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

Nos. 24-109 and 24-110

In the Supreme Court of the United States

STATE OF LOUISIANA, APPELLANT

v.

PHILLIP CALLAIS, ET AL.

PRESS ROBINSON, ET AL., APPELLANTS

v.

PHILLIP CALLAIS, ET AL.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF LOUISIANA

SUPPLEMENTAL BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING APPELLEES

D. JOHN SAUER

Solicitor General

Counsel of Record

HARMEET K. DHILLON

Assistant Attorney General

HASHIM M. MOOPPAN

Deputy Solicitor General

JESUS A. OSETE

Principal Deputy Assistant

Attorney General

AARON Z. ROPER

Assistant to the

Solicitor General

ANDREW G. BRANIFF

DAVID N. GOLDMAN

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

This Court requested supplemental briefing on the

following question raised at pages 36-38 of appellees’

opening brief:

Whether the State’s intentional creation of a second

majority-minority congressional district violates the

Fourteenth or Fifteenth Amendments to the U. S. Constitution.

(I)

TABLE OF CONTENTS

Page

Interest of the United States ........................................................ 1

Introduction and summary of argument ..................................... 2

Argument:

I. Section 2 does not provide a compelling interest to

draw districts where race predominates ........................ 5

A. Strict scrutiny applies to districting where race

predominates ............................................................... 5

B. Section 2 cannot constitutionally require racepredominant districting today .................................. 8

II. Section 2 should not be read to require drawing

districts where race predominates ................................ 14

A. The Gingles framework is too malleable to

prevent courts from requiring race-predominant

districting ................................................................... 14

B. This Court should modify Gingles to align with

the statutory text and avoid constitutional

problems ..................................................................... 20

C. Stare decisis does not prevent modifying

Gingles ....................................................................... 29

III. The decision below should be affirmed ........................ 31

Conclusion ...................................................................................... 35

TABLE OF AUTHORITIES

Cases:

Abbott v. Perez, 585 U.S. 579 (2018) ...................................... 28

Abrams v. Johnson, 521 U.S. 74 (1997) ................................ 35

Alabama Legislative Black Caucus v. Alabama,

575 U.S. 254 (2015) ................................................... 25, 32, 35

Alexander v. Sandoval, 532 U.S. 275 (2001) ........................ 34

Alexander v. South Carolina State Conference of the

NAACP, 602 U.S. 1 (2024) .......................... 5-8, 11, 24-27, 31

Allen v. Milligan,

599 U.S. 1 (2023) .................... 10, 12, 14, 17, 19-25, 27-30, 35

(III)

IV

Cases—Continued:

Page

Alpha Phi Alpha Fraternity Inc. v. Raffensperger,

700 F. Supp. 3d 1136 (N.D. Ga. 2023),

appeal pending, No. 23-13914 (11th Cir.) .................... 19, 23

Arizona Christian Sch. Tuition Org. v. Winn,

563 U.S. 125 (2011) ............................................................... 30

Arlington Heights v. Metropolitan Hous. Dev. Corp.,

429 U.S. 252 (1977) ............................................................... 23

Bartlett v. Strickland, 556 U.S. 1 (2009) .............................. 23

Bethune-Hill v. Virginia State Bd. of Elections,

580 U.S. 178 (2017) ....................................................... 6, 7, 24

Brnovich v. Democratic Nat’l Comm.,

594 U.S. 647 (2021) ..................... 3, 4, 8, 17, 20, 21, 27-30, 33

Bush v. Vera, 517 U.S. 952 (1996) ..................................... 7, 24

Chisom v. Roemer, 501 U.S. 380 (1991) .................................. 9

Christian Ministerial Alliance v. Sanders,

No. 19-cv-402, 2023 WL 4745352

(E.D. Ark. July 25, 2023) ..................................................... 22

City of Boerne v. Flores, 521 U.S. 507 (1997) ................ 10, 11

City of Mobile v. Bolden, 446 U.S. 55 (1980) ......................... 9

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

488 U.S. 469 (1989) ......................................................... 11, 12

City of Rome v. United States,

446 U.S. 156 (1980) ................................................... 10, 23, 29

Coalition for TJ v. Fairfax Cnty. Sch. Bd.,

No. 23-170, 2024 WL 674659 (Feb. 20, 2024) .................... 21

Cooper v. Harris, 581 U.S. 285 (2017) .......................... 5, 6, 28

Dobbs v. Jackson Women’s Health Org.,

597 U.S. 215 (2022) ............................................................... 30

Food Mktg. Inst. v. Argus Leader Media,

588 U.S. 427 (2019) ............................................................... 30

Girouard v. United States, 328 U.S. 61 (1946) .................... 31

Groff v. DeJoy, 600 U.S. 447 (2023) ................................ 29, 30

V

Cases—Continued:

Page

Growe v. Emison, 507 U.S. 25 (1993) .................................... 17

Halliburton Co. v. Erica P. John Fund, Inc.,

573 U.S. 258 (2014) ............................................................... 30

Johnson v. De Grandy, 512 U.S. 997 (1994) ........................ 26

Kisor v. Wilkie, 588 U.S. 558 (2019) ..................................... 30

League of United Latin Am. Citizens v. Perry,

548 U.S. 399 (2006) ......................................................... 17, 28

Miller v. Johnson,

515 U.S. 900 (1995) .................................5, 7, 8, 11, 19, 22, 32

Mississippi State Conference of the NAACP v.

State Bd. of Election Comm’rs,

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

appeal filed, No. 25-234 (Aug. 26, 2025) ............................. 23

Nairne v. Ardoin,

715 F. Supp. 3d 808 (M.D. La. 2024),

aff ’d, No. 24-30115, 2025 WL 2355524

(5th Cir. Aug. 14, 2025) ........................................................ 22

Northwest Austin Mun. Utility Dist. No. One v.

Holder, 557 U.S. 193 (2009) ........................................... 12, 13

Reno v. Bossier Parish Sch. Bd.,

520 U.S. 471 (1997) ................................................................. 9

Ricci v. DeStefano, 557 U.S. 557 (2009) ............................... 10

Rivers v. Roadway Express, Inc.,

511 U.S. 298 (1994) ............................................................... 34

Robinson v. Ardoin,

605 F. Supp. 3d 759 (M.D. La. 2022) .................... 4, 7, 32-34

Rucho v. Common Cause, 588 U.S. 684 (2019) .................... 26

Rodriguez de Quijas v. Shearson/American

Express, Inc., 490 U.S. 477 (1989) ...................................... 30

Shaw v. Hunt, 517 U.S. 899 (1996) ................ 5, 7, 8, 11, 24, 32

Shelby County v. Holder, 570 U.S. 529 (2013) ........... 3, 12-14

VI

Cases—Continued:

Page

Singleton v. Allen,

782 F. Supp. 3d 1092 (N.D. Ala. 2025),

appeal filed, No. 25-273 (Aug. 26, 2025) ............................. 18

Singleton v. Merrill,

582 F. Supp. 3d 924 (N.D. Ala. 2022), aff ’d sub nom.

Allen v. Milligan, 599 U.S. 1 (2023) ................................... 19

Soto Palmer v. Hobbs,

686 F. Supp. 3d 1213 (W.D. Wash. 2023),

cert. before judgment denied, 144 S. Ct. 873 (2024) ........ 19

South Carolina v. Katzenbach, 383 U.S. 301 (1966) ..... 12, 13

Students for Fair Admissions, Inc. v. President &

Fellows of Harv. Coll., 600 U.S. 181 (2023) ....... 3, 11, 12, 21

Texas Dep’t of Hous. & Cmty. Affairs v. Inclusive

Cmtys. Project, Inc., 576 U.S. 519 (2015) .......................... 10

Thornburg v. Gingles, 478 U.S. 30 (1986) ...... 2, 14-18, 27, 28

Trans World Airlines v. Hardison,

432 U.S. 63 (1977) ................................................................. 29

Turtle Mountain Band of Chippewa Indians v.

Howe, No. 22-cv-22, 2023 WL 8004576 (D.N.D.

Nov. 17, 2023), vacated on other grounds,

137 F.4th 710 (8th Cir. 2025) ............................................... 18

Washington v. Davis, 426 U.S. 229 (1976) ............................. 9

Whitcomb v. Chavis, 403 U.S. 124 (1971) ............................. 27

White v. Regester, 412 U.S. 755 (1973) ................................. 29

White v. State Bd. of Election Comm’rs,

No. 22-cv-62, 2025 WL 2406437

(N.D. Miss. Aug. 19, 2025) ................................................... 18

Wisconsin Legislature v. Wisconsin Elections

Comm’n, 595 U.S. 398 (2022) .......................................... 8, 22

Constitution and statutes:

U.S. Const.:

Amend. XIV ........................................................... 1, 2, 9, 10

VII

Constitution and statutes—Continued:

Page

Amend. XV ............................................................. 1, 2, 8-11

§ 1 .................................................................................... 9

§ 2 .................................................................................... 8

Voting Rights Act of 1965, Pub. L. No. 89-110,

79 Stat. 437 ................... 2-5, 7, 9-15, 17, 20, 25-30, 32, 34, 35

52 U.S.C. 10301 .................................................................... 1

52 U.S.C. 10301(a) (§ 2(a)).................................................. 9

52 U.S.C. 10301(b) (§ 2(b)) .................2, 4, 9, 10, 14, 15, 20

52 U.S.C. 10308(d) ............................................................... 1

Miscellaneous:

Cong. Research Serv., R48535, Membership

of the 119th Congress (Aug. 4, 2025) .................................. 13

H.R. Rep. No. 478, 109th Cong., 2d Sess. (2006)................. 13

Louisiana House of Representatives,

Member Party & Demographics,

https://perma.cc/62LT-FXK8 ............................................. 13

Louisiana State Senate, Membership Statistics,

https://perma.cc/VS6V-9WU4............................................. 13

U.S. Census Bureau, Voting and Registration Tables

(Apr. 30, 2025), https://perma.cc/8DPK-NQWY .............. 13

In the Supreme Court of the United States

No. 24-109

STATE OF LOUISIANA, APPELLANT

v.

PHILLIP CALLAIS, ET AL.

No. 24-110

PRESS ROBINSON, ET AL., APPELLANTS

v.

PHILLIP CALLAIS, ET AL.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF LOUISIANA

SUPPLEMENTAL BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING APPELLEES

INTEREST OF THE UNITED STATES

This case involves a racial-gerrymandering challenge

under the Fourteenth and Fifteenth Amendments to a

redistricting plan that Louisiana adopted in response to

judicial decisions finding a likely violation of Section 2

of the Voting Rights Act of 1965 (VRA), Pub. L. No. 89110, 79 Stat. 437 (52 U.S.C. 10301). The Department of

Justice enforces Section 2 and has a substantial interest

in the statute’s proper interpretation. 52 U.S.C. 10308(d).

The United States also has a substantial interest in ensuring that its citizens are not subject to unconstitutional

racial discrimination.

(1)

2

INTRODUCTION AND SUMMARY OF ARGUMENT

This Court requested supplemental briefing on “the

following question raised on pages 36-38 of the Brief for

Appellees: Whether the State’s intentional creation of

a second majority-minority congressional district violates

the Fourteenth or Fifteenth Amendments.” 8/1/2025 Order. The answer to that question is yes.

As this case illustrates, lower courts have repeatedly

interpreted this Court’s framework from Thornburg v.

Gingles, 478 U.S. 30 (1986), to require States to draw

district lines where race predominates over neutral districting principles as a remedy for perceived violations

of Section 2’s “results” test. They have done so even

where the evidence does not suggest any objective risk

that intentional discrimination has had the effect of rendering the political process not “equally open” to racial

minorities. 52 U.S.C. 10301(b). In doing so, they have

compelled States to violate the Constitution to remedy

phantom statutory violations. The Court should modify

the Gingles framework to prevent those common errors,

align the factors more closely with the statutory text,

and avoid the otherwise-fatal constitutional problems

created by the prevailing approach to Section 2.

More specifically, the cited pages of appellees’ brief

address whether Section 2 provides a compelling interest that can justify race-predominant districting. Section 2 does not supply a compelling interest to draw

such districts because the statute would be unconstitutional if it required such race-based districting. Congress enacted the VRA pursuant to its power to enforce

the Fifteenth Amendment, which bans only intentional

racial discrimination in voting. Construing Section 2’s

“results” test to require race-predominant districting

would decouple the statute from its function of smoking

3

out voting practices and procedures that are likely intentionally discriminatory and would instead effectively

compel racial gerrymanders. While that likely would

have been unconstitutional even when the “results” test

was enacted in 1982, its unconstitutionality is even

clearer today. Current voting conditions cannot justify

such excessive consideration of race. See Shelby County

v. Holder, 570 U.S. 529 (2013); Students for Fair Admissions, Inc. v. President & Fellows of Harv. Coll.,

600 U.S. 181 (2023).

Section 2’s plain text, moreover, does not require

States to engage in race-predominant districting. The

“results” test has had that effect only because of the unduly malleable framework for vote-dilution claims established in Gingles. This Court should modify various

aspects of that framework to better align with both the

statutory text and constitutional principles, paralleling

the approach the Court took to Section 2 vote-denial

claims in Brnovich v. Democratic National Committee,

594 U.S. 647 (2021). Specifically, the Court should make

three key modifications to the Gingles framework.

First, for Section 2 plaintiffs to meet their threshold

burden to offer a reasonably configured majorityminority district, their district must be superior to the

State’s enacted district under the State’s own raceneutral districting principles, including racial nonpredominance and political goals. Otherwise, there is

no basis for inferring that the State’s failure to create

the majority-minority district reflects intentional discrimination, since the race-neutral districting principles

provide an obvious alternative explanation.

Second, plaintiffs must decouple party from race

when determining whether majority and minority voters

vote differently. Otherwise, rather than protecting equal

4

opportunities for minority voters, Section 2 simply provides an electoral advantage for the party they favor.

Third, when considering the totality of circumstances, courts must focus on factors that illuminate

whether the State’s failure to create the district was objectively likely to reflect intentional discrimination.

Only then can it reasonably be said that voting is not

“equally open” to minority voters. Brnovich, 594 U.S.

at 668 (quoting 52 U.S.C. 10301(b)).

In short, this Court’s Section 2 jurisprudence should

account for the fact that, today, a State’s failure to create a compact majority-minority district, even where

demographically possible, is far more likely to reflect

political motives than racial ones. Too often, Section 2

is deployed as a form of electoral race-based affirmative

action to undo a State’s constitutional pursuit of political ends. That misuse of Section 2 is unconstitutional.

Under the proper reading of Section 2, the judgment

below should be affirmed. The district court in Robinson v. Ardoin, 605 F. Supp. 3d 759 (M.D. La. 2022), misapplied Section 2 in determining that Louisiana likely

needed to draw a second majority-minority district.

The Robinson appellants’ proposed district was far inferior to the State’s original district from the perspective of the State’s Republican-majority legislature, as it

would have cost Louisiana Republicans a seat in Congress. While the Robinson appellants now cast Gingles

as an exacting framework trained on current discrimination, that account bears scant resemblance to the Robinson court’s unfocused, wide-ranging opinion, which exemplifies many of the flaws with recent Section 2 litigation. As Louisiana now concedes, Section 2 cannot justify the racially gerrymandered majority-minority district created to appease the Robinson court.

5

ARGUMENT

I. SECTION 2 DOES NOT PROVIDE A COMPELLING INTEREST TO DRAW DISTRICTS WHERE RACE PREDOMINATES

Under the Constitution, States cannot draw districts

where race predominates over neutral districting principles, absent a compelling interest that satisfies strict

scrutiny. Compliance with Section 2’s “results” test is

not such an interest. If the statute required racepredominant districting, it likely would have been unconstitutional when enacted, and it would be plainly unconstitutional today.

A. Strict Scrutiny Applies To Districting Where Race Predominates

1. Under precedents that this Court has recently

and repeatedly reaffirmed, the intentional creation of a

majority-minority district does not itself trigger strict

scrutiny. Instead, strict scrutiny applies only when “a

legislature gives race a predominant role” in placing “ ‘a

significant number of voters within or without a particular district.’ ” Alexander v. South Carolina State Conference of the NAACP, 602 U.S. 1, 6-7 (2024) (quoting

Miller v. Johnson, 515 U.S. 900, 916 (1995)); accord, e.g.,

Cooper v. Harris, 581 U.S. 285, 291 (2017).

To show predominance, “a plaintiff must prove that

the legislature subordinated traditional race-neutral

districting principles * * * to racial considerations.”

Miller, 515 U.S. at 916. That occurs when “ ‘[r]ace was

the criterion that, in the State’s view, could not be compromised’ in the drawing of district lines.” Alexander,

602 U.S. at 7 (quoting Shaw v. Hunt, 517 U.S. 899, 907

(1996) (Shaw II)) (brackets in original).

Under this Court’s cases, predominance can be

shown through “direct evidence” that race dictated

6

where lines were drawn, which the State may “express[ly] acknowledge[]” or reveal through discovery.

Alexander, 602 U.S. at 8. Predominance also can be

shown through “circumstantial evidence,” such as a “bizarre” shape or other “conflicts with traditional redistricting criteria” that leave no likely “alternative explanation.” Ibid. Because the ultimate question is why the

State drew the district it did, a “showing of ‘inconsistency between the enacted plan and traditional redistricting criteria’ is unnecessary” if other evidence shows

that race predominated. Cooper, 581 U.S. at 301 n.3

(quoting Bethune-Hill v. Virginia State Bd. of Elections, 580 U.S. 178, 190 (2017)). While States cannot use

race as a proxy for party affiliation, Alexander, 602 U.S.

at 7 n.1, an “adverse inference” against predominance

is warranted if plaintiffs cannot produce “an alternative

map” that could achieve the State’s “political objectives” without the challenged placement of minority voters, id. at 34.

2. Louisiana asks (Supp. Br. 46) this Court to “amend

or overrule its racial-predominance precedents” and reject any role for race in districting. But neither the

State nor appellees challenged the predominance requirement in their opening briefs. And this Court has

often reaffirmed the predominance principle—for good

reason: jettisoning predominance would aggravate, not

terminate, the “endless” redistricting litigation Louisiana bemoans (id. at 12).

The predominance requirement reflects the “extraordinary caution” warranted when federal courts review a redistricting plan, which “represents a serious

intrusion on the most vital of local functions.” Alexander, 602 U.S. at 7. Redistricting involves a “complex interplay of forces,” and mapmakers will “almost always

7

be aware of racial demographics.” Miller, 515 U.S. at

915-916. The predominance requirement implements

“the presumption of good faith” owed to legislators, id.

at 916, and prevents politically motivated challenges to

virtually any redistricting on the ground that race

played some role, Alexander, 602 U.S. at 7, 10-11. Abandoning predominance would thus not only facially invalidate Section 2—which requires States to consider race

to avoid prohibited results—but would also precipitate

an onslaught of racial-gerrymandering claims.

3. The district court properly found that race predominated in drawing Louisiana’s second majorityminority district.

Louisiana concededly created the district solely to

avoid a court-drawn remedy for the Section 2 violation

found likely in Robinson v. Ardoin, 605 F. Supp. 3d 759

(M.D. La. 2022). Oral Arg. Tr. 25, 55-56. The State obviously preferred the 5-1 Republican map that it enacted following the 2020 census. No one has identified

any reason besides Robinson why a Republican legislature and governor would suddenly create a 4-2 map that

cost a Republican incumbent his seat.

Of course, when responding to Robinson, political

considerations were also “at work.” Shaw II, 517 U.S.

at 907. In triaging which Republican had to be ousted,

the legislature protected the Speaker of the House, the

Majority Leader, and Louisiana’s representative on the

Appropriations Committee. 24-109 J.S. App. 49a & n.10.

But the decision to create a majority-minority district

“was made at the outset of the process and never seriously questioned.” Bush v. Vera, 517 U.S. 952, 961

(1996) (plurality opinion). Race-neutral considerations

thus “came into play only after the race-based decision

had been made.” Bethune-Hill, 580 U.S. at 189 (quoting

8

Shaw II, 517 U.S. at 907). Because race “could not be

compromised” in satisfying the Robinson court’s demands, race predominated. Alexander, 602 U.S. at 7.

In Miller, Georgia similarly drew a third majorityminority district after the Department of Justice denied

VRA preclearance for plans with only two such districts.

515 U.S. at 906-908. The DOJ pressure, this Court observed, made it “obvious” that “race was the predominant factor in drawing” the contested district. Id. at

917-918; see Shaw II, 517 U.S. at 906 (similar). Louisiana’s “abject surrender” to a federal authority’s

(mis)reading of the VRA, Miller, 515 U.S. at 917, thus

confirms, rather than refutes, that race predominated.

That the federal authority was a district court rather

than the DOJ makes no difference—either way, race

was the uncompromisable factor.

B. Section 2 Cannot Constitutionally Require RacePredominant Districting Today

This Court has often “assumed” without deciding

that Section 2 compliance is a compelling interest that

could justify race-based districting under strict scrutiny. E.g., Wisconsin Legislature v. Wisconsin Elections Comm’n, 595 U.S. 398, 401 (2022) (per curiam). If

Section 2’s “results” test required drawing districts

where race predominates, that assumption would be

mistaken. Such a reading of the statute would mandate

unconstitutional racial discrimination. And compliance

with an unconstitutional statute cannot justify unconstitutional conduct. See Miller, 515 U.S. at 921.

1. Congress enacted the VRA pursuant to its “power

to enforce [the Fifteenth Amendment] by appropriate

legislation.” U.S. Const. Amend. XV, § 2; see Brnovich

v. Democratic Nat’l Comm., 594 U.S. 647, 656 (2021).

The Fifteenth Amendment states that “[t]he right of

9

citizens of the United States to vote shall not be denied

or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”

U.S. Const. Amend. XV, § 1. Especially given the

phrase “on account of, ” the Fifteenth Amendment, like

the Fourteenth Amendment, bars only actions taken

“with a discriminatory purpose.” Reno v. Bossier Parish Sch. Bd., 520 U.S. 471, 481 (1997); see Washington

v. Davis, 426 U.S. 229, 239 (1976).

Section 2’s text originally tracked the Fifteenth

Amendment, stating that “[n]o voting qualification or

prerequisite to voting, or standard, practice, or procedure[,] shall be imposed or applied by” a state or political subdivision “to deny or abridge the right of any citizen of the United States to vote on account of race or

color.” 79 Stat. 437. In City of Mobile v. Bolden, 446

U.S. 55 (1980), a plurality concluded that Section 2

“simply restated” the Fifteenth Amendment and thus

barred only “purposeful discrimination.” Id. at 61, 63.

In 1982, Congress abrogated City of Mobile and

made two significant changes to Section 2 relevant here.

First, Congress “str[uck] out ‘to deny or abridge’ ” and

“substitut[ed] ‘in a manner which results in a denial or

abridgment of.’ ” Chisom v. Roemer, 501 U.S. 380, 393

(1991). Second, Congress added subsection (b), which

elaborates the kind of “result[]” that subsection (a) prohibits. Id. at 394. Subsection (b) provides that a “violation of [Section 2(a)] is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or

political subdivision are not equally open to participation by” persons of a particular race, color, or languageminority group. 52 U.S.C. 10301(b). Section 2(b) defines “not equally open” to mean that members of a mi-

10

nority group “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” Ibid.

In addition, Section 2(b) provides that the statute creates no right to “proportion[al]” representation. Ibid.

2. Section 2’s “results” test would be unconstitutional if it required States to draw majority-minority

districts where race predominates.

First, compelling race-predominant districting would

not be a permissible means of enforcing the Constitution’s prohibition on intentional racial discrimination in

voting. Congress’s power “to enforce” the Reconstruction Amendments is “not the power to determine what

constitutes a constitutional violation.” City of Boerne v.

Flores, 521 U.S. 507, 519 (1997); see id. at 518 (treating

Fourteenth and Fifteenth Amendment enforcement

powers as “parallel”); Allen v. Milligan, 599 U.S. 1, 80

n.19 (2023) (Thomas, J., dissenting) (same).

Although this Court has held that a statute banning

discriminatory effects can be an “appropriate method”

of enforcing a ban on intentional discrimination, that is

so only where the proscribed effects reflect a “risk of

purposeful discrimination.” City of Rome v. United

States, 446 U.S. 156, 177 (1980). Discriminatory effects

can help identify practices that are objectively likely to

reflect intentional discrimination—“to ‘smoke out,’ as it

were, disparate treatment,” Ricci v. DeStefano, 557

U.S. 557, 595 (2009) (Scalia, J., concurring), and capture

subtle or implicit discrimination that “escape[s] easy

classification,” Texas Dep’t of Hous. & Cmty. Affairs v.

Inclusive Cmtys. Project, Inc., 576 U.S. 519, 540 (2015).

But a ban on discriminatory effects is inappropriate if it

sweeps in practices that likely reflect valid, race-neutral

motives. Rather than “enforcing” the Reconstruction

11

Amendments, such a ban would be “changing what the

right is.” City of Boerne, 521 U.S. at 519.

If a State declines to draw a majority-minority district where race would predominate, that choice is highly

unlikely to reflect disguised intentional discrimination.

Rather, the State’s decision is almost certainly based on

the race-neutral principles that the State refuses to

“subordinate[].” Alexander, 602 U.S. at 7. Reading Section 2’s “results” test to require race-predominant districting would thus lack “congruence and proportionality

between the injury to be prevented” (intentional racial

discrimination in voting) “and the means adopted to that

end.” City of Boerne, 521 U.S. at 520. In fact, it would

reflect a stark variance between the end (race-neutral

treatment) and the means (race-predominant action).

Second, a statute that enforces the Fifteenth Amendment cannot compel States to engage in conduct that violates the Amendment. Yet race-predominant districting is “presumptively unconstitutional” and consequently subject to strict scrutiny. Miller, 515 U.S. at

927; see pp. 5-6, supra.

Setting aside abrogated affirmative-action cases and

cases involving prison security, the only compelling interest that this Court has ever accepted to justify racebased government action is “remediating specific, identified instances of past discrimination.” Students for

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

Coll., 600 U.S. 181, 207 (2023) (SFFA). That category is

limited to “extreme case[s]” where racial preferences

are “necessary to break down patterns of deliberate exclusion.” City of Richmond v. J.A. Croson Co., 488 U.S.

469, 509 (1989) (plurality opinion); see Shaw II, 517 U.S.

at 909-910. The Robinson appellants attempt to shoehorn Section 2 into that category (Supp. Br. 31), but

12

elsewhere admit (id. at 6, 11) that Section 2 does not require a finding of “intentional discrimination” and applies “nationwide,” including to jurisdictions lacking

such a history. Section 2 thus reaches far beyond remedying specific past discrimination, especially as currently construed. See pp. 17-19, 22-29, infra.

3. At minimum, any interpretation of Section 2’s “results” test that requires race-predominant districting

would be unconstitutional today. If such a mandate

were ever permissible, it could only have been justified

by the “exceptional conditions” of the Nation’s history

of race-based discrimination in voting. South Carolina

v. Katzenbach, 383 U.S. 301, 334 (1966).

Critically, “even if Congress in 1982 could constitutionally authorize race-based districting under § 2 for

some period of time, the authority to conduct racebased redistricting cannot extend indefinitely into the

future.” Milligan, 599 U.S. at 45 (Kavanaugh, J., concurring in part). Any “deviation from the norm of equal

treatment of all racial and ethnic groups” must be “temporary.” Croson, 488 U.S. at 510 (plurality opinion).

Accordingly, in SFFA, this Court held that race-based

affirmative action in higher education must come to an

end. 600 U.S. at 221-225; see id. at 314 (Kavanaugh, J.,

concurring) (noting temporal limits on race-based

school assignments to cure segregation). And Shelby

County v. Holder, 570 U.S. 529 (2013), held that the

VRA’s preclearance regime could not continue even for

States with the worst segregation-era histories of voting discrimination. Id. at 552-553.

Those principles apply a fortiori here. As the Robinson appellants appear to agree (Supp. Br. 13), Section

2 “imposes current burdens and must be justified by

current needs.” Northwest Austin Mun. Utility Dist.

13

No. One v. Holder, 557 U.S. 193, 203 (2009). Roughly 60

years after Section 2’s enactment and 40 years after the

“results” test’s adoption, there is no adequate justification for nationwide race-predominant districting, let

alone as a means to enforce the right to vote free from

racial discrimination.

As this Court has observed, by 2004, the racial gap in

voter registration and turnout had largely disappeared,

with minorities registering and voting at levels that

sometimes surpassed the majority. Shelby County, 570

U.S. at 547-548. Since 2004, black voters have turned out

at higher rates than white voters in two of five presidential elections nationwide and in Louisiana. U.S. Census

Bureau, Voting and Registration Tables (Apr. 30, 2025),

https://perma.cc/8DPK-NQWY. 1 And the voter-registration gap has not exceeded 6% nationally or 5% in Louisiana. Ibid. Contrast that to 1965, when a 50-point gap

marred much of the South, including Louisiana. Katzenbach, 383 U.S. at 313.

Moreover, “minority candidates hold office at unprecedented levels.” Northwest Austin, 557 U.S. at 202.

Sixty-six black representatives serve in the current Congress. Cong. Research Serv., R48525, Membership of the

119th Congress 7 (Aug. 4, 2025), https://www.congress

.gov/crs-product/R48535. And Louisiana has gone from

all-white assemblies in the 1960s to black representation over 25% today. H.R. Rep. No. 478, 109th Cong.,

2d Sess. 18 (2006); Louisiana House of Representatives,

Member Party & Demographics, https://perma.cc/62LTFXK8; Louisiana State Senate, Membership Statistics,

For each presidential-election year, select “ Voting and Registration in the Election of November [year],” and see “Table 4b: Reported Voting and Registration of the Total Voting-Age Population

by Sex, Race, and Hispanic Origin.”

1

14

https://perma.cc/VS6V-9WU4. Some top-side amici claim

that successful “Section 2 litigation has sharply declined

in the last two decades.” Katz Br. 1; see Milligan, 599

U.S. at 29. If so, that too suggests that improved conditions can no longer justify an overbroad reading of Section 2. Cf. Shelby County, 570 U.S. at 548 (noting decline in preclearance objections).

Of course, “these improvements” may be partly

“because of ” the VRA. Shelby County, 570 U.S. at 548.

But that should still be cause for “eas[ing] the restrictions” that courts have construed Section 2 to impose, not for indefinitely continuing federally mandated

racial gerrymanders nationwide. See id. at 549.

II. SECTION 2 SHOULD NOT BE READ TO REQUIRE

DRAWING DISTRICTS WHERE RACE PREDOMINATES

Properly construed, Section 2’s “results” test should

never have compelled race-predominant districting. But

that has been the consequence of misguided applications

of the vague framework for vote-dilution claims established in Thornburg v. Gingles, 478 U.S. 30 (1986). This

Court should modify that judge-made framework to address the constitutional problems that it has created.

A. The Gingles Framework Is Too Malleable To Prevent

Courts From Requiring Race-Predominant Districting

1. Under Section 2, a prohibited result “is established if, based on the totality of circumstances, it is

shown that the political processes leading to nomination

or election * * * are not equally open to participation”

by members of a minority group “in that its members

have less opportunity than other members of the electorate to participate in the political process and to elect

representatives of their choice.” 52 U.S.C. 10301(b). At

the same time, Section 2 creates no right to a minority

15

group’s election “in numbers equal to their proportion

in the population.” Ibid. Nothing in that text—which

disclaims proportional representation—compels States

to draw majority-minority districts where race predominates. That compulsion has arisen only due to fundamental flaws in the Gingles framework for adjudicating

Section 2 vote-dilution claims.

Gingles, which involved a challenge to North Carolina’s multimember legislative districts, marked this

Court’s first encounter with Section 2’s “results” test.

478 U.S. at 34-35. The Court held that the test reaches

not just vote-denial claims—i.e., claims that a voting

practice abridges minorities’ right to cast a ballot—but

also “vote dilution” claims that a practice “operate[s] to

minimize or cancel out the voting strength” of minorities. Id. at 47-48. The Court reasoned that “[t]he essence of a § 2 claim is that a certain electoral law, practice, or structure interacts with social and historical

conditions to cause an inequality in the opportunities

enjoyed by black and white voters to elect their preferred representatives.” Id. at 47. And the Court explained that, “where minority and majority voters consistently prefer different candidates,” the use of multimember districts rather than single-member districts

may have that effect. Id. at 48.

Gingles adopted a baroque structure for vote-dilution

claims against districting plans. The Court identified

three “preconditions for multimember districts to operate to impair minority voters’ ability to elect representatives of their choice,” which the Court drew from secondary literature. Gingles, 478 U.S. at 50; see id. at 5051. First, the minority must be “sufficiently large and geographically compact to constitute a majority in a singlemember district.” Id. at 50. Second, the minority must

16

be “politically cohesive.” Id. at 51. And third, the majority must “vote[] sufficiently as a bloc to enable it

* * * usually to defeat the minority’s preferred candidate.” Ibid.

Once the preconditions are met, the Gingles framework considers the totality of circumstances to determine whether a violation exists. Here, Gingles examined the “legislative history in some detail,” treating the

Senate Report as “the authoritative source for legislative intent.” 478 U.S. at 42, 43 n.7. The Senate Report

offered nine non-exhaustive factors which “may be relevant to a § 2 claim”:

(1) the jurisdiction’s “history of voting-related discrimination”;

(2) “the extent to which voting * * * is racially polarized”;

(3) the use of “voting practices or procedures that

tend to enhance the opportunity for discrimination”;

(4) “the exclusion of members of the minority group

from candidate slating processes”;

(5) “the effects of past discrimination in areas such

as education, employment, and health, which

hinder [the minority group’s] ability to participate effectively in the political process”;

(6) “the use of overt or subtle racial appeals in political campaigns”;

(7) minorities’ past “elect[ion] to public office”;

(8) elected officials’ “unresponsive[ness] to the particularized needs” of the minority group; and

(9) the “tenuous[ness]” of the challenged practice.

Id. at 44-45.

Because Gingles involved multimember districts, the

Court had “no occasion to consider” “other sorts of vote

17

dilution claims,” such as claims challenging the drawing

of single-member districts. 478 U.S. at 46 n.12. But this

Court later extended the Gingles framework to those

claims, while noting that single-member districts “generally pose [lesser] threats to minority-voting participation” than multimember districts. Growe v. Emison,

507 U.S. 25, 40 (1993). Only in 2006—two decades after

Gingles—did this Court first find that a single-member

district violated Section 2. League of United Latin Am.

Citizens v. Perry, 548 U.S. 399, 442 (2006) (LULAC).

2. The Gingles preconditions and factors bear a negligible relationship to the statutory text, as exemplified

by the heavy reliance on legislative history and secondary literature. That is unsurprising because Gingles

was decided in 1986, before the Court’s modern return

to careful textualism. See Brnovich, 594 U.S. at 667;

Milligan, 599 U.S. at 103 (Alito, J., dissenting).

Worse, the Gingles framework, as implemented in

the ensuing decades, has proven sufficiently malleable

that it does not meaningfully constrain plaintiffs and

district courts from requiring unconstitutional racepredominant districting. The Robinson appellants recognize (Supp. Br. 4) that Section 2 must have a “limited

scope” because “overly broad race-based remedies”

would raise constitutional concerns. But they cast (id.

at 1, 36) the Gingles framework as “a formidable barrier” that operates with “exactness in filtering out all

but the most meritorious claims of racial discrimination.” That description is divorced from the reality of

how Gingles is too often applied. Robinson itself illustrates this problem. See pp. 31-35, infra. And many

other cases do too.

In practice, the three preconditions typically boil

down to whether it is possible to draw a reasonably con-

18

figured majority-minority district, without any real regard for the likely reasons why the State did not draw

such a district. For example, on remand in Milligan,

the district court rejected Alabama’s remedial map, and

compelled the State to draw a second majority-minority

district, because the State’s black population could

“readily support an additional opportunity district,”

even though the State’s remedial map better maintained

communities of interest. See Singleton v. Allen, 782 F.

Supp. 3d 1092, 1115 (N.D. Ala. 2025), appeal filed, No. 25273 (Aug. 26, 2025); see id. at 1271-1272. Another court

similarly credited expert maps showing that “it would

be possible to draw” a majority-minority district, despite the State’s race-neutral reasons for declining to do

so. White v. State Bd. of Election Comm’rs, No. 22-cv62, 2025 WL 2406437, at *9 (N.D. Miss. Aug. 19, 2025)

(emphasis added); see id. at *13-*16, *50-*51. And yet

another court rejected the State’s argument that its district “better reflect[ed] traditional redistricting criteria,”

reasoning that the first precondition purportedly “focuses

on electoral potential,” not whether “the challenged plan

performs better on certain traditional redistricting criteria.” Turtle Mountain Band of Chippewa Indians v.

Howe, No. 22-cv-22, 2023 WL 8004576, at *8-*9 (D.N.D.

Nov. 17, 2023), vacated on other grounds, 137 F.4th 710

(8th Cir. 2025).

As Justice O’Connor presciently warned, Gingles too

often “[r]equire[s] that every minority group that could

possibly constitute a majority in a single-member district be assigned to such a district”—a result that “approach[es] a requirement of proportional representation” and violates Section 2’s disclaimer to the contrary.

Gingles, 478 U.S. at 97 (concurring in the judgment).

19

As for the Senate factors, they lack any “overarching

standard or central question” and readily devolve into

“an impressionistic moral audit of [the State’s] racial

past and present.” Milligan, 599 U.S. at 71 (Thomas,

J., dissenting). The Milligan district court, for example, weighed everything from civil-rights marches in the

1960s, to racial disparities in car ownership and smartphone access, to hookworm infestations in Alabama’s

Black Belt. Singleton v. Merrill, 582 F. Supp. 3d 924,

1020, 1022 (N.D. Ala. 2022), aff ’d sub nom. Allen v. Milligan, 599 U.S. 1 (2023). In Washington, a court ordered

the State to redraw a Latino-majority district, which

had recently elected a Latino Republican, based on,

among other things, the location of sidewalks, elected

leaders’ failure to attend May Day celebrations, and a

“sense of hopelessness” among Latino voters. Soto

Palmer v. Hobbs, 686 F. Supp. 3d 1213, 1228, 1231, 1234

(W.D. Wash. 2023), cert. before judgment denied, 144

S. Ct. 873 (2024). And in Georgia, a court considered racial disparities in “putting up political signs” and treated

preclearance objections from the 1990s as historical evidence of discrimination, even though this Court had held

that those objections rested on a mistaken and unconstitutional view of the VRA. Alpha Phi Alpha Fraternity

Inc. v. Raffensperger, 700 F. Supp. 3d 1136, 1270, 1279

(N.D. Ga. 2023), appeal pending, No. 23-13914 (11th

Cir.); see Miller, 515 U.S. at 906-907, 924-927.

Such sprawling historical and social considerations—

which can be invoked in perpetuity—do little to smoke

out actual discriminatory actions. Instead, they enable

plaintiffs and courts to force States to draw majorityminority districts that they never would have drawn for

race-neutral reasons.

20

To be sure, in Milligan, this Court suggested that

Gingles itself should bar courts from requiring racepredominant districts under Section 2, reasoning that

“a reasonably configured district” under the first precondition must “comport[] with traditional districting

criteria.” Milligan, 599 U.S. at 18, 29-30; see Robinson

Supp. Br. 16-19. But as discussed below, a lax view of

that precondition and other aspects of Gingles have

failed to prevent courts from mandating racial gerrymanders under Section 2.

B. This Court Should Modify Gingles To Align With The

Statutory Text And Avoid Constitutional Problems

1. This Court’s decision in Brnovich provides a model

for how this Court should modify Gingles. In Brnovich,

this Court for the first time considered how Section 2’s

“results” test applies to vote-denial claims. 594 U.S. at

653-654. In stark contrast to Gingles, Brnovich started

with the text. Id. at 667. The text’s “touchstone,” the

Court explained, is “that voting be ‘equally open.’ ” Id.

at 668 (quoting 52 U.S.C. 10301(b)). A “disparate impact” is not enough. Id. at 677. While some legislators

wanted a “freewheeling disparate-impact regime,” Congress compromised by adopting Section 2(b)’s equalopenness standard. Id. at 674; see id. at 657-659.

The Court further observed that, because the text

“requires consideration of ‘the totality of circumstances,’ ” “any circumstance that has a logical bearing

on whether voting is ‘equally open’ * * * may be considered.” Brnovich, 594 U.S. at 668-669 (quoting 52

U.S.C. 10301(b)). The Court nonetheless emphasized

various circumstances that were “important” in the

vote-denial context, id. at 669-672, while minimizing

others as having “less direct” relevance, id. at 672-673.

21

Of course, vote-denial and vote-dilution claims present different considerations, as Brnovich recognized.

594 U.S. at 672. While the remedy for vote-dilution

claims in the districting context requires redrawing

lines in ways that account for individual voters’ race, see

Milligan, 599 U.S. at 41-42, the remedy for vote-denial

claims is to replace the rule that causes the proscribed

“result” with another facially neutral rule that does not,

see Brnovich, 594 U.S. at 677-678. But that is a difference in form, not substance. Changing “facially neutral” policies can raise equal-protection concerns when

done for the “purpose” of favoring one “racial group”

over another. Coalition for TJ v. Fairfax Cnty. Sch.

Bd., No. 23-170, 2024 WL 674659, at *5 (Feb. 20, 2024)

(Alito, J., dissenting from denial of certiorari); see

SFFA, 600 U.S. at 230 (“[W]hat cannot be done directly

cannot be done indirectly.”) (brackets in original). So

just as Brnovich used text and context to cabin but retain Section 2’s “results” test for vote-denial claims, this

Court should modify the framework for vote-dilution

claims involving single-member districting. 2

2. Specifically, the Court should tighten the Gingles

preconditions and focus the totality-of-circumstances inquiry. As “equal openness [is] the touchstone,” Brnovich, 594 U.S. at 668, the end goal should be to ensure

that majority-minority districts are not required where

creating them would subordinate a State’s race-neutral

districting principles, and to ensure that majorityminority districts are required only when the State’s

failure to create them reflects an objective likelihood of

Because this case involves single-member districting, we do not

address Section 2’s application to other types of vote-dilution claims.

Cf. Brnovich, 594 U.S. at 665-666 (declining to adopt a one-size-fitsall test for vote-denial claims).

2

22

intentional discrimination. That requires plaintiffs,

among other things, to refute the likelihood that politics

rather than race drove the State’s decision.

First Precondition. This Court should strengthen

the first Gingles precondition—that the minority “be

sufficiently large and compact to constitute a majority

in a reasonably configured district,” Wisconsin Legislature, 595 U.S. at 402—in three ways.

First, this Court should make clear that race may not

predominate in drawing the plaintiffs’ illustrative district. The first precondition aims “to establish that the

minority has the potential to elect a representative of

its own choice in some single-member district.” Milligan, 599 U.S. at 18. No legitimate potential exists if

plaintiffs can only draw a majority-minority district by

using race to an extent that would be unconstitutional if

done by the State. “[N]on-predominance is a longstanding and vital feature of districting law” and must be respected like any other traditional districting criterion.

Id. at 98 (Alito, J., dissenting).

The Robinson appellants (Supp. Br. 16) and eight

Justices in Milligan all appeared to accept that race

may not predominate in illustrative districts. 599 U.S.

at 30-33 (plurality opinion); id. at 64-65 (Thomas, J., dissenting) (noting consensus); id. at 98 (Alito, J., dissenting). The plurality rejected only the stronger argument

that race can play no role in such districts. Id. at 30-33.

This Court, however, should restate the point unambiguously, as it continues to confuse lower courts. 3

Compare Christian Ministerial Alliance v. Sanders, No. 19-cv402, 2023 WL 4745352, at *3, *16 (E.D. Ark. July 25, 2023) (treating

racial predominance in illustrative districts as irrelevant, notwithstanding Milligan); Nairne v. Ardoin, 715 F. Supp. 3d 808, 855-856

(M.D. La. 2024) (same), aff ’d, No. 24-30115, 2025 WL 2355524 (5th

3

23

Second, this Court should hold that plaintiffs’ illustrative district must be superior to the State’s under the

State’s own race-neutral districting principles. Forcing

the State to replace its preferred district with one that

is equivalent or worse under neutral principles would

improperly give “minority voters an electoral advantage,” rather than ensuring the process is “equally

open” to them. Bartlett v. Strickland, 556 U.S. 1, 20

(2009) (plurality opinion). Conversely, if the State

“[s]ubstantive[ly] depart[s]” from “the factors usually

considered important” by refusing to draw the plaintiffs’ illustrative district even though it better satisfies

the State’s own neutral principles, Arlington Heights v.

Metropolitan Hous. Dev. Corp., 429 U.S. 252, 267 (1977),

that raises a stronger inference that the process may

not be equally open due to “the risk of purposeful discrimination,” City of Rome, 446 U.S. at 177. The Robinson appellants recognize as much: Their account of

the first precondition lauds the value of an illustrative

district “that better respects race-neutral redistricting

criteria.” Supp. Br. 18 (emphasis added).

To prevent race-predominant districting, it is not

sufficient that “a reasonably configured district” under

the first Gingles precondition must “comport[] with traditional districting criteria.” Milligan, 599 U.S. at 18,

29-30. As this Court has recognized, even where there

is no “inconsistency” with “traditional restricting criteria,” race still predominates if it “provide[s] the essenCir. Aug. 14, 2025), with Mississippi State Conference of the

NAACP v. State Bd. of Election Comm’rs, 739 F. Supp. 3d 383, 415

(S.D. Miss. 2024) (treating Milligan plurality as having resolved

that racial predominance is impermissible under the first Gingles

precondition), appeal filed, No. 25-234 (Aug. 26, 2025); Alpha Phi

Alpha, 700 F. Supp. 3d at 1261-1262 (same).

24

tial basis for the lines drawn.” Bethune-Hill, 580 U.S.

at 189-190. When plaintiffs’ illustrative district is no

better than the State’s, forcing the State to change

maps “subordinate[s]” the State’s choice. Alexander,

602 U.S. at 7. By contrast, when a court requires the

State to use a district that is superior on the State’s own

race-neutral metrics, race is not the “criterion” that

“could not be compromised.” Ibid.

Milligan, however, held that plaintiffs need only offer a roughly equivalent district. The Court stated that

the first precondition does not require “a ‘beauty contest[]’ between plaintiffs’ maps and the State’s.” 599

U.S. at 21 (brackets in original). With respect, that

statement was misguided. Milligan drew the “beauty

contests” language from the plurality opinion in Vera,

517 U.S. at 977. But Vera said only that, to survive

strict scrutiny on a racial-gerrymandering claim, the

State’s map need not “defeat rival compact districts designed by plaintiffs’ experts in endless ‘beauty contests.’ ” Ibid. Without analysis, Milligan flipped the

standard, allowing plaintiffs’ maps to avoid beauty contests and thereby forcing States to prioritize racial considerations over their own weighing of race-neutral districting principles. That is particularly problematic because, as Milligan elsewhere acknowledged, districting

requires States to “make difficult, contestable choices”

when “measuring, prioritizing, and reconciling” oftconflicting principles. 599 U.S. at 35. Unless plaintiffs’

proposed district is superior even under the State’s own

weighing of principles, federal courts should not order

“a serious intrusion on the most vital of local functions.”

Alexander, 602 U.S. at 7.

The Milligan remand illustrates the dangers of not

requiring plaintiffs to produce a superior map. This

25

Court had held that the plaintiffs’ map equaled the

State’s because there was “a split community of interest

in both”—the State split the Black Belt while the plaintiffs split the Gulf Coast. 599 U.S. at 21. Respecting

that yardstick, Alabama then drew a better map, keeping both the Gulf Coast and the Black Belt together to

the maximum extent possible, but without creating a

second majority-minority district. See Singleton, 782

F. Supp. 3d at 1132-1133. The district court nevertheless deemed that insufficient, asserting that plaintiffs

needed to offer only a “reasonable” map, not “the best

map” or even one that outperformed the State’s on “any

particular[] metric.” Id. at 1264 (emphasis added). In

other words, the court compelled the State to adopt an

objectively worse map in order to increase minority representation, just because both maps were, in the court’s

view, roughly similar. See J.S. at 6-7, Allen v. Singleton, No. 25-273 (filed Aug. 26, 2025).

Third, this Court should hold that the plaintiffs’ illustrative district cannot disregard the State’s political

objectives. In the racial-gerrymandering context, the

Court has recognized that traditional districting criteria include “incumbency protection” and “political affiliation.” Alabama Legislative Black Caucus v. Alabama, 575 U.S. 254, 272 (2015). So too in the Section 2

context, those are criteria with which “a reasonably configured district” must “comport[].” Milligan, 599 U.S.

at 18. Just as “an adverse inference” is warranted

where racial-gerrymandering plaintiffs cannot produce

“an alternative map” that achieves the State’s “political

objectives,” Alexander, 602 U.S. at 34, Section 2 plaintiffs cannot claim a lack of equal openness where politics

rather than race is the likely reason for the State’s refusal to create a majority-minority district.

26

Disregarding the role of politics when applying Section 2 would also undermine this Court’s holding that

partisan-gerrymandering claims are not justiciable.

Rucho v. Common Cause, 588 U.S. 684, 718 (2019). If

Section 2 plaintiffs need not account for partisan effects

when drawing illustrative districts, they “could repackage a partisan-gerrymandering claim” as a Section 2

claim “by exploiting the tight link between race and political preference.” Alexander, 602 U.S. at 21. In essence, plaintiffs could require States to create more districts favoring political minorities when those voters are

also racial minorities. That would “transform federal

courts into ‘weapons of political warfare’ that will deliver victories that eluded [the minority party] ‘in the

political arena.’ ” Id. at 11. Under Section 2, however,

racial minorities “are not immune from the obligation to

pull, haul, and trade to find common political ground.”

Johnson v. De Grandy, 512 U.S. 997, 1020 (1994).

Admittedly, this Court has found the first Gingles

precondition satisfied without considering partisan effects, even where the plaintiffs’ illustrative map likely

would cost the majority party a seat. But this Court has

never meaningfully justified that approach. Before

Rucho interred partisan-gerrymandering claims, States

were sometimes reticent to admit partisan aims. And in

Milligan—this Court’s only post-Rucho vote-dilution

case—Alabama did not argue that the plaintiffs’ failure

to account for partisanship defeated their illustrative

map. That litigation choice does not justify continuing

to discount incumbency protection and political affiliation as race-neutral criteria that plaintiffs must respect.

Only by “rigorously apply[ing]” the first precondition’s

“ ‘reasonably configured’ requirement[]” can courts “ensure that Gingles does not improperly morph into a pro-

27

portionality mandate.” Milligan, 599 U.S. at 44 n.2 (Kavanaugh, J., concurring in part).

Second and third preconditions. This Court should

similarly make clear that plaintiffs must control for

party affiliation when proving the second and third Gingles preconditions—politically cohesive voting by the

minority and racial-bloc voting by the majority. See

Milligan, 599 U.S. at 18. Failure to do so risks confusing partisan effects for racial ones.

As noted, in racial-gerrymandering cases, this Court

has emphasized the importance of “disentang[ling] race

and politics” given that the two are often “highly correlated.” Alexander, 602 U.S. at 6. That logic applies

equally to Section 2. Proving that the minority and majority vote differently is irrelevant to equal openness—

the statute’s “touchstone,” Brnovich, 594 U.S. at 668—

if those differences reflect partisanship, not race. See

Robinson Supp. Br. 46 (endorsing analysis “controlling

for political party affiliation”). If, for example, black

voters in a jurisdiction heavily favor Democrats while

white voters generally favor Republicans, a Republican

legislature’s decision not to create a black-Democraticmajority district likely reflects partisan rather than racial motivation, and thus it does not deprive black voters

of electoral opportunity based on race. See Whitcomb

v. Chavis, 403 U.S. 124, 152-153 (1971).

Gingles itself illustrates the significance of controlling for party when assessing racially polarized voting.

There, black and white Democrats had starkly different

voting patterns. Black Democrats supported black candidates in most primaries at rates between 71% and

92%, while white Democrats supported black candidates at rates between 8% and 50%. Gingles, 478 U.S.

at 59. In general elections, white voters in heavily Dem-

28

ocratic areas often ranked black candidates last among

Democrats, with most white voters categorically refusing to vote for black Democrats. Ibid. Such intra-party

disparities make it “at least plausibl[e]” that racially polarized voting thwarts minorities “on account of race”—

the core “purpose” of the third precondition. Milligan,

599 U.S. at 18-19. Yet in a portion of Gingles joined only

by a plurality, Justice Brennan suggested that controlling for party was improper because “the reasons black

and white voters vote differently” purportedly “have no

relevance to the central inquiry of § 2.” 478 U.S. at 63.

Since Gingles, the second and third preconditions

have become largely moribund. Plaintiffs offer checkthe-box evidence of racial differences in voting, and

courts quickly move on. E.g., Milligan, 599 U.S. at 22;

LULAC, 548 U.S. at 427. Besides noting that substantial crossover voting can defeat a showing of bloc voting,

e.g., Cooper, 581 U.S. at 302-303, and that these preconditions must be analyzed at the district level, Abbott v.

Perez, 585 U.S. 579, 616 (2018), the Court has never rigorously elaborated the second and third preconditions.

Requiring plaintiffs to control for partisanship would

reinvigorate those preconditions and realign Gingles

with Section 2’s text.

Totality of circumstances. Finally, this Court should

focus the totality-of-circumstances inquiry on Section

2’s touchstone of equal openness, just as it did for votedenial claims in Brnovich, 594 U.S. at 668-673. For votedilution claims involving single-member districts, that

means probing whether the facts reveal an objective

likelihood that the State’s failure to create a majorityminority district reflects intentional discrimination.

While Section 2’s “results” test is not so “demanding” as to require an ultimate finding of discriminatory

29

intent, Milligan, 599 U.S. at 37, it cannot be construed

so loosely as to invalidate a State’s map that does not

reflect even a meaningful “risk of purposeful discrimination,” City of Rome, 446 U.S. at 177. As Brnovich explained, “disparate impact” alone cannot justify denigrating a State’s voting practices as not “equally open.”

594 U.S. at 674. To the contrary, in compromising on

the language of the “results” test, Congress pulled the

“equally open” standard almost verbatim from White v.

Regester, 412 U.S. 755 (1973)—a case that analyzed “invidious discrimination under the Equal Protection

Clause.” Id. at 764; see Brnovich, 594 U.S. at 659.

In each case, some factors, like recent, intentional official discrimination, may be “highly relevant.” Brnovich, 594 U.S. at 669. Others, like decades-old discrimination or disparate health outcomes, have “much less

direct” relevance. Id. at 673. Again, the Robinson appellants claim to agree (Supp. Br. 20, 22), urging a totalityof-circumstances inquiry focused on “current racial discrimination,” including hidden “discriminatory intent.”

But see pp. 33-34, infra (discussing the Robinson court’s

unfocused inquiry). Too often, though, this inquiry devolves into a grab-bag of historical and social considerations without any organizing principle. See p. 19, supra. This Court should focus lower courts on identifying an objective likelihood that the State intentionally

discriminated in drawing the challenged district.

C. Stare Decisis Does Not Prevent Modifying Gingles

“[T]he Gingles framework is not the same thing as a

statutory provision,” Milligan, 599 U.S. at 103 (Alito, J.,

dissenting), and this Court often alters the contours of

judge-made doctrines without addressing stare decisis.

For example, in Groff v. DeJoy, 600 U.S. 447 (2023), the

Court “clarif [ied]” that Trans World Airlines v. Hardi-

30

son, 432 U.S. 63 (1977), could not be read literally to

permit any non-“de minimis” cost to defeat a Title VII

religious-accommodation claim. Groff, 600 U.S. at 454;

see Kisor v. Wilkie, 588 U.S. 558, 574 (2019) (reaffirming Auer deference while “reinforcing” its “limits”);

Halliburton Co. v. Erica P. John Fund, Inc., 573 U.S.

258, 284 (2014) (adhering to the Basic presumption of

reliance in securities cases, while creating an opportunity “to defeat the presumption”). That approach is

especially warranted here, where certain interpretations of Gingles have “relied on assumptions that have

gone unstated and unexamined.” Arizona Christian

Sch. Tuition Org. v. Winn, 563 U.S. 125, 145 (2011).

Even if they applied, the stare decisis factors would

not compel adherence to the malleable Gingles framework. See Dobbs v. Jackson Women’s Health Org., 597

U.S. 215, 267-268 (2022). Like other statutory decisions

that this Court has reconsidered, Gingles rests on an

“outmoded” interpretive methodology that “has been

steadily eroded over the years.” Rodriguez de Quijas

v. Shearson/American Express, Inc., 490 U.S. 477, 480481, 484 (1989). It reflects a “bygone era of statutory

construction” when courts prioritized legislative history

over statutory text. Food Mktg. Inst. v. Argus Leader

Media, 588 U.S. 427, 437 (2019); see pp. 15-17, supra. As

Brnovich illustrates, a modern, textualist approach to

Section 2 would look very different. 594 U.S. at 667-672.

The prevailing understanding of Gingles has also

“spawned intractable difficulties.” Milligan, 599 U.S.

at 90 (Thomas, J., dissenting). As explained, pp. 17-19,

22-24 & n.3, supra, the test is sufficiently malleable to

allow plaintiffs to demand race-predominant districts to

remedy maps that reflect no objective risk of intentional

discrimination—a result that is unconstitutional. It

31

would turn both stare decisis and constitutional avoidance on their heads to retain a judge-made construction

of Section 2 that would require its invalidation. Cf.

Girouard v. United States, 328 U.S. 61, 69-70 (1946)

(overruling statutory precedents “abhorrent to our tradition” of accommodating “religious scruples”).

Conversely, there are no valid reliance interests in

the Gingles framework’s contours. No voter arranges

his life on the premise that the first Gingles precondition does not require plaintiffs to offer a superior map

compared to the State’s own race-neutral districting

criteria. And while States may rely on Section 2 precedent when districting, the modified framework proposed here would give States more breathing room by

cabining Section 2 claims to those that actually smoke

out likely racial discrimination. States have no reliance

interests in perpetuating more restrictive constraints

on themselves, as illustrated by Louisiana’s confession

of error.

III. THE DECISION BELOW SHOULD BE AFFIRMED

Under the proper view of Section 2, the district court

correctly concluded that Louisiana’s sixth congressional district is an unconstitutional racial gerrymander. 24-109 J.S. App. 39a-66a. As explained, pp. 7-8, supra, race predominated in the drawing of that majorityminority district because Robinson forced Louisiana to

treat race as nonnegotiable. The State must therefore

satisfy “the daunting,” “extraordinarily onerous” requirements of strict scrutiny: that the use of race was

“narrowly tailored” to achieve “a compelling governmental interest.” Alexander, 602 U.S. at 11.

Louisiana cannot meet that burden, as the State now

correctly concedes. This Court’s precedents make clear

that attempted compliance with a federal authority’s er-

32

roneous and unconstitutional interpretation of the VRA

cannot supply a compelling interest justifying racepredominant districting. See Shaw II, 517 U.S. at 911913; Miller, 515 U.S. at 922-925; contra Robinson Supp.

Br. 14 (incorrectly suggesting that any “valid court order affirmed on appeal” automatically establishes a

compelling interest). The Robinson court’s interpretation of Section 2 was neither correct nor constitutional.

Most significantly, under the first Gingles precondition, the Robinson appellants not only failed to offer a

superior map, but proposed maps that were far inferior

to the State’s. While they now highlight (Supp. Br. 43,

50) that some maps beat the State’s on some metrics,

they flouted the traditional districting criteria of “incumbency protection” and “political affiliation,” Alabama, 575 U.S. at 272, by forcing a Republican-led State

to unseat a Republican incumbent.

The Robinson court reasoned that the plaintiffs’

maps protected incumbents because they left all six representatives “in the district where they currently live.”

605 F. Supp. 3d at 830. But the plaintiffs’ maps transformed one Republican incumbent’s district into a

majority-minority district where she was likely to lose.

Id. at 779-780, 785; La. Br. 14. That is the opposite of

incumbency protection. Robinson forced Louisiana to

treat race as a nonnegotiable criterion and pick which

Republican incumbent to sacrifice on the altar of racial

predominance. That unconstitutional interpretation of

Section 2 cannot justify race-predominant districting.

The Robinson court also erred on the second and

third Gingles preconditions. It refused to control for

partisanship, treating as dispositive evidence that white

and black Louisianians on average support different

candidates. Robinson, 605 F. Supp. 3d at 840-842.

33

Turning to the totality of circumstances, Robinson

minimized that inquiry on the ground that it would be

“very unusual” for plaintiffs to meet the Gingles preconditions but fail to prove their claim. 605 F. Supp. 3d at

844; but see Robinson Supp. Br. 21 (asserting that the

totality-of-circumstances inquiry provides “additional

guardrails on §2 claims”). While the Robinson appellants now recognize the need for “significant evidence

of current racial discrimination in voting” (Supp. Br. 20)

and emphasize “current conditions” (id. at 3, 9, 13, 1516, 21, 29-30, 36, 39-41, 43), that late-breaking account

looks nothing like the opinion they won in Robinson.

In marching through the nine Senate factors, the

court offered no organizing principle and made no effort

to smoke out intentional discrimination. Instead, the

court surveyed Louisiana’s “repugnant history of discrimination,” citing an 1898 grandfather clause and low

black-voter-registration rates between 1910 and 1948,

and noted the party realignment “since the 1860s.”

Robinson, 605 F. Supp. 3d at 845, 847; see id. at 846847. The court declared such evidence “not ancient history” since “[a] Black Louisianan born in 1965” would

have been only 57 in 2022. Id. at 847; but see Robinson

Supp. Br. 30 (disclaiming the relevance of “the distant

past” like the 1960s). The court treated more recent

limitations on early and mail-in voting as reflecting

“Black voter suppression.” Robinson, 605 F. Supp. 3d

at 846-847; but see Brnovich, 594 U.S. at 670 (noting

that, in 1982, in-person election-day voting was the

norm nationwide). And the court recounted at length

plaintiffs’ “sobering” expert testimony on disparities in,

among other things, medical-school graduation rates

and broadband internet access, although it ultimately

34

purported not to weigh that evidence. Robinson, 605 F.

Supp. 3d at 849; see id. at 809-810.

The Robinson appellants spotlight (Supp. Br. 1-2, 23,

43) the court’s finding on the final Senate factor that the

justification for Louisiana’s map was “tenuous” because

some two-majority-minority-district maps beat the

State’s on population equality and precinct splits. Robinson, 605 F. Supp. 3d at 850-851. But that analysis

simply repeats the court’s error of subordinating the

State’s race-neutral interest in protecting Republican

incumbents to plaintiffs’ race-based interest in electing

a second black representative. See p. 32, supra.

In sum, the Robinson appellants did not come close

to carrying their burden under a proper construction of

Section 2, and thus Louisiana did not carry its burden

under strict scrutiny to establish a compelling interest

in VRA compliance. It is no defense for the State—

which, again, no longer defends its district—that some

of the problems identified above had not been clearly

established by this Court’s precedents when the challenged district was drawn. This Court’s “construction

of a statute is an authoritative statement of what the

statute meant before as well as after the decision of the

case giving rise to that construction.” Rivers v. Roadway Express, Inc., 511 U.S. 298, 312-313 (1994). When

doctrine adjusts, this Court applies current law, not the

“ancien regime” one might have “expect[ed]” under

“contemporary legal context.” Alexander v. Sandoval,

532 U.S. 275, 287-288 (2001). Where, as here, the ancien

regime invited unconstitutional racial gerrymanders,

that should be especially true.

Regardless, Robinson’s error should have been clear

at the time. It has long been established that “the § 2

compactness inquiry should take into account ‘tradi-

35

tional districting principles.’ ” Abrams v. Johnson, 521

U.S. 74, 92 (1997). And two such principles, this Court

announced a decade ago, are “incumbency protection”

and “political affiliation.” Alabama, 575 U.S. at 272. Because the Robinson appellants’ illustrative districts did

not even arguably “comport[]” with those race-neutral

objectives, Milligan, 599 U.S. at 18, the Robinson court’s

order had no legitimate basis under Section 2 and cannot

justify forcing Louisiana to racially gerrymander.

CONCLUSION

The district court’s judgment should be affirmed.

Respectfully submitted.

D. JOHN SAUER

Solicitor General

HARMEET K. DHILLON

Assistant Attorney General

HASHIM M. MOOPPAN

Deputy Solicitor General

JESUS A. OSETE

Principal Deputy Assistant

Attorney General

AARON Z. ROPER

Assistant to the

Solicitor General

ANDREW G. BRANIFF

DAVID N. GOLDMAN

Attorneys

SEPTEMBER 2025