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

Nos. 24-109, 24-110

In the Supreme Court of the United States

LOUISIANA, APPELLANT,

v.

PHILLIP CALLAIS, ET AL., APPELLEES

PRESS ROBINSON, ET AL., APPELLANTS,

v.

PHILLIPP CALLAIS, ET AL., APPELLEES

ON APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF LOUISIANA

BRIEF OF THE TOWN OF NEWBURGH

AS AMICUS CURIAE IN SUPPORT

OF APPELLEES

CARSON A. COX

TROUTMAN PEPPER

LOCKE LLP

1001 Haxall Point,

Richmond, VA 23219

MISHA TSEYTLIN

Counsel of Record

KEVIN M. LEROY

TROUTMAN PEPPER

LOCKE LLP

111 S. Wacker Drive

Suite 4100

Chicago, IL 60606

(608) 999-1240

misha.tseytlin@troutman.com

Attorneys for Amicus Curiae

TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIAE ............................1

INTRODUCTION AND SUMMARY OF

ARGUMENT ...........................................................4

ARGUMENT ...............................................................6

I. Some States Are Defying The Equal

Protection Clause By Enacting State-Level

VRAs That Discard More And More Of This

Court’s Gingles Framework Without Regard

To This Court’s Jurisprudence.........................6

II. Certain Courts Have Erroneously Held

That State VRAs Do Not Trigger Strict

Scrutiny Based Upon Rationales That Are

Contrary To This Court’s Case Law ..............15

A. No Strict Scrutiny When Citizens Of Any

Race Can Seek Race-Based Relief ............16

B. No Strict Scrutiny Because Insufficient

Electoral Success Is “Discrimination” ......20

C. No Strict Scrutiny When A Statute

Permits Remedies Other Than Drawing

Majority-Minority Districts ......................25

III. This Court Should Resolve This Case In A

Manner That Provides Clarity As To The

Constitutionality Of State VRAs As Well .....29

CONCLUSION ..........................................................33

ii

TABLE OF AUTHORITIES

Cases

Abbott v. Perez,

585 U.S. 579 (2018)....................................... 29, 32

Adarand Constructors Inc. v. Peña,

515 U.S. 200 (1995)................................ 18, 19, 31

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

602 U.S. 1 (2024)................................................. 23

Allen v. Milligan,

599 U.S. 1 (2023)......................................... 4, 7, 31

Bartlett v. Strickland,

556 U.S. 1 (2009)......................................... 4, 7, 15

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

488 U.S. 469 (1989)............................................. 32

Clarke v. Town of Newburgh,

237 A.D.3d 14 (N.Y. App. Div. 2025)...... 15, 16, 17,

20, 22, 25, 26

Clarke v. Town of Newburgh,

No.APL-2025-00110 (N.Y.) ................................... 3

Coads v. Nassau Cnty.,

236 N.Y.S.3d 490 (N.Y. Sup. Ct. 2024) ......... 15, 20,

21, 25, 26

Coal. for Econ. Equity v. Wilson,

122 F.3d 692 (9th Cir. 1997)............................... 22

iii

Coal. to Defend Affirmative Action v. Brown,

674 F.3d 1128 (9th Cir. 2012)................. 22, 23, 31

Concerned Citizens of Hardee Cnty. v. Hardee

Cnty. Bd. of Comm’rs,

906 F.2d 524 (11th Cir. 1990)............................. 11

Cooper v. Harris,

581 U.S. 285 (2017)....................2, 4, 10, 23, 29, 31

Fisher v. Univ. of Texas at Austin,

579 U.S. 365 (2016)............................................. 28

Gill v. Whitford,

585 U.S. 48 (2018)............................................... 13

Harrison v. NAACP,

360 U.S. 167 (1959)............................................... 5

Higginson v. Becerra,

786 Fed. App’x 705 (9th Cir. 2019) ........ 15, 20, 21

Johnson v. California,

543 U.S. 499 (2005)....................................... 18, 31

League of United Latin Am. Citizens v. Perry,

548 U.S. 399 (2006)......................................... 8, 11

Miller v. Johnson,

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

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

Dist. No. 1,

551 U.S. 701 (2007)....................................... 18, 19

iv

Petteway v. Galveston Cnty.,

111 F.4th 596 (5th Cir. 2024) ............................. 11

Pico Neighborhood Ass’n v. City of Santa Monica,

534 P.3d 54 (Cal. 2023) ........................... 15, 25, 26

Portugal v. Franklin Cnty.,

530 P.3d 994 (Wash. 2023) ............... 15, 16, 17, 20,

21, 25, 26

Powers v. Ohio,

499 U.S. 400 (1991)....................................... 18, 19

Radogno v. Ill. State Bd. of Elections,

No.1:11-cv-04884, 2011 WL 5025251 (N.D. Ill.

Oct. 21, 2011) ...................................................... 15

Raso v. Lago,

135 F.3d 11 (1st Cir. 1998) ................................. 23

Sanchez v. City of Modesto,

145 Cal. App. 4th 660 (2006) ............15, 16, 17, 20,

21, 22, 25, 26

Schuette v. Coal. to Defend Affirmative Action,

572 U.S. 291 (2014)....................................... 22, 31

Serratto v. Town of Mount Pleasant,

233 N.Y.S.3d 885 (N.Y. Sup. Ct. 2025) ............. 15

Shaw v. Reno,

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

Shelby Cnty. v. Holder,

570 U.S. 529 (2013)............................................. 23

v

Students for Fair Admissions, Inc. v. President &

Fellows of Harvard College,

600 U.S. 181 (2023)...... 4, 16, 18, 19, 24, 25, 27, 28

Thornburg v. Gingles,

478 U.S. 30 (1986).................4, 5, 6, 7, 8, 9, 10, 11,

12, 15, 16, 22, 31, 33

Vill. of Arlington Heights v. Metro. Hous. Dev.

Corp.,

429 U.S. 252 (1977)....................................... 28, 32

Wis. Legislature v. Wis. Elections Comm’n,

595 U.S. 398 (2022)..............................4, 11, 12, 29

Yumori-Kaku v. City of Santa Clara,

59 Cal. App. 5th 385 (2020) .......................... 15, 17

Constitutional Provisions

U.S. Const. amend. XIV, § 1 ...................................... 4

U.S. Const. amend. XV, § 2 ...................................... 32

Statutes

10 Ill. Comp. Stat. § 120/5-1 .............................. 7, 8, 9

52 U.S.C. § 10301 ..................................................... 13

Cal. Elec Code § 14027 ............................................... 8

Cal. Elec. Code § 14025 .............................................. 7

Cal. Elec. Code § 14026 .............................................. 8

Cal. Elec. Code § 14028 .................................... 7, 8, 24

vi

Colo. Rev. Stat. § 1-47-101 ............................... 7, 9, 14

Colo. Rev. Stat. § 1-47-103 ....................................... 14

Colo. Rev. Stat. § 1-47-106 ....................................... 14

Colo. Rev. Stat. § 1-47-205 ................................. 14, 24

Conn. Gen. Stat. § 9-368i ................................. 7, 9, 14

Minn. Stat. § 200.50 ............................................. 7, 14

N.Y. Elec. Law § 17-200 ..................................... 2, 7, 9

N.Y. Elec. Law § 17-204 ............................... 10, 12, 17

N.Y. Elec. Law § 17-206 ...... 2, 9, 10, 11, 12, 13, 17, 24

Or. Rev. Stat. § 255.400 ..................................... 7, 8, 9

Va. Code § 24.2-125 ............................................ 7, 8, 9

Wash. Rev. Code § 29A.92.005 .............................. 7, 8

Wash. Rev. Code § 29A.92.010 .................................. 9

Wash. Rev. Code § 29A.92.030 ............................ 9, 24

Other Authorities

Gerald Benjamin, At-Large Elections in N.Y.S.

Cities, Towns, Villages, and School Districts

and the Challenge of Growing Population

Diversity, 5(3) Albany Gov’t L. Rev. 733 (2012)... 1

Les Cornell, Town Historian, Town of Newburgh,

Town of Newburgh Retrospective ......................... 1

vii

Ruth M. Greenwood & Nicholas O.

Stephanopoulos, Voting Rights Federalism, 73

Emory L. J. 299 (2023) ......................7, 8, 9, 11, 13

U.S. Census Bureau, QuickFacts: Newburgh

town, Orange County, New York .......................... 1

INTEREST OF AMICUS CURIAE 1

Amicus the Town of Newburgh (“the Town”) is one

of the oldest political subdivisions in the State of New

York, with its charter dating back to 1788. See Les

Cornell, Town Historian, Town of Newburgh, Town of

Newburgh Retrospective. 2 Today, the Town is home

to just over 30,000 residents. See Cornell, supra; U.S.

Census Bureau, QuickFacts: Newburgh town, Orange

County, New York. 3 For more than 150 years, the

Town has used an at-large election method to elect the

supervisor and councilmembers of its Town Board.

See Gerald Benjamin, At-Large Elections in N.Y.S.

Cities, Towns, Villages, and School Districts and the

Challenge of Growing Population Diversity, 5(3)

Albany Gov’t L. Rev. 733, 736–38 (2012). There is no

claim that the Town’s adoption or maintenance of this

at-large system—which almost every town in New

York uses—had anything to do with racial

1 Amicus affirms that no counsel for a party authored this

brief in whole or in part and that no party, counsel for a party,

or any person other than Amicus or its counsel made a monetary

contribution intended to fund the preparation or submission of

this amicus brief.

2 Available at https://www.townofnewburghny.gov/cn/webp

age.cfm?tpid=4844 (all webpages last accessed September 23,

2025).

3 Available at https://www.census.gov/quickfacts/fact/table/

newburghtownorangecountynewyork/PST045222.

2

considerations. And no one challenged the Town’s atlarge system under Section 2 of the Voting Rights Act.

But New York has now placed the Town into an

unconstitutional crisis: either engage in racial

discrimination by changing its 150-year-old at-large

system for the sole purpose of increasing the electoral

success of citizens lumped together by certain races or

face crushing liability, including forcing this small

town potentially having to pay millions of dollars in

plaintiffs’ attorneys’ fees. That is because New

York—like an increasing number of States—has

adopted a statute that raises even more grave

constitutional concerns than does Section 2 of the

VRA. Under the newly enacted John R. Lewis Voting

Rights Act of New York (“New York VRA”), N.Y. Elec.

Law § 17-200 et seq., the Town must change its

electoral system to increase the electoral prospects of

its citizens lumped together by race if either (1)

racially polarized voting exists in the Town, id. § 17206(2)(b)(i)(A)—that is, the phenomenon of

“discernible, non-random relationships between race

and voting,” which obtains “in most States,” “to no

one’s great surprise,” Cooper v. Harris, 581 U.S. 285,

304 n.5 (2017)—or (2) there is an impairment of

citizens’ ability to influence the outcome of an

election, under an amorphous all-things-considered

inquiry, N.Y. Elec. Law § 17-206(2)(b)(i)(B).

When a group of plaintiffs recently sued the Town

under the New York VRA (and, notably, not Section 2

of the VRA), the trial court ruled that the New York

3

VRA violates the Equal Protection Clause. See Clarke

v. Town of Newburgh, Index No.EF002460-2024,

NYSCEF No.147 (N.Y. Sup. Ct. Nov. 7, 2024). 4 But

the Appellate Division reversed. The Town’s appeal

to the New York Court of Appeals is now fully briefed,

with oral argument set for October 14, 2025, see

Clarke v. Town of Newburgh, No.APL-202500110 (N.Y.), the day before this Court is set to hear

oral argument in this case.

This Court’s resolution of this case, as elucidated

by its supplemental question issued on August 1,

2025, directly implicates the Town’s interests. This

Court is facing various arguments from amici

supporting the Robinson Appellants with regard to

Section 2 of the VRA that are similar to the

arguments that the Town is facing as to the New York

VRA. To be sure, the Town’s Equal Protection Clause

challenge to the New York VRA should prevail no

matter how this case comes out because the New York

VRA systematically dismantles the vast majority of

the safeguards of Section 2 of the VRA. At the same

time, this Court explicitly rejecting the arguments

put forward in this case in defense of Section 2 would

necessarily mean that the Town’s challenge to New

York’s VRA will prevail.

Available at https://iapps.courts.state.ny.us/nyscef/View

Document?docIndex=Npvril3DBk70tqvUnkvlVw==.

4

4

INTRODUCTION AND

SUMMARY OF ARGUMENT

This Court has repeatedly held that governments

cannot make decisions that impact citizens’ rights

and interests based upon race except in exceedingly

narrow circumstances, such as remedying specific

past discrimination. As relevant here, this Court has

strongly suggested that Section 2 of the VRA stands

at the outer boundaries of what the Equal Protection

Clause, U.S. Const. amend. XIV, § 1, tolerates,

assuming (but not holding) that Section 2’s race-based

redistricting mandate satisfies strict scrutiny, see,

e.g., Cooper, 581 U.S. at 292; Bartlett v. Strickland,

556 U.S. 1, 21–22 (2009) (plurality opinion); Wis.

Legislature v. Wis. Elections Comm’n, 595 U.S. 398,

401–02 (2022) (per curiam); Allen v. Milligan, 599

U.S. 1, 30 (2023). This Court now appears to be

considering whether Section 2, as cabined by

Thornburg v. Gingles, 478 U.S. 30 (1986), can survive

the Equal Protection Clause, including in light of this

Court’s landmark decision in Students for Fair

Admissions, Inc. v. President & Fellows of Harvard

College, 600 U.S. 181 (2023) (“SFFA”).

While the Town agrees with Appellees that this

Court should hold that Section 2 cannot survive SFFA

as applied to redistricting, the Town submits this

amicus brief to bring to this Court’s attention a

serious problem that the Court’s decision will affect.

Recently, certain States have engaged in what can

only be described as “massive resistance,” Harrison v.

5

NAACP, 360 U.S. 167, 175 (1959), to this Court’s

Equal Protetion Clause jurisprudence. Reacting to

this Court tightening the boundaries of what Gingles

permits, including on constitutional-avoidance

grounds, certain States have engaged in increasingly

aggressive efforts to force their municipalities to

racially discriminate. These States have done this by

adopting ever-more-aggressive, race-based state

VRAs that systematically eliminate the safeguards

that this Court built into Section 2 in Gingles.

The New York VRA, over which the Town is

currently litigating, brings these attacks on the Equal

Protection Clause together in one grotesquely

unconstitutional package, as it: (1) eliminates

Gingles’ first and second preconditions; (2) mandates

so-called “influence”-district claims, allowing a

member of a minority group to assert a claim even

where that group could only influence the outcome of

an election; (3) authorizes so-called “coalition”-district

claims, allowing a member of a minority group to

assert a claim based upon a combination of multiple

racial groups; (4) eliminates the mandatory nature of

Gingles’ second step by permitting plaintiffs to prove

vote-dilution by showing that the common

phenomenon of racial polarization exists, without also

requiring

satisfaction

of

a

totality-of-thecircumstances inquiry; and (6) prevents courts from

considering evidence that race-neutral factors like

partisanship explain voting patterns, and much more.

An increasing number of States are following New

York’s lead down this unconstitutional path.

6

The various arguments that courts across the

country have accepted in defense of state VRAs,

including New York’s VRA, violate this Court’s case

law. Those arguments are now before this Court in

the briefs filed by certain amici supporting the

Robinson Appellants, in defense of Section 2 of the

VRA. The Town thus respectfully asks that when this

Court resolves this case, that it make clear that all of

the arguments are wrong. That would not only

properly reject various arguments that these amici

have raised in defense of Section 2, but help put an

end to state-level VRA defiance of this Court’s Equal

Protection Clause jurisprudence.

ARGUMENT

I.

Some States Are Defying The Equal

Protection Clause By Enacting State-Level

VRAs That Discard More And More Of This

Court’s Gingles Framework Without Regard

To This Court’s Jurisprudence

This Court has long warned that race-based

redistricting is an especially constitutionally-fraught

area because of the “particular dangers” that “[r]acial

classifications with respect to voting carry;” namely,

the risk of “balkaniz[ation]” of the Nation into

“competing racial factions” and the deferral of our

Constitution’s “goal of a political system in which race

no longer matters.” Shaw v. Reno, 509 U.S. 630, 657

(1993) (“Shaw I”). Accordingly, easing any of the

“exacting requirements” of the Gingles framework for

7

Section 2 of the VRA, Allen, 599 U.S. at 30, would

create “serious constitutional concerns under the

Equal Protection Clause,” Bartlett, 556 U.S. at 21

(plurality opinion). Defying these warnings, States

across the Nation—from California to New York—

have adopted state VRAs that have discarded more

and more of Gingles’ safeguards, expanding radically

the use of racial classifications with respect to

redistricting. See Cal. Elec. Code § 14025 et seq.; 10

Ill. Comp. Stat. § 120/5-1 et seq.; Wash. Rev. Code

§ 29A.92.005 et seq.; Or. Rev. Stat. § 255.400 et seq.;

Va. Code § 24.2-125 et seq.; N.Y. Elec. Law § 17-200 et

seq.; Conn. Gen. Stat. § 9-368i et seq.; Minn. Stat.

§ 200.50 et seq.; Colo. Rev. Stat. § 1-47-101 et seq.

A. California began this trend by enacting its own

state VRA in 2003. See generally Cal. Elec. Code

§ 14025 et seq. “The most notable way” that the

California VRA departs from Gingles is by

“abandoning Gingles’s first prong.” See Ruth M.

Greenwood & Nicholas O. Stephanopoulos, Voting

Rights Federalism, 73 Emory L. J. 299, 310 (2023).

The California VRA “explicitly reject[s] the condition

that plaintiffs demonstrate that another reasonablycompact, majority-minority district could be drawn,”

id. at 311, by providing that “[t]he fact that members

of a protected class are not geographically compact or

concentrated may not preclude . . . a violation of [the

statute],” Cal. Elec. Code § 14028(c). It also “allow[s]

influence claims to be advanced”—meaning a plaintiff

can rely on “minority voters” who “can’t elect their

preferred candidate . . . but can still affect which

8

candidate wins.” Greenwood & Stephanopoulos,

supra, at 314; see Cal. Elec Code § 14027; League of

United Latin Am. Citizens (“LULAC”) v. Perry, 548

U.S. 399, 446 (2006) (plurality opinion) (declining to

recognize “influence district[s]” for Section 2 claims)

(citation omitted). Next, the California VRA departs

from Gingles’ second step by adopting a more openended,

amorphous

totality-of-the-circumstances

inquiry. See Cal. Elec. Code § 14028. All that said,

California did not wholesale abandon Gingles by

requiring plaintiffs both to show the existence of

racially polarized voting and to satisfy a totality-ofthe-circumstances showing.

See id. §§ 14028(a),

14026(e); Greenwood & Stephanopoulos, supra,

at 313. The California VRA also incorporates Gingles’

second and third preconditions and expressly requires

courts to interpret the law’s terms consistent with

federal case law regarding Section 2. See Cal. Elec.

Code § 14026(e); Greenwood & Stephanopoulos,

supra, at 310–11.

Several other States followed California’s lead by

enacting their own state VRAs similar to the

California VRA. See, e.g., 10 Ill. Comp. Stat. § 120/51 et seq.; Wash. Rev. Code § 29A.92.005 et seq.; Or.

Rev. Stat. § 255.400 et seq.; Va. Code § 24.2-125 et seq.

The Washington VRA, which “substantially

resemble[s]” the California VRA, Greenwood &

Stephanopoulos, supra, at 320, is perhaps the most

notable, Wash. Rev. Code § 29A.92.005 et seq. It

disclaims Gingles’ first precondition and expands its

scope by permitting coalition claims. See Greenwood

9

& Stephanopoulos, supra, at 310–14. It also contains

an ambiguous totality-of-the-circumstances inquiry

that requires no showing of discriminatory intent or

practices.

See Wash. Rev. Code § 29A.92.030.

Nevertheless, like the California VRA, it retains

Gingles’ second and third preconditions, see

Greenwood & Stephanopoulos, supra, at 310–11;

requires plaintiffs to establish the existence of

racially polarized voting and make a totality-of-thecircumstances showing, see Wash. Rev. Code

§ 29A.92.030(1)(a)–(b); and incorporates “relevant

federal case law,” id. § 29A.92.010. A couple of other

States have taken largely the same approach. See Or.

Rev. Stat. § 255.400 et seq.; Va. Code § 24.2-125 et

seq.; 10 Ill. Comp. Stat. § 120/5-1 et seq.; Greenwood

& Stephanopoulos, supra, at 312–14, 320.

B. In recent years, a new generation of state VRAs

has emerged, with certain States departing even more

aggressively from Gingles. See, e.g., N.Y. Elec. Law

§ 17-200 et seq.; Conn. Gen. Stat. § 9-368i et seq.; Colo.

Rev. Stat. § 1-47-101 et seq.

New York’s state VRA, enacted in 2022, is the

exemplar of this newer, more radical approach. It

provides that illegal “vote dilution” is conclusively

established with one of two “showings,” depending

upon whether the political subdivision at issue has

adopted an “at-large method of election” (like the

Town) or a “district-based or alternative method of

election.” N.Y. Elec. Law § 17-206(2)(b)(ii). For “atlarge” election systems, prohibited “vote dilution”

10

exists when “either: (A) voting patterns of members of

the protected class”—meaning “a class of individuals

who are members of a race, color, or languageminority group,” id. § 17-204(5)—“within the political

subdivision are racially polarized,” id. § 17206(2)(b)(i)(A), “or (B) under the totality of the

circumstances, the ability of members of the protected

class to elect candidates of their choice or influence

the outcome of elections is impaired,” id. § 17206(2)(b)(i)(B) (emphases added). The New York VRA

then defines “racially polarized voting” as merely the

“divergence in the . . . choice[s] of members in a

protected class from the . . . choice[s] of the rest of the

electorate.” Id. § 17-204(6). A political subdivision

with an at-large method has engaged in prohibited

“vote dilution,” id. § 17-206(2), whenever there are

“discernible, non-random relationships between race

and voting”—i.e., “racially polarized voting.” Cooper,

581 U.S. at 304 n.5.

For “a district-based or

alternative method of election,” prohibited vote

dilution exists whenever the “candidates or electoral

choices preferred by members of the protected class

would usually be defeated, and either: (A) voting

patterns of members of the protected class within the

political subdivision are racially polarized; or (B)

under the totality of the circumstances, the ability of

members of the protected class to elect candidates of

their choice or influence the outcome of elections is

impaired.” N.Y. Elec. Law § 17-206(2)(b)(ii).

The New York VRA disclaims nearly all the

safeguards in Gingles’ two-step “framework”—the

11

satisfaction of the three necessary “preconditions”

and then the showing that, under “the totality of

circumstances,” “‘the political process is [not] equally

open to minority voters.’” Wis. Legislature, 595 U.S.

at 402 (quoting Gingles, 478 U.S. at 79).

To begin, the New York VRA “mandate[s] that a

reviewing court not consider the first of the Gingles

preconditions,” Clarke, Index No.EF002460-2024,

NYSCEF No.147 at 22—that “[t]he minority group

must be sufficiently large and compact to constitute a

majority in a reasonably configured district,” Wis.

Legislature, 595 U.S. at 402—“in determining a vote

dilution claim” at the liability stage, Clarke, Index

No.EF002460-2024, NYSCEF No.147 at 22.

The New York VRA authorizes plaintiffs to

pursue vote-dilution claims based on minority groups

that can only “influence the outcome of elections,”

N.Y. Elec. Law § 17-206(2)(b)(ii)(B) (emphasis added),

as well as claims relying on a “combin[ation]” of

multiple minority groups into a coalition, id. § 17206(2)(c)(iv); Greenwood & Stephanopoulos, supra,

at 314. That too makes the New York VRA sweep far

broader than Section 2, which does not permit socalled “influence district[s],” LULAC, 548 U.S. at 446

(plurality opinion), or “coalition” district claims,

Petteway v. Galveston Cnty., 111 F.4th 596, 599 (5th

Cir. 2024) (en banc); but see Concerned Citizens of

Hardee Cnty. v. Hardee Cnty. Bd. of Comm’rs, 906

F.2d 524, 526 (11th Cir. 1990).

12

Further, the New York VRA eschews Gingles’

second precondition—that the minority group be

“politically cohesive.” Wis. Legislature, 595 U.S.

at 402. The New York VRA broadly defines “racially

polarized voting” to mean only a mere “divergence”

between the voting preferences of a protected class

and “the rest of the electorate.” N.Y. Elec. Law § 17204(6) (emphasis added).

The second Gingles

precondition, in contrast, requires “a significant

number” of the minority group’s members usually to

vote for the same “preferred candidates.” 478 U.S.

at 56 (emphasis added). And the New York VRA

further prevents courts from fully evaluating whether

a given minority group is politically cohesive by

prohibiting consideration of evidence that “subgroups” within the class “have different voting

patterns.” N.Y. Elec. Law § 17-206(2)(c)(vii).

Nor does the New York VRA require plaintiffs to

satisfy Gingles’ second step—the totality-of-thecircumstances inquiry. See id. §§ 17-206(2)(b)(i)(B),

17-206(2)(b)(ii)(B). Rather, New York VRA plaintiffs

can prove a vote-dilution claim solely by showing that

the exceedingly common phenomenon of racially

polarized voting exists or, separately, by satisfying the

totality-of-the-circumstances inquiry. Supra pp.9–10.

And even when a plaintiff does rely upon the New

York VRA’s totality-of-the-circumstances inquiry,

that inquiry is far more capacious than Section 2’s

totality-of-the-circumstances test. The New York

VRA’s totality-of-the-circumstances inquiry “lists 11

factors that may be considered,” leaving the court

13

“free to find vote[ ] dilution based on any criteria that

the court itself creates, or no criteria at all.” Clarke,

Index No.EF002460-2024, NYSCEF No.147 at 20

(discussing N.Y. Elec. Law § 17-206(3)). It is, in sum,

“lax to the point of explicitly allowing a court to find

vote[ ] dilution exists without citing any basis.” Id.

Finally, and again showing the breadth of the

New York VRA’s departure from this Court’s

precedent, the law establishes several evidentiary

rules for “purposes of demonstrating that a

violation . . . has occurred.” N.Y. Elec. Law § 17206(2)(c). For instance, the New York VRA prevents

courts from considering “whether members of a

protected class are geographically compact or

concentrated,” but allows courts to consider such

evidence “in determining an appropriate remedy.” Id.

§ 17-206(2)(c)(viii).

Thus, the New York VRA

“suggest[s] that a form of proportional representation

is a proper remedy in certain cases,” Greenwood &

Stephanopoulos, supra, at 314, in direct contrast to

Section 2 of the VRA and this Court’s precedent, see

52 U.S.C. § 10301(b); Gill v. Whitford, 585 U.S. 48, 68

(2018). The New York VRA similarly prevents courts

from considering highly relevant evidence going to

whether there was any “intent” by the relevant

political subdivision “to discriminate against [the]

protected class,” N.Y. Elec. Law § 17-206(2)(c)(v), or

whether non-race-based factors like partisanship

could explain “voting patterns and election outcomes”

in the relevant jurisdiction, id. § 17-206(2)(c)(vi).

14

Other States have followed New York’s

unconstitutional lead and enacted state VRAs that

are more race-infused than either Section 2 of the

VRA or the prior state VRAs. See Conn. Gen. Stat.

§ 9-368i et seq. (2023); Minn. Stat. § 200.50 et seq.

(2024); Colo. Rev. Stat. § 1-47-101 et seq. (2025). For

example, the Colorado VRA, Colo. Rev. Stat. § 1-47101 et seq., contains a “[p]rohibition on voter dilution,”

id. § 1-47-106, that broadly prohibits “any method of

election” with the “intent[ ]” (at least “in part”) or the

“effect” of “disparately impairing the equal

opportunity or ability of members of a protected class

to elect the candidates of their choice or otherwise

influence the outcome of elections,” id. § 1-47-106(1)

(emphasis added). Like the New York VRA, the

Colorado VRA authorizes plaintiffs to prove a votedilution claim either by showing that there is

“polarized voting” or by showing that, “[b]ased on the

totality of the circumstances,” minority voters’

“opportunity or ability . . . to nominate or elect the

candidates of their choice is disparately impaired.”

Id. § 1-47-106(2)(a). Similarly, like the New York

VRA, the Colorado VRA disclaims many of Gingles’

safeguards.

See id. §§ 1-47-103(23), -106(2)(a), 205(1)(a)(I)–(II), -205(4); compare supra pp.10–13.

15

II. Certain Courts Have Erroneously Held That

State VRAs Do Not Trigger Strict Scrutiny

Based Upon Rationales That Are Contrary

To This Court’s Case Law

Notwithstanding warnings that the loosening of

Ginlges’ preconditions would create “serious

constitutional concerns,” Bartlett, 556 U.S. at 21

(plurality opinion), and these state VRAs dismantling

virtually all those safeguards, several state and

lower-federal court have upheld these state VRAs

against Equal Protection Clause challenges. See, e.g.,

Clarke v. Town of Newburgh, 237 A.D.3d 14 (N.Y.

App. Div. 2025), mot. for leave to appeal granted (New

York VRA); Serratto v. Town of Mount Pleasant, 233

N.Y.S.3d 885 (N.Y. Sup. Ct. 2025) (same); Coads v.

Nassau Cnty., 236 N.Y.S.3d 490 (N.Y. Sup. Ct. 2024)

(same); Pico Neighborhood Ass’n v. City of Santa

Monica, 534 P.3d 54 (Cal. 2023) (California VRA);

Yumori-Kaku v. City of Santa Clara, 59 Cal. App. 5th

385 (2020) (same); Higginson v. Becerra, 786 Fed.

App’x 705 (9th Cir. 2019) (same); Sanchez v. City of

Modesto, 145 Cal. App. 4th 660 (2006) (same);

Portugal v. Franklin Cnty., 530 P.3d 994 (Wash. 2023)

(Washington VRA); Radogno v. Ill. State Bd. of

Elections, No.1:11-cv-04884, 2011 WL 5025251 (N.D.

Ill. Oct. 21, 2011) (Illinois VRA). These courts have

reached these holdings by concluding that strict

scrutiny does not apply to these race-based statutes

for several primary reasons, described below, which

are each contrary to decades of this Court’s Equal

Protection case law and, at minimum, cannot survive

16

this Court’s latest clarification of its Equal Protection

Clause jurisprudence in SFFA. 5

A. No Strict Scrutiny When Citizens Of Any

Race Can Seek Race-Based Relief

Certain courts considering equal-protection

challenges to state VRAs have declined to apply strict

scrutiny because these provisions “allow[ ] members

of all racial groups, including white voters, to bring

vote dilution claims, including when white voters

constitute a minority in a political subdivision.”

Clarke, 237 A.D.3d at 33; see also Sanchez, 145 Cal.

App. 4th at 668, 682; Portugal, 530 P.3d

at 1007, 1011.

For example, with respect to the New York VRA,

New York’s Appellate Division has explained that the

New York VRA gives “rights to ‘members of [any]

5 Notably, courts had to uphold these state VRAs on the

grounds that they do not trigger strict scrutiny because there is

no plausible argument that these state VRAs survive strict

scrutiny’s “daunting two-step examination.” SFFA, 600 U.S.

at 206–07. Such laws do not further the government’s interest

in “remediating specific, identified instances of past

discrimination,” id. at 207, as they disclaim any need to prove

that the political subdivision at issue engaged in past

discriminatory conduct, see supra Part I. Further, these laws

are not “narrowly tailored—meaning necessary,’’ SFFA, 600 U.S.

at 207 (citations omitted)—to furthering any compelling

interest, including because they systematically shed Gingles’

limits without sufficient justification, see supra Part I.

17

race, color, or language-minority group’ in order to

‘ensure that voters of [any] race, color, and languageminority groups have equitable access to fully

participate in the electoral process’”—including

“white voters,” when they “constitute a minority in a

political subdivision.” Clarke, 237 A.D.3d at 33 (first

quoting N.Y. Elec. Law § 17-204(5) and then N.Y.

Elec. Law § 17-206(5)(a)).

Courts in California and Washington have

adopted the same rationale. The California Court of

Appeal has concluded that the California VRA is not

“subject to strict scrutiny” because it “confers on

members of any racial group a cause of action to seek

redress for a race-based harm, vote dilution.”

Sanchez, 145 Cal. App. 4th at 680–81. Thus, the

California Court of Appeal has explained, the

California VRA “does not favor any race over others

or allocate benefits or impose burdens on the basis of

race,” meaning that the law triggered only “rational

basis review.” Yumori-Kaku, 59 Cal. App. 5th at 427.

The Supreme Court of Washington agreed, holding

that the “plain meaning” of the Washington VRA

“applies to all Washington voters” and makes “every

Washington voter [ ] a member of at least one

protected class,” Portugal, 530 P.3d at 1007, meaning

that the statute only “triggers rational basis review,

not strict scrutiny,” id. at 1011.

This conclusion is clearly contrary to this Court’s

equal-protection precedent.

This Court has

repeatedly explained that “all racial classifications,

18

imposed by [a] governmental actor, must be

analyzed . . . under strict scrutiny.”

Adarand

Constructors Inc. v. Peña, 515 U.S. 200, 227 (1995)

(emphasis added); see also Johnson v. California, 543

U.S. 499, 505 (2005). So, whenever “the government

distributes burdens or benefits on the basis of

individual racial classifications, that action is

reviewed under strict scrutiny.” Parents Involved in

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

720 (2007). That is because the Equal Protection

Clause applies “without regard to any differences of

race, of color, or of nationality.” SFFA, 600 U.S.

at 206 (citation omitted). Accordingly, every time a

law makes “racial classifications”—“even when they

may be said to burden or benefit the races equally”—

courts must subject that law to strict scrutiny.

Johnson, 543 U.S. at 506 (citation omitted).

Johnson and Powers v. Ohio, 499 U.S. 400 (1991),

are on point. Johnson held that “strict scrutiny”

applied to the California Department of Correction’s

“policy of racially segregating [all] prisoners” of any

race for a period of time upon their transfer to a new

facility because “racial classifications receive close

scrutiny even when they may be said to burden or

benefit the races equally.” 543 U.S. at 502, 506

(citations omitted). Similarly, Powers held that an

Ohio prosecutor’s race-based preemptory strikes of

potential jurors violated the Equal Protection Clause,

after specifically rejecting the argument “that racebased peremptory challenges survive equal protection

19

scrutiny because members of all races are subject to

like treatment.” 499 U.S. at 410.

Applying this Court’s equal-protection precedent

here, state VRAs cannot evade strict-scrutiny review

simply because they may theoretically be invoked by

members of any particular race, depending on the

demographic and political-performance mix in a

specific town.

State-level VRAs make “racial

classifications,” Adarand, 515 U.S. at 227, or

“distribute[ ] burdens or benefits on the basis of

individual racial classification,” Parents Involved, 551

U.S. at 720, whenever a plaintiff wields them against

a political subdivision. That is because these laws

compel political subdivisions to alter their method of

election for the sole purpose of increasing the electoral

success of citizens lumped together by race.

A straightforward hypothetical based on SFFA

further demonstrates the flaw in the reasoning that

state VRAs evade strict-scrutiny review by

authorizing members of all races to bring claims. If,

in response to SFFA, colleges and universities simply

changed their race-based admission schemes to give a

“plus” factor, 600 U.S. at 196, to applicants of any race

that was presently underrepresented at the college or

university, based upon the most recently admitted

class, no one would seriously argue that those

modified affirmative-action programs would escape

strict-scrutiny review, even if applicants of any race

could theoretically benefit from affirmative action if

their race was underrepresented in the prior year’s

20

admitted class. For the same reason, state VRAs

trigger strict-scrutiny review because they always

require political subdivisions to alter their election

methods based on race, notwithstanding the fact that

citizens grouped together by any race may

theoretically invoke these provisions, if those citizens

happen to be electing “too few” of their preferred

candidates in a political subdivision.

B. No Strict Scrutiny Because Insufficient

Electoral Success Is “Discrimination”

Multiple courts considering challenges to state

VRAs have also held that such laws avoid strictscrutiny review because they “protect against racial

discrimination” within the political subdivision.

Clarke, 237 A.D.3d at 31–32; see Coads, 236 N.Y.S.3d

at 505; Sanchez, 145 Cal. App. 4th at 666; Higginson,

786 Fed. App’x at 707; Portugal, 530 P.3d at 1011.

The courts’ consideration of the New York VRA is

illustrative. In holding that the New York VRA did

not facially trigger strict scrutiny, the Appellate

Division stated that “the New York State Legislature

has the authority to enact statutes that protect

against racial discrimination pursuant to its general

police power.” Clarke, 237 A.D.3d at 31–32. The New

York VRA, the court further explained, is such an

“[anti]racial discrimination” statute—just like “the

federal Civil Rights Act.” Id. at 34 (citations omitted).

No court has concluded that such antidiscrimination

laws are “subject to strict scrutiny.” Id. Or, as

21

another court in New York explained, the New York

VRA simply “protect[s] all voters from racial

discrimination in voting,” Coads, 236 N.Y.S.3d at 505,

so strict scrutiny does not apply.

Courts

considering

the

California

and

Washington VRAs have employed the same logic. So,

courts in California have explained that the

California VRA “remed[ies] a race-related harm,”

Sanchez, 145 Cal. App. 4th at 687, and “eliminate[s]

racial disparities” in voting, Higginson, 786 Fed.

App’x at 707 (citation omitted), equivalent to

“statutes that create causes of action for racial

discrimination” like “the federal Civil Rights Act” or

the Fair Housing Act, Sanchez, 145 Cal. App. 4th

at 666. In these courts’ view, strict scrutiny “does not

apply” to the California VRA because it is an

“antidiscrimination law[ ].” Sanchez, 145 Cal. App.

4th at 682. The Supreme Court of Washington

similarly held that the Washington VRA escapes

strict scrutiny because it is designed “to remedy

proven racial discrimination.” Portugal, 530 P.3d

at 1010. Indeed, in that court’s opinion, subjecting a

law like the Washington VRA to strict scrutiny would

mean that “every statute prohibiting racial

discrimination or mandating equal voting rights

would . . . trigger[ ] strict scrutiny.” Id. at 1006.

In holding that state VRAs remedy race

discrimination, these courts must have concluded

that citizens lumped together by race experiencing

insufficient electoral success is disparate-impact race

22

discrimination. After all, none of these state VRAs

require proof that anyone within the political

subdivision—let alone the political subdivision

itself—has engaged in intentional discrimination.

See supra Part I. Thus, for these courts to label the

insufficient electoral success of a racial group as

“racial discrimination,” Clarke, 237 A.D.3d at 31–32,

or “race-related harm,” Sanchez, 145 Cal. App. 4th

at 687, in the absence of any discriminatory intent,

they have necessarily concluded that insufficient

electoral success qualifies as a “discriminatory effect

alone,” Gingles, 478 U.S. at 35.

This conclusion is wrong. Antidiscrimination

statutes require treatment of “all persons . . . with

fairness and equal dignity” without regard to race,

Schuette v. Coal. to Defend Affirmative Action, 572

U.S. 291, 312 (2014), by “prohibit[ing]” the relevant

state actor “from classifying individuals by race” and

then taking some adverse action based on that

impermissible classification, Coal. to Defend

Affirmative Action v. Brown, 674 F.3d 1128, 1132 (9th

Cir. 2012) (citation omitted). An antidiscrimination

statute treats race in a “neutral-fashion” by declaring

it to be an “impermissible criteria” on which to base

the conduct at issue; a law that forbids the relevant

actor “from classifying individuals by race . . . a

fortiori does not classify individuals impermissibly.”

Coal. to Defend Affirmative Action, 674 F.3d at 1132

(citations omitted); see also Coal. for Econ. Equity v.

Wilson, 122 F.3d 692, 707 (9th Cir. 1997)

23

(O’Scannlain, J.); accord Raso v. Lago, 135 F.3d 11,

16–17 (1st Cir. 1998).

State VRAs do the opposite of making race an

“impermissible criteria.” Coal. to Defend Affirmative

Action, 674 F.3d at 1132. Rather, they demand that

a political subdivision make racial classifications

among its citizens and then take official action based

solely on those classifications. So, for example, under

the New York VRA, a political subdivision whose

voters happen to exhibit the common dynamic of

racially polarized voting must change its race-neutral

election system to increase the electoral chances of

citizens lumped together by race, necessarily harming

the electoral chances of other citizens lumped

together by other races, due to the zero-sum nature of

elections. Supra pp.9–13.

That state VRAs target racially polarized voting

does not change the result. “[R]acially polarized

voting” is nothing more than a “discernible, nonrandom relationship[ ] between race and voting,”

which, “to no one’s great surprise,” is a common

condition in most jurisdictions throughout the Nation.

Cooper, 581 U.S. at 304 n.5; see Alexander v. S.C.

State Conf. of the NAACP, 602 U.S. 1, 9 (2024); Shelby

Cnty. v. Holder, 570 U.S. 529, 578 (2013) (Ginsburg,

J., dissenting) (“[R]acially polarized voting alone does

not signal a constitutional violation”). As such, the

presence of racially polarized voting in no way

indicates racial discrimination, so as to make statutes

24

that target that racially polarized voting actual

antidiscrimination statutes.

State

VRAs’

amorphous,

totality-of-thecircumstances tests do not make these statutes

antidiscrimination laws either. As explained above,

satisfaction of these tests does not require any finding

that the town engaged in race discrimination at all.

See supra Part I. For example, the New York VRA

provides that courts “may” consider “the history of

discrimination in or affecting the political

subdivision” under its totality-of-the-circumstances

inquiry, but in no way requires courts to do so. N.Y.

Elec. Law § 17-206(3) (emphasis added). Instead, the

New York VRA permits courts to find a violation

under the totality-of-the-circumstances test based

upon “any” number of factors, even just one. Id. § 17206(3) (emphasis added).

The totality-of-thecircumstances tests in other state VRAs are similarly

open-ended and lack any requirement of evidence

that a political subdivision has engaged in race

discrimination to satisfy them. See Colo. Rev. Stat.

§ 1-47-205(2)(a)–(b); Cal. Elec. Code § 14028; Wash.

Rev. Code § 29A.92.030.

Finally, a hypothetical based on SFFA

demonstrates the flaw in this rationale. Imagine

that, after SFFA, a college declared that disparities

between the racial demographics of its admitted class

and the population at large are “discrimination” that

justify affirmative-action policies designed to

rebalance the racial outcomes of the college’s

25

admissions processes. It should go without saying

that such a gambit would still trigger (and fail) strict

scrutiny under SFFA, as that kind of affirmativeaction program would still “make admissions

decisions that turn on an applicant’s race,” 600 U.S.

at 208, which is “invidious in all contexts,” id. at 214

(citation omitted).

There is no constitutional

difference between this hypothetical and the rationale

described above that various courts have adopted to

avoid subjecting state VRAs to strict-scrutiny review.

C. No Strict Scrutiny When A Statute

Permits Remedies Other Than Drawing

Majority-Minority Districts

Several courts have concluded that state VRAs do

not trigger strict scrutiny because they permit courts

to order remedies other than the creation of a

majority-minority district to increase the electoral

success of citizens grouped together by race. See

Clarke, 237 A.D.3d at 36–37; Coads, 236 N.Y.S.3d

at 508–09; Pico, 534 P.3d at 66–67, 70; Sanchez, 145

Cal. App. 4th at 687–88; Portugal, 530 P.3d at 1002.

For example, with respect to the New York VRA,

the Appellate Division declined to apply strict

scrutiny because, while “districting maps that sort

voters on the basis of race” must satisfy strict

scrutiny, “race-based districting” as a remedy for vote

dilution “is only one of the possible remedies under

the [New York VRA].” Clarke, 237 A.D.3d at 35–36

(citation omitted). Under the New York VRA, a court

26

could order a political subdivision found to have

engaged in prohibited vote dilution to implement

some other remedy, “such as ranked-choice voting,

cumulative voting, limited voting, [or] the elimination

of staggered terms.” Id. In other words, as another

New York Court held, the New York VRA does not

trigger strict scrutiny because it contemplates “a

lengthy list of possible remedies,” in addition to racebased redistricting. Coads, 236 N.Y.S.3d at 508.

Courts in California and Washington considering

those States’ VRAs have put forward the same

reasoning. For example, California courts have

concluded that strict-scrutiny review does not apply

to the California VRA because it “calls only for

appropriate remedies,” Sanchez, 145 Cal. App. 4th

at 687 (citation omitted)—including “cumulative

voting, limited voting, or ranked choice voting”—

meaning that a political subdivision may not have to

“draw [new] district lines . . . based principally on

race” if it has violated the California VRA, Pico, 534

P.3d at 67, 70 (citations omitted). The Supreme Court

of Washington held that the Washington VRA avoids

strict scrutiny in part because the law “contemplates

a much broader range of available remedies” than

“order[ing] a political subdivision to implement a

district-based election system and to draw or redraw

district boundaries” based on race. Portugal, 530 P.3d

at 1002 (citation omitted).

These courts misunderstand the Equal Protection

Clause. Although a court imposing a remedy that

27

requires a political subdivision to draw majorityminority district triggers strict scrutiny, see Shaw I,

509 U.S. at 643, 646; Suppl. Br. For Appellees 18–20,

Louisiana v. Callais, Nos.24-109, 24-110 (Sept. 17,

2024); see also Suppl. Br. For Robinson Appellants

26–27, Louisiana v. Callais, Nos.24-109, 24-110 (Aug.

27, 2025), all remedies under a state VRA necessarily

depend upon a court finding a state VRA violation.

And if a political subdivision violates a state VRA

because voters statutorily lumped together by race

are not winning enough elections (whatever “enough”

means), then any remedy—and any changes to the

election system by the political subdivision to avoid a

finding of liability—would be undertaken for the sole

and express purpose of having voters lumped together

by race win more elections, while voters lumped

together by other races win fewer elections. See supra

Part I. Thus, the imposition of any remedy under

those circumstances must trigger strict scrutiny, as

“racial considerations” would be the sole factor

motivating the court’s decision to impose that remedy,

not merely “the predominant factor motivating the [ ]

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

SFFA is again helpful here. After holding that

universities cannot “mak[e] admissions decisions that

turn on an applicant’s race,” SFFA, 600 U.S. at 208,

this Court made clear that universities also cannot

adopt “application essays” or “other” facially raceneutral machinations that had as their goal the

changing of the racial composition of incoming

classes, id. at 230. “The Constitution deals with

28

substance, not shadows, and the prohibition against

racial discrimination is levelled at the thing, not the

name.” Id. (citations omitted). What the Equal

Protection Clause prohibits a university from doing

“directly” it “cannot” do “indirectly.” Id. (citations

omitted). For the same reason, a state VRA cannot

avoid strict scrutiny by imposing remedies that are

facially race-neutral yet solely designed to increase

the electoral success of some citizens lumped together

by race at the necessary expense of other citizens

lumped together by other races. See id. And while, in

some situations, it may be hard to identify facially

“neutral” action that is motivated by race-based

intent, Vill. of Arlington Heights v. Metro. Hous. Dev.

Corp., 429 U.S. 252, 266 (1977)—for example, a

university might adopt a “Top Ten Percent Plan” with

the nonracial goals of increasing geographic or

socioeconomic diversity or with the racial goal of

“boost[ing] minority enrollment,” Fisher v. Univ. of

Texas at Austin, 579 U.S. 365, 373, 385–86 (2016)—

the inquiry with respect to state VRAs is easy. The

sole and express design of the state VRAs is to

reallocate the electoral success of citizens based on

race. Supra Part I. So, while a town abandoning its

at-large election system for a district-based system

with non-racial motives raises no equal-protection

concerns, a political subdivision taking such an action

in order to comply with a state VRA has acted for

explicitly racial reasons, triggering strict scrutiny.

Arlington Heights, 429 U.S. at 266.

29

III. This Court Should Resolve This Case In A

Manner That Provides Clarity As To The

Constitutionality Of State VRAs As Well

The supplemental question that this Court posed

to the parties involves a two-step inquiry: (1) whether

strict scrutiny applies when Section 2 of the VRA

mandates that a jurisdiction engage in race-based

redistricting; and (2) whether, if strict scrutiny

applies, Section 2 is narrowly tailored to achieving a

compelling governmental interest.

The Town

respectfully submits that the answer to the first

question is clear, given that this Court has long

indicated that any race-based redistricting done in

compliance with Section 2 triggers strict scrutiny.

See, e.g., Cooper, 581 U.S. at 292; Abbott v. Perez, 585

U.S. 579, 587 (2018); Wis. Legislature, 595 U.S.

at 401–02. And while the second of these inquiries is

more complex, see infra pp.32–33, the Town

respectfully submits that this Court detailing why

Section 2 triggers strict scrutiny would provide a

great service to the small towns now laboring under

the unconstitutional mandates of the growing number

of state VRAs. In particular, in holding that Section

2 triggers strict scrutiny, this Court should expressly

repudiate the three erroneous rationales that state

and lower federal courts have relied upon for

concluding that state VRAs evade strict scrutiny, as

discussed above. Supra Part II.A–C.

Notably, other amici here have offered some of the

same erroneous reasons for this Court not to subject

30

Section 2 to strict scrutiny as have the state and lower

federal courts considering state VRAs discussed

above. For example, the amicus brief of Professor

Nicholas O. Stephanopoulos relies upon the first

erroneous

rationale—that

race-based

laws

authorizing citizens of any race to bring suit evade

strict scrutiny, supra Part II.A—in arguing that,

because Section 2 “appl[ies] to all racial groups” and

allows “[m]embers of any race or ethnicity [to] bring

both vote-dilution and vote-denial claims,” it does not

“rely on racial classifications” and so avoids strict

scrutiny, Br. For Amicus Curiae Prof. Nicholas O.

Stephanopoulos In Support Of Neither Party 10,

Louisiana v. Callais, Nos.24-109, 24-110 (Sept. 3,

2025). Professor Stephanopoulos also invokes the

second erroneous rationale—that laws targeting

insufficient electoral success of certain citizens

lumped together by race actually remedy “race

discrimination.” Supra Part II.B. So, Professor

Stephanopoulos

compares

Section

2

to

antidiscrimination laws like Title VII and the Fair

Housing Act, Stephanopoulos Amicus, supra, at 12,

just like some of the courts discussed above with

respect to state VRAs, supra pp.20–22—comparisons

that fail for all the same reasons, supra pp.22–25.

Similarly, the amicus brief of the Brennan Center For

Justice relies upon the third erroneous rationale.

Supra Part II.C. That amicus brief argues that

Section 2’s “flexibility in adopting a remedy [ ] guards

against [its] unconstitutional application” by allowing

“a jurisdiction with Section 2 liability [to] choose to

remedy that liability by drawing a district that is less

31

than majority-minority” or to “adopt[ ] alternatives to

districted elections, such as cumulative voting and

limited voting.” Br. For Amicus Curiae The Brennan

Ctr. For Just. At N.Y. Univ. Sch. Of L. In Support Of

Press Robinson, et al., Appellants 23–25, Louisiana v.

Callais, Nos.24-109, 24-110 (Sept. 3, 2025).

These arguments are equally wrong for Section 2

as they are for state VRAs. See supra Part II. First,

that Section 2 allows members of any racial group to

bring vote-dilution claims does not save Section 2

from having to satisfy strict scrutiny, which applies to

“all racial classifications[ ] imposed by [a]

governmental actor,” Adarand, 515 U.S. at 227

(emphasis added), even if those classifications “may

be said to burden or benefit the races equally,”

Johnson, 543 U.S. at 499 (citation omitted); see supra

Part II.A. Second, Section 2 does not escape strict

scrutiny as an “antidiscrimination” law that prohibits

the government from classifying individuals by race,

see Schuette, 572 U.S. at 312; accord Coal. to Defend

Affirmative Action, 674 F.3d at 1132, since Section 2

demands that political subdivisions expressly

consider the electoral opportunities of its citizens

grouped together by race and then, if the Gingles twostep framework is satisfied, take certain official

action to rebalance those opportunities, see Allen, 599

U.S. at 17–19; supra Part II.B. Finally, Section 2

triggers strict scrutiny even though it authorizes

remedies other than the drawing of majority-minority

districts, see, e.g., Cooper, 581 U.S. at 305–06, as

towns necessarily carry out those remedies with race

32

as the sole motivating factor, Arlington Heights, 429

U.S. at 266; supra Part II.C.

B. Notably, the question of whether Section 2

satisfies strict scrutiny is admittedly more

complicated, given Section 2’s venerable pedigree and

this Court’s prior “assum[ption] that complying with

the VRA” means that a State’s “consideration of race”

in a redistricting plan “satisfies strict scrutiny.”

Abbott, 585 U.S. at 587. While the Town agrees with

Appellees that Section 2 no longer satisfies the

strictures of strict scrutiny, especially in light of

SFFA, see Supp. Br. For Appellees 21–34, Louisiana

v. Callais, Nos.24-109, 24-110 (Sept. 17, 2024), if this

Court reaches a different conclusion, it should make

clear that it is not blessing state VRAs that lack

Congress’ imprimatur or Section 2’s tailoring.

Specifically, if this Court upholds Section 2 as a lawful

exercise of Congress’ power to “identify and redress

the effects of society-wide discrimination,” City of

Richmond v. J.A. Croson Co., 488 U.S. 469, 490

(1989), it should reaffirm that the Fourteenth

Amendment “explicit[ly] constrain[s]” the States from

using “race as a criterion for legislative action,” id.

at 490–91. Further, if this Court upholds Section 2

under Congress’ “power to enforce” the Fifteenth

Amendment “by appropriate legislation,” U.S. Const.

amend. XV, § 2; see Br. For Amicus Curiae Prof.

Travis Crum In Support Of The Robinson Appellants

23–24, Louisiana v. Callais, Nos.24-109, 24-110

(Sept. 3, 2025), it should explain that this does not

empower States to enact state VRAs like the ones

33

discussed above. Finally, certain parties and amici

have argued that Section 2’s incorporation of the

Gingles framework makes it narrowly tailored. See,

e.g., Stephanopoulos Amicus, supra, at 3–4; Brennan

Amicus, supra, at 6; Supp. Br. For Robinson

Appellants 13–24, Louisiana v. Callais, Nos.24-109,

24-110 (Aug. 27, 2025). If this Court agrees with that

argument, it should explain that this rationale does

not apply to state VRAs specifically designed to reject

Gingles’ strictures. See supra Part I.

CONCLUSION

This Court should affirm the judgment of the

District Court.

Respectfully submitted,

CARSON A. COX

TROUTMAN PEPPER

LOCKE LLP

1001 Haxall Point,

Richmond, VA 23219

September 2025

MISHA TSEYTLIN

Counsel of Record

KEVIN M. LEROY

TROUTMAN PEPPER

LOCKE LLP

111 S. Wacker Drive

Suite 4100

Chicago, IL 60606

(608) 999-1240

misha.tseytlin@troutman.com

Attorneys for Amicus

Curiae