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

Supreme Court briefJan 28, 2025

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Nos. 24-109, 24-110

In the

Supreme Court of the United States

──────────────────────────

STATE OF 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 OF ALABAMA AND 13 OTHER STATES AS

AMICI CURIAE IN SUPPORT OF APPELLEES

──────────────────────────

OFFICE OF THE ALABAMA

ATTORNEY GENERAL

501 Washington Avenue

Montgomery, AL 36130

(334) 242-7300

Edmund.LaCour@

AlabamaAG.gov

January 28, 2025

STEVE MARSHALL

Attorney General

EDMUND G. LACOUR JR.

Solicitor General

Counsel of Record

SOREN GEIGER

GEORGE MUIRHEAD

Assistant Solicitors General

Counsel for Amici Curiae

TABLE OF CONTENTS

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

TABLE OF AUTHORITIES...................................... iii

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

SUMMARY OF ARGUMENT .....................................3

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

SB8 Triggers Strict Scrutiny. ........................5

A. Race Predominated in SB8. .....................6

B. Pressure from the Robinson Courts

Does Not Spare SB8 from Strict

Scrutiny. ...................................................8

C. Only A “Proper Interpretation” of §2

Could Possibly Justify Race-Based

Districting. ...............................................9

II.

Robinson’s Interpretation of §2 Is Not

“Proper” Because It Jettisons the VoteDilution Test From Whitcomb and White. .. 11

A. Section 2 Codified the Vote-Dilution

Test from Whitcomb and White. ............ 12

B. Unequal Access to the Political

Process is a Necessary Element of a

§2 Claim.................................................. 13

C. The Robinson Courts Discerned No

Evidence of Unequal Access Yet Still

Found Vote Dilution............................... 21

III. Robinson’s Interpretation of §2 Is Not

“Proper” Because It Renders §2

Unconstitutional. ......................................... 23

IV. States Need Clarity Now More Than

Ever. .............................................................. 28

A. Gingles 1, in the Age of the

Algorithm, Provides Little Clarity

Today. ..................................................... 30

B. Lower Courts Are Expanding §2. .......... 31

CONCLUSION .......................................................... 35

iii

TABLE OF AUTHORITIES

Cases

Abbott v. Perez,

585 U.S. 579 (2018) .......................................... 1, 28

Abrams v. Johnson,

521 U.S. 74 (1997) ................................................ 33

Alabama Legislative Black Caucus v.

Alabama,

575 U.S. 254 (2015) ...................................... 7, 9, 11

Alexander v. S.C. NAACP,

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

Allen v. Milligan,

599 U.S. 1 (2023) ............ 2, 3, 12, 17, 27, 28, 30, 31

Alpha Phi Alpha Fraternity v. Raffensperger,

700 F. Supp. 3d 1136 (N.D. Ga. 2023) ..... 29, 32, 33

Bailey v. Vining,

514 F. Supp. 452 (M.D. Ga. 1981) ................. 20, 34

Baird v. Consolidated City of Indianapolis,

976 F.2d 357 (7th Cir. 1992) ................................ 22

Bartlett v. Strickland,

556 U.S. 1 (2009) .................................................. 10

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

580 U.S. 178 (2017) .......................................... 7, 31

Black Voters v. McDonough,

565 F.2d 1 (1st Cir. 1977) .................................... 19

Blacks United for Lasting Leadership v. City of

Shreveport,

571 F.2d 248 (5th Cir. 1978) ................................ 22

Bradas v. Rapides Parish Police Jury,

508 F.2d 1109 (5th Cir. 1975) .................. 18, 24, 34

Brnovich v. Democratic Nat’l Comm.,

594 U.S. 647 (2021) ............................ 12, 22, 27, 32

Cherry v. New Hanover Cnty.,

489 F.2d 273 (4th Cir. 1973) ................................ 19

Chisom v. Roemer,

501 U.S. 380 (1991) ...................... 11, 13, 14, 17, 19

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

488 U.S. 469 (1989) .............................................. 25

Cooper v. Harris,

581 U.S. 285 (2017) .......................................... 8-10

Dilliard v. City of Greensboro,

213 F.3d 1347 (11th Cir. 2000) ............................ 26

Dove v. Bumpers,

364 F. Supp. 407 (E.D. Ark. 1973)....................... 19

Dove v. Moore,

539 F.2d 1152 (8th Cir. 1976) .............................. 19

Edwards v. Aguillard,

482 U.S. 578 (1987) ................................................6

Gomillion v. Lightfoot,

364 U.S. 339 (1960) ............................................ 6, 7

Grutter v. Bollinger,

539 U.S. 306 (2003) .............................................. 25

Hunter v. Underwood,

471 U.S. 222 (1985) ................................................6

Johnson v. United States,

576 U.S. 591 (2015) ........................................ 24, 25

Kennedy v. Bremerton Sch. Dist.,

597 U.S. 507 (2022) .............................................. 10

LULAC v. Clements

999 F.2d 831 (5th Cir. 1993) .................... 19, 20, 31

McCleskey v. Kemp,

481 U.S. 279 (1987) ................................................6

McGill v. Gadsden County Commission,

535 F.2d 277 (5th Cir. 1976) .......................... 18, 34

McNeil v. Springfield Park Dist.,

851 F.2d 937 (7th Cir. 1988) ................................ 29

Merrill v. Milligan,

142 S.Ct. 879 (2022) ..................................... 1, 3, 28

Miller v. Johnson,

515 U.S. 900 (1995) ................................ 5, 8, 23, 33

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

2024 WL 3275965 (S.D. Miss. July 2, 2024) ....... 29

Mobile v. Bolden,

446 U.S. 55 (1980) ................................................ 12

Nairne v. Ardoin,

715 F. Supp. 3d 808 (M.D. La. 2024)............. 28, 34

Neal v. United States,

516 U.S. 284 (1996) .............................................. 34

Nevett v. Sides,

571 F.2d 209 (5th Cir. 1978) ................................ 19

Palmer v. Hobbs,

2024 WL 1138939

(W.D. Wash. Mar. 15, 2024) ................................ 32

Petteway v. Galveston County,

111 F.4th 596 (5th Cir. 2024) .............................. 26

Robinson v. Ardoin,

605 F. Supp. 3d 759 (M.D. La. 2022)......... 1-4, 6-9,

....................................................... 11, 18, 21-26, 28, 33

Robinson v. Ardoin,

86 F.4th 574, 596 (5th Cir. 2023) ........................ 27

Rucho v. Common Cause,

588 U.S. 684 (2019) ................................ 2, 3, 25, 35

vii

Sackett v. EPA,

598 U.S. 651 (2023) .......................................... 4, 24

Schuette v. BAMN,

572 U.S. 291 (2014) .............................................. 27

SFFA v. Harvard,

600 U.S. 181 (2023) .......................... 2, 4, 25, 27, 35

Shaw v. Hunt,

517 U.S. 899 (1996) .............................................. 27

Shelby County v. Holder,

570 U.S. 529 (2013) .............................................. 26

Singleton v. Allen,

690 F. Supp. 3d 1226 (N.D. Ala. 2023) ................ 29

Singleton v. Merrill,

582 F. Supp. 3d 924 (N.D. Ala. 2022) .................. 29

Soto Palmer v. Hobbs,

686 F. Supp. 3d 1213

(W.D. Wash. 2023) ................................... 29, 31, 32

Taggart v. Lorenzen,

587 U.S. 554 (2019) .............................................. 13

Thornburg v. Gingles,

478 U.S. 30 (1986) ........................... 4, 5, 10, 12, 13,

............................................................ 16, 17, 28, 29, 31

Turtle Mtn. Band of Chippewa Indians v. Howe,

2023 WL 8004576 (D.N.D. Nov. 17, 2023) .......... 29

viii

Wesch v. Hunt,

785 F. Supp. 1491 (S.D. Ala. 1992) ..................... 26

Whitcomb v. Chavis,

403 U.S. 124 (1971) ............................2, 4, 5, 11-18,

...................................................... 20, 21, 23, 29, 31, 34

White v. Regester,

412 U.S. 755 (1973) ................................2, 4, 11-13,

....................................................... 15-17, 19, 20, 29, 34

Wisconsin Legislature v. Wisconsin Elections

Comm’n,

595 U.S. 398 (2022) .......................... 3, 9, 11, 25, 28

Wygant v. Jackson Bd. of Educ.,

476 U.S. 267 (1986) .............................................. 27

Statutes

18 U.S.C. §924(e)(2)(B) .............................................. 24

52 U.S.C. §10301(b) ................................................... 13

52 U.S.C. §10308(a) ................................................... 23

Constitutional Provisions

U.S. CONST. amend XIV ........................................ 1, 25

Congressional Records and Reports

128 Cong. Rec. 14133 (1982) ..................................... 21

S. Rep. No. 417 .......................................................... 34

Other Authorities

James F. Blumstein, Racial Gerrymandering and

Vote Dilution: Shaw v. Reno in Doctrinal

Context, 26 RUTGERS L.J. 517 (1995)................... 13

Kayla Swan, "Race-Blind" Redistricting

Algorithms, 73 Duke L.J. 1141 (2024) ................ 30

Micah Altman & Michael McDonald, The

Promise and Perils of Computers in

Redistricting, 5 DUKE J. CONST. L. & PUB.

POL’Y 69 (2010) ..................................................... 30

Nicholas Stephanopoulos et. al., NonRetrogression Without Law, 2023 U. CHI.

LEGAL F. 267 (2024) ............................................. 29

Section 2 Cases Database, Michigan Law Voting

Rights Initiative (Dec. 31, 2023),

https://voting.law.umich.edu/database/ .............. 28

INTERESTS OF AMICI CURIAE

The States of Alabama, Georgia, Idaho, Indiana,

Iowa, Kansas, Mississippi, Montana, Nebraska, Oklahoma, South Carolina, Tennessee, Texas, and West

Virginia respectfully submit this brief as amici curiae

in support of Appellees.

“Redistricting is never easy.” Abbott v. Perez, 585

U.S. 579, 585 (2018). And for many States, litigationfree redistricting is now impossible. Louisiana’s

recent travails prove the point. Louisiana was

enjoined in the 1990s because its congressional plan

with two majority-black districts violated the Equal

Protection Clause. Then, in 2022, the State was

enjoined under §2 of the Voting Rights Act for not enacting a plan with two majority-black districts. In response, the State enacted such a plan. What next?

Another injunction for again violating the Equal Protection Clause. What Louisiana told this Court three

years ago “with some justification” remains true

today: “States need clarity.” Merrill v. Milligan, 142

S.Ct. 879, 881 (2022) (Kavanaugh, J., concurring)

(quoting Amici Br. for Louisiana et al. 25).

This quagmire is the result of an atextual and

unconstitutional approach to §2 on full display in

Louisiana’s case. When the district court in Robinson

v. Ardoin invoked §2 to enjoin Louisiana’s 2022 Plan,

the court largely ignored §2’s text. Other courts—from

Georgia to Washington—have recently done the same.

That judicially driven expansion of the VRA departs

from the guardrails imposed by Congress in 1982,

dilutes the term “vote dilution” to the point of meaninglessness, and provides no “good reasons” for racebased districts. That malleable misreading has increased §2 liability for States this past redistricting

cycle, even as the barriers to voting that inspired the

VRA fade further into the past. That version of §2 will

require race-based redistricting indefinitely into the

future.

There are two ways out of the thicket. One is to

remind lower courts that the text of §2 is drawn from

this Court’s precedents in Whitcomb v. Chavis and

White v. Regester. Those decisions make clear that

there is equal “opportunity” “to participate in the

political process” (and thus no §2 violation) if voters

are “allowed to register,” “vote,” “choose the political

party they desire[] to support,” and “participate in its

affairs.” Whitcomb v. Chavis, 403 U.S. 124, 149 (1971).

That is a test Legislatures can understand and courts

can apply. More importantly, it is the test Congress

enacted.

The other is to declare the present-day application

of §2 to redistricting plans unconstitutional. “[R]acebased redistricting cannot extend indefinitely into the

future.” Allen v. Milligan, 599 U.S. 1, 45 (2023) (Kavanaugh, J., concurring). But in 2025, six decades after the passage of the VRA, §2’s demands for racebased redistricting show no signs of letting up. If the

Robinson view of vote dilution is permitted by §2, the

statute will forever require “federal courts … to inject

themselves into the most heated partisan issues” unguided by any “clear standards.” Rucho v. Common

Cause, 588 U.S. 684, 704 (2019) (cleaned up). Worse

still, it will require race-based actions by States and

courts with “no end … in sight.” SFFA v. Harvard, 600

U.S. 181, 213 (2023). For the sake of the States, our

citizens, and the courts, this Court should fix this

problem now.

SUMMARY OF ARGUMENT

This racial gerrymandering appeal involves an

area of the law that is “notoriously unclear and

confusing.” Merrill, 142 S.Ct. at 881 (Kavanaugh, J.,

concurring). But the confusion is not the product of the

Court’s racial gerrymandering jurisprudence standing alone, for “a racial gerrymandering claim does not

ask for a fair share of political power and influence,

with all the justiciability conundrums that entails.”

Rucho, 588 U.S. at 709. It demands only “the elimination of a racial classification.” Id. And it is not hard to

identify a racial classification here based on direct evidence, the serpentine lines of Louisiana’s 2024 plan,

and Louisiana’s admissions that District 6 is the product of “heavy-handed considerations of race.”

La.Br.35.

The confusion the Court must resolve arises from

the interpretation of Section 2 adopted by the Robinson courts. Those courts held that Louisiana’s 2022

Plan likely violated the Voting Rights Act, even

though there was “no evidence of Black voters being

denied the right to vote.” Robinson v. Ardoin,

605 F. Supp. 3d 759, 847 (M.D. La. 2022). Louisiana

understandably blames Robinson for the racial quotas

that shaped SB8. But that does not answer whether

SB8 is constitutional. It tees up at least two more

questions: (1) whether Robinson employed “a proper

interpretation of the VRA” based on text and precedent, Wisconsin Legislature v. Wisconsin Elections

Comm’n, 595 U.S. 398, 404 (2022), and, if so,

(2) whether “the authority to conduct race-based

redistricting can[] extend indefinitely into the future,”

Allen, 599 U.S. at 45 (Kavanaugh, J., concurring).

This Court’s precedents alongside the text and history of §2 show that Robinson’s reading of §2 was not

“proper.” It is atextual and ahistorical, leaving no constitutional basis for insisting on a §2 remedy.

The Court need only return to its own precedents

to provide a meaningful standard for courts and

States alike. In 1982, Congress amended §2 to codify

the test for vote dilution employed by this Court in

Whitcomb v. Chavis and White v. Regester. The test

has two necessary elements: challengers must show

that members of the minority group have less opportunity than others to (1) elect representatives of their

choice and (2) participate in the political process. The

second element, as defined by Whitcomb and White,

requires evidence that members of the minority group

are not allowed to register, vote, choose a preferred

party, or participate in its affairs.

Such evidence is absent from this record, as the

Robinson district court acknowledged. Still, that court

held that §2 likely requires Louisiana to sort voters by

race. That standardless expansion of §2 should be

squarely rejected.

The Robinson interpretation of the VRA would

render §2 unconstitutional, even if it were “proper” as

a statutory matter. It cannot provide “ordinary

people” sufficient guidance about “what conduct is

prohibited,” Sackett v. EPA, 598 U.S. 651, 680 (2023),

and its race-based redistricting has no end in sight.

Cf. SFFA, 600 U.S. at 213.

The problems of the Robinson regime are only getting worse as more—not fewer—States face §2 liability, even as the harms that spurred the VRA continue

to recede. Indeed, at least twelve state legislative and

congressional plans enacted since 2020 have been

enjoined under §2. In decades past, Gingles 1 would

have weeded out many such challenges, but recent

advances in algorithmic mapmaking have made that

precondition a mere speedbump, as plaintiffs can now

create millions of maps to finetune their preferred mix

of race and traditional redistricting criteria.

Conversely, many courts accustomed to the Gingles

preconditions have neglected the Whitcomb guardrails, leading to completely unpredictable findings of

liability. Whether on statutory or constitutional

grounds, the Court must provide clarity. Either some

courts are reinventing §2 to provide new guarantees

that Congress never did, or the statute is so malleable

that it cannot continue justifying race-based action.

Like Louisiana, Amici States respectfully request an

answer regarding how to enact lawful districts.

ARGUMENT

I. SB8 Triggers Strict Scrutiny.

Amici States sympathize with Louisiana, whose

saga proves how impossible it has become, now almost

sixty years after the passage of the VRA, to comply

simultaneously with our color-blind Constitution and

increasingly expansive approaches to §2. Even so, the

Court risks harming the States and our citizens by

condoning Louisiana’s 2024 attempt at the impossible. Whatever race-based districting this Court

permits today, §2 plaintiffs and courts will demand

tomorrow. The Robinson Appellants, for example, say

Louisiana must be afforded “‘breathing room’ in its

effort to comply with §2,” Robinson.Br.23, but such

grace was not extended to Louisiana’s decision not to

racially gerrymander. To ensure that the option to

gerrymander does not become an “implicit command

that States engage in presumptively unconstitutional

race-based districting,” Miller v. Johnson, 515 U.S.

900, 927 (1995), the Court must determine whether

SB8 was based on a proper interpretation of §2. See

Callais.Br.40.

A. Race Predominated in SB8.

“[D]iscerning the subjective motivation of those

enacting [a] statute is … almost always an impossible

task.” Edwards v. Aguillard, 482 U.S. 578, 636 (1987)

(Scalia, J., dissenting). And the “starting presumption

that the legislature acted in good faith” may be overcome only with the clearest proof, Alexander v. S.C.

NAACP, 602 U.S. 1, 10 (2024), such as when the

State’s conceded “aim” is to “disenfranchis[e] practically all of” one racial group, Hunter v. Underwood,

471 U.S. 222, 230 (1985), or in “rare cases in which a

statistical pattern of discriminatory impact” is so

stark as to be “‘tantamount for all practical purposes

to a mathematical demonstration’ that the State acted

with a discriminatory purpose,” McCleskey v. Kemp,

481 U.S. 279, 293 n.12 (1987) (quoting Gomillion v.

Lightfoot, 364 U.S. 339, 341 (1960)).

This is one of the rare cases, for even Louisiana

admits the “intensive racial focus” behind District 6.

La.Br.21. The record is replete with both direct and

circumstantial evidence that “betray[s] the State’s

aim of segregating voters on the basis of race.” Alexander, 602 U.S. at 35. The legislative transcripts are

saturated with “express acknowledgement[s]” “that

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

at 8; see, e.g., J.S.48a, 52a-53a; Robinson.Stay.App.49-

54, 58-61.1 That “direct evidence,” which “amounts to

a confession of error,” accompanies “powerful circumstantial evidence” akin to “the ‘strangely irregular’ …

district lines in Gomillion v. Lightfoot.” Alexander,

602 U.S. at 8, 35; see, e.g., Robinson.Stay. App.61-67.

Louisiana contends that while “race played a

significant role” in shaping the plan, so did

incumbency protection. La.Br.39. And if “incumbency

protection was a non-negotiable criterion,” then race,

by definition, could not predominate. La.Br.38. Not so.

First, if a State’s express goal of cracking a

minority population significantly shaped its districts,

the State’s parallel goal of protecting incumbents

would not make its districting any less racepredominant. See Bethune-Hill v. Va. State Bd. of

Elections, 580 U.S. 178, 189 (2017). Here, Louisiana’s

racial quota “had a direct and significant impact on

the drawing of at least some of District [6]’s

boundaries.” Alabama Legislative Black Caucus v.

Alabama, 575 U.S. 254, 274 (2015).

Second, incumbency protection was plainly not

non-negotiable for the simple reason that SB8

protected only five of six incumbents, whereas Louisiana’s 2022 Plan protected all six. In 2024, when race

conflicted with protecting incumbent Rep. Garret

Graves, race trumped. See JS.App.29a, 50a. No one

thinks Louisiana ended up with two majority-black

districts as a mere byproduct of pursuing incumbency

protection. Rather, the State acted to achieve its

1 Amici States’ brief uses the same citation conventions as Loui-

siana’s. See La.Br.2 n.1.

“announced racial target.” Cooper v. Harris, 581 U.S.

285, 300 (2017).

The Robinson Appellants cite Alexander as requiring Appellees to present an “alternative map showing

that the State could have both created a second Blackopportunity district and accomplished the Legislature’s political priorities in a more compact plan.” Robinson.Br.20. That gets Alexander backward. An

express racial target (like two majority-black

districts) is proof of a gerrymandering claim, not a

defense against one. See Alexander, 602 U.S. at 8. And

if an alternative map were needed, the 2022 Plan

would do. It protected more incumbents, was more

compact, and had fewer parish splits. J.S.153a, 161a,

173a. That is why it was “the Legislature’s first preference”: it better advanced race-neutral principles

without “heavy-handed considerations of race.”

La.Br.35.

B. Pressure from the Robinson Courts Does

Not Spare SB8 from Strict Scrutiny.

Louisiana tries to shift the blame, insisting that

when a federal court orders an additional majorityminority district, race cannot, by definition, predominate in the resulting plan. See, e.g., La.Br.34. Similar

attempts at deflection didn’t work for North Carolina

in Shaw v. Hunt or Georgia in Miller v. Johnson. In

Shaw, for example, the Department of Justice had

“[d]uly chastened” North Carolina “for not creating a

second majority-minority [congressional] district.”

517 U.S. 899, 902 (1996). When revising “its districting scheme,” the State “expressly acknowledged” that

the “overriding purpose” of the new plan “was to comply with the dictates” of DOJ. Id. at 902, 906. Rather

than absolve North Carolina, this Court affirmed that

race predominated and went on to reject the State’s §2

defense. Id. at 906, 914-17. Likewise here, despite

Robinson’s “maximization demands,” Miller, 515 U.S.

at 918, the 2024 Plan remains Louisiana’s. Blaming

Robinson is understandable but does not spare SB8

from strict scrutiny.

C. Only A “Proper Interpretation” of §2

Could Possibly Justify Race-Based

Districting.

“[W]hen a State invokes § 2 to justify race-based

districting, ‘it must show … that it had “a strong basis

in evidence” for concluding that the statute required

its action.’” Wisconsin Legislature, 595 U.S. at 402

(quoting Cooper, 581 U.S. at 292). Whatever “leeway”

a State might enjoy depends on the State operating

“under a proper interpretation of the VRA.” Id. at 404

(emphasis added). Thus, if a State gets the law right,

courts might defer to its factual determinations. But

if a State “ask[s] the wrong question,” its implementation of a flawed interpretation of the VRA will not

satisfy strict scrutiny. ALBC, 575 U.S. at 279.

Appellants and their amici assert that, even if the

Robinson courts misapplied §2, those mistaken

rulings provide “good reasons” to justify racially

gerrymandering. LA.Br.42-46; Robinson.Br.43; D.C.

Br.14-16. In their view, this case should not be

“treated … like a mine-run racial-gerrymandering

case where a State purports to comply with the VRA

in the abstract.” LA.Br.46. This test is irreconcilable

with Wisconsin Legislature, makes little sense

analytically, and does no favors for the States.

Again, Wisconsin Legislature and Cooper demand

a “proper interpretation of the VRA.” The Robinson

courts’ misinterpretation of §2 cannot justify SB8. If a

lower court, for example, faulted a state for failing to

draw crossover districts, that couldn’t greenlight racially gerrymandering such districts into existence.

See Bartlett v. Strickland, 556 U.S. 1 (2009); cf. Kennedy v. Bremerton Sch. Dist., 597 U.S. 507, 543 (2022)

(“[I]n no world may a government entity’s concerns

about phantom constitutional violations justify actual

violations of an individual’s First Amendment

rights.”).

And Appellants’ proposal would create an

unenviable jurisprudential anomaly for States. The

Constitution would reject a State’s racial gerrymander if propped up by VRA compliance “in the abstract,”

but would permit an identical plan following an erroneous §2 decision from a federal court. Thus, two

rounds of map drawing and at least one trip to the

federal courthouse would be needed to enact a plan

that hit racial quotas and accomplished some (though

not all) of the State’s legitimate, non-racial priorities.

That is a losing proposition for States.

The United States (at 27), relying on Cooper,

suggested that only the three Gingles preconditions

are relevant to the “good reasons” inquiry. But

Cooper’s assumption was quite clear: a State could

avoid a constitutional violation when sorting voters by

race only if “it had ‘good reasons’ to think that it would

transgress the Act if it did not draw race-based district

lines.” 581 U.S. at 293 (emphasis added); see also id.

at 282, 301. “The Act” requires a plaintiff to prove

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

participate in the political process. So a State raising

a good-reasons-to-gerrymander defense must point to

a strong basis in evidence that “members of the protected class have less opportunity to participate in the

political process.” Chisom v. Roemer, 501 U.S. 380,

397 (1991); see Part II.B. But here, as explained below

(at II.C), the Robinson decisions reveal that Louisiana’s political processes are equally open to all.

II. Robinson’s Interpretation of §2 Is Not

“Proper” Because It Jettisons the VoteDilution Test From Whitcomb and White.

“Racial gerrymandering strikes at the heart of our

democratic process, undermining the electorate’s

confidence in its government as representative of a

cohesive body politic in which all citizens are equal

before the law.” ALBC, 575 U.S. at 283 (Scalia, J., dissenting). If §2 compliance can still justify “race-based

districting” today, but see infra Part III.B, that racebased action must be based on “a proper interpretation of the VRA.” Wisconsin Legislature, 595 U.S. at

402, 404. The Robinson decisions precipitating SB8

found vote dilution under a plainly improper interpretation of §2 that cannot provide a strong basis in evidence to justify SB8.

The only application of §2 to redistricting laws that

can possibly withstand constitutional scrutiny is one

that conforms to the original meaning of vote dilution

provided by Whitcomb and White. That definition focuses on clear markers of access, not outcomes; was

adopted by Congress in 1982; and appeared nowhere

in the Robinson decisions that induced Louisiana’s racial gerrymander.

A. Section 2 Codified the Vote-Dilution Test

from Whitcomb and White.

Section 2, in “its original form,” “‘closely tracked

the language of the Fifteenth Amendment’ and, as a

result, had little independent force.” Allen, 559 U.S. at

10-11 (quoting Brnovich v. Democratic Nat’l Comm.,

594 U.S. 647, 656 (2021)). In Mobile v. Bolden, a

plurality of this Court concluded that “in order to

establish a violation either of § 2 or of the Fourteenth

or Fifteenth Amendments, minority voters must prove

that a contested election mechanism was intentionally adopted or maintained by state officials for a discriminatory purpose.” Thornburg v. Gingles, 478 U.S.

30, 35 (1986) (citing Mobile v. Bolden, 446 U.S. 55

(1980)).

The “avalanche of criticism” triggered by Mobile

“arrived at Congress’s doorstep in 1981.” Allen,

599 U.S. at 11-12. Mobile’s detractors demanded an

“effects test” of racial vote dilution, while its defenders

worried that anything short of an “intent test” would

produce “a quota system for electoral politics.” Id. at

12-13. The House sided with the detractors, which

“met stiff resistance in the Senate.” Brnovich,

594 U.S. at 659.

“The House and Senate compromised, and the final

product included language proposed by Senator Dole”

“taken almost verbatim” (id.) from an earlier vote dilution case: White v. Regester. Liability would turn on

“whether ‘the political process leading to nomination

and election were not equally open to participation by

the group in question—in that its members had less

opportunity than did other residents in the district to

participate in the political processes and to elect

legislators of their choice.’” Allen, 599 U.S. at 13 (quoting White v. Regester, 412 U.S. 755, 766 (1973)).

White’s test, in turn, came directly from Whitcomb v.

Chavis, another seminal vote dilution decision.

403 U.S. 124, 149 (1971) (asking whether minority

“residents had less opportunity than did other … residents to participate in the political processes and to

elect legislators of their choice”); see also James F.

Blumstein, Racial Gerrymandering and Vote Dilution: Shaw v. Reno in Doctrinal Context, 26 RUTGERS

L.J. 517, 538 (1995) (“With respect to vote dilution,

Whitcomb set the foundation. Two years later, White

v. Regester applied the Whitcomb standard ….”).

As this Court later recognized, the amendments to

§2 were “intended to ‘codify’ the results test employed

in Whitcomb v. Chavis and White v. Regester.” Chisom,

501 U.S. at 394 n.21; see also Taggart v. Lorenzen, 587

U.S. 554, 560 (2019) (recognizing the “old soil” canon).

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

should look in the first instance in determining how

great an impairment of minority voting strength is

required to establish vote dilution in violation of § 2.”

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

the judgment).

B. Unequal Access to the Political Process

is a Necessary Element of a §2 Claim.

To prove that a voting “standard, practice, or procedure” dilutes minority votes in violation of §2, a

plaintiff must show that minorities “have less opportunity than other members of the electorate [1] to participate in the political process and [2] to elect

representatives of their choice.” 52 U.S.C. §10301(b).

In Gingles, the Court established a threshold showing

every §2 plaintiff must overcome. 478 U.S. at 50-51.

Those Gingles preconditions speak primarily to electoral opportunity. See id. at 50-51; id. at 88 (O’Connor,

J., concurring in the judgment).

A few years later, in Chisom, the Court relied upon

Whitcomb and White to clarify that proving less opportunity to elect “is not sufficient to establish a violation.” 501 U.S. at 397. A plaintiff must “also”

demonstrate that, “under the totality of the circumstances,” “members of the protected class have less opportunity to participate in the political process.” Id.

1. To determine if a State’s citizens today enjoy an

equal “opportunity … to participate in the political

process,” it is of first importance to determine what

that statutory phrase means.

This Court already did so in Whitcomb. The plaintiffs there challenged the use of a multimember districting scheme in Marion County, Indiana, to elect

the county’s “eight senators and 15 members of the

house,” alleging that the system diluted the voting

power of those residing in a predominantly black and

poor part of the county. 403 U.S. at 128-29. For “the

period 1960 through 1968,” the challenged area made

up “17.8% of the population” of Marion County but

was home to only “4.75% of the senators and 5.97% of

the representatives.” Id. at 133. The residents “voted

heavily Democratic,” but “the Republican Party won

four of the five elections from 1960 to 1968” and did

not slate anyone from the area in several of those elections. Id. at 150-52. The district court found vote dilution and ordered single-member districting. Id. at 129.

This Court reversed, emphasizing the absence of

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

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

Court made clear what “opportunity to participate”

meant by describing what plaintiffs failed to prove:

We have discovered nothing in the record

or in the court’s findings indicating that

poor [blacks] were not allowed [1] to

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

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

the evidence purport to show or the court

find that inhabitants of the ghetto were

[5] regularly excluded from the slates of

both major parties, thus denying them

the chance of occupying legislative seats.

Id. at 149-50.

Black residents of Marion County had “opportunity” because they were “allowed” to register and

vote, choose their preferred party, and participate in

its affairs. Id. at 149. “Strong differences” in socioeconomic indicators did not control. Id. at 132. And it was

immaterial that the Democratic Party had lost all 23

of the county’s legislative seats in “four of the five elections from 1960 to 1968.” Id. at 150. Had “the Democrats won all of the elections or even most of them,”

plaintiffs likely “would have had no justifiable complaints about representation.” Id. at 152. The alleged

denial of equal opportunity was “a mere euphemism

for political defeat at the polls.” Id.

White v. Regester, decided two years later, shows

what unequal access to the political process looks like.

There, black voters of Dallas County, Texas, also

favored the Democratic Party, but at-large elections

and “a white-dominated organization that [was] in

effective control of Democratic Party candidate slating” combined to cripple their ability to participate in

county politics. White, 412 U.S. at 766-67. Also, the

Democratic Party did not “exhibit good-faith concern

for the political and other needs and aspirations of the

[black] community.” Id. at 767. For example, the party

deployed “racial campaign tactics in white precincts to

defeat candidates who had the overwhelming support

of the black community,” “effectively exclud[ing]”

black residents “from participation in the Democratic

primary selection process.” Id. Similarly, the “poll tax”

and “the most restrictive voter registration procedures in the nation” kept Mexican-American residents

of Bexar County, Texas, from accessing the political

process on an equal footing with their white neighbors, which was “reflected … in the fact that MexicanAmerican voting registration remained very poor in

the county.” Id. at 768-69. Under Whitcomb’s framework, this was the kind and quantity of evidence

needed to establish illegal vote dilution.

All three minority groups—black voters in Dallas

County, Mexican-American voters in Bexar County,

and black voters in Marion County—suffered socioeconomic hardships, historical discrimination, and

persistent political defeat. All three likely would have

been able to satisfy the Gingles preconditions. But the

political process was closed to two and open to one.

The key difference was that black residents of Marion

County had access to those traditional means of political participation like registering, voting, and

engaging with their preferred party, while their Texas

counterparts did not.

2. Appellants’ amici the MHA Nation and the District of Columbia urge the Court to reject this straightforward reading of §2, but never explain why it is

wrong. They never argue that Chisom was abrogated,

or that Whitcomb did not provide §2’s text. Instead,

they

contend

(1) that

the

Court

already

rejected this argument, and (2) that a textualist

approach to §2 is somehow a “rewrite” of the statute

(MHA.Br.2.) that would prove “unworkable”

(D.C.Br.6). Neither is true.

First, MHA Nation (at 2) asserts that this “Court

expressly rejected” Amici States’ Whitcomb argument

“just last year in Allen v. Milligan,” and D.C. Amici

(at 20) claim that Amici States are trying to “relitigate

similar arguments to those Alabama raised in Milligan.” That’s plainly false. Alabama’s opening and reply briefs in Allen each mentioned Whitcomb only once

to argue that intent remained a relevant part of the

§2 inquiry. See Ala.Op.Br.5; Ala.Reply.Br.7, No. 211086, Allen (Apr. 29 & Aug. 24, 2022). The Court rejected Alabama’s map-focused argument as being

“more demanding than the intent test Congress

jettisoned.” Allen, 599 U.S. at 37. The Court, however,

did not reject Whitcomb or precedents recognizing

that Whitcomb informs the meaning of §2’s text.

Second, courts have applied Whitcomb for decades,

both before and after 1982. As the Court recounted in

Gingles, lower courts had “derived” certain “factors …

from the analytical framework of White.” Gingles, 478

U.S. at 36 n.4. These factors would later find their way

into the Senate Judiciary Committee Report in 1982

and become known as the Senate Factors. They delineated types of evidence that might shed light on

whether the Whitcomb standard was satisfied. This is

no “single-minded view,” D.C.Br.23, for courts still

consider “the totality of circumstances.” They just do

so with the benefit of a standard that measures

whether those circumstances are relevant. Otherwise,

the Senate Factors are just boxes to check for their

own sake—precisely how the Robinson court misapplied them. See infra Part II.C.

The Whitcomb test has worked in numerous cases.

For example, in McGill v. Gadsden County Commission, 535 F.2d 277 (5th Cir. 1976), plaintiffs challenged the at-large system used to elect county

commissioners in rural Gadsden County, Florida.

Despite establishing “an extensive history of discrimination” against the panhandle county’s black residents, the plaintiffs failed to prove the at-large

scheme diluted minority votes because there was “no

substantial evidence … that blacks [were] not allowed

to register or vote, to choose the political party they

desire to support, and to fully participate in the

nominating process of the party.” Id. at 281 (citing

Whitcomb).

Around the same time in Rapides Parish, Louisiana, plaintiffs attacked the Police Jury and School

Board multi-member districting plans as diluting

black voting strength. Bradas v. Rapides Parish Police

Jury, 508 F.2d 1109 (5th Cir. 1975). Due in part to the

“glaring fact” that no black resident had “ever been

elected to parish office,” the district court nullified the

plans. Id. at 1112. The Fifth Circuit reversed, holding

that “[n]either the record nor the district court’s

findings indicates difficulty on behalf of blacks in registering to vote, in choosing the political party they desire to support, in meaningfully participating in party

activities, in qualifying as candidates for a desired

office, in participating in the candidate selection

process, or in participating meaningfully in any other

portion of the political process.” Id. Missing was the

“usual” evidence of past discrimination’s “debilitating

effects,” such as “a relatively large discrepancy between the size of the black population and the number

of registered black voters.” Id.2

Returning to Dallas and Bexar counties—the two

at issue in White—the en banc Fifth Circuit in LULAC

v. Clements heeded this Court’s instruction that “§2

plaintiffs ‘must allege an abridgement of the opportunity to participate in the political process and to

elect representatives of one’s choice.’” 999 F.2d 831,

2 See also Black Voters v. McDonough, 565 F.2d 1, 6 (1st Cir.

1977) (no dilution where “pervasive” past discrimination against

black Bostonians had “not crippled their ability to exercise the

franchise” and no evidence “that blacks have fewer opportunities

than whites to register to vote or to cast their ballots”); Dove v.

Bumpers, 364 F. Supp. 407, 415 (E.D. Ark. 1973) (no dilution

where black “voter registration participation” was “untrammeled” and black voters were not “prohibited or discouraged from

participation within the political parties”), aff’d sub nom. Dove v.

Moore, 539 F.2d 1152 (8th Cir. 1976); Cherry v. New Hanover

Cnty., 489 F.2d 273, 274 (4th Cir. 1973) (no dilution in Wilmington, North Carolina, because no “interference with [black residents’] rights to register to vote, to choose a political party, or

otherwise to participate in local elections”); Nevett v. Sides, 571

F.2d 209, 227 (5th Cir. 1978) (no dilution in Birmingham suburb

where the “failure of black candidates” did not depend “upon any

barriers to access to the slating or registration stages of [the

city’s] political processes”).

863 (5th Cir. 1993) (en banc) (quoting Chisom,

501 U.S. at 397).3 Duly relying on Whitcomb’s explication of “opportunity to participate,” the Fifth Circuit

reversed a finding of vote dilution in the at-large system of electing Texas’s trial judges. Id. at 837. The

plaintiffs “offered no evidence of reduced levels of

black voter registration, lower turnout among black

voters, or any other factor tending to show that past

discrimination has affected their ability to participate

in the political process.” Id. at 867.

And importantly, the Whitcomb test ferreted out

actual instances of vote dilution. In 1981, for instance,

black voters in Putnam County, Georgia, showed

through “low voter registration and turnout” tied to

“actions of white elected officials past and present”

that, “in spite of their popular majority,” they would

“be defeated at the polls.” Bailey v. Vining,

514 F. Supp. 452, 463 (M.D. Ga. 1981). Like in White,

these plaintiffs proved they had “been denied equal

access to the political process.” Id.

The point of this history is straightforward: the

phrase “unequal opportunity to participate in the political process,” as it appears in §2, carries a particular

meaning. Whitcomb and White supply that meaning:

a plaintiff must show that members of the minority

group are excluded “from effective participation in political life,” White, 412 U.S. at 769, i.e., they are “denied access to the political system,” Whitcomb,

403 U.S. at 155. The very “essence of the Dole Compromise was to draw a basic distinction between the

3 Clements dealt with claims of vote dilution in seven other Texas

counties in addition to Dallas and Bexar. 999 F.2d at 838.

issue of access to the political process and election results.” 128 Cong. Rec. 14133 (1982) (statement of Sen.

Robert Dole); see also id. at 14316 (“[M]embers of minority groups have the right to register, vote, and to

have their vote fairly counted. There is no guarantee

of success: Just an equal opportunity to participate.”).

Access to the political system means being “allowed to

That standard is commanded by the text and by this

Court’s binding precedents. It may be a more demanding (and discernible) test than that applied by Robinson. But the demolition of barriers to equal access to

elections should be cause for celebration, not grounds

for an expanded §2 that divides voters between black

and white electoral districts whenever “Democrats …

suffer[] the disaster of losing too many elections.”

Whitcomb, 403 U.S. at 153.

C. The Robinson Courts Discerned No

Evidence of Unequal Access Yet Still

Found Vote Dilution.

When the Robinson plaintiffs sued Louisiana

under §2, they needed to show at least that black Louisianans faced more inequality in accessing the political process than did black Indianians in 1960s Marion

County. See Whitcomb, 403 U.S. at 149. They did not,

and there was no finding by the district court or the

Fifth Circuit that black Louisianans today are denied

the opportunity to register to vote, cast a ballot,

choose the political party they desire to support, or

participate in its affairs. To the contrary, the district

court found a total absence of “specific evidence” of

any disparities in “political participation outcomes”

regarding “levels of black voter registration, … turnout among black voters, or any other factor tending to

show that past discrimination has affected their

ability to participate in the political process.” Robinson, 605 F. Supp. 3d at 849. Nor could the court identify any evidence that Louisiana’s elected officials are

unresponsive to the needs of black Louisianans. Id. at

850. In the court’s view, the lack of “evidence of Black

voters being denied the right to vote [wa]s irrelevant”

because the “case presents claims of vote dilution.” Id.

at 847. The court did not define “vote dilution,” nor

explain why vote dilution has nothing to do with the

ability to vote.

Instead, the court simply rattled off a hodgepodge

of Senate Factor findings, like the number of black

mayors, a municipal “consent decree” way up in

Ouachita Parish, and the majority-Republican Legislature’s rejection of any plan that would give Democrats an additional congressional seat. Id. at 846, 85051. Cf. Baird v. Consolidated City of Indianapolis,

976 F.2d 357, 361 (7th Cir. 1992) (“It cannot be surprising that the party with political control opposes a

plan that would ensure the loss of at least one of [its]

seats.”). But while the Senate Factors may “indicate

points of factual inquiry that are relevant to th[e]

ultimate issue,” Blacks United for Lasting Leadership

v. City of Shreveport, 571 F.2d 248, 252 (5th Cir.

1978), they do not answer “the question … what it

means to provide equal opportunity,” Brnovich, 594

U.S. at 676 n.15. Nor can they say how much evidence

is required, or even what is being proven.

The Robinson approach resembles an exercise in

checking boxes more than a searching inquiry into

black Louisianans’ ability to access the political process. The court checked some for plaintiffs (factors 1,

2, 7, 9, 10), left others blank (factors 3, 4, 5, 6), and

marked one for Louisiana (factor 8), all while ignoring

the standard of liability from Whitcomb and White.

This is akin to instructing jurors in a criminal case to

decide whether the prosecution proved that DNA, fingerprint, or ballistics evidence exists, but never telling

the jury the elements of the crime. Senate Factor evidence, like forensic evidence, does not exist for its own

sake.

Nowhere did Robinson ask whether black voters in

Louisiana “would have … justifiable complaints about

representation” “had the Democrats won all of the

elections or even most of them.” Whitcomb, 403 U.S.

at 152. Because losing in the political process is not

the same as being excluded from it, Robinson’s

approach of identifying a distant history of discrimination and elections that didn’t go the “right” way

“enough” proves nothing about whether black Louisianans have an equal opportunity to participate in the

political process. Vote dilution on this record “becomes

plausible only if Whitcomb is purged from … voting

rights jurisprudence.” Clements, 999 F.2d at 862.

III. Robinson’s Interpretation of §2 Is Not

“Proper”

Because

Renders

§2

Unconstitutional.

An “[un]constitutional reading and application” of

the VRA cannot justify a racial gerrymander. Miller,

515 U.S. at 921. A liability standard hinging on a

multi-factor balancing test untethered from any

discernible

definition

vote

dilution

unconstitutionally vague and judicially unadministrable. And it all but guarantees perpetual racebased redistricting.

First, §2’s language creates civil and criminal

liability, see 52 U.S.C. §10308(a) (providing for “imprison[ment] not more than five years” for §2 violations), meaning that it must provide “sufficient

definiteness” such “that ordinary people can understand what conduct is prohibited.” Sackett v. EPA, 598

U.S. 651, 680 (2023) (cleaned up). But even Appellants’ amici recognize that their approach to §2 is so

arbitrary that it would be unjust to insist that anyone

“when redistricting, determine precisely what the

VRA requires.” DC.Br.11 (quotation marks omitted).

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

591 (2015), the Court considered the Armed Career

Criminal Act’s sentencing enhancement for prior

convictions for a felony that “involves conduct that

presents a serious potential risk of physical injury to

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

the enhancement unconstitutional because of “the

indeterminacy of the wide-ranging inquiry required

by” that clause. 576 U.S. at 597. It was too daunting a

task for a defendant to predict whether the “ordinary

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

injury.” Id. at 597-98.

But navigating the ACCA’s residual clause is a

cakewalk compared to guessing how the Robinson

view of §2 will cash out. You might think that “no

evidence of Black voters being denied the right to

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

wrong. That’s “irrelevant.” Robinson, 605 F. Supp. 3d

at 847. What matters, apparently, is an undefined

concept of “dilution” that wasn’t present in Rapides

Parish in the 1970s, see Bradas, 508 F.2d 1109, or

apparently in the congressional plans Louisiana used

in the 1990s, 2000s, and 2010s, each with one majority-black district.

That “shapeless” approach, Johnson, 576 U.S. at

602, to vote dilution is no more administrable than the

partisan vote dilution claims rejected in Rucho as “indeterminate and arbitrary,” 588 U.S. at 715. “It is vital” when intervening in “the legislative process of

apportionment” that courts “act only in accord with

especially clear standards.” Id. at 703-04. But under

Robinson, §2 is anything but “manageable,” id. at 696,

and cannot provide “good reasons” for thinking §2

demands race-based districting, Wisconsin Legislature, 595 U.S. at 404.

Second, if §2 means what Robinson says it means,

then “no end is in sight” to §2’s race-based demands,

and §2’s application to redistricting “must … be invalidated under the Equal Protection Clause of the Fourteenth Amendment.” SFFA, 600 U.S. at 213. Every

racial classification by the government is either unconstitutional or on its way to that end. Those that are

not outright prohibited are allowed only to the degree

“necessary” “to further compelling governmental interests.” Id. at 207. That is because even the racebased actions our Constitution permits are “dangerous,” Grutter v. Bollinger, 539 U.S. 306, 342 (2003),

and thus must be limited “in scope and duration,” City

of Richmond v. J.A. Croson Co., 488 U.S. 469, 498

(1989) (plurality). See Callais.Br.36-38.

Since the VRA was amended in 1982, “things have

changed dramatically” in the South “in large part

because of the Voting Rights Act.” Shelby County v.

Holder, 570 U.S. 529, 547-48 (2013). “By any measure,

the Act has accomplished its original purposes with

great success.” Petteway v. Galveston County,

111F.4th 596, 612 (5th Cir. 2024) (en banc).

The Robinson court must believe that “things have

changed” again in the decade since Shelby County.

That’s at odds with the historical record and the

evidentiary record developed below.

Take, for example, black voter registration rates in

Louisiana. When the VRA was enacted, black registration sat at a meager 31.6% compared to a white

registration rate of 80.5%. Shelby County, 570 U.S. at

546. By 2004, that gap had narrowed to just 4% (75.5%

white to 71.1% black). Id. at 548. And today, there is

“no evidence of Black voters being denied the right to

vote” or “that past discrimination has affected their

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

No longer are districts with a “bare black supermajority” accused of preserving “white hegemony.”

Dilliard v. City of Greensboro, 213 F.3d 1347, 1351

(11th Cir. 2000). No longer does an “opportunity

district” require a black population of at least 65%.

Wesch v. Hunt, 785 F. Supp. 1491, 1495-97 (S.D. Ala.

1992) (three-judge court). To the contrary, expert

testimony in Robinson established “that effective

crossover voting could exist” in Louisiana if the

Republican Legislature was interested in favoring

Democrats. Robinson v. Ardoin, 86 F.4th 574, 596 (5th

Cir. 2023).

Absent “particularized findings” that members of

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

Robinson will be “ageless in their reach into the past,

and timeless in their ability to affect the future.”

Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 276

(1986). A “Senate Factors” expert will always be able

to identify at least some evidence of “race-based

gaps … with respect to the health, wealth, [or] wellbeing of American citizens.” SFFA, 600 U.S. at 384

(Jackson, J., dissenting). And such disparities “may

make it virtually impossible for a State to devise rules

that do not have some disparate impact.” Brnovich,

594 U.S. at 677. Meanwhile, §2 plaintiffs will always

have incentives to argue that “particular issues of

public policy should be classified as advantageous to

some group defined by race.” Schuette v. BAMN, 572

U.S. 291, 309 (2014) (plurality). This will enshrine §2

as “an affirmative-action program” for race-based

districting in perpetuity. Shaw v. Hunt, 517 U.S. 899,

910 (1996).

Finally, even “narrowly tailored race-based affirmative action in higher education” could not “extend

indefinitely into the future.” SFFA, 600 U.S. at 316

(Kavanaugh, J., concurring). And as the dissent in

SFFA recognized, “drawing district lines that comply

with the Voting Rights Act may require consideration

of race” that is “[j]ust like” the “consideration of race”

needed to “achiev[e] racial diversity in higher education.” Id. at 361 n.34 (Sotomayor, J., dissenting). It follows that “even if Congress in 1982 could

constitutionally authorize race-based redistricting

under § 2 for some period of time, the authority to

conduct race-based redistricting cannot extend

indefinitely into the future.” Allen, 599 U.S. at 45

(Kavanaugh, J., concurring). The statute can no

longer justify a State or court “pick[ing] winners and

losers based on the color of their skin.” SFFA, 600 U.S.

at 229.

IV. States Need Clarity Now More Than Ever.

What Louisiana told this Court three years ago is

even truer today: “States need clarity.” Merrill, 142

S.Ct. at 881 (Kavanaugh, J., concurring) (quoting

Amici Br. for Louisiana et al. 25).4 Since then, vote dilution jurisprudence has become increasingly “unclear

and confusing,” id., with increasing instances of liability. In Allen, “amici supporting the appellees” assured

the Court that recent §2 litigation “has rarely been

successful,” noting that since 2010, “‘the only state

legislative or congressional districts that were redrawn because of successful Section 2 challenges were

a handful of state house districts near Milwaukee and

Houston.’” Allen, 599 U.S. at 29 (quoting Br. for Chen

et al. at 7-8). But the post-2010 redistricting cycle appears to have been the calm before the storm. For the

4 Amici MHA Nation quote an excerpt from an amicus brief

Alabama joined in Abbott v. Perez to argue that Alabama

believed §2’s demands were sufficiently clear. MHA.Br.15-16.

First, the “clarity of the law” referred only to the requirement

that a proper §2 analysis must take place “using the ‘district as

a whole’ and not any other political subdivisions.” Amici

States.Br.16, No. 17-586, Abbott (Nov. 20, 2017). Second, any

suggestion that the Gingles preconditions alone could provide

“good reasons” to racially gerrymander was put to rest by the

Court in Wisconsin Legislature. See 595 U.S. at 402, 405.

post-2020 cycle, at least twelve state legislative and

congressional plans have been enjoined under §2.5

The trend is not the product of States retrogressing

following the end of §5 preclearance. To the contrary,

during this cycle, “not only did minority representation in formerly covered states not decline in absolute

terms, it also didn’t drop in relative terms versus the

benchmark of formerly uncovered states.” Nicholas

Stephanopoulos et. al., Non-Retrogression Without

Law, 2023 U. CHI. LEGAL F. 267, 269-70 (2024).

Rather, the post-2020 surge in liability has at least

two main causes. First, due to advances in algorithmic

mapmaking, Gingles 1 is less equipped to “shield[] the

courts from meritless claims.” McNeil v. Springfield

Park Dist., 851 F.2d 937, 942 (7th Cir. 1988). Second,

courts have engaged in statutory mission creep,

expanding §2 to right new “wrongs” now that the

See Section 2 Cases Database, Michigan Law Voting Rights

Initiative (Dec. 31, 2023), https://voting.law.umich.edu/database/; see also Nairne v. Ardoin, 715 F. Supp. 3d 808 (M.D. La.

2024) (Louisiana’s 2022 House and Senate plans); Robinson,

605 F. Supp. 3d 759 (Louisiana’s 2022 congressional plan); Miss.

NAACP v. State Bd. of Election Comm’rs, 2024 WL 3275965 (S.D.

Miss. July 2, 2024) (Mississippi’s 2022 House and Senate plans);

Turtle Mtn. Band of Chippewa Indians v. Howe, 2023 WL

8004576 (D.N.D. Nov. 17, 2023) (North Dakota’s 2021 state legislative plan); Soto Palmer v. Hobbs, 686 F. Supp. 3d 1213 (W.D.

Wash. 2023) (Washington’s 2022 legislative plan); Alpha Phi

Alpha Fraternity v. Raffensperger, 700 F. Supp. 3d 1136 (N.D.

Ga. 2023) (Georgia’s 2021 House, Senate, and congressional

plans); Singleton v. Allen, 690 F. Supp. 3d 1226 (N.D. Ala. 2023)

(Alabama’s 2023 congressional plan); Singleton v. Merrill,

582 F. Supp. 3d 924 (N.D. Ala. 2022) (Alabama’s 2021 congressional plan).

harms identified by Whitcomb, White, and the Dole

Compromise are thankfully hard to find.

A. Gingles 1, in the Age of the Algorithm,

Provides Little Clarity Today.

Modern technology has transformed the first

Gingles precondition from a significant check on

demands for proportionality to a speedbump on the

way to race-based districting. Map-drawing algorithms allow plaintiffs to “find innovative combinations of geography that even the most expert human

mapmakers may overlook” when contriving a new

“reasonably compact” majority-minority district. Br.

of Amici Computational Redistricting Experts 14,

No. 21-1086, Allen (July 18, 2022). These tools “did

not even exist” in 1982, Allen, 599 U.S. at 36, and by

2010 had evolved into little more than the “point-andclick” variety, Micah Altman & Michael McDonald,

The Promise and Perils of Computers in Redistricting,

5 DUKE J. CONST. L. & PUB. POL’Y 69, 79 (2010). Today,

“mapmakers can now generate millions”—even

“trillions”—of possible maps for a State. Allen,

599 U.S. at 23, 37.

Before the proliferation of these tools, state mapdrawers often struggled to create new majority-minority districts that didn’t evoke thoughts of “snake[s]” or

“sacred Mayan bird[s].” Id. at 27-28. Challengers

fared little better. The original “team of trained mapmakers” consulted by Evan Milligan of Allen v. Milligan, for example, “was literally unable to draw a twomajority-black-district map” in Alabama, “even when

they tried.” Id. at 106 (Alito, J., dissenting).

But the million-map strategy is paying off for §2

plaintiffs, who are “increasingly us[ing] algorithmic

evidence in redistricting cases.” Kayla Swan, “RaceBlind” Redistricting Algorithms, 73 Duke L.J. 1141,

1141 (2024). Not only can they run myriad simulations to find the “best looking” map that achieves the

necessary racial result, but they do not have to account for some of the districting principles that many

legislatures cannot easily ignore. See Allen, 599 U.S.

at 21-22 (discussing “core retention”). Of the principles plaintiffs purport to balance, some are “‘surprisingly ethereal’ and ‘admi[t] of degrees,’” meaning that

mapdrawers can “construct a plethora of potential

maps that look consistent with traditional, race-neutral principles” while making “race for its own sake …

the overriding reason for choosing one map over others.” Bethune-Hill, 580 U.S. at 190.

At one time, the Gingles 1 guardrails imposed

“exacting requirements” upon parties and States

daring to inject race into redistricting. See Allen,

599 U.S. at 30. Not any longer. Thus, one would expect

the Whitcomb guardrails to feature more prominently

in §2 decisions as Gingles 1 becomes easier to clear.

But many courts have forgotten Whitcomb, leading to

results that States never could have predicted, “as

demands for outcomes have followed the cutting away

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

at 837. Alongside Robinson, the three examples below

prove the point.

B. Lower Courts Are Expanding §2.

Washington. Begin in the Pacific Northwest.

Hispanic residents in agricultural Central Washington already formed a “majority of voting-age citizens”

in the challenged district, which sent a Latino Republican to the State Senate in 2022. Soto Palmer v.

Hobbs, 686 F. Supp. 3d 1213, 1222 & n.4, 1230-32

(W.D. Wash. 2023). A federal court ordered Washington to redraw the map anyway.

Why? First, the court looked not to obstacles to

voting, but rather “barriers that make it harder for

Latino voters to be able to believe that their vote

counts.” Id. at 1228 (emphasis added). Among these

barriers to belief was the “problem” that a “significant

percentage of the community … is ineligible to vote

because of their immigration status,” id. at 1228—i.e.,

their votes did not (or at least should not) count.

The court also found that holding “senate election[s] in a non-presidential … election year”

“hinder[ed] Latino voters’ ability to fully participate

in the electoral process,” id. at 1228, even though “the

concept of a voting system that is ‘equally open’ and

that furnishes an equal ‘opportunity’ to cast a ballot

must tolerate the ‘usual burdens of voting,’” Brnovich,

594 U.S. at 669.

Ultimately, the main problem for the court was

that most Hispanics in the area vote Democrat and

not enough Democrats were winning. Id. at 1225-26,

1235. The court adopted a remedial plan that made

the district less Hispanic but “substantially more

Democratic.” Palmer v. Hobbs, 2024 WL 1138939, at

*2, *5 (W.D. Wash. Mar. 15, 2024). That §2 analysis is

meaningless, and the remedy of removing Hispanics

from the district to cure their “cracking” is absurd.

Georgia. Turning south, a federal court recently

decided that Georgia’s 2021 congressional and state

legislative plans violated §2. Alpha Phi Alpha v.

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

This notwithstanding the fact that 98% of all eligible

Georgians are registered, both major party nominees

for the last U.S. Senate race were black, Georgia’s

congressional delegation includes five black Democrats despite having only two majority-black districts,

and black Georgians enjoy proportional representation in Congress. See id. at 1190-91, 1283, 1288, 1360,

1365, 1372.

What should have tipped off the Legislature that

it was required to engage in race-based districting? In

the district court’s view, it was recent “official discrimination in the state” that included several voting laws

“determined … to not be illegal under federal law.” Id.

at 1268, 1272. For example, one law that the same

judge had deemed not to violate §2 was transmuted

into evidence that Georgia’s redistricting laws did

violate §2 because, among the tiny number affected by

the VRA-compliant law, a higher percentage were

black. Id. at 1272-73.

Even more confounding was the court’s reliance on

Georgia’s experience during the 1990 redistricting

cycle when DOJ twice denied Georgia preclearance for

its congressional plans under §5. The court identified

DOJ’s objection letters as evidence of “Georgia’s

history of discrimination against Black voters.” Id. at

1270. What the court omitted was that DOJ was

misusing §5 to demand a flagrantly gerrymandered

“‘max-black’ plan.” Abrams v. Johnson, 521 U.S. 74,

80 (1997). When Georgia acquiesced to the “Justice

Department’s maximization policy,” this Court held

that Georgia’s map was an unconstitutional racial

gerrymander. Miller, 515 U.S. at 926. But in the district court’s view, Georgia’s refusal to racially discriminate was evidence of racial discrimination.

Louisiana. As if Louisiana’s congressional redistricting saga weren’t enough, last February, Louisiana received word that its state legislative plans also

violate §2. After surveying some of the same scant

evidence of recent official discrimination as in Robinson, the district court pessimistically declared that

VRA violations are not “less prevalent” than in the

past, just “less visible now with the elimination of

federal oversight.” Nairne v. Ardoin, 715 F. Supp. 3d

808, 870 (M.D. La. 2024). The court relied on findings

like the “subliminal message of the Sheriff’s Office

being housed on the same floor as [a] Registrar of

Voter’s Office” to conclude that black Louisianans

cannot participate equally in the political process. Id.

at 874 n.461. Thus, to know what §2 demands, States

must see the invisible and perceive the subliminal.

This wave of recent, successful §2 litigation proves

one of two things. First, the §2 test many courts are

applying today is not the test Congress adopted in

1982. When a Louisiana parish in the 1970s could prevail under Whitcomb and White but half a century

later Louisiana, Georgia, and even Washington all

fail, the test has changed. Courts have expanded §2’s

meaning as violations the law initially targeted have

receded, turning §2 into the proverbial golden hammer, wielded by plaintiffs and courts in a never-ending search for a nail.

Under the original standard, “[i]n most communities, … it would be exceedingly difficult for plaintiffs

to show that they were effectively excluded from fair

access to the political process under the results test.”

S. Rep. No. 417, at 33. And under that standard,

courts found vote dilution where minorities suffered

unequal access to the political process (e.g., White,

Bailey), and rejected others where minorities were

allowed to register, vote, and participate with the

party of their choice (e.g., Whitcomb, McGill, Bradas).

Only that standard offers a constitutional answer to

the redistricting guessing games playing out in Louisiana and beyond.

Second, if §2 is as capacious as some courts have

treated it, the statute can no longer be constitutionally applied to redistricting plans. When “subliminal

messages” are proof that States must use race to sort

voters, there is no answer to the question: “How much

is too much?” Rucho, 588 U.S. at 707, and thus no end

in sight to race-based action. And if the question is

whether such action “may extend indefinitely into the

future[,] … this Court’s precedents make clear that

the answer is no.” SFFA, 600 U.S. at 316 (Kavanaugh,

J., concurring).

CONCLUSION

The Court should affirm.

Respectfully submitted,

STEVE MARSHALL

Attorney General

EDMUND G. LACOUR JR.

Solicitor General

Counsel of Record

SOREN GEIGER

GEORGE MUIRHEAD

Assistant Solicitors General

OFFICE OF ALA. ATT’Y GEN.

501 Washington Avenue

Montgomery, AL 36130

(334) 242-7300

Edmund.LaCour@

AlabamaAG.gov

January 28, 2025

(additional counsel listed below)

ADDITIONAL COUNSEL

CHRIS CARR

Attorney General

State of Georgia

MICHAEL T. HILGERS

Attorney General

State of Nebraska

RAÚL R. LABRADOR

Attorney General

State of Idaho

GENTNER DRUMMOND

Attorney General

State of Oklahoma

THEODORE E. ROKITA

Attorney General

State of Indiana

ALAN WILSON

Attorney General

State of South Carolina

BRENNA BIRD

Attorney General

State of Iowa

JONATHAN SKRMETTI

Attorney General & Reporter

State of Tennessee

KRIS KOBACH

Attorney General

State of Kansas

KEN PAXTON

Attorney General

State of Texas

LYNN FITCH

Attorney General

State of Mississippi

JOHN B. MCCUSKEY

Attorney General

State of West Virginia

AUSTIN KNUDSEN

Attorney General

State of Montana

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.