Reply Brief — Louisiana, Appellant v. Phillip Callais, et al.

Supreme Court briefFeb 20, 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

————

REPLY BRIEF FOR ROBINSON APPELLANTS

————

JANAI NELSON

SAMUEL SPITAL

STUART NAIFEH

Counsel of Record

VICTORIA WENGER

JOHN S. CUSICK

COLIN BURKE

NAACP LEGAL DEFENSE &

EDUCATIONAL FUND, INC.

40 Rector St., 5th Floor

New York, NY 10006

(212) 965-2200

snaifeh@naacpldf.org

DEUEL ROSS

I. SARA ROHANI

NAACP LEGAL DEFENSE &

EDUCATIONAL FUND, INC.

700 14th St. NW, Suite 600

Washington, DC 20005

ROBERT A. ATKINS

YAHONNES CLEARY

JONATHAN H. HURWITZ

PIETRO J. SIGNORACCI

AMITAV CHAKRABORTY

ADAM P. SAVITT

ARIELLE B. MCTOOTLE

ROBERT KLEIN

NEIL CHITRAO

REGINA FAIRFAX

PAUL, WEISS, RIFKIND,

WHARTON & GARRISON LLP

1285 Avenue of the Americas

New York, NY 10019

Counsel for Appellants

[Additional Counsel Listed On Inside Cover]

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

SARAH BRANNON

MEGAN C. KEENAN

ADRIEL I. CEPEDA DERIEUX

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

915 15th St. NW

Washington, DC 20005

TRACIE WASHINGTON

LOUISIANA JUSTICE INSTITUTE

3157 Gentilly Blvd., Suite 132

New Orleans, LA 70122

JOHN ADCOCK

ADCOCK LAW LLC

3110 Canal St.

New Orleans, LA 70119

NORA AHMED

ASHLEY FOX

ACLU FOUNDATION OF

LOUISIANA

1340 Poydras St., Suite 2160

New Orleans, LA 70112

CECILLIA D. WANG

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

425 California St., Suite 700

San Francisco, CA 94104

SOPHIA LIN LAKIN

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

125 Broad St., 18th Floor

New York, NY 10004

T. ALORA THOMAS-LUNDBORG

DANIEL HESSEL

ELECTION LAW CLINIC

HARVARD LAW SCHOOL

6 Everett St., Suite 4105

Cambridge, MA 02138

TABLE OF CONTENTS

Page

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

iii

ARGUMENT ........................................................

I. Like the District Court, Appellees

Misapply this Court’s Racial-Predominance

Standards ..................................................

A. The Legislature’s Deliberate Compliance

with Federal Law Is Not Per Se Racial

Predominance ......................................

1. Appellees’ Recitation of the Legislative Record Proves Only an

Intent to Comply with §2 ................

2. Circumstantial Evidence Fails to

Prove Racial Predominance ...........

3. Political Goals Were Not Subordinated to Race Simply Because

They Were Considered After the

Robinson Rulings ...........................

4. The Record Is Devoid of Evidence

that Race Influenced the Choice of

SB8 Over Other VRA-Compliant

Options............................................

B. Appellees Failed to Disentangle Race

and Politics ..........................................

C. Hays Is Not Controlling ......................

II. If Strict Scrutiny Applies, It Is Satisfied ....

A. The Legislature Had a Compelling

Interest in Complying with the VRA ....

(i)

TABLE OF CONTENTS—Continued

Page

B. SB8 Is Narrowly Tailored to Comply

with §2 .................................................

1. None of Appellees’ Arguments

Undermine the “Good Reasons”

Provided by Robinson ......................

2. SB8 Substantially Addresses the

VRA Violation.................................

III. The Pending 2024 Election Counseled

Against, Not in Favor of, Consolidation of

the Trial.....................................................

CONCLUSION ....................................................

iii

TABLE OF AUTHORITIES

CASES

Page(s)

Abbott v. Perez,

585 U.S. 579 (2018) ................................... 4, 13

Ala. Legis. Black Caucus v. Alabama,

575 U.S. 254 (2015) ................................... 13, 18

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

602 U.S. 1 (2023) ............................... 1, 2, 10, 11

Allen v. Milligan,

599 U.S. 1 (2023) ......................... 4, 6, 15, 16, 19

Ardoin v. Robinson,

143 S. Ct. 2654 (2023) ...............................

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

580 U.S. 178 (2017) ................................. 1, 4, 16

Bush v. Vera,

517 U.S. 952 (1996) ... 1, 3, 4, 8, 13, 15-17, 20, 22

Cooper v. Aaron,

358 U.S. 1 (1958) .......................................

Cooper v. Harris,

581 U.S. 285 (2017) ................................... 10, 12

Easley v. Cromartie,

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

5, 8

Hays v. Louisiana,

862 F. Supp. 119 (W.D. La. 1994) ............

Hays v. Louisiana,

936 F. Supp. 360

(W.D. La. 1996) ........................................... 4, 12

TABLE OF AUTHORITIES—Continued

Page(s)

League of United Latin Am. Citizens v.

Perry,

548 U.S. 399 (2006) ............................. 14, 21, 22

Reynolds v. Sims,

377 U.S. 533 (1964) ...................................

Robinson v. Ardoin,

86 F.4th 574 (5th Cir. 2023) ......... 2, 5, 9, 18, 20

Robinson v. Ardoin,

605 F. Supp. 3d 759

(M.D. La. 2022) ................................ 2, 16-18, 20

Shaw v. Hunt,

517 U.S. 899 (1996) ......................... 3, 13, 14, 21

Singleton v. Wulff,

428 U.S. 106 (1976) ...................................

Thornburg v. Gingles,

478 U.S. 30 (1986) ..................................... 15-18

Town of Chester v. Laroe Ests. Inc.,

581 U.S. 433 (2017) ...................................

Vance v. Bradley,

440 U.S. 93 (1979) .....................................

CONSTITUTION

U.S. Const. art. III........................................

U.S. Const. amend. XIV ............................... 1, 14

TABLE OF AUTHORITIES—Continued

STATUTES

Page(s)

Voting Rights Act of 1965, Pub. L.

No. 89-110, 79 Stat. 437 (52 U.S.C.

§§10301, et seq.) .......... 1, 5, 9, 13, 14, 18, 20, 22

Voting Rights Act of 1965, §2 (52 U.S.C.

§10301) .................................................. 1-4, 6-22

La. Acts 2022, 1st Ex. Sess., Act No. 5

(HB1) ....................................... 1, 6, 7, 11, 18, 19

La. Acts 2024, 1st Ex. Sess., Act No. 2

(SB8) ................... 1-3, 5-9, 11, 13, 14, 17, 18, 22

RULES

Fed. R. Civ. P. 65 ..........................................

OTHER AUTHORITIES

SB4, 2024 Leg., 1st Ex. Sess. (La. 2024) ..... 2, 6-9

ARGUMENT

“The Constitution entrusts state legislatures with

the primary responsibility for drawing congressional

districts, and redistricting is an inescapably political

enterprise.” Alexander v. S.C. State Conf. of the NAACP,

602 U.S. 1, 6 (2023). Consistent with that foundational

principle, this Court has repeatedly assured legislatures

that they “retain a flexibility that federal courts …

lack,” to consider their own policy preferences when

remedying a §2 violation, Bush v. Vera, 517 U.S. 952,

978 (1996), and that courts will give them “breathing

room” so they are not “trapped between the competing

hazards of liability under the Voting Rights Act and

the Equal Protection Clause,” Bethune-Hill v. Va. State

Bd. of Elections, 580 U.S. 178, 196 (2017) (cleaned up).

Appellees ask the Court to renege on these promises

and invalidate Louisiana’s 2024 congressional map,

SB8, as a racial gerrymander despite a federal court

having already determined that §2 likely required a

second opportunity district for Black voters, and even

though politics, not race, drove the shape of the district

the Legislature ultimately chose to address the §2

violation. Principles this Court has repeatedly reaffirmed

foreclose Appellees’ legal arguments, and their construction of the evidence, even were it correct, does not

support the district court’s conclusions. If Appellees

prevail, it will lead to greater judicial involvement in

redistricting, duplicative collateral litigation, and an

intolerable lack of certainty for legislatures tasked

with redistricting.

Nevertheless, Appellees’ brief is instructive in

elucidating what is not disputed in this case. There is

no dispute that the Robinson district court found that

Louisiana’s 2022 plan, HB1, likely violated §2, and

that the Fifth Circuit affirmed that finding after this

Court declined to review it. Br.4-5; see Ardoin v.

Robinson, 143 S. Ct. 2654 (2023); Robinson v. Ardoin,

86 F.4th 574 (5th Cir. 2023) (Robinson III). There is no

dispute that, in reaching that conclusion, Robinson

found that a reasonably configured second majorityBlack district could be drawn without racial predominance. Br.4; Robinson v. Ardoin, 605 F. Supp. 3d 759,

838 (M.D. La. 2022) (Robinson I). There is consequently no dispute that the Legislature then drew SB8

with a second majority-Black district, CD6, to comply

with §2 as applied by the Robinson courts. Br.6. There

is no dispute that SB8 was chosen over more compact

plans with two majority-Black districts, including the

Robinson illustrative plans and SB4 (Price-Marcelle),

nor that SB8 was drawn to protect specific, named

incumbents whereas the other maps would not.

J.A.370-372; J.S.A.154a, 164a. Finally, it is undisputed

that CD6 draws at least 70% of its population from

parishes shared with those more compact plans. Br.50.

Under these uncontested facts, Appellees’ racialgerrymandering claim fails. First, these facts show

that Louisiana deliberately chose a less compact plan

than necessary to comply with §2, and that, in doing

so, the State sought to accomplish nonracial political

goals. These facts, particularly when applying the

presumption of legislative good faith, establish that

politics predominantly explains CD6’s shape.

Alexander, 602 U.S. at 9-10. At minimum, they show

that race and politics were deeply intertwined as the

Legislature crafted a map to protect specific incumbents,

connect communities along a major transportation

corridor, and satisfy §2. Appellees were obliged to

disentangle those considerations to prove race predominated. Id. Their failure to do so requires reversal.

Second, even if the undisputed facts did not dispose

of the racial-predominance question, they establish

that SB8 was narrowly tailored to satisfy §2. With

at least 70% of its population drawn from areas where

Robinson found vote dilution, CD6 substantially

addresses a specific, identified instance of racial

discrimination. Vera, 517 U.S. at 977; Shaw v. Hunt,

517 U.S. 899, 909 (1996) (Shaw II). And undisputed

facts establish that CD6 departs from “a hypothetical

court-drawn district”—the compact Robinson illustrative district—to achieve Louisiana’s nonracial goal of

protecting preferred incumbents. Vera, 517 U.S. at 994995 (O’Connor, J., concurring). The district court found

CD6 insufficiently tailored only because it applied an

incorrect legal standard whereby a §2 remedial district—

unlike any other district a state draws—must not stray

from traditional districting principles for any reason.

Reversal is warranted. Because the undisputed facts show

that CD6 is narrowly tailored, this Court should remand

with instructions to enter judgment for Appellants.

I. Like the District Court, Appellees Misapply

this Court’s Racial-Predominance Standards.

Appellees base their contention that race predominated on three legal errors. First, they contend the

Legislature’s avowed effort to resolve the Robinson

litigation by drawing a second majority-Black district

establishes racial predominance. Br.7-12. This Court

has repeatedly rejected that premise, recognizing that

the intentional creation of a majority-minority district

does not, standing alone, prove racial predominance.

Second, contrary to Alexander, Appellees argue that

the Legislature’s political goals were not genuinely

held, excusing their obligation to disentangle race and

politics. Third, Appellees offer the flawed syllogism

that, because CD6 superficially resembles the district

struck down as a racial gerrymander in Hays v.

Louisiana, 936 F. Supp. 360 (W.D. La. 1996) (Hays III),

it must itself be a racial gerrymander. Br.23. Unlike in

Hays (but consistent with the legal principle Hays

represents), here the legislative record leaves no doubt

that politics, not race, drove CD6’s configuration.

A. The Legislature’s Deliberate Compliance

with Federal Law Is Not Per Se Racial

Predominance.

Appellees offer a series of arguments that all boil

down to the contention that Louisiana’s conscious

creation of a second majority-Black district—as §2

required—was enough to make race predominate. But

as this Court has repeatedly made clear, complying with

§2 “demands consideration of race.” Allen v. Milligan,

599 U.S. 1, 30-31 (2023) (plurality opinion) (citing Abbott

v. Perez, 585 U.S. 579, 587 (2018)). But as Justice

Kavanaugh emphasized in his Milligan concurrence,

to succeed under §2, a plaintiff must ordinarily present

an illustrative map that creates a new majority-minority

district without subordinating “compactness principles

and other traditional districting criteria” for the purpose

of “group[ing] together geographically dispersed minority

voters into unusually shaped districts.” Id. at 43

(Kavanaugh, J., concurring). As such, the intentional

creation of a majority-minority district to satisfy §2 is

not in itself proof of racial predominance. Vera, 517

U.S. at 958; see also Bethune-Hill, 580 U.S. at 191-192

(racial gerrymandering claim requires a holistic

predominance analysis).

1. Appellees’ Recitation of the Legislative

Record Proves Only an Intent to Comply

with §2.

Appellees offer the same legally erroneous view of

the legislative and trial records as the district court.

They incorrectly argue that lawmakers’ statements

announcing their intent to resolve the Robinson

litigation and their recognition that doing so would

require a map with a second majority-Black district

are proof of racial predominance. Br.24-26. On the

contrary, the Robinson courts had already found that

creating such a district did not require racial

predominance. Robinson III, 86 F.4th at 591-595. That

Louisiana intended to comply with the VRA proves

only that race was “a motivation” for SB8. Easley v.

Cromartie, 532 U.S. 234, 241 (2001). It says nothing

about whether race, relative to other considerations,

predominated in the specific lines the Legislature

drew. Id. at 253.

Appellees also misconstrue Senator Womack’s

observation that southeast Louisiana’s Black population

was insufficient to create two majority-Black districts

there. J.S.A.442a-443a. Seizing on that statement,

they make the unsupported leap that CD6’s riverine

configuration connecting Baton Rouge in the southeast

to Shreveport in the northwest was necessary to

create a second majority-Black district. Br.25. They

ignore the Robinson courts’ finding that an illustrative

majority-Black district joining Baton Rouge and

northeast Louisiana was reasonably configured, and

they exclude the critical context that Senator Womack

was explaining why SB8 was “a different map than the

plaintiffs in the [Robinson] litigation have proposed.”

J.S.A.443a. And he explained the reason for that

difference: Senator Womack offered SB8, despite being

aware that it was less compact than the Robinson

maps, J.S.A.395a, because it was the only map that

achieved his “political goals.” J.S.A.392a-394a (emphasis

added). Far from constituting a concession that VRAcompliance required a noncompact district or that race

predominated, these statements simply highlight that

race and politics were intertwined in the Legislature’s

line-drawing.

2. Circumstantial Evidence Fails to Prove

Racial Predominance.

Appellees’ circumstantial evidence reveals that the

features of CD6 on which the district court focused

were driven by politics, not race. First, Appellees make

much of evidence that CD6 includes more predominantly Black than predominantly White precincts.

Br.26-27. But as Appellees’ expert conceded, every

majority-Black district by definition meets that

description. Doc.185, 332:14-17. In short, this circumstantial evidence merely shows that CD6 is majority

Black and proves nothing more than that Louisiana

intentionally drew a district to satisfy §2. It does not

support the district court’s racial predominance

finding. Cf. Milligan, 599 U.S. at 32-33 (plurality opinion)

(evidence that map drawer set out to create a majorityBlack district did not establish racial predominance).

Repeating the panel majority’s error, Appellees also

dubiously claim that SB8’s single additional parish

split compared to HB1 is enough to prove that the

Legislature subordinated parish integrity to race.

Br.29. But SB8’s additional parish splits resulted from

political considerations, not race. The amendment

splitting Avoyelles Parish was intended solely to

further strengthen Representative Letlow’s district.

J.S.A.399a-404a. Splitting DeSoto and Caddo Parishes

was necessary to maintain key assets in Speaker

Johnson’s district, while preserving the core of

Representative Letlow’s district in northeast Louisiana.

See Appellants’ Br.14-15. By contrast, as SB4 shows,

splitting many parishes was not necessary to create a

map with two majority-Black districts. Indeed, Appellees’

own evidence shows that the Legislature rejected

alternative maps with two majority-Black districts

that split fewer parishes than either SB8 or HB1.

J.A.370. SB4, which Appellees recognize was

“a Robinson illustrative map,” Br.9, split only

eleven. J.A.370. The district court therefore clearly

erred in concluding that SB8’s parish splits

demonstrated racial predominance.

The district court likewise erred in overriding the

Legislature’s preferred communities of interest. In

developing SB8, one of Senator Womack’s enumerated

goals, echoed by others in the contemporaneous legislative

record, was configuring CD6 along the Red River and

I-49 to join specific commercial and community interests.

See, e.g., J.S.A.421a, 452a-457a, 396a. Appellees’ assertion

that their community-of-interest evidence was more

persuasive to the factfinder than Appellants’ is belied

by the record. The district court did not rely on

Appellees’ evidence but rather on its own extra-record

research and preference for the Acadiana region.

J.S.A.184a-88a. In any event, the district court exceeded

its proper role when it usurped the Legislature’s

prerogative to privilege certain interests and instead

substituted its own judgment that others should have

mattered more. See Vance v. Bradley, 440 U.S. 93, 110111 (1979) (“The District Court's responsibility for

making ‘findings of fact’ certainly does not authorize

it...to reject the legislative judgment.”) (cleaned up).

3. Political Goals Were Not Subordinated to

Race Simply Because They Were Considered

After the Robinson Rulings.

Appellees contend that predominance is proven

merely by the chronology of events leading to SB8.

Br.23-24. According to Appellees, Louisiana considered

how to protect favored incumbents only after Robinson

found the State had likely violated §2. At bottom,

Appellees’ “chronology controls” argument is simply

another way of saying that Louisiana’s intentional

compliance with §2 amounted to per se racial predominance. But even where a state is “committed from the

outset” to creating a majority-minority district, that

aim is not “independently sufficient to require strict

scrutiny.” Vera, 517 U.S. at 962. That Louisiana first

faced a court ruling spelling out its §2 obligations and

then developed a plan precisely crafted to achieve its

political goals within §2’s constraints merely proves

that both considerations were at play in the Legislature’s

line-drawing choices. See Cromartie, 532 U.S. at 253254 (reversing racial-predominance finding where “the

legislature considered race, along with other partisan

and geographic considerations”). Chronology alone

does not demonstrate racial predominance.

4. The Record Is Devoid of Evidence that

Race Influenced the Choice of SB8 Over

Other VRA-Compliant Options.

Neither Appellees nor the district court point to any

evidence that the Legislature’s preference for SB8 over

SB4 was motivated by race. Appellees speculate that

this choice was due to the higher BVAP in SB8’s

majority-Black districts, but there is no evidence that

SB8 was designed with that outcome in mind or that

any legislator preferred SB8 for that reason. Indeed,

the Legislature rejected an amendment that increased

the BVAP in SB8’s majority-Black districts but also

reduced compactness and added parish splits. See

J.S.A.466a-468a; 537a-538a. And, contrary to Appellees’

speculation, several legislators expressed a preference

for SB4, despite its smaller Black majorities, because

they were comfortable it provided Black voters the

required opportunity to elect candidates of choice.

J.S.A.84a-90a; 433a-434a. Ultimately, these legislators

supported SB8 because they recognized that it was the

only VRA-compliant map that the legislative majority

would pass and the Governor would sign. See, e.g.,

J.S.A.84a-90a, 433a-434a, 450a-452a, 454a-457a. The

only reason for the preference for SB8 reflected in the

legislative record was that, unlike other maps, it protected

favored incumbents and joined priority commercial

and community interests. See Appellants’ Br.9-16.

Appellees likewise cite no evidence for their new

argument that, in pursuing political objectives, the

Legislature used race as a proxy for partisanship.

Br.32. The Legislature’s recognition that complying

with §2 by creating an additional majority-Black

district might have a partisan impact is not the same

as using race as a proxy for partisanship. Louisiana

did not manipulate CD6’s racial composition to

achieve its political goals; it sought to achieve those

goals while addressing its independent obligation to

satisfy §2. This is a necessary condition in any

redistricting involving §2 compliance alongside other

objectives. It does not prove that race predominated.

Appellees acknowledge that politics drove the choice

of SB8 over SB4. Br.32. Their contention that this

choice was a choice “between two racial gerrymanders,” id., is foreclosed by the record. The district

court did not, and could not, find that the Robinson

illustrative maps were racial gerrymanders, J.S.A.189a,

and Robinson found exactly the opposite. See Robinson

III, 86 F.4th at 593-595.

B. Appellees Failed to Disentangle Race

and Politics.

The legislative record unambiguously shows that

SB8 was drawn to accomplish four goals—provide a

safe district for Representative Letlow, protect the safe

districts of Speaker Johnson and other favored

incumbents, join interests along the Red River and I49 corridor, and create a second Black-opportunity

district as required by §2. And the record is equally

clear that achieving the political goals, not §2

compliance, necessitated CD6’s specific configuration.

See Appellants’ Br.30-35. But even were the prioritization of politics not so clear, Appellees were obligated to

overcome the presumption of good faith and provide

evidence, such as an alternative map, that disentangled

these competing considerations and showed which

predominated. Alexander, 602 U.S. at 9-10. The district

court and Appellees sidestepped that analysis, instead

viewing all the evidence in light of their belief that the

decision to comply with §2 necessarily trumped all

other factors.

Appellees contend that, even if race and politics had

provided equally plausible explanations for CD6’s

contours, on clear error review, this Court must affirm.

Br.24 (citing Cooper v. Harris, 581 U.S. 285 (2017)). But

the issue here is not an evidentiary one: It is not, as in

Cooper, whether two views of the evidence are equally

plausible. Rather, it is that, under Alexander, where

the Legislature’s political explanation for its choices is

plausible—regardless of how plausible a race-based

explanation may be (here, not at all)—the presumption

of good faith requires the racial-gerrymandering

plaintiff to disentangle race and politics. 602 U.S. at

20. The clear-error standard does not excuse the

district court’s failure to hold Appellees to their burden.

Appellees disclaim their obligation to disentangle

race and politics on the theory that the Legislature’s

political calculus—the choice of which incumbents to

protect—somehow shows that race overrode what

Appellees say should have been the Legislature’s

objective of maximizing the Republican majority in

Congress. Br.16, 24, 26. But, even if Louisiana’s

legislative majority preferred in the abstract not to

remedy HB1’s vote dilution because of the potential

partisan impact, that again shows only that one of the

drivers of SB8 was the State’s obligation to comply

with §2. It does not “rule out” that the effort to save

favored incumbents with high-ranking leadership and

committee positions had a greater influence than race

on CD6’s specific design. Alexander, 602 U.S. at 24.

Furthermore, Appellees effectively concede they are

unable to provide an alternative map that achieves the

Legislature’s political objectives. They contend that

requiring them to provide a map that would have

resolved Robinson and avoided a court-imposed plan

(thereby protecting the State’s prerogative to redistrict

according to its political priorities) amounts to a

“rigged test”—one they admit they cannot satisfy.

Instead, Appellees suggest that HB1—the very map

the Robinson court enjoined for violating §2—should

be accepted as their alternative map. Br.31. Appellees’

alternative-map test is no test at all; it ignores

Robinson and repackages their argument that any

effort to comply with §2 amounts to per se racial

predominance. As detailed above, this Court’s

longstanding precedents foreclose that argument.

Alexander’s alternative-map rule is not a “rigged test;”

it requires only that Appellees identify a lawful map

that accomplishes the State’s incumbent-protection

goals. Alexander, 602 U.S. at 34-35. Because Appellees

cannot show that Louisiana’s political goals could have

been accomplished in an alternative map that would

have passed legal muster under §2, they have failed to

disentangle race and politics.

Appellees’ suggestion that Cooper allows them to

skip the predominance inquiry altogether is likewise

wrong. Br.33. Like every other racial-gerrymandering

case, Cooper holds that once predominance is shown, a

state raising a §2 defense must satisfy strict scrutiny.

581 U.S. at 291-292. It does not relieve Appellees of

their burden to prove predominance.

C. Hays Is Not Controlling.

Both Appellees and the district court incorrectly

treat Hays as dictating a finding of racial predominance because CD6 bears a superficial resemblance to

the district Hays overturned. According to the district

court, merely by configuring CD6 along the Red River

and joining Baton Rouge and Shreveport within it,

Louisiana failed to “learn from history.” J.S.A.130a.

Appellees, meanwhile, contend that, simply because

CD6 draws 70% of its population from areas shared

with the district invalidated in Hays, it, too, must be a

racial gerrymander. Br.8, 22-24.

But Appellees and the district court take the wrong

lesson from Hays. Hays stands not for the notion

that any district running along the Red River is

unconstitutional, but that, where the legislative record

lacked any evidence of nonracial motivations for a

district’s noncompact shape, an inference that race

predominated was appropriate. In Hays, legislators

presented no evidence of political or other permissible

motivations for the new district. Indeed, the state’s

cartographer “concentrated virtually exclusively on

racial demographics.” Hays III, 936 F. Supp. at 368. In

stark contrast, the Legislature’s political motivations

here were omnipresent in the legislative record

and were understood by legislators and the public.

J.S.A.392a-395a, 420a-423a, 433a-434a, 440a-443a,

538a-541a, 38a-39a, 43a, 46a, 60a-61a, 83a-84a, 87a89a, 109a, 116a-117a.

Likewise, Hays rejected a community-of-interest

justification for the district as a “post hoc rationalization” because it was offered for the first time at trial.

Hays v. Louisiana, 862 F. Supp. 119, 122 (W.D. La.

1994). By contrast, SB8’s sponsor and other legislators

contemporaneously identified the common economic,

educational, and other interests united in CD6 as

considerations that informed the district’s configuration. J.S.A.66a-67a, 421a, 452a-457a. Hays is a

different case with a different map drawn on different

demographic data by a different legislature with

different priorities. It has no bearing on this case.

Race did not predominate in SB8’s design. Nevertheless, this court need not decide the racial predominance

question, because SB8 satisfies strict scrutiny.

II. If Strict Scrutiny Applies, It Is Satisfied.

Louisiana’s consideration of race was narrowly

tailored to serve its compelling interest in complying

with §2. See Abbott, 585 U.S. at 587. Narrow tailoring

requires only that a state had “good reasons” to believe

the statute required its use of race. Ala. Legis. Black

Caucus v. Alabama, 575 U.S. 254, 278 (2015) (ALBC).

This Court has held that a redistricting plan is

narrowly tailored where, as here, it substantially

addresses the State’s potential VRA liability. Shaw II,

517 U.S. at 915; Vera, 517 U.S. at 979. Appellees

scramble this framework. They first contend that VRA

compliance is not a compelling interest when the state

acts in response to an adverse court decision, unless

the state first concedes liability. They then misapprehend

the narrow-tailoring inquiry, incorrectly demanding

that the state prove that the VRA “requires” its specific

chosen remedy. Br.47. Under the correct legal standard,

SB8 readily satisfies strict scrutiny.

A. The Legislature Had a Compelling

Interest in Complying with the VRA.

This Court has long recognized that compliance with

§2 is a compelling interest. E.g., Shaw II, 517 U.S. at

915. Were the law otherwise, “then a State could be

placed in the impossible position of having to choose

between compliance with [the VRA] and compliance

with the Equal Protection Clause.” League of United

Latin Am. Citizens v. Perry, 548 U.S. 399, 518 (2006)

(LULAC) (Scalia, J., concurring in the judgment in

part and dissenting in part). Disregarding this blackletter principle, and contrary to the court below,

J.S.A.175a, Appellees propose a new standard requiring

courts to second-guess the genuineness of a state’s

desire to conform to federal law. Br.35. They further

assert—for the first time—that §2 does not provide a

compelling interest because it is allegedly unconstitutional as applied to Louisiana.

First, Appellees contend that §2 compliance did not

provide a compelling state interest because Louisiana’s

true aim was “appeasement” of the Robinson court, not

“[a]ctual Section 2 compliance.” See Br.39-42. They

baselessly malign the Robinson court as “unfair” and

contend, in effect, that the State was constitutionally

bound to defy its rulings. Br.39. But states may not

simply disregard the decisions of federal courts, even

when they disagree with them. See Cooper v. Aaron, 358

U.S. 1 (1958). Acceding to a federal court ruling

applying §2 is “actual §2 compliance.” Cf. id. at 19-20.

SB8 was adopted to advance that compelling interest.

Next, Appellees for the first time challenge §2’s

constitutionality as applied to Louisiana and argue

that compliance with an allegedly unconstitutional

law cannot be a compelling interest. Br.36-38. Because

it was not raised below, Appellees’ constitutional

argument is waived. See, e.g., Singleton v. Wulff, 428

U.S. 106, 120 (1976). In any event, the argument fails

on its merits.

Appellees’ first purported constitutional argument

is not about the constitutionality of §2 at all. Instead,

Appellees contend that Louisiana is estopped from

relying on §2 compliance as a compelling interest

because in a different case about a different map, state

officials argued that §2 had been unconstitutionally

applied. Br.36. Appellees cite no case supporting their

novel contention that a state’s litigation position

challenging a federal statute’s constitutionality exempts

the state from complying with that law. The mere fact

that Louisiana disputed §2’s constitutionality in another

proceeding cannot render its interest in avoiding a §2

violation any less compelling. Cf. Vera, 517 U.S. at 991992 (O’Connor, J., concurring) (given this Court’s history

of applying and upholding §2, “it would be irresponsible

for a State to disregard the §2 results test”).

Appellees next misguidedly argue that applying §2

to Louisiana in Robinson was unconstitutional. Br.38

(arguing that facts in Louisiana have changed and §2

should no longer be applied). Appellees effectively ask

this Court to review Robinson, not the actions of the

State or the decision of the court below. But the

Robinson decisions are not on appeal here, and this

Court should not review them.

Moreover, Appellees’ argument that §2 is insufficiently

tied to current conditions to justify its application in

Louisiana rests on a false premise. As this Court

recognized in Milligan, the Gingles standard is

inherently tied to current conditions. Under Gingles,

§2’s “exacting requirements…limit judicial intervention

to those instances of intensive racial politics where the

excessive role of race in the electoral process denies

minority voters equal opportunity to participate.”

Milligan, 599 U.S. at 30 (cleaned up). Satisfying

Gingles requires evidence of the current size and

compactness of the minority population and ongoing

patterns of racially polarized voting; it demands an

assessment of whether, in the totality of circumstances, minority voters presently lack a fair

opportunity to participate in the political process and

elect candidates of choice. Id. at 28-29. Whenever and

wherever conditions do not allow plaintiffs to satisfy

the Gingles framework, §2 does not require a raceconscious remedy. That is not the case in Louisiana, as

the Robinson court found. Robinson I, 605 F. Supp. 3d

at 844-851 (detailing extensive evidence of ongoing

discrimination, racialized politics, and polarized voting).

B. SB8 Is Narrowly Tailored to Comply

with §2.

When drawing districts to comply with §2, a state’s

effort is narrowly tailored if it has “good reasons” to

believe the statute requires its use of race, and the

remedial district substantially addresses the potential

liability. Bethune-Hill, 580 U.S. at 194; Vera, 517 U.S.

at 977. It is beyond dispute that Robinson found

Louisiana potentially liable for violating §2, 605 F.

Supp. 3d at 851, providing strong reasons to believe §2

required an additional majority-Black congressional

district. Appellees concede that CD6 includes at least

70% of the Black population from the illustrative

district offered to prove that violation. Br.50. CD6

thus substantially addresses the potential §2 liability

identified in Robinson. In support of their contention

that SB8 nevertheless fails narrow tailoring, Appellees

distort the record in Robinson, invent new legal

standards for assessing remedial maps, and repeat the

district court’s error in suggesting §2 imposes a

freestanding compactness requirement.

1. None of Appellees’ Arguments Undermine

the “Good Reasons” Provided by Robinson.

First, Appellees contend that because none of the

maps in Robinson included Shreveport in a majorityBlack illustrative district, Robinson foreclosed the

inclusion of Shreveport in SB8’s remedial district.

Br.43. But the State was not required to draw “the

precise compact district that a court would impose.”

Vera, 517 U.S. at 978. Moreover, Appellees’ assertion

that Robinson rejected any remedy that includes

Shreveport and Baton Rouge in the same district is

false. The Robinson court held that Hays’s invalidation

of the district challenged there did not undermine the

constitutionality of the plaintiffs’ illustrative plans.

Robinson I, 605 F. Supp. 3d at 832-834. It said nothing

about how the State might configure a remedial

district.

Appellees’ other attempts to cast doubt on the

Legislature’s inclusion of Shreveport in CD6 are

similarly unfounded. Appellants’ demographer’s

explanation that he would never offer the Hays district

as an illustrative district has no bearing on the validity

of CD6 as a legislatively drawn remedial district.

While §2 plaintiffs are required to put forward

reasonably configured districts to satisfy Gingles,

states drawing remedial districts are not so

constrained. Vera, 517 U.S. at 978-979. Likewise,

Appellees’ assertion that the Robinson court did not

consider evidence of vote dilution in northwest

Louisiana is incorrect. In addition to the evidence of

discrimination referenced by Louisiana, State’s Br.52,

the court cited multiple elections showing high levels

of racial polarization in HB1’s CD4, which includes all

the northwest Louisiana parishes included in SB8’s

CD6. Robinson I, 605 F. Supp. 3d at 834-835.

Second, Appellees seek to rewrite the “good reasons”

standard by arguing, on a variety of unsupported and

nonsensical grounds, that Robinson does not support

SB8’s adoption. They first decry the Robinson ruling as

“preliminary.” Br.42. But this Court has been clear

that states need not face certain defeat in court

before having “good reasons” to address potential

VRA liability; race-conscious remedial action may

be appropriate without any court-determined §2

violation. ALBC, 575 U.S. at 278-279. The Robinson

court’s finding that the plaintiffs were substantially

likely to succeed in proving their §2 claim, affirmed in

substance by the Fifth Circuit, was “good reason” for

Louisiana to believe it faced potential §2 liability.

Appellees further suggest that Robinson provides

insufficiently good reasons for the Legislature’s action

because it was decided by a single district judge

and because it was reviewed under the clear error

standard. But that would apply to any §2 ruling. The

existence of vote dilution under §2 is a question of fact

reviewed for clear error even after judgment.

Thornburg v. Gingles, 478 U.S. 30, 79 (1986). Moreover,

even if the standard of review were relevant to

whether “good reasons” exist, Appellees’ argument is

unsupported by the Fifth Circuit’s decision, which

affirmed, in addition to its factual findings, Robinson’s

application of the relevant legal principles and its

rejection of many of the arguments Appellees make

here. Robinson III, 86 F.4th 574, 591-595. Likewise, as

a general matter, §2 claims are decided by a single

judge no matter the stage of the case. Cf. Milligan, 599

U.S. at 16-17. That does not make them subject to

revision by a three-judge court in a collateral racialgerrymandering case.

In addition, even were the quality of the State’s

defense of HB1 relevant, Br.44-45, Appellees’ suggestion

that it was feeble is belied by Robinson’s procedural

history. Moreover, Appellees have identified no evidence or

legal argument the State failed to offer. Indeed, the

Attorney General’s advice to the Legislature that

further litigation would be fruitless suggests that the

State had no evidence or argument beyond what it had

already presented. Given Louisiana’s robust defense of

HB1, Appellees’ disagreement with the Attorney

General’s assessment provides no basis to undermine

the good reasons for the State’s conclusion that §2

required a second majority-Black district.

At bottom, Appellees’ arguments against the good

reasons provided by Robinson create the very bind for

states this Court has carefully avoided. And they are

an invitation for gamesmanship, allowing racialgerrymandering plaintiffs to mount collateral attacks

in more favorable forums on any §2 decisions they are

unhappy with. This Court should reject that invitation.

Third, Appellees erroneously assert that the failure

to introduce the Robinson record into evidence or offer

evidence of a “pre-enactment analysis” undermines

the “good reasons” Robinson supplied for the State’s

remedial action. Br.41-42. Appellees’ suggestion that

the Legislature’s map-drawing was uninformed by the

Robinson findings is incorrect. During the 2024

Special Session, the Legislature received advice from

the State’s Attorney General about the requirements

of federal law and the effect of the Robinson rulings.

See J.S.A.352a-356a. Additionally, all the relevant

vote-dilution evidence was described in the district

court and Fifth Circuit decisions, with which the

Attorney General was familiar. See Robinson I, 605 F.

Supp. 3d at 820-851; Robinson III, 86 F.4th at 588-599.

Moreover, during the Special Session, Robinson counsel

submitted written and oral testimony to legislators

explaining the evidence and conclusions from that

litigation. J.S.A.486a-496a, Doc.183-38; cf. Vera, 517

U.S. at 994-995 (O’Connor, J., concurring) (litigation

over city-council districts could provide strong basis in

evidence to draw remedial congressional district in the

same area). The court below was not required to

second-guess the Robinson courts’ determination that

§2 required a second majority-Black district, and the

Legislature was not required to disregard the Attorney

General’s advice or conduct its own competing §2

analysis before having “good reasons” to think it would

transgress the VRA if it did not draw a remedial district.

Fourth, Appellees contend that “it is impossible to

draw a second majority-Black district without violating

traditional redistricting criteria.” Br.28. That assertion

is unsupported by the record, 1 conflicts with the

findings in Robinson, and goes beyond the district

court’s decision, which expressly declined to make that

finding. See J.S.A.128a. Indeed, where one federal

court has already found that the state constitutionally

can (and, to satisfy §2, must) create two Blackopportunity districts, it would place the State in an

untenable position for another court to reach the

The only support offered for this assertion is Appellees’ expert

Michael Hefner, who offered no expert evidence on the subject,

but merely stated that he was unable to draw a reasonably

configured second majority-Black district when attempting to do

so “for [his] own edification.” J.A.253.

conflicting conclusion that a constitutional remedy for

that violation is “impossible.”

2. SB8 Substantially Addresses the VRA

Violation.

Appellees contend that CD6 does not substantially

address the violation in Robinson because it “covers

different territory and a different…population.” Br.50.

But in arguing that CD6 is different from Robinson’s

majority-Black illustrative district because it sheds

30% of that district’s Black population, Appellees

concede that 70% of the Black population is shared

between them. Appellees counter that, even if it keeps

the vast majority of the population, CD6 excludes “50%

of the territory” in the Robinson illustrative district.

But “[l]egislators represent people, not trees or acres.”

Reynolds v. Sims, 377 U.S. 533, 562 (1964). By drawing

70% or more of its Black population from areas where

the Robinson plaintiffs proved vote dilution, CD6 substantially addresses the §2 violation found in Robinson. 2

Appellees next argue that CD6 fails as a remedy

because a “true remedial map must ‘substantially

address’ the Section 2 violation…and be reasonably

compact,” and, they say, CD6 is not compact. Br.49. In

so doing, they repeat the district court’s error. Once a

state has a strong basis in evidence to believe a §2

violation exists, it has leeway to pursue any legitimate,

nonracial policy goal in its remedial district—and to

deprioritize traditional districting principles in their

pursuit. Shaw II, 517 U.S. at 917 n.9. Appellees cite

LULAC in support of their invented standard, but

It bears remarking that Appellees’ argument that the Hays

district and CD6 are similar uses the very same method they

object to as an assessment of whether the Robinson district and

CD6 are similar. Br.8.

LULAC does not impose an independent, freestanding

compactness requirement for remedial districts. To

the contrary, LULAC confirmed that §2 “does not

forbid the creation of a noncompact majority-minority

district.” 548 U.S. at 430 (citing Vera, 517 U.S. at 999

(Kennedy, J., concurring)).

Appellees concede, as they must, that §2 does not

require compact districts, but then illogically assert

that if a state avails itself of that leeway, it has no

defense to a racial gerrymandering claim, regardless

of its reasons for choosing a noncompact design. Br.49.

The empty promise of flexibility in Appellees’ rule

would effectively mandate that §2 districts “have the

least possible amount of irregularity in shape”—a view

this Court has rejected as “impossibly stringent.” Vera,

517 U.S. at 977-978. “States retain a flexibility that

federal courts enforcing § 2 lack,” because a “constitutional problem arises only from the subordination of

[traditional redistricting] principles to race,” not from

failing to maximize adherence to them. Id.

When the appropriate legal standard is applied, it is

clear SB8 substantially remedies the §2 violation

identified in Robinson and is narrowly tailored to

comply with the VRA. 3

III. The Pending 2024 Election Counseled

Against, Not in Favor of, Consolidation of

the Trial.

The district court’s summary denial of Appellants’

deconsolidation motion was a stark abuse of discretion

Appellees also erroneously suggest that the Court can affirm

based on Count II of their Complaint, alleging intentional

discrimination. Br.23 n.7. But the district court did not reach that

claim, and Appellees adduced no evidence to support it.

that should be corrected. Appellees wrongly argue that

the Robinson Appellants do not have standing to

appeal the consolidation because they were permissive

intervenors. Br.55. The sole case Appellees cite merely

holds that an intervenor must establish Article III

standing in an appeal seeking relief different from the

named parties. Town of Chester v. Laroe Ests. Inc., 581

U.S. 433, 440 (2017). It does not impose heightened

standing requirements on permissive intervenors.

Consolidation severely prejudiced Appellants’ ability

to present their case. See Appellants Br.49-52. There is

no question they have Article III standing.

On the merits, Appellees assert the district court

had “myriad reasons” to consolidate, but the only

reason they identify is the then-impending 2024

election. Br.56. Consolidation was not necessary to

protect Appellees’ purported interests in the 2024

election: A preliminary injunction would have avoided

any possible injury pending trial. Fed. R. Civ. P. 65.

Moreover, now that the 2024 election has concluded,

even that rationale for consolidation no longer holds.

CONCLUSION

This Court should reverse the decision below.

Respectfully submitted,

TRACIE WASHINGTON

LOUISIANA JUSTICE

INSTITUTE

3157 Gentilly Blvd.

Suite 132

New Orleans, LA 70122

Counsel for Appellants

Dorothy Nairne, Martha

Davis, Clee Earnest Lowe,

and E. René Soulé

STUART NAIFEH

Counsel of Record

NAACP LEGAL DEFENSE &

EDUCATIONAL FUND, INC.

40 Rector St., 5th Floor

New York, NY 10006

(212) 965-2200

snaifeh@naacpldf.org

Counsel for Appellants

JANAI NELSON

SAMUEL SPITAL

VICTORIA WENGER

JOHN S. CUSICK

COLIN BURKE

NAACP LEGAL DEFENSE &

EDUCATIONAL FUND, INC.

40 Rector St., 5th Floor

New York, NY 10006

DEUEL ROSS

I. SARA ROHANI

NAACP LEGAL DEFENSE &

EDUCATIONAL FUND, INC.

700 14th St. NW, Suite 600

Washington, DC 20005

SARAH BRANNON

MEGAN C. KEENAN

ADRIEL I. CEPEDA DERIEUX

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

915 15th St. NW

Washington, DC 20005

NORA AHMED

ASHLEY FOX

ACLU FOUNDATION OF

LOUISIANA

1340 Poydras St., Suite 2160

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JOHN ADCOCK

ADCOCK LAW LLC

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New Orleans, LA 70119

ROBERT A. ATKINS

YAHONNES CLEARY

JONATHAN H. HURWITZ

PIETRO J. SIGNORACCI

AMITAV CHAKRABORTY

ADAM P. SAVITT

ARIELLE B. MCTOOTLE

ROBERT KLEIN

NEIL CHITRAO

REGINA FAIRFAX

PAUL, WEISS, RIFKIND,

WHARTON & GARRISON LLP

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New York, NY 10019

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AMERICAN CIVIL LIBERTIES

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AMERICAN CIVIL LIBERTIES

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T. ALORA THOMAS-LUNDBORG

DANIEL HESSEL

ELECTION LAW CLINIC

HARVARD LAW SCHOOL

6 Everett St., Suite 4105

Cambridge, MA 02138

Additional Counsel for Appellants

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