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

Nos. 24-109, 24-110

In the Supreme Court of the United States

LOUISIANA,

v.

PHILLIP CALLAIS, ET AL.,

PRESS ROBINSON, ET AL.,

v.

PHILLIP CALLAIS, ET AL.,

Appellant,

Appellees.

Appellants,

Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF LOUISIANA

BRIEF OF AMICUS CURIAE GOVERNOR

JEFF LANDRY IN SUPPORT OF

APPELLANT LOUISIANA

JASON TORCHINSKY

KELLEN DWYER

ELIZABETH PRICE FOLEY

DREW C. MARVEL

HOLTZMAN VOGEL BARAN

TORCHINSKY & JOSEFIAK,

PLLC

2300 N STREET NW, SUITE 643

WASHINGTON, DC 20037

GOVERNOR JEFF LANDRY

COUNSEL OF RECORD

ANGELIQUE FREEL

JEFFREY WALE

EXECUTIVE OFFICE OF THE

GOVERNOR

PO BOX 94004

BATON ROUGE, LA 70804

(225) 342-0991

LANDRYJ@LA.GOV

LEGAL PRINTERS LLC ! Washington, DC ! 202-747-2400 ! legalprinters.com

TABLE OF CONTENTS

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

INTERESTS OF AMICUS CURIAE ......................... 1

INTRODUCTION AND SUMMARY OF

ARGUMENT .............................................................. 3

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

I.

Louisiana’s Experience Shows That Gingles

is Unworkable and Regularly Requires States to

Engage

in

Unconstitutional

Racial

Gerrymandering. .................................................... 5

A.

Congressional Districting ............................ 5

B.

State Judicial Redistricting ....................... 15

II.

Because It Is Flawed in Theory and

Unworkable in Practice, Gingles Should Be

Overruled. ............................................................. 22

A. Gingles Is Unworkable Because It Requires

States to Risk Equal Protection Clause Liability

in Order to Avoid VRA Liability. ...................... 23

B. Stare Decisis Does Not Require Courts to

Retain Precedents that Are Flawed in Theory

and Unworkable in Fact. .................................. 28

III.

Gingles Should Be Replaced with a Workable

Standard that is Consistent with the Equal

Protection Clause.................................................. 32

CONCLUSION ..................................................... 34

i

TABLE OF AUTHORITIES

Cases

Page(s)

Abbott v. Perez,

585 U.S. 579 (2018) ...............................................22

Allen v. Louisiana,

No. 24-30237, 2024 U.S. App. LEXIS 26706 (5th

Cir. Aug. 19, 2024) ................................................22

Allen v. Milligan,

599 U.S. 1 (2023) ........ 14, 23, 24, 25, 26, 27, 29, 30,

31, 33, 34

Ardoin v. Robinson,

142 S. Ct. 2892 (2022) .....................................11, 12

Ardoin v. Robinson,

143 S. Ct. 2654 (2023) ...........................................12

Bartlett v. Strickland,

556 U.S. 1 (2009) ....................................... 17, 32, 33

Bendix Autolite Corp. v. Midwesco Enters., Inc.,

486 U.S. 888 (1988) ...............................................26

Bush v. Vera,

517 U.S. 952 (1996) ................................... 17, 22, 27

Callais v. Landry,

732 F. Supp. 3d 574 (W.D. La. 2024) ..... 12, 13, 14, 15

Chisom v. Edwards,

342 F.R.D. 1 (E.D. La. 2022) .................................21

ii

Chisom v. Jindal,

890 F. Supp. 2d 696 (E.D. La. 2012) .....................21

Chisom v. Louisiana ex rel. Landry,

116 F.4th 309 (5th Cir. 2024) ...............................21

Chisom v. Roemer,

501 U.S. 380 (1991) .........................................20, 21

Clark v. Edwards,

725 F. Supp. 285 (M.D. La. 1988) .........................15

Clark v. Roemer,

777 F. Supp. 445 (M.D. La. 1990) ...................15, 16

Cooper v. Harris,

581 U.S. 285 (2017) ...............................................13

Dobbs v. Jackson Women's Health Org.,

597 U.S. 215 (2022) ................................... 28, 29, 32

Fusilier v. Landry,

963 F.3d 447 (5th Cir. 2020) ...........................19, 20

Georgia v. Ashcroft,

539 U.S. 461 (2003) ...............................................17

Hall v. Louisiana,

108 F. Supp. 3d 419 (M.D. La. 2015) ..............18, 19

Hall v. Louisiana,

884 F.3d 546 (5th Cir. 2018) ..................... 17, 18, 19

iii

Hays v. Louisiana,

936 F. Supp. 360 (W.D. La. 1996) .......... 5, 6, 7, 8, 9,

11, 17

Hays v. Louisiana,

839 F. Supp. 1188 (W.D. La. 1993) .................5, 6, 7

Hays v. Louisiana,

862 F. Supp. 119 (W.D. La. 1994) .......................7, 8

Johnson v. De Grandy,

512 U.S. 997 (1994) ...............................................17

La. State Conf. of the NAACP v. Louisiana,

490 F. Supp. 3d 982 (M.D. La. 2020) ....................22

La. State Conf. of the NAACP v. Louisiana,

No. 19-479-JWD-SDJ, 2024 U.S. Dist. LEXIS

39003 (M.D. La. Mar. 6, 2024) ........................21, 22

League of United Latin Am. Citizens v. Perry,

548 U.S. 399 (2006) ....................... 17, 22, 23, 24, 27

Merrill v. Milligan,

142 S. Ct. 879 (2022) .............................................29

Miller v. Johnson,

515 U.S. 900 (1995) ...........................................4, 27

Montejo v. Louisiana,

556 U.S. 778 (2009) ...............................................28

Parents Inv. in Cmty. Sch. v. Seattle Sch. Dist. No. 1,

551 U.S. 701 (2007) .................................................4

iv

Payne v. Tennessee,

501 U.S. 808 (1991) .........................................28, 29

Pearson v. Callahan,

555 U.S. 223 (2009) ............................. 28, 29, 30, 31

Planned Parenthood v. Casey,

505 U.S. 833 (1992) ...............................................28

Prejean v. Foster,

83 Fed. App’x. 5 (5th Cir. 2003) ......................16, 17

Prejean v. Foster,

227 F.3d 504 (5th Cir. 2000) ..................... 14, 15, 16

Ramos v. Louisiana,

590 U.S. 83 (2020) .................................................32

Richmond v. J.A. Croson Co.,

488 U.S. 469 (1989) .................................................4

Robinson v. Ardoin,

37 F.4th 208 (5th Cir. 2022) .................................11

Robinson v. Ardoin,

605 F. Supp. 3d 759 (M.D. La. 2022) ................6, 11

Robinson v. Ardoin,

86 F.4th 574 (5th Cir. 2023) .........................1, 2, 12

Robinson v. Callais,

144 S. Ct. 1171 (2024) ...........................................15

v

Rucho v. Common Cause,

588 U.S. 684 (2019) ...............................................31

Saucier v. Katz,

533 U.S. 194 (2001) ...............................................30

Shaw v. Reno,

509 U.S. 630 (1993) ...........................................6, 27

Shelby Cnty. v. Holder,

570 U.S. 529 (2013) ...............................................33

Swift & Co. v. Wickham,

382 U.S. 111 (1965) .........................................28, 29

Terrebone Parish Branch NAACP v. Piyush "Bobby"

Jindal,

274 F. Supp. 3d 395 (M.D. La. 2017) ....................19

Thornburg v. Gingles,

478 U.S. 30 (1986) .................. 3-5, 15, 18, 20, 22-34

United States v. Hays,

515 U.S. 737 (1995) .................................................8

Vieth v. Jubelirer,

541 U.S. 267 (2004) .........................................23, 31

Voinovich v. Quilter,

507 U.S. 146 (1993) ...............................................17

Wis. Legis. v. Wis. Elections Comm’n,

595 U.S. 398 (2022) ...............................................23

vi

Other Authorities

CONG. RESEARCH SERV., Hurricane Katrina: SocialDemographic Characteristics of Impacted Areas

(Nov. 4, 2005) ............................................................10

Ellen D. Katz et al., Documenting Discrimination in

Voting: Judicial Findings Under Section 2 of the

Voting Rights Act Since 1982, 39 U. MICH. J.L.

REFORM 643 (2005) ...................................................25

J. Chen & N. Stephanopoulos, The Race-Blind Future

of Voting Rights, 130 YALE L. J. 862 (2021) ........... 29, 30

U.S. DEP’T OF JUSTICE, CIVIL RIGHTS DIVISION, Status

of Statewide Redistricting Plans .............................10

vii

INTERESTS OF AMICUS CURIAE 1

Jeff Landry, Governor of the State of

Louisiana, respectfully submits this brief as amicus

curiae in support of Appellant Louisiana.

Currently serving as Louisiana’s chief

executive and with more than a decade of experience

holding elected public office in the State, Governor

Landry has a deeply vested and personal interest in

the outcome of this case. As the 45th Attorney General

of Louisiana from 2016 to 2024, Governor Landry

represented the State throughout proceedings in the

first round of litigation challenging Louisiana’s 2022

congressional redistricting plan under Section 2 of the

Voting Rights Act, Robinson v. Ardoin. See 86 F.4th

574 (5th Cir. 2023). While appellate proceedings were

still pending before the Fifth Circuit Court of Appeals

in Robinson, Louisiana’s voters elected him to serve

as the State’s Governor. He assumed office on

January 7, 2024.

In the interim between the October election

and his inauguration, the Fifth Circuit handed down

its decision in Robinson, giving the newly elected

Governor and the new Legislature only two weeks

from inauguration to draw a new congressional map.

See id.

1 The law firm Holtzman Vogel Baran Torchinsky Josefiak PLLC

was counsel for the State at the trial in Callais v. Landry and

assisted with the preparation of this brief. No person or entity

other than amicus, its members, or its counsel made a monetary

contribution intended to fund the preparation or submission of

this brief.

1

Following that decision, and under the threat

of a district court judge drawing Louisiana’s second

majority-Black district and impacting all six of

Louisiana’s congressional districts in the remedy

phase, the Governor issued the call for the Louisiana

Legislature to convene in an extraordinary session for

purposes of redistricting. Louisiana’s Constitution

requires a seven-day notice for the extraordinary

session. Though Governor Landry issued the call on

his first day in office, the Louisiana Legislature had

only one week to draw a new congressional map in

compliance with Robinson.

The extraordinary legislative session gave rise

to S.B. 8, and Governor Landry signed it into law on

January 22, 2024. With S.B. 8 now being declared an

unconstitutional racial gerrymander, the State of

Louisiana is once again being asked to reconcile

inherently contradictory decisions from two separate

federal courts as it has for many decades. Despite

good faith attempts to follow the law and court

decisions, Louisiana has not been able to establish a

workable pathway between the requirements of U.S.

Constitution, which requires law makers to be raceblind, and Section 2, which requires law makers to

engage in race-conscious redistricting.

For the past forty years, Louisiana, like other

states, has been forced to suffer the legal, economic,

and political consequences of the tension created by

conflicting precedents construing the Equal

Protection Clause and Section 2 of the Voting Rights

Act of 1965 (VRA). Governor Landry has an interest

2

in freeing Louisiana from this never-ending cycle of

alternating liability, and in ensuring stability of the

State’s electoral process.

INTRODUCTION AND SUMMARY OF

ARGUMENT

Louisiana’s past is replete with instructions

from federal courts and the Justice Department to

create additional majority-minority districts in order

to comply with Section 2. Yet, each time the State

attempted to do so, it has resulted in racial

gerrymandering lawsuits. This endless cycle of

litigation has involved electoral maps used to elect the

state’s congressional, legislative, judicial, and even

local representatives. The collateral damage of these

legal battles has fallen on Louisiana’s citizens, who

have lost control of their democratic processes, and

expended tens of millions of dollars in legal fees.

The fundamental problem is not the State, the

litigants, or the judges; it is the conflict between the

Fourteenth Amendment’s demand of colorblind

government and the color-conscious construction

given to Section 2 in Thornburg v. Gingles, 478 U.S.

30 (1986). Gingles routinely puts state legislatures in

a position where they must hit a quota of majorityminority districts or face VRA litigation that is likely

to result in a federal court demanding that districts

be redrawn on the eve of elections, disrupting the

process, confusing voters, and bleeding taxpayer

dollars. Given that Hobson’s choice, few could fault a

state for ensuring that their electoral map contains

sufficient majority-minority districts to avoid costly

VRA litigation. But attempting to immunize a state

3

from VRA litigation inevitably exposes it to Equal

Protection Clause litigation. After all, any attempt to

hit a number of majority-minority districts

supposedly required by Gingles necessarily creates a

litigable question as to whether “race was the

predominant factor motivating” the legislature’s

electoral map in violation of the Equal Protection

Clause. Miller v. Johnson, 515 U.S. 900, 916 (1995).

This creates a seesaw-like exercise that should be in

plain sight to the Court.

This brief provides a case study of Louisiana’s

unenviable experience with redistricting litigation,

illustrating the unworkability of Gingles and the

perverse incentives it creates. The lesson of this failed

experiment is this: “[t]he way to stop discrimination

on the basis of race is to stop discriminating on the

basis of race.” Parents Involved in Cmty. Sch. v.

Seattle Sch. Dist. No. 1, 551 U.S. 701, 748 (2007)

(plurality opinion). The current system—under which

states are liable under the Equal Protection Clause if

they consider race too much and liable under Section

2 per the Gingles framework if they consider race too

little—is unworkable and morally hazardous. This

Court should overrule Gingles and realign its reading

of the Voting Rights Act with the Equal Protection

Clause, so that both insist on “[t]he moral imperative

of racial neutrality[.]” Richmond v. J.A. Croson

Co., 488 U.S. 469, 518 (1989) (Kennedy, J., concurring

in part and concurring in judgment).

4

ARGUMENT

I.

Louisiana’s Experience Shows That

Gingles is Unworkable and Regularly

Requires

States

to

Engage

in

Unconstitutional Racial Gerrymandering.

A. Congressional Districting

The 1990s redistricting cycle marked the first

time Louisiana redrew its electoral maps in the

Gingles era. The corrosive effects of that decision’s

race-based commands were immediately evident.

Following the 1990 census, the state’s congressional

delegation had been reduced from eight to seven and,

at that time, it was subject to preclearance under §

4(b) of the Voting Rights Act. Hays v. Louisiana, 936

F. Supp. 360, 362 (W.D. La. 1996) (“Hays III”). Having

failed to pass a congressional redistricting plan in

1991, the legislature needed to pass a plan in its 1992

session that could quickly secure approval from the

U.S. Department of Justice (“USDOJ”) so the map

could be implemented in the upcoming 1992

congressional election. Hays v. Louisiana, 839 F.

Supp. 1188, 1196-97 (W.D. La. 1993) (“Hays I”).

The USDOJ made clear to Louisiana that, to

satisfy Gingles, their congressional map would need

to establish at least two safe majority-Black districts

to obtain preclearance. Id. n.21. Heeding this

directive, the Legislature enacted a map adding an

additional majority-Black district and, as promised,

5

the map was pre-cleared by the USDOJ. 2 A coalition

of Black, White, and Asian voters residing in District

4 and District 6 promptly challenged the plan as

violating the Fourteenth and Fifteenth Amendments

and Section 2 of the VRA. Id. at 1191-92. Indicative of

how

complicated

and

mercurial

race-based

redistricting precedents already were at that time,

the case had to be re-briefed and argued before the

district court in light of the U.S. Supreme Court’s new

racial gerrymandering decision, Shaw v. Reno, 509

U.S. 630 (1993). Hays I, 839 F. Supp. at 1192-93.

In December 1993, the federal district court

struck down the State’s map as an unconstitutional

racial gerrymander in violation of the Equal

Protection Clause. Id. at 1191. Finding District 4

drawn with the specific intent to create a second

majority-Black district, the court applied strict

scrutiny as directed by Shaw. Id. at 1205. While the

court assumed that compliance with the VRA was a

compelling interest, it held that the plan was not

narrowly tailored because it engaged in “more

constitutionally

suspect

segregation

than

necessary[.]” Id. at 1207. In other words, Louisiana

did not racially gerrymander “right.” Id. at 1191.

2 Particularly relevant to the litigation today, the new majority-

Black district created—District 4—“slashed a giant but

somewhat shaky ‘Z’ across the state,” loosely resembling many

of the remedial districts proposed by the plaintiffs in this

decade’s litigation. See Hays I, 839 F. Supp. at 1199-1200; Hays

III, 936 F. Supp. at 373; Robinson v. Ardoin, 605 F. Supp. 3d 759,

779-85 (M.D. La. 2022).

6

Here is the Hays I Plan:

While its appeal was still pending, Louisiana

enacted a new map that aimed to satisfy both the

USDOJ’s demand for a second majority-minority

district and the court’s insistence that the State

engage in no more racial segregation than necessary.

See id. at 1208-09.

The resulting map contained a second

majority-Black district resembling an “inkblot”

spread across the State that was quickly approved by

the USDOJ, prompting a remand. See Hays III, 936

F. Supp at 365, 374. But the district court again

struck down the State’s plan as an unconstitutional

racial gerrymander. Hays v. Louisiana, 862 F. Supp.

119, 121 (W.D. La. 1994). (“Hays II”).

This time, the district court found that the

State’s racial gerrymander was unjustified because

7

there was no “basis in law or fact to believe that the

Voting Rights Act required the creation of two

majority-minority districts,” id. at 124 (emphasis in

original), even though the USDOJ had explicitly told

Louisiana that the VRA required just that.

Here is the Hays II Plan:

This Court vacated the district court’s Hays II

decision on procedural grounds, United States v.

Hays, 515 U.S. 737 (1995), prompting yet another

remand. The district court struck the plan down yet

again in January 1996, reiterating its conclusion from

Hays II that the VRA did not require a second

majority-Black district. Hays III, 936 F. Supp. at 371.

After nearly five years of litigation ping-pong

between district and appellate courts, it was clear

that Louisiana was caught hopelessly between

irreconcilable directives of the court, the USDOJ, and

the U.S. Constitution. Ultimately, the district court

8

took it upon itself to order the interim congressional

plan it had drawn following Hays II to be used for

future elections. Id. at 372. The court’s plan, drawn

without any need to consider the inherent political

considerations that states must balance when

redistricting, included a highly contorted, admittedly

race-driven, majority-Black District 2 that, if drawn

by Louisiana, would surely have invited legal

challenge. Id. at 372, 378-79. But with the court

having declared its use of race a requirement of the

“Constitution and fairness,” the map remained in

effect for the decade. The congressional plan drawn by

the district court resulted in two Democrats being

elected to Congress, one white and one black. District

2 in this map around New Orleans was approximately

60.99% Black, and all other districts were less than

33% Black. Hays III, 936 F. Supp. at 377.

Here is the resulting Hays III Plan:

9

Following the 2000 census, Louisiana had a

stable population and was able to enact most of its

redistricting plans with minimal changes from the

prior decade’s plans. 3 For the 2010 census, Louisiana

had significant population losses and population

shifts, predominantly caused by Hurricane Katrina’s

devastation, which reduced Louisiana’s congressional

delegation (to its current number of six). 4 As a result

of these losses and redistribution of population, the

State could not support the second majority-Black

district created following the Hays litigation. Even

the

USDOJ,

notorious

for

exceeding

the

constitutional bounds of the VRA, granted

preclearance to Louisiana’s congressional plan on

August 1, 2011. 5

Although Louisiana’s congressional districts

were spared litigation during the 2000 and 2010

censuses, this stability was not attributable to any

change in behavior by Louisiana or a sudden

emergence of precedential clarity. Moreover, as

described in detail in subsection I.B. below, Louisiana

continued to face a deluge of redistricting litigation

3 See generally U.S. DEP’T OF JUSTICE, CIVIL RIGHTS DIVISION,

Status of Statewide Redistricting Plans, available at

https://web.archive.org/web/20101129180510/http:/www.justice.

gov/crt/voting/sec_5/statewides.php.

4 See generally CONG. RESEARCH SERV., Hurricane Katrina:

Social-Demographic Characteristics of Impacted Areas (Nov. 4,

2005),

available

at

https://www.congress.gov/crs_external_products/RL/PDF/RL33

141/RL33141.3.pdf.

5 See U.S. DEP’T OF JUSTICE, CIVIL RIGHTS DIVISION, Status of

Statewide

Redistricting

Plans,

available

at

https://www.justice.gov/crt/status-statewide-redistricting-plans.

10

during this period relating to its state judicial

districts.

In 2022, the Louisiana State Legislature

passed new congressional and state legislative maps

that

largely mirrored the prior decade’s maps

approved by the DOJ. See Robinson v. Ardoin, 605 F.

Supp. 3d 759, 768 (M.D. La. 2022). Nonetheless, the

same day the new maps were approved, the Robinson

and Galmon plaintiffs sued, claiming that Section 2

required a second majority-Black district. Id. at 76869.

The district court scheduled a preliminary

injunction hearing for May 2022. Id. at 769. The

State, fearful of having to redo proceedings mooted by

shifting precedents, moved to postpone the hearing

until this Court issued its decision in Merrill v.

Milligan, but the district court charged ahead. Id.

Following the hearing, the district court found that

plaintiffs were likely to prevail on their vote dilution

claim and granted a preliminary injunction on June

6, 2022. Id. at 766-67. Ironically, many of the

illustrative maps to create a second majority-Black

district loosely resemble the “Z” district struck down

in Hays as a racial gerrymander. See id. at 779-85; cf.

Hays III, 936 F. Supp. at 373.

The district court gave the State a deadline of

just two weeks to enact a remedial plan containing an

additional majority-Black district, and the Fifth

Circuit denied the State’s request for a stay. Robinson

v. Ardoin, 37 F.4th 208, 232 (5th Cir. 2022). The State

sought an emergency stay from this Court, which

11

granted the stay and treated Louisiana’s request as

an application for certiorari before judgment, granted

it, and held the case in abeyance pending decision in

Milligan. Ardoin v. Robinson, 142 S. Ct. 2892 (2022).

After issuing its decision in Milligan nearly a year

later, this Court remanded Robinson for further

proceedings. Ardoin v. Robinson, 143 S. Ct. 2654

(2023).

The State’s appeal of the preliminary

injunction resumed, supplemental briefing was

conducted, and the Fifth Circuit, applying Milligan,

found no clear error with the district court’s decision,

albeit conceding the plaintiffs’ arguments had

weaknesses. Robinson v. Ardoin, 86 F.4th 574, 598-99

(5th Cir. 2023). Since the 2022 election had passed,

there was no longer sufficient urgency to justify

preliminary relief, so the Circuit vacated the

injunction and gave the Legislature a perplexing

choice: It could keep the enacted plan and proceed to

trial on its merits, or it could enact a new plan within

two months, which would be subject to any legal

challenges the plaintiffs might bring. Id. at 601-02.

Louisiana chose to enact a new congressional

map. The Legislature embarked on several days of

intense legislative compromise attempting to balance

the remedial order’s directive, this Court’s discussion

in Milligan, and complex political dynamics among

the

State’s

legislators.

Louisiana’s

second

congressional map, S.B. 8, was signed into law on

January 22, 2024, and contained the second majorityBlack district demanded by the Robinson district

court. To no one’s surprise, S.B. 8 was promptly

12

challenged by a new set of plaintiffs as an

unconstitutional racial gerrymander. Callais v.

Landry, 732 F. Supp. 3d 574, 581-82 (W.D. La. 2024).

The Callais plaintiffs alleged that District 6, the new

majority-Black district drawn to satisfy the Robinson

court’s remedial demands under Section 2, violated

the Equal Protection Clause. Id. at 582. A trial was

quickly held and on April 30, 2024, a three-judge

panel of the U.S. District Court for the Western

District of Louisiana agreed with the plaintiffs,

striking down the State’s second congressional map

under the Fourteenth Amendment. Id.

Louisiana’s central argument at trial was that

politics, not race, was the primary consideration when

drawing District 6. Id. at 599. It argued the Robinson

decision may have required the State to create an

additional majority-Black district, but District 6 was

drawn primarily and specifically to protect three

Republican incumbents: the Speaker of the U.S.

House Mike Johnson, the U.S. House Majority Leader

Steve Scalise, and Representative Julia Letlow. Id.

Recognizing the Legislature’s “undisput[able]” mixed

motives and cognizant of this Court’s precedent that

“political and racial reasons are capable of yielding

similar oddities in a district’s boundaries,” the district

court nevertheless concluded that race outweighed

politics and strict scrutiny applied. Id. at 599, 602,

606 (quoting Cooper v. Harris, 581 U.S. 285, 308

(2017)).

The State argued that S.B. 8 was narrowly

tailored to serve the compelling interest of complying

with Section 2, citing the Robinson court’s decision

13

that the VRA required a second majority-Black

district. Id. at 607. The three-judge panel rejected this

argument, however, finding that the population

covered by District 6 was not sufficiently

“[geographically] compact to constitute a majority in

a reasonably configured district.” Id. at 608, 610

(quoting Allen v. Milligan, 599 U.S. 1, 18 (2023)). The

court cited this Court’s holding that Section 2 “never

require[s] the adoption of districts which violate

traditional redistricting principles” and found that

“based on the record, outside of southeast Louisiana,

the State’s Black population [was] dispersed.” Id. at

608, 610 (quoting Allen, 599 U.S. at 29-30). Because

of this dispersed population, the court observed, the

state had to strain to draw a second majority-minority

district as a “‘bizarre’ 250-mile-long slash-shaped

district that functions as a majority-minority district

only because it severs and absorbs majority-minority

neighborhoods from cities and parishes all the way

from Baton Rouge to Shreveport.” Id. at 610.

The

panel’s

decision

laid

bare

the

inconsistencies between federal courts—even federal

courts within Louisiana—endeavoring to apply the

same precedents. When the State had previously

created an oddly shaped, 75% Black subdistrict to

settle Section 2 litigation, the Fifth Circuit held strict

scrutiny did not apply because the Legislature’s

primary purpose was incumbent protection, not race.

See Prejean v. Foster, 227 F.3d 504, 508, 519-20 (5th

Cir. 2000); infra at Part I.B. But in Callais, facing a

near identical situation with arguably stronger

evidence of the Legislature’s predominantly political

intent, the court concluded that race predominated

14

and applied strict scrutiny. See 732 F. Supp. 3d at

606. And the Callais court held that the Robinson

court’s conclusion—that the lack of a second majorityminority district likely violated Section 2—was not a

sufficient basis to justify the State’s use of race to

create such a district. Id. at 607-08.

The district court gave the State until June 4,

2024, to enact its third congressional map (in less

than four years), prompting Louisiana to seek yet

another emergency stay from this Court, which was

granted on May 15, 2024. Robinson v. Callais, 144 S.

Ct. 1171. Now, nearly sixteen months later, the State

remains without clear and workable standards

against which it can organize its political system and

reclaim the democratic control of its elections that is

promised by Article I of the Constitution.

B. State Judicial Redistricting

Even when Louisiana’s new congressional

districts were spared, judicial maps kept the State

mired in prolonged federal litigation. On the heels of

Gingles in 1986, Louisiana’s multi-member and

circuit-wide judicial election system was challenged

and found to dilute black voting strength in violation

of Section 2. Clark v. Edwards, 725 F. Supp. 285, 302

(M.D. La. 1988). The district court found that

subdistricts were required in identified districts to

satisfy Section 2. See Clark v. Roemer, 777 F. Supp.

445, 468-69 (M.D. La. 1990). The parties eventually

settled, agreeing that fifteen judicial districts—the

eleven identified in the district court’s order, plus four

other districts that had been unsuccessfully

15

challenged, would be revised to include majorityBlack subdistricts. See Prejean, 227 F.3d at 508.

One of the districts changed by the settlement

was the 23rd JDC, which was not covered by the

remedial order in Clark because the district court had

ruled plaintiffs failed to establish a Section 2 violation

there. See Clark, 777 F. Supp. at 460. The remedial

plan divided the 23rd JDC into two subdistricts: one

that was 75% Black electing one judge, and the other

80% White electing the remaining four judges.

Prejean, 227 F.3d at 508.

Once again, the State’s efforts to comply with

the race-conscious demands of Section 2 promptly

triggered a racial gerrymandering challenge. White

voters in the 23rd JDC argued that race was the “sole

and singular motivation” for the subdistricts’

creation. Id. at 509. The State defended the

subdistricts as narrowly tailored to meet the

compelling interests of complying with Sections 2 and

5 of the VRA and ending the lengthy Clark litigation.

Id. The Fifth Circuit held that the challenged district

was created to settle the Section 2 Clark litigation and

appease the USDOJ’s preclearance demands which

“strongly suggest[ed] that traditional districting

principles

were

subordinated

to

racial

considerations.” Id. at 511. It further questioned

whether the State had a compelling interest in

complying with Section 2 because evidence of a

Section 2 violation was insufficient. Id. at 515. On

remand, the district court upheld the 23rd JDC,

finding that race was not the predominant

consideration and, again, plaintiffs appealed to the

16

Fifth Circuit. Prejean v. Foster, 83 Fed. App’x. 5, 8

(5th Cir. 2003). This time, the Fifth Circuit affirmed,

agreeing that race was not the main factor driving

creation of the 23rd JDC, but rather the reelection of

incumbents. Id. at 10.

After seventeen years, Louisiana’s State

judicial election maps had been freed from the tangled

web of liability but the extensive litigation left the

state with more questions than answers. In Hays III,

for example, the court required evidence of a Section

2 violation to justify the intentional creation of a

majority-Black remedial district, 936 F. Supp. at 371.

But in Prejean, the intentional creation of a majorityBlack district was upheld even though a Section 2

violation was not established. 83 Fed. App’x. at 11.

Louisiana was not alone in its confusion.

Courts nationwide struggled to properly parse and

adjudicate voter dilution and equal protection claims,

generating a constant stream of decisions from this

Court attempting to clarify what its previous Section

2 or equal protection precedents did or did not say. 6

As Louisiana experienced first-hand with its judicial

map litigation, lawsuits are extended for years as

claims are repeatedly appealed, remanded, and relitigated amidst ever-shifting precedential sands.

Since 1993, judges were elected to the Baton

6 See, e.g., Voinovich v. Quilter, 507 U.S. 146 (1993); Johnson v.

De Grandy, 512 U.S. 997 (1994); Bush v. Vera, 517 U.S. 952

(1996); Georgia v. Ashcroft, 539 U.S. 461 (2003), League of

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

v. Strickland, 556 U.S. 1 (2008).

17

Rouge City Court under a “2-3” election system that

divided the city into two ‘election sections,’ a majorityBlack Section 1 containing two subdistricts and a

majority-White

Section

2

containing

three

subdistricts, which consistently resulted in the

election of two black judges and three white judges.

Hall v. Louisiana, 884 F.3d 546, 548 (5th Cir. 2018).

After the 2010 census showed the city’s demographics

had gone from 43.9% Black and 53.9% White in 1993

to 54.5% Black and 39.4% White, two Black city voters

filed suit alleging the Baton Rouge City Court’s “2-3”

districting system diluted Black voting strength in

violation of Section 2. Id.; Hall v. Louisiana, 108 F.

Supp. 3d 419, 431 (M.D. La. 2015). 7

The district court rejected the plaintiffs’ claims,

id. at 423, concluding that plaintiffs satisfied Gingles’

first and second preconditions by demonstrating that

Baton Rouge’s Black population was sufficiently large

and compact to support an additional, reasonably

configured district and that the city’s Black

population was politically cohesive. Id. at 429, 434.

The third Gingles precondition was not satisfied,

however, because there was insufficient evidence that

the city’s White majority sufficiently voted as a bloc

such that it usually defeated the Black voters’

preferred candidate. Id. at 437 (emphasis in original).

Shortly after the district court’s decision and

before plaintiffs had appealed, the Legislature

Although the lawsuit also included claims under the

Fourteenth and Fifteenth Amendments, plaintiffs’ arguments

largely did not address these and instead focused primarily on

Section 2. See Hall, 108 F. Supp. 3d at 437.

7

18

enacted a law replacing the Baton Rouge City Court’s

“2-3” system with a new “2-1-1” system. Under the

new system, election sections one and two would each

elect two judges, respectfully, and the city would elect

one judge at-large. Id. Even though this change

ultimately mooted the claims, the case persisted until

2018 as Louisiana continued to litigate plaintiffs’

various procedural rulings and appeals. See Hall, 884

F.3d at 548, 553-54.

At the same time it was defending the Baton

Rouge City Court districting plan, Louisiana was also

litigating a Section 2 and constitutional challenge

brought against the at-large election method for the

state’s 32d Judicial District Court (32d JDC), which

has jurisdiction over Terrebone Parish. In 2014, a

group of Black voters filed a federal lawsuit alleging

the at-large election system diluted Black voting

strength and was maintained for a discriminatory

purpose in violation of the Fourteenth and Fifteenth

Amendments. See Terrebone Parish Branch NAACP

v. Piyush “Bobby” Jindal, 274 F. Supp. 3d 395, 406-07

(M.D. La. 2017).

The district court struck down the at-large

election system, finding that it diluted Black votes

and was maintained for a discriminatory purpose in

violation of Section 2 and the U.S. Constitution. See

Fusilier v. Landry, 963 F.3d 447, 453 (5th Cir. 2020).

Following two years of the remedial phase, the

district court adopted a special master-drawn plan

dividing the 32nd JDC into five single-member

districts, one of which was likely majority-Black. Id.

The Fifth Circuit reversed, finding significant errors

19

throughout the lower court’s decision. Id. at 467. The

appeals court cast serious doubt on the district court’s

assessment of the first Gingles precondition, citing

the remedial district’s non-compact, “contorted

horseshoe” shape that was necessary to achieve a 50%

plus one Black district amidst the parish’s overall

19% Black population. Id. at 457. It also questioned

the satisfaction of the second and third Gingles

preconditions, noting that the district court

improperly ignored evidence of a black judicial

candidate’s success and relied on outdated and nonjudicial election results to find racially polarized

voting. Id. at 458-59.

Despite the lower decision’s error-laden

analysis of the Gingles preconditions, the Fifth

Circuit concluded that reversal was unnecessary until

it reached the totality of circumstances inquiry. Id. at

459. Even though the district court had found seven

of the nine Zimmer factors weighed in favor of

plaintiffs, the Fifth Circuit viewed the same record as

presenting only a “marginal case” of vote dilution

given the weak support for the Gingles preconditions.

Id. at 459, 462. It took issue with the district court’s

failure to account for the “substantial [policy]

interest” Louisiana had in retaining at-large elections

for its judges and, citing evidence of low voter turnout,

questioned whether the proposed remedial district

would even sufficiently enhance Black voters’ ability

to elect candidates of their choice. Id. at 462-63.

At this point in the Gingles era, new plaintiffs

and claims are not necessary for Louisiana to be

forced back into court over its redistricting plans. In

20

1986, several Black voters challenged the Louisiana

Supreme Court’s multi-member election scheme as

violating Section 2. See Chisom v. Roemer, 501 U.S.

380, 385 (1991). Six years of litigation culminated in

a federal district court’s consent decree requiring the

Louisiana Legislature, in addition to other long-term

directives, to establish a single-member, majorityBlack Supreme Court district. See Chisom v.

Edwards, 342 F.R.D. 1, 5 (E.D. La. 2022). The new

majority-Black seat remained in effect for the next

several decades, but Louisiana remained subject to

the consent decree as well.

Rather than new challenges, the decree itself

became the source of litigation. In the 2000s, the

Chisom plaintiffs sought to amend the decree alleging

the Legislature’s new state Supreme Court plan, still

containing a majority-Black district, wasn’t in “strict

conformity” with its requirements. See La. State Conf.

of the NAACP v. Louisiana, 490 F. Supp. 3d 982, 996

(M.D. La. 2020). In the 2010s, the resignation

announcement of the State Supreme Court’s Chief

Justice prompted litigation merely to clarify the

meaning of the consent decree’s already twenty-yearold terms regarding judicial succession. See Chisom v.

Jindal, 890 F.Supp.2d 696, 707-09 (E.D. La. 2012).

After more than thirty years, the consent decree was

finally dissolved by the Fifth Circuit last year after it

found that the State had satisfied all of its remedial

obligations. See Chisom v. Louisiana ex rel. Landry,

116 F.4th 309, 320 (5th Cir. 2024). In 2019, plaintiffs

in the Middle District of Louisiana brought a new case

challenging the State Supreme Court map that was

the subject of the Eastern District consent decree. See

21

Louisiana State Conf. of the NAACP v. Louisiana, No.

19-479-JWD-SDJ, 2024 U.S. Dist. LEXIS 39003, at 4*

(M.D. La. Mar. 6, 2024) That case ended after 5 years

of litigation when, without admitting any liability, the

State enacted a new State Supreme Court map that

contained a second majority minority district. See

Allen v. Louisiana, No. 24-30237, 2024 U.S. App.

LEXIS 26706, at 1* (5th Cir. Aug. 19, 2024). The new

Supreme Court map has not yet been challenged.

II.

Because It Is Flawed in Theory and

Unworkable in Practice, Gingles Should

Be Overruled.

Almost forty years of redistricting litigation in

Louisiana has made clear that Gingles has not

worked and is not workable. This is not because the

State has dragged its feet or refused to comply with

either the VRA or the Equal Protection Clause. To the

contrary, as demonstrated by the prior section, the

State has, at various times, been criticized from both

sides as being either insufficiently or overly raceconscious. Nor does the problem lie with the federal

courts in Louisiana: Although their decisions have

frequently conflicted with one another, each judge has

attempted to faithfully apply this Court’s precedents.

The fundamental problem, as this Court has

acknowledged, is that “the Equal Protection Clause

restricts consideration of race and the VRA demands

consideration of race,” and, therefore, “a legislature

attempting to produce a lawful districting plan is

vulnerable to ‘competing hazards of liability.’” Abbott

v. Perez, 585 U.S. 579, 587 (2018) (quoting Bush v.

Vera, 517 U.S. 952, 977 (1996) (plurality opinion)).

22

Worse, both “competing hazards of liability” are far

from clear and objective standards. And electoral

redistricting is a zero-sum game in which both sides

are well-funded and incentivized to litigate. Thus,

perhaps more than in any other area, in election law

“court action that is available tends to be sought, not

just where it is necessary, but where it is in the

interest of the seeking party.” Vieth v. Jubelirer, 541

U.S. 267, 300 (2004) (plurality opinion). So even if

there is a theoretical middle-of-the-road map that

violates neither Gingles nor Shaw, the rules are so

subjective and the incentive to sue is so great, that

states like Louisiana must litigate for five years just

to arrive at a map that needs to be redrawn in another

five.

A. Gingles Is Unworkable Because It

Requires

States

to

Risk

Equal

Protection Clause Liability in Order to

Avoid VRA Liability.

Gingles allows any “minority group that is

sufficiently large and [geographically] compact” to

“constitute a majority in a reasonably configured

district” to sue to require the state to create such a

district. Wisconsin Legislature v. Wisconsin Elections

Comm’n, 595 U.S. 398, 402 (2022) (per curiam). A

district is “reasonably configured … if it comports

with traditional districting criteria, such as being

contiguous and reasonably compact.” Allen v.

Milligan, 599 U.S. 1, 18 (2023).

“Traditional

districting criteria” also includes respecting political

subdivisions, keeping “communities of interest”

together, and protecting incumbents from having to

23

run against one another. See League of United Latin

Am. Citizens v. Perry, 548 U.S. 399, 433-34 (2006)

(“LULAC”). Asking whether a particular map

“reasonably” accounts for these divergent criteria is

not an objective and predictable inquiry. See id. at 433

(noting that “no precise rule has emerged governing §

2 compactness”).

Gingles simply asks whether a “reasonably

configured”

majority-minority

district

is

mathematically possible—not whether a map

recognizing such a district would most comport with

traditional districting criteria or would be expected

absent racial discrimination. See Allen, 599 U.S. at

19-20 (finding Gingles precondition one satisfied

because “black voters could constitute a majority in a

second district that was ‘reasonably configured’”)

(emphasis added). Showing mathematical possibility

is not particularly hard now that “modern computer

technology” can be used to “generate millions of

possible districting maps for a given State” and “can

be designed to comply with traditional districting

criteria.” Id. at 23. And plaintiffs’ experts are allowed

to intentionally target maps with the requisite

number of majority-minority districts. Id. at 33

(conceding that illustrative maps used to satisfy

Gingles precondition one are frequently “created with

an express target [of majority-minority districts] in

mind”). Armed with a computer and using explicit

racial targets, a plaintiffs’ expert will often be able to

create a few maps—out of millions of possible

permutations—that

contain

majority-minority

districts and are at least arguably “reasonably

24

compact” with reference to traditional districting

criteria.

Where that is the case, the state is in a bind. If

it does not create the proposed majority-minority

district, it will almost certainly be sued under the

VRA. The lawsuit will cost the state time and

taxpayer money, disrupt the state’s political

processes, and likely result in a negative ruling. To be

sure, the plaintiff would also have to satisfy Gingles’s

second and third preconditions and the “totality of

circumstances” test, but these do not pose a high bar.

See id. at 22 (dispensing with Gingles’ second and

third preconditions because there can be “no serious

dispute that Black voters are politically cohesive, nor

that the challenged districts’ white majority votes

sufficiently as a bloc to usually defeat Black voters’

preferred candidate”) (internal quotations omitted);

Ellen D. Katz et al., Documenting Discrimination in

Voting: Judicial Findings Under Section 2 of the

Voting Rights Act Since 1982, 39 U. MICH. J.L.

REFORM 643, 660 (2005) (finding that, in the 20 years

following Gingles, plaintiffs that made it to the

“totality of circumstances” test prevailed in 57 of 68

lawsuits).

Alternatively, a state legislature could try to do

what a plaintiffs’ expert would do: use explicit racial

targets to draw a map with as many “reasonably

compact” majority-minority districts as possible. But

this would almost certainly lead to an Equal

Protection Clause challenge. After all, while the

plaintiffs’ expert is allowed to have “an express

[racial] target in mind,” when the legislature draws a

25

map, “race may not be the predominant factor.” Allen,

599 U.S. at 31, 33 (internal quotations omitted).

Since “the line between racial predominance and

racial consciousness can be difficult to discern,” id. at

31, there will always be a litigable question as to

whether a race-conscious legislature crossed into the

line into racial predominance.

Similarly, just because a plaintiff’s expert can

draw a majority-minority district that is configured

reasonably enough to give rise to a plausible Gingles

claim does not mean that a court will necessarily find

a similar map drawn by the state legislature to be

“reasonably configured.” Reasonableness is a flexible

standard, and it is not at all obvious how to judge

districts that are strong on some traditional

districting criteria (e.g., protecting communities of

interest and/or incumbents) but weak on others (e.g.,

compactness and/or respecting political subdivisions).

As Justice Scalia would say, balancing those

divergent factors is “like judging whether a particular

line is longer than a particular rock is heavy.” Bendix

Autolite Corp. v. Midwesco Enters., Inc., 486 U.S. 888,

897 (1988) (Scalia, J., concurring in the judgment).

And it will always be more difficult for a legislature

that represents real people with diverse interests to

draw reasonably configured districts than it will for a

plaintiffs’ expert to draw one up in the computer lab.

This is why Louisiana is far from the only state

to draw a majority-minority district to avoid a Gingles

suit, only for a court to find that the district was not

“reasonably configured” enough to survive a Shaw

suit. See Allen, 599 U.S. at 27 (“Though North

26

Carolina believed the additional district was required

by § 2, we rejected that conclusion, finding instead

that those challenging the map stated a claim of

impermissible racial gerrymandering”) (citing Shaw

v. Reno, 509 U.S. 630, 655, 658 (1993)); id. at 27-28

(“To comply with the VRA, Georgia thought it

necessary to create two more majority-minority

districts” but “Georgia could not create the districts

without flouting traditional criteria”) (citing Miller v.

Johnson, 515 U.S. 900, 920-21 (1995)); id. at 28

(noting that “Texas[] create[ed] three additional

majority-minority districts” to comply with Section 2

only to lose a racial gerrymandering suit because “the

districts had ‘no integrity in terms of traditional,

neutral redistricting criteria’”) (quoting Bush v. Vera,

517 U.S. at 960). Just like here, the problem in those

cases was not that the states acted in bad faith or

ignored this Court’s precedents. The problem was

that “no precise rule has emerged governing § 2

compactness.” LULAC, 548 U.S. at 433. So states like

Louisiana, North Carolina, Georgia, Texas, and so

many others are forced to guess whether an

additional majority-minority district will be deemed

“reasonably compact” and then litigate either a

Gingles or Shaw suit to find out if they guessed right.

As Louisiana’s experience shows, even where a

federal court determines that an additional

“reasonably compact” majority-minority district is

possible and likely required, a state could still face

litigation and potential liability for trying to create

one. As here, a different group of plaintiffs can sue

the state in a different district and argue that the

additional majority-minority district was not required

27

under Gingles after all. And those plaintiffs, if they

are savvy, may even choose a district precisely

because its judges are more likely to take a narrow

reading of “reasonable compactness” under Gingles

and a broad reading of “racial predominance” under

Shaw. A standard that consistently leads to

inconsistent results and leaves states in a liability

minefield between two highly subjective standards

simply is not workable.

B. Stare Decisis Does Not Require Courts to

Retain Precedents that Are Flawed in

Theory and Unworkable in Fact.

This Court has “long recognized . . . that stare

decisis is ‘not an inexorable command[.]’” Dobbs v.

Jackson Women’s Health Org., 597 U.S. 215, 264

(2022) (quoting Pearson v. Callahan, 555 U.S. 223,

233 (2009)). While members of this Court have

sparred over the precise circumstances in which a

precedent may be overruled, the Court has

consistently held that “the fact that a decision has

proved ‘unworkable’ is a traditional ground for

overruling it.” Montejo v. Louisiana, 556 U.S. 778, 792

(2009) (quoting Payne v. Tennessee, 501 U.S. 808, 827

(1991)); see also Planned Parenthood v. Casey, 505

U.S. 833, 854 (1992) (the Court must assess the

precedent’s “practical workability”); Dobbs, 597 U.S.

at 220 (“Deciding whether a precedent should be

overruled depends in part on whether the rule it

imposes is workable[.]”). This is because when a

precedent “is proved to be unworkable in practice[,]

the mischievous consequences to litigants and courts

alike from the perpetuation of an unworkable rule are

28

too great.” Swift & Co. v. Wickham, 382 U.S. 111, 116

(1965).

A precedent is “unworkable” if it cannot “be

understood and applied in a consistent and

predictable manner.” Dobbs, 597 U.S. at 281. Forty

years of litigation and conflicting judgments in

Louisiana and elsewhere make clear that Gingles’

application has been anything but consistent and

predictable. See supra, Parts I and II.A.

Another indicium of unworkability is that “a

decision has ‘been questioned by Members of the

Court in later decisions and [has] defied consistent

application by the lower courts . . . .” Pearson, 555

U.S. at 235 (quoting Payne, 501 U.S. at 829-30).

Multiple Members of this Court have questioned

Gingles for this very reason. Chief Justice Roberts,

for example, has observed that district courts “cannot

be faulted for [their] application of Gingles” because

“it is fair to say that Gingles and its progeny have

engendered

considerable

disagreement

and

uncertainty regarding the nature and contours of a

vote dilution claim.” Merrill v. Milligan, 142 S. Ct.

879, 882-83 (2022) (Roberts, C.J., dissenting from

grant of applications for stays). Justices Thomas,

Gorsuch, and Barrett have echoed these concerns,

concluding that the Court has “never succeeded in

translating the Gingles framework into an objective

and workable method of identifying the undiluted

benchmark.” Allen, 599 U.S. at 69 (Thomas, J.,

dissenting). They agreed that “[i]f there is ‘any area

of law notorious for its many unsolved puzzles,’ this

is it.” Id. at 68 (Thomas, J., dissenting) (quoting J.

29

Chen & N. Stephanopoulos, The Race-Blind Future

of Voting Rights, 130 YALE L. J. 862, 871 (2021)).

An analogously unworkable decision was

Saucier v. Katz, 533 U.S. 194, 201 (2001), which

established a two-step framework for assessing

qualified immunity. Saucier was overruled because it

was “a judge-made rule . . . adopted to improve the

operation of the courts, and experience has pointed up

the precedent’s shortcomings.” Pearson, 555 U.S. at

233. Gingles is likewise a “judge-made rule” adopted

to “improve the operation of the courts” by

establishing a three-step framework to determine

whether race-based vote discrimination claims can be

grounded in redistricting decisions. And as with

Saucier, Gingles’ amorphous framework “comes with

a price” because the ping-pong of Section 2 and equal

protection litigation “results in a substantial

expenditure of scarce judicial resources” and “also

wastes the parties’ resources.” Id. at 236-37.

Saucier was unworkable because its two-step

framework was “so factbound that the decision [under

that framework] provides little guidance for future

cases.” Id. at 237. The same is true of Gingles, as the

Allen Court admitted: “[The] application of

the Gingles factors is ‘peculiarly dependent upon

the facts of each case.’ Before courts can find a

violation of § 2 . . . they must conduct ‘an intensely

local appraisal’ of the electoral mechanism at issue,

as well as a ‘searching practical evaluation of the

“past and present reality.”’” Allen, 599 U.S. at 19

(quoting Gingles, 478 U.S. at 79). As evidenced by

Louisiana’s post-Gingles litigation nightmare,

30

Gingles is “so factbound that [it] provides little

guidance,” Pearson, 555 U.S. at 237, rendering it

pragmatically unworkable.

Another instructive case is Rucho v. Common

Cause, 588 U.S. 684 (2019), which observed that “it is

vital” in redistricting cases that “the Court act only in

accord with especially clear standards” because

otherwise, “’[w]ith uncertain limits,’” courts will

“’assum[e] political, not legal, responsibility for a

process that often produces ill will and distrust.’” Id.

at 704 (quoting Vieth, 541 U.S. at 307 (opinion of

Kennedy, J.)). Thus, in the analogous context of

partisan gerrymandering, Rucho concluded that

“federal courts are not equipped to apportion political

power as a matter of fairness[.]” Id. at 705. As four

Justices recognized in Allen, Gingles claims are

likewise inherently predicated on a request for a “’fair

share of political power and influence.’” 599 U.S. at 51

(Thomas, J., dissenting) (quoting Rucho, 588 U.S. at

709). And forty years of litigation under Gingles has

not yielded “clear, manageable, and politically

neutral” standards by which courts can make that

determination in an objective and predicable manner.

Rucho, 588 U.S. at 707.

Gingles also contains an assumption that

members of racial minority groups will always vote as

a block because of race. This is simply not an

assumption that has held up to the realities of

elections. As the State noted in its brief, Supp. Brief

for Appellant at 20 (2025) (No. 24-109), President

Trump won 48% of the Hispanic vote and 15% of the

Black vote in 2024. Every single voting group in that

31

analysis voted significantly differently just as far

back as 2020 – Donald Trump effectively doubled his

support among Black voters from 8% to 15%, and

increased support among Hispanic voters from 36% to

48%. This demonstrates the persistent change in the

American electorate and illustrates nicely that voters

are not monolithic decision makers whose vote in any

particular election is necessarily tied to their race or

ethnicity.

Finally, the quality of a precedent’s reasoning

is also “important” to stare decisis analysis. Dobbs,

597 U.S. at 268, 270. The Court’s reasoning must be

“more than just wrong”; it must be “egregiously

wrong,” and its analysis must stand on “exceptionally

weak grounds.” Id.; see also Ramos v. Louisiana, 590

U.S. 83, 121-22 (2020) (Kavanaugh, J., concurring in

part) (precedent should be “egregiously wrong as a

matter of law” to warrant reversal). Gingles satisfies

this standard because it was “on a collision course

with the Constitution from the day it was decided[.]”

Dobbs, 597 U.S. at 268. Indeed, Gingles’s basic

workability problems stem from its inherent tension

with the Equal Protection Clause. See supra, Part

II.A.

III.

Gingles Should Be Replaced with a

Workable Standard that is Consistent

with the Equal Protection Clause.

This Court should overrule Gingles and

interpret Section 2 in a manner that is workable and

does not conflict with the Equal Protection Clause.

See Bartlett v. Strickland, 556 U.S. 1, 21 (2009)

32

(plurality opinion) (invoking constitutional avoidance

canon to reject use of crossover districts to satisfy

Gingles’s first factor). Members of this Court have

identified at least five ways in which this could be

accomplished.

First, the Court could read time limits into

Section 2 for vote dilution claims. Cf. Shelby County

v. Holder, 570 U.S. 529 (2013). At least four Members

of this Court have intimated that Section 2 may need

such a temporal limitation to satisfy constitutional

scrutiny. See Allen, 599 U.S. at 45 (Kavanaugh, J.,

concurring) (declining to consider temporal limit to

Section 2 because it was “not raise[d]” in that case);

id. at 83-84, 87-88 (Thomas, J., dissenting) (Section 2

lacks any “salutary limiting principles” that would

satisfy

the

congruence

and

proportionality

requirements for remedial legislation under the

Fourteenth Amendment).

Second, the Court could narrowly construe

Section 2 as limited to “practices and procedures that

affect voting and the right to vote,” such as “ballot

access and counting,” but not vote dilution predicated

on redistricting. See id. at 46 (Thomas, J., dissenting).

Third, the Court could limit Gingles’s analysis

to multi-member districts only. See id. at 48-49

(Thomas, J., dissenting).

Fourth, the Court could “require a

meaningfully race-neutral benchmark” for vote

dilution claims. See id. at 50, 52, 54, 89 (Thomas, J.,

dissenting). This option would relieve states of the

33

impossible task of having to draw maps with as many

majority-minority districts as those created by raceconscious plaintiffs’ experts to comply with Gingles,

without

themselves

engaging

in

racial

gerrymandering prohibited by the Fourteenth

Amendment.

Finally,

the Court could require a

“plaintiff who claims that a districting map violates §

2 because it fails to include an additional majorityminority district must show at the outset that such a

district can be created without making race the

predominant factor in its creation.” Id. at 99 (Alito, J.,

dissenting). This option would at least put the burden

on the plaintiff to show that a State will not face Shaw

liability if it adopts the plaintiffs’ illustrative map.

Any of these solutions are preferable to the

serious constitutional concerns Gingles has created

and the unpredictability and costs it imposes upon

states.

CONCLUSION

For the foregoing reasons, Appellants should

prevail and Gingles should be overruled or realigned

to the colorblind command of the Equal Protection

Clause.

34

Respectfully submitted,

Jason Torchinsky

Kellen Dwyer

Elizabeth Price Foley

Drew C. Marvel

HOLTZMAN VOGEL BARAN

TORCHINSKY &

JOSEFIAK, PLLC

2300 N Street NW

Suite 643

Washington, DC 20037

Governor Jeff Landry

Counsel of Record

Angelique Freel

Jeffrey Wale

Executive Office of the

Governor

PO Box 94004

Baton Rouge, LA 70804

(225) 342-0991

35