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

Nos. 24-109, 24-110

In the

Supreme Court of the United States

LOUISIANA,

v.

PHILLIP CALLAIS, et al.,

PRESS ROBINSON, et al.,

v.

PHILLIP CALLAIS, et al.,

Appellant,

Appellees.

Appellants,

Appellees.

On Appeal from the United States District Court

for the Western District of Louisiana

BRIEF OF STATE OF MISSOURI

AS AMICUS CURIAE

IN SUPPORT OF APPELLEES

CATHERINE L. HANAWAY

Attorney General

of Missouri

207 West High St.

Jefferson City, MO 65101

LOUIS J. CAPOZZI, III

Solicitor General

Counsel of Record

(573) 645-9662

Louis.Capozzi@ago.mo.gov

Counsel for Amicus State of Missouri

September 24, 2025

i

TABLE OF CONTENTS

Table of Authorities..................................................... i

Interest of Amicus Curiae & Summary of Argument

......................................................................................1

Argument .....................................................................2

I. The Equal Protection Clause and the

Fifteenth Amendment generally prohibit

treating individuals differently because of

their race. ..........................................................2

II. Section 2 of the Voting Rights Act was

enacted to respond to governmental

discrimination. ..................................................4

III. In the limited situations where this Court

has permitted the government to consider

race, it has insisted that such consideration

be temporary. ....................................................5

A. College admissions ….. ..............................6

B. Race-based student assignment in

public schools…………. ..............................7

C. Government contracting. ...........................9

IV. Race-based districting under Section 2 of the

Voting Rights Act is no longer justified. ........ 10

A. Race-based districting is no longer

needed………………... ..............................11

B. There is no logical endpoint if this Court

allows

race-based

districting

to

continue……………….. .............................14

ii

C. Continuing to mandate race-based

districting harms voters, States, and the

courts……………………… ........................16

Conclusion ................................................................. 22

i

TABLE OF AUTHORITIES

Cases

Page(s)

Abbott v. Perez,

585 U.S. 579 (2018) .................................. 1, 3, 18, 19

Adarand Constructors, Inc. v. Pena,

515 U.S. 200 (1995) ........................................ 8, 9, 16

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

602 U.S. 1 (2024) ............................ 15, 19, 20, 21, 22

Allen v. Milligan,

599 U.S. 1 (2023) ............ 2, 4, 5, 9, 11, 14, 15, 16, 20

Bd. of Educ. of Okla. City Pub. Schs., Indep. Sch.

Dist. No. 89, Okla. Cnty., Okla. v. Dowell,

498 U.S. 237 (1991) ........................................ 7, 8, 22

Brnovich v. Democratic Nat’l Comm.,

594 U.S. 647 (2021) ................................................ 12

Brown v. Bd. of Educ.,

(Brown II), 349 U.S. 294 (1955) ...............................8

Brown v. Board of Educ.,

(Brown I), 347 U.S. 483 (1954) ................................7

Bush v. Vera,

517 U.S. 952 (1996) ............................................ 4, 18

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

488 U.S. 469 (1989) .............................................. 1, 8

City of Rome v. United States,

446 U.S. 156 (1980) ..................................................5

ii

Concrete Works of Colorado, Inc. v. City & Cnty. of

Denver, Colo.,

124 S. Ct. 556 (2003) ................................................1

Cooper v. Harris,

581 U.S. 285 (2017) ............................................ 3, 20

Crawford v. Marion Cnty. Election Bd.,

553 U.S. 181 (2008) ................................................ 11

Fullilove v. Klutznick,

448 U.S. 448 (1980) ..................................................9

Grutter v. Bollinger,

539 U.S. 306 (2003) .............................................. 6, 7

Hirabayashi v. United States,

320 U.S. 81 (1943) ....................................................3

Holder v. Hall,

512 U.S. 874 (1994) ................................................ 21

League of United Latin American Citizens v. Perry,

548 U.S. 399 (2006) ............................................ 2, 10

Merrill v. Milligan,

142 S. Ct. 879 (2022) .............................................. 19

Miller v. Johnson,

515 U.S. 900 (1995) ...................................... 4, 18, 20

Nw. Austin Mun. Util. Dist. No. 1 v. Holder,

557 U.S. 193 (2009) ................................................ 10

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

No.,

1, 551 U.S. 701 (2007) .................................... 1, 8, 22

iii

Pasadena City Bd. of Educ. v. Spangler,

427 U.S. 424 (1976) ..................................................8

Plessy v. Ferguson,

163 U.S. 537 (1896) .............................................. 1, 3

Regents of Univ. of California v. Bakke,

438 U.S. 265 (1978) ..................................................6

Rucho v. Common Cause,

588 U.S. 684 (2019) .......................................... 19, 21

Shaw v. Hunt,

(“Shaw II”), 517 U.S. 899 (1996) ..............................4

Shaw v. Reno,

(“Shaw I”), 509 U.S. 630 (1993) ....... 2, 3, 4, 5, 16, 19

Shelby Cnty., Ala. v. Holder,

570 U.S. 529 (2013) .................. 4, 5, 6, 10, 12, 13, 14

Singelton v. Merrill,

582 F. Supp. 3d 924 (N.D. Ala. 2022) .................... 15

Students for Fair Admissions, Inc. v. President &

Fellows of Harvard Coll.,

600 U.S. 181 (2023) ............ 1, 2, 3, 7, 8, 9, 10, 14, 22

Swann v. Charlotte-Mecklenburg Bd. of Educ.,

402 U.S. 1 (1971) ......................................................8

Thornburg v. Gingles,

478 U.S. 30 (1986) .............................................. 5, 16

Vieth v. Jubelirer,

541 U.S. 267 (2004) ................................................ 21

iv

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

595 U.S. 398 (2022) ............................................ 3, 16

Statutes and Constitutional Provisions

52 U.S.C. § 10101(a)(2)(B)......................................... 11

Mo. Const. art. III, § 3 ............................................... 18

U.S. Const. amend. XIV, § 1 .......................................2

U.S. Const. amends. XIV, XV ................................. 1, 4

Other Authorities

Brian Schwartz, Peltz, Druckenmiller, Navarro give

big to Tim Scott PACs, CNBC (July 31, 2023) ...... 13

Bruce Schreiner, Trump-backed Daniel Cameron to

face Democratic Kentucky Gov. Andy Beshear in

November, The Associated Press (May 17, 2023) . 13

Chris Jones wins Democratic primary for Arkansas

governor, facing Trump’s press secretary, PBS

News (May 24, 2022).............................................. 13

Discrimination in Voting: Judicial Findings Under

Section 2 of the Voting Rights Act Since,

1982, 39 U. Mich. J.L. Reform 643 (2006)............. 15

Geoffrey Skelly, How Majority-Minority Districts

Fueled Diversity in Congress, FiveThirtyEight

(Aug. 14, 2023) ....................................................... 14

Gov. Bobby Jindal, Nat’l Governors Assoc.,

www.nga.org/governor/bobby-jindal (last accessed

Sept. 19, 2025) ........................................................ 13

v

Gov. Nikki Haley, Nat’l Governors Assoc., www.nga.

org/governor/nikki-r-haley (last accessed Sept. 19,

2025) ....................................................................... 13

Hannah Hartig et al., Voting Patterns in the 2024

Election, Pew Research Center (June 26, 2025) ... 21

Kamala D. Harris, The Office of Kamala D. Harris,

kamalaharris.com/about (last accessed Sept. 19,

2025) ....................................................................... 13

Karl de Vries, Carson captures southern Republican

straw poll, CNN (May 23, 2015) ............................ 13

KFF, Voting and Voter Registration as a Share of the

Voter Population, by Race/Ethnicity (Nov. 2024) . 12

Marilyn W. Thompson, Clyburn’s Role in South

Carolina Redistricting May Be Examined as

Supreme Court Hears Racial Gerrymandering

Case, ProPublica (May 17, 2023) ........................... 17

Redistricting Litigation Roundup, Brennan Center

for Justice (last visited Sept. 19, 2025) ................. 19

Sen. Raphael Warnock www.warnock.senate.gov

(last accessed Sept. 19, 2025) ................................ 13

Sen. Tim Scott, www.scott.senate.gov (last accessed

Sept. 19, 2025) ........................................................ 13

U.S. Elections Project, Voter Turnout Demographics

(last visited Sept. 19, 2025) ................................... 12

Z. Levitt, See the Voting Groups That Swung Right

in the 2024 Vote, New York Times (Dec. 17, 2024)

................................................................................ 17

1

INTEREST OF AMICUS CURIAE & SUMMARY

OF ARGUMENT

Under our Constitution, the government cannot

treat individuals differently because of the color of

their skin. U.S. Const. amends. XIV, XV. Consistent with that principle, the Missouri General Assembly wishes to draw federal congressional districts

without looking at racial data. As the U.S. Constitution commands, Missouri wants future redistricting

efforts to be “color-blind.” Plessy v. Ferguson, 163

U.S. 537, 559 (1896) (Harlan, J., dissenting).

Unfortunately, Section 2 of the Voting Rights Act

(“VRA”) “demands consideration of race” when Missouri draws legislative districts. Abbott v. Perez, 585

U.S. 579, 587 (2018). True enough, Congress’s command to consider race in redistricting was once justifiable as a remedy against white supremacist laws in

some American States. But this Court has long recognized that race-based remedies are appropriate only

as a temporary response to past governmental discrimination. See Students for Fair Admissions, Inc.

v. President & Fellows of Harvard Coll., 600 U.S. 181,

212–13, 225, 227–28 (2023); Concrete Works of Colorado, Inc. v. City & Cnty. of Denver, 124 S. Ct. 556,

560 (2003) (Scalia, J., dissenting from denial of certiorari) (“[T]he deviation from the norm of equal treatment of all racial and ethnic groups [be] a temporary

matter.” (quoting City of Richmond v. J.A. Croson Co.,

488 U.S. 469, 510 (1989) (plurality)). Eventually, the

only “way to stop discrimination on the basis of race is

to stop discriminating on the basis of race.” Parents

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

U.S. 701, 748 (2007).

2

The Court should hold that race-based districting

is no longer justified and thus violates the Equal Protection Clause. Allen v. Milligan, 599 U.S. 1, 45

(2023) (Kavanaugh, J., concurring); id. at 87–88

(Thomas, J., dissenting). Over thirty years ago, this

Court recognized that “race-based districting” threatened to pose “lasting harm to our society.” Shaw v.

Reno (“Shaw I”), 509 U.S. 630, 657 (1993). Even after that cautionary note, race-based districting has

been mandated even longer than federal courts permitted race-based decision-making after this Court issued a similar warning in the context of college admissions. See Students for Fair Admissions, 600 U.S. at

212–13. And just as in Students for Fair Admissions,

there is “no end in sight” to race-based districting. Id.

Unless the Court is prepared to “prolong immeasurably” the “‘sordid business’ of ‘divvying us up by race,’”

Allen, 599 U.S. at 86 (Thomas, J., dissenting) (quoting

League of United Latin American Citizens v. Perry,

548 U.S. 399, 511 (2006) (LULAC) (Roberts, C.J., concurring in part, dissenting in part)), race-based districting under Section 2 of the VRA must end.

ARGUMENT

I.

The Constitution generally prohibits

treating individuals differently because of

their race.

When it comes to race, the Constitution sets a simple rule for the government: treat everyone the

same. The Equal Protection Clause guarantees to all

the “equal protection of the laws.” U.S. Const.

amend. XIV, § 1. And in case that were not specific

enough, the Fifteenth Amendment “promised unequivocally that the ‘[r]ight of citizens of the United

3

States to vote’ no longer would be ‘denied or abridged

… by any State on account of race.’” Shaw I, 509 U.S.

at 639 (quoting U.S. Const. amend. XV, § 1).

These provisions’ “central purpose is to prevent the

States from purposefully discriminating between individuals on the basis of race.” Id. at 642. After all,

“[c]lassifications of citizens solely on the basis of race

‘are by their very nature odious to a free people whose

institutions are founded upon the doctrine of equality.’” Id. at 643 (quoting Hirabayashi v. United

States, 320 U.S. 81, 100 (1943)); see also Plessy, 163

U.S. at 559 (Harlan, J., dissenting) (“[A]ll citizens are

equal before the law,” and the law takes “no account

of [a person’s] surroundings or of his color.”). “That

principle cannot be overridden except in the most extraordinary case.” Students for Fair Admissions, 600

U.S., at 208.

This Court has also emphasized that race-based

districting carries “particular dangers” beyond the

“lasting harm” caused by other racial classifications.

Shaw I, 509 U.S. at 657. “Racial gerrymandering,

even for remedial purposes,” “reinforce[s] the belief . . . that individuals should be judged by the color

of their skin.” Id. And “it threatens to carry us further from the goal of a political system in which race

no longer matters—a goal that the Fourteenth and

Fifteenth Amendments embody, and to which the Nation continues to aspire.” Id. Thus, this Court has

long recognized that race-based redistricting is presumptively unconstitutional. Id. at 643. Indeed, a

State that engages in this practice must satisfy strict

scrutiny. Id. Thus, unsurprisingly, States that

make districting decisions based on racial data jeopardize the constitutionality of their legislative maps.

See, e.g., Wis. Legislature v. Wis. Elections Comm’n,

4

595 U.S. 398 (2022); Abbott, 585 U.S. 579; Cooper v.

Harris, 581 U.S. 285 (2017); Shaw v. Hunt (“Shaw

II”), 517 U.S. 899 (1996); Bush v. Vera, 517 U.S. 952

(1996); Miller v. Johnson, 515 U.S. 900 (1995); Shaw

I, 509 U.S. 630.

II.

Section 2 of the Voting Rights Act was enacted to respond to governmental discrimination.

Despite the Constitution’s clear prohibition of racial discrimination, U.S. Const. amends. XIV, XV, this

Court has recognized that it was occasionally appropriate for governments to take race-based actions in

response to patterns of government racial discrimination. See Shaw I, 509 U.S. at 639–42; see also Shelby

Cnty.. v. Holder, 570 U.S. 529, 545–46 (2013). The

VRA—and its mandate for race-based districting—

was one such remedial measure.

During the Jim-Crow era, “a number of states . . .

continued to circumvent the [Constitution’s] prohibition through the use of both subtle and blunt instruments, perpetuating ugly patterns of pervasive racial

discrimination.” Shaw I, 509 U.S. at 639 (internal

quotation marks and citation omitted). In an effort

to perpetuate governmental white supremacy, certain

States employed a variety of measures designed to

suppress African-American voter-registration and

turnout. See Allen, 599 U.S. at 10; Shaw I, 509 U.S.

at 639–40. And these efforts were largely successful.

In the mid-1960s, “registration of eligible black voters

ran 50% behind that of whites.” Shaw I, 509 U.S. at

640. At that time, “only 19.4 percent of African–

Americans of voting age were registered to vote in Alabama, only 31.8 percent in Louisiana, and only 6.4

5

percent in Mississippi.”

545–46.

Shelby Cnty., 570 U.S. at

“Congress enacted the Voting Rights Act of 1965 as

a dramatic and severe response to [that] situation.”

Shaw I, 509 U.S. at 640. The VRA prohibited

schemes designed to “dilute” the “voting power” of particular minority groups. Id. Although there was initially uncertainty on the point, Congress subsequently clarified that it intended Section 2 to prohibit

the dilution of minority political power in redistricting. See Allen, 599 U.S. at 11–13; Thornburg v. Gingles, 478 U.S. 30, 34–36 (1986).

This Court has repeatedly suggested that Section

2—at the time it was enacted—was an appropriate response to a recent history of severe, pervasive governmental discrimination against black citizens. See,

e.g., Allen, 599 U.S. at 10–13; City of Rome v. United

States, 446 U.S. 156, 173–74 (1980). And this Court

recently refused to overrule those cases. See Allen,

599 U.S. at 33, 41–42. The Court has, however, left

open the question of whether race-based districting

has a temporal limit and whether it continues to be

consistent with the Equal Protection Clause. Allen,

599 U.S. at 45 (Kavanaugh, J., concurring); accord id.

at 38–42 (majority) (not addressing this argument).

III.

In the limited situations where this Court

has permitted the government to consider

race, it has insisted that such consideration be temporary.

As several Justices have recognized, Section 2’s

mandate for race-based districting cannot persist in

perpetuity. Tr. of Oral Arg., Louisiana v. Callais at

55:2–7 (remarks of Justice Kavanaugh); Allen, 599

6

U.S. at 45 (Kavanaugh, J., concurring); id. at 86–89

(Thomas, J., dissenting); see also Shelby Cnty., 570

U.S. at 546–47. That is surely correct.

This Court has long hesitated to sanction differential treatment on the basis of race. In a limited number of contexts, the Court has applied strict scrutiny

and sanctioned certain forms of “affirmative action”—

discriminatory treatment designed to benefit particular minority groups. In doing so, the Court has insisted that such measures be temporary and have a

definite endpoint. A few examples illustrate that important point.

A. College admissions.

In the college-admissions context, this Court held

that public colleges could consider race in order to advance the compelling government interest of obtaining the educational benefits that flow from a racially

diverse student body. Regents of Univ. of California

v. Bakke, 438 U.S. 265, 311–15 (1978) (opinion of Powell, J.). But the Court was careful to stress the limitations on this allowance, reaffirming that “[r]acial

and ethnic distinctions of any sort are inherently suspect.” Id. at 291 (emphasis added). In particular,

the Court prohibited quotas or a “prescribed number

of seats set aside for each” racial group. Id., at 315.

In Grutter v. Bollinger, 539 U.S. 306 (2003), this

Court recognized another important principle limiting

consideration of race in college admissions. The

Court noted that it had “been 25 years since” it “first

approved the use of race” in the admissions context,

and that it “expect[ed]” that further consideration of

race would “no longer be necessary” after an additional 25 years. Id. at 343. In other words, the

7

Court sanctioned consideration of race “for another

generation—and only for another generation.” Students for Fair Admissions, 600 U.S. at 313 (Kavanaugh, J., concurring).

Twenty years after Grutter, this Court enforced its

temporal limit on affirmative action and prohibited its

further use in college admissions. Students for Fair

Admissions, 600 U.S. at 212–13, 225, 227–28. In

part, the Court based its ruling on the fact that it

could discern no logical endpoint for the continued use

of race-based admissions. Id. Notably, this Court

emphasized that its decision upheld precedents like

Grutter, which expressly disclaimed permanent racial

classifications. Id. at 227–28 (quoting Grutter, 539

U.S. at 342). Without a concrete, logical test for determining when race would no longer be considered,

the Court refused to sanction “unceasing” race-based

admissions. Id. at 228.

B. Race-based student assignment in public schools.

This Court also applied the temporal limit in cases

involving race-based student assignments in public

schools. See Students for Fair Admissions, 600 U.S.

at 314 (Kavanaugh, J., concurring) (collecting cases);

Bd. of Educ. of Okla. City Pub. Schs., Indep. Sch. Dist.

No. 89, Okla. Cnty., Okla. v. Dowell, 498 U.S. 237,

247–48 (1991) (“From the very first, federal supervision of local school systems was intended as a temporary measure to remedy past discrimination.”).

Before and for some time after this Court’s landmark decision in Brown v. Board of Educ. (“Brown I”),

347 U.S. 483 (1954), some school districts formally or

informally segregated schools on racial grounds. To

8

remedy those violations, some districts—either voluntarily or by court order—set racial quotas for individual schools and bussed students accordingly. This

Court upheld such efforts, emphasizing that they

were appropriately designed to remedy prior racially

discriminatory policies by the school districts. See,

e.g., Swann v. Charlotte-Mecklenburg Bd. of Educ.,

402 U.S. 1, 31–32 (1971).

However, the Court also made clear that school

districts could not intentionally sort students on racial

grounds indefinitely into the future. Dowell, 498

U.S. at 247–48 (“injunctions entered in school desegregation cases” could not “operate in perpetuity”); Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424,

433–34, 36 (1976). In particular, processes existed

whereby federal courts would determine that schools

had adequately remedied their past segregationist

policies. See, e.g., Parents Involved, 551 U.S. at 722;

Dowell, 498 U.S. at 248.

After that, the Constitution prohibited public

schools from continuing to assign students on the basis of race—a point the Court made clear in Parents

Involved, 551 U.S. at 747–48. As Parents Involved

emphasized, once schools “have removed the vestiges

of past segregation,” “the way ‘to achieve a system of

determining admission to the public schools on a nonracial basis,’ is to stop assigning students on a racial

basis.” Id. (quoting Brown v. Bd. of Educ. (“Brown

II”), 349 U.S. 294, 300–01 (1955)). In other words, to

the extent that school districts could ever consider

race, they could do so only on a temporary basis. Students for Fair Admissions, 600 U.S. at 314 (Kavanaugh, J., concurring) (collecting cases).

9

C. Government contracting.

This Court has also applied the temporal limit on

race-based decision-making to government contracting programs. See, e.g., Adarand Constructors, Inc. v.

Pena, 515 U.S. 200, 238 (1995); Croson, 488 U.S. at

510 (racial classification must be “a temporary matter”).

In prior decades, the federal government and some

state governments discriminated against black-owned

businesses when disbursing government contracts.

In response, the Court held that governments that

had discriminated against African-Americans in the

past could give racially preferential treatment. Here

again, however, the Court insisted on temporal limits

to governmental race-based decision-making. In

Adarand, for example, the Court insisted that any

such program must be “appropriately limited such

that it ‘will not last longer than the discriminatory effects it is designed to eliminate.’” Adarand, 515 U.S.

at 238 (quoting Fullilove v. Klutznick, 448 U.S. 448,

513 (1980) (Powell, J., concurring)).

*

*

*

The Court should hold that—as in other areas of

law—racial classification in legislative districting was

justifiable only on a temporary basis. As in Students

for Fair Admissions, the Court should not permit the

discriminatory practice to continue absent a logical

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

concurring); Tr. of Oral Arg., Louisiana v. Callais at

55:2–7 (remarks of Justice Kavanaugh).

10

IV.

Race-based districting under Section 2 of

the VRA is no longer justified.

State legislatures have been forced to consider race

in drawing legislative maps for over 45 years. Even

after this Court warned about the dangers of racebased districting in Shaw I—more than thirty years

ago—federal courts have continued to force States to

use race in drawing legislative maps. Notably,

Shaw’s warning against race-based remedies in the

legislative-districting context has been in effect even

longer than Grutter’s warning was in effect for college

admissions. See Students for Fair Admissions, 600

U.S. at 212–13, 230–31 (20 years between Grutter and

Students for Fair Admissions).

Although this practice may once have been justified as a temporary remedy for government discrimination against minority groups, it no longer is. Since

the VRA’s enactment, “things have changed dramatically.” Shelby Cnty., 570 U.S. at 545–47. By any objective measure, American States no longer enforce

white supremacy. “Voter turnout and registration

rates now approach parity. Blatantly discriminatory

evasions of federal decrees are rare. And minority

candidates hold office at unprecedented levels.” Id.

at 547 (quoting Nw. Austin Mun. Util. Dist. No. 1 v.

Holder, 557 U.S. 193, 202 (2009)).

Moreover, throughout the United States, minority

groups register and vote at comparable—or even

higher—rates than white Americans. And minority

groups wield substantial political power in statewide

races throughout the United States. These facts confirm that race-based districting is not necessary to ensure minority groups’ access to the voting booth or

representation in Congress.

11

At the same time, if the Court allows race-based

districting to continue, there is no logical endpoint for

this “sordid” practice. LULAC, 548 U.S. at 511 (Roberts, C.J., concurring in part, dissenting in part).

This Court has made clear that no racial group has

the right to wield political power proportional to its

share of the population. Allen, 599 U.S. at 28; see

also id. at 43–44 (Kavanaugh, J., concurring) (collecting cases). With that metric excluded, the only rational course is to prohibit race-based districting unless there is evidence that a particular government is

employing discriminatory rules to enforce white supremacy.

A. Race-based

needed.

districting

is

no

longer

The United States has come a long way from the

Jim-Crow era—in which explicit, governmental discrimination against African-Americans and other minorities was commonplace. By any metric, American

governments no longer prevent minority groups from

exercising their right to vote.

To start, all American citizens enjoy constitutional

and statutory rights to vote. No State or locality bars

citizens from registering or voting based on their race.

Moreover, it is easy to vote in all States. Every State

permits in-person voting. Many allow early voting.

And almost all offer mail voting for groups—like individuals with disabilities and the elderly—who would

struggle to vote in person. Moreover, the Constitution and federal statutes prevent States from imposing even non-discriminatory burdens at all steps of

the voting process. See, e.g., Crawford v. Marion

Cnty. Election Bd., 553 U.S. 181, 189–91 (2008); 52

12

U.S.C. § 10101(a)(2)(B). Any suggestion that American governments enforce white supremacy through

voting rules is baseless.

Additionally, over 70% of eligible African-Americans nationwide were registered to vote in 2024—just

barely below the average registration rate of 73.6% for

all Americans. See, KFF, Voting and Voter Registration as a Share of the Voter Population, by Race/Ethnicity (Nov. 2024) [KFF Numbers]. 1 In Alabama, for

example, 67.7% of eligible African-American voters

are registered, and there is less than a two percent

registration gap between white and African-American

voters. See id; cf. Brnovich v. Democratic Nat’l

Comm., 594 U.S. 647, 671 (2021) (“[T]he mere fact

there is some disparity . . . does not necessarily mean

that a system is not equally open.”); id. at 680 (noting

similar statistical gap was insignificant). Recall

that, “[s]hortly before enactment of the Voting Rights

Act, only 19.4 percent of African–Americans of voting

age were registered to vote in Alabama, only 31.8 percent in Louisiana, and only 6.4 percent in Mississippi.”

Shelby Cnty., 570 U.S. at 545–46. And

“[t]hose figures were roughly 50 percentage points or

more below the figures for whites.” Id. at 546. That

gap simply does not exist anymore—even in the southern States that most recently tried to enforce discriminatory voting rules. See KFF Numbers.

Similarly, voting rates are roughly equivalent between white and African-American voters. In 2020,

for example, African-American turnout was just a few

1 https://www.kff.org/other/state-indicator/voting-and-voter-re

gistration-as-a-share-of-the-voter-population-by-raceethnicity/?c

urrentTimeframe=0&sortModel=%7B%22colId%22:%22Locatio

n%22,%22sort%22:%22asc%22%7D.

13

percentage points less than white turnout, and higher

than all other racial minorities. See, e.g., U.S. Elections Project, Voter Turnout Demographics (last visited Sept. 19, 2025). 2 Once again, that small gap

pales in comparison to the conditions Congress confronted in 1965 when it enacted Section 2. See

Shelby Cnty., 570 U.S. at 545–46.

Finally, and unsurprisingly given roughly equivalent registration and voting rates, minority groups exercise real political power in the United States. In

national politics, Americans recently elected an African-American president for two terms and an AfricanAmerican vice president for one term. Minority candidates have been prominently featured in presidential elections and both major parties’ presidential primaries. 3 And candidates from racial minority groups

have performed well in recent years, including in

southern States. Within the last few years, Georgia

and South Carolina elected African-American senators, 4 South Carolina and Louisiana elected IndianAmerican governors, 5 and both major political parties

2 electproject.org/election-data/voter-turnout-demographics.

3 See, e.g., Kamala D. Harris, The Office of Kamala D. Harris,

kamalaharris.com/about (last accessed Sept. 19, 2025); Brian

Schwartz, Peltz, Druckenmiller, Navarro give big to Tim Scott

PACs, CNBC (July 31, 2023); Karl de Vries, Carson captures

southern Republican straw poll, CNN (May 23, 2015).

4 See, e.g., Sen. Tim Scott, www.scott.senate.gov (last accessed

Sept. 19, 2025); Sen. Raphael Warnock www.warnock.senate.gov

(last accessed Sept. 19, 2025).

5 See Gov. Nikki Haley, Nat’l Governors Assoc., www.nga.

org/governor/nikki-r-haley (last accessed Sept. 19, 2025); Gov.

Bobby Jindal, Nat’l Governors Assoc., www.nga.org/governor/bobby-jindal (last accessed Sept. 19, 2025).

14

have selected African-Americans as their gubernatorial candidates. 6 Moreover, from the 115th Congress

forward, the majority of African-American members

represent districts that are not majority-black seats. 7

In short, the reasons that once justified race-based

districting no longer exist. Racial minorities can cast

votes under equal rules with everyone else. And racial minorities wield substantial political power in the

United States—at least as much as in any other country in the world.

B. There is no logical endpoint if this Court

allows race-based districting to continue.

The proponents of continued race-based districting

cannot identify a logical endpoint to the practice.

That too is a strong reason not to permit such discriminatory practices continue. See Students for Fair Admissions, 600 U.S. at 227–28.

To start, Congress did not make its mandate to employ race-based districting a temporary one. Section

2 has no expiration date. See, e.g., Allen, 599 U.S. at

88 n.21 (Thomas, J., dissenting); cf. Shelby Cnty., 570

U.S. at 537 (“Section 2 is permanent, applies nationwide . . . .”).

6 See, e.g., Bruce Schreiner, Trump-backed Daniel Cameron to

face Democratic Kentucky Gov. Andy Beshear in November, The

Associated Press (May 17, 2023); Chris Jones wins Democratic

primary for Arkansas governor, facing Trump’s press secretary,

PBS News (May 24, 2022).

7 See Geoffrey Skelly, How Majority-Minority Districts Fueled

Diversity in Congress, FiveThirtyEight (Aug. 14, 2023) [538 analysis], https://fivethirtyeight.com/features/majority-minority-congressional-districts-diversity-representation/.

15

Moreover, the courts have not developed a test that

would render Section 2’s mandate temporary. Under

Gingles and subsequent cases, the only hard requirements for a minority group to be guaranteed an additional legislative seat is a (1) sufficient minority population that (2) favors one political party and is (3)

reasonably compact, such that an additional district

would not violate traditional redistricting principles.

See, e.g., Tr. of Oral Arg., Louisiana v. Callais, at

35:24–36:12; see also Allen, 599 U.S. at 18 (summarizing Gingles preconditions); id. at 43 (Kavanaugh, J.,

concurring) (identifying compactness as the primary

guardrail against Section 2 claims). In Allen, the

Court suggested that those requirements are hard to

meet. 599 U.S. at 29; but see Ellen Katz, et al., Discrimination in Voting: Judicial Findings Under Section 2 of the Voting Rights Act Since 1982, 39 U. Mich.

J.L. Reform 643, 660 (2006) (finding plaintiffs succeeded in 57 of 68 lawsuits following Gingles once

three preconditions were satisfied). But there is no

evidence that Section 2 redistricting claims are becoming rarer. To the contrary, the courts “have extracted years of litigation from every districting cycle,” See Alexander v. S.C. State Conf. of the NAACP,

602 U.S. 1, 66 (2024) (Thomas, J., concurring in part),

and have seen a flood of new Section 2 redistricting

claims in recent years, see, infra Section IV.C.2.

In the end, proponents of continued mandatory

race-based districting often appeal to proportionality—the idea that racial groups should have a percentage of legislative seats close to their population share.

See, e.g., Singelton v. Merrill, 582 F. Supp. 3d 924,

946, 958–59, 969, 976, 982, 991–92, 996–97, 1016,

1018, 1025–26 (N.D. Ala. 2022). But this Court has

already made clear that proportionality cannot be the

16

standard. See Allen, 599 U.S. at 28. Nor would

such a standard be fair; in legislative systems, political majorities frequently win percentages of seats far

higher than their percentages of the popular vote.

Consequently, complaints that political parties in particular States do not wish to give their political opponents a proportional number of seats cannot justify

race-based districting.

C. Continuing to mandate race-based districting harms voters, States, and the

courts.

Maintaining race-based districting harms voters,

States, and the courts—all while leaving no clear beneficiaries.

1.

Voters

Sorting voters based on their race into districts

with particular racial makeups demeans the dignity

of all Americans. It “reinforce[s] the belief, held by

too many for too much of our history, that individuals

should be judged by the color of their skin.” Shaw I,

509 U.S. at 657.

Moreover, because legislative districting “is something of a zero-sum endeavor, giving an advantage to

one minority group may disadvantage” everyone else.

Allen, 599 U.S. at 99 (Alito, J., dissenting). In this

case, Louisiana’s use of race-based districting to give

African-American voters more political power weakened the political power of non-African American voters. It is hard to see why non-African American voters should be disadvantaged merely because of their

skin color. See Adarand, 515 U.S. at 239 (Scalia, J.,

concurring in part) (warning against assigning Americans to “creditor” and “debtor race[s]”).

17

Moreover, Section 2’s racial districting mandate

disadvantages some minority groups more than others. The Gingles test is designed to benefit minority

groups with (1) large populations that (2) live close to

each other and (3) tend to vote for the same political

party. See Wis. Legislature, 595 U.S. at 402 (citing

Gingles, 478 U.S. at 50–51). But many minority

groups—e.g., Asian-Americans and Native Americans—cannot typically satisfy those requirements due

to lack of numbers. And both Hispanics and Native

Americans likely cannot benefit because they have become swing voters winnable by both political parties.

See, e.g., Z. Levitt, See the Voting Groups That Swung

Right in the 2024 Vote, New York Times (Dec. 17,

2024). 8 Thus, in guaranteeing legislative seats only

for some minority populations, but not others, the

VRA mandates differential treatment among minority

populations.

Finally, it is not even clear that African-Americans

benefit from VRA-mandated districts. AfricanAmerican leaders often disagree as to whether African-American voters should be clumped so that they

form majorities in particular districts. See, e.g., Marilyn W. Thompson, Clyburn’s Role in South Carolina

Redistricting May Be Examined as Supreme Court

Hears Racial Gerrymandering Case, ProPublica (May

17, 2023). 9 After all, creating more VRA districts

guarantees some amount of political strength for African-Americans, but spreading out African-American

voters may ensure that they have influence in a

8

nytimes.com/interactive/2024/11/06/us/elections/trump-america-red-shift-victory.html.

9 propublica.org.article/james-clyburn-south-carolina-gerrymander-redistricting-scotus.

18

greater number of districts. See 538 Analysis (acknowledging this point). Thus, despite the fact that

Section 2’s mandate discriminates against large numbers of voters, it is not even clear that such discrimination truly benefits anyone.

2.

States

The status quo is also bad for States. “Redistricting ‘is primarily the duty and responsibility of the

State,’ and ‘[f]ederal-court review of districting legislation represents a serious intrusion on the most vital

of local functions.’” Abbott, 585 U.S. at 603 (quoting

Miller, 515 U.S. at 915). Moreover, redistricting is

an enormously “complex” and difficult process. Id.

States must honor a host of competing considerations—including equal population rules, protecting incumbents, preserving communities of interest, and respecting the needs of counties and other political entities. See, e.g., Miller, 515 U.S. at 915–16. Many

state legislatures must also heed complex demands

from state constitutions. In Missouri, for example,

the General Assembly must try to keep congressional

districts “as compact as may be.” Mo. Const. art. III,

§ 45. And all state legislatures must consider

sharply competing political interests. Thus, this

Court recognized that “States must have discretion to

exercise the political judgment necessary to balance”

the many “competing interests” inherent in districting. Miller, 515 U.S. at 915–16.

Federal legal requirements respecting race make

the States’ difficult task of districting even more difficult. Under current law, “the Equal Protection

Clause restricts consideration of race and the VRA demands consideration of race,” leaving state legislatures constantly “vulnerable to ‘competing hazards of

19

liability.’” Abbott, 585 U.S. at 587 (quoting Bush v.

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

Alexander, 602 U.S. at 65–66 (Thomas, J., concurring

in part) (“[O]ur precedents stand for the rule that

States must consider race just enough in drawing districts.”). Too much consideration of race leads to liability under the Equal Protection Clause. Shaw I,

509 U.S. at 641. Too little leads to liability under the

VRA. Abbott, 585 U.S. at 587. As this case demonstrates, a State is not safe regardless of which direction it errs. See Alexander, 602 U.S. at 65 (Thomas, J.,

concurring in part) (“[T]his Court's jurisprudence puts

States in a lose-lose situation.”)

The lack of clarity on the appropriate role of race

in the redistricting process is unfair to States. Wellfunded litigation groups stand ready to challenge legislative maps. Since 2020, such groups have brought

at least 30 cases asserting challenges to legislative

maps under Section 2 of the VRA. See Redistricting

Litigation Roundup, Brennan Center for Justice (last

visited Sept. 19, 2025). 10 All these lawsuits impose

enormous litigation costs on States and sow political

chaos.

States need certainty during redistricting. See

Merrill v. Milligan, 142 S. Ct. 879, 881 (2022) (Kavanaugh, J., concurring in grant of stay); accord id. at

882 (Roberts, C.J., dissenting from grant of stay).

But Missouri can identify only one rule that provides

adequate certainty: States should not consider race

when districting.

3.

The Courts

10 https://www.brennancenter.org/our-work/research-reports/redistricting-litigation-roundup-0.

20

Finally, the courts also lose under the status quo.

Redistricting is one of the most inherently political activities undertaken taken by state legislatures. See

Rucho v. Common Cause, 588 U.S. 684, 718–19 (2019)

(describing redistricting as “one of the most intensely

partisan aspects of American political life.”) Consequently, redistricting litigation is typically little more

than a thinly-veiled effort by the plaintiff to circumvent the legislative process. Alexander, 602 U.S. at

11 (noting Court “must be wary of plaintiffs who seek

to transform federal courts into ‘weapons of political

warfare’ that will deliver victories that eluded them

‘in the political arena.’” (quoting Cooper v. Harris, 581

U.S. 285, 335, (2017) (Alito, J., concurring in judgment in part and dissenting in part)). With each new

redistricting cycle, parties that lost legislative battles

call upon the federal courts to referee these political

fights. See Alexander, 602 U.S. at 66 (Thomas, J.,

concurring in part) (noting “[t]here is no density of minority voters that this Court's jurisprudence cannot

turn into a constitutional controversy”).

Under current jurisprudence, courts are forced to

employ amorphous legal standards when evaluating

race-based districting claims. Deciding, for example,

whether an additional majority-minority is “reasonably configured” is hardly a crisp inquiry. See Allen,

599 U.S. at 19–20; id. at 96–97 (Alito, J., dissenting)

(discussing this inquiry). And assessing how alternative maps perform under traditional redistricting

principles does not entail a simple mathematical

equation, but instead requires judgments of the “‘competing interests’ and ‘complex . . . forces’ involved in

drawing districts.”

Alexander, 602 U.S. at 43

(Thomas, J., concurring in part) (quoting Miller, 515

21

U.S. at 915-16); see also Allen, 599 U.S. at 31 (discussing methodology used by plaintiffs’ expert against Alabama). Justice Thomas has rightfully characterized this task as a “dubious undertaking in the best of

circumstances.” Alexander, 602 U.S. at 43 (Thomas,

J., concurring in part).

Further, assessing how racial minorities are likely

to vote is pure guesswork, requiring courts to engage

in precisely the stereotyping that the Equal Protection

Clause seeks to prohibit. See Alexander, 602 U.S. at

59–60 (Thomas, J., concurring in part) (explaining

that judicial stereotyping improperly reduces minority voters “to partisan pawns and racial tokens”).

But past is not prologue. No minority group “belongs” with one party or another. The last presidential election puts this in focus, as President Trump received a significant increase in voter share among

Black, Hispanic, and Asian voters as compared to the

shares he received in the 2016 and 2020 Presidential

elections. See Hannah Hartig et al., Voting Patterns

in the 2024 Election, Pew Research Center (June 26,

2025). 11 Yet, this Court’s current jurisprudence requires the Court to “construct a caricature” of racial

groups, and “assume that ‘members of racial and ethnic groups must all think alike on important matters.”

Alexander, 602 U.S. at 59–60 (Thomas, J., concurring

in part) (quoting Holder v. Hall, 512 U.S. 874, 903

(1994)). Continued application of such stereotyping

is untenable.

Maintenance of the status quo—in the absence of

clear, judicially manageable standards—creates a

11 https://www.pewresearch.org/politics/2025/06/26/voting-pat-

terns-in-the-2024-election/

22

risk that judicial decisions in this area will be seen as

political—and not firmly based on law. Cf. Rucho,

588 U.S. at 721 (“[W]e have no commission to allocate

political power and influence in the absence of a constitutional directive or legal standards to guide us in

the exercise of such authority.”); see also Vieth v. Jubelirer, 541 U.S. 267, 307 (2004) (Kennedy, J., concurring) (“With uncertain limits, intervening courts—

even when proceeding with best intentions—would

risk assuming political, not legal, responsibility for a

process that often produces ill will and distrust.”). Instead of continuing to force States and courts to make

subjective judgments about how much race should infect legislative districting, this Court should hold that

States may conduct color-blind districting and that

Section 2 is unconstitutional to the extent it currently

requires otherwise. “It is well past time for the Court

to return these political issues where they belong—

the political branches.” Alexander, 602 U.S. at 66

(Thomas, J., concurring in part).

CONCLUSION

“Eliminating racial discrimination means eliminating all of it.” Students for Fair Admissions, 600

U.S. at 206. Although Section 2’s mandate for racebased districting was once an appropriate, tailored remedial response to governmental discrimination

against African-Americans, it can no longer be justified on that basis. Intentional differential treatment

on the basis of race is a dangerous tool for American

governments to use. That is why this Court has consistently insisted that any sort of affirmative action

designed to benefit particular racial groups be temporary in nature. Under that principle, race-based districting has lasted long enough. See Students for

23

Fair Admissions, 600 U.S. at 212–13, 230–31 (45

years was long enough for affirmative action); Dowell,

498 U.S. at 248 (race-based “injunctions entered in

school desegregation cases” could not “operate in perpetuity”); Parents Involved, 551 U.S. at 747–48

(same).

Unless this Court is willing to indefinitely force

States to discriminate on the basis of race when drawing legislative maps, the Court should affirm and hold

that States may conduct color-blind districting.

Respectfully submitted,

CATHERINE L. HANAWAY

Missouri Attorney General

LOUIS J. CAPOZZI, III

Solicitor General

Counsel of Record

OFFICE OF THE MISSOURI

ATTORNEY GENERAL

Supreme Court Building

207 West High Street

Jefferson City, MO 65102

(573) 645-9662

Louis.Capozzi@ago.mo.gov

September 24, 2025