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

Supreme Court briefSep 23, 2025

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Nos. 24-109, 24-110

In the Supreme Court of the United States

__________

LOUISIANA, Appellant,

PHILLIP CALLAIS, ET AL., Appellees.

____________________

PRESS ROBINSON, ET AL., Appellants,

PHILLIP CALLAIS, ET AL., Appellees.

____________________

ON APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF LOUISIANA

_______________

BRIEF FOR PROJECT ON FAIR

REPRESENTATION AS AMICUS CURIAE

IN SUPPORT OF APPELLEES

__________

CHRISTOPHER E. MILLS

Counsel of Record

Spero Law LLC

557 East Bay Street

#22251

Charleston, SC 29413

(843) 606-0640

cmills@spero.law

TABLE OF CONTENTS

Page

Table of Authorities .....................................................ii

Interest of Amicus Curiae ........................................... 1

Summary of the Argument ......................................... 2

Argument ..................................................................... 4

I. S.B. 8 impermissibly uses race as a negative or

a stereotype. ....................................................... 7

II. S.B. 8 is unsupported by a compelling interest

so flunks strict scrutiny. .................................. 10

A. The Fifteenth Amendment cannot justify

modern § 2 applications like S.B. 8. ........... 13

B. Section 2 cannot be “appropriate” to the

extent it requires violations of equal

protection. ................................................... 21

Conclusion .................................................................. 26

TABLE OF AUTHORITIES

Page(s)

CASES

Abbott v. Perez,

585 U.S. 579 (2018) ................................................ 14

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

602 U.S. 1 (2024) .................................................... 16

Allen v. Cooper,

589 U.S. 248 (2020) ................................................ 16

Allen v. Milligan,

599 U.S. 1 (2023) .................................................... 12

Bolling v. Sharpe,

347 U.S. 497 (1954) .................................................. 4

Brown v. Board of Education,

347 U.S. 483 (1954) .................................................. 4

Bush v. Vera,

517 U.S. 952 (1996) ................................................ 25

City of Boerne v. Flores,

521 U.S. 507 (1997) ................................................ 15

City of Mobile v. Bolden,

446 U.S. 55 (1980) .................................................. 14

City of Rome v. United States,

446 U.S. 156 (1980) ................................................ 15

Ga. State Conf. of NAACP v. Fayette Cnty.

Bd. of Comr’s,

775 F.3d 1336 (CA11 2015) ................................... 20

Gomillion v. Lightfoot,

364 U.S. 339 (1960) .................................................. 8

iii

Graham v. Richardson,

403 U.S. 365 (1971) ................................................ 22

Holder v. Hall,

512 U.S. 874 (1994) .................................................. 8

Johnson v. De Grandy,

512 U.S. 997 (1994) ............................................ 9, 14

Katzenbach v. Morgan,

384 U.S. 641 (1966) ................................................ 22

Kimel v. Fla. Bd. of Regents,

528 U.S. 62 (2000) .................................................. 15

Korematsu v. United States,

323 U.S. 214 (1944) .................................................. 5

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803) ................................... 6

McCulloch v. Maryland,

17 U.S. (4 Wheat.) 316 (1819).......................... 22, 24

Merrill v. Milligan,

142 S. Ct. 879 (2022) .............................................. 11

Miller v. Johnson,

515 U.S. 900 (1995) ........................................ 8, 9, 21

Nat’l Fed’n of Indep. Bus. v. Sebelius,

567 U.S. 519 (2012) ................................................ 23

Nw. Austin Mun. Util. Dist. No. One v. Holder,

557 U.S. 193 (2009) .......................................... 12, 19

Palmore v. Sidoti,

466 U.S. 429 (1984) .................................................. 5

Parents Involved in Cmty. Sch. v. Seattle

Sch. Dist. No. 1,

551 U.S. 701 (2007) ................................................ 20

Plessy v. Ferguson,

163 U.S. 537 (1896) ................................................ 25

Printz v. United States,

521 U.S. 898 (1997) ................................................ 23

Ramirez v. Collier,

595 U.S. 411 (2022) .................................................. 6

Reid v. Covert,

354 U.S. 1 (1957) .................................................... 24

Reno v. Bossier Par. Sch. Bd.,

520 U.S. 471 (1997) ................................................ 14

Rice v. Cayetano,

528 U.S. 495 (2000) ................................................ 24

Robinson v. Ardoin,

605 F. Supp. 3d 759 (M.D. La. 2022)......... 11, 14, 20

Saenz v. Roe,

526 U.S. 489 (1999) ................................................ 24

Shaw v. Hunt,

517 U.S. 899 (1996) ................................................ 11

Shaw v. Reno,

509 U.S. 630 (1993) ........................................ 8, 9, 13

Shelby Cnty. v. Holder,

570 U.S. 529 (2013) .................................... 16, 17, 23

Simon & Schuster, Inc. v. Members of N.Y. State

Crime Victims Bd.,

502 U.S. 105 (1991) .................................................. 5

South Carolina v. Katzenbach,

383 U.S. 301 (1966) ................................................ 16

Strauder v. West Virginia,

100 U.S. 303 (1879) ................................................ 25

Students for Fair Admissions, Inc. v. President &

Fellows of Harvard College,

600 U.S. 181 (2023) ...................... 2, 4–11, 17, 19, 25

Tennessee v. Lane,

541 U.S. 509 (2004) .......................................... 13, 15

Tennessee Wine & Spirits Retailers Ass’n v. Thomas,

588 U.S. 504 (2019) ................................................ 24

Thornburg v. Gingles,

478 U.S. 30 (1986) ............................................ 11, 20

United Sav. Ass’n of Texas v. Timbers of Inwood

Forest Assocs., Ltd.,

484 U.S. 365 (1988) ................................................ 25

United States v. Blaine Cnty.,

363 F.3d 897 (CA9 2004) ....................................... 15

United States v. Comstock,

560 U.S. 126 (2010) ................................................ 24

United States v. Mead Corp.,

533 U.S. 218 (2001) ................................................ 20

United States v. Rahimi,

602 U.S. 680 (2024) .............................................. 5, 6

United States v. Virginia,

518 U.S. 515 (1996) .................................................. 6

Voinovich v. Quilter,

507 U.S. 146 (1993) ................................................ 14

Whole Woman’s Health v. Hellerstedt,

579 U.S. 582 (2016) .................................................. 6

Wisconsin Legislature v. Wisconsin Elections

Comm’n,

595 U.S. 398 (2022) .................................................. 8

Wright v. Rockefeller,

376 U.S. 52 (1964) .................................................... 9

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. XV .................................. 13, 19, 21

OTHER AUTHORITIES

Abrajano et al., A Natural Experiment of Race-Based

and Issue Voting: The 2001 City of Los Angeles

Elections, 58 Pol. Rsch. Q. 203 (2005) ................... 17

Alicea & Ohlendorf, Against the Tiers of

Constitutional Scrutiny,

National Affairs 72 (2019) ....................................... 5

Barroso et al., As Millennials Near 40, They’re

Approaching Family Life Differently Than Previous

Generations, PEW Resch. Ctr. (May 27, 2020),

https://perma.cc/8M6M-MEBU ............................. 19

Brief for America First Legal as Amicus Curiae in

Support of Appellants/Petitioners, Allen v.

Milligan, Nos. 21-1086, 21-1087,

2022 WL 1462954 (May 2, 2022) ........................... 16

Brief for Project on Fair Representation as Amicus

Curiae in Support of Appellees, Louisiana v.

Callais, Nos. 24-109, 24-110,

2025 WL 356621 (U.S. Jan. 27, 2025) ............... 1, 10

Carter, The Political Aspects of Judicial Power: Some

Notes on the Presidential Immunity Decision,

131 U. Pa. L. Rev. 1341 (1983) .............................. 23

Elmendorf et al., Racially Polarized Voting,

83 U. Chi. L. Rev. 587 (2016)........................... 19, 20

vii

Elmendorf, Making Sense of Section 2: Of Biased

Votes, Unconstitutional Elections, and Common

Law Statutes,

160 U. Pa. L. Rev. 377 (2012) .............. 12, 16, 20, 21

Fallon, The Nature of Constitutional Rights: The

Invention and Logic of Strict Judicial Scrutiny

(2019) .................................................................... 5, 6

Frey, Today’s Suburbs are Symbolic of America’s

Rising Diversity: A 2020 Census Portrait,

Brookings (June 15, 2022),

https://perma.cc/JT3C-MQZ3 ................................ 18

H.R. Rep. No. 89-439 (1965) ................................ 15, 25

Hartig et al., Behind Trump’s 2024 Victory, a More

Racially and Ethnically Diverse Voter Coalition,

PEW Resch. Ctr. (June 26, 2025),

https://perma.cc/RF5P-CRXT ................................ 18

Lawson & Granger, The “Proper” Scope of Federal

Power: A Jurisdictional Interpretation of the

Sweeping Clause, 43 Duke L.J. 267 (1993) ........... 22

McConnell, Institutions and Interpretation: A

Critique of City of Boerne v. Flores,

111 Harv. L. Rev. 153 (1997) ................................. 22

Mellnik & Van Dam, How Mixed-Race

Neighborhoods Quietly Became the Norm in the

U.S., Wash. Post (Nov. 4, 2022),

https://tinyurl.com/2tku43tm ................................ 18

Meyer et al., It’s Not Race, It’s Politics! A Natural

Experiment Examining the Influence of Race in

Electoral Politics, 98 Soc. Sci. Q. 120 (2017) ......... 17

S. Rep. No. 97-417 (1982) .................................... 15, 25

viii

Scalia & Garner, Reading Law: The Interpretation of

Legal Texts (2012) .................................................. 24

Stewart et al., Inequality, Identity, and Partisanship:

How Redistribution can Stem the Tide of Mass

Polarization, 118 Proceedings Nat’l Acad. Sci.

U.S.A. 1 (2021) ....................................................... 17

The Federalist No. 33 (Hamilton) ............................. 23

Tr. of Oral Arg. in Louisiana v. Callais, O. T. 2025,

Nos. 24-109, 24-110.................................................. 8

Westwood et al., The Tie that Divides: Cross-National

Evidence of the Primacy of Partyism,

57 Eur. J of Pol. Rsch. 333 (2017) ......................... 17

Woolley et al., Interracial and Interethnic Marriages:

Given Recent History, Have Things Been Getting

Better?, 48 Soc. Work Rsch. 229 (2024) ................. 18

INTEREST OF AMICUS CURIAE

The Project on Fair Representation is a publicinterest organization committed to the principle that

racial and ethnic classifications are unconstitutional,

unfair, and harmful. It works to advance race-neutral

rules in education, government action, and voting. The

Project pursues these goals through education and

advocacy and has been involved in several cases before

the Supreme Court involving these important issues.

The Project opposes racial gerrymandering of all

kinds. Eliminating racial sorting in districting is not

only what our Constitution requires, but it is also a

needed remedy for our Nation’s increasingly polarized

and racialized politics. Because S.B. 8 structures

elections based on citizens’ races, the Project has a

direct interest in this case. It filed an amicus brief

below regarding remedies, D. Ct. Dkt. 231, and filed

an amicus brief in this Court before last Term’s

argument, see Brief for Project on Fair Representation

as Amicus Curiae in Support of Appellees, Louisiana

v. Callais, Nos. 24-109, 24-110, 2025 WL 356621 (U.S.

Jan. 27, 2025) (“Amicus Brief”).*

* Under Rule 37.6, no counsel for a party authored this brief in

whole or in part, and no person other than amicus curiae or its

counsel made a monetary contribution to its preparation or

submission.

SUMMARY OF THE ARGUMENT

No one denies that Louisiana intentionally

segregated citizens by their race in drawing S.B. 8’s

district maps. That use of race violates the Fourteenth

Amendment, and neither § 2 of the Voting Rights Act

nor the Fifteenth Amendment can justify this denial

of equal protection.

First, as this Court recently held, States “may

never use race as a stereotype or negative.” Students

for Fair Admissions, Inc. v. President & Fellows of

Harvard College, 600 U.S. 181, 213 (2023). But that is

exactly what States do when they sort voters by race

into voting districts. They assume that voters will vote

particular ways based on their race, and tell

computers to draw maps according to this racist

assumption. The result? Systematically segregating

voters by race. Students for Fair Admissions said that

use of race as a stereotype or negative is never allowed,

so it makes no difference what a judge-created

exception like strict scrutiny or a Congress-created

justification like § 2 might say. S.B. 8—like most

modern applications of § 2—violates the equal

protection right of citizens to be free of invidious racial

discrimination by the government.

Second, even if strict scrutiny could excuse using

race as a negative, § 2 does not provide a sufficient

compelling interest. The statute as applied today goes

far beyond the Fifteenth Amendment’s coverage,

encompassing vote dilution claims with no allegation

of intentional discrimination and finding liability

practically whenever racially polarized voting exists.

But racially polarized voting is not state

discrimination. So whatever § 2’s historical roots, it

has evolved into a sword for creating racially

gerrymandered districts rather than a shield against

racial discrimination. Politics and society at large

have become vastly more integrated than when § 2

was enacted and amended, and evidence shows that

partisan attachments are much more significant than

racial ones. Thus, modern § 2 applications are not

congruent and proportional to the Fifteenth

Amendment’s coverage, and the statute cannot

continue to provide a compelling government interest

to excuse racial discrimination.

Even if § 2 applications today were otherwise

authorized by the Fifteenth Amendment, they would

still be unconstitutional when they violate the

Fourteenth Amendment. The Fifteenth Amendment’s

sanction of “appropriate” legislation, the scheme of the

Reconstruction Amendments, and the overall design

of the Constitution all confirm that one constitutional

provision should not be read to sanction a violation of

another. Instead, constitutional provisions are read in

harmony. So Fifteenth Amendment legislative

applications remain subject to the Fourteenth

Amendment’s guarantee of equal protection of the

laws. Because modern § 2 applications that give rise

to discriminatory laws like S.B. 8 violate equal

protection by mandating racial gerrymandering, they

are not authorized by the Constitution as a whole and

cannot provide a valid basis for any compelling

government interest.

To protect citizens’ equal treatment before the

law—from Congress, courts, and States—the Court

should hold that S.B. 8’s racial redistricting is

unconstitutional and affirm.

ARGUMENT

The Fourteenth Amendment’s Equal Protection

Clause “requires equality of treatment before the law

for all persons without regard to race.” Students for

Fair Admissions, 600 U.S. at 205. The Clause was

viewed as embodying “a ‘foundational principle’—‘the

absolute equality of all citizens of the United States

politically and civilly before their own laws.’” Id. at

201 (cleaned up). It does “not permit any distinctions

of law based on race or color.” Id. at 202.

But for almost a century after the Civil War, the

Court and many parts of the country departed from

that guarantee in an approach with “inherent folly”—

“trying to derive equality from inequality.” Id. at 203.

In Brown v. Board of Education, 347 U.S. 483 (1954),

this Court agreed with the plaintiffs that States had

“no” “authority under the equal-protection clause of

the Fourteenth Amendment to use race as a factor.”

Students for Fair Admissions, 600 U.S. at 204. “Laws

dividing parks and golf courses; neighborhoods and

businesses; buses and trains; schools and juries were

undone, all by a transformative promise” that “‘the

Constitution forbids discrimination . . . against any

citizen because of his race.’” Id. at 205 (cleaned up)

(quoting Bolling v. Sharpe, 347 U.S. 497, 499 (1954)).

“These decisions reflect[ed] the core purpose of the

Equal Protection Clause: doing away with all

governmentally imposed discrimination based on

race.” Id. at 206 (cleaned up). The Fourteenth

Amendment’s “clear and central purpose . . . was to

eliminate all official state sources of invidious racial

discrimination in the States.” Ibid. (emphasis added).

But even as the Court course corrected, a new

exception to the Clause’s absolute prohibition on

official racial discrimination crept into its

jurisprudence. At first suggested only “in the infamous

case Korematsu v. United States, 323 U.S. 214, 216

(1944),” Students for Fair Admissions, 600 U.S. at 207

n.3, the notion that the Clause’s guarantee could be

balanced away with a good enough policy excuse—i.e.,

strict scrutiny—was applied more expressly in

Palmore v. Sidoti, 466 U.S. 429, 432–33 (1984), and

subsequent cases.

This exception to the Clause has no roots in text,

history, or neutral principles of adjudication. The

“Clause sought to reject the Nation’s history of racial

discrimination, not to backdoor incorporate racially

discriminatory and oppressive historical practices and

laws into the Constitution.” United States v. Rahimi,

602 U.S. 680, 723 (2024) (Kavanaugh, J., concurring).

“The Court ‘appears to have adopted’ heightenedscrutiny tests ‘by accident’ in the 1950s and 1960s in

a series of Communist speech cases, ‘rather than as

the result of a considered judgment.’” Id. at 731–32

(quoting Simon & Schuster, Inc. v. Members of N.Y.

State Crime Victims Bd., 502 U.S. 105, 125 (1991)

(Kennedy, J., concurring in judgment)). “[B]efore the

late 1950s, ‘what we would now call strict judicial

scrutiny did not exist.’” Id. at 731 (quoting Fallon, The

Nature of Constitutional Rights: The Invention and

Logic of Strict Judicial Scrutiny 30 (2019)). The strict

scrutiny test thus “ha[s] no basis in the text or original

meaning of the Constitution.” Ibid. (quoting Alicea &

Ohlendorf, Against the Tiers of Constitutional

Scrutiny, National Affairs 72, 73 (2019)).

What’s more, strict scrutiny requires policy

balancing that is hard to square with the limited

judicial role under the Constitution. “It requires

judges to weigh the benefits against the burdens of a

law and to uphold the law as constitutional if, in the

judge’s view, the law is sufficiently” compelling, based

on “highly subjective judicial evaluations of how

important a law is.” Rahimi, 602 U.S. at 732

(Kavanaugh, J., concurring). Strict scrutiny “permits

and even requires judges to engage recurrently in only

minimally structured appraisals of the significance of

competing values or interests.” Ramirez v. Collier, 595

U.S. 411, 442 n.1 (2022) (Kavanaugh, J., concurring)

(quoting Fallon, supra, at 66–67). In other words, it

“forces judges to act more like legislators who decide

what the law should be, rather than judges who ‘say

what the law is.’” Rahimi, 602 U.S. at 732

(Kavanaugh, J., concurring) (quoting Marbury v.

Madison, 5 U.S. (1 Cranch) 137, 177 (1803)).

In sum, “[t]he Constitution does not prescribe tiers

of scrutiny,” and “[t]he illegitimacy of using ‘made-up

tests’ to displace” text and history “as the primary

determinant of what the Constitution means has long

been apparent.” Whole Woman’s Health v. Hellerstedt,

579 U.S. 582, 639 (2016) (Thomas, J., dissenting)

(cleaned up) (quoting United States v. Virginia, 518

U.S. 515, 570 (1996) (Scalia, J., dissenting)).

Fortunately, this Court recognized in Students for

Fair Admissions that regardless of States’ policy

excuses, they “may never use race as a stereotype or

negative.” 600 U.S. at 213 (emphasis added). So this

Court need not consider strict scrutiny at all, for race-

based districting inherently uses race as a stereotype

or negative.

Even if strict scrutiny applied, S.B. 8 could not

satisfy it. Though S.B. 8’s defenders claim a

compelling interest in complying with § 2, this Court

has never sanctioned the circular, rights-destroying

suggestion that statutory compliance can excuse a

constitutional right. At any rate, modern § 2

applications are detached from the statute’s supposed

Fifteenth Amendment authority, as liability under

modern § 2 is based on little more than citizens’

voluntary choices about where to live and how to vote.

Especially as politics and society have become

integrated over the past few decades, with voting

differences traceable to partisan disagreements, the

connection between modern § 2 applications and the

Fifteenth Amendment is too tenuous. Plus, even if

modern § 2 applications were otherwise authorized,

Fifteenth

Amendment

legislation

must

“appropriate” and thus in harmony with the rest of the

Constitution, including the Fourteenth Amendment.

Requiring States to engage in racial segregation is

contrary to the Fourteenth Amendment. And a State

could have no compelling interest in complying with a

federal statute that is unauthorized by the

Constitution as a whole. So regardless of which test

applies, S.B. 8 is unconstitutional.

I. S.B. 8 impermissibly uses race as a negative

or a stereotype.

Regardless of whether a State’s law “compl[ies]

with strict scrutiny,” it “may never use race as a

stereotype or negative.” Students for Fair Admissions,

600 U.S. at 213. In Students for Fair Admissions, the

Court repeated the point: under the “commands of the

Equal Protection Clause,” “race may never be used as

a ‘negative’ and . . . may not operate as a stereotype.”

Id. at 218 (emphasis added). And “[j]ust like”

universities used race as a negative and stereotype in

the affirmative action context, “drawing district lines”

with “consideration of race” also uses race as a

negative or stereotype. Id. at 361 n.34 (Sotomayor, J.,

dissenting). “[F]encing” citizens of certain races “out of

town” “obviously discriminate[s] against” them.

Gomillion v. Lightfoot, 364 U.S. 339, 341–42 (1960).

There appears to be no dispute that “race was one

consideration” in S.B. 8’s district lines. Tr. of Oral Arg.

in Louisiana v. Callais, O. T. 2025, Nos. 24-109, 24110, p. 45 (statement of counsel for Appellants in No.

24-110); see id. at 56 (agreeing that “there’s a second

majority-minority district . . . because of race”). And

“systematically dividing the country into electoral

districts along racial lines” is “nothing short of a

system of ‘political apartheid.’” Holder v. Hall, 512

U.S. 874, 905 (1994) (Thomas, J., concurring in

judgment) (quoting Shaw v. Reno, 509 U.S. 630, 647

(1993)). “[D]istricting [laws] that sort voters on the

basis of race ‘are by their very nature odious.’”

Wisconsin Legislature v. Wisconsin Elections Comm’n,

595 U.S. 398, 401 (2022) (quoting Reno, 509 U.S. at

643). “When the State assigns voters on the basis of

race, it engages in the offensive and demeaning

assumption that voters of a particular race, because of

their race, think alike, share the same political

interests, and will prefer the same candidates at the

polls.” Miller v. Johnson, 515 U.S. 900, 911–12 (1995)

(cleaned

up).

These

assumptions

“further[]

stereotypes that treat individuals as the product of

their race, evaluating their thoughts and efforts—

their very worth as citizens—according to a criterion

barred to the Government by history and the

Constitution.” Students for Fair Admissions, 600 U.S.

at 221 (cleaned up).

Further, when racial lines are drawn, “the

multiracial . . . communities that our Constitution

seeks to weld together as one become separatist;

antagonisms that relate to race . . . rather than to

political issues are generated; communities seek not

the best representative but the best racial

. . . partisan.” Reno, 509 U.S. at 648 (quoting Wright v.

Rockefeller, 376 U.S. 52, 67 (1964) (Douglas, J.,

dissenting)). Race-based districting thus “tends to

sustain the existence of ghettos by promoting the

notion that political clout is to be gained or maintained

by marshaling particular racial, ethnic, or religious

groups in enclaves.” Johnson v. De Grandy, 512 U.S.

997, 1030 (1994) (Kennedy, J., concurring in part and

in judgment) (cleaned up).

This Court in Students for Fair Admissions relied

on the above cases in holding that race-based college

admissions policies impermissibly used race as a

stereotype or negative. 600 U.S. at 220–21. This

implicitly acknowledges the reality that race-based

districting too “fail[s] to comply with the

. . . commands of the Equal Protection Clause.” Id. at

218. “[A]t the heart of the Constitution’s guarantee of

equal protection lies the simple command that the

Government must treat citizens as individuals, not as

simply components of a racial, religious, sexual or

national class.” Miller, 515 U.S. at 911 (cleaned up).

Sorting voters into districts by their race based on

assumptions about a race’s propensity to support

particular candidates “turn[s] that principle on its

head.” Students for Fair Admissions, 600 U.S. at 223–

24. Because S.B. 8 indisputably involves race-based

districting with race used as a negative or stereotype,

it is unconstitutional, and no further analysis is

needed.

II. S.B. 8 is unsupported by a compelling interest

so flunks strict scrutiny.

Even if States could ever justify using race as a

negative or a stereotype by invoking strict scrutiny,

judicial balancing could not save S.B. 8. This Court’s

“precedents have identified only two compelling

interests that permit resort to race-based government

action”: “remediating specific, identified instances of

past discrimination,” and “avoiding imminent and

serious risks to human safety in prisons.” Students for

Fair Admissions, 600 U.S. at 207.

Neither appears to be asserted as justification for

S.B. 8. See, e.g., Supplemental Brief for Robinson

Appellants 32 (asserting “compelling interest in

remedying racial vote dilution”). Rather, S.B. 8’s

defenders assert a bare “compelling interest” in “§2” of

the Voting Rights Act. Id. at 36. But as Project on Fair

Representation has already shown, allowing statutory

compliance to be asserted as a justification for a

constitutional violation inverts our constitutional

order. See Amicus Brief 19–29.

Though S.B. 8’s defenders try to shoehorn § 2

compliance into “remediating specific, identified

instances of past discrimination,” Students for Fair

Admissions, 600 U.S. at 207, that effort is baseless. No

one has identified any “specific, identified instance[] of

past discrimination” with a logical connection to the

racial discrimination in S.B. 8. Compare Shaw v.

Hunt, 517 U.S. 899, 909–10 (1996) (explaining that

“[a] generalized assertion of past discrimination in a

particular . . . region is not adequate,” and “an effort

to alleviate the effects of societal discrimination is not

a compelling interest”), with Robinson v. Ardoin, 605

F. Supp. 3d 759, 847 (M.D. La. 2022) (the Robinson

district court relying on old historical discrimination

on the ground that “1965, the year the Voting Rights

Act was passed, is only 57 years [ago] today,” so “is not

ancient history”).

S.B. 8’s defenders repeatedly invoke the vacated

preliminary injunction in the prior Robinson

litigation, but even taking the preliminary findings

there at face value, no one could pretend that the

framework of Thornburg v. Gingles, 478 U.S. 30

(1986), is intended to or does identify past

discrimination with any direct connection to racebased districting. The Gingles framework “is

notoriously unclear and confusing,” with “‘considerable disagreement and uncertainty regarding the

nature and contours of a vote dilution claim.’” Merrill

v. Milligan, 142 S. Ct. 879, 881 (2022) (Kavanaugh, J.,

concurring) (quoting id. at 883 (Roberts, C.J.,

dissenting)). The best “approximat[ion]” of the

convoluted Gingles standard for § 2 liability is: “If

voting is racially polarized in a jurisdiction, and if

there exists any more or less reasonably configured

districting plan that would enable the minority group

to constitute a majority in a number of districts

roughly proportional to its share of the population,

then the jurisdiction must ensure that its districting

plan includes that number of majority-minority

districts ‘or something quite close.’” Allen v. Milligan,

599 U.S. 1, 81 (2023) (Thomas, J., dissenting).

“But racially polarized voting is not evidence of

unconstitutional discrimination,” Nw. Austin Mun.

Util. Dist. No. One v. Holder, 557 U.S. 193, 228 (2009),

and the independent choices of citizens of all races

about how to vote and where to live do not stack up to

discrimination of any type. Plus, “[g]iven the ubiquity

and long tradition of highly majoritarian electoral

systems in American democracy, there is scant basis

for suspecting an official intent to discriminate from

the mere fact that an electoral system results in a

minority

community

enjoying

less-thanproportionate share of political representation.”

Elmendorf, Making Sense of Section 2: Of Biased

Votes, Unconstitutional Elections, and Common Law

Statutes, 160 U. Pa. L. Rev. 377, 401 (2012).

S.B. 8’s defenders also invoke the Fifteenth

Amendment, suggesting that a statute that purportedly implements that amendment can provide a

compelling interest sufficient to violate the

Fourteenth Amendment. That is wrong, for at least

two reasons. First, it is doubtful that the Fifteenth

Amendment could still authorize § 2 as applied today.

Second, even assuming the Fifteenth Amendment

could otherwise justify modern § 2 applications, a

federal statute cannot be “appropriate” within the

meaning of § 2 of the Fifteenth Amendment if its

applications violate the Fourteenth Amendment. And

a State could not have a compelling interest in

complying with a federal statute that is not authorized

by the Constitution.

A. The Fifteenth Amendment cannot justify

modern § 2 applications like S.B. 8.

Louisiana could not have a compelling interest

sufficient to justify S.B. 8 in complying with § 2, for

the Fifteenth Amendment cannot today authorize

such race-based districting—if it ever could. The

Fifteenth Amendment provides that “[t]he right of

citizens of the United States to vote shall not be denied

or abridged by the United States or by any State on

account of race, color, or previous condition of

servitude,” and Congress may “enforce” that

prohibition “by appropriate legislation.” U.S. Const.

amend. XV. The amendment’s prohibition on

discriminatory denials of the right to vote cannot be

invoked today to justify discriminatory districting.

States could only have a “strong interest in complying

with federal antidiscrimination laws that are

constitutionally valid as interpreted and as applied.”

Reno, 509 U.S. at 654 (emphasis added). That no

longer describes § 2 applications.

As an initial matter, Congress’s Fifteenth

Amendment power to “enforce” should be read in

accord with its “normal meaning”—to “‘put in

execution.’” Tennessee v. Lane, 541 U.S. 509, 558–59

(2004) (Scalia, J., dissenting). The amendment thus

“does not authorize . . . so-called ‘prophylactic’

measures” that “prohibit[] primary conduct that is

itself not forbidden by the” amendment. Id. at 560.

“So-called ‘prophylactic legislation’ is reinforcement

rather than enforcement.” Id. at 559.

Here, there is no doubt that § 2 has long exceeded

the Fifteenth Amendment’s scope. For instance, “[t]his

Court has not decided whether the Fifteenth

Amendment applies to vote-dilution claims” at all.

Voinovich v. Quilter, 507 U.S. 146, 159 (1993).1 And

“racially discriminatory motivation is a necessary

ingredient of a Fifteenth Amendment violation.” City

of Mobile v. Bolden, 446 U.S. 55, 62 (1980) (plurality

opinion). Section 2 required that ingredient too at its

outset, id. at 60, but in 1982, Congress rewrote the

statute “to reach cases in which discriminatory intent

is not identified.” De Grandy, 512 U.S. at 1009 n.8.

Because “the Constitution requires a showing of intent

that [the new] § 2 does not, a violation of § 2 is no

longer a fortiori a violation of the Constitution.” Reno

v. Bossier Par. Sch. Bd., 520 U.S. 471, 482 (1997).

Applying the new § 2, the district court in the prior

Robinson litigation declared that “whether the

Louisiana Legislature intended to dilute the votes of

Black Louisianans” is “[n]ot relevant” and “the wrong

question.” 605 F. Supp. 3d at 777. Thus, § 2’s

application here exceeds Congress’s Fifteenth

Amendment enforcement authority, and S.B. 8 lacks a

compelling government interest rooted in any

constitutional statute.

The same result obtains even on the assumption

that the Fifteenth Amendment lets Congress

“prohibit[] a somewhat broader swath of conduct,

1 Properly understood, § 2 “does not apply to redistricting” either,

underscoring the implausibility of any compelling interest here

in complying with § 2. Abbott v. Perez, 585 U.S. 579, 622 (2018)

(Thomas, J., concurring, joined by Gorsuch, J.).

including that which is not itself forbidden by the

Amendment’s text.” Lane, 541 U.S. at 518 (quoting

Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 81 (2000)).

Such legislation may be “valid if it exhibits ‘a

congruence and proportionality between the injury to

be prevented or remedied and the means adopted to

that end.’” Id. at 520 (quoting City of Boerne v. Flores,

521 U.S. 507, 520 (1997)).

Notwithstanding the arguments of S.B. 8’s

defenders, this rule applies to both Fourteenth and

Fifteenth Amendment legislation, given “Congress’

parallel power to enforce the provisions of” these

amendments. City of Boerne, 521 U.S. at 518; see City

of Rome v. United States, 446 U.S. 156, 208 n.1 (1980)

(Rehnquist, J., dissenting) (collecting cases holding

that “the nature of the enforcement powers conferred

by the Fourteenth and Fifteenth Amendments has

always been treated as coextensive”). S.B. 8’s

defenders point to no difference in the meaning of

“enforce” between these provisions that would

warrant a different test. See United States v. Blaine

Cnty., 363 F.3d 897, 904 (CA9 2004) (applying

congruence-and-proportionality review to § 2). And it

would be passing strange to adjudicate the

constitutionality of Voting Rights Act provisions—

which were founded on the Fourteenth and Fifteenth

Amendments together, H.R. Rep. No. 89-439, at 6

(1965); S. Rep. No. 97-417, at 39 (1982)—differently

depending on whether a particular application

implicates one amendment or the other.2

Modern § 2 applications are not congruent or

proportional. From the start, § 2 “authorize[d] federal

intrusion into sensitive areas of state and local

policymaking and represent[ed] an extraordinary

departure from the traditional course of relations

between the States and the Federal Government.”

Shelby Cnty. v. Holder, 570 U.S. 529, 545 (2013)

(cleaned up); see Alexander v. S.C. State Conf. of the

NAACP, 602 U.S. 1, 6 (2024) (noting that “[t]he

Constitution entrusts state legislatures with the

primary responsibility for drawing congressional

districts”). Even if the provision originally “could be

justified by ‘exceptional conditions,’” Shelby Cnty., 570

U.S. at 545 (quoting South Carolina v. Katzenbach,

383 U.S. 301, 334 (1966)),3 the law’s “current

2 For instance, “the Fourteenth Amendment must afford the basis

for Section 2 claims brought by groups who are protected owing

to their status as language minorities rather than racial

minorities.” Making Sense of Section 2, supra, at 457 n.117. And

§ 2 “may need the Fourteenth Amendment as its anchor insofar

as it reaches injuries beyond simple vote denial.” Ibid.

3 It is doubtful that the “legislative record” even in 1982 when § 2

was amended supported the statute’s breadth. Allen v. Cooper,

589 U.S. 248, 261 (2020); see generally Brief for America First

Legal as Amicus Curiae in Support of Appellants/Petitioners 9–

13, Allen v. Milligan, Nos. 21-1086, 21-1087, 2022 WL 1462954

(May 2, 2022). As one academic has written, § 2 “remain[s] a

results test with no discernable core value whose functional

connection to the [Voting Rights Act’s] animating purpose is

incidental at best.” Making Sense of Section 2, supra, at 399.

burdens . . . must be justified by current needs,” id. at

542. “[A]t some point,” racial remedies “must end.”

Students for Fair Admissions, 600 U.S. at 213.

As this Court explained over a decade ago, “[v]oter

turnout and registration rates now approach parity.”

Shelby Cnty., 570 U.S. at 540. “Blatantly

discriminatory evasions of federal decrees are rare,”

“[a]nd

minority

candidates

hold

office

unprecedented levels.” Ibid. Contemporary research

consistently shows that political party attachment has

become far more important than racial, religious, or

ethnic attachments.4 Voting patterns show fluidity

and the importance of partisan mobilization, rather

than discrimination. For instance, the 2024

presidential election showed significant swings in

racial voting patterns, with minority voters

See Westwood et al., The Tie that Divides: Cross-National

Evidence of the Primacy of Partyism, 57 Eur. J of Pol. Rsch. 333,

338 (2017); Meyer et al., It’s Not Race, It’s Politics! A Natural

Experiment Examining the Influence of Race in Electoral Politics,

98 Soc. Sci. Q. 120, 130 (2017) (echoing finding that “when party

and ideology of candidates are controlled for whites are just as

likely to support an African-American candidate as they are a

white candidate”); Abrajano et al., A Natural Experiment of RaceBased and Issue Voting: The 2001 City of Los Angeles Elections,

58 Pol. Rsch. Q. 203, 215 (2005) (“Our analysis very clearly

indicates that whites are willing to vote for Latino candidates,

and that this willingness varies based on the ideology and issue

positions of the candidates.”); see also Stewart et al., Inequality,

Identity, and Partisanship: How Redistribution can Stem the

Tide of Mass Polarization, 118 Proceedings Nat’l Acad. Sci.

U.S.A. 1, 4 (2021).

supporting the Republican candidate much more

strongly.5

These political changes echo social interspersion.

“For the first time in modern American history, most

White people live in mixed-race neighborhoods.”6

“Back in 1990, 78 percent of White people lived in

predominantly White neighborhoods,” but “[i]n the

2020 Census, that[] plunged to 44 percent.”7 What’s

more, “a majority of major metro area residents in

each race and ethnic group now lives in the suburbs,”

and “a majority of youth (under age 18) in these

combined suburban areas is comprised of people of

color.”8 Interracial marriages have been steadily

increasing too, “growing from 7.4 percent in 2000 to

10.2 percent by 2016.”9 And “[i]ntermarriage rates are

higher for Millennials than for Gen Xers across all

racial and ethnic groups,” with “[t]he rate of

intermarriage among black Millennials” “nearly twice

5 Hartig et al., Behind Trump’s 2024 Victory, a More Racially and

Ethnically Diverse Voter Coalition, PEW Resch. Ctr. (June 26,

2025), https://perma.cc/RF5P-CRXT.

6 Mellnik & Van Dam, How Mixed-Race Neighborhoods Quietly

Became the Norm in the U.S., Wash. Post (Nov. 4, 2022),

https://tinyurl.com/2tku43tm.

7 Ibid.

8 Frey, Today’s Suburbs are Symbolic of America’s Rising

Diversity: A 2020 Census Portrait, Brookings (June 15, 2022),

https://perma.cc/JT3C-MQZ3.

9 Woolley et al., Interracial and Interethnic Marriages: Given

Recent History, Have Things Been Getting Better?, 48 Soc. Work

Rsch. 229, 229 (2024).

as high as that of black Gen Xers at a comparable age

(18% vs. 10%).”10

Despite all these changes, S.B. 8’s defenders insist

that § 2 is “an evergreen statute” with a “built-in focus

on current conditions” that “obviates the need for a

sunset date.” Supplemental Brief for Robinson

Appellants 29. This response is unconvincing, for

several reasons.

First, this Court rejected essentially the same

argument in Students for Fair Admissions, explaining

“that periodic review” does not “make unconstitutional

conduct constitutional.” 600 U.S. at 225.

Second, § 2 as applied today boils down to racial

group contiguity and racially polarized voting. As

explained above, voluntary choices by citizens in 2025

about where to live and how to vote do not evidence

discrimination. Those voluntary choices in no way

suggest a “deni[al] or abridg[ment] . . . by any State”

of “the right . . . to vote” “on account of race,” U.S.

Const. amend. XV §1. They do not even qualify as

“state action.” Nw. Austin, 557 U.S. at 228. What’s

more, “racial assumptions play critical roles in judicial

fact-finding about minority cohesion and in the

identification of minority candidates of choice”—and

are even “baked into the statistical tools for estimating

candidates’ vote shares by racial group.” Elmendorf et

al., Racially Polarized Voting, 83 U. Chi. L. Rev. 587,

626 (2016). Repeated use of racial stereotypes

10 Barroso et al., As Millennials Near 40, They’re Approaching

Family Life Differently Than Previous Generations, PEW Resch.

Ctr. (May 27, 2020), https://perma.cc/8M6M-MEBU.

magnifies rather than eliminates the constitutional

problems here.

Third, S.B. 8’s defenders seek refuge in “the very

plasticity of the results test,” Making Sense of Section

2, supra, at 384, particularly in “th’ol’ ‘totality of the

circumstances’ test.” United States v. Mead Corp., 533

U.S. 218, 241 (2001) (Scalia, J., dissenting). But the

totality-of-the-circumstances test does not do much

work in modern § 2 litigation, as the Robinson district

court explained: “it will be only the very unusual case

in which the plaintiffs can establish the existence of

the three Gingles factors but still have failed to

establish a violation of § 2 under the totality of

circumstances.” 605 F. Supp. 3d at 844 (quoting Ga.

State Conf. of NAACP v. Fayette Cnty. Bd. of Comr’s,

775 F.3d 1336, 1342 (CA11 2015)); see Racially

Polarized Voting, supra, at 600 n.73. And review of

lower court applications of the totality-of-thecircumstances test confirms why it is the “test most

beloved by” “court[s] unwilling to be held to rules.”

Mead, 533 U.S. at 241 (Scalia, J., dissenting).

Consider the Robinson opinion, which dredged up old

discrimination (“only 57 years old”!) connected to

modern district lines only by hand-wavy testimony by

purported “experts” opining on cherry-picked elections

and anecdotes. 605 F. Supp. 3d at 844–51; cf. Parents

Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551

U.S. 701, 766 (2007) (Thomas, J., concurring)

(explaining that “leav[ing] our equal protection

jurisprudence at the mercy of . . . the evanescent

views of a handful of social scientists” “would be to

abdicate our constitutional responsibilities”).

Fourth and relatedly, laws like S.B. 8 are not § 2.

S.B. 8’s defenders say that States only need “good

reasons” to think racial discrimination is needed to

comply with § 2, Supplemental Brief of Robinson

Appellants 14, making laws like S.B. 8 two steps

removed from the Fifteenth Amendment. Once again,

“the very plasticity of the results test,” Making Sense

of Section 2, supra, at 384, means that States could

often claim “good reason” to fear § 2 and thus racially

discriminate despite the absence of current conditions

that could possibly warrant race-based remedies.

In short, modern § 2 applications have the most

tenuous connection to the Fifteenth Amendment and

cannot be justified by that amendment. And because

those applications have no constitutional foundation,

complying with § 2 cannot be a compelling

government interest.

B. Section 2 cannot be “appropriate” to the

extent it requires violations of equal

protection.

Second, even assuming that the Fifteenth

Amendment otherwise sanctions modern § 2

applications, those applications still flunk the

requirement that Congress’s implementing legislation

be “appropriate.” U.S. Const. amend. XV, § 2. As this

Court has long recognized, “command[ing] that States

engage in presumptively unconstitutional race-based

districting brings [§ 2], once upheld as a proper

exercise of Congress’ authority under § 2 of the

Fifteenth Amendment, into tension with the

Fourteenth Amendment.” Miller, 515 U.S. at 927

(citation omitted). The original meaning of

“appropriate” precludes Fifteenth Amendment

statutory applications that violate the Fourteenth

Amendment’s Equal Protection Clause. More

generally, allowing Congress to wield Fifteenth

Amendment authority in a way that results in

Fourteenth Amendment violations contradicts the

Constitution’s overall scheme and fragments the

Reconstruction Amendments. “Congress does not have

the power to authorize the individual States to violate

the Equal Protection Clause,” Graham v. Richardson,

403 U.S. 365, 382 (1971), and “districting cases” are

not “excepted from standard equal protection

precepts,” Miller, 515 U.S. at 914.

The term “appropriate,” used in similar ways in the

Thirteenth, Fourteenth, Fifteenth, and Eighteenth

Amendments, “has its origins in the latitudinarian

construction of congressional power” in McCulloch v.

Maryland, 17 U.S. (4 Wheat.) 316 (1819), in which “the

terms ‘appropriate’ and ‘necessary and proper’ were

used interchangeably.” McConnell, Institutions and

Interpretation: A Critique of City of Boerne v. Flores,

111 Harv. L. Rev. 153, 178 n.153, 188 (1997) (citing 17

U.S. at 421–22); see also Lawson & Granger, The

“Proper” Scope of Federal Power: A Jurisdictional

Interpretation of the Sweeping Clause, 43 Duke L.J.

267, 336 n.189 (1993) (tracing this connection).

This Court has likewise held that “the draftsmen”

of the Reconstruction Amendments “sought to grant to

Congress” the “same” “powers expressed in the

Necessary and Proper Clause.” Katzenbach v. Morgan,

384 U.S. 641, 650 (1966); see id. at 651. “Thus the

McCulloch v. Maryland standard is the [general]

measure of what constitutes ‘appropriate legislation,’”

and that standard asks “whether [the law] is ‘plainly

adapted to [the amendment’s] end’ and whether it is

not prohibited by but is consistent with ‘the letter and

spirit of the constitution.’” Id. at 651 (quoting

McCulloch, 17 U.S. at 421).

The last part of this inquiry—whether the

statutory action “is not prohibited by but is consistent

with the letter and spirit of the constitution”—is

critical here. As this formulation suggests, the

implementing law must be consistent with not just the

amendment itself but with the Constitution as a

whole. Laws that “are not ‘consistent with the letter

and spirit of the constitution’ are not ‘proper’ means”

for executing Congress’s power. Nat’l Fed’n of Indep.

Bus. v. Sebelius, 567 U.S. 519, 559 (2012) (opinion of

Roberts, C.J.) (cleaned up). Rather, these laws are

“merely acts of usurpation which deserve to be treated

as such.” Ibid. (cleaned up) (quoting Printz v. United

States, 521 U.S. 898, 924 (1997), in turn quoting The

Federalist No. 33, at 204 (Hamilton)). This Court has

not hesitated to do just that, even with voting

legislation, in the face of inconsistency with other

parts of the Constitution. See Shelby Cnty., 570 U.S.

at 555.

In sum, Fifteenth Amendment “legislation is

appropriate only when it does not conflict with

another constitutional provision.” Carter, The

Political Aspects of Judicial Power: Some Notes on the

Presidential Immunity Decision, 131 U. Pa. L. Rev.

1341, 1378 (1983). And as shown above, § 2’s modern

applications require race-based districting in violation

of the Fourteenth Amendment. Thus, the statute no

longer qualifies as “appropriate,” and compliance with

a federal statute beyond congressional power cannot

be a compelling interest.

Even apart from the Fifteenth Amendment’s

express

“appropriate”

requirement,

Fifteenth

Amendment legislation should still conform to the

Fourteenth

Amendment’s

parameters.

Again,

“Congress has no affirmative power to authorize the

States to violate the Fourteenth Amendment and is

implicitly prohibited from passing legislation that

purports to validate any such violation.” Saenz v. Roe,

526 U.S. 489, 508 (1999).

“[F]ederal statute[s], in addition to being

authorized by [the Constitution to Congress], must

also not be prohibited by the Constitution.” United

States v. Comstock, 560 U.S. 126, 135 (2010) (cleaned

up). This Court has long viewed each constitutional

provision “as one part of a unified constitutional

scheme.” Tennessee Wine & Spirits Retailers Ass’n v.

Thomas, 588 U.S. 504, 519–20 (2019). That makes

sense, because “[c]ontext is a primary determinant of

meaning.” Scalia & Garner, Reading Law: The

Interpretation of Legal Texts 167 (2012). “A legal

instrument typically contains many interrelated parts

that make up the whole,” and “[t]he entirety of the

document thus provides the context for each of its

parts.” Ibid. So “[w]hen construing the United States

Constitution in McCulloch v. Maryland, Chief Justice

John Marshall rightly called for ‘a fair construction of

the whole instrument.’” Id. at 167–68 (quoting 17 U.S.

at 406); see also, e.g., Rice v. Cayetano, 528 U.S. 495,

512 (2000) (looking to “[c]onsisten[cy] with the design

of the Constitution”); Reid v. Covert, 354 U.S. 1, 21

(1957) (interpreting a provision in light of its “grand

design of the Constitution” and “other constitutional

provisions”).

This “holistic endeavor” is especially appropriate

when interpreting the Fourteenth and Fifteenth

Amendments. Scalia & Garner, supra, at 168 (quoting

United Sav. Ass’n of Texas v. Timbers of Inwood Forest

Assocs., Ltd., 484 U.S. 365, 371 (1988)). Congress

rested the Voting Rights Act on both amendments.

H.R. Rep. No. 89-439, at 6; S. Rep. No. 97-417, at 39.

And the amendments share a common “promise”:

“that our Nation is to be free of state-sponsored

discrimination.” Bush v. Vera, 517 U.S. 952, 968

(1996) (opinion of O’Connor, J.). As Justice Harlan put

it, their “common purpose” was to “remove[] the race

line from our governmental systems.” Plessy v.

Ferguson, 163 U.S. 537, 555 (1896) (Harlan, J.,

dissenting).

Thus,

the

“meaning

the

amendments . . . cannot be understood without

keeping in view the history of the times when they

were adopted, and the general objects they plainly

sought to accomplish.” Strauder v. West Virginia, 100

U.S. 303, 306 (1879).

All this confirms that the Fifteenth Amendment

legislative applications remain subject to the

Fourteenth Amendment’s overriding guarantee of

equal protection of the laws. Requiring States to

racially segregate their citizens is contrary to the “core

purpose” of both amendments: “doing away with all

governmentally imposed discrimination based on

race.” Students for Fair Admissions, 600 U.S. at 206

(brackets omitted). Because modern § 2 applications

violate equal protection, compliance with those

unconstitutional applications cannot be considered a

compelling government interest sufficient to justify

racial segregation of voting districts.

CONCLUSION

For these reasons, the Court should affirm.

Respectfully submitted,