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

Nos. 24-109, 24-110

In the Supreme Court of the United States

LOUISIANA, APPELLANT

v.

PHILLIP CALLAIS, ET AL.

PRESS ROBINSON, ET AL., APPELLANTS

v.

PHILLIP CALLAIS, ET AL.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF LOUISIANA

BRIEF FOR AMICI CURIAE INDEPENDENT STATE

REDISTRICTING COMMISSIONERS

IN SUPPORT OF NEITHER PARTY

JUSTIN LEVITT

919 Albany St.

Los Angeles, CA 90015

(213) 736-7417

JOHN A. FREEDMAN

Counsel of Record

NANCY L. PERKINS

ARNOLD & PORTER

KAYE SCHOLER LLP

601 Massachusetts Avenue, NW

Washington, DC 20001

(202) 942-5000

john.freedman@arnoldporter.com

TABLE OF CONTENTS

Page

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

INTRODUCTION AND SUMMARY OF

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

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

I. WHEN AMICI CONSIDER RACE AND

ETHNICITY, FOLLOWING THIS COURT’S

PRECEDENT, WE DO SO AS ONE OF THE

“MYRIAD CONSIDERATIONS,” NOT

STEREOTYPE ............................................................ 5

II. RETREATING FROM THE

PREDOMINANCE STANDARD WILL

SUBJECT REDISTRICTING BODIES TO

INVASIVE LITIGATION BASED ON

COMMUNITY CHARACTERISTICS THAT

ARE IMPOSSIBLE TO IGNORE .......................... 15

CONCLUSION .................................................................. 22

(i)

TABLE OF AUTHORITIES

Cases

Page(s)

Abbott v. Perez,

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

Ala. Legis. Black Caucus v. Alabama,

575 U.S. 254 (2015) ............................................... 3, 4-5, 15

Ala. State Conf. of the NAACP v. Allen,

No. 2:21-cv-01531, 2025 WL 2451166

(N.D. Ala. Aug. 22, 2025) ................................................ 10

Alexander v. South Carolina State Conf. of the

NAACP, 602 U.S. 1 (2024).............................. 3, 15, 16, 20

Allen v. Milligan,

599 U.S. 1 (2023) .............................................. 4, 7, 8, 9, 15

Bethune-Hill v. Virginia State Bd. of

Elections, 580 U.S. 178 (2017) ................................ 3, 5, 15

Brown v. Bd. of Education,

347 U.S. 483 (1954) ............................................................ 5

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

488 U.S. 469 (1989) ............................................................ 5

City of Rome v. United States,

446 U.S. 156 (1980) .................................................... 6, 7, 9

Cooper v. Harris,

581 U.S. 285 (2017) .............................................. 3, 4, 5, 15

Ely v. Klahr,

403 U.S. 108 (1971) .......................................................... 19

Gomillion v. Lightfoot,

364 U.S. 339 (1960) ............................................................ 5

Harris v. Ariz. Ind. Redistricting Comm’n,

578 U.S. 253 (2016) .......................................................... 19

In re Colo. Ind. Cong. Redistricting Comm’n,

497 P.3d 493 (Colo. 2021) ................................................ 19

(ii)

iii

Cases—Continued

Page(s)

In re Colo. Ind. Legis. Redistricting Comm’n,

513 P.3d 352 (Colo. 2021) ................................................ 19

Int’l Bhd. of Teamsters v. United States,

431 U.S. 324 (1977) ............................................................ 9

Johnson v. California,

543 U.S. 499 (2005) ............................................................ 5

Klahr v. Williams,

313 F. Supp. 148 (D. Ariz. 1970) ............................... 18-19

Klahr v. Williams,

339 F. Supp. 922 (D. Ariz. 1972) .................................... 18

League of United Latin Am. Citizens v. Perry,

548 U.S. 399 (2006) ...................................................... 9, 10

Miller v. Johnson,

515 U.S. 900 (1995) .................................... 4, 15, 16, 17, 20

Miss. State Conf. of the NAACP v. State Bd. of

Election Comm’rs,

739 F. Supp. 3d 383 (S.D. Miss. 2024) ........................... 10

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

Dist. No. 1, 551 U.S. 701 (2007) ....................................... 5

Radanovich v. Bowen,

No. 2:11-cv-09786, 2012 WL 13012647

(C.D. Cal. Feb. 9, 2012) ................................................... 19

Shaw v. Reno,

509 U.S. 630 (1993) ................................ 3, 4, 15, 16, 17, 18

Students for Fair Admissions, Inc. v.

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

Thornburg v. Gingles,

478 U.S. 30 (1986) ................................................ 7, 8, 9, 14

Vandermost v. Bowen,

53 Cal.4th 421 (Cal. 2012) ............................................... 19

iv

Cases—Continued

Page(s)

Wright v. Rockefeller,

376 U.S. 52 (1964) ........................................................... 18

Constitutional Provisions and Statutes

U.S. Const. amend XIV ................................................... 5, 6

U.S. Const. amend XV ................................................. 5, 6, 9

28 U.S.C. § 1253 .................................................................. 19

28 U.S.C. § 2284(a) ............................................................. 19

Voting Rights Act,

52 U.S.C. § § 10301 et seq. .................. 6, 7, 8, 9, 10, 12, 14

Ariz. Const. art. IV, pt. 2, § 1(15) ...................................... 20

Cal. Const. art. XXI, § 2(d) (2010) .................................... 14

Cal. Const. art. XXI, § 2(e) ................................................ 20

Colo. Const. art. V, § 44(3)(b)(IV)..................................... 20

Colo. Const. art. V, § 44.3(4)(a) ......................................... 20

Colo. Const. art. V, § 46(3)(b)(IV)..................................... 20

Colo. Const. art. V, § 48.1(4)(a) ......................................... 20

Other Authorities

111 Cong. Rec. 19,201 (1965) ............................................... 7

116 Cong. Rec. 7,335 (1970) ................................................. 7

121 Cong. Rec. 24,780 (1975) ............................................... 7

127 Cong. Rec. 23,205 (1981) ............................................... 7

128 Cong. Rec. 14,337 (1982) ............................................... 7

152 Cong. Rec. H5204 (2006)............................................... 7

Ellen D. Katz, A Cure Worse than the Disease?,

123 Yale L.J. Online 117 (2013) ........................................ 7

Final Report on 2011 Redistricting, California

Citizens Redistricting Comm’n, (Aug. 15,

2011), https://wedrawthelines.ca.gov/wpcontent/uploads/sites/64/2011/08/crc_2011081

5_2final_report.pdf.............................................. 11, 12, 14

v

Other Authorities—Continued

Page(s)

Franita Tolson, What is Abridgment?

A Critique of Two Section Twos,

67 Ala. L. Rev. 433 (2015) ................................................. 6

H.B. 1, 29th Gen. Assemb.,

1st Spec. Sess. (Ariz. 1970) ............................................. 18

H.B. 1, 30th Gen. Assemb., 1st Spec. Sess.

(Ariz. 1971) ....................................................................... 18

Justin Levitt, Quick and Dirty: The New

Misreading of the Voting Rights Act,

43 Fla. St. U. L. Rev. 573 (2016) ...................................... 7

Report of Dr. Lisa Handley (Colo. Oct. 15,

2021), https://redistricting.lls.edu/wpcontent/uploads/CO-In-re-Ind.-Leg.-Commn20211015-final-proposed-plans.zip .......................... 11, 12

Report on Final Maps, 2020 California Citizens

Redistricting Comm’n, (Dec. 26, 2021),

https://wedrawthelines.ca.gov/wpcontent/uploads/sites/64/2023/01/Final-MapsReport-with-Appendices-12.26.21-230-PM1.pdf ............................................................................ 11, 14

S.B. 2, 30th Gen. Assemb., 1st Spec. Sess.

(Ariz. 1971) ....................................................................... 18

S.B. 1333, 30th Gen. Assemb., 2d Reg Sess., ch.

173 (Ariz. 1972) ................................................................ 18

INTERESTS OF AMICI CURIAE1

Amici are current and former Commissioners of

state independent redistricting commissions, some

affiliated with the Republican Party, some with the

Democratic Party, and some with neither. Because this

Court has asked the parties whether it should recalibrate

the legal landscape facing redistricting bodies, amici

write to share our experience in drawing lawful district

lines subject to current constraints, and to share some

concerns about the litigation environment should the

Court significantly depart from its substantial precedent.

We believe that our experience highlights the nuanced

approach to race required by current federal law in this

context, and reveals the impracticality and risks posed by

an alternative approach that would render any

consideration of race constitutionally suspect here. As

commissioners charged with drawing lines on behalf of

local communities, we know that we cannot unlearn what

we know about those communities — including their

racial composition — in fulfilling our obligations. If any

consideration of race were constitutionally suspect and

subject to challenge, our redistricting work — indeed, any

redistricting work by any entity familiar with the local

communities to be represented — would be embroiled in

repeated and protracted litigation. Neither this Court’s

precedent nor the Constitution condones any such result.

Amici include Arizona Commissioner Colleen

Mathis, who served in the 2010 redistricting cycle as the

Chair of the Arizona Independent Redistricting

Commission

(“Arizona

Commission”);

California

Commissioners Isra Ahmad, Linda Akutagawa, Vincent

No counsel for a party authored this brief in whole or in part, and

no party or counsel for a party made a monetary contribution

intended to fund the preparation of or submission of this brief. No

one other than the amici curiae or their counsel made a monetary

contribution to the preparation or submission of this brief.

1

(1)

2

Barabba, Cynthia Dai, Michelle DiGuilio, Alicia

Fernández, Jodie Filkins, Stanley R. Forbes, Neal

Fornaciari, Gil Ontai, Connie Archbold Robinson, Sara

Sadhwani, Pedro Toledo, Trena Turner, and Russell Yee,

who are serving in the 2020 redistricting cycle or served

in the 2010 redistricting cycle as members of the

California Citizens Redistricting Commission (“California

Commission”); and Colorado Commissioners Carlos

Perez and Samuel Greenidge who are serving as Chair

and a member, respectively, of the Colorado Independent

Legislative Redistricting Commission charged with

redrawing the lines for the state legislative districts

(“Colorado Legislative Commission”). Amici are part of

a group that submitted a brief to this Court on December

23, 2024; that brief summarizes the backgrounds,

procedures, and mandates of their respective

independent commissions, and amici incorporate that

summary here by reference. Brief for Amici Curiae

Independent State Redistricting Commissioners in

Support of Neither Party 1-4, Louisiana v. Callais, Nos.

24-109, 24-110 (2024).

INTRODUCTION AND SUMMARY OF ARGUMENT

This Court has ordered supplemental briefs

addressing whether Louisiana’s intentional creation of a

second majority-minority congressional district violates

the Fourteenth or Fifteenth Amendments to the U.S.

Constitution. Amici believe that the proper answer to

that question involves a localized and fact-driven analysis

that depends primarily on Louisiana’s legislative process

— and as a second-order concern, on local social and

political context. Without that particularized context,

amici offer no opinion on the question as it pertains to

Louisiana’s current congressional map.

However, to the extent the Court may revisit the

more general question whether the intentional creation of

districts with certain demographic profiles is

3

constitutional, amici believe that our experience may

assist the Court.

The Court’s long-established precedent instructs that

the answer to this more general question has been

“sometimes.” And amici believe “sometimes” should

remain the correct answer. Absent invidious intent to

injure based on race, if significant populations are not

moved within or without a district predominantly based

on their race, with race the “dominant and controlling”

consideration subordinating other redistricting criteria,

this Court has repeatedly found no constitutional injury.

Ala. Legis. Black Caucus v. Alabama, 575 U.S. 254, 260–

61 (2015); see also Alexander v. South Carolina State

Conf. of the NAACP, 602 U.S. 1, 7–8 (2024); Cooper v.

Harris, 581 U.S. 285, 291–92 (2017); Bethune-Hill v.

Virginia State Bd. of Elections, 580 U.S. 178, 187 (2017).

In our earlier brief to this Court, amici explained that

when we consider race in the course of drawing district

lines, we endeavor to do so without allowing race to

predominate, readily navigating the terrain Louisiana

now declares impassable. Brief for Amici Curiae

Independent State Redistricting Commissioners in

Support of Neither Party 9-14, Louisiana v. Callais, Nos.

24-109, 24-110 (U.S.); Supp. Br. for Appellant 5,

Louisiana v. Callais, No. 24-109 (2025).

Preserving the “predominance” test recognizes, as a

practical matter, that “redistricting differs from other

kinds of state decisionmaking in that the legislature

always is aware of race when it draws district lines.”

Shaw v. Reno, 509 U.S. 630, 646 (1993). “Predominance”

is also consistent with treating race as one of the “myriad

considerations that a legislature must balance as part of

its redistricting efforts. . . .” Alexander, 602 U.S. at 24

(quotation

marks

omitted).

Moreover,

the

“predominance” standard recognizes that if districts are

to be drawn, they must be drawn somewhere, and people

4

of differing racial and ethnic characteristics will inevitably

find themselves on one side or another of a district line.

And “predominance” recognizes that if entities tasked

with drawing district lines intend to foster the

representation of communities, the racial or ethnic

composition of those communities may be inextricably

intertwined with other community traits.

This Court has repeatedly found that the process of

drawing a district to reflect a certain community,

geography, geometry, or (for linedrawers in other states)

partisan preference does not rise to a constitutionally

cognizable injury if the decisionmakers also considered

the race of district constituents. Allen v. Milligan, 599

U.S. 1, 30–33 (2023); Miller v. Johnson, 515 U.S. 900, 920

(1995) (“A State is free to recognize communities that

have a particular racial makeup, provided its action is

directed toward some common thread of relevant

interests.”); Shaw, 509 U.S. at 646 (finding “when

members of a racial group live together in one community,

a reapportionment plan that concentrates members of the

group in one district and excludes them from others may

reflect wholly legitimate purposes”). As this brief

explains, to do otherwise would subject the work of

districting bodies to invasive litigation that would be

nearly impossible to defend. The litigation morass

Louisiana ostensibly seeks to avoid is one its proposed

doctrine would create.

Amici also believe it is important to recognize that

even when districts are drawn predominantly because of

race, this Court has determined that the choice should be

strictly scrutinized rather than automatically invalidated.

And this Court has consistently assumed, for good reason,

that narrowly tailored compliance with the Voting Rights

Act satisfies strict scrutiny. See Abbott v. Perez, 585 U.S.

579, 587 (2018) (noting the consistency); see also Cooper,

581 U.S. at 292–93; Ala. Legis. Black Caucus, 575 U.S. at

5

278; Bethune-Hill, 580 U.S. at 193–94. As this brief

explains, properly applied, with a mapmakers’ localized

and fact-dependent assessment of the “myriad

considerations” the statute demands, the Voting Rights

Act

prevents

linedrawers

from

perpetuating

discriminatory dilution in a manner fulfilling, not contrary

to, the constitutional authority that the Constitution gives

to Congress.

ARGUMENT

I.

WHEN AMICI CONSIDER RACE AND ETHNICITY,

FOLLOWING THIS COURT’S PRECEDENT, WE DO SO

AS ONE OF THE “MYRIAD CONSIDERATIONS,” NOT

STEREOTYPE

This Court has consistently guarded against racial

stereotyping, both in electoral cases and beyond.

Grounded in the text and historical context of the

Fourteenth and Fifteenth Amendments, this Court

reserves its most searching scrutiny for differential

government treatment of individuals because of their

race, because the assumptions and stereotypes associated

with race have too often served as pretext for

discrimination or the unwarranted communication of

difference. Brown v. Bd. of Education, 347 U.S. 483, 493–

94 (1954); Gomillion v. Lightfoot, 364 U.S. 339, 345–46

(1960); Johnson v. California, 543 U.S. 499, 505–06 (2005).

And when this Court refuses to condone differential

treatment without rigorous justification, it guards against

lazy government predilections that fall back on

assumptions and stereotypes. City of Richmond v. J.A.

Croson Co., 488 U.S. 469, 493 (1989); Parents Involved in

Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 742–

43 (2007); Students for Fair Admissions, Inc. v. Harvard,

600 U.S. 181, 218 (2023).

Amici understand and share this Court’s underlying

concern with racial stereotyping. We are, by the design

of the commissions in our states, individuals of various

6

racial and ethnic backgrounds working together with

others of various racial and ethnic backgrounds.

Sometimes we agree with those with whom we share

demographic traits in common, sometimes we do not;

sometimes we agree with those who have different

demographic traits, sometimes we do not. We recognize

the stereotyping in ascribing political preferences and

affiliations to individuals solely because of their race even

as we understand that the data show there are sometimes

(and in some locations) correlations between race and

representational preference. And these experiences help

ensure that when we, as commissioners, consider race in

the course of drawing of district lines, we do so grounded

deeply in fact rather than stereotype.

A. Proper application of the Voting Rights Act requires an approach to race and ethnicity grounded

in local fact and context, and shuns stereotypes.

The Voting Rights Act is the principal statute

requiring mapmakers to consider race. The Voting

Rights Act was passed pursuant to Congress’s express

power to enforce the Fourteenth and Fifteenth

Amendments’ prohibition of abridgement of the vote

based on race.2 See generally City of Rome v. United

States, 446 U.S. 156, 176 (1980) (identifying Congress’s

ability to “prohibit state action that . . . perpetuates the

effects of past discrimination” as a permissible use of

The Fourteenth Amendment grants Congress the power to

enforce Section 1’s substantive protections against racial

discrimination and Section 2’s substantive protections against

abridgment of adult male citizens’ right to vote “in any way”; the

Fifteenth Amendment grants Congress the power to enforce

Section 1’s substantive protections against abridgment of the right

to vote on the basis of race, color, or previous condition of servitude.

See U.S. Const., amends. XIV, XV; Franita Tolson, What is

Abridgment? A Critique of Two Section Twos, 67 ALA. L. REV. 433,

435–36 (2015).

2

7

constitutional power to enforce the Reconstruction

Amendments).

Pursuant to this constitutional

authorization, the Voting Rights Act was passed with

strong bipartisan majorities not only in its initial

enactment, but in every amendment or reauthorization

since.3

We have noted in some spheres a tendency to

caricature the Voting Rights Act as advancing racial

preferences or a theory of racial entitlement. See, e.g.,

Justin Levitt, Quick and Dirty: The New Misreading of

the Voting Rights Act, 43 FLA. ST. U. L. REV. 573, 575

(2016) (noting instances); Ellen D. Katz, A Cure Worse

than the Disease?, 123 YALE L.J. ONLINE 117, 118–19

(2013) (same). In this mistaken caricature, the Voting

Rights Act simply guarantees each racial or ethnic

community of sufficient size its own legislative district. Cf.

Supp. Br. for Appellant 31–33, Louisiana v. Callais, No.

24-109 (2025) (asserting “racial balancing” as the goal

while ignoring the actual conditions for liability). But this

kind of proportionality is not how we understand or apply

the Voting Rights Act in the process of drawing district

lines. Cf. Milligan, 599 U.S. at 26 (finding “properly

applied, the Gingles framework imposes meaningful

constraints on proportionality, as our decisions have

In 1965, 79% of Democrats voting on the measure voted in favor

of the Act, and 88% of Republicans voting voted in favor of the Act.

See 111 Cong. Rec. 19,201, 19,378 (1965). In 1970, 75% of Democrats

voting on the measure voted in favor, and 63% of Republicans voting

voted in favor. See 116 Cong. Rec. 7,335–36, 20,199–200 (1970). In

1975, 92% of Democrats voting on the measure voted in favor, and

75% of Republicans voting voted in favor. See 121 Cong. Rec. 24,780,

25,219–20 (1975). In 1982, 97% of Democrats voting on the measure

voted in favor, and 89% of Republicans voting voted in favor. See

127 Cong. Rec. 23,205–06 (1981); 128 Cong. Rec. 14,337 (1982). And

in 2006, 100% of Democrats voting on the measure voted in favor,

and 88% of Republicans voting voted in favor. See 152 Cong. Rec.

H5204–07 (2006).

3

8

frequently demonstrated”); id. at 43 (Kavanaugh, J.,

concurring) (“As the Court’s precedents make clear,

Gingles does not mandate a proportional number of

majority-minority districts.”).

Instead, the Voting Rights Act is aimed squarely at

dismantling discrimination. The Voting Rights Act

initially prevented intentional discrimination on the basis

of race or language minority status. When Congress

amended the statute in 1982, it expanded coverage to

prevent the perpetuation of discrimination even when

direct intent was difficult to prove. But in adopting the

1982 amendments, Congress rejected the notion that

statutory violations would turn on a simple demographic

threshold.

As this Court held in Thornburg v. Gingles, the

necessary predicates for Voting Rights Act liability

ensure that the Act is properly deployed to prevent state

perpetuation of discrimination. 478 U.S. 30, 47–51 (1986).

Demonstrating that racial or language minority

communities are sufficiently sizable to constitute more

than half of a district-sized population is only the first step

of several necessary predicates. In addition, there must

be a reliable basis to believe that those racial or language

minority communities have cohesive political preferences.

Gingles, 478 U.S. at 50-51. In addition, there must be a

reliable basis to believe that the remainder of the

community also has cohesive political preferences,

sufficiently distinct and polarized from the racial or

language minority communities to regularly deprive those

minority communities of representation if special care

were not otherwise taken. Id. These preconditions are

designed to indicate when minority voters would have an

opportunity to elect their candidates of choice if (and only

if) district lines were drawn for that purpose. But

crucially, these preconditions are insufficient for liability

on their own. In addition to these factors, the totality of

9

the circumstances — localized and fact-driven and

requiring nuance — must reveal the continuing impact of

past or present discrimination, such that drawing district

lines that preserve the ability of the polarized majority to

continue to dominate racial or language minorities would

continue to perpetuate discrimination against those

communities. Id. at 44-45; City of Rome, 446 U.S. at 176–

78; cf. Int’l Bhd. of Teamsters v. United States, 431 U.S.

324, 349 (1977) (“One kind of practice “fair in form, but

discriminatory in operation” is that which perpetuates the

effects of prior discrimination.”); see also League of

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

(finding “political, social, and economic legacy of past

discrimination . . . may well hinder their ability to

participate effectively in the political process” (quotation

marks omitted)). Contrary to Louisiana’s supplemental

brief in this case, Supp. Br. for Appellant 3, 10, 18–21,

Louisiana v. Callais, No. 24-109 (2025), none of these

elements can ever be presumed; each must be grounded

in local facts.

This Court’s precedent, reaffirmed as recently as two

years ago, in Allen v. Milligan, 599 U.S. 1 (2023),

emphasizes the importance of each of these predicates for

liability. Id. at 17–19. Milligan also confirms that these

liability guardrails ensure section 2’s constitutionality. Id.

at 41-42 (“We also reject Alabama's argument that § 2 as

applied to redistricting is unconstitutional under the

Fifteenth Amendment.”). That is in part because each

predicate for liability ensures that the Voting Rights Act

contains its own significant limiting principles. Louisiana

protests that Section 2 “lack[s] a ’logical end point,” Supp.

Br. for Appellant 3, 24, Louisiana v. Callais, No. 24-109

(2025), because the State invents a caricature that Section

2 itself does not reflect.

When particular local

communities no longer exhibit voting preferences locally

polarized on the basis of race, the Voting Rights Act

10

imposes no liability. When particular local communities

are no longer residentially segregated such that racial or

language minorities in a single-member districted system

are no longer sufficiently concentrated to constitute more

than half of a district’s electorate, the Voting Rights Act

imposes no liability. And when particular local racial or

language minorities no longer experience the continuing

impact of localized discrimination, the Voting Rights Act

imposes no liability. Trial courts understand and apply

these limits, finding liability for some claims and rejecting

others even within the same case, when facts in one part

of a state differ from the facts in another. See, e.g., Ala.

State Conf. of the NAACP v. Allen, No. 2:21-cv-01531,

2025 WL 2451166, at *2 (N.D. Ala. Aug. 22, 2025) (finding

that plaintiffs adequately proved Voting Rights Act

liability in the Montgomery region of Alabama, but not in

the Huntsville area); Miss. State Conf. of the NAACP v.

State Bd. of Election Comm’rs, 739 F. Supp. 3d 383, 466

(S.D. Miss. 2024) (finding that plaintiffs adequately

proved Voting Rights Act liability in northwest

Mississippi and the Hattiesburg area, but not around

Copiah, Simpson, and Jefferson Davis counties or in the

outskirts of Jackson); see also League of United Latin

Am. Citizens, 548 U.S. at 442–47 (plurality opinion)

(finding that plaintiffs adequately proved Voting Rights

Act liability in west Texas, but not in the Dallas area).

Amici have also heeded this Court’s instructions,

painstakingly considering each step of the analysis. We

have evaluated sizable communities of racial or language

minorities. Sometimes we have found voting locally

polarized based on race. But sometimes we have found

insufficient evidence that voting is locally polarized based

on race — and we have recognized that the Voting Rights

Act provides no mandate with respect to those

communities in those locations. For example, the

Colorado Legislative Commission in 2021 found evidence

11

of polarized voting in the eastern Denver suburbs, but not

in Denver or its western suburbs.4 The California

Commission in 2011 found sizable Latino populations in

Kings County, but insufficient evidence of polarized

voting there — even as the evidence indicated polarization

in neighboring Fresno.5 By 2021, the evidence revealed

polarization in Kings County, but not in the Bay Area or

portions of California’s Central Coast.6 Based on rigorous

attention to granular factual detail, the California

Commission in 2021 even noted portions of Los Angeles

County where the evidence showed voting to be polarized

based on race and portions of Los Angeles County where

it did not, and calibrated its linedrawing accordingly.7

Sometimes, even in sizable communities of racial or

language minorities where the evidence shows

polarization based on race, we have found insufficient

evidence of continuing discrimination or a link to past or

present discrimination — and we have recognized that the

Voting Rights Act provides no mandate with respect to

those communities in those locations. In still other

circumstances, even in sizable communities of racial or

language minorities subject to polarized voting and a

In re Colorado Ind. Legis. Redistricting Comm’n, No. 2021 SA

305, Exh. 9 Report of Dr. Lisa Handley at 6 (Colo. Oct. 15, 2021),

https://redistricting.lls.edu/wp-content/uploads/CO-In-re-Ind.Leg.-Commn-20211015-final-proposed-plans.zip.

4

Final Report on 2011 Redistricting, California Citizens

Redistricting

Comm’n,

19-20

(Aug.

15,

2011),

https://wedrawthelines.ca.gov/wpcontent/uploads/sites/64/2011/08/crc_20110815_2final_report.pdf.

5

Report on Final Maps, 2020 California Citizens Redistricting

Comm’n,

40–41

&

appx.

7

(Dec.

26,

2021),

https://wedrawthelines.ca.gov/wpcontent/uploads/sites/64/2023/01/Final-Maps-Report-withAppendices-12.26.21-230-PM-1.pdf.

6

7

Id.

12

history of discrimination, the totality of circumstances has

indicated no need to draw majority-minority districts to

prevent the perpetuation of discrimination — and so we

recognized that the Voting Rights Act provides no

mandate with respect to such districts in those locations.

For example, the California Commission in 2011

recognized that Black communities were able to elect

candidates of their choice in areas of Los Angeles even

without tailored Black-majority districts.8 The Colorado

Legislative Commission in 2021 recognized much the

same for the Latino communities in western Adams

County.9

When we consider race in applying the Voting Rights

Act, we do so grounded in local facts and context, without

indulging in stereotype. And we do so mindful of the

overall purpose of the Voting Rights Act, recognizing that

the Act represents Congress’s directive that we not

perpetuate the effects of demonstrated discrimination.

B. When amici consider race and ethnicity outside of

the context of the Voting Rights Act, following this

Court’s precedent, we do so grounded in fact, not

stereotype.

Amici occasionally consider race or ethnicity

independent of our obligations under the Voting Rights

Act. We are tasked with determining representation for

communities. We are chosen in part for our familiarity

with the communities we serve, and in part for our

commitment to listen to other citizens who are similarly

familiar with their own communities. Indeed, for some of

us, we came to our understanding of communities and

their representational needs well before we acquired any

other information about the redistricting process. We

8

Final Report on 2011 Redistricting, supra note 5, at 17.

In re Colorado Ind. Legis. Redistricting Comm’n, supra note 4,

at 4–5.

9

13

necessarily know the demographic composition of the

communities in question. And some of us find it valuable,

in shaping districts for representation, to avoid artificially

splitting communities defined predominantly along other

lines that also share racial or ethnic heritage. In so doing,

as mentioned in our prior brief, we do not draw lines

predominantly based on race, subordinating other

considerations. Brief for Amici Curiae Independent

State Redistricting Commissioners in Support of Neither

Party 9–14, Louisiana v. Callais, Nos. 24-109, 24-110

(2024). But when we know that a community shares

common racial or ethnic bonds that bear on common

representational concerns, some of us will — intentionally

— avoid wielding state power to split that community in

two.

For example, the city of Glendale, California, lies

about ten miles north of downtown Los Angeles. The

more densely populated center of Glendale is relatively

compact, but the formal municipal boundaries stretch a

bit up and into the southwest portion of the Angeles

National Forest.

The population of Glendale is

socioeconomically diverse, with a mix of income and a mix

of homeowners and renters.

Those of us who know the city also know that it is

home to the world’s largest Armenian population outside

of Armenia, which is a source of significant cultural

weight, religious practice, commercial interest, and civic

pride. The community commemorates this heritage in

historical remembrances — including, but not limited to,

the 1915 onset of the Ottoman genocide — and an

Armenian-American museum, educational, and cultural

center with substantial civic support is scheduled to open

in 2026.

The Armenian community in and around Glendale is

not politically homogenous. But even as community

members have different preferences for representatives

14

within and across partisan lines, the community as a whole

has some common representational concerns at various

levels of government drawn from that ethnic heritage.

Amici serving on the California Commission in 2010 and

2020 did not have reason to believe that this community

would qualify under Gingles for the protections of the

Voting Rights Act. But when drawing district lines in and

around this region, choosing districts pursuant to

California law based on the integrity of municipal

boundaries, based on socioeconomic communities of

interest (including adjacency to the Los Angeles National

Forest, including the care for natural resources and

concern for fire safety connecting these communities),

based on geographical compactness, and based on the

ability to nest districts for different chambers of the

legislature, see Cal. Const. art. XXI, § 2(d) (2010), some

commissioners also intentionally considered this ethnic

identity, and attempted to avoid dividing the Armenian

community so that the community could more coherently

communicate with their representatives.10

This consideration of race or ethnicity carefully heeds

this Court’s concern with stereotype. Where we as

individuals considered factors such as those described

above, they were not based on assumptions fueled by the

mere fact of racial or ethnic background. We did not

presume that the members of any particular ethnic

groups had common concerns, or should be treated

similarly — though we remained open to applying such

treatment where the facts warranted. Rather, in our

experience, consideration of race or ethnicity in the

manner described above is premised on individual

commissioners’ deep familiarity with particular

communities, supported by public comment and

Report on Final Maps, supra note 6, at 72; see also Final Report

on 2011 Redistricting, supra note 5, at 35–36.

10

15

testimony from the community members themselves.

That is, to the extent that the example above reveals

individual commissioners’ intentional consideration of

race or ethnicity, such consideration was based not on

suppositions about Armenians, but rather on

understanding the demonstrated particulars of the

Armenian community of Glendale.

And such

consideration serves not to balkanize, but to respect

distinct communities’ pre-existing representational

needs.

II.

RETREATING

FROM

THE

PREDOMINANCE

STANDARD WILL SUBJECT REDISTRICTING BODIES

TO INVASIVE LITIGATION BASED ON COMMUNITY

CHARACTERISTICS THAT ARE IMPOSSIBLE TO

IGNORE

In the question that this Court has presented as the

focus of supplemental briefing and argument, the Court

has asked whether the intentional drawing of a district

based on race violates the Constitution. Precedent

establishes that the answer is “sometimes” — specifically,

when that intentional drawing reveals that race served as

the

“dominant

and

controlling”

consideration,

subordinating other redistricting criteria, without

sufficiently narrow tailoring to a compelling government

interest, that would violate the Constitution. Ala. Legis.

Black Caucus, 575 U.S. at 260–61; see also Alexander,

602. U.S. at 7–8; Cooper, 581 U.S. at 291–92; Bethune-Hill,

580 U.S. at 192–94; Shaw, 509 U.S. at 642–44; Miller, 515

U.S. at 904.

To the extent that the Court may be reconsidering

the value of “racial predominance” as a governing

standard in the redistricting context, amici urge the

Court to maintain that vital principle. In our experience,

the “predominance” standard has proven consistent with

the “myriad considerations,” Milligan, 599 U.S. at 35,

that a mapmaker “must balance as part of its redistricting

16

efforts,” Alexander, 602 U.S. at 24, and has served as a

useful gating mechanism to protect routine redistricting

decisions from invasive litigation. Lowering the standard

– such as purporting to require a race-blind process or

providing that a cause of action may be maintained by

“but-for” intent (or a lower threshold) – would subject

amici and other mapdrawers to second-guessing and

protracted litigation. In such circumstances, mapdrawers

would be forced to prove a negative – that there was no

consideration of race – and would in practice require

mapdrawers to disavow the knowledge of local

communities they cannot possibly truthfully disavow.

The racial predominance standard owes much to

Justice O’Connor, the last Justice to serve on this Court

who served as a legislator and participated in that

capacity in drawing district lines. Her decision for the

Court in Shaw v. Reno, 509 U.S. 630 (1993), recognized

that the stigmatic injury perpetrated by racial

gerrymandering founded on stereotype would be present

only in district plans that “rationally cannot be

understood as anything other than an effort to separate

voters into different districts on the basis of race.” Id. at

649, 657–58. And when the Court refined that standard in

Miller v. Johnson, 515 U.S. 900 (1995), to focus on

legislative intent rather than appearance, Justice

O’Connor explained her support for the majority opinion

in a concurrence:

I understand the threshold standard the

Court

adopts

that

"the

legislature

subordinated

traditional

race-neutral

districting

principles

...

to

racial

considerations," ante, at 916 — to be a

demanding one. To invoke strict scrutiny, a

plaintiff must show that the State has relied on

race in substantial disregard of customary and

traditional districting practices. Those

17

practices provide a crucial frame of reference

and therefore constitute a significant

governing principle in cases of this kind. The

standard would be no different if a legislature

had drawn the boundaries to favor some other

ethnic group; certainly the standard does not

treat efforts to create majority-minority

districts less favorably than similar efforts on

behalf of other groups. Indeed, the driving

force behind the adoption of the Fourteenth

Amendment was the desire to end legal

discrimination against blacks.

Application of the Court's standard does not

throw into doubt the vast majority of the

Nation's 435 congressional districts, where

presumably the States have drawn the

boundaries in accordance with their

customary districting principles. That is so

even though race may well have been

considered in the redistricting process. See

Shaw v. Reno, 509 U.S. 630, 646 (1993); ante,

at 916. But application of the Court's standard

helps achieve Shaw's basic objective of making

extreme instances of gerrymandering subject

to meaningful judicial review. I therefore join

the Court's opinion.

Id. at 928-929 (O’Connor, J., concurring).

Justice O’Connor’s support of a “demanding”

threshold of intent for redistricting challenges likely drew

upon her experience as a state legislator personally

involved in redistricting — an experience that was, at the

time, unique on the Court.11 As Justice O’Connor

Justice O’Connor served as an Arizona State Senator during

three separate redistricting battles: the state’s court-driven

redistricting in 1970; see Klahr v. Williams, 313 F. Supp. 148 (D.

11

18

recognized, it is impossible for those who are familiar with

communities, and who are tasked with determining

representation for those communities, to ignore their own

understanding of the communities’ demographic

composition. As she wrote:

[R]edistricting differs from other kinds of

state decisionmaking in that the legislature

always is aware of race when it draws district

lines, just as it is aware of age, economic

status, religious and political persuasion, and a

variety of other demographic factors. That

sort of race consciousness does not lead

inevitably

to

impermissible

race

discrimination. As Wright [v. Rockefeller, 376

U.S. 52 (1964)] demonstrates, when members

of a racial group live together in one

community, a reapportionment plan that

concentrates members of the group in one

district and excludes them from others may

reflect wholly legitimate purposes.

Shaw, 509 U.S. at 646 (emphasis added).

Amici’s experience is consistent with Justice

O’Connor’s observations. We were chosen to serve on our

respective state commissions in part based on our

familiarity with local communities, and in part based on

our commitment to listen to members of those

communities. That includes an understanding of the

demographic composition of those communities, including

Ariz. 1970), aff’d sub nom. Ely v. Klahr, 403 U.S. 108 (1971); H.B. 1,

29th Gen. Assemb., 1st Spec. Sess. (Ariz. 1970); the state’s

redistricting in 1971, following the next Census, see H.B. 1, 30th

Gen. Assemb., 1st Spec. Sess. (Ariz. 1971); S.B. 2, 30th Gen.

Assemb., 1st Spec. Sess. (Ariz. 1971), Klahr v. Williams, 339 F.

Supp. 922 (D. Ariz. 1972); and the state’s 1972 remedial redrawing

of state legislative lines after litigation, see S.B. 1333, 30th Gen.

Assemb., 2d Reg Sess., ch. 173 (Ariz. 1972).

19

the local mix of race and ethnicity. We understand that

legislators who draw district lines in other states are no

less familiar with the communities they represent. We

are unable to unlearn what we know.

Amici who served in Arizona and California in the

2010 redistricting cycle drew district plans that were

substantively challenged in court, but none of these

challenges were meritorious or successful. Vandermost v.

Bowen, 53 Cal.4th 421, 486 (Cal. 2012) (petition denied);

Radanovich v. Bowen, No. S196852 (Cal. Oct. 26, 2011)

(petition denied); Radanovich v. Bowen, No. 2:11-cv09786, 2012 WL 13012647, at *3 (C.D. Cal. Feb. 9, 2012)

(Rule 12 dismissal order); Harris v. Ariz. Ind.

Redistricting Comm’n, 578 U.S. 253, 265 (2016)

(unanimous affirmance). Amici in California who served

in the 2020 redistricting cycle drew district plans that

were not challenged in court at all; amici in Colorado who

served in the 2020 redistricting cycle (and our

counterparts on the congressional commission) drew

district plans that were, pursuant to the state constitution,

subject to automatic review by the state Supreme Court,

but were not otherwise challenged. In re Colo. Ind. Cong.

Redistricting Comm’n, 497 P.3d 493 (Colo. 2021); In re

Colo. Ind. Legis. Redistricting Comm’n, 513 P.3d 352

(Colo. 2021). That litigation record is something of an

anomaly nationwide, and we are proud of that record.

However, amici fear that relaxing the “demanding”

predominance threshold would invite far more litigation

and that such litigation would be far more intrusive even

when substantively unwarranted. Moreover, in addition

to the wave of likely litigation over each municipal district

attuned to neighborhood or local community boundaries,

each such case over congressional or state legislative

districts would be subject to direct appeal to this Court.

28 U.S.C. §§ 2284(a); 1253.

20

At the moment, because litigants challenging district

plans drawn by legislators must prove that race

predominated over partisan objectives, those challengers

must proffer a substitute map that demonstrates how the

State could have achieved its partisan objectives with less

reliance on race. Alexander, 602 U.S. at 34–36. The

absence of such a map provides a critical inference —

“dispositive in many, if not most, cases,” id. at 35 — that

race did not in fact predominate. Though amici and those

serving on similar independent commissions are often

precluded from drawing districts to favor or disfavor

candidates or parties, see, e.g., Ariz. Const. art. IV, pt. 2, §

1(15); Cal. Const. art. XXI, § 2(e); Colo. Const. art. V, §§

44(3)(b)(IV), 44.3(4)(a), 46(3)(b)(IV), 48.1(4)(a), we

presume that challengers in such States would, in

practice, have to produce a similar substitute map

demonstrating how we could have achieved our

nonpartisan objectives with less reliance on race.

That evidentiary threshold provides a measure of

insulation, including protection for good-faith linedrawers

who have presumably drawn the “vast majority” of

districts, in Justice O’Connor’s language, “in accordance

with their customary districting principles,” Miller, 515

U.S. at 928 (O’Connor, J., concurring), against litigants

disgruntled by the results of legitimate districting

choices, and seeking a new venue to re-engage fights lost

in the public forum.

Conversely, if a district’s

constitutionality were no longer dependent on a showing

of racial predominance, and were instead subject to a

standard of purported race-blindness or but-for intent (or

a lower threshold), every district in which race or

ethnicity were modestly correlated with non-racial factors

would be subject to repeated legal challenges all but

impossible to defend. As Justice O’Connor recognized,

mapmakers cannot unknow the demographic composition

of their communities. That fact alone would render every

21

district suspect — municipal, state, congressional alike —

and not merely for districts in which racial minorities

happen to constitute a majority. Any district’s racial

profile, and therefore every district’s racial profile, would

render it subject to attack. Was district 1 drawn to

provide more coherent representation to an agricultural

or industrial or technology sector or because of the

particular racial mix of the district? Was district 2 drawn

to provide more coherent representation to tenants or

homeowners or commuters or because of the particular

racial mix of the district? Was district 3 drawn to provide

more coherent representation to a particular constellation

of towns with common challenges or school districts with

common needs or because of the particular racial mix of

the district? Any acknowledgment by mapmakers of

familiarity with the demography achieved through

experience will become fodder for litigation claiming that

knowledge amounts to impermissible intent. Successfully

defending against such challenges would effectively

require districts to be drawn by those who are unfamiliar

with the communities in question, to the ultimate

detriment of those communities and turning the very

rationale for district-based representation on its head.

22

*****

CONCLUSION

Amici take no position on the resolution of the

question presented as it pertains to Louisiana’s

intentional creation of a second majority-minority

congressional district. But amici urge this Court to

decide this case consistent with the Court’s wellconsidered and practical precedent, precluding the

predominant consideration of race when based on

stereotypes and unfounded assumptions but recognizing,

as Justice O’Connor did, that just because “race

consciousness” is inescapable in mapmaking, it “does not

lead inevitably to impermissible race discrimination,”

where there is rigorous fact-based attention to local

conditions and context.

Respectfully submitted.

JUSTIN LEVITT

919 Albany Street

Los Angeles, CA 90015

(213) 736-7417

JOHN A. FREEDMAN

Counsel of Record

NANCY L. PERKINS

ARNOLD & PORTER

KAYE SCHOLER LLP

601 Massachusetts Avenue, NW

Washington, DC 20001

(202) 942-5000

john.freedman@arnoldporter.com

SEPTEMBER 2025