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.

PHILLIP CALLAIS, et al.,

Appellees.

_____________

On Appeals from the United States District Court

for the Western District of Louisiana

_____________

BRIEF OF CENTER FOR ELECTION

CONFIDENCE AS AMICUS CURIAE IN

SUPPORT OF APPELLEES

_____________

BRADLEY A. BENBROOK

Counsel of Record

STEPHEN M. DUVERNAY

Benbrook Law Group, PC

701 University Ave., Ste. 106

Sacramento, California 95825

(916) 447-4900

brad@benbrooklawgroup.com

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

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

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

Summary of Argument............................................... 1

Argument .................................................................... 5

I. Congressional District Maps In 2025 Bear No

Resemblance To The Districts At Issue In Gingles,

And Those Distinctions Should Have Profound

Implications Here .................................................. 5

A. The State Legislative Districts In Gingles

Involved No More Than 120,000 People Living In

Highly Segregated Areas Of North Carolina ..... 5

B. Congressional Districts In 2025 Present Radically

Different Demographic Circumstances Than The

State Legislative Districts In Gingles ................ 8

II. If Gingles Is To Survive In Any Form, The Court

Should Provide Clear Instructions Governing The

Compactness Of Remedial Districts ..................... 14

A. The Court Must Eradicate The Combination Of

Disparate Pockets Of Minority Voters In The

Name Of Achieving Compactness By

“Maintaining Communities Of Interest.” ......... 16

B. “Compactness” Should Incorporate The Notion

That A District Is A Recognizable

Representational Unit Of Geography ............... 19

III. The “Anything Goes” Approach To Remedial

District-Drawing Imposes Significant ElectionAdministration Costs And Undermines Election

Integrity .............................................................. 22

Conclusion ................................................................ 25

ii

TABLE OF AUTHORITIES

Cases

Abrams v. Johnson,

521 U.S. 74, 92 (1997) ...............................................15

Allen v. Milligan,

599 U.S. 1 (2023) ................................................ 10, 15

Bartlett v. Strickland,

556 U.S. 1 (2009) ......................................................24

Bush v. Vera,

517 U.S. 952 (1996)...................................................15

Callais v. Landry,

732 F. Supp. 3d 574 (W.D. La. 2024) .........................11

Covington v. North Carolina,

270 F. Supp. 3d 881 (M.D.N.C. 2017) ........................13

Hays v. Louisiana,

936 F. Supp. 360 (W.D. La. 1996) ......................... 9, 10

Holder v. Hall,

512 U.S. 874 (1994)...................................................17

Karcher v. Daggett,

462 U.S. 725 (1983)...................................................22

LULAC v. Perry,

548 U.S. 399 (2006)............................................... 2, 18

Miller v. Johnson,

515 U.S. 900 (1995)....................................... 17, 18, 19

Rucho v. Common Cause,

588 U.S. 684 (2019)...................................................20

Shaw v. Hunt,

517 U.S. 899 (1996)............................................... 2, 18

iii

Shaw v. Reno,

509 U.S. 630 (1993)...................................................17

Shelby County v. Holder,

570 U.S. 529 (2013)...................................................10

Students for Fair Admissions, Inc. v. President and

Fellows of Harvard College,

600 U.S. 181 (2023)............................................. 14, 16

Thornburgh v. Gingles,

478 U.S. 30 (1986) .......................................... 2, 5, 6, 7

Wesberry v. Sanders,

376 U.S. 1 (1964) ......................................................20

Wisconsin Legislature v. Wisconsin Elections

Comm’n,

595 U. S. 398 (2022) ..................................................14

Wright v. Rockefeller,

376 U.S. 52 (1964) ....................................................17

Statutes

2 U.S.C. § 2c ................................................................21

Apportionment Act of 1850, ch. 11, 9 Stat. 433 .............21

Apportionment Act of 1862, ch. 170, 12 Stat. 572 ..........21

Other Authorities

Black’s Law Dictionary (12th ed. 2024) ........................16

Brennan Center for Law and Justice, Redistricting

Litigation Roundup .................................................13

Briffault, Book Review, Lani Guinier and the

Dilemmas of American Democracy the Tyranny

of the Majority: Fundamental Fairness in

Representative Democracy, 95 Colum. L. Rev.

418 (1995) ................................................................12

iv

Carstarphen, The Single Transferable Vote:

Achieving the Goals of Section 2 Without

Sacrificing the Integration Ideal, 9 Yale L. &

Pol’y Rev. 405 (1991) ................................................12

Cong. Globe, 27th Cong., 2d Sess. app. 749 (1842) .. 20, 21

Crum, Reconstructing Racially Polarized Voting,

70 Duke L.J. 261, 279 (2020).......................................7

Engstrom, The Single Transferable Vote: An

Alternative Remedy for Minority Vote Dilution,

27 U.S.F. L. Rev. 779 (1993) .....................................13

Karlan, Our Separatism? Voting Rights As an

American Nationalities Policy, 1995 U. Chi.

Legal F. 83 (1995) ....................................................12

Lauten-Scrivner, Inaccurate general election

ballots sent to Merced County voters. What

happens now?, Merced Sun-Star (Oct. 13, 2022) .......23

Melton & Sanchez-Cruz, Voters in Fairfax, Prince

William counties were sent incorrect voting

information, WUSA9 (Oct. 21, 2022) .........................23

Merriam-Webster’s Dictionary,

https://www.merriamwebster.com/dictionary/community..........................16

Mulroy, Alternative Ways Out: A Remedial Road

Map for the Use of Alternative Electoral

Systems as Voting Rights Act Remedies,

77 N.C. L. Rev. 1867 (1999) ......................................13

NBC Washington, Thousands of Virginia Voters

Sent Incorrect Voting Info: Here’s How to

Check Your Polling Place (Oct. 21, 2022) ..................23

v

Niesse, Outcome in Georgia’s Closest House Race

in Doubt Due to Botched Ballots, Atlanta

Journal-Constitution (Dec. 13, 2024) ........................24

Richie & Spencer, The Right Choice for Elections:

How Choice Voting Will End Gerrymandering

and Expand Minority Voting Rights, from City

Councils to Congress,

47 U. Richmond L. Rev. 959 (2013) ..........................13

Stephanopoulos, Civil Rights in A Desegregating

America, 83 U. Chi. L. Rev. 1329 (2016) ..... 7, 8, 11, 12

The Federalist No. 56 (Hallowell ed., 1842)..................20

U.S. Census Bureau, 2020 Census Apportionment

Results Delivered to the President (April 26,

2021) ..........................................................................8

U.S. Dep’t of Commerce, Bureau of the Census,

1980 Population and Number of Representatives

by State (Dec. 31, 1980) ..............................................6

WCCO News, Confusion over new legislative

district leads to ballot error in Wisconsin

Assembly primary (Aug. 14, 2024)............................24

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INTEREST OF AMICUS CURIAE 1

Center for Election Confidence, Inc. (CEC), is a nonprofit organization that promotes ethics, integrity, and

professionalism in the electoral process. CEC works to

ensure that all eligible citizens can vote freely within an

election system of reasonable procedures that promote

election integrity, prevent vote dilution and disenfranchisement, and instill public confidence in election systems and outcomes. To accomplish these objectives, CEC

conducts, funds, and publishes research and analysis regarding the effectiveness of current and proposed election

methods. CEC is a resource for lawyers, journalists, policymakers, courts, and others interested in the electoral

process. CEC also periodically engages in public-interest

litigation to uphold the rule of law and election integrity

and files amicus briefs in cases where its background, expertise, and national perspective may illuminate the issues under consideration.

SUMMARY OF ARGUMENT

At the first oral argument in this appeal, Justice Alito

identified an issue that gets to the core of why the Court

continues to face so many cases in which § 2 “remedial”

maps give rise to racial gerrymander claims: “[T]he question seems to be: Is it not the case that if you grant the

premise [that a §2 violation may have occurred] then … at

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

no entity or person, aside from amicus curiae, its members, and its

counsel, made any monetary contribution toward its preparation or

submission. See Sup. Ct. R. 37.6.

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the remedial phase, anything goes? [¶] Now, can that possibly be correct?” Trans. 82.

The answer to this question is “No, that cannot be correct.” In Shaw v. Hunt, the Court emphatically rejected

the argument that “once a legislature has a strong basis

in evidence for concluding that a § 2 violation exists in the

State, it may draw a majority-minority district anywhere,

even if the district is in no way coincident with the compact Gingles district[.]” 517 U.S. 899, 916–17 (1996); see

also id. at 916 (“No one looking at [the remedial district]

could reasonably suggest that the district contains a ‘geographically compact’ population of any race.”). Likewise,

the Court affirmed in LULAC v. Perry that “[a] State

cannot remedy a § 2 violation through the creation of a

noncompact district.” 548 U.S. 399, 431 (2006). Simply put,

a remedial district under § 2 cannot violate the Fourteenth Amendment.

Yet Louisiana and other states continue to draw maps

like its proposed Congressional District 6, which stretches

250 miles from end to end in order to scoop up far-flung

pockets of black voters through much of the State. Even

worse, lower courts routinely sign off on them. So-called §

2 remedial districts like this demonstrate that modern

“vote-dilution” litigation under the Voting Rights Act

bears no resemblance to its origin in Thornburgh v. Gingles, 478 U.S. 30 (1986).

To fully understand how far removed modern § 2 litigation has strayed from Gingles, it is important to step

back and review the actual facts in Gingles. Those facts

demonstrate that Gingles’ vote-dilution theory is premised on a degree of residential racial segregation that is

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sufficient for a single geographic area of segregated voters themselves to constitute the majority of a voting district. Though the Court has rarely emphasized the centrality of segregation, scholars confirm it is a necessary

precondition to the sort of “compactness” Gingles actually

considered.

It is relatively easy to visualize such a compact and

contiguous group of minority voters when dealing with

small state legislative districts, as in Gingles, which involved no more than 120,000 residents. It makes far less

sense when dealing with congressional districts of 775,000

residents in 2025. All the more so when considering how

much more racially integrated American society is now

than in 1986 when Gingles was decided, let alone 1965,

when the first Voting Rights Act was passed. Absent blatant “cracking” of dense populations of minority voters in

our biggest cities, it is difficult, in 2025, to envision a § 2

remedial congressional district that could possibly be

drawn consistent with the principles announced in Gingles.

And while our racial progress should be celebrated,

the § 2 litigation industry laments that integration is a

“problem” for their partisan cause. Undeterred by America’s racial progress and evolution, this permanent movement churns out § 2 cases all across the Nation as if we

are all living in 1980s Mecklenburg County.

If, despite this, the Court decides to salvage Gingles in

some form, it is urgent that the Court clarify that, as in

Gingles, all remedial districts must themselves be “compact,” rather than “reasonably compact” or “reasonably

configured.” States and district courts have abused such

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leeway by creating districts that have nothing to do with

the factual circumstances that produced the Gingles decision.

The Court should also clarify the permissible factors

for determining whether a remedial district is actually

“compact.” In particular, the Court should confirm once

and for all that combining geographically disparate

groups of minority voters is not permissible under the

guise of “maintaining communities of interest” as a purported basis for achieving “compactness” or appropriate

“configuration.” Such combinations rest on pernicious assumptions about minority groups that the Court has rejected in other contexts. Drawing district lines on blatantly racial assumptions should not get a special exemption from the Fourteenth Amendment.

Instead, the Court should affirm that “compactness”

must incorporate the historical meaning of a “district” as

a recognizable geographic unit of representation. The

Founders recognized that effective representation can be

accomplished by dividing a state into geographic units encompassing relatively recognizable meanings. This understanding carried through to the first Apportionment Act

in 1842 and must provide the touchstone for drawing districts that provide voters with genuine and responsive

representation.

Finally, it must be emphasized that the unseemly practice of constantly shifting district lines to segregate voters

by race imposes a significant practical cost on election administrators and voters. Real votes are being lost due to

confusion by administrators and voters. In our closely divided partisan era, this is a heavy price that compromises

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public confidence in the integrity and reliability of the

electoral process. It is an intolerable result in pursuit of

the unconstitutional ends here.

ARGUMENT

I. Congressional District Maps In 2025 Bear No

Resemblance To The Districts At Issue In Gingles,

And Those Distinctions Should Have Profound

Implications Here.

The issues at the heart of this case arise out of Gingles’

compactness factor: to prevail on a vote-dilution theory,

the “minority group [itself] must be … sufficiently large

and geographically compact to constitute a majority in a

single-member district.” 478 U.S. at 50. In the nearly 40

years since Gingles, § 2 vote-dilution litigation has expanded to cover factual settings bearing no resemblance

to the facts in Gingles. As the Court considers how to restrain out-of-control applications of Gingles and § 2, it is

worth focusing on how different modern congressional redistricting is from the tiny, segregated state legislative

districts in Gingles.

A. The State Legislative Districts In Gingles

Involved No More Than 120,000 People Living In

Highly Segregated Areas Of North Carolina.

Gingles involved a challenge to North Carolina’s unu-

sual state legislative redistricting scheme following the

1980 census. Some of North Carolina’s legislative “districts” had one member, and other “at-large” districts had

multiple (up to eight) members. Plaintiffs alleged that

North Carolina violated § 2 by submerging pockets of

black voters in five multi-member state house legislative

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districts and one multi-member state senate district in a

manner that diluted the voting power of black citizens. 478

U.S. at 34–35.2

North Carolina was apportioning its nearly 6 million

residents into 120 state assembly seats (roughly 50,000

residents per seat) and 50 state senate seats (roughly

120,000 residents per seat). U.S. Dep’t of Commerce, Bureau of the Census, 1980 Population and Number of Representatives by State, p. 2 (Dec. 31, 1980) (North Carolina’s population basis for apportionment 5,874,429); Gingles, 478 U.S. at 40 (identifying size of North Carolina

House and Senate).

Considering the level of residential segregation following the 1980 census, and with districts of this small

size, the district court found that “at the time the multimember districts were created, there were concentrations

of black citizens within the boundaries of each that were

sufficiently large and contiguous to constitute effective

voting majorities in single-member districts lying wholly

within the boundaries of the multi-member districts.” Gingles, 478 U.S. at 38 (emphasis added). It bears repeating:

The concentrations of black citizens that could form a majority in a district were themselves contiguous.

Thus, when it came to challenging North Carolina’s

gambit of creating at-large legislative districts (or, in the

Plaintiffs also challenged a single-member state senate district on a

“cracking” theory, alleging that a sufficiently large and geographically compact concentration of black voters had been split across two

adjoining single-member districts, again in a manner that diluted

black voters’ voting power. Gingles, 478 U.S. at 38.

2

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more typical vote-dilution case, the configuration of district lines), the Court explained why it is essential for “the

minority group [itself] to demonstrate that it is sufficiently large and geographically compact to constitute a

majority in a single-member district. If it is not, as would

be the case in a substantially integrated district, the

multi-member form of the district cannot be responsible

for minority voters’ inability to elect its candidates.” 478

U.S. at 50. In short, a vote-dilution theory doesn’t make

sense in the absence of contiguous concentrations of a sufficient size to constitute the majority of a district. See also

id. at 50 n.17.

Scholars confirm the centrality of residential segregation to Gingles. Professor Nicholas Stephanopoulos (a frequent amicus in VRA cases, including this one) has written that “[g]eographic compactness is almost a synonym

for geographic segregation. The criterion is satisfied only

by minority groups that are densely concentrated in discrete areas.” Stephanopoulos, Civil Rights in A Desegregating America, 83 U. Chi. L. Rev. 1329, 1334 (2016). And

Professor Crum writes that “Gingles boils down to

whether a minority group is residentially segregated and

whether there is racially polarized voting.” Crum, Reconstructing Racially Polarized Voting, 70 Duke L.J. 261, 279

(2020); see also id. (“By focusing on residential segregation, the Gingles Court reinforced the relationship between geography and representation.”).

As a consequence, “[b]y definition, an integrated minority group is not geographically compact, and so cannot prevail in a VRA challenge.” Stephanopoulos, 83 U. Chi. L.

Rev. at 1377. Why? Because “if a group is residentially integrated, it becomes very difficult for a district to capture

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enough of its members to enable them to elect the candidate of their choice. To do so (where it is possible at all), a

district must assume a highly irregular shape, connecting

whatever local concentrations of the group happen to occur.” Id. at 1380. As discussed in Section II below, this

practice must be expressly forbidden once and for all.

B. Congressional Districts In 2025 Present Radically

Different Demographic Circumstances Than The

State Legislative Districts In Gingles.

1. Louisiana’s population in the 2020 Census was approximately 4.6 million, so each of its six congressional

districts consists of roughly 776,000 residents. J.A.334–36.

Across the Nation, the average size of a congressional district is now 761,169. U.S. Census Bureau, 2020 Census Apportionment Results Delivered to the President (April 26,

2021).

These district sizes bear no resemblance to the remedial districts in Gingles. The Louisiana congressional districts are roughly 15 times the population of the North

Carolina House seats at issue in Gingles, and roughly 6.5

times the population of the State Senate seats at issue in

Gingles.

Louisiana’s disparate concentrations of black voters,

spread throughout the state, also differ wildly from the

concentrations of North Carolina’s black voters submerged within the comparatively tiny multi-member districts in Gingles. Outside of New Orleans, the only other

relatively concentrated and sizeable populations of black

residents can be found in cities spread throughout the

state (Baton Rouge, Shreveport, and Lafayette). This is

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why, for every reapportionment since the VRA was enacted, Louisiana has had only one majority-black district,

centered around New Orleans, by far its largest metropolitan area. The only exception was the effort to create a

second district at the behest of the Department of Justice

in the 1990s, which was soundly rejected as a racial gerrymander in Hays v. Louisiana, 936 F. Supp. 360 (W.D. La.

1996). In short, it is impossible to draw a second majorityblack congressional district in Louisiana without combining different cities many miles apart to lump manifestly

noncontiguous pockets of black residents.

Were it otherwise, surely Louisiana could have proposed a map that didn’t match so closely the map that the

district court rejected 30 years ago in Hays, where the

court described the racial gerrymander as follows:

Far from being compact, District 4 winds its way

through fifteen of Louisiana’s sixty-four parishes

… and is approximately 250 miles long, considerably longer than any other district in the state. The

District thinly links minority neighborhoods of

several municipalities from Shreveport in the

northwest to Baton Rouge in the southeast (with

intermittent stops along the way at Alexandria,

Lafayette, and other municipalities), thereby artificially fusing numerous and diverse cultures, each

with its unique identity, history, economy, religious preference, and other such interests. Along

its otherwise aimless and tortuous path the District splits twelve of its fifteen parishes, as well as

fourteen municipalities, among which are included

four of Louisiana's five largest population centers.

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936 F. Supp. at 368. Despite all of this, Louisiana once

again proffers a so-called § 2 remedial district that, just as

in Hays, sprawls 250 miles from end to end across the

state, from Baton Rouge to Shreveport. Considering the

ease with which the § 2 violation was remedied in Gingles—because the majority-minority population itself was

contiguous—this purported remedy has nothing to do

with Gingles.

To be sure, had Louisiana tried to blatantly “crack”

the large and contiguous population of minority voters in

the New Orleans area, it likely would have been possible

to create a remedial district that was compact. Given Gingles’ dependence on individual pockets of segregated communities that were each sufficiently large to constitute a

district majority, however, in the absence of allegations

that a legislature “cracked” a contiguous minority votingage population in the hundreds of thousands, it is unlikely

that a remedial congressional district in 2025 could possibly remain true to the principles announced in Gingles.

2. There is another significant difference between

Louisiana in 2025 and 1980s North Carolina: Louisiana,

like the rest of America, is far more integrated in 2025. In

Shelby County v. Holder, the Court noted that “things

have changed dramatically” since the VRA’s passage;

namely, the “conditions justifying [Section 5’s preclearance] requirement have dramatically improved.” 570 U.S.

529, 547, 550 (2013). As the Court recognized in Allen v.

Milligan, “residential segregation” has decreased

“sharply … since the 1970s.” 599 U.S. 1, 28–29 (2023) (citing Crum, supra, at 279 and n.105). Professor Stephanopoulos points in his amicus brief to the fact that the leading

measure of segregation (the “dissimilarity index”) has

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fallen “sharply” over the past 50 years. Stephanopoulos

Am. Br. at 16-18.

Louisiana has changed along with the rest of the Nation. As the district court found here, “the record is clear

that Louisiana’s Black population has become more dispersed and integrated in the thirty years since the Hays

litigation.” Callais v. Landry, 732 F. Supp. 3d 574, 613

(W.D. La. 2024). And it noted that Louisiana “Representative Carlson acknowledged that racial integration

made drawing a second majority-Black district difficult.”

Id. at 588; see id. (quoting Carlson, “the reason why this

is so difficult is because we are moving in the right direction”). This integration has massive consequences for

vote-dilution claims given the geography and basic mathematical realities set out above.

The § 2 litigation movement does not celebrate this

progress, however, since integration interferes with its

partisan uses of § 2. Professor Stephanopoulos, for example, calls integration a “problem” for the cause:

The problems posed by integration are clearest

with respect to Gingles’s first prong. Minority voters who are residentially integrated are the very

opposite of a geographically compact group. In the

Court’s terminology, they are diffuse rather than

“insular,” dilute rather than “concentrated.”

Stephanopoulos, supra, 83 U. Chi. L. Rev. at 1384; see also

id. at 1388 (“Residential integration is not one of § 2’s

goals. But minority representation is one of them, and for

all of the reasons discussed above, it is imperiled by desegregation.”) (emphasis in original); and 1335 (“desegre-

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gation unsettles the [§ 2] doctrine” because where “minority populations are residentially integrated” and “a jurisdiction nevertheless encloses a dispersed minority group

within a single district, then the district probably violates

the constitutional ban on racial gerrymandering”).

Partisan scholars have long shared his lament that § 2

creates tension between integration and maximizing minority voting representation through district line-drawing. Briffault, Book Review, Lani Guinier and the Dilem-

mas of American Democracy, The Tyranny of the Majority: Fundamental Fairness in Representative Democracy,

95 Colum. L. Rev. 418, 430 (1995) (“districting is increasingly a problematic device for even the election of minority representatives;” “[d]istricting will be effective only in

areas where minority voters are residentially concentrated in homogeneous territories so that majority-minority districts can be created”); Karlan, Our Separatism?

Voting Rights As an American Nationalities Policy, 1995

U. Chi. Legal F. 83, 88–89 (1995) (“Even a minority group

whose members all live quite segregated lives … can seek

relief through relatively race-neutral remedial districting

only if they live in large ghettoes that form seemingly ‘natural’ districts. Otherwise, smaller minority communities

must be strung together like pearls on a necklace to create

a majority-nonwhite district.”); Carstarphen, The Single

Transferable Vote: Achieving the Goals of Section 2 Without Sacrificing the Integration Ideal, 9 Yale L. & Pol’y

Rev. 405, 407 (1991) (“By making residential segregation

a prerequisite for vote dilution remedies,” Gingles “created a direct conflict between voting rights and the integration ideal.”).

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And despite the Nation’s inspiring racial progress, the

Brennan Center reports that, as of August 28, 2025, a total

of 90 cases have been filed challenging congressional or

legislative maps; 49 of those cases have alleged racial discrimination including 30 cases asserting § 2 challenges.3

The last decade alone saw several states’ redistricting

plans struck down as racial gerrymanders after falling

short of the necessary evidentiary showings under Gingles to justify the use of race in redistricting. See, e.g.,

Covington v. North Carolina, 270 F. Supp. 3d 881, 892

(M.D.N.C. 2017).

Some have even argued that the supposed limitations

of § 2 as interpreted by the Court (including the geographic compactness requirement) necessitate radical alternative remedies, such as cumulative voting or “transferable votes.” E.g., Engstrom, The Single Transferable

Vote: An Alternative Remedy for Minority Vote Dilution,

27 U.S.F. L. Rev. 779 (1993); Richie & Spencer, The Right

Choice for Elections: How Choice Voting Will End Gerrymandering and Expand Minority Voting Rights, from

City Councils to Congress, 47 U. Richmond L. Rev. 959

(2013); Mulroy, Alternative Ways Out: A Remedial Road

Map for the Use of Alternative Electoral Systems as Voting Rights Act Remedies, 77 N.C. L. Rev. 1867 (1999). In-

deed, Prof. Stephanopoulos urges the Court to consider

such a radical approach as an alternative to faithful application of Gingles in this very case. See Stephanopoulos

Am. Br. at 6, 35.

Brennan Center for Law and Justice, Redistricting Litigation

https://www.brennancenter.org/our-work/research-reports/redistricting-litigation-roundup-0 (visited Sept. 13, 2025).

3

Roundup,

14

In short, the modern § 2 litigation movement has

evolved into a political industry unto itself, similar to the

DEI movement in college admissions before the Court

outlawed race-preferences in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College,

600 U.S. 181 (2023). Race is being used in a cynical effort

to draw district lines, based largely on stereotypes—people sharing the same skin color hundreds of miles apart

are really one “community in interest,” they claim—and

in circumstances far removed from the conditions that

gave rise to the § 2 vote dilution theory in Gingles 40 years

ago.

II. If Gingles Is To Survive In Any Form, The Court

Should Provide Clear Instructions Governing The

Compactness Of Remedial Districts.

Whether § 2 can compel race-conscious remedial districting consistent with the Equal Protection Clause is in

serious doubt. If the Court determines that Gingles remains viable in some form, it is urgent that the Court emphasize that drawing § 2 remedial district lines is not an

“anything goes” enterprise. The Court should reiterate

that “[a] State cannot remedy a § 2 violation through the

creation of a noncompact district,” LULAC, 548 U.S. at

431, and clarify the factors determining whether a district

is “compact.”

States and lower courts should no longer be allowed to

seek shelter in the Court’s statements that a § 2 “minority

group must be sufficiently large and [geographically]

compact to constitute a majority in a reasonably configured district.” Wisconsin Legislature v. Wisconsin Elections Comm’n, 595 U. S. 398, 402 (2022) (emphasis added).

15

See also Allen, 599 U.S. at 18 (2023) (“A district will be

reasonably configured … if it comports with traditional

districting criteria, such as being contiguous and reasonably compact.”). Gingles had no need to speak of “reasonably configured” districts because the district lines practically drew themselves around the small and densely segregated minority populations.

Nor should States and lower courts be allowed to continue exploiting the absence of a “precise rule … governing [§ 2] compactness,” or latch on to the capacious concept of “‘maintaining communities of interest.’” LULAC,

548 U.S. at 433 (quoting Abrams v. Johnson, 521 U.S. 74,

92 (1997)). “[B]izarre shaping of” remedial districts that

“cut[] across pre-existing precinct lines and other natural

or traditional divisions,” reveals not just “a level of racial

manipulation that exceeds what [§ 2] could justify,” Bush

v. Vera, 517 U.S. 952, 980–81 (1996), it also exceeds what

the Fourteenth Amendment can justify. “A district that

‘reaches out to grab small and apparently isolated minority communities’” should be considered an affront to all

citizens. LULAC, 548 U.S. at 402 (quoting Vera, 517 U.S.

at 979).

Forty years of Gingles litigation has stretched the concept of “reasonably configured” and “reasonably compact” beyond its breaking point. This case offers an important opportunity for the Court to clarify the parameters of a “compact” remedial district and affirm that a

“reasonably configured” district is one that itself is “compact.” The Court should affirm that for a remedial district

to be compact, it must follow traditional districting principles such as maintaining traditional geographic and political boundaries and “communities of interest” that do not

16

consider race. Doing so honors the important doctrinal,

historical, and policy reasons behind district-based representation.

A. The Court Must Eradicate The Combination Of

Disparate Pockets Of Minority Voters In The

Name Of Achieving Compactness By “Maintaining

Communities Of Interest.”

As shown above, in Gingles, there was just one “compact” group of minority voters. The Court should affirm

that amalgamating geographically disparate groups of

minority voters is not permissible under the guise of

“maintaining communities of interest” as a purported basis for achieving “compactness” or appropriate district

“configuration.” Indeed, disparate groupings of minority

voters are not “communities” in the ordinary sense of the

word: they are not “a group of people living a particular

place.” Black’s Law Dictionary (12th ed. 2024); see also

Merriam-Webster’s Dictionary, https://www.merriamwebster.com/dictionary/community (providing a primary

definition of “community” as “a unified body of individuals” “with common interests living in a particular area”).

To the extent it is assumed that geographically dispersed

groupings of minority voters satisfy alternative broader

definitions of “community” by sharing common interests,

characteristics, or attitudes, the Court must clarify that

such assumptions violate the colorblind ideal of the Constitution. See Students for Fair Admissions, 600 U.S. at

230.

Consideration of “nonracial communities of interest

reflects the principle that a State may not ‘assum[e] from

a group of voters’ race that ‘they think alike, share the

17

same political interests, and will prefer the same candidates at the polls.’’” LULAC, 548 U.S. at 433 (quoting Miller v. Johnson, 515 U.S. 900, 920 (1995), in turn quoting

Shaw v. Reno, 509 U.S. 630, 647 (1993)). As Justice

Thomas put it over three decades ago:

The basic premises underlying our system of safe

minority districts and those behind the racial register are the same: that members of the racial

group must think alike and that their interests are

so distinct that the group must be provided a separate body of representatives in the legislature to

voice its unique point of view. Such a “system, by

whatever name it is called, is a divisive force in a

community, emphasizing differences between candidates and voters that are irrelevant.”

Holder v. Hall, 512 U.S. 874, 906 (1994) (Thomas, J., concurring in the judgment) (quoting Wright v. Rockefeller,

376 U.S. 52, 66 (1964) (Douglas, J., dissenting)). Once the

devious assumption that all members of a minority group

think in lockstep is cast aside, “there is no basis to believe

that a district that combines two farflung segments of a

racial group with disparate interests provides the opportunity that § 2 requires or that the first Gingles condition

contemplates.” LULAC, 548 U.S. at 433.

LULAC illustrates the point well. In that case, Texas

had created a majority-Latino district (District 25) that

combined “the Latino community near the Mexican border” with “the one in and around Austin,” with a “300-mile

gap” between the two Latino communities. 548 U.S. at

432, 434. Despite the two Latino communities having different backgrounds and interests, however, the district

18

court in that case concluded the resultant district was reasonably compact because of the “relative smoothness of

the district lines.” Id. at 432–33. However, “the practical

consequence of drawing a district to cover two distant,

disparate communities is that one or both groups will be

unable to achieve their political goals.” Id. at 434. In particular, the Court credited the idea that the sprawling size

and diversity of the new district “could make it more difficult for the constituents in the Rio Grande Valley to control election outcomes.” Id. (quotation omitted).

LULAC’s grouping of widely dispersed pockets of mi-

nority voters was not an isolated example. The sprawling

size and character of North Carolina’s District 12 doomed

it in Shaw II. See Shaw II, 517 U.S. at 916 (“no one looking

at District 12 could reasonably suggest that the district

contains a ‘geographically compact’ population of any

race”); id. at 903 (noting that, “for much of its length, [District 12 was] no wider than the [Interstate]-85 corridor”).

So too in Miller, where one district “centered around four

discrete, widely spaced urban centers that ha[d] absolutely nothing to do with each other, and stretch[ed] the

district hundreds of miles across rural counties and narrow swamp corridors.” 515 U.S. at 908. The same could be

said here. Like that congressional district in Miller, Louisiana’s proposed Congressional District 6 is, from a geographic perspective, a “monstrosity.” 515 U.S. at 909.

To be sure, consideration of the amorphous “communities of interest” factor has also allowed race to trump

the classic and historically important factors of traditional

geographic and political boundaries. See, e.g., Miller, 515

U.S. at 918–20 (proposed district carved up counties and

cleaved precincts, which could not “be rescued by mere

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recitation of purported communities of interest” given

“the fractured political, social, and economic interests” of

the district’s minority population); LULAC, 548 U.S. at

424, 432–35 (proposed district was noncompact because it

split across cities and counties to connect minority communities that had “divergent ‘needs and interests’”). But

this Court has left no doubt that this factor must focus on

“actual shared interests” outside of race, Miller, 515 U.S.

at 916, and that such a “common thread of relevant interests” must not be a pretext for engaging in “racial stereotyping,” id. at 920.

Indeed, the remedial districts proposed by modern § 2

litigants often make such a mockery of traditional criteria

that geographical integrity might just as well be abandoned altogether, comprising districts of people based on

their race without regard to where they live. Districts that

connect blocks of minority voters by traversing swamps,

as in Miller, or travelling narrow freeways as in Shaw II,

are contiguous in name only; they had might as well be

separate ink blots on a map that share the same district

number.

In short, when analyzing whether a § 2 remedial district is compact, courts must first apply “traditional districting principles” in a race-neutral manner. Otherwise,

history has shown that these factors will be deputized into

the service of race-based gerrymandering.

B. “Compactness” Should Incorporate The Notion

That

A

District

Is

A

Recognizable

Representational Unit Of Geography.

If the Court salvages Gingles in some form, it should

further affirm that “compactness” must incorporate the

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historical meaning of a “district” as a recognizable geographic unit of representation.

The term “district” encompasses the Founders’ view

that effective representation can be accomplished by dividing a state into geographic units encompassing relatively recognizable meanings. Such districts give effect to

political subdivisions, allow representatives to “bring with

them ... a local knowledge of their respective districts,”

and can thereby effectively represent their constituencies. The Federalist No. 56, at 261 (James Madison) (Hallowell ed., 1842); see also Wesberry v. Sanders, 376 U.S.

1, 15 (1964) (explaining that “Madison in The Federalist

described the system of division of States into congressional districts, the method which he and others assumed

States probably would adopt,” and quoting The Federalist

No. 57).

Further support for the historical understanding of

the term “district” is found in the debates on the Apportionment Act of 1842, “which required single-member districts for the first time” for congressional districts. Rucho

v. Common Cause, 588 U.S. 684, 698 (2019). That debate

further indicates that Congress used the term to refer to

a recognizable local representational unit of geography

that respects political subdivisions. Senator Graham commented “[we] find in every great nation with any extension of country … that the representative assemblies of

the people have been chosen by counties, parishes, departments, and districts, by whatever named called. It ensures that personal and intimate acquaintance between

the representative and constituent which is of the very essence of true representation.” Cong. Globe, 27th Cong., 2d

Sess. app. 749 (1842). The House debate also focused on

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the advantages of localized, geographically recognizable

districts. Representative Summers stated, “[t]he essential feature of representative democracy is that the Representative shall reflect the will and know the wants of his

constituents. He should live among them, be familiar with

their condition, and hold with them a common political interest. These ends can only be secured by providing for

representative elections in districts suited to the situation

and convenience of the people.” Id. at 354.

Nothing in the legislative history of the first Apportionment Act would indicate that the drafters ever considered that districts would be divided in any way other than

straightforward geographic partitions representing local

interest. And while the 1842 Apportionment Act has gone

through a number of renditions over the past 150 years,

the requirement that Congressional elections be held in

“districts” has remained generally constant since 1842.4 It

remains so today. See 2 U.S.C. § 2c.

In contrast, the tortured and sprawling amalgamations of census geography that appear in some district

plans largely fail to follow any political boundaries or

evince any geographical reasoning, preventing representatives from becoming intimately familiar with issues important to their constituents. Such meandering districts

often require the representative to represent communities of diverse interests, are inconvenient for voters, and

make it far more difficult for candidates and members to

The Apportionment Act of 1850, ch. 11, 9 Stat. 433, eliminated the

provision requiring election by districts, but this provision was restored twelve years later in the Apportionment Act of 1862, ch. 170,

12 Stat. 572.

4

22

become familiar with the issues. Thus, requirements that

preserve political subdivisions serve independent values,

including facilitation of political organization, electoral

campaigning, and constituent representation. See

Karcher v. Daggett, 462 U.S. 725, 756 (1983) (Stevens, J.,

concurring).

The insidious practice of scooping up small disparate

pockets of minority voters perpetuates race-based politics, which, sadly, is the motivation of the § 2 litigation industry. Legislators represent not only individuals, but

also the interests of organized and unorganized associations of individuals. If members of a legislature become

uncoupled from specific political subdivisions, their bonds

to identifiable interests are reduced. Legislative members

cast free of the responsibility for specific communities of

interest become more vulnerable to the influence of special, or single, interest groups. This is why respect for genuine, non-race-based communities of interest remains an

important districting principle in the modern age of technology when communities can take many forms. Subordinating traditional districting principles to race, and

thereby creating a § 2 “district” that departs from the traditional common understanding of a district, would risk

depriving those voters of these benefits of traditional districting.

III. The “Anything Goes” Approach To Remedial DistrictDrawing Imposes Significant Election-Administration

Costs And Undermines Election Integrity.

The current regime of remedial district line-drawing

has practical consequences for election administration,

election integrity, and voter confidence. The flood of § 2

23

litigation—and the ever-changing maps it spawns—poses

significant challenges to election administration. District

boundaries change from election to election and, with

them, polling places. Too often, this leads to election officials scrambling and leaves voters in the dark, confused

about shifting boundaries and why, for example, their incumbent representative keeps changing. This, in turn, undermines voter confidence.

News stories about such election administration troubles abound every election season. A few examples from

the latest redistricting cycle illustrate these difficulties. In

the wake of redistricting in 2022, one California county

sent out ballots containing missing or inaccurate candidates based on “outdated district boundaries.” LautenScrivner, Inaccurate general election ballots sent to

Merced County voters. What happens now?, Merced SunStar (Oct. 13, 2022). That same year, Virginia election officials mailed out notices with incorrect voting information

to tens of thousands of voters throughout the state, causing widespread confusion. Melton & Sanchez-Cruz, Vot-

ers in Fairfax, Prince William counties were sent incorrect voting information, WUSA9 (Oct. 21, 2022); NBC

Washington, Thousands of Virginia Voters Sent Incorrect

Voting Info: Here’s How to Check Your Polling Place

(Oct. 21, 2022).

In the 2024 election, a tight race for a Georgia state

legislative seat was called into question when several

dozen voters cast ballots in the wrong district after redistricting split their district across a rural highway. Niesse,

Outcome in Georgia’s Closest House Race in Doubt Due

to Botched Ballots, Atlanta Journal-Constitution (Dec. 13,

2024). And in Wisconsin, a local election official “failed to

24

realize” that redistricting had moved a rural town into a

new state legislative district, which resulted in the town’s

700 voters receiving ballots for an incorrect race and cast

the result of a primary election into doubt. WCCO News,

Confusion over new legislative district leads to ballot error in Wisconsin Assembly primary (Aug. 14, 2024). The

list goes on.

Election officials deserve better and maintaining voter

confidence requires more. This Court has previously held

that “the need for workable standards and sound judicial

and legislative administration” counseled in favor of

adopting a bright-line rule for the first Gingles precondition. Bartlett v. Strickland, 556 U.S. 1, 17 (2009). This is

an area where objective rules—like one requiring § 2 illustrative districts be drawn in a race-neutral manner—

add value and clarity in an area of law bedeviled by complexity and uncertainty. Legislatures, lower courts, and

the public would be better served with a clear, administrable standard for determining a § 2 vote-dilution claim.

25

CONCLUSION

For the foregoing reasons, the Court should clarify the

geographical limits on § 2 remedial districts and affirm

the district court.

Respectfully submitted,

September 24, 2025

BRADLEY A. BENBROOK

Counsel of Record

STEPHEN M. DUVERNAY

Benbrook Law Group, PC

701 University Ave., Ste. 106

Sacramento, California 95825

(916) 447-4900

brad@benbrooklawgroup.com

Counsel for Amicus Curiae