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

No. 24-109

In the

Supreme Court of the United States

STATE OF LOUISIANA,

Appellant,

v.

PHILLIP CALLAIS, ET AL.,

Appellees.

On Appeal from the United States District Court for

the Western District of Louisiana

REPLY BRIEF FOR APPELLANT

ELIZABETH B. MURRILL

Attorney General

LOUISIANA DEPARTMENT OF

JUSTICE

1885 N. Third St.

Baton Rouge, LA 70802

(225) 506-3746

AguinagaB@ag.louisiana.gov

February 20, 2025

J. BENJAMIN AGUIÑAGA

Solicitor General

Counsel of Record

ZACHARY FAIRCLOTH

Principal Deputy

Solicitor General

MORGAN BRUNGARD

Deputy Solicitor General

CAITLIN A. HUETTEMANN

Assistant Solicitor General

AUTUMN HAMIT PATTERSON

Sp. Ass’t Solicitor General

i

TABLE OF CONTENTS

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

INTRODUCTION ........................................................ 1

ARGUMENT ................................................................ 2

I. PLAINTIFFS FAILED TO PROVE ARTICLE III

STANDING. ............................................................... 2

A. Basic Article III Principles Resolve This

Case. ................................................................. 2

B. Hays Stereotyping Is Not the Answer. ........... 4

II. UNDER THIS COURT’S CURRENT PRECEDENTS,

DISTRICT 6 IS CONSTITUTIONAL. .............................. 6

A. Race Did Not Predominate.............................. 6

1.

Pressure from a federal district court

and court of appeals matters. ................... 6

2.

The State’s avowedly political

explanation for enacting S.B. 8

matters. ................................................... 10

3.

Plaintiffs’ failure to identify an

alternative map accommodating

Robinson and the State’s incumbentprotection goal matters. .......................... 12

B. S.B. 8 Satisfies This Court’s Strict-Scrutiny

Framework..................................................... 14

1.

2.

ii

Under this Court’s logic, compliance

with federal courts’ view of what the

VRA requires is a compelling interest. .. 14

The State had “good reasons” to believe

that District 6 was necessary to comply

with the VRA........................................... 18

CONCLUSION .......................................................... 25

iii

TABLE OF AUTHORITIES

Cases

Abbott v. Perez,

585 U.S. 579 (2018) ................................................ 17

Alabama Leg. Black Caucus v. Alabama,

575 U.S. 254 (2015) ................................................ 17

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

602 U.S. 1 (2024) .................... 1, 4, 6, 7, 8, 11, 12, 17

Allen v. Milligan,

599 U.S. 1 (2023) .............................................. 10, 11

Allen v. Wright,

468 U.S. 737 (1984) .............................................. 3, 4

Batson v. Kentucky,

476 U.S. 79 (1986) .................................................... 6

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

580 U.S. 178 (2017) .............................. 14, 18, 23, 25

Bush v. Vera,

517 U.S. 952 (1996) .......................................... 20, 21

Cooper v. Harris,

581 U.S. 285 (2017) ................................................ 18

FDA v. All. for Hippocratic Med.,

602 U.S. 367 (2024) .............................................. 4, 6

Federal Maritime Comm’n v. S.C. State Ports Auth.,

535 U.S. 743 (2002) ................................................ 10

Flowers v. Mississippi,

588 U.S. 284 (2019) .................................................. 6

Koontz v. St. Johns Water Mgmt. Dist.,

570 U.S. 595 (2013) .................................................. 8

LULAC v. Perry,

548 U.S. 399 (2006) ........................ 19, 20, 21, 23, 24

iv

Merrill v. Milligan,

142 S. Ct. 879 (2022) .......................................... 1, 13

Miller v. Johnson,

515 U.S. 900 (1995) .............................................. 8, 9

Murthy v. Missouri,

603 U.S. 43 (2024) ................................................ 2, 5

Nairne v. Landry,

No. 24-30115 (5th Cir.)........................................... 15

National Rifle Ass’n of Am. v. Vullo,

602 U.S. 175 (2024) .................................................. 8

Robinson v. Ardoin,

605 F. Supp. 3d 759 (M.D. La. 2022) ................. 1, 16

Robinson v. Ardoin,

86 F.4th 574 (5th Cir. 2023)............... 1, 9, 10, 16, 17

Salinas v. Texas,

570 U.S. 178 (2013) .................................................. 8

Shaw v. Hunt,

517 U.S. 899 (1996) ........................................ 8, 9, 19

Students for Fair Admissions v. President & Fellows

of Harvard College,

600 U.S. 181 (2023) .............................................. 2, 5

United States v. Hays,

515 U.S. 737 (1995) .................................................. 4

1

INTRODUCTION

The Middle District of Louisiana and the Fifth Circuit told Louisiana that Section 2 of the Voting Rights

Act (VRA) likely requires the State to adopt a second

majority-Black congressional district. See Robinson v.

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

v. Ardoin, 86 F.4th 574 (5th Cir. 2023). So Louisiana

tried “to thread the impossible needle created by [this

Court’s] voting-rights precedents,” Alexander v. S.C.

State Conf. of the NAACP, 602 U.S. 1, 65 (2024)

(Thomas, J., concurring in part), by adopting a second

majority-Black district. To no avail. Plaintiffs claim

that it is legally “impossible to draw a second majorityBlack district,” Resp.Br.28, while the Robinson Intervenors insist that “such a district [can] be lawfully

drawn,” Robinson.Br.21.

This hamster wheel will not stop spinning unless

the Court reverses. For whether the State adopts a

one- or two-majority-Black district map in response to

the judgment below (if it stands), Louisiana will be

back here in October Term 2025 defending its new

map against a new challenge filed by one of the private

parties in this case. To what end? In a jurisprudence

already maligned for its “notoriously unclear and confusing” features, Merrill v. Milligan, 142 S. Ct. 879,

881 (2022) (Kavanaugh, J., concurring in grant of applications for stays), a decision forcing Louisiana into

yet another round of litigation would underscore that

there is something seriously wrong with this Court’s

voting cases.

So the Court should reverse. The cleanest way to

do so is on standing grounds. Despite pressing an

Equal Protection Clause claim, Plaintiffs have now

2

forfeited any argument that “they have personally

been subjected to racial classifications.” Resp.Br.54.

Instead, their sole standing theory—based on pure

speculation—is that those non-Black Plaintiffs who

reside in District 6 will be harmed when Black District

6 Representative Cleo Fields “play[s] into racial stereotypes to prioritize” Black voters over them. Id. at 55.

Respectfully, that theory should be dead on arrival in

this Court, which recently and resoundingly rejected

“[s]uch stereotyping” as “contrary ... to the ‘core purpose’ of the Equal Protection Clause.” Students for

Fair Admissions v. President & Fellows of Harvard

College, 600 U.S. 181, 221 (2023) (SFFA). The Court

need say no more to dispose of this case.

If the Court reaches the merits, however, then it

should hold that District 6 fits within the breathing

room the Court has long promised States. If the Court

does not hold as much, then, respectfully, the Court

owes States an explanation whether that breathing

room actually exists—and how Louisiana is supposed

to extricate itself from this impossible situation.

I. PLAINTIFFS

STANDING.

ARGUMENT

FAILED TO PROVE ARTICLE III

A. Basic Article III Principles Resolve This

Case.

Plaintiffs’ muted discussion of Article III jurisdiction (Resp.Br.53–55) underscores that the Court

should “begin—and end—with standing.” Murthy v.

Missouri, 603 U.S. 43, 56 (2024).

3

Plaintiffs have now forfeited any argument that

“they have personally been subjected to racial classifications.” Resp.Br.54. This, notwithstanding that the

ordinary Equal Protection Clause plaintiff must be

one “who was ‘personally subject to the challenged discrimination’ and was ‘personally [] denied equal treatment.’” Op.Br.24 (quoting Allen v. Wright, 468 U.S.

737, 755 (1984)).

Plaintiffs also do not dispute the State’s point

(Op.Br.25–26) that the affirmative-action, third-party

standing, and (lower court) Establishment Clause

cases all reinforce Plaintiffs’ lack of standing. Plaintiffs claim that “the State rightly recognizes this case

is completely ‘unlike’ those, so this Court need not consider them.” Resp.Br.54 n.14. But Plaintiffs misread

the State’s brief. First, the State said (Op.Br.25–26)

that the affirmative-action cases are “unlike” this case

to illustrate that Plaintiffs cannot rely on those cases

for standing. Plaintiffs’ silence concedes this point.

Second, the State said (id. at 26–27) that Plaintiffs’ attempt to sue over “District 6’s treatment of Black voters” would (a) circumvent the limitations of the thirdparty standing doctrine and (b) be no different than

invoking so-called “offended-observer standing” in the

Establishment Clause context, which has no basis in

law. Again, Plaintiffs’ silence concedes this point.

Instead, Plaintiffs rewrite the State’s brief. They

characterize the State as “claim[ing] non-Black voters

cannot be injured by racial gerrymandering.”

Resp.Br.54 n.14. That is not correct. The State explained that a Plaintiff “might be able to mount evidence showing that he was, in fact, ‘personally [] denied equal treatment.’” Op.Br.28 (quoting Allen, 468

4

U.S. at 755). But the fatal defect here is that “Plaintiffs offered no such evidence.” Id. Plaintiffs also characterize the State as “fear[ing]” a rule that “bestows

‘virtually every voter in the State’ with standing.”

Resp.Br.55. That is not correct, either. The State’s

point about standing for every voter arises from an inherent “inconsistency” in the Hays assumption regarding racial classifications, Op.Br.29—but that problem

is beside the point here given Plaintiffs’ forfeiture of

any argument that they were personally subjected to

racial classifications.

Basic Article III principles resolve this case. Plaintiffs do not claim to “have personally been subjected to

racial classifications.” Resp.Br.54. So, the gravamen of

their challenge is the allegedly unequal treatment of

other voters. That betrays their Article III problem.

For they have no “‘personal stake’” in such alleged unequal treatment. FDA v. All. for Hippocratic Med., 602

U.S. 367, 379 (2024). And if there were any doubt

about whether this type of case even belongs in federal

court, see Alexander, 602 U.S. at 39–41 (Thomas, J.,

concurring in part), holding the Article III (standing)

line at least partially addresses that concern.

B. Hays Stereotyping Is Not the Answer.

Plaintiffs nonetheless insist that they are properly

in federal court because four Plaintiffs “live in the

challenged district”—i.e., District 6. Resp.Br.54 (citing

United States v. Hays, 515 U.S. 737 (1995)). But they

almost entirely refuse to defend that Hays-based reasoning on its own merits. See Op.Br.27–32.

5

They do not dispute, for example, that the Hays assumption “that any voter who resides in a racially gerrymandered district necessarily was assigned based

on his race” is incorrect on Plaintiffs’ theory of their

case. Id. at 27–29. They also do not dispute that the

other Hays assumption—that the representative of a

racially gerrymandered district will favor the race of

the majority—“is pure conjecture, supported by no

facts or authorities.” Id. at 29–30.

In fact, Plaintiffs’ only defense of Hays is one sentence: “[T]he [District 6] representative will be pressured by the Legislature’s ‘obvious’ racial classification and preference and play into racial stereotypes to

prioritize the ‘perceived’ will of one racial group over

another.” Resp.Br.55. As the absence of record citations suggests, Plaintiffs are nowhere close to satisfying their burden to “point to factual evidence” establishing standing. Murthy, 603 U.S. at 58.

More fundamentally, Plaintiffs do not acknowledge

how odious that speculation is. Cf. Op.Br.30. It says

that Black District 6 Representative Cleo Fields “is

‘more likely’ to favor the Black voters in his District

than those of other races.” Id. at 31. Or, as Plaintiffs

put it without apparent irony, Representative Fields

“will play into racial stereotypes” by favoring Black

voters. Resp.Br.55. That is the only theory of standing

Plaintiffs are willing to advance today.

That cannot be the basis for allowing this case to

proceed. Such “stereotyping,” this Court recently reiterated, is “contrary ... to the core purpose of the Equal

Protection Clause.” SFFA, 600 U.S. at 221. And such

“assumptions,” if entertained, would render “meaning-

6

less” “[t]he core guarantee of equal protection.” Flowers v. Mississippi, 588 U.S. 284, 299 (2019) (citation

omitted).

Plaintiffs may “have sincere legal, moral, ideological, and policy objections” to District 6. All. for Hippocratic Med., 602 U.S. at 396. But “those kinds of objections” are insufficient. Id. The way to remedy any alleged constitutional violation is through a plaintiff

with actual Article III standing—not one who rests

solely on speculation employing the very stereotypes

our Constitution abhors. That ends this case.

II. UNDER THIS COURT’S CURRENT PRECEDENTS,

DISTRICT 6 IS CONSTITUTIONAL.

If the Court reaches the merits, it should reverse.

A. Race Did Not Predominate.

Plaintiffs’ merits case turns on their failure to

“show that race was the ‘predominant factor motivating the legislature’s decision to place a significant

number of voters within or without a particular district.’” Alexander, 602 U.S. at 7.

1. Pressure from a federal district court

and court of appeals matters.

a. The Court’s predominance analysis should begin

where the State began (Op.Br.34–35) and where

Plaintiffs devoted only one paragraph (Resp.Br.34):

the role of the federal judiciary. Plaintiffs do not suggest that Louisiana would ever enact S.B. 8 in a Robinson-free world. (It would not.) A core threshold question in the racial-predominance inquiry is thus

whether—given that the Legislature did enact

S.B. 8—“race was ‘the predominant factor motivating

7

the legislature’s decision.’” Alexander, 602 U.S. at 7

(emphasis added).

To answer that question, the Court must confront

why the Legislature did so. Here, too, Plaintiffs do not

dispute that the Legislature’s inaction would have resulted in a two majority-Black district map forcing either Speaker Johnson or Representative Letlow out of

Congress. See Op.Br.49 (highlighting Plaintiffs’ silence on this point). So, again, the question remains

whether—given that the Legislature took action

through S.B. 8—“race was ‘the predominant factor

motivating the legislature’s decision.’” Alexander, 602

U.S. at 7 (emphasis added).

The honest answer is no. Just listen to Representative Beaullieu who, quoting Senator Stine, presented

S.B. 8 “with a heavy heart”—“we have to. It’s that

clear. A federal judge has ordered us to draw an additional minority seat in the State of Louisiana.”

Op.Br.11 (quoting J.S.App.52a); see J.S.App.53a (Senator Seabaugh: “[R]eally, the only reason we were

there was ... Judge Dick saying that she – if we didn’t

draw the second minority district, she was going to.”).

These are the words of legislators who thought they

had no choice but to carry out the Robinson courts’

race-based dictates to avoid a court-drawn map that

would jeopardize Louisiana’s high-profile Republican

incumbents.

Plaintiffs now complain that the State “cites nothing” allowing the State to “shift[] blame onto federal

courts.” Resp.Br.34. But this Court has never seen two

Article III courts pressure a State into adopting a map

it never would have adopted in the first instance. Nor

8

has this Court ever conducted a racial-predominance

analysis on those facts.

Pressure and coercion matter elsewhere in constitutional law. See, e.g., Nat’l Rifle Ass’n of Am. v. Vullo,

602 U.S. 175, 191 (2024) (recognizing “a claim that the

government violated the First Amendment through

coercion of a third party”); Koontz v. St. Johns Water

Mgmt. Dist., 570 U.S. 595, 605 (2013) (“government []

pressure” and “[e]xtortionate demands ... frustrate the

Fifth Amendment right to just compensation” and run

headlong into the unconstitutional conditions doctrine); Salinas v. Texas, 570 U.S. 178, 184 (2013) (plurality op.) (“a witness’ failure to invoke the privilege

[against self-incrimination] must be excused where

governmental coercion makes his forfeiture of the

privilege involuntary”). They should equally matter

here in assessing whether S.B. 8—and any underlying

racial motivation—fairly may be characterized as “‘the

legislature’s decision.’” Alexander, 602 U.S. at 7 (emphasis added).

b. Because Plaintiffs do not seriously contest this

point, their amici try to backfill with other arguments.

For example, Alabama claims that this Court’s decisions in Shaw v. Hunt, 517 U.S. 899 (1996), and Miller

v. Johnson, 515 U.S. 900 (1995), shield the federal judiciary from scrutiny in the racial-predominance analysis. Alabama.Br.8–9. Not so.

In both cases, the Court found racial predominance

even though the States intentionally created additional majority-minority districts in response to Section 5 objection letters from the U.S. Department of

Justice—a Department whose Section 5 “maximization policy” this Court repeatedly rejected. See Shaw,

9

517 U.S. at 913 (citing Miller, 515 U.S. at 924–27). Judicial decisions from the Middle District and the Fifth

Circuit intentionally crafted to pressure Louisiana

into “consider[ing] a new map now,” Robinson, 86

F.4th 601, are worlds away from Department of Justice objection letters. Indeed, Miller later stressed this

point by distinguishing judicial pronouncements. It

said that “blind judicial deference to legislative or executive pronouncements of necessity has no place in

equal protection analysis.” Miller, 515 U.S. at 922 (citation omitted and emphasis added). That is because

“the judiciary” is “‘supreme’” in “enforcing the constitutional limits on race-based official action.” Id. And

that is the State’s point: When the federal judiciary,

wielding federal law, forces a State’s hand in racebased districting, that radically affects the racial-predominance inquiry.

For its part, the Project on Fair Representation

downplays this litigation as a product of “fears about

one trial court’s feelings.” Project on Fair Representation.Br.14. It also assures Louisiana that, because the

Fifth Circuit decided Robinson in the preliminary-injunction posture, “the Fifth Circuit necessarily intimated no view as to the ultimate merits.” Id. at 15

(cleaned up).

This depiction has no basis in reality. As Plaintiffs’

silence suggests, Louisiana would have lost either

Speaker Johnson or Representative Letlow under a

Robinson illustrative map. That is reality—not a fear

about the Middle District’s “feelings.” Moreover, that

the Fifth Circuit went out of its way to affirm the Middle District’s merits holding and then express doubt

that “the Legislature would not take advantage of this

10

opportunity to consider a new map now that we have

affirmed the district court’s conclusion,” Robinson, 86

F.4th at 601, puts to rest any suggestion that the Fifth

Circuit “intimated no view” on the merits.

In short, the Robinson courts’ pressure on Louisiana to draw a second majority-Black district is clear

and indisputable—and so, at least on these unique

facts, it would be extraordinarily unfair for “the federal judiciary [to] wash its hands of the matter now

and point at the Legislature” for racial predominance.

Op.Br.35; cf. Fed. Mar. Comm’n v. S.C. State Ports

Auth., 535 U.S. 743, 763–64 (2002) (“To conclude that

this choice does not coerce a State ... would be to blind

ourselves to reality.”).

2. The State’s avowedly political explanation for enacting S.B. 8 matters.

That pressure coupled, in turn, with the State’s political reasons for enacting S.B. 8 reinforces that race

did not predominate in the Legislature’s decision.

Plaintiffs do not dispute that S.B. 8, rather than

S.B. 4, won the day because it protected Louisiana’s

high-profile incumbents. That is why even the majority below agreed that these “political calculations” are

“clear from the record and undisputed.” J.S.App.40a

(emphasis added).

In response, Plaintiffs emphasize (Resp.Br.25–26)

this Court’s general statement that “[r]ace predominates in the drawing of district lines ... when race-neutral considerations come into play only after the racebased decision had been made.” Allen v. Milligan, 599

U.S. 1, 31 (2023) (plurality op.) (cleaned up). Here,

Plaintiffs say, the State protected its incumbents only

11

after deciding to draw a second majority-Black district—and voilà, racial predominance. That reasoning

does not work.

First, it does not account for a situation where, as

here, “the race-based decision” effectively has been

made by Article III courts. See supra Section II.A(1).

Plaintiffs’ position, if accepted, would mean that race

will always predominate in a case like this because

race-neutral considerations will always come into play

following the Article III courts’ decisions. Cf. Allen,

599 U.S. at 33 (plurality op.) (rejecting position that

would hold “racial predominance plagues every single

illustrative map”). In fact, even though Louisiana had

an avowedly political reason for responding with

S.B. 8, that race-neutral reason for the State’s action

in the first place would never win out in the racial-predominance analysis. That makes little sense in assessing whether “race was ‘the predominant factor motivating the legislature’s decision.’” Alexander, 602

U.S. at 7 (emphasis added).

Second, it does not explain how the Court could justify finding no racial predominance in Allen while finding racial predominance here. The Allen plurality did

not dispute that the maps in that case “were designed

to hit express racial targets—namely, two 50%-plus

majority-black districts.” 599 U.S. at 32 (cleaned up).

And yet, the plurality found that race did not predominate, emphasizing that “‘the use of an express racial

target’” is “just one factor among others” for consideration. Id. If race did not predominate in Allen, then

race especially did not predominate here where (a) the

State was responding to Article III judicial decisions

(b) for avowedly political reasons.

12

3. Plaintiffs’ failure to identify an alternative map accommodating Robinson and

the State’s incumbent-protection goal

matters.

A final data point is Plaintiffs’ failure to propose an

alternative map that would (a) create a second majority-Black district and (b) protect Speaker Johnson and

Representative Letlow. See Op.Br.39–40; see Alexander, 602 U.S. at 35.

Because they fail the alternative-map requirement, Plaintiffs instead attack this requirement itself

as “rigged.” Resp.Br.32. They claim that the alternative-map requirement, properly applied, should not

“enshrine[]” the Robinson courts’ “two-majority-Black

district quota” and then force Plaintiffs to produce a

map that satisfies both Robinson and the incumbencyprotection goal. Id.; see Alabama.Br.8 (“An express racial target (like two majority-black districts) is proof of

a gerrymandering claim, not a defense against one.”).

Plaintiffs are just fighting Alexander. The whole

point of the predominance analysis—and the alternative-map requirement—is “[t]o untangle race from

other permissible considerations” and determine

whether “race for its own sake, and not other districting principles, was the legislature’s dominant and controlling rationale in drawing its district lines.” Alexander, 602 U.S. at 7, 10 (citation omitted). To that end,

there is nothing “rigged” about requiring Plaintiffs to

supply a map “with greater racial balance” that

(a) complies with Robinson (which Plaintiffs say is

constitutionally impermissible) and (b) achieves Louisiana’s incumbent-protection goal (which is constitutionally permissible). Id. at 10. If they could do so,

13

then they would have sufficiently untangled race from

political considerations and thereby demonstrated

that race predominated. But they did not (and cannot)

do so.

Alabama, for its part, is just relitigating Allen. For,

as explained above, the Allen plurality itself rejected

the idea that an express racial target automatically

establishes racial predominance. To be clear, it is no

secret that Louisiana stood with Alabama in Allen. See

Merrill, 142 S. Ct. at 881 (Kavanaugh, J., concurring

in grant of applications for stays). Louisiana thus

“sympathize[s]” with Alabama. Alabama.Br.5. But

both States are now required to make sense of Allen,

Alexander, and related precedents—and unless the

Court reverses here, it is difficult to see how any State

will ever have the clarity it needs to redistrict with

confidence that the federal courts will not intrude on

its sovereign prerogative.

On that note, in a now-withdrawn brief, the United

States urged the Court to “bypass” the racial-predominance analysis and simply “vacate the decision below

based on the court’s failure to apply the correct [strictscrutiny] framework.” U.S.Br.19. Respectfully, the

States need more. If the Court believes the facts in this

case trigger strict scrutiny, then the States need to

know why so that they may recalibrate their redistricting approaches accordingly, especially as VRA litigations and injunctions proliferate. See Alabama.Br.28–35.

14

B. S.B. 8 Satisfies This Court’s Strict-Scrutiny Framework.

Even if Plaintiffs had carried their burden on racial

predominance, they would still lose on strict scrutiny.

1. Under this Court’s logic, compliance

with federal courts’ view of what the

VRA requires is a compelling interest.

a. Plaintiffs do not dispute that this Court has long

“assume[d], without deciding, that [a] State’s interest

in complying with the [VRA] [is] compelling.” BethuneHill v. Va. State Bd. of Elections, 580 U.S. 178, 193

(2017) (citing cases). Nor do they dispute that the majority below likewise “assume[d], without deciding,

that compliance with Section 2 was a compelling interest for the State.” J.S.App.53a.

Plaintiffs also never confront the State’s basic

point that, “[i]f (as this Court has assumed) compliance with the VRA is a compelling interest, then compliance with court orders telling a State how to comply

with the VRA is a compelling interest, too.” Op.Br.42–

43. For good reason: It is extraordinarily difficult to

imagine a decision from this Court saying that States

have no compelling interest in complying with what,

in two federal courts’ view, the VRA requires.

b. Plaintiffs offer three responses, none availing.

First, Plaintiffs proclaim that “VRA compliance is not

a compelling interest.” Resp.Br.36 (capitalization altered); see id. at 38 (“It’s time to retire the assumption

....”). That argument is forfeited. As the State explained, “Plaintiffs have not preserved any argument

that the Court’s assumption is invalid.” Op.Br.43 (cit-

15

ing Mot. to Dismiss 24; Dist.Ct.Doc.190 at 14 (both accepting the assumption)); see Dist.Ct.Doc.192 at 8

(State’s post-trial brief: “Plaintiffs have never actually

argued otherwise”). Plaintiffs do not say a word about

that forfeiture problem.

Plaintiffs’ new argument also is misplaced. They

make much of the State’s attack on Section 2’s unconstitutionality in a pending VRA case, where the same

Middle District judge has permanently enjoined elections under Louisiana’s state House and Senate maps.

See Nairne v. Landry, No. 24-30115 (5th Cir.) (oral argument heard Jan. 7, 2025). (Yes, you read that correctly.) Because the State believes Section 2 is unconstitutional, Plaintiffs reason, the State cannot have a

compelling interest in complying with it. See

Resp.Br.36–38. But that ignores today’s reality. The

Middle District rejected the State’s constitutional

challenge in Nairne; so, Section 2 remains good law for

now, and the State remains duty-bound to comply

with it. Moreover, to the extent Plaintiffs now seek to

transform this case into a constitutional attack on Section 2, Plaintiffs did not raise that issue below—and,

in all events, the issue of Section 2’s unconstitutionality (as applied to Louisiana) may soon appear in a

Nairne cert petition.

Second, Plaintiffs argue that, even if Section 2 compliance “could qualify as a compelling interest,” that

was not “the State’s actual purpose” in drawing District 6. Resp.Br.39 (capitalization altered). They claim

that the State “has never articulated a reasoned VRA

defense.” Id. And one of their amici proclaims that

“[n]one of the legislative statements relied on by the

16

State refers to VRA compliance.” Project on Fair Representation.Br.18 (citing Op.Br.10–12).

This line of argument is divorced from reality.

There is no dispute that myriad legislators contemporaneously described their support for S.B. 8 in terms

of their compliance with what they understood to be

the Robinson courts’ “instructions” and “order.”

Op.Br.10–12. They had no reason to specify that they

were to trying to comply with the VRA because the

Robinson court decisions themselves articulated what

(in those courts’ view) was “necessary to comply with

the [VRA].” Robinson, 605 F. Supp. 3d at 839; Robinson, 86 F.4th at 583. Pretending that Louisiana’s compliance with judicial decisions outlining VRA compliance for Louisiana is not, in fact, “a reasoned VRA defense” is perplexing. Resp.Br.39.

Third, and relatedly, Plaintiffs reframe Louisiana’s alleged “actual purpose” in drawing District 6 as

“appeasement of an unfair court.” Id. And from there,

Plaintiffs move the goal posts even further: They claim

that this alleged compelling interest “is not amenable

to judicial review,” id.; rests entirely on “predictions

about individual judges,” id. at 41; and “forces courts

into the awkward position of judging a legislature’s

views of the judiciary,” id.

This is misdirection. There is nothing awkward,

predictive, or unreviewable about three facts: (1) the

Robinson district court’s determination that “[t]he appropriate remedy in this context is a remedial congressional redistricting plan that includes an additional

majority-Black congressional district,” Robinson, 605

F. Supp. 3d at 766; (2) the Fifth Circuit’s agreement

that the State likely violated “Section 2 of the [VRA]”

17

for failing to create a second majority-Black district,

Robinson, 86 F.4th at 599; and (3) Senator Womack’s

(S.B. 8’s sponsor) explanation that “[w]e were ordered

to – to draw a new Black district, and that’s what I’ve

done,” J.S.App.47a–48a. Either the Court holds that

S.B. 8 is thus supported by a compelling interest, or

holds that it is not. But there is nothing “awkward”

about answering that question.

To the extent Plaintiffs complain that protecting

Speaker Johnson and Representative Letlow likewise

factored into the Legislature’s calculus, the “traditional districting objective[]” of “protecting incumbents,” Ala. Leg. Black Caucus v. Alabama, 575 U.S.

254, 259 (2015), does not somehow render the Legislature’s compliance with the Robinson decisions not a

compelling interest. Indeed, the idea that federal

courts should refuse to accept legislators’ own contemporaneous explanations that they are complying with

federal courts’ VRA decisions would itself be a recipe

for disaster. So much for the longstanding “presumption that the legislature acted in good faith,” Alexander, 602 U.S. at 6, and the admonition that courts

“‘must be sensitive to the complex interplay of forces

that enter a legislature’s redistricting calculus,’” Abbott v. Perez, 585 U.S. 579, 603 (2018).

Similarly, to the extent Plaintiffs and their amici

point to Louisiana’s Robinson defenses and complain

that Louisiana does not really think the VRA requires

a second majority-Black district (and thus, Louisiana

cannot have a compelling interest), that, too, is misdirection. For one, the State ultimately lost on those arguments in the Fifth Circuit. For another, because

18

S.B. 8’s proponents explained that they were complying with the Robinson decisions, the only question is

whether that explanation qualifies as a compelling interest under this Court’s “long[standing] assum[ption]

that complying with the VRA is a compelling interest.”

Cooper v. Harris, 581 U.S. 285, 301 (2017). And for yet

another, Plaintiffs do not acknowledge Louisiana’s response to this complaint. “There is no basis in this

Court’s precedents to hold that a State (i) must repent

for its past defenses in VRA litigation and (ii) pinky

swear that it now believes its VRA defenses were

wrong.” Op.Br.43. Nor do Plaintiffs answer Louisiana’s point that, “under Plaintiffs’ position, it is difficult to see how any State—especially one that has defended against VRA litigation—could ever constitutionally remedy a court-identified VRA violation.” Id.

*

*

*

In recent cases, this Court’s “compelling interest”

analysis has spanned little more than a sentence because the Court has “long assumed that complying

with the VRA is a compelling interest.” Cooper, 581

U.S. at 301; Bethune-Hill, 580 U.S. at 801. Unless the

Court is inclined to revisit that assumption (despite

Plaintiffs’ forfeiture), Plaintiffs have identified no reason to take a different path here.

2. The State had “good reasons” to believe

that District 6 was necessary to comply

with the VRA.

a. The preceding analyses likewise confirm that

the State had “‘good reasons to believe’ it must use

race in order to satisfy the [VRA].” Bethune-Hill, 580

U.S. at 194. On this front, Louisiana’s point is simple:

19

Just as it is extraordinarily difficult to imagine a decision from this Court saying that States have no compelling interest in complying with federal courts’ VRA

decisions, it is extraordinarily difficult to imagine a

decision from this Court saying that Middle District

and Fifth Circuit decisions saying Louisiana likely

stands in violation of the VRA unless it adopts a second majority-Black district is not, in fact, a good reason for Louisiana to do so.

To be clear, Louisiana could not just “draw[] a majority-minority district ‘anywhere.’” LULAC v. Perry,

548 U.S. 399, 505 (2006) (Roberts, C.J., concurring in

part, concurring in the judgment in part, and dissenting in part). Rather, Louisiana’s map must “substantially address[] the § 2 violation” identified by the Robinson decisions. Id. at 431 (maj. op.) (quoting Shaw,

517 U.S. at 918). Plaintiffs repeatedly accept that

standard. See Resp.Br.2, 18, 22, 35.

District 6 falls within those limits. Through their

silence, Plaintiffs now appear to concede that they previously “misrepresent[ed] the facts in stating that District 6 ‘bear[s] zero resemblance’ to the proposed maps

in Robinson.” Op.Br.50. Rightly so. As the State illustrated, well more than 70% of both the total voting age

population and the Black voting age population in

S.B. 8’s District 6 and S.B. 4’s District 5 are identical.

See id. (citing Op.Br.15–17). This case is thus worlds

away from Shaw, where “[t]he remedial district” had

only “a 20% overlap with the district the plaintiffs

sought.” LULAC, 548 U.S. at 431. It is also worlds

away from LULAC, where “the majority of Latinos

who were in the old District 23 [were] still in the new

20

District 23,” which allegedly unlawfully diluted their

votes. Id.

Plaintiffs also do not question that the Legislature

did “not deviate substantially” from S.B. 4 and the

Robinson illustrative maps “for predominantly racial

reasons.” Op.Br.52 (quoting Bush v. Vera, 517 U.S.

952, 994 (1996) (O’Connor, J., concurring)). Again,

rightly so, for S.B. 8 was “the only map” Senator Womack saw that would protect Louisiana’s high-profile incumbents. Robinson.J.S.App.394a–95a. That incumbency-protection rationale confirms that District 6

falls within the limits identified in LULAC and Bush.

Contra Resp.Br.48–49.

Under a straightforward application of this Court’s

precedents, therefore, Louisiana meets the “good reasons” standard, particularly in light of the Robinson

decisions. And the critical error below—unaddressed

by Plaintiffs—is that the majority’s “good reasons”

analysis “disregarded the Robinson proceedings when,

in reality, only those proceedings can explain how District 6 came to be.” Op.Br.46. That “is like Hamlet

without the prince.” Id.

b. Plaintiffs and their amici offer no serious responses. First, Plaintiffs’ principal complaint

(Resp.Br.42–44) is that District 6 is not identical to the

second majority-Black district considered in Robinson

(and represented by S.B. 4’s District 5).1 This argument is insincere and misplaced.

1 Plaintiffs go as far as to say that the Robinson district court

“essentially rejected” District 6 and deemed it “impermissible.”

Resp.Br.43, 50. Of course, that court did not have District 6 before it. Moreover, to the extent the court described a district from

21

It is insincere because Plaintiffs are talking out of

both sides of their mouth. While this argument suggests District 6 would be constitutional if it were identical to S.B. 4’s District 5, Plaintiffs elsewhere proclaim that it is legally “impossible to draw a second

majority-Black district.” Resp.Br.28; id. at 33 (“no constitutional, VRA-compliant maps can also include a

second majority-Black district”). So, there can be no

doubt that their theory of the case means Louisiana

could never satisfy strict scrutiny while attempting to

comply with the Robinson decisions.

Plaintiffs’ argument also is misplaced because, as

they elsewhere concede, this Court’s precedents do not

limit Louisiana to the precise illustrative maps the

Robinson Intervenors proposed. See supra p. 19 (collecting citations). Indeed, States are not required “to

defeat rival compact districts designed by plaintiffs’

experts in endless beauty contests.” Bush, 517 U.S. at

977 (plurality op.). Yet that is what Plaintiffs would

have Louisiana do.

That is wrong as a doctrinal matter, but it also gets

Plaintiffs nowhere. For example, Plaintiffs complain

(Resp.Br.6) that District 6 includes high Black voting

age populations from East Baton Rouge Parish. So did

S.B. 4’s District 5. Op.Br.13. Plaintiffs complain

(Resp.Br.7) that District 6 includes the northern tip of

Lafayette Parish. So did S.B. 4’s District 5. Op.Br.13.

the old Hays litigation, the court appears to have merely acknowledged that the court could not require such a remedial district

under Section 2—which says nothing about whether the State

could lawfully adopt such a district. See LULAC, 548 U.S. at 506

(Roberts, C.J.) (“[T]he States retain ‘flexibility’ in complying with

voting rights obligations that ‘federal courts enforcing § 2 lack.’”).

22

Plaintiffs complain (Resp.Br.7) that District 6 “splits

Alexandria from Rapides Parish to carve in high

BVAP areas.” So did S.B. 4’s District 5. Op.Br.13. Finally, Plaintiffs suggest (Resp.Br.6–7) that a split in

Avoyelles Parish was racially motivated, even though

that late-developing split was a product of Senator

Cloud’s desire “to have her constituents be represented

by

congresswoman

Letlow.”

Robinson.J.S.App.106a; accord J.S.App.92a (Stewart, J.,

dissenting).2

All told, this improper beauty contest would end in

comparing S.B. 4 District 5’s two remaining splits (in

Ouachita Parish and Tangipahoa Parish, Op.Br.13)

against S.B. 8 District 6’s two remaining splits (in De

Soto Parish and Caddo Parish, id. at 15). This is not a

contest Plaintiffs win, even if it were proper.

Second, Plaintiffs claim (Resp.Br.44–46) that the

Robinson decisions are not a sufficiently strong basis

in evidence since the Middle District engaged in “preliminary factfinding,” the Fifth Circuit “reviewed only

for clear error,” and the State supposedly did not

mount a real VRA defense. (On that last point, Robinson’s mammoth docket and the State’s numerous

emergency applications speak for themselves.) Plain-

Plaintiffs also depict the State as “falsely” arguing that

Caddo Parish was “key to Robinson’s preliminary injunction.”

Resp.Br.43 n.10. That misrepresents the State’s brief, which said

that, because Caddo is key to District 6, it is notable that the Middle District considered Caddo. Op.Br.52. And Plaintiffs concede

that the Middle District indeed considered Caddo “within a

lengthy exposition of decades of Black voter discrimination

throughout the entire ‘state’ under Senate Factor 1.” Resp.Br.43

n.10.

2

23

tiffs’ amici similarly suggest that the State was required to litigate Robinson through a trial court loss

(and merits appeals and emergency applications?) before Louisiana could cite Robinson in the strict-scrutiny analysis. Project on Fair Representation.Br.17.

This Court has already rejected this line of argument: A State is not “require[d] ... to show that its action was ‘actually ... necessary’ to avoid a statutory violation, so that, but for its use of race, the State would

have lost in court.” Bethune-Hill, 580 U.S. at 194;

Op.Br.45. Recall also Plaintiffs’ silence on the fact that

the State would have actually lost at final judgment in

Robinson. And even if that were not so, Middle District

and Fifth Circuit decisions saying a second majorityBlack district is likely required surely fall within Bethune-Hill’s breathing room.

Third, Plaintiffs try to find a legal standard that

works for them. Although they acknowledge LULAC’s

“substantially addresses” standard, see supra p. 19,

they elsewhere say (Resp.Br.49–50, 52) a new Gingles

analysis is required. It is not, both because LULAC

and its progeny have never required as much and because the Robinson courts conducted that analysis in

the first instance to tell Louisiana a second majorityBlack district is likely required. Op.Br.46–48.

Plaintiffs also try to add on to LULAC’s “substantially addresses” requirement by insisting that LULAC also requires District 6 to be “reasonably compact.” Resp.Br.50. This argument is principally unavailing because, for the same reasons District 6 would

survive any beauty contest, District 6 also is sufficiently “compact.” But more fundamentally, Plaintiffs

24

read LULAC incorrectly. Although not a model of clarity, the cited passage in LULAC emphasizes that a

“noncompact district cannot ... remedy a violation elsewhere in the State.” 548 U.S. at 430 (emphasis added).

It also suggests that this general principle “can[] be

distinguished based on the relative location of the remedial district as compared to the district of the alleged violation”—a distinction unavailable in Shaw

and LULAC because the remedial districts did not

“substantially address[]” even a majority of the affected voters. Id. at 431; cf. id. at 505 (Roberts, C.J.)

(disagreeing that LULAC was “a case of the State

drawing a majority-minority district ‘anywhere’”). As

explained above, that distinction is available here, and

there is no basis for denying Louisiana “some latitude”—particularly to protect its high-profile incumbents—“in deciding where to place” District 6. Id. at

505 (Roberts, C.J.).

Finally, Plaintiffs complain that reversal would

mean that “Robinson controls a three-judge panel considering a new Fourteenth Amendment claim about a

new statute.” Resp.Br.51. That argument is overstated, because, as Plaintiffs admit (supra p. 19), the

“strong basis in evidence” question is whether a State

substantially addressed the “likely” VRA violation—

sometimes that answer will be yes, sometimes no. But,

either way, a VRA decision does not automatically

“control” any subsequent Equal Protection Clause

lawsuit.

Moreover, Plaintiffs identify no alternative that

would not render Robinson irrelevant: Requiring a

new Gingles analysis and so on would mean that the

Robinson decisions give Louisiana no help in a strict-

25

scrutiny framework that purports to ask “only”

whether “the legislature has ‘good reasons to believe’

it must use race in order to satisfy the [VRA].” Bethune-Hill, 580 U.S. at 193 (citation omitted). That

cannot be right—and that is why, if Louisiana does not

prevail, it is difficult to see how any breathing room

truly exists.

CONCLUSION

The Court should reverse.

Respectfully submitted,

ELIZABETH B. MURRILL

Attorney General

LOUISIANA DEPARTMENT OF

JUSTICE

1885 N. Third St.

Baton Rouge, LA 70802

(225) 506-3746

AguinagaB@ag.louisiana.gov

J. BENJAMIN AGUIÑAGA

Solicitor General

Counsel of Record

ZACHARY FAIRCLOTH

Principal Deputy

Solicitor General

MORGAN BRUNGARD

Deputy Solicitor General

CAITLIN A. HUETTEMANN

Assistant Solicitor General

AUTUMN HAMIT PATTERSON

Sp. Ass’t Solicitor General