th 208 (CA5 2022) .... 16, 19

Robinson v. Ardoin, 86 F.4th 574 (CA5 2023) .... 17, 19

Robinson v. Ardoin, No. 22-cv-211,

2024 WL 1812141 (M.D. La. Apr. 25, 2024).......... 13

Rucho v. Common Cause, 588 U.S. 684 (2019)........... 6

Saenz v. Roe, 526 U.S. 489 (1999) ............................. 28

Shaw v. Hunt, 517 U.S. 899 (1996)..................... 14, 18

Shaw v. Reno, 509 U.S. 630 (1993) ............... 11, 12, 29

Shelby County v. Holder, 570 U.S. 529 (2013) ... 25, 28

Simon & Schuster, Inc. v. Members of New York

State Crime Victims Bd., 502 U.S. 105 (1991) ...... 21

Sole v. Wyner, 551 U.S. 74 (2007) ............................. 14

Students for Fair Admissions, Inc. v. President &

Fellows of Harvard College,

600 U.S. 181 (2023) .............................. 10, 11, 19, 26

United States v. Georgia, 546 U.S. 151 (2006) ......... 25

Univ. of Texas v. Camenisch, 451 U.S. 390 (1981) ... 15

Village of Arlington Heights v. Metro. Hous. Dev.

Corp., 429 U.S. 252 (1977) ..................................... 24

Wisconsin Legislature v. Wisconsin Elections

Comm’n, 595 U.S. 398 (2022) ................................ 11

Wright v. Rockefeller, 376 U.S. 52 (1964) ................. 12

STATUTES

Civil Rights Act of 1866, § 1, 14 Stat. 27 .................. 26

OTHER AUTHORITIES

2022: ACS 1-Year Estimates Data Profiles, U.S.

Census Bureau, https://data.census.gov/table/

ACSDP1Y2022.DP05?g=040XX00US12 (last

visited Jan. 8, 2025) ................................................. 7

Amar, The Lawfulness of Section 5—and Thus of

Section 5, 126 Harv. L. Rev. F. 109 (2013)............ 26

Balkin, The Reconstruction Power,

85 N.Y.U. L. Rev. 1801 (2010) ............................... 26

Borelli, Americans Differ Over How Important It Is

for Political Candidates They Support to Share

Their Personal Traits, Pew Research Center (Oct.

3, 2023), https://tinyurl.com/35av7ryj ..................... 3

Br. for America First Legal, Allen v. Milligan, Nos.

21-1086, 21-1087 (U.S. May 2, 2022) .................... 23

Chen & Stephanopoulos, The Race-Blind Future of

Voting Rights, 130 Yale L.J. 862 (2021).................. 9

Cong. Globe, 39th Cong., 1st Sess. (1866) ................ 27

Defendants’ Amended Joint Proposed Findings of

Fact and Conclusions of Law, Robinson v. Landry,

No. 22-cv-00211, Dkt. 166

(M.D. La. May 23, 2022) .......................................... 8

Duchin & Spencer, Models, Race, and the Law, 130

Yale L.J.F. 744 (2021) .............................................. 9

Duchin et al., Locating the Representational Baseline:

Republicans in Massachusetts,

18 Election L.J. 388 (2019) ...................................... 6

Emergency App. for Admin. Stay, Stay Pending

Appeal, and Pet. for Writ of Cert. Before

Judgment, Ardoin v. Robinson, No. 21A814,

2022 WL 2441061 (U.S. June 17, 2022) ................ 20

Expert Report of Dr. Alan Murray, Robinson v.

Landry, No. 22-cv-00211, Dkt. 169-12

(M.D. La. May 9, 2022) ............................................ 8

Fernandez, The Constitutionality of the Fourteenth

Amendment, 39 S. Cal. L. Rev. 378 (1966)............ 26

Florida 11th Congressional District Demographics,

BiggestUSCities.com (Mar. 1, 2022),

https://tinyurl.com/55nyn7ap .................................. 7

Goldstein, The Birth and Rebirth of Civil Rights in

America, 50 Tulsa L. Rev. 317 (2015) ................... 27

Gramercy Town, Louisiana, U.S. Census Bureau,

https://tinyurl.com/2m6hmhd7

(last visited Jan. 8, 2025)......................................... 8

Lash, Enforcing the Rights of Due Process: The

Original Relationship between the Fourteenth

Amendment and the 1866 Civil Rights Act,

106 Geo. L.J. 1389 (2018) ...................................... 26

Louisiana: 2020 Census, U.S. Census Bureau (Aug.

25, 2021), https://www.census.gov/library/stories/

state-by-state/louisiana-population-changebetween-census-decade.html ................................... 8

Mitchell, The Writ-of-Erasure Fallacy, 104 Va. L.

Rev. 933 (2018)....................................................... 23

Pet. for a Writ of Mandamus, In re Landry,

No. 23-30642, Dkt. 2-1

(CA5 Sept. 15, 2023) ...................... 15, 16, 17, 18, 20

Petitioners’ Reply Br., In re Landry, No. 23-30642,

Dkt. 24 (CA5 Sept. 21, 2023) ........................... 19, 29

Potter, Census 2020 Results: Here’s How Louisiana

Looks After a Decade of Change, Daily Advertiser

(Aug. 12, 2021), https://perma.cc/66D3-HHAZ ....... 8

QuickFacts: St. James Parish, Louisiana, U.S.

Census Bureau, https://tinyurl.com/mwr47bvv

(last visited Jan. 8, 2025)......................................... 8

Race and Ethnicity in the United States: 2010 Census

and 2020 Census, U.S. Census Bureau,

https://tinyurl.com/5fwyfwej (last visited

Jan. 8, 2025) ......................................................... 7, 8

vii

Reply Brief for Appellants, Robinson v. Ardoin, No.

22-30333, 2023 WL 4855350

(CA5 July 19, 2023).......................................... 15, 16

Rich, Poor, Young, Old: Congressional Districts at a

Glance, Bloomberg Government (Sep. 15, 2017),

https://about.bgov.com/insights/news/rich-pooryoung-old-congressional-districts-glance/ ............... 7

Tsesis, Enforcement of the Reconstruction

Amendments, 78 Wash. & Lee L. Rev. 849

(2021) ...................................................................... 27

CONSTITUTIONAL PROVISIONS

U.S. Const. art. VI, cl. 2 ...................................... 20, 23

U.S. Const. amend. XIV, § 1...................................... 28

U.S. Const. amend. XIV, § 5...................................... 25

U.S. Const. amend. XV, § 2 ....................................... 25

INTEREST OF AMICUS CURIAE

The Project on Fair Representation is a publicinterest organization committed to the principle that

racial and ethnic classifications are unconstitutional,

unfair, and harmful. It works to advance race-neutral

rules in education, government action, and voting. The

Project pursues these goals through education and

advocacy and has been involved in several cases before

the Supreme Court involving these important issues.

The Project opposes racial gerrymandering of all

kinds. Eliminating racial sorting in districting is not

only what our Constitution requires, but it is also a

needed remedy for our Nation’s increasingly polarized

and racialized politics. Because S.B. 8 structures

elections based on citizens’ races, the Project has a

direct interest in this case and filed an amicus brief

below regarding remedies. D. Ct. Dkt. 231. *

* Under Rule 37.6, no counsel for a party authored this brief in

whole or in part, and no person other than amicus curiae or its

counsel made a monetary contribution to its preparation or

submission.

SUMMARY OF THE ARGUMENT

All too often, Voting Rights Act litigation in the last

40 years has led to voters being cobbled together by

race. Even as societal racial segregation wanes and

our neighborhoods better reflect the diversity of

America, some States wield the VRA to force us

backwards, splitting apart multi-racial and multiethnic neighborhoods to create racially homogeneous

voting districts. To be sure, sometimes this state

action comes after pressure from litigants. But no

matter its impetus, treating citizens differently based

on their race violates the Constitution.

Here, pressured by a VRA suit, Louisiana

voluntarily enacted a new congressional map in an

extraordinary legislative session with an overriding

purpose: to separate citizens by race and create

another majority-minority district. Of course, as with

every state action, Louisiana had secondary purposes

too, including protecting incumbents. But it is

undeniable that the new map in S.B. 8 would not exist

absent a dominating intent to draw another majorityminority district—thereby providing less than

proportional representation to Louisiana’s non-black

voters. As the State forthrightly explains, “[t]he new

district had to be a majority-Black district.”

Appellant’s Br. 36. That was the point of S.B. 8’s

expedited proceedings, which lasted just eight days

from introduction to signature into law.

Unfortunately, this situation exemplifies the

mismatch between the VRA’s original goal—to

enfranchise black voters—and its applications today.

Not only have racial attitudes dramatically changed

for the better since the VRA’s passage in 1965, but

three developments in the last 40 years have turned

the VRA on its head. The first was the development of

powerful and affordable microprocessors and software

that facilitated the creation of voting districts

constructed with extremely small units of race-specific

geography strung together over disparate land

areas—in other words, racial gerrymandering. The

second was the acceleration of suburban population

growth throughout the nation in multi-racial

neighborhoods. The third was the development of

jurisprudence geared toward “fair representation” of

racial groups instead of individual rights.

Today, black and Hispanic candidates, like white

candidates, almost always succeed or fail based on

their partisan affiliation, and very rarely because of

their race. 1 Yet thanks to the developments just

discussed, modern applications of the VRA tend to

engineer election outcomes in which minority voters

elect minority candidates in proportion to their

percentage of the population, free from the hassles of

forming multi-racial coalitions. The quest to achieve

racially proportional representation thus results in

racially gerrymandered voting districts.

That’s what happened here. On a quest to draw a

second

majority-minority

district,

Louisiana

subordinated other considerations to race and divided

neighborhoods up, block by block, to ensure sufficient

racial segregation in its congressional map. In the

Cf. Borelli, Americans Differ Over How Important It Is for

Political Candidates They Support to Share Their Personal

Traits, Pew Research Center (Oct. 3, 2023), https://tinyurl.com/

35av7ryj.

process, Louisiana “fenc[ed] [non-black] citizens out

of” districts so that black voters could have superproportional representation. Gomillion v. Lightfoot,

364 U.S. 339, 341 (1960). The result was a convoluted

map that never would’ve existed without making race

the main consideration.

The court below correctly held “that SB8 violates

the Equal Protection Clause as an impermissible

racial gerrymander.” J.S. App. 67a. The Fourteenth

and Fifteenth Amendments “nullif[y] sophisticated as

well as simple-minded modes of discrimination.”

Gomillion, 364 U.S. at 342 (cleaned up). Yet

Louisiana’s discrimination was hardly sophisticated.

Rather than recognizing Louisiana’s demographically

diverse neighborhoods, the State segregated them

block-by-block in pursuit of an artificial proportional

(or more) representation for a particular racial group.

To justify this discrimination, the State has

pointed to the tentative findings of another district

court applying the VRA to a prior map. Those

preliminary findings are irrelevant, even if compliance

with a statute could ever justify racial discrimination.

The State disagreed with those findings, so its goal in

S.B. 8 was not to comply with the VRA—it believed

that it already had. Rather, the State’s goal was a

litigation strategy one: to avoid a trial. But the

People’s right to equal protection of the laws should

not be subordinated to either a State’s litigation

exhaustion or preliminary trial court findings.

More generally, the People’s constitutional right to

elections free of invidious racial discrimination should

never be traded away to appease a statute. The

Constitution wins over statutes. And the

Reconstruction

Amendments’

extraordinary

authority, including the power to enforce the

Fourteenth Amendment’s guarantee of equal

protection, was given to Congress to combat continued

state efforts to discriminate based on race. Louisiana’s

map is an example of state racial discrimination, so the

State cannot claim refuge in the VRA—or use the VRA

to perpetuate unconstitutional discrimination.

Neither States nor courts have any leeway to depart

from the Constitution.

As Justice O’Connor explained, “At the same time

that we combat the symptoms of racial polarization in

politics, we must strive to eliminate unnecessary racebased state action that appears to endorse the

disease.” Bush v. Vera, 517 U.S. 952, 993 (1996)

(concurring opinion). Louisiana’s S.B. 8 manifests

discrimination that the Constitution bars. The Court

should affirm.

ARGUMENT

I. S.B. 8 does not reflect the realities of

Louisiana’s multi-racial neighborhoods.

As is increasingly common across the nation,

Louisiana has multi-ethnic and multi-racial

neighborhoods dispersed throughout the State. But

rather than prioritize keeping those neighborhoods

together, the State systematically segregated those

neighborhoods in pursuit of misplaced notions about

proportional representation.

A. Proportional representation is not the

norm in single-member districts.

As Louisiana legislators repeatedly explained, the

fundamental point of SB8 was “to draw a second

majority-minority seat.” J.S. App. 21a. The legislators

worked backwards from that assumption of a need for

“proportional” representation for black voters. But

this assumption of proportional representation turns

out to be far less defensible than it appears. That is

because “the representational baseline for singlemember districts is strongly dictated by the specific

political geography of each time and place.” Duchin et

al.,

Locating

the

Representational

Baseline:

Republicans in Massachusetts, 18 Election L.J. 388,

392 (2019). And Louisiana features a widely-dispersed

black population, with citizens of every race mingling

in neighborhoods throughout the State. That

dispersion means that proportional representation is

not the norm: it can be achieved only through

intentional racial division.

Many examples from elsewhere prove the general

point. In Massachusetts, for instance, Republican

voters are 35 percent of the population but because of

their uniform distribution throughout the State, “1/3

of the vote prov[es] insufficient to secure any

representation.” Id. at 389 (emphasis omitted); cf.

Rucho v. Common Cause, 588 U.S. 684, 705 (2019)

(noting that in 1840, the Whigs in Alabama “garnered

43 percent of the statewide vote, yet did not receive a

single seat” in the House of Representatives).

Likewise, even though the population of the United

States is about 14% black, 2 no U.S. Senate district (a

State) is majority black. Twenty-one percent of

Floridians are at least 65 years old, but they do not

have a majority in any of the State’s 27 U.S. House

districts—even in District 11, the U.S. congressional

district with the highest percentage of citizens 65 and

older. 3 At the extreme, take a hypothetical ten-district

State with 100 voters per district, in which a group

constituting only 50 percent of the population (500

voters) could form a majority in nine districts if their

geographic dispersion was such that those districts

each contained 51 group members. The point is that

political geography matters.

What is true nationally is true in Louisiana. Fiftysix of Louisiana’s 64 parishes are majority white (and

one plurality white), while only seven are majority

black. 4 Louisiana’s “Black populations” are “very

2 Race and Ethnicity in the United States: 2010 Census and 2020

Census, U.S. Census Bureau, https://tinyurl.com/5fwyfwej (last

visited Jan. 8, 2025).

3 See 2022: ACS 1-Year Estimates Data Profiles, U.S. Census

Bureau, https://data.census.gov/table/ACSDP1Y2022.DP05?g=

040XX00US12 (last visited Jan. 8, 2025) (providing data for

Floridian population); Florida 11th Congressional District

Demographics,

BiggestUSCities.com

(Mar.

2022),

https://tinyurl.com/55nyn7ap (providing data for Eleventh

District); Rich, Poor, Young, Old: Congressional Districts at a

Glance,

Bloomberg

Government

(Sep.

15,

2017),

https://about.bgov.com/insights/news/rich-poor-young-oldcongressional-districts-glance/ (same).

4 Race and Ethnicity in the United States, supra note 2.

dispersed” “in virtually every parish in the state.” 5

Black Louisianians live in majority-white places like

Gramercy (St. James Parish, 48% black) and Vidalia

(Concordia Parish, 41% black), exemplifying the fact

that “the entire state has noteworthy local areas of

statistically significant clusters,” “and the Black

voting age population clusters are often not close

together.” 6

This trend has only increased in recent years. For

instance, Hurricane Katrina “significantly accelerated

the dispersion of Black voters from Southeastern

Louisiana to other areas.” 7 Nearly every Louisiana

parish became more diverse from 2010 to 2020,

making a compact district composed mostly of one

racial group all the more unlikely. 8 Thus, as a matter

of political geography, Louisiana’s longstanding single

majority-minority district comes as no surprise:

Defendants’ Amended Joint Proposed Findings of Fact and

Conclusions of Law 43, Robinson v. Landry, No. 22-cv-00211,

Dkt. 166 (M.D. La. May 23, 2022). Cites hereinafter to this

Robinson docket are listed as “Robinson Dkt.”

6 Expert Report of Dr. Alan Murray 5, 25, Robinson Dkt. 169-12

(M.D. La. May 9, 2022); see Louisiana: 2020 Census, U.S. Census

Bureau (Aug. 25, 2021), https://www.census.gov/library/stories/

state-by-state/louisiana-population-change-between-censusdecade.html; Race and Ethnicity in the United States, supra note

2; QuickFacts: St. James Parish, Louisiana, U.S. Census Bureau,

https://tinyurl.com/mwr47bvv (last visited Jan. 8, 2025);

Gramercy

Town,

Louisiana,

U.S.

Census

Bureau,

https://tinyurl.com/2m6hmhd7 (last visited Jan. 8, 2025).

7 D. Ct. Dkt. 191 ¶¶ 142–43.

8 See Potter, Census 2020 Results: Here’s How Louisiana Looks

After a Decade of Change, Daily Advertiser (Aug. 12, 2021),

https://perma.cc/66D3-HHAZ.

“demographic distribution is simply too diffuse to

generate a majority voting age population in any

district outside of the Orleans Parish region.” Hays v.

Louisiana, 862 F. Supp. 119, 124 n.4 (W.D. La. 1994).

B. Forcing

proportional

representation

results in racial discrimination.

“[A]s residential segregation decreases—as it has

sharply done since the 1970s—satisfying traditional

districting criteria such as the compactness

requirement becomes more difficult” in designing

maps that purport to provide “proportional

representation.” Allen v. Milligan, 599 U.S. 1, 28–29

(2023) (cleaned up). That is another way of saying that

drawing proportional maps increasingly requires

subordinating traditional districting criteria to race.

“In most states, it seems, minority voters are

geographically distributed in such a way that a

proportional share of reasonable-looking opportunity

districts cannot be drawn.” Chen & Stephanopoulos,

The Race-Blind Future of Voting Rights, 130 Yale L.J.

862, 921 (2021).

Using computer models, experts have drawn “two

million maps made for Louisiana’s congressional

delegation” that are compact and contiguous (and the

proper size), and “just six districting plans included

[one] majority-Black district.” Duchin & Spencer,

Models, Race, and the Law, 130 Yale L.J.F. 744, 796

n.75 (2021) (emphases altered). “The remaining

1,999,994 plans had zero majority-minority districts.”

Ibid. (emphasis added). Drawing two here meant

making race the non-negotiable operating principle.

When the government “intentionally creates a

majority-minority district, race is necessarily its

predominant motivation.” League of United Latin Am.

Citizens v. Perry, 548 U.S. 399, 517 (2006) (“LULAC”)

(Scalia, J., concurring in judgment in part and

dissenting in part, joined by Roberts, C.J., and

Thomas & Alito, JJ.); see Vera, 517 U.S. at 1001

(Thomas, J., concurring in judgment) (a map that

“would not have existed but for the express use of

racial classifications” “must be viewed as a racial

gerrymander”). And the Supreme Court recently

reiterated that “[f]orcing proportional representation

is unlawful.” Allen, 599 U.S. at 28.

Forcing proportional representation inevitably

means segregating citizens based on their race.

“Distinctions between citizens solely because of their

ancestry are by their very nature odious to a free

people whose institutions are founded upon the

doctrine of equality.” Students for Fair Admissions,

Inc. v. President & Fellows of Harvard College, 600

U.S. 181, 208 (2023) (cleaned up). “For that reason,”

official “classification or discrimination based on race”

is “a denial of equal protection.” Hirabayashi v. United

States, 320 U.S. 81, 100 (1943). “At the heart of the

Constitution’s guarantee of equal protection lies the

simple command that the Government must treat

citizens as individuals, not as simply components of a

racial, religious, sexual or national class.” Miller v.

Johnson, 515 U.S. 900, 911 (1995) (cleaned up); see

Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan,

J., dissenting) (“The law” “takes no account of” a

citizen’s “color when his civil rights as guaranteed by

the supreme law of the land are involved.”).

Voting laws that prescribe differential treatment

for citizens based on their race are not “excepted from

standard equal protection precepts.” Miller, 515 U.S.

at 914. “Under the Equal Protection Clause,

districting [laws] that sort voters on the basis of race

‘are by their very nature odious.’” Wisconsin

Legislature v. Wisconsin Elections Comm’n, 595 U.S.

398, 401 (2022) (quoting Shaw v. Reno, 509 U.S. 630,

643 (1993)). These laws “tend[] to sustain the

existence of ghettos by promoting the notion that

political clout is to be gained or maintained by

marshaling particular racial, ethnic, or religious

groups in enclaves.” Johnson v. De Grandy, 512 U.S.

997, 1030 (1994) (Kennedy, J., concurring in part and

in judgment) (cleaned up).

Recognizing the danger of artificial proportional

representation is no mere technicality. “When the

State assigns voters on the basis of race, it engages in

the offensive and demeaning assumption that voters

of a particular race, because of their race, think alike,

share the same political interests, and will prefer the

same candidates at the polls.” Miller, 515 U.S. at 911–

12 (cleaned up). “In doing so, the [State] furthers

stereotypes that treat individuals as the product of

their race, evaluating their thoughts and efforts—

their very worth as citizens—according to a criterion

barred to the Government by history and the

Constitution.” Students for Fair Admissions, 600 U.S.

at 221 (cleaned up). These classifications necessarily

“promote notions of racial inferiority and lead to a

politics of racial hostility.” City of Richmond v. J.A.

Croson Co., 488 U.S. 469, 493 (1989) (plurality

opinion). When racial lines are drawn, “the

multiracial . . . communities that our Constitution

seeks to weld together as one become separatist;

antagonisms that relate to race . . . rather than to

political issues are generated; communities seek not

the best representative but the best racial

. . . partisan.” Reno, 509 U.S. at 648 (quoting Wright v.

Rockefeller, 376 U.S. 52, 67 (1964) (Douglas, J.,

dissenting)).

In sum, in a State with Louisiana’s multi-racial

neighborhoods,

proportional

representation

practically impossible apart from intentional race

discrimination. The State should celebrate these

neighborhoods, recognize them as units, and

encourage them to stand together in democratic

representation. One way to achieve that goal, for

instance, would have been to rely on elementary

school attendance zones, which are drawn using

connected neighborhoods. Neighborhoods should not

be split apart by block to divide citizens based on their

race. “[S]ystematically dividing the country into

electoral districts along racial lines” is “nothing short

of a system of ‘political apartheid.’” Holder v. Hall, 512

U.S. 874, 905 (1994) (Thomas, J., concurring in

judgment) (quoting Reno, 509 U.S. at 647). Because

that was the predominant goal and effect of S.B. 8, the

district court rightly held that the State unlawfully

discriminated based on race.

II.

Fears about trial court feelings cannot

excuse racial discrimination.

The State insists that S.B. 8 is constitutional

anyway because it was worried about a trial before the

court in the prior Robinson proceeding. But the State’s

actual purpose in enacting S.B. 8 was not to comply

with the VRA, for it believed that it already did.

Instead, the State’s purpose was to avoid further

litigation. No court in Robinson adjudicated a VRA § 2

violation. And no decision in Robinson (that was not

vacated) ordered the State to do anything.

As the State previously explained, S.B. 8 “[wa]s not

a ‘remedial map.’” Robinson Dkt. 352-1 at 8. Though

the old map (H.B. 1) had been subject to legal

challenges, “there was no judgment or finding of a

violation” of the VRA. Id. at 9. “[A] trial on the merits

had yet to occur when the State passed” S.B. 8. Ibid.

Rather than defend H.B. 1 at trial, “the Legislature

voluntarily discontinued the challenged practice.”

Robinson v. Ardoin, No. 22-cv-211, 2024 WL 1812141,

at *3 (M.D. La. Apr. 25, 2024); see D. Ct. Dkt. 192 at 1

(State’s post-trial brief noting that it “chose” to draw a

discriminatory map instead of “go[ing] to trial”).

At a minimum, when the State’s actual purpose is

not VRA compliance, the State cannot excuse racial

discrimination by invoking litigation fears. Of course,

compliance with a statute should never justify

otherwise unconstitutional discrimination. When a

statute and the Constitution are at odds, the

Constitution wins. That conclusion follows from both

general constitutional principles and the history of the

Reconstruction

Amendments.

The

People’s

constitutional

protections

against

racial

discrimination should not turn on the whims of

Congress, States’ litigating tactics, or predictions

about trial court feelings.

A. The State did not believe S.B. 8 was

needed to comply with the VRA.

This Court has “assume[d], arguendo” “that

compliance with § 2 could be a compelling interest” for

strict scrutiny purposes. Shaw v. Hunt, 517 U.S. 899,

915 (1996). Under this “assumed” permission to use

VRA compliance as a justification for intentional

racial discrimination, “the State must show that the

alleged objective was the legislature’s ‘actual purpose’

for the discriminatory classification.” Id. at 908 n.4.

This Court has “never applied this assumption to

uphold a districting plan” under § 2 “that would

otherwise violate the Constitution,” Allen, 599 U.S. at

79 (Thomas, J., dissenting), and it should not do so

here.

Here, Louisiana’s “actual purpose” in enacting S.B.

8 was not complying with the VRA, for it believed that

it already did. Instead, it wanted to avoid further

litigation because of fears about one trial court’s

feelings. See D. Ct. Dkt. 192 at 11 (the State

explaining that it did not want “to go to trial on H.B.

1 . . . before a factfinder who had already made her

views abundantly clear”). That is not enough for “a

strong basis in evidence to support [any VRA]

justification.” Hunt, 517 U.S. at 908 n.4.

To begin, legislating out of fear of what one judge’s

preliminary injunction—vacated on appeal—might

portend about future litigation is not a narrowly

tailored way to advance an interest of the highest

order. “At the preliminary injunction stage, the court

is called upon to assess the probability of the plaintiff’s

ultimate success on the merits.” Sole v. Wyner, 551

U.S. 74, 84 (2007). It is “only the parties’ opening

engagement,” and any “provisional relief granted” is

“tentative,” “in view of the continuation of the

litigation to definitively resolve the controversy.” Ibid.

“[T]he findings of fact and conclusions of law made by

a court granting a preliminary injunction are not

binding at trial on the merits.” Univ. of Texas v.

Camenisch, 451 U.S. 390, 395 (1981).

As the State told the Fifth Circuit, the district

court in Robinson never “even reached a final

determination that there even is a Section 2 violation.”

Reply Brief for Appellants 31, Robinson v. Ardoin, No.

22-30333, 2023 WL 4855350 (CA5 July 19, 2023)

(“Robinson Reply Br.”); see generally Pet. for a Writ of

Mandamus 14–16, In re Landry, No. 23-30642, Dkt. 21 (CA5 Sept. 15, 2023) (“Mandamus Pet.”) (similar);

contra U.S. Br. 22, 28, 30 (referring to a nonexistent

“Section 2 violation that the Robinson courts had

already found” and “decisions finding a Section 2

violation,” and asserting that “a VRA claim ha[d] in

fact been adjudicated”).

That the Fifth Circuit tentatively agreed with the

Robinson district court’s preliminary findings—while

vacating its injunction—is not compelling either. The

scope of appellate review of a preliminary injunction

is circumscribed, as the appeals court asks merely

“whether the District Court had abused its discretion

in issuing a preliminary injunction,” an inquiry that is

“significantly different” from “a final resolution of the

merits.” Camenisch, 451 U.S. at 393. Because of the

limited “extent of [the] appellate inquiry,” the Fifth

Circuit necessarily “intimate[d] no view as to the

ultimate merits of [the Robinson Plaintiffs’]

contentions.” Doran v. Salem Inn, Inc., 422 U.S. 922,

934 (1975) (cleaned up).

The State now seems to concede that no court order

required it to discriminate based on race, instead

calling such a map “an impending reality.” Appellant’s

Br. 34. But that speculative assertion ignores that the

State could have presented more evidence at trial or

pursued any number of appellate avenues. See

Robinson v. Ardoin, 37 F.4th 208, 215 (CA5 2022)

(noting that the Robinson plaintiffs “have much to

prove when the merits are ultimately decided”); In re

Landry, 83 F.4th 300, 305 (CA5 2023) (emphasizing

that any “court-ordered redistricting plan will be

appealed to this court and likely to the Supreme

Court”).

On the point about more evidence, the State itself

emphasized the error of “assum[ing] the evidence

taken at a preliminary injunction hearing will be the

same as the evidence developed at a full trial on the

merits.” Robinson Reply Br. 28–29. The State

continued: “To say that the preliminary injunction

proceedings here proceeded on the basis of procedures

that were less formal and evidence that is less

complete than a trial on the merits is an

understatement.” Id. at 29. “The preliminary

injunction hearing was held on an extremely

expedited basis . . . less than 45 days from the filing of

the complaint,” “[n]o fact discovery was conducted,”

and expert depositions were not taken. Ibid. According

to the State, “That is not the fulsome record required

to adjudicate claims arising under Section 2 of the

Voting Rights Act.” Ibid.; see also Mandamus Pet. 11

(the State noting that the “preliminary-injunction

order” “(1) was justified based on an event that has

since passed (the November 2022 congressional

elections), (2) was rushed so terrifically that the State

was not able to fully defend its work, and (3) relied on

now-outdated Section 2 and Equal Protection

jurisprudence”); id. at 18 (“[T]he lack of evidentiary

quality, given the rushed nature of the proceedings

during the run-up to the 2022 congressional elections,

is what renders a full trial on the merits critical to

ensuring that the district court reaches a correct and

just outcome.”).

Even if the trial went south, the State would have

had several avenues to appeal. Indeed, the State had

already succeeded on several of those avenues,

obtaining (1) a stay by this Court, 142 S. Ct. 2892,

(2) vacatur of the preliminary injunction, Robinson v.

Ardoin, 86 F.4th 574, 602 (CA5 2023), and

(3) mandamus by the Fifth Circuit halting the

Robinson district court’s attempt to impose a

preliminary remedial map, Landry, 83 F.4th at 308.

Despite all this, the State evidently tired of

“f[ighting] vigorously for the mere opportunity to

make its case.” Mandamus Pet. 17. It folded. And it

voluntarily chose to adopt its own discriminatory

map—not even a map suggested in Robinson. As the

State’s prior briefing well explains—contrary to its

current position—a trial court’s preliminary dictum is

neither a gun to the head nor “the best of reasons to”

discriminate based on race. Appellant’s Br. 35, 45.

To read the Robinson decisions more broadly is to

assign those courts authority that they did not have.

In the State’s words, “[t]here is no legally defensible

reason” that “the district court’s preliminary-

injunction order [would] control its resolution of the

[Robinson] Plaintiffs’ claims on the merits.”

Mandamus Pet. 20. That vacated order is no strong

basis in the evidence to excuse racial discrimination.

In any event, even if the Robinson preliminary

order could be read to provide a basis in evidence, the

State’s defense here fails because it did not believe it

had violated the VRA. So its “actual purpose” in

passing S.B. 8 was to avoid further litigation—not to

achieve compliance with a statute that it believed it

already complied with. Hunt, 517 U.S. at 908 n.4; see

J.S. App. 15a. None of the legislative statements relied

on by the State (Appellant’s Br. 10–12) refers to VRA

compliance. It defies logic to excuse a State’s

constitutional violation on the ground that it had

“good reason to believe” a § 2 violation existed when it

did not in fact believe that. Cooper v. Harris, 581 U.S.

285, 302 (2017). “[D]eferring to a State’s belief that”

someone else might think “it has good reasons to use

race—is ‘strict’ in name only.” Bethune-Hill v. Virginia

State Bd. of Elections, 580 U.S. 178, 202 (2017)

(Thomas, J., concurring in judgment in part and

dissenting in part); cf. Appellant’s Br. 40 (the State

now justifying its discriminatory map because “the

Robinson Plaintiffs would have just sued Louisiana

again”).

The State says that the Appellees here “do not

argue that—without the Legislature’s adoption of S.B.

8—the Middle District would have upheld H.B. 1.”

Appellant’s Br. 49. Putting aside that it would be

obscene to make the guarantee of equal protection

turn on a guessing game about a trial that never

started, two can play the game: the State does not

argue that any eventual order by the Middle District

holding H.B. 1 unlawful would have been affirmed by

a skeptical Fifth Circuit. See, e.g., Robinson, 86 F.4th

at 598 (emphasizing that “the Plaintiffs’ arguments

‘are not without weaknesses’” (quoting Robinson, 37

F.4th at 215)).

As the State elsewhere said, “[i]ssuing a [racebased] remedy without establishing liability is a

constitutional violation of the highest order.”

Petitioners’ Reply Br. 1, Landry, Dkt. 24 (CA5 Sept.

21, 2023) (“Mandamus Reply Br.”). The State offers no

support for its theory that a single trial court’s

intimations in a vacated order are enough to

transmogrify unconstitutional racial discrimination

into the law of the land.

B. Statutory compliance cannot justify a

constitutional violation.

Regardless, no matter how much “the Middle

District was dedicated to creating a second majorityBlack district in Louisiana,” Appellant’s Br. 49, the

People have expressed their law foremost through the

Constitution—not the future and unordered hopes of

one trial court. The Equal Protection Clause “requires

equality of treatment before the law for all persons

without regard to race.” Students for Fair Admissions,

600 U.S. at 205. And, to use the State’s words again,

“Louisiana’s entire electorate” should not be made to

“suffer[] an irreversible Fourteenth Amendment

violation when they next cast their ballots for their

congressional representatives” because of a State’s

predictions about one trial court’s feelings or litigation

exhaustion. Emergency App. for Admin. Stay, Stay

Pending Appeal, and Pet. for Writ of Cert. Before

Judgment 39, Ardoin v. Robinson, No. 21A814, 2022

WL 2441061 (U.S. June 17, 2022); see Mandamus

Pet. 11 (the State emphasizing that “the Louisiana

electorate will experience profound and irreparable

injury” from a discriminatory map).

When a statute and the Constitution are in

tension, the Constitution should always win. A statute

cannot be applied in unconstitutional ways. And a

State cannot justify unconstitutional discrimination

by pointing to a statute’s otherwise lawful sweep. Both

general

constitutional

principles

and

the

Reconstruction Amendments refute the idea that

compliance with the VRA justifies violating the

Constitution. “[I]f complying with a federal statute

would require a State to engage in unconstitutional

racial discrimination, the proper conclusion is not that

the statute excuses the State’s discrimination, but

that the statute is invalid.” Allen, 599 U.S. at 79

(Thomas, J., dissenting).

1. The VRA is subject to the Constitution.

Any assumption that compliance with the VRA can

justify a constitutional violation is wrong as a matter

of first principles. In other words, even assuming some

new map was necessary to comply with the VRA, it

makes no sense to characterize compliance with a

statute as justifying a violation of the Constitution. See

Marbury v. Madison, 5 U.S. 137, 180 (1803)

(emphasizing “the principle, supposed to be essential

to all written constitutions, that a law repugnant to

the constitution is void; and that courts, as well as

other departments, are bound by that instrument”

(emphasis omitted)); see also U.S. Const. art. VI, cl. 2

(Supremacy Clause).

Assuming that statutory compliance excuses a

constitutional violation “take[s] the effect of the

statute and posit[s] that effect as the [government’s]

interest.” Simon & Schuster, Inc. v. Members of New

York State Crime Victims Bd., 502 U.S. 105, 120

(1991). “If accepted, this sort of circular defense

[would] sidestep judicial review of almost any statute,

because it makes all statutes look narrowly tailored.”

Ibid. Congress does not have “the power to determine

what are and what are not ‘compelling state interests’

for equal protection purposes.” Oregon v. Mitchell, 400

U.S. 112, 295 (1970) (Stewart, J., concurring in part

and dissenting in part).

“Racial balancing is not transformed from ‘patently

unconstitutional’ to a compelling state interest simply

by relabeling it” compliance with the VRA. Parents

Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551

U.S. 701, 732 (2007) (plurality opinion). “History

should teach” that courts cannot “distinguish good

from harmful governmental uses of racial criteria.” Id.

at 742. Any such distinction “reflects only acceptance

of the current generation’s conclusion that a politically

acceptable burden, imposed on particular citizens on

the basis of race, is reasonable.” Ibid.

That conclusion, in turn, hinges on “the very

stereotypical assumptions the Equal Protection

Clause forbids.” Miller, 515 U.S. at 914. Here, it is

“based on the demeaning notion that members of the

defined racial groups ascribe to certain ‘minority

views’ that must be different from those of other

citizens.” Ibid. This is “the precise use of race as a

proxy the Constitution prohibits.” Ibid.

In no other context would courts “assume[] away

part of the State’s burden to justify its intentional use

of race.” Bethune-Hill, 580 U.S. at 200 (Thomas, J.,

concurring in judgment in part and dissenting in

part). It might have once made sense to assume a

compelling interest in complying with § 5 of the VRA,

when it was “a proper exercise of Congress’s authority”

and “remed[ied] identified past discrimination” in

“jurisdictions with a history of official discrimination.”

LULAC, 548 U.S. at 518–19 (Scalia, J., concurring in

judgment in part and dissenting in part). That does

not describe the partisan food fights that are the focus

of today’s VRA § 2. Assuming today that compliance

with § 2 is a compelling interest absent identifiable

(and intentional) past discrimination inverts our

constitutional order. Perhaps for these reasons, the

State does not even attempt to defend this assumption

about statutory compliance as a compelling interest.

Invoking Justice Scalia’s opinion in LULAC about

VRA § 5, the United States bemoans placing States

“‘in the impossible position of having to choose’

between complying with a valid federal statute and

complying with the Equal Protection Clause.” Br. 23

n.2 (quoting LULAC, 548 U.S. at 518 (Scalia, J.,

concurring in judgment in part and dissenting in

part)). 9 But even putting aside that VRA § 2 is not § 5,

the United States omits Justice Scalia’s emphasis that

“the State must demonstrate that such compliance

was its ‘actual purpose.’” LULAC, 548 U.S. at 519

(cleaned up). As shown above, the State’s actual

9 The United States has since disavowed its brief here.

purpose was not to comply with the VRA, but to avoid

further litigation.

Justice Scalia also said that “the State must

demonstrate that” the decision “was ‘reasonably

necessary under a constitutional reading and

application of’ the [VRA].” Ibid. (quoting Miller, 515

U.S. at 921). Here, as the court below held, S.B. 8

“violates the Equal Protection Clause as an

impermissible racial gerrymander.” J.S. App. 67a.

And if an application of a “valid federal statute” (U.S.

Br.

n.2)—whatever

that

means 10—is

unconstitutional, the choice before either a State or a

court is easy. See Marbury, 5 U.S. at 180; see also U.S.

Const. art. VI, cl. 2; Barr v. Am. Ass’n of Pol.

Consultants, Inc., 591 U.S. 610, 627 n.8 (2020)

(plurality opinion) (describing the judicial power

under Article III as “the negative power to disregard

unconstitutional

enactment”

(quoting

Massachusetts v. Mellon, 262 U.S. 447, 488 (1923))).

That choice is no more “impossible” than the ones

faced by States in the desegregation era between

complying with a state statute and complying with the

Constitution. See generally Br. for America First

Legal 23–30, Allen v. Milligan, Nos. 21-1086, 21-1087

(U.S. May 2, 2022). Or the one faced by Massachusetts

between complying with the federal Aid to Families

with Dependent Children statute—which required

10 See generally Mitchell, The Writ-of-Erasure Fallacy, 104 Va. L.

Rev. 933 (2018); N.J. Thoroughbred Horsemen’s Ass’n v. Nat’l

Collegiate Athletic Ass’n, 584 U.S. 453, 489 (2018) (Thomas, J.,

concurring) (“[C]ourts do not have the power to ‘excise’ or ‘strike

down’ statutes.”).

sex-based distinctions—and complying with the

Constitution. See Califano v. Westcott, 443 U.S. 76,

78–79 (1979). The Constitution wins. And the State is

right that “the Court should say so.” Appellant’s

Br. 53.

Last, at least seven times, the State frets about

“breathing room” between “the VRA and the Equal

Protection Clause.” E.g., Appellant’s Br. 2. To the

extent “breathing room” means that the VRA boxes

out the Constitution, that is wrong. Beyond that, the

Court already gives States “breathing room” in this

area by upping the level of discriminatory purpose

necessary to prove an equal protection claim. In

almost all other contexts, an “invidious discriminatory

purpose” may not be even “a motivating factor.”

Village of Arlington Heights v. Metro. Hous. Dev.

Corp., 429 U.S. 252, 266 (1977). But here, the Court

has appeared to excuse a State’s racial discrimination

if it is merely “a motivation” rather than “the

predominant factor.” Easley v. Cromartie, 532 U.S.

234, 241 (2001) (cleaned up); id. at 257 (permitting

“racial considerations” that are not “dominant and

controlling”).

S.B. 8’s predominant motivation was racial, as the

court below correctly found. See D. Ct. Dkt. 192 at 1–

2 (the State explaining that “two majority-Black

district[s]” were the “baseline for S.B. 8”). And

“districting cases” are not supposed to be “excepted

from standard equal protection precepts.” Miller, 515

U.S. at 914. But if the concern is about giving States

room to depart from the Constitution, for better or

more likely worse, they already have it. There is no

reason to water down strict scrutiny

governments discriminate based on race.

when

2. The Reconstruction Amendments give

Congress power to stop States’

discrimination—they do not give States

power to keep discriminating.

Confirming this conclusion is the history of the

Reconstruction Amendments. Congress’s authority to

enact the VRA came from the Fourteenth and

Fifteenth Amendments, which permit Congress to

“enforce” those amendments’ substantive provisions

“by appropriate legislation.” U.S. Const. amend. XIV,

§ 5; id. amend. XV, § 2. Congress may enforce them

“by creating private remedies against the States for

actual violations.” United States v. Georgia, 546 U.S.

151, 158 (2006) (emphasis omitted). In other words,

the Reconstruction Amendments sought to give

Congress the power to stop States from discriminating

based on race, not to enable that discrimination.

“Congress does not have the power to authorize the

individual States to violate the Equal Protection

Clause.” Graham v. Richardson, 403 U.S. 365, 382

(1971).

Letting

States

Louisiana

continue

discriminating even in part based on race would turn

the Reconstruction Amendments on their head. Those

amendments conferred “extraordinary” power on

Congress to remedy racial discrimination—not power

on States to propound it. Shelby County v. Holder, 570

U.S. 529, 546 (2013). In the wake of the Civil War,

Congress recognized that the role of rebuilding had to

be placed “in the hands of men who would be loyal to

the Union.” Fernandez, The Constitutionality of the

Fourteenth Amendment, 39 S. Cal. L. Rev. 378, 385

(1966). The Reconstruction Congress understood that

this responsibility could not be left to the States:

Northern States denied black people the right to vote,

ex-Confederate soldiers threatened to disarm and

murder freedmen, and the South was implementing

the Black Codes. See McDonald v. City of Chicago, 561

U.S. 742, 772 (2010); Amar, The Lawfulness of Section

5—and Thus of Section 5, 126 Harv. L. Rev. F. 109,

113 (2013); Lash, Enforcing the Rights of Due Process:

The Original Relationship between the Fourteenth

Amendment and the 1866 Civil Rights Act, 106 Geo.

L.J. 1389, 1396 (2018). Congressional Republicans,

heeding the lessons of the Civil War, understood that

the restoration of the Union required a strong federal

government and protection of civil rights. See

Students for Fair Admissions, 600 U.S. at 239

(Thomas, J., concurring); Balkin, The Reconstruction

Power, 85 N.Y.U. L. Rev. 1801, 1807, 1810 (2010). The

job of reconstructing the Union fell to the federal

government.

Faced with the responsibility of stabilizing a

wounded nation, the federal government sought to

exercise greater power. Using the Republican

Guarantee Clause, Congress forced southern States to

adopt new constitutions that “establish[ed] a raceneutral voting system” and “promise[d] to maintain

this race-neutral suffrage regime forever thereafter.”

Amar, supra, at 111. Congress also passed the Civil

Rights Act of 1866 to outlaw slavery, guarantee equal

protection, and expand citizenship to all those born on

U.S. soil regardless of race. § 1, 14 Stat. 27.

But some questioned whether Congress had

authority to enforce the Civil Rights Act. In his veto

message to Congress, President Johnson wrote that

the provisions of the Act “destroy our federative

system of limited powers and break down the barriers

which preserve the rights of the States.” Cong. Globe,

39th Cong., 1st Sess. 1681 (1866). Even

Representative John Bingham, a zealous supporter of

civil rights and key framer of the Fourteenth

Amendment, viewed the Civil Rights Acts as

exceeding congressional authority. Goldstein, The

Birth and Rebirth of Civil Rights in America, 50 Tulsa

L. Rev. 317, 321 (2015).

To remedy this problem and “provide a

constitutional basis for protecting the rights set out in

the Civil Rights Act of 1866,” Congress passed the

Reconstruction Amendments. McDonald, 561 U.S. at

775. These amendments included enforcement clauses

“drafted to give Congress the power to act against

state racial discrimination.” Tsesis, Enforcement of the

Reconstruction Amendments, 78 Wash. & Lee L. Rev.

849, 904 (2021). These amendments enabled the

federal government to “intrude[] into legislative

spheres of autonomy previously reserved to the

States.” City of Boerne v. Flores, 521 U.S. 507, 518

(1997) (cleaned up). And they enabled the federal

government to use remedies like the VRA’s, all thanks

to “the authority of Congress under the

Reconstruction Amendments.” Vera, 517 U.S. at 992

(O’Connor, J., concurring). The VRA was “part of the

apparatus chosen by Congress to effectuate this

Nation’s commitment to confront its conscience and

fulfill the guarantee of the Constitution with respect

to equality in voting.” Ibid. (cleaned up). Congress

considered the VRA “necessary and appropriate to

ensure full protection of the Fourteenth and Fifteenth

Amendments rights.” Ibid. (cleaned up).

States do not share those same congressional

prerogatives under the Reconstruction Amendments.

Of course, federalism did not end with the passage of

the Fourteenth Amendment, and States “retain broad

autonomy in structuring their governments and

pursuing legislative objectives,” including “the power

to regulate elections.” Shelby County, 570 U.S. at 543

(cleaned up). Louisiana can adopt laws that expand

the protections available to voters. But it must not

violate citizens’ rights under the Fourteenth

Amendment. And “Congress has no affirmative power

to authorize the States to violate the Fourteenth

Amendment and is implicitly prohibited from passing

legislation that purports to validate any such

violation.” Saenz v. Roe, 526 U.S. 489, 508 (1999).

Race-based laws, by their very nature, entail

discrimination: one group receives preferential

treatment. When it comes to laws that require

governments to divide citizens based on race, the

Fourteenth Amendment makes clear that “[n]o State

shall” “deny to any person within its jurisdiction the

equal protection of the laws.” U.S. Const. amend. XIV,

§ 1. Letting a State’s litigating tactics or VRA excuses

limit the Constitution’s force gets the text, history,

and context of the Reconstruction Amendments

backwards. No matter the reason for what the State

describes as “the Legislature’s mission to add a second

majority-Black district,” Appellant’s Br. 34, “[t]he

history of racial classifications in this country

suggests that blind judicial deference to legislative or

executive pronouncements of necessity has no place in

equal protection analysis.” J.A. Croson, 488 U.S. at

501 (citing Korematsu v. United States, 323 U.S. 214,

235–240 (1944) (Murphy, J., dissenting)). “[W]orking

backward to achieve a particular type of racial

balance” “is a fatal flaw.” Parents Involved, 551 U.S.

at 729 (plurality opinion). Speculation about the VRA

is constitutionally irrelevant.

CONCLUSION

As the State once recognized, “The fairness of the

franchise in Louisiana is at issue here, as are

principles as deeply important to the fabric of our

Nation as the Equal Protection rights of thousands, if

not millions, of Louisiana voters.” Mandamus Reply

Br. 11. That the State gave up on those voters does not

mean that the courts must. “[D]iscrimination on the

basis of race is illegal, immoral, unconstitutional,

inherently wrong, and destructive of democratic

society.” Fullilove v. Klutznick, 448 U.S. 448, 548 n.21

(1980) (Stevens, J., dissenting) (cleaned up). And

racial gerrymandering “may balkanize us into

competing racial factions,” “threaten[ing] to carry us

further from the goal of a political system in which

race no longer matters—a goal that the Fourteenth

and Fifteenth Amendments embody, and to which the

Nation continues to aspire.” Bartlett v. Strickland, 556

U.S. 1, 21 (2009) (plurality opinion) (quoting Reno, 509

U.S. at 657). The district court rightly respected the

rights of Louisiana voters to elections free of invidious

racial discrimination. The Court should affirm.

Respectfully submitted,