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

d

Nos. 24-109, 24-110

IN THE

Supreme Court of the United States

LOUISIANA ,

Appellant,

—v.—

PHILLIP CALLAIS , ET AL .,

Appellees.

PRESS ROBINSON , ET AL .,

—v.—

Appellants,

PHILLIP CALLAIS , ET AL .,

Appellees.

ON APPEAL FROM UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF LOUISIANA

BRIEF FOR AMICI CURIAE GEORGIA HOUSE OF

REPRESENTATIVES SPEAKER JON BURNS, HOUSE

SPEAKER PRO TEM JAN JONES, HOUSE MAJORITY

LEADER CHUCK EFSTRATION, AND HOUSE MAJORITY

WHIP JAMES BURCHETT; AND LT. GOVERNOR AND

PRESIDENT OF THE STATE SENATE BURT JONES,

SENATE PRESIDENT PRO TEM JOHN F. KENNEDY,

AND SENATE MAJORITY LEADER STEVE GOOCH

IN SUPPORT OF APPELLEES

BRYAN P. TYSON

Counsel of Record

BRYAN F. JACOUTOT

DIANE F. LA ROSS

CLARK HILL PLC

3630 Peachtree Road NE,

Suite 550

Atlanta, Georgia 30326

(678) 370-4377

btyson@clarkhill.com

Attorneys for Amici Curiae

TABLE OF CONTENTS

Page

Table of Authorities .................................................. iii

Statement of Interest ..................................................1

Introduction and Summary of Argument ..................1

Argument.....................................................................3

I.

Like Louisiana, Georgia faced separate Section 2

and constitutional lawsuits following the 2020

Census. ..................................................................3

II. Section 2 cases regarding statewide redistricting

must be heard by three-judge panels. ..................6

A. The original language of Section 2.................6

B. Bolden and the 1982 amendments...............11

C. Why three-judge district courts are required.

.......................................................................16

D. Practical importance of three-judge panels. 20

III. This Court has consistently held that partisan

decisions cannot justify placing majority-Black

districts in other parts of a state........................24

A. North Carolina. .............................................26

B. Georgia. .........................................................29

C. Texas. ............................................................31

i

TABLE OF CONTENTS

(continued)

Page

D. Virginia. ........................................................34

E. Louisiana. .....................................................35

Conclusion .................................................................37

ii

TABLE OF AUTHORITIES

Cases

Abbott v. Perez,

585 U.S. 579 (2018) ............................................... 25

Arkansas State Conf. NAACP v. Arkansas Bd. of

Apportionment,

86 F.4th 1204 (8th Cir. 2023) ............................... 17

Bush v. Vera,

517 U.S. 952 (1996) ................................... 31, 32, 33

Chisom v. Roemer,

501 U.S. 380 (1991) ............................................... 12

City of Boerne v. Flores,

521 U.S. 507 (1997) ................................6, 12, 13, 16

City of Mobile v. Bolden,

446 U.S. 55 (1980) ....................................7, 8, 11, 13

Cooper v. Harris,

581 U.S. 285 (2017) ............................................... 21

Easley v. Cromartie,

532 U.S. 234 (2001) ............................................... 25

East Carroll Parish School Bd. v. Marshall,

424 U.S. 636 (1976) ................................................. 8

Garcia v. Hobbs,

691 F. Supp. 3d 1254 (2023) ........................... 22, 23

Hays v. State of La.,

839 F. Supp. 1188 (W.D. La. 1993) ...................... 35

iii

Hays v. State of La.,

936 F. Supp. 360 (W.D. La. 1996) .................. 35, 36

Igartua v. Obama,

842 F.3d 149 (1st Cir. 2016) ........................... 17, 24

Johnson v. Miller,

864 F. Supp. 1354 (S.D. Ga. 1994) ................. 29, 30

Kalson v. Paterson,

542 F.3d 281 (2nd Cir. 2008) .......................... 17, 23

Kirksey v. Bd. of Supervisors of Hinds Cnty., Miss.,

554 F.2d 139 (5th Cir. 1977) ........................... 10, 11

Kirksey v. City of Jackson, Miss.,

663 F.2d 659 (5th Cir. 1981) ................................... 8

League of United Latin Am. Citizens v. Perry,

548 U.S. 399 (2006) ............................................... 34

Lewis v. Governor of Ala.,

896 F.3d 1282 (11th Cir. 2018) ............................... 7

Lewis v. Governor of Ala.,

914 F.3d 1291 (11th Cir. Jan. 30, 2019) ................. 7

Lexecon Inc. v. Milberg Weiss Bershad Hynes &

Lerach,

523 U.S. 26 (1998) ................................................. 17

Louisiana v. Hays,

512 U.S. 1230 (1994) ............................................. 35

Miller v. Johnson,

515 U.S. 900 (1995) ................................... 19, 29, 31

iv

Moon v. Meadows,

952 F. Supp. 1141 (E.D. Va.) .......................... 34, 35

MTM, Inc. v. Baxley,

420 U.S. 799 (1975) ............................................... 21

Nipper v. Smith,

39 F.3d 1494 (11th Cir. 1994) ............................... 14

Page v. Bartels,

248 F. 3d 175 (3d. Cir. 2001) .......................... 18, 21

Pope v. Blue,

809 F. Supp. 392 (W.D.N.C.) .......................... 26, 27

Robinson v. Ardoin,

605 F. Supp. 3d 759 (M.D. La. 2022).................... 25

Shapiro v. McManus,

577 U.S. 39 (2015) ................................................. 17

Shaw v. Barr,

808 F. Supp. 461 (E.D.N.C. 1992) ........................ 28

Shaw v. Reno,

509 U.S. 630 (1993) ..............................26, 27, 28, 36

Solomon v. Liberty Cnty. Com’rs,

221 F.3d 1218 (11th Cir. 2000) ............................. 14

Soto Palmer v. Hobbs,

686 F. Supp. 3d 1213 (W.D. Wash. 2023) ............ 22

Thornburg v. Gingles,

478 U.S. 30 (1986) ................................................. 14

v

Vera v. Richards,

861 F. Supp. 1304 (S.D. Tex. 1994) ...................... 32

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

Corp.,

429 U.S. 252 (1977) ............................................... 10

Washington v. Davis,

426 U.S. 229 (1976) ............................................... 10

White v. Regester,

412 U.S. 755 (1973) ............................................... 12

Zimmer v. McKeithan,

485 F.2d 1297 (5th Cir. 1973) ....................... 8, 9, 10

Statutes

26 U.S.C. § 9011 ....................................................... 19

28 U.S.C. § 2284 ..............................2, 6, 16–20, 23, 24

42 U.S.C. § 1983 ....................................................... 18

79 Stat. 437 ................................................................ 7

Bipartisan Campaign Reform Act of 2002 .............. 19

Depts. of Commerce, Justice, and State, The Judicial,

and Related Agencies Appropriations Act, 1998 .. 19

Section 2 of the Voting Rights Act ………..1–8, 12–17,

20–25, 33, 34, 36

Other Authorities

Barone & Ujifusa, ALMANAC OF AMERICAN POLITICS

1996 ....................................................................... 31

vi

Charles S. Bullock III, The History of Redistricting

in Georgia,

52 GA. L. REV. 1057 (2018).............................. 29, 30

DOJ Objection Letter (Dec. 18, 1991),

available at

https://www.justice.gov/sites/default/files/crt/legacy

/2014/05/30/NC-1500.pdf ................................ 26, 27

Senate Report No. 94-204 ........................................ 18

Senate Report No. 97-417 ........................................ 12

Three-Judge Court Acts—History and Purpose,

17A Fed. Prac. & Proc. Juris. § 4234 (3d ed.) ...... 21

Constitutional Provisions

U.S. Const. Amend. XIV, Sec. 5 ............................... 16

U.S. Const. Amend. XV, Sec. 1 .................................. 7

U.S. Const. Amend. XV, Sec. 2 ................................ 16

U.S. Const. Art. I, Sec. 8 .......................................... 15

U.S. Const. Art. IV, Sec. 3 ....................................... 15

vii

1

STATEMENT OF INTEREST 1

Amici, Georgia House of Representatives

Speaker Jon Burns, House Speaker Pro Tem Jan

Jones, House Majority Leader Chuck Efstration, and

House Majority Whip James Burchett; and Lt.

Governor and President of the State Senate Burt

Jones, Senate President Pro Tem John F. Kennedy,

and Senate Majority Leader Steve Gooch are

Republican elected officials in the State of Georgia

who dealt personally with redistricting and

redistricting litigation following the 2020 Census.

Amici have a significant interest in the correct

application of the law, particularly which courts can

hear challenges under § 2 of the Voting Rights Act to

statewide redistricting and the enforcement of this

Court’s precedent to provide clear direction to State

officials engaged in redistricting.

INTRODUCTION AND SUMMARY OF

ARGUMENT

Section 2 of the Voting Rights Act (VRA) is an

enforcement mechanism for constitutional rights.

This brief addresses two issues that support

affirmance of the district court’s decision in this case.

1 Pursuant to Supreme Court Rule 37.6, counsel for amici

represent that they authored this brief in its entirety and that

none of the parties or their counsel, nor any other person or

entity other than amici or their counsel, made a monetary

contribution intended to fund the preparation or submission of

this brief.

2

First, statewide redistricting cases brought

under § 2 should be heard by a three-judge court

because § 2 enforces the Fourteenth and Fifteenth

Amendment. The failure to convene a three-judge

court under 28 U.S.C. § 2284 creates a subject

matter jurisdiction problem because a single judge

cannot decide a § 2 challenge to congressional or

statewide legislative apportionment. Georgia faced a

similar problem in 2021 and 2022, where several

sets of plaintiffs confronted the State with competing

theories of liability. Some of these cases came before

a single judge and others before a three-judge court.

Properly interpreting the three-judge court

requirement protects States and plaintiffs.

Second, Louisiana relied on incumbent

protection as justification for the location of the

second majority-Black district in its congressional

plan. But this Court would have to overrule the

Shaw line of cases to endorse the approach

Louisiana takes in this appeal. While partisan

considerations are always important in redistricting,

they cannot be used to justify racial gerrymandering

to place a district in an area of the state where § 2

does not require it.

While Amici are sympathetic to the challenges

of drawing statewide redistricting plans and the

resulting court challenges, having those plans

reviewed by three-judge district courts is the best

protection against gamesmanship by creative

plaintiffs that can result in confusing decisions,

conflicting appellate tracks, and unnecessary delays

in reaching a final resolution. And ensuring courts

consistently enforce the Shaw line of cases provides

3

protection for States and plaintiffs alike. This Court

should affirm.

ARGUMENT

I.

Like Louisiana, Georgia faced separate

Section 2 and constitutional lawsuits

following the 2020 Census.

Five sets of plaintiffs challenged Georgia’s

congressional and legislative redistricting plans

following the 2020 Census. Three of these cases

alleged claims exclusively under § 2 of the Voting

Rights Act. See Alpha Phi Alpha Fraternity, Inc., et

al v. Raffensperger, 1:21-cv-05337 (N.D. Ga. 2021)

(“APA”); Coakley Pendergrass, et al., v.

Raffensperger, 1:21-cv-05339 (N.D. Ga. 2021); Annie

Lois Grant, et al., 1:22-cv-00122 (N.D. Ga. 2022).2

These three cases were consolidated for trial and

heard by a single district judge in the Northern

District of Georgia. See Alpha Phi Alpha Fraternity

Inc. v. Raffensperger, 700 F. Supp. 3d 1136, 1186

(N.D. Ga. 2023).

The other two cases alleged a combination of §

2 claims and claims under the U.S. Constitution. See

Georgia State Conference of the NAACP, et al., v.

State of Georgia, et al., 1:21-cv-05338 (N.D. Ga.

2021) (“Georgia NAACP”)3; Common Cause, et al. v.

2 For convenience, all docket references to the three

consolidated § 2 cases will be to the APA docket.

3 For convenience, all docket references to the two consolidated

three-judge court cases will be to the Georgia NAACP docket.

4

Raffensperger, 1:22-cv-00090 (N.D. Ga. 2022).

Pursuant to 28 U.S.C. § 2284, those two cases were

assigned to a three-judge district court by the Chief

Judge of the Eleventh Circuit and eventually

consolidated. Georgia NAACP at Doc. 40. And thus

began the confusing and convoluted litigation track

that led the State of Georgia to its current posture

before multiple courts regarding its congressional

and state legislative districts.

Initially, the three § 2 cases were subject to a

preliminary-injunction proceeding in early 2022,

while plaintiffs in the constitutional cases did not

seek emergency relief. Alpha Phi Alpha Fraternity

Inc. v. Raffensperger, 587 F. Supp. 3d 1222, 1237

(N.D. Ga. 2022) (ruling on preliminary injunction).

Unlike in Louisiana, the single-judge district court

in Georgia denied the preliminary injunction and the

challenged maps were used in the 2022 election

cycle. Id. Discovery then proceeded in all five cases

and all five cases reached the summary-judgment

phase. And that’s where things became even more

challenging for the State.

The single-judge district court moved more

quickly than the specially convened three-judge

district court. The single-judge district court denied

the competing summary judgment motions and set

the case for trial, which took place in September

2023. Alpha Phi Alpha Fraternity Inc., 700 F. Supp.

3d at 1186. Meanwhile, the three-judge district

court, which included the judge from the § 2 cases,

continued consideration of the pending summaryjudgment motions.

5

Following an eight-day trial, the single-judge

district court found Georgia’s redistricting plans

violated § 2. Id. at 1379–81. The same day, the

three-judge panel denied the motions for summary

judgment and set the constitutional cases for trial in

November 2023. Georgia State Conf. of the NAACP v.

Georgia, No. 1:21-CV-05338-ELB-SCJ-SDG, 2023

WL 7093025, at *21 (N.D. Ga. Oct. 26, 2023).

But when the State of Georgia elected to appeal

the single-judge order and did not seek an

emergency stay, the three-judge court found that the

single-judge court had effectively deprived it of

jurisdiction by at least temporarily rendering

consideration of the 2021 maps moot. Georgia

NAACP at Doc. 201. And while the merits order from

the single-judge district court § 2 case remains on

appeal, the three-judge district court stayed

consideration of the cases before it. Id. at Doc. 222.

Now Georgia is left in a position that makes no

sense from a statutory perspective and even less

sense as a practical matter. Having lost on the

merits at trial on the § 2 claims, the State appealed

that decision while the legislature enacted remedial

plans to comply with the underlying order from the

district court. After the single-judge district court

approved the remedial maps, the plaintiffs also

appealed, arguing the remedial maps still violated

Section 2.

If the State loses its merits appeal, the

remedial maps may be challenged anew as an

unconstitutional racial gerrymander. If the State

6

wins its appeal and reinstates the old maps,4 the

currently terminated three-judge district court case

will spring back to life and Georgia is effectively

back to where it started, facing potential liability

under § 2 (again) and under the U.S. Constitution.

This convoluted structure is entirely unnecessary

and unsupported by statute and binding precedent.

II.

Section 2 cases regarding statewide

redistricting must be heard by three-judge

panels.

Georgia’s experience in 2021 is emblematic of

the problems associated with putting § 2 claims on a

different but parallel litigation track from claims

that allege violations of specific constitutional

provisions—a similar situation in which Louisiana

finds itself here. Before turning to practical reasons

why having all statewide redistricting challenges

decided by three-judge courts, it is necessary to first

analyze the statutory framework of both § 2 of the

VRA and the Three Judge Court Act to explain why

§ 2284 covers challenges to statewide legislative and

congressional districts made exclusively under § 2.

A.

The original language of Section 2.

The VRA is a direct exercise of the enforcement

power of Congress under the Fourteenth and

Fifteenth Amendments. See City of Boerne v. Flores,

521 U.S. 507, 518 (1997); Lewis v. Governor of Ala.,

4 The Georgia legislature included a provision in the remedial

plans reverting to the prior maps if they are later found

lawful on appeal.

7

896 F.3d 1282, 1293 (11th Cir. 2018), vacated and

rehearing en banc granted by 914 F.3d 1291 (11th

Cir. Jan. 30, 2019) (Wilson, J.). Thus, more than

most congressional actions, the VRA is a direct effort

by Congress to effect specific constitutional

provisions.

As originally enacted in 1965, the text of § 2

tracked the language set forth in the Fifteenth

Amendment:

No voting qualification or prerequisite to

voting, or standard, practice, or procedure

shall be imposed or applied by any State

or political subdivision to deny or abridge

the right of any citizen of the United

States to vote on account of race or color.

79 Stat. 437, as amended (quoted in City of

Mobile v. Bolden, 446 U.S. 55, 60 (1980)). Similarly,

Section 1 of the Fifteenth Amendment states: “The

right of citizens of the United States to vote shall not

be denied or abridged by the United States or by any

State on account of race, color, or previous condition

of servitude.” U.S. Const. Amend. XV, Sec. 1.

Thus, for the first decades after passage of § 2,

this Court made clear that “it is apparent that the

language of § 2 no more than elaborates upon that of

the Fifteenth Amendment…” City of Mobile, 446

U.S. at 60. Discussing the legislative history of the

original text, this Court recognized that “[t]he view

that this section simply restated the prohibitions

already contained in the Fifteenth Amendment was

expressed without contradiction.” Id. at 61. And it

8

was uncontroversial that § 2 as originally enacted

was “almost a rephrasing of the 15th Amendment.”

Id. (internal alterations omitted); accord Kirksey v.

City of Jackson, Miss., 663 F.2d 659, 665 (5th Cir.

1981).

Prior to 1980, most lower courts interpreted

these Supreme Court precedents as not requiring a

showing of discriminatory intent in vote dilution

cases, but if proof of discriminatory intent was

required, circumstantial evidence of the lingering

effects of such an intent was a sufficient basis to

prove a claim. The principal case during this period

was Zimmer v. McKeithan, 485 F.2d 1297 (5th Cir.

1973) (en banc), aff’d on other grounds sub nom. East

Carroll Parish School Bd. v. Marshall, 424 U.S. 636

(1976), which involved a challenge by Black citizens

to the at-large election of the school board and police

jury (essentially a county commission) of Louisiana’s

East Carroll Parish. The Fifth Circuit en banc

established a list of standards for testing plaintiffs’

equal protection claims, including proof of:

•

a lack of access to the process of slating

candidates;

•

the unresponsiveness of legislators to a

minority's particularized interests;

•

a tenuous state policy underlying the

preference for multi-member or at-large

districting; or

9

•

that the existence of past discrimination in

general precludes the effective participation in

the electoral system.

485 F.2d at 1305.

Such proof could be further enhanced by a

showing of the following factors:

•

the existence of large districts;

•

majority vote requirements;

•

anti-single shot voting provisions; and

•

the lack of provision for at-large candidates

running from particular geographical subdistricts.

Id.

Applying these standards, the district court

found for the plaintiffs by using those factors as

evidence of the continuing effect of a protracted

history of discrimination affecting the right to vote.

Id. at 1301, 1305–07. One significant point was that

the jurisdiction changed elections to an at-large

method in the immediate wake of increased Black

voting strength after the 1965 enactment of the

Voting Rights Act. Id. The court concluded that the

timing of the change indicated that racial

discrimination motivated the change. Id. at 1306–07.

Thus, the Zimmer court relied upon an

aggregation of factors to find a violation, connecting

10

the historical factors to enforce the constitutional

protections against racial discrimination. Id. at

1304–07. Numerous other lower court decisions

followed this approach. For example, in Kirksey v.

Bd. of Supervisors of Hinds Cnty., Miss., 554 F.2d

139 (5th Cir. 1977), the court applied the Zimmer

factors to conclude that a past pattern of racial

discrimination with regard to voting rights was

evident, citing impediments like poll taxes, literacy

tests, and bloc voting. Id. at 143–51. The court again

tied the plan to constitutional prohibitions against

intentional discrimination:

Where a plan, though itself racially

neutral, carries forward intentional and

purposeful discriminatory denial of access

that is already in effect, it is not

constitutional. Its benign nature cannot

insulate the redistricting government

entity from the existent taint. If a neutral

plan were permitted to have this effect,

minorities presently denied access to

political life for unconstitutional reasons

could be walled off from relief against

continuation of that denial.

Id. at 146–47 (emphasis added).5

5 This Court’s rulings in the non-voting rights cases

Washington v. Davis, 426 U.S. 229 (1976) and Village of

Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252

(1977) similarly recognized a requirement that plaintiffs in

constitutional discrimination cases prove discriminatory

intent. Lower courts interpreted this to mean that this would

be of particular significance if the only issue in the case before

11

B.

Bolden and the 1982 amendments.

This method of analysis came to an abrupt halt

following City of Mobile v. Bolden, 446 U.S. 55

(1980), where this Court reversed lower courts that

applied the Zimmer factors. In that case, a plurality

held that “racially discriminatory motivation is a

necessary ingredient of a Fifteenth Amendment

violation.” Id. at 62 (emphasis added). The plurality

also concluded that the Fifteenth Amendment only

prohibits direct interference with voting rights and

not vote dilution, id. at 65, and that the Equal

Protection Clause of the Fourteenth Amendment

reaches only purposeful discrimination, id. at 72. As

a result, the factors found relevant by the district

court were insufficient to prove an

unconstitutionally discriminatory purpose, id. at 72–

74. With respect to the Zimmer factors, this Court

concluded: “[a]lthough the presence of the indicia

relied on in Zimmer may afford some evidence of a

discriminatory purpose, satisfaction of those criteria

is not of itself sufficient proof of such a purpose.” Id.

at 73.

Faced with this decision, Congress amended

the VRA in 1982. But those amendments did nothing

to alter the underlying prohibition on racial

discrimination in voting practices secured by the

Fourteenth and Fifteenth Amendments—and indeed

they could not. “Congress does not enforce a

it was whether a challenged redistricting plan was the

original source of the discrimination claimed. See Kirksey, 554

F.2d at 151.

12

constitutional right by changing what the right is.”

City of Boerne, 521 U.S. at 519.

Instead, Congress merely shifted the

evidentiary burden on parties seeking to prove a

violation of the Fifteenth Amendment via § 2. This

was not a new requirement but rather a

reestablishment of the old.

The point of the 1982 amendments was to

“relieve plaintiffs of the burden of proving

discriminatory intent,” so a plaintiff could prove his

case “by proof of discriminatory results alone.”

Chisom v. Roemer, 501 U.S. 380, 403 (1991)

(emphasis added). Or, in the words of the Senate

Report to the 1982 amendment, the change “thereby

restores the legal standards, based on the controlling

Supreme Court precedents, which applied in voting

discrimination claims prior to the litigation involved

in Mobile v. Bolden.” S. Rep. No. 97-417, at 2 (1982)

(emphasis added).

The “controlling Supreme Court precedents”

referenced here are found in White v. Regester, 412

U.S. 755 (1973). The statutory language in

subsection (b) of § 2 “codifies the test for

discriminatory result laid down by the Supreme

Court in White v. Regester, and the language is taken

directly from that decision.” S. Rep. No. 97-417, at 67

(1982) (emphasis added). Understanding the statute

in this context matters when determining whether a

three-judge court should be convened in certain

exclusively § 2 claims.

13

Because the amended § 2 restores the pre-City

of Mobile line of caselaw and § 2 as originally

enacted “simply restated the prohibitions already

contained in the Fifteenth Amendment,” City of

Mobile, 446 U.S at 61, then every claim brought

under § 2, even as amended, is and must be a purely

constitutional claim—because § 2 is a statutory

mechanism to enforce a right under the

Constitution. The 1982 amendments could not and

did not establish new rights. They merely returned

to a simpler pathway for enforcing “the prohibitions

already contained in the Fifteenth Amendment,”

even as amended. Id. at 61.6

At bottom, Congress “has been given the power

‘to enforce,’” the Fourteenth and Fifteenth

Amendments, “not the power to determine what

constitutes a constitutional violation.” City of Boerne,

521 U.S. at 519 (emphasis added). Congress stayed

within these bounds when it originally enacted § 2 as

a restatement of the Fifteenth Amendment pursuant

to its enforcement authority. And it did nothing to

alter the constitutional character of a § 2 claim

through the 1982 amendments—instead it

reestablished the results test set forth by this Court

6 If there were any lingering doubt on this point, Justice White

extinguished it in his dissent in City of Mobile when he noted

the decision was “flatly inconsistent with White v. Regester…”

Id. at 94 (White, J. dissenting). And as the author of the

unanimous opinion in Regester, he was highlighting the fact

that the return to pre-City of Mobile precedents necessarily

means a return to a universe where “invidious discriminatory

purpose can be inferred from objective factors of the kind relied

on in White v. Regester.” Id. at 95 (White, J., dissenting)

(emphasis added).

14

in White that had been discarded in City of Mobile,

which provided a coherent evidentiary scheme for

enforcing the guarantees of the Fourteenth and

Fifteenth Amendments.

This becomes clearer when considering what a

majority of justices said in this Court’s first

opportunity to revisit § 2 following the 1982

amendments in Thornburg v. Gingles, 478 U.S. 30,

82–105 (1986). While a plurality of justices pushed

for a racially polarized voting test under § 2 that

ignored causation in the analysis, that view did not

carry the day. Instead, Justice White noted that such

a test would transform § 2 into a rule that condemns

“interest-group politics rather than a rule hedging

against racial discrimination.” Id. at 82 (White, J.,

concurring). And Justice O’Connor writing for

herself and three others flatly declared, “I agree with

Justice White” in rejecting the portion of Justice

Brennan’s plurality opinion that insisted causation

was irrelevant to a § 2 inquiry. Id. at 101 (O’Connor,

J., concurring).

In the Eleventh Circuit, it has long been the

case that for a § 2 claim “to be actionable, a

deprivation of the minority group’s right to equal

participation in the political process must be on

account of a classification, decision, or practice that

depends on race or color, not on account of some

other racially neutral cause.” Solomon v. Liberty

Cnty. Com’rs, 221 F.3d 1218, 1225 (11th Cir. 2000)

(en banc) (quoting Nipper v. Smith, 39 F.3d 1494,

1515 (11th Cir. 1994) (Tjoflat, C.J., plurality opinion)

(internal alterations omitted)). Retaining this causal

element of a § 2 claim effects the statutory command

15

that violations must occur “on account of race.” And

that statutory language shows Congress was

enforcing the Fourteenth and Fifteenth

Amendments’ intent-based rights in § 2, not creating

a new right out of whole cloth through some power to

regulate.

Indeed, the power to enforce constitutional

guarantees is categorically different than the power

to regulate under the Constitution. Other provisions

of the Constitution give Congress the broad power to

regulate in various areas include (but are not limited

to):

•

The power to “regulate Commerce . . .

along the several States.” U.S. Const.

Art. I, Sec. 8 (emphasis added).

•

The power to “regulate the Value” of

money. Id. (emphasis added).

•

The power to “make Rules for the

Government and Regulation of the land

and naval Forces.” Id. (emphasis

added).

•

The power to “make all needful Rules

and Regulations respecting the

Territory or other Property belonging

to the United States.” Id. at Art. IV,

Sec. 3 (emphasis added).

In sharp contrast, neither the Fourteenth nor

Fifteenth Amendment give Congress the power to

regulate anything. Instead, the Fourteenth

16

Amendment gives Congress the “power to enforce, by

appropriate legislation, the provisions of this

article.” U.S. Const. Amend. XIV, Sec. 5 (emphasis

added). And the Fifteenth Amendment grants

Congress the “power to enforce this article by

appropriate legislation.” U.S. Const. Amend. XV,

Sec. 2 (emphasis added). As a result, the VRA was

enacted under Congress’s power to enforce those

constitutional provisions, City of Boerne, 521 U.S. at

518, and cases brought under § 2 are constitutional

enforcement actions.

C.

Why three-judge district courts are

required.

Having confirmed that § 2 claims are

constitutional enforcement actions, we turn next to

the text of the statute on three-judge district courts.

Section 2284 of the Three Judge Court Act requires

“[a] district court of three judges… when an action is

filed challenging the constitutionality of the

apportionment of congressional districts…” 28

U.S.C. § 2284(a) (emphasis added). Because a § 2

claim is, as already explained, a challenge to

districts under the Fourteenth and Fifteenth

Amendments, it is necessarily a challenge to the

constitutionality of those districts, meaning a threejudge district court is required when a claim involves

congressional districts or other statewide legislative

apportionment.

The statute mandates that “[a] district court of

three judges shall be convened…” for constitutional

challenges to congressional and statewide legislative

apportionment. 28 U.S.C. § 2284(a) (emphasis

17

added). Thus, “[i]t follows that the district judge [i]s

required to refer the case to a three-judge court, for §

2284(a) admits of no exception…” Shapiro v.

McManus, 577 U.S. 39, 43 (2015) (emphasis

original). Indeed, “the mandatory ‘shall’ normally

creates an obligation impervious to discretion.” Id.

(cleaned up) (citing Lexecon Inc. v. Milberg Weiss

Bershad Hynes & Lerach, 523 U.S. 26, 35 (1998).

In other words, “[i]n ordinary circumstances, a

single district court judge cannot adjudicate a case

on the merits that is required to be heard by a threejudge court.” Kalson v. Paterson, 542 F.3d 281, 286

(2nd Cir. 2008); see also Igartua v. Obama, 842 F.3d

149, 152 (1st Cir. 2016) (“If a case is brought

improperly to the court of appeals—because the

district court erroneously refused to convene a threejudge court—any subsequent merits ruling by the

appellate panel is void.”).

In addition to the textual and related

jurisdictional reasons for applying § 2284 to claims

brought only under § 2 challenging statewide

districts, doing so also makes sense within the

broader congressional purpose of convening the

unique adjudicatory apparatus of a three-judge

district court in the first place.7

7 While not addressed in this brief, there is currently debate

about whether § 2 of the VRA contains a private right of action.

See Arkansas State Conf. NAACP v. Arkansas Bd. of

Apportionment, 86 F.4th 1204, 1206 (8th Cir. 2023). But if this

Court ultimately concludes some method exists for private

parties to bring § 2 claims, then those actions must constitute

18

Enacting the 1976 amendments to § 2284(a)

brought the three-judge statute to its present text.

In doing so:

Congress was concerned less with the

source of the law on which an

apportionment challenge was based than

on the unique importance of

apportionment cases generally. The Senate

Report, for example, consistently states

that “three-judge courts would be

retained… in any case involving

congressional reapportionment or the

reapportionment of any statewide

legislative body…”

Page v. Bartels, 248 F.3d 175, 190 (2001) (citing S.

Rep. No. 94-204 (1976)) (emphasis added). And

though we look to the text of the statute first and

foremost, the legislative history also supports the

textual reading advanced by Amici.

The Senate Report accompanying the changes

to § 2284 explains that, while the 1976 change to the

statute dramatically reduced the number of cases in

which three-judge courts were required, it “preserves

three-judge courts for cases involving… the

reapportionment of a statewide legislative body

because it is the judgment of the committee that

these issues are of such importance that they ought

to be heard by a three-judge court…” S. Rep. No. 94204 at 9 (1976) reprinted in 1976 U.S.C.C.A.N. 1996

enforcement of constitutional rights under the Fourteenth and

Fifteenth Amendments—requiring a three-judge panel. See 42

U.S.C. § 1983.

19

(emphasis added). Thus, the Senate was concerned

less with the particular legal vehicle chosen for

challenging a statewide apportionment scheme, and

more with the fact that a federal district court would

potentially be intruding in an area constitutionally

reserved to the states. See Miller v. Johnson, 515

U.S. 900, 915 (1995) (“Federal-court review of

districting legislation represents a serious intrusion

on the most vital of local functions. It is well settled

that ‘reapportionment is primarily the duty and

responsibility of the State.’”).

The pattern of maintaining three-judge courts

for issues Congress considered of great importance—

such as reapportionment of its own districts—has

continued since 1976. Congress has since that time

added several election-related categories of cases to

those that must be heard by three-judge courts. For

example, it required challenges to the Census to be

heard by three-judge panels. Depts. of Commerce,

Justice, and State, The Judicial, and Related

Agencies Appropriations Act, 1998, PL 105–119 §

209(e)(1), November 26, 1997, 111 Stat 2440 §

209(e)(1) (requiring three-judge panels for actions

regarding the Census). It also required challenges to

campaign-finance regulations to be heard by threejudge courts. Bipartisan Campaign Reform Act of

2002, PL 107–155 § 403(a)(1), March 27, 2002, 116

Stat 81 § 403(a)(1) (“The action shall be filed in the

United States District Court for the District of

Columbia and shall be heard by a 3–judge court

convened pursuant to section 2284 of title 28, United

States Code.”); see also 26 U.S.C. § 9011 (three

judges for Presidential campaign commission issues).

20

Considering the limited scope of three-judge

panels, it would be strange if Congress in 1982

carved out § 2 challenges to statewide redistricting

plans from § 2284 as a special case—even though § 2

claims typically challenge precisely the same

legislative maps as those that are challenged directly

under the Fourteenth and Fifteenth Amendments.

Acknowledging these specific § 2 claims as covered

by § 2284 would not open the door to just any § 2

claim challenging redistricting. Because § 2284

provides that a three-judge court is convened only

for challenges to “congressional districts or the

apportionment of any statewide legislative body,” 28

U.S.C. § 2284(a), § 2 challenges to county or other

local legislative bodies would proceed along a normal

litigation track. Accordingly, this Court can avoid

the burden of being statutorily summoned to pass

judgment on every local apportionment issue, while

maintaining its necessary role in promptly deciding

weighty issues of statewide apportionment.

For these reasons, the general purpose

advanced and articulated by Congress in amending §

2284 fits well with the textual analysis set forth by

Amici in the previous section.

D.

Practical importance of threejudge panels.

Finally, there are numerous practical reasons

for convening a three-judge district court in § 2

claims challenging statewide legislative

reapportionment.

21

As this Court has recognized, Congress’s

policy behind the use of three-judge courts and the

direct-review process was “the saving of state and

federal statutes from improvident doom at the hands

of a single judge.” MTM, Inc. v. Baxley, 420 U.S. 799,

804 (1975); see also Three-Judge Court Acts—History

and Purpose, 17A Fed. Prac. & Proc. Juris. § 4234

(3d ed.). With issues as important as statewide

redistricting and the VRA, where there is a

significant danger that federal courts could “invite

the losers in the redistricting process to seek to

obtain in court what they could not achieve in the

political arena,” Cooper v. Harris, 581 U.S. 285, 335

(2017) (Alito, J., concurring), the three-judge panel

process provides significant protection for all

litigants.8

Further, Amici have already detailed the State

of Georgia’s ongoing challenges with separate

parallel tracks challenging statewide redistricting

plans. But the confusion exists in states other than

Louisiana and Georgia. For example, in Garcia v.

Hobbs, a three-judge district court dismissed as moot

a constitutional challenge to Washington’s 2021

8 Challenges to statewide redistricting plans brought only

under § 2 without constitutional claims are a recent

phenomenon. For most of the time after the 1982

amendments, § 2 cases were brought in combination with

constitutional claims that resulted in the appointment of

three-judge panels to hear them. See, e.g., Page, 248 F.3d at

180 (three-judge court required to consider VRA and

constitutional claims). In recent years, lawyers have

strategically filed claims only under § 2 to obtain single

judges to hear their cases instead of the geographically

broader three-judge process.

22

legislative apportionment after a single-judge court

found the same map violated § 2 of the VRA and

ordered it redrawn. 691 F. Supp. 3d 1254, 1259

(2023).

The issue in the three-judge district court

centered on the legal effect of the more expeditious

outcome of a parallel § 2 claim in Soto Palmer v.

Hobbs, 686 F. Supp. 3d 1213 (W.D. Wash. 2023).

Although both cases challenged the same district as

unlawfully drawn, the single-judge case involved an

exclusively § 2 claim from plaintiffs alleging the

district should have been more racially

gerrymandered, while the plaintiff in the three-judge

court alleged it violated the Equal Protection Clause

because it was too racially gerrymandered. Garcia,

691 F. Supp. 3d at 1266 (Vandyke, J., dissenting).

Once the § 2 claim was resolved by the single

judge (before the three-judge panel could weigh in),

the three-judge district court concluded it lacked

jurisdiction to hear the plaintiff’s claim because the

challenged map no longer existed. The dissenting

opinion noted its view that the map as challenged by

the plaintiff in Garcia violated the Equal Protection

Clause. As a result, it was “void ab initio, [and] the

Soto Palmer decision amounts to an advisory

opinion…” Garcia, 691 F. Supp. 3d at 1260

(Vandyke, J., dissenting). But even if it was not

advisory, the dissent explained the § 2 claim should

have been considered after the three-judge district

court’s case because “it makes little sense to

undertake a complicated test that involves

indeterminate balancing when a simpler threshold

basis exists for resolving the matter.” Id. at 1624.

23

Nevertheless, the single-judge district court

promptly disposed of the § 2 case.

This was a strange situation but not an

uncommon one. On the one hand, the Garcia

plaintiff complained that the State “considered race

too much unlawfully in drawing the legislative map.”

Id. at 1266. At the same time, the Soto Palmer

plaintiff complained that the State “violated the

VRA because LD-15 did not consider race enough…”

Id. at 1266. Thus, the majority in Garcia concluded

that increased racial gerrymandering pursuant to

the VRA mooted a claim that alleged the State

racially gerrymandered too much. Id. at 1267. This

decision deprived the three-judge court of

jurisdiction. See Kalson, 542 F.3d at 286. And even

had the majority agreed with the dissent, it still

would have created an endless game of whack-amole for a State powerless to satisfy potentially

conflicting orders from two different courts on the

same maps.9

In Garcia, the single-judge district court ruling

prevailed over the three-judge district court not

because it was correct, but because it was first. That

makes little sense considering the congressional

purpose of § 2284 is to place these matters of great

9 The problem works the other way as well: it makes little sense

for plaintiffs in a constitutional challenge before three judges

to have to choose to intervene in a single judge case to have

their claims heard or risk the entire case becoming moot upon

the ruling of the single judge. That absurd result is avoided

by recognizing that § 2 cases involving congressional or

statewide redistricting plans are to be heard by a three-judge

court.

24

importance in the hands of a three-judge district

court with a direct and non-discretionary path of

appeal to this Court. See, e.g, Iguartu, 842 F.3d at

156 (“An inclusive construction of § 2284(a)’s

language is also supported by the singular

importance legislators attributed to apportionment

claims when the Three–Judge Court Act was

amended in 1976.”). But that is how these situations

are now playing out, including in Georgia, where the

§ 2 claim advanced to trial, remedy, and appeal,

which forced the three-judge district court to stay

the case pending the appeals. Georgia NAACP at

Doc. 222.

This Court can avoid condemning States and

litigants to the inefficiencies and dangers of parallel

litigation tracks by applying the text of § 2284 to § 2

claims. As a result, this Court should affirm the

district court because Louisiana could not rely on a

preliminary injunction entered by a single judge

under § 2 to justify its racial gerrymandering. The

single-judge district court had no jurisdiction to

enter any order under § 2 in the first place.

III. This Court has consistently held that

partisan decisions cannot justify placing

majority-Black districts in other parts of a

state.

In addition to the lack of jurisdiction of the

single-judge court, Louisiana seeks to use politics as

a defense to racial gerrymandering in a way this

Court has never allowed. For this Court to reverse

25

the district court, it must overrule the Shaw line of

cases.10

States can defend against a racial

gerrymandering claim by using political data for the

decisions to draw a district instead of utilizing racial

data. See Easley v. Cromartie, 532 U.S. 234, 252

(2001). But that is not what Louisiana did here. In

this appeal, Louisiana admits that it drew the new

majority-Black district solely on the basis of race but

claims its motive of protecting certain Republican

incumbent members of Congress allowed it to locate

the racial gerrymander where it preferred without

making race the predominant factor in creating the

plan. App. Br. at 35–39. Even if Louisiana could rely

on the single-judge decision as justification for its

racial mapdrawing, it did not create the additional

majority-Black district in the areas identified by the

single-judge court and instead placed it in an

entirely different part of the State. See Robinson v.

Ardoin, 605 F. Supp. 3d 759, 781 (M.D. La. 2022),

vacated and remanded, 86 F.4th 574 (5th Cir. 2023)

(identifying area of minority population in southern

part of the state). That position ignores this Court’s

binding precedent that politics cannot save a racially

predominant map when a State chooses to place a

majority-Black district in a part of the state other

than the area where § 2 requires it—which has been

10 This section also further underscores why constitutional and

§ 2 claims should all be heard by three-judge district courts—

because that court can properly weigh the sometimescompeting directives of the VRA and the Constitution. See

Abbott v. Perez, 585 U.S. 579, 586 (2018) (noting VRA “pulls

in the opposite direction” than the Constitution).

26

the consistent holding throughout the Shaw line of

cases.

Several examples from States defending Shaw

claims based on incumbent protection demonstrate

this reality.

A.

North Carolina.

The most obvious example is in North Carolina

with the maps that led to Shaw. While North

Carolina originally did not draw any majority-Black

districts in the 1990 redistricting cycle, it eventually

created a congressional redistricting plan that had

“one district with a majority of Black voters, located

in northeastern North Carolina.” Pope v. Blue, 809 F.

Supp. 392, 394 (W.D.N.C.), aff’d, 506 U.S. 801

(1992). The “very contorted” shape and location was

“to protect white Democratic congressmen at the

expense of Republicans.” Id. That was the plan

originally submitted for preclearance.

The Attorney General objected to that

redistricting plan, specifically to the configuration of

lines in the “south-central to southeastern region of

the State.” Shaw v. Reno, 509 U.S. 630, 635 (1993)

(Shaw I). He specifically noted the “unusually

convoluted shape” of the “district drawn in the

northeast region of the state.” DOJ Objection Letter,

at 4 (Dec. 18, 1991), available at

https://www.justice.gov/sites/default/files/crt/legacy/2

014/05/30/NC-1500.pdf This convoluted shape was

not required to create a majority-Black district,

because “at least one alternative configuration was

available that would have been more compact.” Id.

27

The reason for the unusual location of the

majority-Black district was partisan—specifically

the protection of Democratic incumbent members of

Congress. DOJ noted that several commenters

alleged “the state’s decision to place the

concentrations of minority voters in the southern

part of the state into white majority districts

attempts to ensure the election of white incumbents

while minimizing minority electoral strength.” Id. at

5.

But that pattern continued as the legislature

undertook to create a revised redistricting plan in a

different location of the state than the location

identified by DOJ—specifically “in the north-central

region along Interstate 85,” which was designated as

District 12, as the compactness of districts continued

to spiral downward in each plan. Shaw, 509 U.S. at

635.

That led to a political gerrymandering case that

was dismissed, but which alleged that the second

majority-Black district’s shape and location were—

again—due to an effort at protecting “white

incumbent Democratic Congressmen.” Pope, 809 F.

Supp. at 396.

Following dismissal, the racial-gerrymandering

theory of Shaw I began its journey to this Court,

challenging District 12 in the following map. 509

U.S. at 636.

28

Id. at 659.

In Shaw I, the plaintiffs alleged that the

revised plan was an unconstitutional racial

gerrymander. One of the concurring judges noted

specifically that the reason for the placement of

District 12 was the result of the General Assembly

rejecting the DOJ’s construction in favor of its

preferred plan. Shaw v. Barr, 808 F. Supp. 461, 479

(E.D.N.C. 1992) (Voorhees, J., concurring and

dissenting in part), rev’d sub nom. Shaw I, 509 U.S.

at 630. The defendants alleged that the reason for

this was political—protecting incumbents. Id. at 464

n.3. The three-judge court then dismissed the case

for failure to state a claim. Shaw I, 509 U.S. at 638.

This Court then explained that “[n]o inquiry

into legislative purpose is necessary when the racial

classification appears on the face of the statute.” Id.

at 642. And it determined that “on the facts of this

case,” which included the decisions about where to

place the new majority-Black district for purposes of

incumbent protection, “appellants have stated a

claim sufficient to defeat the state appellees’ motion

to dismiss.” Id. at 649.

29

B.

Georgia.

Shortly thereafter, the same issue arose in

Georgia. Following the 1990 Census, the

Democratically controlled Georgia General Assembly

initially added a second majority-Black district to its

congressional plan, but the Department of Justice

rejected that proposal, instead insisting on a third

majority-Black district. Johnson v. Miller, 864 F.

Supp. 1354, 1362 (S.D. Ga. 1994), aff’d and

remanded, 515 U.S. 900 (1995).

The problem the Democratic majority in

Georgia faced in drawing a third majority-Black

district was incumbent protection. In its rejection

letter, “DOJ criticized plans for both chambers of the

General Assembly for protecting white incumbents

rather than drawing additional majority-black

districts.” Charles S. Bullock III, The History of

Redistricting in Georgia, 52 GA. L. REV. 1057, 1073

(2018) (emphasis added).

In order to create the third majority-Black

district pointed out by the DOJ, the legislature was

forced to place majority-Black areas of middle

Georgia previously in Democratic Congressman Ben

Jones’ district into a new majority-Black district. But

a compact method of creating that district would

have resulted in adding Republicans to

Congressman Jones’ district. The legislature instead

chose to take majority-Black areas in Savannah into

District 11 to protect Congressman Jones—meaning

the district now ran from Atlanta to Savannah. Id.

at 1074; Johnson, 864 F. Supp. at 1366–67; Miller,

515 U.S. at 907. The Georgia legislature then

30

created the other districts required by DOJ and

constructed the remaining districts based on the

then-existing incumbents. Johnson, 864 F. Supp. at

1366–67; Bullock, 52 GA. L. REV. at 1075.

Johnson, 864 F. Supp. at 1398.

A group of Plaintiffs challenged District 11 as

an unconstitutional racial gerrymander. Johnson,

864 F. Supp. at 1359. The three-judge court then

undertook the inquiry of “[h]ow to determine if a

district is so founded upon race that it warrants

constitutional notice?” Johnson, 864 F. Supp. at

1369. The three-judge court eventually concluded

that “the plan fails strict scrutiny under the

Fourteenth Amendment.” Id. at 1393.

31

When the appeal reached this Court, it rejected

the appellants’ theory that a district’s shape has to

be “so bizarre that it is unexplainable other than on

the basis of race.” Miller, 515 U.S. at 910–11.

Instead, this Court explained “that parties alleging

that a State has assigned voters on the basis of race

are neither confined in their proof to evidence

regarding the district’s geometry and makeup nor

required to make a threshold showing of

bizarreness.” Id. at 915. To prevail, a plaintiff must

show “that the legislature subordinated traditional

race-neutral districting principles, including but not

limited to compactness, contiguity, and respect for

political subdivisions or communities defined by

actual shared interests, to racial considerations.” Id.

at 916.

The Court did not countenance or provide an

option for States to use incumbent protection or

other political considerations as a defense to a

finding of racial predominance.

C.

Texas.

The next child of Shaw, Bush v. Vera, was from

Texas. 517 U.S. 952 (1996). The Texas legislature

drew a series of districts which resembled an onion

skin surrounding the area around Dallas-Fort Worth

and drew districts centered in Houston which

“interlock like a jigsaw puzzle . . . in which it might

be impossible to get the pieces apart.” Id. at 973

(quoting Barone & Ujifusa, ALMANAC OF AMERICAN

POLITICS 1996 at 1307–08). As the DOJ stated in its

preclearance letter for the Texas congressional

redistricting scheme, “[w]hile we are preclearing this

32

plan under Section 5 the extraordinarily convoluted

nature of some of the districts compels me to disclaim

any implication that our preclearance establishes

that the proposed plan is otherwise lawful or

constitutional…Our preclearance of the submitted

redistricting plan in no way addresses the state’s

approach to its redistricting obligations other than

with regard to section 5.” Letter of John Dunne to

Texas Attorney General Morales, Nov. 18, 1991

(emphasis added).

In the subsequent Shaw-based litigation, the

District Court found all three districts violated the

principles of Shaw and its progeny. Vera v. Richards,

861 F. Supp. 1304 (S.D. Tex. 1994). This was despite

the State’s defense of incumbent protection, where

the bizarre shapes led to the configuration of other

districts to protect sitting members of Congress. Id.

at 1334.

This Court affirmed the district court. Vera,

517 U.S. at 952. Texas’ primary defense that

“incumbency protection (including protection of

‘functional incumbents,’ i.e., sitting members of the

Texas Legislature who had declared an intention to

run for open congressional seats), also played a role

in the drawing of the district lines” was insufficient.

Id. at 959. But like Louisiana’s defense here, the

evidence “confirmed that the decision to create the

districts now challenged as majority-minority

districts was made at the outset of the process and

never seriously questioned.” Id. at 961. And the state

did so by avoiding drawing more compact options.

District 30 especially had quite an unusual shape:

33

Id. at 986.

Given the combination of incumbent protection

with the decision to draw districts based on race at

the outset, this Court concluded “[t]he districts

before us exhibit a level of racial manipulation that

exceeds what § 2 could justify.” Id. at 981. As a

result, it affirmed the district court. Id. at 986.

This Court also dealt with another Texas map

that similarly attempted to place districts required

by § 2 in another part of the state. Following the

2000 Census, this Court determined that

The State chose to break apart a Latino

opportunity district to protect the

incumbent congressman from the growing

dissatisfaction of the cohesive and

politically active Latino community in the

district. The State then purported to

34

compensate for this harm by creating an

entirely new district that combined two

groups of Latinos, hundreds of miles

apart, that represent different

communities of interest. Under § 2, the

State must be held accountable for the

effect of these choices in denying equal

opportunity to Latino voters.

League of United Latin Am. Citizens v. Perry, 548

U.S. 399, 441–42 (2006). This was consistent with

how this Court has applied the standards of Shaw

and its progeny—and the opposite of what Louisiana

argues here.

D.

Virginia.

The Virginia redistricting process in the 1990s

also resulted in legislators placing a majority-Black

district in a different part of the state for incumbent

protection reasons, but that was not justification for

racial gerrymandering.

With the population growth following the 1990

Census, Virginia’s legislature debated where to place

a new majority-Black district. Moon v. Meadows, 952

F. Supp. 1141, 1144 (E.D. Va.), aff’d, 521 U.S. 1113

(1997). The resulting district ignored proposals for

more compact options and instead was drawn in an

incredibly bizarre shape to protect nearby

incumbents, with the district court quoting

descriptions of the district as a “grasping claw” and a

“squashed salamander.” Id. at 1147. Despite

recognizing that the legislature used the more

convoluted district for the “protection of incumbent

office holders,” it still found that race predominated

35

in the creation of the district. Id. at 1148. This Court

affirmed. 521 U.S. at 1113.

E.

Louisiana.

Finally, this is not the first time Louisiana

faced a racial gerrymandering claim—it also faced

litigation after the 1990 Census. Following that

Census, Louisiana lost a congressional seat,

reducing its delegation to seven members of

Congress. Hays v. State of La., 936 F. Supp. 360, 362

(W.D. La. 1996) (Hays III). Again, the DOJ denied

preclearance requiring that a second majority-black

district be constructed in the state. The plan the

legislature drew had two majority-Black districts

and placed those districts in locations based on

incumbency protection, which “affected only the

general location of the gerrymander that is District

4.” Hays v. State of La., 839 F. Supp. 1188, 1202 n.43

(W.D. La. 1993), vacated sub nom. Louisiana v.

Hays, 512 U.S. 1230, 114 S. Ct. 2731, 129 L. Ed. 2d

853 (1994) (Hays I).

Incumbent protection by locating a majorityBlack district in some other location in the state was

not sufficient to save the district from a finding of

racial predominance. Id. That led to a finding that

District 4 (in the shape of a slash—and very similar

to the district at issue in this case) was

unconstitutional. Hays III, 936 F. Supp. at 371.

36

Id. at 374.

All of these examples demonstrate this Court’s

consistent holding that political considerations are

not sufficient to justify placing a district drawn

primarily based on race in a part of the state where

it is not required by § 2. Shaw I, 509 U.S. at 624.

Those cases require affirmance here. And

although no longer subject to DOJ preclearance,

Louisiana apparently interpreted the preliminary

injunction ordered by the single-judge court as

something akin to the preclearance process—you

cannot draw fewer than two majority-Black districts,

no matter where you draw them. This Court should

not change its consistent approach and should

ensure that States have clear rules of the road for

the creation of majority-Black districts required by §

2 in particular geographic areas.

37

CONCLUSION

This Court should affirm the district court.

Respectfully submitted this 28th day of

January, 2025.

BRYAN P. TYSON

Counsel of Record

BRYAN F. JACOUTOT

DIANE F. LAROSS

CLARK HILL PLC

3630 Peachtree Road NE

Suite 550

Atlanta, GA 30326

678-370-4377

btyson@clarkhill.com

Counsel for Georgia Republican Legislators